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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF OREGON
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`Plaintiff,
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`Case No. 3:20-cv-01866-IM
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`OPINION AND ORDER
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`v.
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`GREAT NORTHERN RESOURCES,
`INC.,
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`KATY COBA, in her Official Capacity as
`State Chief Operating Officer and Director
`of the OREGON DEPARTMENT OF
`ADMINISTRATIVE SERVICES;
`OREGON DEPARTMENT OF
`ADMINISTRATIVE SERVICES; THE
`CONTINGENT; and DOES 1-10,
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`
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`Defendants.
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`Bradley A. Benbrook, Benbrook Law Group, PC, 400 Capitol Mall, Suite 2530, Sacramento, CA
`95814; Jonathan F. Mitchell, Mitchell Law PLLC, 111 Congress Avenue, Suite 400, Austin, TX
`78701; Stephen M. Duvernay, Benbrook Law Group, PC, 400 Capitol Mall, Suite 2530,
`Sacramento, CA 95814; James L. Buchal, Murphy & Buchal, LLP, 3425 S.E. Yamhill Street,
`Suite 100 Portland, OR 97214. Attorneys for Plaintiff.
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`Clifford S. Davidson, Snell & Wilmer LLP, One Centerpointe Drive, Ste 170, Lake Oswego, OR
`97035; Amanda T. Gamblin, Schwabe, Williamson & Wyatt, 1211 SW 5th Ave, Ste. 1900,
`Portland, OR 97204; Nicholas F. Aldrich , Jr., Schwabe, Williamson & Wyatt, 1211 SW 5th
`Ave, Ste. 1900, Portland, OR 97204. Attorneys for Defendants.
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`IMMERGUT, District Judge.
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`PAGE 1 – OPINION AND ORDER
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`Case 3:20-cv-01866-IM Document 28 Filed 11/20/20 Page 2 of 8
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`The parties are familiar with the facts of this case. Before this Court is Plaintiff’s Motion
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`for a Temporary Restraining Order (“TRO”) or Preliminary Injunction. ECF 12. In this Motion,
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`Plaintiff has requested an “extraordinary remedy that may only be awarded upon a clear showing
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`that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22
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`(2008). Plaintiff seeks an order “enjoining Defendants . . . from using race as an essential factor
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`in distributing relief funds” prior to a final determination on the merits. ECF 12 at 2. In
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`supplemental briefing, Plaintiff further requests that this Court “order Defendants to consider” a
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`re-application “without regard to race.” ECF 21 at 2.
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`Defendants offered to post a bond with this Court in the amount Plaintiff would be
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`entitled to if it wins on the merits. See ECF 17. This Court requested briefing specifically on
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`whether Plaintiff could show the irreparable harm required to obtain a preliminary injunction in
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`light of this bond, and a hearing was held on this limited issue on November 20, 2020. At the
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`hearing, counsel for Defendants represented to this Court that $200,000 would be
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`unconditionally posted to be held by this Court and would be available for Plaintiff should
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`Plaintiff prevail in this litigation and be entitled to that relief. Plaintiff did not argue that the
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`amount offered was insufficient. With Defendants’ representation, and after consideration of
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`parties’ arguments in briefing and at the hearing, this Court concludes that Plaintiff cannot show
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`irreparable harm, and therefore its Motion for a TRO or Preliminary Injunction is DENIED. In
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`deciding this Motion, this Court does not determine the merits of this action. Whether Plaintiff
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`may ultimately prove an unconstitutional practice by Defendants will be addressed later in this
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`litigation.
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`LEGAL STANDARDS
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`To obtain a TRO or preliminary injunction, a plaintiff must show that: (1) he or she is
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`likely to succeed on the merits; (2) he or she is likely to suffer irreparable harm in the absence of
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`PAGE 2 – OPINION AND ORDER
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`Case 3:20-cv-01866-IM Document 28 Filed 11/20/20 Page 3 of 8
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`preliminary relief; (3) the balance of equities tips in his or her favor; and (4) that an injunction is
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`in the public interest. Winter, 555 U.S. at 20. The Ninth Circuit applies a “sliding scale”
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`approach in considering the factors outlined in Winter. A stronger showing of one element of the
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`preliminary injunction test may offset a weaker showing of another. All. for the Wild Rockies v.
