Undoing “Subtle Misinterpretations of … Longstanding Jurisprudence” Regarding Preliminary Injunctions in the Third Circuit

Reilly v. City of Harrisburg, ___ F.3d ___ (3d Cir. 2017).  This case involved claims by plaintiffs that an ordinance of the City of Harrisburg unconstitutionally deprived them of the ability to protest outside abortion clinics.  The District Court denied a preliminary injunction.  Plaintiffs appealed, asking the Third Circuit to address the ultimate merits of their constitutional claim.  Speaking through Judge Ambro, the court declined to do that.  But the panel did write a detailed opinion that sought to “clear up confusion caused by opinions in our Court that are in tension” regarding the standards for preliminary injunction decisions.

In the 1970’s, the Third Circuit noted the familiar federal four-part test for preliminary injunctions (a set of factors that differs slightly from New Jersey’s Crowe v. DeGioia test):  (1) reasonable probability of eventual success in the litigation; (2) irreparable injury; (3) harm to others from the grant or denial of the injunction; and (4) the public interest.  Judge Ambro noted that the test was that courts “should balance those four factors so long as the party seeking the injunction meets the threshold on the first two.”

Beginning in the 1990’s, however, “an inconsistent line of cases” appeared.  Those cases stated that the moving party’s “failure to establish any [of the four] element[s] in its favor renders a preliminary injunction inappropriate.”  But in the Third Circuit, Judge Ambro reminded us, “the holding of a panel in a precedential opinion is binding on subsequent panels.”  The “inconsistent line of cases” thus were not valid, since the prior cases had not been overruled and had to be followed.

Judge Ambro then addressed whether Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7 (2008), which 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,” overruled the Third Circuit’s balancing test.  He concluded that Winter did not do so.  That case itself called for a “balance of equities,” a subsequent Supreme Court case on stays pending appeal expressly said that once the likelihood of success and irreparable injury prongs are satisfied, the final two factors are considered (“the first two factors are the most critical,” the Supreme Court in that later case said), and other Circuit Courts of Appeal had agreed that Winter was to be read as today’s panel read it.

Accordingly, the proper test for preliminary injunctions in the Third Circuit focuses on the first two “most critical” factors.  To win a preliminary injunction, a party must show “that it can win on the merits (which requires a showing significantly better than negligible but not necessarily more likely than not) and that it is more likely than not to suffer irreparable harm in the absence of preliminary relief.”

Turning to the resolution of this particular appeal, Judge Ambro stated that the Third Circuit will “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.”  Though plaintiffs normally have the burden of showing “a sufficient likelihood of prevailing on the merits,” in First Amendment cases where the Government has the ultimate burden of proof of the constitutionality of an ordinance or other enactment, the burden regarding likelihood of success is properly on the Government, not the plaintiffs.  The District Court, however, mistakenly put the burden of proof on plaintiffs.  Accordingly, the matter was remanded for reconsideration of the injunction issue “in the clarified context” of the panel’s ruling today.

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