By J.R. Howell

The American Counsel | October 20, 2026

The Ninth Circuit continues to apply its serious-questions doctrine after Starbucks Corp. v. McKinney, although a substantial group of its judges now contends that the doctrine conflicts with Supreme Court precedent. On October 16, 2026, the court denied rehearing en banc in Whitfield v. Mullin, leaving undisturbed a panel decision directing the district court to reconsider a preliminary-injunction request under the circuit’s sliding-scale framework. Judge Daniel Bress, joined by nine other judges, urged the court to abandon the serious-questions alternative. Judge Lawrence VanDyke wrote separately to challenge the circuit’s treatment of intervening Supreme Court authority. While the denial left existing circuit precedent in place, the court offered no majority explanation answering either dissent.[1]

For lawyers seeking relief before a case can be tried, the immediate consequence is that the serious-questions alternative remains recognized circuit law. An applicant invoking that alternative must establish serious questions going to the merits, a balance of hardships tipping sharply in the applicant’s favor, likely irreparable injury, and consistency with the public interest. The disagreement concerns whether the Supreme Court’s reasoning in Starbucks requires the Ninth Circuit to abandon that alternative, even though Starbucks addressed a different preliminary-injunction test. Because some district judges have accepted that argument while the circuit continues to recognize the doctrine, practitioners need to distinguish the authority governing an application from the argument that the authority has been displaced.[2]

The disagreement also concerns how a court should account for the consequences of an erroneous decision before the parties have had an opportunity to develop a complete record. A preliminary injunction can restrict conduct later determined to be lawful, while a refusal to intervene can allow harm caused by conduct later determined to be unlawful to occur before the court has an opportunity to prevent it. The latter risk is particularly relevant where the threatened injury consists of an irreversible disclosure, the destruction of an ongoing business, or the loss of a legal protection during the period when that protection is needed. Although urgency alone does not establish an entitlement to relief, a court’s decision to wait can determine whether relief will still have practical value when the case is decided.

In my view, the serious-questions doctrine performs an important function because it requires courts to consider that relationship between the strength of a claim and the consequences of delay. Its continued force as circuit precedent gives litigants a legal basis for invoking it, regardless of whether they can supply a new scholarly defense of its foundations. Nevertheless, the dissent presents a substantial argument for reconsideration that deserves an answer on its own terms. A persuasive defense should explain why the independent merits assessment and sharply favorable hardship balance required by the Ninth Circuit remain consistent with the Supreme Court’s reasoning. An argument for abandoning the doctrine should, in turn, address what happens when withholding temporary protection makes an eventual judgment ineffective.

The Accommodation Dispute in Whitfield Exposed Two Different Injunction Standards

Daryl Whitfield is a Customs and Border Protection import specialist with disabilities related to his military service. According to the panel’s account, his position required an office appearance one day each week before the pandemic. The agency suspended in-person work for import specialists from March 2020 to April 2022, then restored a weekly attendance requirement. In March 2025, it required full-time attendance. Whitfield had begun contesting the return to in-person work in March 2022, before the weekly requirement resumed, and had pursued accommodation requests and administrative complaints before filing suit.[3]

His preliminary-injunction request arose from Rehabilitation Act claims concerning reasonable accommodation and the interactive process. The district court denied relief after applying the heightened standard for a mandatory injunction. That classification required more than the ordinary likelihood-of-success showing because an order compelling affirmative action beyond preservation of the status quo receives especially cautious treatment in the Ninth Circuit. Under Garcia v. Google, Inc., the law and facts must clearly favor the moving party.[4]

The panel concluded that the district court had identified the wrong status quo. For this purpose, circuit precedent looks to the last uncontested condition preceding the controversy. Because Whitfield contested the return-to-office requirement before the pandemic-era remote arrangement ended, the panel treated fully remote work as that condition. It consequently classified the requested injunction as prohibitory and remanded for consideration under the ordinary sliding-scale framework.[5]

That disposition illustrates why the phrase “preserve the status quo” requires factual explanation. An injunction may require a defendant to undo a recent change while preserving the condition that existed before the controversy arose. Whether the requested order does so depends on the relevant chronology, the nature of the obligation, and the conduct the order would require. Calling a requested change a restoration does not establish those facts. Whitfield resolved the classification for its own preliminary-injunction appeal, but its May 5 memorandum is unpublished and has no binding precedential effect except as Ninth Circuit Rule 36-3 provides.[6]

Because the panel remanded for application of the proper standard, it left the district court to determine whether Whitfield had raised a serious question about his entitlement to accommodation and whether the balance of hardships tipped sharply in his favor. The panel therefore required a new assessment of his request without deciding that he was entitled to an injunction. As Bress described it, the government’s rehearing petition challenged the serious-questions instruction rather than the panel’s classification of the requested relief as prohibitory. The dispute reaching the full court concerned the standard governing the next decision, rather than a final determination that Whitfield satisfied that standard.[7]

Winter Required Likely Irreparable Harm While Cottrell Preserved Flexibility on the Merits

The present controversy follows an earlier dispute about Winter v. Natural Resources Defense Council, Inc. In 2008, the Supreme Court stated the familiar requirements that a plaintiff establish likely success on the merits, likely irreparable harm without preliminary relief, favorable equities, and consistency with the public interest. The Court rejected the Ninth Circuit’s use of a mere possibility of irreparable harm where a plaintiff had demonstrated a strong likelihood of success. The harm must be likely. The Court also concluded that the equities and public interest favored the Navy’s training activities, leaving the underlying merits question unaddressed.[8]

The distinction between the factor the Court expressly rejected and the broader formulation it announced became important in Alliance for the Wild Rockies v. Cottrell. The Ninth Circuit acknowledged that its earlier possibility-of-harm standard could not survive Winter. It nevertheless held that serious questions going to the merits, coupled with hardships tipping sharply toward the plaintiff, could support relief when likely irreparable injury and the public interest were also established. The court understood that approach as operating within the four-factor framework.[9]

