[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 20-14480

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D.C. Docket No. 1:20-cv-04809-TCB

CORECO JA’QUAN PEARSON, et al., 

 Plaintiff - Appellants,

versus

BRIAN KEMP, et al., 

 Defendant - Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(December 4, 2020)

Before WILSON, ROSENBAUM, and BRASHER, Circuit Judges.

BRASHER, Circuit Judge:

This appeal arises from last-minute litigation that alleges widespread electionrelated misconduct and seeks sweeping relief. The issue before us, however, is a 

narrow question of appellate jurisdiction: has the district court entered an order that 

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we have jurisdiction to review? Because the answer to that question is “no,” we must 

dismiss this appeal for lack of jurisdiction and allow the proceedings to continue in 

the district court.

I. BACKGROUND

The plaintiffs in this case are a group of Presential Electors from Georgia. On 

the Wednesday before Thanksgiving, they sued Georgia’s Governor, its Secretary 

of State, and other defendants. They asserted that Georgia’s certified 2020 

Presidential Election results were suspect because of alleged vulnerabilities in 

Georgia’s election machines and alleged mathematical and statistical anomalies in 

the vote count. Two days later—the Friday after Thanksgiving—the plaintiffs filed 

a motion for injunctive relief, seeking (1) a temporary restraining order preventing 

the defendants from erasing or altering forensic data on voting machines, (2) an 

injunction de-certifying the Presidential election results, or alternatively a stay in the 

delivery of the certified results to the Electoral College, and (3) an injunction making 

the voting machines available to the plaintiffs for forensic analysis.

The district court took the complaint and motion seriously and, on Sunday 

night, held a hearing on the plaintiffs’ motion via Zoom. There, the plaintiffs’ 

counsel explained that the evidence the plaintiffs hoped to collect from Georgia’s 

voting machines might be permanently lost if the defendants were not immediately 

enjoined from altering the machines, since those machines needed to be recalibrated

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for upcoming state and local runoff elections. Rather than waiting for a ruling on the 

motion for injunctive relief that covered ten counties, the plaintiffs proposed that the 

district court order “very limited” relief in “two or three counties.” This solution 

would allow the plaintiffs to quickly collect the data they sought without impeding 

the runoff elections. The district judge agreed with the plaintiffs, and said that he

would “order and temporarily restrain the Defendants . . . from altering or destroying 

or erasing[,] or allowing the alteration, destruction, or erasing of any of the computer 

information on any of the [voting] machines” in Cobb, Gwinnett, and Cherokee 

Counties. 

True to his word, the district judge issued a written temporary restraining 

order on Sunday night that gave the plaintiffs what they said they wanted. That order

enjoined the defendants from erasing or altering data on voting machines in the three 

counties listed above. It also ordered the defendants to produce a copy of the contract 

between the State of Georgia and Dominion Voting Systems. Two follow-up orders 

set an expedited evidentiary hearing for the morning of December 4, 2020 on the 

broader relief requested in the plaintiffs’ motion and certified that the Sunday night 

order contained the elements required for a permissive appeal under 28 U.S.C. § 

1292(b). 

A few days later, the plaintiffs filed a notice of appeal as to the district court’s 

Sunday night order. As a result, the district court canceled the hearing on the broader 

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relief the plaintiffs had requested. The defendants filed a conditional cross-appeal. 

Later, the plaintiffs also requested permission to appeal in this Court under 28 U.S.C. 

§ 1292(b).

II. DISCUSSION

In our judicial system, the district court is the central forum for testing, 

advancing, proving, or disproving a party’s allegations. It is where trials take place

and the parties present their evidence. As a court of appeals, “we are a court of 

review, not of first view.” Cutter v. Wilkinson, 544 U.S. 709, 718, n.7 (2005). 

Typically, we enter the picture only after the district court has considered the parties’ 

competing positions and a winner has emerged. Less frequently, we review 

preliminary injunctions or orders that ask a particularly important, purely legal 

question. 

The district court has not issued one of those appealable orders. In this case, 

the district court issued an emergency temporary restraining order at the plaintiffs’ 

request, worked at a breakneck pace to provide them an opportunity for broader

relief, and was ready to enter an appealable order on the merits of their claims 

immediately after its expedited hearing on December 4, 2020. But the plaintiffs 

would not take the district court’s “yes” for an answer. They appealed instead. And, 

because they appealed, the evidentiary hearing has been stayed and the case 

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considerably delayed. For our part, the law requires that we dismiss the appeal and 

return the case to the district court for further proceedings.

A. The Sunday night order is not appealable under 28 U.S.C. §§ 1291 or 

1292(a)(1)

We begin with the obvious: we cannot exercise our customary appellate 

jurisdiction because the district court has not entered a final judgment. See 28 U.S.C. 

§ 1291. A final judgment is a decision that “ends the litigation on the merits and 

leaves nothing for the court to do but execute the judgment.” Ray Haluch Gravel Co. 

v. Centr. Pension Fund of Operating Eng’rs and Participating Emp’rs, 571 U.S. 

