FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHIKO SHIOTA GINGERY,

an individual; KOICHI MERA,

an individual; GAHT-US

CORPORATION, a California

non-profit corporation,

Plaintiffs-Appellants,

v.

CITY OF GLENDALE, a

municipal corporation,

Defendant-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 Submitted June 7, 2016

Pasadena, California

Filed August 4, 2016

Before: Stephen Reinhardt, and Kim McLane Wardlaw,

Circuit Judges, and Edward R. Korman,* Senior District

Judge.

* The Honorable Edward R. Korman, Senior District Judge for the U.S.

District Court for the Eastern District of New York, sitting by designation.
2 GINGERY V. CITY OF GLENDALE

Opinion by Judge Wardlaw;

Concurrence by Judge Korman

SUMMARY**

Civil Rights

The panel affirmed the district court’s dismissal of an

action brought by a Japanese-American resident of Los

Angeles and a non-profit organization challenging

the City of Glendale’s installation of a public monument

commemorating the “Comfort Women,” an unknown number

of women that South Korea asserts, but Japan disputes, were

forced to serve as sexual partners to members of the Japanese

Imperial Army during World War II and the decade

preceding it.

The panel first held that plaintiffs had standing because

the “inability to unreservedly use” Glendale’s Central Park,

where the monument was installed, constituted an injury in

fact for purposes of Article III standing.

Viewing the complaint’s factual allegations in the light

most favorable to plaintiffs, the panel concluded that

Glendale’s installation of the monument concerned an area of

traditional state responsibility and did not intrude on the

federal government’s foreign affairs power. The panel

therefore agreed with the district court that plaintiffs had not

plausibly claimed that Glendale’s actions were preempted

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

been prepared by court staff for the convenience of the reader.
GINGERY V. CITY OF GLENDALE 3

under the foreign affairs doctrine. The panel held that the

Supremacy Clause does not preempt a local government’s

expression, through a public monument, of a particular

viewpoint on a matter related to foreign affairs.

Concurring, Judge Korman wrote separately to suggest

that the plaintiffs had not alleged a valid cause of action that

anchored their claim of foreign affairs preemption.

COUNSEL

Ronald S. Barak (argued), Law Offices of Ronald S. Barak,

Pacific Palisades, California; Maxwell M.Blecher,Donald R.

Pepperman, and Taylor C. Wagniere, Blecher Collins

Pepperman & Joye, Los 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, Fleishman & Fisher, Los Angeles,

California, for Amicus Curiae the Global Alliance for

Preserving the History of WW II in Asia.

Paul L. Hoffman and Catherine Sweetser, Schonbrun

DeSimone Seplow Harris & Hoffman LLP, Venice,

California, for Amicus Curiae the Korean Forum of

California.
4 GINGERY V. CITY OF GLENDALE

OPINION

WARDLAW, Circuit Judge:

In 2013, the City of Glendale installed a public monument

commemorating the “Comfort Women,” an unknown number

of women that South Korea asserts, but Japan disputes, were

forced to serve as sexual partners to members of the Japanese

Imperial Army during World War II and the decade

preceding it. Plaintiffs, a Japanese-American resident of Los

Angeles and a non-profit organization, claim that Glendale’s

installation of the “Korean Sister City ‘Comfort Woman’

Peace Monument” intrudes on the federal government’s

exclusive foreign affairs power and is thereby preempted

under the foreign affairs doctrine. We conclude that

Plaintiffs have standing to challenge Glendale’s installation

of the monument but have failed to state a claim that

Glendale’s actions are preempted. Accordingly, we affirm

the district court’s judgment dismissing Plaintiffs’

preemption claim with prejudice.

I. Factual and Procedural History

For several decades, Japan andSouthKorea have engaged

in a heated and politically sensitive debate concerning

historical responsibility for the Comfort Women. South

Korea has urged Japan to redress grievances relating to the

Comfort Women. Japan denies responsibility for the

recruitment of the Comfort Women and asserts that, in any

event, all World War II-related claims, including those

related to the Comfort Women, were resolved pursuant to

postwar treaties between Japan and the allied nations. 

According to Plaintiffs’ complaint, the United States has

generally “avoid[ed] taking sides” and encouraged Japan and
GINGERY V. CITY OF GLENDALE 5

South Korea to resolve the dispute through “further

government-to-government negotiations.”