The serious-questions alternative accordingly remains subject to requirements that a description of it as merely a lenient injunction test can obscure. An applicant must establish likely irreparable injury and show that the public interest supports relief. Because the merits showing is less demanding than likely success, the balance of hardships must tip sharply toward the applicant. An ordinary favorable balance will not suffice. Later circuit decisions have repeated those requirements while recognizing the difference between serious questions and likely success, which is the feature Bress contends cannot survive Starbucks.[10]

Moreover, an unresolved question is not necessarily a serious question within this framework. In Alliance for the Wild Rockies v. Petrick, the Ninth Circuit rejected an interpretation of an unambiguous statute and explained that the absence of an earlier judicial decision did not itself establish a serious question. Assurance Wireless USA, L.P. v. Reynoldssubsequently emphasized serious factual questions when describing the lesser merits showing. Those decisions prevent a litigant from turning the novelty of a theory into an entitlement to provisional relief. A court must assess what makes the claim substantial on the actual law and record.[11]

Judge Michael Mosman’s concurrence in Cottrell supplied an explanation for retaining some flexibility. At the beginning of litigation, the information needed for a confident prediction may be unavailable even though the threatened injury is sufficiently established to warrant attention. Forcing a premature merits prediction can distort the court’s treatment of uncertainty. Justice Ginsburg had similarly emphasized equitable flexibility in her Winter dissent. These explanations support the doctrine’s rationale, although neither a concurrence nor a dissent independently establishes the governing rule.[12]

These sources perform different work in the analysis. Cottrell supplies the circuit holding authorizing the alternative, while the separate opinions explain why judges might regard that alternative as a sound response to uncertainty. The Supreme Court’s subsequent reasoning presents a question about whether the alternative remains permissible. The practical justification helps explain what would be lost if the doctrine were abandoned, but the precedent question must be answered by examining what the respective courts required.

Starbucks Sharpened the Objection to a Reduced Merits Showing

Starbucks concerned the National Labor Relations Board’s authority to seek temporary relief under § 10(j) of the National Labor Relations Act while an unfair-labor-practice proceeding remained pending. The Sixth Circuit had applied a two-part inquiry asking whether reasonable cause existed to believe an unfair labor practice had occurred and whether relief was just and proper. That approach required a legal theory that was substantial and nonfrivolous, while restricting the district court’s ability to resolve conflicting evidence. The Supreme Court required the traditional Winter factors instead.[13]

Justice Thomas’s opinion reasoned from a presumption about Congress’s use of equitable remedies. When a statute authorizes equitable relief, courts ordinarily apply traditional equitable principles unless Congress directs otherwise. The statutory authority to grant relief deemed just and proper did not supply the necessary departure. The Court drew on a line of cases preserving equitable discretion while requiring that discretion to operate within established principles. Congress’s choice to authorize an injunction does not itself eliminate the conditions for obtaining one.[14]

More pointedly, the Court rejected the contention that the NLRB’s institutional role justified the reasonable-cause standard. Although the majority distinguished permissible fine-tuning from substantive relaxation, the Sixth Circuit’s approach allowed a district court to accept a sufficiently substantial agency theory without independently concluding that it was likely to succeed. Starbucks identified that difference as a substantive reduction in the burden. The Court required the district court to assess difficult legal questions and conflicting facts rather than defer to the Board’s preliminary litigation position.[15]

Bress’s Whitfield dissent places that reasoning against the Ninth Circuit’s own description of serious questions as a lesser merits showing. In his view, requiring all four factors does not reconcile the two approaches if the Ninth Circuit permits an injunction without the degree of likely success that Starbucks requires. On that account, the disagreement concerns what the merits factor demands, rather than whether the factor appears in the test. The force of the objection depends on whether the Supreme Court’s rejection of the reasonable-cause standard also forecloses the different accommodation of merits uncertainty and hardship authorized by Cottrell.[16]

The objection has additional support in Supreme Court decisions predating Starbucks. Munaf v. Geren rejected preliminary relief resting on difficult jurisdictional questions without a corresponding consideration of likelihood of success. In Nken v. Holder, the Court identified merits likelihood and irreparable injury as the most critical factors for a stay, while Justice Kennedy’s concurrence stated the objection to compensating for a failure on one through a strong showing on another. When read with attention to the stay context and the concurrence’s status, those passages demonstrate that the concern about substitution has a longer history than the recent labor decision.[17]

Justice Jackson agreed in Starbucks that all four factors governed and that the judgment should be vacated. Her separate opinion disputed how the statutory context should inform their application, including the depth of a district court’s preliminary merits inquiry in a system that entrusts the ultimate administrative determination to the Board. Her reasoning provides an argument for contextual application of equity. It does not establish that a private plaintiff may satisfy the merits requirement through serious questions in every ordinary civil case.[18]

Because Starbucks addressed § 10(j) through principles governing preliminary relief generally, its reasoning warrants consideration beyond labor law. Nevertheless, the Court did not expressly adjudicate the Ninth Circuit’s serious-questions formulation. The relevant inquiry is whether the reasoning necessary to the Supreme Court’s decision leaves room for that formulation. That inquiry requires more than either limiting Starbucks to its statutory setting or treating every reduced merits showing as an expressly adjudicated issue.

A Defense on Further Review Must Account for What Starbucks Actually Rejected

The strongest defense begins with the judicial work that Cottrell continues to require. The Ninth Circuit does not instruct a court to defer to the moving party’s account of the facts or its interpretation of the law. It requires the court to assess whether the merits present a sufficiently serious question and then to make additional findings about likely irreparable harm, sharply favorable hardships, and the public interest. A complaint that survives dismissal does not necessarily support any of those findings.

