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 part 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.

[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 Rul3 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 atribunal 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.

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.

[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.

[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/

[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.

[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.)

[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

[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.