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United States Court of Appeals,Ninth Circuit.

Arnold DAVIS, on behalf of himself and all others similarly situated, Plaintiff–Appellant, v. GUAM; Guam Election Commission; Alice M. Taijeron; Martha C. Ruth; Joseph F. Mesa; Johnny P. Taitano; Joshua F. Renorio; Donald I. Weakley; Leonardo M. Rapadas, Defendants–Appellees.

No. 13–15199.

Decided: May 08, 2015

Before MARY M. SCHROEDER, ALEX KOZINSKI, and N. RANDY SMITH, Circuit Judges. Douglas R. Cox, Scott P. Martin (argued) and Marisa C. Maleck, Gibson, Dunn & Crutcher LLP, Washington, D.C., Michael E. Rosman, Center for Individual Rights, Washington, D.C., Mun Su Park, Law Offices of Park and Associates, Tamuning, GU, and J. Christian Adams, Election Law Center, PLLC, Alexandria, VA, for Plaintiff–Appellant. Leonardo M. Rapadas, Attorney General, and Robert M. Weinberg, Assistant Attorney General (argued), Office of the Attorney General of Guam, Tamuning, GU, for Defendants–Appellees. Meriem L. Hubbard, Joshua P. Thompson and Jonathan Wood, Pacific Legal Foundation, Sacramento, CA, for Amicus Curiae Pacific Legal Foundation. Julian Aguon, Law Office of Julian Aguon, Hagatna, GU, for Amicus Curiae Anne Perez Hattori.


Pursuant to a law passed by the Guam legislature, eligible “Native Inhabitants of Guam” may register to vote in a plebiscite concerning Guam's future political relationship with the United States. Guam will conduct the plebiscite if and when 70 percent of eligible Native Inhabitants register. Plaintiff Arnold Davis is a Guam resident who isn't eligible to register because he is not a Native Inhabitant. He alleges that Guam's Native Inhabitant classification is an unlawful proxy for race. At this stage, we must determine only whether Davis has standing to challenge the classification and whether his claims are ripe.


Guam law directs the territory's Commission on Decolonization to “ascertain the intent of the Native Inhabitants of Guam as to their future political relationship with the United States of America.” 1 Guam Code Ann. § 2105. The same law also provides for a “Political Status Plebiscite.” Id. § 2110. The plebiscite would ask eligible Native Inhabitants to choose among three options: (1) “Independence,” (2) “Free Association with the United States of America” or (3) “Statehood.” Id. It would be conducted by Guam's Election Commission on the same day as a general election. Id. The Commission on Decolonization would then be required to transmit the plebiscite's results to the President, Congress and the United Nations as reflecting “the intent of the Native Inhabitants of Guam as to their future political relationship with the United States.” Id. § 2105.

Guam will hold the plebiscite if and when 70 percent of all eligible Native Inhabitants1 register with the Guam Decolonization Registry. 1 Guam Code Ann. § 2110; 3 Guam Code Ann. §§ 21000, 21003. Native Inhabitants aren't required to register, although some will be registered automatically unless they submit a written request not to be registered. 3 Guam Code Ann. § 21002.1. Guam reports that the 70 percent threshold isn't close to being met. Thus, Guam hasn't set a date for the plebiscite and perhaps never will.

Davis tried to register with the Decolonization Registry, but the application was rejected because Davis isn't a Native Inhabitant. Davis agrees he's not a Native Inhabitant but claims that the Native Inhabitant classification violates the Fifth, Fourteenth and Fifteenth Amendments, as well as the Voting Rights Act and the Guam Organic Act2 because it is a “proxy for race.” Davis seeks a declaration that limiting registration to Native Inhabitants is unlawful, and an injunction against using any registry other than Guam's general voter registry in determining who's eligible to register for, and vote in, the plebiscite.

