Gingery v. City of Glendale

• Decision Date: 04 August 2016
• Docket Number: No. 14-56440,14-56440
• Parties: Michiko Shiota Gingery, an individual; Koichi Mera, an individual; GAHT-US Corporation, a California non-profit corporation, Plaintiffs–Appellants, v. City of Glendale, a municipal corporation, Defendant–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

831 F.3d 1222

Michiko Shiota Gingery, an individual; Koichi Mera, an individual; GAHT-US Corporation, a California non-profit corporation, Plaintiffs–Appellants,

v.City of Glendale, a municipal corporation, Defendant–Appellee.

No. 14-56440

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 7, 2016 Pasadena, California

Filed August 4, 2016

Ronald S. Barak (argued), Law Offices of Ronald S. Barak, Pacific Palisades, California; Maxwell M. Blecher, Donald R. Pepperman, and Taylor C. Wagniere, Blecher Collins Pepperman & Joye, Los Angeles, California; for Plaintiffs–Appellants.

Christopher S. Munsey (argued) and Bradley H. Ellis, Sidley Austin LLP, Los Angeles, California; Michael J. Garcia, Ann M. Maurer, and Andrew Rawcliffe, Glendale City Attorney's Office, Glendale, California; for Defendant–Appellee.

Barry A. Fisher, Fleishman & Fisher, Los Angeles, California, for Amicus Curiae the Global Alliance for Preserving the History of WW II in Asia.

Paul L. Hoffman and Catherine Sweetser, Schonbrun DeSimone Seplow Harris & Hoffman LLP, Venice, California, for Amicus Curiae the Korean Forum of California.

Before: Stephen Reinhardt, and Kim McLane Wardlaw, Circuit Judges, and Edward R. Korman,^** Senior District Judge.

Concurrence by Judge Korman

OPINION

WARDLAW, Circuit Judge:

In 2013, the City of Glendale installed a public monument commemorating the “Comfort Women,” an unknown number of women that South Korea asserts, but Japan disputes, were forced to serve as sexual partners to members of the Japanese Imperial Army during World War II and the decade preceding it. Plaintiffs, a Japanese-American resident of Los Angeles and a non-profit organization, claim that Glendale's installation of the “Korean Sister City ‘Comfort Woman’ Peace Monument” intrudes on the federal government's exclusive foreign affairs power and is thereby preempted under the foreign affairs doctrine. We conclude that Plaintiffs have standing to challenge Glendale's installation of the monument but have failed to state a claim that Glendale's actions are preempted. Accordingly, we affirm the district court's judgment dismissing Plaintiffs' preemption claim with prejudice.

I. Factual and Procedural History

For several decades, Japan and South Korea have engaged in a heated and politically sensitive debate concerning historical responsibility for the Comfort Women. South Korea has urged Japan to redress grievances relating to the Comfort Women. Japan denies responsibility for the recruitment of the Comfort Women and asserts that, in any event, all World War II-related claims, including those related to the Comfort Women, were resolved pursuant to postwar treaties between Japan and the allied nations. According to Plaintiffs' complaint, the United States has generally “avoid[ed] taking sides” and encouraged Japan and South Korea to resolve the dispute through “further government-to-government negotiations.”

On July 9, 2013, the Glendale City Council approved the installation of the “ ‘Comfort Woman’ Peace Monument” in Glendale Central Park, a public park in Glendale, California. Unveiled three weeks later, the monument is a 1,100-pound bronze statue of a young girl in Korean dress sitting next to an empty chair with a bird perched on her shoulder. Alongside the statue is a bronze plaque, which reads in part:

In memory of more than 200,000 Asian and Dutch women who were removed from their homes in Korea, China, Taiwan, Japan, the Philippines, Thailand, Vietnam, Malaysia, East Timor and Indonesia, to be coerced into sexual slavery by the Imperial Armed Forces of Japan between 1932 and 1945.

And in celebration of proclamation of “Comfort Women Day” by the City of Glendale on July 30, 2012, and of passing of House Resolution 121 by the United States Congress on July 30, 2007, urging the Japanese Government to accept historical responsibility for these crimes.

It is our sincere hope that these unconscionable violations of human rights shall never recur.

