Edward Allen White v. Wayne McGinnis

in addi- engage should bankruptcy court (“If the bank- at 1146 Doud, See fact-finding. all of correctly tional considered has ruptcy court a dis- computing involved elements REMANDED. REVERSED AND proper dis- of the rate, determination count a factual case is particular rate in count spe- more remand for We must

inquiry.”). findings.

cific Court’s Decision

D. The District interest that the found district court was bankruptcy court by the set

rate a re- remanding for instead wrong, but WHITE, Allen Edward determination, rate 10.5%. set the it Plaintiff/Appellant, a conclusion. for such nowas basis There rate determination reject that interest We the bank- reject McGINNIS, Defendant/Appellee. we same reasons Wayne ruptcy court’s. 86-2208. No. CONCLUSION

III. Appeals, Court States Circuit. Ninth decision, court’s district reverse the We On bankruptcy court.6 to the remand and Submitted Argued En Banc the evi- remand, should consider court 12, 1989. Oct. ap- determining the in the record dence May 1990. Decided factor, including information risk propriate also It should consider rates. market on record which reduce in the facts associated the risks

heighten

debtor. matters, it considering these

After regarding findings explicit make

should risk of default it assesses the

how rea- explain its security, and

nature factor. specific risk applying

sons explanations findings and

The court’s are enough so that we explicit be

should meaningful review perform able rate determination.7 interest

cramdown proper necessary to make extent To the rate, the cramdown

determination findings require not to Our intention remand redetermination Because every opinion rate, in this every do not consider issue discussed the cramdown interest argument district to limit the do we intend Nor and IPCA’s cramdown case. FCB’s negative imposing findings amortization. to those dis- requiring erred in court factors relevant however, note, have which findings that most courts opinion. The extent in this cussed Chapter con outside considered issue vary depending the circum- required will prohibition place a blanket have refused text presented the evidence case and stances of each See, e.g., D & F In re negative amortization. guiding principle bankruptcy court. 1989); Inc., Cir. Constr. findings must bankruptcy’s court’s is that the Assocs., 92 B.R. Spanish Lake re review, meaningful and must sufficient to allow McCombs (Bankr.E.D.Mo.1988). But see In re reviewing demonstrate to (Bankr.C. Ltd., VIII, 91 B.R. Properties sup- bankruptcy judge's determination Congress D.Cal.1988) (holding did not in ported the evidence. portion any deferral to allow the tend payment under "fair interest current 11). Chapter equitable” test in

trial without constitutes waiver of timely jury 11, 1984, appellant On June Edward Al- White, inmate, len an Arizona State Prison a complaint filed under 42 U.S.C. § alleging appellee McGinnis, Wayne that Department Arizona State of Corrections employee, eighth violated his amendment rights by assaulting during him a cellblock April, Appellant search in 1984.1 made a demand, timely jury the court but 6, 1985, notified August Hannah, Hendricks, Meyer, R. John Vic- the case was set for a bench trial on Janu- tor, Maledon, Phoenix, Ariz., Osborn & ary Appellant brought 1986.2 never his plaintiff/appellant. prior jury demand to the district court’s Dennis, Gen., Atty. during Thomas J. Asst. attention the five and one-half Phoenix, Ariz., defendant/appellee. period month between bench trial no-

tice and two-day began the trial. The 22, 1986, January court, sitting jury, judgment appel- without a entered January 27, lee on Appellant 1986. sat GOODWIN, Judge, Before Chief through the entire bench trial and never BROWNING, WALLACE, HUG, objected once to the absence of a while FLETCHER, SCHROEDER, ALARCON, vigorously argued his counsel his case to HALL, BRUNETTI, KOZINSKI, and judge. appellant notify Nor did FERNANDEZ, Judges. Circuit court of its mistake it judg- before entered against

