Case 2:15-cv-00693-CW Document 2 Filed 09/28/15 Page 1 of 18

Peggy A. Tomsic (3879) tomsic@mgpclaw.com
Christine T. Greenwood (8187) greenwood@mgpclaw.com
Jennifer Fraser Parrish (11207) parrish@mgpclaw.com
MAGLEBY & GREENWOOD, P.C. 170 South Main Street, Suite 1100 Salt Lake City, Utah 84101-3605 Telephone: 801.359.9000 Facsimile: 801.359.9011
Attorneys for Plaintiff Planned Parenthood Association of Utah

IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION

PLANNED PARENTOOD ASSOCIATION COMPLAINT FOR DECLARATORY AND

OF UTAH, a Utah non-profit

INJUNCTIVE RELIEF

corporation,

Plaintiff,

v.

GARY R. HERBERT, in his official capacity as Governor of THE STATE OF UTAH; and JOSEPH K. MINER, M.D., in his official capacity as the Executive Director of THE UTAH DEPARTMENT OF HEALTH, a department of the government of THE STATE OF UTAH,

Case No.

2:15-CV-00693-CW

Defendants.

Honorable Clark Waddoups

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Plaintiff Planned Parenthood Association of Utah (“Plaintiff” or “PPAU”) alleges and complains, against Defendants Gary R. Herbert (“Governor Herbert”), in his official capacity as Governor of the State of Utah, and Joseph K. Miner, M.D. (“Dr. Miner”), in his official capacity as the Executive Director of the Utah Department of Health (“UDOH”), a department of the government of the State of Utah (collectively, “Defendants” or the “State”), as follows:
NATURE OF THE CASE 1. PPAU files this action pursuant to 42 U.S.C. § 1983 to vindicate rights secured by the First and Fourteenth Amendments to the United States Constitution. For over forty-five years, PPAU has been an integral provider of reproductive health services to women, men, and teens of Utah, including providing education and testing to prevent the spread of sexually transmitted diseases (“STDs”), and education to prevent unwanted pregnancy. For decades, PPAU has been awarded grants funded by the federal government, including those administered by the State, to further reproductive health education and testing, including through a long-standing relationship with UDOH. 2. On August 14, 2015, without warning and having expressed no prior concerns about PPAU or the services it provides, Governor Herbert directed the agencies of the State of Utah to cease acting as an intermediary for federal grant money going to PPAU for non-abortion related services based solely on unproven allegations by an anti-abortion group of misconduct in other states by affiliates of the national organization of Planned Parenthood Federation of America (the “National
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Organization”) (collectively, with its affiliates, “Planned Parenthood”). Governor Herbert has therefore singled out PPAU for this unfavorable treatment, not based on any actual, or even alleged, misconduct by PPAU itself, but because of its association with Planned Parenthood.
3. The claims in this case arise in a current political climate that is very hostile to Planned Parenthood. At the time of the filing of this complaint, threats of a complete shut-down of the federal government loom as certain opponents of Planned Parenthood in Congress are conditioning the approval of the government’s operating budget on the complete revocation of all federal funds to Planned Parenthood, unless the organization certifies that it will not provide abortions. Accordingly, Governor Herbert’s decision was motivated solely by animus toward PPAU’s constitutionally protected, privately funded activities --- specifically, PPAU’s association with providers of abortion services, including the National Organization and its affiliates, PPAU’s advocacy for access to abortion services; and/or PPAU’s provision of and/or association with abortion services, even though PPAU conducts all such activities outside of any state or federal program and with no funding from those programs.
4. PPAU therefore seeks a judgment declaring that the actions of Governor Herbert, as implemented through UDOH, violate PPAU’s rights under the First and Fourteenth Amendments to the United States Constitution. As these actions, if allowed to stand, will imminently and irreparably harm PPAU and the thousands of women, men, and teens of Utah who rely on PPAU for reproductive health education and testing to
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prevent the contraction and transmission of life-threatening infections and diseases, PPAU also seeks preliminary and permanent injunctive relief.
THE PARTIES, JURISDICTION, AND VENUE 5. Planned Parenthood of Utah is a Utah non-profit corporation that provides comprehensive reproductive health care to approximately 46,000 women, men and teens each year at health centers located throughout Utah, including in Logan, Ogden, Heber, Orem, St. George, and four health centers in Salt Lake County. The care PPAU provides includes annual wellness exams, birth control counseling and the provision of all FDA-approved form of contraception, testing and treatment for STDs, screening for breast and cervical cancer, diagnosis and treatment of abnormal pap tests, vasectomies, and health education. PPAU also provides abortions at one of its health centers in Salt Lake City which are funded solely by private donations. PPAU sues on behalf of itself and its patients with regard to Defendants’ termination of the passthrough of federal funding to PPAU for non-abortion reproductive health care as described below. 6. Defendant Gary R. Herbert is the Governor of the State of Utah. In his official capacity, Governor Herbert is the Chief Executive Officer of the State of Utah. Governor Herbert maintains an office in Salt Lake County, Utah. Governor Herbert is sued in his official capacity. 7. Defendant Joseph K. Miner, M.D., is the Executive Director of the Utah Department of Health. UDOH is a department of the State of Utah created by Utah
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Code § 26-1-4. UDOH is the health, health planning, and medical assistance authority of the State of Utah and is the sole state agency for administration of federally assisted state programs or plans for public health, health planning, maternal and child health, services for children with a disability, and medical assistance. Utah Code § 26-1-18. Dr. Miner maintains an office in Salt Lake County, Utah. Dr. Miner is sued in his official capacity.
8. Defendants, and those subject to their supervision, direction, and control, are responsible for the administration of the federally-funded programs at issue, and similar programs, whether now-existing or in the future. The relief requested in this action is sought against each Defendant, as well as against each Defendant’s officers, employees, and agents, and against all persons acting in cooperation with Defendants, under their supervision, at their direction, or under their control.
9. This action raises questions under the Constitution of the United States and 42 U.S.C. § 1983, and thus this Court has jurisdiction over all claims for relief pursuant to 28 U.S.C. § 1331.
10. Further, PPAU’s claim for declaratory and injunctive relief is authorized by 28 U.S.C. §§ 2201 and 2201, and by Rules 57 and 65 of the Federal Rules of Civil Procedure, and by the general legal and equitable powers of this Court.
11. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b) because all Defendants reside in this District and the State of Utah. Venue is also proper because a substantial part of the events giving rise to the claims occurred in this District.
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FACTUAL BACKGROUND GOVERNOR HERBERT’S DIRECTIVE 12. On August 14, 2015, Governor Herbert issued a statement regarding PPAU (the “Directive”), wherein Governor Herbert “instructed state agencies to cease acting as an intermediary for pass-through federal funds to Planned Parenthood [of Utah].” 13. Governor Herbert’s Directive was issued in response to recent (false) accusations made in the media by an anti-abortion organization that purport to relate to fetal tissue donation programs conducted by other affiliates of the National Organization in other states --- not PPAU. 14. In a press conference on August 17, 2015, Governor Herbert stated, “We now have video where they’re selling fetus body parts for money and it’s an outrage and the people of Utah are outraged. I’m outraged. So for coloring outside the lines, Planned Parenthood [of Utah] forfeits some of their benefits.” 15. On August 19, 2015, Governor Herbert joined Mia Love, one of Utah’s congressional representatives, and approximately three-hundred other attendees at a protest held in the rotunda of the Utah State Capitol, to ask lawmakers to defund Planned Parenthood. At the protest, Governor Herbert stated, “I’m here today to add my voice to yours and speak out on the sanctity of life . . . .” He further stated, “The thing I find most appalling is the casualness, the callousness . . . the lack of respect, the lack of sensitivity to the unborn . . . .”
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16. However, the accusations made in the media against the other affiliates of Planned Parenthood have not been proven, nor do these accusations include any alleged conduct by PPAU, as Governor Herbert himself acknowledged in his August 17, 2015, press conference when he stated that none of the alleged conduct occurred in Utah.
17. Thus, Governor Herbert knew, and continues to know, that there is no evidence, or even accusation, that PPAU has “colored outside” of any lines, including because PPAU does not participate in any program that provides fetal tissue for scientific research.
18. Moreover, there has never been any assertion by Governor Herbert, UDOH, or anyone else that PPAU is not qualified to provide the federally-funded reproductive health education and STD testing services to the Utah community that it provides through its relationship with UDOH, or that PPAU has ever abused any federal grant money provided for such services.
19. Finally, as Governor Herbert himself acknowledged in his Directive, no federal funding to PPAU, whether directly from the federal government or through state agencies such as UDOH, is used to provide abortions.
20. Instead, the funds affected by Governor Herbert’s Directive, which primarily include funding through contracts between PPAU and UDOH, are shown in a list available through a hyperlink included in the Governor’s statement:
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a. Funding to support the “Utah Abstinence Education Program,” the purpose of which is to provide abstinence education as a means of promoting abstinence from sexual activity among Utah youth. This program is an afterschool program requiring parental permission to enroll.
b. Funding to support the “Personal Responsibility Education Program,” the purpose of which is to educate adolescents on both abstinence and contraception to prevent pregnancy and STDs, while also providing education into adulthood preparation topics such as positive self-esteem and health relationship dynamics, educational and career success, and life skills such as goal-setting, decision making, communication skills, and stress management. This program is also an afterschool program requiring parental permission to enroll.
c. Funding to support a program in collaboration with the Communicable Disease Prevention Program for STD Testing in the State of Utah, wherein federal funds are used to pay the Utah Public Health Laboratory for specimens to be tested for STDs such as chlamydia and gonorrhea (the “Targeted STD Testing Funds”).
d. Funding to support a program to improve timeliness, accuracy, and completeness of STD reporting and surveillance data, sometimes referred to as the “STD Surveillance Network.”
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21. The Directive also purports to affect reimbursements made to PPAU for pregnancy and STD testing for victims of rape or sexual assault through the Utah Office for Victims of Crime.
22. Thus, the funds affected by Governor Herbert’s Directive are unrelated to abortion and/or to the donation of fetal tissue for scientific research (except that the programs funded are intended to, and have the effect of, decreasing abortions).
23. Instead, Governor Herbert’s Directive was issued solely in retaliation for PPAU’s prior protected and privately funded activities --- specifically, that PPAU provides, associates with, and/or advocates for access to abortion, even though PPAU conducts all such activities outside of any state or federal program and does not use funding from any state or federal program for these activities.
IMPLEMENTATION OF GOVERNOR HERBERT’S DIRECTIVE BY UDOH 24. On September 8, 2015, and pursuant to Governor Herbert’s Directive, UDOH provided PPAU with a thirty-day written notice of termination of its contract for the Utah Abstinence Education Program, which was not set to expire until September 30, 2016, and would be renewable for additional years at the time of expiration. Accordingly, this contract will terminate on October 8, 2015. 25. On September 8, 2015, the UDOH also provided PPAU with a notice that UDOH would cease accepting funds from the Centers for Disease Control and Prevention (the “CDC”) for the STD Surveillance Network contract after September 29, 2015, when such funds would otherwise be available through September 29, 2018.
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Upon information and belief, UDOH’s statements were not true as it will continue to receive this CDC funding; it will just not provide it to PPAU. This contract will terminate on October 8, 2015.
26. The contract between UDOH and PPAU for the Personal Responsibility Education Program (“PREP”) is set to expire on September 30, 2015, and UDOH has made public statements that it will allow this contract to expire without renewal, per the Governor’s Directive. Upon information and belief, UDOH would have renewed the contract for PREP for additional years, but for Governor Herbert’s Directive.
27. PPAU has also been informed by UDOH that reimbursement for specimens sent to the Utah Public Health Laboratory for STD testing will only continue to December 31, 2015, due to Governor Herbert’s Directive. Upon information and belief, UDOH would also have provided PPAU with additional years of federal funding to pay the Utah Public Health Laboratory for specimens to be tested for the Communicable Disease Prevention Program for STD Testing in the State of Utah, but for Governor Herbert’s Directive.
28. All of the programs above are funded by the federal government, and grant recipients are selected based upon criteria established by the federal government. By contract, the State of Utah has agreed to administer these programs on behalf of the federal government. These programs are not funded by Utah taxpayer dollars.
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THE IMPACT OF DEFENDANTS’ ACTIONS 29. Defendants’ actions will cause irreparable harm to PPAU and its patients. 30. The Utah Abstinence Education Program and the Personal Responsibility Education Program are intended to reduce pregnancy and risky sexual behavior among teens, while increasing school performance within identified high risk communities. Approximately 152 students (and their parents) are and/or are expected to be signed up for these critical programs during the current school year. PPAU cannot be replaced in running these programs, including because these programs use the highly successful Wyman Teen Outreach Programtm (“TOPtm”) curriculum, and PPAU is the only organization certified to replicate or teach the Wyman TOPtm curriculum in Utah. Accordingly, the Defendants’ actions threaten to irreparably harm PPAU’s ability to serve these high-risk teens and their parents, and to prevent these teens from acquiring STDs, which could be life threatening, and from having unwanted pregnancies. 31. The Targeted STD Testing Funds program is intended to target groups for Chlamydia and Gonorrhea testing and treatment that have been identified as high risk for contracting these diseases: females between the ages of 15-24 (and their partners), and men who have sex with other men. In the absence of the critical funds provided by this program, PPAU’s continued ability to provide STD testing and treatment statewide to all who request it is put at risk. Moreover, local health departments do not have the capacity nor the expertise to provide Chlamydia and Gonorrhea testing and treatment on the scale that PPAU does (statewide to all who request it, including low income
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households and those without insurance). Further, PPAU is much more accessible than any local health department, and patients feel more safe and comfortable seeking these services than from PPAU than from the health department. If these at-risk groups are now forced to pay for their testing, or make inconvenient trips to the health department because of Defendants’ actions, many won’t get tested, and Chlamydia and Gonorrhea rates will go up. Further, the lack of prompt care and evening and weekend hours will cause other PPAU patients to forego services altogether. Women who have to wait or travel for family planning services or who forego service entirely will undoubtedly experience increased risk of unintended pregnancy, sexually-transmitted infection, and undetected cancer. Plus, untreated Chlamydia can cause Pelvic Inflammatory Infections which can lead to infertility in women. Accordingly, Defendants’ actions threaten to irreparably harm PPAU’s ability to serve these high-risk groups by preventing the spread of STDs and preventing other related injuries such as infertility.
32. The STD Surveillance Network program is a pilot project between PPAU and UDOH intended to improve reporting of STD testing results by building communication infrastructure within the State of Utah, with the goal of decreasing the spread of these diseases in the community. PPAU cannot be replaced as a partner for this project because, in UDOH’s own words, “”PPAU is the ideal candidate” for this project because of the quantity and quality of the services provided by PPAU. Even if UDOH could find a new partner, it will essentially have to start over, or at best, UDOH will have to re-do much of the work it had already accomplished with PPAU over the last
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two years. Accordingly, the State’s Action threatens to irreparably harm PPAU’s ability to serve the community by helping UDOH build the data communication infrastructure to prevent the spread of STDs in Utah.
33. Defendants’ actions also threaten to irreparably harm PPAU’s ability to serve the victims of rape and sexual assault, and to prevent these patients from being tested and receiving care for STDs, which could be life threatening, because fewer victims will report for this critical follow-up testing if they cannot get this testing done at PPAU, which has a reputation in the community of treating these patients with respect and without judgment.
34. Finally, PPAU’s reputation, and its ability to partner with local health organizations, is critical to its success, and its continued ability to fulfill its mission. Governor Herbert has made false public statements that PPAU has been engaged in illegal activities related to fetal tissue donation, and has instructed state agencies to terminate state-administered federal funds to PPAU because of this alleged wrongdoing. These false statements, and UDOH actions attendant these statements, threaten to destroy PPAU’s reputation in the community that it has worked so hard to build over almost 50 years in Utah. Without its reputation intact, PPAU will no longer be able to function as it has in the past, and to serve the community as it has in the past.
35. In addition to the ability to successfully collaborate with other health care organizations, PPAU’s reputation is also critical to its continued ability to raise funds through private donors, which is necessary for PPAU to keep its costs low, and to meet
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its mission of providing statewide services to all who request those services, including those without insurance. Donors will be less likely to provide money to PPAU if they believe, as the Governor has stated, that PPAU has “colored outside the lines.”
36. Finally, for PPAU to successfully meet its mission, it must continue to have the reputation with patients in the community that it is an organization that can be trusted. Many patients choose PPAU over other health care centers because they trust that PPAU will offer nonjudgmental, compassionate, and comprehensive care, and that PPAU will provide them with information they need to plan their families and protect their health in a safe environment. If patients believe that PPAU has engaged in criminal behavior, or acted improperly, they are less likely to believe PPAU is a safe environment in which to receive the sensitive education and care related to their reproductive health.
37. Thus, PPAU and its patients have no adequate remedy at law. CLAIMS FOR RELIEF
COUNT 1: VIOLATION OF EQUAL PROTECTION UNDER THE FOURTEENTH AMENDMENT
38. Plaintiff incorporates by this reference the allegations set forth above. 39. Defendants’ actions in singling out PPAU for unfavorable treatment without adequate justification violates PPAU’s rights as guaranteed by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
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40. As the result of Defendants’ violation of PPAU’s constitutional rights under the Equal Protection Clause of the Fourteenth Amendment, PPAU is entitled to the declaratory judgment set forth in the Prayer for Relief.
41. As a result of Defendants’ violation of PPAU’s constitutional rights under the Equal Protection Clause of the Fourteenth Amendment, PPAU has and will continue to suffer irreparable harm and is entitled to the preliminary and permanent injunctive relief set forth in the Prayer for Relief.
42. As a result of Defendants’ violation of PPAU’s constitutional rights under the Equal Protection Clause of the Fourteenth Amendment, PPAU is entitled to recovery its costs of suit, including reasonable attorney fees, and such other relief as the Court deems appropriate.
COUNT 2: UNCONSTITUTIONAL PENALTY ON CONSTITUTIONALLY PROTECTED ACTIVITY UNDER THE FIRST AMENDMENT
43. Plaintiff incorporates by this reference the allegations set forth above. 44. Defendants’ actions violate the rights of PPAU as guaranteed by the First Amendment to the United States Constitution by imposing a penalty based on its speech and/or associations without adequate justification. 45. As the result of Defendants’ violation of PPAU’s constitutional rights under the First Amendment, PPAU is entitled to the declaratory judgment set forth in the Prayer for Relief. 46. As a result of Defendants’ violation of PPAU’s constitutional rights under the First Amendment, PPAU has and will continue to suffer irreparable harm and is
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entitled to the preliminary and permanent injunctive relief set forth in the Prayer for Relief.
47. As a result of Defendants’ violation of PPAU’s constitutional rights under the First Amendment, PPAU is entitled to recover its costs of suit, including reasonable attorney fees, and such other relief as the Court deems appropriate.
COUNT 3: UNCONSTITUTIONAL PENALTY ON CONSTITUTIONALLY PROTECTED ACTIVITY UNDER THE FOURTEENTH AMENDMENT
48. Plaintiff incorporates by this reference the allegations set forth above. 49. Defendants’ actions violate the rights of PPAU and its patients as guaranteed by the Fourteenth Amendment to the United States Constitution to provide and access abortion services by imposing a penalty on PPAU for the provision of and/or association with abortion services without adequate justification. 50. As the result of Defendants’ violation of PPAU and its patients’ constitutional rights under the Fourteenth Amendment, PPAU is entitled to the declaratory judgment set forth in the Prayer for Relief. 51. As a result of Defendants’ violation of PPAU and its patients’ constitutional rights under the Fourteenth Amendment, PPAU has and will continue to suffer irreparable harm and is entitled to the preliminary and permanent injunctive relief set forth in the Prayer for Relief. 52. As a result of Defendants’ violation of PPAU and its patients’ constitutional rights under the Fourteenth Amendment, PPAU is entitled to recover its costs of suit,
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including reasonable attorney fees, and such other relief as the Court deems appropriate.
PRAYER FOR RELIEF WHEREFORE, PPAU requests the entry of a judgment in its favor and against Defendants as follows: 1. A declaratory judgment, pursuant to 28 U.S.C. § 2201, declaring that Defendants’ actions to terminate all state-administered federal funding to PPAU are (1) a violation of PPAU’s rights to Equal Protection under the Fourteenth Amendment to the United States Constitution; (2) an unconstitutional penalty on PPAU’s protected activities under the First Amendment to the United States Constitution; and (3) an unconstitutional penalty on PPAU’s protected activities under the Fourteenth Amendment to the United States Constitution. 2. A preliminary and permanent injunction enjoining Defendants, without bond, from refusing to act as an intermediary for federal funds which PPAU is otherwise qualified to receive, based on PPAU’s association with providers of abortion services, including the National Organization and its affiliates; PPAU’s advocacy for access to abortion services; and/or PPAU’s provision of and/or association with abortion services. 3. A judgment awarding PPAU its costs of suit, including reasonable attorney’ fees, under 42 U.S.C. § 1988, and such other and further relief to which it may be entitled.
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DATED this 28th day of September, 2015. MAGLEBY & GREENWOOD, P.C. Peggy A. Tomsic Christine T. Greenwood Jennifer Fraser Parrish Attorneys for Plaintiff Planned Parenthood Association of Utah
Plaintiff’s Address Planned Parenthood Association of Utah 654 S. 900 E. Salt Lake City, Utah 84102
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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

PLANNED PARENTHOOD ASSOCIATION OF UTAH,
Plaintiff,
vs.
GARY R. HERBERT, in his official capacity as Governor of the State of Utah, and JOSEPH K. MINER, M.D., in his official capacity as Executive Director of the Utah Department of Health,
Defendants.