177, 183 (2014). An appeal from a final judgment may be taken as a matter of right. 

Gelboim v. Bank of Am. Corp., 574 U.S. 405, 407 (2015).

The plaintiffs concede no final judgment has been entered in this case. Instead, 

the plaintiffs argue that the district court’s Sunday night order is immediately 

appealable as an order denying their request for a temporary restraining order. The 

plaintiffs argue that that—even though the Sunday night order granted their request 

for a temporary restraining order in part and did not, on its face, deny anything—the

order effectively denied their request because of the exigent circumstances involved. 

This argument fails for three reasons.

First, the district court’s order does not deny the plaintiffs their requested 

relief at all. The plaintiffs filed their motion on the Friday after Thanksgiving. The 

district court held an emergency hearing over the weekend and, on Sunday, 

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November 29th, entered a TRO granting the plaintiffs’ request in part. Notably, this

Sunday night order gave the plaintiffs almost exactly what their counsel proposed as 

a temporary solution at the hearing: it “identif[ied] a very limited . . . number of 

counties” and enjoined the defendants from erasing or altering data contained on 

Dominion voting machines in those counties, thus, preserving them for future 

inspection. The district court then set an expedited briefing schedule and an 

emergency evidentiary hearing for December 4th. The purpose of the briefing 

schedule was to allow the defendants an opportunity to respond to the plaintiffs’ 

allegations. And the purpose of the evidentiary hearing was to allow the plaintiffs to

support their allegations with evidence and, potentially, to win the injunctive relief 

that they were seeking. Nothing about that chain of events suggests an adverse ruling 

on the plaintiffs’ motion.

Second, even if the district court’s order were properly construed as the denial 

of the plaintiffs’ request—again, ignoring the fact that it did not deny anything—we 

do not ordinarily have jurisdiction over TRO rulings. McDougald v. Jenson, 786 

F.2d 1465, 1472 (11th Cir. 1986). We exercise appellate jurisdiction over TRO

decisions only “when a grant or denial of a TRO might have a serious, perhaps 

irreparable, consequence, and can be effectually challenged only by immediate 

appeal[.]” Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1223, 1225 (11th Cir. 2005)

(quoting Ingram v. Ault, 50 F.3d 898, 900 (11th Cir.1995)). This is a high hurdle for 

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appellants to clear, and our caselaw provides for emergency appeals from TRO 

decisions only in the direst of circumstances. In Ingram, we permitted an appeal 

where a prisoner was set to be executed within twenty-four hours of a TRO being 

denied. Ingram, 50 F.3d at 899-900. In Schiavo, we permitted an appeal where a 

court denied a TRO that would have put a terminally ill patient back on life support. 

Schiavo, 403 F.3d at 1225. 

The plaintiffs here are not in the same position as an inmate about to be 

executed or a patient removed from life support. The “irreparable” harm threatened 

here is that voting machines will be “wiped,” erasing the data they contain and 

preventing the plaintiffs from conducting the forensic inspection they request. But 

the plaintiffs have not demonstrated that the alleged harm is imminent—that the 

defendants would have wiped all these machines county-by-county, destroying all 

the data they contain, unless the district court had granted broader relief on Sunday 

night. In fact, the district court’s order was specifically designed to avoid this

consequence by enjoining the defendants from erasing or altering data on the 

machines in three counties. It preserved the status quo in a way that gave the 

plaintiffs what they said they wanted and was minimally disruptive to the State of 

Georgia’s ability to conduct special run-off elections in other counties. Nothing 

compelled an immediate appeal: had the plaintiffs not appealed the district court’s 

Sunday night order, the district court would have held the evidentiary hearing it set 

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for December 4th and, by now, would likely have ruled on the plaintiffs’ broader 

request for injunctive relief. Afterwards, the plaintiffs could have appealed.

Third, and for many of the same reasons, the district court’s Sunday night 

order was not an appealable preliminary injunction order masquerading as a ruling 

on a request for a TRO. To determine whether an order denominated as a TRO is 

actually an appealable decision on a preliminary injunction, we review certain 

factors including “the duration of the order” and “the extent of evidence submitted 

to the district court.” Cuban Am. Bar Ass'n, Inc. v. Christopher, 43 F.3d 1412, 1422 

(11th Cir. 1995). The Sunday night order lacks the hallmarks of a preliminary 

injunction ruling. It does not engage the traditional four-factor test for granting 

preliminary injunctions. Its duration is limited to ten days. And, although some 

evidence has been submitted to the district court, no live witnesses have testified, no 

discovery has been conducted, and the defendants have not even had a chance to file 

a response to the complaint.

B. The Sunday night order is not appealable under 28 U.S.C. § 1292(b)

Alternatively, the plaintiffs ask that we permit them to appeal under 28 U.S.C. 

