author: JORDAN, Circuit Judge.

text:
    Jamal Justin FAHIE, Petitioner v. People of the VIRGIN ISLANDS
    No. 15-2721
    United States Court of Appeals, Third Circuit.
    Argued December 12, 2016
    (Filed May 24, 2017)

      David J. Cattie [ARGUED], 2329 Commandant Gade—Unit #3, St. Thomas, VI 00802, Counsel for Petitioner
    Kimberly L. Salisbury, Pamela R. Tep-per, Su-Layne U. Walker [ARGUED], Office of Attorney General of Virgin Islands, Department of Justice, 34-38 Kronprinde-sens Gade, GERS Complex—2nd FI. St., Thomas, VI 00802, Counsel for Respondent
    Edward L. Barry [ARGUED], 2120 Company Street, Christiansted, VI 00820, Christopher A. Brookhart, Estrella, 150 Tetuan Street, San Juan, PR 00901, Counsel for Amicus Curiae
    Before: CHAGARES, JORDAN and HARDIMAN, Circuit Judges
   OPINION OF THE COURT

JORDAN, Circuit Judge.

This case comes to us on a writ of certiorari to the Virgin Islands Supreme Court. Kamaal Francis was identified by an eyewitness as the triggerman in the fatal shooting of Omari Baltimore on St. Thomas. Francis protested his innocence but admitted that he was present during the shooting and claimed that Jamal Justin Fahie wielded the weapon. Both Fahie and Francis were later charged with the murder and related crimes. Francis worked out a plea deal with the government. In exchange for reduced charges, he agreed to testify against Fahie, which he did, swearing that Fahie was the sole shooter. The jury found Fahie guilty as charged. After an unsuccessful appeal to the V.I. Supreme Court, Fahie petitioned us for a writ of certiorari.

We granted the petition and accepted the following two questions: (1) whether the V.I. Supreme Court erred in ruling that it was appropriate for the trial court to give an “aiding and abetting” instruction under the circumstances of this case; and (2) whether the V.I. Supreme Court used the correct standard to assess whether another supposed error in the jury instructions was harmless. In addition to the briefing provided by the parties, the Virgin Islands Bar Association has filed an ami-cus brief challenging our jurisdiction to consider this matter at all. For the reasons that follow, we conclude that we do have jurisdiction, that the ruling on the “aiding and abetting” instruction was proper, and that we improvidently granted certiorari on the harmless error question.

I. Background

A. Factual Background

“On November 19, 2011 ... Omari Baltimore was shot 19 times while walking up Bunker Hill ... on St. Thomas.” Fahie v. People, 62 V.I. 625, 628 (2015). Carol Kelly, a resident of a nearby neighborhood, witnessed the murder. Id. She called 911 to report the crime and, later that day, identified Kamaal Francis as the killer from a police photo array. Id. “The police arrested Francis the following day and charged him with first-degree murder and several other crimes.” Id. At first, Francis lied about his location and his involvement in the murder. Id. “However, [he] later recanted ... and informed the police that he was at the scene of the shooting but that it was Jamal Fahie who shot Baltimore.” Id. Francis explained that Fahie was motivated by gang-related animosity. Id. He also “gave a detailed description of how Fahie committed Baltimore’s murder as well as a description of what clothing Fahie was wearing at the time of the murder[.]” Id. at 629. Among other details, Francis noted that Fahie used a Glock firearm to commit the crime. Id. A subsequent ballistics analysis confirmed that a Glock was the murder weapon. “Police authorities later found [the clothing that Francis had described] secreted in Fahie’s residence.” Id. The clothes tested positive for gunpowder residue. Id.

B. Procedural Background

Based on Francis’s statement, “the government filed a multi-count Information against ... Fahie and ... Francis[.]” (Opening Br. at 3.) Both men were charged with first degree murder, second degree murder, first degree assault, and three counts involving the unauthorized use of a firearm. Francis later agreed to plead guilty to the charges of accessory after the fact and misprision of a felony, to cooperate with the government, and to testify against Fahie at trial. In exchange, the government agreed to drop the other charges against Francis and to recommend a sentence of five to ten years imprisonment for the accessory charge and three years’ for the misprision charge.