On July 9, 2013, the Glendale City Council approved the

installation of the “‘Comfort Woman’ Peace Monument” in

Glendale Central Park, a public park in Glendale, California. 

Unveiled three weeks later, the monument is a 1,100-pound

bronze statue of a young girl in Korean dress sitting next to

an empty chair with a bird perched on her shoulder. 

Alongside the statue is a bronze plaque, which reads in part:

In memory of more than 200,000 Asian and

Dutch women who were removed from their

homes in Korea, China, Taiwan, Japan, the

Philippines, Thailand, Vietnam, Malaysia,

East Timor and Indonesia, to be coerced into

sexual slavery by the Imperial Armed Forces

of Japan between 1932 and 1945.

And in celebration of proclamation of

“Comfort Women Day” by the City of

Glendale on July 30, 2012, and of passing of

House Resolution 121 by the United States

Congress on July 30, 2007, urging the

Japanese Government to accept historical

responsibility for these crimes.

It is our sincere hope that these

unconscionable violations of human rights

shall never recur.

Plaintiffs Michiko Shiota Gingery, GAHT-US

Corporation (“GAHT-US”), and Koichi Mera claim that the

monument interferes with the federal government’s foreign
6 GINGERY V. CITY OF GLENDALE

affairs power and violates the Supremacy Clause. Plaintiffs’

complaint further alleges that by installing the monument,

Glendale “has taken a position in the contentious and

politically-sensitive international debate concerning the

proper historical treatment of the former comfort women.” In

Plaintiffs’ view, Glendale’s monument disrupts the federal

government’s foreign policy of nonintervention and

encouragement of peaceful resolution of the Comfort Women

dispute. The complaint seeks an order declaring Glendale’s

installation ofthe monument unconstitutional and compelling

Glendale to remove the monument from public property.1

The district court dismissed Plaintiffs’ constitutional

claim with prejudice. The district court first determined that

Plaintiffs lacked standing. Alternatively, the district court

found that “[e]ven if Plaintiffs possessed Article III standing,

dismissal is still appropriate because Plaintiffs have failed to

allege facts that state a cognizable legal theory.” The district

court reasoned that the complaint failed to allege facts that

could plausibly support the conclusion that the monument

conflicted with the executive branch’s foreign policy. 

Plaintiffs timely appeal.

II. Standard of Review

“The district court’s determination whether a party has

standing, and whether there is subject matter jurisdiction, is

reviewed de novo.” Hajro v. U.S. Citizenship & Immigration

Servs., 811 F.3d 1086, 1098 (9th Cir. 2016). “We review de

1 Plaintiffs also claim that the installation of the monument violates the

Glendale Municipal Code. The district court declined to exercise

supplemental jurisdiction over this claim and dismissed it without

prejudice. 
GINGERY V. CITY OF GLENDALE 7

novo a district court’s dismissal for failure to state a claim

under Rule 12(b)(6).” Harkonen v. U.S. Dep’t of Justice,

800 F.3d 1143, 1148 (9th Cir. 2015). “We may affirm the

district court’s dismissal on any ground that is supported by

the record, whether or not the district court relied on the same

ground or reasoning ultimately adopted by this court.” 

Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114,

1121 (9th Cir. 2013).

III. Discussion

A. Standing

We must first determine whether Plaintiffs have standing

to pursue their preemption claim. To establish Article III

standing, Plaintiffs must demonstrate “(1) the existence of an

injury-in-fact that is concrete and particularized, and actual or

imminent; (2) the injury is fairly traceable to the challenged

conduct; and (3) the injury is likely to be redressed by a

favorable court decision.” Ctr. for Biological Diversity v.

U.S. Fish & Wildlife Serv., 807 F.3d 1031, 1043 (9th Cir.

2015). “In many cases the standing question can be answered

chiefly by comparing the allegations of the particular

complaint to those made in prior standing cases.” Allen v.

Wright, 468 U.S. 737, 751–52 (1984).2

Mera is a Japanese-American resident of Los Angeles. 

