PRECEDENTIAL

ICO-005E

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 20-1784

_____________

AARON HOPE; IWAN RAHARDJA 

JESUS DE LA PENA; 

RAKIBU ADAM DUC VIET LAM; YELENA 

MUKHINA NAHOM GEBRETNISAE; 

ISMAIL MUHAMMED; GLENN WEITHERS 

KONSTANTIN BUGARENKO; 

BRISIO BALDERAS-DOMINGUEZ; VIVIANA 

CEBALLOS; WILDERS PAUL; 

MARCOS JAVIER ORTIZ MATOS; ALEXANDER 

ALVARENGA ARMANDO AVECILLA; 

COSWIN RICARDO MURRAY; EDWIN LUIS 

CRISOSTOMO RODRIGUEZ; 

ELDON BERNARD BRIETTE; DEMBO SANNOH; 

JESUS ANGEL JUAREZ PANTOJA; 

ALGER FRANCOIS

v.

WARDEN YORK COUNTY PRISON; WARDEN 

PIKE COUNTY CORRECTIONAL FACILITY; 
2

DIRECTOR PHILADELPHIA FIELD OFFICE 

IMMIGRATION AND CUSTOMS ENFORCEMENT; 

DIRECTOR UNITED STATES IMMIGRATION AND 

CUSTOMS ENFORCEMENT; 

SECRETARY UNITED STATES DEPARTMENT OF 

HOMELAND SECURITY,

 

Appellants 

____________________________________

On Appeal from the United States District Court 

for the Middle District of Pennsylvania

District Court No. 1-20-cv-00562

District Judge: The Honorable John E. Jones, III

_____________________________________

Before: SMITH, Chief Judge, HARDIMAN and 

SCIRICA, Circuit Judges.1

(Opinion filed: April 21, 2020)

Richard Euliss

Harlan W. Glasser

Office of United States Attorney

Middle District of Pennsylvania

228 Walnut Street, P.O. Box 11754

220 Federal Building and Courthouse

Harrisburg, PA 17108

1 Although Judge Shwartz is a member of this standing 

motions panel, she is recused from this proceeding.
3

Jeffrey S. Robins

United States Department of Justice

Office of Immigration Litigation

Room 6040

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Appellants

Carla G. Graff

Kelly A. Krellner

Thomas J. Miller

Will W. Sachse

Dechert

2929 Arch Street

18th Floor, Cira Centre

Philadelphia, PA 19104

Vanessa Stine

Muneeda S. Talukder

American Civil Liberties Union of Pennsylvania

P.O. Box 60173

Philadelphia, PA 19106

Witold J. Walczak

American Civil Liberties Union 

P.O. Box 23058

Pittsburgh, PA 15222

Counsel for Appellees
4

_________

OPINION OF THE COURT

_________

SMITH, Chief Judge.

In this interlocutory appeal, the Government 

contests the District Court’s order directing the immediate 

release of twenty immigration detainees because of the 

COVID-19 pandemic.2 Before we may even consider the 

merits of the Government’s appeal, we must of course 

determine that we have appellate jurisdiction. By order 

entered April 15, 2020, we notified the parties that 

jurisdiction exists. We now provide the reasons for that

determination.

I.

On April 3, 2020, a diverse group of twenty 

immigration detainees3 housed at York County Prison 

(York) and Pike County Correctional Facility (Pike) filed 

the underlying habeas petition pursuant to 28 U.S.C. 

§ 2241. The petitioners sought immediate release, 

2 COVID-19 is a highly contagious respiratory virus that 

poses unique risks in population-dense facilities. United 

States v. Raia, No. 20-1033, 2020 WL 1647922, at *1 (3d 

Cir. Apr. 8, 2020).

3

Initially, there were twenty-two petitioners, but two were 

released by agreement with the Government.
5

claiming that due to various underlying health conditions, 

their continued detention during the COVID-19 pandemic 

puts them at imminent risk of death or serious injury and 

thereby violates their constitutional rights. Concurrently 

with the petition, the petitioners filed a motion for a 

temporary restraining order (TRO) directing their 

immediate release. 

