NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 25 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JANE DOES 1-10, individually and on No. 18-35003
behalf of others similarly situated; JOHN
DOES 1-10, individually and on behalf of D.C. No. 2:16-cv-01212-JLR
others similarly situated,
Plaintiffs-Appellees, MEMORANDUM*
v.
UNIVERSITY OF WASHINGTON, a
Washington public corporation; PERRY
TAPPER, Public Records Compliance
Officer at the University of Washington, in
his official capacity,
Defendants-Appellees,
v.
DAVID DALEIDEN, an individual,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted December 10, 2018
Submission Withdrawn April 11, 2019
Resubmitted March 24, 2020
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
San Francisco, California
Before: TASHIMA, McKEOWN, and NGUYEN, Circuit Judges.
David Daleiden again appeals the district court’s grant of a preliminary
injunction arising from Daleiden’s request of public records from the University of
Washington under Washington's Public Records Act (“PRA”). A group of
individuals referred to as the “Doe plaintiffs” challenged the release of documents.
This matter is before us a second time. We remanded the case to the district court
to reconsider the scope of its injunction. On reconsideration, the court issued a
preliminary injunction that prohibits the University from disclosing “all personally
identifying information or information from which a person's identity could be
derived with reasonable certainty.” We stayed Daleiden’s second appeal pending a
decision from the Washington Supreme Court related to the PRA. As it turns out,
that decision—issued in late 2019—did not resolve the key disclosure issue here.
Recognizing that the preliminary injunction hinges on the Doe plaintiffs’ First
Amendment rights, we affirm in part, reverse in part, and vacate in part.
We review the grant of a preliminary injunction for abuse of discretion and
remand if the district court’s decision is “based on either an erroneous legal
standard or clearly erroneous factual findings.” Negrete v. Allianz Life Ins. Co. of
N. Am., 523 F.3d 1091, 1096 (9th Cir. 2008).
“A plaintiff seeking a preliminary injunction must establish that he is likely
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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 (2008). In the Ninth Circuit, “‘if a plaintiff can only show that there are
serious questions going to the merits—a lesser showing than likelihood of success
on the merits—then a preliminary injunction may still issue if the balance of
hardships tips sharply in the plaintiff’s favor, and the other two Winter factors are
satisfied.’” Feldman v. Ariz, Sec’y of State’s Office, 843 F.3d 366, 375 (9th Cir.
2016) (quoting Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1282, 1291 (9th
Cir. 2013)) (internal marks omitted).
Because we agree with the district court that the balance of hardships tips
precipitously in the favor of the Doe plaintiffs, we consider whether there is a
serious question that goes to the merits. To prevail on their First Amendment
claim, the Doe plaintiffs must show that particular individuals or groups of
individuals were engaged in activity protected by the First Amendment and “‘a
reasonable probability that the compelled disclosure of personal information will
subject’” those individuals or groups of individuals “‘to threats, harassment, or
reprisals’” that would have a chilling effect on that activity. See John Doe No. 1 v.
Reed, 561 U.S. 186, 200 (2010) (quoting Buckley v. Valeo, 424 U.S. 1, 74 (1976))
(alterations omitted).
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The district court did not err in concluding that Does 3, 4, and 5 were
engaged in activity protected by the First Amendment, as they each took part in or
were associated with advocacy for reproductive rights. See NAACP v. Alabama ex
rel. Patterson, 357 U.S. 449, 462 (1958). And, without taking a position as to the
ultimate merits, see Sports Form, Inc. v. United Press Int’l, Inc., 686 F.2d 750, 753
(9th Cir. 1982), the district court did not err in concluding that whether the
research activities of Does 7 and 8 constituted First Amendment protected activity
posed a serious question that goes to the heart of their claims. See, e.g., Regents of
Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978). However, the district court
clearly erred in determining that Does 1, 2, and 6 were engaged in activity
protected by the First Amendment. In making its findings, the court relied solely
on the exceedingly thin and generalized declarations of these Doe plaintiffs, which
fail to allege a particularized, personal link between the declarant and a claimed
protected activity. We reverse and vacate the preliminary injunction with respect to
Does 1, 2, and 6 and affirm in all other respects.
AFFIRMED in part, REVERSED in part, and VACATED in part. Each
party shall bear its own costs on appeal.
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