                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ANGELOTTI CHIROPRACTIC, INC.;            No. 13-56996
MOONEY & SHAMSBOD
CHIROPRACTIC, INC.; CHRISTINA-              D.C. No.
ARANA & ASSOCIATES, INC.; JOYCE          8:13-cv-01139-
ALTMAN INTERPRETERS, INC.;                  GW-JEM
SCANDOC IMAGING, INC.; BUENA
VISTA MEDICAL SERVICES, INC.;
DAVID H PAYNE M.D., INC.,
              Plaintiffs-Appellants,

                  v.

CHRISTINE BAKER, in her official
capacity as Director of the California
Department of Industrial Relations;
RONNIE CAPLANE, in her official
capacity as Chair of the Workers’
Compensation Appeals Board;
DESTIE LEE OVERPECK, in her
official capacity as Acting
Administrative Director of the
California Division of Workers
Compensation,
                Defendants-Appellees.
2         ANGELOTTI CHIROPRACTIC V. BAKER

ANGELOTTI CHIROPRACTIC, INC.;            No. 13-57080
MOONEY & SHAMSBOD
CHIROPRACTIC, INC.; JOYCE                   D.C. No.
ALTMAN INTERPRETERS, INC.;               8:13-cv-01139-
SCANDOC IMAGING, INC.; BUENA                GW-JEM
VISTA MEDICAL SERVICES, INC.;
DAVID H PAYNE M.D., INC.;
CHRISTINA-ARANA & ASSOCIATES,              OPINION
INC.,
               Plaintiffs-Appellees,

                  v.

CHRISTINE BAKER, in her official
capacity as Director of the California
Department of Industrial Relations;
RONNIE CAPLANE, in her official
capacity as Chair of the Workers’
Compensation Appeals Board;
DESTIE LEE OVERPECK, in her
official capacity as Acting
Administrative Director of the
California Division of Workers
Compensation,
               Defendants-Appellants.


      Appeal from the United States District Court
         for the Central District of California
       George H. Wu, District Judge, Presiding

               Argued and Submitted
       November 18, 2014—Pasadena, California
             ANGELOTTI CHIROPRACTIC V. BAKER                           3

                        Filed June 29, 2015

     Before: Mary M. Schroeder and Jacqueline H. Nguyen,
       Circuit Judges and Jack Zouhary,* District Judge.

                    Opinion by Judge Nguyen


                           SUMMARY**


                            Civil Rights

    The panel affirmed the district court’s dismissal of
plaintiffs’ claims under the Takings Clause and Due Process
Clause challenging California Senate Bill 863, vacated the
district court’s preliminary injunction and through pendent
appellate jurisdiction, reversed the district court’s denial of
defendants’ motion to dismiss plaintiffs’ Equal Protection
Clause claim.

    In 2012, California enacted Senate Bill 863 to combat an
acute “lien crisis” in its workers’ compensation system.
These liens are filed by medical providers and other vendors
to seek payment for services provided to an injured worker
with a pending claim. In an effort to clear an enormous and
rapidly growing backlog of these liens, SB 863 imposes a
$100 “activation fee” on entities like plaintiffs for each


 *
   The Honorable Jack Zouhary, District Judge for the U.S. District Court
for the Northern District of Ohio, sitting by designation.
  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4          ANGELOTTI CHIROPRACTIC V. BAKER

workers’ compensation lien filed prior to January 1, 2013.
Plaintiffs sued, claiming that SB 863 violates the Takings
Clause, the Due Process Clause, and the Equal Protection
Clause of the United States Constitution.

    The panel held that the district court properly dismissed
the Takings Clause claim because the economic impact of SB
863 and its interference with plaintiffs’ expectations was not
sufficiently severe to constitute a taking. The panel further
concluded that the lien activation fee did not burden any
substantive due process right to court access and also rejected
plaintiffs’ claim that the retroactive nature of the lien
activation fee violated the Due Process Clause.

    Vacating the district court’s preliminary injunction, the
panel held that the district court abused its discretion in
finding that a “serious question” existed as to the merits of
plaintiffs’ Equal Protection claim. Applying rational basis
review, the panel held that Labor Code § 4903.06(b), which
exempts certain entities other than plaintiffs from having to
pay the lien activation fee, was rationally related to the goal
of clearing the lien backlog. The panel also reversed the
district court’s denial of defendants’ motion to dismiss the
Equal Protection Clause claim because the panel’s ruling on
the preliminary injunction necessarily resolved the motion to
dismiss.
           ANGELOTTI CHIROPRACTIC V. BAKER                  5

                        COUNSEL

Donna M. Dean (argued), Deputy Attorney General, Joel A.
Davis, Supervising Deputy Attorney General, Kristin G.
Hogue, Senior Assistant Attorney General, Kathleen A.
Kenealy, Chief Assistant Attorney General, and Kamala D.
Harris, Attorney General of California, Los Angeles,
California, for Defendants-Appellants & Cross-Appellees.

Glenn E. Summers (argued), Sundeep K. Addy, and Daniel C.
Taylor, Bartlit Beck Herman Palenchar & Scott LLP, Denver,
Colorado; Paul Murphy and Mark Nagle, Murphy Rosen
LLP, Santa Monica, California, for Plaintiffs-Appellees &
Cross-Appellants.

