The ACLU's Ex Parte Voicemail To Seek An Ex Parte Injunction

Judge Hendrix took no action, but notified the government about the ACLU's action.

So much happened on Good Friday with A.A.R.P. v. Trump that one item has slipped through the cracks. The ACLU made a request for an injunction after hours on the voicemail of Judge Hendrix's chambers. At the time, I found that request problematic, but had bigger fish to fry. Judge Hendrix has now issued an order addressing that voicemail.

First, it is prohibited to engage in ex parte communications with judges.

The Code of Conduct for United States Judges explains that judges should not permit or consider ex parte communications "or consider other communications concerning a pending or impending matter that are made outside the presence of the parties or their lawyers." Code of Conduct for United States Judges, Canon 3(A)(4). Even when circumstances may require such communications, the Canon limits such communications to situations where "the ex parte communication does not address substantive matters and the judge reasonably believes that no party will gain a procedural, substantive, or tactical advantage as a result of the ex parte communication." Code of Conduct for United States Judges, Canon 3(A)(4)(b).

This rule is well known to anyone who has spent time in a district court. When I was clerking, lawyer would routinely call to ask about cases. As a clerk, the most I could discuss were procedural matters, like scheduling hearings or deadline extensions. If there was any sort of substantive question, my response was "put it in a motion." That way, all of the parties could see the request, have a chance to respond, and there would be a public record. Nine times out of ten, they never filed a motion, because they didn't want to actually make the request public. In rare cases, there was some urgent matter that needed the judge's attention. At that time, the courtroom deputy would try to get at least one lawyer from each party on the phone. When all of the lawyers were present, then and only then would the judge join the conference call. (These were the days before Zoom.) The court reporter was also present. That call was then treated as an official proceeding, that would be docketed. All of these rules are designed to eliminate the risk of ex parte communications about a case.

This sort of knowledge would largely be unknown to appellate lawyers or those who only clerked in an appellate court. It would never happen that any lawyers would ever talk to a circuit judge or their clerks. On rare occasions while clerking at the Sixth Circuit, I would see counsel at oral argument that I knew. To avoid any appearance of impropriety, I would decline to say anything more than "hello."

Second, Judge Hendrix explains that the voicemail left by Lee Gelernt, counsel for the ACLU, would seem to be an impermissible ex parte communication:

The ex parte communication from attorney Lee Gelernt, counsel for the petitioners, does not meet this narrow exception. The voicemail addresses substantive matters, with Mr. Gelernt informing the Court that his "clients at the Bluebonnet Detention Center are being given orders to sign, Alien Enemy orders, and told they may be removed as soon as tonight or first thing in the morning" and that "[t]his is related to the Alien Enemies Act." See attachment. Mr. Gelernt further stated that "[i]t appears that [his clients] are being asked to—to be—to sign papers for their immediate removal." Id. Mr. Gelernt also asked "to talk to the Judge immediately" or "have the Judge issue an order to have [his clients] not removed." Id. These communications go directly to the substance of the petitioners' first motion for a temporary restraining order (Dkt. No. 2) and the subsequent motion for the same relief (Dkt. No. 30). In discussing substantive matters, seeking to talk to the Court immediately, and alternatively seeking to have the Judge issue such an order, the Court believes that Mr. Gelernt could have gained a substantive advantage in the proceedings by obtaining a temporary restraining order and a procedural and tactical advantage by making the request off the record, ex parte, and in the evening.

I think Judge Hendrix's analysis is quite right. The mere fact that the plaintiffs perceive an emergency does not excuse the plaintiffs from following the usual rules. Then again, the Supreme Court ignored a host of procedural rules in this case, so maybe the ACLU thought the call was cool. Process formalism lives in Texas, but not at the Supreme Court.

Third, Gelernt was on notice not to leave voicemails, as the court said all requests had to be made in writing:

Mr. Gelernt left this voicemail even though the Court earlier ordered the petitioners to explain why they should not be required to provide notice to the Court based on the exception laid out in Federal Rule of Civil Procedure 65(b) or otherwise provide notice to the government. Dkt. No. 8 at 1–2. The petitioners did not file a supplemental brief explaining why the Rule 65(b) exception applied and instead provided notice to Acting United States Attorney for the Northern District of Texas Chad Meacham. Dkt. No. 11. The Court thus notes that the petitioners had not established prior to the voicemail any reason to believe that ex parte communications of any kind were appropriate.

Fourth, Judge Hendrix did not issue an order to show cause--unlike Judge Boasberg--but simply provided notice to the government:

The Court therefore enters this Order notifying the government of the contents of this voicemail. The Court did not return Mr. Gelernt's phone call and did not otherwise have any ex parte communications with the petitioners or their counsel. Attached to this Order is a transcript of the voicemail. See Attachment. Should any of the parties believe that a response is necessary, they may move for leave to respond.

Once again, the fine federal judges of Texas exhibit more restraint than the active federal judges in the Beltway. It's still not clear for me why Judge Boasberg would hold an emergency hearing, and interrogate DOJ lawyers, where he clearly lacks jurisdiction to proceed. And for those who may not know, Judge Hendrix was originally nominated by President Obama, though his nomination expired, and he was then appointed by Trump. Likewise, Judge Ramirez was appointed by President Biden. There you have it--Obama and Biden nominees who enforce the rules of procedure in a fair fashion. That is more than can be said for Chief Justice Roberts and the Trump appointees on the Supreme Court.

I still think there is more to this story regarding the timing. There was some forum shopping shenanigans by civil rights groups in the Alabama transgender case. It is not the case that only conservative lawyers bend the rules.

Comments

[santamonica811]

It's an interesting question: What does a lawyer do what there is a true emergency? (Assume a fact situation where Josh and I and you would all agree that it's an emergency. Where everyone agrees a judge needs to make a really quick decision.)

