Brosnan v. Becerra et al

Filing 5

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 3/28/2018 GRANTING 2 Motion to Proceed IFP. RECOMMENDING that this 1 Complaint be DISMISSED with prejudice for lack of jurisdiction. Referred to Judge Morrison C. England, Jr. Objections due within 14 days after being served with these findings and recommendations.(Washington, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

JOHN BROSNAN,

12

Plaintiff,

13
14
15

No. 2:18-cv-00322 MCE AC (PS)

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

XAVIER BECERRA, in his official
capacity as Attorney General of California,
et al.,

16

Defendants.

17
18

Plaintiff is proceeding in this action pro se. This matter was accordingly referred to the

19

undersigned by E.D. Cal. 302(c)(21). Plaintiff has filed a request for leave to proceed in forma

20

pauperis (“IFP”) pursuant to 28 U.S.C. § 1915, and has submitted the affidavit required by that

21

statute. See 28 U.S.C. § 1915(a)(1). ECF No. 2. The motion to proceed IFP will therefore be

22

GRANTED, and the complaint will be screened pursuant to 28 U.S.C. § 1915(e)(2).

23
24

I.

Screening Standards
The federal IFP statute requires federal courts to dismiss a case if the action is legally

25

“frivolous or malicious,” fails to state a claim upon which relief may be granted, or seeks

26

monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). A

27

claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v.

28

Williams, 490 U.S. 319, 325 (1989). In reviewing a complaint under this standard, the court will
1

1

(1) accept as true all of the factual allegations contained in the complaint, unless they are clearly

2

baseless or fanciful, (2) construe those allegations in the light most favorable to the plaintiff, and

3

(3) resolve all doubts in the plaintiff’s favor. See Neitzke, 490 U.S. at 327; Von Saher v. Norton

4

Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010), cert. denied, 564 U.S.

5

1037 (2011).

6

The court applies the same rules of construction in determining whether the complaint

7

states a claim on which relief can be granted. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (court

8

must accept the allegations as true). Pro se pleadings are held to a less stringent standard than

9

those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the court need

10

not accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of

11

fact. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). A formulaic recitation

12

of the elements of a cause of action does not suffice to state a claim. Bell Atlantic Corp. v.

13

Twombly, 550 U.S. 544, 555-57 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

14

To state a claim on which relief may be granted, the plaintiff must allege enough facts “to

15

state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim has

16

facial plausibility when the plaintiff pleads factual content that allows the court to draw the

17

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at

18

678. A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity

19

to amend, unless the complaint’s deficiencies could not be cured by amendment. See Noll v.

20

Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on other grounds by statute as stated in

21

Lopez v. Smith, 203 F.3d 1122 (9th Cir. 2000)) (en banc).

22

II.

23

The Allegations Of The Complaint
Plaintiff is a private employer who owns and operates a business called “NAMAC” in the

24

State of California. ECF No. 1 at 6, ¶ 36. One of NAMAC’s core businesses involves the retail

25

food sector. Id. at ¶ 39. Plaintiff asserts that the retail food sector employs a high percentage of

26

“illegal aliens.” Id. Plaintiff asserts that federal immigration agents target businesses “with a

27

high percentage of illegal aliens.” Id. at ¶ 38.

28

////
2

1

Plaintiff brings suit to challenge the constitutionality of California’s Immigrant Worker

2

Protection Act (“IWPA”), which prohibits California employers from allowing federal

3

immigration enforcement agents to enter any nonpublic areas of a workplace without a judicial

4

warrant. Plaintiff claims that the IWPA violates the Supremacy Clause of the United States

5

Constitution (Article VI, Clause 2). ECF No. 1 at 8, ¶¶ 47-50. Specifically, plaintiff alleges that

6

“[i]n the face of daunting federal law and the penalties attached for violating federal law, Becerra,

7

has stated that he will prosecute Plaintiff for violating the IWPA, while at the same time refusing

8

to provide protection for Plaintiff if Plaintiff, while attempting to comply with the IWPA runs

9

afoul of a federal law.” Id. at ¶ 60. Plaintiff asserts a cause of action for personal injury because

10

“[d]ue to the IWPA, Plaintiff, out of an abundance of caution to avoid violating federal law, has

11

stopped NAMAC.” Id. at 10, ¶ 64.

12
13

III.

Article III Standing Requirements
“[F]ederal courts are required sua sponte to examine jurisdictional issues such as

14

standing.” B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1264 (9th Cir. 1999). To have

15

standing, a plaintiff must plead and prove that he has suffered sufficient injury to satisfy the “case

16

or controversy” requirement of Article III of the United States Constitution. See Valley Forge

17

Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464,

18

471 (1982); Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013). The case or controversy

19

requirement ensures that federal courts do not decide questions that cannot affect the rights of

20

litigants in the case before them, or give opinions advising what the law would be upon a

21

hypothetical state of facts. Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990).