MEMORANDUM DECISION AND ORDER DENYING
PRELIMINARY INJUNCTION
Case No. 2:15-cv-693 Judge Clark Waddoups

INTRODUCTION This matter is before the court on a motion for preliminary injunction filed by Planned Parenthood Association of Utah (“Plaintiff”). Under the direction of Governor Gary R. Herbert, the Utah Department of Health notified Plaintiff that it was terminating or not renewing four contracts due to allegations of misconduct by other Planned Parenthood entities. On September 29, 2015, the court entered a temporary restraining order (“TRO”) that precluded the defendants from defunding or denying funding to Plaintiff based on the allegations of misconduct.
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Following the court’s issuance of the TRO, the State announced publically that it would continue to fund the contracts through December 31, 2015, to allow time for this motion to be addressed.
On October 15, 2015, the court held an evidentiary hearing to determine if a preliminary injunction should issue. In light of the State’s plan to continue with the contracts through yearend, the defendants did not object to the TRO remaining in place pending the court issuing this decision. Hearing Tr., at 75-76 (Oct. 15, 2015) (Dkt. No. 27). After due consideration of the parties’ briefing, oral arguments, and evidence, the court concludes Plaintiff has failed to meet its burden for a preliminary injunction. Accordingly, the court denies the motion and vacates the TRO.
BACKGROUND
Planned Parenthood Federation of America, Inc. is a national corporation that has independent local affiliates (“Planned Parenthood”). Plaintiff is one of those affiliates. In July 2015, The Center for Medical Progress began releasing secretly recorded videos of Planned Parenthood officials discussing abortions and fetal tissue. According to public reports, the videos portray Planned Parenthood altering how abortions are performed to obtain more intact fetal tissue and organs. They also portray Planned Parenthood selling fetal tissue.1 Such conduct is illegal under federal law. Planned Parenthood asserts the videos have been highly edited to convey false information and that it has abided by all state and federal laws. Nevertheless, the videos have sparked nationwide media coverage and protests.
1 The videos were not offered into evidence and the court makes no finding about whether the public reports are accurate or whether the videos accurately portray the conduct as alleged. The parties submitted affidavits in support of their respective positions and the defendants agreed to accept the allegations in paragraphs 12 through 22 of the Complaint as true for purposes of this motion. Mem. in Opp’n, at ix (Dkt. No. 19). The parties did not offer any additional evidence at the preliminary hearing.
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Unlike other Planned Parenthood organizations, Plaintiff has never “participate[d] in any programs that allow its patients to donate fetal tissue after an abortion.” Declaration of Karrie Galloway, ¶ 13 (Dkt. No. 3-1) (hereafter “Galloway Decl.”). Thus, there is not even an allegation that Plaintiff has engaged in any wrong doing. Instead, Plaintiff has had a long-term relationship with the Utah Department of Health (the “Department”) as a provider of health care, STD testing, and education. Throughout that relationship, Plaintiff has enjoyed an excellent reputation with the Department.
Plaintiff’s services are available to all who seek them, including the underinsured and uninsured. It has worked to develop a relationship with “groups that are at higher risk for contracting and spreading disease, and having unplanned pregnancies.” Id. ¶ 6. Plaintiff seeks to provide education and testing to such groups to reduce the number of unplanned pregnancies and stop the spread of communicable diseases. The contracts at issue in this suit reflect the unique position that Planned Parenthood holds in the community. Two of the contracts are “for after-school abstinence education programs.” Mem. in Opp’n, at x (Dkt. No. 19). Another contract is for an STD surveillance network that “track[s] the reporting of sexually transmitted diseases.” Id. The final one is a “letter of understanding in which Utah agreed to subsidize a certain number of STD tests [Plaintiff] submitted to the Utah Public Health Laboratory.” Id. All of the contracts are federally funded, where Utah acts as the intermediary to pass the funds through to Plaintiff.
Under the express terms of the contracts, the Department may terminate them at will upon thirty-days notice. Moreover, the Department has no obligation to renew a contract that is set to expire. Following the release of the videos, Governor Herbert directed the Department to exercise those options. Consequently, on September 8, 2015, the Department notified Plaintiff
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that it was terminating the Utah Abstinence Education Program and the STD Surveillance Network contract effective October 8, 2015. It further informed Plaintiff it would not renew the Personal Responsibility Education Program that was set to expire on September 30, 2015. Finally, it informed Plaintiff the letter of understanding regarding STD testing would only continue through December 31, 2015.
The notices of termination had been anticipated since Governor Herbert issued the following press statement on August 14, 2015:
The allegations against Planned Parenthood are deeply troubling. Current Utah state law prohibits the use of state funds to provide abortions by Planned Parenthood or any other organization. The federal government has provided grants to Planned Parenthood, distributed through the Utah Department of Health. These funds are also prohibited from being used to perform abortions. In light of ongoing concerns about the organization, I have instructed state agencies to cease acting as an intermediary for pass-through federal funds to Planned Parenthood Other state and local agencies and nonprofits will continue to provide STD education and prevention programs. Press Release (Aug. 14, 2015) (Dkt. No. 3-1 at p. 28).
In addition to the press release, on August 17, 2015, the Salt Lake Tribune reported the Governor as stating, “[w]e now have a video where they’re selling fetus body parts for money and it’s an outrage and the people of Utah are outraged. I’m outraged. So for coloring outside the lines, Planned Parenthood forfeits some of their benefits.” Robert Gehrke, Utah Guv Says Cutting Fund to Planned Parenthood Won’t Hurt Pregnancy, STD services, The Salt Lake Tribune (Aug. 17, 2015) (Dkt. No. 3-1 at p. 33). It is further reported that Governor Herbert said, “[e]ven though it may not have happened in Utah, it happened in their organization. . . . If the federal government wants to fund Planned Parenthood, fund them directly. We don’t have to be in the middle of that issue.” Id.
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(alteration omitted). Finally, he reportedly said, “I’m just saying we’re not going to be a party to this behavior. You colored outside the lines. You’re going to be held accountable. Work that situation out and maybe we’ll talk again in the future.” Id. at 34.
Two days later, Governor Herbert “joined Planned Parenthood protestors who gathered at the state Capitol.” Daphne Chen, Gov. Gary Herbert, Rep. Mia Love Join Planned Parenthood Protest at Capitol, Deseret News (Aug. 19, 2015) (Dkt. No. 3-1 at p. 36). At the protest, Deseret News reported the Governor as saying, “I’m here today to add my voice to yours and speak out on the sanctity of life.” Id.
Plaintiff asserts Governor Herbert’s statements and participation in the antiabortion protest show he terminated the contracts at issue because he opposes abortion and for no other reason. Because abortion and the right of association are both constitutionally protected, Plaintiff asserts the Governor violated Plaintiff’s constitutional rights when he ordered the contracts to be terminated.
ANALYSIS I. STANDARD OF REVIEW
“A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted). The court “must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Id. (quotations and citation omitted). To obtain a preliminary injunction, Plaintiff “must establish the following elements: (1) a substantial likelihood of success on the merits; (2) irreparable injury will result if the injunction does not issue; (3) the threatened injury to the movant outweighs
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any damage the injunction may cause the opposing party; and (4) issuance of the injunction would not be adverse to the public interest.” N. Natural Gas Co. v. L.D. Drilling, Inc., 697 F.3d 1259, 1266 (10th Cir. 2012) (quotations and citation omitted). The Tenth Circuit has stated “where the three latter harm factors weigh in favor of the movant,” the first factor is “relaxed.” Flood v. ClearOne Commc’ns, Inc., 618 F.3d 1110, 1117 n.1 (10th Cir. 2010) (citation omitted).2
II. EQUAL PROTECTION—CLASS OF ONE
Plaintiff asserts the defendants violated the Fourteenth Amendment’s Equal Protection clause because they singled out Plaintiff for unfavorable treatment without cause. The court addresses this claim under a “class of one” analysis.
A. Scope of Class-of-One Claims
In Village of Willowbrook v. Olech, 528 U.S. 562 (2000), the Supreme Court recognized a class-of-one theory under the Equal Protection Clause. In that case, a municipality demanded that a property owner grant it a 33-foot easement before providing water service even though it only demanded a 15-foot easement from other property owners. Id. at 563. Although the property owner was not a member of any protected class, the Supreme Court concluded the demand was irrational and arbitrary and improperly singled out the property owner. Id. at 565. Thus, it allowed the property owner’s equal protection claim to proceed.
2 The defendants acknowledge this is the standard in the Tenth Circuit, but they have preserved an objection on the ground that the relaxed standard is contrary to Supreme Court precedent. Mem. in Opp’n, at 1 n.4 (Dkt. No. 19) (citing Winter, 555 U.S. at 20-22).
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Following Olech, courts grappled with how to apply the class-of-one theory. The Tenth Circuit stated the class-of-one theory applies when “a public official inflicts a cost or burden on one person without imposing it on those who are similarly situated in material respects, and does so without any conceivable basis other than a wholly illegitimate motive.” Jicarilla Apache Nation v. Rio Arriba County, 440 F.3d 1202, 1209 (10th Cir. 2006) (citation omitted). It cautioned, however, the theory should not be applied too broadly or it could transform federal courts into “second-guessers of the reasonableness of broad areas of state and local decisionmaking.” Id. (quotations and citation omitted).
Approximately two years after Jicarilla Apache Nation, the Supreme Court narrowed the theory by concluding it did not apply in the public employee context even if the employer singled out the employee for “good reason, bad reason, or no reason at all.” Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 606 (2008) (quotations and citations omitted). The Court distinguished Olech on the basis that it involved “a clear standard against which departures, even for a single plaintiff, could be readily assessed.” Id. at 602. In contrast, employment decisions “involve discretionary decisionmaking based on a vast array of subjective, individualized assessments.” Id. at 603. It is common to find different treatment when the government is acting in its role as an employer rather than as sovereign over “citizens at large.” Id. at 599, 605. And it is not the court’s role to interfere in such discretionary functions unless the action taken by the government “independently violate[d] the Constitution.” Id. at 606 (citations omitted).
In this case, the defendants contend Engquist’s holding should be extended to government contractors and not just public employees. As in Engquist, when the
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defendants sought to terminate the contracts, it was not acting in its role as a sovereign, nor as a regulator. Instead, it was acting as a decisionmaker, making subjective, individualized assessments about whether to continue the contracts. Moreover, the terms of the contracts gave the defendants full discretion and authority to continue them or terminate them at will. In that arena, the defendants have broad discretion in how they manage their affairs and with whom they choose to contract.
The defendants’ position has support in case law. Both the First Circuit and the Eleventh Circuit have extended the holding in Engquist to government contractors. See Caesars Mass. Mgmt. Co. v. Crosby, 778 F.3d 327, 336 (1st Cir. 2015); Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1274 (11th Cir. 2008). In contrast, the Second and Seventh Circuits have refused to hold Engquist bars all class-of-one claims by government contractors, but even those circuits acknowledge Engquist may reach to some government contractors. See Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 142 (2d Cir. 2010); Hanes v. Zurick, 578 F.3d 491, 495-46 (7th Cir. 2009).
In the Tenth Circuit, the issue remains open because the Court has not had to reach it. Nevertheless, it has stated in dicta that “it is arguably just a small step from” Engquist “to the conclusion the [class-of-one] doctrine shouldn’t apply when the government interacts with independent contractors—in both circumstances, the government acts in a more proprietorial and less regulatory capacity.” SECSYS, LLC v. Vigil, 666 F.3d 678, 690 (10th Cir. 2012) (citations omitted).
Plaintiff contends the court should not extend Engquist to this case. In support of its contention, Plaintiff cites to Planned Parenthood of Central North Carolina v. Cansler,
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877 F. Supp. 2d 310, 325-27 (M.D.N.C. 2012) and Planned Parenthood Greater Memphis Region v. Dreyzehner, 853 F. Supp. 2d 724, 736-38 (M.D. Tenn. 2012). Both cases were decided after Engquist and both concluded it was improper to terminate funding to Planned Parenthood based, in part, on the class-of-one theory. Notably, however, neither case discussed Engquist. Therefore, the court does not find their reasoning persuasive.
While there may be some situations where Engquist should not apply to a government contractor (meaning the court is not adopting a per se rule), this is not one of them. There is no “clear standard” against which a departure could be measured. Thus, the court concludes the class-of-one theory is inapplicable in this case unless Plaintiff can show violation of an independent constitutional right.
Plaintiff argues that the independent constitutional right violated here is the right of association. Plaintiff asserts the videos portray false information and no investigation has uncovered any wrongdoing. Thus, by implication, Plaintiff contends its right to associate with other Planned Parenthood entities must continue because no criminal conduct has been proven. Termination of the contracts, however, does not interfere with Plaintiff’s right to associate with other Planned Parenthood entities. It is free to continue its affiliation with Planned Parenthood and it has no legal right, let alone a constitutional right, to continue with the contracts. Moreover, Plaintiff has provided no case law to support its position that a contract cannot be terminated when a party associates with entities allegedly engaged in illegal conduct. Accordingly, the court finds no violation of the right of association.
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Plaintiff further contends its right to advocate for and perform abortions has been violated. No federal or state funds may be used to perform abortions. Consequently, none of the contracts at issue pertain to abortions. The court therefore concludes termination of the contracts does not violate Plaintiff’s right to advocate for or perform abortions.
Because Plaintiff has not shown an independent violation of a constitutional right, the court concludes Plaintiff is unlikely to prevail on its class-of-one claim.
B. Appropriate Comparators
Even if Engquist does not apply, it is still unlikely that Plaintiff would prevail on its class-of-one theory. To establish a class of one, Plaintiff must show (1) it was treated differently than others who were “similarly situated in every material respect;” and (2) the “difference in treatment” was “wholly unrelated to any legitimate state activity.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1216 (10th Cir. 2011) (quotations and citations omitted). This is an objective standard of reasonableness. Id. The Tenth Circuit has stated, however, plaintiffs have a “substantial burden” to prove another is “similarly situated in all material respects.” Id. at 1217 (quotations and citation omitted). The Court strictly reads the “element because it addresses the main concern with the class-of-one theory—that it will create a flood of claims in that area of government action where discretion is high and variation is common.” Id. at 1218.
Plaintiff asserts others “similarly situated” should be defined as “other reproductive health care providers.” The standard, however, requires similarity in every material respect and Plaintiff’s suggested comparators do not adhere strictly to that element. At issue here is Plaintiff’s association with entities who have allegedly engaged
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in illegal conduct. While the allegations may prove to be unfounded, they are nevertheless material at this time. Plaintiff has failed to show it was treated differently from a specifically identified comparator, namely, another reproductive health care provider that associates with an entity allegedly engaged in illegal conduct. Accordingly, the court concludes Plaintiff is unlikely to prevail in showing it was treated differently than others similarly situated.
III. UNCONSTITUTIONAL CONDITION
Plaintiff also asserts two unconstitutional condition claims. First, Plaintiff asserts the defendants have penalized it for advocating for reproductive choice and associating with others who similarly advocate for pro-choice. Plaintiff contends this violates its First Amendment rights of speech and association. Second, Plaintiff asserts that its abortion services are constitutionally protected because without such services a woman could not exercise her right to have an abortion under the Fourteenth Amendment’s Due Process Clause. By terminating the contracts, Plaintiff contends the defendants have penalized it for exercising its right to perform abortions.
‘“Under the modern unconstitutional conditions doctrine, the government may not deny a benefit to a person on the basis that infringes his constitutionally protected [rights] even if he has no entitlement to that benefit.’” Planned Parenthood of Kan. & Mid-Mo. v. Moser, 747 F.3d 814, 838 (10th Cir. 2014) (quoting Bd. of Cnty. Comm’rs v. Umbehr, 518 U.S. 668, 674 (1996)) (alterations omitted). The “doctrine has been applied when a condition acts retrospectively in a discretionary executive action,” such as terminating a government contract, “in retaliation for prior protected speech or association.” Id. at 839
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(citing Umbehr, 518 U.S. at 671) (emphasis in original). Stated differently, the doctrine does not preclude officials from taking discretionary actions; it precludes officials from taking discretionary actions “in retaliation for the exercise of a constitutional right.” Id. Retaliatory conduct is impermissible because it “would allow the government to produce a result which it could not command directly.” Id. at 838 (quotations and citation omitted).
These types of “cases necessarily examine the official’s motive for taking the action.” Id. at 839 (citation omitted). Plaintiff bears the burden of proving “retaliation against the protected conduct was ‘a substantial or motivating factor’ for taking the action and the [defendants] would not ‘have taken the same action in the absence of the protected conduct.’” Id. (quoting Umbehr, 518 U.S. at 675) (alteration omitted). The key phrase is “retaliation against the protected conduct” because retaliation against non-protected conduct falls outside the unconstitutional conditions doctrine.
Plaintiff contends that Governor Herbert’s opposition to abortions and Plaintiff’s association with other pro-choice entities was the substantial or motivating force behind his directive to terminate the contracts. It points to the Governor’s participation in an antiabortion protest mere days after his press release, during which he said he was there to speak out for the sanctity of life. These facts fall short of proving, however, that Governor Herbert’s opposition to abortion was a substantial or motivating factor for terminating the contracts.
Gary Herbert has been the Governor of Utah for the past six years. Although Plaintiff has been associated with other pro-choice entities since Governor Herbert took office and it started performing abortions in Utah in 2011, the Governor still allowed the
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Department to enter into and maintain contracts with Plaintiff. It was not until the videos were released that the Governor acted to terminate the contracts. Indeed, Plaintiff alleges and the defendants do not dispute that the Governor said, “We now have video where they’re selling fetus body parts for money and it’s an outrage and the people of Utah are outraged. I’m outraged. So for coloring outside the lines, [Plaintiff] forfeits some of [its] benefits.” Complaint, ¶ 14 (Dkt. No. 2). Both the Governor’s words and the temporal proximity between the release of the videos and his directive to terminate the contracts support he did not retaliate against Plaintiff based upon its right of association nor its right to advocate for and perform abortions. Therefore, the court concludes Plaintiff is unlikely to prevail on its unconstitutional condition claims.
IV. IRREPARABLE HARM
Plaintiff asserts it will suffer irreparable harm unless an injunction issues because it will be deprived of its constitutional rights. As discussed above, however, the court has concluded that Plaintiff likely will not be able to show it suffered a constitutional harm. Any financial harm Plaintiff has suffered from the contracts’ termination can be redressed.
Plaintiff further asserts it will suffer irreparable reputational harm if an injunction does not issue. The defendants have shown, however, that many people have spoken out in favor of Planned Parenthood following the Governor’s pronouncement. See Declaration of Austin Cox (Dkt. No. 19-2). While protestors against Planned Parenthood have rallied, so too have supporters of Planned Parenthood. The court therefore concludes that Plaintiff has failed to show it will suffer irreparable reputational harm. This factor therefore weighs in favor of the defendants.
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V. INJURY TO PLAINTIFF COMPARED TO INJURY TO THE DEFENDANTS Plaintiff asserts that the injury it will suffer outweighs any damage the defendants
will suffer if an injunction issues. In reviewing the defendants’ action, it is also important to note what they did not do. The defendants did not terminate Plaintiff as a Medicaid provider. This means Plaintiff may still be compensated for providing care to Medicaid recipients. Additionally, the defendants have not sought to preclude Plaintiff from receiving funding directly from the federal government, as Plaintiff has done in the past. See Galloway Decl., ¶ 55 (Dkt. No. 3-1). Finally, the Governor’s directive does not preclude Plaintiff from advocating for or performing abortions. Plaintiff’s injury is related only to the loss of four contracts.
In contrast, if the defendants are enjoined from terminating the contracts, their authority to manage their affairs will be curtailed. Moreover, it will deprive the defendants of their contractual right to terminate the contracts at will. Finally, governmental entities have an interest in avoiding the appearance of corruption. Although Plaintiff has engaged in no wrong-doing, it is currently affiliated with other Planned Parenthood entities that have allegedly engaged in illegal conduct.
Under such circumstances, continuing to allow Plaintiff to provide services under the auspices of the contracts may reasonably be perceived by the citizenry of Utah as approbation of the wrongful conduct. Plaintiff derives benefit from its affiliation with the national organization. Indeed, Plaintiff argues that termination of the contracts harms its ability to raise funding from donors. The “good will” that inheres in the Planned Parenthood brand also extends to “bad will” that attaches because of the allegations of
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wrongful conduct. The defendants have discretion under the contracts to consider whether continuation of them would send a message that wrongful conduct is acceptable. Requiring the defendants to continue the contracts will remove the defendants’ discretionary decisionmaking. There is no monetary remedy for such injuries. The court therefore concludes the injuries to the defendants outweigh the injuries to Plaintiff.
VI. IMPACT ON THE PUBLIC INTEREST
The final factor to consider is whether an injunction is in the public interest. After the Governor issued his directive, individuals at the Department sought to dissuade him from terminating the contracts. They asserted that other providers could not fulfill the contracts as well as Plaintiff and that terminating its relationship with Plaintiff could jeopardize future funding from the federal government. The Governor reiterated he intended to redirect the funding to other qualified providers, but it is not clear he will be able to do so. Thus, some members of the public may be harmed if the contracts terminate.
Balanced against this harm is the right of the elected Governor of this State to make decisions about what is in the best interest of the State. These contracts relate to discretionary programs. The State has acted as an intermediary to pass through federal funds to Plaintiff, and has concluded it no longer desires to do so. It is contrary to the public’s interest to remove from the Governor the very discretion his position entails. Indeed, these are the types of decisions that should be left to elected officials and not managed by the courts. The court therefore concludes it is not in the public interest to enjoin the defendants from terminating the contracts at issue.
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CONCLUSION For the reasons stated above, the court DENIES Plaintiff’s motion for a preliminary injunction (Dkt. No. 3) and VACATES the court’s temporary restraining order (Dkt. No. 12). DATED this 22nd day of December, 2015.
BY THE COURT: _ Clark Waddoups United States District Court
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 Appellate CCasaes:e125:-1451-8c9v-00D69o3c-uDmBenDt: o0c1u0m19e6n5t 533746FileDd a0t8e/0F8il/eU1d6n:i0teP7d/a1gS2etT/a21et0neF1ost6fIhCL5C9oEuiPrDrcatugoietf:A1ppeals

July 12, 2016

PUBLISH

Elisabeth A. Shumaker

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PLANNED PARENTHOOD ASSOCIATION OF UTAH,
Plaintiff-Appellant,
v.
GARY R. HERBERT, in his official capacity as Governor of the State of Utah; JOSEPH K. MINER, M.D., in his official capacity as Executive Director of the Utah Department of Health,
Defendants-Appellees.

No. 15-4189

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH (D.C. No. 2:15-CV-00693-CW)
Peggy A. Tomsic, (Christine T. Greenwood and Jennifer Fraser Parrish, with her on the briefs) of Magleby, Cataxinos & Greenwood, Salt Lake City, Utah, for Plaintiff-Appellant.
Tyler R. Green, (Parker Douglas and Stanford E. Purser, with him on the brief), Office of the Attorney General for the State of Utah, Salt Lake City, Utah, for Defendants-Appellees.
Before BRISCOE, EBEL and BACHARACH, Circuit Judges.
BRISCOE, Circuit Judge.

