Detainee Release Restraining Orders Can Be Immediately Appealed

A Pennsylvania federal court’s temporary restraining orders to release 20 immigrant detainees who are vulnerable to Covid-19 can be directly appealed, according to the Third Circuit, which cited the global pandemic and health crisis that is “anything but typical.”

The appeal stems from an April 3 filing in which 20 detainees housed at York County Prison and Pike County Correction Facility sought immediate release because of underlying health conditions that make them at higher risk for the novel coronavirus.

Judge John E. Jones III of the U.S. District Court for the Middle District of Pennsylvania granted two sets of orders, the latter of which had been amended to include conditions.

The government appealed both orders, and sought a temporary administrative stay from the U.S. Court of Appeals for the Third Circuit. That request was granted the same day as the district court lifted a stay, yet 19 of the 20 petitioners were released in the interim period, according to the appellate panel.

The Third Circuit informed the parties that it had jurisdiction over the appeal April 15, and explained its reasoning Tuesday.

Acknowledging that interlocutory orders granting or denying a TRO are not immediately appealable under typical circumstances because they are for a short duration, Chief Judge D. Brooks Smith said an immediate appeal is necessary because the orders exceeded the “temporary and limited nature of a TRO.” The district court, for instance, said the detainees’ release would be effective “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.”

“Importantly, TROs are ordinarily aimed at temporarily preserving the status quo,” Smith wrote in the precedential opinion. “Where, by contrast, a purported TRO goes beyond preservation of the status quo and mandates affirmative relief, the order may be immediately appealable.”

The Third Circuit added that there will likely be “serious and potentially irreversible consequences” from the release of petitioners, meaning immediate appellate review is appropriate.

The “TRO” label, the court held, won’t allow the district court’s orders to evade a prompt appellate review. The appeals court panel didn’t weigh in on the merits of the orders: “We will separately consider the merits after the parties have had the opportunity to brief the issues presented.”

Petitioners are represented by Dechert LLP and the American Civil Liberties Union. The government represents itself.

Smith wrote the opinion. Judges Thomas M. Hardiman and Anthony J. Scirica joined in the decision.

The case is Hope v. Warden York Cty. Prison, 3d Cir., No. 20-01784, precedential opinion 4/21/20.