Francis kept his end of the bargain. He testified at trial that he and Fahie were together on the evening of the shooting and that they saw Baltimore walking towards the top of Bunker Hill. Francis said that he and Fahie got a ride to the top of the hill from Karl Webbe, one of Francis’s friends, and that, during the ride, Fahie said “I’m gonna deal with this guy ... [I’m gonna] kill him.” (JA at 415.) At the high point of the road, Fahie got out of the car and ran up a flight of stairs to reach Baltimore, with Francis following. Francis described what happened next:

When we got to the top of the stairs Mr. Fahie then takes a black mask out of his pocket ... [and] took an extended [ammunition] clip out of his right back pocket.... So, Mr. Fahie then puts his mask over his face and loads his clip, and he looks up, sees Baltimore and he sho[o]ts him.... I was right behind him.

(JA at 417-18.) After the shooting, Francis said that they ran down the stairs and were driven away by Webbe.

At trial, in addition to presenting Francis’s account of events and arguing that Fahie was the sole shooter, the government presented forensic experts who testified that Baltimore was shot nineteen times, that he died of his gunshot wounds, that each of the bullets was fired from the same gun, and that the gun involved in the shooting was manufactured by Glock.

Following the government’s presentation of its case, Fahie invoked Federal Rule of Criminal Procedure 29 and moved for a judgment of acquittal on all counts, arguing that the government failed to present sufficient evidence on any count. He emphasized that the government had not presented any evidence to support an aiding and abetting charge of liability. The government opposed the Rule 29 motion but agreed to strike the aiding and abetting theory from the Information. Fahie’s motion was held under advisement and subsequently denied.

Relying on the testimony of Carol Kelly, Fahie mounted a defense which was, basically, that Francis committed the murder. Kelly testified that she was walking up Bunker Hill when Francis passed her from behind. She indicated that the shooting started about two minutes after Francis had passed her, and that she saw Francis fire at least some of the shots. Kelly further recounted that she called 911 after the shooting and identified Francis from a photo lineup.

After Fahie presented his case, the government advanced the Fifth Amended Information, which reincorporated the aiding and abetting theory of liability. The amendment was evidently motivated by Kelly’s testimony. Over Fahie’s objection, the trial court allowed the amendment and instructed the jury on aiding and abetting as a theory of guilt. The court also gave an anti-CSI instruction. An “anti-CSI” instruction states, in essence, that the government is not required to “employ any specific investigation technique [such as fingerprint analysis or DNA testing] or. all possible investigative techniques to prove [its] case.” (JA at 127.) The name by which such instructions are known is a reference to the popular television series “CSI” and its spinoffs, which feature crime scene investigators using sophisticated forensic techniques to solve crimes. The anti-CSI instruction in this case told the jury that the government was “not required to gather or produce any specific type of evidence so long as [it] presented] sufficient evidence to convince [the members] beyond a reasonable doubt of [Fahie’s] guilt.” (JA at 895-96.) Fahie was found guilty on all counts.

On appeal to the V.I. Supreme Court, Fahie challenged the trial court’s decision to, inter alia, include the aiding and abetting instruction and the anti-CSI instruction. Fahie, 62 V.I. at 629-30. Both challenges were rejected. With respect to the aiding and abetting instruction, the V.I. Supreme Court concluded that there was sufficient evidence to support a theory of aiding and abetting liability and that Fahie had been given adequate notice of the theory. Id. at 633-35. With respect to the anti-CSI instruction, it agreed that the trial court should not have included the instruction but concluded that the error was harmless. Id. at 638.

After the V.I. Supreme Court ruled against him, Fahie sought a writ of certiorari from us and we granted his petition, specifically as to the questions relating to the “aiding and abetting” and “anti-CSI” instructions. (JA at 1-2.)

II. Discussion

A. Jurisdiction

The V.I. Supreme Court had jurisdiction under 4 V.I.C. § 32(a). Fahie, 62 V.I. at 629. Neither party contests our jurisdiction, but, in the role of amicus, the Virgin Islands Bar Association does, and, in any event, we have an obligation to consider it sua sponte. Ins. Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982) (“[A] court, including an appellate court, will raise lack of subject-matter jurisdiction on its own motion.”).

Under the Revised Organic Act of 1984, we had, for a limited time, certiorari jurisdiction over “all final decisions of the highest court of the Virgin Islands from which a decision could be had.” 48 U.S.C. § 1613 (1984 version) (amending the Revised Organic Act of the Virgin Islands). That grant of jurisdiction, however, was designed to terminate when the V.I. Supreme Court “developed sufficient institutional traditions to justify direct review by the Supreme Court of the United States from all such final decisions.” Pichardo v. V.I. Comm’r of Labor, 613 F.3d 87, 94 (3d Cir. 2010) (quoting 48 U.S.C. § 1613 (1984 version)).

