Anthony Duenas Santos v. The People of the Territory of Guam
436 F.3d 1051
9th Cir.
2006
Check Treatment
Docket

*1 Kathryn Korrell and Harry Appellant’s J.F. S. Petition for Rehearing En LLP, Loppnow, Wright Davis Tremaine Banc is therefore DENIED. No further Seattle, WA, defendants-appellees. petitions may for filed. WALLACE, SILVERMAN,

Before PAEZ, Judges. Anthony SANTOS, Petitioner, Duenas

ORDER People Territory 6, 2006, GUAM, Respondent. panel opinion January filed is amended as follows: No. 03-70472. paragraph Add as new after footnote 1 Appeals, United States Court of 82):

(slip op. Ninth Circuit. may There be circumstances where an Argued and Submitted April employer’s obligation “remedial kicks Fuller, Filed Jan. in,” regardless employee’s stated In oth wishes. words, er employ the mere fact that the employer

ee tells the not any to take may always remedial action not relieve employer obligation to do so. See, Pisano, e.g., Torres v. (2d Cir.1997). Here, however, it is Hardage

uncontested that did not want action, Falcone to take further and that Hardage’s wishes were insincere or Moreover, Hardage uninformed. did not disclose to Falcone the details

harassment, Falcone no way so severity. of its know rehearing has been previously Judge denied. Silverman votes to deny the Petition Rehearing En

Banc and Judge so Wallace recommends. Judge grant Paez would the petition. The

full court has been advised of the Petition

for Rehearing En Banc and judge no requested the court has a vote on whether en rehear the matter banc. Fed. R.App. P. 35. *2 pro- lengthy decision, initiated and

for from Guam. the record obtaining of cess amended 30, 2004, Congress October On language striking the § 1424-2 48 U.S.C. time of period a for to this granting “jurisdiction expired, not yet had which final deci- all of certiorari by writ review of Guam court highest sions ofAct be had.” decision could which 108-378, § The No. Pub.L. Oct. ju- is whether presented now question 1424-2, §by granted previously risdiction was existing the time and filed, the case and were the briefs granted, submitted, evaporated argued and repeal, or date enactment upon the pending until to exist continued Guam, for Hagatna, Highsmith, David J. decided. appeal could petitioner. con Supreme In Attorney Gener- Keith, Assistant B. Ann and question a similar with fronted respondent. Guam, al, Hagatna, statute when filed properly had been action any reservation repealed, cases cases, pending all such to pending SCHROEDER, Judge, Chief Before: v. United Bruner dismissed. to be were WALLACE, Circuit GOODWIN 115-117, States, Judges. (1952). holding was That L.Ed. in a approval GOODWIN, Judge: when reinforced involve did not setting that litigation review seeks Santos Anthony Dueñas a case. to decide a court Superior the Guam conviction his Products, 511 U.S. Film Landgraf v. USI pos- murder aggravated charges on L.Ed.2d 244, 274, 114 S.Ct. His deadly weapon. aof use session of a effect on the (1994). court ruled by the Guam affirmed were convictions that was action upon an statute is dismissed Supreme Court. enactment, but which the date court on for want transpired had of events arose out original Superior Court The Guam remedy had creating before CODE to 7 GUAM jurisdiction pursuant 244, 114 S.Ct. been enacted. The Guam § 3105. ANN. 229. The L.Ed.2d 1522, 128 C to 7 GUAM jurisdiction pursuant on silent a statute dealing with case was 3107(b). filed timely § ODE ANN. ruled retroactivity, question of in this of certiorari for writ his ex effect retrospective that unless 48 U.S.C. to former pursuant pre not be it will Congress, pressed granted petition was sumed. the case 18, 2003. We calendared June us is before question At April oral af- to decide survival submission we ordered argument, close of withdrawn, ter that has been United Cir. 2000) Duldulao). we look to rather than to Land- (applying In graf, precedent. for relevant Here, Congress has amended the *3 alia, the Court cited inter Ex distribution of appellate jurisdiction in the McCardle, Bruner, parte at 343 U.S. 116- Territory of Guam expressing alia, (citing, 72 S.Ct. 581 inter intent as to the effective date of its new (7 Wall.) 506, 514, (1868)), 19 L.Ed. 264 only statute. We know that before we power holds: “Jurisdiction is the could lengthy obtain the agree record and law, declare the it when ceases to upon a disposition a certiorari review exist, only the function of the court is that our Congress before of announcing dismissing the fact and the away had taken power our to hear the McCardle, (7 parte [case].” Ex 74 U.S. case. The power withdrawal of our Wall.) at 514. hear the case carried itwith the destruc directive, Absent another we are power tion of our to decide the case. bound Bruner’s apply reasoning Bruner, 581; 343 U.S. at jurisdiction-withdrawing statute does not McCardle, parte see also Ex rights of’ “alter[ ] nature or L.Ed. 264. liabilities but “simply the num reduce[s] only authority The we have found that ber of tribunals hear and apparent weight lends suggestion to the determine and liabilities.” that we parte refuse to follow the Ex 72 S.Ct. 581. In McCardle line of cases is our Gioda v. in the statute question removed Saipan Stevedoring 855 F.2d 625 of federal district courts Cir.1988). Following II, World War brought by over certain civil actions em Northern Mariana Islands were un- placed ployees States, pre of the United but der trusteeship United Nations with the jurisdiction in served the Court of Claims United States of designated America the those actions. Id. lengthy negotiations After trustee. be- principled

