Independent Living v. Shewry

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

INDEPENDENT LIVING CENTER OF 

SOUTHERN CALIFORNIA, INC., a

nonprofit corporation; GRAY

PANTHER SOF SACRAMENTO, a

nonprofit corporation; GRAY

PANTHERS OF SAN FRANCISCO, a

nonprofit corporation; GERALD

SHAPIRO, Pharm. D. doing business

as Uptown Pharmacy and Gift

Shoppe; SHARON STEEN doing

business as Central Pharmacy;

MARK BECKWITH; MARGARET No. 08-56422

DOWLING; TRAN PHARMACY, INC.,

doing business as Tran Pharmacy;  D.C. No.

2:08-cv-03315-CAS-

JASON YOUNG,

Petitioners-Appellees, MAN

SACRAMENTO FAMILY MEDICAL

CLINICS, INC.; THEODORE MAZER

M.D.; RONALD B. MEAD; ACACIA

ADULT DAY SERVICES,

Interveners-Appellees,

v.

DAVID MAXWELL-JOLLY, Director of

the Department of Health Care

Services, State of California,

Respondent-Appellant.



8989

8990 INDEPENDENT LIVING v. MAXWELL-JOLLY

INDEPENDENT LIVING CENTER OF 

SOUTHERN CALIFORNIA, INC., a

nonprofit corporation; GRAY

PANTHERS OF SACRAMENTO, a

nonprofit corporation; GRAY

PANTHERS OF SAN FRANCISCO, a

nonprofit corporation; GERALD

SHAPIRO, Pharm. D. doing business

as Uptown Pharmacy and Gift

Shoppe; SHARON STEEN doing

business as Central Pharmacy;

MARK BECKWITH; MARGARET No. 08-56554

DOWLING; TRAN PHARMACY, INC., D.C. No.

doing business as Tran Pharmacy;  2:08-cv-03315-CAS-

JASON YOUNG MAN

Petitioners-Appellants, OPINION

SACRAMENTO FAMILY MEDICAL

CLINICS, INC.; THEODORE MAZER

M.D.; RONALD B. MEAD; ACACIA

ADULT DAY SERVICES,

Interveners,

v.

DAVID MAXWELL-JOLLY, Director of

the Department of Health Care

Services, State of California,

Respondent-Appellee.



Appeal from the United States District Court

for the Central District of California

Christina A. Snyder, District Judge, Presiding

INDEPENDENT LIVING v. MAXWELL-JOLLY 8991

Argued and Submitted

February 18, 2009—San Francisco, California

Filed July 9, 2009

Before: Stephen Reinhardt, William A. Fletcher, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

INDEPENDENT LIVING v. MAXWELL-JOLLY 8995

COUNSEL

Richard T. Waldow and Jennifer M. Kim, Supervising Deputy

Attorneys General, Carmen D. Snuggs, Tara L. Newman,

Andrew Dhadwal, and Sara Ugaz, Deputy Attorneys General,

Office of the Attorney General of the State of California, Los

Angeles, California, for respondent-appellant/appellee David

Maxwell-Jolly, Director of the Department of Health Care

Services for the State of California.

Lynn S. Carman, Medicaid Defense Fund, Novato, California,

and Stanley L. Friedman, Los Angeles, California, for

appellees-appellees/appellants Independent Living Center of

Southern California, et al.

Craig J. Cannizzo, Felicia Y. Sze, Hooper, Lundy & Book-

man, Inc., San Francisco, California, and Lloyd A. Bookman,

Byron J. Gross, Jordan B. Reveille, Hooper, Lundy & Book-

man, Inc., Los Angeles, California, for interveners Sacra-

mento Family Medical Clinics, Inc. et al.

William A. Gould, Jr., Kevin C. Khasigian, Wilke, Floury,

Hoffelt, Gould & Birney, LLP, Sacramento, California, for

Amicus Curiae California Optometric Association.

Rochelle Bobroff and Harper Jean Tobin, Washington, DC,

for Amicus Curiae National Senior Citizens’ Law Center.

Jane Perkins, Chapel Hill, North Carolina, for Amicus Curiae

National Health Law Program, Inc.

8996 INDEPENDENT LIVING v. MAXWELL-JOLLY

Barbara A. Jones, Pasadena, California, for Amicus Curiae

AARP Foundation Litigation.

OPINION

MILAN D. SMITH, JR., Circuit Judge:

Petitioners-Appellees/Appellants (Independent Living), a

group of pharmacies, health care providers, senior citizens’

groups, and beneficiaries of the State’s Medicaid program,

Medi-Cal,1 seek to enjoin the California Department of Health

Care Services (Department) Director, David Maxwell-Jolly

(Director)2 from implementing state legislation reducing pay-

ments to certain medical service providers under Medi-Cal by

ten percent. We hold that the district court did not abuse its

discretion in granting Independent Living’s motion for a pre-

liminary injunction, because the Director failed to “rely on

responsible cost studies, its own and others,” Orthopaedic

Hosp. v. Belshe, 103 F. 3d 1491, 1496 (9th Cir. 1997), in

determining the effect of the rate cuts mandated by AB 5 on

the statutory factors of efficiency, economy, quality, and

access to care before implementing those cuts. We also hold

that the district court’s preliminary injunction should be modi-

fied to cover payments for medical services provided on or

after July 1, 2008, because the Director waived the State’s

sovereign immunity in both state and federal court.

1

For simplicity, we attribute to Independent Living generally the collec-

tive arguments of Independent Living, Interveners, and Amicus Curiae

supporting Independent Living.

2

Sandra Shewry served as the Department’s director when this suit was

filed and held that position until April 9, 2009, when she was replaced by

Mr. Maxwell-Jolly. Because the distinction between the two directors is

irrelevant for the purposes of this case, we use the term “Director” to refer

to them both.

INDEPENDENT LIVING v. MAXWELL-JOLLY 8997

FACTUAL AND PROCEDURAL BACKGROUND

On February 16, 2008, the California Assembly passed AB

5, which added §§ 14105.19 and 14166.245 to the California

Welfare and Institutions Code. Section 14105.19 reduces pay-

ments under the Medi-Cal fee-for-service program to physi-

cians, dentists, pharmacies, adult health care centers, clinics,

health systems, and other providers by ten percent. Section

14166.245 similarly reduces payments for inpatient services

provided by acute care hospitals not under contract with the

State by ten percent. Both of these rate reductions were sched-

uled to take effect on July 1, 2008.

On April 22, 2008, Independent Living filed a verified peti-

tion for a writ of mandamus in Los Angeles County Superior

Court, seeking to enjoin the Director from implementing AB

5.3 Independent Living argued that the ten percent rate reduc-

tion violates Title XIX of the federal Social Security Act (the

Medicaid Act), 42 U.S.C. § 1396 et seq., and is therefore

invalid under the Supremacy Clause.4 Specifically, Indepen-

dent Living alleged that AB 5 is inconsistent with 42 U.S.C.

