The Preliminary Injunction Standard: Understanding the Public Interest Factor.

• Author: Moore, M. Devon

Under Winter v. NRDC, federal courts considering a preliminary injunction motion look to four factors, including the public interest impact of the injunction. But courts do not agree on what the public interest is and how much it should matter. This Note describes the confusion over the public interest factor and characterizes the post-Winter circuit split as a result of this confusion. By analyzing the case law surrounding the public interest factor, this Note identifies three aspects of a case that consistently implicate the direction and magnitude of this factor: the identity of the parties, the underlying cause of action, and the scope of injunctive relief. By centering the public interest factor on these three aspects, courts and litigants will achieve a unified conception of the public interest factor.

TABLE OF CONTENTS INTRODUCTION I. THE ROAD TO WINTER A. Equitable Origins of the Preliminary Injunction B. Preliminary Injunctions in the Modern Age II. PRELIMINARY INJUNCTIONS & PUBLIC INTEREST AFTER WINTER A. The State of the Post-Winter Circuit Split B. The Public Interest Factor in Action III. WHEN SHOULD THE PUBLIC INTEREST FACTOR MATTER? A. What Courts Should Not Consider in Assessing the Public Interest Factor B. What Courts Should Consider in Assessing the Public Interest Factor 1. Parties and Directly Affected Nonparties 2. Underlying Cause of Action 3. Scope of Requested Injunctive Relief CONCLUSION INTRODUCTION

A preliminary injunction is an extraordinary remedy. In recent years, courts granted preliminary injunctions to protect trade secrets, (1) put a new candidate on a state ballot, (2) resolve commercial disputes, (3) and even halt enforcement of an executive order. (4) Given the power of a preliminary injunction, it is important that courts grant them in appropriate circumstances. In Winter v. Natural Resources Defense Council, Inc. (NRDC), the Supreme Court provided courts with such a framework, clarifying that the decision to grant a preliminary injunction depends, among other factors, upon whether "an injunction is in the public interest." (5)

Despite Winters framework and the inclusion of the public interest factor in that framework, the content and weight of the public interest factor lack clarity. For example, Wright & Miller's Federal Practice and Procedure offers only anecdotal advice on what courts might consider in assessing this factor. (6) And a survey of circuit and district court opinions shows a variety of approaches for weighing this factor and the circumstances in which an injunction is or is not in the public interest. (7) Although the public interest is just one factor in the preliminary injunction analysis, the sheer power of a preliminary injunction demands that this factor be better understood.

This Note inspects the unstructured and often conflicting articulations of the public interest factor. It proposes guidelines for determining in what circumstances "a preliminary injunction is in the public interest." (8) Part I explores the history of the preliminary injunction, with an emphasis on the flexibility employed by courts of equity. Part II examines the state of the preliminary injunction post-Winter, which reveals that the disagreement between circuit courts applying Winter largely comes from how the courts weigh the public interest factor. Part III provides flexible structural guidelines for assessing the public interest implications of a preliminary injunction. These rules provide a basic framework for the public interest factor while preserving equitable discretion and flexibility.

1. THE ROAD TO WINTER

   The present-day notion of a preliminary injunction, described in Rule 65 of the Federal Rules of Civil Procedure (9) and outlined in Winter v. NRDC, (10) evolved from a history of equitable remedies fashioned by the English Court of Chancery. (11) That history elucidates the Supreme Court's formulation of the preliminary injunction standard in Winter. This Part pays particular regard to the historical constraints on injunctive relief (12) and the considerations that influence lower courts' applications of the Winter test. (13)

   1. Equitable Origins of the Preliminary Injunction

      Preliminary injunctions have always been an equitable remedy. Courts of equity, not law, had jurisdiction to grant preliminary injunctions to protect rights "from irreparable or at least from serious damage pending the trial of the legal right." (14) That is, the decision to grant or deny a preliminary injunction was a purely equitable one. (15)

      Early definitions of preliminary injunctions resemble modern formulations in several important ways. In his 1927 overview of injunctions, William Williamson Kerr wrote, "The interlocutory injunction is merely provisional in its nature, and does not conclude a right. The effect and object of the interlocutory injunction is merely to keep matters in statu quo until the hearing or further order." (16) Modern authorities on federal civil procedure mirror Kerr's language. (17) Both early and modern definitions identify a common purpose of the preliminary injunction: ensuring that final relief will be possible at the end of the trial.

