trump-asks-supreme-court-to-intervene-in-dispute-over-seizure-of-documents

Former President Donald Trump has asked the Supreme Court to intervene in the dispute over materials the FBI seized from his Mar-a-Lago estate this summer.
About Newswire Expert

Newswire Expert is your daily connection to the wire. Covering U.S. and International business, entertainment, technology and financial news releases.
Special Master ORDER Court DISTRICT Court Appeal United States Special Master ORDER ELEVENTH CIRCUIT
Former President Donald Trump has asked the Supreme Court to intervene in the dispute over materials the FBI seized from his Mar-a-Lago estate this summer.
About Newswire Expert

Newswire Expert is your daily connection to the wire. Covering U.S. and International business, entertainment, technology and financial news releases.
Special Master ORDER Court DISTRICT Court Appeal United States Special Master ORDER ELEVENTH CIRCUIT
No. 22-
In the
Supreme Court of the United States
A
(800) 274-3321 • (800) 359-6859
DONALD J. TRUMP,
Applicant,
v.
UNITED STATES OF AMERICA,
Respondent.
APPLICATION TO VACATE THE ELEVENTH CIRCUIT’S STAY 
OF AN ORDER ISSUED BY THE UNITED STATES DISTRICT 
COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
316159
Counsel for Applicant President Donald J. Trump
LIndsey haLLIgan, esq.
511 S.E. 5th Avenue, Suite 1008
Fort Lauderdale, FL 33301
M. evan CorCoran
sILverMan|thoMpson| 
sLutkIn|WhIte, LLC
400 East Pratt Street, Suite 900
Baltimore, MD 21202
ChrIstopher M. kIse
Counsel of Record
Lazaro p. FIeLds
ContInentaL pLLC
101 North Monroe Street, Suite 750
Tallahassee, FL 32301
(850) 332-0702
chris@ckise.net
JaMes M. trusty
IFrah LaW pLLC
1717 Pennsylvania Avenue N.W., Suite 650
Washington, DC 20006
i 
 
PARTIES TO THE PROCEEDING 
 
The applicant in this Court is Donald J. Trump, the Forty-Fifth President 
of the United States of America (“President Trump”). 
The respondent in this Court is the United States of America (the 
“Government”). 
ii 
TABLE OF CONTENTS 
 
Page 
 
PARTIES TO THE PROCEEDING ............................................................................... i 
TABLE OF AUTHORITIES ......................................................................................... iii 
APPLICATION TO VACATE THE ELEVENTH CIRCUIT’S STAY OF AN 
ORDER ISSUED BY THE UNITED STATES DISTRICT COURT FOR 
THE SOUTHERN DISTRICT OF FLORIDA ............................................................... 1 
INTRODUCTION .......................................................................................................... 2 
STANDARD OF REVIEW ............................................................................................. 3 
FACTUAL AND PROCEDURAL BACKGROUND ...................................................... 3 
ARGUMENT .................................................................................................................. 9 
I. 
The Eleventh Circuit Lacked Jurisdiction to Stay the Special 
Master Order Authorizing the Review of Seized Documents 
Bearing Classification Markings ........................................................... 10 
A. 
The Eleventh Circuit Lacked Jurisdiction to Review the 
Special Master’s Authority Under 28 U.S.C. § 1292(a)(1) ......... 11 
1. 
The Special Master Order Is Not An Injunction 
Qualifying for Review Under 28 U.S.C. § 
1292(a)(1) ........................................................................... 11 
a. 
The Government Did Not Appeal the 
Special Master Order ............................................. 13 
b. 
The Injunction Order Does Not Adjudicate 
the Merits of the Controversy ................................ 15 
2. 
A Single Interlocutory-Appealable Issue Included 
Within An Order Containing Rulings Regarding 
Non-Interlocutory-Appealable Issues Does Not 
Render All Rulings Immediately Appealable .................. 18 
B. 
Pendent Appellate Jurisdiction is Inappropriate Here .............. 21 
C. 
The District Court’s Special Master Order Was Not 
Immediately Appealable as a Collateral Order .......................... 26 
II. 
The District Court Did Not Abuse its Discretion in 
Authorizing the Special Master to Review Documents Bearing 
Classification Markings ......................................................................... 29 
CONCLUSION ............................................................................................................. 37 
iii 
TABLE OF AUTHORITIES 
Page(s) 
Cases: 
Abelesz v. Erste Grp. Bank AG, 
695 F.3d 655 (7th Cir. 2012) ......................................................................... 24 
Abney v. United States, 
431 U.S. 651 (1977) ................................................................................. 18, 21 
Al Odah v. United States, 
559 F.3d 539 (D.C. Cir. 2009) ........................................................... 26, 27, 28 
Alabama v. U.S. Army Corps of Eng’rs, 
424 F.3d 1117 (11th Cir. 2005) ......................................................... 12, 16, 17 
Ashcroft v. Iqbal, 
556 U.S. 662 (2009) ....................................................................................... 22 
Baltimore Contractors v. Bodinger, 
348 U.S. 176 (1955) ....................................................................................... 20 
Bogard v. Wright, 
159 F.3d 1060 (7th Cir. 1998) ................................................................. 12, 13 
Bogosian v. Woloohojian Realty Corp., 
923 F.2d 898 (1st Cir. 1991) ......................................................................... 16 
BP P.L.C. v. Mayor & City Council of Baltimore, 
141 S. Ct. 1532 (2021) ................................................................................... 19 
Cafeteria Workers v. McElroy, 
367 U.S. 886 (1961) ....................................................................................... 33 
Carpenter v. Mohawk Indus., Inc., 
541 F.3d 1048 (11th Cir. 2008) (per curiam ................................................. 26 
Carson v. Am. Brands, Inc., 
450 U.S. 79 (1981) ......................................................................................... 11 
Certain Named & Unnamed Non-Citizen Child. & Their Parents v. Texas, 
448 U.S. 1327 (1980) ....................................................................................... 3 
Clinton v. Jones, 
520 U.S. 681 (1997) ................................................................................. 21, 22 
Cohen v. Beneficial Indus. Loan Corp., 
337 U.S. 541 (1949) ....................................................................................... 23 
Coleman v. Paccar, Inc., 
424 U.S. 1301 (1976) ....................................................................................... 3 
iv 
Crowe & Dunlevy, P.C. v. Stidham, 
640 F.3d 1140 (10th Cir. 2011) ......................................................... 24, 25, 26 
Deckert v. Indep. Shares Corp., 
311 U.S. 282 (1940) ....................................................................................... 12 
Dep’t of Navy v. Egan, 
484 U.S. 518 (1988) ....................................................................................... 33 
Digital Equipment Corp. v. Desktop Direct, Inc., 
511 U.S. 863 (1994) ....................................................................................... 23 
Firestone Tire & Rubber Co. v. Risjord, 
449 U.S. 368 (1981) ................................................................................. 13, 15 
Gardner v. Westinghouse Broad. Co., 
437 U.S. 478 (1978) ................................................................................. 12, 16 
Gary W. v. Louisiana, 
601 F.2d 240 (5th Cir. 1979) ................................................................... 25, 36 
Gonzalez v. Thaler, 
565 U.S. 134 (2012) ....................................................................................... 14 
Grilli v. Metropolitan Life Insurance Co., 
78 F.3d 1533 (11th Cir.1996) ........................................................................ 36 
Gulfstream Aerospace Corp. v. Mayacamas Corp., 
485 U.S. 271 (1988) ................................................................................. 17, 20 
Hartman v. Moore, 
547 U.S. 250 (2006) ....................................................................................... 22 
Hollingsworth v. Perry, 
558 U.S. 183 (2010) ......................................................................................... 3 
I.A.M. Nat. Pension Fund Benefit Plan A v. Cooper Indus., Inc., 
789 F.2d 21 (D.C. Cir. 1986) ......................................................................... 16 
In re Deepwater Horizon, 
793 F.3d 479 (5th Cir. 2015) ......................................................................... 16 
Int’l Prod. Corp. v. Koons, 
325 F.2d 403 (2d Cir. 1963) .......................................................................... 16 
Jones v. Clinton, 
72 F.3d 1354 (8th Cir. 1996) ......................................................................... 22 
Jones v. Fransen, 
857 F.3d 843 (11th Cir. 2017) ......................................................................... 9 
 
v 
Jud. Watch, Inc. v. Nat’l Archives & Recs. Admin., 
845 F. Supp. 2d 288 (D.D.C. 2012) ............................................................... 32 
King v. Cessna Aircraft Co., 
562 F.3d 1374 (11th Cir. 2009) ............................................................... 24, 25 
Koehler v. Bank of Bermuda Ltd., 
101 F.3d 863 (2d Cir. 1996) .......................................................................... 20 
La Buy v. Howes Leather Co., 
352 U.S. 249 (1957) ....................................................................................... 25 
Lyons v. PNC Bank, Nat’l Ass’n, 
26 F.4th 180 (4th Cir. 2022) ............................................................. 24, 25, 26 
Macri v. U.S. ex. rel. John H. Maxwell & Co., 
353 F.2d 804 (9th Cir. 1965) ......................................................................... 36 
McFarlin v. Conseco Servs., LLC, 
381 F.3d 1251 (11th Cir. 2004) ..................................................................... 20 
Microsoft Corp. v. Baker, 
137 S. Ct. 1702 (2017) ................................................................................... 21 
Mohawk Indus., Inc. v. Carpenter, 
558 U.S. 100 (2009) ............................................................................... passim 
Moore v. City of Wynnewood, 
57 F.3d 924 (10th Cir. 1995) ......................................................................... 25 
Morrison v. Olson, 
487 U.S. 654 (1988) ..................................................................................... 4, 5 
Myers v. Hertz Corp., 
624 F.3d 537 (2d Cir. 2010) .................................................................... 24, 25 
Nat’l Org. for the Reform of Marijuana Laws v. Mullen, 
828 F.2d 536 (9th Cir. 1987) ......................................................................... 13 
Nken v. Holder, 
556 U.S. 418 (2009) ....................................................................................... 29 
O’Hanlon v. Uber Techs., Inc., 
990 F.3d 757 (3d Cir. 2021) .......................................................................... 24 
Pickett v. Texas Tech Univ. Health Scis. Ctr., 
37 F.4th 1013 (5th Cir. 2022) ....................................................................... 24 
vi 
Police Ass’n of New Orleans ex rel. Cannatella v. New Orleans, 
100 F.3d 1159 (5th Cir. 1996) ....................................................................... 16 
Price v. Socialist People’s Libyan Arab Jamahiriya, 
389 F.3d 192 (D.C. Cir. 2004) ....................................................................... 24 
Puente Arizona v. Arpaio, 
821 F.3d 1098 (9th Cir. 2016) ................................................................. 24, 25 
Reid v. Doe Run Res. Corp., 
701 F.3d 840 (8th Cir. 2012) ............................................................. 24, 25, 26 
Reynolds v. McInnes, 
380 F.3d 1303, fn. 3 (11th Cir. 2004) ............................................................ 36 
Rux v. Republic of Sudan, 
461 F.3d 461 (4th Cir. 2006) ......................................................................... 24 
Shakman v. Clerk of Cook Cnty., 
994 F.3d 832 (7th Cir. 2021) ......................................................................... 13 
Smith v. Barry, 
502 U.S. 244 (1992) ....................................................................................... 14 
Swint v. Chambers Cnty. Comm’n, 
514 U.S. 35 (1995) ................................................................................. passim 
Switz. Cheese Ass’n, Inc. v. E. Horne’s Mkt., Inc., 
385 U.S. 23 (1966) ................................................................................... 11, 12 
Thompson v. Enomoto, 
815 F.2d 1323 (9th Cir. 1987) ....................................................................... 13 
Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 
476 U.S. 747 (1986) ....................................................................................... 17 
Trump v. United States of America, 
No. 9:22cv-81294-AMC at ECF No. 64, 2022 WL 4015755 (S.D. Fla. 
Sept. 5, 2022) ................................................................................................... 1 
Trump v. United States,  
No. 22-13005, 2022 WL 4366684 (11th Cir. Sept. 21, 2022) ............... passim 
United States v. Nixon, 
418 U.S. 683 (1974) ....................................................................................... 13 
United States v. North, 
910 F.2d 843 (D.C. Cir. 1990) ......................................................................... 5 
United States v. Samueli, 
582 F.3d 988 (9th Cir. 2009) ......................................................................... 16 
vii 
Vt. Agency of Nat. Res. V. U.S. ex rel. Stevens, 
529 U.S. 765 (2000) ....................................................................................... 22 
W. Airlines, Inc. v. Int’l Bhd. of Teamsters, 
480 U.S. 1301 .................................................................................................. 3 
Whole Woman’s Health v. Jackson, 
13 F.4th 434 (5th Cir. 2021) ......................................................................... 22 
Yamaha Motor Corp. v. Calhoun, 
516 U.S. 199 (1996) ....................................................................................... 19 
 
