Jane Does 1-10 v. David Daleiden

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 25 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JANE DOES 1-10, individually and on No. 18-35003 behalf of others similarly situated; JOHN DOES 1-10, individually and on behalf of D.C. No. 2:16-cv-01212-JLR others similarly situated,

Plaintiffs-Appellees, MEMORANDUM*

v.

UNIVERSITY OF WASHINGTON, a Washington public corporation; PERRY TAPPER, Public Records Compliance Officer at the University of Washington, in his official capacity,

Defendants-Appellees,

v.

DAVID DALEIDEN, an individual,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding

Argued and Submitted December 10, 2018 Submission Withdrawn April 11, 2019 Resubmitted March 24, 2020

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. San Francisco, California

Before: TASHIMA, McKEOWN, and NGUYEN, Circuit Judges.

David Daleiden again appeals the district court’s grant of a preliminary

injunction arising from Daleiden’s request of public records from the University of

Washington under Washington's Public Records Act (“PRA”). A group of

individuals referred to as the “Doe plaintiffs” challenged the release of documents.

This matter is before us a second time. We remanded the case to the district court

to reconsider the scope of its injunction. On reconsideration, the court issued a

preliminary injunction that prohibits the University from disclosing “all personally

identifying information or information from which a person's identity could be

derived with reasonable certainty.” We stayed Daleiden’s second appeal pending a

decision from the Washington Supreme Court related to the PRA. As it turns out,

that decision—issued in late 2019—did not resolve the key disclosure issue here.

Recognizing that the preliminary injunction hinges on the Doe plaintiffs’ First

Amendment rights, we affirm in part, reverse in part, and vacate in part.

We review the grant of a preliminary injunction for abuse of discretion and

remand if the district court’s decision is “based on either an erroneous legal

standard or clearly erroneous factual findings.” Negrete v. Allianz Life Ins. Co. of

N. Am., 523 F.3d 1091, 1096 (9th Cir. 2008).

“A plaintiff seeking a preliminary injunction must establish that he is likely

2 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.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S.

7, 20 (2008). In the Ninth Circuit, “‘if a plaintiff can only show that there are

serious questions going to the merits—a lesser showing than likelihood of success

on the merits—then a preliminary injunction may still issue if the balance of

hardships tips sharply in the plaintiff’s favor, and the other two Winter factors are

satisfied.’” Feldman v. Ariz, Sec’y of State’s Office, 843 F.3d 366, 375 (9th Cir.

2016) (quoting Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1282, 1291 (9th

Cir. 2013)) (internal marks omitted).

Because we agree with the district court that the balance of hardships tips

precipitously in the favor of the Doe plaintiffs, we consider whether there is a

serious question that goes to the merits. To prevail on their First Amendment

claim, the Doe plaintiffs must show that particular individuals or groups of

individuals were engaged in activity protected by the First Amendment and “‘a

reasonable probability that the compelled disclosure of personal information will

subject’” those individuals or groups of individuals “‘to threats, harassment, or

reprisals’” that would have a chilling effect on that activity. See John Doe No. 1 v.

Reed, 561 U.S. 186, 200 (2010) (quoting Buckley v. Valeo, 424 U.S. 1, 74 (1976))

(alterations omitted).

3 The district court did not err in concluding that Does 3, 4, and 5 were

engaged in activity protected by the First Amendment, as they each took part in or

were associated with advocacy for reproductive rights. See NAACP v. Alabama ex

rel. Patterson, 357 U.S. 449, 462 (1958). And, without taking a position as to the

ultimate merits, see Sports Form, Inc. v. United Press Int’l, Inc., 686 F.2d 750, 753

(9th Cir. 1982), the district court did not err in concluding that whether the

research activities of Does 7 and 8 constituted First Amendment protected activity

posed a serious question that goes to the heart of their claims. See, e.g., Regents of

Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978). However, the district court

clearly erred in determining that Does 1, 2, and 6 were engaged in activity

protected by the First Amendment. In making its findings, the court relied solely

on the exceedingly thin and generalized declarations of these Doe plaintiffs, which

fail to allege a particularized, personal link between the declarant and a claimed

protected activity. We reverse and vacate the preliminary injunction with respect to

Does 1, 2, and 6 and affirm in all other respects.

AFFIRMED in part, REVERSED in part, and VACATED in part. Each

party shall bear its own costs on appeal.