Immediate Appeals of Temporary Restraining Orders? Not So Fast.

Interlocutory appeals, including those relating to injunctive relief, often present traps for the unwary.  In state court in Maine, parties typically cannot appeal an order granting or denying a motion for preliminary injunction.  The Law Court has so held in numerous cases, including Sanborn v. Sanborn.  In federal court, by contrast, it is possible to appeal an order granting or denying a motion for preliminary injunction under 28 U.S.C. § 1292.  But is it possible to appeal an order denying a motion for a temporary restraining order in federal court?  This was the issue recently tackled by the First Circuit in Calvary Chapel v. Mills.  The answer, in short, is “usually, no.”

Calvary Chapel is but one of the many cases that have spun out of the COVID-19 pandemic.  In it, a church challenged an early executive order issued by Governor Mills limiting “non-essential” activities and gatherings.  The plaintiff requested a temporary restraining order, which the parties briefed on an expedited schedule.  The district court heard argument, and denied the plaintiff’s TRO request.  Instead of seeking a preliminary injunction hearing, the plaintiff immediately appealed.  Both the plaintiff and the defendant urged the First Circuit to hear and resolve the appeal.  The First Circuit demurred.

According to the First Circuit, a TRO is not normally considered an “injunction” for purposes of Section 1292 and thus not immediately appealable as of right.  Instead, an appellant must make a three part showing in order to pursue an interlocutory appeal of a TRO order.  That is, an appellant must demonstrate

that the refusal of a temporary restraining order had the practical effect of denying injunctive relief, will likely cause serious (if not irreparable) harm, and can only be effectually challenged by means of an immediate appeal.

The First Circuit found that the appellant had failed to make the required showing.  The first prong of the test was not satisfied, the court concluded.  A ruling has “the practical effect of denying injunctive relief” if it is issued after a full adversarial haring or if no further interlocutory relief is available in the absence of immediate review.  The court found the briefing and hearing to be less than a full adversarial process because the briefing was expedited (and did not include a reply) and because the hearing was an unrecorded telephone conference without discovery or witnesses.  The First Circuit also noted that the record was “truncated,” leaving the parties to dispute key factual questions yet unaddressed by the district court – suggesting that seeking a preliminary injunction hearing would not have been redundant or futile.  The First Circuit also found that the other two factors also did not support the interlocutory appeal – the court viewed the harm to be something less than serious, and concluded that the district court’s order could have been adequately challenged after a preliminary injunction hearing.

The First Circuit’s decision emphasizes the importance of ensuring that district court proceedings are conducted with appellate review in mind.  It also highlights the potential hurdles for obtaining immediate review of interlocutory orders relating to emergency relief.  These hurdles are especially prominent in state court – which is the topic for another blog post.