NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 22 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JANICE ALTMAN; RYAN GOODRICH; No. 21-15602

ALBERT LEE SWANN; ROMAN

KAPLAN; YAN TRAYTEL; DMITRI D.C. No. 4:20-cv-02180-JST

DANILEVSKY; GREG DAVID; CITY

ARMS EAST LLC; CITY ARMS LLC;

CUCKOO COLLECTIBLES LLC, DBA MEMORANDUM*

Eddy’s Shooting Sports; SECOND

AMENDMENT FOUNDATION;

CALIFORNIA GUN RIGHTS

FOUNDATION; NATIONAL RIFLE

ASSOCIATION OF AMERICA, INC.;

CALIFORNIA ASSOCIATION OF

FEDERAL FIREARMS LICENSEES, INC.;

FIREARMS POLICY COALITION, INC.;

SCOTT CHALMERS,

Plaintiffs-Appellants,

v.

COUNTY OF SANTA CLARA; LAURIE

SMITH; JEFFREY ROSEN; SARA H.

CODY; CITY OF SAN JOSE; SAM

LICCARDO; EDGARDO GARCIA; CITY

OF MOUNTAIN VIEW; MAX BOSEL;

COUNTY OF SAN MATEO; CARLOS

BOLANOS; SCOTT MORROW; CITY OF

PACIFICA; DANIEL STEIDLE; COUNTY

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

OF CONTRA COSTA; DAVID

LIVINGSTON; CHRIS FARNITANO;

CITY OF PLEASANT HILL; BRYAN

HILL,

Defendants-Appellees,

and

COUNTY OF ALAMEDA; GREGORY J.

AHERN; NICHOLAS MOSS,

Defendants.

Appeal from the United States District Court for the Northern District of California Jon S. Tigar, District Judge, Presiding

Argued and Submitted November 15, 2022 San Francisco, California

Before: McKEOWN and PAEZ, Circuit Judges, and MOLLOY,** District Judge. Partial Concurrence and Partial Dissent by Judge PAEZ.

** The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. A group of individuals, firearm retailers, and gun-advocacy groups

(collectively, “Altman”) petition for review of the district court’s judgment

dismissing their claims against the California counties of Santa Clara, San Mateo,

and Contra Costa (“the Counties”). Altman alleged that the Counties’ retail-closure

orders during the early months of the COVID-19 pandemic violated their Second

Amendment rights by excluding firearm vendors and ranges from the list of

“essential businesses” permitted to remain open. Because the Counties lifted some

restrictions on retail during the pendency of the litigation, the district court dismissed

as moot Altman’s claims for injunctive relief, declaratory relief, and nominal

damages. We have jurisdiction under 28 U.S.C. § 1291, and we review de novo a

district court’s determination of mootness. See Demery v. Arpaio, 378 F.3d 1020,

1025 (9th Cir. 2004). We conclude that Altman’s claims for injunctive and

declaratory relief are moot and that Altman forfeited the argument that the claim for

nominal damages preserves this otherwise moot controversy. Thus, we affirm.

Injunctive and Declaratory Relief. Our recent en banc decision in Brach v.

Newsom forecloses Altman’s attempt to resurrect claims for injunctive and

declaratory relief against the Counties. 38 F.4th 6 (9th Cir. 2022) (en banc). There,

we held that plaintiffs’ challenges to California’s suspension of in-person schooling

in 2020 and early 2021 were moot after the state rescinded its orders and reopened

classrooms. Id. at 9. Emphasizing that “our jurisdiction is limited to live controversies and not speculative contingencies,” we concluded that “the mere

possibility that California might again suspend in-person instruction is too remote to

save this case.” Id.

Just as in Brach, here there is “no longer any [county] order for the court to

declare unconstitutional or to enjoin.” Id. at 11. By the time that the district court

dismissed Altman’s motion for a preliminary injunction, the Counties had not only

permitted outdoor and curbside retail and recreation but also had made provisions to

resume indoor retail altogether. Although the Counties’ original orders did not

“expire[] by their own terms,” like the school regulations in Brach, 38 F.4th at 12,

the Counties’ continued commitment to reopening retail and the consistent

improvement of public health conditions still render Altman’s fears of recurrence

too “remote and speculative” for either mootness exception to apply, see id. at 14;

see also Rosebrock v. Mathis, 745 F.3d 963, 971–72 (9th Cir. 2014) (outlining

factors for assessing the voluntary cessation exception); Sample v. Johnson, 771 F.2d

1335, 1340–43 (9th Cir. 1985) (discussing the burden that plaintiffs face in

demonstrating the likelihood of repeated injury). More than two years have passed

since the Counties ceased the challenged conduct, and they have displayed no “track

record of moving the goalposts,” Tandon v. Newsom, 141 S. Ct. 1294, 1297 (2021)

(per curiam) (quotation marks omitted), and wielded no “constant threat” of

reimposition, Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 68 (2020) (per curiam).

Nominal Damages. Altman forfeited the argument that the nominal damages

claim should have preserved the controversy, even if the other claims were moot.

The district court acknowledged that Altman had amended its complaint to include

nominal damages. Indeed, as to certain counties, the court ruled that Altman’s

nominal damages claims “are live.” Thus, the district court well understood the law.

