# United States Court **of Appeals**  **f or the Fifth Circuit** 

**____________** No. 22

- 20459

**____________ The Satanic Temple, Incorporated,** 
Plaintiff

— Appellant **,**

versus
**Texas Health and Human Service Commission; Cecile Young,** 
Defendants

— Appellees

**.**

**______________________________** Appeal from the United States District Court for the Southern District of Texas USDC No. 4:21

- CV

- 387

**______________________________** Before **Smith ,**  **Higginson ,**  and **Willett ,**  Circuit Judges

**. Jerry E. Smith,**  Circuit Judge **:** The Satanic Temple, which describes itself as a “nontheistic religion whose membership openly defies the authority of God and the Church,” and
an anonymous membe r thereof sued the Texas Health and Human Services Commission (“THHSC”), its Executive Commissi oner (currently Cecile Young), and the Planned Parenthood Center for Choice, Inc., seeking injunc

tive and declaratory relief against several Texas abortion laws. 1



### _____________________

1 After successive amended complaints, only Cecile Young remains as a defendant , United States Court of Appeals Fifth Circuit 

## FILED Au gust 18, 2023

Lyle W. Cayce Clerk Case: 22-20459 Document: 00516863278 Page: 1 Date Filed: 08/18/2023No. 22

- 20459

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### Plaintiffs moved for a temporary restraining order (“TRO”) and a preliminary injunction against Young ; the district court denied the motion. The Satanic Temple (but not its anonymous member) appealed. While the appeal was pending, the litigation continued apace in dis

trict court. Defendants 2 

### moved to dismiss for lack of jurisdiction 3 

### and for failure to state a claim

. 4 

### The district court granted the motion and dismissed the suit without prejudice but without leave to replead. To settle any doubt : T he district court had jurisdiction to proceed on the merits of the case. An appeal from a grant or denial of a preliminary injunc tion does not inherently divest the district court of jurisdiction or other wise restrain it from taking other steps in the lit igation. 5 

### The district

court therefore had the power to dismiss plaintiffs’ claims despite the pen

den t appeal. But g iven the dismissal, we also must assure ourselves of jurisdiction. 6



### _____________________ sued in her official capacity.

2 THHS C apparently (and mistakenly) thought it was still a party to the suit.

3 See **Fed. R. Civ. P.** 12(b)(1).

4 See id. 12(b)(6).

5 Ry. Lab. Exec s. ’ Ass’n v. City of Galveston ex rel. The Bd. of Tr s. of the Galveston Wharves , 898 F.2d 481, 481 (5th Cir. 1990) ; 11A **Charles Alan Wright & Arthur R. Miller**  , **Federal Practice and Procedure** § 2962, Westlaw (database updated Apr. 2023) (“An appeal from the grant or denial of a preliminary injunction does not divest the trial court of jurisdiction or prevent it fr om taking other steps in the litigation while the appeal is pending. .

. . The only restriction on the trial court ’ s power occurs if the appellate court enters an order staying the lower court until the appeal has been completed .”).

6 Elldakli v. Garland , 64 F.4th 666, 670 (5th Cir. 2023) (“This court has a con tin

u ing obligation to assure itself of its own jurisdiction, sua sponte if necessary.” (quoting Green Valley Special Util. Dist. v. City of Schertz , 969 F.3d 460, 468 (5th Cir. 2020) (en banc)))

. 

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### The courts of appeals have jurisdiction over appeals from certain interloc u

tory orders, including orders refusing injunctions

. 7 

### Such jurisdiction , how

ever, may be lost, as here. 8 

### “A denial of permanent relief moots the appeal from a denial of prelim inary relief.” 9 

### That proposi tion is consistent with the function of preliminary relief, which is “to pre serve the status quo during the pendency of trial court proceedings”

— a function that loses vitality when there are no longer trial court proceedings

. 10



### P laintiffs have some recourse, however . “When a district court enters a final judgment in a case, interlocutory orders rendered in the case typically merge with the judgment for purposes of appellate review.” 11 

### P laintiffs have

**_____________________**

7 28 U.S.C. § 1291(a)(1). Although we now lack jurisdiction over the entire appeal, we were always unable to review the denial of the TRO . Interlocutory orders “granting,

con tinuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions” are immediately appealable. Id. But TROs are not injunctions for § 1292 pur

poses and are therefore not subject to review on interlocutory appeal. Jones v. Tex. Dep’t of Crim. Just. , 880 F.3d 756, 758 n.1 (5th Cir. 2018) (per curiam) (citing Faulder v. Johnson , 178 F.3d 741, 74 2 (5th Cir. 1999)); see also In re Lieb , 915 F.2d 180, 183 (5th Cir. 1990) (collecting intra

- circuit and out

- of

- circuit cases and explaining that concerns abou t moot

ness are the likely basis for the rule prohibiting appeals of TRO decisions) ; see also 11A **Wright & Miller** , supra note 5 , **§ 2962**  (“[I]t generally has been h eld that tem

porary restraining orders are not [appealable].”)

. The denial of plaintiffs’ motion for a TRO was therefore not appealable ab initio

.

8 Koppula v. Jaddou , 72 F.4th 83, 84 (5th Cir. 2023).

9 I

d.

10 Id. There are rare exceptions, such as when a preliminary injunction issues and affects independent and separate rights from any relief provided by a particular final judg

ment. See, e.g. , Stacey G. ex rel. William & Jane G. v. Pasadena Indep. Sch. Dist. , 6 95 F.2d 949, 955 (5th Cir. 1983) (holding that an appeal of a preliminary injunction was not moot because “the final judgment did not in terms resolve the issue” raised on appeal, i.e., “whether preliminary injunctive relief was appropriate to require [the defendant] to pay the entire interim costs of [the plaintiff’s] private schooling prior to the final judg ment ” ). This case presents no such exception.

11 Shannon v. Gen. Elec. Co. , 186 F.3d 186, 192 (2d Cir. 1999) (collecting author i

ties); Capriole v. Uber Techs., Inc. , 991 F.3d 339, 343 (1st Cir. 2021) (“ [U] pon entry of the 

### Case: 22-20459 Document: 00516863278 Page: 3 Date Filed: 08/18/2023No. 22

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### already appealed the dismissal of their claims; that appeal is docketed as No. 23

- 20329. To the extent that plaintiffs want to litigate further any issues that were raised in the preliminary injunction motion and remain live , they may do so in their appeal from the district court’s final judgment. 12



### Th is appeal is **DISMISSED** for want of jurisdiction.

**_____________________** judgment of dismissal of [the] suit, the denial .

. . of the first preliminary injunction merge [s] with the .

. . final judgment.”).

12 See Scheff v. Banks , No. 22

- 2439

- CV, 2023 WL 4715174, at *2

– 3 (2d Cir. July 25, 2023) (summary order); se e also 15A **Wright & Miller** , supra note 5 , § 3905.1 (“[T]he general rule [is] that an appeal from final judgment opens the record and permits review of all rulings that led up to the judgment.”) ; 11A id. § 2962 (“ Upon an appeal from the final decree every interlocutory order affecting the rights of the parties is subject to review in the appellate court. ”). 

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