Appeal from the United States District Courtfor the Eastern District of CaliforniaHonorable David F. Levi, District Judge, PresidingArgued and SubmittedDecember 11, 1997--San Francisco, CaliforniaFiled January 28, 1998Before: Betty B. Fletcher and Thomas G. Nelson,Circuit Judges, and Robert H. Whaley,* District Judge.Opinion by Judge FletcherSUMMARY
______________________COUNSEL Theodore Garelis, Assistant Attorney General, Sacramento,California, for the defendants-appellants.Mark Rosenbaum, ACLU of Southern California, for theplaintiffs-appellees.
_____________________________OPINION FLETCHER, Circuit Judge:The State of California appeals the grant of a preliminaryinjunction to Brenda Roe, Anna Doe, and a certified class ofall others similarly situated, who brought an equal protectionclaim under 42 U.S.C. S 1983 to prevent California fromimplementing Welfare and Institutions Code S 11450.03. Thatstatute limits benefits to new residents in California for theirfirst year of residency to the amount that they received underthe Aid to Families with Dependent Children (AFDC) pro-gram in their state of prior residence. We affirm.I.We review on appeal the grant of a preliminary injunction.We have repeatedly instructed that to obtain a preliminary injunction, the moving party must show either (1) a combination of probable suc- cess 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 for- mulations 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 (9thCir. 1992) (citations and internal quotation marks omitted).The grant of a preliminary injunction is reviewed for abuse ofdiscretion,1 and that discretion is abused where the districtcourt "based its ruling on an erroneous view of the law or ona clearly erroneous assessment of the evidence." Cooter &Gell v. Hartmarx Corp.,
496 U.S. 384, 405
(1990).Thus, we review only the district court's consideration ofthe likelihood of success on the merits at one end of the scale,and the possibility of irreparable harm at the other end of thescale. We do not decide the merits. See L.A. Mem'l ColiseumComm'n v. National Football League, 634 F.2d 1197, 1198(9th Cir. 1980) (declining to reach the merits on review of thegrant of preliminary injunction although "strenuously urgedby the parties").A.While neither party suggests that the district court appliedthe wrong preliminary injunction standard, California argueson appeal that the district court misapprehended the law withrespect to the underlying issues of equal protection and thefundamental right to travel. As a result, California argues thatthe district court erred in its determination of plaintiffs' prob-ability of success on the merits.1.Section 11450.03 of the California Welfare and InstitutionsCode, enacted in 1992, provides that "families that haveresided in this state for less than 12 months" and who qualifyfor welfare shall receive benefits no greater than the"maximum aid payment that would have been received bythat family from the state of prior residence." 2 Under this pro-vision, new California residents from lower-benefits stateswould receive that lower level of benefits throughout the firstyear of their residency in California.California first sought to implement this durational resi-dency requirement in 1992, pursuant to the grant of relevantwaivers by the Secretary of Health and Human Services.However, the district court judge, the same judge that pre-sided in the instant case, granted a preliminary injunction atthat time against implementation of S 11450.03 after deter-mining that the distinction among California residents basedon the duration of their residency was unconstitutional. Thedistrict court relied on a line of Supreme Court cases address-ing 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
(1995).3Brenda Roe and Anna Doe, different plaintiffs than thosein Green v. Anderson, commenced the instant action on April1, 1997, each having recently moved to California seekingemployment and being eligible for assistance. They arguedthat, due to the higher cost of living in California, the rela-tively lower level of assistance established byS 11450.03threatened them with imminent deprivation of the basic neces-sities of life. That same day, the district court entered a tem-porary restraining order enjoining implementation ofS 11450.03, pending a hearing on plaintiffs' request for a pre-liminary injunction, and granting plaintiffs' motion to proceedunder fictitious names. On April 23, 1997, on the stipulationof the parties, the district court permitted the instant action tobe maintained as a class action.4Finding that the plaintiffs demonstrated the possibility ofirreparable harm and that California would not be undulyharmed, the district court on June 4, 1997, granted the prelim-inary injunction, citing its prior reasoning in Green v. Ander-son regarding the probability of success on the merits. Roe v.Anderson, 966 F. Supp. 977 (E.D. Cal. 1997).2.In granting the preliminary injunction in the instant case,the district court adopted by reference its prior discussion inGreen v. Anderson of the Supreme Court's cases regardingthe right of migration and equal protection, in which the Courtset aside as unconstitutional distinctions drawn among resi-dents of a state--all of whom are bona fide residents--basedon the incipiency or duration of their residency.[1] California challenges the district court's reliance on itsearlier decision in Green. Although the decision in Green wassummarily affirmed by this court, see 26 F.3d 95, 96 (9th Cir.1994), that judgment is not binding precedent because theSupreme Court ultimately vacated it as unripe. See Andersonv. Green,