Statutes & Other Authorities: 
U.S. Const., Art. II, § 2 ............................................................................................ 33 
18 U.S.C. § 793(e)..................................................................................................... 34 
28 U.S.C. § 1291 ............................................................................................... passim 
28 U.S.C. § 1292 ............................................................................................... passim 
28 U.S.C. § 1292(a) ...................................................................................... 10, 11, 19 
28 U.S.C. § 1292(a)(1) ...................................................................................... passim 
28 U.S.C. § 1292(a)(2) .............................................................................................. 10 
28 U.S.C. § 1292(a)(3) .............................................................................................. 10 
28 U.S.C. § 1292(b) .................................................................................... 2, 8, 19, 20 
44 U.S.C. § 2201 ................................................................................................. 30, 31 
44 U.S.C. § 2201(2)–(3) ............................................................................................ 32 
44 U.S.C. § 2203(b) .................................................................................................. 32 
44 U.S.C. § 2203(f)(1) ............................................................................................... 32 
44 U.S.C. § 2205(3) .................................................................................................. 28 
50 U.S.C. § 3161 ................................................................................................. 33, 34 
50 U.S.C. § 3163 ................................................................................................. 33, 34 
Eleventh Circuit Rule 35-4(a) ................................................................................... 9 
Federal Rule of Appellate Procedure 3(c)(1)(B) ...................................................... 14 
United States Supreme Court Rule 22 ..................................................................... 1 
United States Supreme Court Rule 23 ..................................................................... 1 
viii 
Federal Rule of Civil Procedure 53 ............................................................. 17, 25, 36 
Federal Rule of Civil Procedure 53(b) ....................................................... 6, 7, 13, 15 
Federal Rule of Criminal Procedure 41 .................................................................. 14 
Federal Rule of Criminal Procedure 41(g) .......................................................... 2, 15 
Fed. Prac. & Proc. Juris. § 3922 (2d ed.) ................................................................. 12 
Exec. Order 13526 (Dec. 29, 2009) .......................................................................... 34 
15B C. Wright, A. Miller, & E. Cooper, Fed. Prac. & Proc. Juris. § 3914.23  
(2d ed.) ................................................................................................................... 15 
15B C. Wright, A. Miller, & E. Cooper, Fed. Prac. & Proc. Juris. § 3922  
(2d ed.) ................................................................................................................... 12 
U.S. Dep’t of Justice, U.S. Attorneys’ Manual, § 9-27.260 ..................................... 36 
 
1 
 
APPLICATION TO VACATE THE ELEVENTH CIRCUIT’S STAY OF AN 
ORDER ISSUED BY THE UNITED STATES DISTRICT COURT FOR THE 
SOUTHERN DISTRICT OF FLORIDA 
 
To: The Honorable Clarence Thomas, Circuit Justice for the Eleventh Circuit: 
 
Pursuant to Rules 22 and 23 of the Rules of this Court, President Trump 
respectfully applies for an order vacating to a limited extent the order issued on 
September 21, 2022, by the United States Court of Appeals for the Eleventh Circuit 
(the “Stay Order”), a copy of which is appended to this application (App. A).  The 
Eleventh Circuit’s order (1)  stayed a temporary injunction (the “Injunction” or 
“Injunction Order”) issued on September 5, 2022, by the United States District Court 
for the Southern District of Florida, Trump v. United States of America, No. 
9:22cv-81294-AMC at ECF No. 64, 2022 WL 4015755 (S.D. Fla. Sept. 5, 2022) (App. 
B);1 and (2) stayed the District Court’s September 15, 2022, order  specifically 
authorizing a special master to review seized materials with classification markings 
(the “Special Master Order”), id. at ECF No. 91 (App. C), even though that order was 
not jurisdictionally before the Court.  Indeed, all that was before the Eleventh Circuit 
was the Injunction Order, which contained only the District Court’s statement of 
prospective intent regarding the appointment of a special master, but specifically did 
not set forth the Special Master’s duties and scope of review.2   
 
1 The Government sought a stay of the District Court’s Injunction Order in the 
Eleventh Circuit.  The Government’s brief is attached as Appendix D. 
2 As set forth below, the Eleventh Circuit lacked jurisdiction to review the September 
15, 2022, Special Master Order (App. C).  While the District Court’s statement of 
prospective intent to appoint a special master was mentioned in the Injunction Order 
(App. B), the District Court did not appoint a special master or set forth his/her duties 
 
2 
 
INTRODUCTION 
 
The unprecedented circumstances presented by this case—an investigation of 
the Forty-Fifth President of the United States by the administration of his political 
rival and successor—compelled the District Court to acknowledge the significant 
need for enhanced vigilance and to order the appointment of a Special Master to 
ensure fairness, transparency, and maintenance of the public trust.  That 
appointment order is simply not appealable on an interlocutory basis and was never 
before the Eleventh Circuit.  Nonetheless, the Eleventh Circuit granted a stay of the 
Special Master Order, effectively compromising the integrity of the well-established 
policy against piecemeal appellate review and ignoring the District Court’s broad 
discretion without justification. This unwarranted stay should be vacated as it 
impairs substantially the ongoing, time-sensitive work of the Special Master.  
Moreover, any limit on the comprehensive and transparent review of materials seized 
in the extraordinary raid of a President’s home erodes public confidence in our system 
of justice. 
 
and responsibilities until the court issued the September 15, 2022, Special Master 
Order (App. C).  The Eleventh Circuit erred by citing repeatedly to both orders as the 
basis for its Stay Order.  See Trump, 2022 WL 4366684, at *6 (“The next day, the 
United States . . . [sought] to stay the district court’s orders with respect to only the 
roughly one-hundred documents bearing classification marks.”) (emphasis added); id. 
at *7 (“And the district court relied on both Rule 41(g) and equitable jurisdiction in 
its orders.) (emphasis added); id. at *6 n.3 (“But our order does not address the 
special master’s authority; it addresses the district court’s orders as they require the 
United States to act and to refrain from acting.”) (emphasis added).  However, the 
Government’s Notice of Appeal of the Injunction Order was filed September 9, 2022, 
six days before entry of the Special Master Order.  The Government has not appealed 
the Special Master Order or otherwise followed the procedures set out in 28 U.S.C. § 
1292(b). 
3 
 
President Donald J. Trump submits this application for limited review3 of the 
Eleventh Circuit’s Stay Order.  The Eleventh Circuit lacked jurisdiction to review, much 
less stay, an interlocutory order of the District Court providing for the Special Master to 
review materials seized from President Trump’s home, including approximately 103 
documents the Government contends bear classification markings.  This application 
seeks to vacate only that portion of the Eleventh Circuit’s Stay Order limiting the scope 
of the Special Master’s review of the documents bearing classification markings.   
STANDARD OF REVIEW 
 
“A Circuit Justice has jurisdiction to vacate a stay where it appears that the 
rights of the parties to a case pending in the court of appeals, which case could and 
very likely would be reviewed here upon final disposition in the court of appeals, may 
be seriously and irreparably injured by the stay, and the Circuit Justice is of the 
opinion that the court of appeals is demonstrably wrong in its application of accepted 
standards in deciding to issue the stay.” W. Airlines, Inc. v. Int’l Bhd. of Teamsters, 
480 U.S. 1301, 1305 (O’Connor, J., in chambers) (quoting Coleman v. Paccar, Inc., 
424 U.S. 1301, 1304 (1976) (Rehnquist, J., in chambers)); see also Hollingsworth v. 
Perry, 558 U.S. 183, 189 (2010).   
FACTUAL AND PROCEDURAL 
BACKGROUND 
 
On August 8, 2022, the Government executed a search warrant at the 
residence of President Donald J. Trump.  Although details continue to evolve, the 
 
3 The Injunction Order is appealable as a matter of right and therefore that portion 
of the Eleventh Circuit’s Stay Order is not included or addressed in this Application.  
4 
 
Government’s latest report identifies 103 documents purportedly bearing 
classification markings, all of which were part of a haul of approximately 11,000 
documents (estimated at 200,000 pages) and other materials seized from President 
Trump’s residence (including more than 1,500 magazines and newspaper clippings, 
20 gifts or articles of clothing, 89 empty envelopes, medical records, tax documents 
and various photographs.  See Revised Detailed Inventory, ECF No. 116-1 (App. G).4  
 
4 As Justice Jackson long ago recognized, the wheels of justice grind to an ignominious 
halt when a person—not just the political rival of the sitting administration— is 
targeted for “being attached to the wrong political views” or “being unpopular with 
the predominant or governing group.”  Morrison v. Olson, 487 U.S. 654, 727 (1988) 
(Scalia, J., dissenting) (quoting R. Jackson, The Federal Prosecutor, Address 
Delivered at the Second Annual Conference of United States Attorneys, April 1, 
1940).  Here, the Government has chosen to treat President Trump in a manner 
apparently quite different from the deference and collegiality afforded to other former 
Presidents to manage and control their personal and Presidential Records.  For 
instance, as part of a cooperative effort, truckloads of records from the Obama 
administration were relocated to what had previously been a furniture store in 
suburban Chicago and President George W. Bush had millions of documents 
transported from the White House to a warehouse in Texas.  See  Jennifer Schuessler, 
The Obama Presidential Library That Isn’t, N.Y. TIMES, (Feb. 20, 2019), 
https://www.nytimes.com/2019/02/20/arts/obama-presidential-center-library-
national-archives-and-records-administration.html; see e.g., David McMillen, Moving 
Out, Moving 
In 
(last 
accessed, October 
1, 
2022), available 
at 
https://www.archives.gov/publications/prologue/2016/winter/presidential-
transitions.  
The National Archives thoughtfully negotiated a Memorandum of Understanding 
with the Barack Obama Foundation concerning the management and digitization of 
Obama Administration records several years after his presidency.  See, e.g., U.S. 
National Archives, Memorandum of Understanding Between the Barack Obama 
Foundation and National Archives and Records Administration Regarding the 
Digitization 
of 
Obama 
Presidential 
Records, 
available 
at 
https://www.archives.gov/files/foia/obama-digitization-mou-executed-2-15-19.pdf 
(last accessed, October 1, 2022).  In contrast, almost from the outset here, the 
Government feigned concern about purported classified records to justify 
commencement of a criminal investigation (not even contemplated under the 
Presidential Records Act) and then raided President Trump’s personal residence (a 
 
5 
 
Immediately after the raid, President Trump’s counsel asked the Government for: 
(1) a copy of the affidavit in support of the warrant; (2) the Government’s consent to 
appoint a special master to “protect the integrity of privileged documents;” (3) a 
detailed list of what was taken from the residence and from where; and (4) an 
opportunity to inspect the seized property.  App. B at 4–5.  The Government declined 
President Trump’s requests.  See App. B at 5.    
To safeguard his interest in the seized materials, President Trump filed the 
underlying civil action, moving for judicial oversight and additional relief from the 
District Court.  See ECF Nos. 1, 28.  In furtherance of his request to be protected 
from the consequences of an unlawful search and seizure of his property, President 
Trump requested the District Court: (1) appoint a special master; (2) enjoin further 
review of seized materials by the Government until a special master is appointed; (3) 
require the Government to supply a sufficiently detailed Receipt for Property; and 
(4) require the Government to return any item seized that was not within the scope 
of the search warrant.  See ECF No. 28 at 10. 
After thorough briefing by the parties, see ECF Nos. 1, 28, 48, 58, the District 
Court exercised its “equitable jurisdiction and inherent supervisory authority” to 
safeguard the rights of President Trump as a citizen subject to a potentially unlawful 
 
secure compound protected by U.S. Secret Service agents and used during the Trump 
Presidency to conduct the official business of the United States).  This disparate 
treatment of President Trump is suggestive of a Government that has “pick[ed] the 
man and then search[ed] the law books . . . to pin some offense on him.” Morrison, 
487 U.S. at 727 (Scalia, J., dissenting).  But our courts “do not countenance” political 
judicial theater.  See United States v. North, 910 F.2d 843, 865 (D.C. Cir. 1990).  
 
