THE OTHER SHOE DROPS –
[Posted August 6, 2009] For over thirty years, litigants in the district courts comprising the Fourth Circuit have turned to one case when analyzing preliminary injunctions: Blackwelder Furniture Co. v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977). If you Shepardize Blackwelder using an online database, your CPU will start to smoke and make funny noises; it has been cited well over 1,000 times.
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 plaintiff’s 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; you’ve 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 doesn’t get any less steep just because she passes that test.
2. Will Virginia courts follow suit? Trial courts have long noted glumly that while the Fourth Circuit’s body of preliminary-injunction caselaw has been vibrant, the Supreme Court of Virginia has mostly sat on the sidelines, giving trial courts little guidance on whether Blackwelder’s test is the law in Virginia, too. The circuit courts have therefore shrugged and applied the Blackwelder analysis to requests for temporary injunctions. The Supreme Court’s most recent pronouncement on this topic, Levisa Coal Co. v. Consolidation Coal Co., 276 Va. 44 (2008), evaluates the standard for granting permanent, not temporary, injunctions; hence there is no discussion of the likelihood of success. (By the time the court gets around to issuing or refusing a permanent injunction, the probability of success is going to be either zero or 100%.) In the long run, my best guess is that Virginia trial courts will employ Winter, not Blackwelder, and if the justices in Richmond ever get around to deciding such a case, they will, too. (By the way, the reason there’s not much temporary-injunction caselaw on the Virginia books is procedural, not philosophical; such injunctions are always evaluated by a panel of three justices, not by the entire court. Hence those orders are virtually always unpublished.)
3. Then there’s the little problem with the name of the new doctrine. The plaintiff in the district court is named The Real Truth About Obama, Inc.; it’s an organization that was founded during the 2008 presidential campaign and that sought to run ads about then-Senator Obama’s views on abortion. So do we now call this the “Real Truth test”? Or, more formally, the “Real Truth About Obama analysis”? The latter seems overtly political; the former makes it sound as though the Almighty will be doing the evaluating. (Yes, I’ve heard the jokes about God and US District Judges.) I have a gentle suggestion that will avoid both problems: Call it the Winter analysis, just like the Fourth does. Donald Winter was the Secretary of the Navy under the Bush Administration (and in the first weeks of the Obama Administration), and I doubt he’ll mind our borrowing his name for this purpose.