§ 1396(a)(30)(A) (hereafter§ 30(A)), which requires that a

state plan

provide such methods and procedures relating to the

utilization of, and payment for, care and services

available under the plan . . . as may be necessary . . .

to assure that payments are consistent with effi-

ciency, economy, and quality of care and are suffi-

cient to enlist enough providers so that care and

services are available under the plan at least to the

3

Independent Living voluntarily dismissed the Department from suit on

June 1, 2008, leaving the Director as the sole Respondent.

4

Independent Living also alleged in their complaint that the ten-percent

rate reduction both violated and was preempted by the Americans with

Disabilities Act of 1990, 42 U.S.C. § 12181 et seq. Independent Living

dismissed these claims without prejudice, and they are not before us.

8998 INDEPENDENT LIVING v. MAXWELL-JOLLY

extent that such care and services are available to the

general population in the geographic area.

On May 19, 2008, the Director removed this action to fed-

eral court based on federal question jurisdiction. On May 30,

2008, Independent Living filed a motion for a preliminary

injunction. The district court heard argument on June 23,

2008. Two days later, the court entered an order denying the

motion, holding that Independent Living had not demon-

strated a likelihood of success on the merits of their preemp-

tion claim because § 30(A) did not create any judicially

enforceable “rights.”

Independent Living then sought emergency relief from this

court. After full briefing and argument, we vacated the district

court’s order, holding that Independent Living could bring

suit directly under the Supremacy Clause to enjoin a state law

allegedly preempted by federal law. See Indep. Living Ctr. v.

Shewry, 543 F.3d 1050 (9th Cir. 2008). We remanded to the

district court for reconsideration of Independent Living’s

motion for a preliminary injunction.

On remand, the district court issued an order granting in

part and denying in part Independent Living’s motion for a

preliminary injunction. The district court held that Indepen-

dent Living had demonstrated a likelihood of success on the

merits of its Supremacy Clause claim, as the Director failed

to provide any evidence that the Department had considered

the impact of the ten percent rate reduction on quality and

access to care, as required by § 30(A). The court also held that

Independent Living had demonstrated a risk of irreparable

injury as to some—but not all—of the challenged Medi-Cal

services. The district court thus granted the motion “to the

extent that it seeks to enjoin enforcement of Cal. Welf. & Inst.

Code § 14105.19(b)(1), which reduces by ten percent pay-

ments under the Medi-Cal fee-for-service program for physi-

cians, dentists, pharmacies, adult day health care centers,

clinics, health systems, and other providers for services pro-

INDEPENDENT LIVING v. MAXWELL-JOLLY 8999

vided on or after July 1, 2008.” The court denied the motion

to enjoin enforcement of the rate reductions for managed care

plans and non-contract acute care hospitals, as Independent

Living had not shown a risk of irreparable injury as to those

services.

On August 27, 2008, the Director filed a motion “to alter

or amend, and clarify” the August 18 order. The Director

argued that the injunction should apply only to payments for

services provided on or after August 18, because requiring

full reimbursement for services provided prior to the court’s

order would violate the State’s Eleventh Amendment sover-

eign immunity. The Director also argued that the order was

vague and ambiguous and that the Ninth Circuit had yet to

rule on the Director’s petition for rehearing and rehearing en

banc regarding the Supremacy Clause right of action issue.5

The district court granted the motion in part the same day,

issuing an order in chambers modifying the preliminary

injunction to apply only to payments “for services provided

on or after August 18, 2008.” Although the order itself did not

provide any explanation for the modification, the district court

later stated that it was its “intention only to issue an order that

would provide for prospective relief,” and that it agreed with

the Director “that the order as it was phrased violates the

Eleventh Amendment.” The district court also indicated that

it would not grant the Director’s request for a stay and that

Independent Living’s request for a contempt citation was prema-

ture.6 The district court did not afford Independent Living an

5

The Director’s Petition for Panel Rehearing and Petition for Rehearing

En Banc was denied on November 3, 2008. On June 22, 2009, the

Supreme Court of the United States denied the Director’s Petition for Writ

of Certiorari.

6

On September 15, 2008, pursuant to the Director’s motion to alter or

amend, the district court further modified its August 18, 2008 order to

clarify that the order regarding pharmacies applied only to the relief

sought, i.e., to rates for prescription drugs, including previously

prescription-only prescribed over-the-counter drugs. The district court fur-

ther struck “health systems, and other providers” from the order. Finally,

the district court clarified that the order did not apply to payments for hos-

pitals, including payments for inpatient services, outpatient services, dis-

tinct part nursing facility services, and sub-acute services.

9000 INDEPENDENT LIVING v. MAXWELL-JOLLY

opportunity to respond to the Director’s argument before issu-

ing its order.

The August 18 order, as modified, generated three appeals,

two of which remain before us. In case number 08-56422, the

Director appeals the district court’s decision to grant the

motion for preliminary injunction in part, arguing primarily

that the analysis of AB 5 conducted by the Department was

legally sufficient and Independent Living therefore cannot

demonstrate a likelihood of success on the merits.7 In case

number 08-56554, Independent Living appeals the district

court’s August 27 order modifying the injunction to apply

only to payments for services provided on or after August 18,

arguing that the earlier order—which would have granted

relief for services provided on or after July 1—did not violate

the State’s sovereign immunity.8 We address these arguments

in turn.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction over this appeal pursuant to 28 U.S.C.

§ 1292(a)(1). We review a district court’s decision to grant or

deny a preliminary injunction for abuse of discretion. Sw.

Voter Registration Educ. Project v. Shelley, 344 F.3d 914,

918 (9th Cir. 2003). “[A] district court abuses its discretion by

basing its decision on either an erroneous legal standard or

clearly erroneous factual findings.” Walczak v. EPL Prolong,

7

The Director also argues that Independent Living’s claim is not cogni-

zable under the Supremacy Clause. Because we have already ruled on that

issue and the court has denied the Director’s petition for rehear-

ing/rehearing en banc, the issue is now moot.

8

Independent Living also initially appealed the district court’s denial of

their motion to enjoin the Department from reducing payments to Medi-

Cal managed care plans by the “actuarial equivalent” of ten percent. See

Case 08-56551. After filing their notice of appeal, Independent Living dis-

missed the claim underlying their appeal in district court. We granted

Independent Living’s motion for dismissal without prejudice in case 08-

56551 on January 30, 2009.

INDEPENDENT LIVING v. MAXWELL-JOLLY 9001

Inc., 198 F.3d 725, 730 (9th Cir. 1999). “The district court’s

interpretation of the underlying legal principles . . . is subject

to de novo review,” Sw. Voter Registration, 344 F.3d at 918,

but its factual findings are reviewed for clear error, Walczak,

198 F.3d at 730. Factual findings are clearly erroneous “if the

reviewing court on the entire evidence is left with the definite

and firm conviction that a mistake has been committed.” Id.

(internal citation omitted).

