Unpublished Disposition, 860 F.2d 1088 (9th Cir. 1988)

No. 87-2588.

United States Court of Appeals, Ninth Circuit.

Before EUGENE A. WRIGHT and POOLE, Circuit Judges, and HARRY L. HUPP, District Judge.^** 

MEMORANDUM^*** 

Plaintiffs-appellants (plaintiffs), former holders of Nevada licenses to practice naturopathy, their patients, and conventional physicians who contract with both for the provision of naturopathic treatment, brought this action in federal court against the State of Nevada and Governor Richard Bryan in his official capacity. They alleged that Chapter 542 of the 1987 Nevada Statutes, which terminates existing licenses to engage in the practice of naturopathic healing, violates the Fourteenth Amendment and the Contracts Clause of the United States Constituion. Governor Bryan's allegedly unconstitutional act was to sign the Act into law. Plaintiffs sought a declaration that the Act is unconstitutional and a permanent injunction against its enforcement.

We review the district court's conclusion that it lacked subject matter jurisdiction de novo. Charley's Taxi Radio Dispatch Corp. v. Sida of Hawaii, Inc., 810 F.2d 869, 873 (9th Cir. 1987). We may affirm the district court on any basis supported by the record. City of Las Vegas v. Clark County, 755 F.2d 697, 701 (9th Cir. 1985).

The Eleventh Amendment prohibits federal courts from entertaining suits by private citizens against a state or its agencies, regardless of the nature of relief the sought. Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Plaintiffs' suit against the state in federal court is clearly barred by the Eleventh Amendment.

The claim against Governor Bryan is also barred. State officials are absolutely immune from suit under 42 U.S.C. § 1983 predicated on their legislative acts. Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 732-34 (1980); Gutierrez v. Municipal Court of Southeast Judicial Dist., 838 F.2d 1031, 1046 (9th Cir. 1988). Governor Bryan is therefore immune from suit for his act of signing the Act into law. Insofar as plaintiffs allege that his enforcement of the Act (an executive function) would violate their constitutional rights, their suit is barred for lack of standing. An Article III, Section 2 "Case" or "Controversy" exists when the plaintiff demonstrates that (1) it has suffered injury-in-fact fairly traceable to the defendant's conduct, and (2) there is a substantial likelihood that the relief requested will redress the injury alleged. Johnson v. Weinberger, No. 87-2566, slip op. at 7576 (9th Cir. June 27, 1988). Plaintiffs fail both prongs of this test. They have not articulated any threat by Governor Bryan to "enforce" the Act against them, see Steffel v. Thompson, 415 U.S. 452, 455-56 & n. 4 (1974); Stoianoff v. State of Montana, 695 F.2d 1214, 1223 (9th Cir. 1983), and therefore have suffered no injury-in-fact fairly traceable to his conduct. Because the Attorney General and the local district attorneys are responsible for enforcing the laws of Nevada, see NRS 228.120; NRS 228.170; Houston v. Humboldt County, 561 F. Supp. 1124, 1128 (D. Nev. 1983), aff'd, 725 F.2d 516 (9th Cir. 1984), an injunction against Governor Bryan is unlikely to provide redress.¹  We conclude that plaintiffs have failed to allege a case or controversy within the meaning of Article III, Section 2.

The decision of the district court, dismissing this case for lack of subject matter jurisdiction, is affirmed.

AFFIRMED.