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Pacific Shores Props., LLC v. City of Newport Beach

United States Court of Appeals, Ninth Circuit

March 4, 2014

PACIFIC SHORES PROPERTIES, LLC, a California limited liability company; ALICE CONNER; SEAN WISEMAN; TERRI BRIDGEMAN, Plaintiffs-Appellants, ANDREW BLAIR, Plaintiff,
v.
CITY OF NEWPORT BEACH, a California municipal corporation, Defendant-Appellee. NEWPORT COAST RECOVERY LLC, a California Limited Liability Company; YELLOWSTONE WOMEN'S FIRST STEP HOUSE, INC., Plaintiffs-Appellants,
v.
CITY OF NEWPORT BEACH, a California municipal corporation, Defendant-Appellee

D.C. No. 8:08-cv-00457-JVS-RNB, D.C. No. 8:09-cv-00701-JVS-RNB.

For PACIFIC SHORES PROPERTIES, LLC, a California limited liability company, ALICE CONNER, SEAN WISEMAN, ANDREW BLAIR, TERRI BRIDGEMAN, Plaintiffs - Appellants (11-55460): Christopher Brancart, Attorney, Elizabeth Brancart, Esquire, Attorney, BRANCART & BRANCART, Pescadero, CA; Steven Polin, LAW OFFICES OF STEVEN G. POLIN, Washington, DC.

For CITY OF NEWPORT BEACH, a California municipal corporation, Defendant - Appellee (11-55460): Toussaint Salim Bailey, Esquire, Attorney, Patrick Bobko, Thomas Peter Pierce, Richards, Watson & Gershon, Los Angeles, CA; Kyle E. Rowen, Attorney, Wesierski & Zurek LLP, Irvine, CA.

For DISABILITY RIGHTS LEGAL CENTER, DISABILITY RIGHTS CALIFORNIA, WESTERN CENTER ON LAW AND POVERTY, DISABILITY RIGHTS EDUCATION AND DEFENSE FUND, Amicus Curiae (11-55460, 11-55461): Chris Mark Amantea, Esquire, Hunton & Williams LLP, Los Angeles, CA.

For UNITED STATES OF AMERICA, Amicus Curiae (11-55460, 11-55461): Teresa Kwong, Attorney, DOJ - U.S. DEPARTMENT OF JUSTICE, Civil Rights Division/Appellate Section, Washington, DC; Dennis John Dimsey, Esquire, Deputy Section Chief, DOJ - U.S. Department of Justice, Civil Division - Appellate Staff, Washington, DC.

For LEAGUE OF CALIFORNIA CITIES, Amicus Curiae (11-55460, 11-55461): Jeffrey Vincent Dunn, Esquire, Principal Litigation Counsel, Best Best & Krieger, LLP, Irvine, CA; Kira L. Klatchko, BEST, BEST & KRIEGER, LLP, Indian Wells, CA.

For NEWPORT COAST RECOVERY LLC, a California Limited Liability Company, YELLOWSTONE WOMEN'S FIRST STEP HOUSE, INC., Plaintiffs - Appellants (11-55461): Christopher Brancart, Attorney, Elizabeth Brancart, Esquire, Attorney, BRANCART & BRANCART, Pescadero, CA; Steven Polin, LAW OFFICES OF STEVEN G. POLIN, Washington, DC.

For CITY OF NEWPORT BEACH, a California municipal corporation, Defendant - Appellee (11-55461): Toussaint Salim Bailey, Esquire, Attorney, Patrick Bobko, Thomas Peter Pierce, Richards, Watson & Gershon, Los Angeles, CA; Kyle E. Rowen, Attorney, Wesierski & Zurek LLP, Irvine, CA; Aaron C. Harp, Attorney, OFFICE OF THE CITY ATTORNEY, Newport Beach, CA.

Before: Alex Kozinski, Chief Judge, and Stephen Reinhardt and Sidney R. Thomas, Circuit Judges. Dissent by Judge O'Scannlain. O'SCANNLAIN, Circuit Judge, joined by TALLMAN, CALLAHAN, BEA, and IKUTA, Circuit Judges, dissenting from the denial of rehearing en banc.

OPINION

ORDER

A sua sponte call for a vote on rehearing this case en banc was made by an active judge of this court. The call failed to receive a majority of the votes of the nonrecused active judges. Fed. R.App. P. 35. The sua sponte en banc call is rejected.

Page 937

Judge O'Scannlain's dissent from denial of rehearing en banc is filed concurrently with this Order.

DISSENT

O'SCANNLAIN, Circuit Judge, joined by TALLMAN, CALLAHAN, BEA, and IKUTA, Circuit Judges, dissenting from the denial of rehearing en banc:

The panel's opinion in these consolidated cases invents an entirely unprecedented theory of actionable government discrimination: sinister intent in the enactment of facially neutral legislation can generate civil liability without evidence of discriminatory effect.

Such unwarranted expansion of " disparate treatment" doctrine, moreover, recognizes no principled limit. A single member of any protected class will now be able to challenge a facially neutral--and evenly applied--municipal ordinance without having suffered any actual discrimination.

Our Court, alone among the nation's appellate tribunals, has embarked on an uncharted and highly dubious course. I respectfully dissent from our ...


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