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`Cottrell, 632 F.3d 1127, 1131–32 (9th Cir. 2011). Thus, for example, “when the balance of
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`hardships tips sharply in the plaintiff’s favor, the plaintiff need demonstrate only ‘serious
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`questions going to the merits.’” hiQ Labs, Inc. v. LinkedIn Corp., 938 F.3d 985, 992 (9th Cir.
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`2019) (quoting All. for the Wild Rockies, 632 F.3d at 1135).
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`“Under any formulation of the test, plaintiff must demonstrate that there exists a
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`significant threat of irreparable injury.” Oakland Tribune, Inc. v. Chronicle Pub. Co., 762 F.2d
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`1374, 1376 (9th Cir. 1985); see also Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 937
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`(9th Cir.1987). If a plaintiff does not make that “minimum showing,” a court “need not decide
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`whether it is likely to succeed on the merits.” Oakland Tribune, 762 F.2d at 1376; see also Ctr.
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`for Food Safety v. Vilsack, 636 F.3d 1166, 1174 (9th Cir. 2011).
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`DISCUSSION
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`Plaintiff alleges it will suffer irreparable harm because there is an alleged constitutional
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`and civil rights statutory violation, Defendants are “prevent[ing]” Plaintiff from “competing on
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`equal footing,” and “the program is required to expend all funds before the end of the year.” ECF
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`12-1 at 19-20. However, Plaintiff’s harm is in the past. Plaintiff applied for a grant from the
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`Oregon Cares Fund, which applicants know they may only apply for once. ECF 19 at 2–3; ECF
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`21-1 at 33. And its application was denied. Whether the evaluation and/or denial of Plaintiff’s
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`application violated Plaintiff’s rights, and whether Plaintiff is entitled to $200,000 based on a
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`wrongful denial of that application, are not questions appropriate for a preliminary injunction
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`analysis. A preliminary injunction stops ongoing harm to a plaintiff or prevents it from
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`PAGE 3 – OPINION AND ORDER
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`Case 3:20-cv-01866-IM Document 28 Filed 11/20/20 Page 4 of 8
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`occurring. “Past exposure to illegal conduct does not in itself show a present case or controversy
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`regarding injunctive relief, [ ] if unaccompanied by any continuing, present adverse effects.”
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`O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974); see also City of Los Angeles v. Lyons, 461 U.S.
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`95, 109 (1983) (“If Lyons has made no showing that he is realistically threatened by a repetition
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`of his experience of October, 1976, then he has not met the requirements for seeking an
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`injunction in a federal court. . . .”).
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`Here, Plaintiff has not alleged any “continuing, present adverse effects” resulting from
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`the denial of its application. O’Shea, 414 U.S. at 495–96. For example, it has not alleged “a loss
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`of customer goodwill” or the possible closure of its business. Am. Trucking Assocs., Inc. v. City
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`of Los Angeles, 559 F.3d 1046, 1058 (9th Cir. 2009). Similarly, having been put at a
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`“competitive disadvantage” in the past does not constitute irreparable harm for preliminary
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`injunction purposes where no ongoing or future harms are alleged as a result of that fact. See,
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`e.g., Int’l Franchise Ass’n, Inc. v. City of Seattle, 803 F.3d 389, 411 (9th Cir. 2015) (ongoing
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`harms); Gilder v. PGA Tour, Inc., 936 F.2d 417, 423 (9th Cir. 1991) (ongoing harms).
