                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 26 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

ALAN BARCELONA,                                 No.    16-15375

                Plaintiff-Appellant,            D.C. No.
                                                2:14-cv-02389-TLN-KJN
 v.

STATE OF CALIFORNIA DEPARTMENT                  MEMORANDUM*
OF JUSTICE; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Eastern District of California
                    Troy L. Nunley, District Judge, Presiding

                    Argued and Submitted September 15, 2017
                            San Francisco, California

Before: SCHROEDER and FRIEDLAND, Circuit Judges, and WHALEY,**
District Judge.

      Appellant Alan Barcelona, a peace officer employed by the California

Department of Justice (“DOJ”), was the subject of an internal DOJ investigation

that ultimately ended without adverse consequences. Barcelona alleges that DOJ’s


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
actions during the investigation violated his rights under the First Amendment and

the California Public Safety Officers Procedural Bill of Rights Act (“POBR”).

With respect to the First Amendment, Barcelona seeks injunctive relief—but not

damages—under 42 U.S.C. § 1983, and attorney’s fees under 42 U.S.C. § 1988.

With respect to the POBR, he seeks injunctive and declaratory relief as well as

damages. The district court granted DOJ’s motion for summary judgment on the

merits of both the federal and state law claims.

      As an initial matter, Barcelona lacks standing to assert a claim for equitable

relief under either the First Amendment or the POBR. Barcelona cannot properly

challenge DOJ’s investigation policies “where there is no showing of any real or

immediate threat that [he] will be wronged” by such policies again. City of Los

Angeles v. Lyons, 461 U.S. 95, 111 (1983). While Barcelona seeks broad equitable

relief requiring DOJ to change its practices, he has presented no evidence that he is

frequently the subject of investigation or that he is likely to be the subject of

investigation again in the future. He has thus failed to “show an actual or

imminent injury to a legally protected interest.” Lopez v. Candaele, 630 F.3d 775,

785 (9th Cir. 2010). Accordingly, we vacate the district court’s denial on the

merits of Barcelona’s requests for injunctive and declaratory relief, and remand

with instructions to dismiss the equitable relief claims without prejudice for lack of

standing.


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      Because Barcelona also seeks damages under the POBR, there was and still

is jurisdiction over this claim. Barcelona contends that DOJ violated the POBR

when it prohibited a designated witness from representing him during his

interrogation. Specifically, California Government Code § 3303(i) provides that a

public safety officer has the right to a representative of his or her choice during an

interrogation, but that “representative shall not be a person subject to the same

investigation.” DOJ argues that this includes witnesses to an investigation;

Barcelona disagrees.

      When evaluating an issue of California law, “this court ‘predict[s] how the

highest [California] court would decide the issue.’” Garcia v. PacifiCare of Cal.,

Inc., 750 F.3d 1113, 1116 (9th Cir. 2014) (quoting Credit Suisse First Boston

Corp. v. Grunwald, 400 F.3d 1119, 1126 (9th Cir. 2005)) (alterations in original).

Following the California Supreme Court’s decision in Pasadena Police Officers

Ass’n v. City of Pasadena, 797 P.2d 608, 616 (Cal. 1990), the district court

properly concluded that the statute precludes a witness to an investigation from

serving as a representative in that same investigation. Accordingly, DOJ did not

violate the POBR.

      For the reasons discussed above, we (1) VACATE the district court’s denial

of Barcelona’s claims for injunctive and declaratory relief and REMAND with

instructions to dismiss without prejudice for lack of standing; and (2) AFFIRM the


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district court’s grant of summary judgment in favor of DOJ on Barcelona’s claim

for damages under the POBR.




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