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The one-paragraph decision by the Ninth Circuit reads, in full:

We agree with the district court that the January 5, 2009 order is not appropriate for interlocutory appeal. The government’s appeal is DISMISSED for lack of jurisdiction. The government’s motion for a stay is DENIED as moot.

The Justice Department had sought to block an order by Judge Vaughn Walker, who is also presiding over the more widely-publicized EFF lawsuit targeting telecoms that participated in a secretive NSA eavesdropping program, requiring the government to turn over a “secret” document that purportedly shows that the al-Haramain Islamic Foundation was subject to warrantless wiretaps.

The document had been handed over to attorneys for the foundation, which the government has labeled as a “Specially Designated Terrorist Group,” thanks to a government blunder. The government was able to retrieve the document by invoking the state secrets privilege, and a court agreed that the foundation could not use it to establish standing to sue under the redress provisions of the Foreign Intelligence Surveillance Act. Lawyers for al-Haramain, however, were able to establish standing to Judge Walker’s satisfaction by citing evidence in the public domain—at which point Walker ordered the Justice Department to hand over the document and arrange for security clearances that would allow the foundation’s attorneys to participate in the litigation.

The government sought to persuade Walker to stay his own ruling, which the judge declined to do. Normally, appeal to a higher court—such as the Ninth Circuit—must wait for the resolution of a case at the lower level, but in this case the Justice Department sought an “interlocutory” appeal, seeking the appellate court’s intervention in an ongoing proceeding. As the ruling quoted above makes clear, they fared no better there: the Ninth Circuit’s response means, in effect, “Walker’s your judge; if he doesn’t want to give you a stay, tough luck.”