United States v. City of Arcata

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-counter-defendant-

Appellee,

v.

CITY OF ARCATA and CITY OF

EUREKA,

Defendants-counter-claimants-

Appellants,

v. No. 09-16780

ROBERT S. GATES, in his official  D.C. No.

4:08-cv-05725-SBA

capacity as United States Secretary

of Defense; DAVID S. CHU, in his OPINION

official capacity as United States

Under Secretary of Defense for

Personnel Readiness,

Counter-defendants-Appellees,

v.

VOTE YES ON MEASURES F AND J

COMMITTEE,

Defendant-intervenor.



Appeal from the United States District Court

for the Northern District of California

Saundra B. Armstrong, District Judge, Presiding

Submitted November 4, 2010*

San Francisco, California

*The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

20257

20258 UNITED STATES v. CITY OF ARCATA

Filed December 17, 2010

Before: Alex Kozinski, Chief Judge, Pamela Ann Rymer,

Circuit Judge, and Matthew F. Kennelly, District Judge.**

Opinion by Judge Kennelly

**The Honorable Matthew F. Kennelly, United States District Judge for

the Northern District of Illinois, sitting by designation.

20260 UNITED STATES v. CITY OF ARCATA

COUNSEL

Joel McElvain, Department of Justice, Washington, DC;

Christine Noel Kohl, Department of Justice, Washington, DC;

and Scott R. McIntosh, Department of Justice, Washington,

DC, for the plaintiff-counter-defendant-appellee and counter-

defendants-appellees.

Brad Yamauchi, Minami Tamaki LLP, San Francisco, Cali-

fornia; Nancy Diamond, Law Offices of Nancy Diamond,

Arcata, California; Michael Sorgen, Law Offices of Michael

S. Sorgen, San Francisco, California; and Sheryl Schaffner,

City of Eureka, Eureka, California, for the defendants-

counter-claimants.

OPINION

KENNELLY, District Judge:

Two local ordinances, the Arcata Youth Protection Act and

the Eureka Youth Protection Act, prohibit agents or employ-

ees of the federal government from engaging in military

recruitment activities targeting minors. The United States

sued to bar enforcement of the ordinances. The district court

granted the government’s motion for judgment on the plead-

ings and permanently enjoined the cities of Arcata and Eureka

UNITED STATES v. CITY OF ARCATA 20261

from enforcing the ordinances. For the reasons stated below,

we affirm.

I. Facts and Procedural History

The cities of Arcata and Eureka (“the cities”) are California

municipalities. On November 4, 2008, voters in the cities

approved Ballot Measures F and J, which enacted the Arcata

and Eureka Youth Protection Acts1 respectively (“the ordi-

nances”). The ordinances were proposed in response to

alleged violations of laws governing military recruitment. The

“Findings” contained in each ordinance state that “[m]ilitary

recruiters target teens through ad campaigns, mailings, tele-

phone calls, email, and direct personal contact. They promote

enlistment by glorifying military service and exaggerating the

educational and career benefits, while ignoring the dangers.”

The ordinances purport to bar the federal government from

“recruit[ing], initiat[ing] contact with for the purpose of

recruiting, or promot[ing] the future enlistment of any person

under the age of eighteen into any branch of the United States

Armed Forces.” They also subject military recruiters to civil

penalties for each infraction. At the same time, the ordinances

specifically exempt “individuals who are not employed by or

agents of the U.S. government” from their restrictions. The

cities have expressed their intent to enforce the ordinances

against the federal government.

On December 23, 2008, the United States brought suit

against the cities seeking a declaration that the ordinances are

invalid under the Supremacy Clause of the United States Con-

stitution. The cities filed their answer on February 12, 2009,

denying that the ordinances are unconstitutional and advanc-

ing several affirmative defenses. The cities also counter-

claimed for a declaratory judgment upholding the ordinances

1

The parties agree that the Arcata and Eureka ordinances are materially

identical.

20262 UNITED STATES v. CITY OF ARCATA

and for an injunction prohibiting the government from recruit-

ing any Arcata or Eureka resident under the age of seventeen

into the military.

