Save Strawberry Canyon v. Lawrence Berkeley National Laboratory et al

Filing 116

ORDER REGARDING PRELIMINARY INJUNCTION STANDARD (whalc2, COURT STAFF) (Filed on 4/22/2009)

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SAVE STRAWBERRY CANYON, a non-profit corporation, Plaintiff, v. DEPARTMENT OF ENERGY, et al., Defendants. / FOR THE NORTHERN DISTRICT OF CALIFORNIA IN THE UNITED STATES DISTRICT COURT

No. C 08-03494 WHA

ORDER REGARDING PRELIMINARY INJUNCTION STANDARD

This order addresses the preliminary injunction standard to be applied in the wake of the recent Winter and American Trucking decisions. As an alternative formulation of the preliminary injunction standard, the Ninth Circuit has traditionally advanced a sliding-scale test under which injunctive relief is appropriate, among other circumstances, in cases of obvious irreparable injury but where the plaintiff is only able to show that "serious questions going to the merits were raised." Benda v. Grand Lodge of the Int'l Ass'n of Machinists & Aerospace Workers, 584 F.2d 308, 314­15 (9th Cir. 1978). The inquiry was recently described as follows: [a] preliminary injunction is appropriate when a plaintiff demonstrates `either: (1) a likelihood of success on the merits and the possibility of irreparable injury; or (2) that serious questions going to the merits were raised and the balance of hardships tips sharply in [the plaintiff's] favor' . . . . In addition to balancing the hardships to the parties, [courts] also must take into account the public's interest.

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

The Lands Council v. McNair, 537 F.3d 981, 1003 (9th Cir. 2008). "[T]he less certain the district court is of the likelihood of success on the merits, the more plaintiffs must convince the district court that the public interest and balance of hardships tip in their favor." Ibid.1 In the recent Winter decision, however, the Supreme Court held that it was not sufficient to show a mere possibility of irreparable harm. It ruled that the Ninth Circuit's standard permitting injunctive relief based on a mere "possibility" of irreparable injury was "too lenient . . . plaintiffs seeking preliminary relief [must] demonstrate that irreparable injury is likely in the absence of an injunction." It further explained: [a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. 129 S.Ct. at 374. Winter concerned the end of the sliding scale where the weaker factor involves injury, not the end of the scale where the weaker factor involves the merits (but the injury is clear and the equities tip in favor of relief). Winter can, however, be construed to hold that the moving party must always show a probability of success on the merits (as well as a probability of injury). Justice Ginsburg stated in dissent, however, that "[c]onsistent with equity's character, courts do not insist that litigants uniformly show a particular, predetermined quantum of probable success or injury before awarding equitable relief. Instead, courts have evaluated claims for equitable relief on a `sliding scale,' sometimes awarding relief based on a lower likelihood of harm when the likelihood of success is very high . . . . This Court has never rejected that formulation, and I do not believe it does so today." Winter, 129 S.Ct. at 392 (Ginsburg, J. dissenting). Consistent with Justice Ginsburg, the March 2009 order herein granting Strawberry Canyon's motion for a preliminary injunction found that, although Winter rejected injunctions based on a mere possibility of irreparable injury, it did not foreclose injunctive relief where irreparable injury is imminent and manifest but where the plaintiff can only raise "serious
1

Unless otherwise noted, all internal quotations and citations are omitted from authority quoted by this order.

