Associated Theatres, Inc., Plaintiff-appellee, v. Henry Wade, Etc., et al., Etc., Defendants-appellants, 487 F.2d 1221 (5th Cir. 1973)

We hold that we have no jurisdiction to review a preliminary injunction issued by a single judge on an appeal taken subsequent to the designation of a three-judge district court to hear the case.

After requesting and receiving the appointment of a three-judge court, the District Judge, by the authority given him in 28 U.S.C.A. Sec. 2284(3),¹  preliminarily enjoined the enforcement of a temporary restraining order issued by a Texas state court commanding Associated Theatres to "cease and desist" from showing obscene motion pictures.

Seeking a review of this preliminary injunction, the defendant state officials noticed the appeal to this Court. Such procedure would have been appropriate had it occurred prior to the convening of the three-judge court. The Supreme Court recently decided in Hicks v. Pleasure House, Inc., 404 U.S. 1, 92 S. Ct. 5, 30 L. Ed. 2d 1 (1971) whether such an appeal should be taken to the United States Supreme Court, which has appellate jurisdiction of three-judge court decisions,²  or to the Court of Appeals, which has appellate jurisdiction from the single judge district court.³ 

In Hicks, the Supreme Court was asked to review a temporary restraining order entered by a single District Judge in a case certified for presentation to a three-judge court. The order stayed a pending state obscenity prosecution and temporarily restrained further enforcement of the obscenity laws. After holding that 28 U.S.C.A. Sec. 1253 did not provide for a direct appeal to the Supreme Court from a temporary restraining order issued by a single judge and dismissing the appeal for lack of jurisdiction, the Court explored where jurisdiction did lie:

[I]f a single judge oversteps his limited authority under Sec. 2284(3), a court of appeals may correct his error. In addition, a temporary restraining order issued pursuant to Sec. 2284(3) is reviewable in a court of appeals to the extent that any such order is reviewable under 28 U.S.C. §§ 1291 and 1292(a).

404 U.S. at 3, 92 S. Ct. at 7.

The Court then stated that if no appeal is taken before the convening of the three-judge court, review of the single judge action must be addressed to the three-judge court.

However, if no such appeal is taken before the three-judge court is convened, application must be made to that court for vacation or modification of the temporary restraining order pending a final determination on the merits.

404 U.S. at 3, 92 S. Ct. at 7.

A three-judge court is "convened" when the Chief Judge of the Circuit designates the judges under 28 U.S.C.A. Sec. 2284(1).⁴  At that time such a court is available to review any prior or subsequent action by the single judge, pursuant to the authority of 28 U.S.C.A. Sec. 2284(5):

The action of a single judge shall be reviewable by the full court at any time before final hearing. . . .

The chronology of the case sub judice⁵  reveals that the three-judge court was designated by order of Chief Judge Brown filed on July 12, 1973, some two weeks prior to the issuance of the preliminary injunction on July 27, 1973, and clearly before any appeal from that injunction. Jurisdiction to review, vacate or modify the single judge temporary injunction properly lies in the three-judge court convened to hear the case. This Court must dismiss the appeal for want of jurisdiction.

Dismissed.