However, as to the three Counties involved in this appeal, the district court

concluded that Altman had waived its argument that the nominal damages claim was

not moot: “Plaintiffs did not make a nominal damages argument in the supplemental

briefing the Court ordered on the mootness question during the preliminary

injunction proceedings. They have thus waived this argument.” And Altman took

no steps in the district courts to dispute this ruling, move for reconsideration, or

advise the court otherwise. After the fact, on appeal, Altman is asking us to revive

a claim that the district court provided ample opportunity to address.

As a general matter, “[a] live claim for nominal damages will prevent a

dismissal for mootness.” Bernhardt v. County of Los Angeles, 279 F.3d 862, 872

(9th Cir. 2002); see also Uzuegbunam v. Preczewski, 141 S. Ct. 792, 801–02 (2021)

(holding that nominal damages “satisf[y] the redressability element of standing”

when a plaintiff’s other prayers for relief fail). However, the Ninth Circuit strongly

disfavors arguments that were waived or forfeited before the district court and raised for the first time on appeal. See In re Mortg. Electronic Sys., Inc., 754 F.3d 772, 780

(9th Cir. 2014); see also Fitzgerald v. Century Park, Inc., 642 F.2d 356, 359 (9th

Cir. 1981) (declining to review a request for nominal damages raised for the first

time on appeal). While waiver requires the “intentional relinquishment or

abandonment of a known right,” forfeiture is a more implicit, passive failure to

timely assert that right. United States v. Scott, 705 F.3d 410, 415 (9th Cir. 2012).

For instance, a plaintiff’s failure to raise a choice-of-law argument in multiple

memoranda submitted to a magistrate judge and during a hearing before the district

court judge amounted to forfeiture of that argument and foreclosed its motion for

reconsideration. See Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 891 (9th

Cir. 2000). Although judges may at any point raise issues, such as mootness, that

concern the validity of the court’s subject matter jurisdiction, see Bernhardt, 279

F.3d at 871, this court has not applied the same principle to parties’ new arguments

in support of jurisdiction.

Despite multiple opportunities, Altman neglected to invoke the nominal

damages claim as a possible defense to mootness. Altman did not raise the argument

at the May 20, 2020 district court hearing or within the supplemental briefing that

the district court then ordered on the issue of mootness. Although Altman contends

that the hearing and briefing were concerned only with the effect the new “curbside

pickup” option on the appropriateness of injunctive relief, the record does not support such a restrictive view. Altman also declined subsequent opportunities to

draw the district court’s attention to the nominal damages claim, despite filing a

motion for clarification. Thus, the district court was correct to conclude that Altman

had “waived” (or, more precisely, forfeited) this argument with regard to Santa

Clara, San Mateo, and Contra Costa counties.

AFFIRMED.1

1 We grant the Counties’ unopposed motion to take judicial notice of the Settlement Agreement between Altman and Alameda County and exhibits containing COVID-19 case and vaccination data (Dkt. 19).

FILED

Altman v. County of Santa Clara, No. 21-15602 DEC 22 2022 Paez, J., concurring in part and dissenting in part: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I respectfully dissent in part. I agree with the majority that the plaintiffs’

(“Altman’s”) claims for injunctive and declaratory relief are moot under Brach II.

38 F.4th 6 (9th Cir. 2022) (en banc). In my view, however, Altman’s claim for

nominal damages remains live and should have precluded the district court from

dismissing the county defendants for lack of subject matter jurisdiction.

Our caselaw has long recognized that a claim for nominal damages prevents

mootness. Bernhardt v. County of Los Angeles, 279 F.3d 862, 872 (9th Cir. 2002);

see also Uzuegbunam v. Preczewski, 141 S. Ct. 792, 801-02 (2021). The majority

holds that although Altman expressly prayed for nominal damages in her First

Amended Complaint, she forfeited this claim by failing to raise it at certain points

during and after the district court proceedings. Neither the record nor our caselaw

supports this proposition.

In the context of this litigation, Altman fairly understood the district court’s

request for supplemental briefing as limited to the effect of curbside retail on her

claims for prospective relief (i.e., whether those claims were moot). The majority

cites no authority that supports the proposition that a plaintiff forfeits a claim by

not addressing it in supplemental briefing although she has properly and clearly

asserted it in her complaint. The fact that Altman did not argue that her request for

nominal damages claim was not moot before the district court is immaterial. Page 1 of 2 Because she properly pleaded the claim in her complaint, its existence precluded a

finding of mootness. Further, the majority’s conclusion that Altman’s failure to

include nominal damages in her motion for clarification contributed to forfeiture is

likewise unsupported. No authority requires a plaintiff to take such steps to

preserve a claim for appeal after having asserted it in her complaint. Indeed,

Altman continued to pursue her nominal damages claim by timely appealing the

district court’s decision that she had waived it.

The majority’s decision embraces a hypertechnical view of claim

preservation that allows the district court to effectively decline to hear Altman’s

constitutional claim despite the existence of a live controversy. This result is

antithetical to the federal courts’ duty to decide cases before them. See BP P.L.C.

v. Mayor & City Council of Baltimore, 141 S. Ct. 1532, 1537 (2021). I therefore

respectfully dissent from this aspect of the majority’s disposition.

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