513 U.S. 557, 559
-60 (1995). California further sug-gests that the analysis in Green is outdated because of thesubsequent enactment of the Personal Responsibility andWork Opportunity Reconciliation Act of 1996 ("PRWORA"),42 U.S.C. SS 601 et seq., which authorizes durational resi-dency requirements as part of a broad-based federal legisla-tive welfare reform effort.[2] However, our prior affirmance of the district court'sdecision in Green remains viable as persuasive authority, not-withstanding the Supreme Court's vacatur. See In re Taffi, 68F.3d 306, 310 (9th Cir. 1995) (following as persuasive author-ity a decision vacated by the Supreme Court on othergrounds); Orhorhaghe v. INS, 38 F.3d 488, 493 n.4 (9th Cir.1994) (following as persuasive authority a decision vacatedby the Supreme Court as moot). Moreover, the passage of thePRWORA does not affect the constitutional analysis ofS 11450.03 because, as the Supreme Court has explained,"Congress may not authorize the States to violate the EqualProtection Clause." Shapiro v. Thompson,
394 U.S. 618
, 641(1969).3.In finding that Roe and Doe had demonstrated a probabilityof success on the merits, the district court determined that theapparent purpose of S 11450.03 was to deter migration ofpoor people to California. The district court noted in Greenthat California's "two-tier system" for AFDC benefits impli-cates the constitutional right to freedom of travel or migration,5which " `protects not only physical movement, and forbidsdirect restraints on interstate migration, but also protects resi-dents of a State from being disadvantaged, or from beingtreated differently, simply because of the timing of theirmigration, from other similarly situated residents.' " Green,811 F. Supp. at 518 (quoting Attorney Gen. of N.Y. v. Soto-Lopez,
476 U.S. 898, 905
(1986)). At oral argument beforethis court, in response to the suggestion that the purpose ofS 11450.03 is to keep poor people out of the state, the stateconceded that it does not want people to move to California"with a mind-set of economic dependency."[3] We are thus satisfied, based upon the persuasive author-ity of our prior affirmance in Green v. Anderson and theapparent purpose of S 11450.03, that the district court did noterr in its determination that Roe and Doe demonstrated aprobability of success on the merits.B.[4] "Numerous cases have held that reductions in AFDCbenefits, even reductions of a relatively small magnitude,impose irreparable harm on recipient families." Beno v. Sha-lala, 30 F.3d 1057, 1063-64 n.10 (9th Cir. 1994) (string cite).The district court specifically found that the two "named"plaintiffs demonstrated that they faced the possibility of irrep-arable harm if the injunction were not issued because theyboth "have been unable to locate housing in California thatthey could afford on the reduced grant. Others within the classmay face lower benefit levels depending on the state of priorresidence." 966 F. Supp. at 985.Nevertheless, California argues that, because the AFDCgrant for new California residents "remains the same as it wasin their state of prior residence . . . they suffer no harm cogni-zable by this Court." As such, California suggests that theproper comparison is between the "position of newcomersbefore and after travel to California," rather than between"recent arrivals" and "longer-term California residents."[5] However, as noted by the district court, in case aftercase the Supreme Court has determined that the appropriatecomparison is between the treatment of recent residents ofCalifornia and other residents of California and not a compar-ison of recent residents of California to residents of otherstates. See Attorney Gen. of N.Y. v. Soto-Lopez,
476 U.S. 898
,904 (1986) (holding that the State may not treat new residentsdifferently, "because of the timing of their migration, fromother similarly situated residents"); Hooper v. BernalilloCounty Assessor,
472 U.S. 612, 623
(1985) ("The State maynot favor established residents over new residents."); Zobel v.Williams,
457 U.S. 55, 58
-59 (1982) (comparing positions ofnew and older Alaska residents in receiving a bounty from oilrevenues). The district court did not err in finding that plain-tiffs faced the possibility of irreparable harm. California doesnot argue on appeal that it would be unduly harmed by thepreliminary injunction.II.[6] Balancing the probability of success on the merits withthe possibility of irreparable harm, we hold that the districtcourt did not abuse its discretion in granting the preliminaryinjunction. Our prior affirmance in Green remains persuasiveas to the probability of success on the merits, and as to thepossibility that irreparable harm falls on the class Roe andDoe represent, but not on California.[7] An appeal from the grant or denial of a permanent,rather than preliminary, injunction would entitle the parties toa full review on the merits. We reject California's invitationto engage in such a review of this case in its current posture,before the district court has had a chance to address the under-lying merits upon a fully developed record.AFFIRMED.
