M. R., et al v. Susan Dreyfus, et al
FILED OPINION (STEPHEN R. REINHARDT, WILLIAM A. FLETCHER and JOHNNIE B. RAWLINSON) REVERSED AND REMANDED. Judge: SR , Judge: WAF Authoring, Judge: JBR Dissenting. FILED AND ENTERED JUDGMENT. 
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DEC 16 2011
M.R. v. Dreyfus, Case No. 11-35026
Rawlinson, Circuit Judge, dissenting:
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent from the majority opinion in this case. It is important
to note at the outset that this appeal challenges the denial of a preliminary
injunction. Our review is for an abuse of the considerable discretion afforded the
district court in making the determination whether a preliminary injunction should
be entered. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th
Cir. 2011). So long as the district court “got the law right,” we “will not reverse
the district court.” Id. (citation omitted). Our scope of review is necessarily
limited. See Sports Form, Inc. v. UPI, Inc., 686 F.2d 750, 752 (9th Cir. 1982).
In a thoughtful and comprehensive 50-page order, the district court denied
the request for a preliminary injunction. As the majority acknowledges, any
factual findings made by the district court must be accepted unless clearly
erroneous. See Alliance for the Wild Rockies, 632 F.3d at 1131. The district court
prefaced its decision by noting its “careful” review” of the 164+ documents filed
by the parties and the 5+ hours of oral argument during two hearings. See District
Court Order, p. 2 n.4. The district court also recognized that a preliminary
injunction is an “extraordinary interlocutory remedy” that should be the exception
rather than the rule. See id. at p. 3 (quoting Winter v. Natural Res. Defense
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Counsel Inc., 129 S. Ct. 365, 376 (2008)).
The district court found that not one of the named plaintiffs satisfied the
criteria to be placed in the classification reflecting the highest acuity of need. See
id. at p. 10. Keeping in mind that the services at issue are personal care services,
and not medical care, the district court determined that the plaintiffs failed to
establish a likelihood of irreparable harm. See id. at p. 12 & n.13. The district
court relied largely on its determination that the threatened injury
(institutionalization) was not imminent. See id. at p. 13 n.14 (quoting City of Los
Angeles v. Lyons, 461 U.S. 95, 101-02 (1983)). The district court emphasized that
this factor was particularly important where a party seeks to enjoin official action
on the part of a State. See id. (noting federalism concern).
The district court underscored the fact that Washington’s assessment
mechanism did not reflect the individual need of each program participant. Rather,
the assessment reflected the relative acuity of the need for personal care services.
See id. at p. 14. The assessment essentially determined what share of the available
resources a program participant should be allocated. See id. at p. 15. Because the
assessment does not translate into a number of absolute hours of required personal
services, the district court concluded that plaintiffs could not persuasively argue
that a decrease in the number of personal care services hours resulted in the
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required showing that institutionalization was imminent. Indeed, the district court
found to the contrary. See id. at p. 17 n.20 (referring to evidence in the record that
the 2009 reduction in personal care services hours “did not result in any negative
consequences to personal care service beneficiaries . . . .”) (emphasis in the
original). Specifically, program participants were not institutionalized due to the
decrease in personal care service hours. See id.; see also id. at p. 18 (explaining
that since the 2011 reductions went into effect, “over 99% of the sampled records
reflected no complaint concerning the adequacy of allotted hours”).
I recognize that my colleagues in the majority rely on the declarations from
the plaintiffs to support their reversal of the district court’s decision. However,
without a showing of clear error on the part of the district court judge, it is not
enough to simply credit one party’s view of the evidence. Actually, Supreme
Court precedent dictates exactly the opposite approach. Where there are two views
of the evidence presented, and the trier of fact selects one view over the other, no
clear error can be shown. See Anderson v. City of Bessemer City, 470 U.S. 564,
574 (1985) (“Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.”) (citations
In this case, the plaintiffs presented declarations averring that
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institutionalization was likely if the personal service hours were decreased. The
State defendants presented declarations refuting those submitted by the plaintiffs.
At this stage of the proceedings and considering our limited standard of review, I
am not persuaded that the district court clearly erred in crediting the State’s view of
Ultimately, the district court determined that the plaintiffs’ declarations
failed to make an adequate showing of a likely threat of harm because the
(1) ascribe the threat of institutionalization to plaintiffs’
deteriorating medical conditions, unrelated to the
provision of personal care service hours; (2) demonstrate
ineffective management of currently allocated personal
care service hours; or (3) identify non-personal care
services as the cause of their predicted
Id. at p. 24.2
The district court described nine plaintiffs whose medical conditions
worsened without regard to the decrease in personal care service hours. See id. at
It is of some interest that the district court noticed that the plaintiffs’
declarations of harm were “repeated verbatim or nearly verbatim throughout the
various declarations . . .” Id. at p. 24 n.30.