ment him. Nor did he file a motion HALL, HOLCOMB CYNTHIA Circuit for a judgment. new trial after None- Judge: theless, appellant asks us to reverse the appellee’s district court’s favor involving This is a section 1983 action and remand for a trial.3 interpretation of Rules Rules of the Federal Civil Procedure. We Appellant argues court’s deci- took this case en banc to States, reconsider this sion in Palmer v. United 652 F.2d approach circuit’s literal to those compels rules reversal of the district States, Palmer v. 652 F.2d judge’s determination and remand for a Cir.1981). We now overrule Palmer and trial.4 For the reasons set forth be- knowing participation low, hold that in a bench we overrule Palmer and affirm. se, initially proceeded Appellant pro 1. but Westinghouse re- Corp. district court. Electric private appear- counsel who tained ance on entered an Weigel, (9th Cir.1970). v. However, 426 F.2d August 1985. exceptions there are several narrow this rule under which we have discretion to Appellee dispute does not that White was enti- C.I.R., hear a new issue. Bolker v. 760 F.2d tled to a trial on his claims. (9th Cir.1985). "We consider an argues Appellant provided neglected also he was issue conceded or below if the issue is counsel, assistance of purely with ineffective but a pertinent one of law and the record has plaintiff alleging in a section 1983 action exces- fully developed.” Gabriel, been United States v. of force has no sive use effective assist- (9th Cir.1980). Gabriel, As in Rushen, See Nicholson ance of counsel. purely legal conclude that the issue is (9th Cir.1985) curiam). (per fully developed the facts are and indeed undis- puted. Accordingly, we have discretion to con- complains 4. McGinnis that White raised this sider this if we choose to do so. In this appeal. Ordinarily issue for the first time on appeal, we exercise that discretion. we will not entertain an issue not raised before parties that evinces con- “[cjonduct of the II appears the record is sufficient sent A proper and waiv- withdrawal to constitute brought suit in Palmer in that case the record er.” Id. Because to the pursuant government against the matter, this completely silent on the was Act, 28 U.S.C. Tort Claims Federal no waiver. court found implead- 1846(b)(1976). government The § third-party defen- as a Fisher ed Donald B dant, that Fisher contributed alleging plaintiff and injuries. Both the plaintiffs in circuit have Subsequent decisions this demands, but timely jury trial made Fisher ap literal studiously Palmer’s avoided 1978, pretrial confer- July court’s the Logging Co. v. Ket proach. In Reid Bros. jury a case for to set the order failed ence (9th Cir.), Co., F.2d 1292 Pulp chikan November began A bench trial trial. denied, U.S. cert. en- subsequently court (1983), rejected a expressly we L.Ed.2d 259 favor, finding plaintiffs in judgment tered rules. interpretation the of formalistic6 plaintiffs the of responsible 70% Fisher defendants, had appellant, one of two The any object at damages. Fisher failed plain attempted the to defeat repeatedly The court to a bench trial in the time Af court. jury request in the district tiff’s govern- in the entered court granted, request jury trial was ter the indemnity action on its favor ment’s in jury demand its plaintiff waived the Fisher, appealed. who against trial date. obtaining an earlier hopes of that the dis- held this court the waiv consented to The other defendant jury Fisher a by denying erred court trict consent, and de er; did not appellant the After con- claim. government’s on the trial The district court jury trial. a manded claim government’s that the cluding appel motion to strike plaintiff’s granted and jury trial Fisher warranted against at 1304. Id. lant’s demand. timely was jury demand that Fisher’s that its argued appellant the record The made, that observed we by required jury trial the consent of a to provide issue refusal completely silent the party’s jury ac- trial under 39(a) “a it to consequently that entitled held Rule and apply mainte- Rule court’s 38(d). the district declined to quiescence to We Rule more, manner,” not- without 38(d) of a bench a formalistic nance “in such of a appellant, a withdrawal establish given the conduct ing insufficient that 896. We noted 38(d) would act reading demand.” Rule of “a literal Federal Rules of “precise terms” frustrate the delay that of and as an instrument 39(a) 38(d) require Procedure of Civil of Civil Pro- Rules the Federal purposes of by parties stipulation oral or written an empha- This court at 1305. cedure.” Id. Id.5 trial demand. withdrawing 1, which of role Rule guilding sized Pro- Rules Civil the Federal states that holding Nonetheless, stopped short we “ to secure ‘be construed cedure should stipulation was exclusive a formal inexpensive determination just, speedy, prior waive a parties to for the mechanism ” 1). (quoting Rule Id. every action.’ concluded jury trial record, consent by entered in court and 38(d) demand trial "[a] states that 5. Rule jury.... sitting by without the court may not be with- provided as herein made parties." the consent without drawn term, recognize there is using part: provides in relevant agreement Rule it is for decisions on what “scant formalistic, by jury as has been demanded except that whatever When to be law ... Schauer, desig- is, good.” shall be Formal- the action provided in Rule it is not formalism (1988) (footnote ism, action. upon LJ. the docket 97 Yale nated by omitted). reliance on here to denote demanded shall be We use it issues trial of all attorneys language the exclusion their jury, or a rule’s canonical unless unfortu- negative record, connotation stipulation all else. filed with written open stipulation nate. made oral approach sharply This contrasts with that al discharge jury. court to This cir- rigidly upon which relied provides cumstance no doubt a factual dis- 39(a).” “precise terms [Rules] tinction with the Palmer case. But F.2d at 896. Pope this court appel- admitted that lant’s conduct was not much more than recently, Pope v. Savings More Bank Sound, Puget acquiescence: 850 F.2d 1345 Cir. mere totality “[T]he of 1988), distinguished the Palmer deci circumstances here manifests that the at- appellant’s sion on the basis that the con torney slept rights.” on his client’s Id. at in that case evinced “much more than duct added). (emphasis 1355 n. 29 Indeed our sharp at 1355. But in a silence.” Id. analysis appellant’s “appar- turned on the emphasis on literal break with Palmer’s agreement” ent with the trial court’s an- 39(a), compliance Pope with Rule we nouncement, 1355, synonym at id. a virtual necessity failed even to discuss the of a acquiescence.” for “mere demand, withdrawing jury stipulation Our obvious discomfiture in the Reid and solely proposi for instead cited Palmer Pope decisions with the Palmer decision’s can tion that conduct evince consent to holding rationale and is mirrored in other begrudg waiver. withdrawal and Id. The circuits, flatly rejected which have the for ing admission limited approach malistic Palmer embraced. See stipulation circumstances a formal un Royal Mgrs., American Inc. v. IRC Hold necessary thus became Palmer’s central 1011, ing Corp., (2d teaching Pope. 885 F.2d 1018 Cir. 1989); Dall, 223, Lovelace 820 v. F.2d 227- appellant Pope had informed the (7th Cir.1987) (per curiam); 29 that he had rested “the first court below States v. 1966 Model part part case and not the of the Beechcraft Aircraft Air, 947, (4th King 777 F.2d 950-51 Cir. case which is to be tried to the Court on the 1985); Hosp., Allen v. Barnes 721 F.2d (footnote foreclosure action.” Id. at 1354 643, (8th Cir.1983); omitted). thereafter, 644 judge Reship, Southland Soon the trial 639, discharge Flegel, (5th counsel that he would Inc. v. F.2d informed 534 lunch, jury Cir.1976); and did Exch., before so. After v.Wool Real Estate 179 recess, appellant the lunch informed 62, (D.C.Cir.1949) curiam).7 F.2d 63 (per jury the trial court that the had been im- Miller, generally Wright See 9 C. A.& discharged, requested properly that it 2321, Federal Practice and Procedure § judge refused, The trial be reconvened. 102 (parties may jury waive appeal. affirmed on and we agreement); Moore, conduct 5 J. Wicker, J.D. Pope correctly this court found Lucas & J. Moore’s Federal prompted 1139.03, (waiver appellant’s statement the tri- Practice at 39-9 17, Although September the Sixth Circuit has pretrial setting not faced this to the 1986 order directly, trial, it has issue taken similar stance in the case for bench the court ruled that Court, County Sewell v. Fiscal 863 F.2d jury by had waived her ato fail- Jefferson — denied, -, (6th order, cert. ing timely object 461 U.S. to the court's 75, (1989). 107 42 L.Ed.2d Sewell proceeded try all of Sewell’s claims. Id. request properly indorsed a trial on her Fully aware that the letter of Federal Rule of alleging complaint race and sex discrimination. 39(a) followed, Civil Procedure had not been 5, pretrial July initial conference After the Appeals Court of for the Sixth Circuit affirmed. 1986, the district court entered an order sched upon propo It relied the Seventh Circuit uling September the case for a 1986 requirements 39(a) sition that ”[t]he of Rule on all but Sewell’s Title VII claims. At interpreted broadly have ‘been so as to encom 15, 1986, pretrial September conference on final pass object orders entered the court and not requested a Sewell’s counsel continuance of the (quoting ed to.’" 863 F.2d at 464 Lovelace v. Granting jury trial date. the continuance on Dall, (7th Cir.1987)). 820 F.2d 227 17, 1986, September the trial court removed the Sixth Circuit found that the trial court's order case from the docket and scheduled it for a setting the case bench trial “constituted a January bench trial on 1987. Sewell’s coun entry satisfy ‘sufficient in the record to the re ’’ object sel did not to this order. Id. at 463. 39(a).’ quirements of Fed.R.Civ.P. Id. at 465 trial, day (quoting Eng’g On the Equip. Cargill, Sewell’s counsel asked Fields & Co. v. Inc., jury. referring Cir.1981)). the court to summon the After 651 F.2d general trend not previously followed the parties or their from conduct inferred bench trial sim upset an otherwise counsel). valid Rule has ply because the letter of Pope dis Reid and Significantly, while 1355; Pope, 850 F.2d at followed. See been Palmer, decisions from tanced themselves River Breaks v. Missouri United States weak Circuits and Second in the Fourth (9th Cir.1981) Club, 641 F.2d Hunt three Specifically, all its foundation. ened had (judge’s oral statement the Palmer on which decisions compli sufficient trial deemed waived 39(a),see reading of Rule rigid relied for its 39(a)); generally see Se ance with Rule & (citing Millner v. id. at 896 Norfolk (pretrial order well, F.2d at 461 Co., Railway F.2d Western compliance objected to deemed sufficient Dick, 