Con Law Center Articles and Publications

Document Type

Article

Publication Date

2022

Abstract

It’s textbook law that temporary restraining orders (TROs) are not appealable. That bright-line rule, however, has never told the whole story. Today, a majority of circuit courts permit appeal of TROs in narrow instances when, for instance, the TRO has the practical effect of an injunction, threatens serious or irreparable injury, and can only be reviewed effectively by immediate appeal. This accords with the Supreme Court’s conclusion in Carson v. American Brands, Inc., which permitted limited appeal of orders that, like TROs, are not express injunctions but may threaten the same irreparable injury as an injunction. The Carson Court emphasized that such instances should be narrow, given Congress’s overriding goal of limiting piecemeal appeal.

Since the early 2000s, however, three circuits have developed more expansive appeal standards for appeal of TROs under 28 U.S.C. § 1292(a)(1). Other circuits typically use a narrow approach to appeal of TROs, but they, too, sometimes use the newer, more expansive approaches for appeal of TROs. This contradicts Congress’s desire for strict limits on piecemeal appeal under § 1292(a)(1), while also importing the negatives of discretionary review: The expansive approaches give appellate courts unwarranted power to pick which TRO decisions are appealable, allowing courts to base appeal on personal preference, personal experience, or desire to decide high-profile, political, or other “important” issues. Today, appellate courts primarily wield this power to permit governmental appeals or appeals in other “important” or “extraordinary” cases, but review authority under some of the expansive tests is essentially unbounded.

Pragmatic and structural reasons also argue against early appeal of TROs. When a TRO decision is appealed, the lower court record is uniquely unsuitable for appellate review, given the typically sparse factual exposition in the pre-TRO hearing, the limited opportunity for legal presentation, the limited time before the district court ruling, and the fact that the district court typically intends to move quickly to the fuller preliminary injunction hearing following expedited discovery. The limited nature of the factual and legal presentation in the pre-TRO hearing and limited district court order hobbles the appellate court in both its error-correction and law-giving functions. And it does so primarily in the context of the very issues that deserve measured appellate consideration – high-profile, political, and important or extraordinary issues. At the same time, the very fact of immediate appellate review changes the parties’ settlement calculus and gives the district court’s TRO decision the outcome determinative or functionally dispositive quality of a preliminary injunction. Thus, quick review of TRO decisions is typically unlikely to improve upon the district court’s TRO decision and unlikely to produce guidance for future cases, but quite likely to impel settlement on a very incomplete record.

This Article spends considerable time on the following issues, which have been given only limited play in the legal literature: (1) the differences between preliminary injunctions, ex parte TROs, and “notice-provided” TROs; (2) the narrow traditional grounds for appealing TRO decisions; (3) the history of Supreme Court case law that narrowly confines appeal of orders, like TROs, that are not injunctions, but have the “practical effect” of an injunction; and (4) the narrow and expansive approaches to appeal of TROs developed in the federal circuit courts. While largely descriptive, this material fills significant gaps in existing appeal literature. The Article concludes that appeal of TRO decisions ought to be available only when the three “Carson requirements” are met – the TRO has the practical effect of an injunction; threatens serious or irreparable injury; and effective review is available only through immediate appeal. Finally, the Article provides guidelines for determining when each Carson requirement is met.

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