On December 28, 2012, the President of the United States signed into law the bill that became the current version of 48 U.S.C. § 1613, which provides formal recognition of the V.I. Supreme Court’s institutionally mature status and began the phasing out of our certiorari jurisdiction. 48 U.S.C. § 1613 (2012 version) (amending the Revised Organic Act of the Virgin Islands). Section 1613 revokes our certio-rari jurisdiction over all cases “commenced on or after” December 28, 2012. 28 U.S.C. § 1260 note (2012) (“The amendments made by this Act [amending § 1613] apply to cases commenced on or after the date of the enactment of this Act”).

The dispute over our jurisdiction in this case centers on the meaning of the words “commenced on[.]” Id. The operative question is whether § 1613 revokes jurisdiction over cases commenced in the Superior Court on or after December 28, 2012, or whether the law only revokes jurisdiction over cases that have commenced in our Court (through a petition for writ of certiorari) on or after that date. The Bar Association, expressing a desire to reduce the backlog of cases in the Virgin Islands court system, supports the latter interpretation. The choice of interpretation is relevant here because the case against Fahie commenced in the Superior Court in November 2011, but was not the subject of a petition to us until 2016.

This is not the first time we have been asked to construe § 1613. In North America Seafarers International Union ex rel. Bason v. Government of the Virgin Islands (“Bason”), we adopted the first of the two interpretations described above and expressly held that the statute eliminates jurisdiction over all cases commenced in the Superior Court after December 28, 2012. 767 F.3d 193, 205-06 (3d Cir. 2014). In that case, the original plaintiff, Bason, died during the pendency of an appeal for reinstatement to a previous employment position. Id. at 195-200. We eventually dismissed the case on mootness grounds, id. at 211, but we did so only after deciding the threshold jurisdictional question concerning § 1613, saying, “we conclude that we still possess certiorari jurisdiction over proceedings tjiat were filed in the Virgin Islands courts before [§ 1613’s] enactment date[.]” Id. at 201. We also said our decision was “[biased on the language of the statute, analogous legislation, and prior case law[.]” Id. at 206.

The Bar Association disagrees with Ba-son and argues that our analysis relating to jurisdiction “contravened the jurisprudence of the Supreme Court ... and the uncontradicted legislative history [of § 1613.]” (Br. of Amicus Curiae at 2.) It also asserts that the jurisdictional analysis in Bason is non-binding because the “unequivocal determination that the matter was moot by reason of Bason’s intervening death renders the remainder of the Bason decision dicta.” (Id. at 4.) On those grounds, the Bar Association urges that we “overturn Bason[,]” and it says that we have “the complete freedom” to do so without requiring en banc review. (Id. at 3.)

No matter how we might now view Ba-son, however, the Bar Association is mistaken about our “complete freedom[.]” (Id.) We deliberately chose to assess the jurisdictional question as a threshold issue in Bason, recognizing that, “while threshold jurisdictional issues must ordinarily be decided before turning to the merits, ‘there is no mandatory sequencing of jurisdictional issues.’ ” 767 F.3d at 202 n.3 (quoting Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 431, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) (further quotations omitted)). Then after extensive analysis, we concluded that the words “cases commenced” were a reference “to the filing of a complaint in the Virgin Islands Superior Court.” Id. at 206 (quotation and alteration omitted). That ruling was not merely non-binding dicta, and it remains the law in our Circuit. Thus, while we are grateful for the interest and assistance of the Bar Association, we cannot accept its argument. According to Ba-son, we have jurisdiction over Fahie’s claims.

B. Inclusion of the “Aiding and Abetting” Instruction

Fahie objects to the inclusion of the “aiding and abetting” instruction, not to its content, so we are not asked to review the legal accuracy of the instruction, which would call for de novo review. Gov’t of V.I. v. Isaac, 50 F.3d 1175, 1180 (3d Cir. 1995) (“[W]here ... the question is whether the jury instructions failed to state the proper legal standard, this court’s review is plenary.”). Instead, we review for abuse of discretion the trial court’s decision to include the instruction at all. Cf. id. (“Generally,, we review the district court’s refusal to give certain jury instructions on an abuse of discretion basis.”); see also United States v. Moreno, 727 F.3d 255, 261 (3d Cir. 2013) (“[I]n the absence of a misstatement [within the jury instructions] we review for abuse of discretion.” (quotation omitted)).