The government moved for judgment on the pleadings. It

argued that the ordinances violate the doctrine of intergovern-

mental immunity because they directly regulate and discrimi-

nate against the federal government. The government also

contended that the ordinances were preempted by federal law.

It sought a permanent injunction against the cities’ enforce-

ment of the ordinances.

The district court granted the government’s motion,

declared the ordinances invalid, and permanently enjoined the

cities from enforcing them. Among other conclusions, the

court found the ordinances unconstitutional because they

sought “to subject the conduct of the federal government

directly to local government control,” thereby violating the

doctrine of intergovernmental immunity.

II. Discussion

On appeal, the cities challenge for the first time the district

court’s subject matter jurisdiction. We address this issue

before turning to the merits.

A. Jurisdiction

The cities presented two jurisdictional arguments in their

reply brief. First, the cities argue that the government has not

satisfied the injury in fact requirement for Article III standing.

Second, the cities assert that because the government’s com-

plaint presents only a federal defense and not a federal claim,

the government has misused the Declaratory Judgment Act to

try to establish federal question jurisdiction where it does not

in fact exist.

UNITED STATES v. CITY OF ARCATA 20263

1. Injury in Fact

The cities argue that the government has alleged only a

hypothetical negative impact on federal recruiting objectives

and thus has not shown the injury in fact necessary to confer

standing. The cities do not appear to contest the other two

requirements for standing under Article III, causation and

redressability. See Lujan v. Defenders of Wildlife, 504 U.S.

555, 560-61 (1992).

[1] To demonstrate injury in fact, a plaintiff “must show

that [it] is under threat of suffering ‘injury in fact’ that is con-

crete and particularized” and “actual and imminent, not con-

jectural or hypothetical.” Summers v. Earth Island Inst., 129

S. Ct. 1142, 1149 (2009). Put another way, “Art[icle] III

requires the party who invokes the court’s authority to ‘show

that he personally has suffered some actual or threatened

injury as a result of the putatively illegal conduct of the defen-

dant.’ ” Valley Forge Christian Coll. v. Ams. United for Sepa-

ration of Church & State, Inc., 454 U.S. 464, 472 (1982)

(quoting Gladstone, Realtors v. Vill. of Bellwood, 441 U.S.

91, 99 (1979)) (emphasis added). If the plaintiff is not the tar-

get of the challenged government action or inaction, “standing

is not precluded, but it is ordinarily ‘substantially more diffi-

cult’ to establish.” Lujan, 504 U.S. at 562 (quoting Allen v.

Wright, 468 U.S. 737, 758 (1984)).

[2] The government has established Article III standing.

This case presents a situation in which the plaintiff—the

government—is the sole target of the challenged governmen-

tal action. The ordinances expressly forbid agents or employ-

ees of the United States from “recruit[ing], initiat[ing] contact

with for the purpose of recruiting, or promot[ing] the future

enlistment of any person under the age of eighteen into any

branch of the United States Armed Forces.” The ordinances,

which are enforced by civil penalties, proscribe some activity

encouraged by federal law. See, e.g., 10 U.S.C. § 503(a)(1)

(requiring the military to conduct “intensive recruiting cam-

20264 UNITED STATES v. CITY OF ARCATA

paigns to obtain enlistments”); 10 U.S.C. § 505(a) (permitting

seventeen-year-olds to enlist in the military).

[3] It is also undisputed that the cities would enforce the

ordinances if they are upheld. The cities conceded in their

respective answers that each “intends to enforce its ordinance

against all those who violate the ordinance, including but not

limited to agents of the federal government.” In other words,

the ordinances require federal recruiters to alter their conduct

or face civil penalties. Cf. Pub. Utils. Comm’n v. United

States, 355 U.S. 534, 538-39 (1958) (state commission

“plainly indicated an intent to enforce” state law regulating

rates for transport of federal property, and thus controversy as

to whether federal government must comply with statute was

“present and concrete”). The cities’ adoption and threatened

enforcement of the ordinances thus subject the government to

an imminent adverse impact. The requirements of Article III

are met.

2. Misuse of the Declaratory Judgment Act

The cities also argue that the government is misusing the

Declaratory Judgment Act to manufacture a federal claim.