Case 2:15-cv-00693-DB Document 37 Filed 08/08/16 Page 2 of 59 Appellate Case: 15-4189 Document: 01019655346 Date Filed: 07/12/2016 Page: 2
Plaintiff Planned Parenthood Association of Utah (PPAU) filed this action pursuant to 42 U.S.C. § 1983 claiming that defendant Gary Herbert, the Governor of the State of Utah, violated PPAU’s constitutional rights by directing defendant Joseph Miner, the Executive Director of the Utah Department of Health (UDOH), to stop UDOH from acting as an intermediary for so-called “pass-through” federal funds that PPAU uses to carry out certain programs in the State of Utah. Along with its complaint, PPAU filed a motion seeking a temporary restraining order (TRO) and a preliminary injunction. Although the district court initially issued a TRO, it ultimately withdrew the TRO and denied PPAU’s request for a preliminary injunction. PPAU filed this interlocutory appeal challenging the denial of its motion for preliminary injunction. We granted a stay in favor of PPAU to prevent the cessation of funding during the pendency of this appeal, and we also expedited the briefing and oral argument schedule. Now, exercising jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), we reverse the decision of the district court and remand with instructions to grant PPAU’s motion for preliminary injunction.
I Factual background a) Planned Parenthood Association of Utah and its activities PPAU is a non-profit corporation organized under the laws of the State of
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Utah. PPAU is an affiliate of, but legally separate from, Planned Parenthood Federation of America, Inc. (Planned Parenthood).
For nearly fifty years, PPAU has provided reproductive health services to women, men, and teenagers in the State of Utah. PPAU delivers these services directly through its network of nine urban and rural clinics and indirectly through contracts with eleven rural and frontier providers who act on PPAU’s behalf. PPAU is currently the only statewide organization that provides reproductive health services to anyone who requests them. More specifically, PPAU provides services without regard to a patient’s health insurance status, socioeconomic status, race, or ethnicity.
In 2011, PPAU began offering abortion services. PPAU does not receive any funds from either the federal government or state government for abortion services. PPAU complies with all federal and state laws regarding the disposal of fetal tissue, and it does not allow its patients to donate fetal tissue after an abortion.
During its 2015 fiscal year, PPAU provided health care services to 46,082 patients, 46% of whom reported being uninsured. Nearly 45,000 of these total patients sought and received services unrelated to abortion, such as the provision of birth control, vasectomy, pregnancy testing, screenings for sexuallytransmitted diseases (STDs), cancer screenings, and cancer prevention. Over 17,000 of the total patients either asked to be tested for, or were identified as at
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risk for having contracted, chlamydia and/or gonorrhea. Of this group, approximately 72% reported being uninsured.
In addition to medical services, PPAU provides a variety of education services related to reproductive health, including abstinence education, contraceptive education, and STD education.
b) PPAU’s relationship with the Utah Department of Health UDOH is a department of the State of Utah created pursuant to Utah Code § 26-1-4. UDOH is the health, health planning, and medical assistance authority of the State of Utah and, as such, is the sole agency that oversees the administration of federally-assisted state programs or plans for public health, health planning, maternal and child health, services for children with a disability, and medical assistance. PPAU has received federal funding to support its reproductive health services and education since approximately 1973. Since 1993, PPAU has received federal funds through programs administered by the State of Utah.1 At issue in this case are two grants, one contract, and one letter of understanding, pursuant to which UDOH dispenses federal funds, either directly or indirectly, to PPAU. PPAU in turn uses that funding for four specific types of programs. The details of this funding are outlined in detail below.
1 According to the limited record on appeal, approximately one-third or less of PPAU’s annual operating budget derives from federal, state, or local government funding.
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c) Targeted STD testing Since the early 1990s, PPAU has worked in collaboration with UDOH to carry out the Communicable Disease Prevention Program for STD Testing in the State of Utah. Federal funds are used to pay the Utah Public Health Laboratory for specimens to be tested for STDs. As part of this program, UDOH has provided PPAU, at no charge, with prescription medications needed to treat chlamydia and gonorrhea. This has enabled PPAU, in turn, to provide treatment free of charge to all patients who test positive, as well as to their partners. The most recent manifestation of this collaboration is a letter of understanding entered into between UDOH and PPAU in early 2015. Pursuant to that letter of understanding, UDOH agreed to “pay the Utah Public Health Laboratory on [PPAU’s] behalf . . . for 4,400 specimens from January 1, 2015, through December 31, 2015 for STD testing for” the following classes of Utah residents: (1) “[f]emales 15 to 24 years of age”; (2) “[t]he partners of females 15 to 24 years of age, regardless of the partner’s age”; and (3) “[m]en who have sex with men.” App. at 149. d) STD Surveillance Network In 2013, UDOH asked PPAU to participate in a five-year project called the STD Surveillance Network. The purpose of the project was to update the surveillance systems at UDOH to improve data gathering and STD prevention outcomes across the State of Utah. Funding for the Network was provided by the
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Centers for Disease Control (CDC). The parties’ agreement was formalized by contract on March 3, 2014. The
contract period was to run from March 3, 2014, until September 30, 2018. Under the terms of the contract, UDOH agreed to pay PPAU $30,000 in federal funds in exchange for PPAU’s work on the project. In early February 2015, the contract was amended to increase the amount of federal funds provided by UDOH to PPAU from $30,000 to $109,960.
e) Utah Abstinence Education Program On or about April 1, 2011, UDOH issued a grant to PPAU so that PPAU could carry out the Utah Abstinence Education Program (UAEP). The original amount of the grant was for $221,546.20, and was intended to cover the period from April 1, 2011, to September 30, 2014. The grant was subsequently amended to provide total funding in the amount of $338,386.55, and to extend the grant period until September 30, 2016. In carrying out the UAEP, PPAU provides after-school abstinence education to teenagers in the State of Utah. The program requires parental permission to enroll. In PPAU’s fiscal year 2015, 98 teenagers signed up for the program and 44 teenagers graduated from the program. f) The Personal Responsibility Education Program In 2013, UDOH sought competitive bids from entities in the state interested in carrying out the State’s Personal Responsibility Education Program (PREP).
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Funding for the PREP program came from the United States Department of Health and Human Services, Administration on Children, Youth and Families. The purpose of PREP “is to educate adolescents on both abstinence and contraception to prevent pregnancy and [STDs], including HIV/AIDS.” Id. at 275. In addition, PREP is intended to educate adolescents on “the following three adulthood preparation subjects”: (1) “[h]ealthy relationships, such as positive self-esteem and relationship dynamics”; (2) “[e]ducational and career success, such as developing skills for employment preparation, job seeking, independent living, financial self-sufficiency, and work-place productivity”; and (3) “[h]ealthy life skills, such as goal-setting, decision making, negotiation, communication and interpersonal skills, and stress management.” Id. “The target population for [PREP] is Utah youth ages 14-19 with a specific focus on youth in the Utah Juvenile Justice System, youth of Hispanic origin and/or non-white race, current teen moms, and youth residing in areas with birth rates higher than Utah’s state rate.” Id.
PPAU was the winning bidder on the project. According to PPAU, it was awarded a three-year grant from UDOH, good through 2016, with the possibility of signing new contracts for additional years.
g) The release of the CMP videos In the summer of 2015, an entity known as the Center for Medical Progress (CMP) released “selectively edited videos of Planned Parenthood staff members
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discussing the health care provider’s fetal tissue donation program.” Id. at 398.
The videos resulted in “[a]nti-abortion advocates . . . accusing Planned
Parenthood of profiting off the sale of fetal tissue, which would be illegal.” Id.
In turn, “[m]ultiple investigations were launched in Congress and in the states.”2
Id.
h) Defendant Herbert’s response to the CMP videos - the Directive
Defendant Gary Herbert is the Governor of the State of Utah and, in that
capacity, serves as the Chief Executive Officer for the State of Utah. On August
14, 2015, Herbert, in response to the CMP videos, issued a written statement
(Directive) that stated:
The allegations against Planned Parenthood are deeply troubling. Current Utah state law prohibits the use of state funds to provide abortions by Planned Parenthood or any other organization. The federal government has provided grants to Planned Parenthood, distributed through the Utah Department of Health. These funds are also prohibited from being used to perform abortions. In light of ongoing concerns about the organization, I have instructed state agencies to cease acting as an intermediary for pass-through federal funds to Planned Parenthood.
Id. at 51.3 The Directive was specifically directed at federal funding that flowed
2 According to the limited information available in the record, to date none of these investigations have “turned up . . . evidence that Planned Parenthood was doing anything other than receiving legal reimbursements for the cost of processing the donations” of fetal tissue. App. at 398. No evidence was found to support the CMP videos’ claim that fetal tissue was being sold by Planned Parenthood.
3 In referring to “Planned Parenthood,” the Directive did not distinguish (continued...)
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through UDOH to PPAU for the UAEP program, the PREP program, the Targeted STD Testing program, and the STD Surveillance Network. The Directive also “purport[ed] to affect reimbursements made to PPAU for pregnancy and STD testing for victims of rape or sexual assault through the Utah Office for Victims of Crime.” Id. at 14.
Herbert followed the Directive with a press conference on August 17, 2015, during which he stated, “We now have video where they’re selling fetus body parts for money and it’s an outrage and the people of Utah are outraged. I’m outraged. So for coloring outside the lines, [PPAU] forfeits some of their benefits.” Id. at 11. Herbert conceded during the press conference, however, “that none of the alleged conduct occurred in Utah.” Id. at 12.
On August 19, 2015, Herbert participated in a group protest, held in the rotunda of the Utah State Capitol, to ask state lawmakers to defund PPAU. During the protest, Herbert stated: “I’m here today to add my voice to yours and speak out on the sanctity of life . . . .” Id. at 11. Herbert further stated: “The thing I find most appalling is the casualness, the callousness . . . the lack of respect, the lack of sensitivity to the unborn . . . .” Id.
i) UDOH’s response to the Directive Defendant Joseph Miner, M.D., the Executive Director of UDOH, acting
3(...continued) between the national organization and PPAU.
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pursuant to defendant Herbert’s Directive, instructed his subordinates at UDOH to implement the Directive. Consequently, on September 8, 2015, UDOH provided PPAU with a thirty-day written notice of termination of its contract for the UAEP program. On that same date, UDOH also provided PPAU with notice that UDOH would cease accepting funds from the CDC for the STD Surveillance Network contract after September 29, 2015. UDOH also informed PPAU that reimbursement for specimens sent by PPAU to the Utah Public Health Laboratory for STD testing would cease after December 31, 2015. Finally, UDOH publicly stated that it intended to allow its contract with PPAU for the PREP program to expire without renewal on September 30, 2015.
j) PPAU’s conduct It is undisputed that at no time has PPAU been accused of misusing funds, including using the funds at issue to perform abortion services. Further, it is undisputed that at no time has UDOH complained about the services provided by PPAU, or otherwise claimed that PPAU was not qualified to provide services. It is also uncontroverted that PPAU has no direct connection to any of the activities allegedly depicted in the CMP videos.
Procedural background PPAU initiated this action on September 28, 2015, by filing a complaint pursuant to 42 U.S.C. § 1983 for declaratory and injunctive relief against defendants Herbert and Miner. The complaint set forth three claims for relief.
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Count 1 alleged a violation of equal protection under the Fourteenth Amendment. More specifically, Count 1 alleged that “[d]efendants’ actions in singling out PPAU for unfavorable treatment without adequate justification violate[d] PPAU’s rights as guaranteed by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.” Id. at 19–20. Count 2 alleged that “[d]efendants’ actions violate[d] the rights of PPAU as guaranteed by the First Amendment to the United States Constitution by imposing a penalty based on its speech and/or associations without adequate justification.” Id. at 20. Count 3 alleged that “[d]efendants’ actions violate[d] the rights of PPAU and its patients as guaranteed by the Fourteenth Amendment to the United States Constitution to provide and access abortion services by imposing a penalty on PPAU for the provision of and/or association with abortion services without adequate justification.” Id. at 21. The complaint sought declaratory relief, a preliminary and permanent injunction, and a judgment awarding PPAU its costs of suit, including reasonable attorneys’ fees.
Along with its complaint, PPAU filed a motion for temporary restraining order (TRO) and preliminary injunction. PPAU argued that there was a substantial likelihood that it would succeed on the merits of its claims, that it would suffer irreparable injury if an injunction did not issue, that the threatened injury to it outweighed any damage that an injunction might cause to the defendants, and that issuance of an injunction would not be adverse to the public
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interest. The following day, September 29, 2015, the district court held a hearing on
PPAU’s motion for TRO. No evidence was presented during the hearing; instead, the parties agreed to have the district court decide the motion upon the facts deemed by defendants to be admitted. At the conclusion of the hearing, the district court granted a TRO in favor of PPAU.
On October 15, 2015, the district court held a hearing on PPAU’s motion for preliminary injunction. Again, no testimony was presented at the hearing. The parties instead relied exclusively on documentary evidence: PPAU submitted a lengthy declaration from Karrie Galloway, the president and CEO of PPAU; defendants submitted affidavits from Shari Watkins, UDOH’s finance director, and Austin Cox, defendant Herbert’s constituent services director, as well as documents submitted in connection with Watkins’ affidavit pertaining to each of the UDOH/PPAU programs that were intended to be defunded. Notably, no evidence was submitted from defendant Herbert discussing or explaining his decision to issue the Directive.
On December 22, 2015, the district court issued a memorandum decision and order denying PPAU’s motion for preliminary injunction and vacating the previously issued TRO. Shortly thereafter, PPAU filed a timely notice of interlocutory appeal.
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II In this appeal, PPAU challenges the district court’s denial of its motion for preliminary injunction. “We review the denial of a preliminary injunction for abuse of discretion.” Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d 1114, 1128 (10th Cir. 2013), aff’d sub nom Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014). “A district court abuses its discretion by denying a preliminary injunction based on an error of law.” Id. To the extent the district court made factual findings as part of its ruling, see Fed. R. Civ. P. 52(a)(2), we review those “factual findings under the deferential ‘clear error’ standard,” Glossip v. Gross, 135 S. Ct. 2726, 2739 (2015); see Fed. R. Civ. P. 52(a)(6). Federal Rule of Civil Procedure 65(a) authorizes district courts to issue preliminary injunctions. A plaintiff “seeking a preliminary injunction must establish that [it] is likely to succeed on the merits, that [it] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [its] favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
Likelihood of success on the merits “The very purpose of an injunction under Rule 65(a) is to give temporary relief based on a preliminary estimate of the strength of the plaintiff’s suit, prior to the resolution at trial of the factual disputes and difficulties presented by the case.” 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
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Practice and Procedure, § 2948.3, at 213-14 (2013). Although “[t]he courts use a bewildering variety of formulations of the need for showing some likelihood of success,” id. at 197, “[a]ll courts agree that plaintiff must present a prima facie case but need not show a certainty of winning,” id. at 201.
In analyzing whether PPAU has established a likelihood of success on the merits, we shall address separately each of the three claims asserted in its complaint. As discussed below, we conclude that PPAU has failed to establish a likelihood of success on the merits of its equal protection claim, but has established a likelihood of success on the merits of its unconstitutional conditions claims.
a) Equal protection claim It is undisputed that Count 1 of PPAU’s complaint, particularly when considered together with PPAU’s motion for preliminary injunction, asserts a socalled “class-of-one” equal protection claim. More specifically, Count 1 of PPAU’s complaint alleges that “[d]efendants’ actions in singling out PPAU for unfavorable treatment without adequate justification violate[d] PPAU’s rights as guaranteed by the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.” App. at 19–20. In its simultaneously-filed motion for preliminary injunction, PPAU argued that Herbert “has singled out PPAU and is treating it differently than all other federal grant recipients for reproductive health services.” Dist. Ct. Docket No. 3 at 3. PPAU in turn argued that “[t]he
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State lacks any compelling, or even legitimate, governmental interest for distinguishing between [PPAU] and other federal grant recipients providing reproductive health services and education who have and will be approved for receiving federal funds administered by the State, and whose existing contracts were not terminated or rejected for renewal.” Id. at 4–5. PPAU concluded by arguing that “[t]his disparate treatment is a violation of PPAU’s constitutional rights under the Equal Protection Clause of the Fourteenth Amendment.” Id.
In Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000), the Supreme Court held that the Equal Protection Clause gives rise to a cause of action even if a plaintiff does not belong to a particular class or group. To prevail on this class-of-one theory, a plaintiff must allege and prove (1) “that [it] has been intentionally treated differently from others similarly situated” and (2) “that there is no rational basis for the difference in treatment.” Id. In other words, the “paradigmatic” class-of-one case arises when “a public official inflicts a cost or burden on one person without imposing it on those who are similarly situated in material respects, and does so without any conceivable basis other than a wholly illegitimate motive.” Jicarilla Apache Nation v. Rio Arriba Cnty., 440 F.3d 1202, 1209 (10th Cir. 2006). We have emphasized that a class-of-one plaintiff must identify others “similarly situated in every material respect.” Id. at 1210. “Depending on the case and the nature of the differential treatment, the allegations necessary to establish this level of similarity will vary.” Haik v. Salt
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Lake City Corp., 567 F. App’x 621, 632 (10th Cir. 2014) (citing Jennings v. City of Stillwater, 383 F.3d 1199, 1214 (10th Cir. 2004)). A class-of-one claim fails if there is “either a rational basis for the [challenged] treatment” or “a material difference” between the plaintiff and others who were allegedly similarly situated. Jicarilla, 440 F.3d at 1210.
Defendants argue, as a threshold matter, that PPAU cannot establish a likelihood of success on the merits of its class-of-one equal protection claim because the claim is effectively precluded by the Supreme Court’s decision in Engquist v. Oregon Dep’t of Agriculture, 553 U.S. 591 (2008). At issue in Engquist was “whether a public employee can state a claim under the Equal Protection Clause by alleging that she was arbitrarily treated differently from other similarly situated employees, with no assertion that the different treatment was based on the employee’s membership in any particular class.” 553 U.S. at 594. The Supreme Court concluded, based upon its “traditional view of the core concern of the Equal Protection Clause as a shield against arbitrary classifications, combined with unique considerations applicable when the government acts as employer as opposed to sovereign, . . . that the class-of-one theory of equal protection does not apply in the public employment context.” Id. at 598.
In reaching this conclusion, the Court explained that it “ha[s] long held the view that there is a crucial difference, with respect to constitutional analysis,
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between the government exercising ‘the power to regulate or license, as lawmaker,’ and the government acting ‘as proprietor, to manage [its] internal operations.’” Id. (quoting Cafeteria & Restaurant Workers v. McElroy, 367 U.S. 886, 896 (1961)). As a result, the Court noted, it “ha[s] often recognized that government has significantly greater leeway in its dealings with citizen employees than it does when it brings its sovereign power to bear on citizens at large.” Id. at 599. The Court emphasized that its “precedent in the public employee context . . . establishes two main principles.” Id. at 600. “First, although government employees do not lose their constitutional rights when they accept their positions, those rights must be balanced against the realities of the employment context.” Id. “Second, in striking the appropriate balance, [the Court] consider[s] whether the asserted employee right implicates the basic concerns of the relevant constitutional provision, or whether the claimed right can more readily give way to the requirements of the government as employer.” Id.
Continuing, the Court noted that its “[r]ecognition of the class-of-one theory of equal protection on the facts in Olech was not so much a departure from the principle that the Equal Protection Clause is concerned with arbitrary government classification, as it was an application of that principle.” Id. at 602. Olech, the Court noted, “involved the government’s regulation of property,” and “the cases upon which [it] . . . relied concerned property assessment and taxation schemes.” Id. “[S]uch legislative or regulatory classifications,” the Court stated,
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are “expect[ed] . . . to apply without respect to persons.” Id. (internal quotation marks omitted). Thus, the Court stated, “[w]hen those who appear similarly situated are nevertheless treated differently, the Equal Protection Clause requires at least a rational reason for the difference, to ensure that all persons subject to legislation or regulation are indeed being treated alike, under like circumstances and conditions.” Id. (internal quotation marks omitted). And, the Court emphasized, “[w]hat seems to have been significant in Olech and the cases on which it relied was the existence of a clear standard against which departures, even for a single plaintiff, could be readily assessed.” Id. For example, the Court noted, “[t]here was no indication in Olech that the zoning board was exercising discretionary authority based on subjective, individualized determinations—at least not with regard to easement length, however typical such determinations may be as a general zoning matter.” Id. at 602–03.
The Court then concluded that “[t]here are some forms of state action . . . which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments.” Id. at 603. “In such cases,” the Court held, the rule that people should be ‘treated alike, under like circumstances and conditions’ is not violated when one person is treated differently from others, because treating like individuals differently is an accepted consequence of the discretion granted.” Id. “In such situations,” the Court explained, “allowing a challenge based on the arbitrary singling out of a particular person would
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undermine the very discretion that such state officials are entrusted to exercise.” Id.
Ultimately, the Court concluded that “[t]his principle applies most clearly in the employment context, for employment decisions are quite often subjective and individualized, resting on a wide array of factors that are difficult to articulate and quantify.” Id. at 604. The Court stated that, “[u]nlike the context of arm’s-length regulation, such as in Olech, treating similarly situated individuals differently in the employment context is par for the course.” Id. “Thus,” the Court held, “the class-of-one theory of equal protection—which presupposes that like individuals should be treated alike, and that to treat them differently is to classify them in a way that must survive at least rationality review—is simply a poor fit in the public employment context.” Id. at 605. “To treat employees differently,” the Court stated, “is not to classify them in a way that raises equal protection concerns.” Id. “Rather,” the Court stated, “it is simply to exercise the broad discretion that typically characterizes the employeremployee relationship.” Id. And, the Court stated, “[a] challenge that one has been treated individually in this context, instead of like everyone else, is a challenge to the underlying nature of the government action.” Id.
As noted, the defendants in this case argue that Engquist should be extended to government contractors, such as PPAU. They argue that the principles that motivated the Supreme Court’s decision in Engquist apply with
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equal force to government contractors. We have not directly addressed this issue before. But, to date, four other circuits—the First, Seventh, Eighth, and Eleventh Circuits—have extended Engquist beyond the context of government employment. See Caesars Mass. Mgmt. Co. v. Crosby, 778 F.3d 327, 336–37 (1st Cir. 2015) (applying Engquist to preclude four corporate plaintiffs from asserting an equal protection claim arising out of a decision by the Massachusetts Gaming Commission finding them unsuitable as proposed operators of a casino); Srail v. Village of Lisle, 588 F.3d 940, 944–45 (7th Cir. 2009) (extending Engquist to preclude equal protection claim filed by residents of an incorporated subdivision claiming that the village in which they resided violated the Equal Protection Clause by refusing to supply water to subdivisions and schools attended by their children at adequate firefighting pressure and volume); Flowers v. City of Minneapolis, 558 F.3d 794, 799–800 (8th Cir. 2009) (“In light of Engquist, . . . we conclude that while a police officer’s investigative decisions remain subject to traditional class-based equal protection analysis, they may not be attacked in a class-of-one equal protection claim.”); United States v. Moore, 543 F.3d 891, 901 (7th Cir. 2008) (extending Engquist to preclude class-of-one claims challenging prosecutorial decisions); Douglas Asphalt Co. v. Qore, Inc., 541 F.3d 1269, 1274 (11th Cir. 2008) (“We have little trouble applying the reasoning in Engquist . . . to the circumstances in this case involving a government-contractor relationship.”); but see Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135,
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142–43 (2d Cir. 2010) (refusing to extend Engquist to a claim challenging the
state’s exercise of “its regulatory and licensing power”); Hanes v. Zurick, 578
F.3d 491, 495–96 (7th Cir. 2009) (refusing to extend Engquist to bar class-of-one
claim alleging that defendant police officers repeatedly arrested plaintiff without
cause).
Arguably, the most relevant of these circuit cases is Douglas. There, a
highway paving contractor filed suit against Georgia state officials alleging that
they violated his equal protection rights by wrongly singling it out and treating it
differently than other, similarly-situated paving contractors. The Eleventh Circuit
concluded “that Engquist [was] control[ling] . . . and ma[de] clear that [the
contractor] failed to assert a cognizable right to equal protection.” 541 F.3d at
1274. The Eleventh Circuit explained:
In Board of County Commissioners v. Umbehr, 518 U.S. 668, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996), the [Supreme] Court addressed whether independent contractors may bring a § 1983 retaliation claim when a government entity has acted against the contractor’s exercise of free speech. Id. at 671–73, 116 S.Ct. at 2345–46. Having never addressed the issue in the independent contractor context, the Court applied its government employment precedents to the question. Id. at 673–74, 116 S.Ct. at 2346–47. It did so because of the “obvious” similarities between government employees and government contractors with respect to the issue. Id. at 674, 116 S.Ct. at 2347. Specifically, the Court explained that “[t]he government needs to be free to terminate both employees and contractors for poor performance, to improve the efficiency, efficacy, and responsiveness of service to the public, and to prevent the appearance of corruption.” Id. at 674, 116 S.Ct. at 2347. The Court further articulated that “absent contractual, statutory, or constitutional restriction, the government is entitled to terminate [employees and contractors] for
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no reason at all.” Id. Just as in the employee context, and in the absence of a restricting
contract or statute, decisions involving government contractors require broad discretion that may rest “on a wide array of factors that are difficult to articulate and quantify.” Engquist, 128 S.Ct. at 2154. Id. In our view, Douglas’s reliance on Umbehr is entirely reasonable. In Umbehr, the Supreme Court stated that “[i]ndependent contractors appear to us to lie somewhere between the case of government employees, who have the closest relationship with the government, and our other unconstitutional conditions precedents, which involve persons with less close relationships with the government.” 518 U.S. at 680. Ultimately, however, the Court rejected the notion that “there is a ‘difference of constitutional magnitude’ between independent contractors and employees in this context.” Id. at 684 (internal citation omitted) (quoting Lefkowitz v. Turley, 414 U.S. 70, 83 (1973)). The Court explained that “[i]ndependent government contractors are similar in most relevant respects to government employees, although both the speaker’s and the government’s interests are typically—though not always—somewhat less strong in the independent contractor case.” Id. In light of Umbehr and Douglas, a relatively strong case can be made that we should follow suit and extend Engquist to cases involving claims asserted by government contractors, unless, of course, there is some unique aspect of the case
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that would take it outside this general rule. Generally speaking, when the government deals with its contractors, it is not acting as sovereign, but rather in a role that is in many ways similar to that of employer. See SECSYS, LLC v. Vigil, 666 F.3d 678, 690 (10th Cir. 2012) (noting that “the government acts in a more proprietorial and less regulatory capacity” when it deals with independent contractors). And, in that role, “[t]he government’s interest in achieving its goals as effectively and efficiently as possible is elevated . . . to a significant one.” Engquist, 553 U.S. at 598. Further, in dealing with its contractors, the government is often called upon to make judgments that are “subjective and individualized.” Id. at 604. In other words, the government is often called upon in this context to “exercise the broad discretion that typically characterizes the [contractee-contractor] relationship.” Id. at 605. All of which leaves no “clear standard against which departures . . . c[an] be readily assessed.” Id. at 602.
We need not, however, definitely resolve the Engquist issue at this very early stage of the litigation. Instead, we simply conclude that PPAU has failed to establish a likelihood of success on the merits of the Engquist issue. In reaching this conclusion, we emphasize that the record on appeal contains no evidence regarding how the State of Utah typically deals with contractors, such as PPAU, with respect to contracts involving federal funding.4 Perhaps there is little to no
4 Contrast that, for example, with the decision in Planned Parenthood Greater Memphis Region v. Dreyzehner, 853 F. Supp. 2d 724 (M.D. Tenn. 2012).
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discretion afforded the State of Utah regarding these contracts and their termination. But all that is contained in the record on appeal are the specific contracts at issue between PPAU and the State of Utah. And as to those contracts, there is no evidence regarding whether PPAU competitively bid for them or whether, instead, PPAU was awarded the contracts through other methods. Further, although PPAU refers to other, similarly-situated contractors in the State of Utah who provide reproductive-related services, there is literally no evidence in the record on appeal regarding these other contractors. For this reason alone, we conclude that PPAU has failed to satisfy its burden of establishing a likelihood of success on the Engquist issue.
Even assuming, for purposes of argument, that we were to reject the defendants’ Engquist argument, we would still conclude that PPAU has failed to establish a substantial likelihood of demonstrating that it was “arbitrarily treated differently from other similarly situated” government contractors. Engquist, 553 U.S. at 594. “[W]e have recognized a substantial burden that plaintiffs” asserting a class-of-one claim “demonstrate others similarly situated in all material respects were treated differently and that there is no objectively reasonable basis for the defendant’s action.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1217
4(...continued) In that case, the district court was presented with detailed information regarding how federal grants are awarded to recipients in the State of Tennessee. Id. at 727–28.
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(10th Cir. 2011) (quotation marks omitted). “It is therefore imperative for the class-of-one plaintiff to provide a specific and detailed account of the nature of the preferred treatment of the favored class.” Jennings v. City of Stillwater, 383 F.3d 1199, 1214 (10th Cir. 2004).
PPAU has failed to meet this substantial burden, at least at this point in the litigation. Although PPAU repeatedly refers, both in its district court pleadings and in its appellate brief, to other, similarly-situated “pass-through funding recipient[s]” in the State of Utah, it fails to specifically identify a single one of them in any of its pleadings. Aplt. Br. at 43. And, relatedly, there is literally no evidence in the record on appeal regarding the State of Utah’s contracts or dealings with contractors other than PPAU.5 PPAU’s failure in this regard leaves us with no standard against which we can compare Herbert’s actions towards PPAU. The result is that PPAU has failed to establish a substantial likelihood of success on the merits of its class-of-one equal protection claim.
b) Unconstitutional conditions claims PPAU asserted two unconstitutional conditions claims in its complaint. To begin with, Count 2 of PPAU’s complaint alleged that “[d]efendants’ actions violate[d] the rights of PPAU as guaranteed by the First Amendment to the United
5 Again, contrast that with the record in Dreyzehner, where the Planned Parenthood organization in that case presented the district court with information regarding a “dozen or so similarly-situated service providers whose contracts were approved.” 853 F. Supp. 2d at 737.
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States Constitution by imposing a penalty based on its speech and/or associations without adequate justification.” App. at 20. In support, PPAU alleged that it “advocates for access to abortion” and “associates with” others to do the same. Id. at 14. PPAU also alleged in its motion for preliminary injunction that its “association with other Planned Parenthood providers who participate in lawful programs that allow abortion patients to donate fetal tissue for scientific research . . . is protected by the First Amendment,” and that Herbert’s Directive was intended to punish PPAU for this association. Dist. Ct. Docket No. 3 at 3. Finally, at the hearing on its motion for preliminary injunction, PPAU again argued that the Directive infringed upon its First Amendment rights to advocate for legal abortions and associate with other organizations for political, social, and education reasons. App. at 475–76.
Count 3 of PPAU’s complaint also alleged an unconstitutional conditions claim. It alleged that “[d]efendants’ actions violate[d] the rights of PPAU and its patients as guaranteed by the Fourteenth Amendment to the United States Constitution to provide and access abortion services by imposing a penalty on PPAU for the provision of and/or association with abortion services without adequate justification.” App. at 21. At the hearing on its motion for preliminary injunction, PPAU explained that it has a constitutional right to provide facilities for women who choose to exercise their substantive due process rights under the Fourteenth Amendment to have legal abortions. Id. at 476.
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The Supreme Court “ha[s] said in a variety of contexts that ‘the government may not deny a benefit to a person because he exercises a constitutional right.’” Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586, 2594 (2013) (quoting Regan v. Taxation With Representation of Wash., 461 U.S. 540, 545 (1983)). “Those cases reflect an overarching principle, known as the unconstitutional conditions doctrine, that vindicates the Constitution’s enumerated rights by preventing the government from coercing people into giving them up.” Id.
The Supreme Court “has applied this doctrine in two distinct contexts.” Planned Parenthood of Kan. v. Moser, 747 F.3d 814, 838 (10th Cir. 2014). “First, the doctrine has been applied when the condition acts prospectively in statutes or regulations that limit a government-provided benefit—typically a subsidy or tax break—to those who refrain from or engage in certain expression or association.” Id. at 838–839. “Second, the unconstitutional-conditions doctrine has been applied when the condition acts retrospectively in a discretionary executive action that terminates a government-provided benefit—typically public employment, a government contract, or eligibility for either—in retaliation for prior protected speech or association.” Id. at 839
This latter context is exemplified by Umbehr. There, the Court applied the doctrine in concluding that “the First Amendment protects independent contractors from the termination of at-will government contracts in retaliation for
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their exercise of the freedom of speech.” 518 U.S. at 670. The Court in turn held that the “balancing test” outlined in Pickering v. Board of Education of Township High School District 205, 391 U.S. 563, 568 (1968), “adjusted to weigh the government’s interests as contractor rather than as employer, determines the extent of [the independent contractor’s] protection.” 518 U.S. at 673. To prevail under this balancing test, the Court held, the independent contractor “must show that the termination of his contract was motivated by his speech on a matter of public concern.” Id. at 685. “If he can make that showing,” the Court held, the government “will have a valid defense if it can show, by a preponderance of the evidence, that, in light of [its] knowledge, perceptions, and policies at the time of the termination, [it] would have terminated the contract regardless of the [contractor’s] speech.” Id. The government “will also prevail,” the Court stated, “if it can persuade the . . . [c]ourt that the [government]’s legitimate interests as contractor, deferentially viewed, outweigh the free speech interests at stake.” Id.
PPAU’s unconstitutional conditions claims appear to us to fit comfortably within the context exemplified by Umbehr. As previously noted, PPAU has alleged in those claims that Herbert took a discretionary executive action, i.e., issuing the Directive, that terminated PPAU’s contractual relationships with UDOH and was motivated by PPAU’s engagement in the following activities: “associat[ing] with other Planned Parenthood providers who participate in lawful programs that allow abortion patients to donate fetal tissue for scientific
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research,” Dist. Ct. Docket No. 3 at 3; advocating for legal abortions, App. at 475; associating with organizations for political, social and education reasons, id. at 476; and providing abortion services to its patients.
Defendants do not dispute that Herbert issued the Directive or that its effect would be to terminate PPAU’s contracts with UDOH. Defendants do dispute, however, whether PPAU engaged in activities protected by the First Amendment and whether Herbert’s issuance of the Directive was motivated by either PPAU’s exercise of its First Amendment or Fourteenth Amendment rights. We therefore address these issues in turn.
In challenging whether PPAU engaged in any First Amendment-protected activities, defendants argue that no court has ever held that the “fundamental right to abortion includes the right to sell fetal tissue.” Dist. Ct. Docket No. 19 at 19. Defendants also argue that no court has “extend[ed] th[e] First Amendment right of association to encompass the right to associate in furtherance of illegal acts such as selling fetal tissue.” Id. These arguments, however, miss the mark. Quite simply, PPAU has never alleged that it possessed or exercised any such rights.
Focusing on the First Amendment rights that PPAU has actually identified in Count 2 of its complaint, we have little trouble in concluding that they are valid. “The First Amendment creates ‘an open marketplace’ in which differing ideas about political, economic, and social issues can compete freely for public
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acceptance without improper government interference.” Knox v. Serv. Emp. Int’l Union, Local 1000, 132 S. Ct. 2277, 2288 (2012) (quoting New York State Bd. of Elections v. Lopez Torres, 552 U.S. 196, 208 (2008)). “The government may not prohibit the dissemination of ideas that it disfavors, nor compel the endorsement of ideas that it approves.” Id. “And the ability of like-minded individuals to associate for the purpose of expressing commonly held views may not be curtailed.” Id. PPAU has alleged consistently, without dispute from defendants, that it advocates for abortion rights and associates with other entities, including Planned Parenthood, to do the same.
PPAU has also alleged in Count 3, without serious challenge from defendants, a Fourteenth Amendment right. The Supreme Court has recognized that “the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action . . . encompass[es] a woman’s decision whether or not to terminate her pregnancy.” Roe v. Wade, 410 U.S. 113, 153 (1973). The Court has also recognized that, “because abortion is a medical procedure, . . . the full vindication of the woman’s fundamental right necessarily requires that her” medical provider be afforded the right to “‘make his best medical judgment,’” which includes “implementing [the woman’s decision] should she choose to have an abortion.” City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 427 (1983) (quoting Doe v. Bolton, 410 U.S. 179, 192 (1973)), overruled on other grounds by Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992); see also
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Planned Parenthood of Mid-Mo. and E. Kan., Inc. v. Dempsey, 167 F.3d 458, 464
(8th Cir. 1999) (“Any constitutional right of clinics to provide abortion services .
. . is derived directly from women’s constitutional right to choose abortion.”);
Planned Parenthood of Wis. v. Doyle, 162 F.3d 463, 471 (7th Cir.1998) (“The
constitutional right to an abortion carries with it the right to perform medical
procedures that many people find distasteful or worse.”).
Having determined that PPAU has identified valid First and Fourteenth
Amendment rights, that leaves the question of whether PPAU can establish that
Herbert issued the Directive in retaliation for PPAU’s exercise of those rights.
The district court concluded that PPAU failed to establish a likelihood of success
on this point and offered the following rationale in support of its conclusion:
Plaintiff contends that Governor Herbert’s opposition to abortions and Plaintiff’s association with other pro-choice entities was the substantial or motivating force behind his directive to terminate the contracts. It points to the Governor’s participation in an antiabortion protest mere days after his press release, during which he said he was there to speak out for the sanctity of life. These facts fall short of proving, however, that Governor Herbert’s opposition to abortion was a substantial or motivating factor for terminating the contracts.
Gary Herbert has been the Governor of Utah for the past six years. Although Plaintiff has been associated with other pro-choice entities since Governor Herbert took office and it started performing abortions in Utah in 2011, the Governor still allowed the Department to enter into and maintain contracts with Plaintiff. It was not until the videos were released that the Governor acted to terminate the contracts. Indeed, Plaintiff alleges and the defendants do not dispute that the Governor said, “We now have video where they’re selling fetus body parts for money and it’s an outrage and the people of Utah
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are outraged. I’m outraged. So for coloring outside the lines, [Plaintiff] forfeits some of [its] benefits.” Complaint, ¶ 14 (Dkt. No. 2). Both the Governor’s words and the temporal proximity between the release of the videos and his directive to terminate the contracts support he did not retaliate against Plaintiff based upon its right of association nor its right to advocate for and perform abortions. Therefore, the court concludes Plaintiff is unlikely to prevail on its unconstitutional condition claims.
App. at 494–495.
We conclude that the district court’s analysis is unconvincing.6 Focusing
on what the district court described as “the Governor’s words,” id. at 495, the
Directive itself repeatedly refers to PPAU as “Planned Parenthood,” states that
“[t]he allegations against Planned Parenthood are deeply troubling,” notes that
“[t]he federal government has provided grants to Planned Parenthood, distributed
through the Utah Department of Health,” and ultimately states that Herbert
“instructed state agencies to cease acting as an intermediary for pass-through
federal funds to Planned Parenthood.” App. Vol. 1 at 51. The Directive thus fails
to distinguish between PPAU and Planned Parenthood (or, for that matter,
6 As we read the above-quoted language, the district court was merely assessing the limited evidence presented by the parties and determining, as a matter of law, whether PPAU had established a likelihood of succeeding on its unconstitutional conditions claim. Indeed, it would have been unusual for the district court to make a factual finding on this key issue, given the procedural posture of the case, the fact that no witnesses testified at the preliminary injunction hearing, and the fact that Herbert has not been deposed yet. See Wright et al., supra, § 2950, at 271-72 (“it is inappropriate for the court at a Rule 65(a) hearing to make findings of fact or conclusions of law that go beyond what is necessary to decide whether a preliminary injunction should be issued”). In any event, even assuming that the district court intended to make a factual finding on this issue, we conclude that such finding was clearly erroneous.
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Planned Parenthood affiliates in other states) and treats PPAU as if it were the entity implicated in the CMP videos. In other words, reading the Directive in isolation, it appears as though Herbert mistakenly believed that PPAU was implicated in the CMP videos and deserved to be punished for its apparent misconduct.
The same can be said for much of Herbert’s post-Directive statement to the press on August 17, 2015. There, Herbert stated that “[w]e now have video where they’re selling fetus body parts for money and it’s an outrage.” Id. at 56. Herbert further stated that “it happened in their organization” and “for coloring outside the lines, Planned Parenthood forfeits some of their benefits.” Id. In short, these statements to the press again failed to distinguish between PPAU and Planned Parenthood (or Planned Parenthood’s affiliates in other states) and suggested either that Herbert believed that PPAU was involved in the wrongdoing depicted by the CMP videos or failed to appreciate the organizational distinctions between PPAU, Planned Parenthood, and Planned Parenthood’s other affiliates.
If that were all the evidence we had before us, we would thus be left to conclude that the most reasonable finding a court or jury could make is that the Directive was issued based upon a mistake of fact made by Herbert, rather than upon any motivation by Herbert to punish PPAU for its First or Fourteenth Amendment activities. But PPAU has presented additional evidence which leads us to a different conclusion.
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During the press conference on August 17, 2015, Herbert acknowledged
that the events depicted in the video “may not have happened in Utah.” Id. And
in opposing PPAU’s motion for preliminary injunction in the district court,
Herbert made more specific admissions.7 To begin with, he admitted that the
CMP videos involved other affiliates of Planned Parenthood and not PPAU. Id. at
12; Dist. Ct. Docket No. 19 at ix. Herbert further admitted that “there is no
evidence, or even accusation, that PPAU has ‘colored outside’ of any lines,
including because PPAU does not participate in any program that provides fetal
tissue for scientific research.” App., Vol. 1 at 12; Dist. Ct. Docket No. 19 at ix.
Herbert also admitted that none of the federal funds that flow through the UDOH
to PPAU are “used to provide abortions.” App., Vol. 1 at 12; Dist. Ct. Docket
No. 19 at ix. In addition, Herbert admitted that the accusations made by CMP in
7 The dissent attempts to downplay this evidence, stating that it derives in part from “excerpts from PPAU’s unsworn complaint,” which the dissent asserts “is not evidence,” and also from what the dissent characterizes as “an excerpt from the defendants’ brief in district court opposing PPAU’s motion for preliminary injunction.” Dissent at 7. In fact, it is the combination of the two documents that renders these so-called “excerpts” relevant. To begin with, PPAU’s complaint contains numerous factual allegations regarding Herbert’s issuance of the Directive. App., Vol. 1 at 11-14. Defendants, in their memorandum in opposition to PPAU’s motion for preliminary injunction, stated: “For only the purposes of this brief opposing [PPAU’s] motion for preliminary injunction, Governor Herbert does not dispute the factual allegations in paragraphs 12 through 22 of [PPAU’s] Complaint describing his response to the [CMP] videos.” Dist. Ct. Docket No. 19 at ix. In other words, Herbert admitted the factual allegations contained in paragraphs 12 through 22 of PPAU’s complaint for purposes of the preliminary injunction proceedings. Thus, contrary to the dissent’s assertion, it is proper for us to treat these admissions as evidence.
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the videos regarding Planned Parenthood and its other affiliates had not been proven and indeed were false. App., Vol. 1 at 11-12; Dist. Ct. Docket No. 19 at ix. Lastly, Herbert essentially agreed that the national “political climate . . . [wa]s very hostile to Planned Parenthood.” App., Vol. 1 at 3; Dist. Ct. Docket No. 19 at viii-ix. Nevertheless, Herbert has steadfastly refused to retract the Directive. App., Vol. 2 at 394, 396.
PPAU also points to Herbert’s participation in a pro-life event held in the rotunda of the Utah State Capitol on August 19, 2015, five days after he issued the Directive. The purpose of the event was “to ask lawmakers to defund [PPAU].” App., Vol. 1 at 59. During the event, Herbert made two statements to the crowd regarding abortion. To begin with, Herbert stated, “I’m here today to add my voice to yours and speak out on the sanctity of life.” Id. Herbert then stated, “The thing I find most appalling is the casualness, the callousness . . . the lack of respect, the lack of sensitivity to the unborn.” Id. at 11.
Considering all of this evidence together, we conclude that a reasonable finder of fact is more likely than not to find that Herbert issued the Directive to punish PPAU for the First and Fourteenth Amendment rights it has identified in this litigation. In particular, we conclude that a reasonable finder of fact is more likely than not to find that Herbert, a politician and admitted opponent of abortion, viewed the situation that presented itself by release of the CMP videos as an opportunity to take public action against PPAU, deprive it of pass-through
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federal funding, and potentially weaken the organization and hamper its ability to provide and advocate for abortion services. This seems especially true given Herbert’s concession that the allegations made by CMP are unproven and in fact false, and in light of the current political climate, including the efforts by abortion opponents both in the State of Utah and nationally to defund Planned Parenthood and its affiliates.
Of course, that leaves the possibility that defendants can assert a valid defense to the unconstitutional conditions claims asserted by PPAU. As we previously noted, defendants “will have a valid defense if [they] can show, by a preponderance of the evidence, that, in light of [their] knowledge, perceptions, and policies at the time of the termination, [they] would have” issued the Directive “regardless of” PPAU’s First and Fourteenth Amendment activities. Umbehr, 518 U.S. at 685. Second, defendants can “also prevail if [they] can persuade [us] that [their] legitimate interests as contractor, deferentially viewed, outweigh the free speech interests at stake.” Id.
Notably, defendants have never attempted, either below or on appeal, to invoke either of these defenses. Specifically, as to the first defense, defendants have never asserted that Herbert would have issued the Directive absent the release of the CMP videos. As for the second defense, defendants did argue in their response to the motion for preliminary injunction that “[a] contractor’s undisputed affiliation with a group alleged to be engaged in such illegal activity
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is ‘a reasonable justification’ for terminating the contract,” Dist. Ct. Docket No. 19 at 15 (quoting Kansas Penn Gaming, 656 F.3d at 1216), “to prevent the very ‘appearance of corruption’ Utah is entitled to avoid,” id. (quoting Umbehr, 518 U.S. at 674). But that argument was asserted only in the section addressing PPAU’s class-of-one equal protection claim and was not repeated in the section addressing the unconstitutional conditions claims. Moreover, the argument is not repeated in the defendants’ appellate brief. As a result, we conclude, for purposes of this appeal, that defendants have not adequately raised the argument in opposition to the unconstitutional conditions claim.
In summary, we conclude that PPAU has established a substantial likelihood of success on the merits of its unconstitutional conditions claims and that the district court erred in concluding otherwise.
Likelihood of irreparable harm to PPAU “‘A plaintiff suffers irreparable injury when the court would be unable to grant an effective monetary remedy after a full trial because such damages would be inadequate or difficult to ascertain.’” Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012) (quoting Dominion Video Satellite, Inc. v. EchoStar Satellite Corp., 269 F.3d 1149, 1156 (10th Cir. 2001)). “When an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” Kikumura v. Hurley, 242 F.3d 950, 963 (10th Cir. 2001) (quoting 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice
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and Procedure § 2948.1 (2d ed. 1995)). Indeed, the Supreme Court has held that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1975).
The district court in this case concluded that PPAU failed to establish the likelihood of irreparable harm. The district court based this conclusion primarily on its determination that PPAU “likely will not be able to show it suffered a constitutional harm.” App. at 495. The district court also stated that “[a]ny financial harm [PPAU] has suffered from the contracts’ termination can be redressed.” Id. Finally, the district court rejected PPAU’s argument that it would “suffer irreparable reputational harm if an injunction did not issue.” Id. In doing so, the district court noted that there was evidence in the record “that many people have spoken out in favor of [PPAU] following the Governor’s pronouncement.” Id.
We reject most of the district court’s analysis on this issue. To begin with, we conclude that PPAU has, in fact, demonstrated a substantial likelihood of success on the merits of its unconstitutional conditions claims. We in turn conclude that the likelihood that PPAU will suffer a violation of its First Amendment rights if the Directive is left in place, standing alone, gives rise to an irreparable injury. See Elrod, 427 U.S. at 373; Kikumura, 242 F.3d at 963 (reaching similar conclusion). More specifically, we conclude that “[d]amages
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would [likely] be inadequate or difficult to ascertain” for such a constitutional violation. Awad, 670 F.3d at 1131 (quoting Dominion, 269 F.3d at 1156).
As for the financial harm that PPAU would incur as a result of the Directive, i.e., the loss of the federal funds it would have received pursuant to the terms of the contracts at issue, the district court was correct that these damages could be redressed (although that would, as a result of the Eleventh Amendment, have to be in a state court action filed by PPAU). See Heideman v. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003) (“[E]conomic loss usually does not, in and of itself, constitute irreparable harm.”).
But the district court was also wrong in concluding that there was no likelihood of harm to PPAU’s reputation. Contrary to the district court’s assertion, the fact that approximately 1,800 Utah residents sent correspondence to Herbert in favor of PPAU following his issuance of the Directive does not eliminate the likelihood of irreparable harm to PPAU’s reputation. As noted by PPAU, “there are over two million Utah citizens,” meaning that the small amount of correspondence that Herbert received from PPAU supporters was “a drop in the bucket.” Aplt. Br. at 69. Further, we conclude that the Directive could, due in part to its ambiguity, reasonably be interpreted by many Utah residents as an indication that PPAU was somehow involved with the CMP videos or was otherwise engaged in the selling of fetal tissue. And we agree with PPAU that, as a provider of medical services, its “reputation is . . . critical to maintaining the
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trust of its patients.” Dist. Ct. Docket No. 3 at 16. Finally, the district court wholly ignored PPAU’s argument that the
Directive “threaten[ed] to irreparably harm [PPAU]’s ability to serve the high-risk men, women, and teens and their parents, all of whom are the subjects and recipients of the programs that the Governor’s Directive directly affects.” Id. More specifically, PPAU argued that the Directive “threaten[ed] to increase unwanted pregnancies among these groups, as well as [to] increas[e] the risk that these patients will contract and/or transmit potentially life-threatening STDs.” Id. Because, however, these arguments appear to be focused on the impact of the Directive on the public as opposed to PPAU itself, they will be considered below in connection with our analysis of the public interest requirement.
In sum, we conclude that PPAU has established a likelihood that it will suffer irreparable reputational harm if a preliminary injunction is not issued.
Does the harm alleged by PPAU outweigh any harm to defendants? In analyzing this factor, the district court began by noting that the Directive “did not terminate [PPAU] as a Medicaid provider” or “preclude [PPAU] from advocating for or performing abortions.” App. at 496. The district court also noted that “the defendants have not sought to preclude [PPAU] from receiving funding directly from the federal government, as [it] has done in the past.” Id. The district court then turned to the defendants’ interests and concluded that if they were “enjoined from terminating the contracts, their authority to manage
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their affairs will be curtailed.” Id. The district court also concluded that an injunction would “deprive the defendants of their contractual right to terminate the contracts at will.” Id. In addition, the district court concluded that “continuing to allow [PPAU] to provide services under the auspices of the contracts may reasonably be perceived by the citizenry of Utah as approbation of the wrongful conduct” allegedly engaged in by Planned Parenthood. Id. In other words, the district court concluded, “[t]he defendants have discretion under the contracts to consider whether continuation of them would send a message that wrongful conduct is acceptable.” Id. at 497. Because “[t]here is no monetary remedy for such injuries,” the district court concluded, “the injuries to defendants outweigh the injuries to [PPAU].” Id.
The threshold, and ultimately critical, flaw in the district court’s analysis is that it failed to take into account PPAU’s likelihood of success on the merits of its unconstitutional conditions claim and the resulting likelihood of irreparable harm to PPAU. In our view, the possibility of PPAU’s First Amendment rights being irreparably harmed outweighs any opposing interests asserted by defendants.
To the extent that the district court suggested PPAU could replace the funding from other sources, we conclude that there is no basis in the record to support such a conclusion. According to PPAU, the programs at issue “are federally-funded, but administered by the State, and therefore, [it] cannot
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participate in these programs except through UDOH.” Aplt. Br. at 71-72. Indeed, PPAU alleges, the “UDOH unsuccessfully attempted to find a work-around [for the Directive] by which PPAU could obtain funding for the programs at issue directly from the federal government.” Id. at 72.
Finally, we agree with PPAU that the issuance of a preliminary injunction in its favor would not infringe upon defendants’ ability and right to manage the contracts at issue and, if necessary, to terminate them for a proper reason (i.e., any reason that would not result in a violation of PPAU’s constitutional rights). Although defendants assert in response that an injunction would deprive them of “their discretion under the contracts to consider whether continuation of them would send a message that wrongful conduct is acceptable,” again there is no evidence in the record, nor even any allegation, that PPAU has engaged in any wrongful conduct. Aplee. Br. at 55 (internal quotation marks omitted).
We therefore conclude that the potential harm to defendants from the issuance of an injunction does not outweigh the harm to PPAU that will likely result if the injunction is not issued.
Is an injunction in the public interest? In addressing this factor, the district court acknowledged that “some members of the public may be harmed if the contracts terminate,” but the court did not otherwise elaborate on this point. App. at 497. But “[b]alanced against this harm,” the district court stated, “is the right of the elected Governor of this
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State to make decisions about what is in the best interests of the State.” Id. Because “[t]hese contracts relate to discretionary programs,” the district court concluded, “[i]t is contrary to the public’s interest to remove from the Governor the very discretion his position entails.” Id. “Indeed,” the district court concluded, “these are the types of decisions that should be left to elected officials and not managed by the courts.” Id. Consequently, the district court “conclude[d] it is not in the public interest to enjoin the defendants from terminating the contracts at issue.” Id.
We again reject the district court’s analysis. In assessing this factor, the district court again failed to take into account PPAU’s likelihood of success on its unconstitutional conditions claims. Assuming, for purposes of argument, that the Directive violates PPAU’s First Amendment rights, the citizens of Utah have a public interest in ensuring that such an order is not enforced. In other words, the citizens of Utah have an interest in ensuring that their elected public officials do not engage in conduct that violates the constitutional rights of another citizen.
Further, although the district court conceded that some members of the public might be harmed by the Directive, it failed to give adequate consideration to this potential harm. Throughout the district court proceedings, defendants conceded the importance of the programs at issue to the citizens of Utah. But defendants argued in their response to PPAU’s motion that Herbert issued the Directive only “after considering whether other available and adequate health
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providers would provide these same services” to the citizens of Utah. Dist. Ct. Docket No. 19 at 26. At the hearing on the motion, however, defendants reversed course and conceded that, in fact, no other providers would be able to provide some of these same services. App. at 459-460. Notably, the district court made no mention of this fact in its decision.8
As PPAU notes in its motion, the Directive “threatens to increase unwanted pregnancies among the[] groups [served by the programs at issue], as well as [to] increas[e] the risk that these patients will contract and/or transmit potentially lifethreatening STDs.” Dist. Ct. Docket No. 3 at 16. This serious potential harm, particularly when combined with the potential violation of PPAU’s constitutional rights, is sufficient to outweigh Herbert’s interest in exercising his discretion to terminate the contracts at issue with PPAU, particularly given that the exercise of that discretion may violate PPAU’s constitutional rights.
One final point merits discussion. We agree with defendants that “[w]here . . . the exercise of authority by state officials is attacked, federal courts must be constantly mindful of the ‘special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.’” Rizzo v. Goode, 423 U.S. 362, 378 (1976) (quoting Stefanelli v. Minard, 342 U.S. 117,
8 Likewise, the dissent states that “[t]he record . . . contains evidence that Governor Herbert thought that the directive would not harm Utah citizens.” Dissent at 11 n.7 (citing a newspaper article quoting Herbert). Herbert’s initial statements on this matter, however, are belied by defendants’ subsequent concessions.
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120 (1951)). That concern was exemplified in Rizzo, where the plaintiffs sought the extreme measures of appointment of a receiver to supervise the Philadelphia police department and civilian review of police activity. The requested injunctive relief in this case, in contrast, is much narrower in scope and does not, in our view, implicate the concerns raised in Rizzo. Specifically, the requested injunction in this case would simply preserve the status quo until the merits of PPAU’s claims can be litigated and would not otherwise prevent the defendants from administering the contracts at issue.
III For the reasons outlined above, we conclude that PPAU satisfied each of the four requirements for issuance of a preliminary injunction and that the district court abused its discretion in concluding otherwise. Consequently, we REVERSE and REMAND with directions to issue a preliminary injunction in favor of PPAU.
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Planned Parenthood Association of Utah v. Herbert, et al., No. 15-4189 BACHARACH, J., concurring in part and dissenting in part.
The majority concludes that Planned Parenthood Association of Utah (“PPAU”) has satisfied its burden on each of the four elements of the test for a preliminary injunction. Accordingly, the majority reverses and remands with instructions to grant PPAU’s motion for a preliminary injunction. I join the majority’s discussion of the equal protection claim. See Maj. Op. at 14-25. But I respectfully dissent from the majority’s disposition of the claims involving unconstitutional conditions. On these claims, I believe that the district court acted within its discretion in concluding that PPAU had not shown a likelihood of success.1
PPAU’s claims grew out of Governor Herbert’s directive that the Utah Department of Health terminate its contractual relationships with PPAU. According to PPAU, this directive placed unconstitutional conditions on PPAU’s exercise of its
1. First Amendment right to advocate for reproductive choice and associate with the national Planned Parenthood organization for purposes of pro-choice advocacy and
2. Fourteenth Amendment right to provide access to abortion services.
1 In light of this conclusion on likelihood of success, I would decline to address the three other elements of the test for a preliminary injunction.