Ideally, of course, a clerk gets lawyers from both sides in a Zoom video or a phone conference call with the judge, she makes her emergency decision, and both sides get together again...perhaps as quickly as 12 hours later, the next day, with far more facts in hand, to make a more-reasoned and more-informed decision. Or, to then push the matter even further down the road, for even more fact-gathering.

But what if you cannot get both sides on the phone? I think an argument can be made that, in that sort of case, justice is best served by keeping the status quo...by allowing an ex parte motion, for just a tiny period, just to give parties a chance to participate.

And maybe this exception should only apply if justice cannot later be obtained if the status quo is not currently kept. (eg, If there is a last-minute rush to secretly kill a prisoner, or to carry him beyond the jurisdiction of the United States)

I think what has happened here, in this case, is some of the ripple effects of the Trump Administration's lies/evasions to courts. Once courts simply do not believe you when you make a representation to the court, then you (and, of course, your client) are in a lot of trouble. You sow what you reap. Which is both expected and fair, I reckon.

[Stupid Government Tricks]

This is not a court cockup, but a lawyer cockup.

I think what has happened here, in this case, is some of the ripple effects of the Trump Administration's lies/evasions to courts. Once courts simply do not believe you when you make a representation to the court, then you (and, of course, your client) are in a lot of trouble. You sow what you reap. Which is both expected and fair, I reckon.

Your partisan slip is showing. Looks like the ACLU is the one not following the rituals rules, and the judge is pissed at the ACLU, not Trump.

[Botaglove]

He's referring to the Supreme Court, which no longer believes what the DOJ is telling it, and by extension may no longer believe the 5th Circuit and its lower district courts are acting in good faith.

As for Blackman's anguish at the inutterable sin of making an inappropriate ex parte phone call. What difference does it make to the result? none. If the judge is upset about it he can send a complaint to a bar association, which can investigate to what extent this was in fact an emergency.

[Stupid Government Tricks]

You're full of it. Nowhere does santamonica811 mention the Supreme Court. In fact, just the opposite: notice those three words, "in this case".

This case, not some hypothetical Supreme Court case.

[Please, Daivd, Seek Help]

I get that you're really upset about the paragraph you quoted, but you kind of ignored the rest of the post.

In the event of a true emergency (which I'll define as an unpredictable issue not addressed by the court whose time course of resolution is faster than the court is able to respond), there are two options:

1. The procedures bend in an extremely limited way, just far enough to preserve the status quo and stop the emergency but without structurally disadvantaging any party in the context of the broader issue being litigated.

or

2. The court does nothing, allows the emergency to proceed to its conclusion, and litigates the fallout of the emergency after the fact using normal processes.

Both of these would seem to be fine approaches when approach 2 is able to mitigate the fallout. The circumstance where approach 2 would not be a fine approach is a case when an emergency is life and death, or when the unfolding of the emergency would divest the court of jurisdiction. The plaintiffs assert that this situation is feasibly either (the latter through the government's stated position that once they get someone out of the country, all ability for the case to continue to a resolution stops due to foreign sovereignty). I get that you either think the plaintiffs are wrong or don't care if they're right.

The response to this logic appears to be "some harms can't be remedied by a court", which is narrowly true, but when that argument comes up and the response is "okay, but this one can, as is evidenced by the thing you're actually arguing against, which would remedy the harm" then you've lapsed into a kind of do-nothing solipsism.

We can talk through all of this before making any kind of claims about the reliability of the government or the specifics of the case.

[David Nieporent]

I mean, the federal rules already provide for ex parte TROs.

[not guilty]

True, and the Texas Rules of Professional Conduct at Rule 3.03(a)(3) expressly contemplate applications for ex parte temporary restraining orders. The commentary to Rule 3.03 states:

4. Ordinarily, an advocate has the limited responsibility of presenting one side of the matters that a tribunal should consider in reaching a decision; the conflicting position is expected to be presented by the opposing party. However, in an ex parte proceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates. The object of an ex parte proceeding is nevertheless to yield a substantially just result. The judge has an affirmative responsibility to accord the absent party just consideration. The lawyer for the represented party has the correlative duty to make disclosures of unprivileged material facts known to the lawyer if the lawyer reasonably believes the tribunal will not reach a just decision unless informed of those facts. [Emphasis added.]

Rule 65(b)(1) of the Federal Rules of Civil Procedure states:

(1) Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:

(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and

(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

The Trump administration's shenanigans of March 15, 2025 in the J.G.G. matter, https://storage.courtlistener.com/recap/gov.uscourts.dcd.278436/gov.uscourts.dcd.278436.81.0_5.pdf , provide an ample factual predicate for seeking emergency relief ex parte in the instant case (as the Supreme Court implicitly recognized).

[Stupid Government Tricks]

And then his final paragraph, which is the one I quoted and replied to, and which you ignored, pivots to lies about this case.

[Lee Moore]

What does a lawyer do what there is a true emergency? (Assume a fact situation where Josh and I and you would all agree that it's an emergency. Where everyone agrees a judge needs to make a really quick decision.)

It seems to me that your hypo assumes its conclusion. Obviously if everybody believes that a judge needs to make a really quick decision, that implies that those - like me - who believe that a judge should do precisely squat, qua judge, unless the judge is acting properly within his lawful powers*, are included in "everybody." Therefore the circumstances assume that the judge is not bending any rules or procedures, but merely plowing his lawful judgely furrow. So where's the controversy ?

Back on Planet Earth, the real question is - when it appears that the sky is falling, should a judge disregard the procedural constraints on his powers in order to keep the sky up ?

My opinion is no, he/she/it should not. Superman, yeah. But a judge, no. It's not a judge's job to keep the sky up. A judge's job is to apply the law. Any judge who thinks that keeping the sky up is his job is suffering from galloping megalomania and should be fired instanter. He can then acquire a cape, at his own expense, and proceed as he thinks best.