Mera “disagrees with and is offended by the position

espoused by Glendale” through the monument. Mera “would

2 While this appeal was pending, Plaintiffs notified us that Gingery had

died. As the parties agree, Gingery’s claim for injunctive and declaratory

relief is therefore moot. See Kennerly v. United States, 721 F.2d 1252,

1260 (9th Cir. 1983).
8 GINGERY V. CITY OF GLENDALE

like to use Glendale’s Central Park and its Adult Recreation

Center” but now “avoids doing so.” Furthermore, “the

presence of the Public Monument diminishes Mera’s

enjoyment of the Central Park and its Adult Recreation

Center.”

Mera’s allegations parallel those of other plaintiffs,

particularly inEstablishment Clause and environmental cases,

who have satisfied the injury-in-fact requirement by alleging

that their use and enjoyment of public land has been

impaired. In the context of challenges to governmentsponsored displays of religion on public property, we “have

repeatedly held that inability to unreservedly use public land

suffices as injury-in-fact.” Buono v. Norton, 371 F.3d 543,

547 (9th Cir. 2004); see also Ellis v. City of La Mesa,

990 F.2d 1518, 1523 (9th Cir. 1993) (holding that a plaintiff

satisfied the injury-in-fact requirement by alleging that he

was “offended” by the presence of a cross on public property,

which he “otherwise would visit” but instead “avoids”). 

Similarly, in environmental cases, plaintiffs generally satisfy

the injury-in-fact requirement 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. Laidlaw Envtl. Servs., Inc.,

528 U.S. 167, 182–83 (2000) (holding that plaintiffs who

“would use” allegedly polluted areas located several miles

from their homes, but “refrained” from doing so, had

established injury in fact); Nat. Res. Def. Council v. EPA,

542 F.3d 1235, 1245 (9th Cir. 2008) (injury in fact

established where plaintiffs alleged that their “use and

enjoyment” of certain waterways “has been diminished” due

to pollution). Although Mera asserts neither an

Establishment Clause nor environmental claim, cases from

these contexts may properly guide our evaluation of his

alleged injury. See Valley Forge Christian Coll. v. Ams.
GINGERY V. CITY OF GLENDALE 9

United for Separation of Church & State, Inc., 454 U.S. 464,

488 (1982) (rejecting the argument that Establishment Clause

cases create any “special exceptions” to the requirements of

Article III standing).

Consistent with these precedents, we conclude that

Mera’s “inability to unreservedly use” Glendale’s Central

Park constitutes an injury in fact for purposes of Article III

standing. Buono, 371 F.3d at 547. Like the Establishment

Clause plaintiffs in Ellis and Buono, Mera allegedly “avoids”

using certain public land, which he has previously visited and

“would like to use” again, because he is “offended” by the

government-sponsored display it contains. See id. at 546–47;

Ellis, 990 F.2d at 1523. And like the plaintiffs in

environmental cases, Mera has alleged both that he avoids

public land that he would like to use again, and that his

enjoyment of the park and the park’s facilities has been

“diminshe[d].” See Laidlaw, 528 U.S. at 182–83; Nat. Res.

Def. Council, 542 F.3d at 1245. These allegations satisfy the

injury-in-fact requirement.

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 omitted). The complaint

alleges that Glendale “approved the installation” of the

monument, which was unveiled to the public three weeks

later. Mera avoids using Glendale’s Central Park and its

Adult Recreation Center “as a result of his alienation due to

the Public Monument.” These allegations “establish a line of

causation” between Glendale’s actions in approving the

installation of the monument and Mera’s alleged harm from

the presence of the monument in the park. Maya v. Centex

Corp., 658 F.3d 1060, 1070 (9th Cir. 2011) (citation omitted).
10 GINGERY V. CITY OF GLENDALE

Finally, Mera has demonstrated “that a favorable decision

is likely to redress” his injury. Barnes-Wallace v. City of San

Diego, 530 F.3d 776, 784 (9th Cir. 2008). If Glendale is

ordered to remove the monument from the park, Mera likely

would not feel “alienat[ed] due to the Public Monument” or

need to avoid using the park. Therefore, Mera has satisfied

the redressability requirement of Article III standing.

In sum, we conclude that Mera has Article III standing,

and the district court erred in concluding otherwise.3If

Plaintiffs truly lacked standing, the district court would not

have had jurisdiction to reach the merits of their complaint. 