The District Court responded quickly, concluding 

that the petitioners face irreparable harm and are likely to 

succeed on the merits, see Mem. and Order 6–11 (Apr. 7, 

2020), ECF No. 11, that the Government would “face very 

little potential harm from Petitioner’s [sic] immediate 

release,” and that “the public interest strongly encourages 

Petitioners’ release,” id. at 12. The District Court did not 

even wait for a response from the Government. It granted 

the TRO, directed that Petitioners be released immediately 

on their own recognizance, and set the TRO to expire on 

April 20, 2020 at 5:00 p.m. The District Court also 

required that, no later than noon on April 13, 2020, the 

Government was to show cause why the TRO should not 

be converted to a preliminary injunction.

The same day the TRO issued, the Government

moved for reconsideration and stay of the TRO. It 

signaled that it had substantial legal arguments to present 

in opposition, concerning both the petitioners’ likelihood 

of success on the merits and the likelihood of irreparable 

harm. See Mot. Recons. 2. In addition, the Government 

provided a declaration describing conditions at York and 

Pike along with details of the petitioners’ criminal 
6

histories. Still later that day, the District Court granted the 

Government’s motion for reconsideration, stayed its own 

order, and directed the petitioners to respond. They did so

promptly. The Government also quickly filed a response 

opposing the habeas petition and the TRO.

On Friday, April 10, 2020, the District Court denied

reconsideration on grounds that the Government had failed 

to demonstrate a change in controlling law, provide 

previously unavailable evidence, or show a clear error of 

law or the need to prevent manifest injustice.4 It therefore 

lifted the stay and again ordered the Government to 

immediately release the petitioners, this time extending

the release period “until such time as the COVID-19 state 

of emergency as declared by the Governor of the 

Commonwealth of Pennsylvania is lifted, or by further 

Order of this Court.” Order 5 (Apr. 10, 2020), ECF No. 

22. But the District Court’s order also stated that “the 

TRO expires on April 20, 2020 at 5:00 p.m.” Id. at 6. And,

in an apparent attempt to allay some of the concerns 

expressed in the Government’s submissions, the District 

Court attached conditions to the petitioners’ release, 

including, among others, that the order “expires 

immediately if a Petitioner absconds,” a requirement that 

“Petitioners shall report their whereabouts once per week 

to their attorneys, who in turn shall report to the 

Respondents if a Petitioner has absconded,” a mandate to 

4 The District Court gave no indication that it had 

considered the Government’s response to the habeas 

petition. See Order 1 (Apr. 10, 2020), ECF No. 22.
7

appear at all removal hearings and to comply with certain

final deportation orders, and an allowance that the 

Government may “tak[e] Petitioners back into custody 

should they commit any further crimes or otherwise 

violate the terms of their release.” Id. at 5–6.

The Government immediately appealed from the 

District Court’s April 7 and April 10 orders. It 

simultaneously moved the District Court to stay the 

petitioners’ release, and the District Court summarily 

denied the stay request. In response, the Government 

sought a temporary administrative stay from this Court, 

which we granted within hours of the request. Although 

the District Court lifted its April 7 stay the same day we 

granted a temporary administrative stay, the Government 

reports that, in the brief period between the two orders, 

nineteen of the twenty petitioners were released, and none 

have been re-detained.5 See Gov’t Emer. Mot. Stay 11.

5 The release of the majority of the petitioners does not 

undermine our jurisdiction. For purposes of jurisdiction 

over an immigration-related habeas corpus claim, a

petitioner must be in the “custody” of the federal 

immigration agency at the time the petition is filed. 28 

U.S.C. § 2241(c); Spencer v. Kemna, 523 U.S. 1, 7 (1998);

Kumarasamy v. Att’y Gen., 453 F.3d 169, 172 (3d Cir. 

2006). “Custody” includes incarceration. Id. A 

subsequent release from incarceration does not divest this

Court of jurisdiction. Id. at 173 n.7; see also Chafin v. 
8

II.

Typically, an interlocutory order granting or 

denying a TRO is not immediately appealable. 

Nutrasweet Co. v. Vit-Mar Enters., Inc., 112 F.3d 689, 692 

(3d Cir. 1997). A TRO is not an appealable “final 

decision[]” under 28 U.S.C. § 1291. See Morton Int’l, Inc. 

v. A.E. Staley Mfg. Co., 460 F.3d 470, 476 (3d Cir. 2006) 

(a “final decision” generally is one that ends the litigation 

on the merits and leaves nothing for the court to do but 

execute the judgment).