* it always strikes me as odd that this is controversial. Should the President remain within his lawful Presidential powers while presidenting ? Should a Senator while senating ? Or a police officer while policing ? A fortiori, shirley, for a judge whose whole job rests on the primacy of law.

[Stupid Government Tricks]

Whoops! Pulled an ACLU on myself.

[Commenter_XY]

So what is the penalty for ex parte communications?

[tylertusta]

Depends. It runs the range from a scolding by the judge to sanctions to having the case tossed.

[not guilty]

There should be no penalty whatsoever. Rule 3.03(a)(3) of the Texas Rules of Professional Conduct expressly contemplates ex parte applications for temporary restraining orders. https://www.texasbar.com/AM/Template.cfm?Section=Home&ContentID=27271&Template=/CM/ContentDisplay.cfm

[Malika the Maiz]

I’m not sure what is more amusing, Blackman pretending the government’s lawyer stating the government reserved the right to fly out people the day following Good Friday doesn’t exist, pretending the video of the migrants being bused towards the airport doesn’t exist or pretending that judge Kacsmaryk never existed. But that’s what it’s like to serve a Mad King, you have to keep pretending things that come to light undermining your past defenses don’t or never existed.

[Malika the Maiz]

Don’t forget (or maybe do forget) Alito!

https://thehill.com/opinion/judiciary/5258123-why-is-justice-alito-so-trusting-of-the-trump-administration/

[Zarniwoop]

https://www.dorfonlaw.org/2025/04/is-alitothomas-dissent-from-1-am-order.html

"My overall take is this: Justice Alito raises some procedural objections that might be valid in a different case involving a different presidential administration. However, given what we know about the current administration, his insistence on a strict interpretation of various procedural rules at the cost of substantive justice implies that he and Justice Thomas are either naive about the Trump administration, disingenuous in their reasoning, or simply callously indifferent to the fate of the Venezuelans."

[Drewski]

Josh has written a very confused blog post. Let's clarify: The ACLU was applying for a temporary restraining order. It is completely appropriate for this to be done ex parte. The federal rules contemplate this.

However, the movant must file a written notice with the court detailing efforts to give notice and why it shouldn't be required. The ACLU should have filed such notice electronically before calling, or at least notified the judge they had it written up and ready for Monday.

Judge Hendrix is correct that without such notice he shouldn't have considered the TRO. The ACLU fucked up. Fortunately, the Supreme Court (which isn't bound by FRCP) allowed an exception.

The idea that this could lead to attorney discipline is laughable, although someone at the ACLU is probably in the doghouse.

[David Nieporent]

The idea that this could lead to attorney discipline is laughable, although someone at the ACLU is probably in the doghouse.

Given the exigencies of the situation caused by the bad faith of the government in JGG and Garcia, I doubt anyone at the ACLU is too upset at the attorney.

[rloquitur]

What "bad faith"? The government is not required to stay its hand while a court considers stuff, nor is it required to do anything more than ask El Salvador to allow poor Kilmar to travel here.

[Josh R]

This wasn't about Garcia. It was about Trump illegally deporting additional people held in Texas to El Salvador.

[David Nieporent]

The government is not required to stay its hand while a court considers stuff,

Um, you're making my point for me. That is in fact bad faith, and justified the ACLU's approach here. If the administration takes the position that it can sneak people out of the country while the court is considering whether it can take them out of the country, then that is a basis for seeking immediate, ex parte relief. The administration in that case also defied Boasberg's orders, or did you forget?

nor is it required to do anything more than ask El Salvador to allow poor Kilmar to travel here.

Again: that's more bad faith.

So when you said, "What bad faith?" it turns out that you knew exactly what the bad faith was.

[rloquitur]

So let me get this straight--the Article III power extends to holding it against the government when it deports illegals in the absence of a court order. In other words, the mere pendency of a hearing operates as a sotto voce stay? Regarding J.G.G., it's a bit rich for Boasberg to have his panties in a wad over the deportation of illegals (and the failure to "turn the planes around" when they were outside the US) when he gave a slap on the wrist to a government official who doctored evidence in an ex parte proceeding.

As for Kilmar, since when is operating within his rights "bad faith." The President is entitled to take Bukele's "no" at face value, and it is bad faith for that lawless hack "Judge" Xinis to suggest otherwise.

[David Nieporent]

I proposed a new law ("law" in the sense of observation, like "Godwin's Law," not in the sense of rule) a few weeks ago on Twitter, and since I did, it has never once failed me: every single tweet (and this extends to comments posted on places other than Twitter) that starts, "Let me get this straight" does not in fact ever get it straight.

You will note that my comment said nothing about "Article III" or about the law. I said bad faith. The term "bad faith" means something different than "illegal." (That's why there are two different terms.) That you don't grasp the concept of bad faith is… well, let's just say it's on brand for you. The entire point of a TRO is an expedited process to fill the gap before a preliminary injunction, freezing the situation until a court can consider it in more detail. To smirk and say "Hah! I rushed to act even faster than the TRO process in order to irreparably harm you!" is the literal definition of bad faith.

Regarding J.G.G., it's a bit rich for Boasberg to have his panties in a wad over the deportation of illegals (and the failure to "turn the planes around" when they were outside the US) when he gave a slap on the wrist to a government official who doctored evidence in an ex parte proceeding.

Did you actually get expelled from logic class? First, Boasberg sentenced Clinesmith pursuant to the sentencing guidelines and the PSR. Second, this isn't about Boasberg; it's about the parties. Third, "Person A was harmed by something, so therefore there's nothing wrong with harming person B about something entirely different," is immoral and lunatic. Even if the relative harms were similar, which they were not.

As for Kilmar, since when is operating within his rights "bad faith."