To warrant injunctive relief, a plaintiff “must establish that

he is likely to succeed on the merits, that he is likely to suffer

irreparable harm in the absence of preliminary relief, that the

balance of equities tips in his favor, and that an injunction is

in the public interest.” Winter v. Natural Res. Def. Council,

129 S. Ct. 365, 374 (2008); see also Am. Trucking Ass’ns v.

City of L.A., 559 F.3d 1046, 1052 (9th Cir. 2009). “In each

case, courts ‘must balance the competing claims of injury and

must consider the effect on each party of the granting or with-

holding of the requested relief.’ ” Winter, 129 S. Ct. at 376

(quoting Amoco Prod. Co. v. Vill. of Gambell, Alaska, 480

U.S. 531, 542 (1987)).

DISCUSSION

I. Independent Living’s Likelihood of Success on the

Merits

[1] This is not the first time that we have interpreted the

substantive and procedural requirements of § 30(A). In Ortho-

paedic Hospital v. Belshe, 103 F.3d 1491 (9th Cir. 1997), sev-

eral hospitals and health care associations alleged that the

Department violated § 30(A) by setting provider reimburse-

ment rates “without proper consideration of the effect of hos-

pital costs on the relevant statutory factors [of] efficiency,

economy, quality of care, and access.” Id. at 1492. We inter-

preted § 30(A) to require the Director to set reimbursement

rates that “bear a reasonable relationship to efficient and eco-

nomical hospitals’ costs of providing quality services, unless

9002 INDEPENDENT LIVING v. MAXWELL-JOLLY

the Department shows some justification for rates that sub-

stantially deviate from such costs.” Id. at 1496. To meet this

statutory requirement, we held that the Director “must rely on

responsible cost studies, its own or others’, that provide reli-

able data as a basis for its rate setting.” Id.

Under the standards established in Orthopaedic Hospital, it

is clear that the Director violated § 30(A) when he imple-

mented the rate reductions mandated by AB 5. The Director

failed to provide any evidence that the Department or the leg-

islature studied the impact of the ten percent rate reduction on

the statutory factors of efficiency, economy, quality, and

access to care prior to enacting AB 5, nor did he demonstrate

that the Department considered reliable cost studies when

adjusting its reimbursement rates. Several of the declarations

submitted by the Director candidly admit that the Department

does not maintain information on provider costs for covered

services.9 See, e.g., Declaration of Linda Machado at 5

(“[T]here is no established mechanism for obtaining cost data

from physicians on the costs they incur for providing each of

these [covered] services. Therefore, [the Department] has no

data from which it can determine how well Medi-Cal rates

9

Moreover, almost all of the declarations provided by the Director rely

on past studies, prepared long before AB 5 was contemplated, that simply

compiled average provider costs and reimbursement rates without assess-

ing how a ten percent rate reduction might affect the statutory factors of

efficiency, economy, quality, and access to care. See, e.g., Declaration of

Linda Machado at 1-7 & exs. A & B (discussing various studies from

1997, 1999, and 2000, but not a single study prepared in anticipation of

AB 5); Declaration of Jon Chin at 1-6 & ex. B (relying on a DHS report

prepared in November 2005); Declaration of Kevin Gorospe at 1-4 (rely-

ing almost exclusively on a December 2007 study of pharmaceutical costs

prepared by Myers & Stauffer); Declaration of Kevin Gorospe at 1-8

(relying on studies from 2004 and 2007). The district court was well

within its discretion in concluding that such post hoc rationalizations fall

short of the procedural requirements established in Orthopaedic Hospital.

See Ark. Med. Soc’y v. Reynolds, 6 F.3d 519, 530 (8th Cir. 1993) (refusing

to rely on speculative evidence that could “only be confirmed by historical

data accumulated after the cuts were made”).

INDEPENDENT LIVING v. MAXWELL-JOLLY 9003

compensate physician costs.”); id. at 3 (admitting same lack

of cost data for hospital outpatient services); Declaration of

Jon Chin at 2 (“DHCS has no available cost data [on covered]

dental procedures”). In the absence of such cost data, the

Director could not have complied with § 30(A) as interpreted

in Orthopaedic Hospital.

Perhaps as a result, the Director’s primary argument on

appeal is that the standards established in Orthopaedic Hospi-

tal are inapplicable, for several reasons. We address each of

them.

A. Action Under the Supremacy Clause

[2] First, the Director argues that Orthopaedic Hospital is

inapplicable because the plaintiffs in that case were not assert-

ing a claim of federal preemption directly under the Suprem-

acy Clause. As the Director notes, Orthopaedic Hospital

addressed claims brought to enforce the provisions of § 30(A)

under 42 U.S.C. § 1983, which provides a remedy for depri-

vation of any “rights . . . secured by the Constitution and

laws” of the United States.10 See Orthopaedic Hosp., 103 F.3d

at 1495. In this case, by contrast, Independent Living does not

seek direct enforcement of any “rights” created by § 30(A),

but rather argues that the ten percent rate reduction conflicts

with the federal requirements established in § 30(A). The

question is whether this difference in the theory of recovery

renders Orthopaedic Hospital’s interpretation of § 30(A) any

less persuasive. To answer this question, we turn to basic

principles of conflict preemption.

[3] Conflict preemption arises “when compliance with both

federal and state regulations is a physical impossibility, or

where state law stands as an obstacle to the accomplishment

10

Orthopaedic Hospital preceded our subsequent decision in Sanchez v.

Johnson, 416 F.3d 1051, 1068 (9th Cir. 2005), which held that § 30(A)

does not create any federal “rights” enforceable under § 1983.

9004 INDEPENDENT LIVING v. MAXWELL-JOLLY

and execution of the full purposes and objectives of Con-

gress.” PG&E Co. v. State Energy Res. Conservation & Dev.

Comm’n, 461 U.S. 190, 204 (1983) (internal quotation marks

and citations omitted); see also Ting v. AT&T, 319 F.3d 1126,

1136 (9th Cir. 2003). Under this latter strand of so-called “ob-

struction” preemption, “an aberrant or hostile state rule is pre-

empted to the extent it actually interferes with the ‘methods

by which the federal statute was designed to reach [its]

goal.’ ” Id. at 1137 (alteration in original) (quoting Int’l Paper

Co. v. Ouellette, 479 U.S. 481, 494 (1987)). “Thus, obstruc-

tion preemption focuses on both the objective of the federal

law and the method chosen by Congress to effectuate that

objective, taking into account the law’s text, application, his-

tory, and interpretation.” Id.

[4] As the description above makes clear, the first step in

any conflict preemption analysis is to determine the purpose

of the federal law at issue. See id. at 1138. Orthopaedic Hos-

pital discussed the purpose underlying § 30(A) at length,

reading its text and legislative history as demonstrating that

“Congress intended payments to be flexible within a range;

payments should be no higher than what is required to provide

efficient and economical care, but still high enough to provide

for quality care and to ensure access to services.” 103 F.3d at

1497. We held that the Department could not accomplish this

purpose in the absence of some determination of “what it

costs an efficient hospital economically to provide quality

care.” Id. at 1498. Thus, while the Department “need not fol-

low a rigid formula of payments equal to an efficiently and

economically operated hospital’s costs regardless of other fac-

tors,” § 30(A) required the Department to at least ascertain

provider costs when it adjusted reimbursement rates. Id.

