Vegan Outreach, Inc. v. Petey Chapa

FILED

NOT FOR PUBLICATION OCT 20 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

VEGAN OUTREACH, INC., et al., No. 10-56991

Plaintiffs-Appellants, D.C. No. 2:10-cv-06525-GW-JCG

v.

MEMORANDUM *

PETEY CHAPA, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

George H. Wu, District Judge, Presiding

Argued and Submitted October 14, 2011

Pasadena, California

Before: SILVERMAN and WARDLAW, Circuit Judges, and SESSIONS, District

Judge.**

Vegan Outreach, Inc. and Niµµi Benoit (together 'Vegan Outreach') allege

violations of their federal and California constitutional rights due to the Free

Speech Policies issued by the Los Angeles Community College District

*

This disposition is not appropriate for publication and is not precedent

except as provided by 9th Cir. R. 36-3.

**

The Honorable William K. Sessions, III, District Judge for the U.S.

District Court for Vermont, Burlington, sitting by designation.

('LACCD') and enforced against them at East Los Angeles College ('East'), an

LACCD campus. Vegan Outreach appeals the district court's denial of its request

for a preliminary injunction and dismissal of its damages claims against Ms. Chapa

by grant of qualified immunity. Because we lacµ jurisdiction to address the district

court's qualified immunity grant,1 we turn to the preliminary injunction. Vegan

Outreach does not satisfy the criteria for standing to seeµ a preliminary injunction

against Ms. Chapa, and, consequently, we dismiss its appeal and remand the case

to the district court for further proceedings in accordance with this disposition.

We have jurisdiction over appeals of preliminary injunction decisions under

28 U.S.C. y 1292(a)(1). Regardless of whether the issue is properly raised by the

1

A grant of qualified immunity is not 'independently interlocutorily

appealable.' Krug v. Lutz, 329 F.3d 692, 694 n.2 (9th Cir. 2003). See also

Sanchez v. Canales, 574 F.3d 1169, 1172-73 (9th Cir. 2009) (contrasting the

availability of interlocutory jurisdiction to review denials of qualified immunity

with the general absence of interlocutory jurisdiction to hear appeals from grants of

qualified immunity). The district court did not submit a final order resolving all

issues in this case, and our ruling today only dismisses Vegan Outreach's appeal

for lacµ of standing to seeµ a preliminary injunction against Ms. Chapa. It does not

prevent Vegan Outreach from amending its complaint or pursuing the permanent

equitable remedies it seeµs. As a result, Vegan Outreach's appeal is interlocutory.

Nor is this an exceptional case in which a grant of qualified immunity is

'inextricably entwined with a denial of qualified immunity,' permitting pendant

jurisdiction to hear both claims on appeal. Eng v. Cooley, 552 F.3d 1062, 1067

(9th Cir. 2009) (internal citation omitted). The district court solely dismissed the

damages claim against Ms. Chapa on qualified immunity grounds. Since it is an

independent, interlocutory issue, we cannot review the district court's grant of

qualified immunity at this time.

Page 2 of 5

parties, we are 'obliged' to evaluate standing as a threshold requirement under

Article III. Columbia Basin Apartment Assùn v. City of Pasco, 268 F.3d 791, 796-

97 (9th Cir. 2001) (internal citation omitted).

Vegan Outreach lacµs standing to seeµ a preliminary injunction against Ms.

Chapa. To establish standing and invoµe the jurisdiction of the federal courts, a

plaintiff must allege: (1) an injury in fact; (2) causation; and (3) 'a liµelihood that a

favorable decision will redress the plaintiff's alleged injury.' Lopez v.

Candaele, 630 F.3d 775, 785 (9th Cir. 2010) (citing Lujan v. Defenders of Wildlife,

504 U.S. 555, 560-61 (1992)).

Here, Vegan Outreach failed to demonstrate that a preliminary injunction

against Ms. Chapa, the sole remaining defendant, would liµely redress the harm

allegedly caused by the Free Speech Policies. To maµe out a redressable injury for

standing purposes, a plaintiff need only show that 'it is liµely, although not certain,

that his injury can be redressed by a favorable decision.' Wolfson v. Brammer, 616

F.3d 1045, 1056 (9th Cir. 2010). Since plaintiffs must establish standing

independently for each remedy sought, Friends of the Earth, Inc. v. Laidlaw Envt'l

Servs. (TOC), Inc., 528 U.S. 167, 185 (2000), Vegan Outreach was required to

show specifically that the preliminary injunction it seeµs against Ms. Chapa is

liµely to redress its injuries caused by the Free Speech Policies.

Page 3 of 5

The record, as it stands, leaves too thin a basis to predict that a preliminary

injunction is liµely to be effective. Vegan Outreach only alleges Ms. Chapa 'is an

employee of LACCD in the Student Services Department of [East],' who, 'at

times, has been assigned to implement LACCD's Speech Policies at [East's]

campus.' It does not include in its suit any other officials possessed with the

authority to enact, modify, or enforce the Free Speech Policies against it.

We have held that First Amendment plaintiffs need not sue every official

with authority over an injurious law if a favorable result would liµely prevent the

law from being applied. Wolfson, 616 F.3d at 1057. We further have made clear

that even an attenuated causal chain of events initiated by a favorable ruling

suffices for redressability purposes, so long as the chain is liµely to end in relieving

the plaintiff's harm. See e.g., Renee v. Duncan, 623 F.3d 787, 798-99 (9th Cir.

2010).

We do not find that a preliminary injunction against only one defendant in

this case will liµely provide redress against all other officials not under the

defendant's control and empowered to apply the same harmful restrictions against

the plaintiff. To taµe that step would go against the ''basic principle of law that a

person who is not a party to an action is not bound by the judgment in that

action.'' Leu v. Int'l Boundary Commùn, 605 F.3d 693, 695 (9th Cir. 2010)

Page 4 of 5

(quoting Restatement (Second) of Judgments yy 34, 62 cmt. a (1982)). See also

Glanton ex rel. ALCOA Prescription Drug Plan v. AdvancePCS Inc., 465 F.3d

1123, 1125 (9th Cir. 2006) (stating standing does not exist when benefits stemming

from a favorable ruling 'depend on an independent actor who retains broad and

legitimate discretion the courts cannot presume either to control or to predict.')

(internal citations omitted)).

A preliminary injunction would restrain only Ms. Chapa and could not bind

East, LACCD, or any official other than Ms. Chapa who is charged with

promulgating or enforcing the Free Speech Policies. Accordingly, we cannot find

that Vegan Outreach has satisfied the redressability prong to assert Article III

standing, and we are required to dismiss its appeal.

We order Vegan Outreach's appeal dismissed and remand the case to the

district court for further proceedings in accordance with this disposition.

DISMISSED; REMANDED.

Page 5 of 5

FILED

Vegan Outreach v. Chapa, 10-56991 OCT 20 2011

MOLLY C. DWYER, CLERK

U.S . CO U RT OF AP PE A LS

SILVERMAN, Circuit Judge, dissenting:

I respectfully disagree that the plaintiffs lacµ standing to bring suit to enjoin

Chapa. Plaintiffs allege that Chapa personally violated their First Amendment

rights by enforcing the Collegeùs speech policies, and they seeµ to enjoin her from

doing so again. The fact that plaintiffs did not also sue other possible defendants

for their respective roles in the incident reflects on plaintiffsù tactics, not their

standing. I would reach the merits just as the district court did, and would affirm

the denial of a preliminary injunction for the reasons stated by the district court.