6 
 
search and seizure and granted President Trump’s motion in part.  See App. B at 1. 
“[M]indful of the need to ensure at least the appearance of fairness and integrity 
under the extraordinary circumstances,” id., the District Court entered a temporary 
Injunction, stating:  
The Government is TEMPORARILY ENJOINED from 
further review and use of any of the materials seized from 
Plaintiff’s residence on August 8, 2022, for criminal 
investigative purposes pending resolution of the special 
master’s review process as determined by this Court. The 
Government may continue to review and use the materials 
seized for purposes of intelligence classification and 
national security assessments. 
 
Id. at 23–24. The Injunction Order did not require the Government to submit records 
to any special master as none had even been appointed.  The Injunction Order did 
contain a separate statement of prospective intent to appoint a special master: 
A special master shall be APPOINTED to review the 
seized property, manage assertions of privilege and make 
recommendations thereon, and evaluate claims for return 
of property.  The exact details and mechanics of this review 
process will be decided expeditiously following receipt of 
the parties’ proposals as described below. 
 
Id. at 23.  The Injunction Order also made quite clear the identity, duties, and scope 
of review of any special master would be the subject of a separate order entered in 
accordance with Federal Rule of Civil Procedure 53(b).  Id. 
The next day, the Government filed its Notice of Appeal of the Injunction 
Order. See ECF No. 68 (App. E).  Then, on September 8, 2022, the Government moved 
the District Court for a partial stay of the Injunction Order to the extent it: (1) 
enjoined the further review and use for criminal investigative purposes of records 
7 
 
bearing classification markings that were seized; and (2) required the Government 
to disclose purported “classified records” to a special master for review.  See ECF No. 
69 at 1.  However, as noted above, the Injunction Order did not include any language 
identifying the special master, much less setting forth the scope of review and/or 
turnover of any seized materials.  Rather, the Injunction Order simply precluded the 
Government from using any of the seized materials for criminal investigative 
purposes pending completion of the special master process. 
On September 15, 2022, the District Court entered the Special Master Order, 
appointing the Honorable Raymond J. Dearie, Senior United States District Judge 
for the Eastern District of New York, who served on the Foreign Intelligence 
Surveillance Court (“FISA Court”) for seven years.  See App. C at 1.  The Special 
Master Order conformed to the requirements of Federal Rule of Civil Procedure 
53(b), including, inter alia, authorizing Judge Dearie to review all the seized 
materials and to adjudicate certain disputes between the parties.  See generally id.  
That same day, the District Court denied the Government’s stay request, 
noting it was not inclined to hastily adopt the Government’s contention that the 
approximately 100 purportedly “classified” documents were, in fact, classified. ECF 
No. 89 at 3–4.  Specifically, the District Court held: 
[E]venhanded procedure does not demand unquestioning 
trust in the determinations of the Department of Justice.  
Based on the nature of [the] action, the principles of equity 
require the Court to consider the specific context at issue, 
and that consideration is inherently impacted by the 
position formerly held by Plaintiff.  The Court thus 
continues to endeavor to serve the public interest, the 
principles of civil and criminal procedure, and the 
8 
 
principles of equity.  And the Court remains firmly of the 
view that appointment of a special master to conduct a 
review of the seized materials . . . is fully consonant with 
the foregoing principles and with the need to ensure at 
least the appearance of fairness and integrity under 
unprecedented circumstances. 
 
Id. at 9–10. 
On September 16, 2022, the Government filed a Motion for Partial Stay 
Pending Appeal in the Eleventh Circuit.  App. D.  The Government’s motion did not 
identify a basis for appellate jurisdiction. President Trump’s response in the  
Eleventh Circuit (“Response to Appeal”) noted, in addition to his substantive 
arguments, the Eleventh Circuit lacked jurisdiction to review the Special Master’s 
appointment and authority because the Special Master Order was not an appealable 
interlocutory order.  See Response to Appeal at 20–27.  Citing 28 U.S.C. § 1292(a)(1), 
along with numerous cases interpreting the statute, President Trump argued the 
appointment of a special master is a procedural order—not an injunction—and 
therefore not subject to interlocutory review.  See id. at 20–23.  Therefore, as the 
requirements of 28 U.S.C. § 1292(b) were not met, the appellate court lacked authority 
to exercise jurisdiction.  See id. at 23–25.  The Government’s reply (“Gov’t Reply”) 
argued: (1) the court of appeals had jurisdiction to review the appointment of a special 
master because it was included in the same “order” as the Injunction; and (2) because 
the Injunction is “inextricably intertwined” with the appointment of the Special 
Master, the Eleventh Circuit could review both decisions.  Gov’t Reply at 7–8  
(App. F). 
The Eleventh Circuit granted the Government’s motion, finding the 
9 
 
Government had established its entitlement to the stay “to the extent that it (1) 
requires the government to submit for the special master’s review the documents with 
classification markings and (2) enjoins the United States from using that subset of 
documents in a criminal investigation.”  Trump v. United States, No. 22-13005, 2022 
WL 4366684, *1 (11th Cir. Sept. 21, 2022).  In addressing President Trump’s 
jurisdictional argument, the Eleventh Circuit found it had jurisdiction pursuant to 28 
U.S.C. § 1292(a)(1), “which provides courts of appeals with jurisdiction over 
interlocutory orders granting injunctions.”  Id. at *6.  In an accompanying footnote, 
the Eleventh Circuit stated it was not reviewing the District Court’s appointment of 
a special master but was instead addressing “the district court’s orders as they require 
the United States to act and refrain from acting.”  Then, the Eleventh Circuit 
“[n]evertheless” found that the appointment of the Special Master was “otherwise 
nonappealable” but subject to review because it was “inextricably intertwined” with 
an appealable order, or was “‘necessary to ensure meaningful review of an appealable 
decision.”  Id. at *6 n.3 (quoting Jones v. Fransen, 857 F.3d 843, 850 (11th Cir. 2017)).5 
ARGUMENT 
 
The Eleventh Circuit’s Stay Order should be vacated in part.6 First, this 
Court’s decision in Swint v. Chambers Cnty. Comm’n, 514 U.S. 35, 49–50 (1995) 
compels vacatur of the stay as to the Special Master Order.  As a result, this is a 
 
5 Pursuant to Eleventh Circuit Rule 35-4(a), a petition for rehearing en banc of a stay 
or injunction pending appeal will not be considered by the court en banc. 
6 Applicant’s references to vacatur of the Eleventh Circuit’s Stay Order are limited to 
vacatur only of that portion of the Stay Order staying the Special Master Order, 
which authorized review of seized documents bearing classification markings. 
10 
 
case that would very likely be reviewed by this Court upon final disposition in the 
Eleventh Circuit if the District Court is reversed.  Second, under the extraordinary 
circumstances presented here, the District Court did not abuse its discretion in 
appointing a Special Master to review the materials seized from President Trump's 
residence. 
I. 
The Eleventh Circuit Lacked Jurisdiction to Stay the Special Master 
Order Authorizing the Review of Seized Documents Bearing 
Classification Markings. 
 
Courts of Appeals, like all federal courts, are courts of limited jurisdiction.  
Generally, federal courts of appeals “have jurisdiction of appeals from all final 
decisions of the district courts of the United States.”  28 U.S.C. § 1291. “A final 
decisio[n] is typically one by which a district court disassociates itself from a case.”  
Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009) (cleaned up). 
Congress has authorized interlocutory review only in limited instances.  28 
U.S.C. § 1292.  Relevant here, courts of appeals have jurisdiction to review 
interlocutory orders of the “district courts . . . granting, continuing, modifying, 
refusing or dissolving injunctions, or refusing to dissolve or modify injunctions . . . .”  
28 U.S.C. § 1292(a)(1).  They also have jurisdiction to consider interlocutory orders 
pertaining to receivers or the rights and liabilities of parties in admiralty.  See id. 
§ 1292(a)(2)–(3). If an order does not satisfy the enumerated criteria in § 1292(a), a 
district court can certify an order to the court of appeals if “such order involves a 
controlling question of law as to which there is substantial ground for difference of 
opinion and that an immediate appeal from the order may materially advance the 
11 
 
ultimate termination of the litigation . . . .”  Id. § 1292(b). If the district court certified 
its interlocutory order as appealable, the court of appeals would then have discretion 
whether to permit such appeal to be taken.  Id.  Lastly, as it pertains to the regional 
courts of appeals, Congress also authorized the Supreme Court to “prescribe rules . . . 
to provide for an appeal of an interlocutory decision to the courts of appeals that is 
not otherwise provided for under” the statute.  Id. § 1292(e). 
Here, the Eleventh Circuit lacked jurisdiction to review the Special Master 
Order because it is not appealable under § 1292, not subject to pendent appellate 
jurisdiction, and not a collateral order. 
A. The Eleventh Circuit Lacked Jurisdiction to Review the Special 
Master’s Authority Under 28 U.S.C. § 1292(a)(1). 
 