That distinction is relevant because Starbucks criticized a system under which the district court could become excessively deferential to the agency seeking relief. Eliminating that deference protects the independent judicial assessment of the application. The Ninth Circuit can maintain that independence while allowing uncertainty about the merits to influence the weight given to an unusually severe imbalance of hardships. On this account, the doctrine regulates a court’s judgment under uncertainty rather than transferring the judgment to a litigant.

However, independent judicial assessment does not by itself answer Bress’s objection. A court can independently apply a standard that the Supreme Court regards as too lenient. To answer that criticism on further review, a defense of the doctrine must explain why the traditional requirement of likely success permits the degree of compensation between merits and hardships that Cottrell authorizes. The explanation should identify the legal basis for that flexibility, because the equitable discretion recognized in Hecht Co. v. Bowles and Weinberger v. Romero-Barcelo operates within legal principles and statutory purposes. Starbucks itself relies on that tradition.[19]

Nor would renaming serious questions as likely success preserve the doctrine’s present operation. Ninth Circuit opinions expressly distinguish the two showings, so removing the distinction would change the protection the alternative provides even if courts retained its name. A developed defense should explain the uncertainty a court may tolerate, the evidence required despite that uncertainty, and the stronger hardship showing that warrants intervention. Those considerations address the merits of the dissent’s criticism. They are not additional elements an applicant must establish before relying on existing circuit precedent.

The dissent therefore identifies a question that warrants a fuller answer from the circuit. Although the absence of a reasoned majority response leaves the criticism available for further review, that absence does not itself displace Cottrell. The distinction is important for the lawyer preparing an application now. The lawyer must establish the requirements of the governing test and address any properly presented argument that intervening Supreme Court authority has displaced it. The lawyer need not persuade the district court to adopt the doctrine anew.

Other Circuits Disagree About the Merits Threshold Even When They Continue to Balance Equities

The disagreement did not begin with Whitfield. Following Winter, the Second Circuit defended its serious-questions approach in Citigroup Global Markets, Inc. v. VCG Special Opportunities Master Fund Ltd. The court reasoned that a more demanding hardship showing could preserve the overall burden while allowing relief where a court could not confidently predict the merits at the beginning of complex litigation. Its decision also recognized circumstances in which the alternative was unavailable, including certain challenges to government action and relief that effectively awarded the ultimate remedy irreversibly.[20]

That circuit has continued to apply the alternative since Starbucks. In State Farm Mutual Automobile Insurance Co. v. Tri-Borough NY Medical Practice P.C., decided in October 2024, the Second Circuit applied serious questions to an insurer’s RICO claims supported by detailed allegations, exhibits, and the procedural record. In February 2026, Government Employees Insurance Co. v. Patel again applied the alternative in litigation over allegedly fraudulent insurance claims. Neither opinion discussed whether Starbucks displaced the doctrine. They establish continued use after the Supreme Court’s decision, without supplying a reasoned answer to the particular objection Bress later advanced.[21]

The Fourth and Tenth Circuits took a different approach to Winter itself. In The Real Truth About Obama, Inc. v. Federal Election Commission, the Fourth Circuit rejected a hardship-balancing method that allowed serious questions to substitute for likely success. The Supreme Court later vacated that judgment on other grounds, after which the Fourth Circuit expressly reinstated the relevant discussion. In Diné Citizens Against Ruining Our Environment v. Jewell, the Tenth Circuit likewise concluded that Winter foreclosed its modified test allowing a lesser merits showing when the other requirements strongly favored relief. Those decisions treat likely success as a prerequisite that favorable equities cannot replace.[22]

The Seventh Circuit demonstrates why the comparison requires more than dividing courts into those that use a sliding scale and those that do not. Illinois Republican Party v. Pritzker rejected a merely better-than-negligible chance of success and required a strong showing, while explaining that a preliminary application does not demand proof of the case by a preponderance. Mays v. Dart similarly rejected the negligible threshold but retained balancing after the necessary initial showings. More recently, Wisconsinites for Alternatives to Smoking & Tobacco, Inc. v. Casey used a sliding scale while affirming denial of relief where the applicants failed to demonstrate a reasonable likelihood of success.[23]

In those decisions, retaining a sliding scale does not establish that a sufficiently severe hardship can compensate for any substantial deficiency on the merits. One must identify the merits threshold that comes before balancing and then determine what the balancing may change. The same phrase can otherwise obscure materially different rules.

The D.C. Circuit has remained more guarded. In Clevinger v. Advocacy Holdings, Inc., decided in April 2025, it questioned the continued validity of sliding-scale analysis but expressly reserved the issue. The absence of irreparable harm defeated relief even under the older approach. Its discussion, including a reference to Starbucks, should therefore be cited as an unresolved question rather than a holding that abolished the alternative.[24]

Taken together, these decisions establish both a persistent disagreement and the limits of any claim to national consensus. They also identify the precise work a future Supreme Court decision would need to perform. The Court would have to explain the minimum merits showing, the permissible role of comparative hardship, and the relationship between both inquiries at a stage when the record is necessarily incomplete.