There is no distinction be- tween traditional leaders the inhabited tween Bruner’s Rota) Tinian, (Saipan, islands and the one, statute and this which removes the government of the United trus- jurisdiction of the Ninth Circuit Court of teeship phased by replaced out and Appeals to appeals from Guam courts the Covenant Establish Common- preserves jurisdiction but over the same wealth the Northern Mariana Islands in court system the Guam and re- (CNMI). Covenant, Implementing the in the United States Congress enacted Public Law No. 95-157 Supreme Court. (1977), which created the District Court Islands, for the Northern Mariana jurisdiction-with-

We have held that a divisions, drawing provision appellate both trial and of AEDPA custom expressing no other effective barred that the Trust date review a Territories followed petition pending appellate before us on date of island courts. division was INS, enactment. Duldulao appellate jurisdiction v. to have such as the (9th Cir.1996) (applying Landgraf laws Constitution and of the Common- 440(a) AEDPA provide. hold section retroactive wealth should See 48 U.S.C. 1694(b). it course, because “affects the legis- the court In due the island rather than the obligations conferring lature enacted statutes concur- the parties”); see also appellate Nakaranurack v. rent for a limited District case manded to hear and District

time, upon decision. courts local trial from appeals decide division. trial own from its aswell divi- appellate statement litigation period appar- further continuing After a sion legislation enacted Congress theory that obiter legislation, founded ently appel- of the attorney terminating case about desegregation a school District duty follow division late modified our fees had division, permitting ju- trial holdings appeals express Supreme Court’s decide continue to Bradley division appellate risdiction. *4 courts. 716, island the 94 S.Ct. from Board, appeals School (codified (1985) at 48 (1974), propo- 98-454 the Pub.L. No. 2006, L.Ed.2d ter- 1694b(a)). 1985 statute The § applied be will not new law U.S.C. that “a sition appellate the jurisdiction in the minating will result application retroactively if its Gioda, the District injustice.” division a manifest Saipan the while “new context, effective the became that appeals the Ignoring consider- considering was Stevedoring appeal Supreme the law” That division. attorney fees appellate the to with Bradley ation do in deci- Court’s Supreme court, following the went panel the jurisdiction, with and not jurisdic- that its Bruner, appellate concluded in sion the court’s island opine that on to to 28 Pursuant terminated. This exten- jurisdiction. tion retained division at- division appellate jurisdic- § the confer Bradley to U.S.C. in obiter sion of to appeal the to transfer does that tempted to stretch appears tion now forward- promptly panel case. motions instant court. A in the repetition require which panel, to “mani- appeal ed the behalf may be said Whatever to at least jurisdiction, that it had to nothing in Gioda decided find injustice” we fest panel That Bruner, in consider language of the clear trump to jurisdiction have addressing it did not Supreme which appeal returned appeal, retroactivity hear the and not jurisdiction, In subjects. Court. to the District other dealing with holdings clear Court’s Supreme of the Bruner, which panel While our both parte in Ex McCardle ap- upon by authority relied been squarely unequivocal are had no that it concluding in pellate division jurisdiction decide we are point, continue, it turned jurisdiction appeal. and de- Act Transfer construction opinion Gioda The transfer. clined the is dismissed. appeal McCardle, Ex Parte no reference makes reference in but further Judge, WALLACE, Senior dealing with