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Oral argument tomorrow in TRO appeal to Ninth Circuit in immigration E.O. case–but don’t be surprised if the court doesn’t reach the merits

The U.S. Court of Appeals has set oral argument to occur by phone tomorrow at 6:00 EST (3:00 PST), presumably before Judges Canby, Clifton and Friedland.  It will be live-streamed at the court website.

Just so that everyone’s expectations are not unduly raised (and then dashed):  There’s a very real possibility the court of appeals will not reach the merits.

The government concedes that “temporary restraining orders are ordinarily not appealable.”  Even so, the court of appeals has held that “[a]n order denominated a TRO that possesses the qualities of a preliminary injunction is a reviewable interlocutory order,” that “[w]here a district court holds an adversary hearing and the basis for the court’s order was strongly challenged, classification as a TRO is unlikely,” and that if the order “exceeds the ordinary duration for TROs as set forth in the Federal Rules of Civil Procedure”–14 days– “classification as a TRO is unlikely.”

Here, the district court judge did hold an oral argument on the TRO after very cursory briefing.  That was not an evidentiary hearing, however, and it did not involve “extensive” written filings.  Nor is the TRO likely to last much, if at all, beyond 14 days:   In the meantime, back in the district court, the court has approved the parties’ proposed briefing schedule on the motion for a preliminary injunction–briefing will be completed by next Friday, February 17.  Judge Robart has represented that he will “promptly” schedule a preliminary injunction hearing.

Therefore, there’s a very real possibility that the court of appeals will decide not to hear the case until after Judge Robart decides the motion for a preliminary injunction.


About the Author

Professor at the Georgetown University Law Center Follow him on Twitter (@marty_lederman).