739 F.2d 1395 (9th Cir. 1984), 82-3644, Matter of McLinn

Docket Nº:82-3644.
Citation:739 F.2d 1395
Party Name:In The Matter of the Complaint of William McLINN, as Owner of the F/V FJORD, etc. In the Matter of the Complaint of Gilbert Jack JOHNSON and Jack Stewart Johnson, as owners of the F/V SUPERSONIC, etc. Frank CHURCHILL, as the Informal Administrator of the Estate of Patrick Churchill, and Dale Carlough, Plaintiffs-Appellants, v. The F/V FJORD etc., e
Case Date:August 07, 1984
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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739 F.2d 1395 (9th Cir. 1984)

In The Matter of the Complaint of William McLINN, as Owner

of the F/V FJORD, etc.

In the Matter of the Complaint of Gilbert Jack JOHNSON and

Jack Stewart Johnson, as owners of the F/V


Frank CHURCHILL, as the Informal Administrator of the Estate

of Patrick Churchill, and Dale Carlough,



The F/V FJORD etc., et al., Defendants,


The F/V SUPERSONIC, her engines, tackle, apparel,

appliances, equipment, apparatus and furniture; Gilbert

Johnson, part owner and/or operator of said F/V SUPERSONIC;

Jack Johnson, part owner of said F/V SUPERSONIC, Defendants-


No. 82-3644.

Argued and Submitted En Banc

United States Court of Appeals, Ninth Circuit

August 7, 1984

Feb. 15, 1984.

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[Copyrighted Material Omitted]

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Gerald W. Markham, Kodiak, Alaska, for plaintiffs-appellants.

Kenneth F. Brittain, James M. Powell, Hughes, Thorsnes, Gantz & Powell, Anchorage, Alaska, for defendants-appellees.

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


HUG, Circuit Judge:

This is an admiralty case in which a key issue is an interpretation of state law. We took this case en banc, at the request of the three-judge panel that initially heard this case, to decide whether we should accord special deference to a district judge's interpretation of state law or whether we should review such determinations under the independent de novo standard that we apply to a district judge's interpretation of federal law.

This case involves a personal injury action and a wrongful death action arising out of the navigation of three skiffs, two of which collided off Kodiak Island, Alaska. As a part of that action, the plaintiffs asserted an in personam liability claim against two of the defendants based upon an Alaska statute. The interpretation of this statute is the issue of state law that presently concerns us. There has been no definitive interpretation by the Alaska Supreme Court. The district judge held that the statute did not apply to the circumstances of this case. The three-judge appellate panel of this court unanimously requested en banc review because they found the standard of review to be controlling. The panel indicated that if the question of law were reviewed under the deferential standard that we have applied in the past, which permits reversal only for clear error, then they would affirm; but if they were to review the determination under an independent de novo standard, they would reverse.

Generally in the past we have applied a deferential standard of review to a district judge's construction of the law of the state in which he or she sits, accepting that construction unless it is "clearly wrong." Jablonski By Pauls v. United States, 712 F.2d 391, 397 (9th Cir.1983); Fleury v. Harper & Row, Publishers, Inc., 698 F.2d 1022, 1026 (9th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 149, 78 L.Ed.2d 139 (1983); Airlift International, Inc. v. McDonnell Douglas Corp., 685 F.2d 267, 269 (9th Cir.1982); Camacho v. Civil Service Commission, 666 F.2d 1257, 1262 (9th Cir.1982); Gaines v. Haughton, 645 F.2d 761, 770 (9th Cir.1981), cert. denied, 454 U.S. 1145, 102 S.Ct. 1006, 71 L.Ed.2d 297 (1982). 1 Today we adopt as the law of the circuit the rule that questions of state law are reviewable under the same independent de novo standard as are questions of federal law. In this case, the question of state law arose in an admiralty action; however, our standard of review of a district court's interpretation of state law would be the same in a diversity case or any other case in which the district court's decision involves state law.

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In our view, a decision to give less than full independent de novo review to the state law determinations of the district courts would be an abdication of our appellate responsibility. Every party is entitled to a full, considered, and impartial review of the decision of the trial court. We review questions of fact under the clearly erroneous standard and we review conclusions of law de novo. There is no justification for being less thorough, for abdicating any portion of our appellate responsibility, or for curtailing the parties' appellate rights simply because the law involved is state law. The parties are entitled to the same careful, independent consideration of the issues of law by the appellate court whether the case involves state law or federal law.

