PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 16-3722

________________

COLLEEN REILLY; BECKY BITER;

ROSALIE GROSS

v.

CITY OF HARRISBURG; 

HARRISBURG CITY COUNSEL;

MAYOR ERIC PAPENFUSE, In his Official capacity as

Mayor of Harrisburg

Colleen Reilly; Becky Biter, 

Appellants

________________

Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 1-16-cv-00510)

District Judge: Honorable Sylvia H. Rambo

________________

Argued March 21, 2017
2

Before: AMBRO, JORDAN, and ROTH, Circuit Judges

Mary E. McAlister, Esquire

Liberty Counsel

P.O. Box 11108

Lynchburg, VA 24506

Mathew D. Staver, Esquire

Horatio G. Mihet, Esquire (Argued)

Liberty Counsel

P.O. Box 540774

Orlando, FL 32854

Counsel for Appellants

Joshua M. Autry, Esquire (Argued)

Frank J. Lavery, Jr., Esquire

Lavery Faherty Petterson

225 Market Street

Suite 304, P.O. Box 1245

Harrisburg, PA 17108

Counsel for Appellees

(Opinion filed: May 25, 2017)

________________

OPINION OF THE COURT

________________

AMBRO, Circuit Judge

The case before us is a familiar one: a constitutional 

challenge to a city ordinance that Plaintiffs Colleen Reilly and 
3

Becky Biter allege impermissibly restricts their right to 

protest in the vicinity of abortion clinics.1 In addition to 

challenging the ordinance, Plaintiffs sought a preliminary 

injunction to enjoin its enforcement, which was denied. 

Because the claims are still before the District Court, we need 

not review their merit. However, we clarify the analysis 

needed in considering requests for preliminary injunctions, 

and thus we remand. 

I. BACKGROUND

The City of Harrisburg, Pennsylvania, issued an

ordinance that prohibits persons to “knowingly congregate, 

patrol, picket or demonstrate in a zone extending 20 feet from 

any portion of an entrance to, exit from, or driveway of a 

health care facility.” Harrisburg, Pa. Mun. Code § 3-371.4A. 

The stated purpose of the ordinance is to “promote the health 

and welfare of [Harrisburg] residents and visitors to [its] 

health care facilities, as well as the health and welfare of 

those who may wish to voice their constitutionally protected 

speech outside of such health care facilities . . . .” Id. § 3-

371.2C. But for those exempted (e.g., police and employees 

of the health care facility), the ordinance “appl[ies] to all 

persons equally regardless of the intent of their conduct or the 

content of their speech.” Id. § 3-371.4.

Plaintiffs are individuals purporting to provide 

“sidewalk counseling” to those entering abortion clinics by 

way of leafletting, prayer, and conversation in attempts to 

dissuade patients from getting abortions. Plaintiffs argue that 

the ordinance creates unconstitutional “buffer zones” that 

render impossible their ability to engage effectively in 

 

1 Rosalie Gross was also a Plaintiff in the action 

below, but has voluntarily dismissed her claims without 

prejudice and does not join this appeal. 
4

counseling. They claim that the ordinance violates their First 

Amendment rights to speak freely, exercise their religion, and 

assemble, as well as their Fourteenth Amendment due process 

and equal protection rights. As noted, they also sought a 

preliminary injunction to enjoin enforcement of the 

ordinance.

Plaintiffs made several facial and as-applied 

challenges to the ordinance, some dismissed by the District 

Court though most remain. The Court determined that the 

ordinance was content-neutral because it did not define or 

regulate speech by subject-matter or purpose, and thus 

intermediate scrutiny applied. Under this tier of scrutiny, the 

Court reasoned that it must accept as true (for the purposes of 

a motion to dismiss) Plaintiffs’ claims that the City did not 

consider less restrictive alternatives to the ordinance, and thus 

it allowed their claims to proceed to discovery. However, in 

considering whether to grant preliminary injunctive relief, the 

Court ruled that Plaintiffs did not bear their burden of 

demonstrating that they were likely to succeed on the merits, 

and for that reason alone it denied the temporary relief 

sought. 

