                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 19a0279p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT



 D.T., a minor; B.K.T. and B.H.T., parents,               ┐
                                 Plaintiffs-Appellants,   │
                                                          │
                                                           >     No. 19-5070
        v.                                                │
                                                          │
                                                          │
 SUMNER COUNTY SCHOOLS; VENA STUART                       │
 ELEMENTARY SCHOOL,                                       │
                     Defendants-Appellees.                │
                                                          ┘

                          Appeal from the United States District Court
                       for the Middle District of Tennessee at Nashville.
                No. 3:18-cv-00388—William Lynn Campbell, Jr., District Judge.

                                   Argued: October 23, 2019

                             Decided and Filed: November 8, 2019

                Before: CLAY, THAPAR, and NALBANDIAN, Circuit Judges.

                                      _________________

                                           COUNSEL

ARGUED: Robert C. Thurston, THURSTON LAW OFFICES LLC, Cherry Hill, New Jersey,
for Appellants. Edmund S. Sauer, BRADLEY ARANT BOULT CUMMINGS, LLP, Nashville,
Tennessee, for Appellees. ON BRIEF: Robert C. Thurston, THURSTON LAW OFFICES
LLC, Cherry Hill, New Jersey, Michael F. Braun, Brentwood, Tennessee, for Appellants.
Edmund S. Sauer, E. Todd Presnell, Kristi W. Arth, Casey L. Miller, BRADLEY ARANT
BOULT CUMMINGS, LLP, Nashville, Tennessee, for Appellees.

         THAPAR, J., delivered the opinion of the court in which CLAY and NALBANDIAN,
JJ., joined. NALBANDIAN, J. (pp. 6–7), delivered a separate concurring opinion.
 No. 19-5070                    D.T., et al. v. Sumner Cty. Sch., et al.                   Page 2


                                       _________________

                                             OPINION
                                       _________________

       THAPAR, Circuit Judge. How and where to educate their children is one of the most
important decisions parents face. But the state also has an interest in how and where to educate
children. This case presents a conflict between those two interests. At this stage, we do not
determine who is right. The question before us is about timing. D.T.’s parents asked for
immediate relief but haven’t shown that their injury is imminent. Thus, the district court did not
abuse its discretion when it denied them a preliminary injunction. We affirm.

       D.T.’s parents were concerned that their son, who has autism, was not getting an
appropriate education in the Tennessee schools. So they removed him from public school and
placed him in a private therapy program, where he improved. But as a result, they were
convicted of truancy. D.T.’s parents faced an unwelcome choice: risk D.T. regressing at his old
school or risk further prosecution.

       They found a third option, at least temporarily. They enrolled D.T. in a state-approved
private school and a private therapy program. Yet they are unsure whether this will be the best
long-term arrangement for D.T., so they want the option of removing him from school again in
the future. Thus, they sued the school district and sought a preliminary injunction to keep the
state from charging them with truancy again. They argued they had the right to remove D.T.
from school because federal disability law preempts state educational requirements. The district
court has yet to decide whether it agrees.

       Rather, the district court found that D.T.’s parents had not yet suffered an immediate and
irreparable injury. That was reason enough to deny their request, so the district court did not
consider the other three preliminary injunction factors. D.T.’s parents argue that the court should
have considered those factors and granted the injunction.
 No. 19-5070                   D.T., et al. v. Sumner Cty. Sch., et al.                    Page 3


                                                 I.

       Four factors determine when a court should grant a preliminary injunction: (1) whether
the party moving for the injunction is facing immediate, irreparable harm, (2) the likelihood that
the movant will succeed on the merits, (3) the balance of the equities, and (4) the public interest.
Benisek v. Lamone, 138 S. Ct. 1942, 1943–44 (2018) (per curiam); 11A Charles Alan Wright et
al., Federal Practice and Procedure § 2948 (3d ed. 1995 & Supp. 2019).