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I believe that the district court acted within its discretion in concluding that PPAU had not shown a likelihood of success on the claims involving unconstitutional conditions. I. We review the district court’s decision for an abuse of discretion.
We review the district court’s ruling for an abuse of discretion. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003). A district court abuses its discretion if it “commits an error of law, or is clearly erroneous in its preliminary factual findings.” Prairie Band of Potawatomi Indians v. Pierce, 253 F.3d 1234, 1243 (10th Cir. 2001) (quoting Am. Civil Liberties Union v. Johnson, 194 F.3d 1149, 1155 (10th Cir. 1999)). II. We should not relax PPAU’s burden to demonstrate likelihood of
success on the merits. PPAU urges us to relax the likelihood-of-success element. According to PPAU, it satisfied the other elements for a preliminary injunction, which softens the burden on likelihood of success to require only a showing that the issue is serious, substantial, difficult, and doubtful. Appellant’s Opening Br. at 39-40. For this argument, PPAU relies on Nova Health Systems v. Edmondson, 460 F.3d 1295, 1298 n.6 (10th Cir. 2006). I
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disagree because Nova Health Systems has been implicitly overruled by Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008).2
Before Winter was decided, we held that the likelihood-of-success element is “somewhat relaxed” when the other three elements “tip decidedly” in favor of the movant. Heideman v. S. Salt Lake City, 348 F.3d 1182, 1189 (10th Cir. 2003) (emphasis in original). This approach is no longer tenable in light of Winter. In Winter, the Supreme Court addressed the Ninth Circuit’s relaxed standard for irreparable injury, which had required a movant to show only a “possibility” of irreparable injury if the movant demonstrated a strong likelihood of prevailing on the merits. Winter, 555 U.S. at 21. The Supreme Court rejected this relaxed standard as “too lenient.” Id. at 22.
The Fourth Circuit Court of Appeals extended Winter to the likelihood-of-success inquiry, holding that the court could no longer apply a relaxed standard for likelihood of success. Pashby v. Delia, 709 F.3d 307, 320-21 (4th Cir. 2013). In dicta, the D.C. Circuit has likewise indicated that “a likelihood of success is an independent, free-standing requirement for a preliminary injunction.” Sherley v. Sebelius, 644 F.3d
2 The majority also requires proof of likelihood of success and has not applied the relaxed standard urged by PPAU. But because the majority concludes that PPAU is likely to succeed even under the traditional standard, the majority does not decide whether to relax PPAU’s burden on likelihood of success.
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388, 393 (D.C. Cir. 2011) (quoting Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1296 (D.C. Cir. 2009) (Kavanaugh, J., concurring)).
The Second, Seventh, and Ninth Circuits have upheld their relaxed likelihood-of-success standards in the face of Winter. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011); Citigroup Global Mkts., Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35-38 (2d Cir. 2010); Hoosier Energy Rural Elec. Coop., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009).
I disagree with these courts and agree with the Fourth Circuit and the D.C. Circuit. In Winter, the Supreme Court reasoned that
x “plaintiffs seeking preliminary relief [must] demonstrate that irreparable injury is likely in the absence of an injunction” and
x issuing a preliminary injunction after applying a lessdemanding test is inconsistent with the Court’s characterization that “injunctive relief [is] an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.”
Winter, 555 U.S. at 22 (emphasis in original). In the same opinion, the Court reiterated that to obtain a preliminary injunction, a plaintiff must prove not only a likelihood of irreparable injury but also a likelihood of success on the merits. Id. at 20. And if the Court disallowed softening of the burden on irreparable injury because of the need for the movant to clearly show entitlement to a preliminary injunction, we should not allow entry of a preliminary injunction based only on a possibility of success on
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the merits. Winter requires a movant to establish each of the four preliminary injunction elements and does not allow relaxation of the burden on one element based on the proof of another. Thus, I would decline to apply the relaxed standard in district court. There, PPAU had to show that it was likely to succeed on the merits. III. The district court acted within its discretion in concluding that
PPAU was unlikely to persuade the jury that Governor Herbert had acted with a purpose of interfering with constitutionally protected conduct. Applying the proper test, the district court concluded that PPAU was unlikely to succeed on the merits, reasoning that PPAU could not prove that Governor Herbert issued the directive as punishment for the exercise of constitutional rights. This ruling fell within the district court’s discretion. See Verlo v. Martinez, 820 F.3d 1113, 1128 (10th Cir. 2016) (applying the abuse-of-discretion standard to the inquiry on likelihood of success). As noted, PPAU claims that Governor Herbert put unconstitutional conditions on PPAU’s exercise of x its First Amendment rights to advocate for reproductive choice
and associate with others in furtherance of such advocacy and x its Fourteenth Amendment right to provide abortion-related
services.
The First Amendment protects PPAU’s pro-choice advocacy and association in furtherance of pro-choice advocacy. See Hill v. Colorado,
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530 U.S. 703, 714-15 (2000); City of Dallas v. Stanglin, 490 U.S. 19, 24
(1989); Planned Parenthood of Kan. and Mid-Mo. v. Moser, 747 F.3d 814,
838-39 (10th Cir. 2014). And I assume, for the sake of argument, that
PPAU has a Fourteenth Amendment right to provide abortion-related
services. Cf. Planned Parenthood of Mid-Mo. & E. Kan., Inc. v. Dempsey,
167 F.3d 458, 464 (8th Cir. 1999) (stating that a Planned Parenthood
affiliate’s right to perform abortions “is derived directly from women’s
constitutional right to choose abortion”).
At trial, PPAU would need to show that its protected conduct—
advocacy for reproductive choice, association with pro-choice advocates,
and provision of abortion services—was a substantial or motivating factor
for Governor Herbert’s directive. See Moser, 747 F.3d at 839. If PPAU had
made this showing, the burden would shift to the defendants to show that
the governor “would have taken the same action even in the absence of the
protected conduct.” Bd. of Cty. Comm’rs v. Umbehr, 518 U.S. 668, 675 (1996).3
3 The majority contends that the “defendants have never asserted that Herbert would have issued the Directive absent the release of the CMP videos.” Maj. Op. at 36. But the release of the videos is not the constitutionally protected conduct asserted by PPAU; the constitutionally protected conduct is PPAU’s pro-choice advocacy, association with similar advocates, and provision of abortion services. Thus, the defendants must show that Governor Herbert would have issued the directive in the absence of PPAU’s pro-choice speech, affiliations, and abortion services. The defendants argued throughout that Governor Herbert would have issued the directive regardless of the allegedly protected conduct. See Appellee’s
6

