                                                                            FILED
                           NOT FOR PUBLICATION                               APR 15 2010

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                           FOR THE NINTH CIRCUIT



NATIONAL ASSOCIATION OF CHAIN                    No. 09-57051
DRUG STORES, and the NATIONAL
COMMUNITY PHARMACISTS                            D.C. No. 2:09-cv-07097-CAS-
ASSOCIATION,                                     MAN

             Plaintiffs - Appellants,
                                                                     *
                                                 MEMORANDUM
  v.

ARNOLD SCHWARZENEGGER, not
individually, but solely in his official
capacity as Governor of the State of
California, KIM BELSHE, not
individually, but solely in her official
capacity as Secretary of the California
Health and Human Services Agency,
DAVID MAXWELL-JOLLY, not
individually, but solely in his official
capacity as Director of the California
Department of Health Care Services, and
THE CALIFORNIA DEPARTMENT OF
HEALTH CARE SERVICES,

             Defendants - Appellees.


                   Appeal from the United States District Court
                       for the Central District of California
                   Christina A. Snyder, District Judge, Presiding


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                               Submitted April 5, 2010
                                Pasadena, California

Before: KOZINSKI, Chief Judge, D.W. NELSON, Circuit Judge, and
GERTNER,** District Judge.
      Appellants are not entitled to a preliminary injunction because the balance of

equities and considerations of public interest weigh in the appellees’ favor. The

injunction that the appellants seek would require California to recalibrate its

established reimbursement formula to counteract the effect of the reduction in

AWPs. This, in turn, would compel California to bear the administrative burdens

associated with amending its state Medicaid plan. See 42 C.F.R. §§ 430.12-.20.

The state should not be required to take on such burdens before the district court

has finally resolved the merits of the appellants’ claims. Thus, regardless of the

appellants’ likelihood of success on the merits of their claims, they are not entitled

to the preliminary injunction that they seek.1 Cf. Winter v. Natural Res. Def.

Council, Inc., 129 S. Ct. 365, 376 (2008) (holding that a preliminary injunction that


          **
             The Honorable Nancy Gertner, United States District Judge for the
District of Massachusetts, sitting by designation.
      1
             Whether the appellants are entitled to a permanent injunction that
would require California to conduct a study to determine whether its
reimbursement formula continues to accord with the factors set forth in 42 U.S.C. §
1396a(a)(30)(A) is a different question. See Orthopaedic Hosp. v. Belshe, 103
F.3d 1491 (9th Cir. 1997). We do not address this issue, leaving it to the district
court to decide in the first instance.

                                          -2-
interfered with the Navy’s ability to conduct effective, realistic training exercises

was an abuse of discretion regardless of the plaintiffs’ showing of irreparable

injury and likelihood of success on the merits).

      AFFIRMED.




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