FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CITY OF SAN JUAN CAPISTRANO, a 

California municipal corporation,

Plaintiff-Appellant,

v.

CALIFORNIA PUBLIC UTILITIES 

COMMISSION, a California state 

agency,

Defendant-Appellee.

No. 17-56693

D.C. No.

8:17-cv-01096-

AG-E

OPINION

Appeal from the United States District Court

for the Central District of California

Andrew J. Guilford, District Judge, Presiding

Argued and Submitted March 8, 2019

Pasadena, California

Filed September 11, 2019

Before: Andrew J. Kleinfeld, Jacqueline H. Nguyen,

and Ryan D. Nelson, Circuit Judges.

Opinion by Judge R. Nelson;

Concurrence by Judge R. Nelson
2 CITY OF SAN JUAN CAPISTRANO V. CPUC

SUMMARY*

Civil Rights

The panel affirmed the district court’s dismissal of 

claims for lack of standing in an action brought by the City 

of San Juan Capistrano asserting that the California Public 

Utility Commission’s approval of an electrical grid project 

violated the City’s due process rights. 

Citing City of South Lake Tahoe v. California Tahoe 

Regional Planning Agency, 625 F.2d 231, 233 (9th Cir. 

1980), and its progeny, the panel noted that this Circuit has 

consistently held that political subdivisions lack standing to 

challenge state law on constitutional grounds in federal 

court. Accordingly, the panel held that in this case, the City 

could not challenge the Commission’s decision on due 

process grounds in federal court. The panel rejected the 

proposition that South Lake Tahoe bars only facial 

challenges to a statute or regulation. The panel held that 

South Lake Tahoe and this Circuit’s later cases relied only 

on the identity of the parties, not the procedural context in 

which those claims were raised. 

The panel separately held that sovereign immunity 

barred the City’s claims because the Commission is an arm 

of the State of California. The panel held that the City 

waived its right to amend the complaint to add a 

commissioner because the City never asked the district court 

for such relief and nothing in the City’s district court filings 

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
CITY OF SAN JUAN CAPISTRANO V. CPUC 3

could be construed as a definite request for leave to add a 

new party.

Concurring, Judge R. Nelson wrote separately to 

highlight the potential, in the appropriate case, to revisit the 

court’s per se rule that a political subdivision lacks standing 

to challenge state law on constitutional grounds in federal 

court.

COUNSEL

Michael J. Aguirre (argued) and Maria C. Severson, Aguirre 

& Severson LLP, San Diego, California, for PlaintiffAppellant.

Christofer Charles Nolan (argued), Arocles Aguilar, 

Jonathan C. Koltz, and Marcelo Poirier, California Public 

Utilities Commission, San Francisco, California, for 

Defendant-Appellee.

Peder K. Batalden (argued), Mitchell C. Tilner, and Bradley 

S. Pauley, Horvitz & Levy LLP, Burbank, California; 

Michael J. Perez and Jeffrey A. Feasby, Perez Vaughn & 

Feasby Inc., San Diego, California; for Amicus Curiae San 

Diego Gas & Electric Company.
4 CITY OF SAN JUAN CAPISTRANO V. CPUC

OPINION

R. NELSON, Circuit Judge:

The City of San Juan Capistrano contends the California 

Public Utility Commission’s approval of an electrical grid 

project violates the City’s due process rights. Following City 

of South Lake Tahoe v. California Tahoe Regional Planning 

Agency and its progeny, we hold the City cannot challenge 

the Commission’s decision on due process grounds in 

federal court. 625 F.2d 231, 233 (9th Cir. 1980). Moreover, 

the City’s claims are barred by Eleventh Amendment 

sovereign immunity. We therefore affirm.

I

The City of San Juan Capistrano (“the City”) alleges the 

California Public Utility Commission (“the Commission”) 

violated due process when it approved San Diego Gas & 

Electric’s (“the Utility”) project to replace a transmission 

line and upgrade a substation on property the Utility owns 

within the City. The City opposed the project “as a duly 

admitted party” in a Commission hearing. After the hearing, 

the Commission administrative law judge recommended 

approving an alternate project with less environmental 

impact. But the assigned commissioner—after ex parte 

meetings with the Utility—recommended approval of the 

original project. The Commission agreed.

