Michiko Gingery v. City of Glendale , 831 F.3d 1222 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHIKO SHIOTA GINGERY, No. 14-56440
an individual; KOICHI MERA,
an individual; GAHT-US D.C. No.
CORPORATION, a California 2:14-cv-01291-PA-AJW
non-profit corporation,
Plaintiffs-Appellants,
OPINION
v.
CITY OF GLENDALE, a
municipal corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted June 7, 2016
Pasadena, California
Filed August 4, 2016
Before: Stephen Reinhardt, and Kim McLane Wardlaw,
Circuit Judges, and Edward R. Korman,* Senior District
Judge.
*
The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
2 GINGERY V. CITY OF GLENDALE
Opinion by Judge Wardlaw;
Concurrence by Judge Korman
SUMMARY**
Civil Rights
The panel affirmed the district court’s dismissal of an
action brought by a Japanese-American resident of Los
Angeles and a non-profit organization challenging
the City of Glendale’s installation of 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.
The panel first held that plaintiffs had standing because
the “inability to unreservedly use” Glendale’s Central Park,
where the monument was installed, constituted an injury in
fact for purposes of Article III standing.
Viewing the complaint’s factual allegations in the light
most favorable to plaintiffs, the panel concluded that
Glendale’s installation of the monument concerned an area of
traditional state responsibility and did not intrude on the
federal government’s foreign affairs power. The panel
therefore agreed with the district court that plaintiffs had not
plausibly claimed that Glendale’s actions were preempted
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GINGERY V. CITY OF GLENDALE 3
under the foreign affairs doctrine. The panel held that the
Supremacy Clause does not preempt a local government’s
expression, through a public monument, of a particular
viewpoint on a matter related to foreign affairs.
Concurring, Judge Korman wrote separately to suggest
that the plaintiffs had not alleged a valid cause of action that
anchored their claim of foreign affairs preemption.
COUNSEL
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.
4 GINGERY V. CITY OF GLENDALE
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
GINGERY V. CITY OF GLENDALE 5
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
6 GINGERY V. CITY OF GLENDALE
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
1
Plaintiffs also claim that the installation of the monument violates the
Glendale Municipal Code. The district court declined to exercise
supplemental jurisdiction over this claim and dismissed it without
prejudice.
GINGERY V. CITY OF GLENDALE 7
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 (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
2
While this appeal was pending, Plaintiffs notified us that Gingery had
died. As the parties agree, Gingery’s claim for injunctive and declaratory
relief is therefore moot. See Kennerly v. United States, 721 F.2d 1252,
1260 (9th Cir. 1983).
8 GINGERY V. CITY OF GLENDALE
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 (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.
GINGERY V. CITY OF GLENDALE 9
United for Separation of Church & State, Inc., 454 U.S. 464,
488 (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; Nat. Res.
Def. Council, 542 F.3d at 1245. These allegations satisfy the
injury-in-fact requirement.
Mera’s injury is also “fairly traceable to the challenged
action” of Glendale. Lujan v. Defs. of Wildlife, 504 U.S. 555,
560 (1992) (citation and alterations omitted). The complaint
alleges that Glendale “approved the installation” of the
monument, which was unveiled to the public three weeks
later. Mera avoids using Glendale’s Central Park and its
Adult Recreation Center “as a result of his alienation due to
the Public Monument.” These allegations “establish a line of
causation” between Glendale’s actions in approving the
installation of the monument and Mera’s alleged harm from
the presence of the monument in the park. Maya v. Centex
Corp., 658 F.3d 1060, 1070 (9th Cir. 2011) (citation omitted).
10 GINGERY V. CITY OF GLENDALE
Finally, Mera has demonstrated “that a favorable decision
is likely to redress” his injury. Barnes-Wallace v. City of San
Diego, 530 F.3d 776, 784 (9th Cir. 2008). If Glendale is
ordered to remove the monument from the park, Mera likely
would not feel “alienat[ed] due to the Public Monument” or
need to avoid using the park. Therefore, Mera has satisfied
the redressability requirement of Article III standing.
In sum, we conclude that Mera has Article III standing,
and the district court erred in concluding otherwise.3 If
Plaintiffs truly lacked standing, the district court would not
have had jurisdiction to reach the merits of their complaint.
