United States v. City of Arcata

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-counter-defendant-
Appellee,
v.
CITY OF ARCATA and CITY OF
EUREKA,
Defendants-counter-claimants-
Appellants,
v. No. 09-16780
ROBERT S. GATES, in his official  D.C. No.
4:08-cv-05725-SBA
capacity as United States Secretary
of Defense; DAVID S. CHU, in his OPINION
official capacity as United States
Under Secretary of Defense for
Personnel Readiness,
Counter-defendants-Appellees,
v.
VOTE YES ON MEASURES F AND J
COMMITTEE,
Defendant-intervenor.

Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding

Submitted November 4, 2010*
San Francisco, California

*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

20257
20258 UNITED STATES v. CITY OF ARCATA
Filed December 17, 2010

Before: Alex Kozinski, Chief Judge, Pamela Ann Rymer,
Circuit Judge, and Matthew F. Kennelly, District Judge.**

Opinion by Judge Kennelly

**The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
20260 UNITED STATES v. CITY OF ARCATA

COUNSEL

Joel McElvain, Department of Justice, Washington, DC;
Christine Noel Kohl, Department of Justice, Washington, DC;
and Scott R. McIntosh, Department of Justice, Washington,
DC, for the plaintiff-counter-defendant-appellee and counter-
defendants-appellees.

Brad Yamauchi, Minami Tamaki LLP, San Francisco, Cali-
fornia; Nancy Diamond, Law Offices of Nancy Diamond,
Arcata, California; Michael Sorgen, Law Offices of Michael
S. Sorgen, San Francisco, California; and Sheryl Schaffner,
City of Eureka, Eureka, California, for the defendants-
counter-claimants.

OPINION

KENNELLY, District Judge:

Two local ordinances, the Arcata Youth Protection Act and
the Eureka Youth Protection Act, prohibit agents or employ-
ees of the federal government from engaging in military
recruitment activities targeting minors. The United States
sued to bar enforcement of the ordinances. The district court
granted the government’s motion for judgment on the plead-
ings and permanently enjoined the cities of Arcata and Eureka
 UNITED STATES v. CITY OF ARCATA 20261
from enforcing the ordinances. For the reasons stated below,
we affirm.

I. Facts and Procedural History

The cities of Arcata and Eureka (“the cities”) are California
municipalities. On November 4, 2008, voters in the cities
approved Ballot Measures F and J, which enacted the Arcata
and Eureka Youth Protection Acts1 respectively (“the ordi-
nances”). The ordinances were proposed in response to
alleged violations of laws governing military recruitment. The
“Findings” contained in each ordinance state that “[m]ilitary
recruiters target teens through ad campaigns, mailings, tele-
phone calls, email, and direct personal contact. They promote
enlistment by glorifying military service and exaggerating the
educational and career benefits, while ignoring the dangers.”

The ordinances purport to bar the federal government from
“recruit[ing], initiat[ing] contact with for the purpose of
recruiting, or promot[ing] the future enlistment of any person
under the age of eighteen into any branch of the United States
Armed Forces.” They also subject military recruiters to civil
penalties for each infraction. At the same time, the ordinances
specifically exempt “individuals who are not employed by or
agents of the U.S. government” from their restrictions. The
cities have expressed their intent to enforce the ordinances
against the federal government.

On December 23, 2008, the United States brought suit
against the cities seeking a declaration that the ordinances are
invalid under the Supremacy Clause of the United States Con-
stitution. The cities filed their answer on February 12, 2009,
denying that the ordinances are unconstitutional and advanc-
ing several affirmative defenses. The cities also counter-
claimed for a declaratory judgment upholding the ordinances
1
The parties agree that the Arcata and Eureka ordinances are materially
identical.
20262 UNITED STATES v. CITY OF ARCATA
and for an injunction prohibiting the government from recruit-
ing any Arcata or Eureka resident under the age of seventeen
into the military.

The government moved for judgment on the pleadings. It
argued that the ordinances violate the doctrine of intergovern-
mental immunity because they directly regulate and discrimi-
nate against the federal government. The government also
contended that the ordinances were preempted by federal law.
It sought a permanent injunction against the cities’ enforce-
ment of the ordinances.

