NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 25 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ORION WINE IMPORTS, LLC; PETER E. No. 20-15447

CREIGHTON,

D.C. No. Plaintiffs-Appellants, 2:18-cv-01721-KJM-DB

v.

MEMORANDUM*

JACOB A. APPELSMITH, in his official capacity as Director of the California Dept. of Alcoholic Beverage Control,

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, Chief District Judge, Presiding

Argued and Submitted February 11, 2021 San Francisco, California

Before: WARDLAW and BEA, Circuit Judges, and CAIN,** District Judge.

Plaintiffs, Florida wine importers that would like to ship wine directly from

their Florida distribution facility to California retailers of alcoholic beverages,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable James David Cain, Jr., United States District Judge for the Western District of Louisiana, sitting by designation. appeal the district court’s order dismissing their complaint for lack of standing.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. We review the district court’s decision dismissing Plaintiffs’

complaint for lack of standing de novo, construing all factual allegations in favor

of the plaintiffs. Mont. Shooting Sports Ass’n v. Holder, 727 F.3d 975, 979 (9th

Cir. 2013). The “irreducible constitutional minimum” for Article III standing

requires that any plaintiff seeking to invoke federal jurisdiction must demonstrate

he has “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged

conduct of the defendant, and (3) that is likely to be redressed by a favorable

judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (quoting

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)).

Even assuming Plaintiffs have adequately alleged an injury in fact,1 we

nonetheless conclude that Plaintiffs’ strictly limited challenge to Section 23661 of

California’s Alcoholic Beverage Control Act (“ABC Act”)2 under the Dormant

1 Specifically, Plaintiffs allege that Section 23661 prevents Plaintiffs from completing a proposed agreement to supply wine directly from Plaintiffs’ Florida distribution facilities via common carrier to The Pour House, a licensed California wine retailer. 2 The relevant statutory text of Section 23661 provides:

[A]lcoholic beverages shall be brought into this state from without this state for delivery or use within the state only by common carriers and only when the alcoholic beverages are consigned to a licensed importer, and only when consigned to the premises of the licensed importer or to a licensed importer

2 Commerce Clause fails to establish both the causation and redressability necessary

for Article III standing. As the district court correctly found, the fatal flaw for

Plaintiffs’ challenge under both requirements is that other independent provisions

of the ABC Act, which Plaintiffs do not challenge, would still prohibit Plaintiffs’

proposed transaction with The Pour House even if Section 23661 were invalidated.

Thus, given that other provisions of the ABC Act that Plaintiffs do not challenge

would inflict the same “injury” by barring the proposed transaction with The Pour

House, the connection between Plaintiffs’ alleged injury and the challenged

provision, Section 23661, is too “attenuated” for Article III standing. Maya v.

Centex Corp., 658 F.3d 1060, 1070 (9th Cir. 2011). Furthermore, because

Plaintiffs’ proposed transaction would still be prohibited by the ABC Act even if

we were to strike down Section 23661 as unconstitutional, a favorable ruling

would not remedy Plaintiffs’ alleged injury, the cornerstone of redressability. See

Nuclear Info. & Res. Serv. v. Nuclear Reg. Comm’n, 457 F.3d 941, 955 (9th Cir.

2006); see also McConnell v. Fed. Election Comm’n, 540 U.S. 93, 228 (2003).

2. On appeal, Plaintiffs have raised additional challenges to other

or customs broker at the premises of a public warehouse licensed under this division.

Cal. Bus. & Prof. Code § 23661. The district court noted that Plaintiffs explicitly disavowed challenges to other provisions and “clarified they did not intend to seek further amendment of their complaint if the court dismissed it.”

3 provisions of the ABC Act, such as Sections 23017(b) and 23405.2, that would

also bar Plaintiffs’ proposed transaction. However, Plaintiffs did not raise these

challenges below, and “an appellate court will not hear an issue raised for the first

time on appeal.” Kaass Law v. Wells Fargo Bank, N.A., 799 F.3d 1290, 1293 (9th

Cir. 2015) (internal citation omitted). None of the four exceptions to this rule that

we identified in Kaass are present here. 799 F.3d at 1293. Moreover, while

federal courts may consider standing as a general matter even if raised for the first

time on appeal, we are not obligated to consider every possible argument Plaintiffs

could have made but did not, particularly where, as here, standing was raised,

briefed, and argued below. See Maricopa-Stanfield Irr. and Drainage Dist. v.

United States, 158 F.3d 428, 433 (9th Cir. 1999). Lastly, Plaintiffs’ broad, generic

request for any injunctive relief necessary “to allow Plaintiffs to sell and deliver

wine directly to California retailers” cannot suffice to preserve these additional

challenges and overcome our ordinary rule against hearing issues raised for the

first time on appeal. Kaass, 799 F.3d at 1293.

AFFIRMED.

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