Nifla v. Xavier Becerra

FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

NATIONAL INSTITUTE OF FAMILY No. 16-55249 AND LIFE ADVOCATES, DBA NIFLA, a Virginia corporation; D.C. No. PREGNANCY CARE CENTER, DBA 3:15-cv-02277- Pregnancy Care Clinic, a California JAH-DHB corporation; FALLBROOK PREGNANCY RESOURCE CENTER, a California corporation, ORDER Plaintiffs-Appellants,

v.

XAVIER BECERRA,* Attorney General, in his official capacity as Attorney General for the State of California; THOMAS MONTGOMERY, in his official capacity as County Counsel for San Diego County; MORGAN FOLEY, in his official capacity as City Attorney for the City of El Cajon, CA; EDMUND G. BROWN, JR., in his official capacity as Governor of the State of California, Defendants-Appellees.

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On Remand from the Supreme Court of the United States

Filed August 28, 2018

Before: Dorothy W. Nelson, A. Wallace Tashima, and John B. Owens, Circuit Judges.

SUMMARY**

Preliminary Injunction / First Amendment

On remand from the United States Supreme Court, the panel reversed in part, vacated in part, and remanded to the district court for further proceedings in light of National Institute of Family and Life Advocates v. Becerra (“NIFLA”), 138 S. Ct. 2361 (2018).

In NIFLA, the Supreme Court concluded that the plaintiffs were “likely to succeed on the merits of their claim that the [California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act] violates the First Amendment.” 138 S. Ct. at 2376. The panel reversed the district court’s conclusion that plaintiffs were not likely to succeed on the merits of their free speech claims with

* Xavier Becerra has been substituted for his predecessor, Kamala D. Harris, as Attorney General for the State of California under Fed. R. App. P. 43(c)(2). ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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respect to the notices covering both the licensed and unlicensed facilities.

The panel vacated the district court’s order on the three remaining preliminary injunction Winter factors, and remanded for the district court to reconsider them in light of NIFLA.

ORDER

In light of National Institute of Family and Life Advocates (“NIFLA”) v. Becerra, 138 S. Ct. 2361 (2018), we reverse in part, vacate in part, and remand this case to the district court for further proceedings.

“A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of the equities tips in his favor, and [4] that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citations omitted). A “plaintiff [must] make a showing on all four prongs” to obtain a preliminary injunction. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (emphasis added); see also Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015) (en banc) (stating that a plaintiff “must show” all four factors before an injunction may issue (citation and internal quotation marks omitted)).

In NIFLA, the Supreme Court concluded that NIFLA, Pregnancy Care Center, and Fallbrook Pregnancy Resource Center (“Plaintiffs”) were “likely to succeed on the merits of their claim that the [California Reproductive Freedom,

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Accountability, Comprehensive Care, and Transparency Act] violates the First Amendment.” 138 S. Ct. at 2378. We therefore reverse the district court’s conclusion that Plaintiffs were not likely to succeed on the merits of their free speech claims with respect to the notices covering both the licensed and unlicensed facilities.

The district court further premised its analysis of the other three Winter factors on its conclusion that Plaintiffs’ First Amendment claim was not likely to succeed. We therefore vacate the district court’s order on the three remaining Winter factors and remand for the district court to consider them again in light of NIFLA.

Plaintiffs-Appellants shall recover their costs on appeal from Defendants-Appellees.

REVERSED in part, VACATED in part, and REMANDED.