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had federal question subject matter 

jurisdiction under 28 U.S.C. §§ 1331 and 1343(a). We have 

jurisdiction over interlocutory orders of a district court 

granting or denying a preliminary injunction per 28 U.S.C. 

§ 1292(a)(1). “When reviewing a district court’s [denial] of a 

preliminary injunction, we review the court’s findings of fact 

for clear error, its conclusions of law de novo, and the 

ultimate decision . . . for an abuse of discretion.” Bimbo 

Bakeries USA, Inc. v. Botticella, 613 F.3d 102, 109 (3d Cir. 

2010).
5

III. ANALYSIS

Plaintiffs request that we decide the merits of their 

attack on the constitutionality of the ordinance. As those 

claims are still before the District Court, it should evaluate 

them in the first instance.

Thus we turn to the denial of Plaintiffs’ preliminary 

injunction request. Because the Court did not provide a full 

analysis of whether to grant that request and misallocated the 

burden of demonstrating narrow tailoring, we remand for its 

further consideration. To assist in that effort and to clear up 

confusion caused by opinions in our Court that are in tension, 

we clarify how the analysis should proceed. 

A. Standard for Preliminary Injunctions

Over four decades ago we held that to obtain a 

preliminary injunction the moving party must show as a 

prerequisite

(1) a reasonable probability of eventual success 

in the litigation, and (2) that it will be 

irreparably injured . . . if relief is not granted . . 

. . [In addition,] the district court, in 

considering whether to grant a preliminary 

injunction, should take into account, when they 

are relevant, (3) the possibility of harm to other 

interested persons from the grant or denial of 

the injunction, and (4) the public interest. 

Del. River Port Auth. v. Transamerican Trailer Transport, 

Inc., 501 F.2d 917, 919-20 (3d Cir. 1974) (citations omitted). 

This standard for preliminary equitable relief remains; we 

have repeated that a district court—in its sound discretion—
6

should balance those four factors so long as the party seeking 

the injunction meets the threshold on the first two. See, e.g., 

Oburn v. Shapp, 521 F.2d 142, 147 (3d Cir. 1975) (“[W]hile 

the burden rests upon the moving party to make [the first] two 

requisite showings, the district court should take into account, 

when they are relevant, (3) the possibility of harm to other 

interested persons from the grant or denial of the injunction, 

and (4) the public interest.”) (quotation omitted); In re Arthur 

Treacher’s Franchisee Lit., 689 F.2d 1137, 1143 (3d Cir. 

1982) (same) (quotation omitted)); Bradley v. Pittsburgh Bd. 

of Educ., 910 F.2d 1172, 1175 (3d Cir. 1990) (“In order to 

support a preliminary injunction, plaintiff must show both a 

likelihood of success on the merits and a probability of 

irreparable harm. Additionally, the district court should 

consider the effect of the issuance of a preliminary injunction 

on other interested persons and the public interest.” (citations 

omitted)); Campbell Soup Co. v. Conagra, Inc., 977 F.2d 86, 

90-91 (3d Cir. 1992) (same); BP Chems. Ltd. v. Formosa 

Chem. & Fibre Corp., 229 F.3d 254, 263 (3d Cir. 2000) (“A 

District Court . . . balances these four factors to determine if 

an injunction should issue.” (citation omitted)).2 

We are aware there is an inconsistent line of cases 

within our Court holding that all four factors must be 

established by the movant and the “failure to establish any 

element in its favor renders a preliminary injunction 

inappropriate.” See, e.g., Ferring Pharms., Inc. v. Watson 

Pharms, Inc., 765 F.3d 205, 210 (3d Cir. 2014); NutraSweet 

Co. v. Vit-Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir. 

