FILED
NOT FOR PUBLICATION
SEP 07 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN GALLAGHER, No. 14-56517
Plaintiff - Appellant, D.C. No.
3:08-cv-00886-AJB-WVG
v.
SAN DIEGO UNIFIED PORT MEMORANDUM*
DISTRICT; DOES, 1 through 20,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Submitted August 31, 2016**
Pasadena, California
Before: SILVERMAN, FISHER, and WATFORD, Circuit Judges.
John Gallagher appeals the district court’s summary judgment in favor of the
San Diego Unified Port District. We have jurisdiction pursuant to 28 U.S.C. §
1291 and affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The district court correctly applied the but-for causation test to Gallagher’s
Americans With Disabilities Act retaliation claim. See T.B. ex rel Brenneise v. San
Diego Unified Sch. Dist., 806 F.3d 451, 473 (9th Cir. 2015). Likewise, the district
court correctly held that Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517
(2013), was intervening controlling authority that allowed it to reconsider
causation on remand. Compare T.B., 806 F.3d at 473, with Head v. Glacier Nw.,
Inc., 413 F.3d 1053, 1064-65 (9th Cir. 2005).
The district court also correctly ruled that Gallagher’s evidence does not
show that retaliation was the cause of the non-renewal of his anchorage permit, as
the but-for test requires. In the previous appeal, we held only that retaliation was
shown to be a possible cause because the individual who denied Gallagher’s appeal
of the permit denial knew about Gallagher’s previous lawsuit. Applying the but-
for test, undisputed evidence establishes that Gallagher’s 2001 settlement and
anchorage permits were subject to A-8 anchorage regulations. Pursuant to those
regulations, Gallagher’s permit was not renewable in 2007 because his previous
permit had already expired and his boat was not in the water subject to inspection.
As the district court ruled, even if the Port District bore some ill will towards
Gallagher, the regulations prohibited renewal of the permit and the Port District
had no discretion to renew Gallagher’s permit. In other words, Gallagher cannot
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show that absent his protected activity, the Port District would have renewed the
permit.
Finally, the district court did not abuse its discretion by denying, for lack of
diligence, Gallagher’s second Rule 56(d) request for additional discovery.
Gallagher failed to depose any witnesses during the case and failed to conduct the
additional discovery allowed by the court when it granted Gallagher’s first Rule
56(d) request. Pfingston v. Ronan Eng’g Co., 284 F.3d 999, 1005 (9th Cir. 2002)
(a lack of diligence in conducting discovery supports the denial of a Rule 56
request for additional discovery).
AFFIRMED.
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FILED
Gallagher v. San Diego Unified Port District, No. 14-56517
SEP 07 2016
FISHER, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
“To establish a prima facie case of retaliation under the ADA, an employee
must show that: (1) he or she engaged in a protected activity; (2) suffered an
adverse . . . action; and (3) there was a causal link between the two.” Pardi v.
Kaiser Found. Hosps., 389 F.3d 840, 849 (9th Cir. 2004). The “standard for the
‘causal link’ is but-for causation.” T.B. ex rel. Brenneise v. San Diego Unified Sch.
Dist., 806 F.3d 451, 473 (9th Cir. 2015). “This requires proof that the unlawful
retaliation would not have occurred in the absence of the alleged wrongful action
or actions of the [defendant].” Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct.
2517, 2533 (2013).
In the majority’s view, Gallagher has not presented a triable issue on the
third element of a prima facie case – a but-for causal link between his protected
activity and the Port District’s refusal to honor his “no expiration date” anchoring
permit. I respectfully disagree with this conclusion because it improperly applies
the law of the case doctrine.
“Under the law of the case doctrine, a court will generally refuse to
reconsider an issue that has already been decided by the same court or a higher
court in the same case.” Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir.
2012) (en banc). “We have recognized exceptions to the law of the case doctrine,
however, where ‘(1) the decision is clearly erroneous and its enforcement would
work a manifest injustice, (2) intervening controlling authority makes
reconsideration appropriate, or (3) substantially different evidence was adduced
at a subsequent trial.’” Id. (quoting Jeffries v. Wood, 114 F.3d 1484, 1489 (9th Cir.
1997) (en banc)).
The exception for substantially different evidence does not apply here. The
summary judgment record before us today, and before the district court on remand,
is the same record as was before us when we decided Gallagher’s previous appeal.
See Gallagher v. San Diego Unified Port Dist., 548 F. App’x 377 (9th Cir. 2013)
(Gallagher I).
The exception for an intervening change in the law does apply here, but only
to a limited extent. When we issued Gallagher I, we applied a motivating factor
standard to causation in ADA retaliation claims. In Nassar, however, the Supreme
Court adopted a but-for causation standard for retaliation claims under Title VII,
see Nassar, 133 S. Ct. at 2533, and in T.B., we extended the but-for causation
standard to ADA retaliation claims, see T.B., 806 F.3d at 473. T.B., which we
decided after Gallagher I, constitutes an intervening change in the law for purposes
of the law of the case doctrine. The effect of an intervening change in the law,
however, is limited. It allows reconsideration of a previous decision in the same
2
case only to the extent the previous decision is actually affected by the change in
the law. See McKesson Corp. v. Islamic Republic of Iran, 52 F.3d 346, 350-51
(D.C. Cir. 1995) (“Because this portion of our prior opinion is unaffected by [the
intervening change in the law], it remains the law of the case, not subject to
reconsideration in this second . . . appeal.”).
In Gallagher I, we decided two relevant issues. First, we held a reasonable
jury could find the Port District had a retaliatory motive for refusing to honor
Gallagher’s “no expiration date” anchoring permit. See Gallagher I, 548 F. App’x
at 381 (“A reasonable jury could find a retaliatory motive . . . .”). Second, we held
a reasonable jury could find the Port District’s proffered non-retaliatory reason for
its actions was pretextual – i.e., not worthy of belief. See id. at 380 (“Gallagher
has . . . presented sufficient evidence of pretext to survive summary judgment.”).
The majority has not explained why these determinations are subject to
reconsideration. Because they were not premised on the motivating factor
standard, they are not affected by the change in the law, and thus are “not subject
to reconsideration in this second . . . appeal.” McKesson, 52 F.3d at 351.
Because these determinations remain the law of the case, we are bound to
follow them here. See Ctr. for Biological Diversity v. Salazar, 706 F.3d 1085,
1090 (9th Cir. 2013) (“The law of the case doctrine holds that ‘a court will
3
generally refuse to reconsider an issue that has already been decided by the same
court or a higher court in the same case.’” (quoting Gonzalez, 677 F.3d at 389
n.4)). Doing so, I part company with the majority’s conclusion that Gallagher
cannot establish a prima facie case of but-for causation. If a reasonable jury could
find the Port District had a retaliatory motive for refusing to honor the “no
expiration date” permit, and if it also could find the Port District’s proffered non-
retaliatory reason for refusing to honor the permit was pretextual and hence false,
then it necessarily and logically follows that a reasonable jury could find a
retaliatory motive was the but-for cause of the Port District’s actions. A faithful
application of the law of the case doctrine, therefore, requires vacatur of the district
court’s grant of summary judgment.
Although not the chief reason for my dissent, I am also troubled by the
majority’s decision to uphold the district court’s unprecedented expansion of the
intervening change in the law exception. The district court concluded it was not
bound by Gallagher I because Nassar – decided six months before Gallagher I –
constituted an intervening change in the law. I am not aware of any authority
extending the intervening change in the law exception to a non-intervening change
in the law, so I cannot join the majority’s endorsement of the district court’s
approach.
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