6

 Although a TRO is a form of 

injunctive relief, and injunctions are ordinarily appealable 

under 28 U.S.C. § 1292(a),

7

an order granting a TRO

generally is not considered an appealable injunction for 

practical reasons: “temporary restraining orders are of 

short duration and terminate with a ruling on the 

preliminary injunction, making an immediate appeal 

Chafin, 568 U.S. 165, 172–73 (2013) (case is not moot 

where it is possible to grant relief to the prevailing party).

6 But see, e.g., Virginia v. Tenneco, Inc., 538 F.2d 1026, 

1030 (4th Cir. 1976) (concluding that the practical effect 

of the TRO in question, which granted the plaintiff all the 

relief it sought, made the order a final decision appealable 

under § 1291).

7 Section 1292(a)(1) provides in relevant part: “the courts 

of appeals shall have jurisdiction of appeals from

[i]nterlocutory orders of the district courts of the United 

States . . . granting, continuing, modifying, refusing or 

dissolving injunctions, or refusing to dissolve or modify 

injunctions.”
9

unnecessary to protect the rights of the parties.” 

Nutrasweet, 112 F.3d at 692 (citing Vuitton v. White, 945 

F.2d 569, 573 (3d Cir. 1991)).

Here, the District Court’s orders purport to be 

TROs. But the unfolding global pandemic and health 

crisis with which the orders grapple are—as the District 

Court itself acknowledges, see Mem. and Order 6 (Apr. 7, 

2020), ECF No. 11—anything but typical. We must

carefully assess, given the nature of this TRO and the 

unusual circumstances from which it arises, whether an 

immediate appeal is necessary to protect the rights of the 

parties.

8

 See Nutrasweet, 112 F.3d at 692–93. 

A.

We begin by considering the characteristics that 

distinguish a non-appealable TRO from an appealable 

preliminary injunction. Rule 65 of the Federal Rules of 

Civil Procedure differentiates between the two. A

preliminary injunction must be issued with notice to the 

adverse party. Fed. R. Civ. P. 65(a)(1). A TRO, in 

contrast, may be issued without notice where it is “clearly 

show[n] that immediate and irreparable injury, loss, or 

damage will result to the movant before the adverse party 

can be heard in opposition.” Fed. R. Civ. P. 65(b)(1)(A). 

8 The parties were directed to file responses on the issue of 

appellate jurisdiction. We have considered these 

submissions in reaching our determination, and we 

commend counsel for their promptness and diligence. 
10

Absent good cause or consent, such an order must expire 

within fourteen days. Fed. R. Civ. 65(b)(2). 

As the Supreme Court has observed, “our entire 

jurisprudence runs counter to the notion of court action 

taken before reasonable notice and an opportunity to be 

heard has been granted [to] both sides of a dispute.” 

Granny Goose Foods Inc. v. Bhd. of Teamsters, 415 U.S.

423, 439 (1974). Accordingly, while TROs may be

appropriate at times, they must be circumscribed in nature. 

Importantly, TROs are ordinarily aimed at

temporarily preserving the status quo. “[U]nder federal 

law [TROs] should be restricted to serving their 

underlying purpose of preserving the status quo and 

preventing irreparable harm just so long as is necessary to 

hold a hearing, and no longer.” Id.; see also J.O. ex rel. 

C.O. v. Orange Twp. Bd. of Educ., 287 F.3d 267, 273 (3d 

Cir. 2002) (concluding that interim relief preserving the 

status quo is not merit-based and acknowledging a TRO as 

a “stay put[] equitable remedy that has as its essential 

purpose the preservation of the status quo while the merits 

of the cause are explored through litigation” (quoting 

Foreman v. Dall. Cty., 193 F.3d 314, 323 (5th Cir. 1999), 

abrogated on other grounds by Davis v. Abbott, 781 F.3d 

207 (5th Cir. 2015) (internal quotation marks omitted))); 

Christopher P. ex rel. Norma P. v. Marcus, 915 F.2d 794, 

805 (2d Cir. 1990) (“[T]he procurement of a TRO in which 

the court does not address the merits of the case but simply 

preserves the status quo to avoid irreparable harm to the 

plaintiff is not by itself sufficient to give a plaintiff 
11

prevailing party status.”); Litton Sys., Inc. v. Sunstrand 

Corp., 750 F.2d 952, 961 (Fed. Cir. 1984) (“The function 

of preliminary injunctive relief is to preserve the status quo 

pending a determination of the action on the merits.”

