FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIM CARRICO,
Plaintiff,
and
SMALL PROPERTY OWNERS OF SAN No. 09-17151
FRANCISCO INSTITUTE; MARY D.C. No.
FIGONE, 3:09-CV-00605-
Plaintiffs-Appellants, WHA
v. OPINION
CITY AND COUNTY OF SAN
FRANCISCO,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
William H. Alsup, District Judge, Presiding
Argued and Submitted
April 15, 2011—San Francisco, California
Filed September 6, 2011
Before: John T. Noonan and N. Randy Smith,
Circuit Judges, and Frederic Block, District Judge.*
Opinion by Judge Block
*The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
16911
16914 CARRICO v. CITY AND COUNTY OF SAN FRANCISCO
COUNSEL
Andrew M. Zacks and Paul F. Utrecht (argued), Zacks &
Utrecht, P.C., San Francisco, California, for the plaintiffs-
appellants.
Tara M. Steeley, Deputy City Attorney, San Francisco, Cali-
fornia, for the defendant-appellee.
OPINION
BLOCK, District Judge:
The Small Property Owners of San Francisco Institute
(“SPOSFI”) and Mary Figone appeal the district court’s judg-
ment rejecting their facial First Amendment and vagueness
challenges to portions of “Proposition M,” a popularly
enacted amendment to the rent-stabilization ordinance of the
City and County of San Francisco (“the City”). Because we
conclude that both SPOSFI and Figone lack standing, we can-
not reach the merits of their challenges. Instead, we vacate the
district court’s judgment and remand with instructions to dis-
miss the complaint for lack of subject-matter jurisdiction.
I
San Francisco voters approved Proposition M in November
2008. As pertinent here, the proposition amended the City’s
rent-stabilization ordinance to prohibit residential landlords
and their agents from attempting, “in bad faith,” to “coerce
the tenant to vacate with offers of payments to vacate which
are accompanied with threats or intimidation.” S.F. Admin.
Code § 37.10B(a)(6).1
1
In a state-court challenge, the California Court of Appeal, First Dis-
trict, invalidated other parts of Proposition M, including a companion pro-
CARRICO v. CITY AND COUNTY OF SAN FRANCISCO 16915
SPOSFI is a nonprofit association of approximately 1,500
residential landlords in San Francisco. In February 2009, it
filed suit in the district court, seeking declaratory relief and a
permanent injunction barring enforcement of parts of Proposi-
tion M. The association was joined by Tim Carrico, an indi-
vidual landlord who is not a party to this appeal. Figone,
another individual landlord, joined the suit in May of that
year.
As set forth in their amended complaint, the plaintiffs
raised three federal constitutional challenges. First, they
alleged that § 37.10B(a)(6) violated the Free Speech and Peti-
tion Clauses of the First Amendment, made applicable to the
City by the Fourteenth Amendment. Second, they alleged that
§ 37.10B(a)(6) failed to provide adequate notice of prohibited
conduct in violation of the Due Process Clause of the Four-
teenth Amendment. Third, they argued that deficiencies in the
presentation of Proposition M on the ballot violated substan-
tive due process. They also raised several state-law chal-
lenges. Rather than claiming that the proposition was invalid
only as applied to them, the plaintiffs argued that it was
invalid on its face.
The City moved to dismiss the substantive due process
challenge pursuant to Federal Rule of Civil Procedure
12(b)(6). The district court agreed and dismissed that claim
with prejudice. That ruling has not been appealed.
At the same time, the district court issued an order to show
cause why the remaining federal claims—that is, the First
Amendment and vagueness challenges—should not be dis-
vision prohibiting “[c]ontinu[ing] to offer payments to vacate after tenant
has notified the landlord in writing that they no longer wish to receive fur-
ther offers of payments to vacate.” See Larson v. City & County of S.F.,
192 Cal. App. 4th 1263, 1291-96 (2011) (quoting S.F. Admin. Code
§ 37.10B(a)(7)). Since the City concedes that it is bound by Larson, we
omit any further discussion of that provision.
16916 CARRICO v. CITY AND COUNTY OF SAN FRANCISCO
missed as “moot or insubstantial.” After hearing argument
and considering the parties’ written responses to the show-
cause order, the district court issued a twelve-page order dis-
missing the remaining federal claims.