Nicholas P. Roxborough and Anne S. Kelson, Roxborough,
Pomerance, Nye, & Adreani, LLP, Woodland Hills,
California, for Amicus Curiae California Society of Industrial
Medicine and Surgery.

Michael A. Marks, Allweiss & McMurtry, Tarzana,
California, for Amicus Curiae California Workers’
Compensation Institute & American Insurance Association.

Ellen Sims Langille and Katherine F. Theofel, Finnegan,
Marks, Theofel & Desmond, San Francisco, California, for
Amicus Curiae California Chamber of Commerce.

Eric S. Boorstin (argued) and Jeremy B. Rosen, Horvitz &
Levy LLP, Encino, California, for Amicus Curiae State
Compensation Insurance Fund.
6          ANGELOTTI CHIROPRACTIC V. BAKER

                         OPINION

NGUYEN, Circuit Judge:

    In 2012, California enacted Senate Bill 863 (“SB 863”) to
combat an acute “lien crisis” in its workers’ compensation
system. These liens are filed by medical providers and other
vendors to seek payment for services provided to an injured
worker with a pending claim. In an effort to clear an
enormous and rapidly growing backlog of these liens, SB 863
imposes a $100 “activation fee” on entities like plaintiffs for
each workers’ compensation lien filed prior to January 1,
2013. Plaintiffs sued, claiming that SB 863 violates the
Takings Clause, the Due Process Clause, and the Equal
Protection Clause of the United States Constitution.

    We affirm the district court’s dismissal of plaintiffs’
claims under the Takings Clause and Due Process Clause. As
to the Equal Protection claim, however, we vacate the
preliminary injunction and, through pendent appellate
jurisdiction, reverse the district court’s denial of the motion
to dismiss this claim.

                     BACKGROUND

A. Overview of the Workers’ Compensation System

    Employers in California typically provide medical care
and other services to employees for work-related injuries.
See generally Cal. Lab. Code §§ 3600, et seq. An employer
or its workers’ compensation insurer may choose to provide
medical care to workers through the employer’s Medical
Provider Network (“MPN”), 2 Witkin, Summ. Cal. Law,
Work. Comp. § 262 (10th ed. 2005), its Health Care
            ANGELOTTI CHIROPRACTIC V. BAKER                   7

Organization (“HCO”), Cal. Lab. Code § 4600.3, or neither
of these. An MPN is a group of health care providers
selected by an employer or insurer to treat injured workers,
and an HCO is a managed care organization that contracts
with an employer to provide managed medical care.

    In certain cases, an employer or its insurer might decline
to provide medical treatment to an injured employee on the
grounds that an injury is not work-related or the treatment is
not medically necessary. An injured worker may then seek
medical treatment on his or her own, and, if the injury is later
deemed work-related and the treatment medically necessary,
the employer is liable for the “reasonable expense” incurred
in providing treatment, which may include ancillary services
such as an interpreter to facilitate treatment. Cal. Lab. Code
§ 4600(a), (f); 2 Witkin, Summ. Cal. Law, Work. Comp.
§ 264; Guitron v. Santa Fe Extruders, 76 Cal. Comp. Cases
228, at *9 (WCAB 2011). An employer also may be liable
for “medical-legal expenses” necessary “for the purpose of
proving or disproving a contested claim” for workers’
compensation benefits, such as diagnostic tests, lab fees, and
medical opinions. Cal. Lab. Code § 4620(a).

    A provider of services—whether for medical treatment,
ancillary services, or medical-legal services—may not seek
payment directly from the injured worker. Id. § 3751(b). Nor
may a provider seek payment through the filing of a civil
action against the employer or its insurer. Vacanti v. State
Comp. Ins. Fund, 24 Cal. 4th 800, 815 (2001) (“[C]laims
seeking compensation for services rendered to an employee
in connection with his or her workers’ compensation claim
fall under the exclusive jurisdiction of the [Workers’
Compensation Appeals Board].”). Instead, these providers
may seek compensation by filing a lien in the injured
8           ANGELOTTI CHIROPRACTIC V. BAKER

employee’s workers’ compensation case. See generally
Rassp & Herlick, Cal. Workers’ Comp. Law ch. 17 (Lexis
2014). The filing of a lien entitles a provider to participate in
the workers’ compensation proceeding in order to protect its
interests. Id. § 17:111[5]. After the underlying workers’
compensation case is adjudicated, a “lien conference” is held
to discuss the liens that have not already been resolved
through settlement. Id. § 17:113. Any issues not resolved at
the lien conference will be set for a “lien trial.” Id.

    Whether a provider of medical or ancillary services
obtains payment on its lien depends on the result reached in
the underlying case. These providers are entitled to payment
of their liens if the injured worker establishes that the injury
was work-related and that the medical treatment provided was
“reasonably required to cure or relieve the injured worker
from the effects of his or her injury.” Cal. Lab. Code § 4600;
see also id. § 4903.

    Providers of medical-legal services must demonstrate that
the expense was “reasonably, actually, and necessarily
incurred,” Cal. Labor Code § 4621, “for the purpose of
proving or disproving a contested” workers’ compensation
claim, Rassp & Herlick § 17.70[1](c) (quoting Cal. Lab. Code
§ 4620(a)). Medical-legal lien claimants may still obtain
payment even if the injured worker does not prevail in the
underlying workers’ compensation proceeding, provided that
the medical-legal expenses are “credible and valid.” Id.

