Pughsley v. 3750 Lake Shore Drive Cooperative Bldg., 463 F.2d 1055, 1057 (7th Cir. 1972); T.M.T. Trailer Ferry, Inc. v. Union DeTronquistas De Puerto Rico, Local 901, 453 F.2d 1171, 1172 (1st Cir. 1971). The purpose advanced for this required notice is the concern that a party may be denied his full day in court, Nationwide Amusements, Inc. v. Nattin, 452 F.2d 651, 652 (4th Cir. 1971), a concern so strong that even in Nationwide Amusements, where "a number of witnesses appeared for [the] appellant, . . . the case was developed in some detail," and "the issues presented by the motion for preliminary injunction were similar if not the same as those raised for final determination," id. at 652, Fed.R. Civ. P. 65(a) was held to require "some form of notice to the parties that their final day in court has come." Id.
Although no formal order of consolidation is required, it is well-settled that there must be some notice to the parties that the trial court will rule on the merits following the preliminary injunction proceeding. Hollis v. Itawamba County Loans, 657 F.2d 746, 749 (5th Cir. Unit A 1981); Warehouse Groceries Management, Inc. v. Sav-U-Warehouse Groceries, Inc., 624 F.2d 655, 657-58 (5th Cir. 1980); Nationwide Amusements, Inc. v. Nattin, 452 F.2d 651 (5th Cir. 1971). The notice requirement arises because ordinarily a preliminary injunction hearing does not provide a complete adjudication of the merits of the case.
Dry Creek Lodge, Inc. v. United States, 10 Cir. 1975, 515 F.2d 926, 935-936, and the references there footnoted. Nationwide Amusements, Inc. v. Nattin, 5 Cir. 1971, 452 F.2d 651, 652, explains that though no written form of order is required, the parties must have some form of notice that their final day in court has come. No order was made by the court after the hearing began nor did the trial court in any manner indicate that he considered these hearings to be consolidated at the beginning of the hearing. Appellants were never advised that the court would determine this matter in such manner that there would be a final disposal thereof and appellants could not have known of this result until the judgment was entered.
Before such an order may issue, however, the courts have commonly required that "the parties should normally receive clear and unambiguous notice [of the court's intent to consolidate the trial and the hearing] either before the hearing commences or at a time which will still afford the parties a full opportunity to present their respective cases." Pughsley v. 3750 Lake Shore Drive Cooperative Bldg., 463 F.2d 1055, 1057 (CA7 1972); Nationwide Amusements, Inc. v. Nattin, 452 F.2d 651 (CA4 1971). This procedure was not followed here.
See, e.g., Casarez v. Burlington N./Santa Fe Co., 201 F.3d 383, 384 (5th Cir. 2000) ("It is clear that Casarez has met his burden . . . by creating a factual question as to what actually motivated Burlington to terminate his employment."); Trevino v. Ramos, 197 F.3d 777, 781 (5th Cir. 1999) ("The primary issue in this case is the factual question of motivation[.]"); Nationwide Amusements, Inc. v. Nattin, 452 F.2d 651, 652 n.1 (5th Cir. 1971) ("The factual sufficiency of the cause of action turns on the motivation of the city officials, a fact question that can only be determined in the district court."). Similarly, substantial evidence review would apply to the question of past persecution when the BIA's determination was based on a finding that the alien's account was not credible; this, too, is a question of factโi.e., whether the alien was telling the truth or whether the events the alien recounted actually occurred.
See, e.g.,Casarez v. Burlington N./Santa Fe Co. , 201 F.3d 383, 384 (5th Cir. 2000) ("It is clear that Casarez has met his burden ... by creating a factual question as to what actually motivated Burlington to terminate his employment.");Trevino v. Ramos , 197 F.3d 777, 781 (5th Cir. 1999) ("The primary issue in this case is the factual question of motivation[.]"); Nationwide Amusements, Inc. v. Nattin , 452 F.2d 651, 652 n.1 (5th Cir. 1971) ("The factual sufficiency of the cause of action turns on the motivation of the city officials, a fact question that can only be determined in the district court."). Similarly, substantial evidence review would apply to the question of past persecution when the BIA's determination was based on a finding that the alien's account was not credible; this, too, is a question of factโi.e. , whether the alien was telling the truth or whether the events the alien recounted actually occurred.
Notice requirements for permanent injunctions are also stringent. See Nationwide Amusements, Inc. v. Nattin, 452 F.2d 651, 652 (5th Cir. 1971) (requiring notice of court's consolidation pursuant to Rule 65(a)(2) of the trial of permanent injunction with the hearing of preliminary injunction); Puerto Rican Farm Workers ex rel. Vidal v. Eatmon, 427 F.2d 210, 210-11 (5th Cir. 1970) (same); see also United States v. Crusco, 464 F.2d 1060, 1062-63 (3d Cir. 1972) (holding that permanent injunction is not available without notice to the adverse party). Though Defendants had requested relief from the injunction, they were not on notice of the modification imposed on the court's own motion.
Second, absent an order of consolidation or an agreement among the parties, the district court cannot itself determine to resolve the merits of the case on the record developed at the hearing on a request for preliminary injunctive relief. See, e.g., Willits v. Richardson, 497 F.2d 240, 244 (5th Cir. 1974) (reversing dismissal of complaint following preliminary injunction hearing; "[c]ounsel for plaintiff declined to so stipulate [to a consolidated trial]"; "[t]he court entered no order of consolidation under Fed.R.Civ.P. 65(a)(2)"); Nationwide Amusements, Inc. v. Nattin, 452 F.2d 651, 652 (5th Cir. 1971) (reversing dismissal on merits following preliminary injunction hearing; Rule 65(a)(2) "at least requires some form of notice to the parties that their final day in court has come"); Pughsley v. 3750 Lake Shore Drive Cooperative Bldg., 463 F.2d 1055, 1057 (7th Cir. 1972) ("parties should normally receive clear and unambiguous notice" of intent to consolidate trial on merits with hearing on application for preliminary injunction). In this and other contexts, however, the parties are certainly free to agree to submission of a case for final resolution on a limited or stipulated record.
Nevertheless, despite the advantages of such action, and despite the need for expeditious treatment of cases involving temporary restraining orders, see Fed.R.Civ.P. 65(b), when a hearing on temporary relief is consolidated with resolution of the merits of the case, the court must ensure that the parties have notice sufficient to allow them to present their cases fully. Wohlfahrt v. Memorial Medical Center, 658 F.2d 416, 417-18 (5th Cir. 1981); Warehouse Groceries Management, Inc. v. Sav-U-Warehouse, Inc., 624 F.2d 655, 656-58 (5th Cir. 1980); Nationwide Amusements, Inc. v. Nattin, 452 F.2d 651, 652 (5th Cir. 1971). Absent such notice a party is entitled to be heard on the merits unless the failure to afford notice did not prejudice consideration of his claim.
Fed.R.Civ.P. 65(a)(2). Whether the consolidation is express or implied, however, sufficient notice is required to permit the parties to develop their cases fully. Warehouse Groceries Management, Inc. v. Sav-U-Warehouse Groceries, Inc., 624 F.2d 655, 656-58 (5th Cir. 1980); Nationwide Amusements v. Nattin, 452 F.2d 651, 652 (5th Cir. 1971); 11 Wright Miller, Federal Practice and Procedure: Civil ยง 2950 at 486-90 (1973). Absent such notice, the complaining party is entitled to a hearing on the merits unless the failure to afford notice had no prejudicial effect on consideration of his claim.