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Standards Governing the Issuance of a TRO


Temporary restraining orders are short term pre-trial temporary injunctions that serve as an important and vital enforcement mechanism.  The law relating to interlocutory relief is primarily judge-made common law superimposed on basic procedural rules.  Likewise, standards governing the issuance of TROs and preliminary injunctions are also formulated by case law rather than by any rules or statutes.  It should also be noted that these standards have been formulated differently in different circuits.

The Legal Standards

Taking into consideration the fact that the courts are split on the standards for issuance of TROs, the Supreme Court’s decision in Winter v. Natural Resources Defense Council can be said to provide an exacting standard for the grant of TROs and preliminary injunctions.  Per Winter, a plaintiff seeking a preliminary injunction must establish that s/he is:

  1. likely to succeed on the merits
  2. likely to suffer irreparable harm in the absence of preliminary relief
  3. that the balance of equities tips in his/her favor, and
  4. that an injunction is in the public interest.

The Court in Winter rejected the Ninth Circuit’s sliding scale approach where in it was held that the “possibility” of irreparable injury was sufficient when the plaintiff showed a “strong likelihood” of prevailing on the merits.   Instead, the Court held that a likelihood of irreparable injury is required, in keeping with the notion that preliminary injunctive relief  is an extraordinary remedy requiring a “clear showing” of entitlement.

The Second Circuit on the other hand, requires a showing of irreparable injury and either “likelihood of success on the merits or sufficiently serious questions going to the merits” to make them a fair ground for litigation and a inclination of the balance of hardships decidedly towards the party requesting the preliminary relief.”  The balance of hardships must tip in the movant’s favor given the relative uncertainty of success.  The Fourth Circuit has however interpreted Winter to reject this type of sliding scale inquiry in cases in which the movant has not established that it is more likely than not that they will prevail.   This view is not accepted by the Second, Seventh and Ninth Circuits.  These courts are of the view that a sliding scale formulation survives Winter so long as a likelihood of irreparable injury is shown.

Generally, irreparable injury is characterized as a harm that, at the conclusion of a trial on the merits, cannot be adequately compensated by a monetary award or other forms of recovery available at law.  Moreover, mere speculation on the prospect of injury will not suffice. There must be a likelihood that irreparable harm will occur.  There are decisions to the effect that “alleged threats of irreparable harm” must be “actual and imminent, [and] not remote or speculative.  The magnitude of the harm and its likely duration are also factors that are taken into consideration while determining irreparable harm.  Where the violations are of a short term nature, the harm ensuing can be implied to be insignificant.  Likewise when the damage likely to be caused is minimal and retrievable, the likelihood of finding irreparable harm is low.


As there is no consensus as to the standards for grant of TRO across courts, it is best to consult the law in your circuit to ascertain the applicable standards.  Also remember to verify that the pleadings, proof, and relief requested conform exactly to what the statutes, rules, and case law require.


Inside Standards Governing the Issuance of a TRO