Cindy Abshire v. Gavin Newsom ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 4 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CINDY ABSHIRE; et al., No. 21-16442
Plaintiffs-Appellants, D.C. No.
2:21-cv-00198-JAM-KJN
v.
GAVIN NEWSOM, Governor; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted December 5, 2022
San Francisco, California
Before: NGUYEN and SUNG, Circuit Judges, and BATAILLON,** District
Judge.
Plaintiffs Cindy and Timothy Abshire, Alan and Monica Butts, Nomadness
Corporation, and Mammoth Lakes Business Coalition appeal the district court’s
grant of Defendants’ motion to dismiss. Defendants are various officials of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Joseph F. Bataillon, United States District Judge for
the District of Nebraska, sitting by designation.
1
State of California (“State Defendants”), Mono County (“County Defendants”),
and the town of Mammoth Lakes (“Town Defendants”), all named in their official
capacities. We have jurisdiction under 28 U.S.C. § 1291. We review the district
court’s dismissal de novo, construing all material allegations as true and in favor of
Plaintiffs. Rocky Mtn. Farmers Union v. Corey, 913 F.3d 940, 949 (9th Cir. 2019)
(citation omitted); Colwell v. Dept. of Health and Human Servs., 558 F.3d 1112,
1121 (9th Cir. 2009). We affirm.
1. Mootness. Plaintiffs’ claims for prospective relief are moot.
Generally, “[a] case becomes moot—and therefore no longer a ‘Case’ or
‘Controversy’ for purposes of Article III—when the issues presented are no longer
‘live’ or the parties lack a legally cognizable interest in the outcome.” Rosebrock v.
Mathis, 745 F.3d 963, 971 (9th Cir. 2014) (internal quotation marks omitted)
(quoting Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726 (2013)). Here, Plaintiffs
acknowledge that the challenged orders have been rescinded but argue that the
capable-of-repetition-yet-evading-review and voluntary-cessation exceptions to
mootness apply. That argument, however, is foreclosed by Brach v. Newsom, 38
F.4th 6, 12–15 (9th Cir. 2022) (en banc). As we explained in Brach, “the fact ‘the
Governor has the power to issue executive orders cannot itself be enough to skirt
mootness, because then no suit against the government would ever be moot.’” Id.
at 14 (quoting Bos. Bit Labs, Inc. v. Baker, 11 F.4th 3, 10 (1st Cir. 2021)). Here, as
2
in Brach, the restrictions were temporary measures intended to curb the spread of
Covid-19. The challenged orders were rescinded nearly two years ago and have
never been reinstated. And, Governor Newsom recently issued a proclamation
terminating the state of emergency as of February 28, 2023. Office of Governor
Newsom, A Proclamation Terminating State of Emergency (Feb. 28, 2023),
https://www.gov.ca.gov/2023/02/28/governor-newsom-marks-end-of-californias-
covid-19-state-of-emergency/. Therefore, Plaintiffs’ fears that the orders could be
reinstated are “too remote and speculative to serve as a firm foundation for our
jurisdiction.” Brach, 38 F.4th at 14 (internal quotation marks and citation omitted).
Although Plaintiffs’ claims for prospective relief are moot, their claims for
damages against the County and Town Defendants are not moot. See Porter v.
Jones, 319 F.3d 483, 489 (9th Cir. 2003) (finding plaintiffs’ claims for damages
represented a “live controversy . . . between the parties”).
2. Nomadness’s Standing. We affirm the district court’s dismissal of
Nomadness’s claims for lack of standing.1 The district court determined that the
rights that Nomadness seeks to enforce are the rights of third parties (the property
owners and businesses with whom Nomadness contracts), and that Nomadness
failed to establish the requirements for third-party standing.
1
We need not address the district court’s dismissal of Coalition’s claim for
damages because Plaintiffs do not challenge that ruling on appeal.
