FILED
NOT FOR PUBLICATION MAY 30 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JEAN MARIE HOWELL, No. 09-36153
Plaintiff - Appellee, D.C. No. 3:08-cv-00727-KI
v.
MEMORANDUM *
CHRISTOPHER DAVID BOYLE and
CITY OF BEAVERTON,
Defendants - Appellants.
Appeal from the United States District Court
for the District of Oregon
Garr M. King, Senior District Judge, Presiding
Argued October 6, 2010
Submitted May 30, 2013
Portland, Oregon
Before: PAEZ and CLIFTON, Circuit Judges, and BURNS, District Judge.**
In this case, we certified two questions to the Oregon Supreme Court.
Howell v. Boyle, 673 F.3d 1054 (9th Cir. 2011). The Oregon Supreme Court
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Larry A. Burns, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
granted certification and filed an opinion answering the question it deemed
dispositive on March 14, 2013. Howell v. Boyle, 353 Or. 359 (2013). The Oregon
Supreme Court denied Plaintiff Howell’s Petition for Reconsideration on May 16,
2013, and the matter is now ripe for our decision.1
As the Oregon Supreme Court did, we assume that Howell’s claim is
protected by the “remedy clause” of Article 1, Section 10 of Oregon’s constitution.
Applying the Supreme Court’s decision that a statutorily capped remedy of
$200,000 to Plaintiff Howell would be “constitutionally adequate” because it is
“substantial” and does not leave her “wholly without remedy,”we REVERSE the
district court’s denial of Defendants’ Rule 59(e) motion. We REMAND to the
district court with instructions to (1) revise the amount of judgment to $200,000, in
accordance with the Oregon Tort Claims Act damages cap in former Oregon
Revised Statutes § 30.270(1); and (2) remove Officer Boyle as a defendant and
substitute the City of Beaverton pursuant to former Oregon Revised Statutes §
30.265(1).
REVERSED and REMANDED with instructions.
1
This memorandum disposition resolves both parties’ requests for relief
filed May 21, 2013.
2