On January 2, 2006, tragedy struck Upshur County, West Virginia in the form of an explosion at a mine owned by Wolf Run Mining Company.  Twelve miners died, and one miraculously survived; the story made national news for several reasons, including the erroneous original report that twelve had survived and only one died.  The Mine Safety Administration initiated an investigation of the explosion.

As provided under federal law, the miners had a right to have a representative accompany the MSA investigator.  92 of the 97 miners at the site elected to represent themselves.  Two others made anonymous designations in favor of the United Mine Workers of America.  That didn’t sit well with Wolf Run, which had successfully resisted unionization of the mine; it prohibited the UMWA representative from entering its property on the scheduled inspection (January 25, at 3:30 pm).  That’s when some of the fastest lawyers east of the Pecos got to work.

Forty minutes after the company barred the union, a hearing was convened in district court on a request for a TRO and a preliminary injunction.  You read that right; forty minutes.  The court considered evidence and briefs that had been prepared by the parties in advance; at the conclusion of the hearing, it continued the hearing until 10 am the next morning.  After further proceedings then, the court determined to enter a preliminary injunction, not a TRO, and permitted the union to serve as the two anonymous miners’ representatives.

If you practice in federal court much, you know that there is one major difference between the effect of these two orders — a TRO must expire no later than ten days after entry, while a preliminary injunction expires whenever the court decides it will.  (Procedurally, a TRO can be granted with little or no notice to the opposing party, while an injunction requires notice and an opportunity to be heard.)  The mine’s lawyer objected that there was no expiration date on what should have been a TRO, and that became a key issue in the Fourth Circuit.

Wolf Run appealed.  Today, in US Dep’t of Labor v. Wolf Run Mining Co ., the Fourth Circuit affirms.  It notes that most of the issues that really concern the parties are premature for adjudication.  (The company thinks the union is just getting a foot in the door to start organizing; the union is worried that the company will identify and fire the two anonymous miners who called UMWA in.)  But the ruling is absolutely essential reading for anyone who litigates injunction cases, for its discussion of when a TRO is appropriate, and when a preliminary injunction can replace it.  Since Virginia appellate caselaw on temporary injunctions is remarkably scant (the most common citation in Virginia state injunction proceedings is Blackwelder Furniture v. Seilig Mfg., a Fourth Circuit case from 1977), any decision that explains injunction standards will have at least some application in state court proceedings.  Today’s decision is the most recent pronouncement on this contentious issue.

This is one case in which careful advance preparation works against a litigant.  The decisive fact on the objection noted above was that the company never contended in the district court that it wasn’t given enough time to prepare for an injunction hearing.  The district court, obviously (and justifiably) respectful of the job its lawyers had done in preparing the argument, regarded that the company had enough notice of what was contemplated to warrant granting an injunction instead of a TRO.  Lawyers who have occasion to litigate injunctions and TRO’s should note well the fact that, as this case illustrates, it’s possible to get an injunction, and not just a TRO, less than 24 hours after the events, if you plan things well.

Left unsaid is whether this ruling will have the unintended and unfortunate effect of producing uncooperative defendants.  As noted above, the company lost this appeal largely because it was willing to play ball with the MSA and the other litigants in order to facilitate a quick hearing.  If it had sat back and done nothing in preparation for the hearing, it might have faced an angrier judge in the district court, but it probably would have walked out of court with nothing worse than a (very temporary) TRO in place.  As today’s opinion notes, it is likely in a short-lived case like this that the issuance of the preliminary injunction essentially determines the outcome of the case on the merits.