Engquist v. Oregon Department of Agriculture

courts appellate Washington in the recited to be court assumed which

opinion, suffi- of Morales’s in its consideration

true The IJ argument. the evidence

ciency of facts to determine statement

used particu- for a was conviction

that Morales’s por- crime, a substantial but

larly serious to crimes facts related those

tion of convicted. not been had Morales

which stan- legal an incorrect applied also

The IJ ineli- Morales was to determine

dard for CAT relief.

gible part. GRANTED for Review

Petition proceed- for further REMANDED

Case opinion. this consistent with

ings Plaintiff-Appellee, ENGQUIST,

Anup OF AGRI- DEPARTMENT

OREGON (Jeff) Hyatt;

CULTURE; Joseph Defendants-Appel- Szczepanski,

John

lants. Plaintiff-Appellant, Engquist,

Anup Agriculture; Jo Department of

Oregon (Jeff) Szczepan

seph Hyatt; John Defendants-Appellees.

ski, 05-35170, 05-35263.

Nos. Appeals, Court of States

United Circuit.

Ninth July

Argued Submitted 8, 2007.

Filed Feb. Collins, Assistant Senior

Loren W. Smith, General, A. and Attorney Julie General, Attorney Oregon neys’ Assistant De- fees in light awards holding. Justice, Salem, OR, partment of for de- affirm Engquist’s on cross-appeal. and fendants-appellants cross-appellees. FACTUAL BACKGROUND Brischetto, Portland, OR,

Stephen L. for cross-appellant. and plaintiff-appellee Engquist was hired in 1992 as an inter-

national food specialist standards for the (“ESC”), Export Service Center a labora- tory in the ODA. She was hired Norma (“Corristan”), Corristan who was the di- rector of the Laboratory ODA’s Services REINHARDT, TASHIMA, (“LSD”), Before: and Division which included the ESC. GRABER, Judges. Circuit Engquist’s initial responsibility was to de- velop a regulations database of food TASHIMA, Judge: Circuit countries, different but she later focused Anup Engquist Plaintiff (“Engquist”) on marketing the ESC’s certification ser- brought alleging suit violations of federal vices and consulting with clients. law, law, anti-discrimination constitutional Hyatt had been employed by the ODA against and tort law her former em- since and worked from LSD ployer, Oregon Department Agricul- 1990 to systems 2000 as a analyst. (“ODA”) ture and Szczepanski John repeated had difficulties with (“Szczepanski”) Joseph Hyatt Hyatt, complained to Corristan sever- (“Hyatt”). juryA found the individual al times Hyatt excessively monitored defendants liable for constitutional viola- her and made false statements about her. tions of and substantive responded Corristan complaints from due process, and for intentional interfer- Engquist and others Hyatt by ence with contract. about jury meet- awarded $175,000 Engquist ing with his compensatory supervisor, dam- and requiring him $250,000 ages and in punitive damages. to diversity attend anger and management law, Oregon $75,000 Pursuant of the training. punitive damages were allocated to Ore- In June Szczepanski, who was an gon’s Injuries Criminal Compensation Ac- Assistant ODA, Director of the took over (“State Account”). count Szczepanski and ESC, oversight of the and fill sought to Hyatt “Defendants”) (collectively appeal, the vacant manager position. ESC During contending that the constitutional claims the summer of Szczepanski told a are invalid as a matter of law. Engquist client that he could not “control” Engquist, cross-appeals, contending that ver- and that Engquist and Corristan “would dict from a similar co-worker’s trial gotten rid of.” In the fall of state court should given have been preclu- Hyatt told a co-worker that Szczep- he and effect, sive or that it should have been working anski were “get rid of’ Corris- admitted into evidence. She also chal- Engquist. tan and Hyatt plan drafted a

lenges $75,000 the allocation of puni- of the reorganize ESC, and emailed it to tive damages awarded to her to the State Szczepanski, Szczepanski and subsequent- jurisdiction Account. We have over the ly implemented Engquist it. Hyatt and and appeal cross-appeal under 28 U.S.C. applied § both for the manager posi- ESC We hold that Engquist’s constitu- tional tion. Although Engquist claims are invalid law, as a matter had a more ex- and remand the case to the district tensive background court educational and more adjust Engquist’s damages and attor- experience with the customer-service as- protec- her equal violated offered that Defendants Hyatt was position, pects process rights. procedural October tion and due position effective by ex- that decision defended Szezepanski because of Hyatt chose that he

plaining BACKGROUND PROCEDURAL and work as experience Hyatt’s business complaint, Engquist alleged In her at the ODA. chemist Rights claims under Title VII of the Civil 5, 2001, an- the Governor On October (42 seq.), 2000e et §§ Act of 1964 U.S.C. experiencing that the state was nounced 1981, equal protection, procedur- § U.S.C. budget reduc- and called for budget crisis process, due and inten- al and substantive afterwards, Szezepanski elimi- tions. Soon interference with contract. She tional allegedly be- position, nated Corristan’s economic, non-economic, puni- and sought the end budget crisis. Near cause of the attorneys’ well as fees damages, tive employ- Hyatt told a former ODA moved for sum- and costs. Defendants client, and ee, that Corristan then ESC all claims. The mary judgment on “into the had run the ESC Engquist as to the granted district court the motion out, way their and they were on ground,” due procedural harassment sexual all put it back would take over he claims, respect and denied it with process January Engquist together. On remaining claims. Defendants to the being position that her was informed was summary judg- motion for made a second Pur- reorganization. due eliminated ment, challenging Engquist’s specifically bargaining agree- to her collective suant theory equal of the “class-of-one” use (“CBA”), Engquist given was ment motion, The court denied the protection. “bump” posi- into another opportunity that the claim was viable. concluding however, un- was found Engquist, tion. level, at her only position for the qualified rejected Engquist’s The district court into it. “bump” unable to and thus was preclusive ef- request give that the court off, ap- has laid being Since jury finding of discrimination fect to the jobs, has but plied approximately against De- state court lawsuit Corristan’s job. a full-time She been offered granted De- The district court fendants. business, consulting own food started her to exclude from motion limine fendants’ type of work she did at the doing the same in Corristan’s state the verdict evidence business, pay not though, does ESC. This court case. her, may losing and enough sustain to an proceeded remaining claims The expert tes- money. Defendants’ vocational Engquist rested 11-day jury trial. After very opportunities that there are few tified for case-in-chief, moved defendants her Engquist’s in fields— Oregon in for work law, chal- again as a matter judgment food technology, and microbiology, food and substan- equal protection lenging tes- expert vocational Engquist’s science. also claims. Defendants process tive due that probable that it was not tified quali- they that were entitled asserted employment in her would find Engquist claims. immunity on the constitutional fied occupation. the motions. The district court denied trial, suc- Engquist’s Prior to Corristan motions after their Defendants renewed in Defendants cessfully against filed suit evidence, again and the court the close court, jury and a awarded Corristan objected to also them. Defendants denied found jury That damages. million in $1.1 on the constitutional jury instructions against Corristan Hyatt discriminated claims, those claims should arguing that ethnicity, and gender or of her because Westminster, (9th jury. been submitted to the have Cir. 1999). objections were Those overruled. “Substantial evidence” is evidence that a might accept reasonable mind as jury The concluded that Defendants adequate to support a conclusion. Id. protec- were for violations of equal liable process, tion substantive due and as well ANALYSIS as on the contract interference claim. The jury rejected Equal Engquist’s Title VII and I. Protection § all against 1981 claims The Defendants. presents This case several of first issues $175,000 jury Engquist awarded com- circuit, impression in this the first of which pensatory damages, specif- which were not is whether the theory equal class-of-one ically any particular tied to successful protection applicable public employ- jury claim. The Engquist awarded ment The decisions. concluded $125,000 punitive equal on the were liable on equal pro- Defendants claim, $125,000 protection in punitive tection claim because Defendants “inten- damages on the contract interference tionally differently treat[ed] claim. than similarly others situated with respect promotion, the denial of her termination verdict,

Following the Defendants filed of her or denial employment, bumping judgment motion for notwithstanding the rights without rational basis and solely verdict, court which the denied. addi- arbitrary, vindictive, or rea- tion, malicious objected Engquist to the form of the sons.” Defendants contend judgment, presumably judg- Engquist’s law, claim fails as a matter of ment Oregon listed the State of a judg- as because the class-of-one theory ap- is not creditor, ment but the district court over- plicable to the public claims of employees. objection. ruled her The court entered judgment in Engquist, favor of which con- begin by examining Supreme $175,000 sisted of in compensatory dam- Court’s articulation of the class-of-one the- $175,000 ages punitive damages. ory and application its by the circuit judgment court entered in favor of the courts. Ultimately, we hold that the class- State $75,000, Account the amount of theory of-one is not percent punitive damages award- applicable to decisions made public em- claim, ed on the state tort pursuant ployers. § Or.Rev.Stat. 31.735. The court also $172,740 A. Olech

awarded and the Class attorneys’ of One fees, well as costs. timely Defendants Equal “The Protection Clause ensures filed a appeal, notice of and Engquist time- persons that ‘all similarly situated should ” ly filed her notice of cross-appeal. be treated alike.’ Squaw Valley Dev. Co. v. Goldberg, 375 F.3d Cir.