B. The Lien Crisis and SB 863

   The parties do not dispute that California’s workers’
compensation system is overwhelmed by liens, with a
substantial backlog that is growing rapidly. On September
            ANGELOTTI CHIROPRACTIC V. BAKER                    9

18, 2012, California enacted SB 863, which aims to address
the “lien crisis,” described in a January 5, 2011 report
prepared by the California Commission on Health and Safety
and Workers’ Compensation (“Commission Report”). The
Commission Report noted that the workers’ compensation
courts lacked “the capacity to handle all the lien disputes”
that were filed. For example, the Los Angeles Office of the
Workers’ Compensation Appeals Board devotes 35 percent
of its time to lien-related matters, and even though it resolves
liens at the rate of approximately 2,000 per month as of
October 2010, the rate of filings is such that the backlog of
unresolved liens grows by approximately 2,000 per month, on
top of the pre-existing backlog of 800,000. According to the
Commission Report, the backlog has two effects. First,
frivolous liens remain pending for years rather than being
denied outright, resulting in the employer paying to settle just
to close the case. Second, meritorious liens are delayed,
which means that employers can deny these claims with
impunity for years. One of the reforms recommended by the
Commission Report is the institution of a lien filing fee in
order to deter the filing of liens generally, and particularly to
deter the filing of frivolous liens.

    SB 863 imposes a $150 filing fee for all liens filed on or
after January 1, 2013. Cal. Lab. Code § 4903.05(c)(1).
Plaintiffs do not challenge the filing fee in this action. More
pertinently, SB 863 imposes a $100 “activation fee” for
pending liens filed prior to January 1, 2013, which must be
paid at the time that a declaration of readiness is filed for a
lien conference. Id. § 4903.06(a)(1), (2). Any lien for which
the activation fee is not paid by January 1, 2014, is
“dismissed by operation of law.” Id. § 4903.06(a)(5). The
purpose of these fees, according to a report of the State
Assembly’s Committee on Insurance, is to “provide a
10         ANGELOTTI CHIROPRACTIC V. BAKER

disincentive to file frivolous liens.” The lien activation fee
provision exempts the following entities:

       a health care service plan licensed pursuant to
       Section 1349 of the Health and Safety Code,
       a group disability insurer under a policy
       issued in this state pursuant to the provisions
       of Section 10270.5 of the Insurance Code, a
       self-insured employee welfare benefit plan, as
       defined in Section 10121 of the Insurance
       Code, that is issued in this state, a Taft-
       Hartley health and welfare fund, or a publicly
       funded program providing medical benefits on
       a nonindustrial basis.

Id. § 4903.06(b).

    A lien claimant may recover reimbursement for the
activation fee by taking the following steps: first, 30 or more
days prior to filing a lien or a declaration of readiness for a
lien conference, the lien claimant must make a “written
demand for settlement of the lien claim for a clearly stated
sum;” second, the defendant (i.e., the entity owing on the
lien) must fail to accept the settlement within 20 days of
receipt of the settlement demand; and third, after submission
of the lien dispute to an arbitrator or the Workers’
Compensation Appeals Board, “a final award is made in favor
of the lien claimant of a specified sum that is equal to or
greater than the amount of the settlement demand.” Cal. Lab.
Code § 4903.07(a). This section does not preclude
reimbursement of the activation fee pursuant to “the express
terms of an agreed disposition of a lien dispute.” Id.
§ 4903.07(b).
              ANGELOTTI CHIROPRACTIC V. BAKER                          11

C. The Present Action

    Plaintiffs sued various state officials and agencies1
asserting claims for violations of the Takings Clause, the Due
Process Clause, and the Equal Protection Clause of the United
States Constitution.2 Plaintiffs filed a motion for a
preliminary injunction, and defendants moved to dismiss
plaintiffs’ complaint for failure to state a claim. After hearing
argument and issuing multiple written tentative rulings, the
district court dismissed plaintiffs’ Due Process and Takings
claims without leave to amend and entered final judgment as
to those claims pursuant to Federal Rule of Civil Procedure
54(b). The court denied defendants’ motion to dismiss the
Equal Protection claim. The court also issued a preliminary
injunction in plaintiffs’ favor as to the Equal Protection
claim, but not as to the other claims. Defendants appeal the
district court’s issuance of the preliminary injunction and its
denial of the motion to dismiss the Equal Protection claim.
Plaintiffs cross-appeal as to the dismissal of their Takings and
Due Process claims.



  1
    The plaintiffs are Angelotti Chiropractic, Inc., Mooney & Shamsbod
Chiropractic, Inc., Christina-Arana & Associates, Inc., Joyce Altman
Interpreters, Inc., Scandoc Imaging, Inc., Buena Vista Medical Services,
Inc., and David H. Payne, M.D., Inc. Defendants are Christine Baker, in
her official capacity as the Director of the California Department of
Industrial Relations, Ronnie Caplane, in her official capacity as Chair of
the Workers’ Compensation Appeals Board, and Destie Lee Overpeck, in
her official capacity as Acting Administrative Director of the California
Division of Worker’ Compensation.
  2
    Plaintiffs also assert a stand-alone claim under 42 U.S.C. § 1983. In
the district court and on appeal, the parties do not address this claim. We
follow their lead.
12          ANGELOTTI CHIROPRACTIC V. BAKER

