Petition for Writ of Certiorari — City of Huntington Beach, California, et al., Petitioners v. Gavin Newsom, Governor of California, et al.

No. 25In the

Supreme Court of the United States

CITY OF HUNTINGTON BEACH, et al.,

Petitioners,

v.

GAVIN NEWSOM, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

John M. Reeves

Reeves Law LLC

7733 Forsyth Boulevard,

Suite 1110 – #1192

St. Louis, MO 63105

Michael Vigliotta

City Attorney

Counsel of Record

2000 Main Street

P.O. Box 190

Huntington Beach, CA 92648

(714) 536-5555

mvigliotta@surfcity-hb.org

Timothy M. Kowal

Kowal Law Group, APC

2901 West Coast Highway,

Suite 200

Newport Beach, CA 92663

Counsel for Petitioners

131529

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED

1. Whether the Constitution categorically denies a

local government any capacity to invoke it against its

State, without first determining—by reference to state

law and the nature of the claim—the entity’s status within

the State’s constitutional structure.

2. Whether elected local officials may invoke the First

Amendment against the State when state law compels

them, in their official roles, to make a public statement

they do not believe.

ii

PARTIES TO THE PROCEEDING

Petitioners are the City of Huntington Beach, a

California charter city and municipal corporation; the

Huntington Beach City Council; Tony Strickland, Mayor

of Huntington Beach; and Gracey Van Der Mark, Mayor

Pro Tem of Huntington Beach. Petitioners were plaintiffs

in the United States District Court for the Central District

of California and appellants in the United States Court of

Appeals for the Ninth Circuit.

Respondents are Gavin Newsom, in his official capacity

as Governor of the State of California; Gustavo Velasquez,

in his official capacity as Director of the California

Department of Housing and Community Development;

the California Department of Housing and Community

Development; and the Southern California Association

of Governments. Respondents were defendants and

appellees below.

iii

STATEMENT OF RELATED PROCEEDINGS

Supreme Court of the United States

City of Huntington Beach, et al., v. Gavin

Newsom, et al., No. 25A12 (orders dated July 7,

2025, and August 13, 2025, extending the time

to file petition for a writ of certiorari) (Kagan,

Circuit Justice).

United States Court of Appeals for the Ninth Circuit

City of Huntington Beach, et al., v. Gavin

Newsom , et al., No. 23-3694 ( judgment

affirming, issued October 30, 2024; order

denying petition for rehearing en banc, issued

April 21, 2025).

United States District Court for the Central District

of California

City of Huntington Beach, et al., v. Gavin

Newsom, et al., No. 8:23-cv-00421-FWS-ADS

(judgment entered on November 13, 2023).

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING . . . . . . . . . . . . . . . . ii

STATEMENT OF RELATED PROCEEDINGS . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . viii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . ix

PETITION FOR A WRIT OF CERTIORARI . . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONST I T U T IONA L A N D STAT U T ORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 3

A. Background of the State-Compelled Speech . . . 3

B. Proceedings Below . . . . . . . . . . . . . . . . . . . . . . . . . 4

C. This Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

v

Table of Contents

Page

REASONS FOR GRANTING THE WRIT . . . . . . . . . . 6

I.

There is an entrenched circuit split . . . . . . . . . . . 6

A. G r o u p 1— No c a t e g o r i c a l b a r ;

Supremacy Clause suits allowed . . . . . . . . . 6

B. Group 2—Categorical bar (explicit—

extends even to preemption) . . . . . . . . . . . . . 8

C. Group 3—Unsettled or not reaffirmed

in modern, reasoned decisions . . . . . . . . . . . 8

D. Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

E. The Court should adopt a clear,

state‑law‑first standard that replaces

categorical bars . . . . . . . . . . . . . . . . . . . . . . . 9

II. This Court’s method requires a state-lawfirst classification . . . . . . . . . . . . . . . . . . . . . . . . . 11

III. Hunter’s broad dicta do not authorize a

categorical no‑entitlement rule . . . . . . . . . . . . . 14

A. What Hunter decided—and what it

did not . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

B. Trenton and Gomillion confine Hunter . . . 14

vi

Table of Contents

Page

C. This Court’s merits practice confirms

there is no categorical bar . . . . . . . . . . . . . . 15

IV. State constitutional structure confirms why

the State‑law inquiry must come first . . . . . . . 16

A. A clea r ‑ st at ement pre su mpt ion

prevents forum‑closing by silence . . . . . . . 16

B. California’s Constitution directly

authorizes charter cities . . . . . . . . . . . . . . . 17

C. California decisions consistently

recognize that design . . . . . . . . . . . . . . . . . . 17

D. Application . . . . . . . . . . . . . . . . . . . . . . . . . . 18

V.

Exceptional national consequences are

at stake . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

A. Immigration “Sanctuary” and State–

Local Cooperation Mandates . . . . . . . . . . . 19

B. Transportation and Infrastructure

(Federal Preemption) . . . . . . . . . . . . . . . . . .20

C. Other Recurring Settings . . . . . . . . . . . . . . 20

VI. This case is an ideal vehicle . . . . . . . . . . . . . . . . .21

vii

Table of Contents

Page

VII. Elected officials’ compelled statements

are protected speech; Carrigan is limited

to votes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

A. Carrigan addresses voting as an

official act, not compelled speech . . . . . . . . 23

B. Compelled official statements trigger

the core compelled‑speech r ule,

and elected officials retain First

Amendment protection . . . . . . . . . . . . . . . . 23

C. Other courts reach similar claims on

the merits, not via categorical bars . . . . . . 25

D. Application . . . . . . . . . . . . . . . . . . . . . . . . . . 26

E. This subsidiary question warrants

review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

viii

TABLE OF APPENDICES

Page

APPENDIX A — MEMORANDUM OF THE

UNITED STATES COURT OF APPEALS

FOR T HE NIN T H CIRCU I T, FILED

OCTOBER 30, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — MINUTE ORDER OF THE

UNITED STATES DISTRICT COURT

FOR T H E CEN T R A L DIST RIC T OF

CALIFORNIA, FILED NOVEMBER 13, 2023 . . . 5a

APPENDIX C — DENIAL OF REHEARING

OF THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT,

FILED APRIL 21, 2025 . . . . . . . . . . . . . . . . . . . . . . 27a

ix

TABLE OF CITED AUTHORITIES

Page

CASES:

Agency for Int’l Dev. v. All. for Open Soc’y

Int’l, Inc.,

570 U.S. 205 (2013) . . . . . . . . . . . . . . . . . . . . . . . . 22, 24

Ariz. State Legislature v. Ariz. Indep.

Redistricting Comm’n,

576 U.S. 787 (2015) . . . . . . . . . . . . . . . . . . . . . . . . 11, 21

Bd. of Educ. v. Allen,

392 U.S. 236 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Bond v. Floyd,

385 U.S. 116 (1966) . . . . . . . . . . . . . . . . . . . . . . . . 24, 25

Boquist v. Courtney,

32 F.4th 764 (9th Cir. 2022) . . . . . . . . . . . . . . 22, 25, 26

Branson Sch. Dist. RE‑82 v. Romer,

161 F.3d 619 (10th Cir. 1998) . . . . . . . . . . . . . . . . . 7, 21

Burbank‑Glendale‑Pasadena Airport Auth. v.

City of Burbank,

136 F.3d 1360 (9th Cir. 1998) . . . . . . . . . . . . . . . . . . . . 8

City of Charleston v. Pub. Serv. Comm’n,

57 F.3d 385 (4th Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . 8

City of El Cenizo v. Texas,

890 F.3d 164 (5th Cir. 2018) . . . . . . . . . . . 19, 22, 25, 26

x

Cited Authorities

Page

City of Redondo Beach v. Padilla,

46 Cal. App. 5th 902 (2020) . . . . . . . . . . . . . . . . . . . . 17

City of S. Miami v. Governor,

65 F.4th 631 (11th Cir. 2023) . . . . . . . . . . . . . . . . . . . 19

City of San Juan Capistrano v.

Cal. Pub. Utils. Comm’n,

937 F.3d 1278 (9th Cir. 2019) . . . . . . . . . . . . . . . . . 8, 16

City of South Lake Tahoe v. Cal. Tahoe

Reg’l Planning Agency,

449 U.S. 1039 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

City of South Lake Tahoe v. California Tahoe

Reg’l Plan. Agency,

625 F.2d 231 (9th Cir. 1980) . . . . . . . . . . 4, 8, 16, 19, 21

City of Trenton v. New Jersey,

262 U.S. 182 (1923) . . . . . . . . . . . . . . . . . . . . . . . . 14, 16

Delta Special Sch. Dist. No. 5 v. State Bd. of Educ.,

745 F.2d 532 (8th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . 9

Fried v. State,

355 So. 3d 899 (Fla. 2023) . . . . . . . . . . . . . . . . . . . . . 21

Garcetti v. Ceballos,

547 U.S. 410 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

xi

Cited Authorities

Page

Gomillion v. Lightfoot,

364 U.S. 339 (1960) . . . . . . . . . . . . . . . . . . . . . 14, 15, 16

Haytasingh v. City of San Diego,

66 Cal. App. 5th 429 (2021) . . . . . . . . . . . . . . . . . . . . . 17

Hess v. Port Authority Trans-Hudson Corp.,

513 U.S. 30 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

Hohn v. United States,

524 U.S. 236 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Houston Cmty. Coll. Sys. v. Wilson,

142 S.Ct. 1253 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Houston Cmty. Coll. Sys. v. Wilson,

595 U.S. 468 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Hunter v. City of Pittsburgh,

207 U.S. 161 (1907) . . . . . . . . . . . . . . . . . . 14, 15, 16, 17

Janus v. AFSCME,

138 S.Ct. 2448 (2018) . . . . . . . . . . . . . . . . . . . . . . . 22, 24

Johnson v. Bradley,

4 Cal. 4th 389 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Kerr v. Polis,

20 F.4th 686 (10th Cir. 2021) . . . . . . . . . . . . . . . . . . . 20

xii

Cited Authorities

Page

Lane v. Franks,

573 U.S. 228 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Maryland v. Baltimore Radio Show,

338 U.S. 912 (1950) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

McMillian v. Monroe County,

520 U.S. 781 (1997) . . . . . . . . . . . . . . . . . . . . . 12, 17, 18

Moore v. Harper,

600 U.S. 1 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

N.J. Transit Corp. v. Colt,

Nos. 24‑1021 & 24‑1113 (U.S. July 3, 2025) . . . . . . . 18

Nat’l Inst. of Family & Life Advocates v.

Becerra,

138 S.Ct. 2361 (2018) . . . . . . . . . . . . . . . . . . . . . . . 24, 26

Nevada Commission on Ethics v. Carrigan,

564 U.S. 117 (2011) . . . . . . . . . . . . . . . . . . . 22, 23, 25, 26

Ocean Cnty. Bd. of Comm’rs v. Att’y Gen.,

8 F.4th 176 (3d Cir. 2021) . . . . . . . . . . . . . . . . . . . . . . . 7

Palomar Pomerado Health Sys. v. Belshe,

180 F.3d 1104 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . . 8

Papasan v. Allain,

478 U.S. 265 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

xiii

Cited Authorities

Page

Pleasant Grove City v. Summum,

555 U.S. 460 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Regents of the University of California v. Doe,

519 U.S. 425 (1997) . . . . . . . . . . . . . . . . . . . . . 12, 17, 18

Rogers v. Brockette,

588 F.2d 1057 (5th Cir. 1979) . . . . . . . . . . . . . . . . . . . . 7

Romer v. Evans,

517 U.S. 620 (1996) . . . . . . . . . . . . . . . . . . . . . . . . 15, 21

Sato v. Orange Cnty. Dep’t of Educ.,

861 F.3d 923 (9th Cir. 2017) . . . . . . . . . . . . . . . . . . . . . 8

Schuette v. Coalition to Defend Affirmative Action,

572 U.S. 291 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Shurtleff v. City of Boston,

596 U.S. 243 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

South Macomb Disposal Auth. v.