STANDARD OF REVIEW 2004) (quoting City Cleburne v. Cle We review de novo a district Ctr., Inc., burne Living 432, 439, 473 U.S. court’s denial of a judgment motion for 3249, 105 (1985)), S.Ct. 87 L.Ed.2d 313 a of law. matter Janes v. Wal-Mart denied, (9th rehearing 395 F.3d 1062 Cir. Inc., (9th 883, Stores 279 F.3d 2005). 886 Cir. The Supreme Court formally rec 2002). We also review constitutional ognized equal protection class-of-one ac Gonzales, claims de novo. Masnauskas v. in Village Olech, tions Willowbrook v. of (9th 1067, Cir.2005). 432 1069 F.3d 562, 1073, We 120 S.Ct. 145 L.Ed.2d review a verdict (2000) curiam). under the substantial (per 1060 In Olech, a mu evidence standard. Gilbrook v. City nicipality conditioned water service for a of

993 malicious, held that acts that plaintiff-owner’s granting on the We property irrational, easement, it re- or though plainly arbitrary even do not have a 33-foot every addition, a rational In only a 15-foot easement from basis. Id. we held quired 563, equal 120 that in an property protection owner. Id. at claim on other based short, opinion, law, curiam selective of per plaintiff 1073. In a enforcement a S.Ct. plaintiff proceed to can show that a alleged the Court allowed the defendant’s ration- theory, recognizing pretext al basis for acts is a for an on the class-of-one his “plaintiff alleges impermissible that she motive. Id. claims where intentionally differently treated has been summary of grant judg- We reversed similarly from others situated and that because, ment in favor of Singer defendant there is no rational basis for the difference though even the defendants had set forth a 564, in treatment.” Id. at 120 S.Ct. 1073. acts, rational for their basis there was allegations of irra- The Court stated that Singer animosity evidence that acted of out treatment, wholly arbitrary tional and against plaintiffs. Id. at In 946-47. of allegations improper even without sub- contrast, grant we sustained the of sum- motive, jective were sufficient state mary judgment favor defendant equal protection claim for relief under Goldberg because we found no evidence 565,120 analysis. Id. at S.Ct. 1073. Goldberg acted with animosity. Id. at concurrence, decided, In three-paragraph yet Jus- 947-48. have not howev- er, Breyer concern that expressed theory tice Olech whether the class-of-one should ordinary violations of be extended public employment would transform deci- or local law into constitutional cases. sions. 565-66, id. at 120 1073. He See S.Ct. appeals Other courts of have chosen judgment concurred in the be- nonetheless apply theory public Olech’s class-of-one alleged city cause the had See, employment e.g., decisions. Scarb will, ill officials acted with malice or which Educ., rough Morgan County v. Bd. distinguished claim from run-of-the- (6th 250, Cir.2006); F.3d 260-61 Hill v. 566, zoning mill cases. Id. at Kutztown, 225, Borough 455 F.3d (3d Cir.2006); Miss., Whiting v. Univ. of Olech, (5th Cir.2006); applied Based on we have 451 F.3d 348-50 Neil (2d theory regulatory in the land- v. D’Angelis, class-of-one son F.3d Cir.2005); government Salafsky, use context to forbid actions Levenstein v. irrational, Cir.2005); arbitrary, Campag that are or malicious. F.3d 775-76 Prot., 944-48; Valley, at Squaw Dep’t 375 F.3d see na v. Mass. Envtl. Outdoor, (1st Cir.2003); Valley Inc. Bartell v. City also River- F.3d (9th Cir.2006) side, Schs., (ap- 446 F.3d Aurora Pub. 263 F.3d 1148-49 (10th Cir.2001). Courts, however, plying theory city’s class-of-one denial have permits). Sqimv Valley, “struggled of billboard to define the contours of class- because, constrained, resort, plaintiffs, operated who a ski of-one cases” unless employees working theory claimed that two the class-of-one quality authority subjected provide the state water claim could a federal cause of ac regula- every them to selective and over-zealous tion for review of almost executive tory government decision. oversight. ap- 938. We administrative Stillwater, plied scrutiny Jennings City rational to review the basis (10th Cir.2004).1 Thus, al- government regulators. acts of the Id. at 1210-11 lead, Following Breyer’s courts have limited class-of-one claims re- Justice some Churchill, 661, 671, class-of-one ters v. U.S. recognized have though courts (1994) (O’Con- claims, they have almost al- 128 L.Ed.2d 686 S.Ct. employment J., partic- nor, (discussing dif- ultimately plurality opinion) concluded ways was insufficient. ability them to restrict government ular claim before ference Bartell, Neilson, 106; at See, 409 F.3d e.g., speech). under- Because of this at 1149.

263 F.3d government employer the as Because the Circuit hesitancy, Seventh standable government than the powers has broader surprised to that it was “not recently noted judicial review is regulator, scope as one’ cases in which ‘class of have found no Accordingly, correspondingly restricted. prevailed has since employee public a Supreme “[t]he Court has warned kicked off ‘class case that extreme forum appropriate court is not the federal more than two decades one’ movement of person- in which to review the multitude McCollum, 424 F.3d v. ago.” Lauth daily by public that are made nel decisions omitted) Cir.2005) (citations (7th 633-34 agencies,” and therefore Constitution cases).2 thus-far Engquist’s (collecting judicial interpreted require cannot theory pres- thus claim on this successful every Bishop v. review of such decision. unique ents a case. Wood, 341, 349-50, 426 U.S. 96 S.Ct. (1976) (rejecting pro- 48 L.Ed.2d 684 due Theory Applying B. the Class-of-One fired from cess claim where the Employment Public false public employment for reasons either theory the class-of-one apply Whether mistaken). or employers presents a public to decisions law, In areas of constitutional other question than wheth- different significantly rights public limited the em Court has legislative regulatory it to or apply er to compared ordinary citizens. ployees as general, there is a government. acts of instance, in the First Amendment con For act- “government distinction between text, employ courts review restrictions on managing that was ‘its ing proprietor’ ‘as a in or speech greater with deference ees’ affairs’ rather than as ‘law- own internal government employer’s der to balance the attempting regulate ‘to maker’ that was ” in its mission. See legitimate interests Cecil, 176 Singleton v. license.’ — Ceballos, U.S.—, —, Garcetti v. Cir.1999) (en banc) (quoting 1951, 1960, 164 L.Ed.2d 689 126 S.Ct. Union, Local & Rest. Workers Cafeteria (2006) (holding public employ that “when 886, 896, U.S. McElroy, pursuant make to their offi (1961) (alterations ees statements 6 L.Ed.2d duties, employees speaking cial are not omitted)). always Court has Supreme purposes, for First Amendment as citizens employ- as government assumed that “the does not insulate than Constitution powers er indeed has far broader sovereign.” employer their communications from disci- government does the Wa- 1073; Olech, showing S.Ct. quiring of malice or animus as an claim, Squaw Valley, but other courts have element 375 F.3d at 944. Apache do so. See Jicarilla Nation refused to County, 1209-10 Rio Arriba "extreme case" was "Ciechon v. Chica- That (10th Cir.2006) (recognizing split and collect- (7th Cir.1982), go, 686 F.2d 511 where cases). party ing Neither in this case has scapegoat paramedic made a for conduct was argued or animus is an element of that malice media, local that had drawn the wrath of the note, employment class-of-one claims. identically partner while her situated received however, requirement would be that such Lauth, 424 disciplinary sanction at all.” no opinion with the Court's inconsistent both F.3d at 634. holding Squaw Valley. Olech and our

995 Roe, discharge employees 543 U.S. City Diego San for reasons that pline”); of 80-82, 521, 125 160 L.Ed.2d 410 S.Ct. may appear arbitrary, unless constrained curiam) (2004) balancing (per (applying statute, by contract or is well-established Educ., Pickering from v. Bd. test drawn of common under employ- law of at-will 1731, 20 L.Ed.2d 811 U.S. 88 S.Ct. 391 Inc., Weingarten, ment. See NLRB v. J. (1968)). Amend Similarly, the Fourth 251, 273-74, 420 U.S. 95 S.Ct. context, government, employ as ment (1975) (describing L.Ed.2d common er, need not obtain a warrant to search an law); Andrews v. Louisville & Nashville property imposing employee’s R.R., 320, 324, requirement unduly gov burdens such (1972) (same). L.Ed.2d 95 Applying improperly ernment business and trans equal protection arbitrary to forbid or everyday incidents into forms business firings malicious of public employees constitutional matters. O’Connor v. Orte completely practice would invalidate the 709, 721-22, 107 ga, 480 U.S. S.Ct. public employment. of at-will Single- See (1987) (O’Connor, J., plurality L.Ed.2d 714 ton, at 428. We decline to ef- opinion). significant change employ- fect such a theory equal The class-of-one under general provisions ment law another area protection is constitutional the Fourteenth Amendment. See Wa- rights public employees where ters, at U.S. S.Ct. 1878 rights expansive should not be as (“[A]n government employee at-will ... ordinary paradigmatic citizens. The class- generally has no claim on the based Con- public should be one in which a of-one case all.”).3 at stitution official, motive, improper for some “comes hapless private hard on a citizen.” down significantly altering In addition to tra- Lauth, 424 the type F.3d at 633. This was practices, applying the personnel ditional Squaw Valley. of case decided in Olech and theory public employment class-of-one contrast, public employee when a cases, generate would also a flood of new subjected at work for unequal treatment requiring the federal courts to decide reasons, arbitrary ju the need for federal employee fired for public whether was review under “is dicial arbitrary an reason or a rational one. See especially given thin” the number of other Jennings, theory F.3d at 1211. The legal protections public employees en only discharges, apply would but joy. See id. actions, employment to other such as also judicially-imposed pro- A constitutional actions, promotions, disciplinary and deci- scription arbitrary public employer ac- pay, and transfers. sions about benefits per- upset long-standing tions would also Contrary Supreme Court’s admoni- arbitrary practices. Although sonnel tion, required federal courts would be in the government acts are unreasonable deci- personnel “review the multitude context, legislative regulatory employ- daily by agen- public sions that are made traditionally possessed ers have broad Bishop, 426 cies.” U.S. S.Ct. discretionary authority employ- in the power employers ment context. The case, employee, rea- employee is not at-will F.3d at 633. In this for whatever If an son, already protection against then there is arbi- nothing to indicate there is in the record trary firings, regula- such as in civil service challenged her dismissal under CBA, tions or a which lessens the need for applicable CBA. Lauth, protection. constitutional