Framing the government’s lawsuit as a “federal preemption

defense to a state cause of action,” the cities argue that the

government has sought to establish the validity of a federal

defense without presenting a federal claim, in violation of the

well-pleaded complaint rule.

[4] “[F]ederal jurisdiction exists only when a federal ques-

tion is presented on the face of a properly pleaded complaint.”

JustMed, Inc. v. Byce, 600 F.3d 1118, 1124 (9th Cir. 2010)

(internal quotation marks omitted). The mere existence of a

federal defense to a state law claim is insufficient to create

federal jurisdiction over a case. Louisville & Nat’l R.R. v.

Mottley, 211 U.S. 149, 152 (1908).

[5] The well-pleaded complaint rule, however, poses no

bar to federal jurisdiction in this case. Congress has, by stat-

UNITED STATES v. CITY OF ARCATA 20265

ute, provided the district courts with original jurisdiction over

“all civil actions, suits or proceedings commenced by the

United States.” 28 U.S.C. § 1345; see also United States v.

Morros, 268 F.3d 695, 702-03 (9th Cir. 2001) (“[T]he United

States was the plaintiff in the case. Therefore, regardless of

the outcome of federal question jurisdiction, the district court

has independent subject matter jurisdiction under 28 U.S.C.

§ 1345.” (emphasis added)). In this case, the government

brought suit and invoked § 1345 in its complaint.

[6] The district court also had federal question jurisdiction

over the case pursuant to 28 U.S.C. § 1331, which provides

the district courts with “original jurisdiction of all civil

actions arising under the Constitution, laws, or treaties of the

United States.” The government’s complaint posed a federal

question in its own right because it sought invalidation of the

ordinances under federal law. See Shaw v. Delta Air Lines,

Inc., 463 U.S. 85, 96 n.14 (1983).

For these reasons, we reject the cities’ belated contention

that federal courts lack subject matter jurisdiction over this

case.

B. The Supremacy Clause

Turning to the merits, the district court held that the ordi-

nances violate the doctrine of intergovernmental immunity,

for two reasons. First, the court determined that the ordi-

nances impermissibly seek to regulate the federal government

directly. Second, the court found that the ordinances imper-

missibly discriminate against the federal government. We

review these conclusions de novo to determine whether, “tak-

ing all the allegations in the pleadings as true, the moving

party is entitled to judgment as a matter of law.” Rose v.

Chase Bank USA, N.A., 513 F.3d 1032, 1036 (9th Cir. 2008)

(internal quotation marks omitted).

[7] The doctrine of intergovernmental immunity arose

from the Supreme Court’s decision in McCulloch v. Mary-

20266 UNITED STATES v. CITY OF ARCATA

land, 17 U.S. (4 Wheat.) 316 (1819), which established that

“the states have no power, by taxation or otherwise, to retard,

impede, burden, or in any manner control, the operations of

the constitutional laws enacted by congress to carry into exe-

cution the powers vested in the general government.” Id. at

436. Courts take “a functional approach to claims of govern-

mental immunity, accommodating of the full range of each

sovereign’s legislative authority.” North Dakota v. United

States, 495 U.S. 423, 435 (1990). A state or local law is

invalid “only if it regulates the United States directly or dis-

criminates against the Federal Government or those with

whom it deals.” Id.

[8] The district court correctly held that the ordinances vio-

late intergovernmental immunity in both respects. First, the

ordinances seek to directly regulate the conduct of agents of

the federal government. As noted above, the ordinances—by

their express terms—prohibit military recruiters from recruit-

ing or attempting to recruit individuals under the age of eigh-

teen. By constraining the conduct of federal agents and

employees, the ordinances seek to regulate the government

directly. See Tennessee v. Davis, 100 U.S. 257, 263 (1879)

(noting that the federal government “can act only through its

officers and agents”).

We have relied on intergovernmental immunity in refusing

to enforce state statutes against the federal government under

circumstances far more ambiguous than those present here.