(citation omitted)). 

Where, by contrast, a purported TRO goes beyond 

preservation of the status quo and mandates affirmative 

relief, the order may be immediately appealable under 

§ 1292(a)(1). See Office of Pers. Mgmt. v. Am. Fed’n of 

Gov’t Emps., 473 U.S. 1301, 1304–05 (1985) (observing 

that “[o]nly if the District Court granted the temporary 

restraining order would it have disturbed the status quo” 

by preventing the implementation of new regulations, 

thereby implying that appellate jurisdiction would have 

been available in that circumstance); Tanner Motor 

Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 808–09 (9th Cir. 

1963) (in a TRO proceeding, “it is not usually proper to 

grant the moving party the full relief to which he might be 

entitled if successful at the conclusion of a trial . . . [t]his 

is particularly true where the relief afforded, rather than 

preserving the status quo, completely changes it”); see 

also Belknap v. Leary, 427 F.2d 496, 498 (2d Cir. 1970) 

(purported TRO was “essentially affirmative” and thus,

despite its short duration, was an appealable mandatory 

injunction under 28 U.S.C. § 1292(a)(1)). 

The case for immediate appealability is even 

stronger where the effects of the purported TRO are 

substantial and potentially irreversible. An order may be 

appealed under § 1292(a)(1) if it has the “practical effect”
12

of an injunction and “further[s] the statutory purpose of 

‘permit[ting] litigants to effectually challenge 

interlocutory orders of serious, perhaps irreparable, 

consequence.’” Carson v. Am. Brands, Inc., 450 U.S. 79, 

84 (1981) (quoting Balt. Contractors, Inc. v. Bodinger, 

348 U.S. 176, 181 (1955)). Similarly, the Court of 

Appeals for the District of Columbia Circuit concluded

that an order purporting to be a TRO but requiring a 

government official to affirmatively engage in

“unprecedented” mandatory action with “potent” and

“irretrievable” diplomatic and environmental impact was 

an immediately appealable injunction under § 1292(a)(1). 

Adams v. Vance, 570 F.2d 950, 953 (D.C. Cir. 1978). 

Several other courts of appeals stated they have 

jurisdiction to review a purported TRO if it “might have a 

serious, perhaps irreparable consequence and can be 

effectually challenged only by immediate appeal.” Ross 

v. Rell, 398 F.3d 203, 204 (2d Cir. 2005) (quoting Romer 

v. Green Point Savings Bank, 27 F.3d 12, 15 (2d Cir. 1994)

(cleaned up)); Schiavo ex rel. Schindler v. Schiavo, 403 

F.3d 1223, 1225 (11th Cir. 2005) (“[W]hen a grant or 

denial of a TRO might have a serious, perhaps irreparable, 

consequence, and can be effectually challenged only by 

immediate appeal, we may exercise appellate 

jurisdiction.” (citation omitted)); see also Ne. Ohio Coal.

v. Blackwell, 467 F.3d 999, 1005–06 (6th Cir. 2006)

(collecting cases).

Thus, we look to the purpose and effect of a 

purported TRO to determine whether it may be appealed 

under § 1292(a)(1).
13

B.

With these principles in mind, we consider the 

District Court’s orders. Although the District Court 

characterized its orders as TROs, we are plainly not bound 

by that choice of classification. When evaluating whether 

an order is an appealable injunction, we must look past 

labels to consider functional effects. See Ramara, Inc. v. 

Westfield Ins. Co., 814 F.3d 660, 669–70 (3d Cir. 2016). 

