\\jciprod01\productn\C\COL\111-7\COL703.txt
unknown
Seq: 1
28-OCT-11
14:42
NOTES
RECONCILIATION AFTER WINTER: THE STANDARD FOR
PRELIMINARY INJUNCTIONS IN FEDERAL COURTS
Bethany M. Bates*
Preliminary injunctions are among the most broadly and frequently
used remedies employed by the federal courts, and courts have traditionally
used a four-factor test in determining whether to grant a preliminary injunction. However, circuit courts are divided on the validity of the “sliding scale”
test, in which the trial court weighs the strength of each of the factors against
one another and allows serious questions going to the merits to satisfy the
likelihood of success prong. In a recent decision involving the propriety of a
preliminary injunction—Winter v. Natural Resources Defense Council—the Supreme Court failed to comment on whether the sliding scale test
remains viable, thus deepening the existing circuit split. This Note analyzes
this divide, focusing on the extent to which different circuits balance the four
factors and the degree to which they require a showing of likelihood of success
on the merits. This Note argues that courts after Winter should be able to
incorporate a sliding scale analysis that allows a stronger showing on one
factor to compensate for a weaker showing on another, and also permits for
serious questions going to the merits to suffice for the likelihood of success
prong.
INTRODUCTION
This Note addresses a circuit split surrounding the appropriate standard for granting preliminary injunctions in federal courts. Preliminary
injunctions “may be the most striking remedy wielded by contemporary
courts,” and thus uniformity in this area is needed to prevent inconsistent
and inequitable decisions.1 Traditionally, courts have applied four factors
in determining whether to grant a preliminary injunction: (1) whether
the movant will be irreparably harmed in the absence of an injunction,
(2) the movant’s likelihood of success, (3) the balance between the harm
* J.D. Candidate 2012, Columbia Law School.
1. John Leubsdorf, The Standard for Preliminary Injunctions, 91 Harv. L. Rev. 525,
525 (1978) [hereinafter Leubsdorf, Standard] (footnotes omitted) (noting preliminary
injunctions can “block the enforcement of legislation, place a candidate on the ballot,
forbid strikes, prevent mergers, or enforce a school desegregation plan”); see also Morton
Denlow, The Motion for a Preliminary Injunction: Time for a Uniform Federal Standard,
22 Rev. Litig. 495, 530–31, 533 (2003) (stating “inconsistent judgments” and “inequitable
decisions” are two consequences of lack of uniform standard, and arguing Supreme Court
should articulate uniform standard that “define[s] the elements necessary for obtaining a
preliminary injunction and provide[s] guidance as to how those standards should apply
while providing trial courts with necessary discretion”); The Supreme Court, 1998 Term—
Leading Cases, 113 Harv. L. Rev. 316, 316 (1999) (describing equitable power to issue
preliminary injunction as “among a court’s most formidable tools”).
1522
\\jciprod01\productn\C\COL\111-7\COL703.txt
2011]
unknown
Seq: 2
RECONCILIATION AFTER WINTER
28-OCT-11
14:42
1523
to the movant and the harm to the nonmovant, and (4) the public interest.2 Many circuits have taken an all-in balancing (or “sliding scale”) approach to this four-factor test, allowing a stronger showing on one factor
to compensate for a weaker showing on another. In particular, some circuits will substitute a more lenient “serious questions” criterion in lieu of
a “likelihood” test when the other factors are stronger.
The recent Supreme Court case Winter v. Natural Resources Defense
Council 3 has now unsettled this traditional approach in at least one circuit, and has provoked uncertainties in others.4 Winter reiterated that a
movant must show the traditional four factors, stating that only showing a
“possibility” of irreparable harm was not enough.5 However, the Court
failed to comment on whether courts could use a sliding scale analysis or
whether a movant could be granted a preliminary injunction based on a
showing that there are serious questions going to the merits.6 The circuits’ varied and often conflicting responses to Winter have raised important questions regarding the standard for granting a preliminary injunction. Has the sliding scale test survived Winter? Does Winter still leave
room for the lighter serious questions criterion as part of the sliding scale
test? If the answers are yes, should the circuits all adopt this variant of the
sliding scale approach for the sake of uniformity?
This Note argues that, in considering whether to grant a preliminary
injunction, district courts should incorporate a sliding scale analysis that
weighs the four factors against one another. Following the Second,
Seventh, and Ninth Circuits’ approaches,7 it also argues that courts
should allow “serious questions” going to the merits to suffice for the
likelihood of success prong. Part I of this Note provides an introduction
2. 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 2948 (2d ed. 1995 & Supp. 2011).
3. 129 S. Ct. 365 (2008).
4. Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 346–47 (4th Cir. 2009)
(holding “serious questions” test failed to survive after Winter), vacated, 130 S. Ct. 2371
(2010); see also infra notes 132–141 and accompanying text (discussing Fourth Circuit’s
reaction to Winter). At least three circuits, however, have held that the sliding scale test
survived Winter. See Alliance for the Wild Rockies v. Cottrell (Wild Rockies II), 632 F.3d
1127, 1131–32 (9th Cir. 2011) (“[T]he ‘serious questions’ approach survives Winter when
applied as part of the four-element Winter test.”); Citigroup Global Mkts., Inc. v. VCG
Special Opportunities Master Fund Ltd., 598 F.3d 30, 38 (2d Cir. 2010) (“[W]e hold that
our venerable standard for assessing a movant’s probability of success on the merits
remains valid and that the district court did not err in applying the ‘serious questions’
standard . . . .”); Hoosier Energy Rural Elec. Coop., Inc. v. John Hancock Life Ins. Co., 582
F.3d 721, 725 (7th Cir. 2009) (stating there “must be a plausible claim on the merits” and
“[h]ow strong a claim on the merits is enough depends on the balance of harms”).
5. 129 S. Ct. at 375 (“We agree with the Navy that the Ninth Circuit’s ‘possibility’
standard is too lenient.”).
6. Cf. id. at 392 (Ginsburg, J., dissenting) (“This Court has never rejected [the sliding
scale test], and I do not believe it does so today.”).
7. See infra notes 96–97 and accompanying text (discussing Second Circuit); infra
notes 119–122 and accompanying text (discussing Seventh Circuit); infra notes 113–116
and accompanying text (discussing Ninth Circuit).
R
R
R
\\jciprod01\productn\C\COL\111-7\COL703.txt
1524
unknown
Seq: 3
COLUMBIA LAW REVIEW
28-OCT-11
14:42
[Vol. 111:1522
to preliminary injunctions and the different circuits’ tests before Winter.
It also describes the background to Winter and Winter’s articulation of the
proper standard. Part II then examines the reactions to Winter in different circuits and the resulting doctrinal confusion. Ultimately, Part III argues that this confusion should be resolved by the adoption of a uniform
approach modeled after the Second, Seventh, and Ninth Circuits’.
I. THE EVOLUTION
OF THE
STANDARDS
FOR
PRELIMINARY INJUNCTIONS
Although preliminary injunctions have long been a common tool in
federal litigation practice, courts have not clearly articulated the substantive policy basis of the standard until fairly recently.8 Despite preliminary
injunctions’ origins in the English Courts of Chancery, the idea that they
should be governed by a single standard did not take hold until well into
the nineteenth century. As early as 1978, scholars noted the inconsistent
formulations of the standard for the exercise of preliminary injunctions.9
This Part aims to provide a historical background to preliminary injunctions and focuses on the four traditional factors of the standard and how
courts have implemented these factors. Part I.A addresses the history and
purpose of preliminary injunctions, followed by Part I.B, which discusses
the different standards various circuit courts have developed to determine whether to grant a preliminary injunction, emphasizing their differences and the consequent confusion among the circuit courts. Part I.C
addresses the Supreme Court’s most recent explanation of the proper
standard for preliminary injunctions in federal courts in Winter.
A. Basics of Preliminary Injunctions
This section discusses the history of preliminary injunctions and the
origin and evolution of the four factors of the traditional preliminary injunction standard. More generally, there are three types of injunctions
that can be issued by a federal court: the temporary restraining order, the
preliminary injunction, and the permanent injunction.10 Historically, the
main prerequisite to obtaining injunctive relief was a “finding that plain8. See Denlow, supra note 1, at 497 (noting “‘dizzying’ array of standards employed
by the courts of appeals” (quoting Leubsdorf, Standard, supra note 1, at 526)); Thomas R.
Lee, Preliminary Injunctions and the Status Quo, 58 Wash. & Lee L. Rev. 109, 149–50
(2001) (“For many years, the courts exercised their discretion to issue preliminary relief
under an undefined ‘balance’ of the four traditional factors, without any substantial
explanation of the policy behind the standard.”); Leubsdorf, Standard, supra note 1, at 525
(“The standard for the exercise of this immense power suffers from inconsistent
formulations.”).
9. Leubsdorf, Standard, supra note 1, at 527 (“The idea that there should be a single
standard for all preliminary injunction cases emerged in nineteenth-century England.”);
see also Susan H. Black, A New Look at Preliminary Injunctions: Can Principles from the
Past Offer Any Guidelines to Decisionmakers in the Future?, 36 Ala. L. Rev. 1, 5 (1984)
(“Not until the nineteenth century did courts begin to formulate standards for granting or
denying preliminary injunctions.”).
10. 11A Wright et al., supra note 2, § 2941.
R
R
R
R
\\jciprod01\productn\C\COL\111-7\COL703.txt
2011]
unknown
Seq: 4
RECONCILIATION AFTER WINTER
28-OCT-11
14:42
1525
tiff is being threatened by some injury for which he has no adequate legal
remedy.”11 For all three types of injunctions, the most important component in the judicial decision whether to grant injunctive relief is the
court’s discretion.12
A preliminary injunction is an injunction issued to “protect plaintiff
from irreparable injury and to preserve the court’s power to render a
meaningful decision after a trial on the merits.”13 The Federal Rules of
Civil Procedure provide for the remedy of a preliminary injunction but
do not specify the circumstances under which it can be granted.14 Therefore, the trial court has the discretion to grant or deny a preliminary injunction.15 It can exercise this discretion in accordance with “historic federal equity practice.”16
Preliminary injunctions are broadly used and can be sought for
causes of action ranging from patent infringement to school desegrega11. Id. § 2942 (“‘There is no power the exercise of which is more delicate, which
requires greater caution, deliberation, and sound discretion, or more dangerous in a
doubtful case, than the issuing [of] an injunction. . . .’” (quoting Bonaparte v. Camden &
Amboy R.R. Co., 3 F. Cas. 821, 827 (C.C.D.N.J. 1830) (No. 1617))).
12. Id. (noting court’s decision “depends on the circumstances of each case”).
Preliminary injunctions differ from temporary restraining orders in that the latter may be
issued ex parte without an adversarial hearing in order to prevent an immediate,
irreparable injury and are of limited duration, whereas Rule 65(a)(1) requires that notice
be given to the opposing party before a preliminary injunction may be issued. Fed. R. Civ.
P. 65(a); see also 11A Wright et al., supra note 2, § 2947 (discussing preliminary
injunctions); id. §§ 2951–2953 (discussing temporary restraining orders). Furthermore, a
preliminary injunction usually lasts until the completion of the trial on the merits; as such,
its duration varies depending on the nature of the situation in which it is granted. Id.
§ 2947.
13. 11A Wright et al., supra note 2, § 2947; see also Beltronics USA, Inc. v. Midwest
Inventory Distribution, LLC, 562 F.3d 1067, 1071 (10th Cir. 2009) (noting one goal of
preliminary injunctions is to “‘preserve the relative positions of the parties until a trial on
the merits can be held’” (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981))).
14. Fed. R. Civ. P. 65(a)(1) (“The court may issue a preliminary injunction only on
notice to the adverse party.”).
15. 11A Wright et al., supra note 2, § 2947; see also Gonzalez v. O Centro Espirita
Beneficente Uniao Do Vegetal, 546 U.S. 418, 428 (2006) (reviewing district court’s
“ultimate decision to issue [a] preliminary injunction for abuse of discretion”); Advent
Elecs., Inc. v. Buckman, 112 F.3d 267, 274 (7th Cir. 1997) (“A district court has broad
discretion to issue or deny a preliminary injunction.” (citing Hoosier Penn Oil Co. v.
Ashland Oil Co., 934 F.2d 882, 884–85 (7th Cir. 1991))).
16. 11A Wright et al., supra note 2, § 2947; see also Grupo Mexicano de Desarrollo,
S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 318 (1999) (“The ‘jurisdiction’ thus
conferred [by the Judiciary Act of 1789] is an authority to administer in equity suits the
principles of the system of judicial remedies . . . administered by the English Court of
Chancery at the time of the separation of the two counties.” (quoting Atlas Life Ins. Co. v.
W.I.S. Inc., 306 U.S. 563, 568 (1939))); Lawson Prods., Inc. v. Avnet, Inc., 782 F.2d 1429,
1435 (7th Cir. 1986) (“[T]he equitable personality of injunctive relief requires the result to
be a ‘just’ or ‘fair’ result rather than a ‘correct’ result.” (citing 1 S. Symons, Pomeroy’s
Equity Jurisprudence § 59 (5th ed. 1941))); A.L.K. Corp. v. Columbia Pictures Indus., Inc.,
440 F.2d 761, 763 (3d Cir. 1971) (noting discretion of district court must be “guided by the
traditional principles of equity”).
R
R
R
R
\\jciprod01\productn\C\COL\111-7\COL703.txt
1526
unknown
Seq: 5
COLUMBIA LAW REVIEW
28-OCT-11
14:42
[Vol. 111:1522
tion.17 However, a preliminary injunction is an “extraordinary remedy”
and “never awarded as of right.”18 The Supreme Court has emphasized
that, as such, it should not be granted unless the movant carries the burden of persuasion by a clear showing.19
In the nineteenth century, the idea that there should be a single
standard for all preliminary injunction cases emerged in England.20 This
focus on general principles governing the standard for granting a preliminary injunction was born in part out of the need for uniform decisions
among the more numerous judges sitting in Chancery.21 It was also influenced by the trend to restrain equity’s discretion by imposing more standardized rules and systemizing all branches of law. Various strands of
what would become a uniform standard for preliminary injunctions then
emerged to protect common law rights pending their litigation.22 One of
these strands was the strength of the plaintiff’s case. Over time, courts
exhibited an “increasing willingness to protect the plaintiff whose
chances of success were not absolutely clear.”23 Eventually, it was enough
that the plaintiff had raised a “fair matter for investigation” or made out a
prima facie case.24 Two more of these strands were whether the movant
had shown irreparable injury and the “balance of conveniences,” i.e., the
balance of harms to the movant and the nonmovant.25 The focus on irreparable injury reflected Chancery’s view that it would intervene when
remedies consisting solely of damages were inadequate.26 The flexibility
inherent in the “balancing of conveniences” developed into a tool for
close analysis of the equities in each case.
