United States District Court, E.D. California
ORDER ON PLAINTIFF'S MOTION FOR INJUNCTION
PENDING APPEAL
TROY
L. NUNLEYJ 1 UNITED STATES DISTRICT JUDGE
This
matter is before the Court on Plaintiff Association for
Accessible Medicine's (“Plaintiff or
“AAM”) Motion for Injunction Pending Appeal
brought under Federal Rule of Appellate Procedure 8. (ECF No.
30.) For the reasons set forth below, Plaintiffs Motion is
DENIED.
I.
Procedural Background
The
Court will not recount all background facts herein
(See ECF No. 29, providing a more thorough factual
background), and will instead summarize only the relevant
procedural history.
On
November 19, 2019, Plaintiff filed a Motion for Preliminary
Injunction requesting the Court enjoin the implementation or
enforcement of AB 824. (ECF No. 10.) Defendant Attorney
General Xavier Becerra (“Defendant” or the
“State”) filed an opposition to that motion on
December 10, 2019 (ECF No. 24), and Plaintiff replied on
December 17, 2019 (ECF No. 27). The Court heard oral argument
on the matter on December 19, 2019 (see ECF No. 28),
and ultimately issued an order denying the motion on December
31, 2019 (ECF No. 29, the “Order”).
On
January 2, 2020, Plaintiff filed a Notice of Preliminary
Injunction Appeal of this Court's December 31, 2019 Order
to the United States Court of Appeals for the Ninth Circuit.
(ECF No. 31.) At the same time, Plaintiff filed the pending
Motion for Injunction Pending Appeal (ECF No. 30) but failed
to properly notice that motion pursuant to Local Rule 230.
Nonetheless, and because of the time-sensitive nature of
Plaintiff s request, the Court - rather than force Plaintiff
to properly notice the motion for a hearing date or file a
request to shorten time - ordered the State to respond on a
much-shortened timeline. (See ECF No. 33.) In
compliance with the Court's order, the State timely filed
its Opposition on January 6, 2020, and briefing on the matter
was closed. (ECF No. 35.)
II.
Standard
“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 equities tips in
his favor, and [4] that an injunction is in the public
interest.” Winter v. Natural Res. Def. Council,
Inc., 555 U.S. 7, 20 (2008). A plaintiff must
“make a showing on all four prongs” of the
Winter test to obtain a preliminary injunction, but
a court may employ a “sli ding-scale” approach in
weighing the four factors. Alliance for the Wild Rockies
v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). In
that case, a plaintiff must demonstrate, “that [if]
serious questions going to the merits were raised [then] the
balance of hardships [must] tip[ ] sharply in the plaintiffs
favor, ” in order to succeed in a request for
preliminary injunction. Id. at 1134-35.
The
“factors [that] inform ... the decision to stay pending
appeal ... are essentially the same as [those] applicable to
a motion for a preliminary injunction[.]” Morgan
Tire of Sacramento, Inc. v. Goodyear Tire & Rubber
Co., No. 2:15-CV-00133-KJM-AC, 2015 WL 3623369, at *1
(E.D. Cal. June 9, 2015). Consequently, the Court assumes the
sliding-scale approach applies in both situations as well.
See Klamath-Siskiyou Wildlands Center v. Grantham,
No. 2:18-cv-02785-TLN-DMC, 2019 WL 2325555, at *1 (E.D. Cal.
2019). The test therefore operates as follows: “serious
questions going to the merits and a balance of hardships that
tips sharply towards the [appellant] can support issuance of
a [stay pending appeal], so long as the [appellant] also
shows that there is a likelihood of irreparable injury and
that the injunction is in the public interest.”
Id. (quoting All. for the Wild Rockies v.
Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (internal
quotation marks omitted)).
III.
Analysis
Regarding
the likelihood of success on the merits or serious questions
going to the merits of Plaintiff s claims, it appears the
test on an injunction pending appeal is more specifically
directed to Plaintiffs likelihood of success on appeal or
serious questions going to the merits of Plaintiffs
appeal.[1] See Klamath-Siskiyou Wildlands
Center, 2019 WL 2325555, at *2. To that end, as
Plaintiff notes, some “courts have observed that the
success on the merits factor cannot be rigidly applied,
because if it were, an injunction would seldom, if ever, be
granted because the district court would have to conclude
that it was probably incorrect in its determination on the
merits.” Protect Our Water v. Flowers, 377
F.Supp.2d 882, 884 (E.D. Cal. 2004) (quoting Oregon
Natural Res. Council v. Marsh, Civ. No. 85-6433-E, 1986
WL 13440, at *1 (D. Or. 1986) (internal quotation marks and
citation omitted). “Rather, district courts properly
stay their own orders when they have ruled on an admittedly
difficult legal question and when the equities of the case
suggest that the status quo should be maintained.”
Id. (internal quotation marks and citation omitted).
In an
attempt to meet this standard, Plaintiff asserts that
“[t]here is a substantial question here whether the
Ninth Circuit will agree with this Court that further factual
development (or State enforcement) is necessary to resolve in
AAM's favor the merits of AAM's challenges.”
(ECF No. 30 at 2.) Plaintiff points to three out-of-circuit
cases in support of its position that it has raised serious
questions going to the merits of its appeal based on this
Court's finding that Plaintiffs pre-enforcement
as-applied Dormant Commerce Clause claim is not ripe. (ECF
No. 30 at 2-3.) Plaintiff additionally argues that its
asserted constitutional injuries are not too speculative in
light of the fact the State did not refute that AB 824
applies out of state. (ECF No. 30 at 3.)[2] Plaintiff
stresses that the logic of the Court's Order renders 42
U.S.C. § 1983 meaningless because it would require a
party regulated by an unconstitutional law to wait for the
law to be applied against it before it may complain. (ECF No.
30 at 3-4.)
This
Court is not in the practice of guessing how the Court of
Appeals might eventually rule on the questions presented to
it. Nonetheless, and for the reasons set forth in the
Court's December 31, 2019 Order denying Plaintiff's
Motion for Preliminary Injunction, the Court finds Plaintiff
is not likely to succeed on the merits of its appeal, nor has
Plaintiff raised serious questions going to the merits of
that appeal. (See generally, ECF No. 29 at 7-23.)
Indeed, Plaintiff's out-of-circuit cases (See
ECF No. 30 at 2-3) do not support its position to the extent
Plaintiff would have the Court believe, nor do they change
the Court's prior analysis. And more importantly, to the
extent those cases adjudicated pre-enforcement as-applied
Dormant Commerce Clause claims, the Court presumes those
cases were ripe for such adjudication. Simply put,
Plaintiff's claim is not.
In the
instant case, this Court did not find that pre-enforcement
as-applied Dormant Commerce Clause attacks are never
permissible. Rather, the Ninth Circuit has articulated a
three-part test concerning the ripeness of such claims.
See, e.g., Clark v. City of Seattle, 899 F.3d 802
(9th Cir. 2018) (“Where a plaintiff intends to
challenge a statute prior to its enforcement, generalized
threats of prosecution do not confer constitutional ripeness.
Rather, there must be a genuine threat of imminent
prosecution. To determine whether a genuine threat of
imminent prosecution exists, we use three factors . . .
.” (citations and internal quotation marks omitted)).
This Court found Plaintiff has not met the factors
articulated in that test and therefore found Plaintiff's
particular claim is not ripe. (ECF No. 29 at 10-11.)
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