The Commission denied the City’s application for 

rehearing. See Cal. Pub. Util. Code § 1733 (denial by 

inaction). The City did not challenge the Commission’s 

decision in state court. Id. § 1756 (judicial review of 

Commission decisions).
CITY OF SAN JUAN CAPISTRANO V. CPUC 5

Instead, the City sued the Commission in federal court 

alleging the ex parte meetings led the Commission to reject 

the administrative law judge’s recommendation. The City 

argued that by not giving “due consideration” to alternative 

projects as required by California environmental law, the 

Commission deprived the City of liberty and property 

interests over its environmental integrity, cultural integrity, 

and development, along with its procedural right to a fair 

hearing. The City sought to enjoin the Commission from 

mandating the project, a declaration that the Commission’s 

approval order is not enforceable against the City, and 

attorneys’ fees. The district court dismissed the suit with 

prejudice, holding that the City, as a political subdivision, 

lacked standing to sue the Commission and amendment 

would be futile. See South Lake Tahoe, 625 F.2d at 233.

Plaintiff’s standing and Defendant’s sovereign immunity 

are questions of law, which we review de novo. Daniel v. 

Nat’l Park Serv., 891 F.3d 762, 765–66 (9th Cir. 2018).

II

Starting with South Lake Tahoe, 625 F.2d at 233, we 

have consistently held that political subdivisions lack 

standing to challenge state law on constitutional grounds in 

federal court.1 South Lake Tahoe offered no independent 

1 We have held that a city, an airport authority, a health district, and 

a school district all lack standing to sue a planning authority, a city, and 

various state agency officials. See Okanogan Sch. Dist. #105 v. 

Superintendent of Pub. Instruction for Wash., 291 F.3d 1161, 1165–66 

(9th Cir. 2002); Palomar Pomerado Health Sys. v. Belshe, 180 F.3d 

1104, 1106–09 (9th Cir. 1999); Burbank-Glendale-Pasadena Airport 

Auth. v. City of Burbank, 136 F.3d 1360, 1362–64 (9th Cir. 1998); South 

Lake Tahoe, 625 F.2d at 233. Some of the failed claims were premised 

on allegations that state statutes, regulations, or procedures violated the 
6 CITY OF SAN JUAN CAPISTRANO V. CPUC

reasoning for its per se standing rule. But it cited Supreme 

Court and Second Circuit decisions that rejected cities’ 

constitutional challenges to state law, characterizing 

political subdivisions as “creature[s]” and states as their 

“creators.” South Lake Tahoe, 625 F.2d at 233–34 (citing 

Williams v. Mayor & City Council of Baltimore, 289 U.S. 

36, 40 (1933); City of Trenton v. New Jersey, 262 U.S. 182, 

188 (1923); City of Newark v. New Jersey, 262 U.S. 192, 196 

(1923); City of New York v. Richardson, 473 F.2d 923, 929 

(2d Cir. 1973); Aguayo v. Richardson, 473 F.2d 1090, 1100–

01 (2d Cir. 1973)).2 Here, South Lake Tahoe, and the 

suing subdivision’s due process rights. Palomar, 180 F.3d at 1106–09; 

Burbank, 136 F.3d at 1362–64. Other failed claims were based on 

allegations that a state statute or regulation conflicted with a federal 

statute, thereby violating the Supremacy Clause. Okanogan, 291 F.3d 

at 1165–66; Palomar, 180 F.3d at 1107; Burbank, 136 F.3d at 1363–64.

2 Other circuits have applied the Supreme Court’s decisions in 

Williams, Trenton, and Newark differently, rejecting the proposition that

these precedents announced a per se rule of standing and instead holding 

that cities and other political subdivisions, as a substantive matter, lack 

certain constitutional rights. The Fifth Circuit held that Williams and 

Trenton did not bar a school district from claiming a state policy 

conflicted with a federal school meal program. It concluded that the 

Constitution alone does not interfere with the state-subdivision 

relationship, but that, under the Supremacy Clause, a federal statute 

might give a political subdivision a cause of action. Rogers v. Brockette, 

588 F.2d 1057, 1068–69 (5th Cir. 1979); see also Branson Sch. Dist. RE82 v. Romer, 161 F.3d 619, 628 (10th Cir. 1998) (“Williams and Trenton