[5] The Director has not provided any coherent reason why

the purpose underlying § 30(A) would be different for pur-

poses of federal preemption than it was for direct enforcement

under § 1983, and we see none. That Independent Living in

this case has proceeded under a different cause of action than

INDEPENDENT LIVING v. MAXWELL-JOLLY 9005

the plaintiffs in Orthopaedic Hospital is therefore an inconse-

quential distinction. In both cases, the central question is the

purpose underlying § 30(A), and as to that question, Ortho-

paedic Hospital clearly controls.

B. Continuing Validity of Orthopaedic Hospital

Second, the Director argues that our more recent decision

in Sanchez, 416 F.3d 1051, “effectively overruled” Orthopae-

dic Hospital, and that the district court’s analysis of the merits

was thus based on legal error. This argument is unavailing.

Sanchez did not overrule Orthopaedic Hospital’s interpreta-

tion of § 30(A).

[6] Sanchez addressed the narrow question of “whether

developmentally disabled recipients of Medicaid funds and

their service providers have a private right of action against

state officials to compel the enforcement of a federal law gov-

erning state disbursement of such funds.” 416 F.3d at 1053.

Applying the Supreme Court’s decision in Gonzaga Univer-

sity v. Doe, 536 U.S. 273 (2002), we held that § 30(A) does

not create any federal “rights” enforceable under § 1983. San-

chez, 416 F.3d at 1068. In so holding, we did not reach the

substantive requirements of § 30(A), as we were concerned

solely with whether the plaintiffs in that case could bring suit

in federal court. In fact, Sanchez does not explore the congres-

sional “purpose” underlying § 30(A), the touchstone of fed-

eral preemption analysis. If the Sanchez court had any qualms

about Orthopaedic Hospital’s substantive interpretation of

§ 30(A), it did not say so.

[7] More fundamentally, Sanchez cannot be read to have

overruled Orthopaedic Hospital, for three reasons. First, San-

chez does not even cite Orthopaedic Hospital, much less

overrule its holdings. Second, Sanchez was decided by a

three-judge panel that, under our circuit rules, was powerless

to overturn one of our prior decisions in the absence of inter-

vening authority, Hart v. Massanari, 266 F.3d 1155, 1171

9006 INDEPENDENT LIVING v. MAXWELL-JOLLY

(9th Cir. 2001). Third, we affirmed the “continuing vitality”

of Orthopaedic Hospital in a published opinion filed one

month after Sanchez. See Alaska Dep’t of Health & Soc.

Servs. v. Ctrs. for Medicare & Medicaid Servs., 424 F.3d 931,

940 (9th Cir. 2005). In that case, the State argued—much as

the Director has here—that subsequent developments ren-

dered Orthopaedic Hospital anachronistic. See id. We were

“not persuaded,” and we noted that “the relevant language of

§ 30(A) remains unchanged since Orthopaedic Hospital, and

thus our interpretation of its purpose, and the State’s obliga-

tions thereunder, still holds.” Id. at 940-41.

Aside from his misreading of Sanchez, the Director also

argues that Orthopaedic Hospital is no longer good law

because its interpretation of § 30(A) “conflicts with the inter-

pretation of the federal agency that Congress vested with

authority to enforce and implement” the statute. By this, the

Director apparently means that Orthopaedic Hospital con-

flicts with the interpretation of § 30(A) presented in an amicus

brief filed by the Solicitor General when the Supreme Court

asked him to opine on whether our decision in Orthopaedic

Hospital was worthy of a grant of certiorari. In the process of

recommending denial of certiorari, the Solicitor General

opined that requiring states to reimburse medical providers at

rates roughly equal to their costs ran counter to the text and

legislative history of § 30(A). From this, the Director con-

cludes that a “federal agency” repudiated our interpretation of

§ 30(A).

[8] Whatever the merits of the Solicitor General’s views,

we owe them no deference in this case. Although at one time

the Supreme Court suggested that a legal opinion expressed

by an agency in the course of litigation may be entitled to def-

erence, Auer v. Robbins, 519 U.S. 452, 461-63 (1997), it sub-

sequently limited such deference to an agency’s interpretation

of ambiguities in its own regulations, Christensen v. Harris

County, 529 U.S. 576, 586-88 (2000).

INDEPENDENT LIVING v. MAXWELL-JOLLY 9007

[9] The Director also contends that our holding in Ortho-

paedic Hospital has been undermined by Congress’s subse-

quent repeal of the so-called “Boren Amendment,” which

required states to set hospital inpatient reimbursement rates

that were “reasonable and adequate to meet the costs which

must be incurred by efficiently and economically operated

facilities.” This argument is not persuasive either, as Ortho-

paedic Hospital itself expressly distinguished the require-

ments of the Boren Amendment, previously codified at

§ 1396a(a)(13)(A), from the “more flexible” requirements of

§ 30(A). See 103 F.3d at 1499. The fact that Congress

repealed the more rigid requirements of the Boren Amend-

ment does not speak to the propriety of our past interpretation

of § 30(A). Moreover, we have previously rejected the same

argument made by the Director in this case, noting that the

repeal of the Boren Amendment, “like its enactment, modified

§ 13(A) alone; it effected no change to § 30(A).”11 Alaska

DHSS, 424 F.3d at 941.

Finally, the Director urges us to reconsider our interpreta-

tion of § 30(A) in Orthopaedic Hospital, noting that several

courts have disagreed with its reasoning. See, e.g., Rite Aid v.

Houstoun, 171 F.3d 842, 851 (3d Cir. 1999) (holding that

“section 30(A) requires the state to achieve a certain result but

does not impose any particular method or process for getting

11

The Director also attempts to graft past judicial interpretation of the

Boren Amendment onto this court’s interpretation of § 30(A). The Direc-

tor argues that because (1) Orthopaedic Hospital described § 30(A)’s

requirements as “more flexible” than the Boren Amendment, and (2)

courts held that rates covering only 85-95% of provider costs were reason-

able under the Boren Amendment, then (3) reimbursement rates within the

same “range of reasonableness” must easily meet the requirements of

§ 30(A). See Reply Brief 08-56422 at 10-11. This argument is a non-

sequitur, as Orthopaedic Hospital described the procedural requirements

of § 30(A) as “more flexible” than those of the Boren Amendment, which

required “periodic cost reports from hospitals subject to audit by the

Department.” See 103 F.3d at 1499. While § 30(A) requires less formal-

ized procedures than the Boren Amendment, it does not follow that

§ 30(A)’s substantive requirements are also less demanding.

9008 INDEPENDENT LIVING v. MAXWELL-JOLLY

to that result,” expressly disagreeing with Orthopaedic Hospi-

tal); Methodist Hosps., Inc. v. Sullivan, 91 F.3d 1026,

1029-30 (7th Cir. 1996) (holding that “[n]othing in the lan-

guage of § 1396a(a)(30) . . . requires a state to conduct studies

in advance of every modification,” as the statute merely “re-

quires each state to produce a result”). But see Ark. Med.