       Courts sometimes describe this inquiry as a balancing test.             See, e.g., Certified
Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007); In
re Eagle-Picher Indus., Inc., 963 F.2d 855, 859 (6th Cir. 1992). And that’s true, to an extent;
district courts weigh the strength of the four factors against one another. But even the strongest
showing on the other three factors cannot “eliminate the irreparable harm requirement.”
Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100, 105 (6th Cir. 1982). That factor is
indispensable: If the plaintiff isn’t facing imminent and irreparable injury, there’s no need to
grant relief now as opposed to at the end of the lawsuit. See id. at 103; see also Wright et al.,
supra, § 2948.1 (Irreparable injury is “[p]erhaps the single most important prerequisite for the
issuance of a preliminary injunction[.]”). That’s why this circuit has held that a district court
abuses its discretion “when it grants a preliminary injunction without making specific findings of
irreparable injury[.]” Friendship Materials, 679 F.2d at 105. Thus, although the extent of an
injury may be balanced against other factors, the existence of an irreparable injury is mandatory.

                                                      II.

       We review the district court’s decision to deny the preliminary injunction for abuse of
discretion. NHL Players’ Ass’n v. Plymouth Whalers Hockey Club, 325 F.3d 712, 717 (6th Cir.
2003). In doing so, we consider both process and substance.

       First, process.   Was the district court wrong to stop the inquiry after finding no
irreparable injury? No. When one factor is dispositive, a district court need not consider the
others. Id. And, as discussed above, this factor is dispositive; a plaintiff must present the
existence of an irreparable injury to get a preliminary injunction. Friendship Materials, 679 F.2d
at 105. Thus, a district court is “well within its province” when it denies a preliminary injunction
 No. 19-5070                    D.T., et al. v. Sumner Cty. Sch., et al.                    Page 4


based solely on the lack of an irreparable injury. S. Milk Sales, Inc. v. Martin, 924 F.2d 98, 103
(6th Cir. 1991). No different here.

       Second, substance. Was the district court wrong to find that D.T.’s parents had not
shown irreparable injury? No. D.T.’s parents fear prosecution if they take their son out of
school again. (They also asserted a money damages injury below but wisely abandoned the point
on appeal, as money damages are not irreparable.) That hypothetical threat of prosecution is not
an “immediate,” “irreparable” injury that warrants the “extraordinary remedy” of a preliminary
injunction. Benisek, 138 S. Ct. at 1943; Mich. Coal. of Radioactive Material Users, Inc. v.
Griepentrog, 945 F.2d 150, 154 (6th Cir. 1991).

       To merit a preliminary injunction, an injury “must be both certain and immediate,” not
“speculative or theoretical.” See Griepentrog, 945 F.2d at 154. D.T.’s parents say they are
injured because: if D.T. regresses at his new private school, and if they choose to disenroll him,
and if they choose not to enroll him in another state-approved school, the state may choose to
prosecute them for truancy again. The district court said it well: “there’s a lot of ifs in there.”
R. 56, Pg. ID 494. And all those “ifs” rule out the “certain and immediate” harm needed for a
preliminary injunction. Griepentrog, 945 F.2d at 154.

       D.T.’s parents claim support from Kiser v. Reitz, 765 F.3d 601 (6th Cir. 2014), which
held that the plaintiff’s showing of a credible threat of future prosecution sufficiently established
injury in fact, id. at 609–10. But Kiser was a standing case, not a preliminary-injunction case,
and there were no “ifs” about whether that plaintiff would take the steps needed to expose
himself to prosecution. See id. at 609. The plaintiffs here cannot say the same.

       Finally, D.T.’s parents argue that they are likely to succeed on the merits. That may be
so. But at this early stage, it would not change things. “[A] preliminary injunction does not
follow as a matter of course from a plaintiff’s showing of a likelihood of success on the merits.”
Benisek, 138 S. Ct. at 1943–44. “Rather, a court must also consider whether the movant has
shown ‘that he is likely to suffer irreparable harm in the absence of preliminary relief. . . .’” Id.
at 1944. D.T’s parents have not made that showing, so the district court rightly left the merits of
 No. 19-5070                    D.T., et al. v. Sumner Cty. Sch., et al.                     Page 5


their claims for another day. If they are right on the merits of their claims, the courts will be here
to grant relief.

