from the status-quo-preservation dept
Few areas of law have lately been as relevant, and the focus of so much dispute, as preliminary injunctive relief. Because the subject has come up so many times already, and is inevitably bound to come up again in the near future, this post takes a moment to discuss what is meant by preliminary injunctive relief, how it works, and why it’s important.
An injunction is an order by a court to cause something to stop happening (or start happening, when it was already supposed to be happening). When they result at the end of a case, after a court has found that what was being sued over was indeed illegal, they are about remediating the problem that has now been found. But injunctions can also happen at earlier, or preliminary, stages of litigation, to restrain an action that might be wrongful, but that the court has not yet finally determined definitely is, in order to preserve the status quo until the court has had time to figure out what the law indeed requires. Because if what was happening (or not happening) turns out to have been illegal, that violation will likely have caused some harm that needs to be remediated. But the point of a preliminary injunction is to try to ensure that harm doesn’t occur in the first place (or at least not any more than it already has).
This preliminary injunctive relief can take several forms, depending on where they arise in the course of the litigation. One form is as a preliminary injunction itself, as an injunction issued by a court at some point before it has finally ruled on the merits of the case, but there is also another form, a “temporary restraining order,” which can also happen even earlier, including right after the case is filed. Because they happen so early, before a record is developed, and maybe even before a defense can be properly mustered, they tend to be regarded as especially extraordinary relief seldom granted, and if granted they are limited in their duration before needing to be converted into preliminary injunctions after further proceedings, or expiring. A PI may also be awarded where no TRO had been and where, after additional proceedings, the court has found it necessary to pump the brakes on something while the case continues to be litigated.
And as recent events have suggested, it is also worth considering a “stay” as a form of preliminary injunctive relief. Unlike regular PIs or TROs, which bind the defendant, a “stay” essentially binds a court so that it can’t enforce its orders, including injunctive ones, until there is further review of whether those orders were proper. The stay effectively presses pause on them. Sometimes the court that issued the order will then stay it itself, in order to give more time for something to happen, like an appeal to be filed, but sometimes (as we’ve often seen of late) an appeals court might order a lower court’s order stayed. Sometimes these are “administrative stays,” where the pause button is pressed almost as a matter of routine, but only for a very short time, like to buy an appeals court a chance to just catch its jurisprudential breath and recognize that the matter is now on its docket for it to do something with. But stays can also be longer, to buy a lot more time for the litigation to continue before any injunction is effected. Stays are important to include when reflecting on preliminary injunctive relief because ultimately all of these instruments are about maintaining a status quo while the litigation forges on. A TRO or preliminary injunction is granted when it is needed to keep something from changing while the litigation continues, and a stay is issued when a court determines that, actually, the status quo is best preserved, during the pendency of the litigation, without it.
The analysis used to decide whether the status quo is best served by something being preliminarily enjoined with any of these instruments is also generally the same for all of them, although specific details about whether and how to grant them may differ. But the essential issue pertinent to them all is that, when they are on the table, the case hasn’t been decided yet, and so its possible that whatever the court does at this early stage, enjoin or not enjoin, will eventually be found to be the wrong call, either leaving a victim to unduly suffer some unlawful injury if no injunction is issued, or unduly punished someone by restraining them from doing something they were lawfully entitled to do if one is. To try to minimize the risk of either injustice, courts therefore consider four things. (In the federal courts these are sometimes called the Nken factors, from the Supreme Court decision in Nken v. Holder, which also discussed the overlap between stays and injunctions, or the Winter factors, from Winter v. Natural Resources Defense Council, which spoke to the standard for a preliminary injunction. State courts have their own tests, but they generally look a lot like the federal one because these are tests that originated in the common law English jurisprudence America inherited.)
The first consideration is whether there is a risk of “irreparable harm” if the preliminary injunctive relief is not granted. This question basically assesses the stakes. Because it would be bad to enjoin someone later exonerated, the courts only want to do it when the consequences of not enjoining them are irreparable, meaning that nothing will be able to compensate the harmed plaintiff for the harm they experienced while the case was litigated. If ultimately the plaintiff could be made whole later just by getting some money the harm is generally not considered irreparable. But in many cases no amount of money will ever be able to undo the damage, and in those cases that harm is thought to be “irreparable.”
But because the courts want to be cautious and not inadvertently enjoin something that is actually lawful, the next consideration is whether the plaintiff also has a likelihood of succeeding on their claims. Because even when the consequences of something are irreparable, if there is a reasonable chance that the plaintiffs won’t ultimately win and get the courts to deem it unlawful, then it would be wrong to enjoin the defendant and keep them from acting in a way that will actually be lawful. At the early stages a court cannot definitively know whether the plaintiff will win—the full litigation is what will determine it—but with the “likelihood of success” factor courts take the facts on the record so far, and whatever early briefing on the law that has been done, and make their best guess.
Rounding out the inquiry, courts then consider two more things: what is often referred to as the “balance of the equities,” and the public interest, although in cases where the government is the defendant the two factors “merge” into one because there is a particular form of harm that results to the public interest when the government is allowed to act unlawfully and unchecked. But when the dispute is between private parties courts separately consider both how awarding (or not awarding) preliminary injunctive relief will bear on the parties, which is the balance of the equities, as well as whether there is any externality that may bear on the public interest if the injunction is or is not granted at this stage. For example, imagine two garbage haulers are in dispute, with one claiming the other is illegally encroaching on their turf. Balance of the equities would consider how well either firm could weather an injunction being awarded or withheld as they wait for the dispute to be resolved, while the public interest inquiry would care about whether the public, while not an official party to the dispute, would still get their garbage picked up.
The guiding principle is always to “preserve the status quo” while the case is adjudicated, but that notion really presupposes preserving the status quo before the potential unlawful injury occurred, not preserving the injurious state itself. Still, it’s often easier said than done to make this distinction because courts will always have to navigate the inevitable tension between potentially letting a bad thing continue to happen versus potentially stopping a good (or at least lawful) one.
But the analysis described above is the basic roadmap courts will use to figure out which injustice to risk. And being aware of it will help one observe how courts navigate this tension and assess whether their analysis seems adequate, especially given the particular stakes raised by each case.
Filed Under: injunctions, policy building blocks, preliminary injunctions, temporary restraining order
