Unpublished Disposition, 884 F.2d 582 (9th Cir. 1989)

MEMORANDUM^* 

Appellants Norman F. Adams, Raymond R. Bartell, Edward E. Butler, Nina I. Butler, Margie D. Ganoe, and Kenneth L. Johnson (collectively referred to as appellants) appeal from that portion of the final judgment of the district court denying their claims for injunctive relief, declaratory relief, and attorney's fees. Appellants contend that the district court erred in concluding that appellants presented no evidence that appellees' policy of suspending employees without notice or an opportunity to contest continues in effect. We disagree and affirm.

* Between April and September 1983, appellants were suspended without pay by their employer, Fairview Training Center (Fairview), Department of Human Resources of the State of Oregon. No appellant except Nina I. Butler is currently employed by Fairview.

Appellants brought an action pursuant to 28 U.S.C. § 2201 and 42 U.S.C. §§ 1983 and 1988 against the State of Oregon, Fairview, Fairview's Personnel Director George Allan, and its Superintendent Jerry McGee alleging that they were suspended without pay in violation of due process of law. Appellants sought a declaration that their suspensions violated due process as well as damages for lost pay and fringe benefits, injunctive relief, and attorney's fees. Thereafter, appellants filed a motion for a summary judgment on all issues except damages. Appellees filed a cross-motion for summary judgment. They alleged that appellants waived their constitutional rights to due process in the collective bargaining agreement.

A magistrate heard these motions. The magistrate recommended that the district court grant appellees' motion for a summary judgment. Appellants filed objections to the magistrate's recommendation. The district court rejected the recommendation and granted summary judgment on all issues except the appropriate remedy. Appellees' cross-motion for summary judgment was denied. Their motion for reconsideration was also denied.

The parties agreed that a magistrate would preside over all further proceedings including the entry of judgment, pursuant to 28 U.S.C. § 636(c). The parties submitted a pretrial order. The issue of appellants' entitlement to damages, a declaration, and injunctive relief was submitted to the district court on a stipulated record.

The district court denied appellants' claim for back pay and lost fringe benefits because each appellee was immune from an action for damages under the Eleventh Amendment. Appellants do not seek review of the portion of the judgment pertaining to immunity and the denial of damages.

On October 7, 1986, the district court denied injunctive and declaratory relief on the ground that appellants failed to show a real or immediate threat of injury. The court noted that none of the plaintiffs was still employed at Fairview.

Appellants' filed a motion to "amend findings, alter or amend judgment and reconsider." The district court amended its findings on May 12, 1987 to show that plaintiff Nina I. Butler was reinstated on March 13, 1984, and continued to work there on the date the amended finding was filed. The court found that the suspension procedure followed by Fairview was based on a collective bargaining agreement that has now expired. The court also found that there is no evidence that appellees "have or have not continued to suspend anyone without pay." The court noted that the record was silent as to the present practice and that there was no evidence that Nina I. Butler will be subjected in the future to suspension proceedings that violate due process. The motion to amend or reconsider the judgment filed on October 7, 1986, was denied. Appellants filed a timely notice of appeal. Appellees filed a timely notice of a cross appeal. On December 6, 1988, an order was filed granting appellees' motion for voluntary dismissal of their cross appeal.

II

Appellants contend that they are entitled to a reversal of that portion of the judgment denying declaratory and injunctive relief as well as attorney's fees. They argue that the law of the case establishes that they were suspended without pay in violation of their rights to due process. They assert that the district court erred in holding that the record does not establish Fairview's current suspension procedure because " [a]t no time did defendants produce any evidence whatsoever that they have changed their policy."

We review the district court's denial of an "injunction for abuse of discretion or for application of an erroneous legal principle." Brock v. Big Bear Market No. 3, 825 F.2d 1381, 1383 (9th Cir. 1987) (citation omitted). We may reverse "under the abuse of discretion standard if [we have] a definite and firm conviction that the district court committed a clear error of judgment upon a weighing of relevant factors." Id. (citation omitted).