17. Richard R.W. Brooks & Warren F. Schwartz, Legal Uncertainty, Economic
Efficiency, and the Preliminary Injunction Doctrine, 58 Stan. L. Rev. 381, 382–83 (2005)
(“Parties seek injunctions to enjoin patent, copyright, and trademark infringements,
corporate mergers, breaches of contract, nuisances, marriages, entertainment, and even
manner of dress.”); Leubsdorf, Standard, supra note 1, at 525 (noting use in desegregation
cases).
18. Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 376 (2008) (citing Munaf
v. Geren, 553 U.S. 674, 676 (2008)).
19. Id. (citing Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)).
20. See supra note 9 and accompanying text (noting idea there should be single
standard for preliminary injunctions did not take hold until well into nineteenth century);
see also Leubsdorf, Standard, supra note 1, at 532 (noting this change came about in part
because of increased demand for injunctions).
21. See Jill E. Martin, Hanbury & Martin: Modern Equity 14 (16th ed. 2001) (noting
from 1813 to 1875 size of Chancery Court increased from two to seven judges).
22. See Leubsdorf, Standard, supra note 1, at 532 (noting these “strands began to be
seen as responses to the problem of granting interim relief on the basis of a hasty and
inadequate hearing”).
23. Id.
24. Id. at 532–33 (citing Shrewsbury & Chester v. Shrewsbury & Birmingham Ry. Co.,
(1851) 61 Eng. Rep. 159 (Ch.) 165–66; Glascott v. Lang, (1838) 40 Eng. Rep. 1000 (Ch.)
1002).
25. See id. at 533 (noting in nineteenth century, irreparable injury was invoked in
“virtually all the situations where injunctions issued to protect rights at law”).
26. Id.
R
R
\\jciprod01\productn\C\COL\111-7\COL703.txt
2011]
unknown
Seq: 6
RECONCILIATION AFTER WINTER
28-OCT-11
14:42
1527
Another important aspect of the grant of preliminary injunctions in
England was the emphasis on preserving the status quo.27 In 1867, an
influential treatise on injunctions synthesized the strands into a coherent
standard, declaring “[i]t is enough if [the moving party] can show that he
has a fair question to raise as to the existence of the right which he alleges, and can satisfy the Court that the property should be preserved in
its present actual condition, until such question can be disposed of.”28
The English standard was adopted by American courts in the late nineteenth century: Early American case law demonstrates that courts balanced the factors against one another rather than treating them as independent requirements.29
The traditional purpose of a preliminary injunction was to “‘preserve
the relative positions of the parties until a trial on the merits can be
held.’”30 Other purposes served are preserving the court’s ability to consider the case fully and minimizing the harm caused by erroneous preliminary decisions.31 In his influential article on the proper standard for preliminary injunctions, John Leubsdorf argues that the key goal of a
27. Id. at 534 (noting roots of status quo doctrine were in “the protected status of
possession under the common law and the reliance on undisputed exercise of patent rights
as prima facie evidence of their validity”). But see Lee, supra note 8, at 129–30 (stating
“nineteenth century Chancery cases do not accord any doctrinal significance to the status
quo”).
28. William Williamson Kerr & John Melvin Paterson, A Treatise on the Law and
Practice of Injunctions 2 (6th ed. 1927) (reasserting synthesis laid out in original 1867
edition). Leubsdorf notes that although Kerr omitted discussion of irreparable injury and
the balance of conveniences, he discussed them in a chapter on injunctions against the
violation of common law rights. Leubsdorf, Standard, supra note 1, at 536–37. Leubsdorf
also notes that Kerr’s treatise dealt with a variety of injunctions, and subsequently “any
generalization about preliminary relief had to be modest.” Id.; see also Kerr & Paterson,
supra, at 17 (stating movant must convince court its interference is necessary to prevent
irreparable injury); id. at 25 (asserting decision whether to enter preliminary relief “is
governed by the consideration as to the comparative mischief or inconvenience to the
parties which may arise from granting or withholding the injunction”).
29. See Love v. Atchison, Topeka & Santa Fe Ry. Co., 185 F. 321, 331–332 (8th Cir.
1911) (stating that in situation where “the questions presented in a suit for an injunction
are grave and difficult, and the injury to the moving party will be certain, great, and
irreparable if the motion for the interlocutory injunction is denied and the final decision is
in his favor, . . . the injunction usually should be granted”); Harriman v. N. Sec. Co., 132 F.
464, 475–76 (D.N.J. 1904) (“The balance of convenience or hardship ordinarily is a factor
of controlling importance in cases of substantial doubt existing at the time of granting or
refusing the preliminary injunction.”), rev’d, 134 F. 331 (3d Cir.), aff’d, 197 U.S. 244
(1905).
30. Beltronics USA, Inc. v. Midwest Inventory Distribution, LLC, 562 F.3d 1067, 1071
(10th Cir. 2009) (quoting Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981)).
31. See Brooks & Schwarz, supra note 17, at 389 (“[T]here is a widely shared view that
the purposes served by preliminary injunctions are maintaining the status quo between the
parties, preserving the court’s ability to consider the case fully, and minimizing the harm
caused by erroneous preliminary decisions.”); see also O Centro Espirita Beneficiente
Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 977 (10th Cir. 2004) (stating goal of
preliminary injunction is to “assure that the nonmovant does not take unilateral action
which would prevent the court from providing effective relief to the movant should the
R
\\jciprod01\productn\C\COL\111-7\COL703.txt
1528
unknown
Seq: 7
COLUMBIA LAW REVIEW
28-OCT-11
14:42
[Vol. 111:1522
preliminary injunction is to “prevent irreparable injury to legal rights in
light of a prediction of the final outcome of the case.”32
Courts have traditionally examined the following four factors in deciding whether to grant a preliminary injunction: (1) the significance of
the threat to the plaintiff if the injunction is not granted (the “irreparable
harm” prong); (2) the state of the balance between the harm to the plaintiff and the injury that granting the injunction would inflict on the defendant (the “balancing” prong); (3) the probability that the plaintiff will
succeed on the merits (the “likelihood of success” prong); and (4) the
public interest.33 In practice, courts place varying degrees of emphasis on
each of these four factors, and many courts balance the strength of one
factor against the weakness of other factors—an approach known as the
“sliding scale” test.34
The irreparable harm prong is seen as the most important by at least
two circuits.35 To satisfy this requirement, plaintiffs must show that, absent an injunction, they will suffer an injury that is both “‘actual and imminent’” and that also “‘cannot be remedied if a court waits until the end
of the trial to resolve the harm.’”36 The balancing prong evaluates the
severity of the impact on the defendant if the injunction were granted
against the hardship that would occur to the plaintiff if the injunction
movant prevail on the merits” (citing 11A Wright et al., supra note 2, § 2947 (2d ed. Supp.
1995))).
32. Leubsdorf, Standard, supra note 1, at 565.
33. 11A Wright et al., supra note 2, § 2948; see also, e.g., Winter v. Natural Res. Def.
Council, Inc., 129 S. Ct. 365, 374 (2008) (stating plaintiff seeking preliminary injunction
must establish four factors); United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1178–79
(8th Cir. 1998) (listing four factors). The Supreme Court has also emphasized that the
standard for a preliminary injunction is “essentially the same as for a permanent injunction
with the exception that the plaintiff must show a likelihood of success on the merits rather
than actual success.” Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 546 n.12 (1987).
34. See Alliance for the Wild Rockies v. Cottrell (Wild Rockies II), 632 F.3d 1127, 1131
(9th Cir. 2011) (“Under [the sliding scale] approach, the elements of the preliminary
injunction test are balanced, so that a stronger showing of one element may offset a weaker
showing of another.”). Circuits that do not use the sliding scale approach require a movant
to prove each factor by a preponderance of the evidence. See infra note 68 and
accompanying text (discussing First, Fifth, Eleventh, and Federal Circuits’ approaches).
35. Faiveley Transp. Malmo AB v. Wabtec Corp., 559 F.3d 110, 118 (2d Cir. 2009) (“A
showing of irreparable harm is ‘the single most important prerequisite for the issuance of a
preliminary injunction.’” (quoting Rodriguez v. DeBuono, 175 F.3d 227, 234 (2d Cir.
1999))); Port City Props. v. Union Pac. R.R., 518 F.3d 1186, 1190 (10th Cir. 2008)
(“‘[C]ourts have consistently noted that . . . a showing of probable irreparable harm is the
single most important prerequisite for the issuance of a preliminary injunction . . . .’”
(quoting Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1260
(10th Cir. 2004))).
36. Wabtec, 559 F.3d at 118 (quoting Grand River Enter. Six Nations, Ltd. v. Pryor, 481
F.3d 60, 66 (2d Cir. 2007)); see also Port City Properties, 518 F.3d at 1190 (noting “[a]
showing of irreparable harm requires that the injury ‘be both certain and great’” (quoting
Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1250 (10th Cir. 2001))).
R
R
\\jciprod01\productn\C\COL\111-7\COL703.txt
2011]
unknown
Seq: 8
RECONCILIATION AFTER WINTER
28-OCT-11
14:42
1529
were denied.37 Although there are a number of different formulations
used to describe the third prong—the probability that the plaintiff will
succeed on the merits—the most common articulation is that the plaintiff
must demonstrate a “reasonable probability of success.”38 Most courts
agree that the movant must present a prima facie case,39 but need not
show that he is certain to win.40 The public interest prong requires the
court to focus on whether there are “policy considerations that bear on
whether the order should issue,” and often involves analyzing whether
the public interest might be injured or furthered by granting a preliminary injunction.41 In sum, courts consider whether the plaintiff has
shown it will suffer irreparable harm in the absence of an injunction, the
balance between that harm to the plaintiff and the injury to the defen37. 11A Wright et al., supra note 2, § 2948.2; see also Hughes Network Sys., Inc. v.
Interdigital Commc’ns Corp., 17 F.3d 691, 693 (4th Cir. 1994) (“The ‘balance of
hardships’ reached by comparing the relevant harms to the plaintiff and defendant is the
most important determination . . . .”).
38. 11A Wright et al., supra note 2, § 2948.3 (“The courts use a bewildering variety of
formulations of the need for showing some likelihood of success—the most common being
that plaintiff must demonstrate a reasonable probability of success.”); see also Sole v.
Wyner, 551 U.S. 74, 84 (2007) (discussing probability of success factor); McTernan v. City
of York, 577 F.3d 521, 526 (3d Cir. 2009) (requiring plaintiff to show “reasonable
probability of success on the merits”). Other formulations include that a movant must be
“likely to succeed” or must show a “substantial likelihood of success.” See Winter, 129 S. Ct.
at 374 (“A plaintiff seeking a preliminary injunction must establish that he is likely to
succeed on the merits . . . .”); Mills v. District of Columbia, 571 F.3d 1304, 1308 (D.C. Cir.
2009) (requiring plaintiffs to demonstrate “‘substantial likelihood of success on the
merits’” (quoting Katz v. Georgetown Univ., 246 F.3d 685, 687 (D.C. Cir. 2001))). One
prominent scholar in this field has remarked that “[c]ourts often decide motions for
preliminary injunctions almost entirely on this ground” and that doing so “is often a good
way to avoid the difficulties of preliminary injunction decisions.” John Leubsdorf,
Preliminary Injunctions: In Defense of the Merits, 76 Fordham L. Rev. 33, 35 (2007).
39. See Blackwelder Furniture Co. of Statesville v. Seilig Mfg. Co., 550 F.2d 189,
197–98 (4th Cir. 1977) (noting in reversing denial of preliminary injunction that plaintiff
“has pleaded a prima facie case”), overruled by Real Truth About Obama, Inc. v. FEC, 575
F.3d 342 (4th Cir. 2009), vacated, 130 S. Ct. 2371 (2010); Automated Mktg. Sys., Inc. v.
Martin, 467 F.2d 1181, 1183 (10th Cir. 1972) (“‘In hearings upon motions for temporary
or preliminary injunctive relief, the burden is upon the one requesting such relief to make
a prima facie case showing a reasonable probability that he will ultimately be entitled to the
relief sought.’” (quoting Crowther v. Seaborg, 415 F.2d 437, 439 (10th Cir. 1969))).
40. See Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985) (“A movant
seeking to [show that he is likely to prevail on the merits] need not show that success is an
absolute certainty.”), abrogated on other grounds by O’Lone v. Estate of Shabazz, 482 U.S.
342 (1987); W. Va. Highlands Conservancy v. Island Creek Coal Co., 441 F.2d 232, 235 (4th
Cir. 1971) (“[I]t is not necessary that [plaintiff] demonstrate an absolute right to the relief
it seeks in order to sustain the issuance of this preliminary injunction; it need establish only
‘probable right.’”).
41. 11A Wright et al., supra note 2, § 2948.4; see also Winter, 129 S. Ct. at 378 (quoting
Sinclair Refining Co. v. Midland Oil Co., 55 F.2d 42, 44 (4th Cir. 1932)) (finding public’s
interest in Navy conducting training exercises under realistic conditions would be injured
by preliminary injunction and also outweighed interests advanced by plaintiffs); Johnson v.
Couturier, 572 F.3d 1067, 1082 (9th Cir. 2009) (finding public interest in promoting goals
of ERISA would be furthered by upholding grant of preliminary injunction).
R
R
R
\\jciprod01\productn\C\COL\111-7\COL703.txt
1530
unknown
Seq: 9
COLUMBIA LAW REVIEW
28-OCT-11
14:42
[Vol. 111:1522
dant should the injunction be granted, the probability the plaintiff will
succeed on the merits, and the public interest.
B. The Varying Standards for Preliminary Injunctions
Before Winter, circuit courts deciding whether to grant a preliminary
injunction applied these four factors in different ways. This section describes these various approaches. The majority of circuits used some variation of the traditional four-part standard, with some circuits weighing all
the factors, and others treating one or two of the factors as threshold
issues and weighing the others.42 Prior to Winter, the Second and Ninth
Circuits implemented two- and three-part tests that both incorporated a
sliding scale analysis—that is, both allowed the district court to weigh the
extent of irreparable harm the movant must show against the movant’s
likelihood of success: If a movant could clearly show that it would be irreparably harmed in the absence of a preliminary injunction, an injunction would be granted provided the movant could show that there were
serious questions going to the merits.43 The Fourth Circuit considered all
four factors, allowing for “‘flexible interplay’” and balancing between
them.44 This section will describe the Second and Ninth Circuits’ approaches pre-Winter, as well as the Fourth Circuit’s balancing test. It will
also provide brief descriptions of the remaining circuits’ approaches.