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The district court concluded that PPAU had failed to show that Governor Herbert’s animus toward abortion was a substantial or motivating factor in issuing the directive. This conclusion fell within the district court’s discretion. In determining PPAU’s likelihood of success on the merits, the district court had little evidence to go on. Though PPAU bore the burden of proof on likelihood of success, PPAU presented no testimony at the preliminary injunction hearing. Based on the sparse record, the district court could easily conclude that Governor Herbert believed the allegations of illegality from the videos, just as he said he did.
The majority contends that Governor Herbert “admitted that the accusations made by [the Center for Medical Progress] in the videos regarding Planned Parenthood and its other affiliates had not been proven and indeed were false.” Maj. Op. at 34-35. I respectfully disagree with this interpretation of the record.
For its interpretation of the record, the majority relies on (1) excerpts from PPAU’s unsworn complaint and (2) an excerpt from the defendants’ brief in district court opposing PPAU’s motion for a preliminary injunction. See id. The unsworn complaint is not evidence. But even in the
Resp. Br. at 48 (arguing that the district court correctly concluded that PPAU’s constitutional claims are not likely to succeed on the merits because “neither abortion itself, nor speaking about it, nor associating with others to advocate for it had anything to do with the Governor’s decision”); Dist. Ct. Docket No. 19 at 28-30 (defendants making the same argument in response to PPAU’s motion for a preliminary injunction).
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complaint, PPAU does not allege that Governor Herbert conceded that the allegations were false. Instead, PPAU alleges only that Governor Herbert acknowledged that the conduct depicted in the videos had not taken place in Utah. Appellant’s App’x, vol. I at 12. In addition, the majority cites page ix of the defendants’ brief in district court, opposing PPAU’s motion for a preliminary injunction. But this excerpt again does not suggest that Governor Herbert conceded that he had mistakenly interpreted the video evidence or that this evidence was false. Nowhere has PPAU presented evidence of a concession by Governor Herbert that the video evidence was false or misinterpreted.
Our task is not to assess the soundness of the governor’s decision. Instead, we must decide whether the district court had the discretion to conclude that the fact-finder was likely to regard Governor Herbert’s motivation as something other than punishment of PPAU for exercising its constitutional rights.
In my view, the district court did not abuse its discretion. This conclusion is supported by Governor Herbert’s statements that the directive was based on videos depicting purportedly illegal activity by an affiliated entity.4 Appellant’s App’x, vol. 1 at 51 (Governor Herbert’s
4 The Salt Lake Tribune also reported that Governor Herbert had said: We now have a video where [Planned Parenthood is] selling fetus body parts for money and it’s an outrage and the people 8

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official public statement, following the directive).5 Indeed, PPAU even
alleged in the complaint that Governor Herbert had based his directive on
allegations of misconduct against affiliates of Planned Parenthood. Id. at 7,
11.
PPAU points to Governor Herbert’s contemporaneous
acknowledgment that the pass-through funding was not used for abortion
services, contending that the acknowledgment was unnecessary and served
only to distance the directive from abortion. But PPAU provides no
evidence to support this contention. In my view, the district court had the
discretion to credit Governor Herbert’s stated reason for issuing the
directive.
As further evidence of pretext, PPAU points to the temporal
proximity between the release of the videos and the directive, arguing that
of Utah are outraged. I’m outraged. So for coloring outside the lines, Planned Parenthood forfeits some of their benefits. Appellant’s App’x, vol. 1 at 56. 5 The majority states that Governor Herbert apparently issued the directive based on a mistaken assumption that the video had involved PPAU’s conduct. I respectfully disagree. The record reflects Governor Herbert’s understanding from the outset that the video had depicted conduct by an affiliated Planned Parenthood chapter, not PPAU itself. See Appellant’s App’x, vol. I at 56. But PPAU’s claim involves reliance on unconstitutional conditions, not a mistake. Thus, the majority acknowledges that if Governor Herbert had issued the directive based on a mistake, the defendants would be likely to prevail on a claim of unconstitutional conditions. Maj. Op. at 33.
9

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“Governor Herbert waited until the political moment was ripe to retaliate against PPAU.” Appellant’s Opening Br. at 64. The defendants interpret this temporal proximity as evidence that the governor was heavily influenced by the Center for Medical Progress videos. Rejecting this interpretation, the district court credited the defendants’ explanation for the directive. That decision was reasonable and within the district court’s discretion.
PPAU’s only direct evidence is a memorandum of talking points for a pro-life event that Governor Herbert attended after issuing the directive. The talking points, which were drafted by Governor Herbert’s staff, included statements that (1) the directive had been based on Governor Herbert’s commitment to the “Right to Life” and (2) Governor Herbert had sent “a strong message” that “Utah values the sacred nature of human life.” Appellant’s App’x, vol. 2 at 391-92. But there is no evidence of Governor Hebert’s approval or use of these talking points. See Oral Arg. at 14:1515:08 (PPAU counsel admitting that Governor Herbert had not used the talking points and that the talking points had never been publicly released). Because Governor Herbert neither prepared nor used the talking points, the district court could reasonably decline to rely on them.
PPAU also points to six forms of circumstantial evidence: 1. Governor Herbert’s attendance at a pro-life event days
after the directive was issued, where Governor Herbert reportedly stated that “I’m here today to add my voice to
10