The district court also noted the use of qualifying language in the
declarations that rendered them “speculative at best . . .” Id. at p. 25 n.31.
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pp. 24-25. The district court also credited evidence from the State defendants
regarding “[i]nefficient [u]se of [c]urrently [a]llocated [p]ersonal [c]are [s]ervice
[h]ours[,]” Id. at pp. 26-27, and the inclusion of non-personal care services in the
asserted harm arguments, see id. at pp. 27-28.
Considering the district court’s determination regarding the likelihood of
irreparable harm with the required deference to its factual findings, I am not
persuaded that we should reverse the district court’s determination.
In my view, a similar conclusion is in order upon review of the district
court’s resolution of plaintiffs’ claim predicated on the provisions of the
Americans With Disabilities Act (ADA). The thrust of plaintiffs’ argument is that
the mandated decrease in personal care services hours violates the ADA
requirement that disabled individuals be integrated into the community for services
rather than be institutionalized to receive services. According to plaintiffs, the
decrease in personal care services hours will result in institutionalization of
individuals who could remain in the community if the personal care services hours
were maintained at their previous levels. The majority agrees with the plaintiffs’
contention, describing this issue as a serious question going to the merits of
plaintiffs’ ADA claims.
The Supreme Court addressed the ADA’s integration provision in Olmstead
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v. L.C. ex rel. Zimring, 527 U.S. 581 (1999). In that case, mental patients were
retained in institutional facilities after medical providers concluded that treatment
in community-based facilities was appropriate. See id. at 593. The Court held that
the ADA required placement in a community-based facility if “the placement can
be reasonably accommodated, taking into account the resources available to the
State and the needs of others with . . . disabilities . . . .” Id. at 587. The Court fully
acknowledged that the State had multiple and diverse obligations to its disabled
citizens and a concomitant obligation to administer all its services “with an even
hand . . . .” Id. at 597. The Court explained that the State’s obligation to provide a
variety of services evenly for all program participants mandated that more leeway
be afforded the States in administering those programs. See id. at 605.
Given the leeway that the Supreme Court has instructed must be afforded the
States in administering social services programs, the question of whether plaintiffs
have raised a serious issue going to the merits is not as cut-and-dried as the
The majority urges “considerable respect” to the Department of Justice’s
bald statement that “the elimination of services that have enabled Plaintiffs to
remain in the community violates the ADA, regardless of whether it causes them to
enter an institution immediately, or whether it causes them to decline in health over
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time and eventually enter an institution in order to seek necessary care.” Majority
Opinion, pp. 40-41 (quoting the statement of interest filed by the DOJ). However,
the district court was not persuaded that the DOJ’s bald statement was entitled to
deference. See District Court Order, p. 39 n.42.
The Supreme Court in Olmstead stopped short of requiring that deference be
given to the DOJ’s view. Rather, the Supreme Court stated:
We need not inquire whether the degree of deference
described in Chevron U.S.A. Inc. v. Natural Resources
Defense Council, Inc. . . . is in order: [i]t is enough to
observe that the well-reasoned views of the agencies
implementing a statute constitute a body of experience
and informed judgment to which courts and litigants may
properly resort for guidance.
Olmstead, 527 U.S. at 598 (citation, alteration and internal quotation marks
omitted) (emphasis added).
The fact that the district court elected not to defer to the DOJ’s bald,
unreasoned statement did not run afoul of the Supreme Court’s permissive view of
the deference owed to the DOJ’s interpretation of the integration regulation.
Because I conclude that the plaintiffs have not raised serious questions going
to the merits of their claim, and because the district court committed no clear error
in finding a lack of irreparable harm, I would affirm the district court’s denial of
injunctive relief on those bases. However, I also note that Olmstead contains
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language supporting the district court’s determination that granting the relief
requested by Plaintiffs would likely constitute a fundamental alteration of the
State’s plan. See Olmstead, 527 U.S. at 597 (“In evaluating a State’s fundamentalalteration defense, the District Court must consider, in view of the resources
available to the State, not only the cost of providing community-based care to the
litigants, but also the range of services the State provides others with . . .
disabilities, and the State’s obligation to mete out those services equitably.”). This
same rationale supports the district court’s determination that the public interest
favors permitting the State to equitably balance the needs of all persons who are
served by the Medicaid program rather than requiring the State to accommodate
the needs of a discrete subset of that population at the expense of others in need.
Keeping in mind our limited scope of review and the deference owed to the
district court’s factual findings, I do not agree that the district court abused its
discretion when it denied the requested preliminary injunction. Therefore, I
respectfully dissent from the majority opinion.
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