At page 1088 Determining irreparable harm for preliminary injunction41 citing cases“these formulations are not different tests but represent two points on a sliding scale in which the degree of irreparable harm increases as the probability of success on the merits decreases.”
- All. of Auto. Mfrs. v. Hull, 137 F. Supp. 2d 1165 (D. Ariz. 2001).published (the degree of irreparable harm increases as the probability of success of the merit decreases)
- White v. United States Army Corps of Engineers, No. 3:22-cv-06143 (N.D. Cal. Oct. 23, 2023).([T]he moving party must demonstrate a significant threat of irreparable 23 injury, irrespective of the magnitude of the injury.)
- Stormans Inc v. Selecky, No. 07-36039 (9th Cir. Oct. 28, 2009).published“we question the appropriateness of movant's attempt to use the appellate process to resolve a question that must first be resolved in the district court.”
- Christopher Henson v. Corizon Health, Inc., No. 20-15986 (9th Cir. Feb. 11, 2022).unpublished(affirming denial of preliminary injunction on a basis that was not relied on by the district court)
- Unite the Parks v. Usfs, No. 21-16238 (9th Cir. Jan. 25, 2022).unpublishedDist., 868 F.2d 1085, 1088 (9th Cir. 1989).
- Bond v. Brown, No. 6:20-cv-01656 (D. Or. Apr. 2, 2021).Dist., Anchorage Alaska, 868 F.2d 1085, 1088 (9th Cir. 1989).
- Hernandez v. Oregon House of Representatives, 521 F. Supp. 3d 1025 (D. Or. 2021).publishedDist., Anchorage, Alaska, 868 F.2d 1085, 1088 (9th Cir. 1989).
- Hayes v. State of Oregon, No. 1:20-cv-01332 (D. Or. Feb. 3, 2021).Dist., Anchorage, Alaska, 868 F.2d 1085, 1088 (9th Cir. 1989); see also, PCG-SP Venture I LLC v. Newsom, 2020 WL 4344631 , at *3 (C.D.
- Hayes v. State of Oregon, No. 1:20-cv-01332 (D. Or. Aug. 12, 2020).Dist., Anchorage, Alaska, 868 F.2d 1085, 1088 (9th Cir. 1989).
- United States v. State of Washington, No. 2:70-cv-09213 (W.D. Wash. Nov. 13, 2019).Dist., 868 F.2d 1085, 1088 (9th Cir. 9 1989) (citations omitted).
Show 31 more citing cases
- Arizona Hosp. & Healthcare Ass'n v. Betlach, 865 F. Supp. 2d 984 (D. Ariz. 2012).published“the moving party must demonstrate a significant threat of irreparable injury, irrespective of the magnitude of that injury”
- Bank Julius Baer & Co. v. Wikileaks, 535 F. Supp. 2d 980 (N.D. Cal. 2008).publishedContractors of Calif. v. Coalition for Economic Equity, 950 F.2d 1401 , 1410 (9th Cir.1991) (quoting Big Country Foods, Inc. v. Board of Education, 868 F.2d 1085, 1088 (9th Cir.1989)).
- CKE RESTAURANT v. Jack in the Box, Inc., 494 F. Supp. 2d 1139 (C.D. Cal. 2007).publishedDist., 868 F.2d 1085, 1088 (9th Cir.1989). 1.
- Premier Nutrition, Inc. v. Organic Food Bar, Inc., 475 F. Supp. 2d 995 (C.D. Cal. 2007).publishedDist., 868 F.2d 1085, 1088 (9th Cir.1989). 1.
- Doe v. Schwarzenegger, 476 F. Supp. 2d 1178 (E.D. Cal. 2007).publishedDist., 868 F.2d 1085, 1088 (9th Cir.1989).
- Picture It Sold, Inc. v. Isold It, LLC, 199 F. App'x 631 (9th Cir. 2006).unpublishedWe review the district court’s denial for an abuse of discretion, Harr is v. Board of Supervisors, Los Angeles County, 366 F.3d 754, 760 (9th Cir.2004), and may affirm on any ground supported by the record, Big Country Foods, Inc., v. Bd.…
- Newton-Nations v. Rogers, 316 F. Supp. 2d 883 (D. Ariz. 2004).published“the moving party must demonstrate a significant threat of irreparable injury, irrespective of the magnitude of the injury”
- Edge Wireless, LLC v. U.S. Cellular Corp., 312 F. Supp. 2d 1325 (D. Or. 2003).published“(1) a combination of probable success on the merits and the possibility of irreparable injury; or (2) that serious questions are raised and the balance of hardships tips sharply in its favor”
- Earth Island Inst. v. United States Forest Serv., 351 F.3d 1291 (9th Cir. 2003).published Dist., 868 F.2d 1085, 1088 (9th Cir.1989) (citations omitted) (emphasis added); see Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 725 (9th Cir.1999); Goldie’s Bookstore, Inc. v. Superior Court, 739 F.2d 466 , 472 (9th Cir.1984) (“Speculativ…
- Halo Mgmt., LLC v. Interland, Inc., 308 F. Supp. 2d 1019 (N.D. Cal. 2003).published Dist., 868 F.2d 1085, 1087 (9th Cir.1989).