The district court concluded that § 37.10B(a)(6) implicated
only commercial speech, but not just commercial speech that
was misleading or connected to unlawful activity. Accord-
ingly, it applied the test announced in Central Hudson Gas &
Electric Corp. v. Public Service Commission, 447 U.S. 557
(1980), and concluded that the City had carried its burden of
showing that it “has a substantial interest in regulating the
proscribed behavior and that the ordinance materially
advances that goal in a narrowly tailored fashion.”
Turning to the vagueness challenge, the district court held
that bad faith “enjoys such common usage as to overcome any
vagueness concerns,” and that the other challenged terms
threats, intimidation and offers of payment—“have meanings
that a person of ordinary intelligence would understand.”
Finally, the court held that plaintiffs could not make out a
facial challenge to Proposition M as an unconstitutional bur-
den on their right to petition because § 37.10(a)(6) could be
applied in many cases that did not implicate that right.
Having dismissed all of the federal claims, the district court
declined to exercise supplemental jurisdiction, which is dis-
cretionary, over the state-law challenges. This appeal fol-
lowed.
Although the City did not challenge appellants’ standing
either in the district court or before us, we raised the issue
nostra sponte at oral argument. See Stormans, Inc. v. Selecky,
586 F.3d 1109, 1119 (9th Cir. 2009) (“Questions of standing
may be raised and considered for the first time on appeal,
including sua sponte.”). At our invitation, both sides filed sup-
plemental briefs addressing (1) whether the amended com-
CARRICO v. CITY AND COUNTY OF SAN FRANCISCO 16917
plaint adequately alleged standing, and if not, (2) whether we
should grant appellants leave to amend to cure any deficiency.
II
[1] To establish “the irreducible constitutional minimum of
standing,” a plaintiff invoking federal jurisdiction must estab-
lish “injury in fact, causation, and a likelihood that a favorable
decision will redress the plaintiff’s alleged injury.” Lopez v.
Candaele, 630 F.3d 775, 785 (9th Cir. 2010) (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). An
injury in fact is “an invasion of a legally protected interest
which is (a) concrete and particularized, and (b) actual or
imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at
560 (internal citations and quotations omitted). An association
like SPOSFI may maintain an action in the absence of an
injury to itself, but only if it can show that “at least one of its
members would have standing to sue in his own right.” Fleck
& Assocs. v. City of Phoenix, 471 F.3d 1100, 1105 (9th Cir.
2006).2
Plaintiffs in First Amendment cases may satisfy the injury-
in-fact requirement without actually engaging in claimed pro-
tected speech. See Arizona Right to Life Political Action
Comm. v. Bayless, 320 F.3d 1002, 1006 (9th Cir. 2003). Such
“pre-enforcement plaintiffs” must, however, demonstrate “an
intention to engage in a course of conduct arguably affected
with a constitutional interest, but proscribed by a statute, and
. . . a credible threat of prosecution thereunder.” Babbitt v.
United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979).
By contrast, “[w]hen plaintiffs ‘do not claim that they have
2
“Associational standing” also requires a showing that “the interests the
suit seeks to vindicate are germane to the organization’s purpose,” and that
“neither the claim asserted nor the relief requested requires the participa-
tion of individual members in the lawsuit.” Fleck & Assocs., 471 F.3d at
1105-06. We assume, but do not hold, that SPOSFI could make that show-
ing.
16918 CARRICO v. CITY AND COUNTY OF SAN FRANCISCO
ever been threatened with prosecution, that a prosecution is
likely, or even that a prosecution is remotely possible,’ they
do not allege a dispute susceptible to resolution by a federal
court.” Id. at 298-99 (quoting Younger v. Harris, 401 U.S. 37,
42 (1971)).
The same rules apply to plaintiffs bringing facial challenges
and invoking the speech of others under the overbreadth doc-
trine. See Dream Palace v. County of Maricopa, 384 F.3d
990, 999 (9th Cir. 2004) (“[T]he overbreadth doctrine does
not affect the rigid constitutional requirement that plaintiffs
must demonstrate an injury in fact to invoke a federal court’s
jurisdiction.” (citation and internal quotation marks omitted));
Clark v. City of Lakewood, 259 F.3d 996, 1010 (9th Cir.