See Fleck & Assocs., Inc. v. City of Phoenix, 471 F.3d 1100,
1106 (9th Cir. 2006). However, because we conclude that
Mera does have standing, we may proceed to consider the
district court’s determination that Plaintiffs failed to state a
claim upon which relief may be granted. See, e.g., Cal. ex
rel. Imperial Cty. Air Pollution Control Dist. v. U.S. Dep’t of
the Interior, 767 F.3d 781, 787 (9th Cir. 2014) (disagreeing
with the district court’s finding that plaintiffs lacked standing,
but nonetheless affirming the judgment); Info. Handling
Servs., Inc. v. Def. Automated Printing Servs., 338 F.3d 1024,
1031 (D.C. Cir. 2003) (disagreeing with the district court’s
finding that plaintiff lacked standing but proceeding to the
merits of the dispute).
3
Because Mera has standing and “the presence in a suit of even one
party with standing suffices to make a claim justiciable,” we need not
address whether GAHT-US satisfies the requirements for organizational
standing. Mont. Shooting Sports Ass’n v. Holder, 727 F.3d 975, 981 (9th
Cir. 2013) (citation omitted).
GINGERY V. CITY OF GLENDALE 11
B. Failure to State a Claim
The district court concluded that Plaintiffs had failed to
state a claim that Glendale’s installation of the Comfort
Women monument is preempted under the foreign affairs
doctrine. See U.S. Const. art. VI, cl. 2 (Supremacy Clause).
Viewing the complaint’s factual allegations in the light most
favorable to Plaintiffs, we conclude that Glendale’s
installation of the monument concerns an area of traditional
state responsibility and does not intrude on the federal
government’s foreign affairs power. We therefore agree with
the district court that Plaintiffs have not plausibly claimed
that Glendale’s actions are preempted.
It is well established that the federal government holds the
exclusive authority to administer foreign affairs. Movsesian
v. Victoria Versicherung AG, 670 F.3d 1067, 1071 (9th Cir.
2012) (en banc); see also United States v. Pink, 315 U.S. 203,
233 (1942) (“Power over external affairs is not shared by the
States; it is vested in the national government exclusively.”).
Under the foreign affairs doctrine, state laws that intrude on
this exclusively federal power are preempted, under either the
doctrine of conflict preemption or the doctrine of field
preemption. Movsesian, 670 F.3d at 1071.4 Under the
doctrine of conflict preemption, a state action must yield to
federal executive authority where “there is evidence of clear
conflict between the policies adopted by the two.” Am. Ins.
4
Municipalities are subject to the same rules of preemption as the states.
See Hines v. Davidowitz, 312 U.S. 52, 63 (1941) (“Our system of
government is such that the interest of the cities, counties and states, no
less than the interest of the people of the whole nation, imperatively
requires that federal power in the field affecting foreign relations be left
entirely free from local interference.”).
12 GINGERY V. CITY OF GLENDALE
Ass’n v. Garamendi, 539 U.S. 396, 421 (2003). Under the
doctrine of field preemption, even in the absence of any
express federal policy, a state action may be preempted where
(1) its “real purpose” does not concern an area of traditional
state responsibility, and (2) it intrudes on the federal
government’s foreign affairs power. Movsesian, 670 F.3d at
1074–75. Here, Plaintiffs do not argue that Glendale’s
installation of the monument conflicts with the federal
government’s policy on the Comfort Women dispute; indeed,
the complaint alleges that the United States has “consistently
sought to avoid” taking a position on the issue. Instead,
Plaintiffs invoke the doctrine of field preemption.
Applying the doctrine of field preemption, we have found
that a state or local government is more likely to exceed the
limits of its power when it creates remedial schemes or
regulations to address matters of foreign affairs. In Von
Saher v. Norton Simon Museum of Art, 592 F.3d 954 (9th Cir.
2010), for example, we held that a California statute, which
extended the statute of limitations for civil actions to recover
looted Holocaust-era artwork, was preempted because the
statute would often require courts to review the reparation
decisions of foreign nations, and thus intruded on the federal
government’s power “to make and resolve war.” Id. at
965–68. More recently, in Movsesian, our Court, sitting en
banc, concluded that a California statute, which vested
California courts with jurisdiction over certain insurance
claims brought by “Armenian genocide victim[s]” and
extended the statute of limitations for those claims, intruded
on the field of foreign affairs. 670 F.3d at 1076–77. We
explained that the California statute not only “expresses a
distinct political point of view on a specific matter of foreign
policy,” but also “subject[s] foreign insurance companies to
lawsuits in California” and would require courts applying the
GINGERY V. CITY OF GLENDALE 13
statute to engage in “a highly politicized inquiry into the
conduct of a foreign nation.” Id. at 1076.
