NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 26 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALAN BARCELONA, No. 16-15375
Plaintiff-Appellant, D.C. No.
2:14-cv-02389-TLN-KJN
v.
STATE OF CALIFORNIA DEPARTMENT MEMORANDUM*
OF JUSTICE; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Argued and Submitted September 15, 2017
San Francisco, California
Before: SCHROEDER and FRIEDLAND, Circuit Judges, and WHALEY,**
District Judge.
Appellant Alan Barcelona, a peace officer employed by the California
Department of Justice (“DOJ”), was the subject of an internal DOJ investigation
that ultimately ended without adverse consequences. Barcelona alleges that DOJ’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
actions during the investigation violated his rights under the First Amendment and
the California Public Safety Officers Procedural Bill of Rights Act (“POBR”).
With respect to the First Amendment, Barcelona seeks injunctive relief—but not
damages—under 42 U.S.C. § 1983, and attorney’s fees under 42 U.S.C. § 1988.
With respect to the POBR, he seeks injunctive and declaratory relief as well as
damages. The district court granted DOJ’s motion for summary judgment on the
merits of both the federal and state law claims.
As an initial matter, Barcelona lacks standing to assert a claim for equitable
relief under either the First Amendment or the POBR. Barcelona cannot properly
challenge DOJ’s investigation policies “where there is no showing of any real or
immediate threat that [he] will be wronged” by such policies again. City of Los
Angeles v. Lyons, 461 U.S. 95, 111 (1983). While Barcelona seeks broad equitable
relief requiring DOJ to change its practices, he has presented no evidence that he is
frequently the subject of investigation or that he is likely to be the subject of
investigation again in the future. He has thus failed to “show an actual or
imminent injury to a legally protected interest.” Lopez v. Candaele, 630 F.3d 775,
785 (9th Cir. 2010). Accordingly, we vacate the district court’s denial on the
merits of Barcelona’s requests for injunctive and declaratory relief, and remand
with instructions to dismiss the equitable relief claims without prejudice for lack of
standing.
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Because Barcelona also seeks damages under the POBR, there was and still
is jurisdiction over this claim. Barcelona contends that DOJ violated the POBR
when it prohibited a designated witness from representing him during his
interrogation. Specifically, California Government Code § 3303(i) provides that a
public safety officer has the right to a representative of his or her choice during an
interrogation, but that “representative shall not be a person subject to the same
investigation.” DOJ argues that this includes witnesses to an investigation;
Barcelona disagrees.
When evaluating an issue of California law, “this court ‘predict[s] how the
highest [California] court would decide the issue.’” Garcia v. PacifiCare of Cal.,
Inc., 750 F.3d 1113, 1116 (9th Cir. 2014) (quoting Credit Suisse First Boston
Corp. v. Grunwald, 400 F.3d 1119, 1126 (9th Cir. 2005)) (alterations in original).
Following the California Supreme Court’s decision in Pasadena Police Officers
Ass’n v. City of Pasadena, 797 P.2d 608, 616 (Cal. 1990), the district court
properly concluded that the statute precludes a witness to an investigation from
serving as a representative in that same investigation. Accordingly, DOJ did not
violate the POBR.
For the reasons discussed above, we (1) VACATE the district court’s denial
of Barcelona’s claims for injunctive and declaratory relief and REMAND with
instructions to dismiss without prejudice for lack of standing; and (2) AFFIRM the
3
district court’s grant of summary judgment in favor of DOJ on Barcelona’s claim
for damages under the POBR.
4