Washington Twp.,

790 F.2d 500 (6th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . 7

Star‑Kist Foods, Inc. v. County of Los Angeles,

42 Cal. 3d 1 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Tweed‑New Haven Airport Auth. v. Tong,

930 F.3d 65 (2d Cir. 2019) . . . . . . . . . . . . . . . . . . . . 6, 20

xiv

Cited Authorities

Page

United States v. Alabama,

791 F.2d 1450 (11th Cir. 1986) . . . . . . . . . . . . . . . . . . . 7

Vill. of Arlington Heights v. Reg’l Transp. Auth.,

653 F.2d 1149 (7th Cir. 1981) . . . . . . . . . . . . . . . . . . . . 9

W. Va. State Bd. of Educ. v. Barnette,

319 U.S. 624 (1943) . . . . . . . . . . . . . . . . . . . . . 22, 23, 26

Walker v. Tex. Div., Sons of Confederate Veterans,

576 U.S. 200 (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Washington v. Seattle School District No. 1,

458 U.S. 457 (1982) . . . . . . . . . . . . . . . . . . . . . . . . 15, 20

Williams v. Mayor of Baltimore,

289 U.S. 36 (1933) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Wooley v. Maynard,

430 U.S. 705 (1977) . . . . . . . . . . . . . . . . . . 22, 23, 24, 26

STATUTES AND OTHER AUTHORITIES:

U.S. Const., amend. I . . . . . . . . . . . . . . 2-5, 7, 15, 19, 22-26

U.S. Const., amend. IV . . . . . . . . . . . . . . . . . . . . . . . . . . 19

U.S. Const., amend. XIV . . . . . . . . . 3, 5, 6, 7, 9, 10, 14, 15

U.S. Const., amend. XIV, § 1 . . . . . . . . . . . . . . . . . . . . . . . 2

xv

Cited Authorities

Page

U.S. Const., art. I, § 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

28 U.S.C. § 44(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 12

Cal. Code Regs. tit. 14, § 15093 . . . . . . . . . . . . . . . . . . . . 3

Cal. Const. art. XI . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 17

Cal. Pub. Res. Code § 21081(b) . . . . . . . . . . . . . . . . . . . . 24

Clopton & Shoked, The City Suit, 72 Emory

L.J. 1351 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Garrett, Local Evidence in Constitutional

Interpretation, 74 Vand. L. Rev. 1023 (2018) . . . . . . 10

Morris, The Case for Local Constitutional

Enforcement, 47 Harv. C.R.‑C.L. L. Rev. 1

(2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 15

Rosenthal, Romer v. Evans as the Transformation of Local Government Law, 31 Urban

Lawyer 257 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

xvi

Cited Authorities

Page

Sellers & Scharff, Preempting Politics, 72 Stan.

L. Rev. 1361 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Su, Intrastate Federalism, 66 Stan. L. Rev. 1699

(2014/2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

1

PETITION FOR A WRIT OF CERTIORARI

The City of Huntington Beach, et al., respectfully

petition this Court for a writ of certiorari to the Ninth

Circuit below in Case No. 23-3694.

OPINIONS BELOW

The Ninth Circuit’s judgment is unreported but

available at 2024 WL 462589 and reproduced at (Apx.1a4a.). The Ninth Circuit’s order denying rehearing en banc

is reported at 134 F.4th 1025 and reproduced at (Apx.27a28a.). The district court’s final judgment is unreported

but available at 2023 WL 8043846 and reproduced at

(Apx.5a-26a.).

JURISDICTION

The Ninth Circuit issued its judgment affirming the

district court on October 30, 2024. (Apx.1a.) It issued

its order denying rehearing en banc on April 21, 2025.

On July 7, 2025, Justice Kagan granted the petitioners

an extension to file their petition for a writ of certiorari

through August 20, 2025. On August 13, 2025, Justice

Kagan granted the petitioners a second extension to file

their petition through September 18, 2025. (No. 25A12).

This Court has jurisdiction under 28 U.S.C. §1254(1).

2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The pertinent constitutional and statutory provisions

are reproduced in the appendix.

U.S. Constitution

• U.S. Const., art. I, sec. 8 (Commerce Clause).

The Congress shall have Power . . .

To regulate Commerce . . . among the

several States . . . .

• U.S. Const. amend. I (Free Speech Clause).

Congress shall make no law respecting

an establishment of relig ion, or

prohibiting the free exercise thereof;

or abridging the freedom of speech,

or of the press; or the right of the

people peaceably to assemble, and to

petition the Government for a redress

of grievances.

• U.S. Const. amend. XIV, §1 (applicability to

the States).

Section 1

All persons born or naturalized in

the United States, and subject to the

jurisdiction thereof, are citizens of

the United States and of the State

wherein they reside. No State shall

3

make or enforce any law which shall

abridge the privileges or immunities

of citizens of the United States; nor

shall any State deprive any person

of life, liberty, or property, without

due process of law; nor deny to any

person within its jurisdiction the

equal protection of the laws.

STATEMENT OF THE CASE

A. Background of the State-Compelled Speech

Huntington Beach is a California charter city

organized under article XI of the California Constitution.

The State’s housing framework requires the City to adopt

a housing element incorporating a large quota of higherdensity units. Preparing or amending a housing element

triggers environmental review under CEQA, the State’s

environmental-quality law. When the environmental

impact report identifies “significant and unavoidable”

harms, approval may proceed only if the City adopts a

Statement of Overriding Considerations declaring that

the project’s purported benefits outweigh those harms.

Cal. Code Regs. tit. 14, §15093.

The City’s environmental review found significant

impacts. The Council concluded it could not truthfully

adopt a Statement that declared that those harms were

outweighed by the benefits of high-density housing.

Forcing the Council and Councilmembers to adopt that

affirmative policy Statement is compelled speech barred

by the First Amendment (incorporated through the

Fourteenth).

4

B. Proceedings Below

Petitioners sued State officials and the Southern

California Association of Governments in the Central

District of California, asserting constitutional claims—

including compelled speech—arising from the Statemandated “Statement of Overriding Considerations”

requirement tied to the high-density housing mandate.

The district court granted motions to dismiss, holding

that under Ninth Circuit precedent local governments

may not bring Constitutional claims against their State.

City of South Lake Tahoe v. California Tahoe Reg’l Plan.

Agency, 625 F.2d 231 (9th Cir. 1980).

A Ninth Circuit panel affirmed in an unpublished

memorandum on October 30, 2024. The panel held that

the City’s claims are “foreclosed by” South Lake Tahoe,

which forbids local governments—which the Ninth

Circuit labels “political subdivisions”—and their officials

from challenging the constitutionality of state statutes

in federal court,” and that the court has “consistently

applied that rule ever since.” The panel also stated that the

City’s federal “standing does not turn on the intricacies of

California law,” and treated charter cities as subordinate

bodies within the South Lake Tahoe rule. The panel also

rejected the councilmembers’ claims, characterizing their

objections to the Statement of Overriding Considerations

as “personal dilemmas” that cannot support standing

under South Lake Tahoe. The panel did not reach the

First Amendment merits.

Petitioners sought rehearing en banc; the court of

appeals denied rehearing on April 21, 2025. (Apx.6a.)

5

C. This Petition

This case cleanly presents a recurring threshold

question: whether a federal court may apply a categorical

rule that bars a constitutionally chartered local government

from invoking the Constitution against state officials

without first determining the entity’s status under state

constitutional law (and whatever the nature of the federal

claim), a rule the Ninth Circuit applied to end the case at

the pleading stage. (Apx.2a.)

INTRODUCTION

The courts of appeals are divided on whether and how

local governments may invoke the Constitution against

their States. Some courts adjudicate municipal claims

on the merits—especially in preemption cases—and this

Court has repeatedly done so in First and Fourteenth

Amendment cases. Other circuits hedge, allowing

preemption while foreclosing individual-rights theories.

The Ninth Circuit stands alone in applying a categorical

bar. The result is a split, and an absence of a standard.

This case presents a clean vehicle to restore the

Court’s state-law-first method and supply a uniform

rule. The rule is straightforward: local governments have

capacity to invoke the Constitution unless the State has

clearly withdrawn that capacity. Where state law is unclear

or silent, courts should weigh common considerations: the

entity’s status under the State’s constitution; its corporate

autonomy and powers; the degree of State control; and the

fit between the claim and the entity’s corporate interests

and mission.

6

Adopting this clear-statement presumption and

factor test replaces categorical bars, respects State

constitutional design, and aligns the Ninth Circuit with

this Court’s method.

REASONS FOR GRANTING THE WRIT

This case presents the entrenched, outcomedeterminative split just described, and the Ninth Circuit

stands alone in adopting a categorical bar that skips the

required state-law classification. The Court should resolve

the split now and restore the state-law-first method.

I.

There is an entrenched circuit split.

Three approaches have emerged. Most recent

decisions adjudicate municipal suits (typically preemption)

and reject a categorical bar, though methods vary.

Comprising the second group is the Ninth Circuit, alone

in imposing a categorical disability, even in preemption

cases. The third group consists of the jurisdictions that

remain unsettled or have not reaffirmed older statements.

This landscape underscores the need for a uniform

state‑law‑first standard, and the groups below show the

divide.

A.

Group 1—No categorical bar; Supremacy

Clause suits allowed.

• Second: Tweed‑New Haven Airport Auth. v. Tong,

930 F.3d 65, 72–76 (2d Cir. 2019) (preemption

allowed; reaffirms separate circuit bar on

Fourteenth Amendment suits).

7

• Third: Ocean Cnty. Bd. of Comm’rs v. Att’y Gen.,

8 F.4th 176, 180–88 (3d Cir. 2021) (preemption

allowed; merits reached).

• Fifth: Rogers v. Brockette, 588 F.2d 1057, 1068–71

(5th Cir. 1979) (preemption allowed; Hunter/

Trenton are not “standing” cases).

• Sixth: So uth Ma co mb Di sposal Auth . v.

Washington Twp., 790 F.2d 500, 504–05, 511 (6th

Cir. 1986) (no per‑se bar; municipality is a § 1983

“person”; Fourteenth Amendment claims fail on

the merits).

• Tenth: Branson Sch. Dist. RE‑82 v. Romer, 161

F.3d 619, 628–31 (10th Cir. 1998) (Supremacy

Clause route allowed; individual‑rights theories

fail on the merits).

• Eleventh: United States v. Alabama, 791 F.2d

1450, 1455 (11th Cir. 1986) (“no per se rule applies

in this Circuit”).

Claim‑type practice in the circuits: Courts that

reject a categorical bar often do so in Supremacy Clause

suits while disposing of Fourteenth Amendment theories

as unavailable or failing on the merits. Yet this Court

has repeatedly reached municipal First and Fourteenth

Amendment claims on the merits, confirming that a

categorical door-closer is incompatible with its practice.

8

B. Group 2—Categorical bar (explicit—extends

even to preemption).

• Ninth: City of S. Lake Tahoe v. Cal. Tahoe Reg’l

Planning Agency, 625 F.2d 231, 233 (9th Cir.

1980)1; City of San Juan Capistrano v. CPUC, 937

F.3d 1278, 1280–82 (9th Cir. 2019) (reaffirming

per‑se bar; R. Nelson, J., concurring, urging

reconsideration); Burbank‑Glendale‑Pasadena

Airport Auth. v. City of Burbank, 136 F.3d 1360,

1362–63 (9th Cir. 1998) (preemption claim barred).

C.

