The “Test” – or Lack thereof – for Issuance of Virginia Temporary Injunctions: The Current Uncertainty and a Recommended Approach based on Federal Preliminary Injunction Law

The Honorable David W. Lannetti *

Preliminary injunctive relief, where a movant[1] is awarded a court order prior to final judgment on the merits of a dispute, serves a necessary role in equity jurisprudence. Courts typically state that preliminary relief is an extraordinary remedy designed to preserve the status quo, with some courts opining that this purpose simply describes the abstract goal of preliminary relief [2] and others holding that movants must satisfy a higher burden when seeking injunctions that alter the status quo.[3] After significant evolution, federal courts developed a four-part test for preliminary injunctions,[4] which the circuit courts of appeals have universally accepted but inconsistently applied.[5] The Supreme Court of the United States subsequently resolved this circuit split in part,[6] yet the circuit courts still adhere to different approaches when applying the test.[7]

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* Judge, Fourth Judicial Circuit of Virginia. Adjunct Professor, Marshall-Wythe School of Law at the College of William & Mary and Regent University Law School. The views advanced in this article represent commentary “concerning the law, the legal system, [and] the administration of justice” as authorized by Virginia Canon of Judicial Conduct 4(B) (permitting judges to “speak, write, lecture, teach” and otherwise participate in extrajudicial efforts to improve the legal system). These views therefore should not be mistaken for the official views of the Norfolk Circuit Court or the author’s opinion as a circuit court judge in the context of any specific case. The author thanks 2014–15 Norfolk Circuit Court Law Clerks Jennifer Eaton and Gregory Chakmakas for their assistance in the research for and editing of this article.

        [1].    In this article, “movant” refers to the party requesting preliminary injunctive relief. It is meant to have the same meaning as “movant,” “petitioner,” or “plaintiff” as used in other articles pertaining to federal preliminary injunctions and Virginia temporary injunctions.

        [2].    See Thomas R. Lee, Preliminary Injunctions and the Status Quo, 58 Wash. & Lee L. Rev. 109, 110, 113, 115 (2001).

        [3].    See id. at 115.

        [4].    Id. at 111.

        [5].    See Bethany M. Bates, Reconciliation After Winter: The Standard for Preliminary Injunctions in Federal Courts, 111 Colum. L. Rev. 1522, 1529–30 (2011).

        [6].    See Winter v. Nat. Res. Def. Council, 555 U.S. 7, 20–24 (2008).

        [7].    See Bates, supra note 6, at 1523, 1535–37.