Fourth Circuit Eliminates Balance of Hardships Test for Preliminary Injunctions
By Bob Numbers
Until today's decision in The Real Truth About Obama, Inc. v. Federal Election Commission, parties seeking a preliminary injunction in the Fourth Circuit had to satisfy the balance-of-hardship test set out in Blackwelder Furniture Company of Statesville v. Selig Manufacturing. However, the Supreme Court's 2008 decision in Winter v. Natural Resources Defense Council modified the standard for preliminary injunctions and caused a number of courts to question the continued viability of Blackwelder.
The Fourth Circuit resolved the "fatal tension" between Blackwelder and Winter by holding that "the Blackwelder balance-of-hardships test may no longer be applied in granting or denying preliminary injunctions in the Fourth Circuit[.]" Instead, parties seeking a preliminary injunction must demonstrate that they are likely to succeed on the merits, that they are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in their favor, and that an injunction is in the public interest.
The Fourth Circuit identified several ways in which the Winter test sets a higher bar for parties seeking a preliminary injunction. First, Winter replaces Blackwelder's standard that the plaintiff show a "grave or serious question for litigation" with a requirement that the plaintiff "clearly demonstrate that it will likely succeed on the merits." Second a plaintiff must now "make a clear showing that is likely to be irreparably harmed" absent a preliminary injunction. Courts can no longer weigh the possibility of irreparable injury against the probability of success. Third, Winter requires courts to pay "particular regard" to the public interest implicated by the injunction. Finally, Winter requires that each element be "satisfied as articulated" instead of allowing courts to disregard some elements if other elements weigh heavily in the plaintiff's favor.
The Fourth Circuit resolved the "fatal tension" between Blackwelder and Winter by holding that "the Blackwelder balance-of-hardships test may no longer be applied in granting or denying preliminary injunctions in the Fourth Circuit[.]" Instead, parties seeking a preliminary injunction must demonstrate that they are likely to succeed on the merits, that they are likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in their favor, and that an injunction is in the public interest.
The Fourth Circuit identified several ways in which the Winter test sets a higher bar for parties seeking a preliminary injunction. First, Winter replaces Blackwelder's standard that the plaintiff show a "grave or serious question for litigation" with a requirement that the plaintiff "clearly demonstrate that it will likely succeed on the merits." Second a plaintiff must now "make a clear showing that is likely to be irreparably harmed" absent a preliminary injunction. Courts can no longer weigh the possibility of irreparable injury against the probability of success. Third, Winter requires courts to pay "particular regard" to the public interest implicated by the injunction. Finally, Winter requires that each element be "satisfied as articulated" instead of allowing courts to disregard some elements if other elements weigh heavily in the plaintiff's favor.
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