FOR PUBLICATION



### UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

M I C H I KO S H I O TA G I

N GE R Y , an individual; K O I C H I M E R A , an individual; GAHT-US C O R P O R A T I ON , a California non-profit corporation, Plaintiffs-Appellants,

v.

C I T Y O F G L E

ND AL E , a

m unicipal corporation, D efendant-Appellee. No. 14-56440

D.C. No. 2:14-cv-01291-PA-AJW

OPINION

Appeal from

the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Argued and Subm itted June 7, 2016 Pasadena, California

Filed August 4, 2016

Before: Stephen Reinhardt, and KimMcLane W ardlaw, Circuit Judges, and Edward R. Korm an, * Senior District

Judge.

* T h e Honorable Edward R. K orm an, Senior District Judge for the U .S. District Court for the Eastern District of New York, sitting by designation.G I N GE R Y V

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Opinion by Judge W ardlaw;

Concurrence by Judge Korm an

SUMMARY * *

C ivil Rights

The panel affirm ed the district court’s dism issal of an action b rought by a Japanese-Am erican resident of Los An g e l e s a n d a non-profit organization challe n g i n g the City o f Gle n d ale’s installation of a public m o num ent

co m m em orating the “Com fort W om en,” an unknown num b er of wom en that South Korea asserts, but Japan disputes, were forced to serve as sexual p artners to m em bers of the Japanese Im perial Army during W orld W ar II and the decad e preceding it.

The panel first h eld that plaintiffs had standing b e cause the “inability to unreservedly u se” Glendal e ’ s Central Park, where the m onum ent was installed, constitut ed an injury in fact for purposes of Article III standing.

Viewing the com

plaint’s factual a l legations in the light

m ost favorable to plaintiffs, the p anel concluded that Glendale’s installation of the m onum ent concerned an area o f
tr a d itional state responsibility and did not intrude on the federal g overnm ent’s foreign affairs power. Th e p anel therefore agreed with the district court that plaintiffs h ad not plausibly claim ed that Glendale’s actions were preem pted

** This sum

m ary constitutes no p art o f th e o p i n i on of the court. It h as been prepared by court staff for the convenience of the reader.G I N GE R Y V

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under the f

oreign affairs d octrin e

. Th e panel held that the Suprem acy Clause d oes not preem p t a local governm ent’s expression, through a public m onu m ent, of a particular viewpoint on a m atter related to foreign affairs.

Concurring, Judge Korm an wrote separately to su ggest that the p laintiffs had not alleged a valid cause of action that anchored their claim of foreign affairs preem ption.

C OUNSEL

Ronald S. Barak (argu ed), Law Offices of Ronald S. Barak, Pacific Palisades, California; Maxwell M. B lech er, D o n ald R. Pepperm an, and Taylor C

. W agniere, Blecher Collins Pepperm an & Joye, L os Angeles, California; for PlaintiffsAppellants.

Christopher S. Munsey (argued) and Bradley H. Ellis, Sidley Austin LLP, Los Angeles, California; Michael J. Garcia, Ann M. Maurer, and Andrew Rawcliffe, Glendale City Attorney’s Office, Glendale, California; for Defendant-Appellee.

Barry A. Fisher, Fleishm an & Fisher, Los Ange l e s, California, f

or Amicus Curiae the Global Alliance for Preserving the History of W W II in Asia.

Paul L. Hoffm an and Catherine Swee t s e r , Schonbrun DeSim one Seplow Harris & Ho ffm an LLP, V enice, Cali fo rnia, for Am icus Curiae the Korean Forum o f California.G I N GE R Y V

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OPINION

WARDLAW , Circuit Judge:

In 2013, the City of G lendale installed a public m o num ent

co m m em orating the “Com fort W om en,” an unknown num b er of wom en that South Korea asserts, but Japan disputes, were forced to serve as sexual p artners to m em bers of the Japanese I m perial Army during W orld W ar II and the decade preceding it. Plaintiffs, a Japanese-Am erican resident of Los Angeles and a non-profit organization, claim that G lendale’s installation o f the “Korean Sister City ‘Com fort W om an’ Peace Monum ent” intrudes o n the f ederal govern m ent’s exclusive f

oreign affairs power and is thereby p re em pted under the foreign affairs doctrine. W e conclude that Plaintiffs have standing to challenge Glendale’s installation of the m onum ent bu t ha v e failed to state a claim that Glendale’s actio n s are preem pted. Accordingly, w e affirm the district court’s j u d g me nt d i s mi s s i n g Pl a in ti ffs’
preem ption claimwith prejudice.

I. Factual and Procedural History

For several decades, Jap an a n d S o uth K o rea have engaged in a heated and politically sensi t ive debate concerning historical responsibility f or the Com f

ort Wo m en. S outh Korea has urged Japan to redress gr i e v a n ces relating to the Com fort W om en. Japan de ni es responsibility for the recruitm ent o f the Com fort W om en and asserts that, in any event, all W o rld W ar II-related claim s, including those related to the Com fort W om en, were res o lv e d pursuant to postwar treaties between Japan and the allied nations. According to Plaintiffs’ com p laint, the United States has generally “avoid[ed] taking sides” and encouraged Japan andG I N GE R Y V

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South Korea to resolve the dispute th r o u g h “further
governm ent-to-governm ent negotiations.”