First, if you're referring to Trump, "operating within his rights" is a category error; as president, he has powers, not rights. Second, there's that complete failure on your part to grasp the concept of bad faith again. Trump illegally harmed Garcia. A decent human being would go above and beyond to rectify that illegal act. He would not smirk and say, "I did the bare minimum that I can be forced to do." (Note that despite your claim there is no evidence Trump in fact even asked.)

[rloquitur]

The Administration, acting in what it believes is the best interest of society, doesn't want Kilmar back. He was mistakenly sent to the wrong country. He's a citizen of El Salvador. He's back there. It's not bad faith for someone acting in what he believes is the best interest of society to choose not to force the hand of Bukele.

As for preserving the status quo, once again, to hold it against the administration, that's an encroachment on executive power. That's my point, or are you too obtuse to understand.

"within [my[[his] rights" has a connotation of ability to do so, not necessarily a legal right. Ugh, you are a pedant.

[David Nieporent]

The Administration, acting in what it believes is the best interest of society, doesn't want Kilmar back.

The president takes an oath to the constitution, not to "what [he] believes is the best interest of society." FDR may have believed that interning Americans of Japanese descent was in the "best interest of society." So what? Every one of the Biden administrations covid actions were based on his view of the best interest of society. So what? Kevin Clinesmith altered that document based upon his view of the best interest of society. So what?

"within [my[[his] rights" has a connotation of ability to do so, not necessarily a legal right. Ugh, you are a pedant.

Better that than your choice to be a sociopath.

[rloquitur]

Awwwww, because I don't care that some illegal wife-beater got deported to his home country---I guess I am then. 🙂

[Sarcastr0]

So it can't be bad faith so long as you mean well in the big picture?

And I'ma call bullshit that you or Trump are acting for the best interests of society. Every post you make is about how you're so mad at the libs and this justifies any and all actions by Trump.

[Zak Meh]

You are getting annihilated here, and it is very amusing. Don't feel too bad though. You have the much more difficult side of this issue, and David does this for a living.

[rloquitur]

Hardly. DN misses the point. In the Boasberg AEA case, the "judge" is of the opinion that the government's rush to deport was not cricket, as there's some sotto voce obligation on the part of the Executive to preserve the status quo during the pendency of a hearing. Well no. The judge could dress it up by saying that the President is being indifferent to the so-called rights of illegal immigrants, but the effect if the same--the judge wants to use his Article III power to punish the government for actions it took in the absence of an Article III order. That's daft.

As for Kilmar, he was deportable--they just sent him to the wrong country. You may think that Trump should play nice and let him back here, but he doesn't have to do it, and the judge has no business holding that against the government. Sorry, judge, his deportation is a fait accompli.

The upshot is that the courts must respect these decisions as they are the President's to make. To quote Al Gore, "No controlling legal authority."

When the shoe was on the other foot, e.g., covid-19 restrictions, the government was given huge deference, and the courts were cool with that. So, for example, the ban on playing golf in Michigan was justified by AG Nessel on racial equity grounds.

I can't wait until the first challenges to Plyler v. Doe pop up. Your defense of the Biden student loan forgiveness will bite you in the ass.

[David Nieporent]

Hardly. DN misses the point. In the Boasberg AEA case, the "judge" is of the opinion that the government's rush to deport was not cricket, as there's some sotto voce obligation on the part of the Executive to preserve the status quo during the pendency of a hearing. Well no. The judge could dress it up by saying that the President is being indifferent to the so-called rights of illegal immigrants, but the effect if the same--the judge wants to use his Article III power to punish the government for actions it took in the absence of an Article III order. That's daft.

Just to be clear, this is entirely, 100%, false. Boasberg is contemplating contempt proceedings because they violated actual court orders. I — and likely judges besides Boasberg — are simply also noting that nothing the administration says can be trusted because it acts in bad faith, as evidenced by rushing to try to deport people before a hearing could be held on whether they could be deported.

[rloquitur]

Ha ha. Yeah, they violated oral statements the terms of which were not memorialized in the written order, and then the judge goes off on context.

But forging docs in an ex parte proceeding in order to snoop on some dude--let's feel sorry for the guy because he's gone through so much. If I were Drew Ensign, I'd think of some way to get that in some of the papers. This judge is out of his lane.

The Zadvydas clock is ticking--wait until they try to get this criminals released based on that case.

[David Nieporent]

Is this now Blackman's sixth post on the subject, without ever addressing the merits of the situation?

For example, the ACLU filed a reply brief with SCOTUS in which it explained exactly what the urgency was and why immediate relief was appropriate. Blackman, of course, doesn't even acknowledge it, let alone discuss it. (One thing it points out is that the "The ACLU only gave the judge 42 minutes" is just a lie. He had 14 hours. During which he was doing something other than his job.)

[Zarniwoop]

The ACLU motion and declarations make it abundantly clear why the late-night emergency action by the S.Ct. was absosmurfly appropriate.

The gov't is upset that it got caught in the act of trying to egregiously flout the S.Ct.'s April 7 order requiring due process for AEA deportations ... and got caught before they got the flight off the ground, so they could smugly say "oopsie, too late to do anything now!"

Application

Supplemental materials

[Zak Meh]

I assume he is just trying to get the message out that he is a Law Professor Supporter of this administration, not trying to make everyone dumber on these issues. Slowing down and giving a complete picture work against this purpose. Once he gets his judgeship, he will take his time on legal issues, I'm sure, and not just rush out messages supporting the government.

[Glaucomatose]

Blackman's increasingly untethered posts over the past month - "God bless Samuel Alito and Clarence Thomas"? - are as clear an audition roll for a Trump appellate judicial appointment as anything Aileen Cannon managed to put together in two years of nonsense out of Florida.

[Zak Meh]

Look, if you had one shot or one opportunity
To seize everything you ever wanted in one moment
Would you capture it or just let it slip?