     JURISDICTION AND STANDARD OF REVIEW

    The district court had jurisdiction pursuant to 28 U.S.C.
§ 1331. We have jurisdiction over the district court’s order
dismissing the Takings and Due Process claims pursuant to
28 U.S.C. §§ 1291, as a result of the district court’s
certification pursuant to Federal Rule of Civil Procedure
54(b). See, e.g., Ariz. State Carpenters Pension Trust Fund
v. Miller, 938 F.2d 1038, 1039–40 (9th Cir. 1991). We have
jurisdiction over the district court’s preliminary injunction
order pursuant to 28 U.S.C. § 1292(a)(1), and we have
pendent appellate jurisdiction over the district court’s denial
of defendants’ motion to dismiss the Equal Protection claim.
See Arc of Cal. v. Douglas, 757 F.3d 975, 993 (9th Cir. 2014).

     We review de novo the district court’s dismissal of the
Takings and Due Process claims and accept factual
allegations in the complaint as true. Flores v. Cnty. of L.A.,
758 F.3d 1154, 1156 n.2, 1158 (9th Cir. 2014). We review the
district court’s decision to grant a preliminary injunction for
abuse of discretion. See Pimentel v. Dreyfus, 670 F.3d 1096,
1105 (9th Cir. 2012). In conducting that review, we consider
whether plaintiffs are “likely to succeed on the merits, . . .
likely to suffer irreparable harm in the absence of preliminary
relief,” whether “the balance of equities tips in [their favor],”
and whether “an injunction is in the public interest. Alliance
for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.
2011) (quoting Winter v. Natural Res. Def. Council, 555 U.S.
7, 20 (2008)). “Serious questions going to the merits and
hardship balance that tips sharply towards [plaintiffs] can
[also] support issuance of a[] [preliminary] injunction,” so
long as there is a likelihood of irreparable injury and the
injunction is in the public interest.” Id. at 1132 (internal
quotation marks omitted).
            ANGELOTTI CHIROPRACTIC V. BAKER                   13

                        DISCUSSION

    Plaintiffs challenge the district court’s dismissal of their
Takings and Due Process claims.              On cross-appeal,
defendants challenge the district court’s issuance of the
preliminary injunction on the Equal Protection claim.
Defendants also argue that the court erred in denying their
motion to dismiss the Equal Protection claim. We address
each claim in turn.

A. Takings

    Plaintiffs contend that the lien activation fee violates the
Takings Clause of the Fifth Amendment, which prohibits the
taking of private property “for public use, without just
compensation.” U.S. Const. amend. V. The Takings Clause
protects property interests created by independent sources
such as state law, but does not itself create property interests.
Bowers v. Whitman, 671 F.3d 905, 912–14 (9th Cir. 2012).
The property interest must be “vested.” In other words, “if
the property interest is ‘contingent and uncertain’ or the
receipt of the interest is ‘speculative’ or ‘discretionary,’ then
the government’s modification or removal of the interest will
not constitute a . . . taking.” Id. (citing Engquist v. Or. Dep’t
of Agric., 478 F.3d 985, 1002–04 (9th Cir. 2007)).

    Here, the workers’ compensation liens are not property
interests protected by the Takings Clause. First, the right to
workers’ compensation benefits is “wholly statutory,” and
such rights are not vested until they are “reduced to final
judgment.” Graczyk v. Workers’ Comp. Appeals Bd.,
184 Cal. App. 3d 997, 1006 (1986). In Graczyk, plaintiff
Ricky Graczyk, a varsity football player at California State
University, Fullerton (“CSUF”), sustained a series of head,
14         ANGELOTTI CHIROPRACTIC V. BAKER

neck, and spine injuries in 1977 and 1978. Id. at 1000.
Graczyk sought workers’ compensation benefits from CSUF
on the grounds that his status as a student athlete qualified
him as an employee of CSUF within the definition of the
California Labor Code. Id. A workers’ compensation judge
agreed, and found Graczyk eligible for workers’
compensation benefits. Id. at 1001. While the judge
acknowledged that, in 1981, the Legislature expressly
excluded student athletes from the definition of “employee,”
the judge nevertheless found that the new definition could not
be applied retroactively to “deprive [Graczyk] of his vested
right to employee status under the law existing at the time of
his injury.” Id.

    The Workers’ Compensation Appeals Board reversed,
and the Court of Appeal affirmed. Id. at 1001–09. The court
reasoned that Graczyk’s “inchoate right to benefits under the
workers’ compensation law is wholly statutory and had not
been reduced to final judgment before the [1981 amendment].
Hence, [Graczyk] did not have a vested right . . . .” Id. at
1006. The court explained that, “[w]here a right of action
does not exist at common law, but depends solely on statute,
the repeal of the statute destroys the inchoate right unless it
has been reduced to final judgment.” Id. at 1006–07; see also
Beverly Hilton Hotel v. Workers’ Comp. Appeals Bd.,
176 Cal. App. 4th 1597, 1605 (2009) (citing Graczyk for the
proposition that “[w]orkers’ compensation awards may
become null by subsequent legislation enacted prior to a final
judgment”); S. Coast Regional Comm’n v. Gordon, 84 Cal.
App. 3d 612, 619 (1978) (noting that “a statutory remedy
does not vest until final judgment since it has been held in a
long line of cases that the repeal of a statute creating a
penalty, running to either an individual or the state, at any
            ANGELOTTI CHIROPRACTIC V. BAKER                    15

time before final judgment, extinguishes the right to recover
the penalty” (internal quotation marks omitted)).