We review de novo whether the district court correctly asserted jurisdiction over the state defendants. Charley's Taxi Radio Dispatch Corp. v. Sida of Hawaii, Inc., 810 F.2d 869, 873 (9th Cir. 1987). The Eleventh Amendment deprives the district court of jurisdiction over the action or damages under Section 1983 against the State of Oregon and against state officials acting in their official capacities. Will v. Michigan Dept. of State Police, --- U.S. ----, 109 S. Ct. 2304, 57 U.S.L.W. 4677, 4680 (June 15, 1989). However, "a State official in his or her official capacity, when sued for injunctive relief, would be a person under Sec. 1983 because 'official-capacity actions for prospective relief are not treated as actions against the State.' " Will, 57 U.S.L.W. at 4680 n. 10 (citations omitted); Charley's Taxi Radio Dispatch, 810 F.2d at 874.

Injunctive relief is available only if there is a "real or immediate threat that the plaintiff will be wronged again." City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). The Eleventh Amendment bars declaratory relief against a state and state officials acting in their official capacity. Green v. Mansour, 474 U.S. 64, 71-72, 106 S. Ct. 423, 427 (1985). Additionally, declaratory relief against state officials sued in their individual capacities is not appropriate if no evidence was presented of a continued violation of appellants' procedural due process rights. Green, 106 S. Ct. at 428-29.

Appellants have not pointed to any evidence in the record presented to the trial court concerning Fairview's current suspension procedures which would entitle appellants to injunctive or declaratory relief. Instead, for the first time in this appeal they argue that they are entitled to rely on "the presumption that a condition once shown to exist is presumed at law to continue unless some evidence of change is brought forward." Appellants' Opening Brief at page 13.

The district court and opposing counsel were not informed, prior to the entry of judgment, that appellants were relying on this presumption as a substitute for evidence that Fairview was currently suspending personnel without pay, notice, or hearing. The pretrial order contained no reference to this presumption. Appellants' failure to give notice of such reliance precluded appellees from presenting proof of Fairview's present suspension procedures. Issues not raised in the pretrial order or at trial will not be considered by this court on appeal. Malhiot v. Southern Calif. Retail Clerks Union, 735 F.2d 1133, 1137 (9th Cir. 1984), cert. denied, 469 U.S. 1189 (1985). "It is a well-established principle that in most instances an appellant may not present arguments in the Court of Appeals that it did not properly raise in the court below." Rothman v. Hospital Serv. of S. Calif., 510 F.2d 956, 960 (9th Cir. 1975) (citations omitted). We decline to consider appellants' contention that they can rely on the presumption of continuity as a substitute for proof that Fairview's unconstitutional suspension procedure survived the June 30, 1983 expiration date of the collective bargaining agreement.

III

Appellants assert that they are entitled to attorney's fees because they are prevailing parties pursuant to the "catalyst theory," which bestows that status upon a litigant who spurs an adversary into changing his behavior.

"The district court's factual determinations underlying its finding that [a party] is a 'prevailing party' for purposes of collecting attorney's fees under 42 U.S.C. § 1988 will not be set aside absent clear error." Sablan v. Department of Fin. of N. Mariana Islands, 856 F.2d 1317, 1324 (9th Cir. 1988) (citations omitted). Parties prevail under section 1988 for purposes of attorney's fees "if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). A party may also recover attorney's fees under section 1988 if the evidence establishes "some sort of clear, causal relationship between the litigation brought and the practical outcome realized." American Constitutional Party v. Munro, 650 F.2d 184, 188 (9th Cir. 1981); See also Hewitt v. Helms, 482 U.S. 755, 763 (1987) (if the complaint acts as a catalyst in changing the state's policies, then attorney's fees are appropriate).

The record is silent as to appellees' present suspension procedures. Thus, appellants have not demonstrated that the filing of this action brought about any change in Fairview's behavior. Thus, the court's finding that appellants did not prevail is not clearly erroneous.

AFFIRMED.