stand only for the limited proposition that a municipality may not bring 

a constitutional challenge against its creating state when the 

constitutional provision that supplies the basis for the complaint was 

written to protect individual rights, as opposed to collective or structural 

rights.”). The Second Circuit, citing “unique federalism concerns,” 

recently adopted the reasoning of Rogers to allow political subdivision 

challenges to state law under the Supremacy Clause. Tweed-New Haven 

Airport Auth. v. Tong, 930 F.3d 65, 72–73 (2d Cir. 2019). It 

distinguished its holdings in Aguayo, 473 F.2d at 1100, and Richardson, 
CITY OF SAN JUAN CAPISTRANO V. CPUC 7

decisions in Burbank, Palomar, and Okanogan applying it, 

control as law of the circuit. Hart v. Massanari, 266 F.3d 

1155, 1171 (9th Cir. 2001) (“Once a panel resolves an issue 

in a precedential opinion, the matter is deemed resolved, 

unless overruled by the court itself sitting en banc, or by the 

Supreme Court.”).

Perhaps recognizing its uphill battle, the City 

characterizes South Lake Tahoe as a limited rule that bars 

challenges to the validity of statutes or regulations but does 

not bar the City’s challenge to the Commission’s “conduct 

in an administrative proceeding.” It notes that “facial” 

challenges to statutes are generally disfavored and asserts 

that Trenton, Williams, South Lake Tahoe, Burbank, and 

Palomar were all facial challenges to a statute or regulation 

—barred because such challenges interfere with states’ 

internal political organization.

We reject the proposition that South Lake Tahoe bars 

only facial challenges to a statute or regulation. South Lake 

Tahoe and our later cases do not suggest that the standing 

analysis was dependent on a facial challenge to a statute or 

regulation rather than an administrative decision. Instead, 

our cases have relied only on the identity of the parties, not 

the procedural context in which those claims are raised. See, 

e.g., Palomar, 180 F.3d at 1107 (“We must determine 

473 F.2d at 929—both cited by South Lake Tahoe—as specific to 

Fourteenth Amendment claims, which present “different” 

considerations. Tong, 930 F.3d at 73 n.7. The Sixth, Seventh, and 

Eleventh Circuits have interpreted Williams, Trenton, and Newark to 

hold that political subdivisions have no Fourteenth Amendment rights. 

S. Macomb Disposal Auth. v. Township of Washington, 790 F.2d 500, 

504–05 (6th Cir. 1986); United States v. Alabama, 791 F.2d 1450, 1455 

(11th Cir. 1986); Vill. of Arlington Heights v. Reg’l Transp. Auth., 653 

F.2d 1149, 1152–53 (7th Cir. 1981).
8 CITY OF SAN JUAN CAPISTRANO V. CPUC

(1) whether [plaintiff] is a ‘political subdivision’ of the State 

of California, and if so, (2) whether, by suing the defendants 

named in this action, [plaintiff] brings this action against the 

state.”).

We therefore conclude that the City lacks standing to 

challenge the Commission’s decision on due process 

grounds in federal court.

III

We separately hold that sovereign immunity bars the 

City’s claims because the Commission is an arm of the State 

of California. Pennhurst State Sch. & Hosp. v. Halderman, 

465 U.S. 89, 100 (1984); see Air Transp. Ass’n of Am. v. 

Pub. Utils. Comm’n of Cal., 833 F.2d 200, 203–04 (9th Cir. 

1987) (holding the Commission, specifically, is entitled to 

sovereign immunity). The Eleventh Amendment bars 

claims against a state—including its agencies—in federal 

court. Pennhurst, 465 U.S. at 97–100.

The City concedes on appeal the Commission is entitled 

to sovereign immunity. But it argues for leave to amend its 

complaint to add claims against a commissioner under Ex 

parte Young, 209 U.S. 123 (1908), which allows suits 

seeking “prospective relief” against a state official who has 

a fairly direct connection to an “ongoing violation of federal 

law.” Ariz. Students’ Ass’n v. Ariz. Bd. of Regents, 824 F.3d 

858, 865 (9th Cir. 2016) (citing Ex parte Young, 209 U.S. at 

155–56). Arizona Students’ Association suggests the City 

should generally be allowed leave to amend its complaint to 

add an individual official as a party, assuming claims 

otherwise satisfy Ex parte Young’s requirements. Id. at 871.