996 Engquist present that did not sufficient that Olech is too

Finally, we believe a which to base such to that their actions a reed on evidence demonstrate slender law. public employment ability to deprived pursue transformation her of the her Supreme unlikely that Court “It seems profession.5 per in its a dramatic result intended such a Engquist hold that has stated valid We Campagna v. in Olech.” opinion curiam upon claim—a claim which relief can be Prot., F.Supp.2d 206 Dep’t Mass. of Envtl. process due granted substantive —-under (D.Mass.2002), aff'd, 334 F.3d 150 127 by alleging pre- that Defendants’ actions (1st Cir.2003). that Accordingly, we hold profession. her pursuing vented her from theory equal protection the class-of-one conclude, however, Engquist’s We by public made inapplicable to decisions is a matter of law because she claim fails as employees. regard to their employers with present did not sufficient evidence judgment fa therefore reverse for responsible Defendants’ actions were on her Engquist vor of inability pursue profession. her to her claim.4 Right A. Nature the Protected Due II. Process Substantive component of the Due “The substantive presents also a novel due This case government Process forbids the Clause circuit: what show process issue for this life, liberty, or depriving person from ing pro in a substantive due required is way ... interferes property such right pursue on the to cess claim based rights concept in the of or- implicit with concluded particular profession. liberty.” Valley, F.3d at Squaw dered 375 that Defendants were liable on the sub (internal omitted). quotation marks they claim process stantive due requirement “A threshold substantive “subjeet[ed] plaintiff arbitrary and un claim procedural process or due is the government causing actions reasonable plaintiffs showing liberty property of a or pursue profes to be unable to her protected by interest the Constitution.” that, contend as a mat sion.” Defendants Cal., City Wedges/Ledges Inc. v. law, they held ter of cannot be liable under (9th Cir.1994). Phoenix, As process violating substantive due this alternative, above, they rejected In have right. contend discussed most courts however, Engquist's 4. Because we conclude that class- we will consider them because these invalid, is we need not arguments validity of-one claim reach intertwined with they Servs., Defendants’ contention that are entitled Kemper the claim. See Kamen v. Fin. Katz, qualified immunity under Saucier v. Inc., 111 S.Ct. 194, 201, U.S. (1991) ("When L.Ed.2d 152 an issue or claim (2001). Valley, Squaw L.Ed.2d 272 court, properly before the the court is not F.3d at 943. particular legal limited to the theories ad parties, vanced but rather retains Engquist contends that Defendants have independent power identify apply and arguments waived these because the court law."). proper governing construction of accepted proposed jury their instructions for addition, legal, purely where an issue is and fact, challenged the claim. In Defendants party prejudiced, the other would not be we legal validity repeatedly pro of the claim and can consider an issue not below. See raised posed jury only instructions case the court Stone, Kimes v. Cir. Therefore, rejected legal arguments. their 1996). purely legal Here the issues are arguments. have not waived Defendants these therefore, fully by Engquist; were briefed we argues particular also that some ar argu exercise our discretion to consider these guments they were waived because were not waiver, assuming raised below. Even such ments. All process pro- recognizing due of our cases the claim that substantive this public process right em- substantive due dealt particular to a with tects yet government legislation regulation, and we have de- ployment position, government not the acts of a as an employ v. Pa. State cide the issue. See Nicholas er, (3d Cir.2000); allegedly prevented which Univ., 133, plaintiff 227 142-43 F.3d from Dias, pursuing specific profession. a See Engquist, 1131 n. 3. 436 F.3d at 733, Sagana, 384 at however, 743(challenging F.3d her claim on interfer- premised commonwealth law implementing tempo ability pursue profes- with her to a ence Dittman, rary immigrant program); labor altogether. sion 1029-33(ehallenging 191 F.3d at state law specified has not Supreme Court imposing acupuncture conditions on licens a right pursue the boundaries of the to es); 65-66(chal Wedges/Ledges, 24 at F.3d generally. has identified it profession, but city lenging ordinance that banned new Gabbert, 286, 291-92, v. See Conn licenses for particular games); arcade (1999) 1292, 119 S.Ct. 143 L.Ed.2d 399 Henderson, (9th 465, FDIC v. 940 F.2d 474 (stating generalized that there is “some Cir.1991) (challenging regulatory re process right due to choose one’s field of bank). fusal to license a new As discussed private employment”). The Court has not above, government constitutional review of ed, however, recognizing that cases employer decisions is more constrained complete prohibition “all with a right deal than legislative regulatory the review of right engage calling, a and not I.B, Part supra. ones. See Defendants 292, at interruption.” sort of brief Id. [a] argue thus that there should be no sub recognized 119 have S.Ct. process stantive due employment review of liberty pursuing occupation an interest decisions, and there is some support for Dittman v. one’s choice. See Califor proposition. Singleton, that 176 F.3d (9th Cir.1999). nia, 1020, 191 F.3d 1029-30 428(holding at that in public employ plaintiff that a can out We have held make context, employee’s ment an occupational if process a substantive due claim she is liberty protected by is not substantive due an pursue occupation unable to this process, only by procedural proc but due inability by government actions is caused ess).6 arbitrary lacking that were a rational Tenorio, 731, Sagana basis. v. 384 F.3d that there is no We decline hold (9th Cir.2004), denied, 742-43 cert. process public substantive due claim for a 1313, 161 L.Ed.2d 110 U.S. liber employer’s occupational violations (2005); Dittman, 1030; Wedg 191 F.3d at Rather, ty. we limit the claim to extreme at 65. es/Ledges, cases, blacklist, F.3d But see Zorzi “government such as a (7th Putnam, County 30 F.3d publi which when circulated or otherwise Cir.1994) (holding occupational effectively this prospective employers cized to liberty protected only by procedural due excludes the blacklisted individual from his if process rights, occupation, government and not substantive due much as had yanked the license of an individual an process). claim, right support help of her cites sev These cases establish that protected liberty unhelpful they pursue profession is a in eral cases that are terest, procedural unhelpful respect to sub involve rather than substantive but are with Ferrin, process. process protection. Benigni v. due See DiMartini v. stantive due Hemet, (9th (9th 1989), City F.2d Cir. 927-29 Cir. as amended 465; Gebbie, 1988), Brady may due by 906 F.2d 859 F.2d have involved substantive (9th Cir.1988); process, police con 1552-53 Merritt v. but was based on abusive duct, (9th 1987). provides guidance. Mackey, 827 F.2d Cir. and therefore little job a denial of prospects one’s constitutes licensure.” Olivi requires occupation profession. 122 F.3d On this Rodriguez, right pursue eri v. Cir.1997). act governmental would Such Cir- question, we find useful Seventh legislative as a same threaten the bring an cuit’s standard that order effectively person banned a action that claim, liberty must occupational and thus calls for the profession, from a circum- the “character and show protection. constitutional same level stigmatizing public employer’s stances of a federal courts review about The concerns are such as to have conduct or statements discharge, see employee ing every public to take destroyed employee’s freedom 428-29, are not Singleton, advantage employment opportuni- of other a claim color- such is implicated Bd. ties.” Bordelon Chi. Sch. Reform Nor does such only in extreme cases. able (7th Cir.2000). Trs., “It 233 F.3d standard, theory, unlike the class-of-one enough stigma- that the employer’s is not employer majority public affect the vast on tizing conduct has some adverse effect decisions. instead, job prospects; the employee’s the already recognized have As we stigmatizing that employee must show the profes pursue a chosen right virtually for the impossible actions make it by pro substantive due protected sion is employment to find new in his employee context, we believe legislative in cess the (internal quotation field.” Id. chosen protected be right that should also the omitted). marks context. There public employment the standard, only em Under this fore, is substantive due we hold that there plaintiffs that affect a occu ployer actions against government em process protection pational prospects degree to the same as access to a actions that foreclose ployer degree particular profession government legislation to the same are actionable un government regulation.7 theory. process der a substantive due Thus, comports it with our cases Sufficiency B. of the Evidence Dittman, legislative context. See Having the contours of identified im 1029(holding “ F.3d at that a law that next process right, due we substantive ‘complete prohibition’ entry on poses Engquist’s question turn to the of whether ... profession implicates person’s into a this at trial satisfied standard. evidence liberty in pursuing occupation interest an that the evidence was Defendants contend choice”). profession or of her The stan Engquist that was de insufficient to show due dard also ensures that substantive prived right pursue profession. of her process protects right pursue agree. We profession, pur entire and not the job. particular Accordingly, sue a we previously have not articu adopt the standard set forth in Bordelon. lated much interference with some- how argue Engquisl's have substan- tential claims under those amendments Defendants merit.”); process preempted her Squaw Valley, tive due claim is 375 F.3d at 949- equal protection class-of-one claim because it 50(holding process substantive due theory specifically more addresses her of lia- government interference with claims based on Penman, bility. Armendariz Takings rights preempted by property Cir.1996) (en banc) 1325-26 Clause). we held that the class- Because have ("Substantive process analysis due has no theory inapplicable employ- in the of-one place already by explic- in contexts addressed context, I, supra, Engquist’s see Part due ment protec- provisions it textual of constitutional process preempted. claim is not tion, regardless plaintiff's po- whether case, Engquist’s Damages Engquist presented evi- III. In this Attorneys’ defamatory Fees that Defendants made dence people to two or three other statements Because we reverse the judgment addition, pre- industry. Engquist favor of on her constitutional much having that she was sented evidence claims, attorneys’ award and job in difficulty finding a the same field fees award must be vacated. The compen difficulty like- Oregon, and that such would satory damages may be unaffected because however, did not ly Engquist, continue. also found in favor of Engquist on that Defendants’ actions demonstrate the interference with contract tort claim job-search caused her difficulties. There and did not allocate its compensa award of defamatory proof was no that Defendants’ tory damages any claim, particular or opportunities with comments affected punitive damages between claims. The clients, possible other em- claim, those awarded for the however, under the substantial evi- cannot stand. ployer. Additionally, Even Gilbrook, district court’s award of standard, attorneys’ fees can see 177 F.3d at dence longer § no based on U.S.C. repu- there was no evidence her Felix, Mateyko See publicly damaged by tation had been De- (9th Cir.1990) (holding plaintiff that a who they em- fendants such that reduced her claim, succeeds on a state but on none of Instead, it that ployment options. appears claims, her constitutional is not a “prevail Engquist highly specialized works in a 1988).10 § ing party” under Accordingly, field, simply many jobs not and there we vacate the of damages awards and at in Oregon. available that field Because fees, torneys’ and remand to the district situation, Defendants did not cause this adjust court to decide Engquist’s how to have not it “vir- specific their actions made damages attorneys’ fees awards. tually impossible” Engquist for to find new Bordelon, employment. F.3d at See Oregon’s Damages IV. Punitive Therefore, we conclude Allocation Statute Engquist present did not sufficient evi- pro- dence to sustain her substantive due Pursuant to Or.Rev.Stat. Consequently, cess claim.8 we reverse the 31.735, § judg the district court entered judgment Engquist in favor of on her sub- ment in favor of Account in an the State process equal stantive due claim.9 amount percent punitive of the argue Engquist 8.Defendants that if there is an avail- has not shown that she was de- claim, process pretext able substantive due is prived occupational liberty. of her part inquiry. Dittman, not In our substantive (inquiring 191 F.3d at 1029-31 process regarding occupational due decisions justification only into the for an action after liberty, gov- question we did not whether holding deprived was of her proffered justification pre- ernment's was a interest). liberty See, e.g., Wedges/Ledges, text. F.3d 66(''[W]e govern- require do not 9. Because Engquist's we due conclude actually pur- ment's action advance its stated invalid, process claim is we need not reach poses, merely but look to whether the see they are entitled Defendants’ contention that government legitimate could have had a rea- qualified immunity. supra. See footnote did.”). acting son for as it These cases all however, legislation, inquiry involved and an express opinion We as to no whether pretext may appropriate into in the em- attorneys’ is under entitled fees ployment Regardless, context. we need not Oregon law. we decide the issue as have held that (2001))). 149 L.Ed.2d damages S.Ct. punitive award. damages contention that the ie., reject Engquist’s federal, We for the award positions. took inconsistent Department § allo- subject to the 31.735 claim, not was De- represent of its decision to damages By virtue punitive cation, only but fendants, necessarily held Department of con- law tort claim for the state award commit- that Defendants had not primary the view Engquist’s interference. tract § in office or willful is that 31.735 ted “malfeasance cross-appeal on contention Takings neglect duty.” See Or.Rev. Amendment’s wanton Fifth violates the Department 30.285(requiring § Fines Clause Excessive Stat. and the Clause indemnify employees, to defend and Amendment.11 Eighth employees com- unless it deems that the Estoppel A. Judicial office”). The De- “malfeasance in mitted change during partment’s views did argument first Engquist’s below; rather, it was the judicial estoppel pre proceedings that the doctrine from that concluded that Defendants acted Department Oregon Justice vents the outrageous Account be or “reckless and for the State with “malice” funds collecting indifference,” punitive Defendants’ that it found such Department, cause liability pu counsel, appropriate. denied were See Or.Rev. previously review the district damages. § 31.730. nitive Stat. judicial es- not to invoke court’s decision take an incon- Department Nor did the discretion. Hamil