Soc’y, 6 F.3d at 530 (holding that § 30(A) requires the state

to “consider the relevant factors of equal access, efficiency,

economy, and quality of care as designated in the statute

when setting reimbursement rates”); Minn. Homecare Ass’n v.

Gomez, 108 F.3d 917, 918 (8th Cir. 1997) (holding that Med-

icaid Act “mandates consideration of the equal access factors

of efficiency, economy, quality of care and access to services

in the process of setting or changing payment rates,” although

“it does not require the State to utilize any prescribed method

of analyzing and considering said factors” and no “formal

analysis” is required). Even if we were at liberty to overrule

Orthopaedic Hospital, we would nonetheless affirm the dis-

trict court’s injunction, for several reasons.

[10] First, even those courts that have rejected Orthopaedic

Hospital’s procedural requirements have generally recognized

that state Medicaid rate reductions may not be based solely on

state budgetary concerns. See Rite Aid, 171 F.3d at 856

(“[B]udgetary considerations may not be the sole basis for a

rate revision . . . .”); see also Beno v. Shalala, 30 F.3d 1057,

1069 n.30 (9th Cir. 1994); Amisub (PSL), Inc. v. Colo. Dep’t

of Soc. Servs., 879 F.2d 789, 800-01 (10th Cir. 1989); Ark.

Med. Soc’y, 6 F.3d at 531 (“Abundant persuasive precedent

supports the proposition that budgetary considerations cannot

be the conclusive factor in decisions regarding Medicaid.”).

But see Am. Soc’y of Consultant Pharmacists v. Garner, 180

F. Supp. 2d 953, 974-75 (N.D. Ill. 2001). In this case, the

record supports the district court’s conclusion that “the only

reason for imposing the cuts was California’s current fiscal

emergency.” The legislation was passed in an emergency ses-

sion called to “address[ ] the fiscal emergency declared by the

Governor.” See Declaration of Stan Rosenstein at 1 (describ-

INDEPENDENT LIVING v. MAXWELL-JOLLY 9009

ing the ten percent rate reduction as one option at the State’s

disposal “for dealing with the fiscal crisis”). Thus, quite apart

from any procedural requirements established by Orthopaedic

Hospital, the State’s decision to reduce Medi-Cal reimburse-

ment rates based solely on state budgetary concerns violated

federal law.

Second, even if we were in a position to relax the proce-

dural requirements established in Orthopaedic Hospital, the

Director’s failure to study the effect of the rate reduction in

any meaningful way would still lead us to enjoin implementa-

tion of AB 5. Those courts that have criticized Orthopaedic

Hospital’s reasoning have not simply rubber-stamped rate

reductions imposed by state agencies; rather, reviewing courts

typically subject state rate-making to something akin to “arbi-

trary and capricious” review. See Rite Aid, 171 F.3d at 853

(requiring the agency’s “process of decision-making” to be

“reasonable and sound”); id. at 857 (holding that the agency’s

“11-month period of data gathering, consultation, and review

before promulgating the [rate reduction] was not so deficient

as to be arbitrary and capricious”); see also Ark. Med. Soc’y,

6 F.3d at 529-30 (noting that “[r]eview under the arbitrary and

capricious standard” is appropriate).

In this case, the State’s own Legislative Analyst warned

that the ten percent rate reduction had “the potential to nega-

tively impact the operation of the Medi-Cal Program and the

services provided to beneficiaries by limiting access to pro-

viders and services,” and on that basis recommended that the

legislature “reject the Governor’s proposal to reduce pay-

ments for all providers except hospitals.” Nothing in the

record indicates that any other State official considered—let

alone studied—these possibilities prior to enacting the cuts.

Thus, it is far from clear that the Director would prevail under

a different standard, as there is no evidence that the agency’s

decision-making process was “reasonable and sound.”12

12

The Director urges us to adopt a standard similar to the Third Circuit’s

“reasonable and sound” decision-making requirement, asserting that he

9010 INDEPENDENT LIVING v. MAXWELL-JOLLY

Third, those courts that have resisted interpreting § 30(A)

to include certain procedural requirements have nonetheless

held that § 30(A) imposes substantive obligations on states

that elect to participate in Medicaid. See Rite Aid, 171 F.3d at

851 (“Section 30(A) requires the state to achieve a certain

result.”); Methodist Hosps., 91 F.3d at 1030 (holding that if

rates are inadequate to attract sufficient providers, then “under

§ 1396a(a)(30), [the state] must raise the price until the mar-

ket clears”). In this case, Independent Living alleges that at

least some medical providers have refused to treat Medi-Cal

recipients since the ten percent rate reduction was imple-

mented. See, e.g., Supplemental Declaration of Thu-Hang

Tran at 3-5. Even if we were to interpret § 30(A) to mandate

a substantive rather than procedural result, the ten percent rate

reduction might still conflict with the quality of care and

access provisions of § 30(A), as the cuts have apparently

forced at least some providers to stop treating Medi-Cal bene-

ficiaries.

The potential difficulties inherent in assessing substantive

compliance with the factors laid out in § 30(A) demonstrate

was required—at most—to conduct a “reasonably principled analysis” of

the rate reductions under Folden v. Wash. State Dep’t of Soc. & Health

Servs., 981 F.2d 1054, 1057 (9th Cir. 1992). We decline to do so, as Fol-

den pre-dates Orthopaedic Hospital and interpreted a separate, now

repealed section of the Medicaid Act, § 1396a(a)13(A).

Even if we were to do so, however, we fail to see how adopting Fol-

den’s standard would aid the Director in this case. Folden held that while

“states are left considerable latitude” under the Medicaid Act and are not

required to prepare “any special studies or written findings,” state agencies

must “engage[ ] in a bona fide fact-finding process” and base their rates

on those findings. Id. Nothing in the record connects the decision to cut

Medi-Cal reimbursement rates by ten percent across-the-board to a fact-

finding process initiated by state officials. To the contrary, the record quite

plainly establishes that rates were cut to respond to the fiscal emergency.

Thus, even under Folden, the district court did not abuse its discretion in

holding that Independent Living was likely to demonstrate that AB 5 frus-

trates the purpose of § 30(A).

INDEPENDENT LIVING v. MAXWELL-JOLLY 9011

why the more process-oriented view of the statute espoused

in Orthopaedic Hospital has much to recommend it. As Judge

Levi stated in Clayworth v. Bonta,

[Orthopaedic Hospital’s] approach has substantial

practical benefits. The Medicaid Act is clearly

intended to give states discretion and flexibility in

setting reimbursement rates, within the limits of fed-

eral law. The arbitrary and capricious standard[13]

limits the court’s review of the State’s rate setting

and permits the court to defer to the judgment of spe-

cialists in a complex regulatory field. Furthermore,

it is fair to assume that a rate that is set arbitrarily,

without reference to the Section 30(A) requirements,

is unlikely to meet the equal access and quality

requirements.