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`Accordingly, this Court does not find that Plaintiff has demonstrated it is likely to suffer
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`irreparable harm in the absence of preliminary relief. While Plaintiff suggested at the hearing
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`that this Court should consider issuing a broader injunction that applies to future possible Fund
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`applicants that are not before this Court, this Court declines to do so. This Court analyzes
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`irreparable harm only as it relates to the sole Plaintiff in this case.
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`The Court rejects Plaintiff’s contention that alleging an equal-protection violation or a
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`civil rights act violation standing alone creates a presumption of irreparable harm in this Circuit.
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`See ECF 12-1 at 19–20; ECF 21 at 3. In the past decade or so, the Ninth Circuit has required
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`more than a constitutional claim to find irreparable harm. For example, in Melendres v. Arpaio,
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`PAGE 4 – OPINION AND ORDER
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`Case 3:20-cv-01866-IM Document 28 Filed 11/20/20 Page 5 of 8
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`the Ninth Circuit found that class action plaintiffs were entitled to a “Fourth-Amendment-related
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`[preliminary] injunction” because they “faced a real possibility that they would again be stopped
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`or detained and subjected to unlawful detention on the basis of their unlawful presence alone.”
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`695 F.3d 990, 997, 1002 (9th Cir. 2012). In Hernandez v. Sessions, the Ninth Circuit evaluated a
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`preliminary injunction granted on multiple constitutional grounds. 872 F.3d 976, 986 (9th Cir.
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`2017). The court concluded that “[p]laintiffs have established a likelihood of irreparable harm by
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`virtue of the fact that they are likely to be unconstitutionally detained for an indeterminate period
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`of time.” Id. at 994. The court also explained that an injunction would stop other myriad harms
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`from “continu[ing] to occur needlessly on a daily basis.” Id. at 995. In Arizona Dream Act Coal.
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`v. Brewer, the Ninth Circuit found irreparable injury in an equal-protection claim because of the
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`“myriad personal and professional harms” to plaintiffs. 757 F.3d 1053, 1068 (9th Cir. 2014).
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`Plaintiff cites to Am. Trucking Associations in support of its argument that a constitutional
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`violation alone, even without recurring or future harm, constitutes irreparable harm. In that case,
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`however, the Ninth Circuit discussed at length the various injuries faced by plaintiffs in a
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`preliminary injunction analysis. Am. Trucking Associations, 559 F.3d at 1057-59. With that
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`important context, the court stated that “the constitutional violation alone, coupled with the
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`damages incurred, can suffice to show irreparable harm.” Id. at 1058. That decision does not
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`suggest that a constitutional violation without recurring injury constitutes irreparable harm
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`justifying a preliminary injunction. Here, Plaintiff has not alleged any other future harm
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`whatsoever to “couple” with the alleged constitutional violation to suffice to make that showing.
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`Id.
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`This Court agrees with the other district courts in this Circuit that have rejected
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`arguments of per se irreparable injury for constitutional claims and required something more.
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`PAGE 5 – OPINION AND ORDER
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`Case 3:20-cv-01866-IM Document 28 Filed 11/20/20 Page 6 of 8
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`See, e.g., Allen v. Cty. of Lake, No. 14-CV-03934-TEH, 2014 WL 4380297, at *2 (N.D. Cal.
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`Sept. 4, 2014) (rejecting similar argument by plaintiff and explaining that in Ninth Circuit cases
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`where “a pattern or practice of constitutional violations” constituted irreparable injury, “plaintiffs
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`succeeded because they could show a likelihood that [articulated] specific injuries would be
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`repeated in the future”); Poder in Action v. City of Phoenix, No. CV-20-01429-PHX-DWL, 2020
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`WL 5038582, at *12 & n.8 (D. Ariz. Aug. 26, 2020) (rejecting plaintiffs’ argument, in a
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`preemption claim, that “irreparable harm always exists in cases involving constitutional
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`challenges”); Mendoza v. Garrett, 358 F. Supp. 3d 1145, 1180–81 (D. Or. 2018) (rejecting same
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`argument in a Fourteenth Amendment claim); see also Ne. Fla. Chapter of Ass'n of Gen.