      Because of these equitable roots, rulings on preliminary injunctions emphasized both flexibility and fact specificity. Early courts often remarked that preliminary injunctive relief required a careful consideration of facts with a specific aversion to mechanical and deterministic applications of some rule. (18) This emphasis on flexibility might have reflected a desire to maintain comity between courts of equity and courts of law. (19) Courts of equity were reluctant to pass judgment on the underlying merits of a claim regarding a legal right, lest they impermissibly express an opinion on the proceedings of a court of law. (20) This flexibility is a common thread in many early cases discussing preliminary injunctions.

      There is also case law from this early period distinguishing mandatory injunctions from prohibitory injunctions. (21) This is perhaps related to the notion of maintaining the status quo; (22) courts sought to prevent a party from acting, instead of compelling action. (23) Though this consideration is absent from Winter, it still appears in some district court opinions. (24) It accounts for some of the disparity between the circuits in applying the Winter test.

      Crucially, early chancery courts sometimes considered the impact on nonparties of granting preliminary injunctive relief. (25) For example, in 1823 the High Court of Chancery in Scotland reviewed a preliminary injunction concerning literary rights over an unpublished book. (26) The ruling explained that when in need of a tiebreaker, courts should consider "[w]hether the public, in a case nearly balanced, has any interest either way." (27) Clear concern for the public interest was rare compared to the public interest concern of twentieth-century legislation and litigation. But those formulations show that courts have long considered the interests of the public at large as part of preliminary injunction analysis, and they provide historical grounding for public interest analysis in the Winter standard.

   2. Preliminary Injunctions in the Modern Age

      Standards for preliminary injunctive relief remained varied throughout the twentieth century despite earlier attempts to develop a uniform framework. (28) The courts of law and equity merged in 1934, (29) and while courts continued to treat a preliminary injunction as an equitable measure, (30) even Supreme Court decisions suffered from inconsistencies. (31) Though many courts listed the same four key factors, (32) there was little consistency in the precise definition of each factor. (33) Further, some courts maintained that preliminary injunctions existed to preserve the status quo. Or prohibitory preliminary injunctions were favored over mandatory ones. Other courts made no mention of these background preferences. (34)

      A truly unified standard only emerged in the Supreme Court's recent articulation of the preliminary injunction standard in 2008's Winter v. NRDC. In Winter, the court outlined a four-part test for motions for preliminary injunctive relief. 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." (35) But Winter lacks any discussion of the status quo or an emphasis on prohibitory injunctions. Also absent, at least from the majority opinion, is a discussion of the equitable origins of the preliminary injunction, which emphasized flexibility. (36)

      In the decade since Winter, the Supreme Court has not provided any further guidance on how to apply the four-factor standard. (37) Although the Court has considered several other cases involving preliminary injunctions, the cases have not required recapitulation of the full preliminary injunction standard test. (38) Thus, the Court has not had occasion to endorse or reject Justice Ginsburg's dissenting remark in Winter that "courts have evaluated claims for equitable relief on a 'sliding scale,'.... This Court has never rejected that formulation, and I do not believe it does so today." (39) Lower courts, however, have had plenty of opportunities to apply the Winter test, and their divergent approaches reveal that a truly unified standard remains elusive.

2. PRELIMINARY INJUNCTIONS & PUBLIC INTEREST AFTER WINTER

   Even after Winter, lower courts continue to disagree on the correct application of that standard. In fact, circuits were still refining interpretations of Winter as recently as 2017. (40) While it is difficult to neatly divide these circuit court decisions, this Note categorizes the presently employed tests into three schools: the sequential test, the threshold test, and the sliding-scale test...