“When jury instructions are challenged, ‘we consider the totality of the instructions and not a particular sentence or paragraph in isolation.’ ” United States v. Thayer, 201 F.3d 214, 221 (3d Cir. 1999) (quoting United States v. Coyle, 63 F.3d 1239, 1245 (3d Cir. 1995)), abrogated on other grounds by Skilling v. United States, 561 U.S. 358, 130 S.Ct. 2896, 177 L.Ed.2d 619 (2010). “The issue is “whether, viewed in light of the evidence, the charge as a whole fairly and adequately submits the issues in the case to the jury.’ ” Id. (quoting United States v. Zehrbach, 47 F.3d 1252, 1264 (3d Cir. 1995)).

Fahie advances two challenges to the “aiding and abetting” instruction. First, he argues that it was erroneous because it was given “despite the fact that the government never presented [an aiding and abetting] theory at trial.” (Opening Br. at 14.) Second, he argues that the instruction is problematic because Francis pled guilty to being an accessory after the fact, effectively eliminating the possibility of Francis being a principal for Fahie to “aid or abet” in the shooting. (Id. at 14, 16-19); see also Gov’t of V.I. v. Aquino, 378 F.2d 540, 553 (3d Cir. 1967) (“By definition, an accessory after the fact is one who stands outside the commission of the substantive crime, for his offense consists of what he does, after he knows it has been committed, to aid the offender to avoid apprehension or punishment.”). We address those arguments in turn.

Fahie says that the instruction was erroneous because it was included even though the government did not present an aiding and abetting theory. But the record demonstrates that the government did, in fact, present an aiding and abetting theory to the jury. In its closing statement, the government discussed Kelly’s testimony and drew the jury’s attention to the portions of her statement that refer to two shooters. (See JA at 873-74, 876.) The government laid the groundwork for that argument when it questioned Kelly. (JA at 744, 751.) The record thus shows that the government indeed did contend that Fahie was, at the very least, involved in the shooting as an aider and abettor, and there was sufficient evidence to support an instruction to the jury to that effect.

That the government did not use the phrase “aiding and abetting” when talking to the jury does not mean the judge was precluded from including the instruction. See United States v. Gordon, 812 F.2d 965, 969 (5th Cir. 1987) (“The words ‘aid and abet’ need not appear in the indictment in order to sustain a conviction as an aider and abettor ... ‘[O]ne who has been indicted as a principal may be convicted on evidence showing that he has merely aided and abetted the commission of the offense.’ ”) (quoting United States v. Vines, 580 F.2d 850, 853 (5th Cir. 1978), cert. denied, 439 U.S. 991, 99 S.Ct. 591, 58 L.Ed.2d 665 (1978)). The government communicated its intent to argue the aiding and abetting theory when it amended the Information to include aiding and abetting as a basis for criminal liability and when it requested that the judge add an aiding and abetting instruction to the jury charge. Fahie was thus on notice that the government was indeed relying on that theory.

The second argument Fahie advances is that the instruction is problematic because “legally, there was no one for Fahie to ‘aid and abet’ ” since Francis was, by virtue of his plea agreement, an accessory after the fact, which precluded any consideration of him as a participant in the shooting. (Opening Br. at 14, 19.) Essentially, Fahie argues that Francis’s plea to being an accessory after the fact confined the government’s proof at Fahie’s trial. By Fahie’s lights, since an accessory after the fact “[b]y definition ... is one who stands outside the commission of the substantive crime ... [,]” Aquino, 378 F.2d at 553; see also 14 V.I.C. § 12(a) (defining accessory after the fact as having the same mens rea requirement under Virgin Islands law), Francis could not be a participant in the shooting and there was no one for Fahie to aid and abet in the murder.

That argument has a certain superficial appeal but is flawed. It rests on an improper understanding of judicial estoppel. The fact that the government negotiates a plea does not mean that the government is required to treat all aspects of that plea as binding in future prosecutions. Such a requirement could unnecessarily tie the hands of prosecutors who gain a greater understanding of the facts over time, and it could yield unfair windfalls for later defendants. “Judicial estoppel is only appropriate when the inconsistent positions are tantamount to a knowing misrepresentation to or even fraud on the court.” Krystal Cadillac-Oldsmobile GMC Truck, Inc. v. Gen. Motors Corp., 337 F.3d 314, 324 (3d Cir. 2003) (internal quotations omitted). The government’s position here does not amount to anything of the kind.