2

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

questions" going to the merits but not a probability of success on the merits. Several other district courts have interpreted Winter similarly.2 The March 2009 order found that plaintiff had not shown a likelihood of success on the merits but had raised serious merits questions and had shown a probability, indeed virtual certainty, of irreparable injury and that the equities tipped sharply in favor of relief. The Ninth Circuit's subsequent decision in American Trucking -- just two days after the preliminary injunction issued -- drew into question whether the March 2009 order had interpreted Winter properly. In reversing a district court decision to reject injunctive relief, American Trucking reiterated Winter's above-quoted four-part inquiry, and it stated, "[t]o the extent that our cases have suggested a lesser standard, they are no longer controlling, or even viable." American Trucking Associations, Inc. v. City of Los Angeles, 559 F.3d 1046, 1053 (9th Cir. 2009). The decision made no reference to Justice Ginsburg's viewpoint nor to preserving any aspect of the sliding-scale test. In light of American Trucking, the undersigned therefore requested supplemental briefing regarding the continued viability of the sliding-scale approach, whether a showing of probable success on the merits is always required, and whether American Trucking required this Court to vacate the preliminary injunction. To thicken the plot, a subsequent unpublished opinion (by a different panel) in the Ninth Circuit strongly suggested that the sliding-scale approach does remain viable. After quoting Winter's four-part inquiry, it explained: "[i]n addition to this traditional test, this Court has consistently applied an alternative `sliding-scale' test . . . ." Greater Yellowstone Coalition v. Timchak, 2009 WL 971474, at *1 (9th Cir. 2009). It further explained: while Winter held that it is not sufficient for a plaintiff to show a mere possibility of irreparable harm in order to prevail on his
See, e.g., Habeas Corpus Res. Ctr. v. United States Dep't of Justice, 2009 WL 185423, at *5 (N.D. Cal. 2009) (after Winter, "[w]hen the balance of harm `tips decidedly toward the plaintiff,' injunctive relief may be granted if the plaintiff raises questions `serious enough to require litigation.'"); Quinault Indian Nation v. Kempthorne, 2009 WL 734682, at *2 (W.D. Wash. 2009) (explaining that "all four factors are considered together in evaluating if a preliminary injunction is appropriate" and issuing injunctive relief based on a "tenable argument," although "not [a] compelling factor by itself," that the plaintiff would succeed on the merits due to immediate irreparable harm); Inspection Management Systems, Inc. v. Open Door Inspections, Inc., 2009 WL 805813, *3 (E.D. Cal. 2009) (utilizing Ninth Circuit's traditional test but noting that Winter now requires likely irreparable harm); Brady Campaign to Prevent Gun Violence v. Salazar, 2009 WL 763091, at *6 (D.D.C. 2009) ("[Winter] had no occasion to examine the D.C. Circuit's precedents allowing a plaintiff's strong showing in one area to compensate for weakness in another").
2

3

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

request for preliminary injunctive relief . . . Winter did not reject the sliding scale approach we employ in the alternative. [Citing Justice Ginsburg's dissent.] We find it unnecessary in this case to define the sliding-scale formulation's precise post-Winter contours. Id. at *1 n.1. This decision omitted any reference to American Trucking. The undersigned recognizes that unpublished opinions have no precedential effect, but they help inform district judges as to the current thinking in the Ninth Circuit. It would be most unfortunate if the Supreme Court or the Ninth Circuit had eliminated the longstanding discretion of a district judge to preserve the status quo with provisional relief until the merits could be sorted out in cases where clear irreparable injury would otherwise result and at least "serious questions" going to the merits are raised. One clear-cut example that regularly arises is when a homeowner seeks injunctive relief from an imminent foreclosure. Irreparable injury is manifest and the balance of equities is manifest, but the homeowner plaintiff is often unable in such circumstances to demonstrate a probability of success on the merits without the benefit of discovery and some further investigation, although "serious questions" on the merits are evident. Can it possibly be that the Supreme Court and Ninth Circuit have taken away the ability of district judges to preserve the status quo pending at least some discovery and further hearing on the merits in such cases? This would be such a dramatic reversal in the law that it should be very clearly indicated by appellate courts before a district court concludes that it has no such power. In light of the lack of any clear statement foreclosing this traditional equitable power, given Justice Ginsburg's viewpoint that Winter did not foreclose the traditional sliding-scale approach, and given the discussion in Yellowstone suggesting that the sliding-scale approach remains valid in the Ninth Circuit, this order concludes that the preliminary injunction herein will remain in place and was properly within the authority of the district court.

IT IS SO ORDERED. Dated: April 22, 2009.

WILLIAM ALSUP UNITED STATES DISTRICT JUDGE
4