Unpublished Disposition, 911 F.2d 740 (9th Cir. 1986)

MEMORANDUM^** 

Plaintiffs-appellants Yosemite Tenants Association ("YTA"), an unincorporated association of tenants occupying government-furnished quarters ("GFQ") in Yosemite National Park, Jay Johnson, president of YTA, and Ronald Mackie, YTA Valley Housing Representative (collectively "YTA"), appeal the district court's summary judgment in favor of the Government. We affirm.

As a threshhold matter, the Government argues that judicial review is inappropriate because YTA has not exhausted available administrative remedies. The district court held there was no requirement of exhaustion "to the extent that plaintiffs challenge the underlying survey or other aspects of the rental increases not related to the amount of rent charged." We find no clear abuse of discretion in this determination. United Farm Workers v. Arizona Agr. Employment Relations Bd., 669 F.2d 1249, 1253 (9th Cir. 1982).

We disagree with YTA that it has adequately shown the Government's rental adjustments for GFQ at Yosemite National Park in 1983 and 1986 failed to comply with established administrative procedures.

In challenging the regional surveys, YTA primarily relies on initial survey deficiencies noted by the district court in its Yosemite I published Memorandum. See Yosemite Tenants Ass'n v. Clark, 582 F. Supp. 1342, 1363 (E.D. Cal. 1984). This reliance is misplaced since the Yosemite I preliminary injunction was dissolved and because this initial determination was solely for purposes of ruling on the preliminary injunction motion. In Yosemite II, the district court did not specifically uphold or reject these surveys but found YTA's inaction in Yosemite I and delay in commencing Yosemite II permitted these rental adjustments to be implemented under these surveys. Moreover, of two means of establishing basic rental rates, the regional survey method is preferred. 41 C.F.R. Sec. 114-52.203 (1989); 49 Fed.Reg. 13,780 (1984) (OMB Circular No. A-45 Revised Mar. 28, 1984). In order to encompass a sufficient sample, the survey may include one or more states. Id.

Under its remaining argument, we conclude YTA did not meet its specific facts burden to demonstrate a genuine issue of material fact. See Fed. R. Civ. P. 56(e). For example, the Government relied on its expert witness, Dr. Brown, to validate the 1986 rent adjustment. The district court noted that YTA's expert witness, Dr. Taylor, did not take into account Dr. Brown's report.

The June 22, 1986 rental adjustment did not constitute a retroactive increase, violating administrative requirements governing the cycle and increment of adjustments. The Government was statutorily required to collect these rents, once the injunction was dissolved, in order to avoid a government employee subsidy. 5 U.S.C. § 5536 (1988). Further, notice and an opportunity for administrative appeal and judicial review were afforded affected employees.

The Government's practice of deducting GFQ rent from employee payroll was not improper and did not constitute a nonconsensual deprivation or taking of a property right in violation of due process. We agree with the district court that 5 U.S.C. § 5911(c) (1988) expressly authorizes such deductions and that appeal rights were preserved under 41 C.F.R. Sec. 114-52.602 (1989) with the eventual possibility of judicial review. We find the procedural due process here comported with constitutional standards. See, e.g., Matthews v. Eldridge, 424 U.S. 319, 335 (1976); Cassim v. Bowen, 824 F.2d 791, 798 (9th Cir. 1987).

Repayment of credited rental amounts was not deficient for failure to include interest on the amount withheld. The United States does not waive immunity to claims for interest absent express congressional intent. See, e.g., Library of Congress v. Shaw, 478 U.S. 310, 318 & n. 6 (1986).

YTA asserts that the Government is collaterally estopped from relitigating specified issues determined in the Yosemite I. Generally, the party seeking estoppel has the burden to plead and prove the issues actually litigated and necessarily determined in its favor in a prior action. Davis & Cox v. Summa Corp., 751 F.2d 1507, 1518 (9th Cir. 1985).

The collateral estoppel doctrine is unavailable here for two reasons. First, the "granting [of] a preliminary injunction ... is not a final judgment sufficient for collateral estoppel purposes." Starbuck v. City and County of San Francisco, 556 F.2d 450, 457 n. 13 (9th Cir. 1977); see also 11 A. Wright & A. Miller, Federal Practice & Procedure, Sec. 2962, at 630-31 (1973 ed.). Second, the Order (filed Apr. 12, 1984) was dismissed without prejudice for lack of prosecution, pursuant to Fed. R. Civ. P. 41(b). This dismissal without prejudice also lacks preclusive effect. See, e.g., Brandenfels v. Heckler, 716 F.2d 553, 557 (9th Cir. 1983); 1B J. Moore, J. Lucas & T. Currier, Moore's Federal Practice, p 0.409 [1.-2], at 314, 317 (2d ed. 1988).

YTA questions whether sufficient judicial scrutiny was exercised by the district court where it adopted almost verbatim the Government's proposed Findings of Fact and Conclusions of Law. The Supreme Court has recently noted that "even when the trial judge adopts proposed findings of fact verbatim, the findings are those of the court and may be reversed only if clearly erroneous." Anderson v. City of Bessemer, 470 U.S. 564, 572 (1985) (quoted in Barnett v. Sea Land Serv., Inc., 875 F.2d 741, 745 (9th Cir. 1989)). We find no clear error here.

The district court determined that Government rental adjustments did not violate "any order" and thus denied the motion for contempt. The district court denied the motion for contempt because the action in which the preliminary injunction had been entered was dismissed and the injunction dissolved. There is no basis for the contention that the Government's subsequent rental negotiations were contemptuous when the order allegedly violated had been dissolved. See Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 440 (1974); Madison Square Garden Boxing, Inc. v. Shavers, 562 F.2d 141, 144 (2d Cir. 1977). The district court did not abuse its discretion in denying YTA's contempt motion. Balla v. Idaho State Bd. of Corrections, 869 F.2d 461, 464 (9th Cir. 1989).

We find other contentions of YTA raised on appeal unmeritorious.

AFFIRMED.