Two analogous cases are persuasive in this regard. In Standefer v. United States, the Supreme Court upheld an aiding and abetting conviction under 18 U.S.C. § 2, despite the principal defendant’s having been acquitted of the offense. 447 U.S. 10, 11-14, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980). The Court concluded that, “[under § 2] ... all participants in conduct violating a federal criminal statute are ‘principals[,]’ [and] [a]s such, they are punishable for their criminal conduct; the fate of other participants is irrelevant.” Id. at 20, 100 S.Ct. 1999. Later, in Smith v. State, the Indiana Supreme Court rejected a defendant’s argument that judicial estoppel barred the government “from seeking an instruction on accomplice liability because it agreed to a guilty plea from another defendant on a theory of the facts that was allegedly inconsistent with Smith’s being an accomplice to the killing.” 765 N.E.2d 578, 581 (Ind. 2002). The court said, “[w]e do not believe the acceptance of a plea bargain from [the other defendant] on one theory of the case and the prosecution of Smith in a separate action on an alternate theory can be construed as ‘playing fast and loose’ with the courts.” Id. at 584; see also In re J.W.S., 250 Kan. 65, 825 P.2d 125, 128 (1992) (rejecting the argument that “once the prosecution permits one of two codefendants to plead guilty to aiding and abetting, then it is locked into proving the second defendant is the principal.”). At least on the facts here, we agree with that reasoning.

We therefore reject Fahie’s argument that judicial estoppel is applicable to bar the aiding and abetting theory in this case. There is enough evidence in the record to show that a theory of aiding and abetting was, in fact, presented at trial, and we discern no abuse of discretion in the trial court’s decision to give an aiding and abetting instruction.

C. The Anti-CSI Instruction

The second question on which we granted certiorari concerns the use of an anti-CSI instruction and whether the V.I. Supreme Court applied the correct “harmless error” standard after finding the instruction was erroneous. On further consideration, we believe that the writ was, in that regard, improvidently granted. Because the propriety of an anti-CSI instruction is fundamentally a matter of Virgin Islands law, and not a matter of federal concern, we will vacate the writ of certio-rari as it pertains to that question.

Our review of the briefing, record, and oral argument convinces us that the V.I. Supreme Court’s determination that the anti-CSI instruction was error is a point of territorial law on evidence. The parties themselves agree on that, and they appear to be right, since the language of the V.I. Supreme Court’s decision focuses on Virgin Islands precedent rather than constitutional principles. Fahie, 62 V.I. at 636 (“Although we have not previously addressed the validity of an instruction informing the jury that the People [were] not required to produce specific scientific evidence, this Court has noted that when the trial court comments on the evidence, or the absence of evidence, it risks invading the exclusive province of the jury to decide what conclusions should be drawn from evidence admitted at trial.”) (citations omitted).

In addition, a review of the factors provided in our local rules to guide our discretion in granting certiorari suggests that certiorari on this question is better withheld. 3d Cir. L.A.R. 112.1 (2011). Specifically, those factors are:

(1) The Supreme Court of the Virgin Islands has decided a question in a way that conflicts with applicable decisions of this court, other appellate courts, or the United States Supreme Court. (2) The Supreme Court of the Virgin Islands has so far departed from the accepted and usual course of judicial proceedings, or so far sanctioned such a departure by a lower court, as to call for an exercise of this court’s powers of review. (3) The Supreme Court of the Virgin Islands has decided an important question of federal or territorial law that has not been, but should be, decided by this court. (4) The Supreme Court of the Virgin Islands was without jurisdiction of the case, or where, because of disqualifications or other reason, the decision of the Supreme Court of the Virgin Islands lacks the concurrence of the required majority of qualified non-recused judges.

Id. None of those factors appear to be applicable to the V.I. Supreme Court’s ruling on this issue.

“Examination of a case ... on oral argument, may bring into ‘proper focus’ a consideration which, though present in the record at the time of granting the writ, only later indicates that the grant was improvident.” The Monrosa v. Carbon Black Exp., Inc., 359 U.S. 180, 184, 79 S.Ct. 710, 8 L.Ed.2d 723 (1959). That is the circumstance we are in. “Now that plenary consideration has shed more light on this case than in the nature of things was afforded at the time the petition for certiorari was considered,” Belcher v. Stengel, 429 U.S. 118, 119-20, 97 S.Ct. 514, 50 L.Ed.2d 269 (1976) (citing Monrosa, 359 U.S. at 183-84, 79 S.Ct. 710), we have concluded that the writ should be vacated as improvidently granted to the extent it dealt with the anti-CSI instruction.

III. Conclusion

For the foregoing reasons, we have jurisdiction; we will affirm the ruling on the aiding and abetting instruction; and we will vacate as improvidently granted the writ of certiorari as it pertains to the anti-CSI instruction.