295 F. Supp. 2d 1110, 1127 (E.D. Cal. 2003), rev’d, 140 F.

App’x 677 (9th Cir. 2005) (internal citations omitted). As

Judge Levi recognized, the framework established in Ortho-

paedic Hospital allows reviewing courts to defer to a state

agency’s balancing of competing interests, so long as the

record created by the agency demonstrates that the State con-

sidered the factors mandated by statute. In this sense, the pro-

cedural approach is far less intrusive than the “substantive

compliance” standard espoused by the Third and Seventh Cir-

cuits.

[11] In sum, the Director has not demonstrated that Ortho-

paedic Hospital has been overruled or undermined in the past

twelve years, and a recent decision of this court expressly

13

Judge Levi traced the roots of Orthopaedic Hospital’s procedural

requirements to the “arbitrary and capricious” standard of review of

agency action. See 295 F. Supp. 2d 1126 & n.18. As noted above, other

courts have applied the “arbitrary and capricious” standard even after dis-

claiming the precise procedural requirements established in Orthopaedic,

which specifically mandates consideration of provider costs.

9012 INDEPENDENT LIVING v. MAXWELL-JOLLY

reaffirmed its central holding. Moreover, even if we were not

bound by Orthopaedic Hospital, there are compelling reasons

to retain Orthopaedic Hospital’s process-oriented focus. The

district court thus correctly applied binding precedent to Inde-

pendent Living’s claims in this case. Its conclusion that Inde-

pendent Living had demonstrated a likelihood of success on

the merits was not an abuse of discretion.

II. Irreparable Harm

[12] The Director also argues that the district court commit-

ted clear error by holding that Independent Living had dem-

onstrated a likelihood of irreparable harm. The bulk of the

Director’s argument, however, focuses on the alleged harm to

the State in light of its current fiscal crisis.14 The district court

clearly considered the hardship to the State but concluded that

any such harm was outweighed by the hardships likely to be

suffered by Medi-Cal beneficiaries, who would be forced to

go without medical care. We have previously held that it is

not legal error to conclude, when balancing “the medical or

financial hardship to [Medi-Cal recipients] against the finan-

cial hardship to the state,” that the balance of hardships

“tipped sharply” in favor of the plaintiffs, see Beltran v.

Myers, 677 F.2d 1317, 1322 (9th Cir. 1982), and we reach the

same conclusion in this case.

The Director argues that whatever harm Independent Liv-

ing will suffer if the injunction is reversed, the State will suf-

fer more harm if the injunction is upheld. To support this

argument, the Director cites Coalition for Economic Equity v.

Wilson for the proposition that the State will be most harmed

by losing this appeal. See 122 F.3d 718, 719 (9th Cir. 1997)

(stating, in dicta, that “it is clear that a state suffers irreparable

injury whenever an enactment of its people or their represen-

14

This argument simply reinforces the fact that the driving force behind

the rate reduction was the State budget crisis.

INDEPENDENT LIVING v. MAXWELL-JOLLY 9013

tatives is enjoined”)); see also New Motor Vehicle Bd. v.

Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (same).

[13] As the cited authority suggests, a state may suffer an

abstract form of harm whenever one of its acts is enjoined. To

the extent that is true, however, it is not dispositive of the bal-

ance of harms analysis. If it were, then the rule requiring “bal-

ance” of “competing claims of injury,” Winter, 129 S. Ct. at

376, would be eviscerated. Federal courts instead have the

power to enjoin state actions, in part, because those actions

sometimes offend federal law provisions, which, like state

statutes, are themselves “enactment[s] of its people or their

representatives,” Coal. for Econ. Equity, 122 F.3d at 719.

Here, Independent Living alleges that allowing AB 5’s imple-

mentation would violate the Medicaid Act and the Constitu-

tion. If we uphold the injunction and interfere with AB 5’s

implementation, then we will have determined that to do oth-

erwise would permit a violation of a federal law which, like

AB 5, was produced by a democratic process. Therefore, in

assessing the relative harms to the parties, we reject the Direc-

tor’s suggestion that, merely by enjoining a state legislative

act, we create a per se harm trumping all other harms.

[14] The Director also challenges the evidence of irrepara-

ble injury provided by certain Independent Living entities,

taking issue with the gravity of the economic harms alleged

by pharmacists and other medical providers. The Director

fails to acknowledge, however, that several of the entities are

Medi-Cal recipients. This court has previously held that

Medi-Cal recipients may demonstrate a risk of irreparable

injury by showing that enforcement of a proposed rule “may

deny them needed medical care.” Beltran, 677 F.2d at 1322.

In this case, the district court carefully considered the volumi-

nous evidence presented by the parties, concluding that Inde-

pendent Living had made such a showing with respect to

some medical services and failed to do so with respect to others.15

15

The district court found that the Independent Living failed to demon-

strate irreparable harm as to non-contract hospitals and managed care

plans. 2008 WL 3891211, at *9-10. Independent Living does not chal-

lenge these findings on appeal.

9014 INDEPENDENT LIVING v. MAXWELL-JOLLY

Aside from restating its own evidence, the Director does not

present any specific reason why the district court’s weighing

of Independent Living’s evidence was erroneous. We there-

fore refuse to disturb the district court’s factual findings

regarding irreparable injury, which we review for clear error.16

III. Balance of Equities and the Public Interest

[15] Finally, the Director contends that the district court

erred in its assessment of the public interest. The public inter-

est analysis for the issuance of a preliminary injunction

requires us to consider “whether there exists some critical

public interest that would be injured by the grant of prelimi-

nary relief.” Hybritech Inc. v. Abbott Labs., 849 F.2d 1446,

1458 (Fed. Cir. 1988). The district court held that, although

“there is a public interest in ensuring that the State has enough

money to meet its financial obligations,” this interest was out-

weighed by the public interest “in ensuring access to health

care.” The Director argues that, in light of the State budget

crisis, the balance of hardships tips in his favor, as the cuts

mandated under AB 5 are necessary to help reduce the State

budget deficit.

[16] We do not doubt the severity of the fiscal challenges

facing the State of California. State budgetary concerns can-

not, however, be “the conclusive factor in decisions regarding

Medicaid.” Ark. Med. Soc’y, 6 F.3d at 531. A budget crisis

does not excuse ongoing violations of federal law, particularly

when there are no adequate remedies available other than an

injunction. Ala. Nursing Home Ass’n v. Harris, 617 F.2d 388,

396 (5th Cir. 1980) (“Inadequate appropriations do not excuse

noncompliance.”); see also Beno v. Shalala, 30 F.3d 1057,

1069 (9th Cir. 1994) (rejecting budget cutting as grounds for

waiver of federal AFDC requirements). State budgetary con-

16

Independent Living has not appealed that portion of the district court’s

order concluding that they failed to demonstrate irreparable injury as to

some services. Those findings are therefore not before us.

INDEPENDENT LIVING v. MAXWELL-JOLLY 9015

siderations do not therefore, in social welfare cases, constitute

a critical public interest that would be injured by the grant of

preliminary relief. In contrast, there is a robust public interest

in safeguarding access to health care for those eligible for

Medicaid, whom Congress has recognized as “the most needy

in the country.” Scweiker v.. Hogan, 457 U.S. 569, 590,

(1982) (quoting H.R. Rep. No. 213 89th Conf. 1st Sess., 66

(1965)). We therefore hold that the district court did not abuse

its discretion in concluding that the balance of hardships and

the public interest weighed in favor of enjoining implementa-

tion of the ten percent rate reduction required by AB 5. See

Beltran, 677 F.2d at 1322.

