*1 Second, previous previous pat- laws. action. occupied by the antitrust erwise extends, provide opportunity ent action did not potentially each law where areas appellant discovery law coverage of one neces- to conduct full to broaden policies question appellee’s bring- behind in interferes with malice sarily Proper ten- adjustment discovery the other. action. Differences continuing is a and procedures may justify allowing pri- between two “not a sion long engaged the exercise that has judgment estoppel delicate to have effect in a action, at 992. subsequent courts. Id. federal even between the same Hosiery Shore, parties.” v. Parklane Co. deny do that conflict is we While 331 n. 651 n. prosecu- between malicious possible state 15, 58 Alumax con- laws, poli- patent and federal tion laws latter claim fails because tends that this underlying inherently are not each cies not raise in the Aluminum did the issue create Patents do not an ex- antithetical. in the district court below because prosecution from state malicious emption request Aluminum previous action did not Indeed, we reached the balance laws. (2) (1) trial, dis- bifurcated additional suing between the Handgards (3) covery to section in- relevant presup- defendants patentees appellee directly. formation from the We the continued existence posed need not reach of these issues in view “nothing ap- for bad faith suits: remedies ruling proof of our that the burdens of preclude defendant in a successful pears different. infringement bringing from action prosecution law malicious claim” common REVERSED AND REMANDED. 998 n. 17. Id. recognize that one of Finally, we must necessary it that we found
the reasons protect patentees from anti-
Handgards they posed the
trust actions was that damages. of treble Id. 993.
threat potential remedy
chilling effect of that good patentees upon the faith actions SCHLEGEL; Diana and Central G. by the greater posed than that enforce- far Lines, Freight Pacific prosecution of state malicious laws. ment Corporation, Plaintiffs-Appellees, reasons, we decline to For all these to this Handgards the rule of Cali- extend BEBOUT; Russell, and Bob William prosecution malicious action. Alu- fornia Defendants-Appellants. is to burden in this action estab- minum’s by a preponderance malice the evi- lish 86-3551. No. Consequently, Aluminum not col- dence. Appeals, Court of United States estopped failure to laterally by its estab- Ninth Circuit. lish, previous litigation, bad in the faith convincing evidence. clear and Argued May 1987. and Submitted Decided Nov. Opportuni- Identity B. the Issues and ty Discovery estop- collateral Aluminum contends that rea- inappropriate for two additional
pel First, “exceptional
sons. element previous patent in the ac-
circumstances” the element malice
tion is not identical to prosecution action. malicious Collat- estoppel requires estopped
eral litigated in identical an issue
issue be *2 October, 1983, applica- miscellaneous trucking regular route intrastate
tions for authority Oregon were consolidated within hearing. hearing ran until dated June, such a is con- When vened, Administrative Rules *3 (OAR) provide hearing the shall by presiding officer. OAR conducted 860-12-035, 860-14-030, seq. In OAR et Portland, Or., Rosenthal, M. Elden hearing authority, the normal for route the plaintiffs-appellees. procedure applicant is that the or order of Salem, Or., for de- Reynolds, Michael D. evidence, presents by followed petitioner fendants-appellants. protestants, participants, the Commission- staff, and then OAR 860-14- er’s rebuttal. 035(l)(c). hearings, In consolidated the designate shall the order presiding officer 860-14-035(2). OAR At a procedure. ANDERSON, TANG Before authorities, hearing for route and at all NOONAN, Judges. Circuit officer, hearings presiding before a other presiding which the all relevant evidence ANDERSON, Circuit BLAINE J. holds is the “best evidence reason- officer Judge: obtainable, having regard ably due to its (appel- Russell and Bob William Bebout necessity, availability and trustworthiness” denial of lants) the district court’s appeal giv- presiding is admissible. The officer is Schlegel’s com- to dismiss their motion grants en certain to take official notice 12(b). Ap- to Fed.R.Civ.P. plaint, pursuant Resolutions, exhibits, deposi- evidence. entitled to alleged that were pellants interrogatories are admissible. tions and immunity from suit for claims admissible, testimony is as are Written 1983 based brought under U.S.C. § proceedings stipula- records from other as a Public Utilities Commis- their status argu- Briefs and oral tions as to facts. (Beb- (PUC) Assistant Commissioner sion presiding may be to the ments submitted out) Deputy Commissioner and a PUC addition, right parties have the officer. In (Russell). We affirm. 