What matters “is what the court actually did, not what it 

said it did.” Id. at 669 (citing Sampson v. Murray, 415 

U.S. 61, 86–87 (1974)); see also Miller v. Mitchell, 598 

F.3d 139, 145 (3d Cir. 2010) (reviewing TRO as a 

preliminary injunction because it was of indefinite 

duration and entered after both notice and an adversarial 

hearing); In re Arthur Treacher’s Franchisee Litig., 689 

F.2d 1150, 1155 n.7 (3d Cir. 1982) (noting that when 

deciding jurisdiction, a reviewing court will look beyond 

“terminology to the actual content, purport, and effect of 

that which may . . . be described as a temporary restraining 

order or as a preliminary restraining order” (citation 

omitted)). 

Because the District Court proceeded without 

affording the Government an opportunity to be heard, it 

purported to enter a TRO.9 But its relief altered the status 

9 Significantly, the District Court considered the 

Government’s position only in deciding the motion to 

reconsider the April 7 order. But in that procedural 

context, the District Court confined the Government to the 
14

quo, exceeding the temporary and limited nature of a TRO. 

See Granny Goose, 415 U.S. at 439. By directing the 

release of the twenty petitioners on their own 

recognizance, the District Court ordered mandatory, 

affirmative relief—indeed, the ultimate relief sought by 

the petitioners in their underlying habeas petition. The 

grant of affirmative relief is a strong indicator that the 

District Court’s orders are immediately appealable under 

§ 1292(a)(1). See Ramara, 814 F.3d at 672 (grant of 

ultimate relief is a factor in determining that an order is 

appealable under § 1292(a)(1)); Tanner, 316 F.2d at 808–

09; Adams, 570 F.2d at 953; Belknap, 427 F.2d at 498.

Moreover, there is a substantial possibility that the 

petitioners’ release will result—if it has not already—in 

serious and potentially irreversible consequences. That 

makes immediate appellate review both necessary and 

appropriate to protect the rights of the parties. See

Schiavo, 403 F.3d at 1225; Ross, 398 F.3d at 204; Adams,

570 F.2d at 953. The Government argues that many 

petitioners are a flight risk, a danger to the community 

limited grounds for reconsideration (i.e., requiring it to 

demonstrate a change in controlling law, provide 

previously unavailable evidence, or show a clear error of 

law or the need to prevent manifest injustice). See Order 

2 (April 10, 2020), ECF 22 (citing Max’s Seafood Café ex 

rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 

1999)). Although the Government filed a substantive 

opposition to the TRO request, the record does not reflect 

that the District Court ever considered it. 
15

based on their individual criminal histories, and subject to 

mandatory detention under 8 U.S.C. § 1226(c). See Gov’t 

Mot. Stay Pending Appeal 17–19. Additionally, although

the District Court’s orders purport to be of limited 

duration, the District Court’s April 10 order directs the 

petitioners’ release “until such time as the COVID-19 state 

of emergency as declared by the Governor of the 

Commonwealth of Pennsylvania is lifted, or by further 

Order of this Court.” Order at 5 (Apr. 10, 2020), ECF No. 

22. The order therefore can be read as having an indefinite 

duration and does not necessarily comply with the 

fourteen-day limitation in Fed. R. Civ. P. 65(b)(2). 

Moreover, the orders do not mention the possibility of redetention upon expiration of the purported TRO period, 

and they include no consideration of the practical 

difficulties involved in locating and re-detaining the 

petitioners should that become necessary. A delayed 

appeal would increase the prospect that the effects of the 

District Court’s order will last beyond the purported 

expiration of the TRO and, indeed, may potentially yield 

consequences that cannot be undone.

III.

In sum, the District Court’s orders affirmatively 

directing the immediate release of twenty immigration 

detainees will not evade our prompt appellate review 

simply by virtue of the District Court’s invocation of the 
16

label “TRO.”

10

 An immediate appeal is necessary to 

protect the rights of the parties. See Nutrasweet, 112 F.3d 

at 692. For the reasons we have discussed, we have 

appellate jurisdiction under § 1292(a)(1) and will proceed 

to consider the appeal on the merits.11

10 Because we have determined that jurisdiction exists 

under § 1292(a)(1), we need not address the Government’s 

alternative suggestion to proceed under the All Writs Act, 

28 U.S.C. § 1651.

11 This opinion is limited to the issue of appellate 

jurisdiction. Having concluded that jurisdiction exists, we 

will separately consider the merits after the parties have 

had the opportunity to brief the issues presented.