The district court granted the government’s motion,
declared the ordinances invalid, and permanently enjoined the
cities from enforcing them. Among other conclusions, the
court found the ordinances unconstitutional because they
sought “to subject the conduct of the federal government
directly to local government control,” thereby violating the
doctrine of intergovernmental immunity.

II. Discussion

On appeal, the cities challenge for the first time the district
court’s subject matter jurisdiction. We address this issue
before turning to the merits.

A. Jurisdiction

The cities presented two jurisdictional arguments in their
reply brief. First, the cities argue that the government has not
satisfied the injury in fact requirement for Article III standing.
Second, the cities assert that because the government’s com-
plaint presents only a federal defense and not a federal claim,
the government has misused the Declaratory Judgment Act to
try to establish federal question jurisdiction where it does not
in fact exist.
 UNITED STATES v. CITY OF ARCATA 20263
1. Injury in Fact

The cities argue that the government has alleged only a
hypothetical negative impact on federal recruiting objectives
and thus has not shown the injury in fact necessary to confer
standing. The cities do not appear to contest the other two
requirements for standing under Article III, causation and
redressability. See Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992).

[1] To demonstrate injury in fact, a plaintiff “must show
that [it] is under threat of suffering ‘injury in fact’ that is con-
crete and particularized” and “actual and imminent, not con-
jectural or hypothetical.” Summers v. Earth Island Inst., 129
S. Ct. 1142, 1149 (2009). Put another way, “Art[icle] III
requires the party who invokes the court’s authority to ‘show
that he personally has suffered some actual or threatened
injury as a result of the putatively illegal conduct of the defen-
dant.’ ” Valley Forge Christian Coll. v. Ams. United for Sepa-
ration of Church & State, Inc., 454 U.S. 464, 472 (1982)
(quoting Gladstone, Realtors v. Vill. of Bellwood, 441 U.S.
91, 99 (1979)) (emphasis added). If the plaintiff is not the tar-
get of the challenged government action or inaction, “standing
is not precluded, but it is ordinarily ‘substantially more diffi-
cult’ to establish.” Lujan, 504 U.S. at 562 (quoting Allen v.
Wright, 468 U.S. 737, 758 (1984)).

[2] The government has established Article III standing.
This case presents a situation in which the plaintiff—the
government—is the sole target of the challenged governmen-
tal action. The ordinances expressly forbid agents or employ-
ees of the United States from “recruit[ing], initiat[ing] contact
with for the purpose of recruiting, or promot[ing] the future
enlistment of any person under the age of eighteen into any
branch of the United States Armed Forces.” The ordinances,
which are enforced by civil penalties, proscribe some activity
encouraged by federal law. See, e.g., 10 U.S.C. § 503(a)(1)
(requiring the military to conduct “intensive recruiting cam-
20264 UNITED STATES v. CITY OF ARCATA
paigns to obtain enlistments”); 10 U.S.C. § 505(a) (permitting
seventeen-year-olds to enlist in the military).

[3] It is also undisputed that the cities would enforce the
ordinances if they are upheld. The cities conceded in their
respective answers that each “intends to enforce its ordinance
against all those who violate the ordinance, including but not
limited to agents of the federal government.” In other words,
the ordinances require federal recruiters to alter their conduct
or face civil penalties. Cf. Pub. Utils. Comm’n v. United
States, 355 U.S. 534, 538-39 (1958) (state commission
“plainly indicated an intent to enforce” state law regulating
rates for transport of federal property, and thus controversy as
to whether federal government must comply with statute was
“present and concrete”). The cities’ adoption and threatened
enforcement of the ordinances thus subject the government to
an imminent adverse impact. The requirements of Article III
are met.

2. Misuse of the Declaratory Judgment Act

The cities also argue that the government is misusing the
Declaratory Judgment Act to manufacture a federal claim.
Framing the government’s lawsuit as a “federal preemption
defense to a state cause of action,” the cities argue that the
government has sought to establish the validity of a federal
defense without presenting a federal claim, in violation of the
well-pleaded complaint rule.