        We affirm.
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                                       _________________

                                        CONCURRENCE
                                       _________________

       NALBANDIAN, Circuit Judge, concurring. I concur in the majority’s opinion in full.
I write separately only to point out some confusion in the law that governs preliminary
injunctions in our circuit. We have traditionally described our preliminary injunction test as a
“balancing test” where the relative strength of some factors can make up for a lack of strength in
others. Nat’l Viatical, Inc. v. Universal Settlements Int’l, Inc., 716 F.3d 952, 955 (6th Cir. 2013);
see also In re Eagle-Picher Indus., Inc., 963 F.2d 855, 859 (6th Cir. 1992). And we have
continued to do so.

       To the extent, however, that our approach implies that a complete lack of a showing on
one factor (especially irreparable harm or likelihood of success on the merits) could be justified
by a showing on the other factors, I believe that we may be in tension with the Supreme Court.
See, e.g., S. Galzer’s Distribs. of Ohio, LLC v. Great Lakes Brewing Co., 860 F.3d 844, 849 (6th
Cir. 2017) (“[T]hese are factors to be balanced, not prerequisites to be met.”); National Viatical,
716 F.3d at 956 (“These . . . are factors to be balanced and not prerequisites that must be
satisfied.” (cleaned up)); United Food & Commercial Workers Union, Local 1099 v. Sw. Ohio
Reg’l Transit Auth., 163 F.3d 341, 347 (6th Cir. 1998) (“These factors are not prerequisites to
issuing an injunction but factors to be balanced.”).

       In Winter v. Natural Resources Defense Council, Inc., the Supreme Court outlined the
familiar four-part test for obtaining preliminary injunction relief:        “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.” 555 U.S. 7, 20 (2008) (emphasis added).
The Court’s language seems clear—a plaintiff must establish the factors. See Davis v. Pension
Benefit Guar. Corp., 571 F.3d 1288, 1295–96 (D.C. Cir. 2009) (Kavanaugh, J., concurring)
(questioning how Winter affects the D.C. Circuit’s sliding-scale test and noting that “[i]t appears
that a party moving for a preliminary injunction must meet four independent requirements”).
 No. 19-5070                   D.T., et al. v. Sumner Cty. Sch., et al.                   Page 7


        According to several commentators, Winter prompted a circuit split, as our sister circuits
reconsidered their old tests. Some circuits have continued to follow balancing or sliding-scale
tests while others treat the factors as strict requirements.       See Bethany M. Bates, Note,
Reconciliation After Winter: The Standard for Preliminary Injunctions in Federal Courts,
111 Colum. L. Rev. 1522, 1538–45 (2011) (noting that the Fourth Circuit found Winter to
require a showing of all four factors, while the Second, Seventh, and Ninth Circuits found Winter
still permitted each circuit’s sliding-scale analysis); Rachel A. Weisshaar, Note, Hazy Shades of
Winter: Resolving the Circuit Split over Preliminary Injunctions, 65 Vand. L. Rev. 1011, 1032–
46 (2012) (same but noting an intracircuit split in the Ninth Circuit); M. Devon Moore, Note,
The Preliminary Injunction Standard: Understanding the Public Interest Factor, 117 Mich. L.
Rev. 939, 946–47 (2019) (noting that the Third Circuit allows establishing two factors and then a
balancing of all factors together). Meanwhile, we have continued to cite our old balancing
analysis, though as far as I can tell, no panel has ever explicitly discussed whether Winter
affected our test.

        Regardless, I do not believe that this issue impacts this case. If we know one thing from
Winter, it’s that a plaintiff must establish irreparable injury. The entire controversy in Winter
was whether the plaintiff needed to demonstrate a likelihood of irreparable injury as opposed to
the Ninth Circuit’s then-prevailing standard requiring a “possibility” of irreparable injury. See
Winter, 555 U.S. at 21–22. There was, of course, no suggestion from the Supreme Court that the
irreparable injury requirement could be balanced away (something that would make little sense
in the world of extraordinary equitable remedies).

        And as we point out in the majority opinion, once the plaintiff establishes that injury,
courts can balance the extent of that injury against the other factors consistent with our
prevailing caselaw. I only question whether the balancing analysis itself aligns with Winter.