[Foxwhelp]

Not only not addressing the merits, but also not addressing the real and damaging procedural puzzle here. An emergency call to the judge’s office when a lawyer learns that the government is taking steps to remove to a prison in El Salvador, from which theGoverment contends there can be no return and El Salvador insists there can be no release is not particularly surprising or damaging. Pretty much the entire reason rule 65(b) authorizing temporary restraining orders exists is a recognition that sometimes things are moving too fast to require input from the other party before relief is granted. The rule does require applications to be written but I find it hard to see the harm in a call to that judge to make sure he’s aware of the speed at which the crisis is unfolding.

On the other hand, I find it impossible to understand Judge Hendrix's order stating "To the extent either party seeks emergency relief, it may file a motion to do so. If an emergency motion is filed, the opposing party shall have 24 hours to file a response." Rule 65 specifically authorizes relief without notice and the judge's order seems to foreclose in advance any such request for relief. Why the hell is that?

[Drewski]

"Rule 65 specifically authorizes relief without notice and the judge's order seems to foreclose in advance any such request for relief. Why the hell is that?"

At the very least, Hendrix is giving the ACLU cause to immediately appeal any emergency application as constructively denied if fast action is necessitated.

[Michael P]

Bring out the fainting couches! Lawyer for American Crazy Leftists Union violates FRCP, gets called out by judge, Internet crank asserts this is cause for emergency appeal.

[Foxwhelp]

"Bring out the fainting couches! Lawyer for American Crazy Leftists Union violates FRCP, gets called out by judge, Internet crank asserts this is cause for emergency appeal."

Of course we're all internet cranks. But it seems you're an internet crank who is happy to ignore the fact that just days after a unanimous Supreme Court held that "AEA detainees must receive notice after the date of this order that they are subject to removal under the act. The court noted that notice must be afforded within a reasonable time and in such a manner as to allow them to actually seek habeas relief in the proper venue before such removal occurs." the administration was putting people on buses to the airport less than 24 hours after giving them notice, a notice that did not in any way inform them of their right to relief. Which, i think, puts you into a *special* order of internet crankery.

The ACLU sought a temporary restraining order in the ordinary way. This judge -- departing from the practice of other judges who have considered the same application, including a Trump appointed judge for the Southern District of Texas -- refused to grant that order in part because he contended that the Supreme Court's order in JGG that i quoted above guaranteed that the administration would suspend its efforts to remove people, without trial, to permanent imprisonment from which no release is possible. And instead of being shocked by the administration's flagrant disregard for the Supreme Court, you and Blackmun get bent out of shape because of a call from the ACLU to the court to inform them that buses are on the road. A call that, contrary to the contention of Judge Hendrix could not have resulted in any meaningful procedural unfairness because Rule 65 specifically authorizes the issuance of a temporary restraining order without notice to the other side. And you ignore the serious threat to the foundations of our republic created by an administration that is determined to permanently imprison people without trial. And "foundations" is not a word chosen carelessly. This is ancient stuff, older than the Constitution itself and seen by the founding fathers as a more important guarantee of liberty than democracy. Correctly so it seems as democracy has given us a president who is indifferent to individual liberty and a Congress uninterested in reigning in his dictatorial tendencies. It's only the courts seeking to enforce these ancient procedural rules that actually are demonstrating that they place value on liberty

[CommentMonkey]

"A call that, contrary to the contention of Judge Hendrix could not have resulted in any meaningful procedural unfairness because Rule 65 specifically authorizes the issuance of a temporary restraining order without notice to the other side."

If you look at what the judge wrote, he pointed out that the ACLU never articulated any reason ex parte communication was necessary . It still hasn't. The fact that Rule 65 authorizes TROs without notice in appropriate circumstances doesn't mean that, absent those circumstances, an ex parte communication "could not have resulted in any meaningful procedural unfairness."

I suspect what irritated Judge Hendrix is that the VM could just as easily been an email, in which case the government could have been copied. Email is more likely to be seen and reviewed right away (especially if the judge and law clerks are copied) than a message left on an office phone line. Thus, the ACLU lawyer deliberately chose a slower and less reliable method of communication, the only advantage of which was that he could make representations of fact to which the government would not have an opportunity to respond. Regardless of the merits, it is no surprise that the judge called this out.

[David Nieporent]

Thus, the ACLU lawyer deliberately chose a slower and less reliable method of communication,

Slower? How it actually plays out in any given situation is fact specific, but if I needed something instantaneously, I would always choose a phone call over an email. (Sure, I'd do both, but I'd start with a phone call. When you send an email you have no idea when the recipient will actually see it.) (Actually, if it were a person whose cell I had access to, which I assume they didn't here, I'd start with a text. Then a phone call. And only then an email.)

[CommentMonkey]

Maybe so, during regular business hours. But the VM was apparently left with the judge's office after hours. I feel like you do that expecting they will listen to the message the morning of the next business day. But if you send an email to the judge and law clerk, you pretty much know someone is putting eyes on that message within a couple hours - it's going to pop up on the law clerk's phone at least.

Even if the phone call is the first move, it makes very little sense not to follow your approach and send an email right after leaving the VM, particularly if the situation is urgent. Not doing that suggests to me the lawyer didn't want the government to know what was being said until after the judge reacted to the VM.

[Foxwhelp]

Have you looked at the transcription of the voice mail? There's nothing there that it's easy to believe anyone would try to keep secret from anyone else. The answer to the phone call/email question is almost certainly that Lee Gelernt is old -- of a generation that still ses the telephone as the fastest way to reach a person. In addition, when you place a phone call and someone answers you know the message was received and when. If no one answers, you know the message wasn't recieved. I'm sure Gelerent was hoping the call would be answered and left a disappointed voice mail when it wasn't.

And of course the whole context of this mess was the ACLU taking every action they could think of in every plausible and some implausible forums to ensure that their clients would not be transported to permanent imprisonment by a government acting in bad faith before courts were given an opportunity to consider the rights of those clients. It was an absurdly busy day for Gelernt

[David Nieporent]

Have you looked at the transcription of the voice mail?