860-14-045, object to evidence. OAR et parte required that if ex seq. It also FACTS parties pro- to a contact occurs between or members ceeding and the Commissioner A. BACKGROUND staff, no- reasonable of the commissioner’s ap- Schlegel’s claim is that The basis parties of required given to be to all tice is irregu- participated initiated pellants conference. OAR 860-12-015. such discriminatory during the actions lar hearing, presiding the the officer After in which an administrative period time parties, If proposed order. the issues a trucking applications hearing on intrastate staff, disagree with Commissioner’s Schlegel Appellee Dana progress. inwas order, exceptions. they may take proposed Freight operates Central Pacific owns may modi- himself then The Commissioner trucking corporation. Lines, intrastate as adopt proposed order fy, reject, or appellants interfered in alleges that She 860-14-092. his own. OAR process, re- evidence-producing had short, hearings determine the hearing In parte contacts with peated ex int applications influencing granting or denial purpose officer for independent envision hearing, raroute authorities and continued outcome accepting evidence. officer discriminatory presiding after actions irregular and this may only act after attempt to PUG Commissioner hearing over However, hearing. the Commissioner appellees. harass supported by finding freight his actions based on not act unless of one move- developed hearing. the record ment complaint violation. This was issued 756.580, OR.Rev.Stat. 756.598. against to harass and appel- §§ discriminate lees and to influence the outcome of the B. THE COMPLAINT (Id. 1113). hearing. by appellants It is which oc- the actions February, appellants In threatened during hearing curred after put Schlegel out of business unless she Schlegel’s complaint. form the basis for changed corporate attorney her and went alleged According appellees, as in their along proposed settlement as outlined complaint: January. (Id. Bebout in She refused. November, 1983, with the intention of 14). If influencing hearing, the outcome of results were announced in appellants circulated false financial infor- June, 1984. The results substantially *4 regarding Schlegel trucking mation and her proposed similar to the settlement Bebout company. This conduct not the type was (Id. presented 15). had in January. U usually performed by of conduct the PUC In August, appellants caused a purpose and was for the done sole dam- complaint be against to filed appellees, aging 110). appellees. (Complaint alleging the company violated PUC November, 1983, appellants’ In di- regulations particular to due a interline rection, performed, for the auditors second connection it had entered into an inter- compliance a year, appel- time that audit at Appellants state press carrier. caused a headquarters. irregu- lees’ was audit release to be distributed which claimed that lar discriminatory, ordinary and not in the alleged “probably violation was PUC, course of business for the was done most serious violation history in the to appellees, harass and resulted in infor- Oregon trucking.” This statement was not leaking participants mation to certain true and was released part of the con- hearing to hearing and officer that tinuing harassment singling and out of ap- appellees guilty of twelve violations pellees purpose causing for the economic transportation state A cease laws. and injury. Appellant Bebout also threatened appellants desist letter by was issued al- legal against shipper action any utilizing though they appellees knew were not Schlegel’s trucking company’s services. (Id. guilty 1111). any such violations. (Id. 1116). Bebout, In January, appellant in an by appellants, As inspec- directed PUC Schlegel, informal conversation with de- appeared tors inspected the Portland proposed pending tailed results of the hear- yards of Freight Central Pacific Lines. Schlegel and threatened she did inspector The chief appellants told that the cooperate proposed his resolution of company passed with excellent results. pending issues, all authority route he harass, With intimidate, the intention to would make she would be sure denied route single out, and cause economic harm to authorities critical to her business. She appellees, appellants ordered unan- (Id.
refused and the continued. nounced, re-inspection at the Portland and 1112). Eugene (Id. yards. 1117). In February, again appellants’ foundation, direction, On Schlegel this compliance a third strives to per- audit was (42 build a federal civil illegal formed. This audit was and discrim- U.S.C. 1983) inatory it, too, pendent claim and designed was claims § to for influence hearing. the outcome of the Af- defamation interference with eco- 14,000 bills, reviewing freight relationships. ter nomic Under one viola- U.S.C. (This claim, tion Schlegel was found. pick- alleges involved that the $23 de- § up delivery). complaint A equal formal fendants’ protec- was actions violated the issued. This was the time in tion first PUC clause of the fourteenth amendment history complaint that a formal facially was issued because valid applied laws were against discriminatory unjust, manner DISCUSSION similarly situated. persons and other them interlocutory appeal, the issue we appellants’
must decide is whether
claim of
properly
denied.
