Unpublished Disposition, 921 F.2d 280 (9th Cir. 1983)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 280 (9th Cir. 1983)

No. 90-35064.

United States Court of Appeals, Ninth Circuit.

Before HUG and NELSON, Circuit Judges, and CARROLL, District Judge.* 


Appellants Lake Otis Clinic (LOC), a non-profit corporation formed to develop a community hospital in the Anchorage area, and its President, Michael Beirne, challenge the district court's decision to grant summary judgment for the Sisters of Providence in Washington ("Providence"), the owner of Providence Hospital in Anchorage. They argue that Providence conspired with others to lock them out of the market for medical-surgical hospital services in violation of the Sherman Act. In particular, they allege that, through its "capture" of South Central Health Planning and Development ("South Central") and of the Anchorage Municipal Health Commission ("MHC"), two official advisory health agencies, Providence has vitiated the decision-making process

The district court granted Providence's motion for summary judgment on the grounds that the relief sought by appellants was barred by the statute of limitations for acts committed prior to May 1, 1983. Acts committed after that date were held to be immunized by the Noerr-Pennington doctrine because they were attempts to influence public officials. See United Mine Workers v. Pennington, 381 U.S. 657 (1965); Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961). The court also ruled that oral argument on Providence's motion for summary judgment was unnecessary. We hereby affirm the district court's holding.


A preliminary question involves two rulings by the district court that severely restrict the scope of pertinent "material facts." The first was Judge Lew's conclusion that the four-year statute of limitations in antitrust actions (15 U.S.C. § 15b) barred appellants' claims that sprang from acts occurring prior to May 1, 1983. The second was his decision to strike the affidavits and exhibits filed by appellants in opposition to Providence's motion for summary judgment.

Appellants did not challenge either of these holdings in their opening brief. It is established in this Circuit that issues not raised, or raised only in the reply brief, are not to be considered save under exceptional circumstances which are not present here. Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990); see also Int. Un. of Bricklayers Etc. v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir. 1985) (matters not raised in appellants' opening brief will not ordinarily be considered on appeal); Ellingson v. Burlington Northern Inc., 653 F.2d 1327, 1331-32 (9th Cir. 1981) (same).1 

In sum, the only question before this court is whether, on the basis of activities that took place after May 1, 1983, appellants have raised a genuine issue of material fact precluding the grant of summary judgment.

B. Application of the Noerr-Pennington doctrine.

In Pennington, the Supreme Court held that "efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition." 381 U.S. at 670. The Court extended protection to efforts to influence administrative agencies and the courts in California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972). However, the Supreme Court recognized that immunity will extend neither to activity not genuinely intended to influence public officials, nor to activity aimed at a governmental result but through unacceptable methods. Id. at 508 n. 10.

In essence, appellants claim that the district court misconstrued the scope of these exceptions to the doctrine by failing to recognize that Providence's "capture" of South Central and MHC constituted an unprotected abuse of the administrative process. They also contend that appellees, either directly or indirectly through the agencies, unlawfully provided fraudulent information to justify decisions detrimental to appellants' interests. In support of this allegation, they point to the fact that in 1977 South Central and MHC recommended approval of additional beds at Providence and Humana based in part on bed need while simultaneously opposing LOC's demands, this time on the grounds of an alleged absence of bed need.

As found by the district court, the only relevant acts occurring after May 1, 1983 were the following:

The Department of Health and Social Services of the State of Alaska ("DHSS") revoked plaintiffs' certificate of need and granted Providence and Humana [owner of Humana Hospital in Anchorage] certificates of need; plaintiffs filed a request for reconsideration of DHSS's decision granting certificates of need to Providence and Humana; the request for reconsideration was opposed by Providence and Humana and denied by DHSS; plaintiffs appealed that decision to the superior court; plaintiffs' motion for leave to conduct discovery regarding suspected improper influence on the DHSS commissioner was denied; the superior court denied plaintiffs' appeal [ ...]; plaintiffs appealed DHSS's decision revoking plaintiffs' certificate of need to the superior court; the superior court denied that appeal [ ...]; plaintiffs appealed both superior court decisions to the Alaska supreme court; both superior court decisions were affirmed by the supreme court; and Providence and Humana proceeded with their construction projects expanding their hospitals.