I had not, so I thank you for prompting me to do so. That's it??? I had assumed it was a detailed application for relief based on the judge's tantrum. But… that's it? I thought the judge was a jackass for the way he was handling the case before, but now that I see what caused his hissy fit, I really wonder about the guy. It was entirely proper for him to post it on the docket, and to state that he did not consider its substance. (Though since he didn't bother to grant any relief anyway, that's superfluous.)

This wasn't even an ex parte application for relief! (Which would've been entirely appropriate.) It was just an attempt to schedule such an application, and to explain why it was urgent.

(For those people following at home, when the ACLU first filed this several days earlier asking for a TRO, Hendrix denied it on the absurd grounds that the administration had said it didn't intend to deport AARP/WMM at this time, and that if it changed its mind it would give notice first. Hendrix further relied on the fact that SCOTUS had already ordered the administration in JGG to provide notice and the opportunity for a hearing and the ACLU didn't have evidence that Trump would disobey a court.

So here the ACLU developed evidence that the administration did intend to disobey SCOTUS, and… Hendrix ignored it and said he'd get to it in a couple of days.)

[Drewski]

"administration had said it didn't intend to deport AARP/WMM at this time, and that if it changed its mind it would give notice first"

No, the administration said it would "notify the court," but did not commit to doing so in advance of any deportations.

[David Nieporent]

No, the administration said it would "notify the court," but did not commit to doing so in advance of any deportations.

Good point; my summary was imprecise. They implied they'd notify first, and with any decent human beings that would be the best reading, but these people aren't, and so it isn't. (Although they like to come as close to the line as possible, so they'd probably put these guys on the plane, wait until it was taxiing down the runway, and then tell the court. And then claim that they just didn't know how to reach the pilot in time.)

[Foxwhelp]

"At the very least, Hendrix is giving the ACLU cause to immediately appeal any emergency application as constructively denied if fast action is necessitated"

Touche!

[Botaglove]

Blackman and his flock are really just playing the long game here. Maga's entire shtick is Turn About is Fair Play, or more commonly What About!!?? I mean there are still people who comment here who want to insist that Biden flouted a direct court order regarding student debt.

Blackman complaining about procedural irregularities here is just the set up for him later giving permission to the DOJ and Trump generally to flout whatever procedural rules exist, on the grounds that it's just payback for A.A.R.P. He's actually probably pretty happy. The ground is now clear to defend anything the DOJ does, no matter how grievous.

[rloquitur]

https://redstate.com/nick-arama/2025/04/22/mn-state-employee-consequences-for-alleged-tesla-damage-n2188133

Yeah, we are going to stick it to you as long as you stick it to us.

[LoganMankins]

"Once again, the fine federal judges of Texas exhibit more restraint than the active federal judges in the Beltway."

Eihter blackman has been in a coma from 2021-2024 or he suffered catastrophic brain damage that cause him to lose memory.

[Botaglove]

A man hears what he wants to hear, and disregards the rest.

[Sarcastr0]

More us vs. them analysis. Suitable for talk radio, not a law blog.

I do not know the intricacies of federal practice here, but the people on here I trust and are in the biz seem to think Blackman, who isn't in the biz, doesn't know what he's talking about.

[Mr. Bumble]

"...doesn't know what he's talking about."
Much like you in most instances.

[Sarcastr0]

"Once again, the fine federal judges of Texas exhibit more restraint than the active federal judges in the Beltway."

No one's gonna believe this.

[rloquitur]

Do you guys wanna know why MAGA is so angry?

Case in point: https://www.powerlineblog.com/archives/2025/04/feeding-our-fraud-ellison-goes-full-sgt-schultz.php

Keith Ellison was supposed to have our (i.e., the taxpayers') back. But no. He made common cause with a bunch of immigrant criminals. We know viscerally that Dems care more about importing immigrants because they think they can ride that wave to electoral dominance.

[Sarcastr0]

Seems like you're angry because you go out to websites that exist to through spin and anecdotes make and keep you angry.

Angry at Dems, but also just angry at America.

Though you impress me by keeping things angry from tiny issues from like 10 years ago, so I don't know why you bother with the new stuff.

[rloquitur]

Because I watch types like you, who whine about the possibility that a homeowner could use violence to expel a squatter (i.e., you're whining about the exercise of Fifth Amendment rights by a citizen) and who looked the other way from, or cheerleaded, clear abuses now have your panties in a wad because, quelle horreur, an illegal is deported. These so-called "tiny issues" weren't so tiny, and your side stood mute or were thug government fan-boys. So now the shoe is on the other foot, and Trump is playing by rules that your side established and you expect us to care?

One "tiny" example--the crazy E. Jean Carroll lawsuit. Isn't the civil liberties guy in you at all offended by that case? How can someone defend himself against an allegation of misconduct that can't even be placed within a year time period? How about misgivings about a swearing contest vis-a-vis stale claims? No. Or an Attorney General candidate who campaigns on "getting Trump" and then brings at the absolute best, a creative and completely unprecedented lawsuit in a very unfavorable venue. (The case is absolute BS---agent banks and the prospective borrowers would negotiate the credit the borrower would get for a particular piece of RE). Or maybe the slap on wrist treatment of a Missouri congressman who pulled a fire alarm to interfere with proceedings while you bayed for the blood of some grandma who walked around the Capitol Building and left. That Congressman should have gone to prison for as long as the dude with the horns got.

[Botaglove]

It bothers you that a jury who heard both sides found Carroll much more believable than Trump on the question of whether he raped her?. Not much of a believer in traditional American legal systems.

And yes I am using rape in its common meaning, not the idiosyncratic way New York Law defined it.

