FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL INSTITUTE OF FAMILY

AND LIFE ADVOCATES, DBA

NIFLA, a Virginia corporation;

PREGNANCY CARE CENTER, DBA

Pregnancy Care Clinic, a California

corporation; FALLBROOK

PREGNANCY RESOURCE CENTER, a

California corporation,

Plaintiffs-Appellants,

v.

XAVIER BECERRA,

* Attorney

General, in his official capacity as

Attorney General for the State of

California; THOMAS MONTGOMERY,

in his official capacity as County

Counsel for San Diego County;

MORGAN FOLEY, in his official

capacity as City Attorney for the

City of El Cajon, CA; EDMUND G.

BROWN, JR., in his official capacity

as Governor of the State of

California,

Defendants-Appellees.

No. 16-55249

D.C. No.

3:15-cv-02277-

JAH-DHB

ORDER
2 NIFLA V. BECERRA

On Remand from the Supreme Court of the United States

Filed August 28, 2018

Before: Dorothy W. Nelson, A. Wallace Tashima,

and John B. Owens, Circuit Judges.

SUMMARY**

Preliminary Injunction / First Amendment

On remand from the United States Supreme Court, the

panel reversed in part, vacated in part, and remanded to the

district court for further proceedings in light of National

Institute of Family and Life Advocates v. Becerra (“NIFLA”),

138 S. Ct. 2361 (2018).

In NIFLA, the Supreme Court concluded that the plaintiffs

were “likely to succeed on the merits of their claim that the

[California Reproductive Freedom, Accountability,

Comprehensive Care, and Transparency Act] violates the

First Amendment.” 138 S. Ct. at 2376. The panel reversed

the district court’s conclusion that plaintiffs were not likely

to succeed on the merits of their free speech claims with

*

 Xavier Becerra has been substituted for his predecessor, Kamala

D. Harris, as Attorney General for the State of California under Fed. R.

App. P. 43(c)(2).

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
NIFLA V. BECERRA 3

respect to the notices covering both the licensed and

unlicensed facilities.

The panel vacated the district court’s order on the three

remaining preliminary injunction Winter factors, and

remanded for the district court to reconsider them in light of

NIFLA.

ORDER

In light of National Institute of Family and Life Advocates

(“NIFLA”) v. Becerra, 138 S. Ct. 2361 (2018), we reverse in

part, vacate in part, and remand this case to the district

court for further proceedings.

“A plaintiff seeking a preliminary injunction must

establish [1] that he is likely to succeed on the merits, [2] that

he is likely to suffer irreparable harm in the absence of

preliminary relief, [3] that the balance of the equities tips in

his favor, and [4] that an injunction is in the public interest.” 

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)

(citations omitted). A “plaintiff [must] make a showing on

all four prongs” to obtain a preliminary injunction. Alliance

for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir.

2011) (emphasis added); see also Garcia v. Google, Inc.,

786 F.3d 733, 740 (9th Cir. 2015) (en banc) (stating that a

plaintiff “must show” all four factors before an injunction

may issue (citation and internal quotation marks omitted)).

In NIFLA, the Supreme Court concluded that NIFLA,

Pregnancy Care Center, and Fallbrook Pregnancy Resource

Center (“Plaintiffs”) were “likely to succeed on the merits of

their claim that the [California Reproductive Freedom,
4 NIFLA V. BECERRA

Accountability, Comprehensive Care, and TransparencyAct]

violates the First Amendment.” 138 S. Ct. at 2378. We

therefore reverse the district court’s conclusion that Plaintiffs

were not likely to succeed on the merits of their free speech

claims with respect to the notices covering both the licensed

and unlicensed facilities.

The district court further premised its analysis of the other

three Winter factors on its conclusion that Plaintiffs’ First

Amendment claim was not likely to succeed. We therefore

vacate the district court’s order on the three remaining Winter

factors and remand for the district court to consider them

again in light of NIFLA.

Plaintiffs-Appellants shall recover their costs on appeal

from Defendants-Appellees.

REVERSED in part, VACATED in part, and

REMANDED.