Group 3—Unsettled or not reaffirmed in

modern, reasoned decisions.

• First: No controlling precedent.

• Fourth: City of Charleston v. Pub. Serv. Comm’n,

57 F.3d 385, 391–92 (4th Cir. 1995) (calls doctrine

“unclear”; assumes jurisdiction; decides merits).

1. The Court denied certiorari in City of South Lake Tahoe v.

Cal. Tahoe Reg’l Planning Agency, 449 U.S. 1039 (1980). A denial of

certiorari “imports no expression of opinion upon the merits.” Hohn

v. United States, 524 U.S. 236, 251 (1998); Maryland v. Baltimore

Radio Show, 338 U.S. 912, 917–19 (1950) (Frankfurter, J., respecting

denial). The Ninth Circuit has repeatedly reaffirmed the South

Lake Tahoe bar. Burbank‑Glendale‑Pasadena Airport Auth., 136

F.3d at 1362–63 (preemption claim barred); Palomar Pomerado

Health Sys. v. Belshe, 180 F.3d 1104, 1107–09 (9th Cir. 1999) (political

subdivision lacks standing to bring constitutional and preemption

claims against the State); City of San Juan Capistrano v. Cal. Pub.

Utils. Comm’n, 937 F.3d 1278, 1280–82 (9th Cir. 2019) (reaffirming

per‑se bar; R. Nelson, J., concurring, urging reconsideration). (Cf.

Sato v. Orange Cnty. Dep’t of Educ., 861 F.3d 923, 930–33 (9th Cir.

2017) (Eleventh‑Amendment “arm of the State” analysis, not a

political‑subdivision capacity rule).)

9

• Seventh: Vill. of Arlington Heights v. Reg’l

Transp. Auth., 653 F.2d 1149, 1152–53 (7th Cir.

1981) (rejects Fourteenth Amendment claims by

subdivisions; no modern treatment of preemption).

• Eighth: Delta Special Sch. Dist. No. 5 v. State

Bd. of Educ., 745 F.2d 532, 533–34 (8th Cir. 1984)

(rejects Fourteenth Amendment claim; no modern

treatment of preemption).

D.

Summary

Recent, reasoned authority thus runs against a

blanket rule. The Ninth alone expressly declares one,

while other “bar” jurisdictions are unsettled or silent in

modern decisions.

E. The Court should adopt a clear, state‑law‑first

standard that replaces categorical bars.

This case presents a clean vehicle to resolve not only

the split but the absence of a governing standard. The

Court should hold that local governments have capacity to

invoke the Constitution against the State in federal court

unless the State has clearly withdrawn that capacity in

its own law. Where state law is unclear or silent, courts

should be guided by a common set of considerations: (1)

the entity’s status under the State’s constitution (including

home‑rule or charter entrenchment); (2) its corporate

autonomy and powers (treasury, property, taxation, “sue

and be sued,” and who bears judgments); (3) the degree

of State control over its officers and finances; and (4) the

fit between the claim and the entity’s corporate interests

and mission—including whether the suit protects the

entity’s proprietary or enforcement interests, or resists

10

intergovernmental interference with locally conferred

authority. This is a clear-statement presumption:

ambiguity in state law is resolved in favor of capacity. And

once capacity is established (or not clearly withdrawn),

courts should not impose categorical claim-type bans.

The proper limiter is claim-to-mission fit, as reflected in

the factors above.

This standard honors the Court’s state‑law‑first

method of public‑entity classification before affixing

federal consequences, and it accords with the Court’s own

practice of adjudicating municipal First and Fourteenth

Amendment claims on the merits. 2 This standard also

gives lower courts a workable framework in the many

States where the political branches or courts have not

spoken. A categorical bar like the Ninth Circuit’s, on

the other hand, is incompatible with both method and

practice. The Court should adopt this standard, vacate the

judgment, and remand for application of the state‑law‑first

inquiry.

2. E.g., Morris, The Case for Local Constitutional Enforcement,

47 Harv. C.R.‑C.L. L. Rev. 1 (2012) (arguing Hunter’s freestanding

federal rule has been eclipsed and that capacity should turn on

state law, with federal courts giving effect to local constitutional

status and corporate interests); Rosenthal, Romer v. Evans as

the Transformation of Local Government Law, 31 Urban Lawyer

257 (1999) (explaining Romer’s implications for state efforts to

foreclose local governance); Sellers & Scharff, Preempting Politics,

72 Stan. L. Rev. 1361 (2020) (identifying values that structure

state–local disputes); Su, Intrastate Federalism, 66 Stan. L. Rev.

1699 (2014/2016) (describing local invocation of federalism claims);

Garrett, Local Evidence in Constitutional Interpretation, 74 Vand.

L. Rev. 1023 (2018); Clopton & Shoked, The City Suit, 72 Emory

L.J. 1351 (2023).

11

II. This Court’s method requires a state-law-first

classification.

The approach outlined in this Court’s cases involving

local government suits begins with state law first. That

method—not a categorical label—governs how local status

bears on federal questions. 3

This is what the Court did in Hess v. Port Authority

Trans-Hudson Corp., looking first to the states’

structuring of a bi-state agency to decide whether it

shared state sovereign immunity. 513 U.S. 30, 43–51

(1994). The Court “presume[d]” that an interstate entity

is not immune “unless there is good reason to believe

that the States structured the entity to arm it with the

States’ own immunity.” Id. at 43–44. In each instance, the

classification turned on the entity’s character under state

law, not on an atextual federal label. Neither New York

nor New Jersey bore legal or practical liability for the

3. Recent structural decisions concerning state legislative

power confirm the same premise: state constitutions define a

State’s institutions and allocate lawmaking authority, and federal

adjudication must respect that allocation. See Moore v. Harper, 600

U.S. 1, 32–39 (2023) (rejecting the independent‑state‑legislature

theory; recognizing state‑court enforcement of state‑constitutional

limits on a legislature’s Elections Clause power); Ariz. State

Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 808–

17 (2015) (holding that “Legislature” in the Elections Clause refers

to the State’s lawmaking process as structured by its constitution,

including a voter‑created commission). These decisions address state

legislative power under the Elections Clause, not municipal capacity

or standing. They are cited to illustrate the same state‑law‑first

method: federal law looks to state constitutions to identify who

speaks for the State and how authority is allocated before attaching

federal consequences.

12

Port Authority’s debts, so the Authority was financially

self-sufficient. Because the States were neither legally nor

practically obligated to pay the entity’s debts, the Court

held the Port Authority was not an arm of the State, as the

Eleventh Amendment’s core concern was not implicated.

Id. at 47–51.

Again, the classification hinged on the entity’s

character under state law—in Hess, the absence of state

treasury liability—rather than any general federal

characterization of the Authority.

The Court’s more recent decisions reaffirm this

state-law-first approach. In Regents of the University of

California v. Doe, the Court emphasized that determining

whether an entity is an arm of the State requires

examining “the provisions of state law that define the

agency’s character.” 519 U.S. 425, 429 n.5 (1997). And

in McMillian v. Monroe County, the Court underscored

that the inquiry into a government official’s or entity’s

status “is dependent on an analysis of state law,” not a

one-size-fits-all federal rule. 520 U.S. 781, 786–95 (1997).

In McMillian, the Court refused to assume that a county

sheriff must always be a county official for §1983 purposes;

instead, it examined Alabama’s Constitution and statutes,

which placed county sheriffs in the State’s executive

department and treated them as state officers. Given that

state law vested sheriffs with state-level authority (and

even deemed lawsuits against sheriffs as suits against the

State itself), the Court held that the sheriff acted on behalf

of Alabama, not the county. These cases all illustrate that a

government entity’s ability to invoke constitutional rights

or immunities turns on the entity’s character under state

13

law, not on any automatic federal general-law label. In

other words, the Court’s doctrine makes state law status

a threshold inquiry in classifying an entity’s role in our

federal system.

The Ninth Circuit’s approach in this case cannot be

reconciled with that settled doctrine. The panel below

imposed a categorical bar on municipal constitutional

claims “regardless of state law classification,” refusing

even to consider how California’s law defines a charter

city’s status. In the decision below, the Ninth Circuit

declared that “[n]o matter how California categorizes

charter cities, they remain subordinate political bodies,

not sovereign entities.” (Apx.3a.)

In other words, the court brushed aside California’s

constitutional distinction between charter cities and the

State Legislature, instead treating the City as a mere

appendage of the State for all Constitutional purposes.

That ipso facto rule is directly at odds with this Court’s

requirement that courts first examine the State’s own

laws to determine an entity’s nature and relationship to

the State. The Ninth Circuit’s categorical bar conflicts

with the Supreme Court’s state-law-first classification

methodology. This Court’s precedents make clear that a

charter city’s ability to invoke constitutional protections

cannot be foreclosed without first asking what state

law says about the city’s governmental character and

autonomy. The decision below flouts that foundational

principle, warranting this Court’s intervention to restore

the proper, state-law-grounded analysis.

14

III. Hunter’s broad dicta do not authorize a categorical

no‑entitlement rule.

Hunter is not a categorical door‑closer. First,

Hunter was a boundary‑and‑tax case and did not adopt a

categorical bar on municipal constitutional claims. Second,

Trenton and Gomillion confine Hunter, and they direct

courts to respect state constitutional allocations before

attaching federal consequences. Third, this Court’s

practice is to reach municipal First and Fourteenth

Amendment claims on the merits.

A.

What Hunter decided—and what it did not.

Hunter v. City of Pittsburgh arose from consolidation

of municipalities and disputes over municipal property. 207

U.S. 161, 174–79 (1907). The opinion uses familiar language

describing municipalities as “political subdivisions

of the state.” Id. at 178. But it also cautioned federal

courts to “have nothing to do with the interpretation of

the Constitution of the state” when reviewing a State’s

internal organization. Id. at 176. A categorical rule that

limits all local governments to the role of mere “political

subdivisions” violates Hunter’s rule of non-interference

with States’ internal organization.

B. Trenton and Gomillion confine Hunter.

Trenton qualifies Hunter: where a State’s constitution

safeguards local self‑government, courts must honor those

provisions. City of Trenton v. New Jersey, 262 U.S. 182,

186–87 (1923). The emphasis falls on what the State’s own

constitution secures. Gomillion v. Lightfoot is to the same

effect. Legislative control of municipalities “lies within

15

the scope of relevant limitations imposed by the United

States Constitution,” and the “seemingly unconfined dicta

of Hunter and kindred cases” do not recognize “plenary

power to manipulate in every conceivable way.” 364 U.S.

339, 344–45 (1960). Together, those decisions foreclose

treating Hunter as a categorical rule that bypasses state

constitutional structure or federal limits.

C.

This Court’s merits practice confirms there is

no categorical bar.

When local governments and local officials have

brought constitutional claims, the Court has adjudicated

them. It has done so in First Amendment and Fourteenth

Amendment cases without invoking Hunter as a threshold

bar. See Bd. of Educ. v. Allen, 392 U.S. 236, 240–48

(1968) (school board’s Establishment Clause challenge

decided on the merits); Washington v. Seattle Sch. Dist.

No. 1, 458 U.S. 457, 462–63 (1982) (school district’s Equal

Protection challenge decided on the merits); Papasan v.

Allain, 478 U.S. 265, 274–90 (1986) (local school officials’

Due Process and Equal Protection claims addressed on

the merits; case partly dismissed on immunity grounds,

not a Hunter bar). See also Romer v. Evans, 517 U.S. 620,

625–36 (1996) (cities among plaintiffs; state constitutional

amendment struck under Equal Protection). Scholarship

surveying the docket captures the pattern: since Williams

v. Mayor of Baltimore, 289 U.S. 36 (1933), this Court has

not used Hunter to bar a local constitutional challenge

wholesale, and has repeatedly reached municipal First

and Fourteenth Amendment issues. Kathleen S. Morris,

The Case for Local Constitutional Enforcement, 47 Harv.

