FOURTH CIRCUIT JETTISONS BLACKWELDER
The primary holding of Blackwelder is that a court evaluating a request for a preliminary injunction looks to four factors: (1) The likelihood of irreparable harm to the plaintiff if the injunction is not granted; (2) the likelihood of harm to the defendant if the injunction is granted; (3) the plaintiffs probability of success on the merits; and (4) the public interest. The court’s analysis of the first two factors is called the balance of equities test. The heart of the Blackwelder doctrine is this: If the balance of equities strongly favors the plaintiff, then she need not make a strong showing of likelihood of success; she might only have to demonstrate a substantial question, in which case she gets her injunction. The courts have referred to this as a sliding scale for showing probability of success.
This ol sliding scale has accumulated a few critics over the years, even within the Fourth Circuit. Judge Michael Luttig sharply criticized the doctrine, before his departure for greener pastures, in a concurring opinion in Safety-Kleen v. Wyche, 274 F.3d 846, 868 (4th Cir. 2001). His criticism seemed to find purchase when the Supreme Court issued a June 2008 opinion in an antitrust case, Munaf v. Geren, 128 S.Ct. 2207 (2008), in which it required the plaintiff to demonstrate all four elements in order to obtain relief. Any question of whether that ruling would be limited to the antitrust context ended five months later, with the issuance of Winter v. Natural Resources Defense Council, 129 S.Ct. 365 (2008), an environmental law case. Neither opinion mentioned Blackwelder by name, but the sliding-scale doctrine looked to be on its last legs; the Fourth did cite it once in May for the four factors, but that decision mentioned nothing about the sliding scale.
Yesterday, a panel of the court declared Blackwelder to be really-most-sincerely dead. In Real Truth About Obama v. FEC, this stark line appears: Because of its differences with the Winter test, the Blackwelder balance-of-hardship test may no longer be applied in granting or denying preliminary injunctions in the Fourth Circuit, as the standard articulated in Winter governs the issuance of preliminary injunctions not only in the Fourth Circuit but in all federal courts.
Talk about an abrupt change of course! A whole generation of lawyers has grown up with nothing but the warm comfort of the familiar Blackwelder test to guide it through the vicious gales of preliminary-injunction law, and now the security blanket gets thrown out with the recyclables. That being said, the new doctrine still looks a lot like Blackwelder; youve got the same four factors to consider, anyway. Here are a few observations that occur to me right now:
1. It just got harder way harder for plaintiffs to get injunctive relief. In the past, more than a few injunctions have been granted on fairly flimsy prospects of ultimate success, simply because the unavailability of preliminary injunctive relief would be devastating to the plaintiff. Now, the balance of hardships still has to favor the plaintiff, but the trail doesnt get any less steep just because she passes that test.