A. Brown v. T. Dunbar

FILED
NOT FOR PUBLICATION APR 20 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

A. CALVIN BROWN; DIANA No. 08-35793
POGACSAS; END OF THE RAINBOW
CHILDCARE; CLARA EVANS; KIM D.C. No. 2:07-cv-00082-TSZ
KONOLD; MONTY KONOLD; RYAN
MOREY; DANNY ENGLANDER;
BARBARA ENGLANDER; LOWELL MEMORANDUM *
CHRISTIAN; ROBERTA A. AREHART;
ARIANNE J. COLLMAN; D. C., a minor,
by and through her guardian; J. M., a
minor, by and through her guardian; L. M.,
a minor, by and through her guardian,

Plaintiffs - Appellants,

v.

T. MICHAEL DUNBAR; CHARLES
JOINER; MUNICIPALITY OF AUBURN
WASHINGTON; STATE OF
WASHINGTON; DEPARTMENT OF
SOCIAL & HEALTH SERVICES,
STATE OF WASHINGTON; PATRICIA
LONG; DEPARTMENT OF EARLY
LEARNING,

Defendants - Appellees.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
A. CALVIN BROWN; DIANA No. 08-35934
POGACSAS; END OF THE RAINBOW
CHILDCARE; CLARA EVANS; KIM D.C. No. 2:07-cv-00082-TSZ
KONOLD; MONTY KONOLD; RYAN
MOREY; DANNY ENGLANDER;
BARBARA ENGLANDER; LOWELL
CHRISTIAN; ROBERTA A. AREHART,
ARIANNE J. COLLMAN, D. C., a minor,
by and through her guardian; J. M., a
minor, by and through her guardian; L. M.,
a minor, by and through her guardian,

Plaintiffs - Appellees,

v.

T. MICHAEL DUNBAR,

Defendant,

and

CHARLES JOINER,

Defendant - Appellant.

A. CALVIN BROWN; DIANA No. 08-35968
POGACSAS; END OF THE RAINBOW
CHILDCARE; CLARA EVANS; KIM D.C. No. 2:07-cv-00082-TSZ
KONOLD; MONTY KONOLD; RYAN
MOREY; DANNY ENGLANDER;
BARBARA ENGLANDER; LOWELL
CHRISTIAN; ROBERTA A. AREHART;
D. C., a minor, by and through her
guardian; J. M., a minor, by and through
her guardian; L. M., a minor, by and

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through her guardian; ARIANNE J.
COLLMAN,

Plaintiffs - Appellants,

v.

T. MICHAEL DUNBAR;
MUNICIPALITY OF AUBURN,
WASHINGTON; STATE OF
WASHINGTON; DEPARTMENT OF
SOCIAL & HEALTH SERVICES,
STATE OF WASHINGTON; PATRICIA
LONG; DEPARTMENT OF EARLY
LEARNING; CHARLES JOINER,

Defendants - Appellees.

Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, Senior District Judge, Presiding

Argued and Submitted March 9, 2010
Seattle, Washington

Before: TASHIMA, FISHER and BERZON, Circuit Judges.

We reverse the district court’s denial of summary judgment to defendant

Charles Joiner. We affirm the district court’s summary judgment in favor of

defendants on all other issues.

1. The district court did not err in denying plaintiffs’ motion to remand.

The Eleventh Amendment did not pose a bar to removal, see ITSI T.V. Prods., Inc.

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v. Agric. Ass’ns, 3 F.3d 1289, 1291 (9th Cir. 1993), and we need not decide

whether the State defendants’ joinder in removal was untimely because any defect

was cured by the time judgment was entered, see Parrino v. FHP, Inc., 146 F.3d

699, 703 (9th Cir. 1998), superseded by statute on other grounds as stated in

Abrego Abrego v. Dow Chem. Co., 443 F.3d 676, 681 (9th Cir. 2006).

