Fourth Circuit Adopts New Injunction Standard

August 6, 2009

On Wednesday, the United States Court of Appeals for the Fourth Circuit issued a decision that changes the standard for the evaluation of a motion for preliminary injunction, discarding a standard that had been used for more than thirty years.

Since 1977, courts in the Fourth Circuit have followed the “balance-of-hardship” test originally set forth in Blackwelder Furniture Co. of Statesville v. Seilig Manufacturing Co., 550 F.2d 189 (4th Cir. 1977). Under the Blackwelder standard, the court would first balance the likelihood of irreparable harm to the plaintiff against the likelihood of irreparable harm to the defendant. Id. at 195. If the balance favored the plaintiff, then the court would determine whether the plaintiff “raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair grounds for litigation and thus for more deliberate investigation.” Id.

In Wednesday’s decision, The Real Truth About Obama, Inc. v. Federal Election Commission, Case No. 08-1977, the Court found that the Blackwelder standard for evaluating preliminary injunction requests stood in “fatal tension” with the standard recently set forth by the Supreme Court of the United States in Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365 (2008), and adopted the Winter standard. Pursuant to the Winter decision, a plaintiff seeking to obtain a preliminary injunction must show “[1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest.” Id. at 374.

The key differences between the Winter and the Blackwelder standards are:

  1. Winter requires that the plaintiff clearly demonstrate that it will likely succeed on the merits, which is a much stricter standard than the Blackwelder requirement that the plaintiff only demonstrate a serious or grave question for litigation;
  2. Winter requires that the plaintiff make a clear showing that it is likely to suffer irreparable harm, which is also much stricter than the Blackwelder standard, where the court only had to find that the harm to plaintiff outweighed the harm to the defendant, and the plaintiff only had to establish a possibility of irreparable injury upon a strong showing on the probability of success;
  3. Winter emphasizes the public interest requirement more than Blackwelder; and
  4. All four of the requirements under Winter must be met for a preliminary injunction to issue, whereas Blackwelder allowed for a “flexible interplay” of the factors.

The Real Truth About Obama case involved an organization that sought a preliminary injunction against the Federal Election Commission to prevent it from enforcing several election regulations, alleging that the regulations chilled its right to disseminate information about presidential candidate Obama’s position on abortion. The Fourth Circuit affirmed the district court’s denial of plaintiff’s motion for preliminary injunction under an abuse of discretion standard, using the test set forth in Winter. Click here to read the opinion.