DESOTO CAB COMPANY, INC., DBA Flywheel Taxi v. Michael Picker

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DESOTO CAB COMPANY, INC., DBA
Flywheel Taxi,
Plaintiff-Appellant,
v.
MICHAEL PICKER, In his official capacity
as Commissioner of the Public Utilities
Commission of the State of California;
CARLA PETERMAN, In her official
capacity as Commissioner of the Public
Utilities Commission of the State of
California; LIANE RANDOLPH, In her
official capacity as Commissioner of the
Public Utilities Commission of the State of
California; MARTHA GUZMAN ACEVES,
In her official capacity as Commissioner of
the Public Utilities Commission of the State
of California; CLIFFORD
RECHTSCHAFFEN, In his official capacity
as Commissioner of the Public Utilities
Commission of the State of California,
Defendants-Appellees.
No. 17-15261
D.C. No. 3:15-cv-04375-EMC
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
MAR 12 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Argued and Submitted February 12, 2018
San Francisco, California
Before: KLEINFELD and TALLMAN, Circuit Judges, and JACK,** District
Judge.
Desoto Cab Company, d/b/a Flywheel Taxi (“Flywheel”) appeals judgment
on the pleadings dismissing its 42 U.S.C. § 1983 equal protection claim against the
Commissioners of the California Public Utilities Commission (“CPUC”), and
denying its motion to amend the complaint as futile. We have jurisdiction under
28 U.S.C. § 1291 and affirm.
Although the district court dismissed the case without deciding whether
Flywheel has Article III standing, we may affirm on any ground supported by the
record. B.C. v. Plumas Unified Sch. Dist., 192 F.3d 1260, 1263 (9th Cir. 1999).
We conclude that Flywheel lacks standing to seek a declaratory judgment
regarding the CPUC’s exercise of jurisdiction over Transportation Network
Companies (“TNCs”).
After the CPUC exercised jurisdiction over TNCs in its September 2013
Decision, but before Flywheel brought this action, the California Legislature
amended the Passenger Charter-Party Carriers’ Act to include an article specific to
TNCs. Cal. Pub. Util. Code §§ 5430–43. The amendments recognized that the
** The Honorable Janis Graham Jack, United States District Judge for
the Southern District of Texas, sitting by designation.

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CPUC “has initiated regulation of [TNCs] as a new category of charter-party
carriers and continues to develop appropriate regulations for this new service.” Id.
§ 5440(a). The Legislature declared that it “does not intend . . . to prohibit the
[CPUC] from exercising its rulemaking authority” and “inten[ds] . . . to continue
ongoing oversight of the [CPUC]’s regulation of these services in order to enact
legislation to adjust commission authority[.]” Id. §§ 5440(b), 5441.
These statutory amendments, which took effect in January 2015, ratified the
CPUC’s September 2013 Decision. See Yeoman v. Dep’t of Motor Vehicles, 78
Cal. Rptr. 251, 258–60 (Cal. Ct. App. 1969); S. Cal. Edison Co. v. Pub. Utils.
Comm’n, 173 Cal. Rptr. 3d 120, 134–35 (Cal. Ct. App. 2014), as modified (June
18, 2014). “From that time forward the [CPUC’s Decision] must be considered as
valid and binding.” Yeoman, 78 Cal. Rptr. at 260. Flywheel does not challenge
the constitutionality of this legislation, under which the CPUC would no doubt
continue regulating TNCs even if we were to vacate the initial September 2013
Decision. To enjoin the CPUC from regulating TNCs, we would have to treat the
legislation as unconstitutional. But Flywheel has expressly waived any challenge
to the constitutionality of the statute, so we cannot grant relief on that basis.
Flywheel argues it can nonetheless establish redressability because the
declaratory judgment it seeks in this action—filed September 2015—could support
a damages judgment in a related, but separate unfair competition lawsuit that

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Flywheel filed against Uber in November 2016. Flywheel contends that, even if
the Legislature ratified the CPUC’s Decision, the regulatory scheme was
unconstitutional for the 15-month period during which the CPUC regulated TNCs
without legislative approval.
But standing is assessed based on the facts that existed when the lawsuit was
filed. Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 838 (9th Cir.
2007) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 569 n.4 (1992)). “The party
invoking the jurisdiction of the court cannot rely on events that unfolded after the
filing of the complaint to establish its standing.” Wilbur v. Locke, 423 F.3d 1101,
1107 (9th Cir. 2005) (citation omitted), abrogated on other grounds by Levin v.
Commerce Energy, Inc., 560 U.S. 413 (2010). Flywheel may not retroactively
manufacture standing by leveraging a different lawsuit it filed over a year after
filing the present one. See W. Watersheds Project v. Kraayenbrink, 632 F.3d 472,
483 n.6 (9th Cir. 2011). Flywheel’s latest lawsuit against Uber is irrelevant to our
standing inquiry.
Flywheel has therefore failed to “show that there would be a change in a
legal status as a consequence of a favorable decision and that a practical
consequence of that change would amount to a significant increase in the
likelihood that the plaintiff would obtain relief that directly redresses the injury
suffered.” Novak v. United States, 795 F.3d 1012, 1019–20 (9th Cir. 2015)

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(quotations omitted). In short, the alleged harm is not redressable. Because
Flywheel lacked standing in September 2015 to assert its equal protection claim
regarding the CPUC’s 2013 Decision, neither we nor the district court have subject
matter jurisdiction over the action. Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174
(9th Cir. 2004).1
Costs are awarded to the Appellee. See Fed. R. App. P. 39(a)(2).
AFFIRMED.
1 Because we conclude Flywheel lacks standing, we need not address the CPUC’s
motion to strike portions of Flywheel’s reply brief.

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