Dreyfus

dissenting:

An order denying a temporary restraining order (“TRO”) is generally not appeal-able because of the policy against piecemeal review. See Religious Tech. Ctr. v. Scott, 869 F.2d 1306, 1308 (9th Cir.1989). The Ninth Circuit has carved out two narrow exceptions to this general rule of non-appealability: (1) where the order has the effect of denying a preliminary injunction; and (2) where the order effectively decides the merits of the action. Id. at 1308-1309 . Neither exception is applicable here; the general rule is applicable to this order. At the time appellants filed their notice of appeal in this matter, their motion for preliminary injunction was still pending in the district court. In fact, such motion was to be heard today. Instead, appellants appealed this TRO decision and the court stayed the preliminary injunction hearing because of that appeal. Thus, this court lacks jurisdiction over this appeal of the denial of the TRO. See id.

Now, we are asked to find that the district court abused its discretion in its January 5, 2011 order denying the TRO, when the appellants (1) did not file their motion for emergency relief until January 10, 2011; (2) never requested…

ORDER

Appellants’ motion to file an oversized emergency motion is granted. Appellees’ motion to file an oversized opposition to the emergency motion is granted. Appel-lees’ motion to strike the reply brief is denied.

Appellants’ emergency motion for in-junctive relief comes to us in the context of an appeal of the district court’s denial of a temporary restraining order (“TRO”). Because the district court took the hearing for the motion for preliminary injunction off calendar, the denial of the TRO is tantamount for present purposes to the denial of a motion for preliminary injunction. Environmental Defense Fund, Inc. v. Andrus, 625 F.2d 861 (9th Cir.1980).

Appellants’ motion for a stay prohibiting the State of Washington from implementing emergency regulation WSR 11-02-041 is granted pending the district court ruling on appellants’ motion for preliminary injunction. See Cal. Pharmacists Ass’n v. Maxwell-Jolly, 563 F.3d 847, 849-50 (9th Cir.2009) (order). Here, instead of proceeding with the preliminary injunction hearing, the district court cancelled that hearing. No other relief is available that will remedy the irreparable injury which continues to occur pending such…