Barry Rosen v. United States Government

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 3, 2020
• Docket: 18-56059
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 3 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BARRY ROSEN, No. 18-56059

Plaintiff-Appellant, D.C. No. 2:17-cv-07727-PSG-JEM v.

UNITED STATES GOVERNMENT; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Philip S. Gutierrez, District Judge, Presiding

Submitted December 13, 2019** Pasadena, California

Before: BOGGS,*** WARDLAW, and BEA, Circuit Judges.

Barry Rosen appeals the district court’s dismissal of this action for lack of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. standing. Rosen is a pilot, a pro se plaintiff,1 and a serial litigant who is asking that

the federal courts invalidate a consent decree entered in a different case between

the City of Santa Monica and the United States Government concerning the Santa

Monica Airport (“SMO”). SMO was transferred to the federal government during

World War II, then back to the City under the Surplus Property Act, with

conditions that may or may not still be valid regarding its continuing use as an

airport. Since the beginning of the jet age, the City has been seeking to close the

airport, which has resulted in multiple lawsuits and settlements between the City

and the federal government. The most recent of these ended in a 2017 consent

decree, under which the City may shorten the runway immediately and must keep

the airport open until 2028, but is free thereafter to close it. The case leading to the

consent decree has drawn proper intervenors (whose claims have been rejected)

and collateral challenges (thus far also unsuccessful, though litigation continues).

Rosen did not move to intervene in that litigation. Rather, in a separate series

of complaints (four so far, with a pending request to reverse the district court’s

denial of leave to file a fifth), Rosen asked the district court to void not only the

consent decree but also an expired 1984 agreement between the same parties and to

require the federal government to take over the airport or bring in a third party to

1 Rosen filed his Opening Brief in this case pro se, but has counsel listed on his Reply Brief.

2 administer it. The district court held that Rosen did not have standing on several

grounds, granted defendants’ Rule 12(b)(1) motion to dismiss for lack of subject-

matter jurisdiction, and also concluded that Rosen’s motion for partial summary

judgment was moot. Rosen now appeals, and we affirm.2

1. Rosen lacks standing. To begin with, he cannot satisfy the requirement of

redressability. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); M.S.

v. Brown, 902 F.3d 1076, 1083 (9th Cir. 2018). Were we to void the consent

decree, the City and federal government would be back to the status quo ante,

under which the government at most has the option to take over the airport, while

the City would be litigating to close it immediately. “To establish redressability, a

plaintiff must show that it is ‘likely, as opposed to merely speculative, that the

injury will be redressed by a favorable decision.’” M.S., 902 F.3d at 1083, quoting

Lujan, 504 U.S. at 561. This case does not clear that bar. Moreover, Rosen’s

complaint about the 1984 agreement between the federal government and the City

is not redressable, as that agreement expired in 2015. See Caldwell v. Caldwell,

545 F.3d 1126, 1130 (9th Cir. 2008).

When it comes to his challenges to the current litigation and consent decree,

Rosen confuses practical redressability with legal redressability, arguing that

recent construction shortening the runway pursuant to the consent decree is

2 We deny Rosen’s motion for summary disposition as moot.

3 reversible. But the issue is not whether the actions he proposes can physically be

taken. Rather, the question is the legal rights of the City and federal government.

Even if the district court did what Rosen proposes—voiding the 2017 consent

decree—the parties would have many options to act in ways that would not redress

Rosen’s grievances.

Finally, while Rosen urges the court to mandate enforcement of a wide

variety of statutes and regulations, which the federal government has allegedly

neglected with respect to Santa Monica and SMO, it is an elementary point of law

that individual enforcement decisions are discretionary and non-reviewable. See,

e.g., Friends of Cowlitz v. FERC, 253 F.3d 1161, 1170 (9th Cir. 2001), amended in

non-relevant part, 282 F.3d 609. Thus, these claims also are fatally flawed for

want of redressability.

2. Nor does Rosen assert sufficiently imminent injury, with respect to many

of his claims, to have standing. “A plaintiff has sustained an injury in fact only if

[he] can establish “an invasion of a legally protected interest which is . . . actual or

imminent, not conjectural or hypothetical.” Civil Rights Educ. & Enf't Ctr. v. Hosp.

Properties Tr., 867 F.3d 1093, 1098 (9th Cir. 2017) (quoting Lujan, 504 U.S. at

560. Most of the harms Rosen complains about would not happen, if at all, until

after 2028. “[A] claim is not ripe for adjudication if it rests upon contingent future

4 events that may not occur as anticipated, or indeed may not occur at all.” Texas v.

United States, 523 U.S. 296, 300 (1998) (cleaned up).

3. Furthermore, Rosen has not made out an injury-in-fact. Thus far, his most

specific and plausible allegation—contained in the proposed Fourth Amended

Complaint, which he was never given leave to file—is that the shortening of the

runway that was allowed immediately under the consent decree has caused him to

have to perform go-arounds as well as to rent hangar space elsewhere during

construction. Even in this unfiled complaint, Rosen does not provide sufficient

factual details to make these more than conclusory statements that do not suffice to

provide standing. Cf. Ashcroft v. Iqbal, 556 U.S. 662, 682–83 (2009). Rosen’s

previous complaints offered even less in the way of plausible detail. And even if

Rosen in theory could provide more detail, the district court was within its

discretion in denying him leave to amend a fifth time. See Chodos v. West Publ’g

Co., 292 F.3d 992, 1003 (9th Cir. 2002). His other allegations of injury-in-fact fail

as being insufficiently concrete and particularized. See Lujan, 504 U.S. at 560.

4. Rosen’s attempts to bring the case under the private-attorney-general

doctrine fail because even if there were statutory authority to bring such claims—

which there is not—he still would have to show Article III standing in his own

right, which he cannot. See Gee v. American Nat. Ins. Co., 260 F.3d 997, 1001–02

(9th Cir. 2001).

5 5. As standing is a threshold requirement, and as Rosen lacks it, we do not

consider his other grounds for appeal.

AFFIRMED.