FILED
NOT FOR PUBLICATION
JUN 14 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DON HIGGINSON, No. 18-55455
Plaintiff-Appellant, D.C. No.
3:17-cv-02032-WQH-JLB
v.
XAVIER BECERRA, in his official MEMORANDUM*
capacity as Attorney General of California;
CITY OF POWAY,
Defendants-Appellees.
DON HIGGINSON, No. 18-55506
Plaintiff-Appellee, D.C. No.
3:17-cv-02032-WQH-JLB
v.
XAVIER BECERRA, in his official
capacity as Attorney General of California;
CITY OF POWAY,
Defendants,
v.
CALIFORNIA LEAGUE OF UNITED
LATIN AMERICAN CITIZENS;
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
JACQUELINE CONTRERAS; XAVIER
FLORES; JUDY KI; HIRAM SOTO,
Proposed Defendant-Intervenors,
Movants-Appellants.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted June 7, 2018
Portland, Oregon
Before: GRABER and M. SMITH, Circuit Judges, and HELLERSTEIN,** District
Judge.
Plaintiff Don Higginson timely appeals the district court’s dismissal of this
action for lack of subject matter jurisdiction. The district court ruled that Plaintiff
does not have standing to sue either the Attorney General of California, Xavier
Becerra, or the City of Poway ("the City") for allegedly violating his rights under
the Equal Protection Clause when the City adopted the by-district election scheme
of Map 133 to avoid litigation under the California Voting Rights Act ("CVRA").
Reviewing de novo, Arakaki v. Lingle, 477 F.3d 1048, 1056 (9th Cir. 2007), we
reverse and remand.
**
The Honorable Alvin K. Hellerstein, United States District Judge for
the Southern District of New York, sitting by designation.
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1. We reverse the dismissal of the City. Plaintiff has standing to sue the
City to challenge its adoption of Map 133. See Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000) (laying out the
requirements of Article III standing). Plaintiff has adequately alleged that he
resides in a racially gerrymandered district and that the City’s adoption of Map 133
reduced the number of candidates for whom he can vote. This alleged injury is
concrete and particularized, directly traceable to the City’s adoption of Map 133,
and potentially redressable by an injunction requiring the City to return to its
former system of at-large elections. Accordingly, Plaintiff can bring this as-
applied challenge to the City’s actions, including his argument that the City
violated his rights because the CVRA, with which the City sought to comply, is
unconstitutional under the Equal Protection Clause.
2. We also reverse the dismissal of the Attorney General. On remand, the
Attorney General will remain a defendant unless, at his request, the district court
redesignates him as an intervenor.
3. Our holdings above render Proposed Intervenors’ motion to participate in
the litigation not moot. We now grant that motion on the merits. See United States
v. Sprint Commc’ns, Inc., 855 F.3d 985, 995 (9th Cir. 2017) (concluding, first, that
the motion to intervene was not moot and then deciding the motion on the merits).
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We review de novo the district court’s decision regarding intervention as a matter
of right under Federal Rule of Civil Procedure 24(a)(2), and we construe that rule
liberally. Arakaki v. Cayetano, 324 F.3d 1078, 1082–83 (9th Cir. 2003). We
conclude that Proposed Intervenors meet all four requirements for intervention as
of right.
REVERSED and REMANDED for further proceedings consistent with
this disposition.
4