639 Cir.1981); v. Rosen n. 1& Lovelace, 39(a)); 820 F.2d at Rule 1980); (2d Unit Cir DeGioia cases).9 (citing 421, 424 n. 1 Co., Lines ed States narrowly circum Cir.1962)), (2d have been for a similar us calls The case before See 1966 their own circuits. scribed within vigorous participation in party’s A result. (limiting Mill F.2d at 951 Beechcraft, much as a mention without bench notice litigants lack in which ner cases presumed the result of jury, cannot be of a issues of deciding dispositive is that court inadvertence, only can be as but mere F.2d at fact); Mgrs., American Royal relinquishment knowledgeable to cribed case as (distinguishing DeGioia especially prior jury This the jury).8 tried before here, party where, [objecting] “the so that the trial was ‘on notice was Ill dispositive is adjudicate the planning to ” and iso- thus Finding Palmer weakened Manag Royal American sues of fact.’ Beechcraft, longer the law lated, it is no hold that we (quoting 1966 ers, F.2d at 1018 sister circuits join our of this circuit. 951).10 these cir Under 7 F.2d at 77 cumstances, knowing partic- holding that by today should judgments have “court objection is trial without ipation in a bench being a fu meaning and effect instead jury a waiver. to constitute sufficient parties the will be one exercise that tile re what the no matter to overturn able against 39(a) designed protect to Rule Lovelace, 228. F.2d at sult.” ambiguous doc- or statement some careless fully argue case be his appellant chose to one when being held to be a waiver ument unjust it is not judge; the district have fore parties Where the not intended. was him to that commitment. trial, hold we have a clearly to bench consented for a setting the case bench notice the appears Ro- stood Royal overruled American have 8. ruling jury was unwarrant- trial as a that interpretation Rules trial sen v. Dick’s American, he contend that under- Appellant does not 39(a) Compare Royal ed. silentio. sub judge’s Dick, trial to be "the at the trial notice 639 F.2d with Rosen v. stood directive," at 885 F.2d id., appropriateness of a see the 90 & n. jury trial. Int’l, Ltd., Conval Explorations, Inc. v. In Zidell the court clerk that record here reveals 10.The that we held 719 F.2d the trial that the case the start at announced the to waive will not suffice equivocal remarks Transcript Reporter’s non-jury set for was jury. During of a by the course jury requested or sub- party 3. Neither at counsel jury district court instructed the Instead, proposed instructions. issue, mitted particular not the rule on a that it would arguments closing urged in their both that be the responded "if jury. that Counsel necessary judge the factual make the trial case, appeal, found that fine.” Id. On that’s 203-05. Id. determinations. interpreted as either response could be counsel’s or course, of the issue obligation determination of a a waiver of our We are of mindful ruling issue that the acceptance against the court’s presumption indulge every reasonable ambi- jury. We resolved this right, was see Pradier Eles waiver of inferring against Cir.1981). guity waiver. How 641 F.2d puru, ever, presume we find it unreasonable implicate the con- case does The instant two-day Zidell, vigorously participating in litigants 39(a) expressed Rule cerns of appellant unwittingly. reasonably have done under- bench not have here could IV majority has cited several cases from other circuits that have determined reasons, judgment For these that a demand under Rule can be district court is AFFIRMED. by acquiescence waived mere in a bench trial. None of the major cases cited ALARCON, Judge, concurring Circuit ity, except Dall, Lovelace v. discuss the judgment: in the question may whether this issue be raised concur the conclusion reached applica for the first time on majority judgment insofar as it affirms the above, ble circuit law. As discussed of the district court in favor of the defen- affirming Lovelace one of the bases because, separately dant. I write unlike judgment that no was had been my colleagues, I would not reach the mer- made the trial court. 820 F.2d at 228. appeal. its of this Indeed, three of the four cases decided after Palmer that are included the ma Appellant object did not to a bench trial jority’s string rely upon quote citation majority in the A district court. Judge theory. Chambers’ “ambush” Roy judges active of this court voted to take Managers, al Am. Inc. Holding v. IRC this case en banc to determine whether the (2d Corp., Cir.1989); 885 F.2d States, opinion in Palmer v. United Dall, 228; Lovelace v. 820 F.2d at (9th Cir.1981), correctly F.2d 893 decid- States v. 1966 Model ed. reversed Beechcraft Aircraft Air, King (4th Cir.1985). ground by jury was denied his to a trial Long ago, adopted the rule in this notwithstanding the fact that he did not circuit that an issue not be raised for object to a bench trial. Id. at 896. appeal. the first time Westinghouse (9th Corp. Elec. Palmer, Weigel, 426 F.2d 1356 Judge his dissent Cham- Cir.1970) (per curiam), we articulated this question bers concluded that the whether principle following passage: the “The appellant by jury the was entitled to a trial generally applied appeal rule is that an need not considered because Fisher had assertion of error below will not be enter- non-jury participated in a trial without ob- tained where the issue (Cham- was not raised in jection. F.2d at error, the lower court assuming it bers, J., dissenting). Judge