Ten judges dissented from the Ninth Circuit’s decision to deny rehearing en banc.
Federal judges on Friday rejected the Trump administration’s request for an en banc review—a hearing before the full court—to rehear its appeal to reinstate funding cuts on nonprofit organizations providing legal services to unaccompanied illegal immigrant children.
The case follows a March 21 lawsuit filed by 11 nonprofit legal service providers, challenging the administration’s move to terminate a contract with the Acacia Center for Justice, through which they received funding to offer legal representation to illegal immigrant children who entered the United States without a parent or guardian.
A three-judge panel from the U.S. Court of Appeals for the Ninth Circuit turned down the administration’s petition to rehear its appeal en banc, with two judges voting against it and one judge supporting that outcome with a recommendation.
“The full court was advised of Appellants’ petition for rehearing en banc,” the court order stated. “The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration.”
Ten judges dissented from the Ninth Circuit’s decision to deny rehearing en banc, including Judges Lawrence VanDyke and Patrick Bumatay, stating that the case merited a full court hearing.
“The government’s appeal in this high-profile case raises serious questions about judicial overreach, separation of powers, and the misuse of injunctive relief,” they stated.
The judges argued that consideration by the full court was warranted in this case “to fix the motions panel’s errors that entrenched the district court’s ruling.”
On April 1, U.S. District Judge Araceli Martinez-Olguin issued a temporary restraining order to prevent the administration from terminating the funding until April 16. The restraining order was later extended until April 30.
The Department of Health and Human Services (HHS) filed an appeal to the Ninth Circuit on April 12, but the appeals court concluded on April 18 that the temporary restraining order “is not appealable.”
In response, HHS requested that the appeals court rehear its appeal before the full court, arguing that the decision to reject its appeal conflicts with a recent ruling by the Supreme Court in another case.
“There, the Supreme Court vacated a TRO that, like the district court’s TRO here, compelled the government to continue funding terminated government contracts,” it stated. “The Supreme Court held that such an order, despite its label, function as an appealable preliminary injunction.”
The dissenting judges also stated that the Ninth Circuit’s decision was contrary to the Supreme Court’s ruling, suggesting that both rulings involved the same issues, even though they were from separate cases.