1. The Special Master Order Is Not An Injunction Qualifying 
for Review Under 28 U.S.C. § 1292(a)(1). 
 
The Eleventh Circuit improperly expanded the scope of § 1292(a)(1) by 
reviewing the “district court’s orders as they require the United States to act and 
refrain from acting.”  Trump, 2022 WL 4366684, at *6 n.3.  Section 1292(a)(1), an 
exception to the finality rule in § 1291, permits interlocutory appeals over orders 
pertaining to injunctions.  28 U.S.C. § 1292(a)(1).  Because § 1292(a) is an exception 
to the finality rule and policy against piecemeal appeals, it is narrowly construed.  
See, e.g., Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981); Switz. Cheese Ass’n, Inc. 
v. E. Horne’s Mkt., Inc., 385 U.S. 23, 24 (1966) (“[F]ederal law expresses the policy 
against piecemeal appeals.  Hence we approach this statute somewhat gingerly lest 
a floodgate be opened that brings into the exception many pretrial orders.” (citation 
12 
 
omitted)). Thus, the exception in § 1292(a)(1) “does not embrace orders that have no 
direct or irreparable impact on the merits of the controversy.” Gardner v. 
Westinghouse Broad. Co., 437 U.S. 478, 482 (1978) (emphasis added) (holding that 
allowing orders relating only to pretrial procedures to fall within § 1292(a)(1) “would 
compromise ‘the integrity of the congressional policy against piecemeal appeals.’” 
(quoting Switz. Cheese, 385 U.S. at 25)).  
Further, “[i]t is not enough to qualify for appeal under this statute that a 
requested order be addressed to a party and command action, or even that it be 
enforceable by contempt.”  15B C. Wright, A. Miller, & E. Cooper, Fed. Prac. & Proc. 
Juris. § 3922 (2d ed.).  “There are, of course, many orders entered by a trial court 
during the pendency of a suit, requiring the parties to act . . . in a particular way. 
However, not all such orders, regardless of how they are characterized . . .  are 
‘injunctions’ for the purposes of 28 U.S.C. § 1292(a)(1).”  Alabama v. U.S. Army Corps 
of Eng’rs, 424 F.3d 1117, 1127 (11th Cir. 2005).  
The appointment of a special master is interlocutory and not immediately 
appealable.  See Deckert v. Indep. Shares Corp., 311 U.S. 282, 291 (1940) (compiling 
cases).  Thus, although appointment of a special master ordinarily requires some 
action by the parties, this does not transform it from a procedural order into an 
immediately appealable injunction under § 1292(a)(1).  See Bogard v. Wright, 159 
F.3d 1060, 1063 (7th Cir. 1998) (“The appointment of a special master . . . although 
it is an order to do . . . is deemed a procedural order, and procedural orders, though 
they often have the form of an injunction, are not classified as injunctions for 
13 
 
purposes of section 1292(a)(1).” (citing Firestone Tire & Rubber Co. v. Risjord, 449 
U.S. 368, 377–78 (1981)); United States v. Nixon, 418 U.S. 683, 690–91 (1974))). 
Moreover, lower courts have routinely found the appointment of a special master is 
not appealable under § 1292(a)(1). See, e.g., Shakman v. Clerk of Cook Cnty., 994 F.3d 
832, 838 (7th Cir. 2021) (“Nor does § 1292(a)(1) provide us jurisdiction, as ‘[t]he 
appointment of a special master’ is a procedural order, and ‘procedural orders, though 
they often have the form of an injunction, are not classified as injunctions for 
purposes of section 1292(a)(1).’” (quoting Bogard, 159 F.3d at 1063)); Nat’l Org. for 
the Reform of Marijuana Laws v. Mullen, 828 F.2d 536, 540 (9th Cir. 1987) (stating 
that appointment of special master was not an appealable order under 28 U.S.C. 
§ 1292(a)(1)); Thompson v. Enomoto, 815 F.2d 1323, 1326–27 (9th Cir. 1987) (same).  
Here, the Eleventh Circuit’s characterization of the appointment of the Special 
Master as an order “to act”—making it immediately appealable—is legally infirm.  
Trump, 2022 WL 4366684, at *6 n.3.  
a. The Government Did Not Appeal the Special Master 
Order. 
 
The Government limited its Notice of Appeal (App. E) to the District Court’s 
September 5, 2022, Injunction Order.  See App. B.  As noted, the Injunction Order 
contained a separate statement of prospective intent to appoint a special master and 
solicited the parties to propose a list of candidates for the appointment and a 
proposed order of appointment.  App. B. at 23–24.  However, the Special Master 
Order, which conformed to the requirements of Federal Rule of Civil Procedure 53(b), 
was not entered until ten days later.  See App. C.  Thus, the Special Master Order, 
14 
 
not the Injunction Order, appointed Judge Dearie and authorized him to review the 
seized materials, including any documents bearing classification markings.  Yet, the 
Eleventh Circuit nonetheless stayed the Special Master Order even though (1) it was 
not included in the Notice of Appeal7 and (2) it was not an appealable interlocutory 
order. 
The Injunction also did not require the Government to furnish documents to 
the Special Master.  Rather, the Special Master Order appointed Judge Dearie to 
review the seized materials and make recommendations to the District Court 
concerning their ultimate disposition under Federal Rule of Criminal Procedure 41.  
App. B.  Although the Injunction Order was the basis for the Government’s appeal,8 
 
7 Federal Rule of Appellate Procedure 3(c)(1)(B) requires a notice of appeal to 
“designate the . . . appealable order . . . from which the appeal is taken . . . .” Fed. R. 
App. P. 3(c)(1)(B). “Rule 3’s dictates are jurisdictional in nature, and their satisfaction 
is a prerequisite to appellate review.”  Smith v. Barry, 502 U.S. 244, 248 (1992). 
Further, “[a]lthough courts should construe Rule 3 liberally when determining 
whether it has been complied with, noncompliance is fatal to an appeal.”  Id.; cf. 
Gonzalez v. Thaler, 565 U.S. 134, 147 (2012).  Here, the Government did not—and 
obviously could not—designate the Special Master Order in its September 8, 2022, 
Notice of Appeal. The recent amendments to Rule 3 do not change this. See Fed. R. 
App. P. 3 cmt. (2021 amendments designed to eliminate need to list every order for 
which appeal is taken as related to the merger rule). This is not a situation where the 
Government did not list an older order in appealing a more recent order. Here, the 
Government sought to add an order to its notice of appeal that did not exist when it 
filed its notice of appeal. 
8 The Government’s attempted sleight of hand has created this jurisdictional morass.  
The Government’s Notice of Appeal (App. E) cited only to the Injunction Order, ECF 
No. 64 (App. B), as the basis for the appeal.  Then, in the Eleventh Circuit, the 
Government argued the Special Master Order authorizing review of classified 
documents would cause irreparable harm.  See App. D at 20 (“Finally, requiring 
disclosure of classified records to a special master and to Plaintiff’s counsel, see D.E. 
91 at 4, would impose irreparable harm on the government and public . . . .”).   
However, after President Trump identified the jurisdictional deficiency, the 
 
15 
 
the Injunction Order did not appoint a special master and did not establish the scope 
of review of the seized materials.  Indeed, the Injunction Order could not have done 
so as it did not follow the requirements of Federal Rule of Civil Procedure 53(b).  The 
Eleventh Circuit’s decision to the contrary creates an unmanageable standard for 
what qualifies as an “injunction” for appealability purposes, expanding interlocutory 
review under § 1292(a)(1) into a morass of limitless appeals.9 
For example, under the Eleventh Circuit’s view, every discovery order granting 
a motion to compel to produce records would be an order directing a party “to act,” 
conferring appellate jurisdiction. But as this Court has repeatedly stated, discovery 
orders are generally not final and therefore not appealable.  Mohawk Indus., 558 U.S. 
at 108 (citing Risjord, 449 U.S. at 374); see also 15B Wright & Miller, supra, § 3914.23 
(“[T]he rule remains settled that most discovery rulings are not final.”). 
b. The Injunction Order Does Not Adjudicate the Merits 
of the Controversy. 
 
Several courts of appeals have adopted tests for when an interlocutory order 
of a district court, although not labeled as injunctive, nonetheless qualifies as an 
 
Government’s Reply argued the Injunction Order provided the basis for its appeal 
(App. F). 
9 Relying on the Government’s argument that it was effectively appealing both the 
Injunction Order and the Special Master Order, the Eleventh Circuit further 
muddied the water by repeatedly citing to both orders as the basis for its Stay Order.  
See Trump, 2022 WL 4366684, at *6 (“The next day, the United States . . . [sought] 
to stay the district court’s orders with respect to only the roughly one-hundred 
documents bearing classification marks.”) (emphasis added); id. at *7 (“And the 
district court relied on both Rule 41(g) and equitable jurisdiction in its orders.) 
(emphasis added); id. at *6 n.3 (“But our order does not address the special master’s 
authority; it addresses the district court’s orders as they require the United States 
to act and to refrain from acting.”) (emphasis added). 
16 
 
order granting, denying, dissolving or modifying, or refusing to dissolve or modify an 
injunction.  See, e.g., Alabama, 424 F.3d at 1128–29; In re Deepwater Horizon, 793 
F.3d 479, 491 (5th Cir. 2015); United States v. Samueli, 582 F.3d 988, 993 (9th Cir. 
2009); I.A.M. Nat. Pension Fund Benefit Plan A v. Cooper Indus., Inc., 789 F.2d 21, 
24 (D.C. Cir. 1986); Bogosian v. Woloohojian Realty Corp., 923 F.2d 898, 901 (1st Cir. 
1991).  Under this test, “[a] district court ‘grants’ an injunction when an action it 
takes is ‘directed to a party, enforceable by contempt, and designed to accord or 
protect some or all of the substantive relief sought in the complaint in more than a 
temporary fashion.’” In re Deepwater Horizon, 793 F.3d 479, 491 (5th Cir. 2015) 
(alteration adopted) (quoting Police Ass’n of New Orleans ex rel. Cannatella v. New 
Orleans, 100 F.3d 1159, 1166 (5th Cir. 1996)). Moreover, as stated by the Eleventh 
Circuit: 
We think it better . . . to continue to read § 1292(a)(1) as 
relating to injunctions which give or aid in giving some or 
all of the substantive relief sought by a complaint . . . and 
not as including restraints or directions in orders 
concerning the conduct of the parties or their counsel, 
unrelated to the substantive issues in the action, while 
awaiting trial . . . . [S]uch a construction provides a better 
fit with the language of the statute . . . and with the policy 
considerations which led Congress to create this exception 
to the federal final judgment rule. 
 
Alabama, 424 F.3d at 1129 n.17 (quoting Int’l Prod. Corp. v. Koons, 325 F.2d 403, 
407 (2d Cir. 1963)) (emphasis in original). Lastly, the district court order must have 
a “direct or irreparable impact on the merits of the controversy.”  Id. at 1129 
(emphasis added) (quoting Gardner, 437 U.S. at 482).  This limited definition of what 
constitutes an injunction is consistent with this Court’s precedent in cases involving 
17 
 
injunctions where the appellate courts exercised their jurisdiction to address the 
merits of the dispute.  See, e.g., Thornburgh v. Am. Coll. of Obstetricians & 
Gynecologists, 476 U.S. 747, 757 (1986) (“Thus, as these cases indicate, if a district 
court’s ruling rests solely on a premise as to the applicable rule of law, and the facts 
are established or of no controlling relevance, that ruling may be reviewed even 
though the appeal is from the entry of a preliminary injunction.”). 
Here, the Special Master Order fails to satisfy this test.  First, this was not an 
action directed to a party—it appointed a third-party as special master pursuant to 
Federal Rule of Civil Procedure 53.  To the extent the appointment impliedly requires 
the Government to act, the Special Master Order does not have a “direct or irreparable 
impact on the merits of the controversy.”  See id.  Rather, the Special Master Order 
relates only to the conduct of the litigation.  See Gulfstream Aerospace Corp. v. 
Mayacamas Corp., 485 U.S. 271, 279 (1988) (“An order by a federal court that relates 
only to the conduct or progress of litigation before that court ordinarily is not considered 
an injunction and therefore is not appealable under § 1292(a)(1).”).   Stated differently, 
providing documents to a special master is not the ultimate relief sought—it is an 
intermediary procedural step to conduct an orderly, transparent, and fair review of the 
seized materials.  Indeed, the District Court issued the Special Master Order to 
facilitate resolution of the actual merits.10  Moreover, all orders appointing special 
 
10 Although President Trump sought appointment of a special master in his initial 
request for relief, the Government cannot seriously contend the Special Master Order 
adjudicated the “merits of the controversy.”  See Alabama, 424 F.3d at 1129.  The 
District Court could itself review the seized materials and any decision to do so would 
simply not have been appealable on an interlocutory basis.  The appointment of a 
 
18 
 
masters require to some extent the submission of materials for review.  This however 
does not transform such orders into appealable injunctions under § 1292(a)(1). 
2. A Single Interlocutory-Appealable Issue Included Within 
An Order Containing Rulings Regarding Non-
Interlocutory-Appealable Issues Does Not Render All 
Rulings Immediately Appealable. 
 