toppel for abuse sought judgment it position sistent when Co., 270 Fire & Cas. Farm ton v. State § 31.735. The De- creditor status under Cir.2001). 782(9th to one partment change position did not its agreement jury the determination of with estoppel prevents party a Judicial but, or malice because the of willfulness positions inconsistent when taking from punitive damages, the State awarded have an adverse ef those inconsistencies automatically entitled to its Account was judicial process. United the fect on statutory portion Department and the was n. 20 Miguel, 338 States v. § to ob- Cir.2003) (“Judicial separately obligated under 31.735 (9th prevents estoppel in order to judgment tain creditor status contrary taking position from party statutory portion. Accordingly, this obtain position a certain party ‘where a assumes conclude that the district court did not in we and succeeds legal proceeding, in a ” rejecting Engquist’s (quoting New abuse its discretion maintaining position.’ 742, 749, Maine, judicial argument.12 estoppel v. Hampshire matter, purely legal delay presented are and Defendants contend issues 11. As an initial hardship. challenges unripe. unnecessary We thus Engquist's are will cause dispense argument. reject readily with this Defendants’ contention that the claims can analysis prongs: unripe. "Ripeness has two the fit are judicial for review and the ness of the issue argument Department Engquist's hardship parties if review is withheld.” to the equally suffered from a conflict of interest is Cmty. Corp. Agency, 23 F.3d Gemtel Redev. Department (9th Cir.1994). The does not without merit. claim is fit for A "proprietary legal, have a interest” in the State primarily do decision if the issues it not allowed to retain development, Account because require factual and further any the funds its own benefit or even challenge action. Cal. Inc. v. a final Verizon (9th Cir.2005) charge apply fees to those who for funds Peevey, 413 F.3d (Bea, J., program. Or.Rev.Stat. concurring). Engquist's challenges under See statutory apportion- easily § does the constitutionality § sat 147.315. Nor to the of 31.735 test, damages portion punitive isfy of a of the prongs ripeness as the ment both of the 1998) (internal omitted). Non-Party quotation marks Judgment in Favor of a B. Oregon procedure, Under the State asserts Engquist next merely judgment can be identified as a entering judgment court erred district judgment creditor and need not party entity of an that was not favor DeMendoza, party. intervene as a Oregon Supreme proceeding. to the 31.735(2). 1235-36; § P.3d at Or.Rev.Stat. the district court for the Dis Court Therefore, Oregon we conclude that is en- held that Oregon trict of have both right titled to assert this substantive with- Oregon can assert its “substantive State becoming party. out pursuant creditor” judgment as a Huffman, § See DeMendoza v. 31.735.13 (2002); 51 P.3d 1235-36