rea- Chambers occurred, might have been avoided if party the permitting soned that a to raise this importance issue had been raised. The appeal issue for the first time on would practical the rule to the administration of judge.” trial I “ambush Id. would [the] obvious, judicial system the and we ad- adopt Judge overrule Palmer and Cham- here to it here.” Id. at 1357. analysis concerning the bers’ effect of the preserve appeal failure to an issue for with- majority, As noted the the failure of deciding participation out whether in a the district court to request honor White’s bench trial without constitutes appellant for a trial was obvious to the timely jury waiver of a lawyer throughout and his two-day the opinion, time, however, a well-reasoned the Seventh of this matter. At no did Dall, Circuit in Lovelace v. bring prior F.2d 223 White his demand to the (7th Cir.1987) curiam), (per Thus, determined that judge. attention of the trial the trial strong policies against permitting judge militate a given opportunity was not the to party proceeding in a civil to raise the appellant. correct an error known the to question whether he was entitled to a trial “A party speculate will not be allowed to by jury for the first time on appeal. Id. at by letting go with the court error unre- explained 228. The court that “it is unfair marked and then seek a new trial on the trial, permit party to have a discover it basis of the error if the outcome of the lost, has and then raise the issue be ease is unfavorable to him.” Wright 9 C. Miller, cause it is unsatisfied with the result & A. Federal Practice and Proce- trial.” Id. (1971). dure at 455 § encourage appeals I not would the the sound reasons pointed out litigants deliberately await the judges over 27 who from “sandbagging” bar require claiming error for policy sound of trial before ago: “It is years outcome to the trial presented all claims be time in this court. first the first time court, raised for and not case, that, appellant’s recognize I requirement sets This appeal.... proved unsuc- of the trial court has ambush lawsuit, preventing thereby scope of for the unfortunate My concern is cessful. consequent waste litigation and piecemeal I has created. precedent majority appellate trial and of both of the time remain permit appellant would opposing party It assures that courts. error, silent, awaiting in the face of clear meet. It must the claims he will know court, raising judgment of the before court the benefit appellate gives appeal. not waste issue on would wisdom, prevents a it court’s district considering precious resources asserting this Court litigant before from remed- error that could have been claim chose, deliberately he which claim elected to am- appellant had ied below below.” to assert strategy, not reasons of the trial court. bush Partenweederei, Weigel, Belgrano v. MS Cir.1962) (9th (per cu- KOZINSKI, Judge, whom Circuit added). riam) (emphasis FLETCHER, Circuit SCHROEDER appellee’s ar- rejected majority has join, dissenting: Judges, circuit, that, of this law gument States, F.2d 893 v. United the first may not be raised an issue Cir.1981), litigant who dealt with a opinion. its in a footnote of time district court mis- complain when the 4. The didn’t at 700 n. Opinion Majority demand; timely jury takenly ignored his v. Ga- States referred us has instead, sup- litigant participated briel, only judg- complained out and when reach trial and determination to bench port its grant- against trial issue. him. We entered the merits ment decide legal to raise for a new litigant’s request a failure concerned Gabriel ed stops were Pro- government Rules of Civil the Federal holding issue—whether chose stops trial. We checkpoint ways one can withdraw fixed out the set cedure —at purely it was the issue failing complain consider because demand, to to and that a fully devel- record been had legal is not one the court’s mistake about legal raise a A to at 832. failure oped. Id. today Palm- majority overrules them. however, trial, different quite is theory at Rules as Federal interpretation of the ’ser pro- an obvious object to to a failure from “formalistic,” suggest as if to “rigid” and Sup- Southland error. See re cedural other, palatable, more is some there Cir.1981) Inc., 657 F.2d ply, not; But there is the way to read Rules. objection not raised an (we not review will susceptible to is language of the Rules the neces- procedure “unless trial to a below Consequently, to reach reading. only one injustice.”). prevent manifest sary to desirable, majority the it deems result the demonstrated, nor does the has not White by circuits of our sister the lead follows injustice that manifest suggest, majority exception judicially-created engrafting because of an affirmance flow from will I language. Because statutory onto object. to failure White’s straightfor- as the reaffirm would decision, rule, which Except for the Palmer dissent. application of a clear ward overruled, my re- today has majority in which any case has not disclosed search DISCUSSION to appellant permitted an court has noted, often has Supreme Court As he remained issue on where raise an interpretation statutory process of becoming the after silent, object, and failed the statute. language of with the inadvertently starts had that the aware — County, U.S. v. Tillamook way it conducted Hallstrom in the error committed 304, 308, -, 807, 826, S.Ct. L.Ed.2d 237 U.S. 100 S.Ct. (1980)).

