Equitable Remedies.  An injunction that requires a positive action, rather than a restraint from taking certain action.

Reference Desk:

Abdul Wali v. Coughlin, 754 F.2d 1015 (2d Cir. 1985)

Normally, the purpose of a preliminary injunction is to maintain the status quo antepending a full hearing on the merits. See Diversified Mortgage Investors v. U.S. Life Title Ins. Co., 544 F.2d 571, 576 (2d Cir.1976); Triebwasser & Katz v. American Tel. & Tel. Co., 535 F.2d 1356, 1360 (2d Cir.1976). Occasionally, however, the grant of injunctive relief will change the positions of the parties as it existed prior to the grant. Such is the case in the dispute before us today. If the injunction against Commissioner Coughlin is upheld, he will be required to allow delivery of the PLS Report into New York’s prisons, and the controversy will have been settled with some finality.

Where such is the case, an injunction is often deemed mandatory, rather than prohibitory, and a greater showing is required of the moving party. See Jacobson & Co. v. Armstrong Cork Co., 548 F.2d 438, 441 (2d Cir.1977). In these circumstances, we have held that an injunction should issue “only upon a clear showing that the moving party is entitled to the relief requested,” Flintkote Co. v. Blumenthal, 469 F.Supp. 115, 125-26 (N.D.N.Y.), aff’d, 596 F.2d 51 (2d Cir.1979),or where “extreme or very serious damage will result” from a denial of preliminary relief, Clune v. Publishers’ Ass’n, 214 F.Supp. 520, 531 (S.D.N.Y.), aff’d, 314 F.2d 343 (2d Cir.1963). In sum, we have shown “greater reluctance to issue a mandatory injunction than a prohibitory injunction.” Hurley v. Toia, 432 F.Supp. 1170, 1175 (S.D.N.Y.), aff’d mem., 573 F.2d 1291 (2d Cir.1977).

Stanley v. University of Southern California, 13 F.3d 1313 (9th Cir. 1994)

Coach Stanley argues that she did not seek a mandatory preliminary injunction. She asserts that she was “not seeking to be instated by USC, she was seeking to continue her employment with USC.” Appellant’s Opening Brief at 28. Coach Stanley maintains that she requested a prohibitory preliminary injunction and that the district court erred in applying the test for a mandatory preliminary injunction.

1320*1320 A prohibitory injunction preserves the status quo. Johnson v. Kay, 860 F.2d 529, 541 (2d Cir.1988). A mandatory injunction “`goes well beyond simply maintaining the status quo pendente lite [and] is particularly disfavored.'” Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir.1979) (quoting Martinez v. Mathews,544 F.2d 1233, 1243 (5th Cir.1976)). When a mandatory preliminary injunction is requested, the district court should deny such relief “`unless the facts and law clearly favor the moving party.'” Id. Our first task is to determine whether Coach Stanley requested a prohibitory injunction or a mandatory injunction.

Coach Stanley’s four-year contract terminated on June 30, 1993. She was informed by Garrett on July 15, 1993, that her employment contract had expired and that she should not perform any services for the university until both parties entered into a new contract. On August 6, 1993, the date this action was filed in state court, Coach Stanley was no longer a USC employee.

Accordingly, an injunction compelling USC to install Coach Stanley as the head coach of the women’s basketball team and to pay her $28,000 a year more than she received when her employment contract expired would not have maintained the status quo. Instead, it would have forced USC to hire a person at a substantially higher rate of pay than she had received prior to the expiration of her employment contract on June 30, 1993. The district court did not err in concluding that Coach Stanley was seeking a mandatory injunction, and that her request was subject to a higher degree of scrutiny because such relief is particularly disfavored under the law of this circuit. Anderson, 612 F.2d at 1114.

O Centro Espirita Beneficiente v. Ashcroft, 389 F.3d 973 (10th Cir. 2004)

In any event, it is certainly true that courts have historically applied a more stringent standard to mandatory preliminary 979*979 injunctions for the very reason that those injunctions generally do alter the status quo. See, e.g., In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 526 (4th Cir.2003); Tom Doherty Assocs. v. Saban Entm’t, Inc., 60 F.3d 27, 34 (2d Cir.1995); Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir.1979). In fact, most courts decide whether a given preliminary injunction is “mandatory” or “prohibitory” by determining whether or not it alters the status quo. See, e.g., Tom Doherty Assocs., 60 F.3d at 34; Acierno v. New Castle County, 40 F.3d 645, 647 (3d Cir.1994); Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1319 (9th Cir.1994); Martinez v. Mathews, 544 F.2d 1233, 1242-43 (5th Cir.1976). For these courts, then, the question whether an injunction is mandatory or prohibitory is merely a proxy for the more significant question whether an injunction alters the status quo. Thus, to the extent these two categories do overlap, it is indeed strange to keep the proxy while jettisoning the underlying consideration giving rise to that proxy. See Opinion of Seymour, J., at 1000, 1002-1003 (advocating the abandonment of heightened scrutiny for injunctions which alter the status quo, while maintaining heightened scrutiny for mandatory injunctions).

There is good reason, however, to distinguish between mandatory injunctions and injunctions which alter the status quo and to treat both types as disfavored. As set out above, “[a] preliminary injunction that alters the status quo goes beyond the traditional purpose for preliminary injunctions, which is only to preserve the status quo until a trial on the merits may be had.” SCFC ILC, 936 F.2d at 1099. Although mandatory injunctions also generally alter the status quo, that is not always the case. It is not at all difficult to envision situations where a mandatory injunction would preserve the status quo and a prohibitory injunction would alter the status quo. See Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816, 830 n. 21 (D.C.Cir.1984) (noting that whether a mandatory or prohibitory injunction will maintain or alter the status quo depends on whether the status quo is a “condition of action” or a “condition of rest”). Without regard to whether a mandatory preliminary injunction alters the status quo, however, it is still appropriate to disfavor such injunctions “because they affirmatively require the nonmovant to act in a particular way, and as a result they place the issuing court in a position where it may have to provide ongoing supervision to assure the nonmovant is abiding by the injunction.” SCFC ILC, 936 F.2d at 1099. Thus, it is simply incorrect to assert that there is perfect overlap between these two categories and that the concept of status quo should be folded into the question whether an injunction is mandatory or prohibitory. The fact that other courts have failed to recognize these subtle distinctions is simply no reason to abandon the three artfully drawn categories set out in SCFC ILC.

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