Irreparable Harm To The Irreparable Harm Standard

Courts have fundamentally distorted and mutated the irreparable harm standard for preliminary injunctions, especially in Administrative Procedures Act cases.¹ Courts have turned the irreparable harm standard away from its roots, looking to whether the financial harm is severe enough. But what courts should be looking at is whether the harm is unrecoverable, regardless of the amount. With this proper understanding in place, it becomes clear that when the government enforces an illegal regulation, the harm is per se irreparable, because money damages cannot be recovered under the APA. Recently, we beat the government in an APA trial wherein the Court correctly laid out the irreparable harm standard - hopefully the start of return to the proper application of the irreparable harm test.²