Bonus 61: Injunctions Pending Appeal

The distinction between a stay and an injunction "pending appeal" may seem arcane, but its blurring has resulted in a significant transfer of power from federal district judges to appellate courts

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, much of the bonus content is behind a paywall to help incentivize those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and hope that those of you who aren’t will consider a paid subscription if your circumstances permit:

This week’s bonus content is inspired by two unrelated developments from last week. The first came on Friday afternoon, when the Court (as I noted on Monday) granted two applications to stay a district court injunction in the dispute between the federal government and Idaho over whether EMTALA preempts Idaho’s abortion ban insofar as it requires doctors to perform medically necessary abortions in contexts that are not life-saving (i.e., to stabilize an emergency, but not life-threatening, medical condition). The Court’s order offered no explanation, which is especially exasperating because, whatever one thinks of the merits, it’s really hard to see the argument that the injunction was causing the kind of “irreparable harm” to Idaho that at least used to be a prerequisite for emergency relief.¹

The second came in a Fifth Circuit ruling on Thursday, in which the court of appeals refused to grant emergency relief in a dispute over whether the State of Mississippi violated the federal Constitution when it created a new court system for Jackson (largely to take control of the local courts in the state capital away from the more left-leaning jurisdiction—something that Texas just did, as well). In explaining the denial of relief, the unsigned Fifth Circuit ruling opened by stating that “[w]e evaluate a request for an injunction pending appeal according to the standard for granting or denying a stay pending appeal.” No, really:

This statement is categorically incorrect as a statement of law. (The decision it cites for the proposition does apply the stay standard to an inunction pending appeal, but with no supporting analysis of its own, so it’s the original sin.) For present purposes, though, it’s quite revealing of two related points: In recent years, a number of appellate courts (including the Supreme Court) have conflated the very different purposes of and standards for a stay pending appeal and an injunction pending appeal. And the result has been a massive aggrandizement, by these appellate courts, of the traditional authority (and equitable discretion) of district courts. Simply put, this doctrinally and analytically indefensible move has empowered appellate courts to effectively act as trial courts when it comes to preliminary injunctive relief—and the Supreme Court ought to clean up this mess rather than continue to hand down unexplained rulings (like last Friday’s) that reflect (and thereby enable) comparable carelessness.

For those who are not paid subscribers, the next free installment of the newsletter will drop on Monday morning. For those who are, please read on.

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Let’s start with terminology. When an appellate court issues a “stay” of a lower-court ruling (e.g., a preliminary injunction entered by a trial court), it is temporarily freezing the effect of the lower-court’s ruling, and returning the state of affairs to the status quo that had been in effect before the courts had ruled. The criteria for a stay mirror the criteria for a preliminary injunction: Courts are supposed to “balance” (1) the applicant’s likelihood of success; (2) the irreparable harm to the applicant from leaving the lower-court ruling in effect; (3) the irreparable harm to the respondent from freezing the lower-court ruling; and (4) whether the “public interest” tilts the scales toward or against a stay. In other words, the applicant has to have a decent chance of prevailing on appeal, but the real focus of the analysis is on what should happen while the appeal unfolds.

An “injunction pending appeal” is a very different beast. In that context, the trial court did not issue any relief, and the plaintiff is asking the appellate court to provide a temporary injunction against the defendant while it reviews the district court’s refusal to provide an injunction of its own. (That they’re both called “injunctions” is … not helpful.) Critically, an “injunction pending appeal” operates directly against the defendant (e.g., a government officer), and restricts their conduct for the duration of the appeal. It thus represents a far more substantial (and coercive) exercise of judicial power insofar as the emergency relief being provided is not returning the status quo to square one; it is upsetting the pre-litigation status quo when at least one judge has already refused to do so.

For that reason, it has long been settled law that the standard for an injunction pending appeal is higher than the standard for a stay. Unlike the balancing of the equities that is supposed to inform whether or not to grant a stay, an injunction pending appeal is supposed to be granted (as Justice Scalia explained in an in-chambers opinion in 1986) “sparingly and only in the most critical and exigent circumstances” where the “legal rights at issue are indisputably clear”:

In other words, a stay pending appeal can be based on nothing more than a strong likelihood of success on the merits or a moderate likelihood combined with strong equitable factors. But an injunction pending appeal is only supposed to be available where (1) the law is settled; and (2) there are critical, exigent circumstances supporting such judicial intervention.²

Okay, that’s the doctrinal distinction. As for the analytical distinction, one more point bears emphasis: When appellate courts review trial court decisions granting or denying preliminary injunctions, their review is supposed to be limited to determining whether the trial court abused its discretion in granting or refusing interim relief; the review is not supposed to be “de novo.” That’s because preliminary injunctions are exercises of equitable discretion on the part of trial courts—discretion that can be abused, but discretion that belongs to the trial court in the first instance. The question is not “who’s right”; the question is “was it clearly wrong for the trial court to grant/deny preliminary relief.” Among other things, this tradition reflects the reality that, unlike appellate judges, the trial judge is on the ground where the dispute was brought; is often ruling only after hearing not just from lawyers but from witnesses; and is better situated to act quickly and flexibly in disputes in which equitable relief (as opposed to damages for wrongful conduct that has ceased) is being sought.