3
But even assuming Nomadness alleges direct injury to its own property and
financial interests, Nomadness nevertheless lacks standing because it has not
adequately alleged an injury-in-fact or that any alleged damages are fairly traceable
to Defendants’ conduct. Standing requires a plaintiff to show that they “(1)
suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of
the defendant, and (3) that is likely to be redressed by a favorable judicial
decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (citing Lujan v. Defs.
of Wildlife, 504 U.S. 555, 560–61 (1992)). “To establish injury in fact, a plaintiff
must show that he or she suffered ‘an invasion of a legally protected interest’ that
is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or
hypothetical.’” Id. at 339 (quoting Lujan, 504 U.S. at 560). Nomadness does not
allege that it contracted with any property owners in Mammoth Lakes or Mono
County, nor does it allege specific facts showing that it had to cancel any
reservations or lost any revenue because of the orders. Its conclusory allegations
are not enough for us to infer that any drop in reservations is fairly traceable to
Defendants’ conduct instead of other causes, such as seasonal fluctuations in the
short-term rental market or vacationers’ reluctance to travel during a global
pandemic. See Wash. Env’t Council v. Bellon, 732 F.3d 1131, 1141–43 (9th Cir.
2013). Because Plaintiffs’ claims for prospective relief are moot and Nomadness
lacks standing to bring any damages claims, we have jurisdiction to consider only
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the Abshires’ and Butts’ claims for damages.2
3. Substantive Due Process. Plaintiffs claim that Defendants’ orders
violated their substantive due process rights by impinging on their fundamental
right to interstate travel and their purportedly fundamental right to intrastate
travel.3 But, all of Plaintiffs’ claims for prospective relief are moot, and Plaintiffs
do not allege that any of the challenged orders restricted Plaintiffs’ right to travel
in a way that caused them damages. Plaintiffs argue only that they lost revenue
because of restrictions on their out-of-state guests’ right to travel. Even if
Plaintiffs’ complaint alleged such damages, they have not met the requirements to
assert third-party claims on behalf of their out-of-state guests. See Kowalski v.
Tesmer, 543 U.S. 125, 130 (2004). Plaintiffs’ complaint does not specifically
identify any out-of-state guests, and it does not establish that Plaintiffs’
relationship to those guests is sufficiently close or that those guests’ ability to bring
claims on their own behalf is hindered such that third party standing would be
appropriate. See id.Plaintiffs broadly argue that the court should apply intermediate scrutiny
because the challenged orders are “unprecedented in their scope and severity,” but
2
Although only the Abshires’ and Butts’ claims for damages remain, we continue
to refer to those individual plaintiffs as “Plaintiffs” for simplicity.
3
Plaintiffs acknowledge that neither the Supreme Court nor this court has
recognized a fundamental right to intrastate travel.
5
Plaintiffs cite no precedent that applies to the alleged facts here. Rational basis
review therefore applies. “Under this deferential standard, [Plaintiffs] must show
that the [Defendants’] actions are ‘clearly arbitrary and unreasonable, having no
substantial relation to the public health, safety, morals or general welfare.’”
Slidewaters LLC v. Wash. State Dep’t of Labor and Indus., 4 F.4th 747, 758 (9th
Cir. 2021) (quoting Samson v. City of Bainbridge Island, 683 F.3d 1051, 1058 (9th
Cir. 2012)). As the district court noted, the restrictions on lodging, hotels, and
short-term rentals are rationally related to the goal of limiting the spread of Covid-
19, because the restrictions reduce the mixing of different households.
4. Equal Protection. Plaintiffs assert that Defendants’ orders violated
their right to equal protection in two ways: (1) some businesses were allowed to
operate while other businesses, including Plaintiffs’, were not; and (2) Mono
County was arbitrarily grouped into the much larger and more Covid-19-affected
Southern California region by the Regional Stay Home Order and related local
orders. We apply rational basis review to assess the validity of these classifications
because they neither involve a suspect class nor burden a fundamental right.
Kahawaiolaa v. Norton, 386 F.3d 1271, 1277–78 (9th Cir. 2004). Because the
challenged orders are legislative acts that do not impinge on fundamental rights or
employ suspect classifications, we presume the orders are valid, and that
“presumption is overcome only by a ‘clear showing of arbitrariness and
6
irrationality.’” Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1234 (9th Cir.