2. The district court did not err in enjoining the state court suit filed on

August 31, 2007. Under Quackenbush v. Allstate Insurance Company, 121 F.3d

1372, 1378 (9th Cir. 1997), such injunctions are proper because they fall within an

exception to the Anti-Injunction Act, 28 U.S.C. § 2283. The district court’s

finding that the plaintiffs’ second state court suit was an attempt to subvert the

removal of a prior case was not clearly erroneous, as the plaintiffs refiled all state

law claims in state court, not just those in need of perfection, and did so without

the court’s permission. See Quackenbush, 121 F.3d at 1378. Nor did the district

court err in entering a permanent injunction. The court’s orders found preclusive

the partial final judgment under Federal Rule of Civil Procedure 54(b). See

Continental Airlines, Inc. v. Goodyear Tire & Rubber Co., 819 F.2d 1519, 1525

(9th Cir. 1987). The permanent injunction based on the relitigation exception to

the Anti-Injunction Act was, therefore, proper. See W. Sys., Inc. v. Ulloa, 958 F.2d

864, 870-71 (9th Cir. 1992).

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 3. The fundamental right of parents to make child-rearing decisions does not

extend to a right to patronize a daycare provider that has lost its license for a failure

to comply with state regulations. Cf. O’Bannon v. Town Court Nursing Ctr., 447

U.S. 773, 788 (1980) (holding that nursing home residents do not have a due

process interest in the certification of their preferred nursing home because the

government’s action affects them only indirectly). Similarly, the regulation of a

daycare provider does not implicate the parents’ association rights. See Nat’l Ass’n

for the Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043,

1050 (9th Cir. 2000) (holding that a licensing scheme for mental health

professionals did not implicate any fundamental rights of patients or practitioners).

Thus, rationality review rather than strict scrutiny applies, see San Antonio Indep.

Sch. Dist. v. Rodriguez, 411 U.S. 1, 16-17 (1973), and plaintiffs have not shown

that the revocation of Diana Pogacsas’ license was irrational.

4. Plaintiffs have not shown how Washington’s daycare licensing scheme

was vague as applied to Pogacsas. See Village of Hoffman Estates v. Flipside,

Hoffman Estates, Inc., 455 U.S. 489, 495 (1982). Nor have they explained, beyond

conclusory assertions, precisely how the scheme is overbroad. Summary judgment

on both claims was therefore proper. Plaintiffs’ unconstitutional delegation claim

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fails because the federal nondelegation doctrine does not govern state legislatures.

See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 529 (1935).

5. We need not decide whether Pogacsas had a property interest in her

daycare license, because in light of the safety concerns, the post-deprivation

procedure satisfied due process in any event. See Barry v. Barchi, 443 U.S. 55, 64

(1979); Greenwood v. FAA, 28 F.3d 971, 975 (9th Cir. 1994).

6. The prohibition of selective enforcement based on an impermissible

motive is clearly established under Squaw Valley Dev. Co. v. Goldberg, 375 F.3d

936, 944 (9th Cir. 2004), overruled on other grounds as stated in Action Apartment

Ass’n, Inc. v. Santa Monica Rent Control Bd., 509 F.3d 1020, 1025 (9th Cir. 2007).

However, the evidence regarding Joiner does not show that he took any actions that

violated clearly established law. See Anderson v. Creighton, 483 U.S. 635, 640

(1987). Thus, we reverse the district court’s denial of summary judgment and hold

that Joiner was entitled to qualified immunity on the equal protection claim.

7. Plaintiffs object to a number of evidentiary rulings made by the district

court. However, they make only conclusory assertions about inadmissibility and in

any event do not clearly articulate any prejudice that was caused. Therefore, we

affirm the district court on all its evidentiary rulings. See Harper v. City of L.A.,

533 F.3d 1010, 1030 (9th Cir. 2008).

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Costs on appeal are awarded to defendants.

AFFIRMED in Nos. 08-35793, 08-35968. REVERSED in No. 08-35934.

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