1. The Second Circuit: A “Serious Questions” Three-Part Test. — The
Second Circuit’s standard for granting a preliminary injunction required
a showing of “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits
to make them a fair ground for litigation and [(c)] a balance of hardships tipping decidedly toward the party requesting the preliminary relief.”45 This standard permitted a district court to grant a preliminary in42. See Denlow, supra note 1, at 516 (“The First, Third, Fourth, Sixth, Eight, Tenth,
and D.C. Circuits all use some method of balancing the four traditional factors.”).
43. See infra notes 45–50 and accompanying text (discussing Second Circuit’s test);
infra notes 51–59 and accompanying text (discussing Ninth Circuit’s test).
44. Blackwelder, 550 F.2d at 196 (quoting Packard Instrument Co. v. ANS, Inc., 416
F.2d 943, 945 (2d Cir. 1969)). The Sixth Circuit applied a similar standard and had
previously allowed for flexibility when the movant’s likelihood of success on the merits was
less than likely. See Jones v. Caruso, 569 F.3d 258, 277 (6th Cir. 2009) (permitting district
court to grant preliminary injunction where plaintiff fails to show substantial probability of
success on merits but does show “‘serious questions going to the merits and irreparable
harm which decidedly outweighs any potential harm to the defendant if the injunction is
issued.’” (quoting Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100, 104 (6th
Cir. 1982))); Mich. Bell Tel. Co. v. Engler, 257 F.3d 587, 592 (6th Cir. 2001) (“‘The four
considerations applicable to preliminary injunction decisions are factors to be balanced,
not prerequisites that must be met.’” (quoting Six Clinics Holding Corp., II v. Cafcomp
Sys., 119 F.3d 393, 400 (6th Cir. 1997))).
45. Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979).
Notably, there are three limited exceptions to this general standard: First, where the
moving party seeks to stay government action taken in the public interest pursuant to a
statutory or regulatory scheme, the moving party must establish a likelihood of success on
R
\\jciprod01\productn\C\COL\111-7\COL703.txt
2011]
unknown
Seq: 10
RECONCILIATION AFTER WINTER
28-OCT-11
14:42
1531
junction when “it [could not] determine with certainty that the moving
party [was] more likely than not to prevail on the merits of the underlying claims, but where the costs outweigh[ed] the benefits of not granting
the injunction.”46 It therefore permitted flexibility when the probability
of success was less than likely.47
This standard incorporated a sliding scale analysis because under the
irreparable harm prong the “nature and extent of the threat of irreparable injury” required for relief could vary “according to the likelihood of
success on the merits.”48 In addition, it allowed for a consideration of the
balance of hardships in the second prong.49 Although this standard did
not explicitly mention the public interest, the Second Circuit has recognized that, as a court of equity, it “‘may go much further both to give or
to withhold relief in furtherance of the public interest than where only
private interests are involved.’”50
2. The Ninth Circuit: A “Sliding Scale” Two-Part Test. — In order to
obtain a preliminary injunction in the Ninth Circuit pre-Winter, a party
needed to demonstrate either: “‘(1) a likelihood of success on the merits
and the possibility of irreparable injury; or (2) that serious questions going to the merits were raised and the balance of hardships tips sharply in
its favor.’”51 These two options represented “extremes on a single continthe merits of his claim; second, a heightened “substantial likelihood” standard may be
required when the requested injunction would provide the plaintiff with “all the relief that
is sought” and could not be undone by a judgment favorable to defendants at trial; third, a
mandatory preliminary injunction that commands “some positive act” requires a clear
showing that the moving party is entitled to the relief requested, or where extreme or very
serious damage will result from a denial of preliminary relief. Citigroup Global Mkts., Inc.
v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 n.4 (2d Cir. 2010)
(citations omitted) (internal quotation marks omitted).
46. Citigroup, 598 F.3d at 35.
47. Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir. 1953) (“[I]f
the other elements are present . . . it will ordinarily be enough that the plaintiff has raised
questions going to the merits so serious, substantial, difficult and doubtful, as to make
them fair ground for litigation and thus for more deliberate investigation.”).
48. Jackson Dairy, 596 F.2d at 74 (Mansfield, J., concurring) (“[T]he weaker the case
on the merits, the stronger must be the showing of threat of irreparable injury.”).
49. The case Aim International Trading, LLC v. Valcucine SpA., IBI LLC provides an
example of this standard in practice: After finding the plaintiff had shown irreparable
harm, the court held that the plaintiff had raised “serious questions going to the merits”
and that the “balance of equities tip[ped] firmly in plaintiffs’ favor” because if the status
quo was not preserved, the plaintiffs’ business would be wiped out, whereas defendants did
not show how they would be damaged. 188 F. Supp. 2d 384, 388 (S.D.N.Y. 2002).
50. Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 424, 433 (2d Cir. 2004) (quoting
Standard & Poor’s Corp. v. Commodity Exch., Inc., 683 F.2d 704, 711 (2d Cir. 1982))
(internal quotation marks omitted) (holding district court should have considered
“significant public interests” involved before granting injunctive relief); see also supra note
45 (discussing exception to standard for party seeking to stay government action in public
interest pursuant to statutory or regulatory scheme).
51. Clear Channel Outdoor Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir.
2003) (quoting Walczak v. EPL Prolong, Inc., 198 F.3d 725, 731 (9th Cir. 1999)),
abrogated in part by Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046 (9th Cir.
R
\\jciprod01\productn\C\COL\111-7\COL703.txt
1532
unknown
Seq: 11
COLUMBIA LAW REVIEW
28-OCT-11
14:42
[Vol. 111:1522
uum: ‘the less certain the district court is of the likelihood of success on
the merits, the more plaintiffs must convince the district court that the
public interest and balance of hardships tip in their favor.’”52
The case Sammartano v. First Judicial District Court provides an example of this sliding scale in practice.53 The appellants, who had been refused entry into a government building after refusing to remove clothing
bearing symbols of motorcycle organizations, were denied a preliminary
injunction at the district court level.54 The Ninth Circuit held that appellants had shown that they would suffer irreparable injury if relief was not
granted, as “‘[t]he loss of First Amendment freedoms . . . unquestionably
constitutes irreparable injury.’”55 Although the district court had refused
to assume the existence of this harm because it found the appellants had
not clearly established a likelihood of success on the merits, the Ninth
Circuit emphasized that “the fact that a case raises serious First
Amendment questions compels a finding that there exists ‘the potential
for irreparable injury.’”56 It further stated that because the test for granting a preliminary injunction is “‘a continuum in which the required
showing of harm varies inversely with the required showing of meritoriousness,’” a plaintiff who has shown a strong amount of irreparable
harm—here, a “serious infringement on core expressive freedoms”—is
entitled to an injunction even on a lesser showing of meritoriousness.57
The Ninth Circuit also provided for consideration of the public interest in employing this test.58 Furthermore, it is notable that under this
test, a movant could prevail by demonstrating only two of the four traditional factors (likelihood of success and irreparable harm) without regard
to the two other factors. Therefore, this test placed a lighter burden on
the movant than in the Second Circuit, where the movant had to address
three of the traditional factors.59
2009). In light of Winter, the court has since stipulated that a movant must show that
irreparable harm is likely, not merely possible. American Trucking, 559 F.3d at 1052.
52. Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir. 2008) (quoting Lands
Council v. Martin, 479 F.3d 636, 639 (9th Cir. 2007)); see also Sammartano v. First Judicial
Dist. Court, 303 F.3d 959, 965 (9th Cir. 2002) (“‘[T]hese two formulations represent two
points on a sliding scale in which the required degree of irreparable harm increases as the
probability of success decreases.’” (quoting A&M Records, Inc. v. Napster, Inc., 239 F.3d
1004, 1013 (9th Cir. 2001))).
53. 303 F.3d at 973.
54. Id. at 962–64.
55. Id. at 973 (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)).
56. Id. (quoting Viacom Int’l Inc. v. FCC, 828 F. Supp. 741, 744 (N.D. Cal. 1993)).
57. Id. at 973–74 (quoting San Diego Comm. v. Governing Bd., 790 F.2d 1471, 1473
n.3 (9th Cir. 1986)).
58. See id. at 965 (“‘[I]n cases where the public interest is involved, the district court
must also examine whether the public interest favors the plaintiff.’” (quoting Fund for
Animals v. Lujan, 962 F.2d 1391, 1400 (9th Cir. 1992))).
59. See Denlow, supra note 1, at 528 (“There is a heavier burden on the movant in
the Second Circuit because it must address three of the traditional factors.”).
R
\\jciprod01\productn\C\COL\111-7\COL703.txt
2011]
unknown
Seq: 12
RECONCILIATION AFTER WINTER
28-OCT-11
14:42
1533
3. The Fourth Circuit: “Flexible Interplay” Among the Four Factors. — The
Fourth Circuit previously required a court considering whether to grant a
preliminary injunction to first balance the likelihood of irreparable harm
to the plaintiff against the likelihood of harm to the defendant. If a decided imbalance of hardship should appear in the plaintiff’s behavior,
“‘[i]t will ordinarily be enough that the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make
them fair ground for litigation and thus for more deliberate investigation.’”60 However, if the balance of hardship did not tilt decidedly in
plaintiff’s favor, then a plaintiff had to demonstrate a “strong showing of
likelihood of success” in order to obtain relief.61
The Fourth Circuit emphasized that “[t]he decision to grant or deny
a preliminary injunction depends upon a ‘flexible interplay’ among all
the factors considered.”62 It also recognized that “‘preliminary injunctions are extraordinary remedies involving the exercise of very far-reaching power to be granted only sparingly and in limited circumstances.’”63
The Fourth Circuit incorporated a sliding scale analysis into this standard, holding that the importance of probability of success “increases as
the probability of irreparable injury diminishes.”64 The “hardship balance” and “likelihood of success determination” could be analyzed separately, but “must work in conjunction.”65
4. The Remaining Circuits. — The circuits that required a movant to
make a showing on all four factors analyzed the factors in different ways.
The D.C. Circuit balanced the four traditional factors when deciding a
preliminary injunction, although there remained some confusion as to
how the four factors should be weighed against each other.66 The Third
Circuit also considered the four traditional factors but was inconsistent in
60. Blackwelder Furniture Co. of Statesville v. Seilig Mfg. Co., 550 F.2d 189, 195 (4th
Cir. 1977) (quoting Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740, 743 (2d
Cir. 1953)), overruled by Real Truth About Obama, Inc. v. FEC, 575 F.3d 342 (4th Cir.
2009), vacated, 130 S. Ct. 2371 (2010). The Fourth Circuit no longer takes this approach:
“Because of its differences with the Winter test, the Blackwelder balance-of-hardship test may
no longer be applied . . . in the Fourth Circuit.” Real Truth, 575 F.3d at 347.
61. Direx Israel, Ltd. v. Breakthrough Med. Corp., 952 F.2d 802, 818 (4th Cir. 1991).
62. Blackwelder, 550 F.2d at 196.
63. MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001) (quoting
Direx, 952 F.2d at 816).
64. Blackwelder, 550 F.2d at 195.
65. Ciena Corp. v. Jarrard, 203 F.3d 312, 323 (4th Cir. 2000) (“‘If the hardship
balance tilts sharply and clearly in the plaintiff’s favor, the required proof of likelihood of
success is substantially reduced.’” (quoting Direx, 952 F.2d at 817)).
66. Compare Al-Fayed v. CIA, 254 F.3d 300, 303–04 (D.C. Cir. 2001) (failing to
implement sliding scale test), with Davenport v. Int’l Bhd. of Teamsters, 166 F.3d 356,
360–61 (D.C. Cir. 1999) (applying sliding scale test), and Serono Labs., Inc. v. Shalala, 158
F.3d 1313, 1317–18 (D.C. Cir. 1998) (same). The D.C. Circuit also noted that a movant
need not necessarily show a fifty-one percent likelihood of success if each of the other
three factors “clearly favors” granting the injunction. See Wash. Metro. Area Transit
Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843–44 (D.C. Cir. 1977) (“The court is not
required to find that ultimate success by the movant is a mathematical probability. . . . The
\\jciprod01\productn\C\COL\111-7\COL703.txt
1534
unknown
Seq: 13
COLUMBIA LAW REVIEW
28-OCT-11
14:42
[Vol. 111:1522
whether they are balanced against one another or whether the movant
must make a threshold showing for each factor.67 The First, Fifth,
Eleventh, and Federal Circuits had the most rigid standards, treating the
four factors as elements and requiring the district court to analyze each
factor before granting a preliminary injunction.68
The Tenth Circuit allowed for a moving party who makes a showing
on the irreparable harm prong, the balancing prong, and the public interest prong to be subject to a modified test, under which it may meet the
requirement for showing success on the merits by “‘showing that questions going to the merits are so serious, substantial, difficult, and doubtful
as to make the issue ripe for litigation and deserving of more deliberate
investigation.’”69 The Eighth Circuit considered the four traditional factors but did not require a party to establish each factor.70 It also rejected
necessary ‘level’ or ‘degree’ of possibility of success will vary according to the court’s
assessment of the other factors.”).
67. Compare Gerardi v. Pelullo, 16 F.3d 1363, 1373 (3d Cir. 1994) (balancing four
factors), with Campbell Soup Co. v. ConAgra, Inc., 977 F.2d 86, 90–91 (3d Cir. 1992)
(requiring moving party to show “‘both a likelihood of success on the merits and a
probability of irreparable harm’” in addition to mandating that district court consider
effect of issuance of preliminary injunction on other interested persons and the public
interest (quoting Bradley v. Pittsburgh Bd. of Educ., 910 F.2d 1172, 1175 (3d Cir. 1990))).
The Third Circuit has also not traditionally allowed for the possibility of obtaining an
injunction based on a showing of serious questions going to the merits. See In re Arthur
Treacher’s Franchisee Litig., 689 F.2d 1137, 1147 n.14 (3d Cir. 1982) (rejecting Second
Circuit’s serious questions standard as articulated in Hamilton Watch Co. v. Benrus Watch
Co., 206 F.2d 738, 740, 743 (2d Cir. 1953)).
