Village of Hotvela Traditional Elders, et al., Plaintiffs-appellants, v. Indian Health Services, et al., Defendants-appellees, 79 F.3d 1155 (9th Cir. 1996)

MEMORANDUM^** 

This appeal from the denial of a temporary restraining order ("TRO") comes to us for review under Ninth Circuit Rule 3-3. At the court's request, the parties have briefed the issue whether we have jurisdiction to review the denial of the TRO. Upon review of the briefs and record, we dismiss the appeal for lack of an appealable order. See 28 U.S.C. §§ 1291, 1292(a) (1).

Although this court has held that the denial of a TRO may sometimes be tantamount to the denial of a preliminary injunction, see, e.g., Religious Technology Center v. Scott, 869 F.2d 1306, 1308-09 (9th Cir. 1989), that is not the case here. The district court rejected plaintiffs' request to convert the TRO hearing into one for injunctive relief, indicating that the record before it was insufficient to determine whether an injunction should issue. The court also granted plaintiffs' request to proceed in forma pauperis, leaving the door open for further proceedings before it. In these circumstances, we do not believe that further proceedings in the district court would be futile. See id. at 1309.

DISMISSED.