Jane Does 1-10 v. David Daleiden

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 11, 2021
• Docket: 20-35657
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 11 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JANE DOES 1-10, individually and on No. 20-35657 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,

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

Submitted May 27, 2021**

* 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 reinstatement of a

preliminary injunction under Washington’s Public Records Act (“PRA”), Wash.

Rev. Code ch. 42.56, this time only as to Doe plaintiffs 1, 2, and 6. Because the

parties are familiar with the facts, we do not repeat them here. We have

jurisdiction to review the district court’s reinstatement of the preliminary

injunction under 28 U.S.C. § 1292(a)(1), and we affirm.

We review the district court’s grant of a preliminary injunction for abuse of

discretion. Doe v. Reed, 586 F.3d 671, 676 (9th Cir. 2009), aff’d 561 U.S. 186

(2010). A district court abuses its discretion “if it bases its decision on an

erroneous legal standard or clearly erroneous findings of fact.” Id.

“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.” Winter v. Nat. Res. Def. Council, Inc., 555

U.S. 7, 20 (2008). Since we previously concluded that “the balance of hardships

tips precipitously in the favor of the Doe plaintiffs,” Does 1-10 v. Univ. of Wash.,

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 798 F. App’x 1009, 1010 (9th Cir. 2020), they may also satisfy the first Winter

factor if they can “show that there are serious questions going to the merits—a

lesser showing than likelihood of success on the merits,” Shell Offshore, Inc. v.

Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (internal quotation marks

omitted).

The parties dispute only the first Winter factor, namely whether Does 1, 2,

and 6 have shown they are likely to succeed on the merits—or that there are

serious questions going to the merits—of their claims that the First Amendment

requires redaction of their personally identifying information under the PRA.

The district court’s determination with respect to the first Winter factor was

based on its factual finding that there was a “particularized, personal link” between

Does 1, 2, and 6 and their claimed First Amendment protected activities. That

finding was not “illogical, implausible, or without support in inferences that may

be drawn from the record.” United States v. Hinkson, 585 F.3d 1247, 1263 (9th

Cir. 2009) (en banc). Accordingly, we affirm the district court’s reinstatement of

the preliminary injunction with respect to these Does.

We are not persuaded by Daleiden’s other arguments. Reinstatement of the

preliminary injunction as to Does 1, 2, and 6 did not violate the rule of the mandate

or the law of the case, and the Doe plaintiffs’ motion to reinstate the preliminary

injunction was not a successive motion. Contrary to Daleiden’s contention, they

3 have sought but one preliminary injunction and continue to litigate the scope of

that injunction on account of Daleiden’s successive interlocutory appeals. Finally,

Daleiden waived his argument that reinstatement of the preliminary injunction as

to absent class members misapplied the First Amendment and violated the law of

the case—an argument that, at bottom, challenges the district court’s class

certification order—either by failing to raise it below or, if he did raise it below, by

failing to appeal the district court’s refusal to consider the issue of decertification.

AFFIRMED.1

1 We deny Daleiden’s request for reassignment to a different district judge.