FILED
NOT FOR PUBLICATION
MAR 13 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL LEVIN; MARIA LEVIN; No. 14-17283
PARKLANE ASSOCIATES, L.P.; SAN
FRANCISCO APARTMENT DC No. CV 14-03352 CRB
ASSOCIATION; COALITION FOR
BETTER HOUSING,
MEMORANDUM*
Plaintiffs-Appellees,
DAVID GREENE,
Intervenor,
v.
CITY AND COUNTY OF SAN
FRANCISCO,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted February 14, 2017
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: SILER,** TASHIMA, and HURWITZ, Circuit Judges.
The City and County of San Francisco (the “City”) appeals from the district
court’s judgment enjoining the enforcement of a City ordinance. While this appeal
was pending, the City amended the ordinance to address the district court’s
concerns. Because those amendments “sufficiently altered [the ordinance] so as to
present a substantially different controversy from the one the District Court
originally decided,” the appeal is now moot. See Ne. Fla. Chapter of the Assoc.
Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662 n.3 (1993)
(internal quotation marks omitted).
The City argues that, if the appeal is moot, we should order the district court
to vacate its judgment. The general rule is to allow the lower court’s judgment to
stand “when the appellant rendered the appeal moot by his own act.” Blair v.
Shanahan, 38 F.3d 1514, 1520 (9th Cir. 1994). An exception may apply, however,
if the appellant is a governmental entity. See Chem. Producers & Distribs. v.
Helliker, 463 F.3d 871, 879 (9th Cir. 2006). Chemical Producers left open the
question of whether “lesser public bodies,” like the City, are entitled to the benefit
of that exception. Id. at 880. Rather than decide the issue in the first instance, we
**
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
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will remand to the district court to consider whether its judgment should be vacated
in light of the adoption of the new ordinance.
Accordingly, we DISMISS the appeal as moot, and REMAND with
instructions to consider whether the judgment should be vacated. See Blair, 38
F.3d at 1516.
3