    Since an injured workers’ right to benefits does not vest
until final judgment, the same is true for the liens at issue
here, which are derivative of the underlying workers’
compensation claim. See Perrillo v. Picco & Presley,
157 Cal. App. 4th 914, 929 (2007) (noting that a lien
claimant’s rights to medical-legal costs are “derivative” of the
injured worker’s rights). Medical and ancillary lienholders
have the right to recover on the lien only upon a
determination that the expense was “reasonably required to
cure or relieve the injured worker from the effects of his or
her injury.” Cal. Lab. Code § 4600. Similarly, medical-legal
lien claimants must also demonstrate that an expense is
“incurred . . . for the purpose of proving or disproving a
contested” workers’ compensation claim, even if the injured
worker does not prevail in the underlying claim. Rassp &
Herlick § 17.70[1](c) (quoting Cal. Lab. Code § 4620(a)).
Thus, because the right to workers’ compensation benefits
does not vest until reduced to a final judgment, it would be
illogical to reach a different conclusion as to the liens.

    Plaintiffs’ reliance on In re Aircrash in Bali, Indonesia on
April 22, 1974, 684 F.2d 1301, 1312 (9th Cir. 1982), is
unpersuasive. There, the claim for compensation at issue was
a jury verdict for damages, id. at 1304, and even though it
was not reduced to a final judgment because it was still
pending on appeal, id., a jury award is substantially more
final than a pending workers’ compensation lien, which is
derivative of rights yet to be adjudicated at all. Plaintiffs also
cite several Supreme Court cases that have identified liens as
property protected by the Takings Clause. These cases do not
help plaintiffs because they address liens secured by a
16          ANGELOTTI CHIROPRACTIC V. BAKER

specific piece of property. See Louisville Joint Stock Land
Bank v. Radford, 295 U.S. 555, 573–75 (1935) (mortgage lien
secured by 170 acre farm); Armstrong v. United States,
364 U.S. 40, 41 (1960) (lien secured by boat hulls); United
States v. Sec. Indus. Bank, 459 U.S. 70, 71–72 (1982) (lien
secured by interest in household furnishings). Here, by
contrast, the liens are unsecured, and act as a placeholder for
the possibility of a future recovery in a lien trial following the
adjudication of the underlying workers’ compensation claim.

    Finally, plaintiffs argue that the lien activation fee
constitutes a taking of the services that they have already
provided to injured workers because the fee requires them to
pay large sums of money ($100, many times over) to save
their liens from dismissal. As the district court properly
found, the services were provided to the injured workers, not
the state, and were provided before the enactment of SB 863,
and thus could not have been “taken” by that legislation.
While we agree that “an unreasonable amount of required
uncompensated service” might qualify as a taking, Family
Div. Trial Lawyers of Sup. Ct.-D.C., Inc. v. Moultrie,
725 F.2d 695, 705–06 (D.C. Cir. 1984), plaintiffs here were
never under any compulsion to provide services. Rather, they
rendered these services freely, with the expectation that they
might be compensated through the lien system. Provided that
the activation fee is paid, SB 863 does not affect plaintiffs’
ability to obtain payment on outstanding liens. Moreover, by
using the offer of settlement procedure set forth in Labor
Code § 4903.07(a), plaintiffs can preserve the possibility of
obtaining reimbursement of the fee.              Under these
circumstances, we conclude that the district court properly
dismissed the Takings claim because the economic impact of
SB 863 and its interference with plaintiffs’ expectations is not
sufficiently severe to constitute a taking. Cf. Managed
            ANGELOTTI CHIROPRACTIC V. BAKER                   17

Pharmacy Care v. Sebelius, 716 F.3d 1235, 1252 (9th Cir.
2013) (holding that change in Medicaid reimbursement rates
did not give rise to a Takings claim because medical provider
participation in the program is voluntary).

B. Due Process

     We next turn to plaintiffs’ claim that the lien activation
fee violates their due process rights. The Due Process Clause
of the Fourteenth Amendment provides that “[n]o State shall
. . . deprive any person of life, liberty, or property, without
due process of law.” U.S. Const. amend. XIV, § 1.

    Plaintiffs argue that the lien activation fee provisions
burden their substantive due process right of access to the
courts, as set forth in Boddie v. Connecticut, 401 U.S. 371
(1971), and Payne v. Superior Court, 553 P.2d 565 (Cal.
1976). In Boddie, the Supreme Court struck down a filing fee
that prevented indigent litigants from obtaining a divorce.
401 U.S. at 380–82. The Court reasoned that court
proceedings were “the sole means in Connecticut for
obtaining a divorce,” id. at 380, and noted the “basic
importance” of marriage in society, id. at 376. In Payne, the
California Supreme Court held that a prisoner had a due
process right to attend, or at least meaningfully participate in,
civil proceedings initiated against him despite his
incarceration. 553 P.2d at 570–73. Citing Boddie, the
California Court explained that “a defendant in a civil case
seeks not merely the benefit of a statutory expectancy, but the
protection of property he already owns or may own in the
future.” Payne, 553 P.2d at 571. Thus, the prisoner had been
“[f]ormally thrust into the judicial process,” and therefore had
“no alternative to the court system to protect his interests.”
Id. at 572.
18          ANGELOTTI CHIROPRACTIC V. BAKER