The parties are accorded independent de novo review of issues of law in the appellate courts, not because of any greater wisdom of appellate judges than of trial judges, but because of the structural differences between the two courts. This court, sitting en banc, has recently considered at length the structural relationship between the district courts and the court of appeals. United States v. McConney, 728 F.2d 1195, 1201-04 (9th Cir.1984) (en banc). We observed that the standards of review we apply to trial court decisions have been developed to protect the parties' rights to appeal and to achieve sound judicial administration by recognizing the structural differences in the two types of courts. Thus, the application of Fed.R.Civ.P. 52(a)'s clearly erroneous standard to the district courts' factual determinations "emphasizes ... the trial judge's opportunity to judge the accuracy of witnesses' recollections and make credibility determinations ...." Id. at 1201. On the other hand, we observed in McConney that the application of the de novo standard to the trial courts' conclusions of law reflects a different policy concern. As we stated in McConney:

Structurally, appellate courts have several advantages over trial courts in deciding questions of law. First, appellate judges are freer to concentrate on legal questions because they are not encumbered, as are trial judges, by the vital, but time-consuming, process of hearing evidence. Second, the judgment of at least three members of an appellate panel is brought to bear on every case. It stands to reason that the collaborative, deliberative process of appellate courts reduces the risk of judicial error on questions of law. Thus, de novo review of questions of law, like clearly erroneous review of questions of fact, serves to minimize judicial error by assigning to the court best positioned to decide the issue the primary responsibility for doing so.

Id. (footnote omitted).

As noted above, we apply the de novo standard to the trial courts' determinations of federal law questions. In re Bialac, 712 F.2d 426, 429 (9th Cir.1983); Hoptowit v. Ray, 682 F.2d 1237, 1245 (9th Cir.1982); United States v. One Twin Engine Beech Airplane, 533 F.2d 1106, 1108 (9th Cir.1976). When the trial courts are called upon to resolve questions of foreign law, we also review their conclusions under the de novo standard. Fed.R.Civ.P. 44.1. See also Kalmich v. Bruno, 553 F.2d 549, 552 (7th Cir.), cert. denied, 434 U.S. 940, 98 S.Ct. 432, 54 L.Ed.2d 300 (1977); 9 C. Wright & A. Miller, Federal Practice & Procedure Sec. 2446 (1971). There is no sound reason why we have a lesser appellate duty to the parties to make a correct, independent determination when the question is one of state law. The policy concerns supporting the de novo standard apply as well to questions of state law as to questions of federal law. The appellate function is the same in each case and the same structural advantages encourage correct legal determinations.

The parties to a civil action may appeal "as a matter of right" under Fed.R.App.P. 3 from the final judgment of a district court to the circuit court of appeals except where direct review may be had in the Supreme Court. See 28 U.S.C. Sec. 1291 (1982); 9 J. Moore, B. Ward & J. Lucas, Moore's Federal Practice p 203.03 (2d ed. 1980); 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Sec. 3901 at

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398 (1976); see also United States v. De Bright, 730 F.2d 1255, 1259 (9th Cir.1984) (en banc) (statutory right of appeal of criminal defendant under 28 U.S.C. Sec. 1291). The Supreme Court has direct appellate review of district court decisions in a few cases under 28 U.S.C. Secs. 1252 and 1253.

It has been argued that Supreme Court precedent requires our deference to conclusions of state law by the district court because the Supreme Court has chosen not to review questions of state law in a number of cases and has deferred to the interpretation of the lower courts. In each instance, however, the parties had already received the mandatory appellate review in the circuit court. In none of these cases was the Supreme Court exercising direct appellate review from the district court. For example, in Runyon v. McCrary, 427 U.S. 160, 181-82, 96 S.Ct. 2586, 2599-2600 (1976), it is apparent that the Supreme Court did not defer to the initial conclusion by the trial judge, but accepted the determination by the appellate court.

The petitioners' contention is certainly a rational one, but we are not persuaded that the Court of Appeals was mistaken in applying the two-year state statute. The issue was not a new one for that court, for it had given careful consideration to the question of the appropriate Virginia statute of limitations to be applied in federal civil rights litigation on at least two previous occasions.... We are not disposed to displace the considered judgment of the Court of Appeals on an issue whose resolution is so heavily contingent upon an analysis of state law, particularly when the established rule has been relied upon and applied in numerous suits filed in Federal District Courts in Virginia. In other situations in which a federal right has depended upon the interpretation of state...

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