                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       APR 25 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

NATIONAL CONFERENCE OF                           No.   15-56388
PERSONAL MANAGERS, INC., a Nevada
not-for-profit corporation,                      D.C. No.
                                                 2:12-cv-09620-DDP-RZ
                Plaintiff-Appellant,

 v.                                              MEMORANDUM*

EDMUND G. BROWN, Jr., Governor of the
State of California, in his official capacity,
and JULIE A. SU, California Labor
Commissioner, in her official capacity,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                   Dean D. Pregerson, District Judge, Presiding

                             Submitted April 6, 2017**
                               Pasadena, California

Before: PLAGER,*** CLIFTON, and OWENS, Circuit Judges.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable S. Jay Plager, United States Circuit Judge for the U.S.
Court of Appeals for the Federal Circuit, sitting by designation.
      The National Conference of Personal Managers (“NCOPM”) appeals from

the district court’s dismissal of its claims against the California Governor and

Labor Commissioner for failure to state a claim.1 NCOPM alleged that the

defendants’ enforcement and interpretation of the California Talent Agencies Act

(“TAA”), Cal. Lab. Code §§ 1700 et seq., are unconstitutional under the

Fourteenth Amendment, Commerce Clause, and First Amendment. As the parties

are familiar with the facts, we do not recount them here. We have jurisdiction

under 28 U.S.C. § 1291. We affirm.

      1.     The district court correctly determined that the Governor had

sovereign immunity from this suit because he lacked the requisite connection to

enforcement of the TAA. To overcome the protections of sovereign immunity to

sue a state official, the plaintiff must show that the official “[has] some connection

with the enforcement of the act[.]” Ex Parte Young, 209 U.S. 123, 157 (1908).

The Governor is responsible for executing and enforcing the laws of California, but

the general enforcement of laws does not establish the “requisite enforcement

connection” to overcome sovereign immunity. Nat’l Audubon Soc’y, Inc. v. Davis,

307 F.3d 835, 847 (9th Cir. 2002).

      The district court correctly determined that the Labor Commissioner had the


1
  NCOPM also appealed the dismissal of its claims against the California Attorney
General, who is no longer a party to this appeal following this court’s order and a
stipulated dismissal pursuant to Fed. R. App. Proc. 42(b).

                                          2
requisite connection to enforcement of the TAA to be sued. See Cal. Lab. Code

§§ 1700.3, 1700.6, 1700.7, 1700.15, 1700.21, and 1700.29. These connections are

sufficient such that the Labor Commissioner is subject to suit under Ex Parte

Young.

      The district court also correctly determined that NCOPM had standing for

declaratory and injunctive relief. The district court determined that NCOPM

represents members who were subject to enforcement of the TAA based on the

State’s past enforcement actions and therefore had the “real and reasonable

apprehension that [they] will be subject to liability[.]” Societe de Conditionnement

en Aluminium v. Hunter Eng’g Co., 655 F.2d 938, 944 (9th Cir. 1981).

      2.     The district court properly dismissed with prejudice NCOPM’s

Fourteenth Amendment claim that the TAA violates due process based on facial

and as-applied vagueness. A law is unconstitutionally vague if it does not provide

a “person of ordinary intelligence a reasonable opportunity to know what is

prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S.

104, 108 (1972). NCOPM challenges Cal. Lab. Code §§ 1700.4 and 1700.5 for

vagueness, because neither statute allegedly provides adequate notice as to what

actions constitute “procuring . . . employment.” In rejecting a vagueness challenge

to the TAA, the California Court of Appeal noted that Webster’s Dictionary

defines “procure” as “to get possession of: obtain, acquire, to cause to happen or be


                                         3
done: bring about.” Wachs v. Curry, 16 Cal. Rptr. 2d 496, 503 (Cal. Ct. App.

1993), abrogated on other grounds, see Marathon Entm’t, Inc. v. Blasi, 174 P.3d

741, 748 n.6 (Cal. 2008). As the Wachs court observed, the term “procure” is used

with respect to employment in several other California statutes and is not “so

lacking in objective content as to render the Act facially unconstitutional” or

unconstitutional as-applied here. Id.

      3.     The district court properly dismissed with prejudice NCOPM’s claim

that the TAA violates the dormant Commerce Clause. NCOPM argues that the

TAA violates the Commerce Clause because it does not permit out-of-state

licenses. But § 1700.19(b) merely provides than an actual license must contain an

address of the location in which the licensee is authorized to conduct business as a

talent agency – the law does not preclude out-of-state parties from becoming

licensed talent agencies.

      NCOPM also argues that § 1700.44(d) creates a discriminatory two-tier

system for talent representation, because out-of-state parties cannot become

licensed and therefore any out-of-state party can only negotiate an employment

contract with the consent of an in-state licensed agency. But § 1700.44(d) merely

provides that “[i]t is not unlawful” for an unlicensed person or corporation to act

“in conjunction with, and at the request of, a licensed talent agency in the

negotiation of an employment contract.” It does not preclude out-of-state


                                          4
licensees.

      In addition, NCOPM argues that § 1700.12(b) is discriminatory because it

imposes a $50 fee on in-state talent agency offices. This is true, but this $50 fee

does not discriminate against out-of-state parties and therefore does not violate the

Commerce Clause.

      4.     The district court properly dismissed with prejudice NCOPM’s claim

that the TAA violated the First Amendment. We agree with the district court that

the TAA regulates non-expressive conduct, not speech. Because the TAA

“regulates a professional practice that is not inherently expressive, it does not

implicate the First Amendment.” Pickup v. Brown, 740 F.3d 1208, 1230 (9th Cir.

2014). It is only subject to rational basis review, which it survives. See Marathon

Entm’t, Inc., 174 P.3d at 746-47 (noting that the TAA was enacted to prevent the

exploitation of artists by representatives).

      5.     We grant the appellees’ request for judicial notice. See W. Radio

Servs. Co. v. Qwest Corp., 530 F.3d 1186, 1192 n.4 (9th Cir. 2008).

      AFFIRMED.




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