68. Denlow, supra note 1, at 522. In Horton v. City of St. Augustine, the Eleventh Circuit
reversed the grant of a preliminary injunction after deciding that the movant was not likely
to succeed on the merits, reasoning that there was no need to analyze the other factors
because each was essential. 272 F.3d 1318, 1326 (11th Cir. 2001) (characterizing
preliminary injunction as “‘extraordinary and drastic remedy’” (quoting Siegel v. Lepore,
234 F.3d 1163, 1176 (11th Cir. 2000) (en banc))); see also Jack Guttman, Inc. v. Kopykake
Enters., Inc., 302 F.3d 1352, 1356 (Fed. Cir. 2002) (noting that “[w]hile granting a
preliminary injunction requires analysis of all four factors, . . . a trial court may . . . deny a
motion based on a patentee’s failure to show any one of the four factors” (internal citation
omitted)); New Comm Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002)
(considering all four factors and expressly stating “[t]he sine qua non of this four-part
inquiry is likelihood of success on the merits: if the moving party cannot demonstrate that
he is likely to succeed in his quest, the remaining factors become matters of idle curiosity”
(citing Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir. 1993))); Walgreen Co. v. Hood, 275
F.3d 475, 477 (5th Cir. 2001) (affirming district court’s denial of preliminary injunction on
sole basis that “there is no substantial likelihood that [plaintiff] will prevail on the merits”).
69. Oklahoma ex rel. Okla. Tax Comm’n v. Int’l Registration Plan, Inc., 455 F.3d
1107, 1113 (10th Cir. 2006) (quoting Davis v. Mineta, 302 F.3d 1104, 1111 (10th Cir.
2002)). In the Tenth Circuit, the modified test cannot apply if the requested preliminary
injunction is one of three disfavored types: “(1) preliminary injunctions that alter the status
quo; (2) mandatory preliminary injunctions; [or] (3) preliminary injunctions that afford
the movant all the relief that it could recover at the conclusion of a full trial on the merits.”
O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir.
2004) (citation omitted).
70. See United Indus. Corp. v. Clorox Co., 140 F.3d 1175, 1179 (8th Cir. 1998)
(asserting no single factor is determinative and each must be considered to determine
R
\\jciprod01\productn\C\COL\111-7\COL703.txt
2011]
unknown
Seq: 14
28-OCT-11
RECONCILIATION AFTER WINTER
14:42
1535
a rigid application of the probability of success prong, allowing for flexibility when the probability of success was less than fifty-one percent.71
The Seventh Circuit applied a similar standard to that of the Second
and Ninth Circuits, but added additional factors.72 In the Seventh
Circuit, the movant needed to show not only the traditional four factors,
but also that there was “no adequate remedy at law.”73 In addition, the
Seventh Circuit explicitly permitted the sliding scale approach, stating
that “[t]he more likely the plaintiff is to win, the less heavily need the
balance of harms weigh in his favor.”74 The Seventh Circuit also has traditionally allowed for a moving party who can only show a low likelihood of
success to receive a preliminary injunction in certain circumstances.75
Notably, with regard to the likelihood of success prong, the Tenth,
Sixth, D.C., Seventh, and Eighth Circuits have all applied a preliminary
injunction standard that permitted flexibility when confronting some
probability of success that falls short of a strict fifty-one percent.76
C. Winter: The Supreme Court’s Most Recent Articulation of a Standard
The Supreme Court recently provided a standard for preliminary injunctions, but failed to stipulate whether courts could continue balancing
whether balance of equities weighs toward granting injunction); see also Denlow, supra
note 1, at 517–18 (noting both that Eighth Circuit “balances the four factors to determine
whether equity requires a preliminary injunction” and that “a party need not establish each
factor”).
71. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc)
(noting “an effort to apply the probability language to all cases with mathematical
precision is misplaced” and “where the balance of other factors tips decidedly toward
movant a preliminary injunction may issue if movant has raised questions so serious and
difficult as to call for more deliberate investigation”).
72. See Denlow, supra note 1, at 528 (“The Court of Appeals for the Seventh Circuit
applies a preliminary injunction standard that is similar to that in the Second and Ninth
Circuits, but it adds a third, arguably a fourth, and possibly a fifth, factor in its
determination.”).
73. Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 386 (7th Cir. 1984).
74. Id. at 387.
75. See Duct-O-Wire Co. v. U.S. Crane, Inc., 31 F.3d 506, 509 (7th Cir. 1994) (“A
district court may grant a preliminary injunction if the party seeking relief can show . . .
that the case has some likelihood of success on the merits . . . .” (emphasis added)); Roland
Machinery, 749 F.2d at 387 (“It is enough that the plaintiff’s chances are better than
negligible . . . .” (citations omitted) (internal quotation marks omitted)).
76. See Oklahoma ex rel. Okla. Tax Comm’n v. Int’l Registration Plan, Inc., 455 F.3d
1107, 1112–13 (10th Cir. 2006) (allowing for modified test where movant is only required
to show that “questions going to the merits are . . . serious” when first three requirements
tip strongly in movant’s favor); Mich. Bell Tel. Co. v. Engler, 257 F.3d 587, 592 (6th Cir.
2001) (noting four factors are balanced); Davenport v. Int’l Bhd. of Teamsters, 166 F.3d
356, 360–61 (D.C. Cir. 1999) (noting four factors “interrelate on a sliding scale and must
be balanced against each other”); Duct-O-Wire, 31 F.3d at 509 (noting relief may be
available if some likelihood of success is demonstrated); Gen. Mills, Inc. v. Kellogg Co., 824
F.2d 622, 624–25 (8th Cir. 1987) (“[A] preliminary injunction motion is too early a stage of
the proceedings to woodenly assess a movant’s probability of success on the merits with
mathematical precision.”).
R
R
\\jciprod01\productn\C\COL\111-7\COL703.txt
1536
unknown
Seq: 15
COLUMBIA LAW REVIEW
28-OCT-11
14:42
[Vol. 111:1522
the different elements of this standard in determining whether to grant a
preliminary injunction.77 Winter involved a challenge by an environmental group to the Navy’s use of sonar during training exercises.78 The
plaintiffs complained that the Navy’s sonar training program harmed
marine mammals and that the Navy should have prepared an environmental impact statement before commencing its latest round of training
exercises.79 The district court granted the plaintiffs’ motion for a preliminary injunction, holding that the plaintiffs had “demonstrate[d] a strong
likelihood of prevailing on the merits of their claims,” and that equitable
relief was appropriate because they had established at least a “‘possibility
of irreparable harm’” to the environment.80 This injunction prohibited
the Navy from using MFA Sonar during its remaining training exercises.81
The Ninth Circuit ultimately affirmed the district court’s refusal to
vacate elements of a later preliminary injunction it had issued.82 In so
doing, the Ninth Circuit determined that the plaintiffs had carried their
burden of establishing a possibility of irreparable injury and that the balance of hardships and consideration of the public interest weighed in
77. Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 374–76 (2008).
78. Id. at 370, 372 (noting plaintiffs were seeking “declaratory and injunctive relief on
the grounds that the Navy’s SOCAL training exercises violated NEPA, the Endangered
Species Act of 1973 . . . and the Coastal Zone Management Act of 1972”).
79. Id.
80. Natural Res. Def. Council, Inc. v. Winter, 645 F. Supp. 2d 841, 855 (C.D. Cal.)
(quoting Faith Ctr. Church Evangelistic Ministries v. Glover, 480 F.3d 891, 906 (9th Cir.
2007)), aff’d, 518 F.3d 658 (9th Cir.), rev’d, 129 S. Ct. 365 (2008).
81. Id.
82. As the Supreme Court recognized, the procedural history of this case is “rather
complicated.” Winter, 129 S. Ct. at 371. After the district court granted the initial
injunction, the Navy filed an emergency appeal and the Ninth Circuit stayed the injunction
pending appeal. Natural Res. Def. Council, Inc. v. Winter, 502 F.3d 859, 865 (9th Cir.
2007). On appeal, the Ninth Circuit then agreed with the district court that preliminary
injunctive relief was appropriate but remanded the case to the District Court to “narrow its
injunction so as to provide mitigation conditions under which the Navy may conduct its
training exercises.” Natural Res. Def. Council, Inc. v. Winter, 508 F.3d 885, 887 (9th Cir.
2007). The district court then entered a new preliminary injunction imposing six
conditions on the Navy’s use of MFA Sonar. Natural Res. Def. Council, Inc. v. Winter, 530
F. Supp. 2d 1110, 1118–21 (C.D. Cal. 2008). The Navy filed a notice of appeal, challenging
two of these restrictions: that the MFA sonar be shut down when a marine mammal is
spotted within 2,200 yards of a vessel and that the sonar be powered down by 6 dB during
“significant surface ducting conditions.” Natural Res. Def. Council, Inc. v. Winter, 518 F.3d
658, 676 (9th Cir.), rev’d, 129 S. Ct. 365 (2008). The Navy then sought, and obtained,
relief from the Executive Branch in the form of a Presidential exemption from the Coastal
Zone Management Act pursuant to 16 U.S.C. § 1456(c)(1)(B) (2006). Natural Res. Def.
Council, Inc. v. Winter, 513 F.3d 920, 922 (9th Cir. 2008). The Council on Environmental
Quality (“CEQ”) also authorized the Navy to implement “alternative arrangements” to
NEPA compliance in light of “emergency circumstances.” Id. The district court refused to
vacate its injunction with respect to the 2,200-yard shutdown zone and the restrictions on
training in surface ducting conditions. Natural Res. Def. Council, Inc. v. Winter, 527 F.
Supp. 2d 1216, 1232, 1238 (C.D. Cal. 2008). The district court’s refusal to vacate was
affirmed by the Ninth Circuit, and the Supreme Court granted certiorari. Winter, 518 F.3d
at 703, aff’g 530 F. Supp. 2d 1110, cert. granted, 128 S. Ct. 2964 (2008).
\\jciprod01\productn\C\COL\111-7\COL703.txt
2011]
unknown
Seq: 16
28-OCT-11
RECONCILIATION AFTER WINTER
14:42
1537
favor of the plaintiffs.83 According to the Ninth Circuit, when a plaintiff
demonstrates a strong likelihood of prevailing on the merits, a preliminary injunction may be entered based only on a possibility of harm.84 The
Supreme Court reversed the Ninth Circuit’s decision to uphold the preliminary injunction, holding that the Navy’s need to conduct realistic
training exercises outweighed the plaintiffs’ “ecological, scientific, and
recreational interests in marine mammals.”85
In sum, Winter made clear that movants must show more than a possibility of irreparable harm in order to receive a preliminary injunction.86
It also reiterated the traditional four-part standard for preliminary injunctions—including that a movant must show it is “likely” to succeed on the
merits—but failed to comment on whether courts could continue balancing the strength of the factors against each other.87
II. THE CIRCUITS ARE SPLIT
IN
THEIR APPLICATION
OF
WINTER
In the wake of Winter, circuits that had previously allowed a movant
to show there were “serious questions” going to the merits for the likelihood of success prong, and allowed a movant showing a greater amount
of irreparable harm to show a lesser probability of success on the merits,
have differed on whether that approach to preliminary injunctions is still
valid. Winter stated that plaintiffs seeking preliminary relief must demonstrate that irreparable injury is likely in the absence of an injunction, and
that a mere “possibility” of irreparable harm, even when combined with a
83. Winter, 518 F.3d at 696, 698–99.
84. Id. at 696–97.
85. Winter, 129 S. Ct. at 382.
86. Id. at 375 (holding movant seeking preliminary relief must show that “irreparable
injury is likely in the absence of an injunction”). By explicitly requiring that a movant show
a likelihood of irreparable harm (rather than simply a possibility of harm), Winter
engendered concerns among environmentalists over their ability to obtain preliminary
injunctions in the future. See William Krueger, Recent Development, In the Navy: The
Future Strength of Preliminary Injunctions Under NEPA in Light of NRDC v. Winter, 10
N.C. J.L. & Tech. 423, 443 (2009) (“This new, formulaic rubric for the issuance of an
injunction removes much of the flexibility that has historically been the ‘hallmark of equity
jurisdiction,’ and will likely lead to a reduced number of injunctions in environmental
enforcement actions.” (quoting Winter, 129 S. Ct. at 391 (Ginsburg, J., dissenting)));
Lawrence Hurley, Supreme Court: Debate Continues Over ‘08 Whale Ruling’s Impact on
Enviros’ Bids to Halt Projects, Greenwire (Nov. 1, 2010), http://www.eenews.net/
Greenwire/2010/11/01/1/ (on file with the Columbia Law Review) (“[Winter] had broader
implications on the ability of environmentalists to persuade judges to grant preliminary
injunctions, which have the effect of putting a stop to potential environmental damage
before, from activists’ perspective, it is too late.”). It also prompted at least one academic
commentator to argue that Winter had imposed a higher standard for preliminary
injunctions in all contexts. See Erwin Chemerinsky, Court Sets Higher Hurdle for
Preliminary Injunctions, Trial, Jan. 2009, at 58–59 (noting that although approach in
Winter was influenced by Court’s deference to military, its “strict approach” to preliminary
injunctions could have broader implications).
87. Winter, 129 S. Ct. at 374.
\\jciprod01\productn\C\COL\111-7\COL703.txt
1538
unknown
Seq: 17
COLUMBIA LAW REVIEW
28-OCT-11
14:42
[Vol. 111:1522
strong likelihood of prevailing on the merits, is not enough.88 Justice
Ginsburg stated in dissent that the Court was not rejecting the sliding
scale formulation, where relief is awarded “based on a lower likelihood of
harm when the likelihood of success is very high” or based on a lower
likelihood of success when the likelihood of harm is very high.89
Part II.A explains how the Second, Ninth, and Seventh Circuits reconcile their previous approaches with Winter by maintaining use of the
sliding scale approach. Part II.B discusses the Fourth Circuit’s reaction to
Winter, and how it has held that Winter precludes the use of the sliding
scale test. Part II.C then attempts to clarify the consequences of the divergent standards among the circuits by describing two preliminary injunction cases that might have come out differently if they were brought in
another circuit.
A. The Majority of Circuits Incorporate Some Form of Sliding Scale Analysis
Most circuits continue to employ the same tests they used before
Winter, holding that their approaches are not in conflict with Winter’s requirement that a movant seeking a preliminary injunction demonstrate
that irreparable injury is likely in the absence of an injunction. The Second, Ninth, and Seventh Circuits continue to employ sliding scale analysis in considering a movant’s request for a preliminary injunction. The
remaining circuits—the Third, Fifth, Tenth, Eleventh, and Federal Circuits—were already considering the four traditional factors and applied a
sliding scale test inconsistently, if at all, and thus were not directly affected by Winter. This Section discusses the circuits that have maintained
their use of the sliding scale test—and the serious questions analysis—
and their reconciliation of Winter with their tests.