334 Or. Takings Challenge14 C. Clause (Bankr.D.Or. Stein, B.R. In re 31.735, Section which a “split- is called 1999). indicates that the opinion Neither recovery” provision15 it apportions prior to its party State must obtain status punitive award between the right. The statute’s ex assertion this State, provides and the in part: language, invites the State to press which entry Upon entry including of a verdict of a verdict only “[u]pon act damages,” punitive including punitive damages, Depart- an award of award re ment of shall any judgment belies inference that State is Justice become a party. punitive damages por- to become a Or.Rev.Stat. creditor as to the quired tion Additionally, § 31.735. Federal Rule of of the award to which the Criminal 69(a) Injuries “permits judgment Compensation Procedure Account is enti- Civil (b) tled pursuant paragraph creditors to use execution method con this subsection, practice procedure punitive damage with the and the sistent portion district court of an award shall be allocated as the state which the sits.” [forty percent punitive Ins. follows: Cigna Prop. & Cas. Co. Polaris prevailing party award to the Corp., Pictures Cir. objections § Account increase the total tional 31.735. The district award State rather, liability; it specifically amount Defendants' court never ruled on the constitu merely Engquist's amount reduces the total of tionality Although of the statute. the State Therefore, recovery. was conflict there no argued Engquist could that waived the have Department's representation of between the raising by them be constitutional issues subsequent seeking Defendants and its act of low, it did not. Its failure to raise the waiver § award under 31.735. See Kasza argument in its brief to this court means that Browner, 1159, (9th Cir.1998) 1171 we can reach the merits of the issue. See "conclusory charge (rejecting plaintiff's a of Doe, 1081, 1082-83 United States v. F.3d ” against institutional ‘conflict interest' the of (9th 1995) government (holding that the Cir. Department representation of Justice's of the argument by failing waived waiver had its defendants, questioning and also whether a addressing assert it and instead the merits of standing complain plaintiff even has about claim). the defendant's part a conflict of interest on the of the defen- counsel). dants' 15.See, Klaben, Note, Split- e.g., J. Michael formerly 13. Section 31.735 was known as Recovery Interplay The the Tak- Statutes: of 18.540, § § and was discussed as 18.540 in Clauses, ings 80 Cornell and Excessive Fines opinion, the but the substance of Dodson, Note, DeMendoza (1994); L.Rev. Scott As- the two statutes is the same. Constitutionality sessing Practicality and Damages Split Recovery Alaska’s Punitive of Statute, Engquist objected to the 14. While “form (2000). Duke L.J. 1335 court, judgment” it is unclear in the district specifically she raised constitu whether a principal property whether owners have compensation sixty percent and that accrues on funds held interest account]. examining and by government, cases 31.735(1). § Or.Rev.Stat. property a interest whether a has § that 31.735 argues in a of action. Both of these two cause the Fifth Takings Clause of violates Takings cases indicate species of Clause Amendment, taking which forbids certainty inquiry that the relevant is use, with public ... for “private property interest expectation property one’s U.S. CONST. just compensation.” out conclude that They compel at issue. us to analysis two-step a AMEND. use V.16We dam- Engquist’s punitive interest her “taking” a has oc whether to determine right cogni- ages property award is not first, whether the we determine curred: Clause, Takings zable under within the subject “property” matter necessarily damages awards are punitive and, sec Fifth Amendment meaning of the conclu- contingent discretionary. Our ond, there has we establish whether been sion is bolstered our consideration compen for property, which taking of justifica- punishment the deterrence and Konizeski v. Livermore sation is due.17 below, awards, punitive tions for discussed (In Atmospheric U.S. re Consol. Labs majority and is in concert with the of state 982, Litig.), 820 Testing supreme courts who have decided the Cir.1987). focuses dispute this case The question. i.e., step, punitive whether on the first property constitutes under damages award Takings 1. Clause Cases Takings Clause.18 analysis begins Supreme Our with the question punitive of whether The consti- holding Court cases interest qualify property for damages awards property purposes Takings tutes of the Takings ques Webb’s, Clause is a of the purposes Clause. 449 U.S. 101 S.Ct. impression the federal tion of first 66 L.Ed.2d involved state stat- types Takings Clause for the state the inter- courts.19 Two ute confiscated analysis: examining interpleader cases est accrued on funds. guide cases our regulation Takings applies against with Clause to which the has interfered through expectations,” distinct the Fourteenth Amendment. investment-backed states Pharmacies, action). governmental Inc. v. Beck the character of the Webb’s Fabulous with, 155, 160, S.Ct. 449 U.S. (1980). punitive damages If the award does L.Ed.2d consti "taking” property, tute it is a to confiscate 60 it, prong percent no test for the such that the second 17. While there is formulaic certainly step, multiple approaches to the almost would be satisfied. See first there are Wash., Legal step analysis. approach, Brown v. Found. second One (2003) usually regulatory takings, L.Ed.2d 376 applied to is the ("Because accounts "ad enunciated in Penn Central interest earned in IOLTA hoc” test York, 104, City private property Transp. 438 U.S. is the of the owner of the Co. v. Newof 2646, (1978). principal, we the the interest to the 98 57 L.Ed.2d 631 As S.Ct. transfer focusing step takings Foundation here seems more akin to the oc are on the first of the engage analysis cupation rooftop space analysis, in of a small amount of we do not factors, taking though physical ... even these fac in Loretto which was a Penn Central (internal by Engquist subject per quotation se rules.” tors are discussed and ..several See, omitted) (empha supreme e.g., Kirk marks and internal court decisions. citations 262, Co., (Colo. added)). Publ’g sis 818 P.2d 268 Denver Central, 1991); U.S. at see also Penn 438 courts, however, 2646(examining impact supreme the economic 19. Several state 98 S.Ct. claimant, IV.C.l, regulation of the on the the "extent have decided this issue. See Part infra. 1003 appropriate compensate amount property the interest was concluding that Clause, Wade, plaintiff for his loss.” Smith v. Takings the Webb’s under 30, 52, 1625, 75 that the creditors at U.S. 103 S.Ct. L.Ed.2d 632 emphasized Court (1983). expecta- inherently than a unilateral Because of the uncer- had “more issue interest, punitive damages, and cited the “usual tain nature of which are tion” in the any “discretionary judgment” by ... that interest on a moral general rule jury, City Angeles, fund follows Larez v. Los interpleaded deposited Cir.1991) (internal 161-62, principal.” quo- Id. at S.Ct. omitted), tation emphasized plaintiffs that “earn- marks interest 446. Court receipt any in ownership punitive a fund are incidents of certain amount of ings of just property damages speculative and are as is too to constitute of the fund itself 164, property Takings at under property.” the fund itself is Id. Clause. Similarly, Phillips S.Ct. category Another of Takings Clause Foundation, Washington Legal cases, which statutory examines whether 1925, 141 L.Ed.2d 174 changes to causes of actions can be consid (1998), concluded that the inter- the Court takings, similarly ered focuses on the cer Lawyers’ the “Interest on gained est from tainty expectations person of the claim property program Trust Account” involved ing property interest. have held We The Court’s Takings purposes. Clause “[tjhere question that is no that claims for on the “fundamental reasoning hinged compensation property interests that of a property maxim of law owner public cannot be taken for use without may dispose of all or property interest compensation.” Causey v. Pan Am. that as he fit.” Id. at part of interest sees (In Airways, Inc. re Aircrash In World 167, 118 S.Ct. 22, 1971), Indo. on Apr. 684 F.2d Bali (9th Cir.1982). case, articu- In the interest cases do not that While however, general cognizable punitive late a rule for what is we did not discuss dam Clause, Takings ages. Atmospheric Testing property Litigation, as under the certainty reasoning Takings Court’s focused on the 820 F.2d involved Clause principal-holder’s expectation challenge providing of the of re- to a statute that ac ceiving Engquist’s expectation against interest. tions the United States be the punitive damages remedy against that exclusive for tort claims she will receive any radia award or the amount of such award is contractors for Hiroshima-related injuries. Fifth expectation far less certain than the tion We relied on the Cir “ principal. Simply put, holding on cuit’s ‘a has no punitive interest compensatory damages not follow dam- tort claim for do vested ” 988(quoting Id. at ages, principal. as interest follows The under state law.’ Labs., qualified Ducharme v. Merrill-Nat’l property interest Webb’s (5th Cir.1978) curiam)). certainty (per of the creditor’s interest, emphasized it further the claims expectations that would receive by “contingent pursuant general plaintiffs maxim that “inter- asserted were Webb’s, principal.” their nature” and “arise in a field est follows contrast, developed.” the law remains to be U.S. at 101 S.Ct. 446. which (also importing language punitive damages are “never awarded as of Id. noting hoc” right, egregious no matter how the defen- Penn Central’s “ad test conduct,” expec compensato- in tort claims lack “investment-backed dant’s contrast to tations”). mandatory; once Because the tort claims were ry damages, which “are nature,” found, liability jury required “contingent by their we concluded is is that claims damages requirement in an that the statute’s compensatory award ed) (quoting Young the ex- State ex rel. Crook government federal be against the ham, P.2d taking. not constitute a 290 Or. remedy did clusive (1980))). conclude that a Id.; Power Co. v. Carolina We therefore Duke see also Inc., punitive in a plaintiffs prospective 438 U.S. interest Study Group, Envtl. (1978) damages qualify “prop award does not 57 L.Ed.2d 595 n. 98 S.Ct. erty” Takings under the Clause. challenge to (rejecting a constitutional liability limitation on for nuclear statutory Policy Damages of Punitive Awards accidents, “clearly stating estab- person that has no principle “[a] lished” that a plaintiffs Our conclusion interest, in rule of property, no vested receipt interest in of a certain amount of common law” and that the “Constitu- punitive damages “property” is not under ... does not forbid the abolition of old tion by Takings supported Clause is further law, recognized by the common [rights] purposes punitive of the of consideration legislative object”). a permissible attain damages damages may awards. Punitive imposed policy to serve two interests: analysis Atmospheric Testing in “punishing deterring unlawful conduct and Litigation, Supreme like the Court’s inter- Am., N. repetition.” its Inc. v. BMW cases, certainty on the of the est focused Gore, 559, 568, 1589, 134 that plaintiffs expectation she would re- (1996). punitive damages A L.Ed.2d 809 property. contrast ceive the any compensatory award does not serve cases, plaintiffs the tort principal-interest goals. Supreme In the words of the Iowa Testing Litigation Atmospheric in had a Court, “a a fortuitous beneficia “contingent” necessarily interest their ry simply of a punitive damage award be claims, tort that the substitution of a such cause there is no one else to receive it.” remedy did not amount type different Shepherd Components, Inc. v. Brice Pe taking. an unconstitutional As described Assocs., trides-Donohue & 473 N.W.2d above, punitive interest plaintiffs (Iowa 1991). 612, 619 As a “fortuitous damages contingent is even more and un- beneficiary,” pos a tort claimant does not than interest in a tort certain her cause cognizable property sess an interest as a action, punitive damages Takings under the Clause. The Su only if the finds that awarded both preme emphasized Court has also the defendant’s behavior was malicious system, necessarily our federal States “[i]n reckless and decides invoke its discre- flexibility in determining have considerable tionary judgment against moral the defen- punitive damages they level will Larez, dant’s conduct. See 946 F.2d at allow in different 648(“the classes cases and purely discretionary pu- nature of Gore, any particular case.” 517 U.S. at damages required only finding nitive 568, 116 S.Ct. 1589. Given the broad dis the conduct met the recklessness granted fashioning cretion to the States threshold” but also that the conduct merit- schemes, punitive their up we ed punitive damages addition to the constitutionality Oregon hold the award, compensatory which is a “discre- against Engquist’s Takings statute (internal Clause tionary judgment” quota- moral challenge. omitted)); Honeywell tion marks see also Co., Sterling Furniture 310 Or. Supreme 3. State Court Decisions (1990) (“ P.2d ‘The finder of fact punitive damages, supreme must determine what Several courts have ruled if any, proper premise upon constitutionality to award on the “split-recov- based statutes, (Alaska, deterring future similar ery” misconduct with six states ” Iowa, Indiana, Missouri, the defendant or (emphasis Georgia, others.’ add- Florida) Challenge against D. Excessive upholding the statutes Fines Clause challenges and two Takings Clause federal § Engquist also contends that 31.735 vi- (Utah Colorado) holding the states olates the Excessive Fines Clause of the Dodson, su unconstitutional. See statutes Eighth Amendment. That amendment in- 16, 49 Duke L.J. at 1365 n. 5 pra, note structs: “Excessive bail shall not re- decisions). (summarizing state court The quired, imposed, nor excessive fines nor a supreme courts concluded that punishments cruel and unusual inflicted.” punitive in has no vested plaintiff U.S. CONST. AMEND. VIII.21 (1) damages damages, either because the Supreme The expressly Court has held discretionary non-compensatory, punitive damages plain that awarded to (2) to limit operate because the statutes implicate tiffs civil suits do not the judgment, the time of the awards Browning-Fer Excessive Fines before Clause. is, plaintiffs the time when a that before ris, 263-64, 492 U.S. at 109 S.Ct. 2909. See, e.g., interest vests. Cheatham v. however, language holding, The of its left Pohle, (Ind.2003); 474-75 789 N.E.2d open challenge a constitutional to a puni State, (Alaska tive award when the award serves to Evans v. P.3d bene “[wjhatever Trucks, Conkle, fit the State: the outer con 2002); Mack Inc. v. be, may fines of the Clause’s reach we now (1993); 436 S.E.2d Gor Ga. only decide that it does not constrain an (Fla. State, 800, 801-02 don v. 608 So.2d money damages award of in a civil suit 1992) curiam); (per Shepherd Components, government prose the neither when has 619; at but see Smith Price N.W.2d any right cuted the action nor has (Utah Co., 2005); Kirk Dev. P.3d 945 a the damages receive share awarded.” (Colo. Co., Publ’g P.2d 262 v. Denver added). Id. (emphasis Because the State 1991).20 holding punitive Our dam damages here does receive a share of the under ages cognizable property are not awarded,22 we question must address the Taking Clause therefore accord open by Supreme left Court. by majority with the conclusions reached a supreme of state courts who have consid Engquist’s contention raises a question impression of first in the courts of ered the issue. Inc., Vt., Oregon up- Disposal, Supreme Court likewise Inc. v. Kelco 20. The (1989) constitutionality split-remedy 106 L.Ed.2d 219 held the statute, of its J., (O'Connor, dissenting question only part and concur but decided the under DeMendoza, ring part) (noting that the other two claus the state constitution. See Eighth ap It that a es of the Amendment have been P.3d 1245-46. concluded "see[ing] prejudgment plied interest to the states and no reason to does not have vested award, distinguish Eighth punitive damages but rather has one Clause of the Amend expectation purposes incorpo at most an of such an award. Id. ment from another for ration,” supreme "would hold that the Excessive at 1245. The two state court cases she States”). split-recovery applies concluded Fines Clause also issue, deciding purposes Takings schemes violated the Clause involved Without contention, analysis Engquist’s statute. our we as different formulation of the Kirk, split recovery statutes at Fines Clause does Smith and sume Excessive granted apply to States. issue the state an interest in the mon- ey proceeds judgment from the creditor of award, Department punitive as the of Justice is the rather than an interest in the 22.Insofar creditor, judgment judgment judgment debtor. the "State” receives itself from awarded, though share of the even Supreme expressly crime never the ultimate beneficiaries are victims of Court has Depart- applies and there is no actual benefit to the held that the Excessive Fines Clause Browning-Ferris to the States. See Indus. ment. 1006 omitted). Bajakajian ultimately conclud- in- challenges Excessive fines