On July 9, 2013, the Glendale City C ouncil approved the installation of the “‘Com fort W o m an’ Peace Monum ent” in Glendale Central Park, a public park in Glendale, California. Unveiled three weeks later, the m onum ent is a 1,100

- p o und bronze statue o f a y o un g g irl in Korean dress sitting next to

an em pty chair with a bird perched on he r s ho ulder. Alongside the statue is a bronze plaque, which reads in part:

In m em ory of m ore than 2 00,000 Asian and Dutch wom en who were rem oved from their h om es in Korea, China, Taiwan, Japan, th e Philippines, Thailand, V ietnam
, Malaysia, East Tim or and Indonesia, to be coerced into sexual slavery by the Imperial Arm ed Forces of Japan between 1932 and 1945.

And in celebration of proclam ati on o f “Com fort W o m en Day ” b y the City o f Glendale on July 3 0, 2012, and o f p assing o f House Resolution 121 by the United States Congress on July 30, 2007, urging the Japanese G overnm ent to accept his torical responsibility for these crim es.

It is our sincere hope that th e se

un conscionable violations of hum an rights shall never recur.

Plaintiffs Michiko Shiota Gin gery, GAHT-US Corporation (“GAHT-US”), and Koichi Mera claimthat the

m onum ent interferes with the federal governm ent’ s foreignG I N GE R Y V

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affairs power and violates the Suprem acy Clause. Plaintiffs’

com plaint further alleges that by installing the m onu me n t , Glendale “has taken a position i n the contentious and politically-sensitive international debate co ncerning the
proper historical treatm ent of the form er com fort wom en.” In Plaintiffs’ view, Glendale’s m o num ent disrupt s the federal
governm ent’s foreign policy of n onintervention and
encouragem ent of peaceful resolution of the Com fort W om en dispute. The complaint seeks an order declaring Glendale’s installation o f th e m o num ent unconstitutional and com pelling Glendale to rem ove the m onum ent from public property. 1

The district court dismi ssed Plaintiffs’ constitutional claim with p rejudice. The d istrict court first determ ined that Plaintiffs lacked standing. Alternatively, the d istrict court found that “[e]ven if P laintiffs possessed Article III standing, dism issal is still appropriate b ecause Plaintiffs have failed to allege facts that state a cognizable legal theory.” The district
court reasoned that the com plaint f ailed to al lege facts that could plausibly support the c o nclusion that the m o num ent conflicted wi th the executive branch’s f oreign policy. Plaintiffs tim ely appeal.

II. Standard of Review

“The d istrict court’s determ ination whether a p arty has standing, and whether there is subject m att er jurisdiction, is reviewed de novo.” H

ajro v. U.S. Citizenship & Immigration Servs.
, 811 F.3d 1086, 1098 (9th Cir. 2016). “W e review de

1 Plaintiffs also claim t

hat the installation of the m onum ent violates the Glendale Municipal Code. The dis tri c t c ourt declined t o exercise supplem e n t a l jurisdiction over this claim and dism issed it without prejudice.G I N GE R Y V

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novo a d istrict c o urt ’s dism issal for f ailure to state a claim under Rule 12(b)(6).” Harkonen v. U.S. Dep’t of Justice
, 800 F .3d 1143, 1 1 48 (9th Cir. 201 5). “W e m ay affirm the district court’s dism issal o n any ground that is supported by the record, whether or not the district court relied on the sam e ground or reasoning ultim ately adopted by this court.” Hartmann v. Cal. Dep’t of Corr. & Rehab.
, 707 F .3d 1114, 1121 (9th Cir. 2013).

III. Discussion

A. Standing

W e m ust f irst determ ine whether P laintiffs have standing
to pursue their preem

ption claim

. To establish Ar t i c le III standing, Plaintiffs m

u st dem onstrate “(1) the existence of an injury-in-fact that is concrete and particularized, and actual o r imm inent; (2) the i njury is fairly traceable to the challenged conduct; and (3) th e injury is likely to be redressed by a favorable court decisio n. ” Ctr. for Biological Diversity v. U.S. F ish & Wildlife S

erv. , 807 F.3d 1031, 1043 (9th Cir. 2015). “In m any cases the standing question can be answered chiefly b y com

paring the allegations of th e p a rticular

com plaint to those m ade in prior standing cases.” Allen v. Wright , 468 U.S. 737, 751–52 (1984). 2

Mera is a Japanese-Am erican resident of Lo s Angeles. Mera “disag r ees with and is offended by the position espoused by Glendale” through the m onum ent. Mera “would

2 W h ile this appeal w as pending, Plaintiffs notified us that G ingery h ad died. As the parties agree, Gingery’s claim for injunctive and d eclaratory relief is therefore m oot. See Kennerly v. United States
, 721 F.2d 1252, 1260 (9th Cir. 1983).G I N GE R Y V

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like to use Glendale’s Central Park and its Adult Recreation Center” but now “avoids doing so.” Furtherm ore, “the
presence of the Public Monum ent dim inishes Mera’s enjoym ent of the Central Park and its Adult Recreation Center.”