1. The Second Circuit. — As explained above, the Second Circuit had
previously employed a two-step serious questions analysis, granting a preliminary injunction upon a showing of “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious
questions going to the merits to make them a fair ground for litigation
and a balance of hardships tipping decidedly toward the party requesting
the preliminary relief.”90 In the recent case Citigroup Global Markets, Inc. v.
VCG Special Opportunities Master Fund Ltd., the Second Circuit held that its
serious questions standard withstood three recent decisions of the Supreme Court91: Winter, Munaf v. Geren,92 and Nken v. Holder.93
88. Id. at 375.
89. Id. at 392 (Ginsburg, J., dissenting).
90. Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979)
(citations omitted); see also supra notes 45–50 and accompanying text (describing Second
Circuit’s approach pre-Winter).
91. 598 F.3d 30, 37–38 (2d Cir. 2010).
92. 553 U.S. 674 (2008).
93. 129 S. Ct. 1749 (2009).
R
\\jciprod01\productn\C\COL\111-7\COL703.txt
2011]
unknown
Seq: 18
RECONCILIATION AFTER WINTER
28-OCT-11
14:42
1539
In Citigroup, the defendant contested the district court’s grant of a
preliminary injunction to the plaintiff by arguing that these three recent
decisions had eliminated the serious questions standard, which the district court had applied.94 The defendant argued that since Winter stated a
movant must show that “he is likely to succeed on the merits” in order to
receive a preliminary injunction, a showing of serious questions that are a
fair ground for litigation would not suffice.95 The Second Circuit upheld
its “serious questions” standard, stating that under this standard “the moving party must not only show that there are serious questions going to the
merits, but must additionally establish that the balance of hardship[s] tips
decidedly in its favor.”96 Therefore, the moving party bears an “overall burden [that] is no lighter than the one it bears under the ‘likelihood of
success’ standard.”97
In upholding this standard, the Second Circuit cited both policy considerations and historic Supreme Court cases that permitted the entry of
an injunction in cases where “a factual dispute render[ed] a fully reliable
assessment of the merits impossible.”98 The court explained that the
value of the serious questions approach lies in its “flexibility in the face of
varying factual scenarios and the greater uncertainties inherent at the
outset of particularly complex litigation.”99 Since the “very purpose of an
injunction” is to give “‘temporary relief based on a preliminary estimate
of the strength of plaintiff’s suit,’” the court reasoned that “‘[l]imiting
the preliminary injunction to cases that do not present significant difficulties would deprive the remedy of much of its utility.’”100
94. 598 F.3d at 34; see also Citigroup Global Mkts. Inc. v. VCG Special Opportunities
Master Fund Ltd., No. 08-CV-5520 (BSJ), 2008 WL 4891229, at *5 (S.D.N.Y. Nov. 12, 2008)
(“[T]he Court likewise concludes that although [the plaintiff] cannot make a showing of
probable success, it has raised sufficiently serious questions on the merits.”).
95. Citigroup, 598 F.3d at 34–35. The court stated:
Although not stated explicitly in its briefs, we take VCG’s position to be that the
standard articulated by these three Supreme Court cases requires a preliminary
injunction movant to demonstrate that it is more likely than not to succeed on its
underlying claims, or in other words, that a movant must show a greater than fifty
percent probability of success on the merits.
Id.; see also Brief for Defendant-Appellant at 23–25, Citigroup, 598 F.3d 30 (No. 08-6090cv), 2009 WL 7768665, at *23–*25 (describing required showing as “probability” of success,
as opposed to “possibility”).
96. Citigroup, 598 F.3d at 35 (citing Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596
F.2d 70, 72 (2d Cir. 1979)).
97. Id.
98. Id. at 35–37.
99. Id. at 35.
100. Id. at 35–36 (quoting 11A Wright et al., supra note 2, § 2948.3); see also
Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en banc) (“The
very nature of the inquiry on petition for preliminary relief militates against a wooden
application of the probability test. . . . The equitable nature of the proceeding mandates
that the court’s approach be flexible enough to encompass the particular circumstances of
each case.”).
R
\\jciprod01\productn\C\COL\111-7\COL703.txt
1540
unknown
Seq: 19
COLUMBIA LAW REVIEW
28-OCT-11
14:42
[Vol. 111:1522
The Second Circuit cited the historic case Ohio Oil Co. v. Conway, in
which the Supreme Court dealt with a factual dispute that had to be resolved before a ruling could be made on the merits of the case.101 In light
of this situation, the Supreme Court instructed that “[w]here the questions presented by an application for an interlocutory injunction are
grave, and the injury to the moving party will be certain and irreparable if
the application be denied[,] . . . the injunction usually will be
granted.”102 Furthermore, the Second Circuit interpreted the Supreme
Court’s more recent opinions in Munaf,103 Winter, and Nken 104 to not
undermine the Court’s approval of the “more flexible approach signaled
in Ohio Oil.”105 Winter, in the Second Circuit’s view, did not address the
requisite probability of success of the movant’s underlying claims because
it expressly withheld consideration of the merits; instead, the Supreme
101. 279 U.S. 813, 814–15 (1929) (per curiam) (“[R]eal dispute over material
questions of fact . . . must be resolved before the constitutional validity of the amendatory
statute can be determined.”).
102. Id. at 815; cf. Mazurek v. Armstrong, 520 U.S. 968, 971 (1997) (per curiam)
(reversing Ninth Circuit’s finding that movants had shown “fair chance of success on the
merits,” while recognizing “fair chance” standard and its potential application in future
cases).
103. The Second Circuit stated that Munaf did not comment upon the application of
a preliminary injunction standard that softened a strict “likelihood” requirement in cases
that warrant it. Citigroup, 598 F.3d at 37. Munaf involved a preliminary injunction barring
the transfer to Iraqi custody of an American citizen captured in Iraq by the Multinational
Force-Iraq. Munaf v. Geren, 553 U.S. 674, 681–82, 690 (2008). The injunction was
premised on “jurisdictional issues . . . so serious, substantial, difficult and doubtful, as to
make them fair ground for litigation and thus for more deliberative investigation.” Id. The
Supreme Court vacated that injunction on the grounds that a difficult question as to
jurisdiction was no reason to grant a preliminary injunction because it “[said] nothing
about the ‘likelihood of success on the merits.’” Id. at 690. Thus, the Supreme Court in
Munaf “provided nothing in the way of a definition of the phrase ‘a likelihood of success.’”
Citigroup, 598 F.3d at 37.
104. Nken provided a four-factor standard for granting a stay of appeal, and the
Supreme Court noted that there is “substantial overlap between [the factors governing
stays] and the factors governing preliminary injunctions.” Nken v. Holder, 129 S. Ct. 1749,
1761 (2009) (citing Winter v. Natural Res. Def. Council, Inc., 129 S. Ct. 365, 376–77
(2008)). The Second Circuit did not interpret the Supreme Court’s repetition of the
“likely to succeed on the merits” phrasing to require a showing that the movant is “more
likely than not” to succeed on the merits. Citigroup, 598 F.3d at 37 (citing Nken, 129 S. Ct. at
1761). The Second Circuit further argued that the Supreme Court “implie[d] the opposite
in Nken, which contrast[ed] a showing of likelihood of success with a chance of success that
is only ‘better than negligible.’” Id. at 37 n.7 (citing Nken, 129 S. Ct. at 1761). Since
requiring a showing that there are serious questions on the merits “necessarily” places a
greater burden on the movant than requiring a mere showing that the chances of success
are “better than negligible,” the Second Circuit argued its standard did not conflict with
Nken. Id.
105. Citigroup, 598 F.3d at 37 (“None of the three cases comments at all, much less
negatively, upon the application of a preliminary injunction standard that softens a strict
‘likelihood’ requirement in cases that warrant it.”).
\\jciprod01\productn\C\COL\111-7\COL703.txt
2011]
unknown
Seq: 20
RECONCILIATION AFTER WINTER
28-OCT-11
14:42
1541
Court decided Winter based on the “balance of the equities and the public interest.”106
The Second Circuit also relied on the “considerable history of the
flexible standards” applied in the Second Circuit, in its sister circuits, and
in the Supreme Court itself.107 It emphasized that its standard “ha[d]
survived earlier instances in which the Supreme Court described the merits prerequisite to a preliminary injunction as a ‘likelihood of success’
without specifically addressing the content of such a ‘likelihood.’”108 The
Second Circuit also relied on the policy benefits of its more flexible standard, including its accommodation of the needs of district courts when
determining whether to grant preliminary injunctions in factual situations that “vary widely in difficulty and complexity.”109 The Second
Circuit thus upheld its “venerable standard” and ruled that the district
court did not err in applying it.110
2. The Ninth Circuit. — Before Winter, the Ninth Circuit employed a
two-step analysis, requiring a movant seeking a preliminary injunction to
show either: “‘(1) a likelihood of success on the merits and the possibility
of irreparable injury; or (2) that serious questions going to the merits
were raised and the balance of hardships tips sharply in its favor.’”111 In
the recent case Alliance for the Wild Rockies v. Cottrell (Wild Rockies II), the
Ninth Circuit clarified its post-Winter standard and reaffirmed the validity
of its version of the sliding scale test, under which a preliminary injunction could issue “where the likelihood of success is such that ‘serious
questions going to the merits were raised and the balance of hardships
tips sharply in [plaintiff’s] favor.’”112
The Ninth Circuit explained that this was the first time it had directly
discussed the post-Winter viability of the sliding scale approach, and that
previously it had simply stated that “‘[t]o the extent [its] cases have suggested a lesser standard [than that in Winter], they are no longer controlling, or even viable.’”113 After discussing the Seventh, Second, and
106. Id. (citing Winter, 129 S. Ct. at 375–76, 381) (noting Winter expressly withheld
consideration of merits of parties’ underlying claims).
107. Citigroup, 598 F.3d at 38 (“We have recognized this flexible standard since at least
1953 . . . .” (citing Hamilton Watch Co. v. Benrus Watch Co., 206 F.2d 738, 740 (2d Cir.
1953))).
108. Id. (citing Doran v. Salem Inn, Inc., 422 U.S. 922, 932 (1975)) (“‘The other
inquiry relevant to preliminary relief is whether respondents made a sufficient showing of
the likelihood of ultimate success on the merits.’” (quoting Doran, 422 U.S. at 932)).
109. Id.
110. Id.
111. Clear Channel Outdoor Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir.
2003) (quoting Walczak v. EPL Prolong, Inc., 198 F.3d 725, 731 (9th Cir. 1999)),
abrogated in part by Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th
Cir. 2009). The American Trucking case stipulated that, in light of Winter, the movant must
show that irreparable harm is likely, not merely possible. 559 F.3d at 1052.
112. 632 F.3d 1127, 1131 (9th Cir. 2011) (quoting Clear Channel, 340 F.3d at 813).
113. Id. at 1132 (quoting American Trucking, 559 F.3d at 1052).
\\jciprod01\productn\C\COL\111-7\COL703.txt
1542
unknown
Seq: 21
COLUMBIA LAW REVIEW
28-OCT-11
14:42
[Vol. 111:1522
Fourth Circuits’ reactions to Winter,114 the court recited a district court’s
analysis of why courts should maintain their ability to use the sliding
scale:
“Winter concerned the end of the sliding scale where the weaker
factor involves injury, not the end of the scale where the weaker
factor involves the merits (but the injury is clear and the equities
tip in favor of relief). Winter can, however, be construed to hold
that the moving party must always show a probability of success
on the merits (as well as a probability of injury).
....
It would be most unfortunate if the Supreme Court or the Ninth
Circuit had eliminated the longstanding discretion of a district
judge to preserve the status quo with provisional relief until the
merits could be sorted out in cases where clear irreparable injury would otherwise result and at least ‘serious questions’ going
to the merits are raised . . . .”115
The Ninth Circuit clarified that a plaintiff must still “make a showing
on all four prongs” of Winter, and that a plaintiff cannot only show that
there are serious questions going to the merits and the balance of hardships tips sharply in its favor.116 Therefore, as long as the plaintiff shows a
likelihood of irreparable injury and that the injunction is in the public
interest, “serious questions going to the merits” and a hardship balance
that tips sharply toward the plaintiff can support issuance of an injunction.117 Applying this test, the Ninth Circuit concluded that the district
court had erred in denying the plaintiff’s request for a preliminary injunction, because the plaintiff had established a likelihood of irreparable
injury and had also established “serious questions, at the very least, on the
merits of its claim.”118
114. See supra notes 94–100 and accompanying text (discussing Second Circuit’s
reaction to Winter); infra notes 119–122 and accompanying text (discussing Seventh
Circuit’s reaction); infra notes 132–141 and accompanying text (discussing Fourth
Circuit’s reaction).
115. Wild Rockies II, 632 F.3d at 1134 (omissions in original) (quoting Save Strawberry
Canyon v. Dep’t of Energy, No. C 08-03494 WHA, 2009 WL 1098888, at *1–*3 (N.D. Cal.
Apr. 22, 2009)).
116. Id. at 1135.
117. Id.
118. Id. at 1139 (noting also that balance of hardships between parties tips sharply in
favor of plaintiff and public interest favors preliminary injunction). After this case was first
decided, see Alliance for Wild Rockies v. Cottrell (Wild Rockies I), 622 F.3d 1045 (9th Cir.
2010), the Department of Justice petitioned for a rehearing, stating that “the [Ninth
Circuit’s] holding that the serious questions test survives Winter conflicts with Winter.”