appeals.23 (1) statutory provision at issue whether the inquiry: ed two-step volve (2) to required if certain felons applies, and that case—which Fines Clause Excessive is “excessive.” Unit- currency sentencing at forfeit their so, the fine whether —did 321, 334, Bajakajian, 524 Fines Clause be- implicate U.S. the Excessive ed States (1998) Id. at punish. 141 L.Ed.2d 314 to it was intended cause 118 S.Ct. (“Because respondent’s 328,118 of the forfeiture S.Ct. and is punishment currency constitutes ap Excessive Fines Clause Because the meaning the a ‘fine’ within

thus con only government action that plies to Clause, turn to we now Excessive Fines offense,” for “punishment some stitutes ”). it is ‘excessive.’ question whether the id., in the under Engquist, as the action, on her claim.24 lying cannot succeed reject Engquist’s Excessive case, the Court analogous In a somewhat the Clause challenge because Fines Clause rejected an Excessive of Federal Claims that are only government to acts applies by taxpay challenge brought Fines Clause punish, split-remedy to and the intended tax on objected to a retroactive ers who punish Engquist. is not intended scheme States, their Roth IRA. Kitt United 47 Bajakajian Court stated that “at the The aff'd, 277 (Fed.Cl.2000), Fed.Cl. adopted, was the time the Constitution 1330(Fed.Cir.2002). The court decid F.3d pay to mean a ‘fine’was understood word of the tax is imposition ed that because the for sovereign punishment ment culpability” taxpayer’s “unrelated to the Id. at 327-28, some offense.” S.Ct. omitted). any 2028(internal to the commission of and unrelated marks quotation offense,” imposition of the “underlying the limits Excessive Fines Clause thus “The the “punishment” purposes tax not for of is power pay to extract government’s the Fines Clause. Id. This reason kind, ments, as Excessive whether cash or some offense.” Id. ing equally operation of Ore applies punishment for 2028(internal gon’s split-recovery Engquist’s statute on quotation marks fines the state and federal district court cases have addressed sive clause both Two implicated.” challenges split-recovery Fines constitutions would be Excessive court, however, statutes, Browning- analysis pro of neither court McBride misread but guidance. identifying per In Burke v. Deere & Fenis in this se "constitutional vides much Co., 1225, 1242(S.D.Iowa 1991), merely infirmity” Court had left F.Supp. because the grounds, open question of whether the Excessive rev’d on other 6 F.3d 497 Cir. 1993), govern apply focused Fines Clause would when the court on fact split-remedy gave a share the award. See Iowa's statute funds not to ment receives state, 263-64, reparations Browning-Ferris, 492 U.S. at but to a "civil trust fund S.Ct. 2909. to be administered the courts.” The court decided, alone, this based on observation provide Iowa "does not the State statute appear 24. Nor does it that a defendant could punitive with interest in the dam Iowa a claim. Because the statute succeed on such age and therefore that “excessive given award” no does not increase a defendant's total damages, merely levied. Id. The district liability punitive fine” had been court but re- Corp., F.Supp. portion in McBride v. Gen. Motors allocates a of the award that would (M.D.Ga.1990) upon go plaintiff, seized a defendant is otherwise therefore, statute, language "injured” by Browning-Ferris in hold Court's likelihood, standing bring a ing Georgia’s split-remedy all would lack statute had infirmity challenge. County Orange, as set forth in See Smelt v. "the constitutional Industries, (9th Cir.2006) (summarizing Browning-Fenis because the State causation, standing requirements injury, Georgia would have a to receive redressibility). share of the awarded and the exces (2) identical; ings is “punishment” actually is the issue was award. No operation litigated of the statute and was essential to a involved because final deci- Ac- Engquist’s culpability. to on in prior proceeding; unrelated sion the merits the (3) reject Engquist’s Excessive cordingly, party sought we the to precluded has and affirm the argument Fines Clause opportunity had a full and fair to be heard (4) Ac- apportioned issue; to the State judgment on that party sought the to be count. precluded party was a in privity or was a party prior proceeding; with

V. The Corristan Verdict (5) prior proceeding the type was the proceeding to which the state court will A. Preclusive Effect give preclusive effect. Nelson v. Emerald the Engquist next contends Dist., People’s 99, Util. 318 Or. 862 P.2d jury’s ruling district court erred in that the (1993). Additionally, 1296-97 when finding in Corristan’s state court case does confronted an with assertion of non-mutual preclusive Engquist’s effect in have preclusion, issue the court should “scruti- rejected pre district court the case. The nize with care situation where collater- stating jurors that “the argument, clusion estoppel al a[non-party], is asserted to and not against could find Ms. Corristan make certain no unfairness will result to necessarily respect defendant with to —the prior litigant if the estoppel applied.” your going deny I am client. So State Farm Fire & v. Century Cas. Co. ground.” review de motion on Inc., Home 275 Components, Or. 550 novo the district court’s determination (1976) (internal P.2d 1188 quotation has prior preclusive whether a decision omitted). party asserting marks The es- Inc., Broad. effect. Jacobs CBS toppel has the of proving burden the ele- Cir.2002). 1173, 1176(9th F.3d giving ments rise to it. Id. The “full faith and credit” stat Here, Engquist, who was not a compels give ute federal courts to collater party brought by the case Corristan in estoppel judicata al and res effects to the court, state contends state court judgments of state courts. Se. Res. Recov judgment and verdict from that case Montenay ery Facility Auth. v. Int’l “collaterally estop Hyatt Mr. from should (9th Cir.1992); Corp., 973 F.2d liability denying Ms. for dis § U.S.C. 1738. Because federal courts upon crimination race and sex based be give must the same full faith and credit to legal litigated cause the factual and issues judgment court as state courts in were identical to those in this Corristan give judgment, question would argument fails Engquist’s case.” preclusion Oregon issue is examined under litigated in the issue of discrimination 712-13; law. See id. see also Dias suit is not identical to the issue Corristan (9th Cir.2006) Elique, 436 F.3d in Engquist’s of discrimination suit. (stating that the relevant test federal court is whether the state court decision Oregon No cases have addressed necessary “meets the state’s own criteria con preclusion issue the discrimination require give a court of that state to however, have, articu Oregon text. courts decision) (internal preclusive effect” to the “identity of lated a strict standard for the omitted). quotation marks requirement require that “the issues” law, precise question was raised and deter Oregon previ Under mined in former suit.” See State v. of an re- litigation preclude ous issue will Hunt, P.2d Or.App. if litigation of the same issue five elements omitted). (1999) (internal (1) quotation marks proceed- are met: the issue in the two from Evi- rejected B. Exclusion of Verdict Eighth Circuit Additionally, the nearly identical dence argument Anderson v. Genuine Engquist’s. granted The district court Defendants’ 1267, 1272-73 Co., Parts to exclude the Corristan motion limine Cir.1997). in Anderson had defendant from verdict from evidence and exclude salespersons, and two oldest demoted its testimony any of the result mention employees brought of the demoted each Defendants’ motion limine Corristan. at 1269-70. company. Id. against the suit that the evidence from the Cor- contended suit, jury found the defen- In the first “irrelevant to ristan trial and verdict were Id. at age discrimination. liable for dant and admission of this evi- the instant case suit, argued Anderson In a second unfairly Defendants prejudice dence would preclu- have first verdict should jury.” The district court and confuse the age discrimina- the issue of effect on sive excluding reason for did not articulate its rejected that The court tion. Id. at 1273. evidence, merely in an oral but stated contention, did not sat- Anderson that, respect to ... the Cor- ruling “[w]ith “identity requirement: issues” isfy the verdict, going grant trial I’m ristan and finding age discrimination jury’s “the limine], and that will be the motion [in not demotion would plaintiffs] first [the Now, your if reasons for refer- excluded. any nondiscriminato- necessarily eliminate are, ring example, or to it in trial for for could assert ry defendant] reasons [the relating separate prior find inconsistent state- jury impeachment, could Anderson.” Id. The ments, to demote decision then we the term such as ‘other use the “numerous similari- recognized court ‘another,’ proceedings’ something cases, ac- the two and even ties” between nature, so as sanitize the reference possibility “the distinct knowledged to it.” demoted both men for defendant]