PROCEEDINGS
C. DISTRICT COURT
it
We find that was.
claim
are entitled
Appellants, who
language
of 42 U.S.C.
1983 is
§
immunity, moved for dismissal
to absolute
“Every person” who,
sweeping:
broad
12(b)(6)
for failure
pursuant
Fed.R.Civ.P.
custom,
color of
under
state law
“sub-
subject
for
lack of
to state
claim
jects,
subjected, any
or causes to be
citizen
Appellants
al-
jurisdiction.
further
matter
the deprivation
of the United States ...
Schlegel
entitled
leged that since
was not
rights,
privileges
or immunities se-
pen-
relief under 42 U.S.C.
§
cured
the Constitution and
shall be
laws
should
dismissed
state law claims
dent
party injured____”
to the
liable
42 U.S.C.
jurisdiction.
for lack
On December
terms,
“By
its
‘cre-
§
§
denied motion to
the district court
species
liability
tort
ates
that on its
granted appellants’ request
dismiss
”
face admits
no immunities.’ Owen v.
right
interlocutory appeal
as to
Independence,
622, 635,
City
since
issues
1398, 1407,
64 L.Ed.2d
controlling question of law
they involved a
(1980) (quoting
Pachtman,
Imbler v.
ground
which
is a substantial
as to
there
984, 988,
47 L.Ed.2d
opinion,
difference of
and an immediate
(1976)).
*5
may
appeal
materially advance the ultimate
litigation.
Despite
statutory
language
of the
broad
of
termination
legislative
1983 and the
absence
§
9, 1986,
July
two-judge
a
motions
On
it,
history
attempt
to narrow
it is
Schlegel’s
of this court denied
motion
panel
established that certain
pub
well
classes of
jurisdic-
for
appeal
to dismiss the
lack of
enjoy
lic officials
least
type
at
some
It
denial of a motion to
tion.
found that
immunity from 1983 suits. Sellars v.
§
immunity
dismiss based on absolute
is an
Procunier,
1295,
(9th Cir.),
641 F.2d
1298
interlocutory
appealable
order.
denied,
1102,
678,
454
cert.
U.S.
102 S.Ct.
(1981).
886
process.
federal hear
“We have no
judicial
to the
occasion
consider wheth-
judge
law
and administrative
examiner
er like or
require
similar reasons
immuni-
immunity.
afforded absolute
ty
have been
aspects
for those
prosecutor’s
role of
be little doubt
a
“There can
responsibility that cast him in the role of
or
examiner
admin
modern federal
investigative
administrator or
officer
‘functionally
com
judge
...
istrative
rather than that of advocate. We hold
judge.”
parable’ to
Butz v.
that of a
Eco
only
initiating
in
prosecution
a
478, 513,
2894,
nomou,
98
438 U.S.
S.Ct.
presenting
case,
prose-
State’s
(1978).
2914,
immunity
L.Ed.2d 895
Full
57
cutor is
from
immune
a civil suit for
given
also
been
federal
has
damages under
1983.”
§
503,
prosecutors.
v. Goff,
Yaselli
275 U.S.
Id.,
430-31,
994-95,
the prosecutor’s duty authority, state official is within his or her that is essential to proper functioning proper per test is whether act jus- the criminal Id., system.” 427-28, tice manifestly palpably beyond 424 U.S. at formed or 96 was 993, S.Ct. 47 authority, at L.Ed.2d at 142. his or The Court her but rather whether it holding by stating: general limited its is more or less with the connected
887
fore,
though they
or
or
find that
committed to his
her control
even
were act-
matters
scope
authority,
within
supervision. Ybarra v. Reno Thunderbird
not acting
these PUC officers were
in a
675,
Village, 723
Home
F.2d
Mobile
are
quasi-judicial capacity, and
not entitled
Cir.1984).
