Livingwell Med. Clinic, Inc. v. Becerra, 901 F.3d 1168 (2018)

Aug. 28, 2018 · United States Court of Appeals for the Ninth · No. 15-17497

901 F.3d 1168

LIVINGWELL MEDICAL CLINIC, INC.; Pregnancy Care Center of the North Coast, Inc. ; Confidence Pregnancy Center, Inc., Plaintiffs-Appellants,
v.
Xavier BECERRA,^* Attorney General, Attorney General of the State of California, in his official capacity; Karen Smith, M.D., Director of California Department of Public Health, in her official capacity; Michael George Colantuono, City Attorney of Grass Valley, California, in his official capacity; Alison Barrat-Green, County Counsel of Nevada County, California, in her official capacity; Cindy Day-Wilson, City Attorney of Eureka, California, in her official capacity; Jeffrey S. Blanck, County Counsel of Humboldt County, California, in his official capacity; Christopher A. Callihan, City Attorney of Salinas, California, in his official capacity; Charles J. McKee, County Counsel of Monterey County, California, in his official capacity, Defendants-Appellees.

No. 15-17497

United States Court of Appeals, Ninth Circuit.

Filed August 28, 2018

ORDER

This case is back before us on remand from the United States Supreme Court. See LivingWell Med. Clinic, Inc. v. Becerra , --- U.S. ----, 138 S.Ct. 2701, --- L.Ed.2d ---- (2018). In light of National Institute of Family and Life Advocates ("NIFLA") v. Becerra , --- U.S. ----, 138 S.Ct. 2361, --- L.Ed.2d ---- (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, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (citations omitted). A "plaintiff [must] make a showing on all four prongs " to obtain a preliminary injunction. Alliancefor 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 the plaintiffs were "likely to succeed on the merits of their [free speech] challenge to the licensed notice [requirement in the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act]." 138 S.Ct. at 2376. The same provision is at issue here. See LivingWell Med. Clinic , --- U.S. at ----, 138 S.Ct. 2701. We therefore reverse the district court's conclusion that LivingWell Medical Clinic, Inc., Pregnancy Care Center of the North Coast, Inc., and Confidence Pregnancy Center, Inc. ("Plaintiffs") were not likely to succeed on the merits of their free speech claim.

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.