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.
2                        NIFLA V. BECERRA

    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.
                      NIFLA V. BECERRA                          3

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,
4                    NIFLA V. BECERRA

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.