Federal courts should be hesitant to unnecessarily expand appellate 
jurisdiction.  See, e.g., Mohawk Indus., 558 U.S. at 113–14. The Government argued 
in its reply before the Eleventh Circuit that all rulings in a single order can be 
bootstrapped into an appeal so long as at least one issue ruled upon is immediately 
appealable under 28 U.S.C. § 1292(a)(1).  App. F at 7.  This argument misses the 
mark.  See Abney v. United States, 431 U.S. 651, 655 (1977).  In Abney, this Court 
reviewed the jurisdiction of the court of appeals in the context of a motion to dismiss 
an indictment.  Id.  In the motion to dismiss, the petitioners made two arguments: 
“(a) that retrial would expose them to double jeopardy; and (b) that the indictment, 
as modified by the election [of offenses], failed to charge an offense[,]” i.e., that the 
indictment was insufficient.  Id.  “The District Court denied the motion.”  Id.  
(emphasis added).  This Court held the denial of a motion to dismiss an indictment 
on double jeopardy grounds is immediately appealable.  Id. at 662.  However, the 
Court, “[did] not hold that other claims contained in the motion to dismiss are 
immediately appealable as well.”  Id. at 663.  
 
special master to perform the documentary review is therefore just a procedural order 
related to the conduct of the proceedings and does not itself adjudicate the merits of 
the controversy. 
19 
 
Applying Abney’s reasoning to § 1292 makes sense.  See Swint v. Chambers 
Cnty. Comm’n, 514 U.S. 35, 49–50 (1995) (holding that the Abney rule “bears on civil 
cases as well.”).  Otherwise, every ruling on a request for an injunction would 
necessarily render all other aspects of an injunction order appealable.  But, as 
recognized in Swint, separate rulings in an order containing at least one appealable 
ruling are not immediately appealable.  Id. at 50–51 (“We need not definitively or 
preemptively settle here whether or when it may be proper for a court of appeals, 
with jurisdiction over one ruling, to review, conjunctively, related rulings that are 
not themselves independently appealable.”).  
To be sure, this Court has interpreted a neighboring provision, § 1292(b), to 
allow review of all issues in an order.  See Yamaha Motor Corp. v. Calhoun, 516 U.S. 
199, 205 (1996); see also BP P.L.C. v. Mayor & City Council of Baltimore, 141 S. Ct. 
1532, 1540 (2021).  But § 1292(b)’s text—specifically requiring a controlling question 
of law as to which there is substantial ground for difference of opinion—recognizes a 
wholly different purpose than § 1292(a), rendering Yamaha and BP P.L.C. 
inapplicable to § 1292(a)(1).  However, section 1292(b) specifies certain prerequisites 
to interlocutory appealability simply not met here. 
Both § 1292(a)(1) and § 1292(b) are limited exceptions to the final judgment 
rule.  But § 1292(b) is permissive,11 providing a court of appeals with discretion to 
 
11 In contrast, Section 1292(a)(1), provides mandatory jurisdiction: “the courts of 
appeals shall have jurisdiction of appeals from . . . interlocutory orders . . . granting 
. . . injunctions . . . .” See § 1292(a)(1) (emphasis added).  There is no discretion to 
refuse review of interlocutory orders granting injunctions.  The purpose of § 1292(a)(1) 
is not judicial economy, it is to protect a litigant because an injunction impacts a 
 
20 
 
allow an appeal.  § 1292(b).  This discretion is triggered only if the district court 
certifies the issue.  Id.  Both the district court and the court of appeals must find the 
order contains an unsettled controlling question of law that “may materially advance 
the ultimate termination of the litigation.”  Id.  Expanding jurisdiction to allow the 
court of appeals to review the entire certified order comports with judicial economy 
because this process is designed to “materially advance the ultimate termination of 
the litigation.”  § 1292(b); see McFarlin v. Conseco Servs., LLC, 381 F.3d 1251, 1256 
(11th Cir. 2004) (“[T]he appeal from interlocutory orders thus provided should and 
will be used only in exceptional cases where a decision of the appeal may avoid 
protracted and expensive litigation . . . .” (cleaned up)); Koehler v. Bank of Bermuda 
Ltd., 101 F.3d 863, 865–66 (2d Cir. 1996) (“The use of § 1292(b) is reserved for those 
cases where an intermediate appeal may avoid protracted litigation.”).  
Permitting appeals under § 1292(a)(1) of all rulings in a single order would 
foster gamesmanship by litigants and create unnecessary labor for district courts.  
For example, litigants could file a single motion seeking to modify an injunction and 
rule on discovery.  If the district court ruled on the single motion with a single order, 
the non-appealable discovery ruling would conceivably transform it into an 
appealable issue by the sheer virtue that it was ruled upon in the same order as an 
appealable issue.  In other contexts, the Supreme Court has narrowly interpreted 
 
party’s rights without a full trial on the merits.  See Baltimore Contractors v. Bodinger, 
348 U.S. 176, 181 (1955), overruled on other grounds by Gulfstream Aerospace Corp. 
v. Mayacamas Corp., 485 U.S. 271 (1988).  Thus, allowing review of rulings besides 
those pertaining to injunctive relief does not further the need to protect from “serious, 
perhaps irreparable consequence[s].”  Id. 
21 
 
provisions affording appellate jurisdiction to avoid such gamesmanship. See Abney, 
431 U.S. at 663 (restricting appellate jurisdiction to avoid frivolous double jeopardy 
claims); Microsoft Corp. v. Baker, 137 S. Ct. 1702, 1714–15 (2017) (interpreting 
narrowly appellate jurisdiction to prevent “inventive litigation ploys” to obtain 
interlocutory review of order striking class allegations).  To avoid unnecessarily 
expanding the scope of appellate review, district courts would need to ensure that 
any order concerning any ruling possibly constituting injunctive relief be entirely 
separate from other rulings regardless of whether those issues were presented 
simultaneously.  Surely, neither Congress nor this Court intended as much. 
B. Pendent Appellate Jurisdiction is Inappropriate Here.  
In a footnote, the Eleventh Circuit found it had jurisdiction to review the 
appointment of the Special Master because the ruling was “inextricably intertwined” 
with the Injunction.  See App. A at 15 n.3. This holding—rendered without 
explanation of why an Injunction against use of records for criminal investigative 
purposes and a separate order appointing a special master are inextricably 
intertwined—contravenes this Court’s precedent.  
Although this Court has authorized the use of pendent appellate jurisdiction, 
see Clinton v. Jones, 520 U.S. 681, 707 n.41 (1997) (finding that court of appeals 
properly invoked pendent appellate jurisdiction because appealable issue was 
inextricably intertwined with non-appealable issue), the propriety of such expansion 
of non-final appealability here is questionable at best.  See Mohawk Indus., 558 U.S. 
at 114–15 (Thomas, J., concurring) (stating that “Congress’s designation of the 
22 
 
rulemaking process” and not judicial decisions, is “the way to define or refine . . . 
when an interlocutory order is appealable”). Interlocutory review of a separate order 
appointing a special master is simply not in any way necessary to “ensure meaningful 
review of” the decision enjoining the Government from use of the purportedly 
classified materials in its ongoing investigation.  See Swint, 514 U.S. at 50–51.  This 
Court’s treatment of pendent appellate jurisdiction since Swint has been both cursory 
and narrow and would in no way countenance the expansive overreach undertaken 
here by the Eleventh Circuit.12   
Moreover, every decision by this Court acknowledging—at least as a 
possibility—the concept of pendent appellate jurisdiction has been as part of the 
 
12 See Vt. Agency of Nat. Res. V. U.S. ex rel. Stevens, 529 U.S. 765, 770 n.2 (2000) 
(stating that the Second Circuit exercised pendent appellate jurisdiction over a non-
appealable statutory question and citing Swint, 514 U.S. at 50–51); Jones v. Clinton, 
72 F.3d 1354, 1357 n.4 (8th Cir. 1996) (“It is difficult to imagine issues more 
‘intertwined’ than these, where answering one question of law resolves them all.”).  As 
in Swint and Clinton, the interlocutory order that was immediately appealable in 
Stevens was based on denial of a motion to dismiss asserting immunity from suit.  See 
Stevens, 529 U.S. at 770 n.2.  Then in Ashcroft v. Iqbal, 556 U.S. 662, 673 (2009), this 
Court held that an appeal of another order denying qualified immunity—affording 
appellate jurisdiction under the collateral order doctrine—also authorized appellate 
review of whether the complaint stated a claim.  Id.  In so holding, this Court held 
that “the sufficiency of respondent’s pleadings is both ‘inextricably intertwined with,’ 
[Swint, 514 U.S. at 51], and ‘directly implicated by,’ [Hartman v. Moore, 547 U.S. 250, 
257, n.5 (2006)], the qualified-immunity defense.” Iqbal, 556 U.S. at 673. Most 
recently, in Whole Woman’s Health v. Jackson, the Court, “stand[ing] in the shoes of 
the Court of Appeals” stated that its review of an order denying a motion to dismiss 
was limited to that order “and any other ruling ‘inextricably intertwined with’ or 
‘necessary to ensure meaningful review of’ [the order on the motion to dismiss].”  142 
S. Ct. 522-531 (2021).  However, the Court made no further reference whether it was 
reviewing rulings beyond those appropriately under review.  Id.  Critically, this 
acknowledgment of pendent appellate jurisdiction was once again related to an appeal 
concerning the denial of an immunity defense.  See Whole Woman’s Health v. Jackson, 
13 F.4th 434, 445 (5th Cir. 2021). 
23 
 
collateral order doctrine.  The collateral order doctrine is a judicially created 
exception to the final judgment rule enacted in § 1291.  This Court, for good reason, 
has seemingly not authorized pendent appellate jurisdiction where appellate 
jurisdiction could be conferred by § 1292.  
The collateral order doctrine was first established by this Court in 1949.  See 
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).  It “is best 
understood not as an exception to the ‘final decision’ rule laid down by Congress in § 
1291, but as a ‘practical construction’ of it.”  Swint, 514 U.S. at 41–42 (quoting Digital 
Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994)).  In interpreting 
§ 1291, Cohen authorized “appeals not only from a final decision by which a district 
court disassociates itself from a case, but also from a small category of decisions that, 
although they do not end the litigation, must nonetheless be considered ‘final.’”  Id. 
at 42 (quoting Cohen, 337 U.S. at 546).  Thus, the expansion of the collateral order 
doctrine stems from an interpretation of § 1291.  Section 1292 is a limited statutory 
exception to § 1291; courts cannot expand the congressionally limited exception in 
§ 1292(a)(1) via judicial decision.  This notion is supported by the other subsections 
in § 1292 that provide courts with other methods to expand appellate jurisdiction.  
See § 1292(b) (providing discretion to district courts and courts of appeals to certify 
and accept appeals over significant issues); § 1292(e) (authorizing the Supreme Court 
to “prescribe rules . . . to provide for an appeal of an interlocutory decision to the 
courts of appeals that is not otherwise provided for under [§ 1292]”).  
Congress has clearly defined the permissible exceptions to the final judgment 
24 
 
rule.  See §§ 1291–1292.  If further exceptions to the final judgment rule are 
warranted, Congress provided this Court authority to do so.  See § 1292(e); Swint, 
514 U.S. at 48 (“Congress’ designation of the rulemaking process as the way to define 
or refine when a district court ruling is ‘final’ and when an interlocutory order is 
appealable warrants the Judiciary’s full respect.”); see also Mohawk, 558 U.S. at 114 
(same); id. at 114–115 (Thomas, J., concurring) (same).  
Even if pendent appellate jurisdiction could apply to an appeal under 
§ 1292(a)(1), the District Court’s Special Master Order was not “inextricably 
intertwined” with the Injunction to warrant pendent jurisdiction.13  “A pendent claim 
may be considered ‘inextricably intertwined’ only if it is ‘coterminous with, or 
subsumed in, the claim before the court on interlocutory appeal—that is, when the 
appellate resolution of the collateral appeal necessarily resolves the pendent claim as 
well.’”  Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140, 1148 (10th Cir. 2011) 
 
