In a fiery seven-page concurrence, U.S. Circuit Judge for the Fifth Court of Appeals James C. Ho criticized seven U.S. Supreme Court justices, including three appointed by President Donald Trump, who issued a ruling that temporarily blocked the federal government from deporting three Venezuelans under the Alien Enemies Act.
The Tuesday order came in a case that was filed April 16 by three petitioners, identified by their initials only, that was assigned to U.S. District Judge James Wesley Hendrix. Judge Ho said the purpose of his concurrence was to “state my sincere concerns about how the district judge as well as the President and other officials have been treated in this case.”
“I worry that the disrespect they have been shown will not inspire continued respect for the judiciary, without which we cannot long function,” he wrote.
In the underlying suit, three individuals representing a putative class of plaintiffs are seeking an injunction against their removal from the country under the Alien Enemies Act. Judge Hendrix had on April 17 denied the petitioners’ motion for a temporary restraining order.
The three appellants filed notice of appeal the very next day, April 18, explaining they were appealing the ruling on the TRO as well as “the constructive denials of petitioners’ motions for class certifications and renewed motion for temporary restraining order.”
That same day, a Fifth Circuit panel comprised of Judges Ho, Cory T. Wilson and Irma Carrillo Ramirez issued a five-page order denying the appellants’ motion for a temporary administrative stay and injunction as “premature.”
“We do not doubt the diligence and ability of the respected district judge in this case to act expeditiously when circumstances warrant,” the panel wrote in the per curiam opinion. “Petitioners insist that they tried to proceed before the district court in the first instance, and that the district court simply ‘refus[ed] to act.’ But the district court’s order today indicates that petitioners gave the court only 42 minutes to act — and did not give respondents an opportunity to respond.”
In a concurrence, Judge Ramirez wrote that case law instructs the court that what constitutes an “effective denial” of a motion is “contextual” and should be determined on a case-by-case basis. But in this case, the deadline the petitioners placed on Judge Hendrix was “unreasonable.”
“Here, the petitioners filed a motion for a temporary restraining order just after midnight on April 18, 2025,” she wrote. “Around noon the next day, they filed a motion seeking a status conference and informing the district court that they would construe its failure to act within 42 minutes as a constructive denial of their motion. The ensuing appeal, after the district court failed to meet this unreasonable deadline, divested the district court of jurisdiction.”
Recognizing that the declarations filed in the case “fully reflect the need for urgency,” Judge Ramirez wrote that the Fifth Circuit panel “cannot find an effective denial of injunctive relief based on the district court’s failure to issue the requested ruling within 42 minutes” and dismissed the appeal on jurisdictional grounds.
On April 18, the petitioners asked the U.S. Supreme Court for an injunction. The following day, the U.S. Supreme Court invited the U.S. solicitor general to respond to the injunction request “as soon as possible.”
“The government is directed not to remove any member of the putative class of detainees from the United States until further order of this court,” the high court wrote, with Justices Samuel Alito and Clarence Thomas dissenting.
Justice Alito authored the five-page dissent in which Justice Thomas joined, writing that “it is questionable whether the applicants complied with the general obligation to seek emergency injunctive relief from an appellate court.”
The dissenting justices laid out a timeline, writing that the applicants who sought injunctive relief in the district court “insisted on a ruling within 45 minutes on Good Friday afternoon, and when the District Court did not act within 133 minutes, they filed a notice of appeal which the District Court held deprived it of jurisdiction.”
Justice Alito took aim at his colleagues in concluding his dissent.
“In sum, literally in the middle of the night, the Court issued unprecedented and legally questionable relief without giving the lower courts a chance to rule, without hearing from the opposing party, within eight hours of receiving the application, with dubious factual support for its order, and without providing any explanation for its order,” he wrote. “I refused to join the Court’s order because we had no good reason to think that, under the circumstances, issuing an order at midnight was necessary or appropriate.”
After reviewing briefing from the parties, the U.S. Supreme Court on May 16 issued an order granting the injunction, vacating the Fifth Circuit’s judgment and sending the case back to that court to resolve the detainees’ appeal.
“Here the District Court’s inaction — not for 42 minutes but for 14 hours and 28 minutes — had the practical effect of refusing an injunction to detainees facing an imminent threat of severe, irreparable harm,” the high court’s majority wrote in its per curiam opinion. “Accordingly, we vacate the judgment of the Court of Appeals.”
Later, the opinion explicitly stated that the court’s decision should not be read to “address the underlying merits of the parties’ claims regarding the legality of removals under the AEA.”