The district court's refusal to apply the Noerr-Pennington exception in this case can be supported on a number of grounds. First, the ultimate decisionmaker was neither South Central nor MHC--the allegedly captured agencies--but the State Agency itself. See 42 U.S.C. §§ 3001 -2(f), 300m-(a) (4). South Central and MHC fulfilled strictly recommendatory functions. This is especially true given Commissioner Smith's unchallenged testimony that his decisions to revoke LOC's certificate and to grant new certificates to Providence and Humana were "entirely [his] own," reached "on the basis of the facts, the applicable law and ... the best interests of the State of Alaska and its citizens." We also find it significant that the hearing officer appointed by the commissioner offered recommendations differing from those of the health agencies' boards.

Second, although assessments made by Providence, Humana, and the agencies regarding bed need experienced curious transformations over time, the decision to revoke LOC's certificate of need was justified not in terms of bed need projections but on the grounds that appellants had failed to complete construction "without good cause."2  In short, the critical link in the causal chain tying the agency's composition to Smith's actions is missing.

Third, the presence of health care provider representatives on the agencies was required by law. See 42 U.S.C. § 3001 -1(b) (3) (c). Fulfillment of the statutory obligation cannot, without more, sustain a finding that Providence impermissibly "stacked" health care agencies. See, e.g., Huron Valley Hosp. Inc. v. City of Pontiac, 650 F. Supp. 1325 (E.D. Mich. 1986) (same).

Reduced to its relevant core, the gist of appellants' complaint is simply that the DHSS (in this instance, Commissioner Smith) revoked LOC's certificate of need and granted new certificates of need to Providence and to Humana. Smith has denied that his decisions were part of a conspiracy, and Beirne has offered no opposing evidence suggesting that they were the result of personal interest, bribery, or even misleading influence of an allegedly "captured" agency. Specifically, appellants have failed to put forth any evidence regarding the relevant activities, viz., Commissioner Smith's decision to revoke LOC's certificate of need and to grant the certificates to Providence and Humana. As to this critical aspect of the case, there is no genuine issue of material fact. Because the inference of wrongdoing emerges solely from conclusory allegations, Beirne cannot defeat a motion for summary judgment. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253 (1968).

The decision whether to grant oral argument is discretionary. Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir. 1983). It will not be reversed in the absence of prejudice. Fernhoff v. Tahoe Regional Planing Agency, 803 F.2d 979 (9th Cir. 1986).

Beirne and LOC contend that the district court erred in granting summary judgment without permitting oral argument. Although there is no constitutional right to oral argument on motions for summary judgment, in this Circuit it is agreed that:

a district court may not, by rule or otherwise, preclude a party from requesting oral argument, nor deny such a request when made by a party opposing the motion unless the motion for summary judgment is denied.

Dredge Corp. v. Penny, 338 F.2d 456, 462 (9th Cir. 1964) (footnote omitted); accord Fernhoff v. Tahoe Regional Planning Agency, 803 F.2d 979, 983 (9th Cir. 1986).

It is conceded that appellants failed to request oral argument. Nonetheless, appellants argue that Providence's request preempted the need for their own. A second request, they state, would have been a "useless act." Appellants' view is flawed. Their request would not have been useless precisely because a moving party's request can be denied whereas a nonmoving party's cannot. We also find that plaintiffs were not prejudiced by the court's decision.


Because the statute of limitations has run as to events prior to May 1, 1983, and because appellants have offered no evidence challenging the propriety of Commissioner Smith's decisions after that date, we affirm the district court's ruling.



The Honorable Earl H. Carroll, United States District Judge for the District of Arizona, sitting by designation


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3


Had the appellee not been misled and the issue been fully explored, the court would have discretion to consider a matter on appeal that had not been argued in appellant's opening brief. See Ellingson, 653 F.2d at 1332


As the hearing officer who made the recommendation to Smith explained, the "revocation is in no way predicated on any lack of bed need, and is not, thus, building upon any inconsistencies that might be found in prior positions taken by petitioner [Southcentral] or Department representatives."