Most court cases are resolved through monetary relief, when a judge orders one party to pay a sum of money to another. However, sometimes money alone isn’t enough to resolve the problem. When this occurs, a court may grant injunctive relief, a remedy that orders a party to do- or refrain from doing- certain actions. Injunctive relief is typically used when a party faces irreparable harm, meaning an injury that cannot be adequately remedied with money damages. For this reason, injunctions can be used to protect a party’s interest before, during, or after litigation. However, courts do not grant injunctions automatically; the party requesting the injunction must satisfy specific legal requirements. This article explains the different types of injunctive relief, the standards courts apply when deciding whether to grant them, and how injunction decisions may be appealed under federal law.
The example this article will use to illustrate this issue is a property dispute between two neighbors, Anna and Bill. Anna is cutting down trees that Bill believes are on his property, and Bill files a lawsuit to resolve the dispute. Filing the lawsuit, however, does not stop Anna from continuing to cut the trees. Further, even if Bill prevails in the suit, the trees cut down during the litigation will not grow back. This is an example of the “irreparable harm” that injunctions are intended to protect. Through an injunction, Bill could prevent Anna from cutting down more trees. But what kind of injunction?
Temporary Restraining Order
In some situations, time is of the essence and injunctive relief may be needed as quickly as possible. In the example above, Bill is worried that he will soon have no trees left and is hoping for an immediate stop to Anna’s actions. In that case, Bill may wish to seek a temporary restraining order. A temporary restraining order (TRO) is a form of injunctive relief available during the pre-trial process. It is intended to be granted quickly and for a short duration (typically up to 14 days). TROs exist to prevent immediate harm that may occur before the court could hold a formal hearing. Because of this, TROs may be issued without notice from the court or an opportunity for both sides to be heard. Under Rule 65 of the Federal Rules of Civil Procedure (FRCP) the party seeking a TRO without notice must provide a sworn statement or verified complaint which clearly show that immediate and irreparable injury will result before the parties can engage in a formal hearing with the court. Second, the attorney of the party seeking a TRO must certify in writing any attempts to notify the opposing party and reasons why notice should not be required. When determining whether to grant a TRO, judges will apply the a four-factor test, as outlined in Winter v. Natural Resources Defense Council, Inc.
That test includes a consideration of
- Likelihood of success on the merits: The party must show a strong chance of winning the case at trial.
- Irreparable harm: The harm must be immediate and not adequately remedied by money damages.
- Balance of equities: Courts will balance the hardship to the party asking for the injunction against the burden on the opposing party.
- Public interest: Courts consider whether granting or denying the injunction would serve broader public policy goals.
Urgency also plays a role in a court’s decision to grant a TRO, as they are intended to prevent immediate harm. Typically, they protect a party from immediate harm while awaiting a formal hearing for another form of injunctive relief, such as a preliminary injunction.
Preliminary Injunction
In our example, Bill and his attorney were able to obtain a TRO from the court, preventing Anna from cutting down more trees. However, TROs generally do not exceed 14 days, while litigation often takes much longer. As a result, Bill will most likely need a different form of injunction to protect his trees for the duration of the trial. In that situation, Bill will need a preliminary injunction. A preliminary injunction can be granted before or during a trial. Unlike TROs, preliminary injunctions require a formal hearing with both parties, and do not have a set duration. Often a TRO may be converted into an injunction after a formal hearing is held. The purpose of a preliminary injunction is to preserve the status quo, or the last uncontested state of the parties before the controversy began. In our example, the status quo would be the state of the trees at the time the lawsuit was filed.
Under the FRCP, a preliminary injunction may only be issued after a hearing with the court and notice to the other party. FRCP Rule 65. The FRCP does not identify the elements that courts must use to determine when a preliminary injunction is proper. However, as discussed above, courts will apply the same four-factor Winters test used for TROs. In the above example, Bill would have to provide evidence supporting each element of the test. If he was able to do so, an injunction would be granted.
Permanent Injunctions
Let’s assume that Bill has prevailed in the property dispute. What stops Anna from chopping down more trees in the future? As part of the request for relief in the case before the court gives its ruling, Bill and his attorney can seek a permanent injunction blocking Anna from future tree cutting. Permanent injunctions are a form of injunctive relief granted as part of a final judgment. In other words, permanent injunctions will only be granted at the end of a trial or on a successful motion for summary judgment after all other issues have been resolved.
To decide whether a permanent injunction should be granted, courts will apply a four-part test. Under eBay Inc. v. MercExchange, L.L.C., a permanent injunction is appropriate when: 1) the plaintiff has suffered an irreparable injury: 2) remedies available at law, such as monetary damages, are inadequate to compensate for the injury; 3) the injunction is warranted upon consideration of the balance of hardships between the plaintiff and defendant; and 4) the permanent injunction being sought would not hurt public interest. Permanent injunctions are issued as part of a final judgment, meaning that the party seeking an injunction has already done enough to prove the injunction is warranted. Unlike TROs and preliminary injunctions, permanent injunctions are conclusive and are often the court’s final order to the parties. However, permanent injunctions are not entirely permanent. They have no set duration, but courts may still decide to modify or terminate the injunction later if circumstances have changed.
