701 F.2d 777 (9th Cir. 1983), 81-5116, Le Vick v. Skaggs Companies, Inc.

Docket Nº:81-5116.
Citation:701 F.2d 777
Party Name:James E. LE VICK, Plaintiff-Appellee, v. SKAGGS COMPANIES, INC., Defendant-Appellant.
Case Date:March 14, 1983
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 777

701 F.2d 777 (9th Cir. 1983)

James E. LE VICK, Plaintiff-Appellee,

v.

SKAGGS COMPANIES, INC., Defendant-Appellant.

No. 81-5116.

United States Court of Appeals, Ninth Circuit

March 14, 1983

Argued and Submitted May 7, 1982.

Michael R. Murphy, Jones, Waldo, Holbrook & McDonough, Salt Lake City, Utah, for defendant-appellant.

William C. Wulfers, Jr., Scottsdale, Ariz., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona.

Before ELY and NORRIS, Circuit Judges, and GILLIAM, [*] District Judge.

Page 778

NORRIS, Circuit Judge:

James E. LeVick (LeVick) brought this action against his former employer, Skaggs Companies, Inc. (Skaggs), alleging that he had been discharged by Skaggs in violation of 15 U.S.C. Sec. 1674(a), which prohibits an employer from discharging an employee because the employee's earnings have been subjected to garnishment. LeVick asked for damages and attorney's fees.

Skaggs moved for judgment on the pleadings, claiming that LeVick's complaint failed to state a claim upon which relief could be granted because there was no express or implied civil remedy for a private litigant under 15 U.S.C. Sec. 1674(a). The district court denied Skaggs' motion, but certified the issue for interlocutory appeal under 28 U.S.C. Sec. 1292(b). 1 This court entered the required order permitting the Sec. 1292(b) appeal to be taken.

I

In Stewart v. Travelers Corp., 503 F.2d 108 (9th Cir.1974), our court held that an implied private right of action exists under 15 U.S.C. Sec. 1674(a). Skaggs argues that we should reconsider our holding in Stewart in light of subsequent Supreme Court decisions which have significantly changed the standards for determining whether a federal statute gives rise to a private cause of action, citing Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979), and Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 100 S.Ct. 242, 62 L.Ed.2d 146 (1979).

Ordinarily, absent the convening of an en banc panel, the holding of Stewart would be controlling authority in our circuit. Bowe v. Immigration & Naturalization Serv., 597 F.2d 1158, 1159, n. 1 (9th Cir.1979). However when existing Ninth Circuit precedent has been undermined by subsequent Supreme Court decisions, this court may reexamine that precedent without the convening of an en banc panel. See Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 492 (9th Cir.1979) (Because later Supreme Court case had "undermined" theory of earlier 9th Circuit precedent, panel expressly rejected theory of earlier case.). See also Washington v. Watkins, 655 F.2d 1346, 1354, n. 10 (5th Cir.), cert. denied, --- U.S. ----, 102 S.Ct. 2021, 72 L.Ed.2d 474 (1982) (Panel of court can overrule decision of another panel if there has been overriding Supreme Court decision); Davis v. Estelle, 529 F.2d 437, 441 (5th Cir.1976) (same)...

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