Mera’s allegations parallel those o f other plaintiffs,
p articularly in E s t a

b l i shm ent C l au se an d env iro nm ental cases, who have satisfied the injury-in-fact requirem ent by alleging that their use and enjoym ent o f p ublic land has been im paired. In the context of challe ng e s t o governm entsponsor e d displays of religion on public property, we “have repeatedly held that inability to unreservedly use p ublic land suffices as injury-in-fact.” Buono v. Norton
, 371 F.3d 543, 547 (9th Cir. 2004); see also Ellis v. City o f La M esa , 990 F.2d 1518, 1523 (9th Cir. 1993) (holding that a plaintiff satisfied the injury-in-fact requirem ent by alleging th a t he

was “offended” by the presence of a cross on public property, which he “otherwise would v i s i t ” but instead “avoids”). Sim ilarly, in environm ental cases, plaintiffs generally satisfy the injury-in-fact requirem ent by alleging that they are less able to use land affected by a defendant’s conduct. See, e.g. , Friends of the Earth, Inc. v. L aidlaw Envtl. Servs., Inc.
, 5 2 8 U.S. 167, 182–83 (2000) (holding that plaintiffs wh o “would use” allegedly polluted areas located several m iles from their hom es, b u t “ refrained” from doing so, h ad established injury in fact); Nat. Re s. Def. Council v. EPA
, 542 F .3d 1235, 1245 (9th Cir. 2008) (injury in fact established where plainti ffs a lleged that their “use and enjoym ent” o f certain waterways “has been dim inished” d ue to pollution). Altho ug h M era asserts neither an Establishm ent Clause nor environm ental clai m, cases from the s e co n texts m ay properly g uide our evaluation o f his alleged injury. See Valley Forge Christian Coll

. v

. Ams.G I N GE R Y V

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United for Separation of C

hurch & State, Inc.
, 454 U .S. 464, 488 (1982) (rejecting the argum ent that Establishm ent Clause

cases create any “special exceptions” to the requirem ents o f Article III standing).

Consistent with these precedents, we conclude that Mera’s “inability to unreservedly use” Glendale’s Central Park constitu t es an injury in f act for purposes o f Article III standing. Buono
, 371 F.3d at 547. Lik e th e Establishm ent Clause plaintiffs in Ellis and Buono
, Mera allegedly “avoids” using certain public land, which he has previously visited and “would like to use” again, becaus e h e is “offended” by the
governm ent-sponsored display it contains. See id. at 546–47; Ellis
, 990 F.2d a t 1 5 23. And like the plaintiffs in environm en t a l cases, Mera h as alleged both that he avoids public land th a t h e w ould like to u se again, and that his enjoym ent o f th e park and the park’s facilities has been “dim inshe[d].” See La i dlaw
, 528 U.S. at 182–83; Nat. Res. Def. Council
, 542 F.3d at 1 245. These allegations satisfy the injury-in-fact requirem ent.

Mera’s injury is also “fairly traceable to the challenged action” of Glendale. Lujan v. Defs. of Wildlife
, 504 U.S. 555, 560 (1992) (citation and alterations om itted). The com plaint

a l l e g e s that Glendale “approved the installation” of the

m onum ent, which was unveiled t o the public three weeks later. Mera avoids using G lendale ’ s Ce n tral Park and its Adult R ecreation Center “as a result o f hi s al ienation due to the Public Monum ent.” These allegations “establish a line o f causation” b etween Glendale’s a c tions in approving the installation of the m onum ent and Mera’s al l e ged harm from the presence of the m onum ent in the park. M a y a v. Centex Corp.
, 658 F.3d 1060, 1070 (9th Cir. 2011) (citation om itted).G I N GE R Y V

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Finally, Mera has dem onstrated “that a favorable decision is likely to redress” his injury. Barnes-Wallace v. City o fSan Diego
, 530 F.3d 776, 784 (9th C ir. 2008). If Glendale is ordered to rem ove the m onum ent from the park, Mera likely would not feel “alienat[ed] d ue to the Public Mo nu ment” o r need to avoid using the park. Therefore, M e r a ha s satisfied the redressability requirem ent of Article III standing.

