Appealing Temporary Restraining Orders in COVID-19 Related Cases

As a general rule, temporary restraining orders (often initialized as TROs) are not immediately appealable. Granted, 28 U.S.C. § 1292(a)(1) permits appeals from orders concerning injunctions. But TROs are normally not considered injunctions for appellate-jurisdiction purposes. So litigants generally must wait until the district court rules on a preliminary injunction before taking an appeal.

Exceptions to this general rule can exist when a TRO has the trappings of a preliminary injunction, such as an adversarial hearing or an indefinite duration. Litigants have recently invoked these exceptions in cases with some connection to COVID-19. These attempted appeals have mostly involved states appealing temporary restraining orders that enjoined COVID-19 related abortion restrictions. To my knowledge, none of those attempts has been successful. (The Fifth Circuit has reviewed temporary restraining orders via mandamus, not an appeal under § 1292(a)(1).) But yesterday, in Hope v. Warden, York County Prison, the Third Circuit held that it had jurisdiction to review a temporary restraining order directing the release of detained immigrants due to the COVID-19 pandemic.

Appealing TROs generally

Although appeals generally must wait until after the end of district court proceedings, § 1292(a)(1) permits immediate appeals from many interlocutory decisions concerning injunctions:

[T]he courts of appeals shall have jurisdiction of appeals from [i]nterlocutory orders . . . granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court . . . .

Decisions concerning injunctive relief—whether they grant or deny that relief—can have immense, sometimes irreparable consequences. Delayed appellate review might accordingly be inadequate. Hence, the exception for injunctions.

TROs, however, are normally not injunctions for purposes of § 1292(a)(1). Practical differences between TROs and preliminary injunctions warrant a different treatment when it comes to appeals:

The practical reasons for not generally allowing appeals from temporary restraining orders are that (1) they are usually effective for only very brief periods of time, far less than the time required for an appeal . . . , and are then generally supplanted by appealable temporary or permanent injunctions, (2) they are generally issued without notice to the adverse party and thus the trial judge has had opportunity to hear only one side of the case, and (3) the trial court should have ample opportunity to have a full presentation of the facts and law before entering an order that is appealable . . . .

Connell v. Dulien Steel Products, Inc. (quoted in Federal Practice & Procedure § 3922.1).

But courts have allowed appeals from TROs when one or more of these practical concerns is missing. For example, appellate courts have treated TROs of a long duration as appealable preliminary injunctions. They have allowed appeals when the TRO came after a full adversarial presentation. And appellate courts are especially likely to review a TRO when it would have serious, irreparable consequences.

We have recently seen several recent attempts to appeal TROs in the context of COVID-19 related abortion restrictions. To my knowledge, every court to face this question has held that it lacked appellate jurisdiction. The Sixth Circuit did so two weeks ago, and the Tenth Circuit did so last week. The Fifth Circuit also dismissed a direct appeal from a TRO in Texas, though it has twice reviewed that matter via mandamus (once two weeks ago, and again on Monday).

The Third Circuit’s decision in Hope

Yesterday, the Third Circuit reached a different conclusion in the context of a TRO ordering the immediate release of detained immigrants.

Simplifying a bit, the petitioners in Hope filed a habeas petition seeking immediate release from immigration detention. They claimed that “that due to various underlying health conditions, their continued detention during the COVID-19 pandemic puts them at imminent risk of death or serious injury and thereby violates their constitutional rights.” Along with their habeas petition, the petitioners sought a TRO directing their immediate release. The district court granted the TRO, concluding “that the petitioners face irreparable harm and are likely to succeed on the merits, that the Government would face very little potential harm from Petitioner[s’] immediate release, and that the public interest strongly encourages Petitioners release.”

The government then sought reconsideration (the district court had issued the TRO without the government’s appearance). It argued “that it had substantial legal arguments to present in opposition, concerning both the petitioners’ likelihood of success on the merits and the likelihood of irreparable harm.” The district court temporarily stayed its TRO, but it soon thereafter denied reconsideration. The court also ordered that the petitioners be released “until such time as the COVID-19 state of emergency as declared by the Governor of the Commonwealth of Pennsylvania is lifted, or by further Order of [the] Court.” The government then appealed.

The Third Circuit held that it had appellate jurisdiction despite the district court’s order purportedly being a TRO. The order was not a typical TRO for three reasons. First, it did not preserve the status quo but instead required affirmative relief. Second, the ordered relief—the petitioners’ immediate release—was both substantial and potentially irreversible. The court noted the government’s argument that “many petitioners are a flight risk, a danger to the community based on their individual criminal histories, and subject to mandatory detention under 8 U.S.C. § 1226(c).” And third, the ordered relief was not of a minimal duration. It was instead of an indefinite duration, which could be far more than the 14-to-28 day duration for TROs. The Third Circuit thus concluded that “[a] delayed appeal would increase the prospect that the effects of the District Court’s order will last beyond the purported expiration of the TRO and, indeed, may potentially yield consequences that cannot be undone.”

The court said that it would address the merits of the district court’s order in a future opinion.

Hope v. Warden, York County Prison, 2020 WL 1922372 (3d Cir. Apr. 21, 2020), available at the Third Circuit and Westlaw.