briefly discusses opinion concurring: mention did retroactivity. Congressional the recent agree I rule general with connection Bruner jurisdiction our eliminated enactment ends appeals over jurisdiction my appeal. creating repeal with col- my somewhat differs analysis preoccupied but, it was how explain separately (the I write leagues, interpretation jurisdic- control precedents existing appel- Act), it concluded Transfer of courts the number why issue and tional and re- late retained division a litigant not a substantive review, Congress passed a stat- ute withdrawing district (a over Bruner’s claim claim for overtime I. compensation against the government). Supreme Court’s decisions in Ex 343 U.S. at 114, 72 Instead, S.Ct. 581. parte McCardle, (7 Wall.) 19 Congress provided only in (1869), L.Ed. 264 Bruner United the Court of Claims. Id. at 72 S.Ct. 72 S.Ct. 96 L.Ed. 581. The Court held that “when a law (1952), as well as our own decision conferring jurisdiction is repealed without INS, Duldulao v. 90 F.3d 396 Cir. any reservation as to pending cases, all 1996), control this appeal. McCardle ad cases fall with the law ....” Id. at dressed almost exactly the same issue we citing, alia, inter McCardle, have before us: the effect aof Congres 514, 19 L.Ed. 264. sional repeal of a jurisdiction-authorizing The Court held that the Congressional act statute on a pending appeal. applied to Bruner and therefore the Court appealed McCardle *5 jurisdiction. lacked Id. at 117. Because Court under a then-proper jurisdictional there was no “reservation as to pending statute on February 1867. 74 U.S. cases” in the statute at here, issue we lack at 19 L.Ed. 264. The case was jurisdiction over present appeal. argued from 2March to 9 and taken under Finally, our own decision Duldulao advisement. 507-08, Id. at 19 L.Ed. 264. requires us to find jurisdiction we lack On 27 March year, that Congress re- over Santos’s appeal. Duldulao also in- pealed the act under petitioner’s which the volved a jurisdiction-withdrawing statute appeal had been taken. Id. at 19 that became effective during the pendency L.Ed. Thus, like the case, present petition of a to our court. 90 F.3d at 397- the appeal properly filed, argued, sub- 398. Duldulao had filed a petition mitted, for re- and taken under advisement. Like view from a Board of Immigration present Appeals action, Congress repealed the decision ordering his deportation. that had Id. at jurisdiction while the case was review was Duldu- under advisement. only lao’s potential federal court review of The operative question for the Court the deportation order. See id. at 399-400. jurisdiction whether still existed. Nonetheless, we held that the statute “af- ‘Without pro- court cannot fects the power of the court rather than ceed at all in any cause. Jurisdiction is and obligations of parties” power to law, declare the and when it and therefore we held jurisdic- we lacked exist, ceases to the only function remaining tion. Id. at 399. to the court is that of announcing the fact dismissing cause.” Id. at 19 Duldulao is replete with language that L.Ed. added). 264 (emphasis Because the controls appeal. First, this and most im- lacking, portantly, Duldulao held that ‘pre- “the court dismissed appeal. at sumption against retroactive application of 19 L.Ed. 264. legislation new to pending cases does not Bruner, which also apply addressed a to rules conferring Con- or withdrawing ” gressional jurisdiction.' stat- Id. at 399 (punctuation ute, similarly omitted) mandates conclusion that (emphasis added), quoting In re we lack While Bruner’s case Arrowhead Dev. Estates was pending before the Supreme (9th Court on Cir.1994), citing Landgraf, 511 rights be- the substantive is distinct 1483, 128 L.Ed.2d 114 S.Ct. eliminate would Santos appealed. ing