Department of Education v. California sends a clear signal to the lower courts: review TROs that function as preliminary injunctions. If there is any reason that Justice Barrett decided to change her position, this might be it.
The majority opinion offers this new standard:
Although the Courts of Appeals generally lack appellate jurisdiction over appeals from TROs, several factors counsel in favor of construing the District Court's order as an appealable preliminary injunction. Among other considerations, the District Court's order carries many of the hallmarks of a preliminary injunction. See Sampson v. Murray, 415 U. S. 61, 87 (1974); Abbott v. Perez, 585 U. S. 579, 594 (2018).
The Court doesn't really explain what those "hallmarks" are. Nor does the Court explain how many of those "hallmarks" are created to cross the threshold from TRO to PI. This sentence will be scrutinized by lawyers, and minimized by inferior court judges.
Justice Kagan seems annoyed that the Court is making this ruling on the emergency docket.
But in my view, nothing about this case demanded our immediate intervention. Rather than make new law on our emergency docket, we should have allowed the dispute to proceed in the ordinary way. I respectfully dissent.
But where else can this ruling be made? If the case is appealed through the normal course, there will be no basis to decide if a TRO should be appealable. The only time to decide this question is now. And so the Court decided.
The Court also signaled, loud and clear, that challenges to spending belong in the Court of Federal Claims. There simply is no jurisdiction in federal district court to hear these cases.
Moreover, the District Court's "basis for issuing the order [is] strongly challenged," as the Government is likely to succeed in showing the District Court lacked jurisdiction to order the payment of money under the APA. Sampson, 415 U. S., at 87. The APA's waiver of sovereign immunity does not apply "if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought." 5 U. S. C. §702. Nor does the waiver apply to claims seeking "money damages." Ibid. True, a district court's jurisdiction "is not barred by the possibility" that an order setting aside an agency's action may result in the disbursement of funds. Bowen v. Massachusetts, 487 U. S. 879, 910 (1988). But, as we have recognized, the APA's limited waiver of immunity does not extend to orders "to enforce a contractual obligation to pay money" along the lines of what the District Court ordered here. Great-West Life & Annuity Ins. Co. v. Knudson, 534 U. S. 204, 212 (2002). Instead, the Tucker Act grants the Court of Federal Claims jurisdiction over suits based on "any express or implied contract with the United States." 28 U. S. C. §1491(a)(1).
This ruling should quickly knock out many other "spending" cases, and redirect them to the Court of Federal Claims. This is a court most people have never heard of, but will soon become very important. Critically, however, this court will not start issuing injunctions against the government to pay out the money. Rather, the proceedings will be far more deliberate.
Finally, the majority opinion notes that this district court did not issue a bond when it granted an injunction:
As for the remaining stay factors, respondents have not refuted the Government's representation that it is unlikely to recover the grant funds once they are disbursed. No grantee "promised to return withdrawn funds should its grant termination be reinstated," and the District Court declined to impose bond. App. to Application To Vacate Order 15a, 17a. By contrast, the Government compellingly argues that respondents would not suffer irreparable harm while the TRO is stayed.
A recent Op-Ed in the WSJ argues that district courts are required to impose a bond.
The argument is rock solid: Under Rule 65(c) of the Federal Rules of Civil Procedure, a party seeking an injunction needs to put up a bond to cover its costs. These bonds aren't optional. They're mandatory, unless the government is seeking an injunction. That means Judge Boasberg's order, and dozens like it, may not be valid at all. . . .
The Fourth Circuit has made clear that the bond rule isn't discretionary. Only the government may obtain an injunction without posting a bond: "There are no other exceptions." The Third Circuit has characterized the bond as a "condition precedent" to issuing injunctive relief. According to the Fourth Circuit, "failure to require a bond before granting preliminary injunctive relief is reversible error."
These precedents faithfully reflect the plain text of Rule 65(c), which permits courts to issue injunctions or temporary restraining orders "only if" the plaintiffs post bond. They also uphold Congress's unambiguous intent in 1914, when it repealed the discretionary language of the 1911 Judiciary Code and replaced it with a mandatory bond requirement.
Yet activist judges continue to sidestep the rule by setting nominal or de minimis bonds. Courts have some discretion in setting the amount, but it must be "proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined." In practice, that cost is rarely zero—and appellate courts have repeatedly struck down attempts to treat it as such. . . .
The Justice Department should demand that judges require plaintiffs to post bond in every future injunction case. It should move to invalidate existing injunctions where no adequate bond was required. And it should make clear—to judges and the public—that it won't be bound by orders that are themselves invalid because the courts didn't follow the procedure required to issue them. Otherwise, millions more in taxpayer dollars will be drained, and activist judges will continue rewriting policy from the bench—leaving taxpayers to foot the bill.
This might be an issue that lower-court judges should focus on.
