F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

N A T I ON A L I N S T I T U T E O F F AM I L

Y A N D L I F E A D V O C A T E S , DB A NI F L A, a Virg inia corporation; P R E G N A N C Y C AR

E C E N T E R , DB A Preg nancy

Care Clinic, a California corporation; F A L L B R

O O K P R E G N A N C Y R E S O UR

C E C E N T E R , a California corporation,

Plaintiffs-Appellants ,

v

.
X A V I E R B E C E R

R A , * Attorney General, in his official capacity as Attorney General for the State of California; T H O M

A S M O N T G O M E R

Y , in his official capacity

as County Counsel for San Dieg o County ; M O R G A N F O L E Y , in his official capacity as City Attorney for the City of El Cajon, CA; E D M U N D G. B R O W N , J R

. , in his official capacity as Governor of the State of California, Defendants-Appellees. N o. 16-55249

D.C. No. 3:15-cv-02277- J AH-DHB

ORDERNI F L A V

. B E C E R R A 2

O n Remand from the Supreme Court of the United States

F iled August 28, 2018

B efore: Dorothy

W . Nelson, A. W allace Tashima, and J ohn B . Owens, Circuit J udg es.

SUMMARY * *

P relim inary Injunction / F irst Am endm ent

On remand from the United States Supreme Court, the panel r eversed in part, vacated in part, a nd remanded to the distric t court for further proceeding s in lig ht of National Institute of

Family and Life Advocates v. Becerra ( “NIFLA”) , 138 S. Ct. 2361 (2018).

I n NIFLA , the Supreme Court concluded that the p lainti f fs
were “likely to succeed on the merits of their claim th a t t he [ C a l i f o r n i a R e p r o d u c t i v e F r e e d o m , A c c o u n t a b i l i t y, Comprehensive Care, and Transparency Act] violates the Fi r s t A m endment.” 138 S. Ct. at 2 376. The panel reversed the district court’s co nclusion that plaintiffs were not likely to s u c c eed on the merits of their free speech claims with

* Xav ier B ecerra h as b een su b stitu t ed f o r h is p red ecesso r, Kam ala D. Harris, as At t o r n e y G en eral f o r th e State o f Calif

o rn ia u n d er Fed

. R. A p p. P . 4 3 (c)(2 ).

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co urt. It h as b eenp rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.NI F L A V

. B E C E R R A 3

r e spect to the notices covering both the licensed a n d unlicensed facilities.

The panel vacated the d i s t r i ct court’s order on the three remaining pre l iminary injunction W inter factors, a

nd remanded for the district court to reconsider them in ligh t of NIFLA

.

ORDER

I n lig ht o f National I

nstitute o f F a mily and Life Advocates ( “NIFLA”) v. Becerra , 138 S. Ct. 2361 (2018), we r everse in p a rt , v acate in part , and rem and this case to the d i s t r i ct court for further proceeding s.

“A p laintiff s e e k ing a preliminary injunction must establish [ 1] that he is likely to succeed o n the merits, [ 2] that he is likely to suffer irreparable h arm in the a bsence o f preliminary r e lie f

, [ 3 ] t hat the balance o f the equities tips in his favor, and [ 4] that a

n injunction is in the public interest.” W inter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20 (2008) (citations o mitted). A “plaintiff [ m u s t ] make a showing on all four prongs ” to o btain a preliminary injunction. Alliance for the W ild Rockies v. Cottrell , 632 F .3d 1127, 1135 ( 9th Cir. 2011) (emph a sis added); see also Garcia v. Google, Inc. , 786 F .3d 733, 740 (9th Ci r

. 2 015) (en b anc) ( stating that a plaintiff “must show” a l l f our factors before an injunction may issue (citation and internal quotation marks omitted)).

I n NIFLA , the Supreme Court concluded that NI F L A , Pregn a n cy Care Center, a n d F allbrook Preg nancy Resource Center (“Plaintiffs”) were “likely to succeed on the merits o f their claim that the [ California Reproductive F reed om,NI F L A V

. B E C E R R A 4 Accountability , Comprehensive Care, and Transparency Act] violates the Fi r st Amendment.” 138 S. Ct. at 2378. W e therefore reverse the district c ourt’s conclusion that Plaintiffs
were not likely to succeed on the mer its of their free speech claims with respect to the notices covering both the licensed and unlicensed facilities.

The district court further premised its analy sis o f the other th r e e W inter factors on its conclusion that Plaintiffs’ F irst Amendment c l a i m w a s not likely to succeed. W e therefore vacate the district court’s order on the three remaining W inter factors and rem and for the district court to c onsider them ag ain in lig h t of NIFLA

. Plaintiffs-Appellants shall recove r their costs on appeal from Defendants-Appellees.

REVERSED in part, V A C ATED in part, a nd REMANDED.