- Welker v. Cicerone, 174 F. Supp. 2d 1055 (C.D. Cal. 2001).publishedDist., 868 F.2d 1085, 1088 (9th Cir.1989).
- Schneider v. California Dep't of Corr., 91 F. Supp. 2d 1316 (N.D. Cal. 2000).published Big Country, 868 F.2d at 1088 (citations omitted); Oakland Tribune, Inc. v. Chronicle Publishing Co., Inc., 762 F.2d 1374, 1376 (9th Cir.1985) (citations omitted).
- Pearlie Rucker Herman Walker Willie Lee Barbara Hill v. Harold Davis Oakland Hous. Auth., & U.S. Dep't of Hous. & Urban Dev., Pearlie Rucker Herman Walker Willie Lee Barbara Hill v. Harold Davis Oakland Hous. Auth., & U.S. Dep't of Hous. & Urban Dev., 203 F.3d 627 (9th Cir. 2000).published“To obtain a preliminary injunction, the moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balan…”
- Dr. Seuss Enter., L.P. v. Penguin Books USA, Inc., 924 F. Supp. 1559 (S.D. Cal. 1996).publishedBig Country Foods, Inc. v. Board of Education, 868 F.2d 1085, 1088 (9th Cir.1989) (internal citations omitted).
- Ultrapure Sys., Inc. v. Ham-Let Grp., 921 F. Supp. 659 (N.D. Cal. 1996).published“These formulations are not different tests but represent two points on a sliding scale in which the degree of irreparable harm increases as the probability of success on the merits decreases”
- Lockheed Missile & Space Co. v. Hughes Aircraft Co., 887 F. Supp. 1320 (N.D. Cal. 1995).published“These formulations are not different tests but represent two points on a sliding scale in which the degree of irreparable harm increases as the probability of success on the merits decreases”
- Citizens All. to Protect Our Wetlands v. W.Y.N.N., 908 F. Supp. 825 (W.D. Wash. 1995).published“(1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balance of hardships tips sharply in its favor”
- Movitz v. Palmer (In Re Palmer), 167 B.R. 579 (Bankr. D. Ariz. 1994).publishedBig Country Foods, Inc. v. Board of Education of Anchorage School District, 868 F.2d 1085, 1088 (9th Cir.1989), citing United States v. Odessa Union Warehouse Co-op., 833 F.2d 172, 174 (9th Cir.1987); and Zepeda v. United States I.N.S., 75…
- Dist. of Columbia v. Grp. Ins. Admin., 633 A.2d 2 (D.C. 1993).published(loss of income, without any demonstra *23 tion of lost profits, insufficient to show irreparable harm)
- Bell Atl. Bus. Sys. Servs., Inc. v. Hitachi Data Sys. Corp., 856 F. Supp. 524 (N.D. Cal. 1993).published“(1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips sharply in its favor”
- Associated Gen. Contractors of California, Inc. v. Coalition for Econ. Equity, 950 F.2d 1401 (9th Cir. 1991).published “These formulations are not different tests but represent two points on a sliding scale in which the degree of irreparable harm increases as the probability of success on the merits decreases”
- Associated Gen. Contractors of California, Inc. v. City & Cnty. of San Francisco, 748 F. Supp. 1443 (N.D. Cal. 1990).published“are not different tests but represent two points on a sliding scale in which the de *1447 gree of irreparable harm increases as the probability of success on the merits decreases”
- City of Tenakee Springs v. Clough, 750 F. Supp. 1406 (D. Alaska 1990).publishedBig Country Foods, Inc. v. Bd. of Educ. of Anchorage School District, 868 F.2d 1085, 1088 (9th Cir.1989) (citations omitted).
- Stein v. Barton, 740 F. Supp. 743 (D. Alaska 1990).publishedBig Country Foods, Inc. v. Bd. of Educ. of Anchorage School District, 868 F.2d 1085, 1088 (9th Cir.1989) (citations omitted).