See Fleck & Assocs., Inc. v. City of Phoenix, 471 F.3d 1100,

1106 (9th Cir. 2006). However, because we conclude that

Mera does have standing, we may proceed to consider the

district court’s determination that Plaintiffs failed to state a

claim upon which relief may be granted. See, e.g., Cal. ex

rel. Imperial Cty. Air Pollution Control Dist. v. U.S. Dep’t of

the Interior, 767 F.3d 781, 787 (9th Cir. 2014) (disagreeing

with the district court’s finding that plaintiffs lacked standing,

but nonetheless affirming the judgment); Info. Handling

Servs., Inc. v. Def. Automated Printing Servs., 338 F.3d 1024,

1031 (D.C. Cir. 2003) (disagreeing with the district court’s

finding that plaintiff lacked standing but proceeding to the

merits of the dispute).

3 Because Mera has standing and “the presence in a suit of even one

party with standing suffices to make a claim justiciable,” we need not

address whether GAHT-US satisfies the requirements for organizational

standing. Mont. Shooting Sports Ass’n v. Holder, 727 F.3d 975, 981 (9th

Cir. 2013) (citation omitted).
GINGERY V. CITY OF GLENDALE 11

B. Failure to State a Claim

The district court concluded that Plaintiffs had failed to

state a claim that Glendale’s installation of the Comfort

Women monument is preempted under the foreign affairs

doctrine. See U.S. Const. art. VI, cl. 2 (Supremacy Clause). 

Viewing the complaint’s factual allegations in the light most

favorable to Plaintiffs, we conclude that Glendale’s

installation of the monument concerns an area of traditional

state responsibility and does not intrude on the federal

government’s foreign affairs power. We therefore agree with

the district court that Plaintiffs have not plausibly claimed

that Glendale’s actions are preempted.

It is well established that the federal government holds the

exclusive authority to administer foreign affairs. Movsesian

v. Victoria Versicherung AG, 670 F.3d 1067, 1071 (9th Cir.

2012) (en banc); see also United States v. Pink, 315 U.S. 203,

233 (1942) (“Power over external affairs is not shared by the

States; it is vested in the national government exclusively.”). 

Under the foreign affairs doctrine, state laws that intrude on

this exclusively federal power are preempted, under either the

doctrine of conflict preemption or the doctrine of field

preemption. Movsesian, 670 F.3d at 1071.4 Under the

doctrine of conflict preemption, a state action must yield to

federal executive authority where “there is evidence of clear

conflict between the policies adopted by the two.” Am. Ins.

4 Municipalities are subject to the same rules of preemption as the states. 

See Hines v. Davidowitz, 312 U.S. 52, 63 (1941) (“Our system of

government is such that the interest of the cities, counties and states, no

less than the interest of the people of the whole nation, imperatively

requires that federal power in the field affecting foreign relations be left

entirely free from local interference.”).
12 GINGERY V. CITY OF GLENDALE

Ass’n v. Garamendi, 539 U.S. 396, 421 (2003). Under the

doctrine of field preemption, even in the absence of any

express federal policy, a state action may be preempted where

(1) its “real purpose” does not concern an area of traditional

state responsibility, and (2) it intrudes on the federal

government’s foreign affairs power. Movsesian, 670 F.3d at

1074–75. Here, Plaintiffs do not argue that Glendale’s

installation of the monument conflicts with the federal

government’s policy on the Comfort Women dispute; indeed,

the complaint alleges that the United States has “consistently

sought to avoid” taking a position on the issue. Instead,

Plaintiffs invoke the doctrine of field preemption.

Applying the doctrine of field preemption, we have found

that a state or local government is more likely to exceed the

limits of its power when it creates remedial schemes or

regulations to address matters of foreign affairs. In Von

Saher v. Norton Simon Museum of Art, 592 F.3d 954 (9th Cir.

2010), for example, we held that a California statute, which

extended the statute of limitations for civil actions to recover

looted Holocaust-era artwork, was preempted because the

statute would often require courts to review the reparation

decisions of foreign nations, and thus intruded on the federal

government’s power “to make and resolve war.” Id. at

965–68. More recently, in Movsesian, our Court, sitting en

banc, concluded that a California statute, which vested

California courts with jurisdiction over certain insurance

claims brought by “Armenian genocide victim[s]” and

extended the statute of limitations for those claims, intruded

on the field of foreign affairs. 670 F.3d at 1076–77. We

explained that the California statute not only “expresses a

distinct political point of view on a specific matter of foreign

policy,” but also “subject[s] foreign insurance companies to

lawsuits in California” and would require courts applying the
GINGERY V. CITY OF GLENDALE 13

statute to engage in “a highly politicized inquiry into the

conduct of a foreign nation.” Id. at 1076.