22

Accordingly, the standing doctrine “requires federal courts to satisfy themselves that the plaintiff

23

has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of

24

federal-court jurisdiction,” so that “there is a real need to exercise the power of judicial review in

25

order to protect the interests of the complaining party.” Summers v. Earth Island Inst., 555 U.S.

26

488, 493 (2009) (emphasis in original) (internal quotation marks and citations omitted).

27

To demonstrate Article III standing, a plaintiff must allege: (1) injury-in-fact that is

28

concrete and particularized, as well as actual or imminent; (2) that the injury is fairly traceable to
3

1

the challenged action of the defendant; and (3) that the injury is redressable by a favorable ruling.

2

Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010) (citation omitted); Lujan v.

3

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). “The party invoking federal jurisdiction

4

bears the burden of establishing these elements ... with the manner and degree of evidence

5

required at the successive stages of the litigation.” Lujan, 504 U.S. at 561 (citations omitted).

6

While threatened future harm can in some instances confer standing, the injury must be “certainly

7

impending” to constitute injury-in-fact; allegations of possible future injury are not sufficient.

8

Whitmore v. Arkansas, 495 U.S. 149, 158 (1990); see also Clapper, 568 U.S. at 409 (“[A]n injury

9

must be concrete, particularized, and actual or imminent.”) (citation and internal quotation marks

10

omitted). Accordingly, speculative injury is insufficient. Lujan, 504 U.S. at 565 n.2 (“Although

11

imminence is concededly a somewhat elastic concept, it cannot be stretched beyond its purpose,

12

which is to ensure that the alleged injury is not too speculative for Article III purposes – that the

13

injury is certainly impending.”) (internal quotation marks omitted).

14

IV.

Plaintiff Lacks Standing To Challenge The Constitutionality of the IWPA

15

Plaintiff has standing to challenge the IWPA only if he has suffered an injury-in-fact from

16

application of the law to him, or is faced with certainly impending harm from enforcement of the

17

statute. As noted above, the complaint reflects plaintiff’s belief that continuing to conduct

18

business as NAMAC would subject him to prosecution.

19

This belief is based on speculation. The complaint alleges in pertinent part:

20

If plaintiff were to comply with Plaintiff’s understanding of the
IWPA and ICE agents were to arrest and charge plaintiff with
federal crimes, the State of California would sit idly by and do
nothing to prevent Plaintiff’s life, business, livelihood and liberty
from being irreparable harmed or destroyed.

21
22
23
24
25
26
27
28

If Plaintiff complies with ICE or other federal agents in their
normal course of business in the State of California, Becerra has
clearly indicated a threat of prosecution against Plaintiff by and
through Becerra’s public decree. . . .
If an illegal alien were in a nonpublic area and Plaintiff prevented
federal agents from entering said area, Plaintiff could be charged
with any number of federal violations for violation of 18 U.S. Code
§ 4.
ECF No. 1 at 7-8, ¶¶ 44, 45, 48.
4

1

Plaintiff’s use of the conditional form in the above-quoted allegations reflects the

2

speculative nature of the threatened harm. Even accepting as true plaintiff’s allegation that the

3

California Office of the Attorney General represented to him that it would provide no legal

4

assistance were he to be arrested by ICE agents for complying with the IWPA, id. at ¶ 43, there

5

are no facts supporting a conclusion that plaintiff actually faced imminent ICE raids and a

6

Hobson’s choice between violating the IWPA or refusing the lawful demands of federal officials.

7

Accordingly, the complaint alleges no more than a “speculative chain of possibilities,” Clapper,

8

568 U.S. at 414, which is inadequate to support standing.

9

Plaintiff’s allegations of harm from application of the IWPA are even more speculative

10

than those found insufficient to support standing in Clapper. In that case, the Supreme Court

11

found that Amnesty International and other organizations lacked standing to challenge

12

amendments to the Foreign Intelligence Surveillance Act (“FISA”) that authorize the interception

13

of certain communications between domestic and foreign entities. The Court of Appeals for the

14

Second Circuit had found standing on grounds including an objectively reasonable likelihood that

15

plaintiffs’ communications would be intercepted under the statute. Clapper, 568 U.S. at 407.

16

Plaintiffs had specifically alleged that they communicate with individuals and organizations

17

believed by the government to be associated with terrorism, those who live in areas that are a

18

special focus of counter-terrorism efforts, and those who oppose governments supported by the

19

United States, all of which brought them directly within the scope of the FISA amendments. Id.