1999). As best we can tell, this conflicting standard began 

 

2

 In the parallel stay-pending-appeal context, where the 

factors are the same as for the preliminary injunctions, we 

also follow the analytical path noted above. In re Revel AC, 

Inc., 802 F.3d 558, 571 (3d Cir. 2015).
7

with Opticians Association of America v. Independent 

Opticians of America, in which we held that a district court 

“must consider four factors” and that “[o]nly if the movant 

produces evidence sufficient to convince the trial judge that 

all four factors favor preliminary relief should the injunction 

issue.” 920 F.2d 187, 191-92 (3d Cir. 1990) (citations

omitted). The panel in that case purported to glean this 

standard from our holding in ECRI v. McGraw-Hill, Inc., in 

which we stated that the movant bears the burden of showing 

the stated factors. 809 F.2d 223, 226 (3d Cir. 1987) (citation 

omitted). ECRI in turn attributed its guiding principle to SI 

Handling Systems, Inc. v. Heisley, where we specified that 

“[i]n considering a motion for preliminary injunctive relief, a 

court must carefully weigh [the] four factors . . . .” 753 F.2d 

1244, 1254 (3d Cir. 1985). Heisley was not out of line with 

our precedent that the factors are to be balanced so long as the 

first two factors (likelihood of success on the merits and 

irreparable harm) are satisfied. Thus the conflicting line of 

cases and corresponding confusion in our Court appear to be 

the product of compounded subtle misinterpretations of our 

longstanding jurisprudence. 

In our Court “the holding of a panel in a precedential 

opinion is binding on subsequent panels. Thus, no

subsequent panel overrules the holding in a precedential 

opinion of a previous panel. Court en banc consideration is 

required to do so.” Policy of Avoiding Intra-circuit Conflict 

of Precedent, Internal Operating Procedures of the Third 

Circuit Court of Appeals § 9.1; see, e.g., Kossler v. Crisanti, 

564 F.3d 181, 194 n.8 (3d Cir. 2009) (en banc); Pardini v. 

Allegheny Intermediate Unit, 524 F.3d 419, 426 (3d Cir. 

2008); United States v. Rivera, 365 F.3d 213 (3d Cir. 2004).

Our precedent in Transamerican Trailer was never overruled 

by a decision of this Court en banc, leaving no subsequent 

panel the discretion to rule otherwise absent a contrary ruling 

by the Supreme Court. 
8

We also are aware that, significantly later than this 

confusion arose, the Supreme Court stated that “[a] plaintiff 

seeking a preliminary injunction must establish that he is 

likely to succeed on the merits, that he is likely to suffer 

irreparable harm in the absence of preliminary relief, that the 

balance of equities tips in his favor, and that an injunction is 

in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 

555 U.S. 7, 20 (2008). At first blush that statement would 

lend support to the divergent standard articulated in Opticians 

Association of America almost twenty years earlier. But for 

four reasons we think Winter did not overrule our balancingof-the-factors standard. 

First, the Supreme Court in Winter explained that “[i]n 

each case . . . courts must balance the competing claims of 

injury and must consider the effect on each party of the 

granting or withholding of the requested relief.” Winter, 555 

U.S. at 24 (emphasis added) (quotation omitted). It 

concluded that “[a]n injunction is a matter of equitable 

discretion” that requires “the balance of equities.” Id. at 32 

(emphasis added). That is why Justice Ginsburg determined 

that the “Court has never rejected [the balancing] formulation, 

and [did] not believe it [did] so” in Winter. Id. at 51 

(Ginsburg, J., dissenting).

That reading of Winter comports with the Supreme 

Court’s following opinion on temporary equitable orders, 

Nken v. Holder, 556 U.S. 418 (2009), decided in the same 

term just five months later (with both opinions written by 

Chief Justice Roberts). There the Court explained that a 

district court must undertake “consideration of [the] four 

factors.” Id. at 434. “Once an applicant satisfies the first two 

factors, the traditional [equitable relief] inquiry calls for 

assessing the harm to the opposing party and weighing the 

public interest.” Id. at 435. Though Nken dealt with the 

issuance of a stay pending appeal, the Court explained that 
9

the same factors apply as in the preliminary injunction 

context “not because the two are one and the same, but 

because similar concerns arise whenever a court order may 

allow or disallow anticipated action before the legality of that 

action has been conclusively determined.” Id. at 434. Read 

together, these companion cases promote the traditional 

flexibility to granting interim equitable relief in which the 

district court has full discretion to balance the four factors

once gateway thresholds are met. See id.; Winter, 555 U.S. at 

32.