What we have not considered, however, is the extent to

which a state or local government may address foreign affairs

through expressive displays or events, rather than through

remedies or regulations. In Movsesian, for example, we

emphasized that the law at issue was not “merely expressive”

and declined to “offer any opinion about California’s ability

to express support for Armenians by, for example, declaring

a commemorative day.” Id. at 1077 & n.5; see also Nat’l

Foreign Trade Council v. Natsios, 181 F.3d 38, 61 n.18 (1st

Cir. 1999) (holding that the Massachusetts Burma law, which

restricted the ability of Massachusetts and its agencies to

purchase goods or services from companies that do business

with Burma, was preempted but noting that “[w]e do not

consider here whether Massachusetts would be authorized to

pass a resolution condemning Burma’s human rights record

but taking no other action with regard to Burma”), aff’d sub

nom. Crosby 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 Supremacy Clause preempts a

local government’s expression, through a public monument,

of a particular viewpoint on a matter related to foreign affairs. 

Under the circumstances of this case, we conclude that it does

not.

First, Glendale’s establishment of a public monument to

advocate against “violations of human rights” is well within

the traditional responsibilities of state and local governments. 

“Governments have long used monuments to speak to the

public.” Pleasant Grove City v. Summum, 555 U.S. 460, 470

(2009). In addition, “[c]ities, counties, and states have a long

tradition of issuing pronouncements, proclamations, and
14 GINGERY V. CITY OF GLENDALE

statements of principle on a wide range of matters of public

interest, including other matters subject to preemption, such

as foreign policy and immigration.” Alameda Newspapers,

Inc. v. City of Oakland, 95 F.3d 1406, 1414 (9th Cir. 1996). 

For example, local governments have established memorials

for victims of the Holocaust5and the Armenian genocide,6

and leaders of local governments have publicly taken

positions on matters of foreign affairs, from South African

apartheid in the 1980s7

to the recent actions of Boko Haram.

8

Here, by dedicating a local monument to the plight of the

Comfort Women in World War II, Glendale has joined a long

list of other American cities that have likewise used public

monuments to express their views on events that occurred

beyond our borders.

In Plaintiffs’ view, however, Glendale’s “real purpose” is

to insert itself into foreign affairs. We disagree. According

to the monument’s plaque, Glendale’s self-stated purposes

are: (i) to preserve the “memory” of the Comfort Women,

(ii) to “celebrate” Glendale’s proclamation of a “Comfort

Women Day” and the House of Representatives’ decision to

pass a resolution 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, Armenian

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. Times, Jan. 20, 1985, http://ittybittyurl.com/2EI4.

8

See Press Release, City of Atlanta, Statement of Mayor Kasim Reed on

the Kidnapped Nigerian Girls (May 7, 2014), available at

http://ittybittyurl.com/2EI5.
GINGERY V. CITY OF GLENDALE 15

Comfort Women, and (iii) to express “sincere hope” that

“these unconscionable violations of human rights shall never

recur.” These purposes—memorializing victims and

expressing hope that others do not suffer a similar fate—are

entirely consistent with a local government’s traditional

function of communicating its views and values to its

citizenry. Moreover, even if Glendale’s purpose was, as one

City Council member stated, to “put the city of Glendale on

the international map,” this purpose does not conflict with the

role local governments have traditionally played in public

discourse related to foreign affairs. Cf. Farley v. Healey,

431 P.2d 650, 653 (Cal. 1967) (“Even in matters of foreign

policy it is not uncommon for local legislative bodies to make

their positions known.”). Therefore, Glendale’s “real

purpose” in installing the Comfort Women monument

concerns “an area of traditional state responsibility.” 

Movsesian, 670 F.3d at 1075.

Second, even if Glendale were acting outside an area of

traditional state responsibility, Plaintiffs have not plausibly

alleged that Glendale’s actions “intrude[] on the federal

government’s foreign affairs power.” Id. at 1074. “To

intrude on the federal government’s foreign affairs power, a

[state’s action] must have more than some incidental or

indirect effect on foreign affairs.” Cassirer v. ThyssenBornemisza Collection Found., 737 F.3d 613, 617 (9th Cir.