[rloquitur]

That's not what I said at all. The jury should have never heard it. Fundamental fairness dictates that that a super-stale claim like that (I think the SOL had already passed and was revived.) shouldn't be allowed to be brought. Could you defend yourself against a charge like that? You shouldn't have to.

[Sarcastr0]

Fundamental fairness is some good babytantrum.

[Sarcastr0]

Ahhh yeah...that's the good stuff.

[rloquitur]

Keith Ellison abetted fraud by a bunch of immigrants. Of course, that doesn't make a simp like you angry.

[David Nieporent]

To be clear, nothing in that link says that Ellison "abetted fraud." But it's yet another "Someone once did something bad somewhere, so different people doing different wrong things against different victims is fine."

[Mr. Bumble]

How about willfully ignored possible fraud?
For the record dozens fo people have been found guilty or pleaded guilty to fraud in this case.
More trials to come.

[rloquitur]

It was allowed to go on because Keith Ellison leaned on state agencies.

[Kords]

It was a voicemail. Sometimes emergent matters require a phone call versus a written filing. If the ACLU had gotten ahold of the judge and then objected to efforts to include the opposing side's attorney, that would be another matter. But a voicemail outlining the issues and the substance of what is going on is not improper under the circumstances. It is a request for the judge to call them back, at which point they could include the opposing attorneys on the call.

This gives away the whole game: "In rare cases, there was some urgent matter that needed the judge's attention. At that time, the courtroom deputy would try to get at least one lawyer from each party on the phone. When all of the lawyers were present, then and only then would the judge join the conference call."

If that wasn't improper, then it isn't improper to leave a voicemail outlining the "urgent matter."

[Zarniwoop]

TL,DR: Josh has his panties seriously bunched because Karoline Leavitt didn't get to smirk for the cameras and say "oopsie, we did it again!"

[David Nieporent]

Yup. Strip away all the verbiage and back and forth, and we've got a situation in which the administration has suffered precisely zero harm unless it intended to do exactly what the ACLU accused it of intending to do.

[rloquitur]

They mistakenly sent an illegal wife-beater to the wrong country. Bukele will just send this bozo to Guatemala at some point.

[David Nieporent]

Your claims are both wrong and also utterly irrelevant to this discussion, which has nothing to do with Garcia.

[rloquitur]

The idea is that government blew off courts before . . . .

[Zarniwoop]

Doesn't seem to be any doubt whatsoever about what the gov't intended to do. From the ACLU declaration:

8. YJSM stated that when he was given the notice in the afternoon or evening of Thursday, April 17, 2025, the person who gave him the notice told him he would be deported within 48 hours. Separately, a staff member at the detention center told him he would be deported before the sun rose on Saturday, April 19, 2025.

9. YJSM further stated that when he and other individuals were given the notices, they were taken into another dorm full of men who also had been given the notices. That dorm that YJSM was taken to included approximately 30-50 individuals. YJSM said everyone in this new dorm had been told they were being deported. No one would tell them where they would be deported to.

10. FGM stated that when he was given the notice on Thursday, April 17, 2025, the officer told him that he would be deported in the evening the next day, April 18, 2025.

11. FGM further stated that throughout Friday, April 18, 2025, more and more individuals were receiving the notices and being told that they would be deported “under the President’s law.” He estimated around 100 people were given the notices and told something similar about the notices and deportation.

12. SMR stated that when he was given the notice in the morning of Friday, April 18, 2025, the officer told him he may be deported that night.

Government attorney Drew Ensign told a court on Friday, April 18: “I’ve spoken with DHS, they are not aware of any current plans for flights tomorrow, but I have also been told to say that they reserve the right to remove people tomorrow.” That court (Boasberg) eventually declined to act, because he lacked jurisdiction after the April 7 S.Ct. order.

But it seems abundantly clear that a AEA deportation flight was in fact currently planned, it wasn't a small operation, and lots of people knew about the plans.

So ... was Ensign lying to the court, or did someone lie to Ensign with the express purpose of getting an attorney to submit known-false information to the court?

[Kazinski]

Speaking of TdA, Bukele has made an offer to Venezuela to let every TdA prisoner he is holding go, and return to Venezuela.

https://www.theguardian.com/world/2025/apr/21/el-salvador-president-nayib-bukele-prisoner-swap-venezuela

Maybe if a deal is made then these TdA prisoners can be sent back to Venezuela directly.

[David Nieporent]

Since many of those people were in the U.S. precisely because of fear of persecution in Venezuela, that is less of an offer and more of a threat.

[Mr. Bumble]

Your bleeding heart is making a mess of the thread.

[Sarcastr0]

You want these people killed?

[Kazinski]

Well give a choice to stay if they want.

But if its that bad do you think we should intervene?

[Sarcastr0]

The fuck is wrong with you.

[windycityattorney]

Didn't this occur after this Court denied ACLU's request for a TRO? And the Court denied that request based on the government's representations to the Court that they weren't planning on renditioning any detainees to El Salvador so there was not a need for immediate relief? The contemplated renditions/deportations were not imminent?

So did the govt lie about that? It appears they did based on what we know about the notices and the timing of deportations. This vmail could just be a backdoor way of telling the Judge that the DOJ is not a credible source of information for the Court to rely on.

Which at this point cannot be denied. NOBODY who read the US SUP CT's opinion regarding notice and opportunity to file habeas would believe that a notice given to an intended recipients in a foreign language (to them) and which fails to tell them anything useful is adequate notice NOR that giving them a mere 24hrs or less to file habeas is meaningful opportunity to contest their removal. Most of the detainees were just moved to that facility because the GOVT in another bad faith move has been moving detainees from jurisdictions with TRO's in place to jurisdictions that don't have TRO's in place. Like from the Southern Dist of Texas (with a TRO) to the Northern District (without a TRO).