In sum , we conclude that Mera has Arti c l e III standing, and th e district court erred in concluding otherwise. 3 If Plaintiffs truly lacked standing, the district court w ould not have had jurisdiction t o r each the m erits of their com plaint. See Fleck & Assocs., Inc. v. City of Phoenix
, 471 F.3d 1100, 1106 (9th Cir. 2006). However, because we conc l u d e that Mera does have standing, we m ay proceed to consider the district court’s determ ination that Plaintiffs failed to st a t e a claim upon which relief m ay be g rant ed

. S ee, e.g. , Cal. ex rel. Imperial Cty. Air Pollution Control Dist. v. U.S. Dep’t of the Interior
, 767 F.3d 7 81, 787 ( 9 th Cir. 2014) (disagreeing with th e d istrict court’s finding that plaintiffs lacked standing, but nonetheless affirm ing the jud g m ent); Info. Handling Servs., Inc. v. Def. Automated Printing Servs.
, 338 F.3d 1024, 1031 (D.C. Cir. 2003) (disagreeing w ith the district c o urt’s finding that plaintiff lacked standing but p r o c ee ding to the

m erits of the dispute).

3 Because Mera has standing and “the p re s e n c e in a suit o f even o ne pa rt y w i th standing suffices to m ake a claim justiciable,” we need not address whether GAHT-US satisfies the requirem ents for organizational standing. M

ont. Shooting Sports Ass’n v. Holder
, 727 F.3d 975, 981 (9th Cir. 2013) (citation om i tted).G I N GE R Y V

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B. Failure to State a Claim

The district court concluded that Plaintiffs had fa i l e d to state a claim that Glendale’s installation of th e Com f ort W om en m onum ent i s preem pted under the foreign affairs doctrine. S

ee U.S. Const. art. VI, cl. 2 (Suprem acy Clause). Viewing the com

plaint’s factual allegations in the light m ost favorable to Plaintiffs, we conclude th at G lendale’s installation o f the m onum ent concerns an area of traditional
state responsibility an d does not intrude on the federal
governm ent’s foreign affairs power. W e therefore agree with the district court tha t Plaintiffs have not plausibly claim ed that Glendale’s actions are preem pted.

It is well established that the federal g overnm ent holds the exclusive authority to adm inister foreign affairs. Movsesian

v. Victoria Versicherun g AG
, 670 F.3d 1067, 1071 (9th Cir. 2012) (en banc); see also United S tates v. Pink
, 315 U.S. 203, 233 (1942) (“Power over external affairs is not shared by the States; it is vested in the national governm ent exclusively.”). Under the foreign affairs doctrine, state laws that intrude on this exclusively federal power are preem p ted, under either the doctrine of conflict preem p tion or the doctri n e of field
preem ption. Movsesian
, 6 7 0 F.3d at 1071. 4 Under the doctrine of conflict pr e e mp t i o n, a state action m ust yield to federal executive authority where “there is evidence of clear conflict b etwe e n the policies adopted by the two.” A m

. Ins.

4 Municipalities are subject t o the sam e rules of preem p tion as the states. See Hines v. D a v i d

o w itz
, 312 U.S. 52, 63 (1941) (“Our system o f
governm ent is such that the interest of the cities, counties and st a t e s , n o less than the i nterest of the people o f the whole nat i o n , im p e ratively requires that fede ral power in the field affecting foreign relations be l eft entirely free from

local interference.”).G I N GE R Y V

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Ass’n v. Garamendi
, 5 39 U.S. 396, 421 (2003). Under the doctrine of field preem

ption, e v e n in the absence o f any express federal policy, a state action m ay be p reem pted where (1) its “real purpose” does not concern an area o f traditional
state responsibility, and (2) it intrudes on the federal
governm ent’s foreign affairs power. Movsesian
, 670 F

. 3d at 1074–75. Here, Pl a i n ti ffs d o n o t argue that G lendale’s installation of the m onum ent c o n flicts with the federal
governm ent’s p olicy on the Com fort W om en dispute; indeed, the com plaint alleges that the United States has “consistently sought to avoid” taking a position o n the issue. Instead, Plaintiffs invoke the doctrine of field preemption.

Applying the doctrine of field preem ption, we have f

ound that a state or local governm ent is m ore likely to exceed the l i m its of its power when it creates rem edial schem es o r regulations to address m a t ters of foreign affairs. In Von Saher v. N

orton Simon Museum of

Art
, 592 F.3d 954 (9th Cir. 2010), for exam

ple, we held that a California statute, which extended the statute of lim itations for civil actions to recover looted Holocaust-era artwork, was preem pted because the
statut e would often require courts to review the reparation decisions of foreign nations, and thus intruded on the federal
governm ent’s power “to m ake and resolv e wa r

. ” Id. at 965–68. More recently, in Movsesian
, our Court
, s i t t ing en banc, concluded that a California statute, which vested California courts with jurisdiction over certain insurance claim s brought b y “Arm en ian g enocide victim [s]” and extended the statute of lim itations for those claim s, intruded

o n th e field of foreign affairs. 670 F.3d at 1076–77. We explained tha t the California statute not only “expresses a distinct political point of v iew on a specific m atter of foreign policy,” but also “subject[s] foreign insurance com p anies to lawsuits in California” and would require courts applying theG I N GE R Y V

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statute to eng a g e in “a highly politicized inquiry into the conduct of a foreign nation.” Id. at 1076.