- Wham-O, Inc. v. Paramount Pictures Corp., 286 F. Supp. 2d 1254 (N.D. Cal. 2003).published The two components of this test sit on a kind of sliding scale or “continuum,” Southwest Voter, 344 F.3d at 917 ; thus, “the less certain the district court is of the likelihood of success on the merits, the more plaintiffs must convince t…
- Rucker v. Davis, 203 F.3d 627 (9th Cir. 2000).published“To obtain a preliminary injunction, the moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balan…”
- Quokka Sports, Inc. v. Cup Intern. Ltd., 99 F. Supp. 2d 1105 (N.D. Cal. 1999).published
- Dickinson v. Davis, 29 F.3d 631 (9th Cir. 1994).unpublished
- Jou v. Chang, 350 F. Supp. 2d 862 (D. Haw. 2004).published
- Hoopa Valley Tribe v. Nat'l Marine Fisheries Serv., 230 F. Supp. 3d 1106 (N.D. Cal. 2017).published
- Yurok Tribe v. United States Bureau of Reclamation, 231 F. Supp. 3d 450 (N.D. Cal. 2017).published
At page 1087 Questioning appellate review of district court matters14 citing casesWe 8490 STORMANS, INC. v. SELECKY question the appropriateness of [movant’s] attempt to use the appellate process to resolve a question that must first be resolved in the district court.
- Stormans, Inc. v. Selecky, 571 F.3d 960 (9th Cir. 2009).published (We 8490 STORMANS, INC. v. SELECKY question the appropriateness of [movant’s] attempt to use the appellate process to resolve a question that must first be resolved in the district court.)
- Brian Lowenthal v. Wilshire Com. Props. LLC, No. 2:25-cv-04547 (C.D. Cal. July 23, 2025).Dist., 6 Anchorage, 868 F.2d 1085, 1087 (9th Cir. 1989).
- Stormans, Inc. v. Selecky, 586 F.3d 1109 (9th Cir. 2009).published(We question the appropriateness of [movant’s] attempt to use the appellate process to resolve a question that must first be resolved in the district court.)
- Halo Mgmt., LLC v. Interland, Inc., 308 F. Supp. 2d 1019 (N.D. Cal. 2003).published Dist., 868 F.2d 1085, 1087 (9th Cir.1989).
- Schneider v. California Dep't of Corr., 91 F. Supp. 2d 1316 (N.D. Cal. 2000).published Big Country, 868 F.2d at 1088 (citations omitted); Oakland Tribune, Inc. v. Chronicle Publishing Co., Inc., 762 F.2d 1374, 1376 (9th Cir.1985) (citations omitted).
- Associated Gen. Contractors of California, Inc. v. Coalition for Econ. Equity, 950 F.2d 1401 (9th Cir. 1991).published "These formulations are not different tests but represent two points on a sliding scale in which the degree of irreparable harm increases as the probability of success on the merits decreases." Big Country Foods, 868 F.2d at 1088.
- William McKinney v. George W. Sumner, 944 F.2d 909 (9th Cir. 1991).unpublishedId. at 1087.
- Napa Valley Publ'g Co. v. City of Calistoga, 225 F. Supp. 2d 1176 (N.D. Cal. 2002).publishedSee Schneider v. California Department of Corrections, 91 F.Supp.2d 1316, 1327 (N.D.Cal.2000), citing, Big Country Foods, Inc. v. Board of Educ. of Anchorage School Dist., 868 F.2d 1085, 1087 (9th Cir. 1989).
- Qwest Commc'ns Corp. v. City of Berkeley, 146 F. Supp. 2d 1081 (N.D. Cal. 2001).publishedSee Big Country Foods, Inc. v. Board of Educ. of Anchorage School Dist., 868 F.2d 1085, 1087 (9th Cir.1989).
- Anheuser-Busch, Inc. v. Customer Co., 947 F. Supp. 422 (N.D. Cal. 1996).published
Show 3 more citing cases
- Cabo Distrib. Co. v. Brady, 821 F. Supp. 582 (N.D. Cal. 1992).published
- Joyce v. City & Cnty. of San Francisco, 846 F. Supp. 843 (N.D. Cal. 1994).published
- Bacus v. Palo Verde Unified Sch. Dist. Bd. of Educ., 11 F. Supp. 2d 1192 (C.D. Cal. 1998).published
At page 1086 cited at this page1 citing case
- Big Country Foods, Inc. v. Bd. of Educ. of the Anchorage Sch. Dist., 952 F.2d 1173 (9th Cir. 1992).publishedPortions of this statement of facts appeared in Big Country Foods, 868 F.2d at 1086-87. .
