                            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;
       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.




                             2
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




                           3
                        _________

               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 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. Apr. 8, 2020).
3
  Initially, there were twenty-two petitioners, but two were
released by agreement with the Government.




                             4
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




                             5
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.




                              6
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.




                            7
                             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.”




                              8
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.




                             9
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




                            10
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”




                              11
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).




                            12
                            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




                            13
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.




                            14
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 re-
detention 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




                            15
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.




                            16