reiterated (1994). Duldulao that affect held that long between distinction “[t]he rights” re- petitioner’s jurisdiction is conferring or “nature a law ‘when tribu- pend- “the number affect any reservation those pealed ” the law.’ within of courts fall number cases, turning the nals,” by all cases ing 116-17, 72 argu- Id.,quoting petitioner which a re- Furthermore, “[t]he into substantive ments in Land- practice’ ‘consistent affirmed distin similarly explicitly ‘regularly applied it has noting that graf, ability between guishes ousting or conferring intervening statutes Supreme Court This lights. substantive lay or not whether of a “[application holds precedent or occurred conduct underlying when the away ” takes usually rule jurisdictional new Id., quoting filed.’ suit was when the changes simply right but no substantive 274, 114 S.Ct. 1483. Landgraf, ease.” is the tribunal dispositive obviously language (internal quota call for could While appeal. omitted) add (emphasis citations tions Duldulao, we to overrule banc en governs normally ed). law “Present controlling effect ignore cannot stat because such situations Enomoto, Barapind case. court rather speak utes banc) Cir.2005) (en (per n. 8 obligations of than to curiam). *6 reit Co. Hughes parties.” Aircraft and opinion authority in its this erates II. vitality. 520 continuing confirms a sub- has he to contend appears Landgraf quoting 951, 117 S.Ct. and court to this appeal right to stantive 274, 114 S.Ct. re- “right,” that, based and tains has sub- a he argument Santos’s ex States v. United Co. Hughes Aircraft with- is therefore appeal to right stantive S.Ct. Schumer, rel. all stress opinions merit. out However, (1997). every 138 L.Ed.2d courts identity of the number a it clear that made case has relevant his sub- may present litigant to which author- of tribunals the number change not a substantive is claims stantive does arguments litigant’s ized elimi- 'would suggested approach Santos’s substantive litigant’s implicate not between distinction nate the rights. rather the court “speak Binmer, Beginning obligations of rights or than to substantive separated clearly one and making them by parties” to addition- appeal right rights from same. stat- al courts: re- seek additional “right” Santos’s nature “alter[ ] not does ute McCardle’s indistinct legally re- simply ... [but] rights petitioner’s review, Supreme “right” seek number tribunals duce[s] in the his action bring “right” Bruner’s and determine “right” Duldulao’s district liabilities.” depor- of his review this court it clear makes statement 581. This substantive Santos’s tation. multiple courts ability affected, have not been Bruner and Wayman McCardle control KAUA, issue. Petitioner-Appellee,

v. Clayton FRANK,

III. Warden, Halawa Cor- rectional Facility; State Hawaii, I do not it believe is necessary to discuss Respondents-Appellants. Gioda Saipan Stevedoring No. 05-15059. (9th Cir.1988), which was never raised United States Court of Appeals, by either party. Nor any Ninth Circuit. about injustice” “manifest ever presented.

See Galvan v. Dep’t Corr., Alaska Argued Submitted Dec. (9th Cir.2005) (“Courts Filed Jan. generally do not decide issues not raised parties. If they granted relief to petitioners grounds on. urged by peti-

tioners, respondents deprived would be

a fair opportunity to respond, and the

courts deprived would be of the benefit of ....”) (citation omitted). briefing I there- fore do not reach the issue.

IV. issue is controlled by McCardle, Bruner, Duldulao, and we

therefore lack over appeal. Because the number of tribunals *7 a litigant arguments to is not a substantive right, Landgraf and Hughes Co. do not change this Aircraft analysis.

With observations, these I concur in the result of the majority opinion.