Hicks v. Pleasure House, Inc 8212 127, No. 70

Citation404 U.S. 1,30 L.Ed.2d 1,92 S.Ct. 5
Decision Date12 October 1971
Docket NumberNo. 70
PartiesCecil HICKS, District Attorney, County of Orange, California, et al. v. PLEASURE HOUSE, INC., et al. —127
CourtUnited States Supreme Court

PER CURIAM.

The appellants seek review of a temporary restraining order entered by a single district judge in a case certified for presentation to a statutory three-judge court. The order, inter alia, stayed a pending prosecution of the appellees under certain state obscenity laws and temporarily restrained further enforcement of the laws against the appellees. It was entered by the District Judge shortly after he had certified a request for designation of a three-judge court to hear the appellees' suit for permanent declaratory and injunctive relief. Under 28 U.S.C. § 2284(3), a single district judge has power to enter such an order in a case to be heard by a three-judge court, but the order can be entered only 'to prevent irreparable damage' and can 'remain in force only until the hearing and determination by the full court.'

The appellants argue that the order in this case contravenes principles set forth last Term in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). They invoke this Court's jurisdiction on direct appeal from 'an interlocutory or permanent injunction' in any action 'required * * * to be heard and determined by a district court of three judges,' under 28 U.S.C. § 1253. Since, however, § 1253 does not authorize a direct appeal to this Court from a § 2284(3) order by a single district judge, we dismiss this appeal for want of jurisdiction.

Long ago, this Court made clear that no direct appeal lies under § 1253 to the Supreme Court from a temporary restraining order issued by a single judge, even though the order may amount to an 'interlocutory injunction' and may have been issued in an action required to be heard by a three-judge court. Stratton v. St. Louis S.R. Co., 282 U.S. 10, 51 S.Ct. 8, 75 L.Ed. 135.1 See Ex parte Metropolitan Water Co. of West Virginia, 220 U.S. 539, 31 S.Ct. 600, 55 L.Ed. 575. This is so because § 1253 'plainly contemplates such a direct appeal only in the case of an order or decree entered by a court composed of three judges in accordance with the statutory requirement.' Stratton v. St. Louis S.R. Co., supra, 282 U.S., at 16, 51 S.Ct., at 10. See Mengelkoch v. Industrial Welfare Comm'n, 393 U.S. 83, 89 S.Ct. 60, 21 L.Ed.2d 215; Wilson v. City of Port Lavaca, 391 U.S. 352, 88 S.Ct. 1502, 20 L.Ed.2d 636; Schackman v. Arnebergh, 387 U.S. 427, 87 S.Ct. 1622, 18 L.Ed.2d 865; Buchanan v. Rhodes, 385 U.S. 3, 87 S.Ct. 33, 17 L.Ed.2d 3.

More recently, this Court has held that an appeal may lie to a court of appeals from certain actions of a single district judge in a case required to be heard by three judges. Mengelkoch v. Industrial Welfare Comm'n, supra; Wilson v. City of Port Lavaca, supra; Schackman v. Arnebergh, supra; Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794. A court of appeals is not 'powerless * * * to give any guidance when a single judge has erroneously invaded the province of a three-judge court.' Idlewild Bon Voyage Liquor Corp. v. Epstein, supra, at 716, 82 S.Ct., at 1296. Thus, if a single judge oversteps his limited authority under § 2284(3), a court of appeals...

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11 cases
  • Hamilton v. Nakai
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • January 18, 1972
    ...three judges." 28 U. S.C. § 2284. It follows that under the principles applied by the Supreme Court in Hicks v. Pleasure House, Inc., 1971, 404 U.S. 1, 92 S.Ct. 5, 30 L.Ed.2d 1 (1971), jurisdiction of this appeal is in this court, not the Supreme Court. V. Other contentions. A. Failure to j......
  • Feinberg v. Federal Deposit Ins. Corp.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • November 17, 1975
    ...636 (1968); Mengelkoch v. Industrial Welfare Commission, 393 U.S. 83, 89 S.Ct. 60, 21 L.Ed.2d 215 (1968); Hicks v. Pleasure House, Inc., 404 U.S. 1, 92 S.Ct. 5, 30 L.Ed.2d 1 (1971). Cf. MTM, Inc. v. Baxley, The statute upon which appellant bases his request, 28 U.S.C. § 2282, prohibits a di......
  • Walters v. National Association of Radiation Survivors
    • United States
    • U.S. Supreme Court
    • June 28, 1985
    ...in the first instance by the courts of appeals and not on direct appeal to this Court. See, e.g., Hicks v. Pleasure House, Inc., 404 U.S. 1, 3, 92 S.Ct. 5, 6, 30 L.Ed.2d 1 (1971) (per curiam) (preliminary relief "issued pursuant to [28 U.S.C.] § 2284(3) is reviewable in a court of appeals t......
  • 43 699 Lucas v. Champlain 8212 1346
    • United States
    • U.S. Supreme Court
    • April 15, 1975
    ...case, an appeal lies only to the Court of Appeals. Idlewild Bon Voyage Liquor Corp. v. Epstein, supra; Hicks v. Pleasure House, Inc., 404 U.S. 1, 3, 92 S.Ct. 5, 6, 30 L.Ed.2d 1 (1971). Appellants here, however, premise this Court's jurisdiction on 28 U.S.C. § 1252, rather than § 1253. Secti......
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