What we have not considered, however, is the extent to
which a state or local government may address foreign affairs
through expressive displays or events, rather than through
remedies or regulations. In Movsesian, for example, we
emphasized that the law at issue was not “merely expressive”
and declined to “offer any opinion about California’s ability
to express support for Armenians by, for example, declaring
a commemorative day.” Id. at 1077 & n.5; see also Nat’l
Foreign Trade Council v. Natsios, 181 F.3d 38, 61 n.18 (1st
Cir. 1999) (holding that the Massachusetts Burma law, which
restricted the ability of Massachusetts and its agencies to
purchase goods or services from companies that do business
with Burma, was preempted but noting that “[w]e do not
consider here whether Massachusetts would be authorized to
pass a resolution condemning Burma’s human rights record
but taking no other action with regard to Burma”), aff’d sub
nom. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363
(2000). Here, we confront a variant of the issue we left open
in Movsesian: whether the Supremacy Clause preempts a
local government’s expression, through a public monument,
of a particular viewpoint on a matter related to foreign affairs.
Under the circumstances of this case, we conclude that it does
not.
First, Glendale’s establishment of a public monument to
advocate against “violations of human rights” is well within
the traditional responsibilities of state and local governments.
“Governments have long used monuments to speak to the
public.” Pleasant Grove City v. Summum, 555 U.S. 460, 470
(2009). In addition, “[c]ities, counties, and states have a long
tradition of issuing pronouncements, proclamations, and
14 GINGERY V. CITY OF GLENDALE
statements of principle on a wide range of matters of public
interest, including other matters subject to preemption, such
as foreign policy and immigration.” Alameda Newspapers,
Inc. v. City of Oakland, 95 F.3d 1406, 1414 (9th Cir. 1996).
For example, local governments have established memorials
for victims of the Holocaust5 and the Armenian genocide,6
and leaders of local governments have publicly taken
positions on matters of foreign affairs, from South African
apartheid in the 1980s7 to the recent actions of Boko Haram.8
Here, by dedicating a local monument to the plight of the
Comfort Women in World War II, Glendale has joined a long
list of other American cities that have likewise used public
monuments to express their views on events that occurred
beyond our borders.
In Plaintiffs’ view, however, Glendale’s “real purpose” is
to insert itself into foreign affairs. We disagree. According
to the monument’s plaque, Glendale’s self-stated purposes
are: (i) to preserve the “memory” of the Comfort Women,
(ii) to “celebrate” Glendale’s proclamation of a “Comfort
Women Day” and the House of Representatives’ decision to
pass a resolution addressing historical responsibility for the
5
See Holocaust Memorials, Ctr. for Holocaust & Genocide Stud., Univ.
of Minn., http://ittybittyurl.com/2EI6 (last visited July 27, 2016).
6
See Monument at Bicknell Park in Montebello, California, Armenian
Nat’l Inst., http://ittybittyurl.com/2EI3 (last visited July 27, 2016).
7
See Bill Boyarsky, Mayor’s Blast at Apartheid Affirms Appeal to
Blacks, L.A. Times, Jan. 20, 1985, http://ittybittyurl.com/2EI4.
8
See Press Release, City of Atlanta, Statement of Mayor Kasim Reed on
the Kidnapped Nigerian Girls (May 7, 2014), available at
http://ittybittyurl.com/2EI5.
GINGERY V. CITY OF GLENDALE 15
Comfort Women, and (iii) to express “sincere hope” that
“these unconscionable violations of human rights shall never
recur.” These purposes—memorializing victims and
expressing hope that others do not suffer a similar fate—are
entirely consistent with a local government’s traditional
function of communicating its views and values to its
citizenry. Moreover, even if Glendale’s purpose was, as one
City Council member stated, to “put the city of Glendale on
the international map,” this purpose does not conflict with the
role local governments have traditionally played in public
discourse related to foreign affairs. Cf. Farley v. Healey,
431 P.2d 650, 653 (Cal. 1967) (“Even in matters of foreign
policy it is not uncommon for local legislative bodies to make
their positions known.”). Therefore, Glendale’s “real
purpose” in installing the Comfort Women monument
concerns “an area of traditional state responsibility.”
Movsesian, 670 F.3d at 1075.
Second, even if Glendale were acting outside an area of
traditional state responsibility, Plaintiffs have not plausibly
alleged that Glendale’s actions “intrude[] on the federal
government’s foreign affairs power.” Id. at 1074. “To
intrude on the federal government’s foreign affairs power, a
[state’s action] must have more than some incidental or
indirect effect on foreign affairs.” Cassirer v. Thyssen-
Bornemisza Collection Found., 737 F.3d 613, 617 (9th Cir.
