City of San Juan Capistrano v. Cal. Pub. Utilities Comm'n

• Decision Date: 11 September 2019
• Docket Number: No. 17-56693,17-56693
• Citation: 937 F.3d 1278
• Parties: CITY OF SAN JUAN CAPISTRANO, a California municipal corporation, Plaintiff-Appellant, v. CALIFORNIA PUBLIC UTILITIES COMMISSION, a California state agency, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

937 F.3d 1278

CITY OF SAN JUAN CAPISTRANO, a California municipal corporation, Plaintiff-Appellant,

v.CALIFORNIA PUBLIC UTILITIES COMMISSION, a California state agency, Defendant-Appellee.

No. 17-56693

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 8, 2019 Pasadena, California

Filed September 11, 2019

R. NELSON, Circuit Judge:

The City of San Juan Capistrano contends the California Public Utility Commission’s approval of an electrical grid project violates the City’s due process rights. Following City of South Lake Tahoe v. California Tahoe Regional Planning Agency and its progeny, we hold the City cannot challenge the Commission’s decision on due process grounds in federal court. 625 F.2d 231, 233 (9th Cir. 1980). Moreover, the City’s claims are barred by Eleventh Amendment sovereign immunity. We therefore affirm.

I

The City of San Juan Capistrano ("the City") alleges the California Public Utility Commission ("the Commission") violated due process when it approved San Diego Gas & Electric’s ("the Utility") project to replace a transmission line and upgrade a substation on property the Utility owns within the City. The City opposed the project "as a duly admitted party" in a Commission hearing. After the hearing, the Commission administrative law judge recommended approving an alternate project with less environmental impact. But the assigned commissioner—after ex parte meetings with the Utility—recommended approval of the original project. The Commission agreed.

The Commission denied the City’s application for rehearing. See Cal. Pub. Util. Code § 1733 (denial by inaction). The City did not challenge the Commission’s decision in state court. Id. § 1756 (judicial review of Commission decisions).

Instead, the City sued the Commission in federal court alleging the ex parte meetings led the Commission to reject the administrative law judge’s recommendation. The City argued that by not giving "due consideration" to alternative projects as required by California environmental law, the Commission deprived the City of liberty and property interests over its environmental integrity, cultural integrity, and development, along with its procedural right to a fair hearing. The City sought to enjoin the Commission from mandating the project, a declaration that the Commission’s approval order is not enforceable against the City, and attorneys’ fees. The district court dismissed the suit with prejudice, holding that the City, as a political subdivision, lacked standing to sue the Commission and amendment would be futile. See South Lake Tahoe , 625 F.2d at 233.

Plaintiff’s standing and Defendant’s sovereign immunity are questions of law, which we review de novo. Daniel v. Nat’l Park Serv. , 891 F.3d 762, 765–66 (9th Cir. 2018).

II

Starting with South Lake Tahoe , 625 F.2d at 233, we have consistently held that political subdivisions lack standing to challenge state law on constitutional grounds in federal court.¹ South Lake Tahoe offered no independent reasoning for its per se standing rule. But it cited Supreme Court and Second Circuit decisions that rejected cities’ constitutional challenges to state law, characterizing political subdivisions as "creature[s]" and states as their "creators." South Lake Tahoe , 625 F.2d at 233–34 (citing Williams v. Mayor & City Council of Baltimore , 289 U.S. 36, 40, 53 S.Ct. 431, 77 L.Ed. 1015 (1933) ; City of Trenton v. New Jersey , 262 U.S. 182, 188, 43 S.Ct. 534, 67 L.Ed. 937 (1923) ; City of Newark v. New Jersey , 262 U.S. 192, 196, 43 S.Ct. 539, 67 L.Ed. 943 (1923) ; City of New York v. Richardson , 473 F.2d 923, 929 (2d Cir. 1973) ; Aguayo v. Richardson , 473 F.2d 1090, 1100–01 (2d Cir. 1973) ).²

Here, South Lake Tahoe , and the decisions in Burbank , Palomar , and Okanogan applying it, control as law of the circuit. Hart v. Massanari , 266 F.3d 1155, 1171 (9th Cir. 2001) ("Once a panel resolves an issue in a precedential opinion, the matter is deemed resolved, unless overruled by the court itself sitting en banc, or by the Supreme Court.").

Perhaps recognizing its uphill battle, the City characterizes South Lake Tahoe as a limited rule that bars challenges to the validity of statutes or regulations but does not bar the City’s challenge to the Commission’s "conduct in an administrative proceeding." It notes that "facial" challenges to statutes are generally disfavored and asserts that Trenton , Williams , South Lake Tahoe , Burbank , and Palomar were all facial challenges to a statute or regulation —barred because such challenges interfere with states’ internal political organization.

