In Andrus we held the denial of the TRO was tantamount to the denial of a preliminary injunction because of the presence of two factors: the denial of the TRO followed a "full adversary hearing" and "in the absence of review, the appellants would be effectively foreclosed from pursuing further interlocutory relief."Summary of this case from Reli. Tech. Ctr., Ch., Scientology v. Scott
Argued and Submitted July 8, 1980.
Decided July 31, 1980.
Robert B. Thum, San Francisco, Cal., for plaintiff/appellants.
Francis M. Goldsberry, II, Sacramento, Cal., Thomas J. Shephard, Stockton, Cal., for defendant/appellees.
Appeal from the United States District Court for the Eastern District of California.
Before BROWNING, CHOY and FARRIS, Circuit Judges.
Appellees' motion to dismiss the appeal is denied. The denial of a request for a temporary restraining order is appealable where, as here, the denial followed a full adversary hearing and, in the absence of review, the appellants would be effectively foreclosed from pursuing further interlocutory relief. In such cases the denial of the temporary restraining order is tantamount to the denial of a preliminary injunction. See Levesque v. Maine, 587 F.2d 78 (1st Cir. 1978).
Because important public policy issues are involved and time is of the essence, we exercise our option under Fed.R.App.P. 2 to suspend the normal requirements of appellate procedure and reach the merits of this appeal. Our sole inquiry on review is whether the district court abused its discretion in denying relief. Miss Universe, Inc. v. Flesher, 605 F.2d 1130, 1133 (9th Cir. 1979). Although the matter is not entirely free from doubt, we are not prepared to say the district court abused its discretion or erred as a matter of law in concluding that appellants' showing of probable success on the merits was insufficient to entitle them to preliminary injunctive relief.
This court's stay order of June 26, 1980, is hereby vacated and the cause affirmed.