Legal challenges to Trump orders test 9th Circuit's new, less-reliably liberal tilt

The 9th U.S. Circuit Court of Appeals may not have the same appeal for Democratic states and other organizations challenging President Donald Trump's executive orders and policies as it did during his first term, but for some plaintiffs, there's no place like home.

Two early victories last week in Seattle and San Francisco, by law firms based in those cities on immigration and labor rights cases, emphasized that attorneys often prefer district courts and judges with which they are familiar when deciding where to file.

The San Francisco-based appellate court has a reputation as a liberal bastion, but that has changed in recent years, in part because Trump appointed 10 judges during his first time in office, making the circuit a riskier place to pursue temporary restraining orders, preliminary injunctions and constitutional challenges.

Most lawsuits against the second Trump administration have been filed elsewhere, especially in the 1st U.S. Circuit Court of Appeals, on which all five judges were appointed by Democratic presidents; and in the D.C. Circuit Court of Appeals, which has a 7-4 majority of Democratic choices. But the 9th Circuit isn't being completely left out.

In challenges to Trump administration actions, California Attorney General Rob Bonta has avoided the 9th Circuit, which has a 16-13 majority of Democratic judges but is perceived by legal observers as a less attractive venue for challengers both because of the influx of Trump-appointed judges and the appellate court's unusual en banc system, in which all but one judge - Chief Judge Mary H. Murguia, an appointee of President Barack Obama - is chosen by lot.

While Bonta has joined challenges to Trump orders in the 1st Circuit and filed an amicus brief in the District of Columbia, other plaintiffs are still filing in the 9th Circuit.

Washington Attorney General Nicholas W. Brown already has scored a tentative win there in a challenge filed by his state and three other states to Trump's order revoking birthright citizenship.

A three-judge panel on Feb. 19 rejected the Trump administration's motion for a partial stay of Senior U.S. District Judge John C. Coughenour's nationwide preliminary injunction. State of Washington et al. v. Trump et al., 25-807 (9th Circ., filed Feb. 7, 2025).

Two other groups of plaintiffs also won district court preliminary injunctions or temporary restraining orders against Trump orders or actions last week. In both cases, the plaintiffs' lawyers with Perkins Coie LLP and Altshuler Berzon LLP - in Seattle and San Francisco, respectively - filed in their local venues.

Legal observers say they are not surprised the attorneys stuck with familiar district court venues, where they know the judges, even if there might be more of a risk when the cases head to the 9th Circuit.

"It appears that in all three of the cases the plaintiffs filed suit in a district that was familiar to the lawyers," wrote Arthur D. Hellman, a professor emeritus at University of Pittsburgh School of Law. "Even in this era of electronic transmission, there's some benefit to the lawyers in litigating in the home court. They will be familiar with the judges and their practices."

U.S. District Judge Jamal N. Whitehead of the Western District of Washington, an appointee of President Joe Biden, granted a preliminary injunction blocking Trump's executive order suspending the entry of refugees into the country that had been established by a 1980 federal law. Pacito et al. v. Trump et al., 25-cv-00255 (W.D. Wash., filed Feb. 10, 2025).

He wrote a written injunction on Friday after granting it during a hearing last Tuesday in a case filed by Seattle-based attorneys with Perkins Coie LLP.

"In sum, though the Executive enjoys considerable latitude to suspend refugee admissions, that discretion is not boundless," Whitehead wrote. "Where, as here, Presidential action effectively nullifies a congressionally established program, causing irreparable harm to vulnerable individuals and organizations, judicial intervention becomes necessary to preserve the separation of powers our Constitution demands."

On Monday, U.S. Department of Justice attorney Nancy K. Canter filed a notice of appeal to the 9th U.S. Circuit Court of Appeals.

On Thursday, Senior U.S. District Judge William Alsup, an appointee of President Bill Clinton, granted a temporary restraining order against the Office of Personnel Management's directive ordering probationary employees to be fired from other federal agencies. He followed that up with a written order on Friday.

"The weight of the evidence supports plaintiffs' contention that OPM exceeded the bounds of its authority by unlawfully directing the mass termination of probationary employees across a wide range of federal agencies," Alsup wrote. American Federation of Government Employees, AFL-CIO et al. v. United States Office of Personnel Management et al., 25-cv-01780 (N.D. Cal., filed Feb. 19, 2025).

The case was filed by Altshuler Berzon LLP partners in San Francisco. The firm is known for its representation of labor unions and plaintiffs.

The Trump administration has not filed a motion seeking a stay of Alsup's temporary restraining order as of press time Monday.

Attorneys with Perkins Coie and Altshuler Berzon could not be reached for comment Monday, nor could U.S. Department of Justice attorneys.

Hellman wrote that "lawyers prefer to litigate in courts (and with judges) they know," but noted that most litigants are still avoiding the 9th Circuit compared to the flurry of complaints filed in the appellate court during Trump's first term when, until the tail end of his tenure, it was dominated by Democratic appointees.

Still, in the end, it's expected that most of these cases will end up being decided by the U.S. Supreme Court.