      . "Glock” is the tradename of the Austrian firearm manufacturer Glock Ges.m.b.H. Glock Gesellschaft m.b.H.: Company Information, D&B Hoovers (Apr. 19, 2017, 11:00 AM), http://www.hoovers.com/company-information/cs/company-profile.glock_ gesellschaft_mbh.85a9bff64e0c59c3.html.

      . An indictment is not required to level felony charges in the Virgin Islands. "[T]he right of presentment by grand jury is merely a remedial right which is not among the fundamental rights which Congress in legislating for a territory not incorporated into the United States, such as the Virgin Islands, must secure to its inhabitants.... [U]ntil Congress shall extend rights of this character to the inhabitants of [the] territory, the judicial system prevailing in such territory—not the system contemplated by the Constitution—is applicable and controlling.” Rivera v. Gov’t of V.I., 375 F.2d 988, 991 (3d Cir. 1967) (internal quotations omitted). Thus, "[defendants] may be prosecuted by information unless a local law requires [they] be prosecuted by grand jury.” Simmonds v. People, 59 V.I. 480, 490 (2013) (quoting Codrington v. People, 57 V.I. 176, 196 (2012)).

      . While "aiding and abetting” was not expressly charged as a separate count, the theory was included within the language of each of the charged counts. The language was stricken in the Fourth Amended Information, but was subsequently added back into the Fifth Amended Information, as will be discussed in more detail hereafter.

      . While Kelly did not see a second shooter, much of her testimony suggests that two people were involved in the shooting:
      "Q: Was the person who was doing the shooting the same person who had passed you on the hill? A: Initially, no. He was the one who fired the last four shots.” (JA at 732);
      "Q: Okay. And when you looked up from there tell the jury what you saw? A: The gentleman who had pass[ed] me on the road was approaching a second person who had his arm extended and pointing across the road. Mr. Francis took one more step and then turned. The gunshots were continuing and there was a slight pause, and then Mr. Francis had the gun and walked across the road and shot four times into the body. Q: Did you ever see more than one firearm? A: No.” (JA at 740);
      “Q: Okay. So you had heard shots, at this point in time [Francis] wasn’t shooting, you saw an arm extended and heard shots; is that correct? A: Correct.” (JA at 744);
      "They stood over him and shot him four times.” (911 Call of Carol Kelly at 4:18-4:28 (Lexar zipdrive, Aug. 2012)).

      . Under the 1984 Act, "a dual system of local and federal judicial review in the Virgin Islands” was implemented, Parrott v. Gov’t of V.I., 230 F.3d 615, 619 (3d Cir. 2000), in which " 'the judicial power of the Virgin Islands’ [vested] in a ‘District Court of the Virgin Islands established by Congress, and in such appellate court and lower local courts as may have been or may hereafter be established by local law.' ” Pichardo v. V.I. Comm’r of Labor, 613 F.3d 87, 93 (3d Cir. 2010) (quoting 48 U.S.C. § 1611(a)).
      Within that system, the Superior Court of the Virgin Islands holds concurrent original jurisdiction with the District Court in all criminal actions. 4 V.I.C. § 76(b). When the V.I. Supreme Court was established in 2004, cases from the Superior Court became ap-pealable directly to it, as "the supreme judicial power of the Territory.” Pichardo, 613 F.3d at 94 (quoting 4 V.I.C. § 21). We were given certiorari jurisdiction over the V.I. Supreme Court’s final decisions under 48 U.S.C. § 1613. Id. at 94 (internal quotations omitted).

      . The Bar Association argues that, if the first interpretation is adopted, our certiorari jurisdiction "will extend ... over Virgin Islands cases indefinitely” (Br. of Amicus Curiae at 19), because of significant delays in the Superior Court, where there are currently 6,000 pending cases, each taking on average 10 years for adjudication. That result, says the Bar Association, would be "absurd ... given that the stated purpose of [the amendment to § 1613] ... was to end such oversight immediately upon its passage.” (Id. at 19.)

      . The Bar Association acknowledges that reasoning, but argues that “[t]hat principle has no application ... when subject matter jurisdiction is absent.” (Br. of Amicus Curiae at 8.) Essentially, it is arguing that we treat mootness as a threshold threshold question, or that there is a threshold hierarchy, but it fails to substantiate that argument with any case law and we are unpersuaded.

      . Even if we were to agree that Bason was wrongly decided, we are not at liberty to overturn the holding without en banc review because it is not dicta. Mariana v. Fisher, 338 F.3d 189, 201 (3d Cir. 2003). We have already denied such a petition previously. Sur Petition for Rehearing, North America Seafarers Int’l Union ex rel. Bason v. Gov't of the V.I., 767 F.3d 193 (3d Cir. 2014) (No. 13-1247) (Sept. 30, 2014).