C.R.‑C.L. L. Rev. 1, 3–5, 16–18 (2012). The Ninth Circuit’s

categorical bar rests instead on its own early case. And

16

even there the court has recognized that City of South

Lake Tahoe, 625 F.2d 231, offered little independent

reasoning and leaned on earlier Supreme Court decisions

that are context‑bound. City of San Juan Capistrano, 937

F.3d at 1280.

The lesson is straightforward. Hunter does not

supply the categorical door‑closer the panel invoked. That

practice reflects Trenton’s instruction to respect state

constitutional allocations and Gomillion’s recognition that

federal limits bind States even in the municipal context.

IV. State constitutional structure confirms why the

State‑law inquiry must come first.

Precedent requires a state-law classification first

(see Part II). What follows shows why that threshold step

matters under California’s Constitution and practice.

First, this Court requires a state‑law‑first classification

before affixing federal consequences to a governmental

entity. Second, California’s constitutional design and

decisions show why that threshold step matters for charter

cities. The Ninth Circuit category rule skips both steps.

A.

A clear‑statement presumption prevents

forum‑closing by silence.

Requiring the State to speak clearly if it wishes to

withdraw a local entity’s capacity to sue its creator aligns

with familiar state‑law clear‑statement principles in

the home‑rule context and prevents ambiguous statutes

from foreclosing federal adjudication. When a State

constitutionally entrenches local self‑government—or

when state law confers corporate autonomy—federal

courts should not infer a capacity bar from silence.

17

B. California’s Constitution directly authorizes

charter cities.

California’s constitution grants charter cities

authority over municipal affairs and was adopted “to

emancipate municipal governments from the authority and

control formerly exercised over them by the Legislature.”

Johnson v. Bradley, 4 Cal. 4th 389, 395 (1992) (quotation

marks omitted). The source is constitutional. Charters

are adopted and amended by the local electorate under

state constitutional authorization. See Cal. Const. art. XI.

That design is part of the classification inquiry the federal

method requires.

C.

California decisions consistently recognize

that design.

California courts apply that method in practice and

reach the merits. Star‑Kist Foods, Inc. v. County of Los

Angeles criticized the Ninth Circuit’s categorical approach

as providing “little guidance” and allowed a Commerce

Clause claim by a county to proceed. 42 Cal. 3d 1, 7–10

(1986). Haytasingh v. City of San Diego explained that a

city “may be considered a ‘subdivision’” in some senses, but

“is not necessarily so for all purposes,” and read Hunter’s

phrasing as descriptive rather than as a universal legal

definition. 66 Cal. App. 5th 429, 435 (2021). City of Redondo

Beach v. Padilla recognized the distinct constitutional

footing of charter cities and undertook a state‑law analysis

of status and function rather than treating the city as a

mere appendage for all purposes. 46 Cal. App. 5th 902,

909–14, 918 (2020). These decisions reflect what Regents

and McMillian require: status is a question of state law

and function, not a categorical label.

18

D.

Application

The panel applied a categorical bar and refused to

consider California’s constitutional structure for charter

cities. That is the legal error. The required first step

is classification under state law. Only then may federal

consequences follow. See Regents, 519 U.S. at 429 n.5;

McMillian, 520 U.S. at 786–95.

A current illustration points the same way. This

Term, the Court granted certiorari in consolidated cases

to decide whether New Jersey Transit is an arm of the

State of New Jersey for interstate sovereign‑immunity

purposes, a classification question that—like McMillian

and Regents—turns on state law. See N.J. Transit Corp. v.

Colt, Nos. 24‑1021 & 24‑1113 (U.S. July 3, 2025) (granting

certiorari; limited to whether NJ Transit is an arm of the

State for interstate sovereign‑immunity purposes).

V. Exceptional national consequences are at stake.

The Ninth Circuit is the nation’s largest court of

appeals—covering nine States and two territories with 29

authorized judgeships. 28 U.S.C. §§ 41, 44(a). Within that

footprint, a state‑law‑blind categorical bar guarantees

that recurring state–local disputes are dismissed at the

threshold, while sister circuits reach the merits under

ordinary rules.

The examples below—immigration‑enforcement

“sanctuary” disputes, transportation infrastructure

and federal preemption, school‑district finance and

governance, equal‑protection challenges to state limits

19

on local anti‑discrimination measures, and municipal

advocacy chilled by state preemption penalties—are

recurrent and were treated on the merits outside the

Ninth Circuit. In the Ninth Circuit, however, each would

confront the fatal categorical bar.

A.

Immigration “Sanctuary” and State–Local

Cooperation Mandates

• Fifth Circuit (merits adjudication). Texas cities

and counties challenged SB4—which prohibited

“endorsement” of sanctuary policies—under

the First Amendment, Fourth Amendment,

and Supremacy Clause. The court reached the

merits and held SB4’s “endorsement” prohibition

unconstitutional as applied to elected officials

under the First Amendment. City of El Cenizo v.

Texas, 890 F.3d 164, 178–83 (5th Cir. 2018).

• Eleventh Circuit (no categorical disability).

Municipal and organizational plaintiffs challenged

Florida’s anti‑”sanctuary” law under the Equal

Protection Clause. The cour t vacated the

injunction on ordinary Article III standing/

traceability grounds after trial; it did not apply

a categorical municipal bar. City of S. Miami v.

Governor, 65 F.4th 631 (11th Cir. 2023).

Significance for the Ninth. Similar state-local

conflicts regularly arise in Western States. Under South

Lake Tahoe’s categorical rule, such municipal claims

would be turned away at the threshold rather than decided

on the merits.

20

B. Transportation and Infrastructure (Federal

Preemption)

• Second Circuit (merits adjudication). A

city‑created airport authority, joined by the City

of New Haven, challenged a state runway‑length

cap as preempted by federal aviation law. The

court held the statute preempted and rejected

the idea that a local government could not sue the

State. Tweed‑New Haven Airport Auth., 930 F.3d

at 70–78, 81–88.

Significance for the Ninth. Transportation and

energy projects in the West often hinge on state-local

allocations. In the Ninth Circuit, a categorical bar

would foreclose this federal preemption adjudication

at the outset. The same merits posture recurs beyond

transportation and preemption.

C.

Other Recurring Settings

The same pattern appears across school-finance and

governance, equal-protection limits on state suppression

of local protections, and state penalty regimes that chill

municipal advocacy. In education, this Court reached the

merits of a school district’s Equal Protection challenge

to a statewide initiative, Washington v. Seattle School

District No. 1, 458 U.S. 457, 467–87 (1982) (later limited

on a different point by Schuette v. Coalition to Defend

Affirmative Action, 572 U.S. 291 (2014) (plurality)); the

Tenth Circuit likewise allowed school-district plaintiffs to

proceed in a structural challenge to Colorado’s TABOR

amendment, rejecting a categorical “political-subdivision”

bar, Kerr v. Polis, 20 F.4th 686, 694–99 (10th Cir. 2021)

(en banc); and it reached the merits where federal

21

constraints governed state management of school-landtrust revenues, Branson Sch. Dist. RE-82 v. Romer, 161

F.3d 619 (10th Cir. 1998); see also Rogers, 588 F.2d at

1057 (merits adjudication where state policy conflicted

with federal program requirements). Equal-protection

challenges to state limits on local anti-discrimination

measures likewise reached the merits in Romer, 517 U.S.

at 620 (municipal plaintiffs among challengers). And state

preemption penalty regimes that chill municipal advocacy

recur, see Fried v. State, 355 So. 3d 899, 902–03 (Fla.

2023) (upholding penalties but illustrating frequency and

stakes). The Court’s docket likewise reflects the recurring

salience of municipal-speech and structural allocation

disputes, see Shurtleff v. City of Boston, 596 U.S. 243

(2022) (municipal-speech forum), and its willingness to

clarify state-law-first questions with federal consequences.

See Ariz. State Legislature v. Ariz. Indep. Redistricting

Comm’n, 576 U.S. 787 (2015).

Outside the Ninth Circuit, courts adjudicate these

disputes under ordinary rules; inside the Ninth, South

Lake Tahoe’s categorical bar would screen out comparable

federal questions at filing.

VI. This case is an ideal vehicle.

The judgment rests entirely on a categorical bar.

The district court dismissed on that ground. The court

of appeals affirmed on the same ground and refused to

conduct any state‑law classification. There is no merits

ruling, alternative holding, or factual dispute.

The question was pressed and passed upon at every

stage. The posture is final. The parties are proper. The

City seeks prospective relief against state officials. There

22

are no jurisdictional trapdoors, no mootness concerns, and

no waiver issues.

The issue is purely legal: whether a federal court may

impose a categorical rule that forecloses a constitutionally

chartered local government from invoking the Constitution

against its State without first determining the entity’s

status under state law. A remand to apply the required

state‑law‑first inquiry would follow.

The conflict is entrenched and outcome‑determinative.

Sister circuits reject a categorical disability and assess

capacity by reference to state law and the nature of the

claim. The Ninth Circuit applies a categorical bar across

the board. This case presents that divide cleanly, in

the nation’s largest circuit, with nothing to complicate

review. A grant would permit the lower courts to apply

the required state‑law‑first inquiry on remand.

VII. Elected officials’ compelled statements are

protected speech; Carrigan is limited to votes.

T his subsidia r y question is na r row. Neva da

Commission on Ethics v. Carrigan treats a legislator’s

vote as an official act, not personal speech. 564 U.S. at

125–27. It does not authorize the State to compel officials

to utter statements of belief they reject. Compelled official

statements trigger classic First Amendment protections.

W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642

(1943); Wooley v. Maynard, 430 U.S. 705, 714–15 (1977);

Janus v. AFSCME, 138 S.Ct. 2448, 2463–66 (2018);

Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570

U.S. 205, 213–21 (2013). Other courts adjudicate similar

claims on the merits. El Cenizo, 890 F.3d 164, 178–83 (5th

23

Cir. 2018); Boquist v. Courtney, 32 F.4th 764, 774–75 (9th

Cir. 2022).

A.

Carrigan addresses voting as an official act,

not compelled speech.

In Nevada Commission on Ethics v. Carrigan, the

Court described a legislator’s vote as “the commitment

of his apportioned share of the legislature’s power,” a

power that “belongs to the people.” 564 U.S. at 125–26.

On that footing, a vote is an official act, not the legislator’s

personal expression. Id. at 126–27. The Court did not

decide broader questions about legislators’ speech. Justice

Kennedy emphasized that the case did “not…consider

a free speech contention” beyond the act of voting and

cautioned that limits on “what undoubtedly is speech” in

legislative deliberation would raise different issues. Id. at

131–32 (Kennedy, J., concurring).

That line controls here. Prohibiting or conditioning

a vote is categorically different from forcing officials to

speak. Carrigan does the former. It does not do the latter.

B. Compelled official statements trigger the core

compelled‑speech rule, and elected officials

retain First Amendment protection.

Forcing a public official to profess support for

a contested policy is compelled speech. The First

Amendment “does not tolerate” government prescribing

orthodoxy or compelling affirmation of belief. W. Va.

State Bd. of Educ., 319 U.S. at 642. The government

may not “require an individual to participate in the

dissemination of an ideological message.” Wooley, 430 U.S.

24

at 713–15. Compelled notices and pledges are content‑

and viewpoint‑based, and trigger heightened scrutiny.

Nat’l Inst. of Family & Life Advocates v. Becerra, 138

S.Ct. 2361, 2371–75 (2018) (“NIFLA”); Janus, 138 S.Ct. at

2463–66; Agency for Int’l Dev., 570 U.S. at 213–21.

Elected officials do not surrender these protections.

