Guest Post: Reconsidering the [Non-]Appealability of TROs

"To the contrary, an examination of the history of TROs and interlocutory appeals reveals that TROs were not appealable solely because of a now-repealed statutory requirement that the appealed-from interlocutory order be issued 'upon a hearing.'"

One of the recurring issues in Trump 2.0 is the issuance of "non-appealable" TROs. Indeed, some district courts have issued "non-appealable" administrative stays. There is a host of circuit precedent holding that such temporary orders cannot be appealed; rather, the only appellate process is the extraordinary writ of mandamus. That argument may make sense when a TRO only affects two parties in routine litigation. As a general matter, it would not be a good use of judicial resources to jam the circuit courts with emergency motions to stay on a mundane case. But the concept of an unappealable order is far more problematic the context of a universal TRO against the federal government. Could it really be the case that a single district court judge can force the federal government to do, or not do something, and the appellate courts lack jurisdiction to reverse that ruling?

Tyler B. Lindley, Morgan Bronson, and Wesley White have published a new essay that looks at the issue of unappealable orders. Here is the abstract for Appealing Temporary Restraining Orders, which is. forthcoming in the Florida Law Review:

Temporary restraining orders (TROs) are a powerful injunctive tool for district courts to maintain over a case by directly controlling the parties' out-of-court conduct, especially when both the facts on the ground and the litigation are moving at breakneck speed. In response to the wave of TROs against the Trump Administration, appellate courts have struggled with the power of these orders and the longstanding rule that parties cannot appeal from TROs. But that rule is not found anywhere in the relevant statute, which authorizes interlocutory appeals from any order concerning an injunction. To the contrary, an examination of the history of TROs and interlocutory appeals reveals that TROs were not appealable solely because of a now-repealed statutory requirement that the appealed-from interlocutory order be issued "upon a hearing." Even if that requirement applies today, most modern TROs (especially against government defendants) are now issued after a hearing and so should be appealable. Those appeals might quickly become moot at the TRO expires or merges into a preliminary injunction, but appellate courts should nevertheless have the option to expedite the appeal or grant emergency relief.

I asked the authors if they would be willing to submit a guest post to the Volokh Conspiracy, and they were kind enough to offer this entry:

The Trump administration has been unable to appeal several temporary restraining orders (TROs) issued against it because of the accepted rule that TROs are ordinarily not appealable. But that rule appears to run counter to the current text of the interlocutory-appeal statute. Our new essay, Appealing Temporary Restraining Orders (forthcoming in the Florida Law Review), argues that the general rule barring appeals from TROs originated when an earlier version of the statute required that the appealed-from interlocutory order be issued "upon a hearing," and by design, most TROs were not.

Since January, district courts have issued numerous TROs enjoining the Trump Administration from carrying out or implementing various policies and programs. One TRO even ordered the Administration to treat former head of the Office of Special Counsel Hampton Dellinger as if he had not been fired. But the D.C. Circuit refused to allow an appeal, and the Supreme Court refused to address the issue until the TRO expired.

Why couldn't the government appeal the TRO? The relevant statute states that "the courts of appeals shall have jurisdiction of appeals from . . . [i]nterlocutory orders" concerning "injunctions." And TROs are a species of injunction just like a preliminary injunction. Nevertheless, as Steve Vladeck summarized, "[T]he consensus has long been that it would cause chaos if grants or denials of TROs were immediately appealable." However, notwithstanding that general rule, courts have allowed appeals from TROs when the TRO (or denied TRO) operates like a preliminary injunction and causes the losing party serious harm that would undermine the purpose of the interlocutory-appeal statute.

Generally, such practical concerns would be insufficient to deviate from unambiguous language. And if the statute does exclude TROs, it is unclear why there is an exception to promote the supposed purposes of the statute. We dug into the history to figure out whether this was an instance of loose statutory interpretation or whether there was a better explanation for why courts have excluded TROs from the statute.

Congress first authorized TROs in 1872. Under that statute, judges were authorized to issue TROs as soon as the motion for a preliminary injunction was filed if there was "danger of irreparable injury." The restraining order would then be served with notice of the motion and the hearing. So TROs were almost always issued ex parte and without a hearing. By contrast, preliminary injunctions required notice and an opportunity to be heard. Thus, a hearing was an important dividing line between a TRO and a preliminary injunction, (together with other distinctions including the burden for obtaining the injunction, its purpose, and its length).