(9th
Oregon
Utilities
Public
absolute
afforded
his
to whom
and
assistants
Commissioner
persons
judge-like
judges,
performing
roles
authority to act
his behalf
delegates
he
prosecutors.
agencies,
within federal
supervisory and in-
regulatory,
broad
have
powers
interlocutory appeal
carriers in
vestigatory
over motor
this
under 28
Since
1292(b)
granted
provides
U.S.C.
Oregon.
that
§
“[t]he
raised in
issues
defendants'
power
jur-
vested with
and
commissioner is
dismiss,
(appellants') motion to
we believe
supervise
regulate every
...
isdition
state____”
controlling
answer
question
that to
carrier in this
O.R.S.
motor
law,
must
address
we
also
the issue
756.040(2).
The commissioner also has
immunity.
qualified
inquire
management
into the
power to
carriers,
of motor
O.R.S. 756.-
the business
general,
“For
executive officials
our
070,
upon
premises
and to enter
plain
qualified immunity
cases make
that
making
purpose
carrier “for the
represents
motor
the norm.” Id.
See Sckeuer
Rhodes,
232,
1683,
any inspection, examination or test reason-
(1974) (state governor
of L.Ed.2d
and his
ably required in the administration
756____”
aides);
Fitzgerald,
Harlow v.
457 U.S.
chapter
An
inves-
internal
O.R.S.
102 S.Ct.
complaint,
tigation,
hearing procedure
(1982)
aides); Butz,
(presidential
supra
provided
been
for the commission-
has also
(cabinet member,
however,
acknowledging,
to 756.610. Given
er
O.R.S. 756.500
exceptional
are
that there
“those
situations
regulatory powers, we find
these broad
where it is
im
demonstrated
appellants
acting
within the
munity is
for the
essential
conduct
authority.
scope of their
business,”
public
438 U.S.
98 S.Ct.
particular
which
activities of
2911);
Navarette,
Procunier v.
Schlegel complains include interference
(1978)
impair public confidence and their own. regard system
A decent for our federal
points to the same conclusion. utili- Public
ty important adjuncts commissions prosecutorial system.
the state If dis-
gruntled litigant body before such a is free rights
to make a federal civil case out of disappointment, autonomy
her state cur- sharply.
tailed In the case at bench the
plaintiffs application —losers trucking put together allega- routes—have (a tort), allega-
tions of libel state added misconduct,
tions of
wrapped around conclusory these claims a equal
assertion that have been denied
protection damages of the law. The plaintiffs say have flowed from the charged
miscellaneous acts are $2 million.
Although no appears clear connection be-
tween this substantial sum and the three
audits, letter, the cease and desist and the tort, I assume that counsel made rea- inquiry stating
sonable before that such
damages were suffered. Fed.R.Civ.P. 11. against
To have to defend damages such public prosecutorial
a deterrent to service. system
Neither the federal nor the civil require laws state officers to face
such claims a federal court. Buckley
Kim T. Stephens, John W. Portland, Or., for plaintiffs-appellants and cross-appellees. Hunsaker, I. Franklin James G. Driscoll Mary Olaf A. HALLSTROM and E. Adams, Portland, Or., and Thomas D. Hallstrom, wife, husband and defendant-appellee and cross-appellant.
Plaintiff-Appellants, Cross-Appellees, COUNTY, municipal TILLAMOOK corporation, Defendant-Appellee, Cross-Appellant. WRIGHT, Before WALLACE and 86-4016,
Nos. 86-4100 and 86-4257. PREGERSON, Judges. Circuit United States Appeals, Court Ninth Circuit. WRIGHT, EUGENE A. Circuit Argued Sept. Submitted 1987. Judge: Decided Nov. requires This case us to determine comply
whether day failure to with the 60 *9 requirement notice of the Resource Conser- (RCRA) Recovery vation and Act of 1976