The Court has held that legislators “are entitled to speak

out on public issues,” and that “the manifest function of

the First Amendment in a representative government

requires that legislators be given the widest latitude to

express their views on issues of policy.” Bond v. Floyd, 385

U.S. 116, 135–36 (1966). That principle includes the right

not to avow a State‑scripted rationale. A mandated, public

“statement of overriding considerations,” for example, is

speech—not a vote—and compels viewpoint. See, e.g.,

Cal. Pub. Res. Code § 21081(b) (illustrative).

Nor does government‑speech doctrine rescue

compelled avowals by elected officials. The State may

speak in its own name. Pleasant Grove City v. Summum,

555 U.S. 460, 467–69 (2009); Walker v. Tex. Div., Sons

of Confederate Veterans, 576 U.S. 200, 207–08 (2015).

But it may not conscript individual officeholders to

affirm personal belief as the price of compliance. And

public‑employee cases do not control. Garcetti v. Ceballos,

547 U.S. 410, 421–22 (2006), governs employee speech

under official duties; it does not strip elected officials of

protection against compelled ideology. See Lane v. Franks,

573 U.S. 228, 236–39 (2014).

25

C.

Other courts reach similar claims on the

merits, not via categorical bars.

Courts have treated analogous disputes as merits

questions or under ordinary Article III principles—not

as categorically barred. Bond v. Floyd, 385 U.S. 116,

132–36 (1966) (elected legislators retain First Amendment

rights; State may not impose a stricter standard); Houston

Cmty. Coll. Sys. v. Wilson, 595 U.S. 468, 476–80 (2022)

(recognizing elected officials’ speech; verbal censure not

actionable). The Ninth Circuit has itself recognized that

Carrigan is limited to official acts like voting. When a

state senator challenged sanctions for his statements to

the press, the court allowed the First Amendment claim

to proceed, distinguishing Carrigan because the speech

was not an exercise of legislative power. Boquist, 32 F.4th

at 774–75.

Local officials’ speech claims also proceeded to the

merits in City of El Cenizo v. Texas, 890 F.3d at 178–83.

There, the Fifth Circuit adjudicated a First Amendment

challenge to an “endorsement” restriction and held it

unconstitutional as applied to elected officials.

These cases confirm the line: limits on how officials

vote or perform official acts are one thing; compelled

affirmation of belief is another. Compelled avowals are

treated as speech and adjudicated on the merits.

26

D.

Application

The State conditioned compliance on elected

councilmembers’ adoption of an official statement endorsing

a contested policy rationale. That is speech, not a vote.

It falls outside Carrigan and within compelled‑speech

doctrine. See Barnette, 319 U.S. at 642; Wooley, 430 U.S.

at 714–15; NIFLA, 138 S.Ct. at 2371–75.

E. This subsidiary question warrants review.

Compelled official statements recur in modern

gover n a nc e — t h r ough m a nd at e d ju st i f ic at ion s ,

certifications, and “one‑voice” rules—and courts are

already adjudicating adjacent disputes on the merits. See

El Cenizo, 890 F.3d at 178–83; Boquist, 32 F.4th at 774–75;

cf. 595 U.S. at 477–81 (narrow holding on symbolic censure,

reserving broader questions).4 Clarifying that Carrigan

is limited to votes and does not permit compelled avowals

by elected officials will preserve the First Amendment’s

core protection for dissent in representative government,

while leaving Carrigan’s vote‑as‑conduct rule intact.

4. Wilson did not involve any compelled statement and the

Court explicitly reserved questions about more severe intrusions

on an official’s speech rights.

27

CONCLUSION

This case presents a recurring, outcome‑determinative

question that has split the circuits and departs from this

Court’s state‑law‑first method. California’s charter‑city

design entrenches local self‑government in municipal

affairs. Huntington Beach is a charter city with corporate

powers and locally elected officers. The State’s direction

here regulates core municipal processes—compelling

the City Council to adopt State‑authored positions and

procedures—implicating the City’s corporate interest in

resisting intergovernmental interference, and the fit is

direct. Under the proposed rule, capacity is presumed,

nothing in California law clearly withdraws it, and the

factors independently confirm capacity (constitutional

status; autonomy; local accountability; corporate‑interest

fit). That is why the Ninth Circuit’s categorical bar is

wrong twice over: it skips the state‑law‑first classification

and forecloses merits review the Court’s cases allow.

28

Leaving the Ninth Circuit’s categorical bar in place

denies a federal forum when state commands collide with

constitutional constraints—even where the local entity’s

authority flows directly from the state constitution. The

Court should grant certiorari, adopt the clear‑statement

presumption and factor test described above, and vacate

and remand for application of that standard.

September 18, 2025

Respectfully submitted,

John M. Reeves

Reeves Law LLC

7733 Forsyth Boulevard,

Suite 1110 – #1192

St. Louis, MO 63105

Michael Vigliotta

City Attorney

Counsel of Record

2000 Main Street

P.O. Box 190

Huntington Beach, CA 92648

(714) 536-5555

mvigliotta@surfcity-hb.org

Timothy M. Kowal

Kowal Law Group, APC

2901 West Coast Highway,

Suite 200

Newport Beach, CA 92663

Counsel for Petitioners

APPENDIX

i

TABLE OF APPENDICES

Page

APPENDIX A — MEMORANDUM OF THE

UNITED STATES COURT OF APPEALS

FOR T HE NIN T H CIRCU I T, FILED

OCTOBER 30, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — MINUTE ORDER OF THE

UNITED STATES DISTRICT COURT

FOR T H E CEN T R A L DIST RIC T OF

CALIFORNIA, FILED NOVEMBER 13, 2023 . . . 5a

APPENDIX C — DENIAL OF REHEARING

OF THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT,

FILED APRIL 21, 2025 . . . . . . . . . . . . . . . . . . . . . . 27a

1a

A

APPENDIX A —Appendix

MEMORANDUM

OF THE

UNITED STATES COURT OF APPEALS FOR THE

NINTH CIRCUIT, FILED OCTOBER 30, 2024

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 23-3694

D.C. No. 8:23-cv-00421-FWS-ADS

CITY OF HUNTINGTON BEACH, A CALIFORNIA

CHARTER CITY AND MUNICIPAL

CORPORATION; HUNTINGTON BEACH CITY

COUNCIL; TONY STRICKLAND, MAYOR OF

HUNTINGTON BEACH; GRACEY VAN DER MARK,

MAYOR PRO TEM OF HUNTINGTON BEACH,

Plaintiffs-Appellants,

v.

GAVIN NEWSOM, IN HIS OFFICIAL CAPACITY

AS GOVERNOR OF THE STATE OF CALIFORNIA;

GUSTAVO VELASQUEZ, IN HIS OFFICIAL

CAPACITY AS DIRECTOR OF THE STATE OF

CALIFORNIA DEPARTMENT OF HOUSING AND

COMMUNITY DEVELOPMENT; CALIFORNIA

DEPARTMENT OF HOUSING AND COMMUNITY

DEVELOPMENT; DOES, 1-50, INCLUSIVE;

SOUTHERN CALIFORNIA ASSOCIATION

OF GOVERNMENT,

Defendants-Appellees.

2a

Appendix A

Appeal from the United States District Court

for the Central District of California

Fred W. Slaughter, District Judge, Presiding

Argued and Submitted October 21, 2024

Pasadena, California

Before: TALLMAN, R. NELSON, and BRESS, Circuit

Judges.

MEMORANDUM*

The City of Huntington Beach and several City

officials sued to challenge the constitutionality of certain

California housing laws. The district court dismissed

their complaint, holding that under circuit precedent, each

Plaintiff lacked standing to raise federal constitutional

claims against the state. See City of S. Lake Tahoe v. Cal.

Tahoe Reg’l Plan. Agency, 625 F.2d 231 (9th Cir. 1980). We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1.  The City’s claims are foreclosed by our decision

in South Lake Tahoe, which forbids political subdivisions

and their officials from challenging the constitutionality

of state statutes in federal court. 625 F.2d at 233-34, 238.

We have consistently applied that rule ever since. See, e.g.,

Burbank-Glendale-Pasadena Airport Auth. v. City of

Burbank, 136 F.3d 1360, 1364 (9th Cir. 1998) (“This court

. . . has not recognized any exception to the per se [standing

bar], and the broad language of South Lake Tahoe appears

to foreclose the possibility of our doing so.”).

* This disposition is not appropriate for publication and is not

precedent except as provided by Ninth Circuit Rule 36-3.

3a

Appendix A

We are not persuaded by the City’s efforts to

differentiate South Lake Tahoe. The City argues that

our standing bar does not apply because Huntington

Beach is a charter city, which it claims is not a “political

subdivision.” Yet our precedent has applied South Lake

Tahoe’s standing rule to California’s charter cities. See

Burbank, 136 F.3d at 1364. And recent California appellate

decisions interpreting the term “political subdivision”

in specific state statutes do not undermine Burbank’s

analysis. See, e.g., City of Redondo Beach v. Padilla, 46

Cal. App. 5th 902, 912-13, 260 Cal. Rptr. 3d 263 (2020).

In any case, the City’s federal standing does not

turn on the intricacies of California law. Hollingsworth

v. Perry, 570 U.S. 693, 715, 133 S. Ct. 2652, 186 L. Ed.

2d 768 (2013) (“[S]tanding in federal court is a question

of federal law, not state law.”). No matter how California

categorizes charter cities, they remain subordinate

political bodies, not sovereign entities. See Reynolds v.

Sims, 377 U.S. 533, 575, 84 S. Ct. 1362, 12 L. Ed. 2d 506

(1964). That subsidiary status brings charter cities within

the rule of South Lake Tahoe, which relied on Supreme

Court precedent holding that municipal corporations such

as the City of Huntington Beach lack federal constitutional

rights against their parent states. 625 F.2d at 233 (citing

Williams v. Mayor & City Council of Balt., 289 U.S.

36, 40, 53 S. Ct. 431, 77 L. Ed. 1015 (1933) (“A municipal

corporation, created by a state for the better ordering of

government, has no privileges or immunities under the

Federal Constitution which it may invoke in opposition to

the will of its creator.”)).

4a

Appendix A

2.  The City officials also lack standing. Under South

Lake Tahoe, public officials cannot assert claims in federal

court based on “private constitutional predilections.” 625

F.2d at 238. The City officials’ objections to the Statement

of Overriding Considerations are the kinds of “personal

dilemmas” that South Lake Tahoe rejected as the basis for

individual standing. Id. at 237. Moreover, Plaintiffs do not

explain how they suffered a constitutional injury absent

their roles as local officials. See Thomas v. Mundell, 572

F.3d 756, 760-61 (9th Cir. 2009). So while the City officials

retain personal free speech rights, see, e.g., Lindke v.

Freed, 601 U.S. 187, 196, 144 S. Ct. 756, 218 L. Ed. 2d 121

(2024), they cannot invoke those rights to avoid executing

“laws within their charge,” South Lake Tahoe, 625 F.2d

at 238.

Because each Plaintiff lacks standing, we need not

consider whether abstention is proper under Younger v.

Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971).

AFFIRMED.1

1. We grant Appellants’ motion for judicial notice, Dkt. 13, of the

Petition for Writ of Mandate filed in the California Court of Appeal.

See U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo,

Inc., 971 F.2d 244, 248 (9th Cir. 1992).

5a

APPENDIX B —Appendix

MINUTEBORDER OF THE

UNITED STATES DISTRICT COURT FOR THE

CENTRAL DISTRICT OF CALIFORNIA,

FILED NOVEMBER 13, 2023

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES – GENERAL

Case No. 8:23-cv-00421-FWS-ADS

Date: November 13, 2023

Title: City of Huntington Beach et al. v.

Gavin Newsom et al.

