626 F.3d 483
9th Cir.2010Background
- This is an order in an appeal following the Supreme Court’s decision in Christian Legal Society v. Martinez; the Court remanded for consideration of CLS’s pretext argument if preserved.
- The Ninth Circuit must determine whether Hastings College of Law selectively enforces its Nondiscrimination Policy against CLS.
- CLS argued two discrimination theories: an uneven effect theory (policy discriminates by base) and a selective application/pretext theory.
- The Supreme Court remanded only the pretext claim for consideration if preserved, not the uneven effect theory.
- CLS’s opening brief failed to present a pretext/ selective-enforcement argument in a manner compliant with Rule 28 requirements.
- The panel concluded CLS did not preserve a pretext claim and thus could not be addressed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Preservation of pretext argument for remand | CLS preserved pretext argument | CLS failed to preserve pretext argument in opening brief | Pretext argument not preserved |
| Whether CLS properly distinguished uneven effect from pretext | CLS raised pretext claim aggregated with uneven effect | There is no preserved pretext argument separate from uneven effect | Issue not preserved, declined consideration |
| Rule 28 compliance and assertion of arguments | CLS met no explicit pretext assertion in opening brief | Failure to articulate pretext requires dismissal | Argument not preserved; dismissal affirmed |
| Impact of Supreme Court remand directives | Remand instructions include considering pretext if preserved | Remand not required for unpreserved issues | Pretext issue not reviewable due to non-preservation |
| Proceedings on remand if discriminatory enforcement occurs | CLS could pursue new suit if discriminatory enforcement occurs | Not addressed in current case due to preservation failure | CLS may pursue new action if discriminatory enforcement occurs |
Key Cases Cited
- Christian Legal Soc’y v. Martinez, 130 S. Ct. 2971 (2010) (remand to address pretext; uneven effect rejected on other grounds)
- Brownfield v. City of Yakima, 612 F.3d 1140 (9th Cir. 2010) (requirement that issues be clearly presented in opening brief)
- In re O’Brien, 312 F.3d 1135 (9th Cir. 2002) (dismissal for failure to comply with Rule 28)