NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 11 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUSTIN G. REEDY, No. 22-16214

Plaintiff-Appellant, D.C. No. 2:21-cv-00223-TLN-CKD v.

CALIFORNIA DEPARTMENT OF MEMORANDUM* SOCIAL SERVICES; MARK GHALY, Secretary of the California Health and Human Services, in his official and individual capacity; KIM JOHNSON, Director of the California Department of Social Services, in her official and individual capacity; ELOY ORTIZ OAKLEY, Chancellor of the California Community Colleges; ANN EDWARDS, Previous Director of the Sacramento County Department of Human Assistance, in her official and individual capacity; ETHAN DYE, Acting Director of the Sacramento County Department of Human Assistance, in his official and individual capacity,

Defendants-Appellees,

and

STATE OF CALIFORNIA; GAVIN NEWSOM,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Defendants.

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

Submitted December 4, 2023** San Francisco, California

Before: BRESS and JOHNSTONE, Circuit Judges, and EZRA,*** District Judge.

Justin Reedy, now proceeding pro se, appeals the district court’s dismissal of

his federal and state claims against the California Department of Social Services

(CDSS) and state and county officials responsible for administering the California

Work Opportunity and Responsibility to Kids Act (CalWORKs) benefits program.

We review de novo the district court’s dismissal under Federal Rule of Civil

Procedure 12(b)(6) and can affirm on any basis supported by the record. McGinity v.

Procter & Gamble Co., 69 F.4th 1093, 1096 (9th Cir. 2023). We assume the parties’

familiarity with the facts. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

Reedy’s challenges to the denial of CalWORKs benefits generally proceed

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation.

2 from his view that the combination of the “parent who first applied” rule, MPP § 82-

808.413(d), and a separate provision allowing “a pregnant person” to apply before

their child’s birth, Cal. Welf. & Inst. Code § 11450(b), locks in a sex-based

preference for mothers that fathers cannot dispute or overcome.1 Reedy argues that

this creates a procedural due process problem and led to him being denied

CalWORKs benefits on the basis of his sex.

But contrary to Reedy’s allegations, a father can obtain individualized review

of the CalWORKs benefits allocation after the child’s birth by asking a state court

to “specify one parent as the primary caretaker of the child . . . for the purposes of

determining eligibility for public assistance.” Cal. Fam. Code § 3086; see also id.

§ 3087 (permitting modification of the order upon the petition of one parent if it is

in “the best interest of the child”).2 When parents sharing joint custody of an eligible

1 CDSS promulgates rules and regulations governing CalWORKs eligibility. Cal. Welf. & Inst. Code § 10553(e). These rules and regulations are published in the Manual of Policies and Procedures (MPP). See Cal. Welf. & Inst. Code § 10554. Reedy has not clearly alleged that K.M., the mother of his child, even applied for benefits while pregnant. But we will assume that she did, as the parties’ briefing appears to do. 2 While defendants did not address §§ 3086 or 3087 in their motions to dismiss, we exercise our discretion to consider these provisions because the availability of these state processes is “purely [an issue] of law and the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court.” United States v. Carlson, 900 F.2d 1346, 1349 (9th Cir. 1990). Here, the challenged regulation incorporates § 3086. MPP § 82-808.413(a). Reedy is not prejudiced because he had the opportunity to address §§ 3086 and 3087 in his reply brief, which was prepared by counsel.

3 child both apply for CalWORKs benefits, MPP § 82-808.413(a) sets benefits

eligibility in accordance with the court order. In addition, even without a court order

under § 3086, fathers can avoid the “parent who applied first” rule by showing they

exercise greater care and control over the child. See generally MPP § 82-808.2.

Indeed, Reedy himself unsuccessfully appealed his denial of benefits to an

administrative law judge who considered whether he had shown that he “exercises

the majority care and control” for his child.

In view of the availability of these state processes, Reedy has not plausibly

alleged a “denial of adequate procedural protections.” Kildare v. Saenz, 325 F.3d 1078, 1085 (9th Cir. 2003) (citing Hufford v. McEnaney, 249 F.3d 1142, 1150 (9th

Cir. 2001)). To the extent Reedy argues that he has not or would not prevail in these

processes, “[i]t is process that the procedural due process right protects, not the

outcome.” Ching v. Mayorkas, 725 F.3d 1149, 1156 (9th Cir. 2013). Nor was Reedy

denied benefits on the basis of his sex, in violation of the Equal Protection Clause,

when he had ways to challenge the initial award of benefits. Reedy has also not

alleged that MPP § 82-808.413(d) discriminates against men in its application and

intent. See Toomey v. Clark, 876 F.2d 1433, 1437 (9th Cir. 1989) (explaining that

absent a sex-based classification, a plaintiff must show the challenged law “had a

discriminatory effect” and that defendants “acted with discriminatory intent or

purpose”).

4 The district court properly dismissed Reedy’s remaining claims. Reedy’s

substantive due process claim fails because he has not alleged any deprivation of his

right to parent his child, see Lehr v. Robertson, 463 U.S. 248, 261 (1983), and the

denial of CalWORKs benefits did not contravene that right. See Harris v. McRae,

448 U.S. 297, 317–18 (1980) (“Although the liberty protected by the Due Process

Clause affords protection against unwarranted government interference with

freedom of choice in the context of certain personal decisions, it does not confer an

entitlement to such funds as may be necessary to realize all the advantages of that

freedom.”).

Reedy’s claim that the denial of CalWORKs benefits violated Title IX

because it denied him ancillary education benefits provided by California

Community Colleges (CCC) likewise fails. In light of the available state processes

for seeking a change to the allocation of benefits, Reedy was not denied benefits “on

the basis of sex.” 20 U.S.C. § 1681(a). Nor has Reedy alleged that CCC, the federal

funding recipient, had an official policy of discriminating on the basis of sex or was

deliberately indifferent to any such discrimination in the CalWORKs program. See

Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 640 (1999);

Karasek v. Regents of Univ. of Cal., 956 F.3d 1093, 1104 (9th Cir. 2020).

Finally, the district court did not err in denying leave to amend because

amendment would be futile. See Novak v. United States, 795 F.3d 1012, 1020 (9th

5 Cir. 2015). Reedy’s counseled briefing does not identify any facts that he could

invoke that would cure the defects in the complaint.

AFFIRMED.

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