What we have not considered, however, is the e x t e n t to which a state or local governm ent m ay address foreign affairs through expressive displays or events, rather th a n through

rem edies o r regula t i on s. In Movsesian
, f or exam p le, we

em phasized that the law at issue was not “m erely expressive” and declined to “offer any o pinion about California’s ability
to express support for Arm enians by, for exam ple, d eclaring

a comm em orative day.” Id. at 1077 & n.5; see a lso Nat’l Foreign Trade Council v. Natsios
, 181 F .3d 38, 61 n.18 (1st Cir. 1 999) (holding that the Massachusetts Burm a law, which

r estricted the ability of Massachusetts and its agenci e s t o purchase goods or services f rom com panies that do business wi th Burm a, was preem

pted but noting that “[w]e do n o t consider here whether Massachusetts w ould be authorized to pass a resoluti o n c ondemning Burm a’s hum an rights record but taking no other action with r egard to Burm a”), aff’d sub

nom. C rosby v. Nat’l Foreign Trade Council
, 530 U.S. 363 (2000). Here, we confront a variant of the issue we left open in Movsesian : whether the Suprem acy Clause preem pts a local governm ent’s expression, through a public m onum ent, of a particular viewpoint on a m atter related to foreign affairs. Under the circum stances o f this case, w e conclude that it does
not.

First, Glendale’s establishm ent of a public m onum ent to advocate against “violations of hum an rights” is well within the traditional responsibilities of state and local governm ents. “Gove rn me nts have long used m onum ents to speak to the public.” Pleasant Grove City v. Summum
, 555 U.S. 4 6 0, 470 (2009). In addition, “[c]ities, counties, and states h ave a long tradition of issuing pronouncem ents, proclam ations, andG I N GE R Y V

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statem ents of principle on a wide range of m atters of public interest, including other m atters subject to preem ption, such

as foreign policy and imm igration.” Alameda Newspapers, Inc

. v

. Ci ty o

f Oakland
, 95 F.3d 1406, 1414 (9th Cir. 1996). For exam p le, local governm ents have established m em o rials for victim s of the Holocaust 5 and the Arm en ian genocide, 6 and leaders o f lo c a l governm ents have p ublicly taken positions on m atters of foreign affairs, from S outh African apartheid in the 1980s 7 to the recent actions of Boko Haram

. 8 He r e, by dedicating a local m onum ent to the plight of the Com fort W om en in W orld W ar II, Glendale has joined a long list of other Am erican cities that have likewise used public

m onum ents to express their views on event s that occurred beyond our borders.

In Plaintiffs’ view, however, Glendale’s “real purpose” is to insert itself into foreign affairs. W e disagree. According
to the m onum ent’ s p l aque, Glendale’s self-stated purposes

are: (i) to preserve the “m e mo ry ” of the Com fort W o m en, (ii) to “celebrate” Gl en d ale’s proclam ation of a “Com f ort W om en Day” and the House of Representatives’ decision to pass a re s o l u tion addressing historical responsibility for the

5 See Holocaust Memorials
, Ctr. for Holocaust & Genocide Stud., Univ. of Minn., http://ittybittyurl.com /2EI6 (last visited July 27, 2016).

6 See Monument at Bicknell Park in Montebello, California , Arm enian Nat’l Inst., http://ittybittyurl.com /2EI3 (last visited July 27, 2016).

7 See Bill Boyarsky, Mayor’s Blast at Apartheid Affirms Appeal to Blacks , L.A. Tim es, Jan. 20, 1985, http://ittybittyurl.com /2EI4.

8 See Press Release, City of Atlanta, Statem ent o f Mayor Kasim Reed o n the K i dnap p ed Nigerian Girls (May 7
, 2014), available at http://ittybittyurl.com

/2EI5.G I N GE R Y V

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Com fort W om en , a nd (iii) to express “sincere hope” that “these un conscionable violations o f hum an rights shall never recur.” T hese purposes—m em orializing victim s and expressing hope that others do not suffer a sim ilar fate—are entirely consistent with a local governm ent’s traditional function of comm

unicating its views and values to its citizenry. Moreover, even if Glendale’s purpose was, as o ne City Council m em

ber stated, to “ p ut the city of Glendale on the international m ap,” this p urpose does not conflict with the role local governm ents have tradition a l l y played in public discourse related to foreign affairs. Cf. Farley v. He a l e y , 431 P .2d 650, 653 (Cal. 1967) (“Even in m atters of foreign policy it is not uncomm on for local legislative bodies to m ake their positions known.” ). Therefore, Glendale’s “real purpose” in instal l ing the Com fort W om en m o num ent

c o ncerns “an area of traditional state responsibility .” Movsesian , 670 F.3d at 1075.

