NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HOPE MEDICAL ENTERPRISES, INC., d/b/a Hope Pharmaceuticals ,

Plaintiff

- Appellee ,

v. FAGRON COMPOUNDING SERVICES, LLC ; et al. , Defendant s - Appellant s
. No. 21

- 5 5165
D.C. No. 2:1 9

- c v - 07748

- CAS

- PLA

MEMORANDUM *

Appeal from the United States District Court for the Central District of California Christina A. Snyder , District Judge , Presiding Argued and Submitted November 1 7 , 202 1

Pasadena , California
Before: RAWLINSON and LEE , Circuit Judges , and KENNELLY , * * District Judge. Defendants Fagron Compounding Services, LLC, JCB Laboratories, LLC, AnazaoHealth Corporation, and Coast Quality Pharmacy, LLC (collectively,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Matthew F. Kennelly, United States District Judge for the Northern District of Illinois, sitting by designation. 

# FILED

DEC 10 2021
MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

“ Fagron ” ) appeal the district court ’ s denial of their motion titled “ Motion for Reconsideration of Order Granting P reliminary Injunction

. ” W e dismiss the appeal for lack of jurisdiction

. Under 28 U.S.C. § 1292(a)(1), we have interlocutory appellate jurisdiction
over orders “ refusing to dissolve . . . injunctions. ” This Court has previously explained that an order den ying a motion to dissolve an injunction is appealable only if the motion “ in substance is based on new circumstances that have arisen after the district court granted the injunction. ” Credit Suisse First Boston Corp. v.
Grunwald , 400 F.3d 1119, 1124 (9th Cir. 2005) . Thus Fagron ’ s appeal depends on
whether its motion was based on new circumstances that arose after the district court granted the preliminary injunction. Fagron presents two “ new circumstances ” that it contends satisfy the
Grunwald test . First, Fagron cites several decisions issued in the Nexus cases, including Nexus Pharmaceuticals Inc. v. Central Admixture Pharmacy Services
Inc. , No. 8:20

- cv - 01506

- CJC

- JDE (C.D. Cal. Oct. 29, 2020) , in which a different judge in the Central District of California concluded that the plaintiff ’ s state law claims were preempted by the Food, Drug, and Cosmetics Act. Second, Fagron points to a declaration, filed in th e Nexus cases, from Maria Gozun, the Food and Drug Administration ’ s (FDA) Acting Director of the Division of Compounded Drugs.3

Neither the Nexus decisions nor the Gozun declaration constitute “ new
circumstances ” sufficient to meet the Grunwald test

. T he Nexus decisions were not controlling authority; they were issued by a different di strict judge and thus were not binding on the district judge in this case

. See Camreta v. Greene , 563 U.S. 692, 709 n.7 (2011) ( “ A decision of a federal district court judge is not binding precedent in either a different judicial district, the same judici al district, or even upon the same judge in a different case. ” ) (citation omitted). A non

- binding decision by a judge at
the same court level does not amount to a relevant “ new circumstance. ” Similarly, an agency declaration is not binding on district cou rts. Although the Supreme Court “ has recognized that an agency regulation with the force of law

can pre - empt conflicting state requirements, ” the Gozun declaration is not such a regulation. See Wyeth v. Levine , 555 U.S. 555, 576 (2009). “ [A] n agency ’ s m ere assertion that state law is an obstacle to achieving its statutory objectives ” is not a regulation that can preempt conflicting state requirements. Id.
E ven if the Gozun declaration were binding, it does not constitute “ new
circumstances ” that qualify under Grunwald

. Part of the declaration address es a type of drug compounding that is not at issue in this case

. And t he part of the
declaration address ing bulk drug compounding facilities, like those operated by Fagron, state s that the FDA has not changed and is not planning to change its regulations concerning such facilities

.4

Because Fagron ’ s motion was not based on “ new circumstances ” satisfying
the Grunwald test , the district court ’ s d ecision is not appealable as an order refusing to dissolve a preliminary injunction under section 1292(a)(1).
DISMISSED
.