Second, other circuits have agreed with our reading of 

Winter and Nken. For instance, the Seventh Circuit, citing 

Winter, has held that a preliminary injunction may issue if the 

movant demonstrates it will face irreparable harm and has a 

“plausible claim on the merits,” after which “the ‘balance of 

equities’ favors” the movant. Hoosier Energy Rural Elec. 

Coop., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 

(7th Cir. 2009) (Easterbrook, C.J.). “How strong a claim on 

the merits is enough depends on the balance of the harms: the 

more net harm an injunction can prevent, the weaker the 

plaintiff’s claim on the merits can be while still supporting 

some preliminary relief.” Id. Similarly, citing Winter, the 

D.C. Circuit has declined “to abandon the so-called ‘sliding 

scale’ approach to weighing the four preliminary injunction 

factors” and held that a “party seeking a preliminary 

injunction must make a clear showing that [the] four factors, 

taken together, warrant relief . . . .” League of Women Voters 

of the United States v. Newby, 838 F.3d 1, 6-7 (D.C. Cir. 

2016) (emphasis added) (quotations omitted). The Second 

Circuit also has interpreted Winter and Nken as permitting a 

district court to continue a “flexible approach” in granting 

preliminary equitable relief, and that if those cases meant “to 

abrogate the more flexible standard for a preliminary 

injunction, one would expect some reference to the 

considerable history of the flexible standards applied in [the 
10

Second Circuit], seven [other] sister circuits, and the Supreme 

Court itself.” Citigroup Glob. Mkts., Inc. v. VCG Special 

Opportunities Master Fund, Ltd., 598 F.3d 30, 37-38 (2d Cir. 

2010). We find that reasoning persuasive.

Third, no test for considering preliminary equitable 

relief should be so rigid as to diminish, let alone disbar, 

discretion. District courts have the freedom to fashion 

preliminary equitable relief so long as they do so by 

“exercising their sound discretion.” Winter, 555 U.S. at 24

(quotation omitted). Because those courts are on the frontline 

and are much more familiar with the unique facts of a 

particular case, we apply a deferential standard in reviewing 

their decisions on preliminary equitable relief—abuse of 

discretion. See Campbell Soup Co., 977 F.2d at 91 (quotation 

omitted). Indeed, “[t]he essence of equity jurisdiction has 

been the power of the [court] to do equity and to mould each 

decree to the necessities of the particular case. Flexibility 

rather than rigidity has distinguished it.” Weinberger v. 

Romero-Barcelo, 456 U.S. 305, 312 (1982) (quotations 

omitted).

Fourth, disallowing a district court from balancing the 

four factors is inconsistent with the Supreme Court’s postWinter instruction in Nken that, when evaluating whether

interim equitable relief is appropriate, “[t]he first two factors 

of the traditional standard are the most critical.” 556 U.S. at 

434. An Opticians Association of America standard—in 

which all four factors are effectively critical in equal 

recourse—is logically incompatible with Nken’s

unambiguous holding. What would be the point of creating 

two gateway factors by placing elevated value on them if all 

are equally imperative? There would be none. And to 

require a moving party to prevail on all factors reads out 

balancing when not all factors favor that party.
11

Accordingly, we follow our precedent that a movant 

for preliminary equitable relief must meet the threshold for

the first two “most critical” factors: it must demonstrate that 

it can win on the merits (which requires a showing 

significantly better than negligible but not necessarily more 

likely than not3) and that it is more likely than not to suffer 

irreparable harm in the absence of preliminary relief4. If 

these gateway factors are met, a court then considers the 

remaining two factors and determines in its sound discretion 

 

3 We do not require at the preliminary stage a morelikely-than-not showing of success on the merits because a 

“‘likelihood’ [of success on the merits] does not mean more 

likely than not.” Singer Mgmt. Consultants, Inc. v. Milgram, 

650 F.3d 223, 229 (3d Cir. 2011) (en banc); cf. Nken v. 

Holder, 556 U.S. 418, 434 (“It is not enough that the chance 

of success on the merits be better than negligible[,]” and 

“more than a mere ‘possibility’ of relief is required.” 

