Judges Rulings After Issuing Preliminary Injunctions

[Fotheringay-Phipps]

One of the elements required for a judge to issue an injunction is a substantial likelihood on prevailing on the merits of the legal case. But these are issued before the legal arguments have been fully fleshed out and argued in court. In theory, a judge could issue a preliminary injunction based on his belief before the case was argued that the one side was likely to prevail legally, and then change his mind and rule the other way at the trial. On the other hand, people don’t like to change their minds about things that they’ve taken forceful actions about, which would make their prior actions turn out to be based on an incorrect premise and them look foolish. Plus, it’s likely that judges have a pretty good sense of things before all the legal arguments, such that a lot of the verdicts are predetermined and the trial arguments largely moot.

So the factual question here is: how often do judges who issue preliminary injunctions ultimately rule against the argument that they originally believed to be likely to prevail? I would be very surprised if that’s as high as 10% and would assume it’s probably lower than 5% (if not entirely unheard of other than in special circumstances that allow the judge to save face, e.g. new facts emerging). But perhaps the facts are out there.

[watchwolf49]

Federal Rules of Civil Procedure › TITLE VIII. Rule 65. Injunctions and Restraining Orders:

(b) Temporary Restraining Order.

(1) Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:

(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and

(B) the movant’s attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

(2) Contents; Expiration. Every temporary restraining order issued without notice must state the date and hour it was issued; describe the injury and state why it is irreparable; state why the order was issued without notice; and be promptly filed in the clerk’s office and entered in the record. The order expires at the time after entry—not to exceed 14 days—that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension. The reasons for an extension must be entered in the record.

(3) Expediting the Preliminary-Injunction Hearing. If the order is issued without notice, the motion for a preliminary injunction must be set for hearing at the earliest possible time, taking precedence over all other matters except hearings on older matters of the same character. At the hearing, the party who obtained the order must proceed with the motion; if the party does not, the court must dissolve the order.

(4) Motion to Dissolve. On 2 days’ notice to the party who obtained the order without notice—or on shorter notice set by the court—the adverse party may appear and move to dissolve or modify the order. The court must then hear and decide the motion as promptly as justice requires.

I’m not seeing the requirement for “substantial likelihood on prevailing on the merits of the legal case” … just the requirement to establish “immediate and irreparable injury, loss, or damage” … I understand the case where the judge makes their decision on the matter just hearing one side … but the TRO is based on the harm inflicted … and that merits of the filing aren’t, you know, totally crazy … “My dog hates the new grass in City Park, make them tear it all out” …

[Northern_Piper]

That rule governs how to bring an application for a preliminary injunction, not what test the applicant has to meet.

There are four requirements for an application to be granted:

"A plaintiff seeking a preliminary injunction must establish

[1] that he is likely to succeed on the merits,

[2] that he is likely to suffer irreparable harm in the absence of preliminary relief,

[3] that the balance of equities tips in his favor, and

[4] that an injunction is in the public interest."

See the wiki article on Preliminary Injunction, citing Winter v. NRDC, Inc., 555 U.S. 7 (2008)

[watchwolf49]

Thank you, Northern Piper … the OP’s use of the word “substantial” is what I thought was in error … glad you had time to post the StraightDope …

[Fotheringay-Phipps]

If that’s really what you thought then your post was an irrelevant nitpick at best.

But it also happens that you’re wrong about the facts. The Wiki article says “substantial” as do any number of other reputable sources. E.g. to pick one from a random google search, this court decision, page 2, and any number of similar sources.

[watchwolf49]

From the Wiki article “Injunctions”

Preliminary injunctions are given before trial. Because they are given at an early stage, before the court has heard the evidence and made a decision in the case, they are more rarely given. The requirements for a preliminary injunction tend to be the same as for a permanent injunction, plus the additional requirement that the party asking for the injunction is likely to succeed on the merits.[sup][9][/sup]

[9] = Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008)

Emphases mine

Perhaps you’re referring to a different article …

[Fotheringay-Phipps]

@watchwolf49

From the Wiki article “Injunctions”

Emphases mine

Perhaps you’re referring to a different article …

Why yes indeed, I am. I was referring to the Wiki article on preliminary injunctions linked in Northern Piper’s post. You read and praised that post, which makes all the more striking your later ignoring of that article in favor of finding a different article which left out the word “substantial”.

Which is of course even leaving aside my cite to an actual court decision which used the term.

[watchwolf49]

(a) The lower courts held that when a plaintiff demonstrates a strong likelihood of success on the merits, a preliminary injunction may be entered based only on a “possibility” of irreparable harm. The “possibility” standard is too lenient. This Court’s frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction.

Is this the part you mean … Winter vs. Natural Resources Defense Council doesn’t address the likelihood of success … mainly it addresses the public benefit of lifting the injunction … this ruling narrowly focused on the public interest vs. the “possibility” of irreputable harm … there’s nothing I can find discussing the standards of “likelihood to prevail” …

So we have two different WikiArticles saying two different things using the exact same reference … what a surprise …

[Fotheringay-Phipps]

Probably because most people don’t regard the difference as being significant. As I myself observed earlier. The one making a big deal about the distinction is you, so the contradiction undermines you.

[Richard_Parker]

I’ve never seen any stats, but my own experience has been consistent with your hypothesis.

Also any comparison between PIs granted and final judgments would not necessarily shed a lot of light on your question There are huge selection effects on which cases make it all the way to final judgment–one of which is how much merit the case has. Obvious wins for plaintiffs rarely make it to trial.

[Fotheringay-Phipps]

That’s a good point.

I guess the only measure would be if judges ruling against their initial assumption is common enough that you routinely encounter it, or if it’s extremely unlikely or unheard of.

I would suppose lawyers would have to have an informed opinion on this, since it would inform their own assessment of their likely success - and by extension future legal tactics or negotiation stance - based on the initial preliminary injunction.

Anyway, thanks for the response!