                                       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
   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




                                2
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.




                               3
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).




                               4
                       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—




                                5
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).




                               6
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.




                               7
       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 balancing-
of-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




                               8
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




                               9
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 post-
Winter 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.




                               10
        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 more-
likely-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).




                              11
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,




                               12
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.




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