Published Ninth Circuit Authority Continues to Recognize the Alternative Despite District Court Disagreement

Published Ninth Circuit opinions establish the starting point for evaluating the disagreement within the circuit. In Bennett v. Isagenix International LLC, decided in September 2024, the court recited the serious-questions alternative and cited Starbucks in the same opinion. Its merits analysis found likely success. However, the court vacated the injunction because the district court had improperly treated a contractual damages waiver as establishing irreparable harm, leaving other asserted injuries for consideration on remand. In Pacito v. Trump, decided in March 2026, the court again stated the alternative. It found no serious questions on certain challenges to the suspension of refugee processing while separately sustaining relief concerning domestic services on a stronger merits showing. These opinions confirm continued recognition without adjudicating the precise abrogation argument. Continued recitation and actual application must be examined claim by claim.[25]

Against that background, district judges have disagreed about the effect of Starbucks. In Gilley v. Stabin, an Oregon district court expressly rejected the contention that Starbucks eliminated the Ninth Circuit’s alternative. The court distinguished the two-part agency-deference test rejected in Starbucks from a serious-questions framework that continued to require consideration of all four factors. It then granted limited preliminary relief in a First Amendment dispute involving governmental social-media blocking.[26]

An Eastern District of California court reached the opposite conclusion in E.R.J.B. v. Wofford. Addressing a request for release from immigration detention or a bond hearing, the court stated that Starbucks foreclosed the serious-questions standard. It also concluded that the requested relief was mandatory and therefore subject to a heightened showing. That alternative ground is relevant because a dispute about the ordinary merits threshold did not exhaust the applicant’s difficulties.[27]

These district decisions illustrate the practical disagreement without changing the hierarchy of authority. An applicant can invoke Cottrell and the circuit’s subsequent recognition of its alternative, while an opponent may argue that intervening Supreme Court reasoning has displaced it. The district court must evaluate that contention under the Ninth Circuit’s rule governing intervening authority. The fact that another district judge accepted or rejected the contention supplies persuasive reasoning, but neither decision independently changes circuit law.

Miller v. Gammie Governs When Intervening Supreme Court Authority Displaces Circuit Precedent

The second Whitfield dissent concerns the rule governing when a panel or district court may depart from circuit precedent. Under the Ninth Circuit’s en banc decision in Miller v. Gammie, intervening higher authority displaces circuit precedent when the relevant reasoning or theory is clearly irreconcilable. Because the issues need not be identical, a later Supreme Court decision may undercut the reasoning on which circuit precedent depends without addressing the same parties, statute, or factual setting.[28]

At the same time, Miller does not permit every panel or district judge to abandon circuit precedent whenever a newer Supreme Court decision creates substantial tension. Lair v. Bullock emphasized the demanding nature of the clearly-irreconcilable inquiry. If the authorities can be applied consistently, the earlier circuit decision continues to govern. The question therefore requires an account of both decisions’ reasoning, including the principle said to survive or the incompatibility said to make survival impossible.[29]

VanDyke’s dissent argues that the circuit’s application of this rule has become an obstacle to following the Supreme Court. His criticism deserves attention because a rule designed to preserve stability cannot properly authorize a lower court to disregard controlling higher authority. However, it would be inaccurate to describe Miller as requiring the Supreme Court to decide an identical case before circuit precedent may yield. The en banc opinion expressly says otherwise. The dispute concerns how demanding the reconciliation inquiry should be in practice, along with whether Starbucks supplies the necessary conflict here.[30]

The history of Cottrell illustrates that the intervening-precedent rule can preserve part of an earlier doctrine while requiring another part to yield. Cottrell used that inquiry to reject the circuit’s former approach insofar as it dispensed with required Winter showings. It retained serious questions within a framework that also required likely irreparable injury and consideration of the public interest. A court addressing Starbucks must undertake the same kind of reasoning about the requirements that remain permissible, subject to Miller’s demanding standard for treating circuit precedent as displaced.[31]

The October 16 denial of rehearing leaves the circuit’s existing doctrine in place without providing a majority explanation of this relationship. The ten judges who subscribed to Bress’s dissent reveal substantial disagreement, although their signatures do not establish the undisclosed tally of the en banc vote. Litigants should understand the denial’s procedural effect while resisting the temptation to convert it into a reasoned endorsement of every proposition in the panel’s remand instructions.

Preserving a Remedy Requires Attention to Injuries on Both Sides

My concern about abandoning serious questions begins with the function of preliminary relief. A right that can be vindicated only after its practical value has disappeared may provide little protection to the person entitled to exercise it. That fact is relevant in circumstances where private enforcement depends on a plaintiff remaining in business, preserving confidential information, or retaining the practical ability to pursue the litigation until judgment. A court’s refusal to intervene can affect the conditions under which adjudication will occur, even when that refusal is described as simply allowing events to continue.

Consider the public litigation in hiQ Labs, Inc. v. LinkedIn Corp. In its operative 2022 opinion following Supreme Court review, the Ninth Circuit addressed evidence that the loss of access to publicly available professional-profile information threatened hiQ’s business. It found serious questions concerning intentional interference with contract, including whether LinkedIn could invoke the Computer Fraud and Abuse Act to defeat that claim. The dispute illustrates how loss of access to an input can threaten the existence of a business before its legal claims are finally adjudicated.[32]

The relevance of hiQ depends on keeping the claim and the information at issue in view. The court addressed intentional interference with contract and the asserted Computer Fraud and Abuse Act obstacle to that claim, then declined to reach a separate unfair-competition theory because the interference analysis supported the preliminary disposition. Its treatment of publicly accessible profiles does not establish a general right to platform access or resolve the treatment of information protected by an authentication requirement. Nor does the opinion’s discussion of information monopolies amount to an adjudication of Sherman Act liability. The example concerns the role of provisional relief in preserving a business while particular claims remain unresolved.[33]

In my view, effective private enforcement requires a procedural system attentive to that kind of threatened loss. Yet the defendant also has an interest in avoiding an injunction that restricts lawful conduct before the plaintiff establishes entitlement to relief. An order compelling access can create consequences that cannot readily be undone. An order preventing disclosure can restrain expression during the period when expression is most valuable. Any account of irreversibility that considers only the plaintiff’s position is incomplete.

