Fourth Circuit Reverses “Blackwelder” Test For Granting Preliminary Injunctions

   In the case of The Real Truth About Obama, Inc. v. Federal Election Commission, No. 1977 (4th Cir. Aug. 5, 2009) (http://www.fec.gov/law/litigation/rtao_ac_opinion_deny_pi.pdf), the Fourth Circuit Court of Appeals substantially tightened the test for obtaining preliminary injunctions. Prior to its recent ruling, the standard for obtaining a preliminary injunction in the Fourth Circuit examined first the balance of hardship among the parties. Thus, the first step in the process was for the Court to balance the likelihood of irreparable harm to the plaintiff against the likelihood of harm to the defendant. If the analysis resulted in an imbalance in the plaintiff’s favor, then the Court merely had to determine whether the plaintiff raised questions on the merits of the case so serious, substantial, difficult and doubtful as to make them fair ground for litigation. See Blackwelder Furniture Co. of Statesville v. Seilig Manufacturing Co., 550 F.2d 149 (4th Cir. 1977).  

    In The Real Truth About Obama, the Court observed that its Blackwelder standard now stands in fatal tension with the United States Supreme Court’s decision in Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365 (2008). In Winter, the Supreme Court articulated clearly what must be shown to obtain a preliminary injunction, stating that the plaintiff must establish: (1) that it is likely to succeed on the merits; (2) that it is likely to suffer irreparable harm in the absence of injunctive relief; (3) that the balance of equities tips in its favor; and (4) that an injunction is in the public interest. Winter, 129 S. Ct. at 374. The new preliminary injunction test in the Fourth Circuit, which follows the decision in Winter, alters the Blackwelder standard as follows: 

•    First, the plaintiff must make a clear showing that it will likely succeed on the merits at trial. (In Blackwelder, the Fourth Circuit instructed that the likelihood of success requirement be considered, if at all, only after a balancing of hardships.) 

•    Second, the plaintiff must make a clear showing that it is likely to be irreparably harmed absent preliminary relief. (Blackwelder, on the other hand, required that the courts balance the irreparable harm to the respective parties, requiring only that the harm to the plaintiff outweigh the harm to the defendant.) 

•    Third, courts should pay particular regard to the public consequences of employing the extraordinary remedy of injunction. 

•    Fourth, while Winter articulates four requirements, each of which must be satisfied, Blackwelder allowed requirements to be conditionally redefined as other requirements were more fully satisfied so that granting or denying a preliminary injunction depended upon a “flexible interplay” among all the factors considered.  

This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author see here.