[4] “[F]ederal jurisdiction exists only when a federal ques-
tion is presented on the face of a properly pleaded complaint.”
JustMed, Inc. v. Byce, 600 F.3d 1118, 1124 (9th Cir. 2010)
(internal quotation marks omitted). The mere existence of a
federal defense to a state law claim is insufficient to create
federal jurisdiction over a case. Louisville & Nat’l R.R. v.
Mottley, 211 U.S. 149, 152 (1908).

[5] The well-pleaded complaint rule, however, poses no
bar to federal jurisdiction in this case. Congress has, by stat-
 UNITED STATES v. CITY OF ARCATA 20265
ute, provided the district courts with original jurisdiction over
“all civil actions, suits or proceedings commenced by the
United States.” 28 U.S.C. § 1345; see also United States v.
Morros, 268 F.3d 695, 702-03 (9th Cir. 2001) (“[T]he United
States was the plaintiff in the case. Therefore, regardless of
the outcome of federal question jurisdiction, the district court
has independent subject matter jurisdiction under 28 U.S.C.
§ 1345.” (emphasis added)). In this case, the government
brought suit and invoked § 1345 in its complaint.

[6] The district court also had federal question jurisdiction
over the case pursuant to 28 U.S.C. § 1331, which provides
the district courts with “original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the
United States.” The government’s complaint posed a federal
question in its own right because it sought invalidation of the
ordinances under federal law. See Shaw v. Delta Air Lines,
Inc., 463 U.S. 85, 96 n.14 (1983).

For these reasons, we reject the cities’ belated contention
that federal courts lack subject matter jurisdiction over this
case.

B. The Supremacy Clause

Turning to the merits, the district court held that the ordi-
nances violate the doctrine of intergovernmental immunity,
for two reasons. First, the court determined that the ordi-
nances impermissibly seek to regulate the federal government
directly. Second, the court found that the ordinances imper-
missibly discriminate against the federal government. We
review these conclusions de novo to determine whether, “tak-
ing all the allegations in the pleadings as true, the moving
party is entitled to judgment as a matter of law.” Rose v.
Chase Bank USA, N.A., 513 F.3d 1032, 1036 (9th Cir. 2008)
(internal quotation marks omitted).

[7] The doctrine of intergovernmental immunity arose
from the Supreme Court’s decision in McCulloch v. Mary-
20266 UNITED STATES v. CITY OF ARCATA
land, 17 U.S. (4 Wheat.) 316 (1819), which established that
“the states have no power, by taxation or otherwise, to retard,
impede, burden, or in any manner control, the operations of
the constitutional laws enacted by congress to carry into exe-
cution the powers vested in the general government.” Id. at
436. Courts take “a functional approach to claims of govern-
mental immunity, accommodating of the full range of each
sovereign’s legislative authority.” North Dakota v. United
States, 495 U.S. 423, 435 (1990). A state or local law is
invalid “only if it regulates the United States directly or dis-
criminates against the Federal Government or those with
whom it deals.” Id.

[8] The district court correctly held that the ordinances vio-
late intergovernmental immunity in both respects. First, the
ordinances seek to directly regulate the conduct of agents of
the federal government. As noted above, the ordinances—by
their express terms—prohibit military recruiters from recruit-
ing or attempting to recruit individuals under the age of eigh-
teen. By constraining the conduct of federal agents and
employees, the ordinances seek to regulate the government
directly. See Tennessee v. Davis, 100 U.S. 257, 263 (1879)
(noting that the federal government “can act only through its
officers and agents”).

We have relied on intergovernmental immunity in refusing
to enforce state statutes against the federal government under
circumstances far more ambiguous than those present here.
For example, in Blackburn v. United States, 100 F.3d 1426
(9th Cir. 1996), we declined to subject the federal government
to a California statute imposing safety requirements on
resorts. Id. at 1435. Though the state statute did not target the
federal government alone, we nevertheless concluded that
“[a]pplication of the [statute] in the present case would violate
the Supremacy Clause by constituting a direct and intrusive
regulation by the State of the Federal Government’s operation
of its property at Yosemite.” Id. Here, the ordinances do not
 UNITED STATES v. CITY OF ARCATA 20267
merely regulate the federal government incidentally; rather,
they are expressly intended to do so.