When, in contrast, appellate courts apply the stay/preliminary injunction standard to justify issuing an injunction pending appeal, they are committing three independent errors: First, they are usurping the prerogative of the trial court, effectively conducting de novo review of the trial court’s denial of preliminary injunctive relief (in a context in which the trial court’s denial receives no deference). Second, they are exceeding their statutory authority, since, as Justice Scalia explained in that 1986 opinion, stays pending appeal and injunctions pending appeal have different statutory foundations, as well. Third, and perhaps most importantly, in cases in which the defendant is a government actor, they are thus aggrandizing constitutional authority—whether from coordinate branches of the federal government or from the political branches of state governments.

An example might help to illustrate these points: Consider the Eighth Circuit’s injunction pending appeal in the student loan case. In that case, the district court had denied the plaintiff-states’ motion for a preliminary injunction on the ground that it believed the plaintiffs lacked standing. The states appealed the denial of the preliminary injunction and the grant of the federal government’s motion to dismiss for lack of standing, and sought an injunction pending appeal while that appeal ran its course. The Eighth Circuit granted the injunction—and froze the student loan program on a nationwide basis—after (mis-)applying the wrong standard. Rather than review the district court’s denial of a preliminary injunction for an abuse of discretion, the Eighth Circuit conducted its own analysis under the traditional preliminary injunction standard. It thus obviated the plaintiff-states of the need to demonstrate that their right to relief was “indisputably clear,” or that emergency relief was warranted by “the most critical and exigent circumstances.” Indeed, the only “analysis” the Eighth Circuit provided of the merits was the unsubstantiated assertion that “the ‘merits of the appeal before this court involve substantial questions of law which remain to be resolved.’” Even if that’s enough for a district court to justify a preliminary injunction (and, by the way, it’s not supposed to be anymore), it’s surely not enough for an appellate court to justify an injunction pending appeal.

Another good example is the latest emergency application before the Court: The Biden administration’s application to vacate an injunction pending appeal that the Fifth Circuit issued in the dispute over whether federal agents may cut the razor wire that Texas officials have placed along parts of the U.S.-Mexico border. Unlike the student loan case, in which the trial court never reached the merits (holding that the plaintiff-states lacked standing), in the razor-wire case (“Texas v. DHS”), the trial judge initially entered a temporary restraining order against the federal government, and then refused to convert that TRO into a preliminary injunction because she was unconvinced that Texas was going to prevail on the merits. By nevertheless issuing an injunction pending appeal in that context, the Fifth Circuit basically turned itself into the trial court—and claimed authority to restrain the federal government that no statute has granted to it.

Of course, the Fifth Circuit is free to reverse Chief Judge Moses’s denial of a preliminary injunction on the merits, but only if it finds that Chief Judge Moses abused her discretion in denying it. The injunction pending appeal thus pretermits what’s supposed to happen in these cases (and, as last week’s order in the Jackson case suggests, is now viewed in the Fifth Circuit as establishing the proposition that the standard for an injunction pending appeal is the same as a stay).

As critical as I have been of the Fifth Circuit, the Eighth Circuit’s misadventure in the student loan case drives home that this is a bigger problem than just a single rogue court of appeals. And as I explain at some length in The Shadow Docket, the Supreme Court hasn’t helped matters. The unsigned majority opinions respecting the grants of injunctions pending appeal in both Roman Catholic Diocese of Brooklyn and Tandon v. Newsom both appear to apply the traditional stay factors in a context in which more should have been required. And in Tandon, specifically, the Court granted an injunction pending appeal based upon a new principle of Free Exercise Clause jurisprudence—a principle that could hardly have been (and was not) “indisputably clear” prior to the Court’s intervention. To similar effect, grants of emergency relief like last Friday’s in the Idaho abortion case, in which stays are granted in contexts in which the irreparable harm arguments are dubious at best, only reinforce the perception—if not the reality—that the justices aren’t especially particular about the (often material) differences between the different standards for emergency relief.

But insofar as all of these authorities to grant emergency relief are statutory, lower courts, in particular, are bound to follow the Supreme Court’s governing interpretations of those authorities until and unless the Court expressly overrules them. Thus, even if the Court is playing fast and loose in some of these cases, that’s no excuse for lower courts to do the same. Maybe the Supreme Court will use the razor-wire case as an opportunity to reassert the proper standard of review for an injunction pending appeal—a standard that, properly applied, would easily support the Biden administration’s request to have the Fifth Circuit’s injunction vacated.

I’m not holding my breath.

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We’ll be back Monday with our regular coverage of the Court. Until then, thanks for reading; I hope you have a great weekend!

1. Indeed, if the basis for “irreparable harm” was that any frustration of a duly enacted statute irreparably harms the government that enacted it, the Idaho case presents that problem on both sides—since either Idaho’s abortion ban or EMTALA (a federal statute) had to give. And in any event, how a state is irreparably harmed by temporarily losing the ability to prosecute a doctor who performs an abortion that was necessary to stabilize a pregnant woman with an emergency medical condition is … not obvious.

2. Although the passage from Justice Scalia’s in-chambers opinion frames the issue by reference to the power of an individual justice, the Supreme Court has made clear that the same standard (and considerations) apply to grants of injunctions pending appeal by the full Court.