(1989). L.Ed.2d 532 Hosp. Guidry See also Betkesda Ass’n v. See also Sheet Fund, Metal Workers Nat’l Pension Bowen, 1255, 1258, 485 U.S. 108 S.Ct. — -, 680, 687, U.S. (1988). Here, L.Ed.2d the relevant (1990) (“[Cjourts L.Ed.2d 782 should be statutory provisions are Federal Rules of loath to equitable announce exceptions to 38(d) 39(a).1 and Procedure The lan- Civil legislative requirements prohibitions rules guage unambig- these is clear and that are unqualified by statutory 38(d) provides Rule timely that a uous. text.”). “may demand not be with- withdrawn Hallstrom, Supreme reject- Court parties.” 39(a) the consent of the Rule out arguments, ed adopted like those by the specifies how this consent be ex- case, in this that an unambiguous providing just (1) two methods: pressed, rule given “should be prag- flexible or stipulation,” “by “by written and construction,” matic 110 S.Ct. at stipulation open made in oral court and that a application literal would rule Here, in the record.” there entered “unnecessarily by waste resources” stipulation a written nor an neither oral rendering meaningless years litigation. trial, consenting to a bench much less one Id. at Supreme 312. As the recog- Court in the record. Accordingly, entered Hallstrom, nized greater unfairness straightforward application of the Feder- may upon larger visited a far number Procedure, al Rules of Civil re- White’s litigants procedure when rules given are jury was quest for a never withdrawn and interpretation a creative in response to the district court’s failure to set the case apparent exigencies particular of a case. trial was error. precisely This is danger This particularly where, acute adopted the rationale we the last time we here, in question designed rule question addressed this in Palmer. See safeguard by to trial jury, one of 652 F.2d at 896. the few rights pertaining constitutional 38(a) conduct civil trials. Rule ex- I am not unmindful that the result we pressly declares that “the appears in Palmer triumph reached abe jury as declared the Seventh Amend- parties of form over substance: ment to the Constitution pre- ... shall be judicial system have suffered the bur- served to the inviolate.” The for- expense den and of a witnesses have malities embodied in Rules inconvenienced, been a judgment has been designed were no doubt preclude rendered. To reverse right. inadvertent forfeiture of By against plaintiff who sat during mute the weakening protections built into those proceedings and raised his only rules, the court weakens the constitutional proved after the outcome unsatisfactory to right itself. him, seems to offend basic notions of effi- At the heart of analysis the court’s is the ciency play. and fair But we not notion that to relitigate allow White to his sights narrowly. focus our As the Su- case injustice. before would work an preme only Term, Court reiterated convinced; I am it, as I see injustice “ run, long experience teaches that ‘[i]n lies in the today, court's decision a decision procedural strict adherence to the require- that denies prece- the benefit of a by specified ments the legislature is the dent he was rely entitled to on. guarantee of best evenhanded administra- years ago, decided nine established the law ” Hallstrom, tion of the law.’ 110 S.Ct. at of long the circuit before this case was (quoting Corp. Silver, 311 Mohasco v. White, 447 se, filed. acting pro discharged ful- promulgated by 1. The Federal Rules are modify by judicial interpretation. them See Supreme pursuant Court to Enabling Rules Nelson, 286, 298, Harris v. 394 U.S. Accordingly, Act. obliged we are to treat them (1969). 22 L.Ed.2d 281 statutes, power as we would and lack the to Buzard, F.2d v. States the Federal United under responsibility ly his (9th Cir.1989)(courts authority lack 475-76 the law of this and Procedure of Civil Rules filing appeal of time for notice De- to extend jury. to a securing his circuit 4(b) despite excusable Fed.R.App.P. by represented coun- fendant, at all times 49(c) ex neglect Fed.R.Crim.P. request for because plaintiff’s sel, of on notice notify to pressly that clerk’s failure research states trial; elementary would an ex entry judgment is not party of of seventh amend- that White’s have disclosed cuse); Eccles, 850 F.2d v. by acqui- United States not waivable right was ment Cir.1988) 1357, 1359-60, (9th (govern Defendant, no mute assent. escence inter permitted pursue brought this ment will not be have plaintiff, could less than suppression ruling un locutory appeal of court and of district attention to the required by 18 U.S.C. certificate less of bench the conduct objected to time; govern even where 3731 is this was filed I assume § While He did not. interlocutory pursue permitted ment than calcula- rather of inadvertence result prohibits rule defen appeal, bright-line to conclude—as tion, hard it is nonetheless cross-appeal, despite interlocutory dant’s do—that and concurrence efficiency); United he concerns of and that entirely plaintiff’s fault was Avendano-Camacho, F.2d v. district court’s States pay for the therefore should (9th Cir.1986) (Fed.R.App.P. 1392, 1394 forfeiting constitutional by his error filing appeal of 4(b)’s notice deadlines jury.2 by not create mandatory and court will are reaffirming Palm acknowledge that neglect); attorney exception for cases among fed er, remain alone we would ’ Lo Ironworkers Ass ’n International literal lan adhering to the circuits eral Indus., 733 F.2d 75 v. Madison cal Union 39(a).3 While Rules guage of Cir.1984) bright- (9th (adopting 658-59 company with our part lightly should not requires that 28 U.S.C. line rule § circuits, good have reason we would sister days be filed within notice place, In the first in this doing so case. though attor on merits even only right. Palmer would unresolved); remain Unit neys’ issues fees of the Su pronouncements with consistent Inc., Transport, v. Armored ed States Court, as Hallstrom Gui- preme such (9th cert. de F.2d 1316-17 tradition strict our but with own dry, 1481, 67 965, 101 S.Ct. nied, 450 U.S. rules stat compliance with and literal (construing Fed.R. L.Ed.2d 614 INS, 884 See, F.2d v. e.g., utes. Purba grand rule