13 Pendent appellate jurisdiction should be “rare,” King v. Cessna Aircraft Co., 562 
F.3d 1374, 1379 (11th Cir. 2009), “extremely limited,” Puente Arizona v. Arpaio, 821 
F.3d 1098, 1109–10 (9th Cir. 2016), exercised only in “exceptional circumstances,” 
Myers v. Hertz Corp., 624 F.3d 537, 553 (2d Cir. 2010); Reid v. Doe Run Res. Corp., 701 
F.3d 840, 844–45 (8th Cir. 2012), “used sparingly,” O’Hanlon v. Uber Techs., Inc., 990 
F.3d 757, 765 (3d Cir. 2021); Price v. Socialist People’s Libyan Arab Jamahiriya, 389 
F.3d 192, 199 (D.C. Cir. 2004), and “carefully circumscribed,” Pickett v. Texas Tech 
Univ. Health Scis. Ctr., 37 F.4th 1013, 1019 (5th Cir. 2022) (citation omitted).  It is 
“an exception of limited and narrow application driven by considerations of need, 
rather than of efficiency.”  Lyons v. PNC Bank, Nat’l Ass’n, 26 F.4th 180, 190–91 (4th 
Cir. 2022) (quoting Rux v. Republic of Sudan, 461 F.3d 461, 475 (4th Cir. 2006)). And 
it “should not be stretched to appeal normally unappealable interlocutory orders that 
happen to be related—even closely related—to the appealable order.”  Abelesz v. Erste 
Grp. Bank AG, 695 F.3d 655, 660 (7th Cir. 2012). “The exercise of pendent appellate 
jurisdiction is often suggested, occasionally tempting, but only rarely appropriate.”  
Price, 389 F.3d at 199. 
25 
(quoting Moore v. City of Wynnewood, 57 F.3d 924, 930 (10th Cir. 1995)); see Reid, 701 
F.3d at 845; Lyons, 26 F.4th at 191. “[T]he pendent appellate jurisdiction standard is 
not satisfied when we are confronted with two similar, but independent, issues . . . .”  
Myers, 624 F.3d at 553.  “Issues are not ‘inextricably intertwined’ when courts apply 
different legal standards to each issue.”  Arpaio, 821 F.3d at 1109 (citation omitted). 
Importantly, “such jurisdiction d[oes] not exist when resolution of the nonappealable 
issue [is] not necessary to resolve the appealable one.”  King, 562 F.3d at 1379. 
Here, the Injunction Order is not “inextricably intertwined” with the 
appointment of the Special Master.  Resolution of the Injunction request does not 
“necessarily resolve” the Special Master issue.  See id.; Stidham, 640 F.3d at 1148; 
Reid, 701 F.3d at 845; Lyons, 26 F.4th at 191. The Injunction Order relates to the 
Government’s ability to use seized materials for criminal investigative purposes. 
Resolution of whether the separate Special Master Order was legally appropriate 
turns on a separate legal question: whether the District Court abused its discretion 
in appointing a special master under Federal Rule of Civil Procedure 53.  See Gary 
W. v. Louisiana, 601 F.2d 240, 244 (5th Cir. 1979).   In determining whether a District 
Court abused its discretion in appointing a special master, courts look at whether the 
special master’s authority exceeds that authorized by Rule 53, if special masters have 
been appointed in similar circumstances, id., or if the appointment displaces the 
court or impairs a party’s right to trial, see La Buy v. Howes Leather Co., 352 U.S. 
249 (1957).  None of these factors require the reviewing court to assess the merits of 
the case. These are distinct issues—and each can certainly be decided independent 
26 
 
from the other.  See Stidham, 640 F.3d at 1148; Reid, 701 F.3d at 845; Lyons, 26 F.4th 
at 191.  Thus, interlocutory review of the Injunction Order is not “inextricably 
intertwined” with review of the Special Master Order as it is not intertwined at all.  
C. The District Court’s Special Master Order Was Not Immediately 
Appealable as a Collateral Order. 
 
In its reply before the Eleventh Circuit, the Government made a fleeting 
statement that orders to disclose classified information are immediately appealable 
as collateral orders.  App. F at 10 (citing Mowhawk Indus., 558 U.S. at 113 n.4; Al 
Odah v. United States, 559 F.3d 539, 542–44 (D.C. Cir. 2009)).  This assertion is 
without merit. 
The collateral order exception, as formulated in Cohen, states that “‘an order 
is appealable if it (1) conclusively determines the disputed question; (2) resolves an 
important issue completely separate from the merits of the action; and (3) is 
effectively unreviewable on appeal from a final judgment.’”  Mohawk Indus., 558 U.S. 
at 105 (quoting Carpenter v. Mohawk Indus., Inc., 541 F.3d 1048, 1052 (11th Cir. 
2008) (per curiam)). While the Government did not expand on its theory or even 
mention the three-pronged test used to determine whether a collateral order appeal 
is appropriate in its Reply, neither of the two cases it cited, nor a full application of 
the Cohen test invokes appellate jurisdiction in this case.   
First, Mohawk, was a collateral appeal of an order compelling disclosure of 
attorney-client communications based upon waiver—not an appeal of an order 
denying a stay.  See 558 U.S. at 104.  The Eleventh Circuit dismissed the appeal for 
lack of jurisdiction under 28 U.S.C. § 1291.  Affirming the dismissal, this Court—
27 
 
after explaining in detail that effective appellate review could be had by other 
means—specifically addressed the potential floodgate consequences of an adverse 
ruling when it noted that were it to “approve collateral order appeals in the attorney-
client privilege context, many more litigants would choose that route.”  Id. at 113.  
This Court continued that these litigants would, in a sense, attempt to stretch the 
coil, and “likely seek to extend such a ruling to disclosure orders implicating many 
other categories of sensitive information, raising an array of line-drawing 
difficulties.”  Id.   
In fact, this Court explicitly expressed no opinion as to an argument by the 
Government participating as amicus curiae proposing that “collateral order appeals 
should be available for rulings involving certain government privileges ‘in light of 
their structural constitutional grounding under the separation of powers, relatively 
rare invocation, and unique importance to government functions.’”  Id. at 113 n.4.  
This Court’s refusal to entertain the extension of collateral order appellate 
jurisdiction suggested by the Government in Mohawk cannot be interpreted as 
support for the Government’s claim as to the appealability of the Special Master 
Order. 
 
In Al Odah, the Government appealed from an order granting defendant’s 
counsel access to unredacted “classified” information.  559 F.3d at 543.  The District 
of Columbia Circuit, applying the Cohen test, determined it had jurisdiction to hear 
the appeal of the collateral order in that case.  Id. at 543-44.  However, the present 
case is distinguishable from Al Odah, primarily due to whom the “classified” or 
28 
 
“privileged” documents are being disclosed.  Unlike in Al Odah, where the 
unredacted classified documents were ordered to be disclosed to defendant’s counsel, 
here the materials in question will be provided to the Special Master—a Senior 
United States District Judge with years of FISA court experience.  As Special 
Master, Judge Dearie will effectively act as an arm of the District Court.  It can 
hardly be suggested that Judge Dearie’s review of these records is in any way akin 
to dissemination of previously unshared, unredacted, classified information to 
counsel for Guantanamo Bay detainees.   
Additionally, the fact this dispute involves potential Presidential records14 
creates a fundamental and significant distinction.  Since any purported “classified 
records” may be Presidential records, President Trump (or his designee, including a 
neutral designee such as a special master) has an absolute right of access to same 
under the Presidential Records Act (“PRA”).  44 U.S.C. § 2205(3).  Accordingly, 
President Trump (and, by extension, the Special Master) cannot in any event be 
denied access to those documents.  Given this absolute right of access under the PRA, 
there is therefore no valid basis to preclude such review.  Moreover, there cannot 
possibly be any valid claim of injury resulting from a statutorily authorized grant of 
access to a former President and/or his designee. 
The Government argued on appeal, without explanation, that showing the 
purportedly classified documents to Judge Dearie would harm national security.  App. 
 
14 Even the Government’s own Motion for Stay in the Eleventh Circuit acknowledged 
the obvious, that any purported “classified records” may be Presidential records.  App. 
D at 10. 
29 
 
D at 17.  However, in seeking to stay the Injunction Order pending appeal, the 
Government then argued it needed to use those same documents to interview 
witnesses and submit to the grand jury.  ECF No. 69 at 17.  These positions cannot be 
reconciled. 
Furthermore, a straight application of the Cohen test shows the Special 
Master Order is not an appealable collateral order.  The appointment of the Special 
Master satisfies the first prong, as the court does not intend to revisit that 
determination. However, the order fails to satisfy the other two prongs. Second, there 
is no particularly important issue that needs to be addressed regarding the 
appointment of the Special Master.  Special masters are appropriate in cases like 
this, where a review of thousands of documents for privilege determinations is 
necessary.  Third, the Special Master Order is reviewable on appeal.  Thus, the 
balance of factors weighs against employing the collateral order doctrine. 
Ultimately, the Eleventh Circuit did not have jurisdiction to review the Special 
Master Order.  As such, the Government cannot prevail on the merits of its appeal 
regarding the Special Master Order.  Without being able to show any likelihood of 
success on the merits as to this discrete issue, review of the other stay factors is 
unnecessary. See Nken v. Holder, 556 U.S. 418, 434 (2009). 
II. 
The District Court Did Not Abuse its Discretion in Authorizing the 
Special Master to Review Documents Bearing Classification 
Markings. 
 
Even assuming the Eleventh Circuit had jurisdiction to review any aspect of 
the Special Master Order, the District Court did not abuse its discretion in issuing 
30 
 
that Order as it is reasonably tailored given the significance of this investigation. 
As noted above, the unprecedented circumstances presented by this case 
compelled the District Court’s entry of the Special Master Order.  Indeed, in what is 
essentially a document storage dispute governed by the PRA, see 44 U.S.C. §§ 2201, 
et seq., the Government has sought to criminalize President Trump’s possession and 
management of his own personal and Presidential records.  Acknowledging same, the 
District Court exercised its broad discretion by: 
[Taking] into account the undeniably unprecedented 
nature of the search of a former President’s residence; 
Plaintiff’s inability to examine the seized materials in 
formulating his arguments to date; Plaintiff’s stated 
reliance on the customary cooperation between former and 
incumbent administrations regarding the ownership and 
exchange of documents; the power imbalance between the 
parties; the importance of maintaining institutional trust; 
and the interest in ensuring the integrity of an orderly 
process amidst swirling allegations of bias and media 
leaks. 
 
App. B at 11.  In identifying the need for further review of the seized materials, the 
District Court further stated: 
[T]he parties’ submissions suggest the existence of genuine 
disputes as to (1) whether certain seized documents 
constitute personal or presidential records, and (2) whether 
certain seized personal effects have evidentiary value.  
Because those disputes are bound up with Plaintiff's Rule 
41(g) request and involve issues of fact, the Court ‘must 
receive evidence’ from the parties thereon. . . . That step 
calls for comprehensive review of the seized property.  
Id. at 14.    
Finally, the District Court rejected the Government’s conclusory approach in 
denying the motion to stay: 
31 
 
The Government’s position thus presupposes the content, 
designation, and associated interests in materials under its 
control—yet, as the parties’ competing filings reveal, there 
are disputes as to the proper designation of the seized 
materials, the legal implications flowing from those 
designations, and the 
intersecting bodies of 
law 
permeating those designations.  
 
