As my new Ethics and Public Policy Center colleague Michael Fragoso has explained, the Trump administration has been stymied by an array of sweeping temporary restraining orders (TROs) issued by federal district judges. TROs have the same legal force as preliminary injunctions, except that (pursuant to Rule 65(b)(2) of the Federal Rules of Civil Procedure) they ordinarily cannot be in effect for more than fourteen days.
From the perspective of the restrained party, TROs are more onerous than preliminary injunctions because they are ordinarily not appealable. So a party trying to obtain prompt relief from a higher court from a TRO can’t get fresh review via an expedited appeal but instead must satisfy the more demanding standard for a stay.
It’s peculiar enough that TROs generally aren’t appealable. But it’s even worse that the district judge has broad discretion to identify an order either as a TRO or as a preliminary injunction. So the district judge can ordinarily deprive the aggrieved party of an immediate right to appeal simply by labeling the order as a TRO.
If the rule that TROs are not appealable makes little sense to you, you’re in good company. In a new paper titled “Appealing Temporary Restraining Orders,” BYU law professor Tyler B. Lindley and his two student co-authors explain that the rule is not set forth in any statute. Rather, it is the unexamined residue of a statute that was repealed in 1948.
In brief, Lindley and his co-authors explain, when Congress “created the modern TRO in 1872, … this TRO was statutorily designed to be issued solely on an ex parte basis, without a hearing.” The statute enacted in 1891 that conferred a right to interlocutory appeals did so only with respect to orders issued “upon a hearing.” So those two statutes operating together meant that there was no appeal available from a TRO.
But in 1948, Congress “dropped the requirement that the appealed-from order be issued ‘upon a hearing.’” So there was no longer an obstacle to appeals of TROs. Except that “no one appears to have noticed the change, much less its potential implications for the appealability of TROs.”
Most TROs these days (Lindley and company observe) are issued after notice and hearing, so they ought to be appealable even under the 1891 statute. Further, the 1948 amendment may well mean that TROs are appealable whether or not they were issued after a hearing.
Perhaps the Supreme Court will have occasion soon to re-examine the ill-founded rule that TROs aren’t appealable.