explaining that courts determining whether to issue a preliminary injunction must consider: (1) the probability that the movant will succeed on the merits; (2) the threat of irreparable harm to the movant; (3) the balance between the harm to the movant and the injury that granting the injunction will inflict on other interested parties; and (4) whether the issuance of the preliminary injunction is in the public interest
How later courts described this case
- explaining that courts determining whether to issue a preliminary injunction must consider: (1) the probability that the movant will succeed on the merits; (2) the threat of irreparable harm to the movant; (3) the balance between the harm to the movant and the injury that granting the injunction will inflict on other interested parties; and (4) whether the issuance of the preliminary injunction is in the public interest
- stating that the term "probability of success" must "mean a greater than fifty percent likelihood that the requesting party will prevail. If the courts which have used that phrase did not mean it to imply a better chance of prevailing than of not prevailing, they would have used the word `possibility' or another word of a similar meaning. I cannot agree to this illogical exercise in semantics."
- holding that issuance of a preliminary injunction depends upon a "flexible" consideration of (1) the threat of irreparable harm to the moving party; (2) balancing this harm with any injury an injunction would inflict on other interested parties; (3) the probability that the moving party would succeed on the merits; and (4) the effect on the public interest
- holding that courts apply a four-factor test in evaluating a motion for a preliminary injunction: (1) likelihood of success on the merits, (2) threat of irreparable harm, (3) balance between the harm and the harm that injunctive relief would cause to the other party, and (4) the public interest
Written by the judges who cited it.
Later courts went against this
Abrogated on other grounds by Samuel T. ROBINO, Appellant, v. Eleanor Holmes NORTON, Chair, Equal Employment Opportunity Commission, Appellee, 682 F.2d 192 (1982)
640 F.2d 109 (8th Cir. March 10, 1981), abrogated on other grounds by Robino v. Norton, 682 F.2d 192
The opinion
ROSS, Circuit Judge,
concurring.
I concur in what I interpret to be this court’s new test in determining whether a preliminary injunction should be granted. It is set forth in the next to the last paragraph of the opinion. I do so in the hope that after being understandably confused about what test our circuit has mandated, the district judges will now have an en banc determination of the proper test to follow. 1
*115 I do not share the opinion of the author of the majority opinion that “we find no contradiction between Fennell and Minnesota Bearing,” and I feel that most of our district judges will also read this with some misgivings. See Fennell v. Butler, 570 F.2d 263 (8th Cir.), cert. denied, 437 U.S. 906 , 98 S.Ct. 3093 , 57 L.Ed.2d 1136 (1978). See also Modern Controls, Inc. v. Andreadkis, 578 F.2d 1264 , 1267 n.4 (8th Cir. 1978).
Neither do I agree that the term “probability of success” does not necessarily mean a greater than fifty percent likelihood that the requesting party will prevail. If the courts which have used that phrase did not mean it to imply a better chance of prevailing than of not prevailing, they would have used the word “possibility” or another word of a similar meaning. I cannot agree to this illogical exercise in semantics.
The plain and simple truth is that we had a well recognized test for granting a preliminary injunction which was understood by the district courts of our circuit (the “traditional test”). A panel of our court decided a new “alternative test” should be adopted and reversed a district judge for using the traditional test. Fennell v. Butler, supra, 570 F.2d at 263 . We now adopt a third test which seems to include most of the elements of both of the previously existing tests. Hopefully, since it is an en banc decision, it will at least give the district courts in this circuit a test that they can rely on.
. District Judge John W. Oliver recently summarized the extent of the confusion in his opinion in ABA Distributors, Inc. v. Adolph Coors Company, 496 F.Supp. 1194 (1980):
Judge Donald D. Alsop, the district judge who denied preliminary injunctive relief in Fennell , recently commented in Woida v. United States, 446 F.Supp. 1377, 1383 (D.Minn.1978), that “until recently, the [Eighth Circuit] standard to be met by the party moving for a preliminary injunction was clearly defined.” He added, however, that in Fennell “the Court of Appeals recently urged this Court to consider the adoption of alternative standards.” Judge Alsop’s prediction in Woida that “the question of the standard to be applied may not have reached its final resolution” has certainly been confirmed by the Eighth Circuit’s recent opinions in Rittmiller and Dataphase.
The confusion in the district courts, however, has taken a different form. In several recent decisions, the courts have applied both the “traditional” and the “alternative” tests. Neil *115 & Spencer Holdings, Ltd. v. Kleen-Rite, Inc., 479 F.Supp. 164, 168 (E.D.Mo.1979), aff’d, 624 F.2d 60 (8th Cir. 1980); Walker v. Wegner, 477 F.Supp. 648, 651 (S.D.1979); Chromalloy American Corp. v. Sun Chemical Corp., 474 F.Supp. 1341, 1346 (E.D.Mo.1979), aff’d, 611 F.2d 240 (8th Cir. 1979); Woida v. United States, 446 F.Supp. 1377, 1383 (D.Minn.1978).