Present: HONORABLE FRED W. SLAUGHTER,

UNITED STATES DISTRICT JUDGE

Melissa H. Kunig

N/A

Deputy Clerk

Court Reporter

PROCEEDINGS: ORDER GRANTING

DEFENDANTS’ MOTIONS TO DISMISS [44], [45]

Before the court are two motions to dismiss: (1) a

motion to dismiss filed by Defendant Southern California

Association of Governments (“Defendant Southern

California Association”) (Dkt. 44); and (2) a motion to

dismiss filed by Defendants Gavin Newsom, in his official

capacity as Governor of the State of California, and

individually; Gustavo Velasquez, in his official capacity as

Director of the State of California Department of Housing

and Community Development, and individually; and

the California Department of Housing and Community

Development (collectively, “State Defendants”) (Dkt. 45).1

1. The two motions to dismiss will be referred to collectively

as the “Motions.”

6a

Appendix B

The State Defendants’ Motion is supported by a request

for judicial notice and exhibits thereto. (Dkt. 45-1.)

On June 6, 2023, Plaintiffs City of Huntington Beach,

Tony Strickland, the Huntington Beach City Council, and

Gracey Van Der Mark (collectively, “Plaintiffs”) filed an

opposition to both Motions (“Opposition” or “Opp.”). (Dkt.

50.) Plaintiffs’ Opposition is supported by the declarations

of Mayor Tony Strickland (“Strickland Decl.”), Mayor

Pro Tem Gracey Van der Mark (“Van der Mark Decl.”),

exhibits attached thereto, and a request for judicial notice.

(Dkts. 50-1; 50-2; and 51.) On the same day, Plaintiffs also

opposed the State Defendants’ request for judicial notice.

(Dkt. 52.) On June 22, 2023, Defendant Southern California

Association and the State Defendants filed replies. (Dkts.

59, 61.) On the same day, Defendant Southern California

Association and the State Defendants filed objections to

the declarations submitted by Plaintiffs in support of the

Opposition. (Dkts. 60, 62.) On June 22, 2023, the State

Defendants filed a reply to Plaintiffs’ opposition to the

State Defendants’ request for judicial notice. (Dkt. 63.)

On June 26, 2023, Plaintiffs filed the signature pages for

the declarations of Mayor Tony Strickland and Mayor Pro

Tem Gracey Van der Mark. (Dkt. 64.) On July 25, 2023, the

court took the matters under submission. (Dkt. 66.) After

the matters were taken under submission, Plaintiffs filed

a supplemental request for judicial notice. (Dkt. 71.) Based

on the state of the record, as applied to the applicable law,

the Motions are GRANTED. 2

2. The parties request that the court take judicial notice of

various exhibits regarding parallel state proceedings, the City of

Huntington Beach’s charter, and the implementation of the RHNA

7a

Appendix B

I.

Legal Standards

a.

Motion to Dismiss Under Federal Rule of Civil

Procedure 12(b)(1)

Under Federal Rule of Civil Procedure 12(b)(1), a

party may move to dismiss a case for lack of subject matter

jurisdiction. Fed. R. Civ. P. 12(b)(1). “Federal courts are

courts of limited jurisdiction, possessing only that power

authorized by Constitution and statute.” Gunn v. Minton,

568 U.S. 251, 257, 133 S. Ct. 1059, 185 L. Ed. 2d 72 (2013)

(citation and internal quotation marks omitted); Steel Co.

v. Citizens for a Better Env’t, 523 U.S. 83, 94-95, 118 S.

Ct. 1003, 140 L. Ed. 2d 210 (1998) (“The requirement that

jurisdiction be established as a threshold matter ‘spring[s]

from the nature and limits of the judicial power of the

United States’ and is ‘inflexible and without exception.’”)

(citation and internal quotation marks omitted).

Under Rule 12(b)(1), a defendant’s challenge to subject

matter jurisdiction may be either facial or factual. Safe Air

for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).

A facial attack “accepts the truth of plaintiff’s allegations

Laws. (Dkts. 45-1, 50-1, 51, 71.) The parties have also filed objections

to each other’s requests for judicial notice. (Dkts. 52, 60, 62, 63.) The

court DENIES the parties’ requests for judicial notice and DENIES

AS MOOT the parties’ respective objections because the court

finds these materials are not relevant to deciding the Motions. See

Bryan v. City of Carlsbad, 297 F. Supp. 3d 1107, 1115 (S.D. Cal. 2018)

(declining to take judicial notice of documents that “do not provide

any additional relevant information, even if they would otherwise be

the proper subject of judicial notice”) (citing Adriana Int’l Corp. v.

Thoeren, 913 F.2d 1406, 1410 n.2 (9th Cir. 1990)).

8a

Appendix B

but asserts that they ‘are insufficient on their face to

invoke federal jurisdiction.’” Leite v. Crane Co., 749 F.3d

1117, 1121 (9th Cir. 2014) (quoting Safe Air for Everyone,

373 F.3d at 1039). By contrast, a factual attack “contests

the truth of the plaintiff’s factual allegations, usually by

introducing evidence outside of the pleadings.” Id.

“In resolving a factual attack on jurisdiction, the

district court may review evidence beyond the complaint

without converting the motion to dismiss into a motion for

summary judgment.” Safe Air for Everyone, 373 F.3d at

1039 (citation omitted). The court need not presume the

truthfulness of the plaintiff’s allegations. Id. “Once the

moving party has converted the motion to dismiss into a

factual motion by presenting affidavits or other evidence

properly brought before the court, the party opposing

the motion must furnish affidavits or other evidence

necessary to satisfy its burden of establishing subject

matter jurisdiction.” Savage v. Glendale Union High Sch.,

343 F.3d 1036, 1039 n. 2 (9th Cir. 2003) (citation omitted).

Where “the jurisdictional disputes [are] not intertwined

with the merits of the claim” and “the existence of

jurisdiction turn[s] on disputed factual issues,” the court

may “resolve those factual disputes” where necessary. See

Friends of the Earth v. Sanderson Farms, Inc., 992 F.3d

939, 944 (9th Cir. 2021) (citation and internal quotation

marks omitted); Kingman Reef Atoll Invs., L.L.C. v.

United States, 541 F.3d 1189, 1195 (9th Cir. 2008).

9a

Appendix B

b.

Motion to Dismiss Under Federal Rule of Civil

Procedure 12(b)(6)

Rule 12(b)(6) permits a defendant to move to dismiss

a complaint for “failure to state a claim upon which relief

can be granted.” Fed. R. Civ. P. 12(b)(6). To withstand a

motion to dismiss brought under Rule 12(b)(6), a complaint

must allege “enough facts to state a claim to relief that

is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007).

While “a complaint attacked by a Rule 12(b)(6) motion

to dismiss does not need detailed factual allegations,” a

plaintiff must provide “more than labels and conclusions”

and “a formulaic recitation of the elements of a cause of

action” such that the factual allegations “raise a right to

relief above the speculative level.” Id. at 555 (citations

and internal quotation marks omitted); see also Ashcroft

v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d

868 (2009) (reiterating that “recitals of the elements of a

cause of action, supported by mere conclusory statements,

do not suffice”).

“Establishing the plausibility of a complaint’s

allegations is a two-step process that is ‘context-specific’

and ‘requires the reviewing court to draw on its judicial

experience and common sense.’” Eclectic Props. E., LLC

v. Marcus & Millichap Co., 751 F.3d 990, 995-96 (9th Cir.

2014) (quoting Iqbal, 556 U.S. at 679). “First, to be entitled

to the presumption of truth, allegations in a complaint

. . . must contain sufficient allegations of underlying

facts to give fair notice and to enable the opposing party

10a

Appendix B

to defend itself effectively.” Id. at 996 (quoting Starr v.

Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). “Second, the

factual allegations that are taken as true must plausibly

suggest an entitlement to relief, such that it is not unfair to

require the opposing party to be subjected to the expense

of discovery and continued litigation.” Id. (quoting Starr,

652 F.3d at 1216); see also Iqbal, 556 U.S. at 681.

Plausibility “is not akin to a ‘probability requirement,’

but it asks for more than a sheer possibility that a

defendant has acted unlawfully.” Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 167

L. Ed. 2d 929 (2007)). On one hand, “[g]enerally, when a

plaintiff alleges facts consistent with both the plaintiff’s

and the defendant’s explanation, and both explanations

are plausible, the plaintiff survives a motion to dismiss

under Rule 12(b)(6).” In re Dynamic Random Access

Memory (DRAM) Indirect Purchaser Antitrust Litig.,

28 F.4th 42, 47 (9th Cir. 2022) (citing Starr, 652 F.3d at

1216). But, on the other, “‘[w]here a complaint pleads facts

that are merely consistent with a defendant’s liability, it

stops short of the line between possibility and plausibility

of entitlement to relief.’” Eclectic Props. E., LLC, 751 F.3d

at 996 (quoting Iqbal, 556 at U.S. 678). Ultimately, a claim

is facially plausible where “the plaintiff pleads factual

content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged.” See Iqbal, 556 U.S. at 678 (citing Twombly, 550

at 556); accord Wilson v. Hewlett-Packard Co., 668 F.3d

1136, 1140 (9th Cir. 2012).

11a

Appendix B

In Sprewell v. Golden State Warriors, the Ninth

Circuit described legal standards for motions to dismiss

made pursuant to Rule 12(b)(6):

Review is limited to the contents of the

complaint. All allegations of material fact are

taken as true and construed in the light most

favorable to the nonmoving party. The court

need not, however, accept as true allegations

that contradict matters properly subject to

judicial notice or by exhibit. Nor is the court

required to accept as true allegations that are

merely conclusory, unwarranted deductions of

fact, or unreasonable inferences.

266 F.3d 979, 988 (9th Cir. 2001) (citations omitted).

II. Summary of Allegations in the First Amended

Complaint

This action concerns the enforcement of California’s

Housing Accountability Act, Cal. Gov. Code § 65585, et seq.

and its provisions mandating building new housing units.

(See generally Dkt. 38 (“FAC”).) In sum, Plaintiffs seek

declaratory and injunctive relief to invalidate and prevent

the enforcement of the State of California’s Regional

Housing Needs Allocation Laws (“RHNA Laws”), Cal.

Gov. Code Sections 65583, et seq. (Id.) Plaintiffs allege the

State of California passed SB 1333 in 2018, which requires

charter cities to comply with planning and land use laws

in a manner violative of the California Constitution. (Id.

12a

Appendix B

¶ 3.) Plaintiffs allege SB 1333 deprives charter cities like

the City of Huntington Beach of their historical authority

to control municipal affairs. (Id.)

Per the RHNA Laws, each city and county must

adopt a “Housing Element” that demonstrates how

the jurisdiction will accommodate its assigned RHNA

units through its current zoning or potential rezoning

program. (Id. ¶ 74.) If a local government fails to submit

a compliant Housing Element within the required

timeframe or is found to be noncompliant with its RHNA

requirements, it can face penalties, including being subject

to a shortened housing element review cycle, losing the

ability to disapprove housing development projects, and

losing eligibility for certain state or federal grant funds.

(Id. ¶ 79.)

Plaintiffs allege Defendants determined in 2021 that

the City of Huntington Beach must rezone property to

permit the development of 13,368 units of high-density

RHNA Units, with little or no ability for the City of

Huntington Beach to control the development of the

units. (Id. ¶ 19.) Although the City of Huntington Beach

appealed the RHNA determination to Defendant Southern

California Association of Governments, this appeal was

unsuccessful. (Id. ¶ 120.)