1994) (quoting Hodel v. Indiana, 452 U.S. 314, 331–32 (1981)).4
Plaintiffs’ equal protection claims for prospective relief against the State
Defendants are moot as described above. Plaintiffs do not state a violation of the
Equal Protection Clause based on the local orders implemented by the County and
Town Defendants. It was not “clearly arbitrary” for Defendants to take a
categorical approach to deeming businesses as non-essential, particularly in an
emergency, and Defendants are “not required to draw a perfect line” in deciding
which businesses can safely operate and which cannot. Slidewaters, 4 F.4th at 758–
59.
As for Plaintiffs’ claim that Defendants violated the Equal Protection Clause
by including Mono County in the Southern California region, the Equal Protection
Clause “is not violated when a geographic area is singled out for different
treatment.” Columbia River Gorge United-Protecting People & Prop. v. Yeutter,
960 F.2d 110, 115 (9th Cir. 1992). “[T]he Equal Protection Clause relates to equal
protection of the laws between persons as such rather than between areas.’” Id.4
Plaintiffs concede that their claim is not subject to strict scrutiny, but they urge
the court to apply intermediate scrutiny. Intermediate scrutiny is limited to
circumstances that are not at issue in this case. E.g. United States v. Virginia, 518
U.S. 515 (1996) (gender discrimination); Clark v. Jeter, 486 U.S. 456, 461 (1988)
(discrimination against children of unmarried parents).
7
(internal quotation marks omitted) (quoting Griffin v. Cty. Sch. Bd. Of Prince
Edward Cty., 377 U.S. 218, 230 (1964)).
5. Procedural Due Process. Plaintiffs assert that their right to procedural
due process was violated because (1) the orders amounted to involuntary
confinement without due process, and (2) they were cited and fined without proper
notice and an opportunity to be heard. To assess whether a due process violation
has occurred, “[w]e must first ask whether the asserted individual interests are
encompassed within the Fourteenth Amendment’s protection of ‘life, liberty or
property’; if protected interests are implicated, we then must decide what
procedures constitute ‘due process of law.’” Lavan v. City of Los Angeles, 693 F.3d
1022, 1031 (9th Cir. 2012) (quoting Ingraham v. Wright, 403 U.S. 651, 672
(1977)).
We first address Plaintiffs’ contention that the orders deprived them of
liberty without due process. Plaintiffs’ claims against the State Defendants, if any,
are moot as described above. And Plaintiffs’ claims against the Town and County
Defendants, if any, are not cognizable. The restrictions imposed by the orders are
plainly distinguishable from involuntary civil commitment. Cf. O’Connor v.
Donaldson, 422 U.S. 563, 576 (1975) (holding that the defendant violated the
plaintiff’s constitutional right to freedom by confining him in the state hospital
although he was not a danger to himself or others).
8
Turning to Plaintiffs’ argument regarding the notice and citation, Plaintiffs’
own allegations show that they received pre-deprivation notice in the form of a
citation. The Abshires also spoke with a revenue specialist over the phone who
explained the reason for the citation. Additionally, Defendants informed the
Abshires that they could, within five days and before payment of the fine was due,
provide evidence of a mistake by providing their rental and financial records. The
Butts received an individualized letter attached to their citation. They were also
informed that they could provide evidence of an exemption to a specified email
address. Neither the Butts nor the Abshires allege that they ever paid the fines. By
their own allegations, Plaintiffs clearly received pre-deprivation notice and some
opportunity to provide evidence in their defense.
