BCFS-Health and Human Services v. Wagner et al, No. 2:2010cv02989 - Document 9 (E.D. Cal. 2010)
Court Description: ORDER granting Plaintiff's Motion for Temporary Restraining Order 5 . Signed by Judge Morrison C. England, Jr. on 11/9/2010. (Deutsch, S)
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BCFS-Health and Human Services v. Wagner et al Doc. 9 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 BCFS-HEALTH AND HUMAN SERVICES, a non-profit organization 13 14 15 16 17 18 19 No. 2:10-cv-02989-MCE-DAD Plaintiff, TEMPORARY RESTRAINING ORDER v. JOHN A. WAGNER, in his Official Capacity as Director of the California Department of Social Services; MICHELE M. WONG in her Official Capacity as the Regional Manager for the Northern California Residential Program for the California Department of Social Services, 20 Defendants. 21 22 ----oo0oo---- 23 The above matter came before the Court upon Plaintiff’s 24 Ex Parte Application, filed November 8, 2010, for entry of a 25 Temporary Restraining Order and Order to Show Cause why a 26 Preliminary Injunction should not be issued. 27 review of the papers submitted on behalf of Plaintiff, the Court 28 conducted a hearing at 11:00 a.m. on November 9, 2010. Following its 1 Dockets.Justia.com 1 Melissa A. Jones and Marc Koenigsberg appeared on behalf of 2 Plaintiff; Defendants were represented by Julie Weng-Gutierrez 3 and Niromi Pfeiffer. 4 The purpose of a temporary restraining order is to preserve 5 the status quo pending the complete briefing and thorough 6 consideration contemplated by full proceedings pursuant to a 7 preliminary injunction. 8 (E.D. Cal. 2010) (“A temporary restraining order is designed to 9 preserve the status quo until there is an opportunity to hold a 10 See Dunn v. Cate, 2010 WL 1558562 at *1 hearing on the application for a preliminary injunction”). 11 Issuance of a temporary restraining order, as a form of 12 preliminary injunctive relief, is an extraordinary remedy, and 13 plaintiffs have the burden of proving the propriety of such a 14 remedy by clear and convincing evidence. 15 Armstrong, 520 U.S. 968, 972 (1997); Granny Goose Foods, Inc. v. 16 Teamsters, 415 U.S. 423, 442 (1974). 17 required for a temporary restraining order and a preliminary 18 injunction are the same. 19 D. Brush & Co., Inc., 240 F.3d 832, 839 (9th Cir. 2001). 20 See Mazurek v. In general, the showing Stuhlbarg Int’l Sales Co., Inc. v. John As recognized by the Supreme Court in Winter v. Natural 21 Resources Defense Council, 129 S. Ct. 365 (2008), the party 22 requesting preliminary injunctive relief must show that “he is 23 likely to succeed on the merits, that he is likely to suffer 24 irreparable harm in the absence of preliminary relief, that the 25 balance of equities tips in his favor, and that an injunction is 26 in the public interest.” 27 1109, 1127 (9th Cir. 2009) (quoting Winter, 129 S. Ct. at 374. 28 /// Stormans, Inc. v. Selecky, 586 F.3d 2 1 Alternatively, under the so-called sliding scale approach, 2 as long as the plaintiffs demonstrate the requisite likelihood of 3 irreparable harm and show that an injunction is in the public 4 interest, a preliminary injunction can still issue so long as 5 serious questions going to the merits are raised and the balance 6 of hardships tips sharply in Plaintiffs’ favor. 7 Wild Rockies v. Cottrell, 2010 WL 3665149 at *4-8 (9th Cir. 8 Sept. 22, 2010) (finding that sliding scale test for issuance of 9 preliminary injunctive relief remains viable after Winter). 10 Alliance for The propriety of a temporary restraining order, in 11 particular, hinges on a significant threat of irreparable injury 12 (Simula, Inc. Autoliv, Inc., 175 F.3d 716, 725 (9th Cir. 1999)) 13 that must be imminent in nature. 14 Baldridge, 844 F.2d 668, 674 (9th Cir. 1988). 15 Caribbean Marine Serv. Co. v. Having considered the documents presented, and after hearing 16 arguments of counsel, the Court finds that Plaintiff has 17 demonstrated a significant threat of irreparable injury. 18 the children housed in Plaintiff’s Fairfield, California facility 19 may be harmed if they are transferred to alternative 20 accommodations in Washington or Illinois– a process that could 21 severely impact both their educational interests and 22 psychological well-being. 23 the children’s pending immigration proceedings and reunification 24 efforts, all of which could literally have to begin anew if they 25 are transferred to distant states. 26 /// 27 /// 28 /// First, Moreover, such transfer could derail 3 1 Secondly, with respect to Plaintiff’s own financial losses 2 stemming from closure of the subject facility, such losses are 3 likely uncompensable, should closure proceed as dictated by 4 Defendants, given the protections afforded by sovereign immunity 5 under the Eleventh Amendment. 6 The Court further believes that the other factors which must 7 be scrutinized in assessing the availability of preliminary 8 injunctive relief also weigh in favor of granting a temporary 9 restraining order at this juncture. Given what appears, at least 10 on the basis of Plaintiff’s papers, to be valid preemption 11 concerns stemming from a clear conflict between federal and state 12 regulations applicable to the subject facility, the Court 13 believes that the requisite likelihood of success has been 14 demonstrated. 15 squarely in Plaintiff’s favor given the imminent transfer of the 16 children being housed to distant states should such transfer 17 occur by November 10, 2010 as Plaintiff alleges, along with the 18 impact on the children should such transfer occur as discussed 19 above. 20 preserving the status quo until the matter can be fully briefed 21 and argued by way of preliminary injunction. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// In addition, the balance of hardships tips Finally, the public interest would appear to be served by 4 1 Plaintiff’s Ex Parte Application for Temporary Restraining 2 Order (ECF No. 5) is consequently GRANTED. 3 It is hereby ordered as follows: 4 1. A Temporary Restraining Order shall be issued 5 immediately. 6 all persons acting on their behalf, and all of them 7 (“Defendants”) are hereby enjoined and restrained, directly or 8 indirectly, whether acting alone or in concert with others, from 9 taking any action to shut down the Fairfield, California facility Defendants, their officers, representatives, and 10 at issue in this litigation. 11 maintained and Plaintiff shall be permitted to continue to 12 lawfully operate said facility pending the Court’s decision on 13 Plaintiff’s request for a preliminary injunction. 14 2. The status quo shall thereby be This Order shall remain in full force and effect for a 15 period not to exceed fourteen (14) days, absent an order from the 16 Court otherwise. 17 preliminary injunction is scheduled for November 19, 2010 at 18 10:00 a.m. 19 relief in that regard shall be filed by Defendants not later than 20 November 12, 2010. 21 November 16, 2010. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// A hearing on Plaintiff’s request for a Opposition to Plaintiff’s request for injunctive Plaintiff’s reply, if any, is due on 5 1 3. No bond will be required because the Court finds, under 2 the circumstances present, no likelihood of harm to Defendants 3 from implementation of this Order. 4 IT IS SO ORDERED. 5 Dated this 9th day of November, 2010, at 2:00 p.m. in 6 7 Sacramento, California. Dated: November 9, 2010 8 9 10 _____________________________ MORRISON C. ENGLAND, JR. UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6
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