The older error-cost cases explain why both sides belong in the inquiry. In Roland Machinery Co. v. Dresser Industries, Inc. and American Hospital Supply Corp. v. Hospital Products Ltd., the Seventh Circuit examined the consequences of wrongly granting and wrongly denying interim relief. Those decisions supply an analytical rationale for considering the probability of an erroneous decision together with the severity of its consequences.[34] Their older descriptions of the minimum merits threshold must, however, be read in light of later decisions such as Pritzker and Mays, which require a stronger initial showing. That change in the governing threshold limits how the earlier cases may be used without eliminating the problem their reasoning attempts to address.[35]

Recent scholarship develops the concern about preserving an effective remedy through a proposed account of preliminary relief. Samuel Bray’s Preliminary Injunctions on a Blank Slate distinguishes preserving the court’s eventual remedial options from anticipating or accelerating a final judgment. His proposal takes the consequences of both granting and withholding relief seriously, while treating substantial merits questions as a necessary screen. It helps explain why a court should ask what relief will remain possible after delay, although its normative account must be distinguished from the criteria that existing Supreme Court precedent requires.[36]

The law already recognizes an important part of this distinction. In University of Texas v. Camenisch, the Supreme Court explained that a preliminary application proceeds on less complete evidence and does not require a party to prove the case in full. Preliminary findings ordinarily do not bind the eventual merits decision. Starbucks itself relied on that principle when explaining why independent judicial assessment would not control the Board’s later adjudication. More recently, Lackey v. Stinnie again distinguished provisional merits assessments from conclusive adjudication in the separate context of prevailing-party attorney’s fees.[37]

Nevertheless, provisional assessment and a reduced legal threshold remain different questions. A court can require likely success while acknowledging that its prediction is subject to revision. The difficulty is determining how much uncertainty that prediction can tolerate, especially where uncertainty results from information that cannot reasonably be obtained before the threatened injury occurs. The serious-questions doctrine offers one answer. If the Supreme Court ultimately rejects that answer, courts will still need to explain how the ordinary standard operates on an incomplete record without quietly converting an application for temporary protection into a premature trial.

Developing the Record Under Both Formulations Preserves the Applicant’s Arguments

As a matter of litigation strategy, I would develop the strongest available likelihood-of-success showing and present serious questions as a distinct alternative supported by the Ninth Circuit’s existing authority. That recommendation does not make likely success a prerequisite to invoking Cottrell. It responds to the practical risk that a court may accept the argument for displacement or that further review may change the governing rule. Counsel should identify which element remains uncertain, what evidence supports it, and why the uncertainty persists, so that the court can evaluate the claim under either formulation. A generalized assertion that the case presents difficult issues does not perform that work.[38]

The allocation of substantive burdens must be addressed as part of the same analysis. In Gonzales v. O Centro Espírita Beneficente União do Vegetal, the Supreme Court explained that preliminary-stage burdens track trial burdens. The government’s failure to establish its compelling-interest defense could support the claimant’s likelihood of success even where the evidence on that issue was in equipoise. Accordingly, a court should not assume that every unresolved question counts against the applicant. It must first determine who bears the burden on the particular issue. This is a qualification built into proper merits analysis, rather than a substitute for it.[39]

Likely irreparable harm requires its own record under either formulation. The applicant should explain when the injury will occur, how the challenged conduct will cause it, and why a later remedy will be inadequate. For a business, that may require concrete evidence about the threatened loss and the availability of alternatives. For an accommodation claim, it may require an individualized account of the medical consequences rather than a generalized objection to workplace inconvenience. Sampson v. Murray cautions against equating ordinary, compensable employment losses with irreparable injury. A court evaluating separately demonstrated physical harm must examine that asserted injury on its own facts, rather than assume that every injury arising in an employment relationship is merely an economic loss.[40] The applicant must also connect the asserted injury to the legal claim supporting the requested remedy, a requirement illustrated by Garcia v. Google, Inc.[41]

The applicant must then explain why the hardship balance tips sharply if relying on serious questions. The defendant’s anticipated injury should be confronted directly, with attention to whether narrower relief can reduce it. The public-interest analysis should identify consequences beyond the parties’ private preferences. Neither a plausible statutory violation nor a sympathetic claimant makes an injunction automatic. Winter, Weinberger, and Amoco Production Co. v. Village of Gambell each require attention to the consequences and circumstances of the requested remedy.[42]

The proposed order deserves the same care as the merits discussion. Rule 65(d)(1) requires the order to state its reasons, set out its terms specifically, and describe in reasonable detail the acts restrained or required.[43] Counsel should also explain why the proposed scope and duration fit the demonstrated injury. If the request is characterized as prohibitory, the record should identify the last uncontested condition and explain the chronology of the dispute. If the order would require affirmative relief subject to the mandatory-injunction standard, counsel should address that standard through the conduct the order would require rather than rely on a characterization the record will not sustain.[44]

Finally, courts and litigants should consider whether a more developed record can be obtained promptly enough to reduce the uncertainty. Rule 65 permits advancement and consolidation of a merits trial with a preliminary-injunction hearing when the necessary procedural protections are observed.[45] As a practical matter, a focused evidentiary presentation, appropriately limited relief, or a prompt return for further findings may preserve the court’s ability to provide an effective remedy while reducing the consequences of an erroneous preliminary decision. Each course requires attention to the particular record and the time available before the threatened injury occurs.

The Ninth Circuit continues to recognize serious questions as an alternative route to preliminary relief. Whitfield left that precedent in place, even as the dissents explained why a substantial group of judges believes that Starbucks requires its abandonment. A litigant may therefore invoke the doctrine while preparing to answer the challenge to its continued force. In my view, its defense should begin with the concrete injury that an eventual judgment may no longer prevent, then explain how an independent assessment of the merits, sharply favorable hardships, likely irreparable harm, and the public interest justify temporary intervention. The dissenters’ objection requires a legal answer concerning the permissible merits threshold. It also requires attention to the practical consequences of withholding protection while the court decides whether the underlying right exists.

