MAURICE UNDERWOOD and RENO MOVERS, LLC v. Andrew J. Mackay;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAURICE UNDERWOOD and RENO
MOVERS, LLC,
Plaintiffs - Appellants,
v.
ANDREW J. MACKAY; et al.,
Defendants - Appellees.
No. 13-16313
D.C. No.
3:12-cv-00533-MMD-VPC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Argued and Submitted May 14, 2015
San Francisco, California
Before: PAEZ and CLIFTON, Circuit Judges, and DUFFY, District Judge. **
Maurice Underwood and Reno Movers, LLC (“Plaintiffs”) appeal the district
court’s dismissal, under Rule 12(b)(1) of the Federal Rules of Civil Procedure, of
their suit for declaratory and injunctive relief against several commissioners and
FILED
JUN 11 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Kevin Thomas Duffy, District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.

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staff of the Nevada Transportation Authority, all in their official capacities
(“Defendants”). Plaintiffs’ suit challenges the constitutionality of several Nevada
motor carrier licensing requirements, Nevada Revised Statutes (“NRS”) §§
706.391 and 706.151 and Nevada Administrative Code (“NAC”) § 706.1375.
These statutes require would-be movers to apply for a Certificate of Public
Convenience and Necessity (“Certificate”) and appear at a hearing. Plaintiffs
claim that the licensing scheme is unconstitutional because it permits Defendants
to consider whether granting a Certificate would be competitively detrimental to
existing moving companies. See NRS § 706.391(2)(a) & (c). Plaintiffs also allege
that certain licensing criteria are void for vagueness. The district court dismissed
Plaintiffs’ claims as unripe. For the reasons set forth herein, we affirm the
judgment of the district court.
Plaintiffs have never completed an application for a Certificate. They admit
that they once submitted an application and then withdrew it on the advice of
counsel. Plaintiffs state that they are ready to operate a full-service moving
company, but without a Certificate, can only legally operate a loading and
unloading service and may not drive moving vans from place to place.
“The ripeness of a claim is reviewed de novo.” Freedom to Travel
Campaign v. Newcomb, 82 F.3d 1431, 1434 (9th Cir. 1996). “In reviewing the
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Rule 12(b)(1) dismissal, we must accept all factual allegations in the complaint as
true.” Carson Harbor Vill., Ltd. v. City of Carson, 353 F.3d 824, 826 (9th Cir.
2004). Plaintiffs bear the burden of proving that their claim is ripe. See Ass’n of
Am. Med. Colls. v. United States, 217 F.3d 770, 778-79 (9th Cir. 2000).
Ripeness is “‘a question of timing’” and is “designed to ‘prevent the courts,
through avoidance of premature adjudication, from entangling themselves in
abstract disagreements.’” Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d
1134, 1138 (9th Cir. 2000) (en banc) (internal citations omitted). Ripeness has
both prudential and constitutional dimensions. Id. “Prudential ripeness . . .
involves ‘two overarching considerations: the fitness of the issues for judicial
review and the hardship to the parties of withholding court consideration.’” Alaska
Right to Life Political Action Comm. v. Feldman, 504 F.3d 840, 849 (9th Cir.
2007) (quoting Thomas, 220 F.3d at 1141).
The fitness prong of the prudential ripeness inquiry asks whether “judicial
resolution of the question presented . . . should await a concrete dispute.” Nat’l
Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803, 812 (2003). Even a case
that is “purely legal” may be deemed unripe if “further factual development would
‘significantly advance our ability to deal with the legal issues presented.’” Id.
(internal citations omitted).
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Plaintiffs argue that a party is not necessarily required to apply for a license
in order to challenge a licensing scheme. See, e.g., City of Chicago v. Atchison,
Topeka & Santa Fe Ry. Co., 357 U.S. 77, 89 (1958); Inland Empire Chapter of
Associated Gen. Contractors of Am. v. Dear, 77 F.3d 296, 299 (9th Cir. 1996). In
contrast to the cases that Plaintiffs cite, however, it is not at all clear how the
statutes at issue would be applied to Plaintiffs, whether the statutes would be
applied unconstitutionally, or whether the statutes would operate to deprive
Plaintiffs of anything. See Thomas, 220 F.3d at 1142. In particular, subsection 3
of NRS § 706.391 seems to prevent the precise harm that Plaintiffs fear by
forbidding Defendants from deciding an application on competitive grounds alone.
Without the denial of an application, Plaintiffs’ claimed injury is too speculative
and hypothetical to be fit for review.
Plaintiffs’ claims also fail on the hardship inquiry. Hardship considers “the
degree and nature of the regulation’s present effect on those seeking relief.” Toilet
Goods Ass’n v. Gardner, 387 U.S. 158, 164 (1967). Plaintiffs assert that the
statutes deprive them of their right to pursue their occupation of choice, but have
failed to apply for a Certificate. Plaintiffs’ argument that submitting to evaluation
under unconstitutional criteria is an injury in itself likewise fails because, as noted,
it is not clear that Plaintiffs’ application would be evaluated using unconstitutional
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criteria. Moreover, Plaintiffs fail to demonstrate that the process itself works a
hardship because Plaintiffs acknowledge that parts of the licensing process are
valid, and therefore, subjecting Plaintiffs to procedural requirements does not
cause them harm. Cf. Sayles Hydro Assocs. v. Maughan, 985 F.2d 451, 454 (9th
Cir. 1993). Plaintiffs have thus failed to demonstrate hardship under the prudential
ripeness test.
Plaintiffs’ void for vagueness challenge is also unripe because it is not clear
how Defendants apply the challenged criteria, and if and how Defendants exercise
their discretion.1 See Freedom to Travel, 82 F.3d at 1441. Because Plaintiffs’
claims are unripe under the prudential standard, we will not analyze the three-
factor constitutional ripeness standard. See Thomas, 220 F.3d at 1141.
Accordingly, the district court’s dismissal of Plaintiffs’ claims under Rule
12(b)(1) of the Federal Rules of Civil Procedure is AFFIRMED.
1 Because Plaintiffs’ claims are not ripe, we decline the parties’ invitation to
take judicial notice of Defendant Mackay’s testimony, and deny the motion as
moot.
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