NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 26 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

IMMIGRANT LEGAL RESOURCES No. 20-16580

CENTER; FREEDOM FOR

IMMIGRANTS, Attorney General, D.C. No. 1:20-cv-00966-TLN-AC Petitioners-Appellees,

STATE OF CALIFORNIA, MEMORANDUM*

Intervenor,

v.

CITY OF MCFARLAND,

Respondent-Appellant,

and

CITY OF MCFARLAND PLANNING

COMMISSION,

Respondent,

GEO GROUP, INC.,

Real-party-in-interest.

IMMIGRANT LEGAL RESOURCES No. 20-16557

CENTER; FREEDOM FOR

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. IMMIGRANTS, Attorney General, D.C. No. 1:20-cv-00966-TLN-AC Petitioners-Appellees,

STATE OF CALIFORNIA,

Intervenor,

v.

CITY OF MCFARLAND; CITY OF

MCFARLAND PLANNING

COMMISSION,

Respondents,

and

GEO GROUP, INC.,

Real-party-in-interest- Appellant.

Appeal from the United States District Court for the Eastern District of California Troy L. Nunley, District Judge, Presiding

Argued and Submitted October 9, 2020 Pasadena, California

Before: KLEINFELD, HURWITZ, and BUMATAY, Circuit Judges.

The City of McFarland (“the City”) and Geo Group, Inc. (“GEO”) challenge

the district court’s preliminary injunction preventing the City from executing

modifications to GEO’s Conditional Use Permits and barring GEO from accepting

or transferring immigration detainees into or out of its two facilities in McFarland,

2 California. We review a district court’s decision to grant or deny a preliminary

injunction for abuse of discretion and its interpretation of the underlying legal

principles de novo. Cuviello v. City of Vallejo, 944 F.3d 816, 825–26 (9th Cir. 2019)

(citing Sw. Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir.

2003)). We vacate the preliminary injunction and remand. 1

1. The district court abused its discretion in finding that Appellees raised

“serious questions” as to whether the City violated California Civil Code

§ 1670.9(d).

First, the City complied with § 1670.9(d)’s requirement that it hold “at least

two separate meetings open to the public.” Cal. Civ. Code § 1670.9(d)(2). In fact,

the City held three public meetings to consider the permit modifications: two before

the Planning Commission and one before the City Council.

Section 1670.9(d) only requires two public meetings for the permitting

authority—“[a] city, county, city and county, or public agency,” Cal. Civ. Code

§ 1670.9(d)—without distinguishing it from the constituent agencies through which

it acts. Cities act through their subsidiary departments, and the Planning

1 Immigrant Legal Resources Center and Freedom for Immigrants, two non- profit organizations that provide services to immigrant detainees, sought the injunction against the City and GEO. The City and GEO challenge the organizations’ standing to bring this claim. Our precedent dictates that we do not dismiss this case on standing grounds. See E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1266 (9th Cir. 2020).

3 Commission acted as an arm of the City. See, e.g., A Local & Reg’l Monitor v. City

of Los Angeles, 16 Cal. Rptr. 2d 358, 366 (Ct. App. 1993) (describing city’s

“Planning Commission” as “an arm of the City” when convening a public hearing

to consider a zoning proposal). Moreover, the City’s municipal code makes clear

that the Planning Commission and City Council are constituent parts of the City

itself and act on its behalf. See McFarland Municipal Code §§ 2.40.010, 17.160.030,

17.160.030.D, 17.148.100.B.1.b (providing that the Planning Commission’s

permitting decisions are “final” unless timely appealed). Accordingly, the most

natural reading of the quoted phrase of the California Civil Code is that “public

agency” means an entity other than but analogous to a city, county, or city and

county, rather than a subordinate agency within a city, county, or city and county.

Second, the City complied with § 1670.9(d)’s requirement that it provide

“notice to the public” of the proposed modifications “at least 180 days before [their]

execution.” Cal. Civ. Code § 1670.9(d)(1). The City Council approved the proposed

modifications on April 23, 2020 but delayed their execution until July 15, 2020—

180 days after the Planning Commission first gave public notice.

We reject the argument that the City Council’s “approval” on April 23

constitutes an “execution” under § 1670.9(d). The statute itself distinguishes

between “approval” and “execution.” See Cal. Civ. Code § 1670.9(d) (providing

that a city “shall not approve” a permit unless it has “[p]rovided notice to the public

4 . . . at least 180 days before execution”) (emphasis added). And, “execute” has a

precise meaning: “to bring (a legal document) into its final, legally enforceable

form.” Execute, Black’s Law Dictionary (11th ed. 2019). The distinction between

“approval” and “execution” is clear from the City’s municipal code: Even after

approving the permits, the City Council could have rescinded approval before the

permits were “issued” on July 15. See McFarland Municipal Code § 17.160.050.

Third, the City complied with § 1670.9(d)’s requirement that it “[s]olicit[] and

hear[] public comments” before approving the proposed modifications. Cal. Civ.

Code § 1670.9(d)(2). On April 23, 2020, the City Council held a public meeting to

consider the proposed modifications. Due to the COVID-19 pandemic, the City

Council held this meeting virtually, but the meeting was open to the City’s residents

to attend and participate. Any technical limitations and difficulties participants

experienced during the virtual public meeting did not give rise to prejudice. See

Olson v. Hornbrook Cmty. Servs. Dist., 245 Cal. Rptr. 3d 236, 247 (Ct. App. 2019).

And, any barriers to participation were minimal and consistent with the state’s

guidance for conducting public hearings during the COVID-19 pandemic. See, e.g.,

Emergency Order N-29-20 (March 17, 2020) (excusing many of the ordinary public

participation guarantees provided by the Brown Act and allowing local bodies to

hold meetings via teleconference).

5 2. The district court abused its discretion in finding a likelihood of irreparable

harm. See Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). Notably,

the district court focused its irreparable harm analysis on the prospect of harm to

third parties. The standard for preliminary injunctions, however, requires irreparable

harm to the plaintiffs themselves. See Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries

Serv., 886 F.3d 803, 822 (9th Cir. 2018).

Pursuant to General Order 4.5(e), the panel determines that each party shall

bear its own costs. It is so ordered.2

VACATED AND REMANDED.

2 We GRANT Appellees’ motion to take judicial notice (ECF No. 44) and DENY as moot Intervenor’s motion to take judicial notice (ECF No. 46).

6