Margie R. Dickinson, Plaintiff-appellee, v. Blue Cross of California, Defendant-appellant, 117 F.3d 1424 (9th Cir. 1997)

MEMORANDUM^* 

The preliminary injunction prohibited Blue Cross "from denying, refusing, excluding, limiting, or discontinuing coverage and benefits for performance of high-dose chemotherapy with autologous bone marrow rescue/peripheral stem cell reinfusion." This language clearly applied not only to the first administration of HDCT-PSCT, in which bone marrow was removed or rescued, but also to the second "tandem" administration of HDCT-PSCT, in which high doses of chemotherapy were given and bone marrow was replaced or reinfused.

A motion to modify a preliminary injunction "is not a substitute for a direct appeal...." Charles A. Wright et al., Federal Practice and Procedure § 2961, at 394 (2d ed.1995). "The injunction, whether right or wrong, is not subject to impeachment in its application to the conditions that existed at its making. We are not at liberty to reverse in the guise of readjusting." United States v. Swift & Co., 286 U.S. 106, 119 (1932); see also Favia v. Indiana Univ. of Pennsylvania, 7 F.3d 332, 337 (3rd Cir. 1993) ("Modification of an injunction is proper only when there has been a change of circumstances between entry of the injunction and the filing of the motion that would render the continuance of the injunction in its original form inequitable.").

The only alleged change in circumstance between the issuance of the preliminary injunction and the filing of the motion to modify the injunction was Dickinson's death. The district court properly accounted for this change by dissolving the injunction. It did not err by refusing to alter the terms of the injunction, which included Blue Cross' obligation to pay for HDCT-PSCT treatment and explicitly excluded a security requirement. To challenge those terms, Blue Cross should have appealed the district court's first order.

AFFIRMED.