We reject the proposition that South Lake Tahoe bars only facial challenges to a statute or regulation. South Lake Tahoe and our later cases do not suggest that the standing analysis was dependent on a facial challenge to a statute or regulation rather than an administrative decision. Instead, our cases have relied only on the identity of the parties, not the procedural context in which those claims are raised. See, e.g. , Palomar , 180 F.3d at 1107 ("We must determine (1) whether [plaintiff] is a ‘political subdivision’ of the State of California, and if so, (2) whether, by suing the defendants named in this action, [plaintiff] brings this action against the state.").

We therefore conclude that the City lacks standing to challenge the Commission’s decision on due process grounds in federal court.

III

We separately hold that sovereign immunity bars the City’s claims because the Commission is an arm of the State of California. Pennhurst State Sch. & Hosp. v. Halderman , 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) ; see Air Transp. Ass’n of Am. v. Pub. Utils. Comm’n of Cal. , 833 F.2d 200, 203–04 (9th Cir. 1987) (holding the Commission, specifically, is entitled to sovereign immunity). The Eleventh Amendment bars claims against a state—including its agencies—in federal court. Pennhurst , 465 U.S. at 97–100, 104 S.Ct. 900.

The City concedes on appeal the Commission is entitled to sovereign immunity. But it argues for leave to amend its complaint to add claims against a commissioner under Ex parte Young , 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), which allows suits seeking "prospective relief" against a state official who has a fairly direct connection to an "ongoing violation of federal law." Ariz. Students’ Ass’n v. Ariz. Bd. of Regents , 824 F.3d 858, 865 (9th Cir. 2016) (citing Ex parte Young , 209 U.S. at 155–56, 28 S.Ct. 441 ). Arizona Students’ Association suggests the City should generally be allowed leave to amend its complaint to add an individual official as a party, assuming claims otherwise satisfy Ex parte Young ’s requirements. Id. at 871.

Below, however, the City argued that the Eleventh Amendment did not apply to its claims against the Commission, only briefly suggesting the City could amend its complaint consistent with Ex parte Young if it were wrong. The City never asked for leave to add a commissioner as a party, only to "add facts developed in [its] analysis and investigation" related to the ex parte meetings. Nothing in the City’s district court filings can be construed as a definite request for leave to add a new party. Indeed, at argument before us, the City conceded it never asked the district court for such relief, and only requested such relief in its Reply Brief.

The City has therefore waived its right to amend. See Okwu v. McKim , 682 F.3d 841, 846 n.4 (9th Cir. 2012) ("[Plaintiff] has waived the argument that she should be allowed to amend her complaint to re-style some of her § 1983 claims ... under the Ex Parte Young exception .... She did not make that argument to the district court or in either of her briefs on appeal."); Walsh v. Nev. Dep’t of Human Res. , 471 F.3d 1033, 1037 (9th Cir. 2006) (finding sovereign immunity issue forfeited on appeal where defendant failed to re-assert a claim for injunctive relief already in her complaint in response to the state’s motion to dismiss).

IV

The district court properly dismissed the City’s claims because the City lacks standing and the claims are barred by the Eleventh Amendment.

AFFIRMED .

R. NELSON, Circuit Judge, concurring:

Today, the panel reaffirms the court’s established per se rule that a political subdivision lacks standing to challenge state law on constitutional grounds in federal court. I write separately to highlight the potential, in the appropriate case, to revisit the court’s per se rule in light of intervening caselaw from other circuit courts and the Supreme Court.

Nearly 40 years ago, we adopted a per se "standing" bar on a political subdivision challenging state law in federal court. City of South Lake Tahoe v. Cal. Tahoe Reg’l Planning Agency , 625 F.2d 231, 233 (9th Cir. 1980) (analyzing "whether the City ... ha[s] standing to bring this case"). We have not deviated from that per se bar since. See supra at 1280 n.1. When South Lake Tahoe was decided, this standing terminology made some sense. Indeed, one of the first cases to address this issue held that a city’s officials were "without standing to invoke the protection of the Federal Constitution." Williams v. Mayor and City Council of Balt. , 289 U.S. 36, 47, 53 S.Ct. 431, 77 L.Ed. 1015 (1933). Then, in Coleman v. Miller , the Supreme Court branded the result of Williams and related cases as a matter of "standing." See 307 U.S. 433, 441, 59 S.Ct. 972, 83 L.Ed. 1385 (1939).

Since these cases, however, the meaning of "standing" has changed. When Williams and Coleman were decided, "standing was not seen as a preliminary or threshold question" as it is today. Rogers v. Brockette , 588 F.2d 1057, 1070 (5th Cir. 1979). Instead, "[a] party had standing or a ‘right to sue’ if it was correct in its claim on the merits that the statutory or constitutional provision in question protected its interests[.]" Id. That is why the Williams line of cases do not mention the elements we now associate with Article III standing, like...