Notes

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[1]     Whitfield v. Mullin, No. 25-5220, slip op. at 3 (9th Cir. Oct. 16, 2026) (denying rehearing en banc); id. at 4–13 (Bress, J., dissenting from the denial of rehearing en banc) (arguing that serious questions conflicts with Supreme Court precedent); id. at 14–18 (VanDyke, J., dissenting from the denial of rehearing en banc) (criticizing the circuit’s intervening-precedent doctrine). Judges Callahan, Bennett, R. Nelson, Bade, Collins, Lee, Bumatay, VanDyke, and Tung joined Bress. Bumatay and Tung joined VanDyke’s separate dissent. These subscriptions identify the dissenting judges without revealing the complete en banc vote.

[2]     See Whitfield v. Mullin, No. 25-5220, slip op. at 10–13 (9th Cir. Oct. 16, 2026) (Bress, J., dissenting from the denial of rehearing en banc) (applying that objection to the circuit’s lower merits threshold). Compare All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1132, 1135 (9th Cir. 2011) (retaining serious questions within the four-factor framework), with Starbucks Corp. v. McKinney, 602 U.S. 339, 349–50 (2024) (rejecting a substantial-and-nonfrivolous agency theory as a substitute for an independent likelihood-of-success determination).

[3]     Whitfield v. Mullin, No. 25-5220, 2026 WL 1230550, at *1–2 (9th Cir. May 5, 2026) (describing Whitfield’s disabilities, employment arrangements, and accommodation dispute); Whitfield v. Mullin, No. 25-5220, slip op. at 5–6 (9th Cir. Oct. 16, 2026)(Bress, J., dissenting from the denial of rehearing en banc) (summarizing the underlying chronology). This account concerns the record described in the appellate opinions, rather than final adjudicated findings of disability discrimination.

[4]     Whitfield, 2026 WL 1230550, at *1–2 (reviewing denial under the mandatory-injunction standard); Garcia v. Google, Inc., 786 F.3d 733, 740 & n.4 (9th Cir. 2015) (en banc) (requiring the law and facts clearly to favor mandatory relief and defining the relevant status quo).

[5]     Whitfield, 2026 WL 1230550, at *1–2 (identifying the uncontested remote-work arrangement and remanding under the prohibitory standard); Garcia, 786 F.3d at 740 n.4 (defining the status quo as the last uncontested condition preceding the controversy).

[6]     9th Cir. R. 36-3(a)–(b) (providing that unpublished dispositions are generally nonprecedential while permitting citation of dispositions issued on or after January 1, 2007).

[7]     Whitfield, 2026 WL 1230550, at *2 (leaving the ordinary-standard findings for remand); Whitfield v. Mullin, No. 25-5220, slip op. at 6–7 (9th Cir. Oct. 16, 2026) (Bress, J., dissenting from the denial of rehearing en banc) (identifying the government’s challenge to the serious-questions instruction rather than the classification of relief).

[8]     Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20–24, 31–33 (2008) (requiring likely irreparable harm, stating the four-factor test, and resolving the challenged restrictions on equitable and public-interest grounds).

[9]     All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131–35 (9th Cir. 2011) (preserving the alternative only as part of a test that requires likely irreparable harm and the public interest); id. at 1137–39 (applying the standard and directing preliminary relief against salvage logging). The January 25, 2011 opinion replaced the withdrawn opinion at 622 F.3d 1045 (9th Cir. 2010). The 2011 decision is the operative authority.

[10]   See Cottrell, 632 F.3d at 1135 (requiring all four components); hiQ Labs, Inc. v. LinkedIn Corp., 31 F.4th 1180, 1188–90 (9th Cir. 2022) (applying the framework to threatened business failure); All. for the Wild Rockies v. Petrick, 68 F.4th 475, 490, 497 (9th Cir. 2023) (reciting the alternative while rejecting an insufficient legal theory); Assurance Wireless USA, L.P. v. Reynolds, 100 F.4th 1024, 1031 (9th Cir. 2024) (describing the lesser merits showing and requiring an explanation of its satisfaction). Assurance Wirelesspreceded Starbucks.

[11]   Petrick, 68 F.4th at 497 (rejecting novelty and plausibility as sufficient substitutes for legal analysis where the statute was unambiguous); Assurance Wireless, 100 F.4th at 1031 & n.2 (requiring serious factual questions and rejecting the applicants’ unexplained reliance on the alternative). The factual-questions formulation should not be silently expanded into a promise that any unsettled legal issue warrants provisional relief.

[12]   Cottrell, 632 F.3d at 1139–40 (Mosman, J., concurring) (explaining why threatened injury may be more predictable than ultimate merits at an early stage); Winter, 555 U.S. at 51 (Ginsburg, J., dissenting) (defending equitable flexibility). Ginsburg’s example contemplated flexibility in the harm showing. Following the majority’s rejection of a possibility-of-harm standard, Cottrell retained likely harm as a requirement. Her dissent therefore supplies a rationale, not authority for relaxing that requirement.

[13]   Starbucks Corp. v. McKinney, 602 U.S. 339, 343–46, 351 (2024) (describing the Sixth Circuit’s test and requiring the traditional four factors for § 10(j) relief); 29 U.S.C. § 160(j) (authorizing the Board to petition for temporary relief after issuance of an unfair-labor-practice complaint).