      .The government seems to agree that it did not pursue the theory. (See Answering Br. at 8 ("The record indicates that the Information was revised prior to jury deliberations, which reflects the People's decision not to pursue an aiding and abetting charge.”) (citing JA at 52-54).) But we take that as an admission that it did not pursue the theory in its case-in-chief. It did in fact present the theory following Kelly’s testimony.

      . JA at 873-74 ("Listen to her reference of ‘they’ during the course of that 9-1-1 call.... [S]he saw an arm extended and heard shots firing at the same time from the very stairwell where Kamaal Francis said Jamal Fahie was.”); JA at 876 (“[W]hat we heard from Carol Kelly was consistent with what you heard from Mr. Francis[.]”).

      . JA at 744 ("Q: And you looked up, was the arm that you saw extended [shooting], was it extended at that point in time? A: Yes. Q: And at that point in time did you see where Mr. Francis went? A: He was still approaching the corner of the building. Q: Okay. And that’s before, as you testified, you saw him fire four, five shots? A: Yes.”); JA at 751 ("Q: After th[at] final set of shots, where did the individuals go? A: They both ran down the stairwell. Q: Okay. So the individual whose arm you saw extended, he travelled] down the stairwell? A: Yes. Q: And Mr. Francis you said also traveled down the stairwell; is that correct? A: Yes.”).

      .Carol Kelly’s testimony strongly suggests that there were two shooters. See supra n.4. Her testimony, even when compared to countervailing evidence, was sufficient to allow a reasonable jury to find Fahie guilty of aiding and abetting the criminal activity. Additionally, the testimony of Francis and Webbe, as well as forensic evidence, added to the sufficiency of the evidence, and the court acknowledged that at trial.

      . Fahie confusingly makes his argument by focusing substantial portions of his briefing on Francis’s inability to be an aider and abettor to Fahie, but the focus here is on whether Fahie could be found guilty of aiding and abetting in the murder, not on whether Francis could be found guilty under that theory.

      . Judicial estoppel is triggered when a court deals with inconsistent positions taken by a party. See Carlyle Inv. Mgmt. LLC v. Moon-mouth Co. SA, 779 F.3d 214, 221-22 (3d Cir. 2015) ("The doctrine of judicial estoppel prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.”) (citation omitted). That doctrine
      requires that: (1) a party adopts a position clearly inconsistent with an earlier position and (2) the party had succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create "the perception that either the first or the second court was misled.”

        Id. (quoting New Hampshire v. Maine, 532 U.S. 742, 750, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001)). Thus, "absent any good explanation, a party should not be allowed to gain an advantage by litigation on one theory, and then seek an inconsistent advantage by pursuing an incompatible theory.” In re Kane, 628 F.3d 631, 638 (3d Cir. 2010) (quoting Krystal Cadillac-Oldsmobile GMC Truck, Inc. v. Gen. Motors Corp., 337 F.3d 314, 319 (3d Cir. 2003)).

      . Fahie was convicted as an aider and abettor under 14 V.I.C. § 11. That statute was modeled after 18 U.S.C. § 2. See Todman v. People, 59 V.I. 675, 683 (V.I. 2013) (noting that 14 V.I.C. § 11 was modeled on 18 U.S.C. § 2, and indicating that the logic of Standefer applies with equal force in the Virgin Islands).

      . Our holding does not mean that there is no role for judicial estoppel in constraining government theories of culpability. See, e.g., Drake v. Kemp, 762 F.2d 1449, 1478-79 (11th Cir. 1985) (finding a due process violation where a prosecutor convicted one defendant of murder and then used that defendant’s testimony (from his first trial, in which he attempted to demonstrate his innocence by pinning the blame on someone else) to convict another defendant for the same murder, explaining, "the prosecutor either believed or did not believe [the first defendant]. If he did believe him, then the prosecutor should not have prosecuted [him] ... If he did not believe [him], then the prosecutor used testimony he thought was false in order to convict [the other defendant], a conviction he could not constitutionally otherwise secure.”).