2013) (citation omitted). While Plaintiffs broadly assert that
the monument “threatens to negatively affect U.S. foreign
relations with Japan,” Plaintiffs do not support this assertion
with specific allegations that Glendale’s actions have had, or
are likely to have, any appreciable effect on foreign affairs.
See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). At
most, Plaintiffs allege that various Japanese officials have
expressed disapproval of the monument. However, Plaintiffs
16 GINGERY V. CITY OF GLENDALE
have not further alleged that this disapproval has in any way
affected relations between the United States and Japan. In
addition, Plaintiffs do not allege that the federal government
has expressed any view on the monument—much less
complained of interference with its diplomatic agenda. Thus,
Plaintiffs have failed to plausibly allege that Glendale’s
installation of the monument has had “more than some
incidental or indirect effect on foreign affairs.” Cassirer,
737 F.3d at 617 (citation omitted).
Moreover, in contrast to state actions we have found
preempted, Glendale has taken no action that would affect the
legal rights and responsibilities of any individuals or foreign
governments. For example, Glendale has not, as in Von
Saher or Movsesian, created a cause of action for victims
affected by the Comfort Women program, or extended the
statute of limitations for any existing cause of action that
might provide relief to these individuals. See Movsesian,
670 F.3d at 1076–77; Von Saher, 592 F.3d at 965–68. Nor
has Glendale imposed any regulatory restrictions on the
exchange of goods manufactured by parties who may have
played a role in the Comfort Women program. See Crosby,
530 U.S. at 373–74. Rather, by erecting a symbolic display
commemorating what it views as a historical tragedy,
Glendale has appropriately exercised the expressive powers
of a local government and stopped short of interfering with
the federal government’s foreign affairs power.
Glendale’s installation of the Comfort Women monument
concerns an area of traditional state responsibility and does
not intrude on the federal government’s foreign affairs power.
As a result, Plaintiffs have failed to state a claim that
GINGERY V. CITY OF GLENDALE 17
Glendale’s actions are preempted. See Movsesian, 670 F.3d
at 1074.9
C. Leave to Amend
Finally, Plaintiffs argue that the district court abused its
discretion by dismissing their complaint without granting
leave to amend. “Dismissal without leave to amend is proper
if it is clear that the complaint could not be saved by
amendment.” Kendall v. Visa U.S.A., Inc., 518 F.3d 1042,
1051 (9th Cir. 2008). Before the district court, Plaintiffs did
not request leave to amend, and the district court found that
no amendment could cure the complaint’s deficiencies. On
appeal, Plaintiffs have not identified any additional
allegations that could save their complaint from dismissal.
Accordingly, we conclude that the district court was within its
discretion to dismiss Plaintiffs’ complaint without leave to
amend.
9
As an alternative basis for affirming the district court, Judge Korman
concludes that Plaintiffs lack a cause of action under 42 U.S.C. § 1983.
In Judge Korman’s view, the foreign affairs provisions of the Constitution
do not create an individual right enforceable under Section 1983. He may
very well be correct. However, we decline to address this issue of first
impression for our Court. See Gerling Glob. Reinsurance Corp. of Am. v.
Garamendi, 400 F.3d 803, 810–11 (9th Cir.), as amended on denial of
reh’g, 410 F.3d 531 (9th Cir. 2005). It was not raised by either party to
the district court or before us, and the district court did not rule on this
basis. “[W]e are hesitant to address an issue without the benefit of any
briefing from the parties.” Bledsoe v. Bledsoe (In re Bledsoe), 569 F.3d
1106, 1113 (9th Cir. 2009). In any event, we need not reach the issue in
this appeal, for “[w]e may affirm the district court’s dismissal on any
ground that is supported by the record.” Hartmann, 707 F.3d at 1121.
18 GINGERY V. CITY OF GLENDALE
IV. Conclusion
The Constitution places important limits on a
municipality’s ability to engage in matters related to foreign
affairs. We conclude that Glendale has not exceeded those
limits by installing a monument to commemorate the Comfort
Women. Therefore, the district court properly dismissed
Plaintiffs’ preemption claim.
AFFIRMED.