Plaintiffs allege the RHNA Laws impede the City of

Huntington Beach’s independent legislative authority, do

not allow for judicial review, are vague and ambiguous,

and rely on a flawed process. (Id. ¶¶ 21, 22.) Plaintiffs

13a

Appendix B

allege building 13,368 units of new housing during the

current planning cycle would double the size of the City

of Huntington Beach, making it impossible for the City

of Huntington Beach to provide municipal services. (Id.

¶ 28.) Plaintiffs further allege Defendants will punish

the City of Huntington Beach if it does not zone for

13,368 new units of housing. (Id. ¶ 29.) Finally, Plaintiffs

allege Defendants will compel the City Council to make

statements that it does not approve of, such as that “the

benefits of the proposed high-density housing outweigh

the negative impacts on the City’s environment.” (Id. ¶ 17.)

Based on these allegations, Plaintiffs assert eleven

causes of action against Defendants: (1) compelled speech

in violation of the First Amendment; (2) violation of the

Fourteenth Amendment right to procedural due process;

(3) violation of the Fourteenth Amendment right to

substantive due process; (4) violation of the Commerce

Clause; (5) violation of Article XI of the California

Constitution; (6) violation of California Government

Code §§ 65583 et. seq.; (7) violation of the California

Constitution’s separation of powers; (8) an illegal bill of

attainder in violation of the California Constitution; (9)

violation of the California Environmental Quality Act,

Public Resources Code §§ 21000 et. seq.; (10) violation

of Article IV, Section 16 of the California Constitution;

and (11) fraud. (FAC ¶¶ 121-241.) Each cause of action is

asserted against each Defendant. (Id.)

14a

Appendix B

III. Discussion

a.

Plaintiffs Lack Standing to Assert their

Federal Constitutional Claims

As a threshold matter, Defendants argue Plaintiffs

lack Article III standing to challenge the RHNA Laws

on constitutional grounds because cities, as political

subdivisions of the state, cannot assert violations of

constitutional rights against the state. (Dkt. 44 at 5-8; Dkt.

45 at 9-11.) Plaintiffs Mayor Tony Strickland, Mayor Pro

Tem Gracey Van der Mark, and the Huntington Beach

City Council argue they have Article III standing because

“[e]very individual is protected by the U.S. Constitution

to his or her free speech” and are “elected by the people

of the City pursuant to the City’s Charter.” (Dkt. 50 at 1315.) Plaintiff the City of Huntington Beach argues it also

has Article III standing to challenge the constitutionality

of the RHNA Laws because a chartered city, unlike a

general law city, is not a political subdivision of the state.

(Id. at 15-19.)

“[T]o establish standing, a plaintiff must show

(i) that he suffered an injury in fact that is concrete,

particularized, and actual or imminent; (ii) that the injury

was likely caused by the defendant; and (iii) that the injury

would likely be redressed by judicial relief.” TransUnion

LLC v. Ramirez, 141 S. Ct. 2190, 2203, 210 L. Ed. 2d 568

(2021) (citation omitted). “At the pleading stage, general

factual allegations of injury resulting from the defendant’s

conduct may suffice.” Lujan v. Defs. of Wildlife, 504 U.S.

555, 561, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). “An

allegation of future injury may suffice if the threatened

15a

Appendix B

injury is ‘certainly impending,’ or there is a ‘substantial

risk’ that the harm will occur.’” Susan B. Anthony List v.

Driehaus, 573 U.S. 149, 158, 134 S. Ct. 2334, 189 L. Ed.

2d 246 (2014) (quoting Clapper v. Amnesty Int’l USA, 568

U.S. 398, 414 n.5, 133 S. Ct. 1138, 185 L. Ed. 2d 264 (2013)).

The court is mindful that “[c]onstitutional challenges

based on the First Amendment present unique standing

considerations.” Ariz. Right to Life Pol. Action Comm.

v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003). As such,

“the Supreme Court has endorsed what might be called

a ‘hold your tongue and challenge now’ approach rather

than requiring litigants to speak first and take their

chances with the consequences.” Id. (citing Dombrowski

v. Pfister, 380 U.S. 479, 486, 85 S. Ct. 1116, 14 L. Ed. 2d 22

(1965) and Bland v. Fessler, 88 F.3d 729, 736-37 (9th Cir.

1996)). However, a “chilling of First Amendment rights can

constitute a cognizable injury” only “so long as the chilling

effect is not based on a fear of future injury that itself is

too speculative to confer standing.” Index Newspapers

LLC v. United States Marshals Serv., 977 F.3d 817, 826

(9th Cir. 2020) (cleaned up).

Yet, in City of S. Lake Tahoe v. California Tahoe

Reg’l Plan. Agency, 625 F.2d 231 (9th Cir. 1980), the

Ninth Circuit squarely addressed the question of whether

political subdivisions of a state may challenge the validity

of a state statute on constitutional grounds. Per City

of S. Lake Tahoe, “[i]t is well established that political

subdivisions of a state may not challenge the validity of a

state statute under the Fourteenth Amendment.” Id. at

233 (citations and internal quotation marks omitted). “This

is true whether the defendant is the state itself or another

16a

Appendix B

of the state’s political subdivisions.” Id. Lack of standing

similarly bars constitutional challenges asserted by public

officials tasked with enforcing allegedly unconstitutional

state laws. In City of S. Lake Tahoe, the Ninth Circuit

held that public officials who wish not to enforce a statute

due to “private constitutional predilections” lack standing

to assert constitutional claims for the following reasons:

[C]onstitutional principle divorced from

concrete injury may suffice to generate a

spirited legislative or public debate, but

will not support a federal case. This is not

to denigrate constitutional principle, nor to

urge upon public officials the violation of their

consciences. But the difficulty with abstract

constitutional grievances is that they lack

the specificity and adversarial coloration that

transmute vague notions of constitutional

principle into a form historically viewed as

capable of judicial resolution . . . To confer

standing on public officials because they

wish not to enforce a statute due to private

constitutional predilections, or because their

decision not to enforce the statute may result

in criminal liability, would convert all officials

charged with executing statutes into potential

litigants, or attorneys general, as to laws

within their charge . . . We hold, therefore, that

the councilmembers’ interest here is official

rather than personal . . . the councilmembers’

claim to standing is deficient.

Id. at 238 (emphasis added).

17a

Appendix B

Subsequent Ninth Circuit decisions have affirmed and

extended the holding of City of S. Lake Tahoe. In BurbankGlendale-Pasadena Airport Auth. v. City of Burbank, 136

F.3d 1360, 1364 (9th Cir. 1998), the Ninth Circuit clarified

that Supremacy Clause challenges brought by a political

subdivision of a state are similarly barred. See id. at 1364

(“This court, however, has not recognized any exception

to the per se rule, and the broad language of South Lake

Tahoe appears to foreclose the possibility of our doing so

. . . Indeed, the complaint in South Lake Tahoe included

a Supremacy Clause claim, as well as violations of the

Fifth and Fourteenth Amendments . . . . Accordingly, we

must reject the contention that we should create such an

exception at this point.”). In City of Burbank, the Ninth

Circuit further clarified that whether a city is a charter

city or general law city has no bearing on the question

of standing. Id. at 1364 (rejecting the argument that

“Burbank is a charter city, rather than a general law city, it

is not a political subdivision of the state for purposes of its

ability to challenge a state statute” because “charter cities

in California generally are defined as political subdivisions

along with other governmental entities”).

In addition to City of Burbank, the Ninth Circuit has

repeatedly reaffirmed the holding of City of S. Lake Tahoe

in various contexts, including suits brought by school

districts and suits asserting constitutional challenges

to state regulations and administrative divisions. See

Palomar Pomerado Health Sys. v. Belshe, 180 F.3d 1104,

1108 (9th Cir. 1999) (“Palomar Pomerado is a political

subdivision of the State of California. As such, it lacks

standing to bring an action against the state in federal

court—at least to the extent that its action challenges the

18a

Appendix B

validity of state regulations on due process and Supremacy

Clause grounds.”); City of San Juan Capistrano v. Cal.

Pub. Utilities Comm’n, 937 F.3d 1278, 1281 (9th Cir. 2019)

(“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.”); Okanogan Sch. Dist. # 105 v. Superintendent

of Pub. Instruction, 291 F.3d 1161, 1163 (9th Cir. 2002)

(“We agree that the school districts lack standing under

City of South Lake Tahoe . . . . School districts are a

political subdivision of the state, and political subdivisions

of a state may not challenge the validity of a state statute

in federal court.”).

The Ninth Circuit has also made clear that an action

against a state official seeking to restrain state action

should be construed as an action against the state. See

Palomar, 180 F.3d at 1108 (“Here, the purpose of the

injunction and other orders [plaintiff] seeks is to restrain

the Government from reducing the Medi—Cal payment

rates . . . . The result [plaintiff] seeks would interfere with

the public administration. As such, [plaintiff’s] action falls

under the category of actions against state officials that

are in fact actions against the state.”) (internal quotation

marks omitted); see also Pennhurst State Sch. & Hosp.

v. Halderman, 465 U.S. 89, 101, 104 S. Ct. 900, 79 L. Ed.

2d 67 (1984) (“[T]he general rule is that relief sought

nominally against an officer is in fact against the sovereign

if the decree would operate against the latter.”) (quoting

Hawaii v. Gordon, 373 U.S. 57, 58, 83 S. Ct. 1052, 10 L.

Ed. 2d 191 (1963)).

19a

Appendix B

In this case, although Plaintiffs maintain they each

have standing to bring federal constitutional claims

challenging the RHNA Laws, the court finds each group of

Plaintiffs lacks standing based on Ninth Circuit precedent.

First, as to the standing of Plaintiff Mayor Tony

Strickland, Plaintiff Mayor Pro Tem Gracey Van Der

Mark, and Plaintiff City Council, these Plaintiffs argue

they have standing because they are being forced to

make statements in favor of implementing the RHNA

Laws. (Dkt. 50 at 13-15.) Specifically, Plaintiff Strickland

argues his First Amendment rights are being violated

because “the RHNA Laws process forc[e] him, through

essentially State-compelled speech, to make Statements

of Overriding Considerations in favor of implementing

the State-mandated 13,368 high-density RHNA Units of

housing in the City against his will and over his objections.”

(Id. at 13-14.) Plaintiff Van Der Mark and Plaintiff City

Council raise the same argument. (Id. at 14-15.)

The court finds these arguments are squarely

precluded by City of S. Lake Tahoe and its progeny.

Under this line of authority, public officials lack standing

to assert constitutional claims that seek to redress

“private constitutional predilections.” 625 F.2d at 238

(“To confer standing on public officials because they

wish not to enforce a statute due to private constitutional

predilections, or because their decision not to enforce the

statute may result in criminal liability, would convert all

officials charged with executing statutes into potential

litigants, or attorneys general, as to laws within their

charge.”) Accordingly, Plaintiff Strickland, Plaintiff Van

der Mark, and Plaintiff City Council’s arguments that they

20a

Appendix B

are being forced to implement the RHNA Laws over their

personal objections are insufficient to confer standing.

Si mi la rly, this precedent precludes pol itica l

subdivisions of a state like Plaintiff City of Huntington

Beach from asserting constitutional challenges to the

validity of a state law in federal court. See City of S. Lake

Tahoe, 625 F.2d at 233 (“It is well established that political

subdivisions of a state may not challenge the validity of a

state statute under the Fourteenth Amendment.”); City

of Burbank, 136 F.3d at 1364 (“This court, however, has

not recognized any exception to the per se rule, and the

broad language of South Lake Tahoe appears to foreclose

the possibility of our doing so . . . . Indeed, the complaint in

South Lake Tahoe included a Supremacy Clause claim, as

well as violations of the Fifth and Fourteenth Amendments

. . . .”); Palomar, 180 F.3d at 1108 (“Palomar Pomerado is

a political subdivision of the State of California. As such,

it lacks standing to bring an action against the state

in federal court—at least to the extent that its action

challenges the validity of state regulations on due process

and Supremacy Clause grounds.”); Okanogan Sch. Dist. #

105, 291 F.3d at 1163 (“We agree that the school districts

lack standing under City of South Lake Tahoe . . . .

