Can a TRO be Appealed?

Litigation challenging the Trump administration’s actions often start with an application for a temporary restraining order (TRO). Usually, TROs are not subject to immediate appeal. So how are these TROs landing in an appeals court, sometimes within hours of their issuance? This past week, for example, Judge Charles Breyer of the Northern District of California held that the deployment of National Guard troops by the federal government was illegal and issued a TRO requiring that control of the troops be ceded to California’s governor by the president. Within two hours, that order was put on hold by the Ninth Circuit. As one might guess, the nature of the litigation and competing ideas about exigencies play a role in permitting immediate appeal.

The starting point is that, since the Judiciary Act of 1789, generally only final judgments can be appealed to prevent piecemeal adjudication. Still, 28 U.S.C. § 1292(a)(1) authorizes interlocutory appeals from orders “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.” TROs, despite their affinity with injunctions, do not belong in the category of injunctions for purposes of that statute.

TROs provide short-term relief against immediate irreparable injury. They can be issued without notice to the other party and without a hearing. In federal court, Rule 65(b) governs TROs and limits their duration to 14 days, although that period can be extended by another 14 days or with consent of the party restrained. In many instances, preliminary injunctions replace them and open the door to appeal.

Because of their short duration, often expiring before an appeal can be heard, and because of the limited record available for an appellate court to review, TROs have long been thought to be inappropriate vehicles for appellate relief. Yet, the Supreme Court carved out an exception to the general rule when the granting or denial of a TRO would have a “serious, perhaps irreparable, consequence” if not subject to an immediate appeal.[1]

The federal circuits have largely adopted an approach with a narrow lane to challenge TROs. Still, TROs are viewed as more appealable if the restraint last longer, occurs after an adversary hearing, or involves a high-profile, political, or other “important” issue. The first two criteria make a TRO more like an injunction and may fit under the authority granted by § 1292(a)(1). Even though the latter criterion seems and is entirely “free-form,” the All Writs Act appears to supply the necessary authority for a court to accept the appeal. A forthcoming article in the Florida Law Review, Appealing Temporary Restraining Orders, makes the case that the general prohibition against appealing TROs is an artifact of a long repealed 19^th century statute and reflects practices that no longer hold sway. It argues that, despite the high likelihood that the TRO will become moot quickly, appellate courts should consider expediting appeals of TROs or providing emergency relief.

Whether a more formal approach to appealability is adopted, there can be little doubt that today’s TROs will likely bring about reconsideration of many of the undergirding assumptions about the device and some change. Now, as to administrative stays, which is another matter  entirely!

 

[1] See Carson v. Am. Brands, Inc., 450 U.S. 79, 86 (1981).