bright-line 6(g) as Crim.P. Cir.1989) (under plain 516, 517-18 date, begins impanelment jury’s term 1252(b),requirement meaning of 8 U.S.C. § service). day of regardless of first hearings be “before” deportation recent en telling most Particularly is our satisfied tele immigration judge is not Fernan- decision, v. States Congress chooses banc “[ujntil hearings phonic Cir.1990) F.2d 1514 statute”); dez-Angulo, wording of the change the party did exact- concluding who should be it Although plaintiff, district defendant required him. knowledge ly law what the charged judge are each Rules, majority and concurrence Federal entirely Concur, Holding transpired Mgrs., IRC place Royal for what Amer. Inc. the blame 3. See 700, 703-04; Cir.1989); (2d Maj. at Corp., See White. further, referring goes Model The concurrence States v. 1966 Beechcraft Aircraft Cir.1985); 947, (4th accusing plaintiff Air, and "appellant's King F.2d 950-51 ambush” 777 Concur, 639, 704, Flegel, With F.2d “sandbagging.” Reship, at Inc. v. 534 Southland suggest Cir.1976); colleague, (5th Coun concurring v. respect my Sewell 643-44 all Jefferson 461, (6th Court, deserving 464-66 ty of such harsh 863 F.2d plaintiff Fiscal is — 75, U.S.-, denied, finding 110 S.Ct. been a There has rt. never treatment. ce 107 L.Ed.2d Dall, (1989); v. 820 or- Lovelace deliberately an in 42 forwent White Cir.1987); 223, (7th Barnes likely, Allen v. judge. Most F.2d 227-29 ambush the district der to Cir.1983); 643, Wool v. oversight Hosp., 644 con- 721 is an all we have here what 62, (D.C.Cir. is, Exchange, 179 F.2d pay should Real Estate question who The cerned. 1949). difficulty I have much mistake? mutual this banc). (en held in Fernandez-Angulo separate panels en banc especially is re- that, plain language Rule, grettable, as the en process banc is meant resentencing required a remand for merely specific to decide cases but also where a district fails to make the general guidance to offer more concerning 32(c)(3)(D) required findings. Fed.R.Crim.P. judicial philosophy prevail that should doing, rejected proposed “prac- among the federal large courts this cir- interpretation” tical that would have cuit. glossed the clear over mandate of the Rule mind, myTo important it is more that we resentencing. to avoid See id. at 1518 act guiding princi- consistent with our own J., (Wiggins, dissenting). reasoning Our ples than with decisions from our sister simple straightforward: was “Strict particularly circuits. This is true as to compliance required.” with the Rule is Id. procedural rules, uniformity among where noting at 1516. While that other circuits the circuits is not pertain- essential. Rules split question, had on the we concluded ing to the conduct of trial can differ some- bright-line adopt imposes that “the rule we circuits, among districts, what among even no onerous burden the district courts visiting without litigants unfairness on language is most faithful to the jurisdiction. Indeed, either unfairness is Rule.” Id. likely more change result from the majority here approach takes an in- jurisdiction. settled rules within a In this consistent Fernandez-Angulo, with rais- regard, I note that appears to be the ing proper serious doubts as to the method appellate first case our circuit since interpreting applying federal rules Palmer to precise have dealt with this is- procedure in this circuit. In Fernan- sue. Given the thousands of litigat- cases dez-Angulo, judge panel an eleven held every year, ed here the error rate under plain language binding. that Rule 32’s the current rule seems to de be minimis. Here, a different combination of eleven Indeed, problem nationwide seems to judges plain language treats the of Rules small, very only appellate deci- 38 and 39 as little more than obstacles to having sions raised this issue in the last 41 depriving be overcome a section 1983 years.5 his constitutional to a Finally, the two cases deal While with differ- should take comfort in the that, law, ent and different rules areas of the fact to the extent a nationwide rule is they undeniably give desirable, signals inconsistent the Federal Rules of Civil Proce- procedural as to applied how rules are continually dure are under review signals this circuit.4 That the come from Advisory Committee on Civil Rules and the 4. Mgrs., similarities between these two cases Holding Corp., are Amer. Inc. v. IRC 885 F.2d superficial. Fernandez-Angulo, 1011, more than (2d Cir.1989); 1018-19 Millner v. Norfold here, pro- we considered whether violation of a Co., 1005, Railway & Western 643 F.2d 1011 & requires redoing procedure cedural rule (4th Cir.1981); n. 1 United States v. 1966 Beech protect, rule seeks to or whether it suffices to Air, 947, King Model 777 F.2d craft Aircraft adopt a shortcut that conserves re- (4th Cir.1985); Reship, 950-51 Southland Inc. v. Fernandez-Angulo sources. The complete resentencing court ordered a 639, Flegel, (5th Cir.1976); 534 F.2d 643-44 Se though even there was Court, County well v. Fiscal 863 F.2d Jefferson no indication that the district court’s failure to 461, (6th Cir.1988), denied,-U.S. 464-66 cert. procedural comply question with the rule in -, 75, (1989); 110 S.Ct. 107 L.Ed.2d 42 Na anything oversight, more than one that Family Bank, Exchange tional Ins. Co. v. Nat'l apparently the defendant had failed to call to 237, (7th Cir.), denied, 474 F.2d cert. tell, court’s the district attention. As best I can (1973); U.S. 38 L.Ed.2d 59 only relevant distinction between these two Kleindienst, Chapman 507 F.2d Fernandez-Angulo cases cuts in White’s favor: (7th Cir.1974); Dall, Lovelace v. 820 F.2d entirely by involved a created the rules of (7th Cir.1987); Hosp., Allen v. Barnes procedure; right guaranteed stake here is a (8th Cir.1983); 721 F.2d Smith v. Cush by the Constitution. Works, Inc., man Motor 178 F.2d Co., Cir.1950); States, 5. See DeGioia v. United States Lines Palmer v. United (2d Cir.1962); (9th Cir.1981); F.2d 424 & n. 1 Rosen v. Wool v. Real Estate Ex Dick, (2d Cir.1981); Royal change, (D.C.Cir.1949). interpretation If a literal Supreme Court. unwise, ifor perceived is the Rules that it believes Advisory Committee uniformity, it national to have

