Nabil Samaan v. Scott Jones

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 23 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NABIL SAMAAN, No. 19-16500
Plaintiff-Appellant, D.C. No.
2:16-cv-00789-KJM-CKD
v.
SCOTT ROBERT JONES, Sheriff, County MEMORANDUM*
of Sacramento; COUNTY OF
SACRAMENTO,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, Chief District Judge, Presiding
Submitted October 20, 2020**
San Francisco, California
Before: CLIFTON, N.R. SMITH, and R. NELSON, Circuit Judges.
Nabil Samaan seeks a reissuance of his Sacramento concealed weapons
permit (CCW permit), costs and attorney’s fees, “[a]ny other relief as the Court
deems just and proper[,]” and to enjoin Sacramento County and Sacramento
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
County Sherriff Scott Jones from revoking CCW permits without disclosing the
basis for revocation. However, he no longer qualifies for a CCW permit issued in
Sacramento, and no other effective relief is available to him, rendering his case
moot. While he argues that he is entitled to injunctive relief, he cannot establish a
harm that is likely to recur, which precludes standing for his desired injunctive
relief. Therefore, we affirm the district court’s dismissal.1
1. “If [a] controversy is moot, both the trial and appellate courts lack
subject matter jurisdiction” to decide the claims. In re Burrell, 415 F.3d 994, 998
(9th Cir. 2005) (citing North Carolina v. Rice, 404 U.S. 244, 246 (1971)). A case
is moot when a violation cannot reasonably be expected to recur and “interim relief
or events have completely and irrevocably eradicated the effects of the alleged
violation.” Los Angeles County v. Davis, 440 U.S. 625, 631 (1979). But “[a]s long
as the parties have a concrete interest, however small, in the outcome of the
litigation, the case is not moot.” Chafin v. Chafin, 568 U.S. 165, 172 (2013)
(internal citation omitted). “We review de novo the question whether a case is
moot.” Foster v. Carson, 347 F.3d 742, 745 (9th Cir. 2003) (citing Or. Advoc. Ctr.
v. Mink, 322 F.3d 1101, 1116 (9th Cir. 2003)).
With regards to the reissuance of his CCW permit, Samaan’s decision to
1
The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1343(a) and
42 U.S.C. § 1983. We have jurisdiction under 28 U.S.C. § 1291.
2
leave Sacramento County “completely and irrevocably eradicated the effects of the
alleged violation.” Davis, 440 U.S. at 631. A California county sheriff may issue
a CCW license when, among other things, “[t]he applicant is a resident of the
county or a city within the county, or the applicant’s principal place of
employment or business is in the county or a city within the county and the
applicant spends a substantial period of time in that place of employment or
business.” Cal. Penal Code § 26150(a).
Here, Samaan ceased residing in Sacramento County when he moved to
Placer County. And, before the potential mootness issue was raised, Samaan
admitted under the “undisputed core facts” that he does not “have a principal place
of business in the County of Sacramento.” His only arguments for currently
maintaining a principal place of business in Sacramento County rely on assertions
unsupported by the record.2 Thus, Samaan has no “legally cognizable interest,”
Davis, 440 U.S. at 631, in reissuance of his Sacramento County CCW, and no
2
There is no guarantee that the case would avoid mootness even if Samaan
did have a principal place of business in Sacramento County. Samaan’s
subsequent acquisition of a similar CCW permit in Placer County may have
rendered his desired remedy inconsequential. Furthermore, Sacramento County
has a standing rule not to issue CCW permits to non-residents, and that rule has no
exception for applicants with a principal place of business in the county. However,
we need not address whether these matters would be sufficient to render the issue
moot, as it is moot regardless.
3
other effective relief is available him.3 As a result, his entire action is moot.
2. To establish standing, a party must show, among other things, a
“concrete and particularized” injury which is “actual or imminent.” Lujan v. Defs.
of Wildlife, 504 U.S. 555, 560 (1992) (internal citations omitted). And when
seeking standing for injunctive relief, a party must also establish “a sufficient
likelihood that he will again be wronged in a similar way.” City of Los Angeles v.
Lyons, 461 U.S. 95, 111 (1983).
Here, Samaan cannot meet that standard. He seeks to enjoin the Appellees
from revoking CCW permits without adequately disclosing the basis for the
revocation. But he fails to offer any reason why it is likely that he would have his
3
Samaan’s argument that he should be able to continue his case to seek
redress for others who may face similar circumstances is unpersuasive. Samaan
has not established a relationship with any potential claimants nor explained why
he is better suited than they would be in seeking this injunctive relief. See
Kowalski v. Tesmer, 543 U.S. 125, 130 (2004).
The only other remedies listed in the First Amended Complaint are costs,
attorney’s fees, and “[a]ny other relief as the Court deems just and proper.”
“[I]nterest in attorney’s fees is, of course, insufficient to create an Article III case
or controversy . . . .” Lewis v. Continental Bank Corp., 494 U.S. 472, 480 (1990);
see also Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S.
167, 191–92, 192 n.5 (2000). And we see no reason to oblige Samaan by
introducing a remedy that he did not identify.
In his Reply Brief, Samaan briefly argues that his desire for declaratory
relief keeps this a live controversy. However, neither the First Amended
Complaint nor the Opening Brief call for declaratory relief. “Absent exceptional
circumstances, we generally will not consider arguments raised for the first time on
appeal . . . .” In re Am. W. Airlines, Inc., 217 F.3d 1161, 1165 (9th Cir. 2000).
Thus, that remedy has been waived.
4
license revoked again. He simply has not established standing for his desired
injunctive relief.
In conclusion, Samaan’s suit cannot overcome mootness and standing
hurdles. As such, the district court properly dismissed his suit.
AFFIRMED.
5