that[the reason,” applica- found the but the same the district court’s We review inappro- would be preclusion tion of issue evidentiary rulings for an abuse of discre priate. Id.25 Lake, County tion. Tritchler v. 358 (9th Cir.2004). F.3d 1155 When reasoning agree with explicit district court fails to make an find reject Engquist’s pre- issue and Anderson record, balancing of Rule on the ing 403 Engquist failed argument because clusion however, evidentiary we review the deter “identity require- of issues” satisfy mination de v. Boul- novo.27 United States ment.26 distinguished the In addition to the reasons articulated in 25.The Anderson court also text, above, it from Meredith Beech there is now another reason case before Aircraft Cir.1994), (10th Corp., why preclusion apply a case 18 F.3d 890 issue does not here. The Meredith, by Engquist. part jury’s the court on that relied on Conistan verdict rests in applied finding jury finding from case one—a find- that Corristan’s violated, ing employer discriminatory process rights rights had due were which promoting employee' public motive in male apply do we have concluded in the —to two, context, brought by a case which was second employment or which the evidence in employee. female The issue was identical in support were violated. this case does not it the em- second case because involved Equip. Corp., 27. But v. Crown see McEuin ployer's promoting em- motive for the male Cir.2003) (review- (9th 328 F.3d ployee, an issue which remained constant in ing the district court’s decision to exclude brought by employees. both cases the female discretion, Anderson, rather than (distinguish- evidence for abuse 128 F.3d at 1273 novo, Meredith). though explicit ing de even there was no ware, Cir.2004), n. The district court likely more re — denied, U.S.—, on cert. S.Ct. lied Rule 403 in deciding to exclude the (2005). In evidence. argued to estab Defendants had L.Ed.2d order that ev error, idence the verdict would unfairly preju lish is addition reversible dice Defendants confuse the ally jury. required establish that the error Specifically, Defendants Tritchler, contended prejudicial. was F.3d at “likely would misconstrue that evi prejudice only 1155. We find if the lower proof dence as of discrimination by defen probably error more than not taint court’s “mistakenly dant” or conclude that [the Lehman, ed the verdict. Mahone v. Engquist jury] should reach the same re (9th Cir.2003). 1170, 1172 sult.” In the district court’s oral decision It is unclear from the record whether evidence, to exclude the the court said the the district court’s decision to exclude the Corristan evidence could be for im used was based on evidence Federal Rules of peachment but the purposes, parties must Evidence or Rule 403.29 Argu- 401/40228 “ use the term ‘other proceedings’ or ‘an ments under both rules were raised other,’ nature, something of that so toas in in support Defendants of their limine sanitize the reference to it.” The court’s motion. use of the term “sanitize” indicates that its A judgment state court is decision was by rele motivated concerns about vant undue or prejudice. evidence and therefore in unfair admissible long judgment later federal suit so as the agree Commentators that most courts tendency has some prove to fact issue. forbid the mention of verdicts or damage Boulware, See 384 F.3d at 805. The ver amounts obtained former or related dict in favor of Corristan explicitly found cases. 628; § See AM. 75A JUR.2d Trial that Defendants “discharge[d] discrimi or Barrett, D.C. Propriety and prejudicial against nate[d] [Corristan] because her by counsel in civil case effect of reference gender ethnicity.” jury or While the ver case, to result trial same or of former dict is not direct evidence of discriminato therein, amount verdict 15 A.L.R.3d ry toward it Engquist, behavior is relevant cases). (summarizing Moreover, in a tendency that it has some evidence bench, similar to case the one at the Third discriminatory make the fact of behavior “disapprove^]” Circuit of the introduction by same Defendants probable more prior of a against the verdict same defen than without the evidence. See Fed. dant, jury likely give because “[a] relevance); (defining R.Evid. see also prior against the same .verdict defendant Boulware, 384 F.3d at 805. Accordingly, weight more than it warrants.” Coleman decision exclude is not Chrysler evidence Motor Carp., Co. (3d supported by 1338, 1351 Cir.1975). Rule 402. specif- The court relevant, reference to Rule "Although may seems like- "it evidence be ex- ly that the court was concerned about the probative substantially cluded if value is its evidence). prejudicial effect” of the outweighed by danger prejudice, of unfair issues, misleading confusion or " 'Relevant evidence' means evidence hav- jury, by delay, considerations of undue ing any tendency any to make the existence time, presentation waste of or needless consequence that is of fact determina- cumulative evidence.” Fed.R.Evid. 403. probable prob- of the action more tion or less able than it would be without the evidence.” Fed.R.Evid. 401. admissible_" "All relevant evidence is Fed.R.Evid. 402. value, beyond the Conistan evi- prior of a ver- bative ically noted that “admission dence, prejudice the risk of possibility dict creates the to overcome defer to the earlier result.” Id. posed. will and confusion that the verdict Ac- cordingly, we conclude the district runs counter to our con- This conclusion in grant- court did not abuse its discretion prior that a clusion in Boulware ing Defendants’ motion limine to ex- judgment was admissible under Rule court verdict from evidence. clude the Conistan Boulware, 384 F.3d at balancing. judgment court in that 808. The state CONCLUSION

case, however, danger much less posed In Boul- jury confusion than Coleman. judgment We reverse the on the consti- ware, court excluded evidence the district equal protec- tutional claims because the judgment civil prior of a state court law, tion claim is invalid as a matter of company owned the found the defendant’s to support there is insufficient evidence money gave girl- that the defendant to his claim. process the substantive due it judgment, Id. at 802. This had friend. attorneys’ vacate the fees admitted, would have been used been awards, to the district court and remand govern- at trial to rebut the the defendant portion determine what of these awards argument per- that the defendant ment’s supported by Engquist’s can be successful liability tax on that sum of sonally owed tort court state law verdict. district that, money. Id. at 808. We held under awarding portion did not err in case, of that the trial the circumstances punitive damages award to the State’s easily judge could have controlled dan- Injuries Account, Compensation Criminal jury give ger weight that the would undue portion and thus we affirm that of the judgment to court and also con- the state judgment. court err in Nor did the declin- of time or of any trolled waste confusion ing give preclusive to the Conistan verdict Id. the issues. excluding in the effect and verdict from case, however, Engquist’s bears much party evidence. Each shall bear her or his greater similarity to Coleman than to appeal. own costs on Boulware, single the Boulware. issue judgment The is REVERSED on the by court in decided the state the earlier claims, damages constitutional the and at- civil action case was a distinct cause of VACATED, torneys’ fees awards to only component related one of the case is REMANDED to the district prosecution. Boulware’s criminal Such a proceedings court for further consistent a much presents situation smaller risk of opinion. with this issues; prejudice or confusion of the addi- tionally, judgment the state court was REINHARDT, Judge, Circuit of the tax lia- highly probative defendant’s dissenting: case, Coleman, bility. In the instant as in majority, I I agree dissent. Unlike the jury there was a substantial risk that the with the other circuits class-of-one liability import would the whole verdict of theory equal protection applicable of Moreover, prior proceeding. from the the public employment According- decisions. testimony and evidence from the Conistan I ly, uphold jury’s would the verdict on the trial, including testimony, Corristan’s own claim, equal protection including its case; award presented jury was to the in this the $175,000 compensatory damages in only jury evidence not presented the $125,000 punitive damages. was in I concur in the Conistan verdict. The verdict itself possess pro- majority’s holding takings did not such additional as to the issue, although for somewhat differ- the differential clause enforcement of environ Thus, I ent reasons. would also affirm the regulations resorts, mental on ski em district court’s award to ployed the rational basis test in defined $50,000, consisting forty per- additional Penman, (9th Armendariz v. 75 F.3d 1311 $125,000 punitive cent of the total Cir.1996) (en banc), the same test that we with the law awarded connection employ in other equal protection cases. uphold claim. I Because would Valley See also Outdoor Inc. v. City of entirety, I would verdict its not remand Riverside, (9th 948, Cir.2006); 446 F.3d the case the district court. Seariver Mar. Fin. Holdings Inc. v. Mine ta, (9th 662, Cir.2002). majority’s holding relating The F.3d 679-80 theory Although class-of-one cre this circuit has not previously conflict, ates inter-circuit is at odds with considered the theory class-of-one in the precedent Supreme Court and of context, employment nothing our earlier circuit, justified by this and is not that, suggests cases contrary to the view policy by majority. concerns raised of all the other to have circuits considered Every other circuit to have considered this question, it is not applicable employ question applied has the class-of-one theo Indeed, ment cases. majority does See, ry employment. e.g., Hill v. Bor identify single equal protec case our Kutztown, (3d ough 455 F.3d jurisprudence tion or that of other Cir.2006); Whiting v. Univ. S. Missis circuit that limits equal protection rights (5th Cir.2006); sippi 451 F.3d 348-50 public employment. context of Scarbrough Morgan County Bd. of majority’s approach is also at odds (6th Educ., Cir.2006); 470 F.3d 260-61 Supreme with precedent. Court The Su- (2d 100, 104 D'Angelis, Neilson v. 409 F.3d preme has people Court made clear that Cir.2005); Salafsky, Levenstein v. singled have a not to be out Cir.2004); Campag 775-76 government arbitrary and irrational Prot., Dep’t na v. Massachusetts Envtl. Olech, treatment. U.S. (1st Cir.2003); 334 F.3d Bartell v. course, S.Ct. 1073. Of courts must be Sch., Aurora Pub. cautious, apply higher most and standard (10th Cir.2001). Supreme Even before the review, government of when the treats principle Court articulated the class-of-one groups differently on the basis certain Olech, in Village Willowbrook 528 characteristics; protected but even when a 562, 1073, 145 U.S. S.Ct. L.Ed.2d 1060 involved, protected government class is not (2000), recognized other circuits it as a supported by actions must be a rational straightforward application pro of equal City basis. Cleburne v. Cleburne Liv- See, tection principles. e.g., Ciechon v. Ctr., 432, 448-49, ing 473 U.S. 105 S.Ct. City Chicago, 686 F.2d 522-23 (1985). Thus, L.Ed.2d we Cir.1982). employee’s equal protec- must find that an majority’s position The is also at odds rights tion are violated he is when “inten- approach by with the taken this circuit. tionally differently treated from others now, recognized Until we have that a class- similarly situated and ... there is no ra- equal protection of-one claim is no differ- tional basis for the difference in treat- ent from equal protection other claim Olech, ment.” 528 U.S. 120 S.Ct. protected that does not involve a class. example, Squaw Valley For Dev. Co. v. (9th Cir.2004), Goldberg, majority attempts distinguish The F.3d 936 which applied theory regula- the class-of-one to Olech because that case involved a needlessly con- because it is this conflict employment an decision, rather than

