Nora Phillips; v. U.s. Customs and Border Protection;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORA PHILLIPS; et al.,
Plaintiffs-Appellants,
v.
U.S. CUSTOMS AND BORDER
PROTECTION; et al.,
Defendants-Appellees.
No. 21-55768
D.C. No.
2:19-cv-06338-SVW-JEM
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted February 9, 2023
Pasadena, California
Before: SCHROEDER, TALLMAN, and IKUTA, Circuit Judges.
FILED
JUL 21 2023
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.

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Three plaintiffs, Nora Phillips, Erika Pinheiro, and Nathaniel Dennison
(collectively, plaintiffs), challenge the district court’s denial of their requests for
additional discovery. We have jurisdiction, see 28 U.S.C. § 1291, and we affirm.1
We reject plaintiffs’ argument that the district court erred by granting the
government’s “motion for summary judgment without first having determined the
merits of plaintiff[s’] pending discovery motion.” Garrett v. City & County of San
Francisco, 818 F.2d 1515, 1519 (9th Cir. 1987). The record establishes that the
district court denied plaintiffs’ request for additional discovery regarding a pending
internal government investigation before the court granted summary judgment in
favor of the government.
The district court did not abuse its discretion in denying plaintiffs’ requests
for additional discovery. The district court granted summary judgment on
plaintiffs’ constitutional claims for failure to establish standing to seek
expungement or injunctive relief, and plaintiffs failed to identify and explain how
additional discovery would provide them with evidence that “would have
precluded” the district court from granting summary judgment on that basis.
Tatum v. City & County of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006).
1 We affirm the district court’s grant of summary judgment to the
government because plaintiffs failed to establish Article III standing in an opinion
filed contemporaneously with this disposition. --F. 4th-- (9th Cir. 2023).
2

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With respect to standing to seek expungement, plaintiffs conceded to the district
court that they did not anticipate needing any additional discovery to support their
claim, a position that is consistent with plaintiffs’ theory on appeal that the
government’s retention of records, without more, establishes standing. As to other
prospective injunctive relief, plaintiffs failed to identify how the government’s
alleged surveillance posed an ongoing or imminent future threat to them, and
therefore they could not explain how additional discovery would have precluded
the district court’s grant of summary judgment on standing grounds. Thus, the
district court did not abuse its discretion in determining that the additional
requested discovery was not “essential” to establish standing to seek the injunction.
See id. Even assuming the additional discovery would have strengthened the
merits of plaintiffs’ constitutional claims, it “would not have shed light” on Article
III standing, which is the issue on which the summary judgment decision was
based. Qualls v. Blue Cross of Cal., Inc., 22 F.3d 839, 844 (9th Cir. 1994).
Finally, the district court provided its reasoning for denying additional
discovery by identifying the correct standard and finding that it was not satisfied.
See Stevens v. Corelogic, Inc., 899 F.3d 666, 677–79 (9th Cir. 2018).
AFFIRMED.
3

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