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yours and speak out on the sanctity of life” (Appellant’s App’x, vol. 1 at 59-60),
2. political efforts across the country to defund Planned Parenthood affiliates in reaction to the videos (Id. vol. 2 at 399),
3. Governor Herbert’s admission that PPAU was not directly implicated in the Center for Medical Progress videos (Id. vol. 1 at 56),
4. investigative reports debunking allegations that other Planned Parenthood affiliates had engaged in illegal conduct (Id. vol. 2 at 398),6
5. Governor Herbert’s purported knowledge that the directive would harm Utah citizens (Id. at 336-59 (internal communications between officials at the Utah Department of Health)),7 and
6. Governor Herbert’s statement that he stood by his actions prohibiting Utah from acting as a pass through for federal funds to PPAU (Id. at 394, 396).
Based on this circumstantial evidence, PPAU urges an inference that
the governor retaliated against PPAU for constitutionally protected
6 On appeal, PPAU asserts that every governmental agency investigating the videos has exonerated Planned Parenthood. Appellant’s Opening Br. at 64. For this assertion, PPAU has relied solely on
x an email transmitting an article from a website called “Media Matters for America” (Appellant’s App’x at 387-88) and
x two web articles in the Huffington Post (Id. at 398-401, 40304).
7 The record also contains evidence that Governor Herbert thought that the directive would not harm Utah citizens. See Appellant’s App’x, vol. 1 at 55 (Governor Herbert stating that the federal funds would still be used to benefit Utah citizens, as the funds would be “put into the marketplace with other qualified providers”).
11

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conduct. But again, the district court could reasonably have relied on Governor Herbert’s stated reason for issuing the directive, and this reliance did not constitute an abuse of discretion. Thus, I would uphold the district court’s conclusion that PPAU did not show a likelihood of success on the merits of the claims involving unconstitutional conditions. IV. Conclusion
I respectfully disagree with the majority’s conclusion that PPAU has shown a likelihood of success on the merits of the claims involving unconstitutional conditions. Accordingly, I would affirm the district court’s denial of PPAU’s motion for a preliminary injunction.
12

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Elisabeth A. Shumaker Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT OFFICE OF THE CLERK
Byron White United States Courthouse 1823 Stout Street
Denver, Colorado 80257 (303) 844-3157
July 12, 2016

Chris Wolpert Chief Deputy Clerk

Ms. Peggy Ann Tomsic Ms. Christine T. Greenwood Ms. Jennifer Fraser Parrish Magleby, Cataxinos & Greenwood 170 South Main Street, Suite 1100 Salt Lake City, UT 84101-3605
RE: 15-4189, Planned Parenthood v. Herbert, et al Dist/Ag docket: 2:15-CV-00693-CW
Dear Counsel:
Attached is a copy of the opinion of the court issued today in this matter. The court has entered judgment on the docket pursuant to Fed. R. App. P. Rule 36.
Pursuant to Fed. R. App. P. Rule 40, any petition for rehearing must be filed within 14 days after entry of judgment. Please note, however, that if the appeal is a civil case in which the United States or its officer or agency is a party, any petition for rehearing must be filed within 45 days after entry of judgment. Parties should consult both the Federal Rules and local rules of this court with regard to applicable standards and requirements. In particular, petitions for rehearing may not exceed 15 pages in length, and no answer is permitted unless the court enters an order requiring a response. If requesting rehearing en banc, the requesting party must file 12 paper copies with the clerk, in addition to satisfying all Electronic Case Filing requirements. See Fed. R. App. P. Rules 35 and 40, and 10th Cir. R. 35 and 40 for further information governing petitions for rehearing.

Case 2:15-cv-00693-DB Document 37 Filed 08/08/16 Page 59 of 59 Appellate Case: 15-4189 Document: 01019655347 Date Filed: 07/12/2016 Page: 2
Please contact this office if you have questions.
Sincerely,

cc: Parker Douglas Tyler R. Green Stanford E. Purser
EAS/at

Elisabeth A. Shumaker Clerk of the Court

2

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FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS

Tenth Circuit

FOR THE TENTH CIRCUIT _________________________________
PLANNED PARENTHOOD ASSOCIATION OF UTAH,

July 12, 2016
Elisabeth A. Shumaker Clerk of Court

Plaintiff - Appellant,

v.
GARY R. HERBERT, in his official capacity as Governor of the State of Utah; JOSEPH K. MINER, M.D., in his official capacity as Executive Director of the Utah Department of Health,

No. 15-4189 (D.C. No. 2:15-CV-00693-CW)
(D. Utah)

Defendants - Appellees. _________________________________

JUDGMENT _________________________________

Before BRISCOE, EBEL, and BACHARACH, Circuit Judges. _________________________________

This case originated in the District of Utah and was argued by counsel.

The judgment of that court is reversed. The case is remanded to the United States

District Court for the District of Utah for further proceedings in accordance with the

opinion of this court.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk

Case 2:15-cv-00693-DB Document 37-2 Filed 08/08/16 Page 1 of 1 Appellate Case: 15-4189 Document: 01019668464 Date Filed: 08/08/2016 Page: 1

Elisabeth A. Shumaker Clerk of Court

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT OFFICE OF THE CLERK
Byron White United States Courthouse 1823 Stout Street
Denver, Colorado 80257 (303) 844-3157
August 08, 2016

Chris Wolpert Chief Deputy Clerk

Mr. D. Mark Jones United States District Court for the District of Utah Office of the Clerk 351 South West Temple Salt Lake City, UT 84101
RE: 15-4189, Planned Parenthood v. Herbert, et al Dist/Ag docket: 2:15-CV-00693-CW
Dear Clerk:
Please be advised that the mandate for this case has issued today. Please file accordingly in the records of your court or agency.
Please contact this office if you have questions.
Sincerely,

cc: Parker Douglas Tyler R. Green Christine T. Greenwood Jennifer Fraser Parrish Stanford E. Purser Peggy Ann Tomsic
EAS/na

Elisabeth A. Shumaker Clerk of the Court

 
 Case 2:15-cv-00693-DB Document 42 Filed 10/28/16 Page 1 of 27 Appellate Case: 15-4189 Document: 01019712249 Date Filed: 10/28/2016 Page: 1

FILED

United States Court of Appeals

PUBLISH

Tenth Circuit

UNITED STATES COURT OF APPEALS

October 28, 2016

FOR THE TENTH CIRCUIT _________________________________

Elisabeth A. Shumaker Clerk of Court

PLANNED PARENTHOOD ASSOCIATION OF UTAH,

Plaintiff - Appellant,

v.
GARY R. HERBERT, in his official capacity as Governor of the State of Utah; JOSEPH K. MINER, M.D., in his official capacity as Executive Director of the Utah Department of Health,

No. 15-4189 (D.C. No. 2:15-CV-00693-CW)
(D. Utah)

Defendants - Appellees. _________________________________

ORDER _________________________________

Before TYMKOVICH, Chief Judge, KELLY, BRISCOE, LUCERO, HARTZ, GORSUCH, HOLMES, BACHARACH, PHILLIPS, and MORITZ, Circuit Judges.*
_________________________________

On July 12, 2016, the original panel opinion issued in this matter. Subsequent to

that issuance, a poll was called, sua sponte, to consider en banc rehearing. Upon that

consideration, a majority of the active available judges of the court voted to deny. See

Fed. R. App. P. 35(a). Chief Judge Tymkovich, as well as Judges Hartz, Gorsuch, and

Holmes voted to grant en banc rehearing.

* The Honorable Scott Matheson and the Honorable Carolyn McHugh are recused in this matter and did not participate in the sua sponte consideration of en banc rehearing.

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Judge Briscoe has written separately in concurrence to the denial of en banc rehearing, as has Judge Bacharach. Judge Gorsuch has written separately in dissent. Judges Tymkovich, Hartz and Holmes join in that dissent.
A copy of this order shall stand as a supplement to the mandate issued on August 8, 2016.
Entered for the Court ELISABETH A. SHUMAKER, Clerk
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No. 15-4189, Planned Parenthood Association of Utah v. Herbert BRISCOE, Circuit Judge, concurring in the denial of rehearing en banc.
I write in support of the denial of rehearing en banc for two reasons: to comment on the unusual procedural step this court has taken in this untimely sua sponte request for an en banc poll, and to set the record straight regarding the merits of the panel decision.
I From a procedural perspective, our consideration and denial of rehearing en banc will surely come as a surprise to the parties, who have clearly moved on. The parties intentionally bypassed further review by the panel or the full court, and instead returned to the district court. And the parties have since stipulated to the entry of a preliminary injunction in favor of plaintiff Planned Parenthood Association of Utah (PPAU). As our docket reflects, both the panel opinion and the judgment in this case issued on July 12, 2016. The July 26, 2016 deadline for filing a petition for rehearing en banc subsequently passed without the parties taking any action. See Fed. R. App. P. 35(c) (“A petition for rehearing en banc must be filed within the time prescribed by Rule 40 for filing a petition for rehearing.”); Fed. R. App. P. 40(a)(1) (“Unless the time is shortened or extended by order or local rule, a petition for panel rehearing may be filed within 14 days after entry of judgment.”); see also Fed. R. App. P. 26(a)(1) (outlining how time is computed under the Federal Rules of Appellate Procedure “[w]hen the period is stated in

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days”). Under the Federal Rules of Appellate Procedure and our own Tenth Circuit Rules, that left only the mandate to issue.
On August 1, 2016, however, a member of this court, acting despite the absence of a timely filed petition for rehearing by any party, called for a poll. The poll ultimately failed by a vote of 6 to 4, with two judges recusing. The mandate issued on August 8, 2016, prior to the completion of voting, but after it was clear that the poll would fail. According to the district court’s docket, the parties, unaware of our untimely sua sponte activities, stipulated to the entry of a preliminary injunction in favor of PPAU on August 31, 2016, and have moved on with this litigation in district court.
In my view, we should be extraordinarily cautious in exercising our inherent authority to sua sponte rehear a case when the parties themselves have chosen not to seek en banc review. And, presumably, our inherent authority in that regard is, at an absolute minimum, bounded by the standards outlined in Fed. R. App. P. 35 and 10th Cir. R. 35. Although the dissent cites to the standard for en banc review outlined in Fed. R. App. 35(a) and asserts that “the panel acted inconsistently with this court’s previously uniform practice when it comes to questions concerning our standard of review and the burden of proof,” Dissent at 2, there is simply no substance to that assertion, and thus no justification for the unusual procedure that has been invoked.
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II Turning to the merits, the dissent mischaracterizes this litigation and the panel opinion at several turns. To begin with, the dissent incorrectly states that “the preliminary injunction motion turned in significant measure on the question whether [PPAU] could show that it was likely to succeed at trial on its unconstitutional conditions claim.” Dissent at 1. As a matter of fact, PPAU asserted three claims—an equal protection claim and two unconstitutional conditions claims—and a substantial portion of the panel opinion was devoted to analyzing whether PPAU had established a substantial likelihood of success on the merits of its equal protection claim (the panel agreed with the district court that PPAU failed in this regard). As for the unconstitutional conditions claims, it is true that PPAU’s likelihood of success ultimately turned on the assessment of evidence concerning Governor Herbert’s motive for issuing the August 14, 2015 directive. See Planned Parenthood Ass’n of Utah v. Herbert, — F.3d —, 2016 WL 3742008 at *12 (10th Cir. July 12, 2016) (“[T]hat leaves the question of whether PPAU can establish that Herbert issued the Directive in retaliation for PPAU’s exercise of those [constitutional] rights.”). But the dissent again mischaracterizes how both the district court and the panel performed this assessment. To begin with, the dissent incorrectly states that “the district court found that the Governor’s stated intention appeared to be his true intention” in suspending PPAU’s funding.
3

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Dissent at 2. In other words, the dissent states that the district court made an express finding of fact “that the Governor ‘did not retaliate against Plaintiff.’” Id. at 4 (quoting Planned Parenthood Ass’n of Utah v. Herbert, No. 2:15-CV-693, 2015 WL 9412539, at *6 (D. Utah Dec. 22, 2015)). The dissent in turn asserts that the panel proceeded to review that factual finding de novo. Id.
What in truth occurred is that the panel, after carefully considering the district court’s opinion, concluded that the district court did not make a factual finding regarding the Governor’s motive for issuing the directive, but rather made a legal determination regarding whether the limited evidence before it would be sufficient to allow a factfinder to find in favor of PPAU on the motive issue. Planned Parenthood, — F.3d —, 2016 WL 3742008 at *12, n.6 (“As we read the above-quoted language, the district court was merely assessing the limited evidence presented by the parties and determining, as a matter of law, whether PPAU had established a likelihood of succeeding on its unconstitutional conditions claim.”). Indeed, the panel remarked that “it would have been unusual for the district court to make a factual finding on this key issue, given the procedural posture of the case, the fact that no witnesses testified at the preliminary injunction hearing, and the fact that Herbert ha[d] not been deposed yet.” Id. And the panel in turn reviewed the district court’s legal determination de novo. In a related footnote, the panel also stated that, “even assuming that the district court intended to make a factual finding on this issue, we conclude that
4

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such finding was clearly erroneous.” Id. That is because the district court failed to consider at all the admissions made by Governor Herbert in responding to PPAU’s motion for preliminary injunction.
Dissatisfied with the panel’s analysis, the dissent asserts that Rule 52(a)(2) imposed an obligation on the district court “to offer a finding on the only and hotly disputed question in this case,” i.e., Governor Herbert’s motive for issuing the directive, and that “the proper course for [the panel] would have been to remand the matter for the district court to discharge its fact-finding function, not to attempt [its] own de novo assessment of the record on appeal.” Dissent at 5.
The problem with this assertion is two-fold. First, the dissent misreads Rule 52(a)(2). That rule states: “In granting or refusing an interlocutory injunction, the court must . . . state the findings and conclusions that support its action.” Fed. R. Civ. P. 52(a)(2). In other words, Rule 52(a)(2) generally “requires [a district] court to make findings of fact and conclusions of law if it grants or refuses a preliminary injunction.” 9C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2576 at 283 (3d ed. 2008). But the Rule obviously affords a district court with discretion in how it goes about resolving the unique issues presented in each case. Thus, although the district court in this case could have made a preliminary factual finding regarding Governor Herbert’s motive, it did not, in the panel’s view, do so, and there was no requirement under Rule 52(a)(2) that the panel remand the case to the district court to make a factual
5

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finding on this issue. Second, the panel did not, as the dissent implies, make its own factual findings, but instead properly conducted a de novo review of what it deemed to be the district court’s legal determination.
The dissent also takes issue with the panel’s alternative conclusion that, even assuming the district court intended to make a factual finding regarding Governor Herbert’s motive, the district court clearly erred in doing so. To begin with, the dissent complains that “the panel never proceeded to explain why the district court’s finding qualified as ‘plainly implausible,’ ‘irrational,’ or enjoyed ‘no support’ in the record.” Dissent at 6. In turn, the dissent asserts that the panel could not “have found the district court’s finding reversible under the correct standard of review had it tried” because “PPAU offered ‘virtually no evidence’ to support its account of the Governor’s intentions.” Id. (quoting Judge Bacharach Concur. at 2).
To be sure, the panel opinion did not offer a detailed explanation of its alternative conclusion. But that was precisely because it was an alternative conclusion contained in a footnote. And, most certainly, the lack of a detailed explanation for an alternative holding is certainly no basis for granting en banc review. In any event, the panel based its alternative holding on the fact that the district court failed to consider all of the evidence that was contained in the record. Most notably, this included, as described in detail in the panel opinion, the admissions made by Governor Herbert in responding to PPAU’s motion for
6

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preliminary injunction. As for those admissions, the dissent suggests that this is a “new” piece of
evidence of the panel’s “own creation.” Dissent at 9. By no means, however, was this a new piece of evidence unbeknownst to the parties or the district court. As the panel opinion clearly noted, it was Herbert’s opposition brief to PPAU’s motion for preliminary injunction that included the specific admissions to factual allegations contained in PPAU’s complaint. Planned Parenthood, — F.3d —, 2016 WL 3742008 at *13 (“[I]n opposing PPAU’s motion for preliminary injunction in the district court, Herbert made more specific admissions.”).
The dissent then attempts to reframe those admissions, asserting that “[t]he panel apparently overlooked the qualifying phrase ‘describing his response to the videos’ and assumed that the Governor admitted all of PPAU’s allegations.” Dissent at 10 (emphasis in original). “In fact,” the dissent asserts, “the Governor’s brief merely and unsurprisingly acknowledges the complaint’s description of the Governor’s response to the videos — namely that, shortly after viewing them, he came to the belief that Planned Parenthood’s conduct warranted the defunding of certain programs.” Dissent at 10-11 (emphasis in original).
Again, however, this reframing belies the record. As the panel opinion explained,
PPAU’s complaint contains numerous factual allegations regarding Herbert’s issuance of the Directive. App., Vol. 1 at 11-14. Defendants, in their memorandum in opposition to PPAU’s motion
7

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for preliminary injunction, stated: “For only the purposes of this brief opposing [PPAU’s] motion for preliminary injunction, Governor Herbert does not dispute the factual allegations in paragraphs 12 through 22 of [PPAU’s] Complaint describing his response to the [CMP] videos.” Dist. Ct. Docket No. 19 at ix. In other words, Herbert admitted the factual allegations contained in paragraphs 12 through 22 of PPAU’s complaint for purposes of the preliminary injunction proceedings.
Planned Parenthood, — F.3d —, 2016 WL 3742008 at *13, n.7. Notably,
paragraphs 12 through 22 of PPAU’s complaint were contained in the
“FACTUAL BACKGROUND” section under a heading entitled “GOVERNOR
HERBERT’S DIRECTIVE.” Dist. Ct. Docket No. 2 at 6. And, as the panel
opinion accurately described them, Herbert’s admissions to those paragraphs
directly concerned the issuance of his directive:
To begin with, he admitted that the CMP videos involved other affiliates of Planned Parenthood and not PPAU. [App., Vol. 1] at 12; Dist. Ct. Docket No. 19 at ix. Herbert further admitted that “there is no evidence, or even accusation, that PPAU has ‘colored outside’ of any lines, including because PPAU does not participate in any program that provides fetal tissue for scientific research.” App., Vol. 1 at 12; Dist. Ct. Docket No. 19 at ix. Herbert also admitted that none of the federal funds that flow through the UDOH to PPAU are “used to provide abortions.” App., Vol. 1 at 12; Dist. Ct. Docket No. 19 at ix. In addition, Herbert admitted that the accusations made by CMP in the videos regarding Planned Parenthood and its other affiliates had not been proven and indeed were false. App., Vol. 1 at 11-12; Dist. Ct. Docket No. 19 at ix. Lastly, Herbert essentially agreed that the national “political climate ... [wa]s very hostile to Planned Parenthood.” App., Vol. 1 at 3; Dist. Ct. Docket No. 19 at viii-ix.
Id. at *13. Had the panel, as the dissent suggests, attributed to the Governor a
series of admissions he never made, we presumably would have heard directly
8

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from the Governor, either by way of a petition for panel rehearing or a petition for rehearing en banc, that we had misstated the Governor’s admissions. The Governor’s silence, however, speaks volumes.
The dissent also asserts, curiously, that the panel, by construing Herbert’s admissions in the manner that it did, failed to afford “the sort of comity this court normally seeks to show the States and their elected representatives.” Dissent at 10. “[T]he notion of comity,” however, involves “a proper respect for state functions.” Sprint Commc’ns v. Jacobs, 134 S. Ct. 584, 591 (2013); see also Michigan v. Bay Mills Indian Cmty., 134 S. Ct. 2024, 2048 (2014) (noting that “the practical aim of comity” is to “allay[] friction between sovereigns”). Precisely how the panel’s interpretation of Herbert’s admissions could have violated the notion of comity—an argument, by the way, that Herbert himself has never made—is unclear.
That leaves only one other error that the dissent contends the panel committed: “relax[ing] PPAU’s burden of proof and even seem[ing] to reverse it.” Dissent at 7. According to the Dissent, PPAU was obligated to “show its ‘right to relief . . . clear[ly] and unequivocal[ly],’” and the panel failed to hold PPAU to this obligation. Id. (quoting Petrella v. Brownback, 787 F.3d 1242, 1256 (10th Cir. 2015) (brackets added by Dissent)). There is no merit to the dissent’s complaints on this point, however, because the purported error is tied directly to the dissent’s mischaracterization of the record and the evidence contained in it, in
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particular the admissions made by Governor Herbert in responding to PPAU’s motion for preliminary injunction. As explained in the panel opinion, the evidence, when considered in its proper context, was more than sufficient for PPAU to carry its burden of proof.
In the end, the panel opinion was faithful to circuit precedent, including the applicable standards of review, and the record on appeal. As a result, there is simply no basis upon which to grant rehearing en banc.
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No. 15-4189, Planned Parenthood Association of Utah v. Herbert BACHARACH, Circuit Judge, concurring in the denial of rehearing en banc.
I continue to respectfully disagree with the panel majority’s disposition of the claim involving unconstitutional conditions. Nonetheless, I do not believe that we should take the case en banc. I. Merits
On the merits, the critical issue involves the element of likelihood of success. On this element, I believe our precedent requires us to apply the abuseof-discretion standard. See Verlo v. Martinez, 820 F.3d 1113, 1128 (10th Cir. 2016).
Application of this standard makes sense here, for the likelihood-of-success element requires us to predict the fact-finder’s ultimate determination after a fullblown trial. That prediction would involve an intrinsically factual issue: the intent of the Governor in issuing the Directive.
In my view, it is appropriate to apply the abuse-of-discretion standard when the district court must predict what the trier of fact would ultimately find. See Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 16 (1st Cir. 1996) (applying the abuse-of-discretion standard to the likelihood-of-success inquiry when predicting the eventual outcome on the merits). As a result, I believe that we should follow our precedent in Verlo v. Martinez, which establishes the abuseof-discretion standard on likelihood of success.