Appellees’ Petition for Rehearing and Rehearing En Banc at 6, Wild Rockies II, 632 F.3d
1127 (No. 09-35756), available at http://www.eenews.net/assets/2010/10/29/document_
gw_02.pdf (on file with the Columbia Law Review). In the petition, the government argued
that the panel erred by declining to give controlling effect to the principle in Winter that a
moving party seeking a preliminary injunction must demonstrate that it is “likely to
succeed on the merits.” Id. at 6–7. The Ninth Circuit’s reasoning, argued the government,
rests on an “unreasonably narrow interpretation of Winter,” and since Winter expressly
rejected the Ninth Circuit’s test that permitted a movant to show only a possibility of
R
R
R
\\jciprod01\productn\C\COL\111-7\COL703.txt
2011]
unknown
Seq: 22
RECONCILIATION AFTER WINTER
28-OCT-11
14:42
1543
3. The Seventh Circuit. — Judge Easterbrook, writing for the Seventh
Circuit in a recent post-Winter opinion, cited Winter and stated that, in
addition to irreparable injury, the movant must also have a plausible
claim on the merits and “the injunction must do more good than
harm”—meaning the balance of equities must favor the plaintiffs.119 Acknowledging that the sliding scale remains valid, Judge Easterbrook explained that how likely a plaintiff’s claim must be to succeed “depends on
the balance of harms: the more net harm an injunction can prevent, the
weaker the plaintiff’s claim on the merits can be while still supporting
some preliminary relief.”120 Interestingly, the Seventh Circuit test balances the likelihood of success prong against the balancing prong (which
balances the harm to the plaintiff if the injunction does not issue against
the harm to the defendant if the injunction does issue),121 rather than
against the irreparable harm prong, as the Second and Ninth Circuits’
tests do. In this case, since the plaintiff had a “plausible theory on the
merits” that was “strong enough to justify exposing [the defendant] to
financial risks until the district court can decide the merits,” the Seventh
Circuit held the district court had not erred in granting the injunction.122
4. The Remaining Circuits. — The remaining circuits have continued
using their pre-Winter tests without direct comment on whether Winter
affected the tests’ continuing validity. The Tenth Circuit employs a modified test that allows for the grant of a preliminary injunction when there
are only serious questions as to the merits on the likelihood of success
irreparable harm, “[b]y parity of reasoning,” the serious questions test is invalid after
Winter because the Supreme Court stated a movant must demonstrate it is likely to succeed
on the merits. Id. at 7–8. On January 25, 2011, the Ninth Circuit denied the appellees’
petition for rehearing and rehearing en banc. Wild Rockies II, 632 F.3d at 1128; see also
Lawrence Hurley, Litigation: Appeals Court Rejects U.S. Request for Rehearing in Mont.
Timber Case, Greenwire (Jan. 25, 2011), http://www.eenews.net/eenewspm/2011/01/
25/archive/5?terms=%22Timber+Case%22 (on file with the Columbia Law Review)
(quoting attorney representing environmental groups as saying that by declining to take
up matter again, judges indicated that “the panel made the right decision and that the
sliding scale test remains the law in the 9th Circuit”).
119. Hoosier Energy Rural Elec. Coop., Inc. v. John Hancock Life Ins. Co., 582 F.3d
721, 725 (7th Cir. 2009).
120. Id. (citing Cavel Int’l, Inc. v. Madigan, 500 F.3d 544 (7th Cir. 2007)); see also
Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the U.S., Inc., 549 F.3d 1079, 1100
(7th Cir. 2008) (“The more likely it is that [the movant] will win its case on the merits, the
less the balance of harms need weigh in its favor.”).
121. Hoosier Energy, 582 F.3d at 725; see also Roland Mach. Co. v. Dresser Indus., Inc.,
749 F.2d 380, 387 (7th Cir. 1984) (“[T]he court must not only determine that the plaintiff
will suffer irreparable harm if the preliminary injunction is denied . . . but also weigh that
harm against any irreparable harm that the defendant can show he will suffer if the
injunction is granted.”).
122. Hoosier Energy, 582 F.3d at 726; see also Roland Machinery, 749 F.2d at 387 (noting
plaintiff must show “some likelihood of succeeding on the merits” and that “it is enough
that ‘the plaintiff’s chances are better than negligible’” (quoting Omega Satellite Prods.
Co. v. City of Indianapolis, 694 F.2d 119, 123 (7th Cir. 1982))).
\\jciprod01\productn\C\COL\111-7\COL703.txt
1544
unknown
Seq: 23
COLUMBIA LAW REVIEW
28-OCT-11
14:42
[Vol. 111:1522
prong.123 After Winter, it mentioned this test in dicta, but indicated that it
was not applicable to the case before the court.124 The D.C. Circuit,
which had previously employed a sliding scale analysis at least some of the
time,125 notes that Winter “does not squarely discuss whether the four factors are to be balanced on a sliding scale.”126 The Eight Circuit, which
had allowed for “serious questions” on the merits to suffice when the movant made a strong showing on the other three factors,127 has not directly
addressed Winter, but has cited Dataphase with approval.128 The Third
Circuit has also not directly addressed whether its test,129 which allowed
for the balancing of the four factors, was still valid in light of Winter.130
Both the Eleventh and Fifth Circuits maintain their requirement of a substantial likelihood of success on the merits.131
123. Oklahoma ex rel. Okla. Tax Comm’n v. Int’l Registration Plan, Inc., 455 F.3d
1107, 1113 (10th Cir. 2006).
124. See RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 n.3 (10th Cir. 2009) (noting
modified test is not applicable to disfavored preliminary injunctions).
125. See Davenport v. Int’l Bhd. of Teamsters, 166 F.3d 356, 360–61 (D.C. Cir. 1999)
(applying sliding scale test); Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1318 (D.C. Cir.
1998) (same).
126. Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009).
127. See Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981) (en
banc) (“[W]here the balance of other factors tips decidedly toward plaintiff a preliminary
injunction may issue if movant has raised questions so serious and difficult as to call for
more deliberate investigation.”).
128. See Rogers Grp., Inc. v. City of Fayetteville, 629 F.3d 784, 787 (8th Cir. 2010)
(stating district court must consider the four Dataphase factors); CHS, Inc. v. PetroNet,
LLC, Civ. No. 10-94 (RHK/FLN), 2010 WL 4721073, at *5–*6 (D. Minn. Nov. 15, 2010)
(weighing four traditional factors and noting movant must show it has “a fair chance of
prevailing on its claims” and “[t]he question is not whether it has prove[d] a greater than
fifty percent likelihood that [it] will prevail, but rather whether any of its claims provide a
fair ground for litigation” (citations omitted) (internal quotation marks omitted)). But see
Pinnacle Entm’t, Inc. v. Land Clearance for Redevelopment Auth., No. 4:10CV00943 AGF,
2010 WL 2802129, at *4–*5 (E.D. Mo. July 15, 2010) (denying movant’s request to apply
“fair chance to succeed” test and holding more rigorous “likely to succeed” test applied in
light of Winter).
129. See Gerardi v. Pelullo, 16 F.3d 1363, 1373 (3d Cir. 1994) (“[I]n deciding
whether to issue a preliminary injunction, a district court: must carefully weigh four
factors . . . .”).
130. See Miller v. Mitchell, 598 F.3d 139, 147 (3d Cir. 2010) (reciting traditional four
factors but failing to analyze Winter). The Third Circuit “has adopted a flexible balancing
approach, counseling that the issuing court may balance the likelihood of success against
the remaining equitable factors.” Stefanowicz v. Bucknell Univ., No. 10-CV-2040, 2010 WL
3938243, at *3 (M.D. Pa. Oct. 5, 2010) (emphasizing that “where the balance of hardships
tips toward the moving party, the moving party may satisfy its burden of establishing a
likelihood of success on the merits on a lesser showing than is otherwise required”).
131. See Osmose, Inc. v. Viance, LLC, 612 F.3d 1298, 1307 (11th Cir. 2010) (“‘[A]
district court may grant a preliminary injunction only if the movant establishes . . . a
substantial likelihood of success on the merits of the underlying case . . . .’” (quoting N.
Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1217 (11th Cir. 2008))); Norfolk
S. Ry. Co. v. Ala. Dep’t of Revenue, 550 F.3d 1306, 1312 n.10 (11th Cir. 2008) (declining to
address correct equitable standard for district court to apply in light of Winter and eBay
Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006), but holding plaintiff had “no likelihood
\\jciprod01\productn\C\COL\111-7\COL703.txt
2011]
unknown
Seq: 24
RECONCILIATION AFTER WINTER
28-OCT-11
14:42
1545
B. The Fourth Circuit Holds Winter Precludes Use of the Sliding Scale Test
The Fourth Circuit holds that Winter precludes the use of the sliding
scale test. In the case Real Truth About Obama, Inc. v. FEC, it explained its
pre-Winter standard and why Winter abrogated parts of that standard.132
The Fourth Circuit gave four reasons why its previous standard, laid out
in Blackwelder Furniture Co. of Statesville v. Seilig Manufacturing Co. no
longer governs. 133 First, the Fourth Circuit asserted that Winter requires a
plaintiff to make a “clear showing” that it will likely succeed on the merits
at trial.134 Since Blackwelder only introduced the likelihood of success requirement after a balancing of hardships is conducted and then “only
under the relaxed showing that ‘grave or serious questions are presented’
for litigation,” Winter’s requirement is stricter.135 Second, since Winter requires a plaintiff to show it is likely to be irreparably harmed absent preliminary relief, and Blackwelder required only that the harm to the plaintiff outweigh the harm to the defendant, Blackwelder’s more lenient
standard is irreconcilable with Winter’s requirements.136
Third, Winter requires courts of equity to pay “‘particular regard for
the public consequences in employing the extraordinary remedy of injunction,’”137 while under the Blackwelder standard, the public interest
requirement “‘does not always appear to be considered at length in preliminary injunction analysis.’”138 Fourth, Winter, in the Fourth Circuit’s
view, sets forth four requirements which all need to be satisfied “as articuof success on the merits”), abrogated on other grounds by CSX Transp., Inc. v. Ala. Dep’t
of Revenue, 131 S. Ct. 1101 (2011); see also Janvey v. Alguire, No. 10-10617, 2011 WL
2937949, at *8 (5th Cir. July 22, 2011) (noting movant must show, inter alia, “a substantial
likelihood of success on the merits” in order to receive preliminary injunction); La Union
Del Pueblo Entero v. FEMA, 608 F.3d 217, 225 (5th Cir. 2010) (failing to address
remaining three prongs of preliminary injunction analysis after finding “[p]laintiffs cannot
show a substantial likelihood of success on the merits”), cert. denied, 131 S. Ct. 525
(2010). The Federal Circuit, which also did not allow the four factors to be balanced
against one another, has not directly addressed Winter, but maintains its requirement that a
plaintiff must establish “a likelihood of success on the merits.” Titan Tire Corp. v. Case
New Holland, Inc., 566 F.3d 1372, 1380 (Fed. Cir. 2009).
132. 575 F.3d 342, 346 (4th Cir. 2009) (“Our Blackwelder standard in several respects
now stands in fatal tension with the Supreme Court’s 2008 decision in Winter.”), vacated,
130 S. Ct. 2371 (2010).
133. Id.; see also Blackwelder Furniture Co. of Statesville v. Seilig Mfg. Co., 550 F.2d
189 (4th Cir. 1977), overruled by Real Truth About Obama, Inc. v. FEC, 575 F.3d 342 (4th
Cir. 2009), vacated, 130 S. Ct. 2371 (2010).
134. Real Truth, 575 F.3d at 346 (citing Winter, 129 S. Ct. at 374, 376).
135. Id. (quoting Blackwelder, 550 F.2d at 195–96).
136. Id. at 347 (noting Blackwelder’s allowance of strong probability of success to
permit movant to demonstrate only possibility of irreparable injury was explicitly rejected
in Winter).
137. Id. (quoting Winter, 129 S. Ct. at 376–77).
138. Id. (quoting Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 366–67 (4th
Cir. 1991)). But see Blackwelder, 550 F.2d at 196 (“Always, of course, the public interest
should be considered.”).
\\jciprod01\productn\C\COL\111-7\COL703.txt
1546
unknown
Seq: 25
COLUMBIA LAW REVIEW
28-OCT-11
14:42
[Vol. 111:1522
lated.”139 In contrast, Blackwelder allowed the requirements to be “conditionally redefined” as other requirements are more completely satisfied,
so that “grant[ing] or deny[ing] a preliminary injunction depends upon
a ‘flexible interplay’ among all the factors considered . . . for all four
[factors] are intertwined and each affects in degree all the others.”140
Because of these four irreconcilable differences, the Fourth Circuit held
that “the Blackwelder balance-of-hardship test may no longer be
applied.”141
C. The Consequences of Confusion Among the Circuits
This section describes in further detail two of the post-Winter cases
mentioned above where a preliminary injunction was granted and explains how in both cases the preliminary injunction might have been denied if the case had been brought in a circuit with a more rigid standard.
Circuits that allow for serious questions going to the merits to suffice for
the likelihood of success prong enable courts to undertake a more holistic and ultimately more equitable analysis, enabling plaintiffs to proceed
to the discovery stage and access evidence that may be crucial to substantiating their claims.
In Citigroup, the Second Circuit affirmed the district court’s grant of
a preliminary injunction, partially on the grounds that there were serious
questions about the merits of Citigroup’s claims—namely, whether the
defendant, VCG, was a “customer” of Citigroup.142 The district court expressly found that Citigroup had “failed to make a showing of ‘probable
success’ on the merits based on its claim that there was no customer relationship between [Citigroup] and VCG with respect to the credit default
swap transactions.”143 Nevertheless, the district court granted the preliminary injunction because Citigroup had provided evidence that raised “serious questions” as to whether VCG was a customer of Citigroup with respect to the swap transaction.144 Here, Citigroup showed that if the
district court were to deny the preliminary injunction motion, Citigroup
would suffer irreparable harm because it would “be forced to expend
time and resources to defend itself in an arbitration to which it may ultimately be determined not to have been a proper party, and any award
would be unenforceable.”145 If this motion had been brought in a circuit
that requires a plaintiff to show that it had a substantial likelihood of
139. Real Truth, 575 F.3d at 347.
140. Id. (quoting Blackwelder, 550 F.2d at 196).
141. Id.
142. Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598
F.3d 30, 39 (2d Cir. 2010).
143. Id. at 33 (citing Citigroup Global Mkts., Inc. v. VCG Special Opportunities
Master Fund, Ltd., No. 08-CV-5520 (BSJ), 2008 WL 4891229, at *2, *4 (S.D.N.Y. Nov. 12
2008)).
144. Id. at 33–34.
145. Citigroup, 2008 WL 4891229, at *7; see also id. at *2 (“Compelling arbitration of a
matter not properly subject to arbitration constitutes ‘per se irreparable harm.’” (quoting
\\jciprod01\productn\C\COL\111-7\COL703.txt
2011]
unknown
Seq: 26
RECONCILIATION AFTER WINTER
28-OCT-11
14:42
1547
succeeding on the merits, like the Eleventh or Fifth Circuits,146 the plaintiff would most likely have been denied a preliminary injunction because
it could not show a substantial likelihood of success.