2001) (“Under the overbreadth doctrine, . . . prudential con-
siderations have weighed in favor of allowing litigants to
bring First Amendment challenges on behalf of those whose
expression might be impermissibly chilled, so long as the
plaintiff also suffers an injury in fact.” (emphasis added)).
They also apply to plaintiffs asserting vagueness challenges.
Cf. Hunt v. City of Los Angeles, 638 F.3d 703, 711 (9th Cir.
2011) (finding standing where allegedly vague ordinance was
actually enforced against plaintiff).
In concluding that particular “pre-enforcement plaintiffs”
have failed to establish standing, we have relied on “three
related inquiries”:
First, we have considered whether pre-enforcement
plaintiffs have failed to show a reasonable likelihood
that the government will enforce the challenged law
against them. Second, we have considered whether
the plaintiffs have failed to establish, with some
degree of concrete detail, that they intend to violate
the challenged law. We have also considered a third
factor, whether the challenged law is inapplicable to
the plaintiffs, either by its terms or as interpreted by
the government. Such inapplicability weighs against
CARRICO v. CITY AND COUNTY OF SAN FRANCISCO 16919
both the plaintiffs’ claims that they intend to violate
the law, and also their claims that the government
intends to enforce the law against them.
Lopez, 630 F.3d at 786.
A plaintiff must establish standing with the “manner and
degree of evidence required at the successive stages of the liti-
gation.” Lujan, 504 U.S. at 561. Since this case was dismissed
at the pleading stage, we base our analysis on the allegations
of the amended complaint, which we accept as true. See Bar-
num Timber Co. v. EPA, 633 F.3d 894, 905 n.3 (9th Cir.
2011).
III
[2] Appellants alleged, without further elaboration, that
“Proposition M was intended to, and does, impact their opera-
tions as landlords.” This conclusory allegation is insufficient
to establish standing. See Lopez, 630 F.3d at 787 (“Mere
‘[a]llegations of a subjective ‘chill’ are not an adequate sub-
stitute for a claim of specific present objective harm or a
threat of specific future harm.’ ” (quoting Laird v. Tatum, 408
U.S. 1, 13-14 (1972)).
[3] Appellants further alleged that they “are subject to the
legal and constitutional infirmities of the municipal ordi-
nance.” Citing Pennell v. City of San Jose, 485 U.S. 1 (1988),
they argue in their post-argument submissions that that allega-
tion alone is sufficient to confer standing. We disagree.
At issue in Pennell was an ordinance allowing city officials
to take into account “hardship to a tenant” in determining
whether a landlord’s proposed rent increase was reasonable.
See id. at 5. As in the present case, an individual landlord and
an association akin to SPOSFI sued to enjoin enforcement of
the ordinance. See id. at 6.
16920 CARRICO v. CITY AND COUNTY OF SAN FRANCISCO
[4] Contrary to appellants’ contention, the Supreme Court
did not find standing based solely on the allegation that the
plaintiffs were “subject to the terms of” the ordinance; it also
noted the association’s statement at oral argument that it rep-
resented “most of the residential unit owners in the city and
[had] many hardship tenants.” Id. at 7. While recognizing that
the record left “much to be desired in terms of specificity,”
the Court was at least able to infer a probability that the ordi-
nance would be enforced against members of the association
and the “concomitant probability” that, as a result of enforce-
ment, some of those members would be required to charge a
rent lower than they would have preferred. Id. at 8. Based on
those inferences, it held that the association had shown a “suf-
ficient threat” of an injury in fact.3
[5] Here, by contrast, there is no allegation on which to
base an inference that any of SPOSFI’s members intend to
engage in conduct even arguably proscribed by Proposition
M. As a matter of common sense, an allegation that a plaintiff
is “subject to” the challenged ordinance cannot suffice. The
plaintiff in Lopez, a college student, was undoubtedly “subject
to” his college’s antiharassment policy. We nevertheless held
that he could not establish even a threat of being punished for
violating the policy.