Plaintiffs Michiko Shiota Gingery, GAHT-US Corporation (“GAHT-US”), and Koichi Mera claim that the monument interferes with the federal government's foreign affairs power and violates the Supremacy Clause. Plaintiffs' complaint further alleges that by installing the monument, Glendale “has taken a position in the contentious and politically-sensitive international debate concerning the proper historical treatment of the former comfort women.” In Plaintiffs' view, Glendale's monument disrupts the federal government's foreign policy of nonintervention and encouragement of peaceful resolution of the Comfort Women dispute. The complaint seeks an order declaring Glendale's installation of the monument unconstitutional and compelling Glendale to remove the monument from public property.¹

The district court dismissed Plaintiffs' constitutional claim with prejudice. The district court first determined that Plaintiffs lacked standing. Alternatively, the district court found that “[e]ven if Plaintiffs possessed Article III standing, dismissal is still appropriate because Plaintiffs have failed to allege facts that state a cognizable legal theory.” The district court reasoned that the complaint failed to allege facts that could plausibly support the conclusion that the monument conflicted with the executive branch's foreign policy. Plaintiffs timely appeal.

II. Standard of Review

“The district court's determination whether a party has standing, and whether there is subject matter jurisdiction, is reviewed de novo.” Hajro v. U.S. Citizenship & Immigration Servs. , 811 F.3d 1086, 1098 (9th Cir. 2016). “We review de novo a district court's dismissal for failure to state a claim under Rule 12(b)(6).” Harkonen v. U.S. Dep't of Justice , 800 F.3d 1143, 1148 (9th Cir. 2015). “We may affirm the district court's dismissal on any ground that is supported by the record, whether or not the district court relied on the same ground or reasoning ultimately adopted by this court.” Hartmann v. Cal. Dep't of Corr. & Rehab. , 707 F.3d 1114, 1121 (9th Cir. 2013).

III. Discussion

A. Standing

We must first determine whether Plaintiffs have standing to pursue their preemption claim. To establish Article III standing, Plaintiffs must demonstrate “(1) the existence of an injury-in-fact that is concrete and particularized, and actual or imminent; (2) the injury is fairly traceable to the challenged conduct; and (3) the injury is likely to be redressed by a favorable court decision.” Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv. , 807 F.3d 1031, 1043 (9th Cir. 2015). “In many cases the standing question can be answered chiefly by comparing the allegations of the particular complaint to those made in prior standing cases.” Allen v. Wright , 468 U.S. 737, 751–52, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984).²

Mera is a Japanese-American resident of Los Angeles. Mera “disagrees with and is offended by the position espoused by Glendale” through the monument. Mera “would like to use Glendale's Central Park and its Adult Recreation Center” but now “avoids doing so.” Furthermore, “the presence of the Public Monument diminishes Mera's enjoyment of the Central Park and its Adult Recreation Center.”

Mera's allegations parallel those of other plaintiffs, particularly in Establishment Clause and environmental cases, who have satisfied the injury-in-fact requirement by alleging that their use and enjoyment of public land has been impaired. In the context of challenges to government-sponsored displays of religion on public property, we “have repeatedly held that inability to unreservedly use public land suffices as injury-in-fact.” Buono v. Norton , 371 F.3d 543, 547 (9th Cir. 2004) ; see also Ellis v. City of La Mesa , 990 F.2d 1518, 1523 (9th Cir. 1993) (holding that a plaintiff satisfied the injury-in-fact requirement by alleging that he was “offended” by the presence of a cross on public property, which he “otherwise would visit” but instead “avoids”). Similarly, in environmental cases, plaintiffs generally satisfy the injury-in-fact requirement by alleging that they are less able to use land affected by a defendant's conduct. See, e.g. , Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc. , 528 U.S. 167, 182–83, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (holding that plaintiffs who “would use” allegedly polluted areas located several miles from their homes, but “refrained” from doing so, had established injury in fact); Nat. Res. Def. Council v. EPA , 542 F.3d 1235, 1245 (9th Cir. 2008) (injury in fact established where plaintiffs alleged that their “use and enjoyment” of certain waterways “has been diminished” due to pollution). Although Mera asserts neither an Establishment Clause nor environmental claim, cases from these contexts may properly guide our evaluation of his alleged injury. See Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc. , 454 U.S. 464, 488, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (rejecting the argument that Establishment Clause cases create any “special exceptions” to the requirements of Article III standing).

Consistent with these precedents, we conclude that Mera's “inability to unreservedly use” Glendale's Central Park constitutes an injury in fact for purposes of Article III standing. Buono , 371 F.3d at 547. Like the Establishment Clause plaintiffs in Ellis and Buono, Mera allegedly “avoids” using certain public land, which he has previously visited and “would like to use” again, because he is “offended” by the government-sponsored display it contains. See id. at 546–47 ; Ellis , 990 F.2d at 1523. And like the plaintiffs in environmental cases, Mera has alleged both that he avoids public land that he would like to use again, and that his enjoyment of the park and the park's facilities has been “diminshe[d].” See Laidlaw , 528 U.S. at 182–83, 120 S.Ct. 693 ; Nat. Res. Def. Council , 542 F.3d at 1245. These allegations satisfy the injury-in-fact requirement.

Mera's injury is also...