Other citing cases
- United States v. State of California, 921 F.3d 865 (9th Cir. 2019).published
- Pulaski v. Chrisman, 352 F. Supp. 2d 1105 (C.D. Cal. 2005).published
- Cottonwood Christian Ctr. v. Cypress Redevelopment Agency, 218 F. Supp. 2d 1203 (C.D. Cal. 2002).published
- Churchill Vill., L.L.C. v. Gen. Elec. Co., 169 F. Supp. 2d 1119 (N.D. Cal. 2000).published
v.
BOARD OF EDUCATION OF the ANCHORAGE SCHOOL DISTRICT, ANCHORAGE, ALASKA Department of Agriculture Richard E. Lyng, Secretary of Agriculture William Demmert, Commissioner of Education for the State of Alaska
OPINION
WALLACE, Circuit Judge:Big Country Foods, Inc. (Big Country) appeals the district court’s denial of its motion for a preliminary injunction. Big Country, after unsuccessfully bidding for a contract to supply milk to the Anchorage School District for the 1988-89 school year, sought to enjoin the school district from entering into a contract with any supplier other than itself. Big Country also sought to enjoin both the Secretary of the United States Department of Agriculture and Alaska’s Commissioner of Education from authorizing the disbursement of federal funds to the Anchorage School District until its application for permanent injunction is heard. Big Country argued that Alaska statutory procedures used to award the contract violate the federal Constitution’s commerce clause and federal statutes governing the school district’s procurement of milk. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), and we affirm.
I
Big Country is a distributor of milk harvested in the State of Washington. It has been the successful bidder for the contract to supply milk to the Anchorage School District in five of the last eight years. The Anchorage School District receives, via the State of Alaska, federal funds which subsidize the purchase of milk for Anchorage school children. Federal funds are granted to the State of Alaska as a voluntary participant in the Federal School Breakfast Program, 42 U.S.C. § 1771, et seq., and the National School Lunch Program, 42 U.S.C. § 1751, et seq. Participants in these federal programs are required to procure milk “in a manner that provides maximum open and free competition.” Uniform Federal Assistance Regulations, 7 C.F.R. § 3015.182 (1988).
[*1087] Sometime between May 11 and 26, 1988, Big Country submitted a bid of $360,000 for the contract to supply milk to the Anchorage School District for the 1988-89 school year. Two other suppliers, Northern Dairies and Matanuska Maid Dairy, submitted bids of $384,625 and $385,000, respectively. Pursuant to an Alaskan preference statute, Alaska Stat. § 36.15.050(a) (1988), which requires schools receiving state funds to purchase dairy products harvested in the State of Alaska if the price is no more than seven percent higher than products of like quality harvested outside the state, the contract was awarded to Ma-tanuska Maid Dairy. Big Country filed this motion for a preliminary injunction, claiming that the Alaskan preference statute violates the federal Constitution’s dormant commerce clause and the requirement under federal regulations of free and open competition for the procurement of milk.
II
The merits of Big Country’s claims raise a plethora of fascinating and complex issues, such as standing, mootness, ripeness, federalism, statutory interpretation, and the scope of the commerce clause. We need not, indeed cannot, resolve any of these issues due to the posture of this case. Our review of an order denying a preliminary injunction is very limited. Caribbean Marine Services Co. v. Baldrige, 844 F.2d 668, 673 (9th Cir.1988) (Caribbean Marine); Oakland Tribune, Inc. v. Chronical Publishing Co., 762 F.2d 1374, 1376 (9th Cir.1985) (Oakland Tribune); Sports Form, Inc. v. United Press International, Inc., 686 F.2d 750, 752-53 (9th Cir.1982) (Sports Form). The grant or denial of a preliminary injunction lies within the discretion of the district court. United States v. Odessa Union Warehouse Co-op, 833 F.2d 172, 174 (9th Cir.1987), (Odessa Union); Zepeda v. United States Immigration and Naturalization Service, 753 F.2d 719, 724 (9th Cir.1983) (Zepeda); Sports Form, 686 F.2d at 752. We will reverse “only if the district court relied on an erroneous legal premise or abused its discretion.” Sports Form, 686 F.2d at 752. We will not reverse merely because we would have arrived at a different result. Id.
The district court relies on an erroneous legal premise “if the court does not employ the appropriate legal standards which govern the issuance of a preliminary injunction.” Id., citing Los Angeles Memorial Coliseum Commission v. National Football League, 634 F.2d 1197, 1200 (9th Cir.1980). “To determine whether there has been an abuse of discretion, the reviewing court ‘must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.... The [reviewing] court is not empowered to substitute its judgment for that of the [district court].’ ” Sports Form, 686 F.2d at 752, quoting Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971) (citations omitted).