IV. Sovereign Immunity and the Order Modifying the

Injunction

On cross-appeal, Independent Living challenges the district

court’s August 27, 2008 order modifying its August 18, 2008

order granting Independent Living’s motion for a preliminary

injunction. Independent Living principally argues that, in

modifying the earlier order to eliminate its retroactive effect,

the district court misconstrued the extent of the State’s sover-

eign immunity.17 Independent Living contends that the State

of California has consented to actions in state court for retro-

active awards of unlawfully withheld funds. Independent Liv-

ing further maintains that, by removing this case to federal

17

Independent Living also argues that the Director waived the argument

that it enjoys sovereign immunity from suit separate from its Eleventh

Amendment immunity. It did so, Independent Living maintains, because

before the district court, the Director claimed only that it was protected by

Eleventh Amendment immunity, not any other form of sovereign immu-

nity. Indeed, sovereign immunity “derives not from the Eleventh Amend-

ment but from the structure of the original Constitution itself.” Alden v.

Maine, 527 U.S. 706, 728 (1999) (citing Idaho v. Coeur d’Alene Tribe of

Idaho, 521 U.S. 261, 267-268 (1997)). However, the Supreme Court has

also noted that the term “Eleventh Amendment Immunity” is “convenient

shorthand . . . for the sovereign immunity of the states.” Id. at 713. We

will not penalize the Director for employing an established semantic con-

vention.

9016 INDEPENDENT LIVING v. MAXWELL-JOLLY

court, the Director waived whatever immunity he had in state

court. The Director responds that the district court correctly

modified the August 18 order. He contends that requiring a

state agency to expend state funds based on past conduct vio-

lates state sovereign immunity, which, the Director insists,

was never waived in either the state or federal forum.

The doctrine of state sovereign immunity generally prohib-

its damage suits against states in both state and federal court

without their consent. The doctrine comes from the Eleventh

Amendment, but its essence “derives . . . from the structure

of the original Constitution itself.” Alden, 527 U.S. at 728; see

id. at 713 (characterizing sovereign immunity as “a funda-

mental aspect of the sovereignty which the States enjoyed

before ratification of the Constitution, and which they retain

today”).

The Supreme Court has held that state sovereign immunity

bars citizens of any state from bringing a lawsuit for damages

against a state or state agency. Will v. Mich. Dep’t of State

Police, 491 U.S. 58, 71 (1989); see also Edelman v. Jordan,

415 U.S. 651, 662-63 (1974); Hans v. Louisiana, 134 U.S. 1,

10 (1890). However, there are three well-established excep-

tions to this general rule. Two of them—Ex parte Young and

state waiver (both explicit consent and implied removal

waiver)—are relevant here, and we consider them below.18

A. The Order’s Validity Under Ex parte Young

Although the Eleventh Amendment expressly prohibits

suits against states in both law and equity, a plaintiff may

nonetheless maintain a federal action to compel a state offi-

18

The other exception is that Congress may validly abrogate a state’s

sovereign immunity through legislation passed pursuant to the Fourteenth

Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) (holding that

Congress may abrogate states’ sovereign immunity via legislation enacted

pursuant to Fourteenth Amendment).

INDEPENDENT LIVING v. MAXWELL-JOLLY 9017

cial’s prospective compliance with the plaintiff’s federal

rights. Ex parte Young, 209 U.S. 123, 156 (1908); id. at 160

(“The State has no power to impart to [its officer] any immu-

nity from responsibility to the supreme authority of the United

States.”); see also Quern v. Jordan, 440 U.S. 332, 337 (1979)

(citing Young, 209 U.S. 123). The court may order such an

injunction even if the state’s compliance will have an “ancil-

lary effect” on the state treasury. Edelman, 415 U.S. at 667-68

(citing Young, 209 U.S. 123). This exception applies only to

prospective relief; it does not permit retroactive injunctive

relief. Id. at 668.

In this case, the August 18 order constituted retroactive

relief under our controlling precedent. In Native Village of

Noatak v. Blatchford, we held that, “[i]n requesting an order

requiring the Commissioner to perform his ‘legal duty’ to dis-

burse . . . funds” to him, the plaintiff “essentially seeks an

injunction directing the state to pay damages.” 38 F.3d 1505,

1512 (9th Cir. 1994). What the plaintiff sought, we held, was

“precisely the type of retroactive relief that the Supreme

Court refused to allow in Edelman,” and therefore his “at-

tempt to characterize its claim as one for prospective relief

fail[ed] to avoid the bar of the Eleventh Amendment.” Id.

In this matter, the August 18 order provided retroactive

relief that required the State to pay monetary compensation to

affected providers.19 Therefore, under Native Village of

Noatak, the retroactive portion of that order does not fall

under the Ex parte Young exception to the sovereign immu-

nity doctrine. As a result, the order violated the State’s sover-

19

In so deciding, we employ the approach used by the Second, Fourth,

and Seventh Circuits, i.e., whether relief is prospective or retrospective in

the Medicaid payment context turns on the date of service, not the date of

payment. See, e.g., New York City Health & Hosps. Corp. v. Perales, 50

F.3d 129, 137 (2d Cir. 1995); Wisc. Hosp. Ass’n v. Reivitz, 820 F.2d 863,

867 (7th Cir. 1987). Therefore, an order enjoining payment reductions for

services that had been delivered before August 18 services is retroactive,

even if the Department had not yet tendered payment for the services.

9018 INDEPENDENT LIVING v. MAXWELL-JOLLY

eign immunity unless the Director waived that immunity—

impliedly through removal, explicitly through consent to suit

in state court, or through some combination thereof—an issue

we now consider.

B. The State’s Waiver of Sovereign Immunity

[17] Even if a plaintiff seeks damages for past conduct,

sovereign immunity will not insulate a state from suit in state

court, provided the state has previously consented to be sued

in state court under like circumstances. See Carey v. Nev.

Gaming Control Bd., 279 F.3d 873, 877 (9th Cir. 2002).

While a state’s consent to suit in its own courts does not

waive sovereign immunity against suit in federal court, Carey,

279 F.3d at 877 (noting that waiver of sovereign immunity

“only gives [the state’s] consent to suits in its own courts”),

a state that consents to suit in state court cannot invoke the

sovereign immunity defense after removing the suit to federal

court, Embury v. King, 361 F.3d 562, 566 (9th Cir. 2004);

Stewart v. North Carolina, 393 F.3d 484, 488 (4th Cir. 2005).

As a result, given that the Director removed the case, sover-

eign immunity will not protect him if the State has previously

consented to suits like this one in state court.

Here, Independent Living points to several state authorities

it claims constitute such consent. First, it notes that California

Code of Civil Procedure § 1085 provides:

A writ of mandate may be issued by any court to

any inferior tribunal, corporation, board, or person,

to compel the performance of an act which the law

specially enjoins, as a duty resulting from an office,

trust, or station.