     Here, by contrast, plaintiffs have not been “thrust” into
the judicial process. Cf. id. Nor is formal adjudication of the
lien the only way for plaintiffs to obtain payment, cf. Boddie,
401 U.S. at 380, since they are not barred from settling lien
disputes out of court. Moreover, this case does not present a
weighty societal concern on the level of the institution of
marriage. Cf. id. The lien activation fee here is more akin to
filing fees in conventional litigation scenarios, in which the
Supreme Court has rejected due process challenges. See
United States v. Kras, 409 U.S. 434, 443–46 (1973)
(upholding bankruptcy filing fee because bankruptcy did not
involve “fundamental interest” on the order of marriage, and
a debtor may resolve disputes with creditors through other
avenues besides the courts); Ortwein v. Schwab, 410 U.S.
656, 659 (1973) (upholding filing fee for action challenging
reduction in welfare payments because a pre–reduction
hearing was provided, and the interest in welfare is of “far
less constitutional significance than the interest of the Boddie
appellants”); see also Roller v. Gunn, 107 F.3d 227, 233 (4th
Cir. 1997) (explaining that filing fee for litigation by indigent
prisoner merely “places the . . . prisoner in a position similar
to that faced by those whose basic costs of living are not paid
by the state . . . [a prisoner] must weigh the importance of
redress before resorting to the legal system”). For these
reasons, we conclude that the lien activation fee does not
burden any substantive due process right to court access.

    We also reject plaintiffs’ claim that the retroactive nature
of the lien activation fee violates the Due Process Clause.
While courts will presume that statutes are intended to
operate prospectively, Landgraf v. USI Film Products,
511 U.S. 244, 265–73 (1994), and “stricter limits may apply
to [a legislature’s] authority when legislation operates in a
retroactive manner,” Eastern Enters. v. Apfel, 524 U.S. 498,
            ANGELOTTI CHIROPRACTIC V. BAKER                    19

524 (1998) (plurality opinion), a statute that the legislature
clearly intended to operate retroactively will be upheld if its
retroactivity is “justified by a rational legislative purpose.”
United States v. Carlton, 512 U.S. 26, 31 (1994) (quoting
Pension Benefit Guaranty Corporation v. R.A. Gray & Co.,
467 U.S. 717, 729–30 (1984)).

    Here, there is no dispute that the California Legislature
intended for the lien activation fee to operate retroactively.
See Cal. Lab. Code § 4903.06(a) (requiring payment of
activation fee for “[a]ny lien filed . . . prior to January 1,
2013”). And, as discussed below in our analysis of the Equal
Protection claim, the lien activation fee provisions are
“justified by [the] rational legislative purpose” of clearing the
lien backlog. See Carlton, 512 U.S. at 31. We thus conclude
that the retroactivity of the lien activation fee does not violate
the Due Process Clause.

    Plaintiffs’ reliance on Untermyer v. Anderson, 276 U.S.
440 (1928) and Nichols v. Coolidge, 274 U.S. 531 (1927), is
unpersuasive. In those cases, the Supreme Court invalidated
taxes that operated retroactively. The Court recently cited
those cases for the proposition that the retroactive application
of a “wholly new tax” may be constitutionally problematic.
See Carlton, 512 U.S. at 34. However, the Court also
expressed skepticism as to the degree to which Nichols and
Untermyer still apply, since “those cases were decided during
an era characterized by exacting review of economic
legislation under an approach that has long since been
discarded.” Id. (internal quotation marks omitted). The
Court emphasized that the modern framework for evaluating
retroactive taxation “‘does not differ from the prohibition
against arbitrary and irrational legislation’ that applies
generally to enactments in the sphere of economic policy.”
20          ANGELOTTI CHIROPRACTIC V. BAKER

Id. (quoting Pension Benefit Guaranty Corp., 467 U.S. at
733). Thus, even assuming, without deciding, that the lien
activation fee is analogous to a tax, its retroactive effect does
not violate due process because its retroactivity is justified by
a rational legislative purpose.

C. Equal Protection

    Finally, we turn to defendants’ claim that the district court
abused its discretion in issuing a preliminary injunction on
the ground that the lien activation fee violates the Equal
Protection Clause, and that the court further erred in denying
their motion to dismiss this same claim.

     1. Preliminary Injunction

    The Equal Protection Clause of the Fourteenth
Amendment provides that “[n]o State shall . . . deny to any
person within its jurisdiction the equal protection of the
laws.” U.S. Const. amend. XIV, § 1.

    Plaintiffs contend that Labor Code § 4903.06(b)’s
exemption of certain entities other than plaintiffs from having
to pay the lien activation fee violates the Equal Protection
Clause. Plaintiffs also argue that strict scrutiny applies in
evaluating the exemption because the activation fee trenches
on a fundamental right of access to the courts. As an initial
matter, we reject plaintiffs’ argument that strict scrutiny
applies because, as discussed above, the lien activation fee
does not implicate any fundamental right. Moreover, it is
well settled that equal protection challenges to economic
legislation such as SB 863 are evaluated under rational basis
review. See, e.g., FCC v. Beach Comm’cns, Inc., 508 U.S.
307, 313 (1993). We accordingly apply rational basis review
            ANGELOTTI CHIROPRACTIC V. BAKER                  21

in considering whether Labor Code § 4903.06(b) violates the
Equal Protection Clause.