Case 2:15-cv-00693-DB Document 42 Filed 10/28/16 Page 14 of 27 Appellate Case: 15-4189 Document: 01019712249 Date Filed: 10/28/2016 Page: 14
As stated in my panel dissent, I do not believe that the district court abused its discretion on the likelihood-of-success inquiry. The district court had little to go on because PPAU had not presented any testimony and its only documentary evidence about the controversial videotapes involved two web articles in the Huffington Post and an email transmitting an article from a website called “Media Matters for America.” PPAU said that each governmental agency investigating the videotapes had exonerated Planned Parenthood, but PPAU did not present any evidence from a governmental source or the actual videotapes.
Though PPAU presented virtually no evidence, everyone agreed that Governor Herbert had attributed the Directive to his own reaction to the Planned Parenthood videotapes. To prevail, PPAU had to prove that Governor Herbert’s stated reason for the Directive was pretextual—that his true motivation was to punish PPAU for exercising its constitutional rights.
Will PPAU be able to prove that at trial? When given the opportunity to do so at the preliminary injunction hearing, PPAU presented no live testimony and virtually no documentary evidence. In these circumstances, the district court had the discretion to predict that PPAU would not satisfy its burden of proof at trial. Thus, I believe that the panel should have affirmed the denial of a preliminary injunction on the claim of unconstitutional conditions.
2

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II. En Banc Consideration Though I respectfully disagree with the panel’s disposition, I do not favor
en banc consideration because I doubt that the panel opinion will significantly affect future appeals.
Like Judge Gorsuch, I believe that the panel’s review of the district court’s ruling was more searching than the abuse-of-discretion standard permits. But this disagreement is unlikely to affect future cases, for the panel stated that it was reviewing the district court’s order for an abuse of discretion.
Though I respectfully disagree with the panel majority on how it applied this standard, my disagreement involves the application of the standard rather than the standard itself, for the panel did not articulate a more searching standard of review (such as de novo review) on likelihood of success. Nor did the panel majority disavow the need for clear, unequivocal proof to justify a preliminary injunction. Thus, I do not believe that the panel opinion will significantly affect future appeals.
3

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No. 15-4189, Planned Parenthood Association of Utah v. Herbert GORSUCH, Circuit Judge, joined by TYMKOVICH, Chief Judge, and HARTZ and HOLMES, Circuit Judges, dissenting from the denial of rehearing en banc.
A great deal about this case is undisputed. Shortly after the public release of videos allegedly showing Planned Parenthood officials negotiating the sale of fetal tissue, the Governor of Utah announced his belief that the conduct was illegal and warranted the suspension of public funding for four programs run by Planned Parenthood Association of Utah (PPAU), the local Planned Parenthood affiliate. PPAU responded by bringing a lawsuit and seeking a preliminary injunction to force the State’s continued funding of the four programs in question. As litigated by the parties, the preliminary injunction motion turned in significant measure on the question whether the organization could show that it was likely to succeed at trial on its unconstitutional conditions claim. And even on that claim the parties’ dispute proved pretty narrow, for everyone agreed on the law. If the Governor discontinued funding because of the group’s affiliation with those accused of illegally selling fetal tissue — as he said he did — the parties agreed that no constitutional violation had taken place. But if the Governor discontinued funding for a different and secret reason — in retaliation for the group’s advocacy of lawful abortions — both sides accepted that a constitutional violation had occurred.

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So it is that the question of preliminary relief on PPAU’s unconstitutional
conditions claim hinged on a question of fact: what was the Governor’s intention
in suspending funding? See Judge Briscoe Concur. at 3 (“[I]t is true that PPAU’s
likelihood of success ultimately turned on the assessment of evidence concerning
Governor Herbert’s motives . . . .”). On the preliminary evidentiary record before
it, the district court found that the Governor’s stated intention appeared to be his
true intention and that PPAU hadn’t shown it was likely to prove otherwise at
trial. Accordingly, it denied the motion for preliminary relief. But when the case
reached this court, a panel disagreed and ordered the Governor to fund PPAU. In
doing so, I respectfully submit, the panel acted inconsistently with this court’s
previously uniform practice when it comes to questions concerning our standard
of review and the burden of proof, questions of considerable legal significance.
See Fed. R. App. P. 35(a) (en banc review is appropriate to “maintain uniformity
of the court’s decisions; or . . . [if] the proceeding involves a question of exceptional importance”).1
1 Judge Briscoe contends that we should be reluctant to grant en banc rehearing sua sponte. See Judge Briscoe Concur. at 2. And it’s certainly true that the threshold required to win rehearing en banc under Rule 35(a) is and should be a very high one. But any suggestion that en banc proceedings should only come by way of motion from the parties, or that sua sponte en banc polls and proceedings like this one are somehow irregular, would be quite mistaken. Sua sponte en banc proceedings have played a long and familiar role in federal appellate practice. See, e.g., United States v. Sturm, 672 F.3d 891, 895 (10th Cir. 2012); United States v. Hardman, 297 F.3d 1116, 1118 (10th Cir. 2002); United States v. Singleton, 144 F.3d 1343, 1361-62 (10th Cir. 1998); United States v.
-2-

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*
Consider first the standard of review. Because a preliminary injunction is a
form of discretionary equitable relief — and a temporary one at that — we review
the district court’s decision only for abuse of discretion. Petrella v. Brownback,
787 F.3d 1242, 1256 (10th Cir. 2015). Where, as here, everything turns on the
resolution of a factual dispute, that means “[w]e will not challenge [the district
court’s] evaluation [of the evidence] unless it finds no support in the record . . .
or follows from a plainly implausible, irrational, or erroneous reading of the
record.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1188 (10th Cir. 2003);
Fed. R. Civ. P. 52(a)(6) (factual findings may be set aside only if clearly
erroneous). This deferential standard applies even when the district court makes
factual findings concerning documentary proof rather than live testimony.
Anderson v. Bessemer City, 470 U.S. 564, 574 (1985). And no doubt that kind of
deference is especially appropriate where, as here, the fact-finding district judge
at the preliminary injunction stage will be the same fact-finder who will
Hill, 53 F.3d 1151, 1152 (10th Cir. 1995); see also 16AA Charles Alan Wright et al., Fed. Prac. & Proc. § 3981.2 (4th ed. 2008) (noting that “[a] court of appeals may decide on its own motion to sit en banc” and collecting cases). No doubt, too, the power to call for rehearing sua sponte exists for good reason, for otherwise a panel opinion could ensconce precedentially binding error into circuit law that the full court would be powerless to correct only because of the fortuity that the parties who could seek review happen to lack sufficient incentive to do so (say because of a settlement or extralegal considerations). Cf. W. Pac. R. Corp. v. W. Pac. R. Co., 345 U.S. 247, 260 n.20 (1953) (en banc rehearing is “an important and useful device in the administration of justice”).
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ultimately decide the question of permanent injunctive relief. After all, in cases like this, the district judge is essentially predicting what he or she — not a jury or hypothetical reasonable person — will decide at the end of the day.
Respectfully, the panel opinion departed from these rules of review. Rather than afford the district court’s factual finding about the Governor’s intentions the deference it was due, the panel offered its own independent assessment of the record. As Judge Bacharach’s panel dissent and his concurrence today both observe, in doing so the panel employed a “more searching” standard of review than our precedents “permit[].” Judge Bacharach Concur. at 3; Planned Parenthood Ass’n of Utah v. Herbert, 828 F.3d 1245, 1270 (Bacharach, J., concurring in part and dissenting in part). Even Judge Briscoe, the author of the panel opinion, today acknowledges that the panel engaged in de novo review. Judge Briscoe Concur. at 4. To be sure, the panel offered two (albeit alternative) arguments in defense of its approach. But, respectfully, neither supports the panel’s departure from our normal rules of review.
First, the panel asserted that no deference was due because the district court failed to supply a factual finding about the Governor’s intentions. Planned Parenthood Ass’n of Utah, 828 F.3d at 1261 n.6. But the district court did precisely that: it expressly found that the Governor “did not retaliate against
-4-

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Plaintiff” and it proceeded to supply many and extensive reasons for its finding.2
See Cypert v. Indep. Sch. Dist. No. I-050 of Osage Cty., 661 F.3d 477, 483 (10th
Cir. 2011) (noting whether the defendant retaliated against the plaintiff for
engaging in constitutionally protected activity is “ordinarily for the trier of fact”);
Maestas v. Segura, 416 F.3d 1182, 1187-88 (10th Cir. 2005) (same). Besides,
even supposing (counterfactually) that the district court had failed to offer a
finding on the only and hotly disputed factual question in this case, it would have
failed its duty under Fed. R. Civ. P. 52(a)(2) to supply a necessary finding and the
proper course for this court would have been to remand the matter for the district
court to discharge its fact-finding function, not to attempt our own de novo
assessment of the record on appeal. See id. (“In granting or refusing an
2 “Gary Herbert has been the Governor of Utah for the past six years. Although Plaintiff has been associated with other pro-choice entities since Governor Herbert took office and it started performing abortions in Utah in 2011, the Governor still allowed the [Utah Department of Health] to enter into and maintain contracts with Plaintiff. It was not until the videos were released that the Governor acted to terminate the contracts. Indeed, Plaintiff alleges and the defendants do not dispute that the Governor said, ‘We now have video where they’re selling fetus body parts for money and it’s an outrage and the people of Utah are outraged. I’m outraged. So for coloring outside the lines, [Plaintiff] forfeits some of [its] benefits.’ Complaint, ¶ 14 (Dkt. No. 2). Both the Governor’s words and the temporal proximity between the release of the videos and his directive to terminate the contracts support he did not retaliate against Plaintiff based upon its right of association nor its right to advocate for and perform abortions. Therefore, the court concludes Plaintiff is unlikely to prevail on its unconstitutional condition claims.” Planned Parenthood Ass’n of Utah v. Herbert, No. 2:15-CV-693, 2015 WL 9412539, at *6 (D. Utah Dec. 22, 2015) (second and third alterations in original).
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interlocutory injunction, the court must . . . state the findings . . . that support its action.”); Joseph A. by Wolfe v. N.M. Dep’t of Human Servs., 69 F.3d 1081, 108789 (10th Cir. 1995) (remanding to the district court to make adequate factual findings).
Second, and proceeding in the opposite direction, the panel summarily suggested in a footnote that any finding the district court did make had to have been clearly erroneous. Planned Parenthood Ass’n of Utah, 828 F.3d at 1261 n.6. But the panel never proceeded to explain why the district court’s finding qualified as “plainly implausible,” “irrational,” or enjoyed “no support” in the record. And surely merely being “unconvinc[ed],” as the court professed to be, will not do. Id. at 1261. Neither, for that matter, could the panel have found the district court’s finding reversible under the correct standard of review had it tried, for as Judge Bacharach explained and as we shall see in a moment, PPAU offered “virtually no evidence” to support its account of the Governor’s intentions and the record “easily” permitted, whether or not it compelled, the finding the district court offered. Judge Bacharach Concur. at 2; Planned Parenthood Ass’n of Utah, 828 F.3d at 1269 (Bacharach, J., concurring in part and dissenting in part).3
3 Separately, the panel also briefly suggested that it would have been “unusual” for the district court to issue findings of fact at the preliminary injunction stage in this particular case given that discovery had just begun. Planned Parenthood Ass’n of Utah, 828 F.3d at 1261 n.6. But, as we’ve seen, district courts must provide any factual findings necessary to support their preliminary injunction rulings under Fed. R. Civ. P. 52(a)(2); their findings are
-6-

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* Next consider the burden of proof. Even if the panel could have properly applied a de novo standard of review, a preliminary injunction still remained an “extraordinary remedy” and it fell to PPAU as the movant to show its “right to relief . . . clear[ly] and unequivocal[ly].” Petrella, 787 F.3d at 1256. True, this court once suggested that the plaintiff’s burden on the likelihood of success factor may be relaxed when the other preliminary injunction factors are satisfied. See Nova Health Sys. v. Edmondson, 460 F.3d 1295, 1298 n.6 (10th Cir. 2006). But, as Judge Bacharach’s panel dissent noted, the Supreme Court has since cast doubt on that judgment. See Planned Parenthood Ass’n of Utah, 828 F.3d at 1267-68 (Bacharach, J., concurring in part and dissenting in part) (citing Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). See also Diné Citizens Against Ruining Our Environment v. Jewell, — F.3d —, No. 15-2130, slip op. at 9-11 (10th Cir. Oct. 27, 2016). Respectfully, the panel in this case not only conducted its own de novo review of the record, it relaxed PPAU’s burden of proof and even seemed to reverse it. For PPAU to prevail in the case as litigated, everyone acknowledges, it had to show that the Governor’s real reason for his decision was something
due our deference even when based on purely documentary proof under Anderson, 470 U.S. at 574; and district courts routinely decide preliminary injunction disputes before the great grinding gears of our civil discovery process engage.
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secret and different than he now contends it to be. Yet, it is undisputed that when the Governor announced his decision to discontinue funding he contemporaneously explained that his decision came in direct response to the videos. And it is undisputed, too, that the Governor was free as a matter of law to suspend the funding in question for this reason. To be sure, the panel cited the fact that the Governor has long opposed abortion and, from this, inferred that he wanted to punish the group for its lawful abortion advocacy. But it is undisputed that the Governor has held office since 2009 and had taken no action against PPAU until shortly after the release of the videos in 2015. And it is undisputed that the Governor has repeatedly granted or extended funding to PPAU for numerous programs since taking office. So it is that, analytically, to reach the decision it did the panel had to dismiss the Governor’s evidence suggesting an obvious and temporally proximate potential cause of the group’s asserted injury — the videos — in favor of PPAU’s evidence suggesting a temporally remote potential cause that was itself contradicted by intervening evidence. And whatever else might be said about this proof, it’s hard to see how it could qualify as clear and unequivocal proof that PPAU was likely to succeed on the merits. As Judge Bacharach observed, a proper application of the burden of proof “easily” required affirmance. Planned Parenthood Ass’n of Utah, 828 F.3d at 1269-71 (Bacharach, J., concurring in part and dissenting in part); Judge Bacharach Concur. at 2.
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Indeed, the panel’s relaxation of the burden of proof in this manner sits at odds with a very large body of circuit precedent. In so many fields (like employment or business disputes) this court routinely holds proof exactly like PPAU’s — pointing to a temporally remote cause and disregarding proof of alternative and intervening causes — insufficient even to survive summary judgment. See Trujillo v. PacifiCorp, 524 F.3d 1149, 1157 n.5 (10th Cir. 2008) (collecting cases dismissing similar causation claims as too speculative). And it is difficult to see how this court could, consistent with so much precedent, hold proof along the very same lines sufficient to establish a likelihood of success.
Faced with the problem that PPAU itself presented “virtually no evidence” to discharge its burden of proof consistent with circuit precedent, Planned Parenthood Ass’n of Utah, 828 F.3d at 1269-71 (Bacharach, J., concurring in part and dissenting in part), the panel proceeded to supplement the group’s arguments for reversal with a new one of its own creation. The panel asserted that the Governor, in a brief he submitted to the district court, “admi[tted]” that he knew the videos to be fabrications. And in light of this asserted admission, the panel reasoned, the Governor surely could not have relied on the videos as grounds for his decision to discontinue funding. Indeed, the panel placed great stress on this argument when explaining its grounds for reversal. See Planned Parenthood Ass’n of Utah, 828 F.3d at 1261-62.
-9-

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But, respectfully, this new argument only serves to highlight the problems with the panel opinion. For here, in its final and key movement, the panel advanced and adjudicated an argument for reversal that PPAU never made — not in this court, not in the district court. All in spite of and without discussing this court’s rule that it will not normally pursue arguments for reversal that an appellant hasn’t presented on appeal or preserved in the district court. See Verlo v. Martinez, 820 F.3d 1113, 1132 (10th Cir. 2016); Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1127 (10th Cir. 2011).
Perhaps even more troubling still, proceeding without the benefit of adversarial testing the panel proceeded to make a mistake, one inconsistent with the sort of comity this court normally seeks to show the States and their elected representatives. For a look at the Governor’s district court brief quickly reveals the reason why PPAU never attempted the panel’s new argument: the brief contains nothing like the bombshell admission the panel attributed to it. The Governor’s brief says simply that, for “purposes of this brief opposing [the] motion for preliminary injunction, Governor Herbert does not dispute” the factual allegations in paragraphs 12 through 22 of PPAU’s complaint “describing [his] response to the videos.” Defs Mem. Opp’n. to Pls. Mot. for Prelim. Inj. at ix, ECF No. 19 (emphasis added). The panel apparently overlooked the qualifying phrase “describing his response to the videos” and assumed that the Governor admitted all of PPAU’s allegations. In fact, the Governor’s brief merely and
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unsurprisingly acknowledges the complaint’s description of the Governor’s response to the videos — namely that, shortly after viewing them, he came to the belief that Planned Parenthood’s conduct warranted the defunding of certain programs. Indeed, it is hard to imagine that the Governor’s able lawyers would have conceded away their entire case while still opposing relief, all without PPAU’s equally able lawyers noticing at any time throughout extensive district court and appellate proceedings. See Planned Parenthood Ass’n of Utah, 828 F.3d at 1269-70 (Bacharach, J., concurring in part and dissenting in part) (noting the absence of any admission). And it seems more than a little at odds with the comity federal courts normally afford the States and their elected representatives for this court, on its own motion, to attribute to a sitting Governor an admission he never made in order to discredit, in a published judicial opinion, the statements he publicly offered for his official actions. See Rizzo v. Goode, 423 U.S. 362, 378-79 (1976) (“Where, as here, the exercise of authority by state officials is attacked, federal courts must be constantly mindful of the special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.” (internal quotation marks omitted)).
* Respectfully, this case warrants rehearing. As it stands, the panel opinion leaves litigants in preliminary injunction disputes reason to worry that this court will sometimes deny deference to district court factual findings; relax the burden
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Case 2:15-cv-00693-DB Document 42 Filed 10/28/16 Page 27 of 27 Appellate Case: 15-4189 Document: 01019712249 Date Filed: 10/28/2016 Page: 27
of proof by favoring attenuated causal claims our precedent disfavors; and invoke arguments for reversal untested by the parties, unsupported by the record, and inconsistent with principles of comity. Preliminary injunction disputes like this one recur regularly and ensuring certainty in the rules governing them, and demonstrating that we will apply those rules consistently to all matters that come before us, is of exceptional importance to the law, litigants, lower courts, and future panels alike. I respectfully dissent.
-12-

 
 Case 2:15-cv-00693-DB Document 51 Filed 05/08/17 Page 1 of 4

Prepared and Submitted by:
Peggy A. Tomsic (3879) tomsic@mcgiplaw.com
Christine T. Greenwood (8187) greenwood@mcgiplaw.com
Jennifer Fraser Parrish (11207) parrish@mcgiplaw.com
MAGLEBY CATAXINOS & GREENWOOD 170 South Main Street, Suite 1100 Salt Lake City, Utah 84101-3605 Telephone: 801.359.9000 Facsimile: 801.359.9011
Attorneys for Plaintiff Planned Parenthood Association of Utah

~ ' ·, : \

CDUF< l ~·;;·f_'.f ' 1 -•

r -~

.-~,

t} ~ --~~ . ..-' ~ ,_-~

IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION

PLANNED PARENTHOOD ASSOCIATION OF UTAH, a Utah nonprofit corporation,

PERMANENT INJUNCTION ORDER

Plaintiff,

v.

GARY R. HERBERT, in his official capacity as Governor of THE STATE OF UTAH; and JOSEPH K. MINER, M.D., in his official capacity as the Executive Director of THE UTAH DEPARTMENT OF HEALTH, a department of the government of THE STATE OF UTAH,

Case No.

2:15-CV-00693-DB

Defendants.

Honorable Dee Benson

Case 2:15-cv-00693-DB Document 51 Filed 05/08/17 Page 2 of 4
Pursuant to the Stipulation of the Parties to the Proposed Order Granting Permanent Injunction, and for good cause,
IT IS HEREBY ORDERED: INJUNCTION
Gary R. Herbert, in his official capacity as Governor of the State of Utah, and Joseph K. Miner, M.D., in his official capacity as the Executive Director of the Utah Department of Health, and all employees and agents acting for or on their behalf or at their direction; their successors as Governor of the State of Utah and the Executive Director of the Utah Department of Health, respectively; and all employees and agents acting for or on behalf or at the direction of their successors as Governor of the State of Utah and the Executive Director of the Utah Department of Health, respectively (collectively, the "Enjoined Parties"), are permanently enjoined from defunding or denying funding to the Plaintiff on impermissible constitutional grounds, including the Plaintiff's provision of or advocacy for legal abortion; or the Plaintiff's association or affiliation with the national Planned Parenthood organization or its affiliates, or other organizations with which the Plaintiff affiliates or associates to provide for the advocacy of legal abortion.
The injunction does not require the Enjoined Parties to continue contracts, renew contracts, or issue new contracts to the Plaintiff. However, if the Enjoined Parties defund, decline to renew, or do not issue a contract to the Plaintiff, they are required to state in writing a legitimate basis for doing so and provide that writing to the Plaintiff within thirty (30) days of the time their decision takes effect. Such basis cannot include
2

Case 2:15-cv-00693-DB Document 51 Filed 05/08/17 Page 3 of 4

unproven allegations against the national Planned Parenthood organization or its

affiliates or the Plaintiff's provision of or advocacy for legal abortion.

Rn) , DATED this c;;· day of M

2017.

BY THE COURT:

Honorable Dee Benson United States District Court Judge

3

Case 2:15-cv-00693-DB Document 51 Filed 05/08/17 Page 4 of 4
APPROVED AS TO FORM: DATED this 23th day of April, 2017. MAGLEBY CATAXINOS & GREENWOOD Isl Jennifer Fraser Parrish Peggy A. Tomsic Christine T. Greenwood Jennifer Fraser Parrish Attorneys for Planned Parenthood Association Of Utah
OFFICE OF THE UTAH ATTORNEY GENERAL
Isl Tyler R. Green
(Electronically signed by filing attorney with permission from Tyler R. Green via e-mail on April 28, 2017)
Tyler R. Green
Parker Douglas Stanford E. Purser
Attorneys for Gary R. Herbert and Joseph K.
Miner, M.D.
4

 
 Case 2:15-cv-00693-DB Document 53 Filed 05/10/17 Page 1 of 3 Case 2:15-cv-00693-DB Document 52-1 Filed 05/09/17 Page 1of4

Prepared and Submitted by:
Peggy A. Tomsic (3879) tomsic@mcgiplaw.com
Christine T. Greenwood (8187) greenwood@mcgiplaw.com
Jennifer Fraser Parrish (11207) parrish@mcgiplaw.com
MAGLEBY CATAXINOS & GREENWOOD 170 South Main Street, Suite 1100 Salt Lake City, Utah 84101-3605 Telephone: 801.359.9000 Facsimile: 801.359.9011
Attorneys for Plaintiff Planned Parenthood Association of Utah

FILED US D!STHtGT COUHT ZO rl MAY I 0 P I: 3 1
. ·-· ......•~·-···---·'·--··-·· ···-·····-··-···-·- ...
\ / ;-'; :=_· ";!. 'r :.• - .

IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH, CENTRAL DIVISION

PLANNED PARENTHOOD ASSOCIATION OF UTAH, a Utah nonprofit corporation,
Plaintiff,
v.
GARY R. HERBERT, in his official capacity as Governor of THE STATE OF UTAH; and JOSEPH K. MINER, M.D., in his official capacity as the Executive Director of THE UTAH DEPARTMENT OF HEALTH, a department of the government of THE STATE OF UTAH,
Defendants.

ORDER DISMISSING ACTION WITH PREJUDICE
Case No. 2:15-CV-00693-DB Honorable Dee Benson

Case 2:15-cv-00693-DB Document 53 Filed 05/10/17 Page 2 of 3
Case 2:15-cv-00693-DB Document 52-1 Filed 05/09/17 Page 2 of 4

Pursuant to the Stipulation of the Parties to Dismissal of Action with Prejudice,

and for good cause,

IT IS HEREBY ORDERED that the Complaint and all claims asserted therein by

Plaintiff Planned Parenthood Association of Utah against Defendants Gary R. Herbert,

in his official capacity as Governor of the State of Utah, and Joseph K. Miner, M.D., in

his official capacity as the Executive Director of the Utah Department of Health, are

DISMISSED in their entirety, with prejudice.

The Permanent Injunction Order entered by this Court on May 8, 2017, shall

remain in place, notwithstanding this dismissal.

q !Mj , DATED this

day of /'JJ

2017.

BY THE COURT:

1)~ ;S.,e..,<~JJ-.-

Honorable Dee Benson United States District Court Judge

2

Case 2:15-cv-00693-DB Document 53 Filed 05/10/17 Page 3 of 3
Case 2:15-cv-00693-DB Document 52-1 Filed 05109117 Page 3 of 4
APPROVED AS TO FORM: DATED this gth day of May, 2017.
MAGLEBY CATAXINOS &GREENWOOD Isl Jennifer Fraser Parrish
Peggy A. Tomsic Christine T. Greenwood Jennifer Fraser Parrish Attorneys for Planned Parenthood Association
Of Utah
OFFICE OF THE UTAH ATTORNEY GENERAL
Isl Tyler R. Green (Signed by filing attorney with permission from Tyler R. Green via e-mail on May 9, 2017)
Tyler R. Green Parker Douglas Stanford E. Purser
Attorneys for Gary R. Herbert and Joseph K.
Miner, M.D.
3

 
 Case: 2:15-cv-00693-DB As of: 04/04/2019 08:13 AM MDT 1 of 6
US District Court Electronic Case Filing System District of Utah (Central)
CIVIL DOCKET FOR CASE #: 2:15−cv−00693−DB

CLOSED

Planned Parenthood Association of Utah v. Herbert et al Assigned to: Judge Dee Benson Case in other court: Tenth, 15−04189 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 09/28/2015 Date Terminated: 05/10/2017 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Planned Parenthood Association of Utah a Utah non−profit corporation

represented by Peggy A. Tomsic MAGLEBY CATAXINOS & GREENWOOD 170 S MAIN ST STE 1100 SALT LAKE CITY, UT 84101 (801)359−9000 Email: tomsic@mcgiplaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christine T. Greenwood MAGLEBY CATAXINOS & GREENWOOD 170 S MAIN ST STE 1100 SALT LAKE CITY, UT 84101 (801)359−9000 Email: greenwood@mcgiplaw.com ATTORNEY TO BE NOTICED

Jennifer F. Parrish MAGLEBY CATAXINOS & GREENWOOD 170 S MAIN ST STE 1100 SALT LAKE CITY, UT 84101 (801)359−9000 Email: parrish@mcgiplaw.com ATTORNEY TO BE NOTICED

V.
Defendant
Gary R. Herbert in his official capacity as Governor of the State of Utah

represented by Parker Douglas UTAH ATTORNEY GENERAL'S OFFICE 350 N STATE ST STE 230 PO BOX 142320 SALT LAKE CITY, UT 84114−2320 (801)538−9600 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tyler R. Green OFFICE OF THE ATTORNEY GENERAL 350 N STATE ST STE 230 SALT LAKE CITY, UT 84114 (801)538−1191 Email: tylergreen@agutah.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:15-cv-00693-DB As of: 04/04/2019 08:13 AM MDT 2 of 6

Defendant
Joseph K. Miner M.D., in his official capacity as the Executive Director of the Utah Department of Health, a department of the government of the State of Utah

Stanford Edward Purser UTAH ATTORNEY GENERAL'S OFFICE 160 E 300 S SALT LAKE CITY, UT 84114 (801)366−0533 Email: spurser@agutah.gov ATTORNEY TO BE NOTICED
represented by Parker Douglas (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tyler R. Green (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stanford Edward Purser (See above for address) ATTORNEY TO BE NOTICED

Date Filed 09/28/2015
09/28/2015 09/28/2015 09/28/2015
09/28/2015
09/28/2015

# Docket Text
1 Case has been indexed and assigned to Judge Clark Waddoups. Plaintiff Planned Parenthood Association of Utah is directed to E−File the complaint and cover sheet (found under Complaints and Other Initiating Documents) and pay the filing fee of $ 400.00 by the end of the business day. NOTE: The court will not have jurisdiction until the opening document is electronically filed and the filing fee paid in the CM/ECF system. Civil Summons may be issued electronically. Prepare the summons using the courts PDF version and email it to utdecf_clerk@utd.uscourts.gov for issuance. (eat) (Entered: 09/28/2015)
2 COMPLAINT for Declaratory and Injunctive Relief against All Defendants (Filing fee $ 400, receipt number 1088−2349009), filed by Planned Parenthood Association of Utah. Assigned to Judge Clark Waddoups (Tomsic, Peggy) (Entered: 09/28/2015)
3 MOTION for Temporary Restraining Order and Memorandum in Support , MOTION for Preliminary Injunction and Memorandum in Support filed by Plaintiff Planned Parenthood Association of Utah. (Attachments: # 1 Exhibit Exhibit A Declaration of K. Galloway, # 2 Text of Proposed Order)(Tomsic, Peggy) (Entered: 09/28/2015)
4 **RESTRICTED DOCUMENT**Summons Issued Electronically as to Gary R. Herbert. Instructions to Counsel: 1. Click on the document number. 2. If you are prompted for an ECF login, enter your 'Attorney' login to CM/ECF. 3. Print the issued summons for service. (mms) (Entered: 09/28/2015)
5 **RESTRICTED DOCUMENT**Summons Issued Electronically as to Joseph K. Miner. Instructions to Counsel: 1. Click on the document number. 2. If you are prompted for an ECF login, enter your 'Attorney' login to CM/ECF. 3. Print the issued summons for service. (mms) (Entered: 09/28/2015)
6 NOTICE OF HEARING ON MOTION re: 3 MOTION for Temporary Restraining Order and Memorandum in Support MOTION for Preliminary Injunction and Memorandum in Support : (Notice generated by aw) Motion Hearing set for 9/29/2015 at 10:00 AM in Rm 8.100 before Judge Clark Waddoups. (aw) (Entered: 09/28/2015)

Case: 2:15-cv-00693-DB As of: 04/04/2019 08:13 AM MDT 3 of 6

09/28/2015 09/28/2015 09/28/2015 09/28/2015 09/28/2015 09/29/2015
09/29/2015
10/01/2015

7 **RESTRICTED DOCUMENT** SUMMONS Returned Executed by Planned Parenthood Association of Utah as to Gary R. Herbert served on 9/28/2015, answer due 10/19/2015. (Tomsic, Peggy) (Entered: 09/28/2015)
8 **RESTRICTED DOCUMENT** SUMMONS Returned Executed by Planned Parenthood Association of Utah as to Joseph K. Miner served on 9/28/2015, answer due 10/19/2015. (Tomsic, Peggy) (Entered: 09/28/2015)
9 NOTICE of Appearance by Parker Douglas on behalf of All Defendants (Douglas, Parker) (Entered: 09/28/2015)
10 NOTICE of Appearance by Tyler R. Green on behalf of All Defendants (Green, Tyler) (Entered: 09/28/2015)
11 NOTICE of Appearance by Stanford Edward Purser on behalf of All Defendants (Purser, Stanford) (Entered: 09/28/2015)
12 TEMPORARY RESTRAINING ORDER− Motions terminated: 3 MOTION for Temporary Restraining Order and Memorandum in Support MOTION for Preliminary Injunction and Memorandum in Support filed by Planned Parenthood Association of Utah., ( Evidentiary Hearing set for 10/15/2015 at 09:30 AM in Rm 8.100 before Judge Clark Waddoups.) See Order for additional details. Signed by Judge Clark Waddoups on 9/29/15. (jmr) (Entered: 09/29/2015)
15 Minute Entry for proceedings held before Judge Clark Waddoups: Motion Hearing held on 9/29/2015 re 3 MOTION for Temporary Restraining Order and Memorandum in Support MOTION for Preliminary Injunction and Memorandum in Support filed by Planned Parenthood Association of Utah. Counsel for the parties present. Oral argument heard in the motion. The court GRANTS 3 MOTION for Temporary Restraining Order for the reasons stated on the record. The court sets the schedule for briefing on the Motion for Preliminary Injunction. Defendants' response is due on or before 10/9/2015. Plaintiff's reply is due on or before 10/13/2015. Evidentiary hearing on MOTION for Preliminary Injunction is set for 10/15/2015 at 9:30 AM. The Injunction shall remain in full effect until the date of the hearing. Court will prepare order. Attorney for Plaintiff: Christine Greenwood, Jennifer Parrish, Peggy Tomsic, Attorney for Defendant: Tyler Green, Stanford Purser. Court Reporter: Karen Murakami.(aw) (Entered: 10/06/2015)
13 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Transcript of Motion for Temporary Restraining Order held on September 29, 2015 before Judge Karen Murakami, CSR, RPR. Court Reporter/Transcriber Karen Murakami, CSR, RPR, Telephone number 801−328−4800.

NOTICE RE REDACTION OF TRANSCRIPTS: Within 7 business days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the parties intent to redact personal data identifiers from the electronic transcript of the court proceeding. To redact additional information a Motion to Redact must be filed. The policy and forms are located on the court's website at www.utd.uscourts.gov. Please read this policy carefully. If no Notice of Intent to Redact is filed within the allotted time, this transcript will be made electronically available on the date set forth below.

10/07/2015 10/09/2015

Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 10/22/2015. Redacted Transcript Deadline set for 11/2/2015. Release of Transcript Restriction set for 12/30/2015. (jmr) Modified on 12/30/2015 by removing restricted text (las). (Entered: 10/01/2015)
16 NOTICE OF EVIDENTIARY HEARING ON MOTION re: 3 MOTION for Preliminary Injunction and Memorandum in Support : (Notice generated by aw) Motion Hearing set for 10/15/2015 at 09:30 AM in Rm 8.100 before Judge Clark Waddoups. (aw) (Entered: 10/07/2015)
17 **RESTRICTED DOCUMENT** RETURN OF SERVICE Executed of Subpoena to Appear and Testify at Hearing in a Civil Action served on Jacey Skinner on 10/08/2015, filed by Plaintiff Planned Parenthood Association of Utah. (Tomsic,

Case: 2:15-cv-00693-DB As of: 04/04/2019 08:13 AM MDT 4 of 6

10/09/2015 10/09/2015 10/13/2015 10/13/2015 10/13/2015
10/14/2015 10/15/2015
10/20/2015 10/22/2015 10/23/2015

Peggy) (Entered: 10/09/2015)
18 Defendant's MOTION for Leave to File over−length memorandum in opposition to Plaintiff's motion for a preliminary injunction and Memorandum in Support filed by Defendants Gary R. Herbert, Joseph K. Miner. (Attachments: # 1 Text of Proposed Order)(Purser, Stanford) (Entered: 10/09/2015)
19 Defendant's MEMORANDUM in Opposition re 3 MOTION for Temporary Restraining Order and Memorandum in Support MOTION for Preliminary Injunction and Memorandum in Support filed by Defendants Gary R. Herbert, Joseph K. Miner. (Attachments: # 1 Affidavit Shari Watkins, # 2 Affidavit Austin Cox)(Green, Tyler) (Entered: 10/09/2015)
20 ORDER granting 18 Motion for Leave to File over−length memorandum in opposition to Plaintiff's motion for a preliminary injunction. Signed by Judge Clark Waddoups on 10/9/15. (jmr) (Entered: 10/13/2015)
21 Ex Parte (Not Sealed) MOTION for Leave to File Excess Pages and Memorandum in Support filed by Plaintiff Planned Parenthood Association of Utah. (Attachments: # 1 Text of Proposed Order)(Tomsic, Peggy) (Entered: 10/13/2015)
22 REPLY to Response to Motion re 3 MOTION for Temporary Restraining Order and Memorandum in Support MOTION for Preliminary Injunction and Memorandum in Support filed by Plaintiff Planned Parenthood Association of Utah. (Attachments: # 1 Exhibit B − Declaration of Brandon J. Mark, # 2 Exhibit C − Declaration of Jennifer Fraser Parrish, # 3 Text of Proposed Order Granting Preliminary Injunction Order)(Tomsic, Peggy) (Entered: 10/13/2015)
23 ORDER granting Ex Parte 21 Motion for Leave to File Excess Pages. Signed by Judge Clark Waddoups on 10/13/15. (jmr) (Entered: 10/14/2015)
24 Minute Entry for proceedings held before Judge Clark Waddoups: Motion Hearing held on 10/15/2015 re 3 MOTION for Preliminary Injunction and Memorandum in Support filed by Planned Parenthood Association of Utah. Counsel for the parties present. Oral argument heard on the motion. The court takes 3 MOTION for Preliminary Injunction UNDER SUBMISSION for the reasons stated on the record. The Temporary Restraining Order shall remain in effect until such time as the court submits its decision. Attorney for Plaintiff: Peggy Tomsic, Jennifer Parrish, Attorney for Defendant: Tyler Green, Stanford Purser, Spencer Austin, Jacee Skinner. Court Reporter: Karen Murakami.(aw) (Entered: 10/16/2015)
25 MOTION for Extension of Time to File Answer re 2 Complaint and Memorandum in Support filed by Defendants Gary R. Herbert, Joseph K. Miner. (Attachments: # 1 Text of Proposed Order)(Green, Tyler) (Entered: 10/20/2015)
26 ORDER granting 25 Motion for Extension of Time to Answer 2 Complaint. Signed by Judge Clark Waddoups on 10/22/2015. (blh) (Entered: 10/22/2015)
27 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion for Preliminary Injunction held on 10/15/2015 before Judge Clark Waddoups. Court Reporter/Transcriber Karen Murakami, CSR, RPR, Telephone number 801−328−4800.
NOTICE RE REDACTION OF TRANSCRIPTS: Within 7 business days of this filing, each party shall inform the Court, by filing a Notice of Intent to Redact, of the parties intent to redact personal data identifiers from the electronic transcript of the court proceeding. To redact additional information a Motion to Redact must be filed. The policy and forms are located on the court's website at www.utd.uscourts.gov. Please read this policy carefully. If no Notice of Intent to Redact is filed within the allotted time, this transcript will be made electronically available on the date set forth below.
Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 11/13/2015. Redacted Transcript Deadline set for 11/23/2015. Release of Transcript Restriction set for 1/21/2016. (jwt) Modified on 1/21/2016 by removing restricted text (las). (Entered:

Case: 2:15-cv-00693-DB As of: 04/04/2019 08:13 AM MDT 5 of 6

12/14/2015 12/22/2015
12/27/2015
12/28/2015 12/28/2015 12/28/2015
12/31/2015 01/08/2016 08/08/2016
08/17/2016 08/24/2016 08/29/2016 08/31/2016 09/06/2016 10/28/2016
02/09/2017

10/23/2015)
29 NOTICE of Change of Firm Name and Email Addresses by Planned Parenthood Association of Utah (Parrish, Jennifer) (Entered: 12/14/2015)
30 MEMORANDUM DECISION and Order Denying Preliminary Injunction−denying 3 Motion for Preliminary Injunction and VACATES the courts temporary restraining order 12 . See Order for further details. Signed by Judge Clark Waddoups on 12/22/15. (jmr) (Entered: 12/22/2015)
31 NOTICE OF INTERLOCUTORY APPEAL as to 30 Order on Motion for Preliminary Injunction, Memorandum Decision,, filed by Planned Parenthood Association of Utah. Appeals to the USCA for the 10th Circuit. Filing fee $ 505, receipt number 1088−2405617. (Tomsic, Peggy) (Entered: 12/27/2015)
32 Transmission of Preliminary Record to USCA re 31 Notice of Appeal − Interlocutory. (Attachments: # 1 Appendix)(jmr) (Entered: 12/28/2015)
33 USCA Case Number Case Appealed to Tenth Case Number 15−4189 for 31 Notice of Appeal − Interlocutory, filed by Planned Parenthood Association of Utah. (jmr) (Entered: 12/28/2015)
34 ORDER of USCA Tenth Circuit as to 31 Notice of Appeal − Interlocutory, filed by Planned Parenthood Association of Utah. Response to Appellant's motion for stay due on 12/29/2015, no later than 3:00 p.m. MST to the Tenth Circuit, for Gary R Herbert and Joseph K. Miner. (jmr) (Entered: 12/28/2015)
35 ORDER of USCA Tenth Circuit as to 31 Notice of Appeal − Interlocutory, filed by Planned Parenthood Association of Utah. The appeal will be expedited, and the parties will be advised of the briefing schedule by separate order. (jmr) (Entered: 12/31/2015)
36 NOTICE of Transcript Order Form by Planned Parenthood Association of Utah (Parrish, Jennifer) (Entered: 01/08/2016)
37 MANDATE of USCA as to 31 Notice of Appeal − Interlocutory, filed by Planned Parenthood Association of Utah. According to the USCA the judgment of the USDC for the Dist of UT is Reversed and Remanded. Judgment included with mandate: Yes. (Attachments: # 1 Judgment, # 2 Mandate Letter)(jmr) (Entered: 08/08/2016)
38 ORDER OF RECUSAL − Judge Clark Waddoups recused. Case reassigned to Judge Dee Benson for all further proceedings. Signed by Judge Clark Waddoups on 8/17/16. (jmr) (Entered: 08/17/2016)
39 NOTICE OF HEARING: (Notice generated by CHAMBERS) Status Conference set for 8/30/2016 at 02:30 PM in Rm 8.300 before Judge Dee Benson. (reb) (Entered: 08/24/2016)
Deadlines/Hearings terminated. The Status Conference set for 8/30/2016 at 2:30 p.m. has been cancelled. (reb) (Entered: 08/29/2016)
40 STIPULATION to Plaintiff's proposed order granting preliminary injunction by Gary R. Herbert, Joseph K. Miner. (Green, Tyler) (Entered: 08/31/2016)
41 PRELIMINARY INJUNCTION ORDER. Signed by Judge Dee Benson on 9/4/2016. (blh) (Entered: 09/07/2016)
42 SUPPLEMENT TO MANDATE of USCA as to 31 Notice of Appeal − Interlocutory, filed by Planned Parenthood Association of Utah. According to the USCA Chief Judge Tymkovich, as well as Judges Hartz, Gorsuch, andHolmes voted to grant en banc rehearing. Judge Briscoe has written separately in concurrence to the denial of en banc rehearing, as has Judge Bacharach. Judge Gorsuch has written separately in dissent. Judges Tymkovich, Hartz and Holmes join in that dissent. A copy of this order shall stand as a supplement to the mandate issued on August 8, 2016. (Attachments: # 1 Supplemental Mandate Letter)(jmr) (Entered: 10/28/2016)
43 Defendant's MOTION for Extension of Time to File Answer and Memorandum in Support filed by Defendants Gary R. Herbert, Joseph K. Miner. (Attachments: # 1 Text of Proposed Order)(Green, Tyler) (Entered: 02/09/2017)

Case: 2:15-cv-00693-DB As of: 04/04/2019 08:13 AM MDT 6 of 6

02/10/2017 03/15/2017 03/15/2017 03/16/2017 04/14/2017 04/18/2017 04/28/2017 05/08/2017 05/09/2017 05/10/2017

44 ORDER granting 43 Motion for Extension of Time to Answer 2 Complaint. Answer deadline updated for Gary R. Herbert, Joseph K. Miner. Answers due 3/18/2017. Signed by Judge Dee Benson on 2/9/2017. (blh) (Entered: 02/10/2017)
45 MOTION for Extension of Time to File Answer and Memorandum in Support filed by Defendants Gary R. Herbert, Joseph K. Miner. (Attachments: # 1 Text of Proposed Order)(Green, Tyler) (Entered: 03/15/2017)
46 ORDER granting 45 Motion for Extension of Time to Answer 2 Complaint. Answer deadline updated for Gary R. Herbert, Joseph K. Miner. Answers due 4/17/2017. Signed by Judge Dee Benson on 3/15/2017. (blh) (Entered: 03/15/2017)
47 NOTICE OF FILING of Friend of Court brief submitted by Jonathan L. Peterson (blh) (Entered: 03/23/2017)
48 MOTION for Extension of Time to File Answer and Memorandum in Support filed by Defendants Gary R. Herbert, Joseph K. Miner. (Attachments: # 1 Text of Proposed Order)(Green, Tyler) (Entered: 04/14/2017)
49 ORDER granting 48 Motion for Extension of Time to Answer 2 Complaint. Answer deadline updated for Gary R. Herbert, Joseph K. Miner. Answers due 5/1/2017. Signed by Judge Dee Benson on 4/17/2017. (blh) (Entered: 04/18/2017)
50 STIPULATION of the Parties to the Proposed Permanent Injunction Order by Planned Parenthood Association of Utah. (Attachments: # 1 Text of Proposed Order Exhibit 1 Proposed Permanent Injunction)(Parrish, Jennifer) (Entered: 04/28/2017)
51 PERMANENT INJUNCTION Order. Signed by Judge Dee Benson on 5/5/2017. (blh) (Entered: 05/08/2017)
52 STIPULATION of Dismissal of Action with Prejudice by Planned Parenthood Association of Utah. (Attachments: # 1 Text of Proposed Order)(Parrish, Jennifer) (Entered: 05/09/2017)
53 ORDER DISMISSING CASE with prejudice. The Permanent Injunction Order entered by this Court on May 8, 2017, shall remain in place, notwithstanding this dismissal. Case closed. Signed by Judge Dee Benson on 5/9/2017. (blh) (Entered: 05/10/2017)