A divided U.S. Court of Appeals for the Ninth Circuit on Friday rejected the Trump administration’s request that the full court review a federal judge’s temporary pause of the government’s funding cuts to direct legal services for unaccompanied children in immigration custody.
Several nonprofit legal organizations sued the administration last month in a bid to block funding cuts to the legal services the Acacia Center for Justices provides under a federal contract. The group of subcontractors argue the U.S. Department of Health and Human Services must provide the assistance under the Trafficking Victims Protection Reauthorization Act and that the administration made the cuts in violation of the Administrative Procedures Act.
U.S. District Judge Araceli Martínez-Olguín of Northern California issued a temporary restraining order that the White House restore the funding. A Ninth Circuit panel said that ruling was not appealable.
Ninth Circuit Judges Patrick Bumatay and Lawrence VanDyke dissented from the appellate court’s order denying en banc, or full court, review. The judges said the TRO should have been lifted in light of a separate U.S. Supreme Court decision this month that allowed the government to keep frozen $65 million in Department of Education grants for teacher training and professional development.
A lower court had ordered that the grants be reinstated.
“The ink is barely dry on the Supreme Court’s decision in Department of Education [v. California], yet our court has disregarded it in two respects—ignoring its conclusion controlling our jurisdiction to hear appeals of certain TROs, as well as its conclusion governing a district court’s jurisdiction to interfere with government contracts,” Bumatay and VanDyke jointly wrote.
“It is unfortunate that we are leaving this to the Supreme Court to (once again) deal with, instead of appropriately addressing it ourselves en banc,” they added in a dissenting opinion joined by eight other Republican-appointed judges.
Bumatay and VanDyke, two of the most prolific writers of dissents from denials of en banc review, were appointed by Trump during his first term.
In Department of Education, the Supreme Court’s 5-4 majority held that TROs are appealable when they carry “the hallmarks” and “practical effects” of a preliminary injunction, Bumatay and VanDyke wrote. In this case, the TRO requires dispersing funds to the legal organizations that “will be difficult or impossible to recover,” they added.
“Such a ‘practical effect’ is characteristic of mandatory preliminary injunctive relief, not a temporary restraint,” Bumatay and VanDyke wrote. They added that the the expiration of the TRO on Wednesday isn’t a basis for denying en banc review.
“If the limited duration of a TRO was always a reason to avoid en banc review, district courts could routinely interfere with executive actions for up to 28 days notwithstanding their complete lack of jurisdiction,” the dissent stated. “We should have taken this case en banc to reinforce that is not acceptable.”
Bumatay and VanDyke were joined by Judges Consuelo Callahan, Sandra Ikuta, Mark Bennett, Ryan Nelson, Bridget Bade, Daniel Collins, Kenneth Lee and Daniel Bress.
The Ninth Circuit appeal is Community Legal Services In East Palo Alto, v. United States Department Of Health And Human Services, No. 25-2358.