Cases like Citigroup, where a factual matter crucial to the plaintiff’s
claim is in “sharp dispute,” illustrate one reason why a preliminary injunction standard that allows for serious questions going to the merits to suffice for the likelihood of success prong is necessary.147 Often, the moving
party needs to be able to proceed to the discovery stage in order to resolve a particular factual dispute, and if it is unable to receive a preliminary injunction in the interim period, it might suffer the irreparable
harm that the court seeks to avoid in the first place by granting a preliminary injunction.148
The importance of a uniform standard for preliminary injunctions is
also seen in cases involving challenges to complex agency determinations.
The Ninth Circuit case Alliance for the Wild Rockies v. Cottrell (Wild Rockies
II)149 illustrates the impact of divergent standards for preliminary injunctions in the context of environmental lawsuits, where preliminary injunctions are frequently used to protect the environment while the case is
being litigated.150 In Wild Rockies II, the plaintiff—an environmental
group (“AWR”)—sued the United States Forest Service, seeking to enjoin
a timber salvage sale (“the Project”) proposed by the Forest Service in
response to a recent wildfire.151 The Ninth Circuit found that AWR would
suffer irreparable injury if the Project were to go forward because its
members would not be able to experience the forest in its undisturbed
state.152 The Ninth Circuit further held that there were at least serious
questions going to the merits of AWR’s claim that the Forest Service had
violated the Appeals Reform Act by granting an Emergency Situation
Designation (“ESD”).153 In making this determination, the court looked
to the three factors the Forest Service considered in granting the ESD for
Tellium, Inc. v. Corning, Inc., No. 03 Civ. 8487(NRB), 2004 WL 307238, at *3 (S.D.N.Y.
Feb. 13, 2004))).
146. See supra note 131 and accompanying text (describing rigidity of Eleventh and
Fifth Circuits’ approaches with respect to the likelihood of success prong).
147. See Citigroup, 598 F.3d at 39 (stating issue of whether VCG was customer of
Citigroup “is in sharp dispute”).
148. See supra note 31 and accompanying text (discussing purposes of preliminary
injunctions, including minimizing the harms caused by erroneous preliminary decisions).
149. 632 F.3d 1127 (9th Cir. 2011).
150. See Krueger, supra note 86, at 423 (“A preliminary injunction is an incredibly
useful and important tool in cases involving the enforcement of environmental statutes
and regulations.”).
151. Wild Rockies II, 632 F.3d at 1128–30.
152. Id. at 1135 (“‘Environmental injury, by its nature, can seldom be adequately
remedied by money damages and is often permanent or at least of long duration, i.e.,
irreparable.’” (quoting Lands Council v. McNair, 537 F.3d 981, 1004 (9th Cir. 2008))).
153. Id at 1136. The court explained that designation as an ESD “permitted the
immediate commencement of the Project’s logging without any of the delays that might
have resulted from the Forest Service’s administrative appeals process.” Id. at 1129.
\\jciprod01\productn\C\COL\111-7\COL703.txt
1548
unknown
Seq: 27
COLUMBIA LAW REVIEW
28-OCT-11
14:42
[Vol. 111:1522
this Project and scrutinized the Forest Service’s reasoning in finding
these factors determinative.154 It ultimately found that there were at least
serious questions regarding the validity of the ESD determination.155
This case exemplifies another reason why courts need to be able to
apply a serious questions standard: When challenging determinations
that are complex, multi-faceted, and involve the discretion of a government agency, often a plaintiff will not be able show there is a substantial
likelihood that the agency in question erred in its determination. However, when the plaintiff can show not only that there are serious questions
that merit a more deliberative evaluation of its claims, but also that it will
suffer irreparable harm in the absence of a preliminary injunction, courts
should be able to analyze further the two remaining factors—public interest and the balance of respective harms—and grant a preliminary injunction if these four factors weigh in the plaintiff’s favor. Such a holistic analysis is precluded in circuits that describe the likelihood of success prong
as the sine qua non of preliminary injunction analysis.156
In sum, the divergent standards for preliminary injunctions that different circuits employ can affect whether a preliminary injunction is issued. When courts do not allow serious questions going to the merits to
satisfy the likelihood of success prong and therefore deny a preliminary
injunction, plaintiffs who may have strong claims are precluded from proceeding to the discovery stage and thus denied access to the evidence
they need to prove their case.
III. THE SUPREME COURT SHOULD CLARIFY THE APPROPRIATE STANDARD
FOR GRANTING PRELIMINARY INJUNCTIONS
This Note proposes that courts uniformly implement a standard
modeled on that of the Second, Ninth, and Seventh Circuits: District
courts should grant preliminary injunctions when the moving party shows
(1) that irreparable harm will be likely in absence of an injunction; (2)
154. Id. at 1136.
155. Id. at 1136–37. The court criticized the Forest Service’s calculation of the loss of
receipts to the government due to delayed commencement of the project, saying any
amount was speculative, and also noted that the Forest Service waited to request an ESD
for almost two years, which undermined the Forest Service’s determination that there was
an Emergency Situation that justified the elimination of otherwise available administrative
appeals. Id. at 1137.
156. The First, Eleventh, and Fifth Circuits take this approach. See New Comm
Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002) (“The sine qua non of
this four-part inquiry is likelihood of success on the merits: if the moving party cannot
demonstrate that he is likely to succeed in his quest, the remaining factors become matters
of idle curiosity.” (citing Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir. 1993))); Walgreen
Co. v. Hood, 275 F.3d 475, 477 (5th Cir. 2001) (affirming district court’s denial of
preliminary injunction on sole basis that “there is no substantial likelihood that [plaintiff]
will prevail on the merits”); Horton v. City of St. Augustine, 272 F.3d 1318, 1334 (11th Cir.
2001) (reversing grant of preliminary injunction after deciding movant was not likely to
succeed on merits, reasoning that there was no need to analyze other factors).
\\jciprod01\productn\C\COL\111-7\COL703.txt
2011]
unknown
Seq: 28
RECONCILIATION AFTER WINTER
28-OCT-11
14:42
1549
that the injunction will favor the public interest; and (3) either that success on the merits is likely and the balance of equities is in the movant’s
favor or that there are serious questions going to the merits and the balance of equities tips decidedly in the movant’s favor. This standard comports with historical use of preliminary injunctions and Supreme Court
precedent and also allows for district courts to have sufficient flexibility in
determining whether to grant a preliminary injunction. Part III.A elaborates on the proposed standard. Part III.B discusses the historical support
for this standard. Part III.C then discusses precedential support for this
standard. Finally, Part III.D enumerates the policy advantages of allowing
flexibility and the problems with the Fourth Circuit’s approach.
A. The Proposed Standard
The proposed standard incorporates the four traditional prongs of
the preliminary injunction analysis while giving district courts sufficient
room to balance the relative strengths of those four factors.157 It also expressly allows for “serious questions” going to the merits to suffice for the
likelihood of success prong as long as the balance of equities tips “decidedly” in the movant’s favor.158 This standard is similar to the Second,
Seventh, and Ninth Circuits’ standards in that it allows the court to consider the movant’s showing on each of the four factors and then use a
sliding scale analysis to weigh the strengths of the movant’s showing on
these factors. In keeping with Winter’s admonition that district courts
should expressly consider the public interest, the proposed standard adds
that consideration.
Allowing courts to weigh the various elements of the movant’s showing flexibly is of paramount importance in a uniform standard.159 Under
this standard courts will always be weighing the balance of equities, which
has traditionally consisted of balancing the respective amounts of harm to
157. The four traditional prongs are:
(1) the significance of the threat of irreparable harm to plaintiff if the injunction
is not granted; (2) the state of the balance between this harm and the injury that
granting the injunction would inflict on defendant; (3) the probability that
plaintiff will succeed on the merits; and (4) the public interest.
11A Wright et al., supra note 2, § 2948.
158. See Wild Rockies II, 632 F.3d at 1131 (“[A] preliminary injunction [can] issue
where the likelihood of success is such that ‘serious questions going to the merits were
raised and the balance of hardships tips sharply in [plaintiff’s] favor.’” (quoting Clear
Channel Outdoor, Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir. 2003)));
Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30,
35 (2d Cir. 2010) (noting if moving party shows there are “serious questions” going to
merits, it must additionally establish “‘a balance of hardships tipping decidedly’” in its favor
(quoting Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979))).
159. See Miller v. French, 530 U.S. 327, 361 (2000) (Breyer, J., dissenting) (“[I]n
certain circumstances justice requires the flexibility necessary to treat different cases
differently—the rationale that underlies equity itself.”); Holmberg v. Armbrecht, 327 U.S.
392, 396 (1946) (“Equity eschews mechanical rules; it depends on flexibility.”).
R
\\jciprod01\productn\C\COL\111-7\COL703.txt
1550
unknown
Seq: 29
COLUMBIA LAW REVIEW
28-OCT-11
14:42
[Vol. 111:1522
the movant and nonmovant.160 This weighing should encompass not only
the traditional comparing of respective harms to the two parties under
the balancing prong, but also how heavily the public interest weighs in
favor of an injunction and the amount of irreparable harm. Thus, a movant who cannot show a strict fifty-one percent likelihood of success on
the merits—-but can show that there are serious questions going to the
merits—-can still receive a preliminary injunction as long as it also shows
that (1) irreparable harm will be likely, (2) the injunction is in favor of
the public interest, and (3) the balance of equities tips decidedly in its
favor. In addition, this standard would allow for a movant who is more
likely to succeed on the merits to have an easier burden of showing the
balance of harms weigh in its favor.161
B. Historical Support for the Proposed Standard
The proposed standard finds support in the historical use of preliminary injunctions prior to the merger of courts of equity and courts of law,
which traditionally allowed for flexibility. This section will explore this
source of support.
The Supreme Court has expressly relied on the historical practice of
granting preliminary injunctions in analyzing whether a preliminary injunction should issue.162 In Grupo Mexicano de Desarrollo, S.A. v. Alliance
Bond Fund, Inc., the Supreme Court reversed the district court’s grant of a
preliminary injunction because it was inconsistent with the historical
“general rule that a judgment establishing the debt was necessary before
a court of equity would interfere with the debtor’s use of his property.”163
Since “[t]he Judiciary Act of 1789 conferred on the federal courts jurisdiction over ‘all suits . . . in equity,’” the Court began with the premise
that “the ‘jurisdiction’ thus conferred . . . is an authority to administer in
equity suits the principles of the system of judicial remedies which had
been devised and was being administered by the English Court of
Chancery at the time of the separation of the two countries.”164 Thus,
160. This proposed standard is therefore slightly different than the Ninth and Second
Circuits’ tests, which do not consider the balance of hardships if the movant shows
irreparable harm and a likelihood of success on the merits. See Citigroup, 598 F.3d at 35
(stating movant must show “(a) irreparable harm and (b) . . . likelihood of success on the
merits”); Clear Channel, 340 F.3d at 813 (stating movant must show “a likelihood of success
on the merits and the possibility of irreparable injury”).
161. See Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 387 (7th Cir. 1984)
(“The more likely the plaintiff is to win, the less heavily need the balance of harms weigh in
his favor . . . .”).
162. See Lee, supra note 8, at 124–25 (discussing Supreme Court case indicating
“history is a crucial guidepost in evaluating the scope of federal equitable power”).
163. 527 U.S. 308, 321 (1999).
164. Id. at 318 (quoting Judiciary Act of 1789, § 11, 1 Stat. 73, 78; Atlas Life Ins. Co. v.
W.I. S., Inc., 306 U.S. 563, 568 (1939)). The Supreme Court has also endorsed reliance on
historical equity practice in the context of the standard for granting permanent
injunctions in patent cases. See eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391
(2006) (“‘[A] major departure from the long tradition of equity practice should not be
R
\\jciprod01\productn\C\COL\111-7\COL703.txt
2011]
unknown
Seq: 30
RECONCILIATION AFTER WINTER
28-OCT-11
14:42
1551
there is Supreme Court precedent for using historical practice to inform
the proper standard for granting a preliminary injunction.
In fact, this approach is supported not only by the Supreme Court,
but also by historical precedent from the English Courts of Chancery. In
the nineteenth century, the Chancery Court developed a more uniform
standard for preliminary injunction cases in England.165 The likelihood
of success prong was characterized by an “increasing willingness to protect the plaintiff whose chances of success were not absolutely clear,”166
and later entitled a plaintiff who had raised a fair matter for investigation
to be entitled to a preliminary injunction if its showing on the other
prongs was strong enough.167 Early American law surrounding preliminary injunctions also reflected this standard—that law used a sliding scale
analysis in balancing the four factors against each other.168 The historical
use of preliminary injunctions has thus incorporated both a sliding scale
analysis and an allowance of something less than a strict fifty-one percent
likelihood of success on the merits.
The Supreme Court recognized that “[t]he essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould
each decree to the necessities of the particular case.”169 For courts to use
their equity jurisdiction to promote a just result effectively, they must be
able to consider all aspects of the movant’s case and balance the strength
of each factor against the others. Therefore, historical equity practice
supports both balancing the factors and allowing for serious questions on
the merits to suffice for the likelihood of success prong.
C. Precedential Support for the Proposed Standard
Supreme Court precedent also supports the proposed approach.
The Court’s first substantive decision regarding the proper standard for
preliminary injunction came in Russell v. Farley, where the Court relied on
the “settled rule of the Court of Chancery” in regarding the “comparative
injury which would be sustained by the defendant, if an injunction were
granted, and by the complainant, if it were refused.”170 In addition, the
Court in Russell alluded to the possibility of balancing the likelihood of
success against the harm to either party, stating that “if the legal right is
doubtful . . . the court is always reluctant to take a course which may
lightly implied.’” (quoting Weinberger v. Romero-Barcelo, 456 U.S. 305, 320 (1982))); id.
at 394 (holding “equitable discretion of the district courts . . . must be exercised consistent
with traditional principles of equity”).
165. See supra note 9 and accompanying text (discussing development of single
standard for preliminary injunctions).
166. Leubsdorf, Standard, supra note 1, at 532.
167. See supra note 24 and accompanying text (describing likelihood of success
prong).
168. See supra note 29 and accompanying text (discussing early American case law).
169. Hecht Co. v. Bowles, 321 U.S. 321, 329 (1944) (noting “flexibility rather than
rigidity” has distinguished equity jurisdiction).
170. 105 U.S. 433, 438 (1881).