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`Contractors of Am. v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir. 1990) (noting that the
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`“only area of constitutional jurisprudence where we have said that an on-going violation
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`constitutes irreparable injury is the area of first amendment and right of privacy jurisprudence”).
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`Plaintiff relies heavily on Monterey Mechanical Co. v. Wilson, which identified “unconstitutional
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`discrimination in the bidding process” as one “kind[] of harm” that is irreparable through money.
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`125 F.3d 702, 715 (9th Cir. 1997). However, as explained above, more recent case law makes
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`clear that today, the Ninth Circuit requires more than that before issuance of a preliminary
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`injunction.1
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`To the extent Plaintiff now asserts the harm is ongoing and likely to recur because the
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`Federal government may approve more Coronavirus funding for the states, and the State of
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`Oregon may decide to allocate some portion of that funding to the same program challenged in
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`1 Moreover, Monterey Mechanical did not state that a preliminary injunction was warranted. 125
`F.3d at 715. Rather, it stated that its conclusion that the challenged statute was unconstitutional “makes
`Monterey’s probability of success much higher,” and on remand, the district court should “reconsider
`preliminary equitable relief in light of” that determination. Id.
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`PAGE 6 – OPINION AND ORDER
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`Case 3:20-cv-01866-IM Document 28 Filed 11/20/20 Page 7 of 8
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`this action, that harm is entirely too speculative to justify a preliminary injunction. Accordingly,
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`cases regarding certain harm in “future cycles” are not determinative. See, e.g., City of Los
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`Angeles v. Sessions, No. CV 18-7347-R, 2019 WL 1957966, at *5 (C.D. Cal. Feb. 15, 2019)
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`(“level playing field in future grant cycles”).
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`Plaintiff asks, in its supplemental briefing, that this Court order Defendant to accept a
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`new application from Plaintiff to its one-application-only grant program and evaluate it without
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`regard to race. ECF 21 at 2. The Court declines to do so, especially where Plaintiff has alleged
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`no harms stemming from the denial of its application that might justify such an order, such as
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`lost profits, lost reputation, potential shut-down of business, or the like. See, e.g. Express One
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`Int’l, Inc. v. U.S. Postal Serv., 814 F. Supp. 87, 91 (D.D.C. 1992) (disappointed bidder
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`challenging contract as illegal showed irreparable harm due to “loss of revenues and profits it
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`now receives,” “effect this [contract] loss will have on [plaintiff’s] relationship with its primary
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`subcontractor,” “likely [ ] significant shut-down costs,” and “significant lay-off, capital, and
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`facility costs”). Mandatory injunctions are “particularly disfavored” in this Circuit, and Plaintiff
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`has not shown that “extreme or very serious damage will result.” Marlyn Nutraceuticals, Inc. v.
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`Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009) (quotation marks and citation
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`omitted).
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`Plaintiff has not demonstrated why damages will not fully compensate Plaintiff for its
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`injury, necessitating an injunction. Plaintiff’s interest in the $200,000 it was allegedly wrongfully
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`denied is secured. In an accompanying order, the Court orders the Clerk of Court to accept funds
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`payable to the Clerk, U.S. District Court, in the amount of $200,000, and to deposit these monies
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`into the Court’s treasury registry fund. ECF 26. The Court will address Plaintiff’s constitutional
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`and civil rights claims in due course.
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`PAGE 7 – OPINION AND ORDER
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`Case 3:20-cv-01866-IM Document 28 Filed 11/20/20 Page 8 of 8
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`For the foregoing reasons, Plaintiff’s Motion for a TRO or Preliminary Injunction is
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`CONCLUSION
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`DENIED.
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`
`/s/ Karin J. Immergut
`Karin J. Immergut
`United States District Judge
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`IT IS SO ORDERED.
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`DATED this 20th day of November, 2020.
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`PAGE 8 – OPINION AND ORDER
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