DANIEL LEVIN V. CITY & COUNTY OF SAN FRANCISCO, No. 14-17283 (9th Cir. 2017)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MAR 13 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DANIEL LEVIN; MARIA LEVIN; PARKLANE ASSOCIATES, L.P.; SAN FRANCISCO APARTMENT ASSOCIATION; COALITION FOR BETTER HOUSING, No. 14-17283 DC No. CV 14-03352 CRB MEMORANDUM* Plaintiffs-Appellees, DAVID GREENE, Intervenor, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant-Appellant. Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding Argued and Submitted February 14, 2017 San Francisco, California * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: SILER,** TASHIMA, and HURWITZ, Circuit Judges. The City and County of San Francisco (the “City”) appeals from the district court’s judgment enjoining the enforcement of a City ordinance. While this appeal was pending, the City amended the ordinance to address the district court’s concerns. Because those amendments “sufficiently altered [the ordinance] so as to present a substantially different controversy from the one the District Court originally decided,” the appeal is now moot. See Ne. Fla. Chapter of the Assoc. Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 662 n.3 (1993) (internal quotation marks omitted). The City argues that, if the appeal is moot, we should order the district court to vacate its judgment. The general rule is to allow the lower court’s judgment to stand “when the appellant rendered the appeal moot by his own act.” Blair v. Shanahan, 38 F.3d 1514, 1520 (9th Cir. 1994). An exception may apply, however, if the appellant is a governmental entity. See Chem. Producers & Distribs. v. Helliker, 463 F.3d 871, 879 (9th Cir. 2006). Chemical Producers left open the question of whether “lesser public bodies,” like the City, are entitled to the benefit of that exception. Id. at 880. Rather than decide the issue in the first instance, we ** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 2 will remand to the district court to consider whether its judgment should be vacated in light of the adoption of the new ordinance. Accordingly, we DISMISS the appeal as moot, and REMAND with instructions to consider whether the judgment should be vacated. See Blair, 38 F.3d at 1516. 3
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