tory rule would the class-of-one cerned that argues that a dis majority The decision. no There is employment. pro eliminate at-will equal under the in treatment tinction ap- majority’s concern. The cause for the and employment between clause tection equal protection of class-of-one plication justified because is actions regulatory employ- fatal to at-will hardly principles acts as a is when it powers greater has always has rational basis test ment. The employ it acts as than when regulator deci- governmental to insulate been used correct that there majority is The er. that would searching review sions from powers state’s between differences functions, governmental with However, in the interfere unlike the two realms. against contexts, protecting individuals while still Amendment Fourth and First ra- relies, governmental conduct. The heinous majority the Court which upon this role as suc- play test can Amend tional basis Fourteenth limited the has not equal protection cessfully here as other public employ applied to scope as ment’s necessary, Davis, certainly not It 426 U.S. cases. Washington v. ment. (1976); concept of order to at-will preserve 48 L.Ed.2d 96 S.Ct. government hold that the employment, to Human Res. v. Dep’t Nevada see also maliciously 728-29, may freely employees treat its Hibbs, (2003) irrationally. (applying and L.Ed.2d 953 case law gender-based nevertheless, views the majority, context to employment outside from Squaw Valley forth in requirement set courts New circuit public employees). “mali conduct not be government to the idea any consideration given have cious, irrational, arbitrary” as plainly ap doctrine does the class-of-one employ inherently at odds with at-will and none has ever so employment, ply to apparently It believes that arbi ment. Furthermore, in the and even First held. employees is a trary public treatment contexts, in which Amendment Fourth part public necessary acceptable limita that some have concluded courts Moreover, I employment. disagree. necessary to rights are tions on individual threatening to Squaw Valley test is not as employment, federal government facilitate majority be employment at-will up rights to give do not their employees discharges all lieves: it not render would hostile, arbitrary, malicious free from just that are not for cause unconstitutional. government. See Gar treatment Rather, present in the context as in — Ceballos, U.S.—,—, cetti statutory interpretation, “plainly context of (2006) 1951, 1958, 164 L.Ed.2d S.Ct. arbitrary” must be construed relation (“[P]ublie do not all employees surrender the other the clause. See United words of rights by reason their First Amendment 740-41(9th King, 244 F.3d States Treasury Nat’l Em employment.”); their Cir.2001) (“[Wjords judged by are to be Raab, ployees v. Von Union in context and ... words their series (1989) 664, 109 1384, 103 L.Ed.2d 685 S.Ct. in by neighboring words to be understood (“Our cases have earlier settled (quoting States v. Car the series.” United protects individuals Fourth Amendment (9th 748, 750-51 Cir. penter, 933 F.2d by unreasonable searches conducted from 1991))). Accordingly, “plainly actions are Government, when the Govern the even arbitrary” being in the sense violative employer.”). an ment acts as they only clause if equal protection the irrationality an akin to or majority acknowledges include element Although the Thus, an example, employer uni- malice. position its is at odds with that that courts, equal protection violate the disregards it would not formly by taken other Comm’s, (7th lay every if he were to off fifth clause 101 F.3d 1181-82 Cir. 1996). though the selection crite- employee, require even Others a showing of animus arbitrary ria rather in might appear the or malice. See Jennings City Still water, Cir.2004) of the term. It non-contextual sense 383 F.3d would, contrast, (applying violation of the this standard and collecting cases). arbitrary if plainly provision supervisor The group applies third the ration test, summarily employee were to fire an be- al putting basis the burden on the employee’s petitioner refused disprove any cause sister his rational reasons sexual advances. brought by See, forward petitioner. 349; e.g., Whiting, 451 Lauth v. Moreover, experience of other cir- McCollum, 634(7th Cir. cuits demonstrates that the class-of-one 2005). theory practice is not fatal employment. to at-will The seven The approach, best that adopted by this recognized theory case, circuits that have in regulatory circuit Squaw Valley, employment. continue to have at-will by Judge Tashima, The authored includes as- government is able to employees pects terminate of all techniques. three A plaintiff reason, in these circuits for no or for must show both that he was treated differ- reason that equal pro- ently does violate the than others and that there was no tection clause. Nor are those circuits rational basis for this treatment. Squaw drowning in the “flood” of Valley, Olech, class-of-one em- (quoting F.3d at 944 1073). ployment disputes by majority. feared U.S. at plaintiff S.Ct. A Rather, notes, majority as the those cir- can show that he was treated differently cuits have set standards for assessing by either comparing his treatment to that employment class-of-one disputes very himself, such of by someone like show- petitioners only that ing win extreme cases. government’s treatment of plaintiffs The lack of success of in him by most was motivated undeserved malice.1 ability these circuits demonstrates the Squaw Valley, 375 F.3d at recovery the courts to allow for 947(finding similarly under the no compara- situated theory class-of-one without constitutional- tor finding plaintiff but still for the under a izing every employment dispute. theory class-of-one because the defendant ‘hostility’ actual ‘antago- “harbor[ed] The ap- courts have considered the ” plaintiff). nism’ for the There is no need plication theory class-of-one to em- for an identically comparator situated three, ployment have used overlapping involving cases malice govern- because the techniques to limit its reach. The Second ment ordinarily people does not treat mali- Circuit, have, and the Seventh Circuit and, thus, ciously, obviously treating instances, required petitioner some unequally individuals under such circum- identify identically situated individual stances.2 Id. See, who was not against. discriminated Neilson, e.g., 104; 409 F.3d at Indiana can show that no rational State Teachers Ass’n v. Bd. Sch. basis exists in a class-of-one case show- say employer Although 1. This is not to that an majority requir- cannot believes employee act Olech, on his dislike of an where that ing malice would be inconsistent with employee's dislike has its roots in the medio- suggest requirement I do not a such here. I initiative, performance cre or lack of or in simply showing assert that a of malice as the response some other to the individual not enough cause is to show that an individual irrationality, based on malice or even if the subjected was treatment. differential employee requirements has met the minimum job. of the Accord- question. this circuit to consider was rational basis “asserted an ing than majority’s rever- I from the ingly, dissent treatment.” for different pretext a merely equal liability on the finding sal (internal at 945-46 Valley, 375 Squaw affirm both the count and would protection omitted). may pretext Such quotations in damages punitive and compensatory (1) the demonstrating “either: by shown regard. that objectively was rational basis proffered (2) actually agree acted I false; takings question, clause the defendant On the or puni- majority’s holding Squaw motive.” with the improper an on based Oregon law do damages provisions tive to the second at 946. As Valley, 375 F.3d I takings clause. reach this not violate the “malicious, irra that reasons prong, has no in- plaintiff conclusion because arbitrary” provide cannot plainly tional damages, which punitive at all in terest Armendariz, 75 F.3d at basis. a rational rather than punish the defendant exist Ctr., Living 1326; also Cleburne see until plaintiff, unless and to reward the 448-49, 3249; Scarb U.S. law.4 Un- interest is created such Thus, malice can 470 F.3d at 261. rough, statute, Oregon give chose to der its serve as basis in some circumstances only forty percent plaintiff an interest and lack disparate treatment showing both against assesses the amount that the rational basis. mali- a state claim for the defendant on test, the dis- I would affirm this Under af- plaintiff is never cious conduct. Engquist’s that trict court’s determination any right to the possession of or forded rights were violated. protection equal award, that sixty percent of the other theory on the presented her case Engquist directly to the state money is awarded acting Hyatt were Szczepanski that such circum- judgment. the court’s Under jury agreed, finding malice. The out of stances, majority correct was “arbi- Engquist’s termination that other property has no According- trary, or malicious.” vindictive Accordingly, I concur sixty percent. that she Engquist has demonstrated ly, majority’s holding and would leave target govern- singled out to be the was damages forty percent punitive Engquist’s malice was the malice and that this ment unchanged.5 on the state claim award cause of her termination.3 sum, that the dis- I would conclude the test that

I see no reason to abandon holding trict court did err thoughtfully endorsed for Judge Tashima rights were Engquist’s equal protection Valley. certainly I Squaw the court in and would affirm the award violated reject damages it in favor of a rule that on the basis general punitive would not affirm the that claim.6 I would also by every other adopted conflicts with that might apply only if the state took majority objects to the 4. A different rule 3.I note that the damages that, punitive awarded under a share of theory argue and does not if class-of-one law, not at issue in this federal but that is applicable, failed such standard is case. to establish assert sufficient evidence focuses its at- violation. The State likewise reject Engquist’s majority, other I Like theory tack on the class-of-one and raises arguments relating apportionment of sufficiency only as to of the evidence claim punitive damages. Engquist's point individual failure note, identically majority As I how- agree situated to herself. with the as to the substan- I However, ever, process identically comparator due claim. is not tive situated process substantive due for the required in cases of malice. merged larger into the sums violation were punitive damages of the re- apportionment QUESTION ORDER CERTIFYING OF LAW TO THE MONTANA I lating to the state law claim. Because SUPREME COURT uphold general punitive the and would damages equal protection grounds on the ORDER apportionment punitive and the the I claim, I damages on the state law would 44(c) Pursuant to Rule of the Montana judgment affirm- the district court in its Procedure, Appellate Rules of respect- we entirety. respectfully I dissent. fully request the Montana Supreme Court adjudicate

to exercise its discretion to following question of Montana law: 39-71-413, § Is Mont.Code Ann. amended, unconstitutional any under following provisions of the constitu- (i) tion of the State of prohibi- Montana: special privileges immunities, tion of and (ii) II, 31; § art. right pursue life’s BRADY; Brady, Michael Joan necessities, health, basic safety, seek Plaintiffs-Appellants, happiness ways, all lawful art. (iii) II, 3;§ right dignity to individual law, and equal protection II, of the art. MONTANA, LLC, PPL Defendant- (iv) 4;§ prohibition of special legisla- Appellee. (v) tion, V, 12; § art. to due process, II, § art. 17? No. 06-35007. The answer to question the certified will appeal pending determinative Appeals, United States Court our court diversity this action. We Ninth Circuit. acknowledge your may Court decide to reformulate the question, and that our Feb. phrasing question is not intended to your restrict Court’s consideration of the Edwards, A. Clifford Anner- Roberta request. grateful any We would be for Edwards, Hughes, Esq., Tolstedt & Frick- guidance your provide, can Court whether le, MT, Billings, for Plaintiffs-Appellants. directly responsive question or not phrased as we have it. Hart, LLP, Sterup, Robert Holland & MT, Gilmore, Billings, Esq., Carl P. Pres- II Ellis, LLP, Seattle, WA, ton Gates & action, diversity plaintiffs this Mi- Defendant-Appellee. Brady appealed chael and Joan have District United States Court for Montana’s Before RAYMOND C. FISHER and summary grant judgment favor of TALLMAN, Judges, RICHARD C. Circuit (“PPL”) PPL defendant Montana on the MILLS,* Judge. Bradys’ and RICHARD District operates state tort claims.1 PPL * Mills, equal protection awarded for the clause viola- The Honorable Richard Senior United tion, my Judge conclusion as to the States District for the Central District Illinois, support sitting by designation. clause is sufficient entire feder- Thus, majority’s al award. con- disputed 1. Because certain facts remain process clusion as to substantive due does not summary judgment phase, we include brief affect outcome in manner. summaiy pursuant of the relevant facts agree majority’s 44(f)(2) I R.App. (permitting likewise with the conclu- Mont. P. the certi- relating fying provide sions to the exclusion of the Corristan if court statement facts one). parties agree verdict. Neverthe- cannot on

Case Details

Case Name: Engquist v. Oregon Department of Agriculture

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 8, 2007

Citation: 478 F.3d 985

Docket Number: 05-35170, 05-35263

Court Abbreviation: 9th Cir.