ECF No. 89 at 4–5.  
 
In sum, the District Court exercised its lawful discretion and denied the 
Government the ability to evade any oversight and to skip forward towards a 
preordained conclusion.   Given the detailed support and findings, this discretion 
cannot be said to have been abused.  Moreover, the Eleventh Circuit never even 
attempted to assert otherwise when granting the stay. 
The ultimate disposition of the purportedly classified records and likely most 
of the seized materials is indisputably governed by the provisions of the PRA.  See 44 
U.S.C. §§ 2201, et seq.  The PRA accords any President extraordinary discretion to 
categorize all his or her records as either Presidential or personal records, and 
established case law provides for very limited judicial oversight over such 
categorization.  The PRA further contains no provision authorizing or allowing for 
any criminal enforcement.  Rather, disputes regarding the disposition of any 
Presidential record are to be resolved between such President and the National 
Archives and Records Administration (“NARA”). 
The PRA “distinguishes Presidential records from ‘personal records’” and 
“requires that all materials produced or received by the President, ‘to the extent 
practicable, be categorized as Presidential records or personal records upon their 
32 
 
creation or receipt and be filed separately.’”  Jud. Watch, Inc. v. Nat’l Archives & Recs. 
Admin., 845 F. Supp. 2d 288, 291 (D.D.C. 2012) (quoting 44 U.S.C. § § 2203(b)); see 
also 44 U.S.C. § 2201(2)–(3). “The categorization of the records during the Presidency 
controls what happens next . . . . The statute assigns the Archivist no role with respect 
to personal records once the Presidency concludes.”  Id. (emphasis added). “The PRA 
contains no provision obligating or even permitting the Archivist to assume control 
over records that the President ‘categorized’ and ‘filed separately’ as personal records. 
At the conclusion of the President’s term, the Archivist only ‘assumes responsibility 
for the Presidential records.”  Id. (quoting 44 U.S.C. § 2203(f)(1)). “[T]he PRA does 
not confer any mandatory or even discretionary authority on the Archivist to classify 
records.  Under the statute, this responsibility is left solely to the President.”  Id. at 
301 (describing categorization decision made by former President Clinton as not 
within the discretion of the Archivist as the subject materials “were not provided to 
the Archives at” the end of the Clinton presidency).  Critically important here, 
President Trump had sole discretion to classify a record as personal or Presidential.  
See Jud. Watch, Inc., 845 F. Supp. 2d at 301. 
The District Court’s exercise of discretion to allow for a transparent and 
orderly process to facilitate resolution of the myriad preliminary disputes over the 
categorization of the seized materials was therefore not only authorized, but justified.  
The Special Master Order establishes an organized procedure allowing for 
categorization of the seized materials and the ultimate adjudication of any disputes 
regarding those categorizations and resultant possessory interests.  Simply put, there 
33 
 
first needs to be a determination as to what portion of the seized materials constitute 
personal or Presidential records and the appointment of a special master facilitates 
that determination. 
Additionally, President Trump was still the President of the United States 
when any documents bearing classification markings were delivered to his residence 
in Palm Beach, Florida.  See Patricia Mazzei and Julia Echikson, Trump has arrived 
in Palm Beach to begin life as a private citizen, The New York Times, Jan. 20, 2021, 
available at https://www.nytimes.com/2021/01/20/us/trump-palm-beach.html (last 
accessed, October 2, 2022).  At that time, he was the Commander in Chief of the 
United States.  U.S. Const., Art. II, § 2. As such, his authority to classify or declassify 
information bearing on national security flowed from this constitutional investment 
of power in the President.  See Cafeteria Workers v. McElroy, 367 U.S. 886, 890 (1961). 
President Trump had broad authority governing classification of, and access 
to, classified documents.  ECF No. 69 at 10, 18 (quoting Dep’t of Navy v. Egan, 484 
U.S. 518, 529 (1988)). In fact, “the protection of classified information must be 
committed to the broad discretion of the agency responsible, and this must include 
broad discretion to determine who may have access to it.”  ECF No. 69 at 18 (quoting 
Egan, 484 U.S. at 529). Congress provided certain parameters for controlling 
classified information but primarily delegated to the President how to regulate 
classified information.  50 U.S.C. § 3161.  At the same time, Congress exempted the 
President from complying with such requirements.  See id. § 3163 (“Except as 
otherwise specifically provided, the provisions of this subchapter shall not apply to 
34 
 
the President . . .”). 
President Obama enacted the current Executive Order prescribing the 
parameters for controlling classified information in 2009.  See Exec. Order 13526 
(Dec. 29, 2009).  That Executive Order, which controlled during President Trump’s 
term in office, designates the President as an original classification authority.  See 
id. § 1.3(a)(1). In turn, the Executive Order grants authority to declassify information 
to either the official who originally classified the information or that individual’s 
supervisors—necessarily including the President.  § 3.1(b)(1), (3). Thus, assuming the 
Executive Order could even apply to constrain a President, cf. 50 U.S.C. § 3163, 
President Trump had absolute authority under that Executive Order to declassify 
any information.  There is no legitimate contention that the Chief Executive’s 
declassification of documents requires approval of bureaucratic components of the 
executive branch.  Yet, the Government apparently contends that President Trump, 
who had full authority to declassify documents, “willfully” retained classified 
information in violation of the law.  See 18 U.S.C. § 793(e); ECF No. 69 at 9.  Moreover, 
whether classified or declassified, the documents remain either Presidential records 
or personal records under the PRA.   
Here, it simply cannot be an abuse of discretion for the District Court to refer 
these matters to a special master to determine whether documents bearing 
classification markings are in fact classified, and regardless of classification, whether 
those records are personal records or Presidential records, such that their disposition 
may be managed properly under the PRA.  The Government’s position presumes 
35 
 
certain documents are in fact classified, affording President Trump no opportunity to 
contend otherwise.  This presumption is at the core of the dispute.  Since President 
Trump had absolute authority over classification decisions during his Presidency, the 
current status of any disputed document cannot possibly be determined solely by 
reference to the markings on that document.  This, again, is why the District Court 
exercised its discretion to appoint a special master.  Otherwise, the unchallenged 
views of the current Justice Department would supersede the established authority 
of the Chief Executive. 
As correctly stated by the District Court, President Trump “faces an 
unquantifiable potential harm by way of improper disclosure of sensitive information 
to the public.”  App. B at 9–10.  This is evidenced by various media reports regarding 
the contents of purportedly classified documents seized by the Government.15  
Irreparable injury could most certainly occur if the Government were permitted to 
improperly use the documents seized.  As the District Court aptly stated:  
As a function of [President Trump’s] former position as 
President of the United States, the stigma associated with 
the subject seizure is in a league of its own.  A future 
indictment, based to any degree on property that ought to 
be returned, would result in reputational harm of a 
decidedly different order of magnitude. 
 
App. B at 10.16   The District Court appointed the Special Master largely because 
 
15 Indeed, the District Court noted as much in the order denying the Government’s 
motion for partial stay pending appeal.  See, e.g., ECF No. 89 at 8 (“Instead, and 
unfortunately, the unwarranted disclosures that float in the background have been 
leaks to the media after the underlying seizure [see ECF No. 64 pp. 9–11 n.11].”).  
16 The Government’s investigatory decisions should be disinterested. See, e.g., U.S. 
 
36 
 
“[a] commitment to the appearance of fairness is critical, now more than ever.”  App. 
B at 16.  The District Court therefore did not abuse its discretion in appointing a 
special master given the significance of this investigation.  See Reynolds v. McInnes, 
380 F.3d 1303, 1305, fn. 3 (11th Cir. 2004) (citing Grilli v. Metropolitan Life Insurance 
Co., 78 F.3d 1533, 1538 (11th Cir.1996)); Gary W., 601 F.2d at 245; see also Macri v. 
U.S. ex. rel. John H. Maxwell & Co., 353 F.2d 804, 809 (9th Cir. 1965) (“[w]here trial 
court had power to enter an order of reference to a special master pursuant to 
Fed.R.Civ.P. 53, the only inquiry by Court of Appeals would center on question of 
whether trial court abused its discretion.”). 
In sum, the Government has attempted to criminalize a document 
management dispute and now vehemently objects to a transparent process that 
provides much-needed oversight.  The Government’s attempt to shield the 
purportedly classified documents from the ambit of a Senior United States District 
Judge who served for seven years on the FISA Court, and preclude review by a 
former President of his own personal and Presidential records, illustrates precisely 
why the District Court found a special master was appropriate and necessary under 
the circumstances.  As such, even assuming these issues were properly before the 
 
Dep’t of Justice, U.S. Attorneys’ Manual, § 9-27.260 (“[F]ederal prosecutors and 
agents may never make a decision regarding an investigation or prosecution, or select 
the timing of investigative steps or criminal charges, for the purpose of affecting any 
election, or for the purpose of giving an advantage or disadvantage to any candidate 
or political party”); see also id. (setting out impermissible considerations in charging 
decisions, including the defendant’s political association, activities, or beliefs; the 
prosecutor’s personal feelings about the defendant; and the possible effect of the 
charging decision on the prosecutor’s own personal or professional circumstances). 
37 
 
Eleventh Circuit, the stay of the Special Master Order should be vacated. 
CONCLUSION 
The Eleventh Circuit lacked jurisdiction to review the Special Master Order, 
which authorized the review of all materials seized from President Trump’s 
residence, including documents bearing classification markings.  Moreover, entry of 
the Special Master Order was not in any event an abuse of discretion.  Accordingly, 
President Trump respectfully requests the Court vacate the Eleventh Circuit’s 
September 21, 2022, Stay Order as to the authority of the Special Master to review 
documents bearing classification markings. 
38 
 
October 4, 2022. 
Respectfully submitted, 
 
 
 
Counsel for Applicant President Donald J. Trump 
LINDSEY HALLIGAN, ESQ. 
511 S.E. 5th Avenue, Suite 1008 
Fort Lauderdale, FL 33301 
 
M. EVAN CORCORAN 
SILVERMAN|THOMPSON|  
SLUTKIN|WHITE, LLC 
400 East Pratt Street, Suite 900 
Baltimore, MD 21202 
 
 
CHRISTOPHER M. KISE 
Counsel of Record 
LAZARO P. FIELDS 
CONTINENTAL PLLC 
101 North Monroe Street, Suite 750 
Tallahassee, FL 32301 
(850) 332-0702 
chris@ckise.net 
 
JAMES M. TRUSTY 
IFRAH LAW PLLC 
1717 Pennsylvania Avenue N.W., Suite 650 
Washington, DC 20006 
TABLE OF APPENDICES 
OPINION OF THE UNITED STATES COURT OF APPEALS FOR THE 
ELEVENTH CIRCUIT, DATED SEPTEMBER 21, 2022 
ORDER OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN 
DISTRICT OF FLORIDA, WEST PALM BEACH DIVISION, DATED  
SEPTEMBER 5, 2022 
ORDER OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN 
DISTRICT OF FLORIDA, WEST PALM BEACH DIVISION, DATED  
SEPTEMBER 15, 2022 
MOTION 
FOR 
PARTIAL 
STAY 
PENDING 
APPEAL 
FILED 
BY 
DEFENDANT/APPELLANT UNITED STATES OF AMERICA IN THE UNITED 
STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT, DATED 
SEPTEMBER 16, 2022, WITH ADDENDUM 
NOTICE OF APPEAL FILED BY DEFENDANT/APPELLANT UNITED STATES 
OF AMERICA IN THE UNITED STATES DISTRICT COURT FOR THE 
SOUTHERN DISTRICT OF FLORIDA, WEST PALM BEACH DIVISION, DATED 
SEPTEMBER 8, 2022 
REPLY IN SUPPORT OF ITS MOTION FOR PARTIAL STAY PENDING APPEAL 
FILED BY DEFENDANT/APPELLANT UNITED STATES OF AMERICA IN THE 
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT, 
DATED SEPTEMBER 20, 2022 
AFFIDAVIT REGARDING DETAILED INVENTORY FILED BY DEFENDANT 
UNITED STATES OF AMERICA IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF FLORIDA, WEST PALM BEACH DIVISION, 
DATED SEPTEMBER 26, 2022 
APPENDIX A 
 
 
 
 
 
 
  
 
 
         [DO NOT PUBLISH] 
In the 
United States Court of Appeals 
For the Eleventh Circuit 
 
____________________ 
No. 22-13005 
____________________ 
 
DONALD J. TRUMP,  
 Plaintiff-Appellee, 
versus 
UNITED STATES OF AMERICA,  
 
 Defendant-Appellant. 
 
