Roe v. Anderson, No. 97-16326

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: FLETCHER
• Citation: 134 F.3d 1400
• Parties: , 98 Cal. Daily Op. Serv. 708, 98 Daily Journal D.A.R. 981 Brenda ROE and Anna Doe, on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. Eloise ANDERSON, Director of the California Department of Social Services; California Department of Social Services; Pete Wilson, Governor of the State of California; Craig Brown, Director of the California Department of Finance, Defendants-Appellants.
• Docket Number: No. 97-16326
• Decision Date: 28 January 1998

Page 1400

134 F.3d 1400 67 USLW 3682, 98 Cal. Daily Op. Serv. 708,
98 Daily Journal D.A.R. 981 Brenda ROE and Anna Doe, on behalf of themselves and all
others similarly situated, Plaintiffs-Appellees,
v.
Eloise ANDERSON, Director of the California Department of
Social Services; California Department of Social Services;
Pete Wilson, Governor of the State of California; Craig
Brown, Director of the California Department of Finance,
Defendants-Appellants. No. 97-16326. United States Court of Appeals,
Ninth Circuit. Argued and Submitted Dec. 11, 1997.
Decided Jan. 28, 1998.

Page 1401

Theodore Garelis, Deputy Attorney General, Sacramento, California, for defendants-appellants.

Mark Rosenbaum and David Schwartz, ACLU of Southern California, Martha Davis, NOW Legal Defense & Education Fund, Clare Pastore, Western Center on Law & Poverty, Inc., for plaintiffs-appellees.

Appeal from the United States District Court for the Eastern District of California; Honorable David F. Levi, District Judge, Presiding. D.C. No. CIV-S-97-0559 DFL/JFM.

Before: FLETCHER and T.G. NELSON, Circuit Judges, and WHALEY, ^* District Judge.

FLETCHER, Circuit Judge:

The State of California appeals the grant of a preliminary injunction to Brenda Roe, Anna Doe, and a certified class of all others similarly situated, who brought an equal protection claim under 42 U.S.C. § 1983 to prevent California from implementing Welfare and Institutions Code § 11450.03. That statute limits benefits to new residents in California for their first year of residency to the amount that they received under the Aid to Families with Dependent Children (AFDC) program in their state of prior residence. We affirm.

I.

We review on appeal the grant of a preliminary injunction. We have repeatedly instructed that

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to obtain a preliminary injunction, the moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips in its favor. These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases.

United States v. Nutri-cology, Inc., 982 F.2d 394, 397 (9th Cir.1992) (citations and internal quotation marks omitted). The grant of a preliminary injunction is reviewed for abuse of discretion, ¹ and that discretion is abused where the district court "based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence." Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2461, 110 L.Ed.2d 359 (1990).

Thus, we review only the district court's consideration of the likelihood of success on the merits at one end of the scale, and the possibility of irreparable harm at the other end of the scale. We do not decide the merits. See L.A. Mem'l Coliseum Comm'n v. National Football League, 634 F.2d 1197, 1198 (9th Cir.1980) (declining to reach the merits on review of the grant of preliminary injunction although "strenuously urged by the parties").

A.

While neither party suggests that the district court applied the wrong preliminary injunction standard, California argues on appeal that the district court misapprehended the law with respect to the underlying issues of equal protection and the fundamental right to travel. As a result, California argues that the district court erred in its determination of plaintiffs' probability of success on the merits.

1.

Section 11450.03 of the California Welfare and Institutions Code, enacted in 1992, provides that "families that have resided in this state for less than 12 months" and who qualify for welfare shall receive benefits no greater than the "maximum aid payment that would have been received by that family from the state of prior residence." ² Under

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this provision, new California residents from lower-benefits states would receive that lower level of benefits throughout the first year of their residency in California.

California first sought to implement this durational residency requirement in 1992, pursuant to the grant of relevant waivers by the Secretary of Health and Human Services. However, the district court judge, the same judge that presided in the instant case, granted a preliminary injunction at that time against implementation of § 11450.03 after determining that the distinction among California residents based on the duration of their residency was unconstitutional. The district court relied on a line of Supreme Court cases addressing durational residency provisions in a variety of contexts. See Green v. Anderson, 811 F.Supp. 516, 518-23 (E.D.Cal.1993), aff'd, 26 F.3d 95 (9th Cir.1994), vacated as unripe, 513 U.S. 557, 115 S.Ct. 1059, 130 L.Ed.2d 1050 (1995). ³

Brenda Roe and Anna Doe, different plaintiffs than those in Green v. Anderson, commenced the instant action on April 1, 1997, each having recently moved to California seeking employment and being eligible for assistance. They argued that, due to the higher cost of living in California, the relatively lower level of assistance established by § 11450.03 threatened them with imminent deprivation of the basic necessities of life. That same day, the district court entered a temporary restraining order enjoining implementation of § 11450.03, pending a hearing on plaintiffs' request for a preliminary injunction, and granting plaintiffs' motion to proceed under fictitious names. On April 23, 1997, on the stipulation of the parties, the district court permitted the instant action to be maintained as a class action. ⁴

Finding that the plaintiffs demonstrated the possibility of irreparable harm and that California would not be unduly harmed, the district court on June 4, 1997, granted the preliminary injunction, citing its prior reasoning in Green v. Anderson regarding the probability of success on the merits. Roe v. Anderson, 966 F.Supp. 977 (E.D.Cal.1997).

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2.

In granting the preliminary injunction in the instant case, the district court adopted by reference its prior discussion in Green v. Anderson of the Supreme Court's cases regarding the right of migration and equal protection, in which the Court set aside as unconstitutional distinctions drawn among residents of a state-all of whom are bona fide residents-based on the incipiency or duration of their residency.

California challenges the district court's reliance on its earlier decision in Green. Although the decision in Green was summarily affirmed by this court, see 26 F.3d 95, 96 (9th Cir.1994), that judgment is not binding precedent because the Supreme Court ultimately vacated it as unripe. See Anderson v. Green, 513 U.S. 557, 559-60, 115 S.Ct. 1059, 1060-61, 130 L.Ed.2d 1050 (1995). California further...