[14]   Starbucks, 602 U.S. at 345–49 (requiring a clear congressional direction to depart from traditional equitable criteria); Hecht Co. v. Bowles, 321 U.S. 321, 329–31 (1944) (preserving equitable discretion while directing its exercise toward statutory objectives); Weinberger v. Romero-Barcelo, 456 U.S. 305, 312–14, 320 (1982) (requiring attention to traditional remedies and the statutory design without making every violation an automatic injunction).

[15]   Starbucks, 602 U.S. at 349–50 (distinguishing permissible fine-tuning from a substantive reduction in the required showing and rejecting deference to the Board’s preliminary litigation position).

[16]   Whitfield v. Mullin, No. 25-5220, slip op. at 10–13 (9th Cir. Oct. 16, 2026) (Bress, J., dissenting from the denial of rehearing en banc) (contrasting Starbucks with the Ninth Circuit’s expressly lower merits showing); see Starbucks, 602 U.S. at 349–50 (requiring more than a substantial, nonfrivolous legal theory).

[17]   Winter, 555 U.S. at 20–22 (stating the conjunctive requirements and rejecting a relaxed harm showing); Munaf v. Geren, 553 U.S. 674, 689–91 (2008) (rejecting difficult jurisdictional questions as a basis for an injunction without merits consideration); Nken v. Holder, 556 U.S. 418, 434–35 (2009) (identifying critical stay factors and rejecting negligible merits prospects or merely possible harm); id. at 438–39 (Kennedy, J., concurring) (opposing substitution of one required showing for another). Munaf did not expressly decide the modern serious-questions-on-the-merits alternative. Nken distinguishes stays from preliminary injunctions despite substantial overlap.

[18]   Starbucks, 602 U.S. at 352–55, 360–65 (Jackson, J., concurring in part, concurring in the judgment, and dissenting in part) (agreeing that all four factors apply while arguing that the Board’s statutory role should inform their application). Its argument is specific to the statutory administrative setting and is not a holding endorsing Cottrell.

[19]   Hecht, 321 U.S. at 329–31 (connecting flexibility to the public interest and statutory objectives); Weinberger, 456 U.S. at 312–14, 320 (retaining discretion while requiring a remedy that secures statutory compliance); Nken, 556 U.S. at 434 (requiring equitable discretion to be guided by legal principles); Starbucks, 602 U.S. at 345–49 (applying the same tradition to the governing preliminary-injunction criteria).

[20]   Citigroup Glob. Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35–38 & n.4 (2d Cir. 2010) (retaining serious questions after Winter, Munaf, and Nken, while identifying limits on the alternative).

[21]   State Farm Mut. Auto. Ins. Co. v. Tri-Borough NY Med. Prac. P.C., 120 F.4th 59, 79, 82–85 (2d Cir. 2024) (applying serious questions to the RICO record and separately examining hardships and the public interest); Gov’t Emps. Ins. Co. v. Patel, 166 F.4th 286, 295–96 (2d Cir. 2026) (finding an evidentiary objection forfeited and alternatively finding the serious-questions showing satisfied). Neither opinion discusses Starbucks. A certiorari petition in Patel, No. 26-85, remained pending as of October 20, 2026. Its question concerns the Anti-Injunction Act’s expressly authorized exception and RICO, rather than the serious-questions standard.

[22]   Real Truth About Obama, Inc. v. Fed. Election Comm’n, 575 F.3d 342, 346–47 (4th Cir. 2009), vacated on other grounds, 559 U.S. 1089 (2010), reinstated in relevant part, 607 F.3d 355 (4th Cir. 2010) (rejecting the former hardship-balancing substitute for likely success and expressly reissuing the relevant discussion after remand); Diné Citizens Against Ruining Our Env’t v. Jewell, 839 F.3d 1276, 1281–82 (10th Cir. 2016) (holding that Winter forecloses a reduced merits showing even where the other factors strongly favor relief).

[23]   Ill. Republican Party v. Pritzker, 973 F.3d 760, 762–63 (7th Cir. 2020) (rejecting negligible prospects and requiring a strong showing of how the claim’s key elements will be proved); Mays v. Dart, 974 F.3d 810, 818, 821–22 (7th Cir. 2020) (retaining balancing after threshold showings while rejecting the negligible-merits formulation); Wisconsinites for Alts. to Smoking & Tobacco, Inc. v. Casey, 172 F.4th 976, 990 (7th Cir. 2026) (applying a sliding scale while affirming denial on the merits and equities).

[24]   Clevinger v. Advocacy Holdings, Inc., 134 F.4th 1230, 1235–36 & nn.2–3 (D.C. Cir. 2025) (reserving the sliding-scale issue and affirming denial for lack of irreparable harm).

[25]   Bennett v. Isagenix Int’l LLC, 118 F.4th 1120, 1122–23, 1126, 1129–30 (9th Cir. 2024) (reciting serious questions, finding likely merits success, and vacating the injunction because its contractual-waiver rationale for irreparable harm was erroneous); Pacito v. Trump, 169 F.4th 895, 919, 938 (9th Cir. 2026) (retaining the alternative and distinguishing the merits strength of different refugee-program claims). Bennett, 118 F.4th at 1129, cites Starbucks. Pacito does not discuss Starbucks. Neither supplies a reasoned holding on the abrogation argument developed in the Whitfield dissent.

[26]   Gilley v. Stabin, No. 3:22-cv-01181-HZ, 2024 WL 3507982, at *1 n.3 (D. Or. July 23, 2024) (rejecting the asserted abrogation of Cottrell).

[27]   E.R.J.B. v. Wofford, No. 1:25-cv-01843-WBS-SCR, slip op. at 4–6 (E.D. Cal. Dec. 18, 2025) (concluding that Starbucks forecloses serious questions and alternatively applying the heightened mandatory-relief standard).

[28]   Miller v. Gammie, 335 F.3d 889, 893, 899–900 (9th Cir. 2003) (en banc) (requiring panels and district courts to follow intervening higher authority when the earlier circuit decision’s reasoning or theory is clearly irreconcilable).

