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Confusion over Preliminary Injunction Standard Clarified, But Not Settled

Kelso Lorne St. Jacques Anderson


  • Third Circuit reasons only two of four elements are dispositive.
  • They must consider the probability of success and irreparable injury elements.
Confusion over Preliminary Injunction Standard Clarified, But Not Settled
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A district court considering an interlocutory motion for preliminary injunction need not consider all four traditional elements to conclude that a movant has satisfied the standard.

Instead, a trial court must consider two of the four elements—the probability of success and irreparable injury elements. While some ABA Section of Litigation leaders believe the Reilly v. City of Harrisburg holding is narrow and limited to First Amendment cases, others say that, because federal courts are divided, the decision should prompt practitioners to be mindful of the specific standard in their jurisdiction.

District Court Denies Relief Because Plaintiff Unlikely to Succeed

In Reilly v. City of Harrisburg, the U.S. Court of Appeals for the Third Circuit was tasked with determining whether a district court properly applied the preliminary injunction standard when it denied the plaintiffs’ request for the same. The plaintiffs were persons purporting to provide “sidewalk counseling” to women entering a nearby abortion clinic in Harrisburg, Pennsylvania. The city of Harrisburg enacted an ordinance that prohibited persons from congregating or demonstrating within a certain distance of a health care facility; the ordinance purported to be content neutral by applying to all persons regardless of the intent of their conduct or the content of their speech.

The plaintiffs moved the United States District Court for the Middle District of Pennsylvania to issue a preliminary injunction to prevent enforcement of the ordinance, arguing that the law created “unconstitutional buffer zones” and violated their First Amendment due process and equal protection rights. The district court concluded, however, that the plaintiffs did not bear their burden of proof by demonstrating their likelihood of success on the merits and for that reason alone, it denied the plaintiffs’ motion seeking injunctive relief.

Traditional Preliminary Injunction Standard Clarified

In an interlocutory appeal to the Third Circuit, the plaintiffs sought to have the district court ruling reversed. Quoting Delaware River Port Authority v. Transamerican Trailer Transport, Inc., the court set forth the standard for obtaining a preliminary injunction in the jurisdiction, including “reasonable probability of success on the merits” and “irreparable injury” to the movant if the relief is not granted. The court also stated that a district court may, “when they are relevant,” consider the “possibility of harm to other interested persons from the grant or denial of the injunction” and the “public interest.” 

Acknowledging that cases within the circuit wrongly applied Transamerican Trailer as requiring all four elements discussed above, the Reilly court concluded that only likelihood of success on the merits and irreparable harm are the “most critical factors” to be satisfied before a court may grant a preliminary injunction. Assuming the critical factors are met, a court may then balance the possibility of harm to others and the public interest to determine whether the equities favor granting the injunctive relief. The Reilly court also concluded that the U.S. Supreme Court in Winter v. Natural Resources Defense Council Inc., and decisions from other circuit courts lend support to their reading of the preliminary injunction standard.

Mixed Review on Whether Reilly Consistent with Precedent

Noting that a plaintiff generally bears the burden of proof of showing a likelihood of success on the merits, the Third Circuit concluded that, in First Amendment cases, the government bears the burden of proof as to a statute’s constitutionality. Since the district court here placed the burden on the plaintiffs, the court reversed the district court’s ruling.  

“The case appears to be consistent with what the U.S. Supreme Court and the circuit courts have held in that prior restraint on speech or expression must be tailored narrowly,” says Kenneth M. Klemm, New Orleans, LA, cochair of the ABA Section of Litigation’s Pretrial Practice and Discovery Committee. While Klemm thinks the Reilly court properly read Winter,he believes a narrow interpretation of Reilly is appropriate. “This case appears to be applicable only to First Amendment or similar cases where the actions of a governmental entity result in some form of prior restraint,” he says.

Several other ABA Section of Litigation leaders caution that the Reilly court misread Winter and the decision should inspire practitioners to ensure their familiarity with the preliminary injunction standard in their specific jurisdiction. “The Supreme Court was clear in Winter when it stated ‘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,’” emphasized Jeffrey D. Gardner, Phoenix, AZ, cochair of the Section of Litigation’s Trial Practice Committee.

Indeed, despite dicta in Winter that the lower court failed to properly consider all four elements of the test for injunctive relief, the Reilly court endeavored to “explain away the clear wording of the Winter decision, and to relegate ‘balance of the equities’ and ‘public interest’ to being secondary considerations in deciding a request for a preliminary injunction,” implores Douglas L. McCoy, Mobile, AL, cochair of the Section of Litigation’s Trial Practice Committee.

Despite the Reilly court’s ruling, McCoy thinks the standard for injunctive relief remains unsettled—even in the Third Circuit—and implores that, “wise practitioners seeking injunctive relief in the Third Circuit and elsewhere should be prepared to present proof and argument that the injunctive relief they seek is justified.”