Preliminary Injunctions and the Status Quo

Introduction The federal courts of appeals are in substantial disarray on an issue of threshold importance to the issuance of preliminary injunctive relief. One set of circuits says that the traditional role of such relief is the preservation of the "status quo," and thus accords disfavored status to preliminary orders that are mandatory in form or that otherwise upset the status quo.1 In these circuits, a party seeking a preliminary injunction must satisfy a heightened standard of proof requiring a clear and compelling showing of the propriety of such relief. Another set of circuits rejects this view. These circuits apply a uniform standard to all requests for preliminary relief.2 Despite the clear split of authority, the competing circuit opinions have made little effort to engage in any substantive dialogue on this issue. For the most part, each set of circuits has cited its own decisions in support of its own particular approach to the matter without any attempt at critical analysis of the competing position. This Article seeks to engage the debate that is currently lacking. It does so first by tracing the historical pedigree of the heightened standard and then by evaluating the role of the status quo under the predominant theoretical model offered to explain the role of preliminary relief. Ultimately, the Article concludes that the heightened standard is historically and theoretically unsound, and that the circuits that adopt a uniform standard have the better approach. I. The Current Rift in the Circuit Courts The Federal Rules of Civil Procedure do not prescribe a standard for the issuance of preliminar injunctions. Rule 65 addresses collateral requirements of notice, duration, force, and security, but leaves the threshold questions of whether and when a preliminary injunction should issue to the discretion of the courts in accordance with traditional principles of equity.3 Despite the absence of a uniform rule on these threshold questions, the federal circuit courts are largely in agreement as to the substance of the standard that generally governs the issuance of a preliminary injunction. Although the precise verbal formulations often vary from circuit to circuit, it is generally agreed that the following factors are relevant:4 (1) the moving party's likelihood of success on the merits; (2) irreparable harm to the moving party if the preliminary injunction is improperly denied; (3) irreparable harm to the non-moving party if the preliminary injunction is improperly granted; and (4) the "public interest."5 Two dominant standards have emerged for balancing these factors. Under the first, the moving party's burden is to show that it is likely to succeed on the merits and that it will suffer irreparable harm if the injunction is denied. Under the second, the moving party need only establish "serious questions going to the merits" if it can also demonstrate that the "balance of hardships" tips "decidedly" in its favor.5 In most circuits, these are alternative standards that represent two ends of a sliding scale or continuum; either showing will support preliminary relief, and a stronger showing on one factor may compensate for a weaker showing on the other.7 Although the Supreme Court's jurisprudence is relatively sparse in this area, its precedents are largely in line with the prevailing, general approach mapped out above.8 The Court's first substantive decision in this area came in Russell v. Farley.9 In the course of upholding the federal courts' power to order damages under a security bond issued in connection with a preliminary injunction, the Russell Court referred in dicta to the "settled rule of the Court of Chancery, in acting on applications for injunctions," that preliminary relief depends on a comparison of the balance of the harms to the two parties.10 Under this rule, the court is "to regard the comparative injury which would be sustained by the defendant, if an injunction were granted, and by the complainant, if it were refused. …