Unpublished Disposition, 878 F.2d 385 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 878 F.2d 385 (9th Cir. 1988)

Margaret GODING, Plaintiff-Appellant,v.George R. ARIYOSHI, individually and in his capacity as theGovernor, et al. Defendants-Appellees.

No. 88-2751.

United States Court of Appeals, Ninth Circuit.

Submitted*  May 11, 1989.Decided June 22, 1989.



Appellant Margaret Goding, arguing pro se, presents an unfocused attack on the district court's various rulings below, which in their totality rejected her claims in connection with her termination as a teacher on September 30, 1977. The district court dismissed her initial complaint, noting that her claims of unlawful termination or unfair representation were barred by the statute of limitations. Appellant filed a first amended complaint, alleging violations of substantive and procedural due process, the first amendment, and emotional impairment due to violations of "representations and contracts."

On June 29, 1987, the district court entered summary judgment for defendants on appellant's claims in connection with her termination. The district court concluded that defendants had satisfied the due process clause. Alternatively, the court concluded that appellant's claims were barred by the statute of limitations. However, the district court ruled that material issues of fact remained in connection with appellant's arbitration claim. Specifically, the court stated that it would try the issues of whether an employee had a right to arbitration and whether the union acted under color of state law.

A trial commenced on March 1, 1988, and the court entered a directed verdict in defendants' favor, finding that appellant had no property right in a completed arbitration proceeding, and alternatively, that the union had not acted under color of state law. We affirm.1 

Appellant's various constitutional challenges to her termination were properly dismissed by the district court because they were barred by the statute of limitations. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987); Lai v. City and County of Honolulu, 749 F.2d 588, 590 (9th Cir. 1984); Haw.Rev.Stat. Sec. 657-1(4). The district court did not have jurisdiction over her claim of unfair representation. See Ayres v. International Broth. of Elec. Workers, 666 F.2d 441, 444 (9th Cir. 1982).

Finally, the district court properly entered a directed verdict at trial. Appellant does not have a vested property interest in the arbitration of her grievance. The CBA vests the right to initiate arbitration in HSTA alone. The CBA specifies that a teacher has certain rights to control and pursue a grievance in its initial steps. After the initial steps, the right to pursue a grievance through arbitration is vested in HSTA alone. Goding does not have a property interest in arbitration. In addition, the union is not a state actor. HSTA, through its officials, did not "act in concert" with the state and its officials to deprive Goding of her property right. See Tower v. Glover, 467 U.S. 914, 919-20 (1984).

In actions to enforce 42 U.S.C. § 1983 claims, a court has discretionary power to award a prevailing party reasonable attorneys' fees. See Molina v. Richardson, 578 F.2d 846, 854 (9th Cir.), cert. denied, 439 U.S. 1048 (1978). We decline to award HSTA attorneys' fees.



This panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed. R. App. P. 34(a)


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


Because several of appellant's claims were not raised before the district court, they shall not be addressed on appeal. See Romain v. Shear, 799 F.2d 1416, 1419 (9th Cir. 1986) (per curiam) ("This court will generally not consider an issue raised for the first time on appeal."), cert. denied, 481 U.S. 1050 (1987). The claims raised by Goding for the first time on appeal are the following: the State of Hawaii practiced "systemic discrimination;" the State denied Goding equal protection of the law by "providing legal counsel to some state employees but not all state employees;" the State "violated the [First] Amendment, freedom of speech, in denying teacher tenure because of an 'obnoxious nature';" the State "violated the Thirteenth [Amendment's] prohibition [] of acts of slavery when it signed a settlement agreement without the consent and knowledge of the grievant;" and the "State and union violated the Civil Rights Act of 1866 in its treatment of plaintiff-appellant for her 'ethnicity' i.e. non local but a blue eye east coast New Yorker." Appellant, additionally, alleges for the first time in her Reply Brief that two defense witnesses committed perjury while testifying at trial. This claim, likewise, will receive no consideration. See Golden v. Pacific Maritime Ass'n, 786 F.2d 1425, 1429 (9th Cir. 1986) ("appellants cannot raise a new issue ... in their reply briefs")