S econd, even if Glendale were acting outside an area o f
traditional state responsibility, Plaintiffs have not plausibl y alleged that Glendale’ s actions “intrude[] on the federal
gov ernm ent’s foreign affairs power.” Id. at 1074. “To intrude on the federal governm ent’s foreign affairs power, a [state’s action] m

ust h a v e m ore than som e incidental o r indirec t effect on foreign affairs.” Cassirer v. ThyssenBornemisza Collection Found.
, 73 7 F.3d 613, 617 (9th Cir. 2013) (citation om itted). While Plaintiffs broadly assert that the m onum ent “threatens to n egativel y a ffect U.S. foreign relations with Japan,” Plaintiffs d o not support this assertion with specific allegations that Glendale’s actions have had, o r

are likely to have, any appreciab l e effect on foreign affairs. See B ell Atl. Corp. v. Twombly
, 550 U.S. 544, 557 (2007). At

m ost, Plainti ffs allege that various Japanese officials have expressed disapproval of the m o num ent. However, PlaintiffsG I N GE R Y V

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have not further alleged that this disapproval has in any way affected relations between the United States and Japan. In addition, P laintiffs do not allege that the federal governm ent has e x p ressed any view on the m onum ent—much less

com plained of interference with its diplom atic agenda. Thus, Plaintiffs h ave failed to plausibly allege that G lendale’s installation of th e mo num ent has had “m ore than som e incidental or ind i r e ct effect on foreign affairs.” C assirer
, 737 F.3d at 617 (citation om itted).

M o r e over, in contrast to state actions we have f ound
preem pted, Glendale has taken no action that w ould affect the legal rights and responsibilities of any individuals or foreign
governm ents. For exam p l e , Glendale has not, as in Von Saher or M

o vsesian
, created a cause of action f or v ictim s

a ffe cted b y the Com fort W om en program , or extended th e statute o f lim itations f

or any existing cause of acti on that

m ight provide relief to these individuals. See Movsesian
, 670 F .3d at 1076–77; Vo n Saher
, 592 F .3d at 965–68. Nor has G lendale im

posed any regulatory re s tr ictions o n the exchange of go o d s m anufactured by parties who m ay have played a role in the Com fort W om en p rog r a m. See Crosby
, 5 30 U. S. at 373–74. R ather, by erecting a sym bolic display

comm em orating what it v iews as a historical tragedy, Glendal e has appropriately exercised the expressive powers of a local governm ent and stopped short o f i n t erfering with the federal governm ent’s foreign affairs power.

Glendale’s installatio n o f th e C o m f ort W om en m o num ent

concerns an ar e a of traditional state responsibility and does
not intrude o n the federal governm ent’s foreign affairs power. As a result, Plaintiffs have failed to state a c l a im thatG I N GE R Y V

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Glendale’s actions are preem pted. See Movsesian
, 670 F.3d at 1074. 9

C. Leave to Amend

Finally, Plaintiffs argue that the district court abused its discretion by dism issing their com plaint without gr anting leave to am end. “Dism issal without leave to am end is proper if it is clear that the com plaint coul d n o t be saved by

am endm ent.” Kendall v. Visa U .S.A., Inc.
, 518 F.3d 1042, 1051 (9th Cir. 2008). Before the district court, Plaintiffs did
not request leave to a me nd, and the district court found that

no am e n dme nt could cure the com plaint’s deficiencies. On appeal, P laintiffs have not identified any additional allegations that could save their com plaint from d ism issal. Accordingly, we conclude th at the district court was within its discretion to dism iss Plaintiffs’ com plaint without l e a v e to

am end.

9 As an alternative basis for affirm i ng the district court, Judge Korm an concludes that Plaintiffs l a c k a c ause of action under 42 U.S.C. § 1983. In Judge K orm an’s view, the foreign affairs provisions of the Constitution do not create an individual right enforceable under Section 1983. He m ay very well be correct. However, w e decline to addre s s this issue of first im pression for our Court. See Gerling Glob. Reinsurance Corp. of Am. v. Garamendi
, 400 F.3d 803, 810–11 ( 9th Cir.), as amen d e d on d enial of reh’g
, 4 10 F .3d 531 (9th Cir. 2005). It was not raised by either p a rt y to the district c o u rt o r b efore us, and the district court d id not rule on t h is basis. “[W ]e are hesitant to address an issue without th e be n e fi t of any briefing from the parties.” Bl e d soe v. B ledsoe (

I n re Bledsoe ), 569 F.3d 1106, 1113 (9th Cir. 2009). In any event, we need not reach the issue in this appeal, for “[w]e m ay affirm th e d i s tr ict court’s dism i ssal o n any ground that is supported by the record.” H artmann , 707 F.3d at 1121.G I N GE R Y V

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IV. Conclusion

The Constitut i o n places im portant lim its on a

m unicipality’s ability to engage in m atters related to foreign affairs. W e conclude that Glendale has not exc e e ded those lim its by installing a m onum ent to comm em orate the Com f ort W om en

. Therefore, the district court properly dism issed Plaintiffs’ preemption claim

.

AFFIRMED.

