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Guest Post: Reconsidering the [Non-]Appealability of TROs
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of the history of TROs and interlocutory appeals reveals that TROs were not appealable solely because of a now-repealed statutory requirement that the appealed-from interlocutory order be issued “upon a hearing.”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,
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