[9] For the same reason, the ordinances also discriminate
against the United States. “The nondiscrimination rule finds
its reason in the principle that the States may not directly
obstruct the activities of the Federal Government.” North
Dakota, 495 U.S. at 437-38. The ordinances at issue do not
affect the federal government incidentally as the consequence
of a broad, neutrally applicable rule. Rather, they specifically
target and restrict the conduct of military recruiters. At the
same time, the ordinances state that they do not “prevent indi-
viduals who are not employed by or agents of the U.S. gov-
ernment from encouraging people under the age of eighteen
to join the military.” A state or local law discriminates against
the federal government if “it treats someone else better than
it treats” the government. Id. at 438. The cities’ differential
treatment of identical conduct based on the actor’s status as
a federal agent or employee fits squarely within this frame-
work.

[10] The cities argue that the ordinances merely prohibit
conduct “already forbidden” by federal law, including the
Optional Protocol to the Convention on the Rights of the
Child on the Involvement of Children in Armed Conflict. But
the cities offer no authority to support such an exception to
the doctrine of intergovernmental immunity. A state or local
law that directly regulates the conduct of the federal govern-
ment or discriminates against it is invalid, even if it is no
more restrictive than federal law. In any event, the ordinances
here would not fit within any such exception, as they impose
greater restrictions on military recruitment than does federal
law.

The cities also raise the Tenth Amendment as a defense,
arguing that the ordinances represent a valid exercise of the
cities’ general police powers. The Tenth Amendment provides
that “[t]he powers not delegated to the United States by the
20268 UNITED STATES v. CITY OF ARCATA
Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people.” U.S. Const. amend.
X. But regulating the federal government’s military recruit-
ment efforts is not a power reserved to the states. The Consti-
tution expressly provides Congress with the power to “raise
and support Armies” and to “make Rules for the Government
and Regulation of the land and naval Forces.” U.S. Const. art.
I, § 8, cls. 12, 14. And the Supreme Court has made clear that
the federal government “can determine, without question from
any State authority, how the armies shall be raised.” Perpich
v. Dep’t of Def., 496 U.S. 334, 353 n.27 (1990) (quoting Tar-
ble’s Case, 80 U.S. (13 Wall.) 397, 408 (1872)); see also New
York v. United States, 505 U.S. 144, 156 1992) (“If a power
is delegated to Congress in the Constitution, the Tenth
Amendment expressly disclaims any reservation of that power
to the States . . . .”).

Finally, the cities asserted in their brief opposing the gov-
ernment’s motion for judgment on the pleadings that they will
enforce the ordinances only to the extent they are consistent
with federal law. As already explained, this does not cure the
ordinances’ infirmity because there is no exception to the doc-
trine of intergovernmental immunity for state statutes consis-
tent with federal law. And regardless, the cities’ promise of
self-restraint does not affect our consideration of the ordi-
nances’ validity. Cf. Powell’s Books, Inc. v. Kroger, 622 F.3d
1202, 1215 (9th Cir. 2010) (permanently enjoining enforce-
ment of state statutes under the First Amendment and reject-
ing a similar argument: “We may not uphold the statutes
merely because the state promises to treat them as properly
limited.”).

Because we conclude that the ordinances are unconstitu-
tional under the doctrine of intergovernmental immunity, we
need not address the government’s arguments that Congress
has preempted them. We also decline to consider the non-
jurisdictional arguments in the cities’ reply brief concerning
injunctive relief, severability and free speech, because the cit-
 UNITED STATES v. CITY OF ARCATA 20269
ies failed to present them clearly in their opening brief. See
Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n
appeal, arguments not raised by a party in its opening brief are
deemed waived.”).

III. Conclusion

For the foregoing reasons, the judgment of the district court
is AFFIRMED.