2013) (citation omitted). While Plaintiffs broadly assert that

the monument “threatens to negatively affect U.S. foreign

relations with Japan,” Plaintiffs do not support this assertion

with specific allegations that Glendale’s actions have had, or

are likely to have, any appreciable effect on foreign affairs. 

See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007). At

most, Plaintiffs allege that various Japanese officials have

expressed disapproval of the monument. However, Plaintiffs
16 GINGERY V. CITY OF GLENDALE

have not further alleged that this disapproval has in any way

affected relations between the United States and Japan. In

addition, Plaintiffs do not allege that the federal government

has expressed any view on the monument—much less

complained of interference with its diplomatic agenda. Thus,

Plaintiffs have failed to plausibly allege that Glendale’s

installation of the monument has had “more than some

incidental or indirect effect on foreign affairs.” Cassirer,

737 F.3d at 617 (citation omitted).

Moreover, in contrast to state actions we have found

preempted, Glendale has taken no action that would affect the

legal rights and responsibilities of any individuals or foreign

governments. For example, Glendale has not, as in Von

Saher or Movsesian, created a cause of action for victims

affected by the Comfort Women program, or extended the

statute of limitations for any existing cause of action that

might provide relief to these individuals. See Movsesian,

670 F.3d at 1076–77; Von Saher, 592 F.3d at 965–68. Nor

has Glendale imposed any regulatory restrictions on the

exchange of goods manufactured by parties who may have

played a role in the Comfort Women program. See Crosby,

530 U.S. at 373–74. Rather, by erecting a symbolic display

commemorating what it views as a historical tragedy,

Glendale has appropriately exercised the expressive powers

of a local government and stopped short of interfering with

the federal government’s foreign affairs power.

Glendale’s installation ofthe Comfort Women monument

concerns an area of traditional state responsibility and does

not intrude on the federal government’s foreign affairs power. 

As a result, Plaintiffs have failed to state a claim that
GINGERY V. CITY OF GLENDALE 17

Glendale’s actions are preempted. See Movsesian, 670 F.3d

at 1074.9

C. Leave to Amend

Finally, Plaintiffs argue that the district court abused its

discretion by dismissing their complaint without granting

leave to amend. “Dismissal without leave to amend is proper

if it is clear that the complaint could not be saved by

amendment.” 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 amend, and the district court found that

no amendment could cure the complaint’s deficiencies. On

appeal, Plaintiffs have not identified any additional

allegations that could save their complaint from dismissal. 

Accordingly, we conclude that the district court was within its

discretion to dismiss Plaintiffs’ complaint without leave to

amend.

 

9

 As an alternative basis for affirming the district court, Judge Korman

concludes that Plaintiffs lack a cause of action under 42 U.S.C. § 1983. 

In Judge Korman’s view, the foreign affairs provisions of the Constitution

do not create an individual right enforceable under Section 1983. He may

very well be correct. However, we decline to address this issue of first

impression for our Court. See Gerling Glob. Reinsurance Corp. of Am. v.

Garamendi, 400 F.3d 803, 810–11 (9th Cir.), as amended on denial of

reh’g, 410 F.3d 531 (9th Cir. 2005). It was not raised by either party to

the district court or before us, and the district court did not rule on this

basis. “[W]e are hesitant to address an issue without the benefit of any

briefing from the parties.” Bledsoe v. Bledsoe (In 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 may affirm the district court’s dismissal on any

ground that is supported by the record.” Hartmann, 707 F.3d at 1121.
18 GINGERY V. CITY OF GLENDALE

IV. Conclusion

The Constitution places important limits on a

municipality’s ability to engage in matters related to foreign

affairs. We conclude that Glendale has not exceeded those

limits by installing a monument to commemorate the Comfort

Women. Therefore, the district court properly dismissed

Plaintiffs’ preemption claim.

AFFIRMED.