      . See Oral Argument at 13:15-13:26, Fahie v. People of V.I. (No. 15-2721), http://www2.ca3. uscourts.gov/oralargument/audio/15-2721 Fahiev.People of VI.mp3 (Fahie arguing that the V.I. Supreme Court was interpreting Virgin Islands law and "[the V.I.] Supreme Court is still free to determine that [the] instruction is improper in the Virgin Islands. It is not bound by the Third Circuit[.]”); id. at 15:41-16:51, 20:15-21:13, 22:39-24:10 (Fahie arguing that the assumption of error in question two is under Virgin Islands law and based on Virgin Islands jurisprudence); id. at 34:00-35:17 (the People arguing that "the [V.I.] Supreme Court is well within their rights ... that it was a state level argument that they made.”).


source: Caselaw Access Project

author: AMBRO, Circuit Judge

license: Public Domain

text:
    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
    No. 16-3722
    United States Court of Appeals, Third Circuit.
    Argued March 21, 2017
    (Opinion filed: May 25, 2017)
    As Amended June 26, 2017

      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
   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 Becky Biter allege impermissibly restricts their right to protest in the vicinity of abortion clinics. 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 “applies] 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 leaflet-ting, 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.

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).

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 misallo-cated 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)).

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 prece-dential 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 Transameri-can 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 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 halancing-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, 129 S.Ct. 365 (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, 129 S.Ct. 365 (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, 129 S.Ct. 865 (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, 129 S.Ct. 1749, 173 L.Ed.2d 550 (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, 129 S.Ct. 1749. “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, 129 S.Ct. 1749. Though Nken dealt with the issuance of a stay pending appeal, the Court explained that 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, 129 S.Ct. 1749. 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, 129 S.Ct. 365.

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 plaintiffs 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 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, 129 S.Ct. 365 (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, 102 S.Ct. 1798, 72 L.Ed.2d 91 (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, 129 S.Ct. 1749. 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.

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 not) and that it is more likely than not to suffer irreparable harm in the absence of preliminary relief. If these gateway factors are met, a court then considers the remaining two factors and determines in its sound discretion 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 plaintiffs 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 have the burden of demonstrating a sufficient likelihood of prevailing on the merits. However, in First Amendment cases where “the [g]overnment 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, 124 S.Ct. 2783, 159 L.Ed.2d 690 (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, 429, 126 S.Ct. 1211, 163 L.Ed.2d 1017 (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. Appel-lees’ 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 meet their burden of showing that the ordinance is narrowly tailored appropriate to the government interest involved. The District Court can then consider anew the request for preliminary injunctive relief in the clarified context noted above. We thus vacate and remand.

      . Rosalie Gross was also a Plaintiff in the action below, but has voluntarily dismissed her claims without prejudice and does not join this appeal.

      . 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).

      . 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, 129 S.Ct. 1749, 173 L.Ed.2d 550 ("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.2d 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.

      . 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).

      . To be clear, we do not take Ashcroft or Gonzales to stand for the proposition that the government has the burden of proving that a preliminary injunction is not an appropriate remedy. To the contrary, the moving party still retains the burden of proof in two principal ways: it must prove that the law restricts protected speech and that it will suffer irreparable harm. See Goodman v. Illinois Dep't of Fin. & Prof'l Regulation, 430 F.3d 432, 438 (7th Cir. 2005) (as to the first burden, rejecting a motion for a preliminary injunction because the moving party failed to “show that protected speech is being restricted”). If the moving party meets the first burden, then the government must justify its restriction on speech under whatever level of scrutiny is appropriate (intermediate or strict) given the restriction in question. See Thalheimer v. City of San Diego, 645 F.3d 1109, 1116 (9th Cir. 2011) ("[I]n the First Amendment context, the moving party bears the initial burden of making a colorable claim that its First Amendment rights have been infringed, or are threatened with infringement, at which point the burden shifts to the government to justify the restriction.”); cf. Byrum v. Landreth, 566 F.3d 442, 446 (5th Cir. 2009) (“[W]hen considering the likelihood of success, the district court should have inquired whether there is a sufficient likelihood the State will ultimately fail to prove its regulation constitutional.”) Despite the suggestion of Defendants to the contrary, they have the burden even under intermediate scrutiny because, as already noted, "the burdens at the preliminary injunction stage track the burdens at trial.” Gonzales, 546 U.S. at 429; cf. Casey v. City of Newport, R.I., 308 F.3d 106, 111 (1st Cir. 2002) (noting that, in the application of intermediate scrutiny, "[t]he burden of proof is on the City to demonstrate that its restrictions on speech are narrowly tailored”); Byrum, 566 F.3d at 446 (in the context of commercial speech, which is also subject to intermediate scrutiny). If the government succeeds in justifying the restriction, then the motion for a preliminary injunction fails because there is no likelihood of success on the merits. And even if the moving party prevails on that prong, it still bears the burden of showing irreparable injury. That brings us back to the balancing of the factors that we have addressed earlier in this opinion.