R
R
R
R
\\jciprod01\productn\C\COL\111-7\COL703.txt
1552
unknown
Seq: 31
COLUMBIA LAW REVIEW
28-OCT-11
14:42
[Vol. 111:1522
result in material injury to either party.”171 Thus, the dicta in Russell are
consistent with the sliding scale approach, as the more “doubtful” the
moving party’s legal right, the more “reluctant” the court should be to
grant the preliminary injunction.172
More contemporary Supreme Court cases also support the use of the
sliding scale approach and the allowance of serious questions analysis. In
Amoco Production Co. v. Village of Gambell, the Court noted that in determining whether to grant a preliminary injunction, a court must “balance
the competing claims of injury and must consider the effect on each party
of the granting or withholding of the requested relief.”173 It additionally
considered the magnitude and likelihood of irreparable harm in determining whether the balance of harms would favor an injunction.174
While examining the traditional standards governing stays of civil judgments, the Supreme Court emphasized that the formula for enacting
stays “cannot be reduced to a set of rigid rules,” since “the traditional stay
factors contemplate individualized judgments in each case.”175
The Supreme Court also acknowledged the use of a flexible approach in assessing the merits of the movant’s case in two more recent
cases addressing the standard for issuing a stay of appeal. In Nken v.
Holder, the Court provided a four-factor standard for granting a stay, and
although it repeated its “likely to succeed on the merits” phrasing, it did
not suggest that this factor requires a showing that the movant is “more
likely than not” to succeed on the merits.176 Indeed, as the Second
171. Id; see also Ohio Oil Co. v. Conway, 279 U.S. 813, 815 (1929) (instructing
“[w]here the questions presented by an application for an interlocutory injunction are
grave, and the injury to the moving party [in the absence of such an injunction] will be
certain and irreparable . . . the injunction usually will be granted”). Consideration of the
fourth factor—the public interest—was added to the framework in 1939. See Inland Steel
Co. v. United States, 306 U.S. 153, 157 (1939) (stating it is “the duty of a court of equity
granting injunctive relief to do so upon conditions that will protect all—including the
public—whose interests the injunction may affect”).
172. Lee, supra note 8, at 114 (“Contemporary treatises reinforced that the converse
standard also applied: if the moving party’s legal right was ‘plain and clear from doubt,’
then preliminary relief would be more clearly appropriate.” (citing Arthur D. Wolf,
Preliminary Injunctions: The Varying Standards, 7 W. New Eng. L. Rev. 173, 177–78
(1984))).
173. 480 U.S. 531, 542 (1987).
174. Id. at 545 (“If such injury is sufficiently likely, therefore, the balance of harms
will usually favor the issuance of an injunction to protect the environment.”).
175. Hilton v. Braunskill, 481 U.S. 770, 777 (1987). The Supreme Court has
recognized that there is “substantial overlap” between the factors governing stays and the
factors governing preliminary injunctions. See Nken v. Holder, 129 S. Ct. 1749, 1761
(2009) (noting “similar concerns arise whenever a court order may allow or disallow
anticipated actions before the legality of that action has been conclusively determined”);
see also id. at 1765–76 (Alito, J., dissenting) (“[A] stay is a ‘kind of injunction’ . . . .”
(quoting Black’s Law Dictionary 1413 (6th ed. 1990))).
176. Nken, 129 S. Ct. at 1761; see also supra note 104 and accompanying text
(discussing Second Circuit’s interpretation of Nken as it applies to standard for preliminary
injunctions).
R
R
\\jciprod01\productn\C\COL\111-7\COL703.txt
2011]
unknown
Seq: 32
RECONCILIATION AFTER WINTER
28-OCT-11
14:42
1553
Circuit notes,177 the Supreme Court contrasted a showing of likelihood
of success with a chance of success that is only “better than negligible,”
and since a serious questions showing requires more than a showing that
the chance of success is “better than negligible,” Nken does not rule out
the validity of the serious questions test.178 In Hollingsworth v. Perry, the
Court further clarified that issuing a stay required a likelihood of irreparable harm, but only a “reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari” and a “fair
prospect that a majority of the Court will vote to reverse the judgment
below.”179
Not only does Supreme Court precedent clearly support this approach, but Winter itself does not preclude courts from incorporating a
sliding scale analysis and allowing for serious questions on the merits to
suffice for the likelihood of success prong, as the Fourth Circuit argued.
Winter expressly withheld consideration of the merits of the parties’ underlying claims and decided the case upon the balance of the equities
and the public interest.180 In addition, Winter did not explicitly discuss
the continuing validity of the sliding scale approach.181 The Second Circuit points out that if the Supreme Court had meant for Winter to abrogate the more flexible standard for a preliminary injunction, “one would
expect some reference to the considerable history of the flexible standards applied in this circuit, seven of our sister circuits, and in the Supreme Court itself.”182 As Justice Ginsburg stated in her dissent, “courts
do not insist that litigants uniformly show a particular, predetermined
quantum of probable success or injury before awarding equitable relief.”183 The Supreme Court did not intend to displace the decades of
precedent in multiple circuits that allowed for the serious questions standard within a sliding scale analysis—if it had, it would have discussed the
177. See Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd.,
598 F.3d 30, 37 n.7 (2d Cir. 2010) (discussing Nken).
178. Nken, 129 S. Ct. at 1761; see also Citigroup, 598 F.3d at 37 n.7 (arguing Second
Circuit’s serious questions standard did not conflict with Nken).
179. 130 S. Ct. 705, 710 (2010) (per curiam). The Court further acknowledged the
use of a sliding scale in certain situations, stating that “[i]n close cases the Circuit Justice or
the Court will balance the equities and weigh the relative harms to the applicant and to the
respondent.” Id.
180. Winter v. Natural Res. Def. Council, 129 S. Ct. 365, 375–76, 381 (2008).
181. Id. at 392 (Ginsburg, J., dissenting) (“This Court has never rejected [the sliding
scale] formulation, and I do not believe it does so today.”).
182. Citigroup, 598 F.3d at 38 (citing Perry, 130 S. Ct. at 710; Nken, 129 S. Ct. at 1761).
A district court emphatically stated:
Can it possibly be that the Supreme Court and Ninth Circuit have taken away the
ability of district judges to preserve the status quo pending at least some discovery
and further hearing on the merits in such cases? This would be such a dramatic
reversal in the law that it should be very clearly indicated by appellate courts
before a district court concludes that it has no such power.
Save Strawberry Canyon v. Dep’t of Energy, No. C 08-03494 WHA, 2009 WL 1098888, at *3
(N.D. Cal. Apr. 22, 2009).
183. Winter, 129 S. Ct. at 392 (Ginsburg, J., dissenting).
\\jciprod01\productn\C\COL\111-7\COL703.txt
1554
unknown
Seq: 33
COLUMBIA LAW REVIEW
28-OCT-11
14:42
[Vol. 111:1522
issue and not simply reiterated the traditional four-part standard. In sum,
Supreme Court precedent affirms the proposed standard, which permits
sliding scale analysis and allows for serious questions going to the merits
to suffice for the likelihood of success prong.
D. The Advantages of Uniformity and the Sliding Scale Approach
The proposed standard not only comports with Supreme Court precedent and the historical standard for granting preliminary injunctions, it
is also supported by policy considerations, including allowing a more fair
and complete review of the plaintiff’s case and minimizing the harm
caused by hasty decisions.
The current lack of uniformity is based on the uncertain relationship
between the four factors: whether the factors can be balanced against one
another or whether each factor must be shown by the moving party to a
sufficient degree of clarity or strength. The lack of uniformity causes
“havoc in litigation,” which the courts have consistently failed to confront.184 Uniformity also has clear benefits to practitioners who litigate in
multiple circuits.185 More concretely, the lack of a uniform standard leads
to inconsistent judgments and inequitable results.186 Uniformity also
“strengthens the marketplaces of ideas” that are the state legislatures and
lower federal courts.187
There are strong policy considerations that favor allowing a district
court to have flexibility in balancing the factors, and in allowing serious
questions to suffice. In a concurring opinion for the recent Ninth Circuit
case Alliance for the Wild Rockies v. Cottrell (Wild Rockies II), District Judge
Mosman emphasized that the task of evaluating a request for a preliminary injunction “is often a delicate and difficult balancing act, with complex factual scenarios teed up on an expedited basis, and supported only
184. See Lea B. Vaughn, A Need for Clarity: Toward a New Standard for Preliminary
Injunctions, 68 Or. L. Rev. 839, 841 (1989) (noting courts have been unwilling to articulate
jurisprudence describing appropriate standards for issuance of preliminary injunctions).
185. See Denlow, supra note 1, at 532–33 (noting difficulty of counseling clients in
absence of consistent, uniform standard).
186. Id. at 531. Magistrate Judge Denlow gives the example of a typical trademark case
in which two Seventh Circuit panels applied two different preliminary injunction
standards. Id. at 530–31. In one case, the panel required the plaintiff to establish a
“likelihood of success on the merits,” while in the other, the plaintiff was required to show
only “a greater than negligible chance of prevailing on the merits.” Compare Eli Lilly &
Co. v. Natural Answers, Inc., 233 F.3d 456, 461 (7th Cir. 2000) (requiring likelihood of
success on merits), with Barbecue Marx, Inc. v. 551 Ogden, Inc., 235 F.3d 1041, 1043 (7th
Cir. 2000) (requiring only greater than negligible chance of prevailing on merits).
187. See Ryan Griffin, Note, Litigating the Contours of Constitutionality:
Harmonizing Equitable Principles and Constitutional Values when Considering
Preliminary Injunctive Relief, 94 Minn. L. Rev. 839, 866–67 (2010) (arguing statutes will be
challenged more frequently in jurisdictions less deferential to statutes, which will cause
courts in particularly deferential circuits to have correspondingly less opportunity to shape
substantive issues being challenged).
R
\\jciprod01\productn\C\COL\111-7\COL703.txt
2011]
unknown
Seq: 34
RECONCILIATION AFTER WINTER
28-OCT-11
14:42
1555
by limited discovery.”188 As the Supreme Court stated in a much earlier
case, “[e]quity eschews mechanical rules; it depends on flexibility.”189
There are good reasons to treat the likelihood of success factor differently from the likelihood of harm factor. A district court at the preliminary injunction stage is in a much better position to predict the likelihood of harm than the likelihood of success, and, as Judge Mosman
asserts, “it can seem almost inimical to good judging to hazard a prediction about which side is likely to succeed.”190 Allowing for serious questions on the merits to suffice for the likelihood of success prong accords
with one of the primary purposes of preliminary injunctions: “to give temporary relief based on a preliminary estimate of the strength of plaintiff’s
suit, prior to the resolution at trial of the factual disputes and difficulties
presented by the case.”191
Magistrate Judge Denlow argues that the moving party should be required to demonstrate “at least a 50% chance of success on the merits,”
reasoning that this condition will dissuade parties with weak cases from
seeking preliminary relief when permanent relief would not ordinarily be
available.192 He further argues that a sliding scale approach “manipulates
the judicial process” because it is unlikely the movant will win at trial if it
cannot show at least a fifty percent chance of success.193 Judge Denlow’s
arguments rest on his assumption that a movant who cannot show at least
a “50% chance of success on the merits” at the preliminary injunction
stage will be unlikely to win at trial.194 In practice, however, the parties
“are often mostly guessing about important factual points that go, for example, to whether a statute has been violated, whether a noncompetition
agreement is even valid, or whether a patent is enforceable.”195 Aside
from cases where the outcome at trial is obvious, often the “better question
to ask is whether there are serious questions going to the merits.”196
Economic theory also supports allowing a district court to weigh the
factors. Under Leubsdorf’s model, the preliminary injunction standard
should attempt to “minimize the probable irreparable loss of rights
caused by errors incident to hasty decision.”197 Proceeding from this goal,
he argues that a preliminary injunction should be granted if the product
of the probability that plaintiff will prevail and the amount of uncompen188. 632 F.3d 1127, 1139 (9th Cir. 2011) (Mosman, J., concurring).
189. Holmberg v. Armbrecht, 327 U.S. 392, 396 (1946).
190. Wild Rockies II, 632 F.3d at 1140 (Mosman, J., concurring).
191. 11A Wright et al., supra note 2, § 2948.3.
192. Denlow, supra note 1, at 538.
193. Id. (noting allowing sliding scale approach “wastes valuable and limited court
time”).
194. Id.
195. Wild Rockies II, 632 F.3d at 1139–40 (Mosman, J., concurring) (noting arguments
that flow from facts at preliminary injunction stage “do not have the clarity and
development that will come later at summary judgment or trial”).
196. Id.
197. Leubsdorf, Standard, supra note 1, at 540–41.
R
R
R
\\jciprod01\productn\C\COL\111-7\COL703.txt
1556
unknown
Seq: 35
COLUMBIA LAW REVIEW
28-OCT-11
14:42
[Vol. 111:1522
sated harm plaintiff will suffer during the pendency of the litigation is
greater than the product of the probability that defendant will prevail
and defendant’s uncompensated costs of complying with the injunction.198 This rationale supports the proposed standard because requiring
a stronger showing on the balance of equities when the movant has only
shown serious questions on the merits constitutes a balancing between
the probability the plaintiff will prevail and the nonmovant’s costs if the
injunction is improperly granted.
CONCLUSION
Preliminary injunctions are among the most important remedies
available to plaintiffs in a wide variety of areas, including those with significant public law repercussions. The articulated standards across the circuit courts reflect historical tendencies, different policy rationales, and
Supreme Court precedent. However, circuits apply the standards differently, and this lack of uniformity can unfortunately lead to inequitable
and inconsistent results. Winter provided the Supreme Court with an opportunity to clarify the appropriate application, but the Court’s lack of
clarity led to more confusion among the circuits. The ideal uniform approach across the circuits would adhere to historical precedent and the
traditional four prongs of the preliminary injunction standard while giving district courts sufficient flexibility in weighing the factors. Crucially,
the proposed standard also allows for “serious questions” on the merits to
suffice for the likelihood of success prong as long as the movant also
makes strong showings on the other three prongs. This standard, an
amalgam of the Second, Ninth, and Seventh Circuits’ approaches both
pre- and post-Winter would resolve the current circuit split and provide
district courts with the flexibility to grant preliminary injunctions based
on the most holistic review of the movant’s case.
198. Id. at 541–42. Judge Posner took a similar approach in American Hospital Supply
Corp. v. Hospital Products Ltd., 780 F.2d 589, 593–94 (7th Cir. 1986) (“A district judge
asked to decide whether to grant or deny a preliminary injunction must choose the course
of action that will minimize the costs of being mistaken.”).