NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUL 26 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

AMTAX HOLDINGS 260, LLC, an Ohio No. 21-35789 limited liability company; et al., D.C. No. 2:20-cv-01698-BJR Plaintiffs-Appellants,

v. MEMORANDUM*

WASHINGTON STATE HOUSING

FINANCE COMMISSION, a public body Corporate and politic of the State of Washington; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Barbara Jacobs Rothstein, District Judge, Presiding

Argued and Submitted July 8, 2022 Honolulu, Hawaii

Before: WARDLAW, NGUYEN, and OWENS, Circuit Judges.

Plaintiffs-Appellants AMTAX Holdings 260, LLC, AMTAX Holdings 114,

LLC, and Alden Torch Financial, LLC (collectively “AMTAX”) appeal from the

district court’s order granting Washington State Housing Finance Commission’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. motion to dismiss on prudential ripeness grounds. AMTAX asserts claims under

the First Amendment right to petition, the Contracts Clause, the Supremacy

Clause, the Separation of Powers, the Due Process Clause, and the Equal

Protection Clause, alleging that the Commission’s policy governing transfer

investments within the Low Income Housing Tax Credit Program improperly

punished litigation activity and interfered with AMTAX’s contracts. We review de

novo the decision to dismiss for prudential ripeness, Wolfson v. Brammer, 616 F.3d

1045, 1053 (9th Cir. 2010), and review for abuse of discretion the denial of leave

to amend, Doe v. Garland, 17 F.4th 941, 944 (9th Cir. 2021), cert denied, 142 S.

Ct. 2815 (2022). As the parties are familiar with the facts, we do not recount them

here. We affirm.

In assessing prudential ripeness, we “evaluate both the fitness of the issues

for judicial decision and the hardship to the parties of withholding court

consideration.” Ass’n of Irritated Residents v. EPA, 10 F.4th 937, 944 (9th Cir.

2021) (citation omitted). Facial constitutional challenges, see Nat’l Park Hosp.

Ass’n v. Dep’t of the Interior, 538 U.S. 803, 811-12 (2003), and First Amendment

overbreadth challenges, see Maldonado v. Morales, 556 F.3d 1037, 1044-45 (9th

Cir. 2009), must meet both prudential ripeness prongs for us to review the claim.

We assume without deciding that the district court should have analyzed

prudential ripeness on a claim-by-claim basis. See Pizzuto v. Tewalt, 997 F.3d

2 893, 903-05 (9th Cir. 2021) (applying “principles of ripeness . . . to each of

plaintiffs’ specific claims”). But even if it had done so, the pleadings and record

show each claim is prudentially unripe.

AMTAX’s First Amendment claim is unfit for review. Its allegations that a

transfer application will be denied are merely “hypothetical,” Thomas v.

Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1142 (9th Cir. 2000) (en banc),

both because AMTAX continually fails to assert it has applied or will apply for a

transfer, and because the text of the Policy does not include protected litigation

activity as a basis for rejecting the application, see Alaska Right to Life PAC v.

Feldman, 504 F.3d 840, 849 (9th Cir. 2007) (requiring some factual context even

for pre-enforcement constitutional challenges). Because the alleged harm “rests

upon ‘contingent future events that may not occur as anticipated, or indeed may

not occur at all,’” the claim is unfit for judicial review.1 Scott v. Pasadena Unified

Sch. Dist., 306 F.3d 646, 662 (9th Cir. 2002) (citation omitted). For the same

reason, the “firm prediction rule” does not ripen the claim. See Freedom to Travel

Campaign v. Newcomb, 82 F.3d 1431, 1436 (9th Cir. 1996).

And despite allegations of overbreadth, AMTAX does not show hardship in

1 To the extent that AMTAX alleges it already experienced injury from chilled speech, we reject that allegation as conclusory. See Whitaker v. Tesla Motors, Inc., 985 F.3d 1173, 1176-77 (9th Cir. 2021) (noting that in reviewing a motion to dismiss, this court need not accept bare conclusory allegations as true).

3 delaying review of the First Amendment claim. See Am.-Arab Anti-Discrimination

Comm. v. Reno, 70 F.3d 1045, 1057-58 (9th Cir. 1995) (considering overbreadth

claims under the hardship prong of prudential ripeness). Nothing in the amended

complaint establishes a “well-founded fear that the law will be enforced against

[AMTAX],” to show its speech has been or will be chilled. Wolfson, 616 F.3d at

1062 (citation omitted); see also Feldman, 504 F.3d at 851 (requiring a “credible

threat of enforcement” to establish hardship for prudential ripeness). AMTAX

similarly fails to establish hardship by showing the Policy requires an immediate

change to its conduct. See Wolfson, 616 F.3d at 1060.

The Contracts Clause claim is also prudentially unripe. Because AMTAX

does not show current or future contracts, terms, or partners would be affected by

the Policy, the claim is unfit for review, see Thomas, 220 F.3d at 1142, and not

ripened by the firm prediction rule, see Freedom to Travel, 82 F.3d at 1436. And

AMTAX does not establish hardship from delaying review because, despite

arguing its “primary conduct” is affected by the Policy, AMTAX does not point to

any affected contracts or partners. See Nat’l Park Hosp. Ass’n, 538 U.S. at 810.

Though AMTAX’s Supremacy Clause claim is likely fit for review under

Sayles Hydro Associates v. Maughan, 985 F.2d 451, 453-54 (9th Cir. 1993), it is

prudentially unripe because AMTAX does not establish hardship by showing the

issue has “a concrete impact on the parties.” Shell Oil Co. v. City of Santa Monica,

4 830 F.2d 1052, 1062 (9th Cir. 1987).

And the Separation of Powers challenge is unfit for review because it rests

on contingent and hypothetical future events. See Scott, 306 F.3d at 662.

AMTAX’s assertion that the Commission will interpret and apply the Policy

unconstitutionally is based on a long chain of contingent events that cannot be

assessed without a more robust record. And because AMTAX has not shown that

the Separation of Powers issue “requires an immediate and significant change in

[its] conduct of [its] affairs,” it has not established hardship from withholding

review. Wolfson, 616 F.3d at 1060 (citation omitted).

As the Due Process and Equal Protection claims present the same issues as

the First Amendment and Contracts Clause claims, they are prudentially unripe for

the above reasons.

Finally, the district court did not abuse its discretion by not granting leave to

amend. In its briefs and again at oral argument, AMTAX could point to no facts it

could assert to ripen its claims, and so remand for such an amendment would be

“futile.” Doe, 17 F.4th at 950.

AFFIRMED.

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