The Fourth Circuit’s recent decision in The Real Truth About Obama, Inc. v. FEC, which adopts a new standard for issuing preliminary injunctions, will have serious implications for parties seeking temporary injunctive relief in Virginia’s state and federal courts.
For the past three decades, a plaintiff trying to secure a preliminary injunction in the Fourth Circuit–and, as a practical matter, in the Virginia state courts–had to satisfy the balance-of-hardship test set out in Blackwelder Furniture Co. of Statesville v. Selig Manufacturing Co., 550 F.2d 189 (4th Cir. 1977).
Under Blackwelder, the first step in the court’s analysis is to balance the likelihood of irreparable harm to the plaintiff against the likelihood of harm to the defendant. If that results in an imbalance in the plaintiff’s favor, the court moves on to determine whether the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation.
Blackwelder allows for a “flexible interplay” among these elements. The upshot of its approach is that, if the balance of the hardships falls in the plaintiff’s favor, he need not show a likelihood of success. It might be enough to show a substantial question. In fact, the Blackwelder court expressly held that the district court had erred by requiring the plaintiff to show a likelihood of success on the merits.
Blackwelder has proven to be a peculiarly influential federal decision. That’s because, while the Fourth Circuit has a robust body of temporary injunction case law, the Supreme Court of Virginia has very little. As a result, Virginia trial courts have adopted the Blackwelder test.
The Real Truth About Obama, Inc. v. FEC
For a long time, that was the state of things–although, as Steve Emmert notes in his excellent analysis, Blackwelder certainly had its critics.
Late last year, however, the Supreme Court of the United States clearly articulated the elements necessary to support a preliminary injunction in Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365. Primary among these was a likelihood of success on the merits. This was, to say the least, bad news for Blackwelder, which allowed plaintiffs faced with serious harm to elide this requirement.
And so, earlier this month, the Fourth Circuit retired Blackwelder in a case styled The Real Truth About Obama, Inc. v. FEC.
The opinion is not nearly as interesting as it sounds, largely because the appellants had no apparent interest in discussing the real truth about President Obama:
They just wanted to talk about election regulations.
Though sorely lacking in pirates, TRTAO does have some good law on preliminary injunctions. The Fourth Circuit acknowledged that its Blackwelder approach stands “in fatal tension” with Winter. As a result, the Blackwelder test may no longer be applied in the Fourth Circuit, and the Winter standard now applies. Therefore, in order to obtain a preliminary injunction, a plaintiff now must show that:
- He is likely to succeed on the merits;
- He is likely to suffer irreparable harm in the absence of preliminary relief;
- The balance of equities falls in his favor; and
- An injunction is in the public interest.
Further, the plaintiff must prove all of these elements. The Winter court specifically rejected a standard that would allow a plaintiff to demonstrate only a possibility of substantial harm.
Why is the The Real Truth About Obama important?
- It makes it harder to get a preliminary injunction. The Fourth Circuit acknowledges as much in its opinion, when explaining how Blackwelder differs from Winter. Winter ratchets up the degree of difficulty in at least four respects. First, it replaces Blackwelder‘s standard that a plaintiff show a serious question with the requirement that he clearly demonstrate a likelihood of success on the merits. Second, a plaintiff under Winter must clearly show that he is likely to be irreparably harmed absent preliminary relief. Under Blackwelder, by contrast, the courts would balance the likelihood of irreparable harm to the parties. Third, Winter requires courts to pay “particular regard” to the public consequences of an injunction, while Blackwelder allowed them to downplay that issue. Fourth, Winter articulates 4 elements, each of which must be met. It rejects the Blackwelder sliding-scale approach.
- If you are in Virginia state court, it is difficult to predict which test will be used, let alone how it will be applied. A quick Shephard’s search shows that Virginia state courts have cited Blackwelder 18 times, and TRTAO 0 times. Have the Virginia courts adopted Blackwelder to the extent that it is now an organic part of the common law, regardless of the Fourth Circuit’s approach? The smart money says no, but it’s an open question at the moment.
- It’s yet another argument for an intermediate appellate court of general jurisdiction. The state courts would never have found themselves in this mess in the first place if they had a body of published Virginia case law to follow.
For now, it will be interesting to watch TRTAO as it trickles through the Virginia court system.