In 1891, Congress bucked the common-law limitation of appeals to final judgments and authorized interlocutory appeals from "an interlocutory order or decree granting or continuing [an] injunction." (Congress later expanded the scope of the statute to include nearly all interlocutory orders concerning injunctions.) But the statute limited such orders to those issued "upon a hearing in equity." As noted above, TROs in the late 1800s were not issued "upon a hearing." So with rare exception, TROs were textually excluded from the interlocutory-appeal statute.

Early courts recognized this distinction. Although some courts concluded that all TROs were appealable, and some pointed to the practical differences in excluding TROs, the hearing requirement remained the driving divide. For example, the Fifth Circuit in Joseph Dry Goods Co. v. Hecht, 120 F. 760 (5th Cir. 1903), explained that the hearing requirement was included to "distinguish the temporary order from the injunction [ultimately] granted at the hearing after notice." Id. at 763–64. Although judicial decisions were not always clear about why appeals were or were not allowed, our research (which is, admittedly, not perfectly exhaustive due to reporting practices at the time) reveals that TROs without a hearing were not appealable and those issued after a hearing were.

Later developments obscured this distinction. Through a combination of Supreme Court procedural rules and statute, courts were required to provide notice and hold hearings before issuing TROs, unless waiting would be impractical. Eventually, in 1966, the Court promulgated a rule requiring attorneys to certify to the efforts made to notify the opposing party and explain why a TRO could not be delayed. Today, ex parte TROs are rare, especially against government defendants.

In 1948, Congress recodified the Judicial Code. In doing so, it reorganized the interlocutory-appeal statute into the version we have today. In the process, however, Congress omitted the hearing requirement altogether. So any textual basis for excluding even TROs issued without a hearing is lacking. But no one appears to have noted the change, much less noticed the potential impact it could have on the appealability of TROs. And when Congress had earlier removed the phrase "in equity" from the requirement that the order be issued "upon a hearing in equity," the Supreme Court held that no substantive change was intended. See Schoenamsgruber v. Hamburg Am. Line, 294 U.S. 454, 457 (1935). Perhaps the same rationale applied here, especially considering the context of Congress's massive reorganization and recodification of the Judicial Code. Regardless, the statute supports at most a hearing requirement, which would mean that most TROs today are appealable.

To be sure, stare decisis plays a role here. The Supreme Court and every court of appeals has held that TROs are not generally appealable. And statutory stare decisis places a heavier burden on those seeking to jettison precedent. But even if there are reasons to counsel against overruling those precedents, understanding the source, scope, and history of that general rule might lead courts to apply the current test loosely, increasing the number of TROs that are appealable.

What would appeals from TROs look like? Many would quickly become moot, as the TRO either expires or merges into a preliminary injunction. And this practical concern has led courts to generally exclude appeals from TROs while maintaining a purposivist carve-out for TROs that risk serious, perhaps irreparable, harm. But courts can use their resources to move quickly when the circumstances justify it. Courts might want to do so when there is an apparent legal error; when the balance of the equities weighs against the TRO, even if the harm to the losing party is not quite irreparable or sufficiently serious; or where the TRO takes the form of a nationwide injunction, and the appellate court wishes to pare it back. Even an appellate court's affirmance of a clearly correct TRO might save resources and signal to the parties the relative strengths of their arguments. In some ways, then our approach to appeals from TROs carries the benefits of both a formalist interpretation of the statute and a functionalist approach to when appeals from TROs should be allowed.

Moreover, posing the obstacles to appealing from TROs as a jurisdictional bar rather than a discretionary decision to expedite forecloses emergency relief. Courts of appeals should instead recognize that even if they are not able to reach a full decision on the merits of the TRO, they can still issue emergency relief staying that TRO (or issuing their own injunction should the TRO have been denied), provided that the other requirements for emergency relief have been satisfied.

The exception from immediate interlocutory appeals from TROs is now justified on practical grounds. But the reason for the bar initially flowed from the requirements of the statute, which have since been repealed. In light of the statutory authorization for immediate interlocutory appeals, appellate courts today should not reflexively refuse to hear appeals from TROs.

This argument should make its way into the litigation