6. Takings Clause. Plaintiffs allege that the orders amounted to an
unconstitutional regulatory taking in violation of the Fifth Amendment. Per se
takings occur “where government requires an owner to suffer a permanent physical
invasion of her property” or where regulations “completely deprive an owner of
‘all economically beneficial us[e]’ of her property.” Lingle v. Chevron U.S.A., Inc.,
544 U.S. 528, 538 (2005) (emphasis and correction in original) (quoting Lucas v.
S.C. Coastal Council, 505 U.S. 1003, 1019 (1992)). “Outside these two relatively
narrow categories . . . , regulatory takings challenges are governed by the standards
set forth in Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978).” Id.9
Plaintiffs do not allege facts sufficient to establish that they suffered a
physical invasion of their property. See Loretto v. Teleprompter Manhattan CATV
Corp., 458 U.S. 419, 438 (1982). Nor do they state a claim for a total regulatory, or
Lucas, taking because they were not deprived of all economically beneficial uses
of their land. See Lucas, 505 U.S. at 1019. Plaintiffs were free to sell their land or
use it for other lawful purposes, and Plaintiffs do not claim that the property held
no value in the real estate market because of the orders. See id. at 1020.
Finally, to determine whether the government must compensate plaintiffs for
their economic injuries based on a partial regulatory taking, we must weigh (1) the
economic impact of the regulation on plaintiffs; (2) the extent to which the
regulation interferes with plaintiffs’ investment-backed expectations; and (3) the
character of the governmental action. Penn Central, 438 U.S. at 124. Applying that
framework, the second and third factors weigh heavily against Plaintiffs. Plaintiffs
were barred from renting their property only for a matter of months. “[T]he
duration of the restriction is one of the important factors that a court must consider
in the appraisal of a regulatory takings claim.” Tahoe-Sierra Pres. Council, Inc. v.
Tahoe Reg’l Plan. Agency, 535 U.S. 302, 342 (2002). And Defendants’ orders
“adjust[ed] the benefits and burdens of economic life to promote the common
good,” Penn Central, 438 U.S. at 124, by preventing the spread of a deadly virus.
That governmental action was not a taking. See Nowlin v. Pritzker, 34 F.4th 629,
10
634–35 (7th Cir. 2022) (holding that no taking occurred when plaintiff failed to
allege specific facts regarding their losses related to Covid-19 restrictions on their
businesses).
7. Dormant Commerce Clause. Plaintiffs’ final claim is that Defendants’
orders imposed an unconstitutional burden on interstate commerce in violation of
the dormant Commerce Clause. Plaintiffs’ claim against State Defendants, if any,
is moot. And Plaintiffs have failed to state a claim against the County and Town
Defendants.
Absent conflicting federal legislation, a state may “make laws governing
matters of local concern which nevertheless in some measure affect interstate
commerce or even, to some extent, regulate it.” Kassel v. Consol. Freightways
Corp. of Del., 450 U.S. 662, 669–70 (1981) (quoting S. Pac. Co. v. Arizona, 325
U.S. 761, 767 (1945)). When states regulate to promote public health or safety,
there is a “strong presumption of validity.” Id. at 670 (quoting Bibb v. Navajo
Freight Lines, Inc., 359 U.S. 520, 524 (1959)). We must weigh “the asserted safety
purpose against the degree of interference with interstate commerce,” and in doing
so, if we determine that the “safety justifications are not illusory, [we] will not
second-guess legislative judgment about their importance in comparison with
related burdens on interstate commerce.” Id. at 670 (quoting Raymond Motor
Transp., Inc. v. Rice, 434 U.S. 429, 449 (1978) (Blackmun, J., concurring)).
11
Plaintiffs do not allege that Defendants’ stated justification for their orders—
to stop the spread of Covid 19—was illusory and that their real purpose was to
discriminate against out-of-state interests. Rather, they allege that Defendants
failed to appropriately weigh the benefits of the orders against the negative effects.
Their claim does not fit within the narrow circumstances in which courts withhold
deference to legislators’ concern for public health and safety. See id. at 675;
Yakima Valley Mem. Hosp. v. Wash. State Dept. of Health, 731 F.3d 843, 850 (9th
Cir. 2013) (declining to “insert ourselves into [a] medical debate” when plaintiff
offered no evidence that health benefits of regulation were “illusory or
manufactured”).
AFFIRMED.
12