FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LIVINGWELL MEDICAL CLINIC,

INC.; PREGNANCY CARE CENTER

OF THE NORTH COAST, INC.;

CONFIDENCE PREGNANCY

CENTER, INC.,

Plaintiffs-Appellants,

v.

XAVIER BECERRA,

*

 Attorney

General, Attorney General of the

State of California, in his official

capacity; KAREN SMITH, M.D.,

Director of California

Department of Public Health, in

her official capacity; MICHAEL

GEORGE COLANTUONO, City

Attorney of Grass Valley,

California, in his official

capacity; ALISON BARRATGREEN, County Counsel of

Nevada County, California, in

her official capacity; CINDY

DAY-WILSON, City Attorney of

Eureka, California, in her official

capacity; JEFFREY S. BLANCK,

County Counsel of Humboldt

County, California, in his official

capacity; CHRISTOPHER A.

No. 15-17497

D.C. No.

4:15-cv-04939-JSW

ORDER
2 LIVINGWELL MED. CLINIC V. BECERRA

CALLIHAN, City Attorney of

Salinas, California, in his official

capacity; CHARLES J. MCKEE,

County Counsel of Monterey

County, California, in his official

capacity,

Defendants-Appellees.

On Remand from the Supreme Court of the United States

Filed April 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).

* 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.
LIVINGWELL MED. CLINIC V. BECERRA 3

In NIFLA, the SupremeCourt concluded that the plaintiffs

were “likely to succeed on the merits of their [free speech]

challenge to the licensed notice [requirement in the California

Reproductive Freedom, Accountability,ComprehensiveCare,

and Transparency Act].” 138 S. Ct. at 2376. The panel held

that the same provision was at issue in this case, and reversed

the district court’s conclusion that plaintiffs were not likely

to succeed on the merits of their First Amendment free speech

claim.

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

remaining preliminary injunction Winter factors, and

remanded for the district court to reconsider them in light of

NIFLA.

ORDER

This case is back before us on remand from the United

States Supreme Court. See LivingWell Med. Clinic, Inc. v.

Becerra, 2018 WL 3148265 (U.S. June 28, 2018). In light of

National Institute of Family and Life Advocates (“NIFLA”)

v. Becerra, 138 S. Ct. 2361 (2018), we reverse in part,

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

further proceedings.

“A plaintiff seeking a preliminary injunction must

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

he is likely to suffer irreparable harm in the absence of

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

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

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

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

all four prongs” to obtain a preliminary injunction. Alliance
4 LIVINGWELL MED. CLINIC V. BECERRA

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 the plaintiffs

were “likely to succeed on the merits of their [free speech]

challenge to the licensed notice [requirement in the California

Reproductive Freedom, Accountability,ComprehensiveCare,

and Transparency Act].” 138 S. Ct. at 2376. The same

provision is at issue here. See LivingWell Med. Clinic,

2018 WL 3148265, at *1. We therefore reverse the district

court’s conclusion that LivingWell Medical Clinic, Inc.,

Pregnancy Care Center of the North Coast, Inc., and

Confidence Pregnancy Center, Inc. (“Plaintiffs”) were not

likely to succeed on the merits of their free speech claim.

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.