Though it does not explicitly waive sovereign immunity

against retroactive disbursements, this provision can be read

to sanction judicially ordered fund disbursements generally.

INDEPENDENT LIVING v. MAXWELL-JOLLY 9019

California state courts, some interpreting California Code

of Civil Procedure § 1085, have condoned such orders in

more explicit terms. Various decisions have interpreted state

law to permit mandamus actions seeking disbursement of

unlawfully withheld funds. See, e.g., County of L.A. v. Riley,

128 P.2d 537, 543 (Cal. 1942); L.A. County v. State Dep’t of

Pub. Health, 158 Cal. App. 2d 425, 443 (1958). Notably,

some of these cases have specifically recognized the availabil-

ity of monetary awards against a state agency or official

resulting from unlawfully withheld health and welfare pay-

ments. See Mission Reg’l Med. Ctr. v. Shewry, 168 Cal. App.

4th 460, 480 (Cal. Ct. App. 2008) (citing Code of Civil Proce-

dure § 1085); Santa Ana Hosp. Med. Ctr. v. Belshi, 56 Cal.

App. 4th 819, 837 (Cal. Ct. App. 1997) (noting that “[a]ctions

seeking traditional mandamus to compel a state officer to

comply with a mandatory duty to disburse funds do not

invade sovereign immunity, even though they involve an inci-

dental monetary award” (citing of Sacramento v. Lackner, 97

Cal. App. 3d 576, 587-88 (Cal. Ct. App. 1979))). In County

of Los Angeles v. Riley, the court authorized back payments

for needy services against the State and noted that “[t]he rule

is well established in this state that where the action is one

simply to compel an officer to perform a duty expressly

enjoined upon him by law, it may not be considered a suit

against the state.” 128 P.2d at 543 (citing, e.g., Bd. of Dirs.

of Woman’s Relief Corps Home Ass’n of Cal. v. Nye, 8 Cal.

App. 527 (Cal. Ct. App. 1908)); see also L.A. County v. State

Dep’t of Pub. Health, 158 Cal. App.2d at 442-43; id. at 443

(holding that because “the object of the present suits is to

compel state officers to disburse funds specifically appropri-

ated for tuberculosis subsidies in the manner provided by the

statute,” the order involves “no invasion of state sovereignty

and does not fall within the rule precluding suits against the

state without its consent”).

[18] Thus, California has construed the scope of its sover-

eign immunity as it relates to awards of unlawfully withheld

funds more narrowly than have the federal courts. Compare,

9020 INDEPENDENT LIVING v. MAXWELL-JOLLY

e.g., L.A. County, 158 Cal. App.2d at 442-43 with Edelman,

415 U.S. at 668, and Noatak, 38 F.3d at 1512. Under Califor-

nia law, an action seeking injunctive relief that requires a state

official to disburse funds is not an action against the State.

Thus, it does not implicate the State’s sovereign immunity

against liability in its own courts. Had this action remained in

state court, the Director would not have enjoyed sovereign

immunity against a order directing payment of retroactive

benefits.

[19] Under our precedent, because the Director enjoyed no

sovereign immunity in state court against a order directing

payment of retroactive benefits, it follows that the Director—

by removing the case to federal court—waived sovereign

immunity in that forum as well. See Embury, 361 F.3d at 566

(citing Lapides v. Board of Regents, 535 U.S. 613, 623-24

(2002)) (holding that, in removing a case to federal court, a

state defendant waives its Eleventh Amendment immunity);

see also Stewart, 393 F.3d at 488. Embury’s rule is grounded

on the Supreme Court’s holding in Lapides, which held that

where a state removed a state law defamation action to federal

court, it waived its sovereign immunity against the state

claim. Id. at 624. Embury extended Lapides’s principle to fed-

eral claims.20 361 F.3d at 565-66 (citing Lapides, 535 U.S. at

20

The Director argues that Lapides and Embury should essentially be

confined to their facts. Under this reading, the rule applies only where a

state has already consented to suit in its own state courts and thus, a state

defendant removing a case to federal court takes with it whatever sover-

eign immunity it had in state court. Other courts have endorsed this nar-

row view of Lapides’s waiver rule. E.g., Stewart, 393 F.3d at 488 (stating

that Lapides “does not resolve whether a state that has not consented to

suit in its own courts maintains [immunity] upon voluntarily removing a

case to federal court”); id. at 490 (construing Lapides to mean that in such

an instance, a state does not waive sovereign immunity by removal); see

also Watters v. Wash. Metro. Area Transit Auth., 295 F.3d 36, 42 n.13

(D.C. Cir. 2002) (noting that “[a]s the [states] have not waived immunity

from attorney’s liens in their own courts, the narrow holding of Lapides

does not apply to this case,” and the defendant’s removal did not waive

its sovereign immunity). While our Embury holding strongly suggests a

broader interpretation of Lapides, our conclusion that the Director con-

sented to suit in state court renders the issue moot for the purpose of this

case.

INDEPENDENT LIVING v. MAXWELL-JOLLY 9021

620, 623-24). Under Embury, the Director, having waived

state court immunity, also waived federal court sovereign

immunity by voluntarily removing the action. Because the

Director lacked sovereign immunity against retroactive

orders, the district court’s August 18 order should have

applied retroactively. As a result, by basing its order on an

erroneous legal standard, the district court erred in eliminating

the injunction’s retroactive effect. We hold that the district

court’s injunction should extend to all services covered by

that injunction and provided on or after July 1, 2008.

C. Other Claims of Error Regarding the August 27,

2008 Order

Independent Living also contends that the district court’s

August 27, 2008 order violated their right to due process,

namely, their property right in the judgment reflected in the

court’s August 18, 2008 order. They also allege that, in modi-

fying the August 18 order, the district court abused its discre-

tion under Federal Rule of Civil Procedure 59(e). Based on

our conclusion that the August 27, 2008 order erroneously

construed the State’s sovereign immunity, we do not reach

these claims.

CONCLUSION

The district court properly applied this court’s prior deci-

sion in Orthopaedic Hospital to hold that Independent Living

has demonstrated a likelihood of success on the merits. More-

over, the district court did not abuse its discretion in determin-

ing that the balance of hardships tips sharply in Independent

Living’s favor, as the ten percent rate reduction threatens

access to much-needed medical care. We therefore affirm the

district court’s order granting in part Independent Living’s

motion for a preliminary injunction.

However, the district court’s subsequent order modifying

the injunction to apply only to payments for services provided

9022 INDEPENDENT LIVING v. MAXWELL-JOLLY

on or after August 18 was based on an erroneous legal stan-

dard. The State of California has waived its sovereign immu-

nity against mandamus actions in state courts seeking

reimbursement of unlawfully withheld funds, and the Direc-

tor, by voluntarily removing this case to federal court, waived

the State’s sovereign immunity in federal court. We therefore

reverse the district court’s August 18 order modifying the

injunction and remand to the district court for further proceed-

ings consistent with this opinion.

AFFIRMED in part, REVERSED in part, and

REMANDED.