20

at 406. The Supreme Court reversed, holding first that the “objectively reasonable likelihood” of

21

harm standard is inconsistent with the requirement that threatened harm must be “certainly

22

impending” to constitute injury-in-fact, and second that plaintiff’s showing of future harm was

23

too speculative. Id. at 410.

24

Among other things, the Court found Amnesty International’s standing theory to be

25

defective because it rested “on speculation about the decisions of independent actors” –

26

specifically multiple law enforcement entities and the FISA court, all of whom are involved in

27

implementing the challenged amendments. Id. at 414. Plaintiff’s asserted threat of harm in the

28

case at bar is similarly inadequate to establish injury-in-fact, because it rests on speculation about
5

1

the future decisions and actions of independent entities including ICE and both federal and state

2

prosecutors. And even if the complaint before the court contained allegations sufficient to

3

establish a reasonable likelihood that plaintiff’s business would be the subject of an ICE raid,

4

under circumstances requiring him to either violate or comply with the IWPA, and that he likely

5

would thereafter be punished either for violating the IWPA or for violating ICE orders, such

6

likelihood would be insufficient as a matter of law to support standing under Clapper.1

7

Plaintiff’s standing problem goes deeper, because the complaint establishes beyond

8

dispute that any threat of future harm that may have existed has been eliminated. Plaintiff cannot

9

show that he is currently subject to future harm by enforcement of the IWPA, because he has

10

voluntarily closed his business. ECF No. 1 at 10, ¶ 64. Any alternative standing theory based on

11

this “injury” is also foreclosed by Clapper.

12

After finding that Amnesty International’s theory of likely future harm fails to meet the

13

injury-in-fact requirement, the Clapper Court also rejected an alternative standing theory which

14

rested on injury in the form of plaintiff’s cessation of communications vulnerable to FISA

15

surveillance, and costs incurred in attempting to protect the privacy of communications in light of

16

the amendments. The Supreme Court held that the plaintiff organizations “cannot manufacture

17

standing merely by inflicting harm on themselves based on their fears of hypothetical future harm

18

that is not certainly impending.” Id. at 416. Moreover, the Court stated, voluntarily self-inflicted

19

harms are not “fairly traceable” to the challenged statute. Id.

20

In light of Clapper, plaintiff cannot rely on the closing of his business as an injury-in-fact

21

which is fairly traceable to the IWPA. The complaint acknowledges that plaintiff shut down his

22

business “out of an abundance of caution to avoid violating federal law.” ECF No. 1 at 10, ¶ 64.

23

This choice by plaintiff was not compelled by the IWPA and so cannot be considered traceable to

24

////

25

1

26
27
28

Plaintiff’s allegations do not demonstrate a reasonable likelihood of harm, let alone “certainly
impending” harm. The complaint does not specify exactly what NAMAC does; its role in the
retail food sector; whether it directly employs any undocumented workers, or what its relationship
is with any associated undocumented workers; whether it has its own facilities that could be
raided; etc. Even if plaintiff could establish such a likelihood by amendment, however, standing
would be foreclosed by Clapper.
6

1

it. Because the alleged closing of the business was not responsive to any “certainly impending”

2

future harm, it cannot itself constitute an injury sufficient to support standing.

3

For all these reasons, plaintiff’s asserted injuries are insufficient to confer standing to

4

challenge the constitutionality of the IWPA.2 Plaintiff’s complaint makes clear that no case or

5

controversy exists, and this fact cannot be cured by amendment. Noll, 809 F.2d at 1448.

6

Accordingly, this court lacks jurisdiction to consider plaintiff’s claims.

7

III. CONCLUSION

8
9

For the reasons explained above, plaintiff’s request to proceed in forma pauperis (ECF
No. 2) is hereby GRANTED.

10
11

It is RECOMMENDED that the complaint (ECF No. 1) be DISMISSED with prejudice
for lack of jurisdiction.

12

These findings and recommendations are submitted to the United States District Judge

13

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days

14

after being served with these findings and recommendations, plaintiff may file written objections

15

with the court and serve a copy on all parties. Id.; see also Local Rule 304(b). Such a document

16

should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Failure

17

to file objections within the specified time may waive the right to appeal the District Court’s

18

order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153,

19

1156-57 (9th Cir. 1991).

20

DATED: March 28, 2018.

21
22
23
24
25
26
27
28

2

The issue plaintiff seeks to litigate, that IWPA is invalid under the Supremacy Clause, is
currently being litigated by the United States of America in United States v. California,
No. 18cv490 (E.D. Cal.).
7