(quotations omitted)). Of historical note, not only did 

Transamerican Trailer require nothing more than “a 

reasonable probability of eventual success,” 501 F.2d at 919-

20, cases of our Court before Transamerican Trailer did the 

same. A.L.K. Corp. v. Columbia Pictures Indus., Inc., 440 

F.3d 761, 763 (3d Cir. 1971) (Seitz, C.J.); Ikirt v. Lee Nat’l 

Corp., 358 F.2d 726, 727 (3d Cir. 1966). Also of interest is 

that neither of the latter two cases spoke of any showing 

needed for a preliminary injunction beyond a reasonable 

chance of success on the merits and irreparable harm to the 

movant.

4 For example, the availability of money damages for 

an injury typically will preclude a finding of irreparable harm. 

See, e.g., Frank’s GMC Truck Center, Inc. v. Gen. Motors 

Corp., 847 F.2d 100, 102 n.3 (3d Cir. 1988).
12

if all four factors, taken together, balance in favor of granting

the requested preliminary relief. In assessing these factors, 

Judge Easterbrook’s observation bears repeating: “How 

strong a claim on the merits is enough depends on the balance 

of the harms: the more net harm an injunction can prevent, 

the weaker the plaintiff’s claim on the merits can be while 

still supporting some preliminary relief.” Hoosier Energy,

582 F.3d at 725. 

B. The District Court Erred in Its Preliminary 

Injunction Analysis

In considering whether to grant preliminary injunctive 

relief, the District Court observed that Defendants failed to 

produce evidence that “made a clear showing” the ordinance 

was narrowly tailored. J.A. at 35. Yet it determined that 

Plaintiffs bore the burden of demonstrating their likelihood of 

success on the merits, and they failed to do so on the scant 

record before it. Plaintiffs contend that the District Court 

erred in placing this burden on them. We agree.

In deciding whether to issue a preliminary injunction, 

plaintiffs normally bear the burden of demonstrating a 

sufficient likelihood of prevailing on the merits. However, in 

First Amendment cases where “the Government bears the 

burden of proof on the ultimate question of [a statute’s] 

constitutionality, [plaintiffs] must be deemed likely to prevail 

[for the purpose of considering a preliminary injunction] 

unless the Government has shown that [plaintiffs’] proposed 

less restrictive alternatives are less effective than [the 

statute].” Ashcroft v. ACLU, 542 U.S. 656, 666 (2004). This 

is because “the burdens at the preliminary injunction stage 

track the burdens at trial,” and for First Amendment purposes 

they rest with the Government. Gonzales v. O Centro 

Espirita Beneficente Uniao do Vegetal, et al., 546 U.S. 418, 
13

429 (2006). That was not done here, as the District Court 

applied the usual standard of placing the burden on Plaintiffs.

Defendants argue that neither party had alerted the 

Court of this narrow exception to the burden-shifting 

framework applied to requests for preliminary injunctions in 

First Amendment cases. They insist that, had Plaintiffs raised 

this issue, Defendants “would have requested a full hearing” 

to present more fully their case as to the likelihood of success 

on the merits. Appellees’ Br. 26. Because, as determined at 

oral argument, neither party was aware of the applicable 

burden-shifting standard in this case, on remand Defendants 

are afforded the opportunity to bear their burden of showing 

that the ordinance is narrowly tailored. The District Court 

can then consider anew the request for preliminary injunctive 

relief in the clarified context noted above. We thus vacate 

and remand.