Opinion
21-16653
11-04-2022
GREGORY GARMONG, Plaintiff-Appellant, v. TAHOE REGIONAL PLANNING AGENCY; et al., Defendants-Appellees.
NOT FOR PUBLICATION
Argued and Submitted October 21, 2022 San Francisco, California
Appeal from the United States District Court No. 3:17-cv-00444-RCJ-WGC for the District of Nevada Robert Clive Jones, District Judge, Presiding
Before: GILMAN, [**] CALLAHAN, and VANDYKE, Circuit Judges.
MEMORANDUM [*]
Plaintiff-Appellant Gregory Garmong appeals the district court's dismissal of his Amended Complaint without leave to amend and the denial of his motion for a preliminary injunction. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
"We review de novo a district court's dismissal for failure to state a claim upon which relief can be granted." Cohen v. ConAgra Brands, Inc., 16 F.4th 1283, 1287 (9th Cir. 2021). "We review the denial of leave to amend for an abuse of discretion, but we review the futility of amendment de novo." Id. The "denial of a preliminary injunction" is reviewed "for abuse of discretion." Env't Prot. Info. Ctr. v. Carlson, 968 F.3d 985, 989 (9th Cir. 2020).
The district court properly dismissed claims 1-11, 13, and 29 against the Tahoe Regional Planning Agency and its officials (the "TRPA Defendants"), which challenged the TRPA's decision to approve a permit. The TRPA Compact provides that the exclusive means of challenging a TRPA permitting decision is a judicialreview claim brought under Article VI(j)(5) of the Compact, alleging "prejudicial abuse of discretion." Despite multiple motions to dismiss from the TRPA Defendants arguing that Garmong failed to bring his noncompliance claims as claims for judicial review and despite Garmong receiving multiple opportunities to amend his complaint, he never cited Article VI(j)(5) as the basis for these claims or specifically alleged that the TRPA "prejudicially abused its discretion" anywhere in his initial or Amended Complaint. Because claims 1-11, 13, and 29 of Garmong's Amended Complaint all challenge a TRPA permitting decision but fail to plead these claims as judicial-review claims under Article VI(j)(5), the district court properly dismissed these claims.
Because Garmong's state law claims (claims 12, 24-27, and 31-34) against the TRPA Defendants are all preempted by the TRPA Compact, they also fail. Although the Compact states that "the scope of judicial inquiry" over challenges to TRPA decisions to approve a project "shall extend only to whether there was a prejudicial abuse of discretion," each of Garmong's state-law claims-including his state constitutional claims-would challenge the permit decision through the application of other standards, such as whether the agency committed an "intentional infliction of emotional distress." Because Garmong's state-law claims require the application of standards beyond-and thus incompatible with-the exclusive test set by Congress, the claims conflict with the TRPA Compact and are preempted. See Hillman v. Maretta, 569 U.S. 483, 490 (2013).
Garmong's federal constitutional claims against the TRPA Defendants for procedural due process and equal protection violations (claims 14-27) also fail. His procedural due process claims fail because "[p]rocedural due process protections do not extend to those who suffer indirect harm from government action." Dumas v. Kipp, 90 F.3d 386, 392 (9th Cir. 1996). And, where a government entity has discretion in permitting decisions, there is no constitutionally protected property interest in the denial of that permit. Shanks v. Dressel, 540 F.3d 1082, 1091 (9th Cir. 2008). Garmong alleged an interest in the TRPA not granting the permit, but the permitting decision harmed him only indirectly. And Garmong's "class-of-one" equal protection claims fail because he is not "similarly situated to [a] proposed comparator in all material respects." SmileDirectClub, LLC v. Tippins, 31 F.4th 1110, 1123 (9th Cir. 2022).
Garmong raises no objection on appeal to the district court construing his due process claims as claims for procedural due process, nor does he object to the district court construing claims 14-23 as raising exclusively federal constitutional claims.
Garmong's claims against Verizon Wireless, Inc., Complete Wireless Consulting, Inc., Maria Kim, and Crown Castle (the "Private-Party Defendants"), also all fail. His claim that the Private-Party Defendants conspired with the TRPA Defendants to deprive him of his constitutional rights (claim 24) fails. If his claim was based on state constitutions, it fails as preempted. If it was based on the U.S. Constitution, it fails because he didn't plausibly allege that the Private-Party Defendants conspired to deprive him of anything the Constitution guaranteed. His claim that Complete Wireless Consulting's application for a permit-and the resulting issuance of the permit-was void because it did not register to do business in Nevada (claim 30) fails because the statute requiring registration states that a failure to register "does not impair the validity of any ... act of the corporation." Nev. Rev. Stat. § 80.055(6).
All of Garmong's remaining claims against the Private-Party Defendants (claims 13, 28, 29, 32, and 34) fail because they alleged misconduct occurring in the course of petitioning the TRPA for a permit. Such conduct is immunized by the Noerr-Pennington doctrine. See Sosa v. DIRECTV, Inc., 437 F.3d 923, 929 (9th Cir. 2006). Despite Garmong's arguments, mere misrepresentations don't prevent the application of the doctrine in an adjudicatory process unless they show that the defendants' petition was a "sham." See Kottle v. Nw. Kidney Centers, 146 F.3d 1056, 1060 (9th Cir. 1998). Because Garmong specifically disclaimed any argument that the "sham" exception applies, the Noerr-Pennington doctrine bars these claims.
Nor does Garmong show that the district court erred in denying him leave to amend his complaint. The district court found that amendment would be futile, and Garmong raises no argument on appeal against the district court's analysis of futility, waiving his argument on this score. See W. Radio Servs. Co. v. Qwest Corp., 678 F.3d 970, 979 (9th Cir. 2012) ("We will not do an appellant's work for it ... by manufacturing its legal arguments.").
Finally, we affirm the denial of Garmong's motion for a preliminary injunction because his underlying complaint was properly dismissed without leave to amend. See Sec. &Exch. Comm'n v. Mount Vernon Mem'l Park, 664 F.2d 1358, 1361 (9th Cir. 1982).
AFFIRMED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
[**] The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.