KORMAN, District Judge, concurring:

While I agree that Koichi Mera, one of the plaintiffs,

meets the “irreducible constitutional minimum” requirements

to allege Article III standing, Lujan v. Defs. of Wildlife,

504 U.S. 555, 560 (1992), and do not take issue with the

manner in which the majority resolves the merits of the

appeal, I write separately to suggest that the plaintiffs have

not alleged a valid cause of action that anchors their claim of

foreign affairs preemption. Simply mouthing the words

foreign affairs preemption does not do it. The plaintiffs assert

only in the vaguest manner that their complaint is brought

under 42 U.S.C. § 1983. Nevertheless, Section 1983 cannot

support their cause of action. Nor is an equitable cause of

action to restrain regulatory action in violation of the

Constitution available here.

I. Section 1983.

The availability of a cause of action under Section 1983

depends upon whether a plaintiff has alleged “the deprivation
GINGERY V. CITY OF GLENDALE 19

of any rights, privileges, or immunities secured by the

Constitution and laws.” 42 U.S.C. § 1983; see also Golden

State Transit Corp. v. City of Los Angeles (Golden State II),

493 U.S. 103, 105 (1989). The right being deprived here

cannot be found in the Supremacy Clause, which “is not the

‘source of any federal rights.’” Armstrong v. Exceptional

Child Ctr., Inc., 135 S. Ct. 1378, 1383 (2015) (quoting

Golden State II, 493 U.S. at 107); see also Associated Gen.

Contractors, San Diego Chapter, Inc., Apprenticeship &

Training Tr. Fund v. Smith, 74 F.3d 926, 931 (9th Cir. 1996)

(“[P]reemption of state law under the Supremacy

Clause—being grounded not on individual rights but instead

on considerations of power—will not [itself] support an

action under section 1983 . . . .” (quoting Segundo v. City of

Rancho Mirage, 813 F.2d 1387, 1394 (9th Cir. 1987)); White

Mountain Apache Tribe v. Williams, 810 F.2d 844, 848 (9th

Cir. 1985) (“We believe that § 1983 was not intended to

encompass those constitutional provisions which allocate

power between the state and federal government.”).

Moreover, neither the Supreme Court 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 implicit individual right. 

Indeed, in Gerling Global Reinsurance Corporation of

America v. Garamendi, 400 F.3d 803 (9th Cir. 2005), we

observed that the district court “may have been correct” in the

“abstract” when it concluded that the foreign affairs power

did not “implicate a right, privilege or immunity secured by

the Constitution or laws of the United States,” id. at 810. 

Nevertheless, because we concluded they were prevailing

parties for reasons that need not be discussed, the plaintiffs

were entitled to an award of counsel fees pursuant to
20 GINGERY V. CITY OF GLENDALE

42 U.S.C. § 1988. While we did not definitively resolve the

issue, we “assum[ed] that the foreign affairs power does not

confer rights within the meaning of § 1983.” Gerling,

400 F.3d at 807. Judge Graber, who concurred in the result,

directly addressed the issue. She observed without

qualification that “the foreign affairs power, like the

Supremacy Clause, creates no individual rights enforceable

under 28 U.S.C. § 1983.” Id. at 811. Because I agree that the

foreign affairs provisions create no individual rights, the

plaintiffs lack a cause of action pursuant to 42 U.S.C. § 1983.

II. Equitable Cause of Action.

Unlike Section 1983, the availability of an equitable cause

of action to enjoin purportedly unconstitutional conduct does

not necessarily rely upon the fact that a particular

constitutional provision confers an individual right on the

plaintiff. Free Enter. Fund v. Pub. Co. Accounting Oversight

Bd., 561 U.S. 477, 491 n.2 (2010). Instead, in a preemption

case, the availability of such a cause of action hinges on the

plaintiff’s being subject to an enforcement or other regulatory

action. The Supreme Court has long recognized that a

plaintiff may bring a suit to enjoin unconstitutional regulatory

conduct. Courts often cite as the forebear of that type of

equitable action the case of Ex parte Young, 209 U.S. 123

(1908). See, e.g., Verizon Md. Inc. v. Pub. Serv. Comm’n,

535 U.S. 635, 645 (2002). Young was not a preemption case;

it involved a claim by shareholders of a railroad that a state

law regulating railroad rates violated, inter alia, the

Fourteenth Amendment’s Due Process Clause. Nevertheless,

the Young Court held that “individuals who, as officers of the

state, . . . threaten and are about to commence proceedings . . .

to enforce against parties affected an unconstitutional act,

violating the Federal Constitution, may be enjoined by a
GINGERY V. CITY OF GLENDALE 21

Federal court of equity from such action.” 209 U.S. at

155–56.

