CHARLES FRANCIS VULLIET, Sr. v. State of Oregon;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES FRANCIS VULLIET, Sr.,
Plaintiff-Appellant,
v.
STATE OF OREGON; et al.,
Defendants-Appellees.
No. 13-35224
D.C. No. 6:12-cv-00492-AA
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, District Judge, Presiding
Submitted June 26, 2017**
Before: PAEZ, BEA, and MURGUIA, Circuit Judges.
Charles Francis Vulliet, Sr., appeals pro se from the district court’s summary
judgment and dismissal order in his 42 U.S.C. § 1983 action challenging the
constitutionality of Oregon’s deadline for registering a party affiliation in order to
appear on the primary ballot as a major party candidate. We have jurisdiction
* 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).
FILED
JUN 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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under 28 U.S.C. § 1291. We review de novo, and may affirm on any ground
supported by the record. Crowley v. Nev. ex rel. Nev. Sec’y of State, 678 F.3d 730,
733-34 (9th Cir. 2012). We affirm.
The district court properly dismissed Vulliet’s claims against the State of
Oregon as barred by the Eleventh Amendment because the State has not consented
to suit. See Or. Short Line R.R. v. Dep’t of Revenue Or., 139 F.3d 1259, 1263 (9th
Cir. 1998) (setting forth standard of review and holding that the Eleventh
Amendment bars suits against a state by its own citizens).
Summary judgment was proper on Vulliet’s claims that Oregon’s party
affiliation requirement violates the First and Fourteenth Amendments because
Vuillet failed to raise a genuine dispute of material fact as to whether Oregon’s
180-day affiliation requirement for major party candidates seriously restricts his
political opportunity and furthers important regulatory interests. See Timmons v.
Twin Cities Area New Party, 520 U.S. 351, 358 (1997) (setting forth balancing test
for deciding whether a state election law violates First and Fourteenth Amendment
speech rights); Storer v. Brown, 415 U.S. 724, 736 (1974) (upholding a state’s one-
year disaffiliation requirement for independent-candidate ballot access on the basis
of “the State’s interest in the stability of its political system”).

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Summary judgment was proper on Vulliet’s claim that Oregon Revised
Statute § 249.046 violates the Qualifications Clause of the United States
Constitution because the statute does not create any additional qualifications for
congressional office. See Storer, 415 U.S. at 746 n.16 (rejecting as “wholly
without merit” the contention that a ballot-access requirement “purports to
establish an additional qualification for office of Representative”).
The district court properly dismissed for lack of standing Vulliet’s challenge
to Oregon’s election laws as they relate to minor party or unaffiliated candidates
because Vulliet did not allege an injury in fact. See Lewis v. Cont’l Bank Corp.,
494 U.S. 472, 479 (1990) (a plaintiff must have “a specific live grievance against
the application of the statutes . . . and not just an abstract disagreement over the
constitutionality of such application . . . .” (citations, internal quotation marks, and
alternation omitted); Braunstein v. Ariz. Dep’t of Transp., 683 F.3d 1177, 1184
(9th Cir. 2012) (setting forth standard of review and requirements for Article III
standing).
The district court did not abuse its discretion by denying Vulliet’s motion for
leave to amend his complaint because amendment would be futile. See Thinket Ink
Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir. 2004)

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(dismissal without leave to amend is improper unless it is clear that the complaint
could not be saved by any amendment).
We reject as without merit Vulliet’s contention that the district court should
have stricken Trout’s Declaration.
We do not consider arguments raised in Vulliet’s opening brief that were not
raised before the district court. See Solis v. Matheson, 563 F.3d 425, 437 (9th
Cir. 2009) (arguments made for the first time on appeal and not before the district
court are waived).
AFFIRMED.

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