How Does One Get a Preliminary Injunction in Federal Court Now?: Even SCOTUS is Confused
Blog Post | 113 KY. L. J. ONLINE | February 28, 2025
How Does One Get a Preliminary Injunction in Federal Court Now?: Even SCOTUS is Confused
By: Basil McCoy, Staff Editor, Vol. 113
On June 27, 2024, Justice Gorsuch delivered the majority opinion on a stay being sought by state petitioners resisting federal enforcement of EPA regulations.[1] The opinion carried the day by a vote of five to four, not a strong majority, and has the potential to change the way litigants seek preliminary injunctions and stays in the future.[2] Gorsuch stated a four-part test for when litigants may be granted a stay in Federal Court: “[s]pecifically, in this litigation, we ask (1) whether the applicant is likely to succeed on the merits, (2) whether it will suffer irreparable injury without a stay, (3) whether the stay will substantially injure the other parties interested in the proceedings, and (4) where the public interest lies.”[3] Although the initial test is sound the Court’s holding in this case breaks away from precedent in the test’s application. Justice Gorsuch bypassed parts two through four in his majority opinion and applied the test inconsistently with past practice.[4] This will lead to confusion from litigants about how to obtain a stay and preliminary injunction which did not exist before. To address this issue the court should adopt Justice Barrett’s approach, which she outlined in her dissent, that stays faithful to the longstanding practice on obtaining these equitable reliefs.[5]
This standard is taken from an earlier Supreme Court case where the Court laid out this four-factor test and detailed how to apply the factors.[6] Specifically, the Court explained the likelihood to succeed on the merits must be a strong likelihood.[7] This means a mere possibility of success is insufficient.[8] Further, the party must be likely to suffer irreparable harm, with the Court stating that a mere possibility is not sufficient.[9]
After stating that the equities weigh heavily on both sides, Justice Gorsuch announced that the inquiry would turn on the merits, bypassing the analysis of parts two through four of the four-part test.[10] This means the public interest, likelihood of suffering irreparable injury, and the injury to the other party are not meaningfully addressed.[11] That is certainly a convenient way to dispose of weighing the equities, which is supposed to be done after analysis of the first two factors: success on the merits and likelihood of suffering irreparable injury.[12] This is confounding because when Gorsuch announced the Nken test, the only precedent he apparently wanted to apply was the existence of the test, not its application.[13]
Another issue with Gorsuch’s approach is illuminated by Justice Barrett’s dissenting opinion. Justice Barrett is quick to point to the traditional three factor test that law students learn to analyze injunctions and stays: “[t]o obtain emergency relief, applicants must, at a minimum, show that they are likely to succeed on the merits, that they will be irreparably injured absent a stay, and that the balance of the equities favors them.”[14] She is then careful to illuminate that the bar for likelihood of success on the merits is high,[15] unlike Justice Gorsuch who seemingly thinks likelihood of success on the merits means one thinks the litigant would win.[16] Because of her explanation of the test and the test’s standards Justice Barrett’s approach stays truer to precedent than the majority’s holding.[17]
The flaw with Justice Gorsuch’s reasoning becomes even more clear when you consider the final vote of the justices came down to the wire—how clear can it be that a litigant is going to “prevail at the end of [the] litigation”[18] if four justices think you are clearly wrong? Justice Barrett’s approach not only more closely follows precedent that Gorsuch cited but also applies the test correctly.
Stays and injunctions are “as old as the judicial system of the nation”[19] and Justice Gorsuch has managed to make obtaining one more enigmatic than before. In order to prevent future issues in this field, the Court should adopt Justice Barrett’s three-part test, and her methodology for the test’s application.
Special thanks to Professor Jason Steed for introducing me to this topic.
[1] See Ohio v. EPA, 603 U.S. 279 (2024).
[2] See id.
[3] Id. at 291.
[4] Id.
[5] Ohio, 603 U.S. at 304 (Barrett, J., dissenting) (citing Nken, 556 U.S. at 425–26)
[6] See generally Nken v. Holder, 556 U.S. 418 (2009) (stating the four-factor test for obtaining stays and preliminary injunctions and how the court should apply them).
[7] Id. at 434.
[8] Id.
[9] Id. at 434–35.
[10] Ohio, 603 U.S. at 292 .
[11] Id.
[12] Nken, 556 U.S. at 435.
[13] See generally Ohio, 603 U.S. at 279; Nken, 556 U.S. at 418 (showing the test’s existence and the way it should be applied).
[14] Ohio, 603 U.S. at 304 (Barrett, J., dissenting) (citing Nken, 556 U.S. at 425–26).
[15] Id.
[16] See id. at 292.
[17] Ohio, 603 U.S. at 304 (Barrett, J., dissenting) (citing Nken, 556 U.S. at 425–26).
[18] Id.
[19] Scripps-Howard Radio v. FCC, 316 U.S. 4, 17 (1942).