“We recognize the significance of the Government’s national security interests as well as the necessity that such interests be pursued in a manner consistent with the Constitution. In light of the foregoing, lower courts should address AEA cases expeditiously,” the opinion stated.
In a dissent from that decision, Justice Alito, joined by Justice Thomas, wrote that he “cannot join the decision of the court” because of the lack of jurisdiction means the high court has no authority “to issue any relief.”
“Second, even if we had such authority, the applicants have not satisfied the requirements for the issuance of injunctive relief pending appellate review,” he wrote. “Third, granting certiorari before any decision on the merits has been made by either the District Court or the Court of Appeals is unwarranted.”
Justice Alito argued that the majority’s theory of jurisdiction in this case “rests on a mischaracterization of what happened in the district court.”
“Whether or not the actions taken by applicants’ attorneys are thought to be justified under the circumstances, delivering such an ultimatum to a district court judge (‘Act on my motion on a complex matter within 42 or 133 minutes or I’ll file an appeal and divest you of jurisdiction’) represented a very stark departure from what is usually regarded as acceptable practice,” Justice Alito wrote. “Faced with applicants’ extraordinary demand, the District Court proceeded in an entirely reasonable manner. … We should commend this careful approach, not criticize it.”
In his concurrence issued Tuesday, Judge Ho called Judge Alito’s dissent “vigorous,” and lamented that as an “inferior court” the Fifth Circuit is “duty-bound to follow Supreme Court rulings — whether we agree with them or not.”
“We don’t have to like it,” he wrote. “But we have to do it.”
Judge Ho wrote that Judge Hendrix had been clear in explaining to the petitioners that the government would get 24 hours to respond to the request for emergency relief before he would issue a ruling, and that he had received assurance from the federal government that the petitioners would not be removed without first giving the court notice.
“So when they sought emergency relief at 12:34 a.m. on April 18, Petitioners ‘were fully aware that the District Court intended to give the Government 24 hours to file a response,’” Judge Ho wrote. But then at “12:48 p.m. on April 18, however, petitioners ‘suddenly informed the court that they would file an appeal if the District Court did not act within 42 minutes, i.e., by 1:30 p.m.’”
“So when the court (to no one’s surprise) couldn’t comply with their patently unreasonable timetable, Petitioners immediately filed this appeal. Our court responded expeditiously. That night, we held that we lacked jurisdiction to hear this appeal under 28 U.S.C. § 1292(a)(1),” Judge Ho wrote, going through the timeline of events.
He wrote that the Fifth Circuit panel that originally denied the requested injunctive relief was unanimous in its decision because it’s “obvious” that 42 minutes isn’t enough time for the district court to analyze the issue and produce a “reasoned ruling.”
The Supreme Court had dinged Judge Hendrix for “inaction” over a period of 14 hours and 28 minutes, rather than the Fifth Circuit’s calculation of 42 minutes. It did so by “starting the clock” at 12:34 a.m., when counsel for the detainees told Judge Hendrix “that they wanted a ruling before the government could respond,” Judge Ho wrote.
“But starting the clock at 12:34 a.m. not only ignores the court’s express instructions respecting the Government’s right to respond,” he wrote. “It also ignores the fact that the Court is starting the clock at — 12:34 a.m. We seem to have forgotten that this is a district court — not a Denny’s. This is the first time I’ve ever heard anyone suggest that district judges have a duty to check their dockets at all hours of the night, just in case a party decides to file a motion.”
Judge Ho wrote that if that is not the expectation of district judges moving forward, then “we should admit that this is special treatment being afforded to certain favored litigants … and we should stop pretending that Lady Justice is blindfolded.”
He wrote that the district court judge had “conducted himself in a reasonable and indeed admirable manner” and ventured a guess that Judge Hendrix “never imagined he’d be reversed on grounds of laziness.”
“The district judge is not the only public official whose treatment in this case warrants comment,” Judge Ho wrote. “Recall why the district court established a 24-hour filing deadline. The court firmly believed that the Government should have the right to express its views before any ruling is issued. And rightly so. … It should go without saying that the President and his fellow Executive Branch officials deserve the same respect that courts regularly afford every other litigant — including other Presidents and officials.”
The appellants are represented by Lee P. Gelernt of the American Civil Liberties Union Foundation, Immigrants’ Rights Project.
The federal government is represented by George M. Padis of the Department of Justice in Dallas and Nancy Safavi of the Department of Justice in D.C.
The case number is 25-10534.