Appealing Injunctive Relief
If Anna is unhappy with the various injunctions granted by the court, she can appeal. However, different types of injunctions may be appealed at different points in the court process. Generally, final judgments, including permanent injunctions, may be immediately appealed. A judgment or order is “final” when all issues in a case have been resolved, and the rights of the parties have been settled. At that point in time, the order is “appealable by right.” When a judgment or order is appealable as of right, a party will be entitled to seek an immediate appeal without the lower court’s approval. In the example, Anna would be entitled to immediately appeal a permanent injunction issued as part of the final disposition in her dispute with Bill.
On appeal, permanent injunctions are reviewed for “abuse of discretion.” Under this standard, appellate courts defer substantially to the trial court’s judgment but will reverse if the decision reflects a clear error of judgment or application of the wrong legal standard. In other words, the appellate court asks whether the trial court made a clear error or departed from the governing legal rules when deciding whether equitable relief was appropriate. If that error is present and affected the appellant’s substantive rights, the appellate court may reverse or remand the decision. For example, if the court issued a permanent injunction in the above case but failed to consider whether monetary damages would adequately compensate Bill, an appellate court might find that the trial court abused its discretion.
On the other hand, both preliminary injunctions and TROs are “interlocutory” or temporary orders. They are not final judgments. Typically, interlocutory orders are not immediately appealable. However, injunctions are an exception to that rule, and 28 U.S.C. §1292(a) specifically gives appellate courts jurisdiction to consider interlocutory appeals of rulings related to injunctions. This exception was made, as reasoned by the Second Circuit in Feit v. Drexler, because Congress intended to allow parties to challenge orders “of serious, perhaps irreparable consequence.” Once appealed, preliminary injunctions- like permanent injunctions- will also generally be reviewed for an abuse of discretion.
While TROs are distinct from preliminary injunctions, courts have recognized certain situations in which a TRO will be immediately appealable. For example, in Hope v. Warden York County Prison, the Third Circuit noted that a TRO will be immediately appealable when it has the “practical effect” of an injunction. There, the government sought to appeal a TRO requiring it to release twenty immigration detainees due to the COVID-19 pandemic. The court explained that when a TRO “goes beyond preservation of the status quo and mandates affirmative relief” it may be immediately appealable.” The TRO in Hope had the “practical effect” of an injunction because it ordered mandatory, affirmative relief, which had the effect of altering the status quo. The court emphasized that the grant of affirmative relief is a strong indicator that the order can be appealed immediately. For example, if a TRO ordered Anna to plant new trees on the disputed property, it may be considered to be granting affirmative relief rather than simply preserving the status quo.
Simply filing an appeal will not pause an injunction. Instead, the previously-granted injunctive relief will continue during the appeals process and parties will still be bound by the district court’s order. However, parties may file a motion for a stay pending appeal which, if granted, temporarily pauses the injunctive relief. When deciding whether to grant such a motion, the court will consider the four Winters factors.
Injunctions that Apply Broadly
Most injunctions are limited to the parties in the case, but in some situations, courts have issued injunctions that apply more broadly, sometimes to an entire nation. For example, this issue arose in cases challenging the Environmental Protection Agency’s (EPA) regulatory definition of “waters of the United States” (WOTUS). There, plaintiffs filed challenges to new regulatory definitions of WOTUS. The plaintiffs sought an injunction that would clarify the definition of WOTUS not just as it applied to them, but as it applied nationwide. This type of injunction is considered a nationwide injunction, because it applied to parties not involved in the litigation.
Recently, the Supreme Court addressed the question of nationwide or “universal” injunctions in Trump v. Casa, Inc.. In Casa, the plaintiffs were challenging an executive order that identified circumstances in which a person born in the United States would not receive U.S. citizenship. The plaintiffs sought a nationwide injunction to bar enforcement of the order, while an underlying constitutional challenge was litigated. The lower court granted the injunction, which was appealed to the Supreme Court. There, the Court held that nationwide injunctions of certain government actions, such as presidential executive orders, likely exceeds the authority granted to courts by the Judiciary Act of 1789. As of the time of writing, the Court’s decision in Casa is still very recent. While this decision limits the scope of injunctions against certain government actions, certain questions are left unanswered. As lower courts begin to apply this ruling, its boundaries may become more clear.
Conclusion
Injunctive relief is an important tool for preserving the status quo and preventing harm during a lengthy litigation process. Permanent injunctions provide an important remedy when monetary damages are insufficient to address the harm, while temporary orders provide timely protection against the potential of otherwise significant damage Parties must carefully consider the different forms of injunctive relief to determine which is appropriate for their situation.
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