Recently in the news there has been much talk about “temporary restraining orders”, particularly in connection with the suspension of the President’s “travel ban” by various federal courts. So what is a temporary restraining order (“TRO”)?
A TRO is a type of injunction issued by a court sitting in equity. Typically a TRO is issued very early in a court case, sometimes at the commencement of the case. TROs are often granted without notice to the adverse party; this is to provide immediate relief without delay, typically in the case of an emergency or significant threat to personal or property rights. A TRO is almost always issued to preserve the status quo; a TRO will only be issued to preserve the last actual, peaceable, non-contested status which preceded the pending controversy. In the case of the President’s travel ban, a TRO was entered to preserve the rules on travel as they existed prior to the President’s two Executive Orders.
The courts typically look at a number of factors in deciding whether to grant or deny a TRO. These include the following:
- injunctive relief is necessary to prevent immediate and irreparable harm;
- greater injury would result from refusing a TRO than from granting it;
- the TRO would properly restore the parties to their status quo immediately prior to the alleged wrongful conduct;
- the party seeking the TRO is likely to prevail on the merits of the case;
- the requested TRO is reasonably suited to eliminate the offending activity;
- the TRO would not adversely affect the public interest.
In some ways a TRO could be understood by comparing it to the preliminary injunction and the permanent injunction. A TRO is really a form of preliminary injunction issued on a very limited factual record at a very early stage of the litigation. TROs are always of limited duration and must be dissolved unless a further hearing on a more developed factual record is held to determine whether the TRO should be continued in force as a preliminary injunction. If a TRO is kept in force and converted to a preliminary injunction (as it was in the President’s travel ban case), the next step is for the court to hold a final hearing on the merits to decide whether the offending conduct should be permanently enjoined. Thus, the TRO is the first step in what is a 3-step process leading to the issuance of a permanent injunction.
– Kevin Palmer