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 RI CARDO 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

- c v

- 00562 District Judge: The Honorable John E. Jones, III

____________________________________ _
Before: SMITH, Chief Judge , HARDIMAN and

SCIRICA, Circuit Judges. 1

(Opinion file d: 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 Appellant

s

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 Appellees4 _________

OPINION OF THE COURT

_________
SMITH, Chief Judge

.

In th is interlocutory appeal, the Government
contests the District Court’s order directing the immediate
releas e 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 detainees 3 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. Ap r. 8, 2020).

3 Initially, t here 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

.

T he 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 g ranted
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 th e TRO should not
be convert ed to a preliminary injunction

.

T he same day the TRO issued, t he Government
moved for reconsideration and stay of the TRO . It signaled that it had substantial legal argument s 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 petitione rs’ criminal6 histories

. Still later t hat day, the District Court granted the
Government’s motion for reconsideration, stayed its own order, and directed the p etitioners to respond

. They did so promptly

. T he 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
l ifted the stay and again ordered the Government to immediately release the petitioner s, 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 Dist rict Court’s order also state d 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 p etitioners’ 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 the y commit any further crimes or otherwise
violate the terms of their release.” Id. at 5

– 6.

T he Government immediately appeal ed from the District Court’s April 7 and April 10 order s . It simultaneously moved the District Court to stay the petitioners’ release , and t he District Court summarily
denied the stay request. In response , t he 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 th e 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. F or 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 th is
C ourt 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. C o., 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 A lthough a TRO is a form of injunctive relief, and injunctions are ordinarily appealable under 28 U.S.C. § 1292(a)

, 7 a n order gra n ting 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: “t he 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, t he District Court’s order s 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 noti ce 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, “ o ur 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)

. Accor dingly, while TROs may be appropriate at times, they must be circumscribed in nature

.
Importantly, T ROs are ordinarily aimed at temporarily preserv ing 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 rel ief 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. Dal l. 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 plaintiff11 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 TR O 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

. M gm t

. v. Am. Fed ’ n of
Gov ’ t Em p s

. , 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) ( i n a TR O 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 sho rt duration

, w as an appealable mandatory injunction under 28 U.S.C. § 1292(a)(1)).

T he case for immediate appealability is even strong er 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 effectu ally challenge interlocutory orders of serious, perhaps irreparable, consequence.’” Carson v. Am. Brands, Inc ., 450 U.S. 79,
84 (1981) (quoting Bal t. 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 environmen tal impact wa s

an immediately appealable injunction under § 1292(a)(1).
Adams v. Vance , 570 F.2d 950, 953 (D.C. Cir. 1978)

. Several other c ourt s of a ppeals 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 N e. 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. A lthough t he District Court
characterized its orders as TRO s , w e are plainly not bound by that choice of classification

. W hen evaluating whether
an order is an appealable injunction , we must look past
label s to consider functional effect s

. 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

s aid 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 c ourt 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 prel iminary restraining order” (citation omitted) ).

B ecause the District Court proceeded without affording the Government an opportunity to be hear d, it
purport ed to enter a TRO. 9 But its relief altered the status

9 Significantly, t he District Court considered the Government’s position only in deci ding the motion to reconsider the April 7 order. But in that procedural

context

, the District Court confined the Government to the14 quo , exceeding the temporary and limited nature of a TRO

. See Granny Goose , 415 U .S. at 439. B y directing the
release of the twenty petitioners on their own recogniza nce, the District Court ordered mandatory,
affirmative relief

— indeed, the ultimate relief sought by the petitioners in their underlying habeas petition

. Th e 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 , t here 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 95 3. 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 unava ilable 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 lift ed, 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 re

detention upon expiration of the purported TRO period

, and they include no consideration of the practical
difficulties involved in locat ing and re

- detain ing the petitioners should that be come necess ary

. 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 order s 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 the16 label “ TRO. ” 10 A n immediate appeal is necessary to protect th e rights of the parties. See Nutrasweet , 112 F.3d
at 692. For the reasons we have discussed, w e 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 Govern ment’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

.