    Under rational basis review, legislation that does not draw
a distinction along suspect lines such as race or gender passes
muster under the Equal Protection Clause as long as “there is
any reasonably conceivable state of facts that could provide
a rational basis for the classification.” FCC v. Beach
Comm’cns, Inc., 508 U.S. 307, 313 (1993). Thus, a
legislative classification must be upheld

       so long as there is a plausible policy reason
       for the classification, the legislative facts on
       which the classification is apparently based
       rationally may have been considered to be
       true by the governmental decisionmaker, and
       the relationship of the classification to its goal
       is not so attenuated as to render the distinction
       arbitrary or irrational.

Nordlinger v. Hahn, 505 U.S. 1, 11 (1992) (citations
omitted); see also Armour v. City of Indianapolis, 132 S. Ct.
2073, 2079–80 (2012).

    Here, one “plausible policy” goal, see Nordlinger,
505 U.S. at 11, for the imposition of the lien activation fee is
to help clear the lien backlog by forcing lienholders to
consider whether a lien claim is sufficiently meritorious to
justify spending $100 to save it from dismissal. In turn, the
California Legislature’s decision to impose the activation fee
on entities like plaintiffs, while exempting other entities, is
rationally related to the goal of clearing the backlog because
the Legislature might have rationally concluded that the non-
exempt entities are primarily responsible for the backlog. In
22          ANGELOTTI CHIROPRACTIC V. BAKER

this regard, the Commission Report states that ten of the
eleven top electronic lien filers are independent providers.
Thus, the Legislature could have rationally found that
independent service providers bore primary responsibility for
the lien backlog, and therefore elected to focus on those
entities in imposing the activation fee.

    The Legislature’s approach also is consistent with the
principle that “the legislature must be allowed leeway to
approach a perceived problem incrementally.” Beach
Commc’ns, 508 U.S. at 316; see also Silver v. Silver, 280 U.S.
117, 124 (1929) (stating that “[i]t is enough that the present
statute strikes at the evil where it is felt and reaches the class
of cases where it most frequently occurs.”). Targeting the
biggest contributors to the backlog—an approach that is both
incremental, see Beach Commc’ns, 508 U.S. at 316, and
focused on the group that “most frequently” files liens, see
Silver, 280 U.S. at 124,—is certainly rationally related to a
legitimate policy goal. Therefore, on this record, “the
relationship of the classification to [the Legislature’s] goal is
not so attenuated as to render the distinction arbitrary or
irrational.” Nordlinger, 505 U.S. at 11.

    Moreover, on rational basis review, the burden is on
plaintiffs to negate “every conceivable basis” which might
have supported the distinction between exempt and non-
exempt entities. See Armour, 132 S. Ct. at 2080–81. The
district court did not put plaintiffs to their burden of
demonstrating a “likelihood” or “serious question” that they
would be able to refute all rationales for this distinction and
its relationship to the goal of clearing the backlog. See
Winter v. Natural Resources Def. Council, 555 U.S. 7, 20
(2008); Alliance for the Wild Rockies v. Cottrell, 632 F.3d
1127, 1134–35 (9th Cir. 2011). Rather, the district court
              ANGELOTTI CHIROPRACTIC V. BAKER                            23

rejected defendants’ argument that the activation fee was
aimed at clearing the lien backlog, stating:

         the backlog is the backlog, and if clearing it is
         your purpose, then you attempt to clear it. It
         makes little sense to clear only part of it. The
         Court might also question the basis for the
         legislature's belief in its apparent conclusion
         that the exempted entities, in particular, are
         not major contributors to the backlog (and
         why other contributors who might also not be
         major contributors are not also exempted from
         the activation fee).

This reasoning runs contrary to Beach Communications and
Silver because it denies the Legislature the leeway to tackle
the lien backlog piecemeal, focusing first on a source of liens
that it could have rationally viewed as the biggest contributor
to the backlog. Also, the district court’s skepticism of the
notion that the exempted entities were not major contributors
of the backlog ran afoul of the principle that “a legislative
choice is not subject to courtroom fact-finding and may be
based on rational speculation unsupported by evidence or
empirical data.” See Beach Commc’ns, 508 U.S. at 315; see
also City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976)
(per curiam) (stating that “rational [legislative] distinctions
may be made with substantially less than mathematical
exactitude”).3


  3
    Plaintiffs cite a portion of the oral argument transcript in the district
court in which plaintiffs’ counsel asserted, based on a public records
request, that Kaiser Foundation Hospitals and Anthem Blue Cross, both
exempt entities, rank at number six and number seven on a list of the
state’s largest lienholders. This assertion of counsel has no documentary
24           ANGELOTTI CHIROPRACTIC V. BAKER