KORMAN, District Judge, concurring:

While I agree that Koichi M e r a , o ne of the plaintiffs,

m eets th e “irred

u cib le co n s titutional m inim um ” requirem ents t o allege Article III standing, Lujan v. Defs. of Wildlife
, 504 U.S. 555, 560 (1992), and do n ot take issue with th e

m anner in whi ch the m ajority resolves the m erits of the appeal, I write separately to suggest that the plaintiffs have
not alleged a v alid cause of action that anchors their claim o f foreign affairs p reem

ption. Sim

ply m outhing the words foreign affairs preem

ption does not do it. The p laintiffs assert only in the vaguest m anner that their c om plaint is brought under 42 U.S.C. § 1983. Nevertheless, Section 1983 cannot support their cause of action. Nor is an e qui t ab le cause o f action to restrain regulatory action in violation o f the Constitution available here.

I. Section 1983.

The availability o f a c au s e of action under Section 1983 depends u p on whether a plaintiff has alleged “the d eprivationG I N GE R Y V

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of any rights
, privileges, or imm unities secured by the Constitution and laws.” 42 U .S.C. § 1 983; see also Golden State Transit Corp. v. City of Los Angeles (Golden State II)
, 493 U.S. 103, 105 (1989). T he right being deprived here cannot be found in the S uprem acy Clause, which “is not the ‘source of any federal rights.’” A rmstrong v. Exceptional Child Ctr., Inc.
, 1 3 5 S. Ct. 1378, 1383 (2015) (quoting Golden State II

, 493 U.S. at 10 7 ); see also Associated Gen. Contrac to r

s, San Diego Chapter, Inc., Apprenticeship & Training Tr. Fund v. S

mith
, 74 F.3d 926, 931 (9th Cir. 1 996) (“[P]reem ption of state law under the Suprem acy Clause—being grounded not o n individual rights but instead

on considerations of po we r

—will n o t [itself] support an action under section 1983 . . . .” (quoting Segundo v. City of Rancho Mirage
, 813 F.2d 1 387, 1394 (9th Cir. 1987)); White Mountain Apache Tribe v. Williams , 810 F.2d 844, 848 (9th Cir. 198 5 ) (“W e believe that § 1983 was not intended to

encom pass those constitutional p rovisions which allocate power between the state and federal governm ent.”).

Moreover, n either the Supr eme C ourt nor the Ninth Circuit has ever recognized that the foreign affairs provisions of the Constitution, which certainly do not confer any rights

on their face, see, e.g. , U.S. Const. art. II, § 2, cls. 1–2; id. art. I, § 8
, cls. 1, 3, 4, 10–14, contain an im plicit individual right. Indeed, in Gerling Gl o bal R einsurance Corporation of America v. Garamendi
, 4 00 F .3d 8 03 (9th C ir

. 2 0 0 5 ), we observed that the d istrict court “m ay have been correct” in the “abstract” when it conc l ud e d that the foreign affairs power did n ot “im

p licate a right, privilege o r imm unity secured by the Constitu t io n or laws of the United States,” id. at 810. Nevertheless, because w e concluded they were pre v a i ling
p arti es for reasons that need not be discussed, the plainti ffs

were e n t itled to an award of counsel fees pursuant toG I N GE R Y V

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42 U.S.C. § 1 988. While we did not d efinitively resolve the issue, we “assum [ed] that the foreign affairs p ower does not confer rights within the m eaning of § 1 983.” Gerling
, 400 F.3d at 807. Judge Graber, who concurred in the result, directly addressed the issue. She obs e rved without qualific ation that “the foreign affairs power, like the Suprem acy Clause, creates no individual rig h t s enforceable under 28 U.S.C. § 1983.” Id. at 811. Because I agree that the foreign affairs provision s create no individual rights, the plaintiffs lack a cause of action pursuant to 42 U.S.C. § 1983.

II. Equitable Cause of Action.

Un lik e S ectio n 1 9 83, the availability o f an equitable cau s e of action to enjoin purportedly unconstitutional conduct does
not nec e s s a rily rely upon the f act that a particular constitutional provision confers an i n d ividual right o n the plaintiff. F

ree Enter. Fund v. Pub. Co. A ccounting Oversight Bd. , 561 U.S. 477, 491 n.2 (2010). Instead, in a preem ption
case, the availability of such a cause of act i o n hinges on the plaintiff’s b eing subject to an enforcem ent or other regulatory action. The Suprem e Court has long recognized that a plain tiff m ay bring a suit to enjoin unconstitutional regulatory

c o n duct. Courts often cite as the forebear of that typ e of equitable action the case of Ex p ar t e Young
, 209 U.S. 123 (1908 )

. S

e e, e.g. , Verizon Md. Inc. v. P ub. Serv. C omm’n
, 535 U.S. 635, 645 (2002). Young was not a preem ption case; it involved a claim by sh a r eh o l d er s o f a railroad that a state law regulating rai l r o ad rates violated, inter alia
, the Fourteenth Am endm ent’s Due Process Clause. N evertheless, the Young Court held that “individuals who, as officers of the state,

. . . threaten and are about to comm ence proceedings

. . . to enforce against parties affected an unconstitutional act, violating the Federal Constitution, m ay be enjoined by aG I N GE R Y V

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Federal court o f e quity from such action.” 209 U.S. at 155–56.

