Summary
finding that the essence of a temporary restraining order is "its brevity, its ex parte character, and ... its informality," whereas a preliminary injunction: the latter is appealable, the former is not
Summary of this case from Indianapolis Fruit Co. v. Green Bean Delivery, LLCOpinion
No. 92-2014.
Submitted May 8, 1992.
Decided May 11, 1992. Opinion May 18, 1992.
The opinion was released in typescript because of the urgency of the relief requested.
Frank K. Heap, Charles G. Albert, Alfreda Bradley, Bell, Boyd Lloyd, Chicago, Ill., for plaintiffs-appellants.
John F. Ward, Terri L. Mascherin, Theodore Tetzlaff, Scott C. Tomassi, Jenner Block, Daniel T. Schibley, Dennis J. O'Hara, Wilson McIlvaine, Chicago, Ill., John F. Early, Early, Collison, Tousey, Regan, Wlodek Morrow, Elgin, Ill., Mary K. Sammons, William H. White, Ophelia S. Camina, Susman Godfrey, Houston, Tex., Bruce R. Meckler, Mark A. Brand, Michael I. Leonard, Pope John, Gary A. Grasso, Heather H. Alderman, Cole, Grasso, Fencl Skinner, Paul S. Turner, Robert B. Blasio, McCullough, Campell Lane, Jeffrey T. Gilbert, Patricia J. Kendall, Sachnoff Weaver, Chicago, Ill., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Illinois.
Before BAUER, Chief Judge, POSNER, Circuit Judge, and WOOD, Jr., Senior Circuit Judge.
We have before us a motion to stay a temporary restraining order pending the decision of our appeal from that order. The parties seem unaware of the fact that a temporary restraining order is not an appealable order. So far as relevant to this case, 28 U.S.C. § 1292(a)(1) confines our jurisdiction to review interlocutory orders to orders granting or denying a preliminary injunction, which is a different animal from a temporary restraining order. Fed.R.Civ.P. 65(a), (b).
What is true, although not remarked by any of the parties, is that the name which the judge gives the order is not determinative. Sampson v. Murray, 415 U.S. 61, 85-88, 94 S.Ct. 937, 950-951, 39 L.Ed.2d 166 (1974); Diginet, Inc. v. Western Union ATS, Inc., 958 F.2d 1388, 1392 (7th Cir. 1992); Doe v. Village of Crestwood, 917 F.2d 1476, 1477 (7th Cir. 1990); McDougald v. Jenson, 786 F.2d 1465, 1472 (11th Cir. 1986); 11 Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 2953 (1973). If it were, a judge could defeat a party's right to appeal by calling a preliminary injunction a temporary restraining order. So we must dig below the verbal surface.
The essence of a temporary restraining order is its brevity, its ex parte character, and (related to the second element) its informality; the first element reduces the necessity for immediate appellate review and the third makes such review difficult because of the absence of a record. Rule 65(b) confines a temporary restraining order to ten days, plus one ten-day extension upon good cause shown, "unless the party against whom the order is directed consents that it may be extended for a longer period." The judge in our case entered, at the defendants' request, a "temporary restraining order" on April 24 that was to expire ten days later, on May 4. On April 29, at a status hearing, the order was extended by "agreement of the parties" until May 19, the date scheduled for a hearing on the defendants' motion for a preliminary injunction. Nothing in this sequence altered the status of the April 24 order. It was a bona fide, true-blue temporary restraining order, and therefore it was not appealable. True, a remark in the transcript of the status hearing suggests that the plaintiffs consented to the extension because they thought the order appealable and were planning to ask us for a stay. But a misapprehension of the rules governing appealability does not convert a temporary restraining order into a preliminary injunction.
We have no jurisdiction, and we therefore dismiss the appeal and the motion for a stay.