The district court held that Davis lacks standing and his claims are unripe. According to the district court, Davis hasn't been injured because “there is no discernible future election in sight.” “To suffer a real discernible injury,” the district court held, Guam's restriction on voter registration to Native Inhabitants “would have to be, by necessity, related to an election that is actually scheduled.” We have jurisdiction pursuant to 28 U .S.C. § 1291 and review de novo. Bova v. City of Medford, 564 F.3d 1093, 1095 (9th Cir.2009).


To “satisfy the standing requirements imposed by the ‘case’ or ‘controversy’ provision of Article III,” Davis must show that he has suffered, or will imminently suffer, a “concrete and particularized” injury to a “judicially cognizable interest.” Bennett v. Spear, 520 U.S. 154, 167 (1997); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). That injury must be “fairly traceable to the challenged action of the defendant[s],” and it must appear likely that the injury would be prevented or redressed by a favorable decision. Bennett, 520 U.S. at 167; see also Allen v. Wright, 468 U.S. 737, 751 (1984). When determining Article III standing we “accept as true all material allegations of the complaint” and “construe the complaint in favor of the complaining party.” Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir.2011) (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)).

Guam law gives some of its voters the right to participate in a registration process that will determine whether a plebiscite will be held. Davis alleges that the law forbids him from participating on the basis of his race. Davis's allegation—that Guam law provides a benefit to a class of persons that it denies him—is “a type of personal injury [the Supreme Court has] long recognized as judicially cognizable.” Heckler v. Mathews, 465 U.S. 728, 738 (1984). The plaintiff in Mathews challenged a provision of the Social Security Act that required certain male workers (but not female workers) to make a showing of dependency as a condition for receiving full spousal benefits. Id. at 731–35. The statute, however, “prevent[ed] a court from redressing this inequality by increasing the benefits payable to” the male workers. Id. at 739. Thus, the lawsuit couldn't have resulted in any tangible benefit to Mathews. The Supreme Court nevertheless held that Mathews had standing to challenge the provision because he sought to vindicate the “right to equal treatment,” which isn't necessarily “coextensive with any substantive rights to the benefits denied the party discriminated against.” Id.; see also Allen, 468 U.S. at 762; 13A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice & Procedure §§ 3531.4 at 215–16, 3531.6 at 454–56 (3d ed.2008). We read Mathews as holding that equal treatment under law is a judicially cognizable interest that satisfies the case or controversy requirement of Article III, even if it brings no tangible benefit to the party asserting it. Guam's alleged denial of equal treatment to Davis is thus a judicially cognizable injury.

Guam concedes that its law excludes Davis from the registration process because he's not a Native Inhabitant. It argues, however, that the Native Inhabitant classification can't injure Davis because the plebiscite is “not self executing and effects no change in political status, right, benefit or privilege for any individual.” But this contradicts Mathews, which held that unequal treatment is an injury even if curing the inequality has no tangible consequences. 465 U.S. at 739. Moreover, Guam understates the effect of any plebiscite that would be held if the registration threshold were triggered. After the plebiscite, the Commission on Decolonization would be required to transmit the results to the President, Congress and the United Nations, 1 Guam Code Ann. § 2105, thereby taking a public stance in favor of whatever outcome is favored by those voting in the plebiscite.3 If the plebiscite is held, this would make it more likely that Guam's relationship to the United States would be altered to conform to that preferred outcome, rather than one of the other options presented in the plebiscite, or remaining a territory. This change will affect Davis, who doubtless has views as to whether a change is appropriate and, if so, what that change should be. Guam law thus does provide a tangible benefit to Native Inhabitants that Davis alleges he is unlawfully denied: the right to help determine whether a plebiscite is held. This is not unlike the right to participate in jury service, which may not be denied on a constitutionally unequal basis. See Batson v. Kentucky, 476 U.S. 79, 87 (1986) (citing Carter v. Jury Comm'n of Greene Cnty., 396 U.S. 320, 329–30 (1970)).4

Davis's challenge to the Native Inhabitant classification is also ripe because he alleges he's currently being denied equal treatment under Guam law. The registration process is ongoing and Guam must hold the plebiscite if 70 percent of eligible Native Inhabitants register. By being excluded from the registration process, Davis claims he is unlawfully denied a right currently enjoyed by others: to help determine whether a plebiscite will be held. The ripeness question thus “coincides squarely with standing's injury in fact prong.” Bova, 564 F.3d at 1096 (quoting Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1138 (9th Cir.2000) (en banc)); see also 13B Federal Practice & Procedure § 3531.12 at 163.