The Suprem e Court h a s applied that holding in
preem ption cases, m aking it clear that, in such c ases, the equitable cause of action is available only t o e n join acts o f regulation. See Armstrong
, 135 S

. Ct. at 1 3 8 4 ( “[W ] e have long recognized [that] if an individual c laim s federal law imm unizes him from state regulation, the court m ay issue an injunction upon finding the sta t e regulatory actions
preem pted.”); see also, e.g. , Ra y v. Atl. Richfield Co.
, 435 U .S. 1 51, 155 (1978); Va. O ffice for Prot. & Advocacy v. Stewart
, 563 U.S. 247, 255–56 (2011). In S haw v. Delta Air Lines, Inc.
, 463 U.S. 8 5 (1983), the Suprem e Court reiterated the basis f

or these types of suits: “A plaintiff who seeks injunctive relief from state regulation, on the ground that such regulation is pre-em

pted b y a federal s t a tute

. . . presents a federal question which the fed er al courts have jurisdiction under 28 U.S.C. § 1331 to resolve ,” id. at 9 6 n.14; see also Golden State II

, 4 9 3 U. S. at 113 (Kennedy, J., dissenting) (“[A] private party can assert an imm unity from state o r local regulation on the ground that the Constitution

. . . allocate[s] the power to enact the regulation to the N ational Governm ent, to the ex clusion of the States.”); cf. Alameda Newspapers, Inc. v. City of Oakland
, 95 F.3d 1 406, 1413 (9t h Cir. 1 996) (“If a m unicipality’s action [in a case asserting preem ption by the National Labor Relations Act] does n ot rise to the level o f regulation, it is not p reem pted.”). Although the ShawCourt dressed the inquiry in the l a n guage of “jurisdiction,” rather than of “cause o f action,” the two inquiries are functionally the sam e in asking why a plaintiff should be allowed to bring the suit in federal court. Nevertheless, while the questions are intertwined, the Suprem e Court recently suggested that the cause-of-action inquiry is not jurisdictional. See Le x markG I N GE R Y V

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Int’l, Inc. v. Static Control Components, Inc.
, 134 S. Ct. 1377, 1387 n.4 (2014).

Mor e o ver, the Suprem e Court’s cases dealing with
preem ption specifically in the foreign affairs dom ain d o not suggest the availability of an equitable cause of action outside of th e regulatory context. See, e.g. , Am. Ins. A ss’n v. Garamendi
, 539 U.S. 396, 409–12 (2003) (insurance

com panies brought action alleging preemption of California l a w requiring disclosure of p olicies issued to persons in Europe in effect between 1920 and 1945); Crosby v. Nat’l Foreign Trade Council
, 530 U.S. 3 63, 367, 370–71 (2000) ( c o m p anies who did business w ith Burm a brought actio n

a lleging preem

ption of a Massachusetts statute, the purp os e of which was to prevent or discourage them from transacting bus i ness with Burm a); Z schernig v. Miller
, 389 U.S. 429, 432–33 (1968) (str iking down state law regulating the inheritance rights of f

oreign beneficiaries o f O regon residents because it did so in a w ay that constituted “ a n i ntrus ion by the State into the fi e ld o f f oreign affairs which the Constitution entrusts to the President and the Congress”). Nor do our cases in this area suggest a b roader cause o f action. S e e, e.g. , Movsesian v. Victoria Versicherung A G
, 6 70 F.3d 1067, 1070–71, 1077 (9th C ir. 2012) (en banc) (foreign insurance com

panies could raise defensively a challenge t o a Ca lifornia law that subjected them to suits in California “b y o verriding forum -selection provisions and greatly extending the statute of lim itations for a narrowly defined class of claim s” in a way that constituted an intrusion

on the conduct of foreign policy); Von Saher v. Norton Simon Museum ofArt at Pasadena
, 592 F.3d 9 54, 957–59 (9th Cir. 2009) (sim ilar); Deutsch v. Turner Corp.
, 324 F.3d 6 92, 703, 716 (9th Cir. 2003) (sim ilar).G I N GE R Y V

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In sum , this case involves a p urely expre s s i v e, nonregulatory action by the City of Glendal e th a t is n ot alleged to, and does not, im

plicate any r i g h t conferred by the Constitution or laws of the United States, the predicate f or a Section 1983 cause of action. Moreover, because the conduct of the C ity of Glendale does not subject plaintiffs t o an enfor c e m ent or other regulatory action, it does n ot com e within the category of cases in wh ich an equitable cause o f action w ould be available to restrain conduct that touches on the power of the President or Congress in the area of foreign affairs.