KORMAN, District Judge, concurring:
While I agree that Koichi Mera, one of the plaintiffs,
meets the “irreducible constitutional minimum” requirements
to allege Article III standing, Lujan v. Defs. of Wildlife,
504 U.S. 555, 560 (1992), and do not take issue with the
manner in which the majority resolves the merits of the
appeal, I write separately to suggest that the plaintiffs have
not alleged a valid cause of action that anchors their claim of
foreign affairs preemption. Simply mouthing the words
foreign affairs preemption does not do it. The plaintiffs assert
only in the vaguest manner that their complaint is brought
under 42 U.S.C. § 1983. Nevertheless, Section 1983 cannot
support their cause of action. Nor is an equitable cause of
action to restrain regulatory action in violation of the
Constitution available here.
I. Section 1983.
The availability of a cause of action under Section 1983
depends upon whether a plaintiff has alleged “the deprivation
GINGERY V. CITY OF GLENDALE 19
of any rights, privileges, or immunities secured by the
Constitution and laws.” 42 U.S.C. § 1983; see also Golden
State Transit Corp. v. City of Los Angeles (Golden State II),
493 U.S. 103, 105 (1989). The right being deprived here
cannot be found in the Supremacy Clause, which “is not the
‘source of any federal rights.’” Armstrong v. Exceptional
Child Ctr., Inc., 135 S. Ct. 1378, 1383 (2015) (quoting
Golden State II, 493 U.S. at 107); see also Associated Gen.
Contractors, San Diego Chapter, Inc., Apprenticeship &
Training Tr. Fund v. Smith, 74 F.3d 926, 931 (9th Cir. 1996)
(“[P]reemption of state law under the Supremacy
Clause—being grounded not on individual rights but instead
on considerations of power—will not [itself] support an
action under section 1983 . . . .” (quoting Segundo v. City of
Rancho Mirage, 813 F.2d 1387, 1394 (9th Cir. 1987)); White
Mountain Apache Tribe v. Williams, 810 F.2d 844, 848 (9th
Cir. 1985) (“We believe that § 1983 was not intended to
encompass those constitutional provisions which allocate
power between the state and federal government.”).
Moreover, neither the Supreme Court nor the Ninth
Circuit has ever recognized that the foreign affairs provisions
of the Constitution, which certainly do not confer any rights
on their face, see, e.g., U.S. Const. art. II, § 2, cls. 1–2; id. art.
I, § 8, cls. 1, 3, 4, 10–14, contain an implicit individual right.
Indeed, in Gerling Global Reinsurance Corporation of
America v. Garamendi, 400 F.3d 803 (9th Cir. 2005), we
observed that the district court “may have been correct” in the
“abstract” when it concluded that the foreign affairs power
did not “implicate a right, privilege or immunity secured by
the Constitution or laws of the United States,” id. at 810.
Nevertheless, because we concluded they were prevailing
parties for reasons that need not be discussed, the plaintiffs
were entitled to an award of counsel fees pursuant to
20 GINGERY V. CITY OF GLENDALE
42 U.S.C. § 1988. While we did not definitively resolve the
issue, we “assum[ed] that the foreign affairs power does not
confer rights within the meaning of § 1983.” Gerling,
400 F.3d at 807. Judge Graber, who concurred in the result,
directly addressed the issue. She observed without
qualification that “the foreign affairs power, like the
Supremacy Clause, creates no individual rights enforceable
under 28 U.S.C. § 1983.” Id. at 811. Because I agree that the
foreign affairs provisions create no individual rights, the
plaintiffs lack a cause of action pursuant to 42 U.S.C. § 1983.
II. Equitable Cause of Action.
Unlike Section 1983, the availability of an equitable cause
of action to enjoin purportedly unconstitutional conduct does
not necessarily rely upon the fact that a particular
constitutional provision confers an individual right on the
plaintiff. Free Enter. Fund v. Pub. Co. Accounting Oversight
Bd., 561 U.S. 477, 491 n.2 (2010). Instead, in a preemption
case, the availability of such a cause of action hinges on the
plaintiff’s being subject to an enforcement or other regulatory
action. The Supreme Court has long recognized that a
plaintiff may bring a suit to enjoin unconstitutional regulatory
conduct. Courts often cite as the forebear of that type of
equitable action the case of Ex parte Young, 209 U.S. 123
(1908). See, e.g., Verizon Md. Inc. v. Pub. Serv. Comm’n,
535 U.S. 635, 645 (2002). Young was not a preemption case;
it involved a claim by shareholders of a railroad that a state
law regulating railroad rates violated, inter alia, the
Fourteenth Amendment’s Due Process Clause. Nevertheless,
the Young Court held that “individuals who, as officers of the
state, . . . threaten and are about to commence proceedings . . .
to enforce against parties affected an unconstitutional act,
violating the Federal Constitution, may be enjoined by a
GINGERY V. CITY OF GLENDALE 21
Federal court of equity from such action.” 209 U.S. at
155–56.