___________________________FOOTNOTES *Honorable Robert H. Whaley, United States District Judge for theEastern District of Washington, sitting by designation.1 A district court's order regarding preliminary injunctive relief is sub-ject only to "limited review." The grant or denial of a preliminary injunc-tion will be reversed "only where the district court abused its discretionor based its decision on an erroneous legal standard or on clearly errone-ous findings of fact." Does 1-5 v. Chandler, 83 F.3d 1150, 1152 (9th Cir.1996) (citing Miller v. California Pac. Med. Ctr., 19 F.3d 449, 455 (9thCir. 1994) (en banc)).Although we have previously suggested that issues of law underlyingthe district court's decision on the preliminary injunction are reviewed denovo, Metro Publ'g, Ltd. v. San Jose Mercury News, 987 F.2d 637, 640(9th Cir. 1993), the Supreme Court has expressly rejected any multi-tieredstandard of review for abuse of discretion. See Cooter & Gell v. HartmarxCorp.,
496 U.S. 384, 405
(1990) (Rule 11). "Rather, an appellate courtshould apply an abuse-of-discretion standard in reviewing all aspects of adistrict court's Rule 11 determination. A district court would necessarilyabuse its discretion if it based its ruling on an erroneous view of the lawor on a clearly erroneous assessment of the evidence." Id.This single-tier formulation of the abuse of discretion standard ofreview has been subsequently adopted in numerous other contexts. See,e.g., Koon v. United States, 116 S. Ct. 2035, 2047-48 (1996) (sentencingguidelines); Schlup v. Delo,
513 U.S. 298, 333
(1995) (fundamental mis-carriage of justice exception in capital habeas) (O'Connor, J., concurring);United States v. Morales, 108 F.3d 1031, 1035 (9th Cir. 1997) (expert tes-timony); Osorio v. INS, 99 F.3d 928, 932 (9th Cir. 1996) (grant of asy-lum); Flores v. Shalala, 49 F.3d 562, 567 (9th Cir. 1995) (attorney's fees);Stock West Corp. v. Taylor, 964 F.2d 912, 918 (9th Cir. 1992) (comity andabstention in determining tribal court jurisdiction).2 Section 11450.03 states in full: (a) Notwithstanding the maximum aid payments specified in paragraph (1) of subdivision (a) of Section 11450, families that have resided in this state for less than 12 months shall be paid an amount calculated in accordance with paragraph (1) of subdivi- sion (a) of Section 11450, not to exceed the maximum aid pay- ment that would have been received by that family from the state of prior residence. (b) This section shall not become operative until the date of approval by the United States Secretary of Health and Human Services necessary to implement the provisions of this section so as to ensure the continued compliance of the state plan for the following: (1) Title IV of the federal Social Security Act (Subchapter 4 (commencing with Section 601) of Chapter 7 of Title 42 of the United States Code). (2) Title IX of the federal Social Security Act (Subchapter 19 (commencing with Section 1396) of Chapter 7 of Title 42 of the United States Code). (added by Stats. 1992, c. 722 (S.B. 485), S 37.5, eff. Sept. 15, 1992).3 The Supreme Court, after granting certiorari, vacated as unripe the dis-trict court's decision (summarily affirmed by this court) granting the pre-liminary injunction against implementation of S 11450.03 due tointervening litigation that struck the necessary grant of waivers from theSecretary of Health and Human Services. See Beno v. Shalala, 30 F.3d1057, 1076 (9th Cir. 1994). Because S 11450.03, by its own terms, was nolonger applicable, the Supreme Court determined that"[t]he parties haveno live dispute now, and whether one will arise in the future isconjectural." Anderson v. Green,
513 U.S. 557, 559
(1995). As a result,the Court decided that "[v]acatur is appropriate, therefore, to `clea[r] thepath for future relitigation of the issues between the parties and [to]eliminat[e] a judgment, review of which was prevented throughhappenstance.' " Id. at 560 (citation omitted).In February 1996, the Secretary again granted waivers for most of Cali-fornia's welfare program, but expressly withheld the waiver that wouldhave permitted California to implement the residency requirement. Never-theless, in August 1996, Congress enacted a new federal welfare law, thePersonal Responsibility and Work Opportunity Reconciliation Act of 1996("PRWORA"), 42 U.S.C. SS 601, et seq., that specifically authorized thestates to apply a durational residency requirement of the type found inS 11450.03 to those who have "resided in the State for less than twelvemonths" without additional waivers. The PRWORA superceded theAFDC program with a new program entitled Temporary Assistance toNeed Families ("TANF") that significantly increased the states' discretionto design their federally supported welfare plans without seeking waiversfrom the Secretary. See 42 U.S.C. S 604(c).In October 1996, California submitted its welfare plan to the Depart-ment of Health and Human Services, including a durational residency lim-itation consistent with S 604(c). On February 28, 1997, in All-County4 The district court certified the class of plaintiffs defined as "all presentand future AFDC and TANF applicants and recipients who have appliedor will apply for AFDC or TANF benefits on or after April 1, 1997, andwho will be denied full benefits because they have not resided in Califor-nia for twelve consecutive months immediately preceding their applicationfor aid."5 While acknowledging that "the right to travel is not protected byexplicit provision in the Constitution," the district court noted that "theSupreme Court repeatedly has held that such a right inheres in the conceptof a union." 811 F. Supp. at 518; see also id. at 518 n.7 (string cite).