Below, however, the City argued that the Eleventh 

Amendment did not apply to its claims against the 
CITY OF SAN JUAN CAPISTRANO V. CPUC 9

Commission, only briefly suggesting the City could amend 

its complaint consistent with Ex parte Young if it were 

wrong. The City never asked for leave to add a 

commissioner as a party, only to “add facts developed in [its] 

analysis and investigation” related to the ex parte meetings. 

Nothing in the City’s district court filings can be construed 

as a definite request for leave to add a new party. Indeed, at 

argument before us, the City conceded it never asked the 

district court for such relief, and only requested such relief 

in its Reply Brief.

The City has therefore waived its right to amend. See

Okwu v. McKim, 682 F.3d 841, 846 n.4 (9th Cir. 2012) 

(“[Plaintiff] has waived the argument that she should be 

allowed to amend her complaint to re-style some of her 

§ 1983 claims . . . under the Ex Parte Young exception . . . . 

She did not make that argument to the district court or in 

either of her briefs on appeal.”); Walsh v. Nev. Dep’t of 

Human Res., 471 F.3d 1033, 1037 (9th Cir. 2006) (finding 

sovereign immunity issue forfeited on appeal where 

defendant failed to re-assert a claim for injunctive relief 

already in her complaint in response to the state’s motion to 

dismiss).

IV

The district court properly dismissed the City’s claims 

because the City lacks standing and the claims are barred by 

the Eleventh Amendment.

AFFIRMED.
10 CITY OF SAN JUAN CAPISTRANO V. CPUC

R. NELSON, Circuit Judge, concurring:

Today, the panel reaffirms the court’s established per se 

rule that a political subdivision lacks standing to challenge 

state law on constitutional grounds in federal court. I write 

separately to highlight the potential, in the appropriate case, 

to revisit the court’s per se rule in light of intervening 

caselaw from other circuit courts and the Supreme Court.

Nearly 40 years ago, we adopted a per se “standing” bar 

on a political subdivision challenging state law in federal 

court. City of South Lake Tahoe v. Cal. Tahoe Reg’l 

Planning Agency, 625 F.2d 231, 233 (9th Cir. 1980)

(analyzing “whether the City . . . ha[s] standing to bring this 

case”). We have not deviated from that per se bar since. See 

supra at 5 n.1. When South Lake Tahoe was decided, this 

standing terminology made some sense. Indeed, one of the 

first cases to address this issue held that a city’s officials 

were “without standing to invoke the protection of the 

Federal Constitution.” Williams v. Mayor and City Council 

of Balt., 289 U.S. 36, 47 (1933). Then, in Coleman v. Miller, 

the Supreme Court branded the result of Williams and related 

cases as a matter of “standing.” See 307 U.S. 433, 441 

(1939).

Since these cases, however, the meaning of “standing” 

has changed. When Williams and Coleman were decided, 

“standing was not seen as a preliminary or threshold 

question” as it is today. Rogers v. Brockette, 588 F.2d 1057, 

1070 (5th Cir. 1979). Instead, “[a] party had standing or a 

‘right to sue’ if it was correct in its claim on the merits that 

the statutory or constitutional provision in question protected 

its interests[.]” Id. That is why the Williams line of cases do 

not mention the elements we now associate with Article III 

standing, like injury-in-fact, causation, and redressability. 

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992); 
CITY OF SAN JUAN CAPISTRANO V. CPUC 11

see also Indian Oasis–Baboquivari Unified Sch. Dist. v. Kirk

(Indian Oasis I), 91 F.3d 1240, 1246, 1250 (9th Cir. 1996)

(Reinhardt, J., dissenting) (“[A] per se bar on standing 

can[not] be reconciled with Lujan or literally dozens of other 

modern standing cases.”), vacated for reh’g en banc and 

dismissed on other grounds, 109 F.3d 634 (9th Cir. 1997) 

(en banc).

Despite this history, we have imported “standing” from 

Williams and Coleman and consistently used the term in a 

string of cases as if it holds our modern understanding of the 

word—that of a jurisdictional prerequisite that must be 

satisfied prior to reviewing a claim on the merits. In South 

Lake Tahoe, for example, we held that the question of 

political subdivision standing went to our subject-matter 

jurisdiction. 625 F.2d at 233. Then, in Palomar Pomerado 

Health System v. Belshe—decided after Lujan—we 

reiterated the doctrine as a “jurisdictional issue.” 180 F.3d 

1104, 1107 (9th Cir. 1999).