Guam maintains that its plebiscite law does not, in fact, violate Equal Protection, the Fifteenth Amendment or the Voting Rights Act. But we need not resolve these issues to determine whether Davis's claims satisfy the case or controversy requirement of Article III. These are merits questions, and standing doesn't “depend[ ] on the merits of the plaintiff's contention that particular conduct is illegal.” Warth, 422 U.S. at 500.


Davis's challenge to Guam's registration restriction asserts a judicially cognizable injury that would be prevented or redressed if the district court were to grant his requested relief. Davis therefore has Article III standing to pursue his challenge to Guam's alleged race-based registration classification. The claim is ripe because Davis alleges he is currently subject to unlawful unequal treatment in the ongoing registration process. Therefore, we need not decide whether any of the other injuries Davis alleges follow from Guam's Native Inhabitant restriction would be sufficient to confer standing independently. In particular, we express no view as to whether the challenged law resulted in the type of “stigmatizing” harm that we've held may be a judicially cognizable injury in the Establishment Clause context. See Catholic League v.. City & Cnty. of S.F., 624 F.3d 1043, 1052–53 (9th Cir.2010) (en banc). Nor do we decide whether an alleged violation of the Voting Rights Act is itself a judicially cognizable injury.

In the district court, Davis also sought to enjoin Leonardo Rapadas, the Attorney General of Guam, from enforcing a provision of Guam's criminal law that makes it a crime for a person who knows he's not a Native Inhabitant to register for the plebiscite. See 3 Guam Code Ann. § 21009. The district court held that Davis lacked standing to seek this injunction because he had not “shown that he is subject to a genuine threat of imminent prosecution.” While Rapadas is still listed as a nominal defendant on appeal, Davis doesn't argue that the district court erred in dismissing this claim. Therefore, any claim of error is waived. See Wagner v. Cnty. of Maricopa, 747 F.3d 1048, 1059 (9th Cir.2013).

We decline Davis's suggestion that we reach the merits of his claims in the event we find his claims to be justiciable. Instead we leave it to the district court to consider the merits of Davis's non-waived claims in the first instance.

AFFIRMED in part, REVERSED in part, and REMANDED.

Appellees other than Rapadas shall pay costs on appeal. Rapadas shall recover his costs, if any, from Davis.

The majority holds that federal courts have jurisdiction in this case based on precedent not applicable to its decision. For that reason, I must dissent.

Currently Guam is an unincorporated, organized territory of the United States.1 Guam's legislature found that the native inhabitants of Guam “have been subjected to incessant control by external colonial powers” and have never been afforded the right to self-determination as to their political relationship with the United States. 1 Guam Code. Ann. § 2101. Therefore, in 2004, Guam's legislature enacted 1 Guam Code. Ann. § 2110. It provides:

(a) The Guam Election Commission shall conduct a “Political Status Plebiscite”, at which the following question, which shall be printed in both English and Chamorro, shall be asked of the eligible voters:

In recognition of your right to self-determination, which of the following political status options do you favor? (Mark ONLY ONE):

1. Independence ( )

2. Free Association with the United States of America ( )

3. Statehood ( ).

Person eligible to vote shall include those persons designated as Native Inhabitants of Guam, as defined within this Chapter of the Guam Code Annotated, who are eighteen (18) years of age or older on the date of the “Political Status Plebiscite” and are registered voters on Guam.