    Finally, we are not persuaded by plaintiffs’ reliance on
Lindsey v. Normet, 405 U.S. 56, 77–80 (1972). In Lindsey, an
Oregon statute required tenants wishing to appeal an order of
eviction to file “an undertaking with two sureties for the
payment of twice the rental value of the premises.” Id. at
75–76. This amount would be forfeited by the tenant if the
appeal was unsuccessful. Id. Oregon law imposed no such
double surety requirement on any other litigants in any other
civil proceedings. Id. The Supreme Court held that this
requirement, imposed only on defendants appealing from
eviction proceedings in which they did not prevail in the trial
court, was arbitrary and irrational because no other appellant
in Oregon was “subject to automatic assessment of unproved
damages,” the landlord was already protected by traditional
appeal bond requirements, and the double-bond requirement
did not operate to screen out frivolous appeals because it “not
only bars nonfrivolous appeals by those who are unable to
post the bond but also allows meritless appeals by others who
can afford the bond.” Id. at 78. The Court focused on the
fact that “the discrimination against the poor, who could pay
their rent pending an appeal but cannot post the double bond,
is particularly obvious,” and the traditional bond
requirements were sufficient to protect the landlord’s
interests. Id. at 77–79. Indeed, Lindsey relies on a line of
Supreme Court cases, including Griffin v. Illinois, 351 U.S.
12, 19 (1956) that looks with particular disfavor on laws that
erect barriers to an indigent litigant’s access to the appellate
process. See Lindsey, 405 U.S. at 77 (citing cases). By
contrast, this case does not present issues of indigency or


support in the record before us. And, even if it did, the fact that the
distinction drawn by the Legislature is imperfect because it exempts some
large lienholders will not render it invalid on rational basis review. See
Dukes, 427 U.S. at 303.
            ANGELOTTI CHIROPRACTIC V. BAKER                  25

discrimination against the poor, and thus Lindsey does not
guide our analysis.

    In sum, we conclude that the district court abused its
discretion in finding that a “serious question” exists as to the
merits of plaintiffs’ Equal Protection claim. In the absence of
a “serious question” going to the merits of this claim, the
preliminary injunction must be vacated. See Alliance for the
Wild Rockies, 632 F.3d at 1134–35.

   2. Motion to Dismiss

     In addition to challenging the preliminary injunction,
defendants seek reversal of the district court’s denial of their
motion to dismiss plaintiffs’ Equal Protection claim because
it is “inextricably intertwined” with the resolution of the
court’s ruling on the preliminary injunction.

    Denial of a motion under Federal Rule of Civil Procedure
12(b)(6) is “generally . . . not a reviewable final order.”
Jensen v. City of Oxnard, 145 F.3d 1078, 1082 (9th Cir.
1998). While an appellate court reviewing an appealable
order may exercise pendent appellate jurisdiction over an
otherwise non-appealable order, the two orders must be
“inextricably intertwined.” Streit v. County of Los Angeles,
236 F.3d 552, 559 (9th Cir. 2001). In other words, the two
orders must “raise the same issues, use the same legal
reasoning, and reach the same conclusions.” Id. Two issues
(or orders) are not “inextricably intertwined” if they are
governed by different legal standards. Cunningham v. Gates,
229 F.3d 1271, 1285 (9th Cir. 2000).

    “Although the standards for a motion for preliminary
injunctive relief and dismissal under Rule 12(b)(6) are not
26          ANGELOTTI CHIROPRACTIC V. BAKER

conterminous, they overlap where a court determines that the
plaintiff has no chance of success on the merits.” Arc of Cal.
v. Douglas, 757 F.3d 975, 993 (9th Cir. 2014) (exercising
pendent appellate jurisdiction over dismissal under Rule
12(b)(6) where the district court ordered dismissal “for the
selfsame reason” that it denied a preliminary injunction).
This is so because a complaint cannot state a plausible claim
for relief if there is “no chance of success on the merits.” Id.
(quoting E. & J. Gallo Winery v. Andina Licores S.A.,
446 F.3d 984, 990 (9th Cir. 2006)). Here, our conclusion that
the exemption provision is rationally related to the purpose of
clearing the lien backlog amounts to a determination that
plaintiffs have no chance of success on the merits because,
regardless of what facts plaintiffs might prove during the
course of litigation, “a legislative choice is not subject to
courtroom fact-finding and may be based on rational
speculation unsupported by evidence or empirical data.” See
Beach Commc’ns, 508 U.S. at 315. Thus, the presence in the
Commission Report of evidence suggesting that non-exempt
entities are the biggest contributors to the backlog is
sufficient to eliminate any chance of plaintiffs succeeding on
the merits. Accordingly, we exercise pendent appellate
jurisdiction over the district court’s denial of the motion to
dismiss, and reverse.

                      CONCLUSION

   The district court properly dismissed plaintiffs’ Takings
and Due Process claims. We likewise conclude dismissal
without leave to amend is proper because “it is clear, upon de
novo review, that the [claims] could not be saved by . . .
amendment.” Steckman v. Hart Brewing, Inc., 143 F.3d
1293, 1296 (9th Cir. 1998). However, because the district
court abused its discretion in concluding that “serious
           ANGELOTTI CHIROPRACTIC V. BAKER                 27

questions” exist as to the merits of plaintiffs’ Equal
Protection claim, we vacate the preliminary injunction. We
also reverse the district court’s denial of defendants’ motion
to dismiss the Equal Protection claim because our ruling on
the preliminary injunction necessarily resolves the motion to
dismiss.

  AFFIRMED in part, VACATED in part, and
REVERSED in part.

   Costs are awarded to defendants.