§ 1292(b). Where no other avenue of appeal is open, Section 1292(b) allows a court 

of appeals to exercise jurisdiction under certain specified conditions. Digital Equip. 

Corp. v. Desktop Direct, Inc., 511 U.S. 863, 883 (1994). Review under this statute 

was “intended, and should be reserved, for situations in which the court of appeals 

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can rule on a pure, controlling question of law without having to delve beyond the 

surface of the record in order to determine the facts” and should not, in contrast, turn 

on case-specific inquiries, such as “whether the district court properly applied settled 

law to the facts or evidence of a particular case.” McFarlin v. Conseco Servs., LLC, 

381 F.3d 1251, 1259 (11th Cir. 2004). This Court has identified five conditions 

necessary for it to consider an issue in an interlocutory appeal under Section 1292(b): 

“(1) the issue is a pure question of law, (2) the issue is controlling of at least a 

substantial part of the case, (3) the issue was specified by the district court in its 

order, (4) there are substantial grounds for difference of opinion on the issue, and 

(5) resolution may well substantially reduce the amount of litigation necessary on 

remand.” Mamani v. Berzain, 825 F.3d 1304, 1312 (11th Cir. 2016) (quotation marks 

omitted).

This avenue of appellate jurisdiction is also closed. The case does not meet 

our criteria for Section 1292(b) interlocutory review for at least three reasons. 

First, Section 1292(b) does not countenance an interlocutory appeal at this 

point in the case. The district court’s Sunday night order was entered after only a 

weekend’s worth of litigation and does not conclusively answer any legal 

questions. Cf. Ray v. American Nat. Red Cross, 921 F.2d 324, 325 (D.C. Cir. 1990) 

(no appeal when the district court certified the question under § 1292(b) without first 

deciding it). Perhaps for that reason, the order certifies that the case involves a 

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controlling question of law but does not identify what that question is. See McFarlin, 

381 F.3d at 1264 (“If the district court is unsure about which of the questions, if any, 

that are answered by its order qualify for certification under § 1292(b), it should not 

certify the order for review. If convinced that a particular question does qualify, the 

district court should tell us which question it is.”). And, most problematic in our 

view, the parties intended to present more evidence on the issues addressed in the 

district court’s order, and the district court scheduled briefs and a hearing to allow 

it. We cannot use Section 1292(b) to “offer advisory opinions rendered on 

hypotheses which evaporate in the light of full factual development.” Paschall v. 

Kansas City Star Co., 605 F.2d 403, 406 (8th Cir. 1979) (cleaned up).

Second, we are not convinced the primary question the plaintiffs suggest we 

answer—whether county-level election officials are the proper defendants to redress 

the plaintiffs’ alleged injuries—is a “pure or abstract legal question” that can be 

“stated at a high enough level of abstraction to lift the question out of the details of 

the evidence or facts of a particular case.” McFarlin, 381 F.3d at 1259, 1262. This 

issue goes to the redressability element of standing. “Standing for Article III 

purposes requires a plaintiff to provide evidence of an injury in fact, causation and 

redressability.” Dermer v. Miami-Dade Cnty., 599 F.3d 1217, 1220 (11th Cir. 2010). 

A court must assess standing by making “a legal determination based on the facts 

established by the record.” Church of Scientology Flag Serv. Org., Inc. v. City of 

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Clearwater, 777 F.2d 598, 607 n.24 (11th Cir. 1985). The facts have played a role 

in evaluating redressability in other election litigation,1 and they could also play a 

role here. Because the plaintiffs’ appeal asks us to apply “settled law to the facts or 

evidence of [this] particular case,” it is “the antithesis of a proper § 1292(b) appeal.” 

McFarlin, 381 F.3d at 1259.

Third, a decision about whether the plaintiffs need to sue county officials will 

not cut short the case. If the answer is that the plaintiffs do not need to add these 

defendants, then the case will continue as is. If the answer is that the plaintiffs must 

add these defendants, the case will continue with additional defendants. We have 

“little doubt that a question is not controlling” if the litigation “can readily be 

accommodated to whatever ruling is made.” 16 C. Wright & A. Miller, Federal

Practice & Procedure § 3930 (3d ed. 2020).

III. CONCLUSION

Because we lack jurisdiction, the appeal is DISMISSED and the motion for 

permissive appeal is DENIED. Because we must dismiss this appeal, the 

defendants’ conditional cross appeal is also DISMISSED. Any other pending 

motions are DENIED AS MOOT.

1 Both parties cite our recent decision in Jacobson v. Fla. Sec’y of State, 974 F.3d 1236 (11th Cir. 

2020), where the Florida Secretary of State argued that she could not remedy the alleged problem 

and we held that “no contrary evidence” established otherwise. Id. at 1253. See also id. at 1254 

(“absence of any evidence”), 1255 (“not proved”), 1255 (“not established”), 1257 (“no contrary 

evidence”).

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