The Supreme Court has applied that holding in
preemption cases, making it clear that, in such cases, the
equitable cause of action is available only to enjoin acts of
regulation. See Armstrong, 135 S. Ct. at 1384 (“[W]e have
long recognized [that] if an individual claims federal law
immunizes him from state regulation, the court may issue an
injunction upon finding the state regulatory actions
preempted.”); see also, e.g., Ray v. Atl. Richfield Co.,
435 U.S. 151, 155 (1978); Va. Office for Prot. & Advocacy v.
Stewart, 563 U.S. 247, 255–56 (2011). In Shaw v. Delta Air
Lines, Inc., 463 U.S. 85 (1983), the Supreme Court reiterated
the basis for these types of suits: “A plaintiff who seeks
injunctive relief from state regulation, on the ground that such
regulation is pre-empted by a federal statute . . . presents a
federal question which the federal courts have jurisdiction
under 28 U.S.C. § 1331 to resolve,” id. at 96 n.14; see also
Golden State II, 493 U.S. at 113 (Kennedy, J., dissenting)
(“[A] private party can assert an immunity from state or local
regulation on the ground that the Constitution . . . allocate[s]
the power to enact the regulation to the National Government,
to the exclusion of the States.”); cf. Alameda Newspapers,
Inc. v. City of Oakland, 95 F.3d 1406, 1413 (9th Cir. 1996)
(“If a municipality’s action [in a case asserting preemption by
the National Labor Relations Act] does not rise to the level of
regulation, it is not preempted.”). Although the Shaw Court
dressed the inquiry in the language of “jurisdiction,” rather
than of “cause of action,” the two inquiries are functionally
the same in asking why a plaintiff should be allowed to bring
the suit in federal court. Nevertheless, while the questions are
intertwined, the Supreme Court recently suggested that the
cause-of-action inquiry is not jurisdictional. See Lexmark
22 GINGERY V. CITY OF GLENDALE
Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377,
1387 n.4 (2014).
Moreover, the Supreme Court’s cases dealing with
preemption specifically in the foreign affairs domain do not
suggest the availability of an equitable cause of action outside
of the regulatory context. See, e.g., Am. Ins. Ass’n v.
Garamendi, 539 U.S. 396, 409–12 (2003) (insurance
companies brought action alleging preemption of California
law requiring disclosure of policies issued to persons in
Europe in effect between 1920 and 1945); Crosby v. Nat’l
Foreign Trade Council, 530 U.S. 363, 367, 370–71 (2000)
(companies who did business with Burma brought action
alleging preemption of a Massachusetts statute, the purpose
of which was to prevent or discourage them from transacting
business with Burma); Zschernig v. Miller, 389 U.S. 429,
432–33 (1968) (striking down state law regulating the
inheritance rights of foreign beneficiaries of Oregon residents
because it did so in a way that constituted “an intrusion by
the State into the field of foreign affairs which the
Constitution entrusts to the President and the Congress”).
Nor do our cases in this area suggest a broader cause of
action. See, e.g., Movsesian v. Victoria Versicherung AG,
670 F.3d 1067, 1070–71, 1077 (9th Cir. 2012) (en banc)
(foreign insurance companies could raise defensively a
challenge to a California law that subjected them to suits in
California “by overriding forum-selection provisions and
greatly extending the statute of limitations for a narrowly
defined class of claims” in a way that constituted an intrusion
on the conduct of foreign policy); Von Saher v. Norton Simon
Museum of Art at Pasadena, 592 F.3d 954, 957–59 (9th Cir.
2009) (similar); Deutsch v. Turner Corp., 324 F.3d 692, 703,
716 (9th Cir. 2003) (similar).
GINGERY V. CITY OF GLENDALE 23
In sum, this case involves a purely expressive, non-
regulatory action by the City of Glendale that is not alleged
to, and does not, implicate any right conferred by the
Constitution or laws of the United States, the predicate for a
Section 1983 cause of action. Moreover, because the conduct
of the City of Glendale does not subject plaintiffs to an
enforcement or other regulatory action, it does not come
within the category of cases in which an equitable cause of
action would be available to restrain conduct that touches on
the power of the President or Congress in the area of foreign
affairs.