FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
A WOMAN’S FRIEND No. 15-17517
PREGNANCY RESOURCE
CLINIC, a California D.C. No.
Religious Nonprofit 2:15-cv-02122-KJM-AC
Corporation; ALTERNATIVE
WOMEN’S CENTER,
Plaintiffs-Appellants, ORDER
v.
XAVIER BECERRA,* Attorney
General, Attorney General,
State of California,
Defendant-Appellee.
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.
*
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).
2 A WOMAN’S FRIEND V. BECERRA
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 [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 panel held
that the same provision was at issue in this case, and reversed
the district court’s conclusion that plaintiffs were not likely
to succeed on the merits of their First Amendment free speech
claim.
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.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
A WOMAN’S FRIEND V. BECERRA 3
ORDER
This case is back before us on remand from the United
States Supreme Court. See A Woman’s Friend Pregnancy
Res. Clinic v. Becerra, 2018 WL 3148264 (U.S. June 28,
2018). 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 the Ninth Circuit, a plaintiff may also obtain a preliminary
injunction by showing “serious questions go[] to the merits”
of its claims and a balance of hardships that tips “sharply”
towards the plaintiff, so long as it makes a showing on the
other two factors. Alliance, 632 F.3d at 1135.
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
4 A WOMAN’S FRIEND V. BECERRA
provision is at issue here. See A Woman’s Friend Pregnancy
Res. Clinic, 2018 WL 3148264, at *1. We therefore reverse
the district court’s conclusion that A Woman’s Friend
Pregnancy Resources Clinic, Crisis Pregnancy Center of
Northern California, and Alternatives Women’s Center
(“Plaintiffs”) were not likely to succeed on the merits of their
free speech claim.
The district court found Plaintiffs had raised “serious
questions going to the merits” of their claims and that they
were likely to suffer irreparable harm, but concluded that the
balancing of the equities did not tip “sharply” in their favor
and that the injunction, on free speech grounds, would not be
in the public interest. A Woman’s Friend Pregnancy Res.
Clinic v. Harris, 153 F. Supp. 3d 1168, 1209–10, 1215–17
(E.D. Cal. 2015). The district court engaged in this
alternative analysis based on its now-erroneous conclusion
that Plaintiffs were not likely to succeed on the merits of their
First Amendment claim. See id. at 1214. Accordingly, we
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.