Planned Parenthood Ass'n of Utah v. Herbert
839 F.3d 1301
| 10th Cir. | 2016Background
- After a panel opinion and judgment issued on July 12, 2016 in Planned Parenthood Ass’n of Utah v. Herbert, no party filed a timely petition for rehearing en banc; the mandate issued August 8, 2016.
- A judge of the Tenth Circuit called a sua sponte en banc poll on August 1, 2016; the poll failed 6–4 with two recusals.
- The district court had denied a preliminary injunction to PPAU, finding the Governor did not retaliate and that PPAU was unlikely to succeed on its unconstitutional-conditions claim.
- The panel reversed as to the unconstitutional-conditions claim, concluding PPAU had shown a likelihood of success based in part on admissions contained in the Governor’s opposition brief to the preliminary-injunction motion.
- Concurring judges (Briscoe, Bacharach) agreed with denying en banc rehearing but differed about aspects of standard-of-review and the merits; Gorsuch (joined by three others) dissented from the denial of rehearing en banc, arguing the panel misapplied the abuse-of-discretion standard, relaxed PPAU’s burden, and relied on an unsupported reading of the Governor’s brief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether sua sponte en banc rehearing was procedurally appropriate | Parties had not sought en banc review; no need for sua sponte action | Court may call sua sponte en banc poll; long-established practice | Court denied rehearing en banc; several judges criticized sua sponte timing but acknowledged its availability |
| Standard of review for district court’s likelihood-of-success factual finding on preliminary injunction | Panel treated district court’s determination as a legal issue subject to de novo review | District court’s factual determination should be reviewed for abuse of discretion / clearly erroneous | Panel applied de novo review to what it characterized as a legal determination; dissent argues abuse-of-discretion should apply |
| Whether district court made required factual findings about Governor’s motive under Fed. R. Civ. P. 52(a)(2) | PPAU contends record supports finding of retaliatory motive sufficient for preliminary relief | Governor/State argued district court found no retaliation and explained reasons; panel read the district court as making a legal, not factual, determination | Panel concluded district court did not make an explicit factual finding and reviewed the issue de novo; concurring/dissenting judges dispute that conclusion |
| Reliance on Governor’s brief admissions as dispositive evidence | PPAU relied on those admissions (and other record evidence) to show pretext | Governor contends his brief merely accepted the complaint’s description of his response to the videos for opposition-brief purposes; no broad admission of guilt | Panel treated certain statements in the Governor’s brief as admissions that undercut reliance on the videos; dissent says panel misread the brief and improperly advanced an argument not pressed by parties |
Key Cases Cited
- Petrella v. Brownback, 787 F.3d 1242 (10th Cir.) (preliminary injunction is discretionary; movant must show right to relief clearly and unequivocally)
- Verio v. Martinez, 820 F.3d 1113 (10th Cir.) (discusses standard for reviewing likelihood-of-success in preliminary-injunction context)
- Heideman v. Salt Lake City, 348 F.3d 1182 (10th Cir.) (district-court factual findings set aside only if no support or plainly implausible)
- Anderson v. Bessemer City, 470 U.S. 564 (U.S.) (deference to trial-court findings even when documentary evidence at issue)
- Winter v. Natural Resources Defense Council, 555 U.S. 7 (U.S.) (clarified standard for preliminary injunctions; raised burden on movant)
- Trujillo v. PacifiCorp, 524 F.3d 1149 (10th Cir.) (causation proof pointing to remote or speculative causes insufficient)