The “Political Status Plebiscite” mandated in Subsection (a) of this Section shall be held on a date of the General Election at which seventy percent (70%) of the eligible voters, pursuant to this Chapter, have been registered as determined by the Guam Election Commission.

From the plain language of the statute, it is apparent that (1) the Guam legislature wants to gather the opinion of the Native Inhabitants of Guam regarding political status options; (2) to gather that opinion, the legislature scheduled a future plebiscite (poll) asking for an indication of what political status option is favored by such Native Inhabitants; and (3) the poll will not occur unless seventy percent of the Native Inhabitants of Guam register to be polled.

It is a fundamental principle that federal courts are courts of limited jurisdiction, limited to deciding “cases” and “controversies.” U.S. Const. art. III, § 2. The Supreme Court has repeatedly insisted that a case or controversy does not exist, unless the plaintiff shows that “he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct.” City of L.A. v. Lyons, 461 U.S. 95, 102 (1983) (internal quotation marks omitted) (emphasis added). The Court admonished that the “injury or threat of injury must be both real and immediate, not conjectural or hypothetical.” Id. (internal quotation marks omitted) (emphasis added). “[R]ipeness is peculiarly a question of timing,” and ripeness is particularly at issue when a party seeks pre-enforcement review of a statute or regulation. Thomas v. Anchorage Equal Rights Com'n, 220 F.3d 1134, 1138 (9th Cir.2000). A “claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Bova v. City of Medford, 564 F.3d 1093, 1096 (9th Cir.2009) (quoting Texas v. United States, 523 U.S. 296, 300 (1998)). The Supreme Court has consistently held that the ripeness doctrine aims “to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements.” Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580 (1985) (internal quotation marks omitted). “Where a dispute hangs on future contingencies that may or may not occur, it may be too impermissibly speculative to present a justiciable controversy.” In re Coleman, 560 F.3d 1000, 1005 (9th Cir.2009) (internal quotation marks and citations omitted).

The district court found Davis's alleged injury was not ripe. “Although a district court's determination of federal subject matter jurisdiction is reviewed de novo, the district court's factual findings on jurisdictional issues must be accepted unless clearly erroneous.” Stock W., Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir.1989) (internal citations omitted). The district court conducted a hearing and then made certain factual findings as to the ripeness of Davis's claim. The district court found that: (1) there is no date currently set for the plebiscite; (2) “there is no discernible future election in sight”; (3) there is no “real threat of the election occurring any time soon”; (4) there is “little likelihood that the plebiscite will be scheduled any time in the near future”; (5) Davis's own statements actually support the conclusion that the “plebiscite is not likely to occur any time soon, or if at all”; (6) Davis had not “successfully argued [or] shown that he is presently threatened with or has already suffered any irreparable damage or injury because he cannot register for a plebiscite that is more than likely not to occur.” The district court concluded that “until the plebiscite [Davis] seeks to register for is “certainly impending,” that Davis had no claim.

The district court's factual findings are supported by the record. Davis does not challenge the findings as clearly erroneous. The majority does not hold the findings to be clearly erroneous. Applying the ripeness precedent to these findings, this controversy fails for ripeness. The inability to register for an opinion poll, that is not currently scheduled and unlikely to ever occur, is not a matter of “sufficient ripeness to establish a concrete case or controversy.” Thomas, 473 U.S. at 579. Whether the plebiscite occurs is contingent on a series of events that have not yet occurred and may never occur. Thus, at this point, there is not a “realistic danger” that the plebiscite will occur. Babbitt v. United Farm Workers Nat'l. Union, 442 U.S. 289, 298 (1979). Our court's role is “neither to issue advisory opinions nor to declare rights in hypothetical cases, but to adjudicate live cases or controversies.” Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1138 (9th Cir.2000). Davis's allegations of future injury are too speculative to be “of sufficient immediacy and reality” to satisfy the constitutional requirement of ripeness. See In re Coleman, 560 F.3d at 1005.2 Thus, the matter is not ripe and our court has no jurisdiction.