[6] As the Supreme Court observed in Pennell, “applica-
tion of the constitutional standing requirement [is not] a
mechanical exercise.” 485 U.S. at 7 (quoting Allen v. Wright,
468 U.S. 737, 751 (1984)) (alteration in original). In other
words, context matters. Being a landlord with “hardship ten-
ants” was enough to demonstrate a plausible injury in fact
flowing from the ordinance at issue in Pennell. But Proposi-
tion M does not apply based solely on the status of landlord
or tenant. Rather, it requires a landlord to do something—to
3
Having held that the association had standing, the Court did not
address whether the individual landlord did as well. See Pennell, 485 U.S.
at 8 n.4.
CARRICO v. CITY AND COUNTY OF SAN FRANCISCO 16921
attempt, through “threats or intimidation,” to “coerce the ten-
ant to vacate with offers of payments to vacate.” SPOSFI did
not make any allegations regarding speech or conduct that its
members would engage in that might violate Proposition M.
[7] This failing pervades the three inquiries identified in
Lopez. Without any description of intended speech or con-
duct, we cannot analyze what SPOSFI’s members would like
to do. We, therefore, cannot analyze whether what they would
like to do even arguably falls within the scope of Proposition
M. And, therefore, we cannot analyze whether they face a
credible threat of prosecution by the City. Indeed, without
more, we cannot even analyze whether what SPOSFI’s mem-
bers want to do is protected by the First Amendment in the
first place.
[8] In sum, SPOSFI has not demonstrated that its members
have “an intention to engage in a course of conduct arguably
affected with a constitutional interest,” that what they wish to
do is “proscribed by [Proposition M],” or that they face “a
credible threat of prosecution thereunder.” Babbitt, 442 U.S.
at 298. It therefore lacks standing.
Unlike SPOSFI, Figone at least alleged a concrete example
of Proposition M’s effect on her. She alleged that she became
embroiled in a dispute with a subtenant of a former tenant
who continued to claim a valid tenancy after the main tenant’s
lease expired. The subtenant sued, claiming that Figone’s
“communications regarding his status, threats to invoke legal
process to resolve the situation, her subsequent lawsuit itself,
and even her refusal to accept his rent pending resolution vio-
lated Proposition M.”
[9] Nevertheless, Figone’s allegations are insufficient for
two reasons. First, since she did not allege that she offered the
subtenant payment to vacate, she has not demonstrated that
her conduct is even “arguably . . . proscribed,” Babbitt, 442
U.S. at 298, by Proposition M. Second, and more fundamen-
16922 CARRICO v. CITY AND COUNTY OF SAN FRANCISCO
tally, this suit concerns the City’s ability to enforce Proposi-
tion M. That a private individual has invoked Proposition M
for his own ends does not remotely imply that the City
endorses a similarly expansive interpretation.4
[10] In sum, we hold that appellants’ allegations, as they
now stand, are insufficient to confer standing. We therefore
pass to the question of whether we should allow appellants
leave to amend them.
IV
A court should “freely give leave [to amend] when justice
so requires.” Fed. R. Civ. P. 15(a)(2). It is properly denied,
however, if amendment would be futile. See Gordon v. City
of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010).
[11] Appellants’ principal argument is that the allegations
of their amended complaint are sufficient to confer standing.
They seek leave to amend only as an afterthought. Moreover,
they do not, in their post-argument submissions, propose any
specific allegations that might rectify their failure to identify
any arguably prohibited speech or conduct in which they
would otherwise engage. We take that as a demonstration of
their inability (or, perhaps, unwillingness) to make the neces-
sary amendment. Accordingly, we deny leave to amend as
futile.
Instead, we
4
Figone’s allegations do not convert her facial challenge into an as-
applied one. Had she wished to remedy the effect of Proposition M on her
subtenant’s suit, she would have named him as a party and sought a
declaratory judgment and/or injunctive relief binding him. Instead, the
only entity bound by a judgment favorable to Figone in this case would
be the City. Thus, the relief Figone seeks would not remedy her claimed
injury.
CARRICO v. CITY AND COUNTY OF SAN FRANCISCO 16923
VACATE AND REMAND WITH INSTRUCTIONS TO
DISMISS FOR LACK OF JURISDICTION.