important amending the situation

can correct applicable rules. language of of this circuit

however, the law has been circuit has been a there years, and

for nine time,6 yet the Com- entire for that

conflict fit to act. has not seen

mittee

CONCLUSION power today exercise colleagues

My away a section take court to en banc

of an constitutional plaintiffs this in the record little find rule, existing

case, operation or the display of extraordinary justifies

that wisest Sometimes power. Be- enough alone. to leave well

course today I would do is what cause Palmer, I dissent.

reaffirming NISHIMOTO,

Shizuko

Plaintiff-Appellant, & ASSOCI-

FEDERMAN-BACHRACH Company; ATES; & Federman Walter Inc., Company, & Ruben Albert G. Sierra, Defen- A. Corporation; Richard

dants-Appellees. 88-6338.

No. Appeals, Court of

United States Circuit.

Ninth Aug. 1989.

Argued and Submitted May 1990.

Decided See, e.g., Chapman, 507 facts, Eighth waive a virtually identical gener- exception (creating pro se See was waived. F.2d at 1253 circuit held Co., However, F.2d at Allen, rule); Family even before Ins. F.2d at 644. National al deci- were there decided acquiescence stating sufficed mere sions

Case Details

Case Name: Edward Allen White v. Wayne McGinnis

Court Name: Court of Appeals for the Ninth Circuit

Date Published: May 16, 1990

Citation: 903 F.2d 699

Docket Number: 86-2208

Court Abbreviation: 9th Cir.