The Supreme Court has applied that holding in

preemption cases, making it clear that, in such cases, the

equitable cause of action is available only to enjoin acts of

regulation. See Armstrong, 135 S. Ct. at 1384 (“[W]e have

long recognized [that] if an individual claims federal law

immunizes him from state regulation, the court may issue an

injunction upon finding the state regulatory actions

preempted.”); see also, e.g., Ray v. Atl. Richfield Co.,

435 U.S. 151, 155 (1978); Va. Office for Prot. & Advocacy v.

Stewart, 563 U.S. 247, 255–56 (2011). In Shaw v. Delta Air

Lines, Inc., 463 U.S. 85 (1983), the Supreme Court reiterated

the basis for these types of suits: “A plaintiff who seeks

injunctive relief fromstate regulation, on the ground that such

regulation is pre-empted by a federal statute . . . presents a

federal question which the federal courts have jurisdiction

under 28 U.S.C. § 1331 to resolve,” id. at 96 n.14; see also

Golden State II, 493 U.S. at 113 (Kennedy, J., dissenting)

(“[A] private party can assert an immunity from state or local

regulation on the ground that the Constitution . . . allocate[s]

the power to enact the regulation to the National Government,

to the exclusion of the States.”); cf. Alameda Newspapers,

Inc. v. City of Oakland, 95 F.3d 1406, 1413 (9th Cir. 1996)

(“If a municipality’s action [in a case asserting preemption by

the National Labor Relations Act] does not rise to the level of

regulation, it is not preempted.”). Although the Shaw Court

dressed the inquiry in the language of “jurisdiction,” rather

than of “cause of action,” the two inquiries are functionally

the same in asking why a plaintiff should be allowed to bring

the suit in federal court. Nevertheless, while the questions are

intertwined, the Supreme Court recently suggested that the

cause-of-action inquiry is not jurisdictional. See Lexmark
22 GINGERY V. CITY OF GLENDALE

Int’l, Inc. v. Static Control Components, Inc., 134 S. Ct. 1377,

1387 n.4 (2014).

Moreover, the Supreme Court’s cases dealing with

preemption specifically in the foreign affairs domain do not

suggest the availability of an equitable cause of action outside

of the regulatory context. See, e.g., Am. Ins. Ass’n v.

Garamendi, 539 U.S. 396, 409–12 (2003) (insurance

companies brought action alleging preemption of California

law requiring disclosure of policies issued to persons in

Europe in effect between 1920 and 1945); Crosby v. Nat’l

Foreign Trade Council, 530 U.S. 363, 367, 370–71 (2000)

(companies who did business with Burma brought action

alleging preemption of a Massachusetts statute, the purpose

of which was to prevent or discourage them from transacting

business with Burma); Zschernig v. Miller, 389 U.S. 429,

432–33 (1968) (striking down state law regulating the

inheritance rights of foreign beneficiaries ofOregon residents

because it did so in a way that constituted “an intrusion by

the State into the field of foreign affairs which the

Constitution entrusts to the President and the Congress”). 

Nor do our cases in this area suggest a broader cause of

action. See, e.g., Movsesian v. Victoria Versicherung AG,

670 F.3d 1067, 1070–71, 1077 (9th Cir. 2012) (en banc)

(foreign insurance companies could raise defensively a

challenge to a California law that subjected them to suits in

California “by overriding forum-selection provisions and

greatly extending the statute of limitations for a narrowly

defined class of claims” in a way that constituted an intrusion

on the conduct of foreign policy); Von Saher v. Norton Simon

Museum of Art at Pasadena, 592 F.3d 954, 957–59 (9th Cir.

2009) (similar); Deutsch v. Turner Corp., 324 F.3d 692, 703,

716 (9th Cir. 2003) (similar).
GINGERY V. CITY OF GLENDALE 23

In sum, this case involves a purely expressive, nonregulatory action by the City of Glendale that is not alleged

to, and does not, implicate any right conferred by the

Constitution or laws of the United States, the predicate for a

Section 1983 cause of action. Moreover, because the conduct

of the City of Glendale does not subject plaintiffs to an

enforcement or other regulatory action, it does not come

within the category of cases in which an equitable cause of

action would be available to restrain conduct that touches on

the power of the President or Congress in the area of foreign

affairs.