We emphasize again the limited scope of our review of a district court order granting or denying a preliminary injunction. We do so because we are concerned that parties appeal such orders for the purpose of ascertaining, prematurely, our views on the merits. As we repeatedly have cautioned, our disposition in these appeals offers little if any guidance on the proper resolution of the underlying merits. Caribbean Marine, 844 F.2d at 673; Zepeda, 753 F.2d at 724; Sports Form, 686 F.2d at 753. The purpose of a preliminary injunction is to preserve rights pending resolution of the merits of the case by the trial. It ordinarily does not obviate the need to proceed with preparation for trial and trial. An appeal of the district court’s decision on a motion for a preliminary injunction often will result in unnecessary delay to the parties and inefficient use of judicial resources. In this case, for example, Big Country probably could have secured a disposition on the merits of a motion for a permanent injunction in less time than it took to proceed with this appeal. It appears, however, that this case has lain dormant in the district court: Big Country has done nothing towards resolving its action for permanent relief. We question the ap[*1088]propriateness of Big Country’s attempt to use the appellate process to resolve a question that must first be resolved in the district court. Apparently Big Country did not heed our admonitions in Caribbean Marine, Zepeda, and Sports Form.
Ill
To obtain a preliminary injunction, the moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balance of hardships tips sharply in its favor. Odessa Union, 833 F.2d at 174; Sports Form, 686 F.2d at 753; see also Oakland Tribune, 762 F.2d at 1376. These formulations are not different tests but represent two points on a sliding scale in which the degree of irreparable harm increases as the probability of success on the merits decreases. Odessa Union, 833 F.2d at 174; Arcamuzi v. Continental Air Lines, Inc., 819 F.2d 935, 937 (9th Cir.1987) (2-1) (Arcamuzi); Oakland Tribune, 762 F.2d at 1376. Under either formulation, the moving party must demonstrate a significant threat of irreparable injury, irrespective of the magnitude of the injury. Arcamuzi, 819 F.2d at 937; Oakland Tribune, 762 F.2d at 1376; American Passage Media Corp. v. Cass Communications, Inc., 750 F.2d 1470, 1473 (9th Cir.1985).
Big Country argues in its opening brief that the irreparable injury it will suffer if injunctive relief is not granted is the “loss of a contract.” This loss is irreparable, Big Country asserts, because even if it is successful on the merits, Alaskan law provides no monetary damages for this kind of challenge.
Big Country does not articulate the form of injury that “loss of a contract” will cause it to incur, apart from its ambiguous assertion late in its brief that “[i]n the absence of injunctive relief, Big Country will lose a $360,000 contract, a major source of income for a small company.” Income is, of course, not the same as profits. Yet we assume, in light of this cryptic reference and Big Country’s argument with respect to the unavailability of monetary damages under Alaskan law, that Big Country is referring to pecuniary injury— lost profits. If so, we need not decide if Big Country has an adequate remedy at law for this injury. The record is barren of evidence of lost profits. Big Country merely filed an affidavit indicating that its bid was for $360,000. The gross amount of a contract in no way reflects the amount of profit Big Country may have realized had it been awarded the contract. As far as we know, Big Country may have lost money on the contract.
Big Country offers for the first time in its reply brief a new theory of damages. It suggests that its real injury is the inability to participate in a fair bidding procedure; and this injury, it suggests, is irreparable even without a showing of lost profits. For this unique proposition, Big Country cites an out-of-circuit district court decision, United Technologies Communications Co. v. Washington County Board, 624 F.Supp. 185, 188 (D.Minn.1985). United Technologies, in turn, cites no direct authority for this proposition, nor has United Technologies been subsequently cited by any court for this theory. In light of the general rule that an appellant cannot raise a new theory for the first time in its reply brief, we refuse to consider this novel notion of irreparable injury. Oakland Tribune, 762 F.2d at 1376 (refusing to recognize novel theory of irreparable injury not raised in opening brief); see also Northwest Acceptance Corp. v. Lynnwood Equipment, Inc., 841 F.2d 918, 924 (9th Cir.1988). Although the district court did not find that Big Country failed to show irreparable injury, we may affirm on any ground supported by the record. Islamic Republic of Iran v. Boeing Co., 771 F.2d 1279, 1288 (9th Cir.1985). We hold that the district court did not abuse its discretion in denying Big Country’s motion for a preliminary injunction.
AFFIRMED.