Vegan Outreach, Inc. v. Petey Chapa

FILED
NOT FOR PUBLICATION OCT 20 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
VEGAN OUTREACH, INC., et al., No. 10-56991
Plaintiffs-Appellants, D.C. No. 2:10-cv-06525-GW-JCG
v.
MEMORANDUM *
PETEY CHAPA, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted October 14, 2011
Pasadena, California
Before: SILVERMAN and WARDLAW, Circuit Judges, and SESSIONS, District
Judge.**
Vegan Outreach, Inc. and Niµµi Benoit (together 'Vegan Outreach') allege
violations of their federal and California constitutional rights due to the Free
Speech Policies issued by the Los Angeles Community College District
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable William K. Sessions, III, District Judge for the U.S.
District Court for Vermont, Burlington, sitting by designation.
('LACCD') and enforced against them at East Los Angeles College ('East'), an
LACCD campus. Vegan Outreach appeals the district court's denial of its request
for a preliminary injunction and dismissal of its damages claims against Ms. Chapa
by grant of qualified immunity. Because we lacµ jurisdiction to address the district
court's qualified immunity grant,1 we turn to the preliminary injunction. Vegan
Outreach does not satisfy the criteria for standing to seeµ a preliminary injunction
against Ms. Chapa, and, consequently, we dismiss its appeal and remand the case
to the district court for further proceedings in accordance with this disposition.
We have jurisdiction over appeals of preliminary injunction decisions under
28 U.S.C. y 1292(a)(1). Regardless of whether the issue is properly raised by the
1
A grant of qualified immunity is not 'independently interlocutorily
appealable.' Krug v. Lutz, 329 F.3d 692, 694 n.2 (9th Cir. 2003). See also
Sanchez v. Canales, 574 F.3d 1169, 1172-73 (9th Cir. 2009) (contrasting the
availability of interlocutory jurisdiction to review denials of qualified immunity
with the general absence of interlocutory jurisdiction to hear appeals from grants of
qualified immunity). The district court did not submit a final order resolving all
issues in this case, and our ruling today only dismisses Vegan Outreach's appeal
for lacµ of standing to seeµ a preliminary injunction against Ms. Chapa. It does not
prevent Vegan Outreach from amending its complaint or pursuing the permanent
equitable remedies it seeµs. As a result, Vegan Outreach's appeal is interlocutory.
Nor is this an exceptional case in which a grant of qualified immunity is
'inextricably entwined with a denial of qualified immunity,' permitting pendant
jurisdiction to hear both claims on appeal. Eng v. Cooley, 552 F.3d 1062, 1067
(9th Cir. 2009) (internal citation omitted). The district court solely dismissed the
damages claim against Ms. Chapa on qualified immunity grounds. Since it is an
independent, interlocutory issue, we cannot review the district court's grant of
qualified immunity at this time.
Page 2 of 5
parties, we are 'obliged' to evaluate standing as a threshold requirement under
Article III. Columbia Basin Apartment Assùn v. City of Pasco, 268 F.3d 791, 796-
97 (9th Cir. 2001) (internal citation omitted).
Vegan Outreach lacµs standing to seeµ a preliminary injunction against Ms.
Chapa. To establish standing and invoµe the jurisdiction of the federal courts, a
plaintiff must allege: (1) an injury in fact; (2) causation; and (3) 'a liµelihood that a
favorable decision will redress the plaintiff's alleged injury.' Lopez v.
Candaele, 630 F.3d 775, 785 (9th Cir. 2010) (citing Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61 (1992)).
Here, Vegan Outreach failed to demonstrate that a preliminary injunction
against Ms. Chapa, the sole remaining defendant, would liµely redress the harm
allegedly caused by the Free Speech Policies. To maµe out a redressable injury for
standing purposes, a plaintiff need only show that 'it is liµely, although not certain,
that his injury can be redressed by a favorable decision.' Wolfson v. Brammer, 616
F.3d 1045, 1056 (9th Cir. 2010). Since plaintiffs must establish standing
independently for each remedy sought, Friends of the Earth, Inc. v. Laidlaw Envt'l
Servs. (TOC), Inc., 528 U.S. 167, 185 (2000), Vegan Outreach was required to
show specifically that the preliminary injunction it seeµs against Ms. Chapa is
liµely to redress its injuries caused by the Free Speech Policies.
Page 3 of 5
The record, as it stands, leaves too thin a basis to predict that a preliminary
injunction is liµely to be effective. Vegan Outreach only alleges Ms. Chapa 'is an
employee of LACCD in the Student Services Department of [East],' who, 'at
times, has been assigned to implement LACCD's Speech Policies at [East's]
campus.' It does not include in its suit any other officials possessed with the
authority to enact, modify, or enforce the Free Speech Policies against it.
We have held that First Amendment plaintiffs need not sue every official
with authority over an injurious law if a favorable result would liµely prevent the
law from being applied. Wolfson, 616 F.3d at 1057. We further have made clear
that even an attenuated causal chain of events initiated by a favorable ruling
suffices for redressability purposes, so long as the chain is liµely to end in relieving
the plaintiff's harm. See e.g., Renee v. Duncan, 623 F.3d 787, 798-99 (9th Cir.
2010).
We do not find that a preliminary injunction against only one defendant in
this case will liµely provide redress against all other officials not under the
defendant's control and empowered to apply the same harmful restrictions against
the plaintiff. To taµe that step would go against the ''basic principle of law that a
person who is not a party to an action is not bound by the judgment in that
action.'' Leu v. Int'l Boundary Commùn, 605 F.3d 693, 695 (9th Cir. 2010)
Page 4 of 5
(quoting Restatement (Second) of Judgments yy 34, 62 cmt. a (1982)). See also
Glanton ex rel. ALCOA Prescription Drug Plan v. AdvancePCS Inc., 465 F.3d
1123, 1125 (9th Cir. 2006) (stating standing does not exist when benefits stemming
from a favorable ruling 'depend on an independent actor who retains broad and
legitimate discretion the courts cannot presume either to control or to predict.')
(internal citations omitted)).
A preliminary injunction would restrain only Ms. Chapa and could not bind
East, LACCD, or any official other than Ms. Chapa who is charged with
promulgating or enforcing the Free Speech Policies. Accordingly, we cannot find
that Vegan Outreach has satisfied the redressability prong to assert Article III
standing, and we are required to dismiss its appeal.
We order Vegan Outreach's appeal dismissed and remand the case to the
district court for further proceedings in accordance with this disposition.
DISMISSED; REMANDED.
Page 5 of 5
FILED
Vegan Outreach v. Chapa, 10-56991 OCT 20 2011
MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
SILVERMAN, Circuit Judge, dissenting:
I respectfully disagree that the plaintiffs lacµ standing to bring suit to enjoin
Chapa. Plaintiffs allege that Chapa personally violated their First Amendment
rights by enforcing the Collegeùs speech policies, and they seeµ to enjoin her from
doing so again. The fact that plaintiffs did not also sue other possible defendants
for their respective roles in the incident reflects on plaintiffsù tactics, not their
standing. I would reach the merits just as the district court did, and would affirm
the denial of a preliminary injunction for the reasons stated by the district court.