In its decision, the majority instead concludes that Davis has standing to challenge the plebiscite, not based on voting rights cases, but based on one's ability to seek Social Security benefits.3 In fact, the majority cites no precedent suggesting that forbidding Davis from registering for this plebiscite implicates the voting rights protected under the Constitution. The Fifteenth Amendment only applies to an “election in which public issues are decided or public officials selected.” Terry v. Adams, 345 U.S. 461, 468 (1953) (emphasis added). Davis does not allege that he is being denied the right to register for an election. Davis does not allege the plebiscite will select “candidates for public or party office.” See 52 U.S.C. § 10310(c). Davis does not allege the plebiscite will change Guam's Constitution. Davis does not allege the plebiscite will enact, amend, or repeal any statute. Despite the language in the majority's opinion to the contrary, Davis does not allege the plebiscite will change the rights of Guam's citizens or that the plebiscite itself will change or decide Guam's political status in relationship with the United States. Rather, the injury alleged by Davis is merely being denied the right to register to participate in an opinion poll that will likely never occur. Clearly, the inability to register for this opinion poll is not equivalent to being denied the right to register to vote in the type of vote contemplated and protected by the Constitution.

Even if prohibiting Davis from registering for the plebiscite were a violation of his voting rights, this case “involves too remote and abstract an inquiry for the proper exercise of the judicial function.” Texas v. United States, 523 U.S. 296, 300 (1998). The plebiscite is not currently scheduled and as the district court found, it is not likely to ever occur ! The condition precedent to even scheduling the opinion poll is obtaining the registration of seventy percent of the eligible voters. Failing to satisfy this requirement (an event that even Davis describes as a “mirage”), the poll will not take place. Yet, amazingly, the majority finds these circumstances present a case ripe for resolution.

The majority mistakenly suggests that Heckler v. Mathews, 465 U.S. 728 (1984) would apply.4 However, in Mathews, there was no question that Social Security pension benefits would be paid. There was no uncertainty as to application of the allegedly unconstitutional pension offset provision. Thus, there was no question the issue was ripe. Indeed, the Court was not asked to determine ripeness and the Court did not address ripeness. Rather, the issue before the Court was determining the plaintiff's standing. The Court was asked to answer the question of whether the plaintiff's standing was dependant on his ability to receive additional benefits if he prevailed. See Mathews, 465 U.S. at 735–38.

Thus, the majority's conclusion that this case is ripe is without precedent and ignores the district court's extensive factual findings as to ripeness. Can you imagine the hours the district court will now have to spend resolving Davis's many alleged claims, including claims of alleged unequal treatment under the Fourteenth Amendment, alleged stigmatizing harm under the Establishment Clause, alleged violations of the Voting Rights Act, even though this plebiscite will never occur?

Given the speculative and remote course of events that stands between Davis and his contemplated injury, this matter is not ripe for adjudication, and the district court correctly dismissed Davis's complaint.


1.  Guam law defines “Native Inhabitants” as persons who became U . S. citizens by virtue of the Guam Organic Act of 1950 and their descendants. 1 Guam Code Ann. § 2102. The Organic Act granted citizenship to three classes of persons: (1) Spanish subjects who inhabited Guam on April 11, 1899, when Spain ceded Guam to the United States in the Treaty of Paris (and their children); (2) persons who were born on Guam and resided there on April 11, 1899 (and their children); and (3) persons born on Guam on or after April 11, 1899, when Guam was subject to U.S. jurisdiction. See Organic Act of Guam, Pub.L. No. 630, 64 Stat. 384, 384 (Aug. 1, 1950).

2.  The Organic Act extends the rights afforded by several constitutional provisions to Guam, including the Fifth Amendment, the Equal Protection Clause of the Fourteenth Amendment and the Fifteenth Amendment. 48 U.S.C. § 1421b(u); Guam v. Guerrero, 290 F.3d 1210, 1214–15 (9th Cir.2002). The Organic Act also contains its own anti-discrimination provisions. See, e.g., 48 U .S.C. § 1421b(n). The Voting Rights Act applies to Guam, a U.S. territory. 52 U.S.C. § 10101(a)(1) (formerly 42 U.S.C. § 1971(a)(1)).