[s]chool districts are a political subdivision of the state,

and political subdivisions of a state may not challenge the

validity of a state statute in federal court.”).

Nor is the standing analysis any different for a charter

city as opposed to a general law city. Although Plaintiff City

of Huntington Beach argues it is not a political subdivision

of the state because it is a municipal corporation and

21a

Appendix B

charter city rather than a general law city, (Dkt. 50 at

16-19), the Ninth Circuit has previously considered and

rejected this argument. As noted, in City of Burbank, the

Ninth Circuit held that whether a city is a charter city or

general law city has no bearing on the question of federal

standing. 136 F.3d at 1364. Specifically, the Ninth Circuit

held that a California charter city still lacks standing

because they “are defined as political subdivisions along

with other governmental entities.” Id.; see also Reynolds

v. Sims, 377 U.S. 533, 575, 84 S. Ct. 1362, 12 L. Ed. 2d 506

(1964) (“Political subdivisions of States—counties, cities,

or whatever—never were and never have been considered

as sovereign entities. Rather, they have been traditionally

regarded as subordinate governmental instrumentalities

created by the State to assist in the carrying out of

state governmental functions.”). Accordingly, the court

concludes that Plaintiff City of Huntington Beach lacks

standing to bring federal constitutional claims challenging

the RHNA Laws. 3

In summary, per Ninth Circuit precedent, all

Plaintiffs lack Article III standing to challenge the

RHNA Laws on constitutional grounds. Accordingly,

3. Plaintiffs point to various cases in support of their position

that the City of Huntington Beach should not be considered a

political subdivision of the state. (See Dkt. 50 at 15-16, 18-19 (citing

to Mitchell v. L.A. Cmty. Col. Dist., 861 F.2d 198, 201 (9th Cir.

1988), Eason v. Clark Cnty. Sch. Dist., 303 F.3d 1137, 1144 (9th Cir.

2002), and Haytasingh v. City of San Diego, 66 Cal. App. 5th 429,

436, 286 Cal. Rptr. 3d 364 (2021).) The court finds these cases are

inapposite because they concern Eleventh Amendment immunity or

interpretations of state laws that are not at issue here.

22a

Appendix B

Plaintiffs lack standing to assert their first four claims

against Defendants for First Amendment violations,

Four teenth A mendment procedural due process

violations, Fourteenth Amendment substantive due

process violations, and Commerce Clause violation and

the Motions are GRANTED as to the first, second, third,

and fourth causes of action.4

b.

The Court Declines to Exercise Supplemental

Jurisdiction over Plaintiffs’ Remaining State

Law Claims

Plaintiffs’ remaining claims assert violations of the

California Constitution, the California Government Code,

and the California Environmental Quality Act, as well

as a fraud claim under California law. (FAC ¶¶ 168-241.)

In summary, in the absence of the federal claims in this

matter, Plaintiffs’ only remaining claims are alleged under

California law. (Id.)

4. Plaintiffs argue their claims should be permitted to proceed

under Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714

(1908). (Dkt. 50 at 19-21.) However, contrary to Plaintiffs’ arguments,

“Young does not provide [a plaintiff] with standing to sue in federal

court.” Palomar, 180 F.3d at 1108. Instead, “Young only provides ‘a

narrow exception to Eleventh Amendment immunity for certain suits

seeking declaratory and injunctive relief against unconstitutional

actions taken by state officers in their official capacities.’” Palomar,

180 F.3d at 1108 (quoting Rounds v. Oregon State Bd. of Higher Educ.,

166 F.3d 1032, 1036 (9th Cir. 1999)). Accordingly, the court concludes

Plaintiffs’ arguments regarding Ex Parte Young’s applicability to

this action does not address the standing and jurisdictional issues

identified above.

23a

Appendix B

The court observes Plaintiffs’ remaining claims do

not raise federal questions because they assert violations

of California law. (Id.) Additionally, Plaintiffs’ claims are

asserted between non-diverse parties. (Id. ¶¶ 43-50.) As

such, the only remaining hook for the court’s jurisdiction

over these claims is the supplemental jurisdiction statute,

28 U.S.C. § 1367.

The court finds at least three reasons militate towards

declining supplemental jurisdiction over Plaintiffs’ state

law claims. First, this case “raises [] novel or complex

issue[s] of State law.” See 28 U.S.C. § 1367(c)(1) (“The

district courts may decline to exercise supplemental

jurisdiction over a claim under subsection (a) if . . . the

claim raises a novel or complex issue of State law.”) More

specifically, Plaintiffs ask the court to determine in the

first instance whether recently enacted California statutes

violate various provisions of the California Constitution

and state statutes. (See generally FAC.)

Second, the “court has dismissed all claims over

which it has original jurisdiction” on the basis of a lack

of Article III standing. See 28 U.S.C. § 1367(c)(3) (“The

district courts may decline to exercise supplemental

jurisdiction over a claim under subsection (a) if . . . the

district court has dismissed all claims over which it has

original jurisdiction.”). Moreover, “in the usual case in

which all federal-law claims are eliminated before trial,

the balance of factors to be considered under the pendent

jurisdiction doctrine—judicial economy, convenience,

fairness, and comity—will point toward declining to

exercise jurisdiction over the remaining state-law claims.”

24a

Appendix B

Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th

Cir. 2010) (quoting Carnegie-Mellon Univ. v. Cohill, 484

U.S. 343, 350 n.7, 108 S. Ct. 614, 98 L. Ed. 2d 720 (1988),

superseded on other grounds by statute).

Third and finally, the court finds adjudicating

the constitutionality of a California statute under the

California Constitution, in the absence of a viable federal

claim, constitutes “compelling reasons” in “exceptional

circumstances” to decline exercising supplemental

jurisdiction. See 28 U.S.C. § 1367(c)(4) (“The district

courts may decline to exercise supplemental jurisdiction

over a claim under subsection (a) if . . . in exceptional

circumstances, there are other compelling reasons for

declining jurisdiction.”); see also City of Chicago v. Int’l

Coll. of Surgeons, 522 U.S. 156, 174, 118 S. Ct. 523, 139 L.

Ed. 2d 525 (1997) (listing as “exceptional circumstances”

warranting declining federal jurisdiction “considerations

of proper constitutional adjudication, regard for federalstate relations, or wise judicial administration”) (quoting

Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716, 116

S. Ct. 1712, 135 L. Ed. 2d 1 (1996)).

Accordingly, the court declines to exercise supplemental

jurisdiction over Plaintiffs’ remaining state law claims and

DISMISSES the fifth, sixth, seventh, eighth, ninth, tenth,

and eleventh causes of action. See Acri v. Varian Assocs.,

Inc., 114 F.3d 999, 1000 (9th Cir. 1997) (“[A] federal district

court with power to hear state law claims has discretion

to keep, or decline to keep, them under the conditions

set out in § 1367(c).”); O’Brien v. Maui Cnty., 37 F. App’x

269, 273 (9th Cir. 2002) (“Under 28 U.S.C. § 1367(c)(3), a

25a

Appendix B

district court may, in its discretion, decline to exercise

supplemental jurisdiction over related state law claims

once it has dismissed all claims over which it has original

jurisdiction.”) (internal quotation marks omitted).

IV. Leave to Amend

“A party may amend its pleading once as a matter of

course within: [(1)] 21 days after serving it, or [(2)] if the

pleading is one to which a responsive pleading is required,

21 days after service of a responsive pleading or 21 days

after service of a motion under Rule 12(b), (e), or (f),

whichever is earlier.” Fed. R. Civ. P. 15(a)(1). “In all other

cases,” pleadings may only be amended with the opposing

party’s written consent or the court’s leave, the latter of

which is “freely give[n] when justice so requires.” Fed.

R. Civ. P. 15(a)(2). “In assessing whether leave to amend

is proper, courts consider the presence or absence of

undue delay, bad faith, dilatory motive, repeated failure

to cure deficiencies by previous amendments, undue

prejudice to the opposing party and futility of the proposed

amendment.” Kroessler v. CVS Health Corp., 977 F.3d

803, 814-15 (9th Cir. 2020) (citation and internal quotation

marks omitted). Courts may find amendment futile where

“no amendment would allow the complaint to withstand

dismissal as a matter of law,” and “[f]utility of amendment

can, by itself, justify the denial of a motion for leave to

amend.” Id. at 815 (citation and internal quotation marks

omitted). But “[i]f a complaint does not state a plausible

claim for relief, a district court should grant leave to

amend even if no request to amend the pleading was made,

unless it determines that the pleading could not possibly

26a

Appendix B

be cured by the allegation of other facts.” Perez v. Mortg.

Elec. Registration Sys., Inc., 959 F.3d 334, 340 (9th Cir.

2020) (citation and internal quotation marks omitted).

At this juncture, the court has dismissed Plaintiffs’

federal claims for lack of Article III standing, leaving

only those claims asserted under California law. The

court finds amendment of the federal constitutional claims

would be futile under Ninth Circuit precedent, including

City of S. Lake Tahoe and its progeny. In the absence of

the federal constitutional claims, only Plaintiffs’ claims

under state law remain. Accordingly, the court finds the

FAC’s allegations dismissed by this Order are futile at

this stage and DENIES Plaintiffs leave to amend. See

Kroessler, 977 F.3d at 814-15 (holding that amendment may

be futile where “no amendment would allow the complaint

to withstand dismissal as a matter of law,” and “[f]utility

of amendment can, by itself, justify the denial of a motion

for leave to amend”).

V. Disposition

For the reasons set forth above, the Motions are

GRANTED. The Clerk of Court is directed to CLOSE

the matter.

Initials of Deputy Clerk: mku

27a

AppendixOF

C REHEARING OF

APPENDIX C — DENIAL

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT, FILED APRIL 21, 2025

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 23-3694

D.C. No. 8:23-cv-00421-FWS-ADS

CITY OF HUNTINGTON BEACH, A CALIFORNIA

CHARTER CITY AND MUNICIPAL

CORPORATION; HUNTINGTON BEACH CITY

COUNCIL; TONY STRICKLAND, MAYOR OF

HUNTINGTON BEACH; GRACEY VAN DER MARK,

MAYOR PRO TEM OF HUNTINGTON BEACH,

Plaintiffs-Appellants,

v.

GAVIN NEWSOM, INDIVIDUALLY AND IN HIS

OFFICIAL CAPACITY AS GOVERNOR OF THE

STATE OF CALIFORNIA; GUSTAVO VELASQUEZ,

IN HIS OFFICIAL CAPACITY AS DIRECTOR OF

THE STATE OF CALIFORNIA DEPARTMENT OF

HOUSING AND COMMUNITY DEVELOPMENT;

CALIFORNIA DEPARTMENT OF HOUSING

AND COMMUNITY DEVELOPMENT; DOES,

1-50, INCLUSIVE; SOUTHERN CALIFORNIA

ASSOCIATION OF GOVERNMENT,

Defendants–Appellees.

Filed April 21, 2025

28a

Appendix C

Before: Richard C. Tallman, Ryan D. Nelson,

and Daniel A. Bress, Circuit Judges.

ORDER

Judge R. Nelson and Judge Bress voted to deny

the petition for rehearing en banc. Judge Tallman

recommended denying the petition for rehearing en banc.

The full court was advised of the petition for rehearing

en banc. A judge requested a vote on whether to rehear

the matter en banc. The matter failed to receive a majority

of the votes of the nonrecused active judges in favor of en

banc consideration. Fed. R. App. P. 40.

The petition for rehearing en banc, Dkt. 54, is

DENIED.