For example, in Blackburn v. United States, 100 F.3d 1426

(9th Cir. 1996), we declined to subject the federal government

to a California statute imposing safety requirements on

resorts. Id. at 1435. Though the state statute did not target the

federal government alone, we nevertheless concluded that

“[a]pplication of the [statute] in the present case would violate

the Supremacy Clause by constituting a direct and intrusive

regulation by the State of the Federal Government’s operation

of its property at Yosemite.” Id. Here, the ordinances do not

UNITED STATES v. CITY OF ARCATA 20267

merely regulate the federal government incidentally; rather,

they are expressly intended to do so.

[9] For the same reason, the ordinances also discriminate

against the United States. “The nondiscrimination rule finds

its reason in the principle that the States may not directly

obstruct the activities of the Federal Government.” North

Dakota, 495 U.S. at 437-38. The ordinances at issue do not

affect the federal government incidentally as the consequence

of a broad, neutrally applicable rule. Rather, they specifically

target and restrict the conduct of military recruiters. At the

same time, the ordinances state that they do not “prevent indi-

viduals who are not employed by or agents of the U.S. gov-

ernment from encouraging people under the age of eighteen

to join the military.” A state or local law discriminates against

the federal government if “it treats someone else better than

it treats” the government. Id. at 438. The cities’ differential

treatment of identical conduct based on the actor’s status as

a federal agent or employee fits squarely within this frame-

work.

[10] The cities argue that the ordinances merely prohibit

conduct “already forbidden” by federal law, including the

Optional Protocol to the Convention on the Rights of the

Child on the Involvement of Children in Armed Conflict. But

the cities offer no authority to support such an exception to

the doctrine of intergovernmental immunity. A state or local

law that directly regulates the conduct of the federal govern-

ment or discriminates against it is invalid, even if it is no

more restrictive than federal law. In any event, the ordinances

here would not fit within any such exception, as they impose

greater restrictions on military recruitment than does federal

law.

The cities also raise the Tenth Amendment as a defense,

arguing that the ordinances represent a valid exercise of the

cities’ general police powers. The Tenth Amendment provides

that “[t]he powers not delegated to the United States by the

20268 UNITED STATES v. CITY OF ARCATA

Constitution, nor prohibited by it to the States, are reserved to

the States respectively, or to the people.” U.S. Const. amend.

X. But regulating the federal government’s military recruit-

ment efforts is not a power reserved to the states. The Consti-

tution expressly provides Congress with the power to “raise

and support Armies” and to “make Rules for the Government

and Regulation of the land and naval Forces.” U.S. Const. art.

I, § 8, cls. 12, 14. And the Supreme Court has made clear that

the federal government “can determine, without question from

any State authority, how the armies shall be raised.” Perpich

v. Dep’t of Def., 496 U.S. 334, 353 n.27 (1990) (quoting Tar-

ble’s Case, 80 U.S. (13 Wall.) 397, 408 (1872)); see also New

York v. United States, 505 U.S. 144, 156 1992) (“If a power

is delegated to Congress in the Constitution, the Tenth

Amendment expressly disclaims any reservation of that power

to the States . . . .”).

Finally, the cities asserted in their brief opposing the gov-

ernment’s motion for judgment on the pleadings that they will

enforce the ordinances only to the extent they are consistent

with federal law. As already explained, this does not cure the

ordinances’ infirmity because there is no exception to the doc-

trine of intergovernmental immunity for state statutes consis-

tent with federal law. And regardless, the cities’ promise of

self-restraint does not affect our consideration of the ordi-

nances’ validity. Cf. Powell’s Books, Inc. v. Kroger, 622 F.3d

1202, 1215 (9th Cir. 2010) (permanently enjoining enforce-

ment of state statutes under the First Amendment and reject-

ing a similar argument: “We may not uphold the statutes

merely because the state promises to treat them as properly

limited.”).

Because we conclude that the ordinances are unconstitu-

tional under the doctrine of intergovernmental immunity, we

need not address the government’s arguments that Congress

has preempted them. We also decline to consider the non-

jurisdictional arguments in the cities’ reply brief concerning

injunctive relief, severability and free speech, because the cit-

UNITED STATES v. CITY OF ARCATA 20269

ies failed to present them clearly in their opening brief. See

Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n

appeal, arguments not raised by a party in its opening brief are

deemed waived.”).

III. Conclusion

For the foregoing reasons, the judgment of the district court

is AFFIRMED.