Has the Supreme Court of Virginia announced a standard for temporary injunctions?

Conventional wisdom has it that the Supreme Court of Virginia has not and probably never will articulate the standard or standards that trial courts should apply in deciding whether to grant a temporary (or preliminary) injunction. The reasons are that the Court has the authority to review temporary injunction orders only under Va. Code § 8.01-626, which authorizes single-Justice review on an expedited schedule (although such applications customarily are decided by three-Justice panels), but only decisions of the full Court are published in the Virginia Reports. See, e.g., Emmert, Virginia’s Standard for Granting Preliminary Injunctions (Why Isn’t There One?), http://www.virginia-appeals.com/essay.aspx?id=220.

Lacking Supreme Court guidance, trial courts in Virginia traditionally have followed federal case law. And until relatively recently, federal case law on the subject was clear: Under the venerable authority of Blackwelder Furniture Co. v. Seilig Manufacturing Co., Inc., 550 F.2d 189 (4th Cir. 1977), trial courts applied the four traditional factors – (1) the likelihood of irreparable harm to the plaintiff if the preliminary injunction is not granted, (2) the likelihood of harm to the defendant if the preliminary injunction is granted, (3) the likelihood that the plaintiff will succeed on the merits, and (4) the public interest – using a “sliding scale” or “balancing” approach, under which a sufficiently strong showing of one or more factors outweighed a weaker showing on others and justified issuance of an injunction.

More recently, however, the Fourth Circuit has repudiated Blackwelder and held that under the U.S. Supreme Court’s decision in Winter v. Natural Resources Defense Council, Inc., 129 S.Ct. 365 (2008), a party seeking a preliminary injunction must satisfy all four of the traditional tests. See The Real Truth About Obama, Inc. v. Federal Election Commission, 575 F.3d 342, 346‑47 (4th Cir. 2009), vacated and remanded, 130 S.Ct. 2371, reissued in pertinent part, 607 F.3d 355 (4th Cir. 2010). Other federal courts of appeals have disagreed. See, e.g., Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010); Hoosier Energy Rural Elec. Co-op., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009). Some Virginia Circuit Courts have adopted the Real Truth approach. E.g., Wings, LLC v. Capitol Leather, LLC, 88 Va. Cir. 83, 89 (Fairfax Co. 2014). But others have not. E.g., Midgette v. Arlington Props., 83 Va. Cir. 26, 28 (Chesapeake 2011) (following Blackwelder).

In Commonwealth of Virginia ex rel. Bowyer v. Sweet Briar Institute, Record No. 150619 (June 9, 2015), the Supreme Court of Virginia issued an unpublished order, following an unusual oral argument of a § 8.01-626 temporary injunction appeal before the full Court. The decision is potentially important for its articulation of the following points:

  • The primary purpose of a temporary injunction is “to preserve the status quo between the parties while litigation is ongoing.” Slip op. at 3.
  • “Granting or denying a temporary injunction is a discretionary act arising from a court’s equitable powers.” Id. That means, of course, that as long as there is no legal error in the decision-making process­ – as there was in Bowyer – appellate review will be conducted under a relatively forgiving “abuse of discretion” standard.
  • “It is important to observe that a temporary injunction requires consideration of the requesting party’s allegations and the veracity and magnitude of the asserted harm.” at 4.
  • “No single test is to be mechanically applied, and no single factor can be considered alone as dispositive. Instead, a court must consider the totality of the circumstances and decide whether equity counsels for the temporary preservation of the status quo.”   Id. at 5, citing Va. Code § 8.01-628 (“No temporary injunction shall be awarded unless the court shall be satisfied of the plaintiff’s equity”).
  • See also slip op. at 5, stating that it is “appropriate to consider assertions made by way of affidavits when ruling upon a temporary injunction application.”

As an unpublished disposition, the Court’s Bowyer Order is not a binding precedent. Rule 5:1(f). It also must be noted that the Order was issued quickly, only five days after the oral argument. Nevertheless, it bears the signs of relatively detailed study and deliberation – citing several cases that were not cited by any of the parties – and it explicitly remanded the case to the Circuit Court for further proceedings “[w]ith these principles in mind.” Slip op. at 5. Accordingly, this Order at least establishes some guideposts that trial courts should have in mind in future similar cases.

Chief among those guideposts are the principles (1) that the primary purpose of a temporary injunction is to preserve the status quo pendente lite; (2) that “a temporary injunction requires consideration of the requesting party’s allegations and the veracity and magnitude of the asserted harm”; and (3) that decisions on requests for temporary injunctions must be based on “the totality of the circumstances”; “no single factor can be considered alone as dispositive.” As a purely procedural matter, the Court’s observation that trial courts may “consider assertions made by way of affidavits when ruling upon a temporary injunction application” also is significant, in a state where affidavits typically have little or no evidentiary weight. See, e.g., Rules 2:613(b)(ii), 3:20.

The absence of any reference to the public interest or the applicant’s likelihood of success on the merits may appear conspicuous, but it would be risky to assume that those traditional equitable factors may be disregarded. To the extent that they rely on Bowyer for guidance, litigants and careful trial courts should assume that those factors are part of the “totality of the circumstances.”

The central teaching of the decision appears to be that “no single factor can be considered alone as dispositive.” That, both alone and in combination with the “totality of the circumstances” holding, appears to be a repudiation under Virginia law of the Fourth Circuit’s Real Truth rule that a failure to prove all four of the traditional factors is sufficient to require denial of a request for a preliminary injunction.