Carson’s Test for Effective Injunction Denials

Injunction appeals have been in the spotlight of late. We’ve seen a few recent decisions on appeals from temporary restraining orders. And this month has already produced three cases involving effective denials of preliminary injunctions.

One of these cases raised a question about the test for effective—and thus appealable—injunction denials. Under the Supreme Court’s decision in Carson v. American Brands, Inc., an interlocutory order is appealable under 28 U.S.C. § 1292(a)(1) if the order (1) has “the practical effect of refusing an injunction;” (2) has “serious, perhaps irreparable, consequences”; and (3) could “be effectually challenged only by immediate appeal.” A recent Sixth Circuit decision asked why Carson includes these latter two requirements. After all, a district court order that has “the practical effect of refusing an injunction” would seem to be an order denying a preliminary injunction.

I think the Sixth Circuit is on to something. Carson’s three-part test addresses the situation in which a party has not expressly moved for a preliminary injunction but has instead sought something else—though that something has some connection to or impact on potential injunctive relief. In those cases, all three requirements are helpful in determining whether a decision effectively denied the type of relief to which § 1292(a)(1) applies.

But when parties have actually sought a preliminary injunction, the effective denial of that motion should be appealable regardless of any “serious, perhaps irreparable, consequences” or the necessity of an immediate appeal. Congress has already decided that the denial of actual injunctions satisfies those requirements. Recognizing as much could simplify these matters.

Recent Cases on Effective Injunction Denials

28 U.S.C. § 1292(a)(1) permits immediate appeals from (among other things) orders denying preliminary injunctions. But an order does not have to expressly deny a preliminary injunction to be appealable under § 1292(a)(1). Under Carson, a district court effectively denies a preliminary injunction when that court’s order (1) has “the practical effect of refusing an injunction;” (2) has “serious, perhaps irreparable, consequences”; and (3) would “be effectually challenged only by immediate appeal.”

This month has seen three decisions on effective denials. Earlier this month, the Fifth Circuit held in Amazon.com Services LLC v. NLRB that a district court’s delay in deciding a preliminary-injunction motion did not amount to an effective denial. You can read about that decision here.

Last week saw two additional cases.

A.A.R.P. & Inaction

In A.A.R.P. v. Trump, the Supreme Court enjoined the government from summarily removing alleged members of Tren de Aragua (often initialized as “TdA”).

A.A.R.P. was brought on behalf of a purported class of TdA members who were in custody of the U.S. and faced summary removal under the Alien Enemies Act (which the Court initialzed as “AEA”). Events in A.A.R.P. developed quickly:

On April 17, 2025, the District Court denied the detainees’ motion for a temporary restraining order (TRO) against summary removal under the AEA. The detainees allege that, hours later, putative class members were served notices of AEA removal and told that they would be removed “tonight or tomorrow.” On April 18 at 12:34 a.m. central time, the detainees moved for an emergency TRO. At 12:48 p.m., the detainees moved for a ruling on that motion or a status conference by 1:30 p.m. At 3:02 p.m., they appealed “the constructive denia[l]” of the emergency TRO to the Fifth Circuit. The detainees also applied to [the Supreme] Court for a temporary injunction.

The Fifth Circuit dismissed the appeal for a lack of jurisdiction. As the Fifth Circuit saw things, the district court had delayed only 42 minutes on the preliminary-injunction motion. That wasn’t an effective denial.

The Supreme Court construed the temporary-injunction application as a petition for a writ of certiorari, granted the petition, and enjoined the government “from removing the named plaintiffs or putative class members in this action under the AEA.” On appellate jurisdiction, the Court explained that the underlying matters were incredibly urgent—removal of class members was likely imminent—and the district court had over 14 hours to decide the injunction motion before the appeal. That delay “had the practical effect of refusing an injunction to detainees facing an imminent threat of severe, irreparable harm.”

Justice Alito dissented. On the appellate-jurisdiction point, he disagreed with the Court’s assessment of the likely harm and the district court’s diligence.

Doe & an Administrative Closure

The Sixth Circuit faced a similar question in Doe v. Lee.

The district court in Doe had enjoined certain Tennessee officials from enforcing the state’s sex-offender-registry statutes. But the Sixth Circuit’s subsequent decision in another case “called that relief into question.” So the defendants in Doe sought to dissolve or narrow the injunction.

The district court denied the motion without prejudice. The court thought that subsequent proceedings in the other Sixth Circuit case could “inform the disposition” of the injunction in Doe. So the district court administratively closed the case, noting that the defendants could again seek to dissolve the preliminary injunction once the other case was resolved.

The defendants appealed, and the Sixth Circuit held that it had jurisdiction under § 1291(a)(1). Doe satisfied all three of Carson’s requirements. By “terminat[ing] the motion to dissolve the injunction,” the district court had effectively denied it. By “enjoin[ing] duly enacted statutes,” the district court’s order had irreparable consequences. And only an immediate appeal could protect the defendants’ “interest in enforcing Tennessee law.”

Questioning Carson

The Sixth Circuit made an interesting observation about the Carson test:

It’s unclear why a litigant must show the latter two prongs once he can establish that the district court’s action has the “practical effect” of an injunction. Carson seems to have added the irreparable-consequence and immediate-review requirements because § 1292(a)(1) “was intended to carve out only a limited exception to the final-judgment rule.” But since Congress made ordinary injunctions appealable through § 1292, there’s no reason to treat orders that act like an injunction differently than regular injunctions.

I think the Sixth Circuit has a point. And I think the distinction that should be drawn is whether the would-be appellant actually moved for a preliminary injunction. If they did, a “practical effect” alone should be sufficient for an appeal. Only when the would-be appellant sought something else—something that did not directly seek, but had some relation to, injunctive relief—should Carson’s second and third requirements apply.

Carson did not actually involve a request for a preliminary injunction. The parties had asked the district court to approve a consent order that contained injunctive relief. The question, then, was whether the district court’s refusal to approve the consent decree effectively denied a preliminary injunction. The second and third requirements thus ensured that the order implicated the interests—the urgent need for immediate appellate review—for which § 1292(a)(1) exists.

Cases discussed in Carson further support this reading. In Switzerland Cheese Association, Inc. v. East Horne’s Market, Inc., the district court denied a motion for summary judgment that sought a permanent injunction. There was no request for a preliminary injunction, and the permanent injunction could be obtained after trial. So the denial lacked “lacked the ‘serious, perhaps irreparable, consequence’ that is a prerequisite to appealability under § 1292(a)(1).”

Similarly, in Gardner v. Westinghouse Broadcasting Co., the district court denied class certification. The plaintiff sought to appeal under § 1292(a)(1), arguing that the denial of class certification limited the breadth of injunctive relief the plaintiff might ultimately obtain. But, again, there was no motion for a preliminary injunction. There was also no allegation that denying class certification would cause irreparable harm. And the plaintiff could obtain all the relief she sought in an appeal after a final judgment.

So the Sixth Circuit might be right: when determining whether a district court effectively denied a motion for a preliminary injunction, all a court needs to do is determine whether the district court’s action has the practical effect of refusing an injunction. Granted, that’s not always straightforward. But it at least simplifies the analysis.

A.A.R.P. v. Trump, 2025 WL 1417281 (May 16, 2025), available at the Supreme Court and Westlaw

Doe v. Lee, 2025 WL 1367828 (6th Cir. May 12, 2025), available at the Sixth Circuit and Westlaw