FILED
NOT FOR PUBLICATION MAR 16 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DUANE H. GARVAIS, No. 10-35369
Plaintiff - Appellee, D.C. No. 2:03-cv-00290-JLQ
v.
MEMORANDUM *
UNITED STATES OF AMERICA,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Justin L. Quackenbush, Senior District Judge, Presiding
Argued and Submitted March 11, 2011
Seattle, Washington
Before: FISHER, GOULD, and TALLMAN, Circuit Judges.
The United States appeals a final judgment following a bench trial in the
Eastern District of Washington in favor of Duane Garvais seeking damages for
malicious prosecution under the Federal Tort Claims Act, 28 U.S.C. § 2674. The
Government challenges the district court’s conclusions regarding three of the five
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
malicious prosecution elements under Washington law, the substantive tort law
applicable to the claim. See 28 U.S.C. § 1346(b)(1) (2006); Clark v. Baines, 84
P.3d 245, 248 (Wash. 2004). We affirm.1
We review mixed questions of law and fact de novo unless factual issues
predominate, in which case they are reviewed for clear error. Plata v.
Schwarzenegger, 603 F.3d 1088, 1093 (9th Cir. 2010); see United States v.
McConney, 728 F.2d 1195, 1202–03 (9th Cir. 1984) (en banc), overruled on other
grounds by Estate of Merchant v. C.I.R., 947 F.2d 1390, 1392–93 (9th Cir. 1991).
Regarding whether the BIA instituted or continued the tribal court prosecution
against Garvais, factual issues predominate. While it is a close question, the record
supports the district court’s finding that the BIA both instituted and continued the
criminal proceedings. Therefore, the district court’s decision on this issue is not
clearly erroneous.
The district court correctly concluded that Garvais’s successful federal
habeas petition, on the basis that he was a non-Indian defendant, satisfied the
abandonment prong of a malicious prosecution claim. See Restatement (Second) of
Torts §§ 659(c), 660, 661; see also Peasley v. Puget Sound Tug & Barge Co., 125
1
Because the parties are familiar with the facts, we repeat them here only as
necessary to explain our decision.
2
P.2d 681, 687–88 (Wash. 1942) (stating requirements of malicious prosecution
claim). This result also aligns with the Indian Civil Rights Act, 25 U.S.C. § 1303,
which authorizes the use of the Great Writ to contest tribal court proceedings.
Finally, under Washington law, in a malicious prosecution claim the
subjective views of the prosecutors that probable cause existed “merely constitute
evidence which could be considered” along with all other evidence the district court
heard to determine whether a “reasonable person” would believe probable cause
existed. Bender v. City of Seattle, 664 P.2d 492, 502 (Wash. 1983); see also
Peasley, 125 P.2d at 692. Thus, the determination that probable cause was lacking
in a malicious prosecution claim is a primarily factual inquiry reviewed for clear
error. See Bender, 664 P.2d at 502; see also McConney, 728 F.2d at 1202.
This too was a close question. But because the record as a whole supports
the district court’s conclusion that probable cause did not exist, we cannot declare it
clear error. The United States did not challenge the factual finding that the case
agent acted with malice. Accordingly, the record also supports the district court’s
determination that the BIA acted in bad faith. In the face of that determination, the
Government’s argument that it acted in good faith, and that probable cause is
therefore established as a matter of law, fails. See Bender, 664 P.2d at 500
3
(explaining that full and fair disclosure made in good faith is a complete defense in
a malicious prosecution action).
AFFIRMED.
4