There are something like 5 federal jurisdictions with TROs. In each of those the ACLU is seeking class action certification which the govt is firmly opposing. The DOJ is consistently and repeatedly acting in bad faith when it has AEA detainees in one of those jurisdictions that would be a part of the class and moves them outside that jurisdiction and says "we didn't give that detainee notice yet so they can't be in the class" even though the whole fucking point of moving them is so they can rendition them to El Salvador. Just wait til they get to the northern dist of Texas to give them notice and we won't technically be violating the TROs?? Is that the shell game they are playing? It's a veritable clinic in bad faith.

The DOJ as presently constituted needs nuked from space and to start over from scratch. Trump stuffing its upper ranks with MAGA personal lawyers of his is breaking whatever ethics they claimed to possess. Hope they all get disbarred after all this is settled and the full truth of their bullshit shenanigans comes to light. Which it will. But not before untold damage is already done.

[Zarniwoop]

So did the govt lie about that? It appears they did based on what we know about the notices and the timing of deportations.

As I noted above, government attorney Drew Ensign told a Judge in WashDC (Boasberg) on Friday, April 18: “I’ve spoken with DHS, they are not aware of any current plans for flights tomorrow, but I have also been told to say that they reserve the right to remove people tomorrow.”

It is hard to see how that gov't representation is possibly truthful in view of the evidence of attempted AEA deportations after midnight on Saturday April 19, when the gov't had been informing detainees on April 17-18 of very imminent AEA deportations.

The question is no longer "was the government telling the truth?" - they weren't. It's become who is responsible for feeding false information to the district court in DC? That is, was Atty Ensign in possession of facts himself and knowingly deceiving the court, or did someone deliberately (cough*Stephen Miller*cough) feed him false information about DHS "not being aware of current plans" to present to the court? Personally I lean towards the latter- Ensign was misinformed so that he would tell the truth as he knew it, but the gov't as a whole was nonetheless deliberately deceiving the court.

But either way, the administration is rapidly making it difficult for any judge to trust factual representations from gov't attorneys. That's bad.

[David Nieporent]

Not this case, but a closely related one: we have the first TRO holding that the AEA does not apply to TdA, which is not a foreign country or government. The TRO is in effect only in Colorado - no nationwide injunction.

https://storage.courtlistener.com/recap/gov.uscourts.cod.243061/gov.uscourts.cod.243061.35.0_1.pdf
​
​
I was an ACLU member many years (decades, in fact) ago, but I gave it up many years (decades, in fact) ago because I thought they were more interested in progressive causes than actual civil liberties. But the events of the last couple of weeks and months remind me that they still do irreplaceable work, and I'm going to toss some money their way.

[Mr. Bumble]

The better to help them defend Hamas supporters.

[Botaglove]

You're not very bright, are you?

[Zarniwoop]

Looks like the habeas petition only requested that the class cover D.Co., so that's what they got. Were I filing these for the ACLU, I'd ask for a nationwide class, and request a district-wide class in the alternative. The questions of law regarding statutory construction of the AEA and the factual basis for whether we are "at war" etc. with Venezuela are pretty clearly amenable to nationwide determination, and pretty silly to have to resolve in separate-but-identical cases in 96 different federal judicial districts.

[David Nieporent]

The problem is that in addition to increasing skepticism about nationwide injunctions, it's also questionable in light of JGG's holding that a habeas claim must be brought in the place where the victim was being held whether a nationwide injunction is permissible in these types of cases. Since the ACLU is already prepared to litigate in multiple districts, it doesn't make sense to risk defeat on that basis.

[Zarniwoop]

Those are good observations. But where a case needs to be brought is fundamentally a question of venue. Per JGG proper habeas venue is the district where the named plaintiffs are in custody. That does not necessarily preclude a nationwide class cert also being available for a habeas class action, if the criteria of Fed R Civ P 23 are met. And also why a clever plaintiff would request both nationwide and one-district in the alternative; a determination on appeal that a class cert was too broad would not be a defeat for the whole case, only a subsequent limitation and size reduction of the proper class.

But yes, the ACLU is almost certainly prepared to litigate in every district that has an ICE detention facility in it.

[Zarniwoop]

Looks like the Colorado judge is being clear that ICE can't try Texas-style holiday weekend deportation shenanigans:

Because Petitioners have met this burden, the Court orders that Petitioners and members of the provisionally certified class shall not be transferred outside the District of Colorado. The Court orders the following regarding the notice Respondents and the government must provide Petitioners and the provisionally certified class of individuals they seek to represent: Respondents shall provide a twenty-one (21) day notice to individuals detained pursuant to the Act and Proclamation. Such notice must state the government intends to remove individuals pursuant to the Act and Proclamation. It must also provide notice of a right to seek judicial review, and inform individuals they may consult an attorney regarding their detainment and the government’s intent to remove them. Such notice must be written in a language the individual understands.

Seems about right; ICE should think about what FAFO stands for.

[David Nieporent]

Yes. Even though SCOTUS said in JGG that the administration had to provide notice and a reasonable opportunity for a hearing, the admin took the position in this case that a mere 24 hours (!) was sufficient. (The problem with being sneaky and acting in bad faith is that unless your opponents are morons, it only works a maximum of one time before they counter. Since the ACLU's lawyers are not morons, they realized that they needed to have the court specify what reasonable notice is, instead of just saying "reasonable" and leaving it up to the administration to decide.)

[Darth Buckeye]

I remember getting a phone call from a federal magistrate asking for my thoughts about a motion filed by the opposing counsel. I think it was a request for an extension so counsel could have time to find more evidence. "I think this is an ex-parte communication," was my first thought. I didn't say that. Instead I told the magistrate that since I was a government lawyer, since my primary purpose was to promote justice, maybe it would be best to let opposing counsel have what he was asking for.

Time passed. That opposing counsel is now the federal magistrate in that jurisdiction.

[arpiniant1]

Josh whining about lawyers doing something he admits lawyers do, or try to do, all the time, while ignoring the administration actually trying to ignore the court.