Opinion
The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a)(2).
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the Northern District of California, Fern M. Smith, District Judge, Presiding.
Before PREGERSON and TROTT, Circuit Judges, and WINMILL, District Judge.
The Honorable B. Lynn Winmill, United States District Judge for the District of Idaho, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts in this circuit except as provided by Ninth Circuit Rule 36-3.
Appellant Mark Kozy appeals the dismissal of his suit against his former employer, Wings West, and his former union, the Regional Airline Pilot Association (Union). Wings West fired Kozy for sexually harassing other employees. Kozy claimed that his firing was improper, and he pursued a grievance under procedures dictated by a collective bargaining agreement (CBA). At the final stage of that grievance procedure, a System Board of Adjustment (Board) heard testimony and received documentary evidence. When a year passed and Kozy had not received a written decision from the Board, he filed this suit. The district court dismissed the suit, and Kozy appealed.
In Kozy v. Wings West Airlines, 89 F.3d 635 (9th Cir.1996), we affirmed in large part the district court's opinion and remanded the case for a limited purpose. Specifically, we remanded the case to the district court "for the limited purpose of issuing an order compelling the Union and Wings West to direct their representatives on the Board to issue a written decision resolving Kozy's grievance in compliance with the CBA." Id. at 640. We stated further that when the parties comply with the district court's order, "the district court is free to dismiss this action in its entirety." Id.
Pursuant to the remand, the district court issued an order on August 1, 1996, requiring Wings West and the Union to direct their representatives on the Board to issue the written decision described in our decision. In addition, the district court denied Kozy's request for a hearing. In response to the district court's order, Wings West submitted copies of the Board's written decisions that were dated November 16, 1992. The decisions denied Kozy's grievance. Wings West's counsel, in his submission to the district court, explained why these written decisions had not been found earlier: "These decisions were recently discovered in files related to the other individual (David Mason) whose grievance was heard on the same day Mr. Kozy's grievance was heard." ER-25.
Kozy objected to the submission, pointing out in a brief that "[n]either this Court nor the Court of Appeals ordered defendants to search their files for a purported existing written decision by the [Board], but rather to issue a written decision resolving the grievance." ER-37. The district court disagreed, finding that Wings West's submission "complies in full" with its August 1, 1996 order. ER-21. The district court dismissed the case, and Kozy appealed that decision.
In his appeal, Kozy claims the district court erred in accepting the Board's written decisions for the following reasons: (1) Kozy was not given an opportunity to show a collusive understanding between Wings West and the Union that would establish a futility exception to the mandatory arbitration scheme, allowing Kozy to maintain this suit, (2) the district court, "on its own motion or on plaintiff's motion," should have conducted an inquiry into whether Wings West and the Union should be sanctioned under Fed.R.Civ.P. 11, (3) Wings West did not properly authenticate the Board's written decisions, and (4) the mandate required the Board to issue a new decision, not to search its files to discover the original decisions.
Kozy did not raise to the district court the first two assignments of error listed above. He did mention his third assignment of error--the lack of authentication claim--in his brief to the district court but declined to argue the point: "Since Wings West on the face of its submission has failed to comply with this Court's order, plaintiff finds no basis for raising other objections at this time (i.e. the lack of authentication of the purported written decision)." ER-37.
Issues raised for the first time on appeal generally will not be considered unless the questions are purely legal ones, the record is fully developed, the resolution of the issues will be clear, and injustice might otherwise result. See Brogan v. San Mateo County, 901 F.2d 762, 765 (9th Cir.1990). The three assignments of error Kozy failed to raise to the district court do not meet these requirements. Kozy claims that he was prevented by the district court from raising these points. While the district court denied Kozy's request for a hearing, it accepted and reviewed Kozy's briefing. Thus, Kozy could have raised these issues in his briefing but did not take advantage of that opportunity. We therefore refuse to consider the first three assignments of error listed above.
Kozy did argue to the district court that the submission of the Board's written decisions went beyond the scope of our remand. We employ an abuse of discretion standard of review in determining whether the district court followed the terms of the remand. See Lindy Pen Co., Inc. v. Bic Pen Corp., 982 F.2d 1400, 1404-05 (9th Cir.1993). "There is an abuse of discretion when a judge's decision is based on an erroneous conclusion of law or when the record contains no evidence on which [s]he rationally could have based that decision." Id. at 1405 (quoting Petition of Hill, 775 F.2d 1037, 1040 (9th Cir.1985)). An order issued after remand may deviate from the mandate "if it is not counter to the spirit of the circuit court's decision." Id. at 1404.
The district court here followed the mandate, and we can find no abuse of discretion. Whether the Board issued a new decision, or discovered an old one, the effect is the same: Kozy obtains the written decision, which is all he is entitled to in this litigation. Kozy counters, however, that the effect is not the same; that he may be prejudiced by the running of a statute of limitations unless the Board is ordered to issue a new decision. We disagree. Whether the Board issues a new decision or discovers a old one, the applicable statute of limitations and its accrual are governed by the standard set forth in our earlier decision: "Kozy's hybrid cause of action does not accrue for purposes of the six-month limitations period until he knows of, or should know of, the written decision of the Board." Kozy, 89 F.3d at 640.
AFFIRMED.