____________________ 
Appeal from the United States District Court 
for the Southern District of Florida 
D.C. Docket No. 9:22-cv-81294-AMC 
____________________ 
 
USCA11 Case: 22-13005     Date Filed: 09/21/2022     Page: 1 of 29 
2 
Opinion of the Court 
22-13005 
 
Before ROSENBAUM, GRANT, and BRASHER, Circuit Judges. 
PER CURIAM: 
Following the execution of a search warrant at the residence 
of Plaintiff-Appellee, former President Donald J. Trump, Plaintiff 
moved for the appointment of a special master to review the doc-
uments that Defendant-Appellant United States of America seized.  
The district court granted that motion in substantial part.  Now, 
the United States moves for a partial stay of the district court’s or-
der as it relates to the roughly one-hundred documents bearing 
classification markings.  We decide only the narrow question pre-
sented:  whether the United States has established that it is entitled 
to a stay of the district court’s order, to the extent that it (1) requires 
the government to submit for the special master’s review the doc-
uments with classification markings and (2) enjoins the United 
States from using that subset of documents in a criminal investiga-
tion.  We conclude that it has. 
We stress the limited nature of our review:  this matter 
comes to us on a motion for a partial stay pending appeal.  We can-
not (and do not) decide the merits of this case.  We decide only the 
traditional equitable considerations, including whether the United 
States has shown a substantial likelihood of prevailing on the mer-
its, the harm each party might suffer from a stay, and where the 
public interest lies.   
For the reasons we explain below, we grant the United 
States’s motion for a partial stay pending appeal. 
USCA11 Case: 22-13005     Date Filed: 09/21/2022     Page: 2 of 29 
22-13005  
Opinion of the Court 
3 
 
I. BACKGROUND 
A. 
Factual Background 
Plaintiff left the White House in January 2021, after serving 
as President of the United States.  Upon leaving office, movers 
transferred boxes of documents to his personal residence in south-
ern Florida.  Doc. No. 1 at 4.  
The record reveals that, throughout 2021 (and consistent 
with its responsibilities under the Presidential Records Act, 44 
U.S.C. §§ 2201–09), the National Archives and Records Administra-
tion sought to obtain records in Plaintiff’s possession.  Doc. No. 48-
1 at 2, 6.   
In response to these requests, in January 2022, Plaintiff trans-
ferred fifteen boxes of documents to the National Archives.  Id.  
The National Archives reviewed the contents of the boxes and 
found inside “newspapers, magazines, printed news articles, pho-
tos, miscellaneous print-outs, notes” but also “presidential corre-
spondence, personal and post-presidential records, and a lot of clas-
sified records.”  Affidavit in Support of an Application Under Rule 
41 for a Warrant to Search and Seize ¶ 24, In re Sealed Search War-
rant, No. 22-MJ-8332 (S.D. Fla. Sept. 12, 2022) (“Warrant Affidavit”) 
(quotation omitted).  Consequently, the National Archives sent a 
referral by email to the Department of Justice on February 9, 2022.  
Id.   
USCA11 Case: 22-13005     Date Filed: 09/21/2022     Page: 3 of 29 
4 
Opinion of the Court 
22-13005 
 
Upon learning about the classified materials, the Depart-
ment sought access to the fifteen boxes in part “so that the FBI and 
others in the Intelligence Community could examine them.”  Doc. 
No. 48-1 at 6.  The National Archives responded by advising Plain-
tiff, on April 12, 2022, that it intended to provide the FBI access to 
the records the week of April 18, 2022.  Id. at 7.  When Plaintiff re-
quested an extension of the production date to April 29, 2022, the 
National Archives held off on sending the documents to the 
FBI.  Id. 
On that date, Plaintiff asked for another extension of time 
and informed the National Archives that, if it declined to grant the 
extension, he would make a protective assertion of executive priv-
ilege over the documents.  Doc. No. 48 at 6.  On May 10, the Na-
tional Archives informed Plaintiff’s representatives that it had de-
cided not to honor Plaintiff’s protective claim of executive privi-
lege, and that it would provide the FBI access to the records as early 
as May 12, 2022.  Id. at 9.  That letter noted that President Biden 
had deferred to the National Archives’s determination that execu-
tive privilege did not apply.  Id. at 7.  Despite this advance warning, 
Plaintiff made no effort to block the FBI’s access to the documents 
at that time.  Doc. No. 48 at 6–7. 
During a preliminary review of the documents between 
May 16–18, 2022, the FBI found 184 documents marked at varying 
levels of classification (including twenty-five documents marked 
top secret).  Id. at 7; Warrant Affidavit ¶ 47.   
USCA11 Case: 22-13005     Date Filed: 09/21/2022     Page: 4 of 29 
22-13005  
Opinion of the Court 
5 
 
The FBI also developed evidence that more boxes contain-
ing classified information remained at Plaintiff’s residence.  Doc. 
No. 48 at 7.  The Department obtained a grand-jury subpoena di-
rected to Plaintiff’s custodian of records, and requested all docu-
ments or writings in Plaintiff’s custody or control bearing classifi-
cation markings.  Doc. No. 48 at 7–8.  Plaintiff’s counsel was served 
with the subpoena on May 11, 2022.  Id. at 8.   
Plaintiff sought (and received) an extension of time to pro-
duce the subpoenaed documents.  Id.  After initially denying the 
request, the government extended the compliance deadline until 
June 7, 2022.  Id.  On June 3, 2022, in response to the subpoena, 
Plaintiff’s representatives produced an envelope containing thirty-
eight such documents.  Warrant Affidavit ¶ 58.  At the same time, 
his representative stated that she was authorized to certify that a 
“diligent search was conducted” and that “[a]ny and all responsive 
documents” accompanied the certification.  Doc. No. 48 at 9.  The 
envelope contained classified documents, including seventeen 
marked top secret, and was double-wrapped in tape, consistent 
with handling procedures for classified documents.  Warrant Affi-
davit ¶¶ 58, 60.  Plaintiff made no claims of privilege with his pro-
duction in response to the subpoena.  Doc. No. 48 at 8. 
Despite Plaintiff’s production in response to the subpoena 
and counsel’s representation that a diligent search had occurred 
and all responsive documents had been produced, the FBI devel-
oped evidence that more classified documents remained at Plain-
tiff’s residence.  Id. at 10.  In August 2022 the Department, through 
USCA11 Case: 22-13005     Date Filed: 09/21/2022     Page: 5 of 29 
6 
Opinion of the Court 
22-13005 
 
an FBI agent’s sworn affidavit, informed a magistrate judge of the 
evidence it had developed, and the magistrate judge agreed that 
probable cause existed that evidence of possible violations of the 
law would be found in Plaintiff’s residence.  Id. at 11; see also War-
rant Affidavit at 1, 32.  Based on this evidence, the magistrate judge 
issued a search warrant for Plaintiff’s residence.  When the FBI ex-
ecuted the search warrant, it seized thirty-three items of evidence 
(mostly boxes) containing approximately 11,000 documents and 
1,800 other items.  Doc. No. 48 at 4, 12–13.  Among the boxes, thir-
teen contained documents with classification markings, and three 
classified documents were found in Plaintiff’s desks.  All told, the 
search uncovered over one-hundred documents marked confiden-
tial, secret, or top secret.  Id. at 13. 
In accordance with the protocol that the magistrate judge 
had approved in the search warrant, the Department directed a 
“Privilege Review Team”—composed of agents not otherwise par-
ticipating in the investigation—to review certain seized documents 
for attorney-client privilege.  Doc. No. 48 at 14; see Warrant Affi-
davit ¶¶ 81–84.   
Based on its review, the Privilege Review Team identified 
(and segregated) an initial subset of about 520 pages (not docu-
ments) that might contain privileged material. Doc. No. 64 at 14.  
Within the remaining documents, members of the investigative 
team found at least two instances of potentially privileged material, 
which they delivered to the Privilege Review Team.  Id. at 15. 
USCA11 Case: 22-13005     Date Filed: 09/21/2022     Page: 6 of 29 
22-13005  
Opinion of the Court 
7 
 
B. 
Procedural History 
Two weeks after the execution of the search warrant, Plain-
tiff filed a motion in the district court asking for it to (1) appoint a 
special master, (2) enjoin further review of the seized materials un-
til a special master was appointed, (3) require the United States to 
supply a more detailed Receipt for Property, and (4) require the 
United States to return any item seized that was not within the 
scope of the search warrant.  Doc. No. 28 at 10.   
Regarding jurisdiction, among other bases, Plaintiff asserted 
that the district court could appoint a special master under its “su-
pervisory authority” and its “inherent power” and could enjoin the 
government’s review under its “equitable jurisdiction.”  Doc. No. 
28 at 5–6. 
The United States made three primary arguments in oppo-
sition.  First, the United States argued that Plaintiff lacked Fourth 
Amendment “standing” to seek relief because he did not have a 
possessory interest in the seized property.  In support of this posi-
tion, the United States asserted that the seized records were Presi-
dential records, which properly belonged to the people of the 
United States, not to Plaintiff.   
Second, as to the appointment of a special master, the 
United States contended that (1) appointment of a special master 
was the exception, not the rule; (2) a special master was neither 
necessary nor appropriate to address whether certain documents 
were subject to executive privilege because Plaintiff could not 
USCA11 Case: 22-13005     Date Filed: 09/21/2022     Page: 7 of 29 
8 
Opinion of the Court 
22-13005 
 
assert executive privilege against the Executive Branch; (3) even if 
he could, the privilege would yield to the United States’s need to 
investigate a possible crime and the United States’s compelling in-
terest in sensitive and highly classified documents; (4) appointment 
of a special master would be inconsistent with equitable principles 
given that Plaintiff had not, as required, turned the records over to 
Archives in the first instance; and (5) the case did not involve com-
plex or voluminous records, so a privilege filter team was appropri-
ate.   
Third, as to injunctive relief, the United States argued that 
(1) Plaintiff had waited too long to seek relief, and the Depart-
ment’s review of the documents, which Plaintiff sought to avoid, 
had already occurred; (2) Plaintiff was not likely to succeed on the 
merits of his claims of executive privilege because he did not have 
any cognizable claim of executive privilege over the documents; 
and (3) the harm to the United States—in the delay in its investiga-
tion—far outweighed any injury to Plaintiff because of the risk to 
national security. 
Plaintiff replied that he had Fourth Amendment standing be-
cause the characterization of the documents (whether personal or 
Presidential records) went to the merits of his claim—not his stand-
ing to raise it.  While Plaintiff appears to view appointment of a 
special master as a predicate to filing a motion under Rule 41(g) 
(which allows a person to seek return of seized items), he dis-
claimed reliance on that Rule for the time being, saying that he 
“h[ad] not yet filed a Rule 41(g) motion, and [so] the standard for 
USCA11 Case: 22-13005     Date Filed: 09/21/2022     Page: 8 of 29