Reilly v. City of Harrisburg, 16-3722

Decision Date25 May 2017
Docket NumberNo. 16-3722,16-3722
Citation858 F.3d 173
Parties 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
CourtU.S. Court of Appeals — Third Circuit

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

Before: AMBRO, JORDAN, and ROTH, Circuit Judges


AMBRO, Circuit Judge

The case before us is a familiar one: a constitutional challenge to a city ordinance that Plaintiffs Colleen Reilly and 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.


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 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.


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).


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—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 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.

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, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). At first blush that...

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