Since we adopted our per se standing rule, however, 

other circuits have adopted different theories in addressing 

political subdivision’s right to sue a state in federal court. 

The Tenth Circuit, for example, has treated it as a standing 

question, barring due process claims, but not Supremacy 

Clause claims. See Branson Sch. Dist. RE-82 v. Romer, 

161 F.3d 619, 628–30 (10th Cir. 1998). The Second and 

Fifth Circuits, by contrast, have not treated it as a standing 

issue, but have also barred due process claims and allowed 

Supremacy Clause challenges. E.g., Tweed-New Haven 

Airport Auth. v. Tong, 930 F.3d 65, 72–73 (2d Cir. 2019) 

(allowing a political subdivision to pursue a Supremacy 

Clause claim); Rogers, 588 F.2d at 1069–71 (same); see also 

Star-Kist Foods, Inc. v. County of Los Angeles, 42 Cal.3d 1, 

6–10 (1986) (rejecting South Lake Tahoe’s per se “standing” 
12 CITY OF SAN JUAN CAPISTRANO V. CPUC

bar and allowing a claim under the Commerce Clause). And 

the Second, Fifth, and Tenth Circuit approaches remain 

faithful to the driving force behind our rule—the unique 

relationship between state subdivisions and their creating 

states. E.g., Rogers, 588 F.2d at 1070.

The Supreme Court has barred due process and contract 

clause claims by political subdivisions against states in 

federal court. City of Trenton v. State of New Jersey, 

262 U.S. 182, 188 (1923) (“The power of the State, 

unrestrained by the contract clause or the Fourteenth 

Amendment, over the rights and property of cities held and 

used for ‘governmental purposes’ cannot be questioned.”) 

(citation omitted). But the Supreme Court has not yet 

addressed a claim under the Supremacy Clause and thus, the 

split between our court and our sister courts has not been 

resolved. The Supreme Court recently suggested that all 

claims by political subdivisions are barred, noting that 

“[p]olitical subdivisions of States—counties, cities, or 

whatever—never were and never have been considered as 

sovereign entities.” Ysursa v. Pocatello Educ. Ass’n, 

555 U.S. 353, 362 (2009). The Court then compared

“political subdivision[s]” to “private corporation[s],” noting 

that a corporation “enjoys constitutional protections” while 

a political subdivision “has no privileges or immunities 

under the federal constitution which it may invoke in 

opposition to the will of its creator.” Id. at 362–63 (internal 

quotations omitted).

Given the differing theories advanced by other courts 

and the significant change in the meaning of “standing” 

since we decided South Lake Tahoe, it is worth this court’s 

consideration to revisit our rationale for our per se rule 

(which would have to occur en banc) to decide whether we 

remain on the correct path. At least three of our colleagues 
CITY OF SAN JUAN CAPISTRANO V. CPUC 13

have previously suggested such a course. See BurbankGlendale-Pasadena Airport Auth. v. City of Burbank, 

136 F.3d 1360, 1365 (9th Cir. 1998) (Kozinksi, J., 

concurring); Palomar, 180 F.3d at 1109, 1111 (Hawkins, J., 

concurring); Indian Oasis I, 91 F.3d at 1246, 1250 

(Reinhardt, J., dissenting). To be clear, this case does not 

warrant en banc review because all circuit courts and the 

Supreme Court bar due process claims. Trenton, 262 U.S. 

at 188; see also supra at 6 n.2.

Consistent with the Supreme Court’s recent direction in 

Ysursa, it may well be that our per se rule, even as an outlier 

among the circuit courts, is the correct one. But the 

underlying rationale still matters. Whether the rule is 

properly understood as a per se bar on “standing” may not 

be just a theoretical discussion but could have different 

implications based on different constitutional provisions. 

An inquiry informed by the type of constitutional claim at 

issue and how that claim affects the state-political 

subdivision relationship may provide a basis for allowing 

suits based on certain constitutional provisions while 

disallowing others. Branson, 161 F.3d at 628–29. But our 

current per se standing rule, while providing the benefit of a 

clear bright line, does not permit full consideration of 

important constitutional questions in future cases. 

Therefore, in the appropriate case, we should revisit en banc 

whether our per se standing bar is correct.