3.  The U.S. House of Representatives, for one, has indicated that it has open ears. In a 1998 resolution, it acknowledged the Commission on Decolonization and “reaffirm[ed] its commitment to the United States citizens of Guam for increased self-government, consistent with self-determination for the people of Guam.” H.R. Res. 494, 105th Cong., 144 Cong. Rec. 25922, 25922–23 (1998).

4.  Although Batson involved a criminal defendant's challenge to his conviction, the Court reiterated its holding in Carter that when a state “den[ies] a person participation in jury service on account of his race, the [s]tate unconstitutionally discriminate[s] against the excluded juror.” Batson, 476 U.S. at 87; see also Carter, 396 U.S. at 329 (“People excluded from juries because of their race are as much aggrieved as those indicted and tried by juries chosen under a system of racial exclusion.”). Whether participation in Guam's registration process is “deemed a right, a privilege, or a duty,” Guam must “hew to federal constitutional criteria” when determining who is eligible to register. Id. at 330.

1.  Guam became an “organized” territory after Congress enacted the Guam Organic Act in 1950, which granted the people of Guam United States citizenship and established institutions of local government. Guam is “unincorporated,” because not all provisions of the U.S. Constitution apply to the territory. DOI Dep't of Insular Aff., Report on the State of the Islands (1997), http://www.doi.gov/oia/reports/ Chapter–4–Guam.cfm (last visited Apr. 15, 2015).

2.  The Sixth Circuit appears to be the only Circuit that has directly addressed the question of when an alleged deprivation of voting rights is ripe. The court found the Constitution protects an individual's “fundamental right to vote not the right to register to vote.” Lawson v. Shelby Cnty., 211 F.3d 331, 336 (6th Cir.2000) (emphasis added). Accordingly, the court found that the cause of action accrued on election day, “when [the plaintiffs] presented themselves at their polling station and were refused the right to vote,” not when they were “notified that their registrations had been rejected” for refusing to provide social security numbers. Id. Unlike this case, the “vote” at issue in Lawson involved an actual election.

3.  I note the majority also cites Batson v. Kentucky, 476 U.S. 79, 85–86 (1986) to support its position. Op. 8. However, in Batson, the United States Supreme Court held that a prosecutor's use of peremptory challenges based on race violates the Equal Protection Clause of the Fourteenth Amendment. Batson, 476 U.S. at 85–86. The Court's focus was protecting the defendant's constitutional right to a trial by jury. Id. The Court found that the jury must be “indifferently chosen to secure the defendant's right under the Fourteenth Amendment.” Id. at 87 (internal quotation marks omitted) (emphasis added). It is difficult to understand how the majority extrapolated the holding in this case to its conclusion that Davis's right to register for the plebiscite “is not unlike the right to participate in jury service, which may not be denied on a constitutionally unequal basis.” Op. 8.

4.  The plaintiff in Mathews claimed that he was subjected to unequal treatment as to Social Security benefits “solely because of his gender.” Mathews, 465 U.S. at 738. Specifically, the plaintiff alleged that “as a nondependent man, he receiv[ed] fewer benefits than he would if he were a similarly situated woman.” Id. The Court focused on two factors when determining the plaintiff had standing (1) his injury was concrete as “there was no doubt about the direct causal relationship between the government's alleged deprivation of appellee's right to equal protection and the personal injury appellee has suffered—denial of Social Security benefits solely on the basis of his gender”; (2) that he was denied equal treatment solely because of gender (a protected class). Id. at 739–40 & n. 9. The court concluded that the plaintiff's standing did not depend on his ability to obtain increased Social Security benefits if he prevailed. Id. at 737.

KOZINSKI, Circuit Judge:

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