[29]   Lair v. Bullock, 697 F.3d 1200, 1206–07 (9th Cir. 2012) (requiring more than tension or doubt where the circuit precedent can reasonably be harmonized with intervening authority); see Miller, 335 F.3d at 899–900 (distinguishing ordinary panel adherence from effective overruling by a higher court).

[30]   Compare Whitfield v. Mullin, No. 25-5220, slip op. at 14–18 (9th Cir. Oct. 16, 2026) (VanDyke, J., dissenting from the denial of rehearing en banc) (arguing that the circuit’s practice unduly preserves precedent in conflict with Supreme Court decisions), withMiller, 335 F.3d at 900 (expressly allowing intervening reasoning to displace circuit precedent without identical issues).

[31]   All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (invoking Miller and recognizing that Winter superseded earlier cases insofar as they permitted relief based only on serious questions and hardships).

[32]   hiQ Labs, Inc. v. LinkedIn Corp., 31 F.4th 1180, 1188–90, 1194, 1201–02 (9th Cir. 2022) (addressing business-survival evidence, serious questions on interference with contract, and the asserted CFAA obstacle). The cited 2022 opinion followed the Supreme Court’s vacatur and remand for consideration of Van Buren. It should not be confused with the vacated 2019 opinion. The discussion here concerns preliminary relief and does not describe the ultimate disposition of all claims.

[33]   hiQ, 31 F.4th at 1190, 1194, 1199–1202 (limiting the questions reviewed, declining to reach the unfair-competition theory, and distinguishing public profiles from systems requiring authorization).

[34]   Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 387–88 (7th Cir. 1984) (considering the probability and gravity of erroneous interim relief); Am. Hosp. Supply Corp. v. Hosp. Prods. Ltd., 780 F.2d 589, 593–94 (7th Cir. 1986) (explaining the consequences of both erroneous grants and erroneous denials).

[35]   Ill. Republican Party v. Pritzker, 973 F.3d 760, 762–63 (7th Cir. 2020) (rejecting the older negligible-prospects merits threshold); Mays v. Dart, 974 F.3d 810, 821–22 (7th Cir. 2020) (applying the stronger modern threshold).

[36]   Samuel L. Bray, Preliminary Injunctions on a Blank Slate, 101 Notre Dame L. Rev. 621, 627–31, 639–41 (2026) (developing an option-preservation approach and examining risks from granting and withholding relief).

[37]   Univ. of Tex. v. Camenisch, 451 U.S. 390, 394–96 (1981) (distinguishing likely success from final success and explaining the provisional nature of the evidence and findings); Starbucks Corp. v. McKinney, 602 U.S. 339, 350–51 (2024) (explaining that preliminary judicial assessment does not bind the Board’s ultimate determination); Lackey v. Stinnie, 604 U.S. 192, 200–01 (2025)(distinguishing preliminary predictions from conclusive relief in deciding prevailing-party status under 42 U.S.C. § 1988(b)).

[38]   See All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (establishing the circuit’s alternative); All. for the Wild Rockies v. Petrick, 68 F.4th 475, 497 (9th Cir. 2023) (requiring legal analysis beyond the assertion of novelty); Assurance Wireless USA, L.P. v. Reynolds, 100 F.4th 1024, 1031 & n.2 (9th Cir. 2024) (requiring an explanation of serious factual questions); cf. Pritzker, 973 F.3d at 763 (describing a strong showing through the applicant’s proposed proof of key elements).

[39]   Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418, 428–30 (2006) (applying the substantive allocation of burdens at the preliminary stage and rejecting the government’s attempt to shift its compelling-interest burden to the RFRA claimant).

[40]   Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 21–22 (2008) (requiring likely rather than merely possible injury); hiQ Labs, Inc. v. LinkedIn Corp., 31 F.4th 1180, 1188–90 (9th Cir. 2022) (evaluating evidence of threatened business destruction); Sampson v. Murray, 415 U.S. 61, 90–92 & n.68 (1974) (finding ordinary employment losses insufficient in the federal personnel dispute while reserving extraordinary circumstances). The distinction between ordinary economic loss and separately demonstrated physical injury is an analytical caution here, not a categorical medical-harm exception announced in Sampson.

[41]   See Garcia v. Google, Inc., 786 F.3d 733, 744–46 (9th Cir. 2015) (en banc) (requiring the asserted irreparable injury to bear the necessary relationship to the copyright claim supporting the requested remedy).

[42]   Winter, 555 U.S. at 23–24, 31–33 (examining competing injuries and the public consequences of the challenged restrictions); Weinberger v. Romero-Barcelo, 456 U.S. 305, 312–14, 320 (1982) (tailoring relief to the statutory objective and record rather than automatically ordering cessation); Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 542, 544–46 (1987) (rejecting presumed irreparable harm from a procedural violation and requiring attention to the actual consequences); Cottrell, 632 F.3d at 1135 (requiring the sharply favorable balance and remaining factors for the serious-questions alternative).

[43]   Fed. R. Civ. P. 65(d)(1) (requiring stated reasons, specific terms, and a reasonably detailed description of the conduct restrained or required).

[44]   Garcia, 786 F.3d at 740 & n.4 (explaining the mandatory standard and relevant status quo); Whitfield v. Mullin, No. 25-5220, 2026 WL 1230550, at *1–2 (9th Cir. May 5, 2026) (applying that classification to the chronology of the accommodation dispute).

[45]   Fed. R. Civ. P. 65(a)(2) (permitting advancement and consolidation while preserving jury-trial rights); Univ. of Tex. v. Camenisch, 451 U.S. 390, 395–96 (1981) (requiring clear notice and a full opportunity to present the merits when consolidation occurs).