# Kathy Brown v. Civil Service Commission, Department of Education and Territorial Board of Education, Real Parties in Interest-Appellant

> Court of Appeals for the Ninth Circuit · June 3, 1987 · 818 F.2d 706

URL: https://www.frixlaw.com/law-library/cases/9476186

## Case

- **Full name:** Kathy BROWN, Petitioner-Appellee, v. CIVIL SERVICE COMMISSION, Respondent, Department of Education and Territorial Board of Education, Real Parties in Interest-Appellant
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** June 3, 1987
- **Citations:** 818 F.2d 706; 39 Educ. L. Rep. 550; 1987 U.S. App. LEXIS 6983
- **Precedential status:** Published
- **Opinion:** Concurrence by Fletcher
- **Judges:** Skopil, Fletcher, Alarcon
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## Opinion text

FLETCHER, Circuit Judge,
Concurring:
I concur in the result. I write separately to express my concerns over the majority’s choice of standards of review. To review part of the district court’s (appellate division) rulings of law it applies a de novo standard, to part it applies a clearly erroneous standard. We are cited to no authority that has ever sought to untwine legal issues so that different standards of review could be applied to those rulings grounded in federal law and those grounded in state law.
Beyond this threshold disagreement with “standard-splitting” I disagree with the majority’s view that our court should apply a more deferential standard to its review of local law. It finds itself bound by Electrical Construction & Maintenance Co. v. Maeda Pacific Corp., 764 F.2d 619 (9th Cir.1985) and, indeed, it may be. However, Electrical Construction did not pay any attention to the statutory scheme that establishes the Guam courts, or the legislative history behind that statutory scheme. The statute, amended in 1984, provides Guam with both a federal district court and whatever local courts are established by *711 the Guam legislature. 48 U.S.C. § 1424 . Appeals from the district court are heard by a three judge appellate division of the district court. Id § 1424-3(b). The Guam legislature is empowered to create local appellate courts. Id § 1424-1. In lieu of local appellate courts, appeals from local courts are heard by the district court. Id § 1424-3(a). The Ninth Circuit has jurisdiction to hear appeals from the appellate division of the district court. Id § 1424-3(c). For a period of fifteen years following the establishment of a local appellate court, the Ninth Circuit has jurisdiction to review its decisions by writ of certiorari. Id § 1424-2. Otherwise, the relations between the courts of Guam and those of the United States are to be the same as those between the state and federal courts. Id Guam has not yet set up a local appellate court and this court has not yet dealt with the key provisions of this scheme.
The legislative history of the provisions indicate that the 15-year transition period provided by the act “during the formative years of the new appellate court and while it establishes its institutional traditions” was intended to allow review “by a court of appeals which is familiar with the local conditions____” Explanation of Senate Subcommittee on Energy Conservation and Supply of Sen. Arndt. 3709 to H.R. 5561, 98th Cong., 2d Sess., 130 Cong.Rec. S10521, S10529 (8/10/84). See also 130 Cong.Rec. H9574-76 (9/14/84) (Senate Explanation presented to House as “excellent analysis.” Remarks of Rep. Won Pat).
Surely, in considering the applicability of Matter of McLinn, 739 F.2d 1395 (9th Cir. 1984) (en banc), to decisions of the appellate division of the district court, our court should consider whether this statutory scheme and its legislative background make a difference. The court in McLinn laid out a variety of reasons for reviewing a district court’s determinations of state law de novo. We found no reason to abdicate appellate responsibility to review conclusions of law de novo simply because the law involved was state law. 739 F.2d at 1398 .
Some of the factors that led the McLinn court to find de novo review of state law appropriate apply even more strongly to review of Guam law. Ninth Circuit interpretation of Guam law is the only precedent besides that of the lower courts. If Guam were to set up an independent appellate system, this court still would have the ability to overrule its decisions. It seems incongruous for this court, which Congress has empowered to act as a sort of local Supreme Court, to give deference to the district court’s conclusions of law. The general tone of McLinn also suggests that de novo review is always appropriate for legal issues. In addition, Congress wanted relations between federal courts and Guam courts to be like those between federal and state courts. Thus, McLinn should apply. Finally, only the Ninth Circuit provides Guamanians review by Article III judges; Guamanians may have some right to Article III de novo review.
I acknowledge that some of the factors noted in McLinn lend support to the majority’s view. Deference to knowledge of local customs may make more sense in the context of a territory with entirely different traditions than those of the state; realistically, no Ninth Circuit judge has substantial expertise in Guamanian customs. Second, as the majority opinion points out, a three-judge panel in Guam already has the opportunity to provide the necessary careful and collaborative review of the trial court’s legal conclusions. Third, it can be argued that Congress may have intended deferential review. 1
On balance however, I conclude that de novo review is the appropriate standard. *712 Whatever the conclusion, neither this panel nor Electrical Construction, should have made a decision as to standard without full consideration of the statute, its history, and Guamanians’ special circumstances. In some future case in which the standard of review does make a difference, the court as a whole should reconsider the holding of Electrical Construction. I suggest that at this juncture of the development of their court system, Guamanians are entitled to de novo review of legal issues by an Article III court.
. The Senate explanation refers to the transitional period for the Guam courts as the same as the one provided for the Northern Mariana Islands. 130 Cong.Rec. at S10529, H9576. See 48 U.S.C. § 1694c(a). This court, in a pre McLinn case, determined that we should give deference to NMI local law when reviewing under the scheme noted in the Senate explanation. Camacho v. Civil Service Commission, 666 F.2d 1257, 1262 (9th Cir.1982). Camacho , like this case, involved local civil service regulations and separation of powers issues. 666 F.2d at 1262-66 . The Congress was aware of Camacho when it passed the Guam legislation. See 130 Cong.Rec. at S10529, H9576.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9476186. Public record. Not legal advice.