Paulson v. City of San Diego , 475 F.3d 1047 ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PHILIP K. PAULSON, 
Plaintiff-Appellee,
and
SOCIETY OF SEPARATIONISTS INC.,
Plaintiff,
v. No. 06-55769
CITY OF SAN DIEGO, aka City of  D.C. No.
San Diego California, CV-89-00820-GT
Defendant-Appellant,
and
MT. SOLEDAD MEMORIAL
ASSOCIATION, INC.,
Defendant.

427
428 PAULSON v. CITY OF SAN DIEGO
PHILIP K. PAULSON, 
Plaintiff-Appellee,
SAN DIEGANS FOR THE MT. SOLEDAD
NATIONAL WAR MEMORIAL,
Appellant,
and
SOCIETY OF SEPARATIONISTS INC.,
No. 06-55835

Plaintiff,
D.C. No.
v.
CV-89-00820-GT
CITY OF SAN DIEGO, aka City of
San Diego California,
Defendant,
and
MT. SOLEDAD MEMORIAL
ASSOCIATION, INC.,
Defendant-Appellant.

PHILIP K. PAULSON, 
Plaintiff-Appellee,
SAN DIEGANS FOR THE MT. SOLEDAD
NATIONAL WAR MEMORIAL, No. 06-55919
Appellant,
v.  D.C. No.
CV-89-00820-GT
CITY OF SAN DIEGO, aka City of OPINION
San Diego California; MT.
SOLEDAD MEMORIAL ASSOCIATION,
INC.,
Defendants.

PAULSON v. CITY OF SAN DIEGO 429
Appeal from the United States District Court
for the Southern District of California
Gordon Thompson, Jr., Senior Judge, Presiding
Argued and Submitted
October 19, 2006—Pasadena, California
Filed January 12, 2007
Before: Harry Pregerson, Ronald M. Gould, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Gould
430 PAULSON v. CITY OF SAN DIEGO
COUNSEL
James E. McElroy, San Diego, California, for plaintiff-
appellee Philip K. Paulson.
Michael J. Aguirre, City Attorney, and David J. Karlin, Dep-
uty City Attorney, San Diego, California, for defendant-
appellant City of San Diego.
Robert Joseph Muise, Ann Arbor, Michigan, for proposed
intervenor San Diegans for the Mt. Soledad National War
Memorial.
Sue Ellen Wooldridge, Assistant Attorney General; Ryan D.
Nelson, Deputy Assistant Attorney General; and Kathryn E.
Kovacs, Attorney, United States Department of Justice,
Appellate Section, Environment & Natural Resources Divi-
sion, Washington, D.C., for amicus curiae United States of
America.
OPINION
GOULD, Circuit Judge:
[1] The appeal by the City of San Diego (“the City”) of the
district court’s May 3, 2006 order to enforce a December 3,
PAULSON v. CITY OF SAN DIEGO 431
1991 injunction under California constitutional authority is
moot. See Paulson v. City of San Diego, Civ. No. 89-0820GT,
2006 U.S. Dist. LEXIS 44740 (S.D. Cal. May 3, 2006). On
August 14, 2006, federal legislation transferred title of the
Mount Soledad Veterans War Memorial to the United States.
See Preservation of Mt. Soledad Veterans Memorial Act, Pub.
L. No. 109-272, § 2, 120 Stat. 770 (2006) (“Public Law 109-
272”). The legislative taking immediately divested the City of
any interest in the war memorial, see Kirby Forest Indus., Inc.
v. United States, 467 U.S. 1, 5 (1984), and the United States
is not subject to state constitutional authority. Accordingly,
the May 3, 2006 order is no longer enforceable, and the
appeal is DISMISSED as moot. See Church of Scientology v.
United States, 506 U.S. 9, 12 (1992) (“[I]f an event occurs
while a case is pending on appeal that makes it impossible for
the court to grant any effectual relief whatever to a prevailing
party, the appeal must be dismissed.”) (internal citations and
quotation marks omitted).
[2] Due to the same change in circumstances, the appeal of
the district court’s denial of intervention, filed by the San
Diegans for the Mt. Soledad National War Memorial, is also
DISMISSED as moot.
[3] Because the appeals were mooted due to the passage of
Public Law 109-272, and not through any voluntary action of
the parties, we REMAND under 28 U.S.C. § 2106 to the dis-
trict court with instructions to VACATE the May 3, 2006
order to enforce the 1991 injunction. See U.S. Bancorp Mortg.
Co. v. Bonner Mall P’ship, 513 U.S. 18, 23 (1994)
(“[V]acatur must be decreed . . . where a controversy pre-
sented for review has ‘become moot due to circumstances
unattributable to any of the parties.’ ”) (quoting Karcher v.
May, 484 U.S. 72, 82, 83 (1987)); Chem. Producers & Dis-
tribs. Ass’n v. Helliker, 463 F.3d 871, 879 (9th Cir. 2006)
(“Lobbying Congress or a state legislature cannot be viewed
as ‘causing’ subsequent legislation for purposes of the vacatur
inquiry.”). The controversy presented for review was only
432 PAULSON v. CITY OF SAN DIEGO
whether the district court abused its discretion in ordering the
enforcement of the injunction. Because the original issuance
of the 1991 injunction itself was previously upheld on appeal,
see Ellis v. City of La Mesa, 990 F.2d 1518, 1527-28 (9th Cir.
1993), a more extensive vacatur is inappropriate.
We also REMAND to the district court to determine
whether, and to what extent, counsel for plaintiff-appellee
may be entitled to attorneys’ fees. See Williams v. Alioto, 625
F.2d 845, 847-48 (9th Cir. 1980) (holding that dismissal due
to mootness and vacatur does not “affect the fact that for the
pertinent time period appellees obtained the desired relief”).
DISMISSED AND REMANDED with instructions.