Botefur v. City of Eagle Point, Or.

Decision Date07 October 1993
Docket NumberNo. 92-35261,92-35261
Citation7 F.3d 152
Parties8 IER Cases 1546 David B. BOTEFUR, Plaintiff-Appellant, v. CITY OF EAGLE POINT, OREGON, a municipal corporation and political subdivision of the State of Oregon; Leon Sherman, an individual; Steven Jenny, an individual, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Jeffrey J. Bennett, Fountain Rhodes, Portland, OR; Jeffrey H. Boiler, Eugene, OR, for plaintiff-appellant.

Janet M. Schroer, Hoffman, Hart & Wagner, Portland, OR, for defendants-appellees.

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

Before: GOODWIN, FARRIS, and THOMPSON, Circuit Judges.

FARRIS, Circuit Judge:

David Botefur appeals the district court's dismissal of his civil rights action against the City of Eagle Point, its mayor, and its chief of police. Botefur alleged that his employment with the City was terminated in violation of his constitutional rights. The district court held that Botefur's failure to tender to the City consideration he received pursuant to a valid release agreement precluded him from bringing a civil rights action based on the conduct for which the City had been released. It also held that under Oregon law, the release agreement was a substituted contract that barred Botefur from suing the City for its allegedly unconstitutional conduct. We have jurisdiction pursuant to 28 U.S.C. § 1291 (1988). We affirm.


After Botefur's employment with the City was terminated, he and the City executed a written mutual release agreement. Botefur agreed to release the City and its agents from claims arising from the termination of his employment. The City agreed: (1) to reinstate Botefur to his prior employment, effective on the date of execution of the agreement; (2) to pay Botefur $10,000; (3) to seal from inspection Botefur's personnel file; and (4) to provide Botefur's prospective employers only a specified, pre-approved statement. In addition to releasing the City, Botefur agreed to resign, and did resign, immediately upon reinstatement.

Botefur commenced this action, under 42 U.S.C. § 1983 (1988), approximately one year after the execution of the release agreement. He alleged that the City violated various of his constitutional rights in terminating his employment and in breaching the provisions of the agreement concerning public disclosure of his personnel records. The district court dismissed Botefur's claims on summary judgment.


We review de novo an appeal from summary judgment. Jones v. Union Pac. R.R., 968 F.2d 937, 940 (9th Cir.1992). We must determine whether, viewing the evidence in the light most favorable to Botefur, there are any genuine issues of material fact, and whether the district court applied correctly the relevant substantive law. See Federal Deposit Ins. Corp. v. O'Melveny & Meyers, 969 F.2d 744, 747 (9th Cir.1992).


The district court held that Botefur's failure to tender the $10,000 payment within a reasonable time barred him from rescinding the release agreement and proceeding on his § 1983 claims. The district court did not indicate whether its ruling was based on state or federal law. Botefur seeks to have us apply federal law to this issue, relying on Hogue v. Southern Ry. Co., 390 U.S. 516, 517, 88 S.Ct. 1150, 1151, 20 L.Ed.2d 73 (1968) (per curiam), for the proposition that federal law controls and for the proposition that a tender back is not required prior to the initiation of an action that is based on claims purportedly released by a release agreement.

Botefur did not argue to the district court that federal law should be applied. Ordinarily, we do not consider arguments presented for the first time on appeal. United States v. Stenberg, 803 F.2d 422, 431 (9th Cir.1986). A discretionary exception to this rule exists where the issue is purely legal. Jovanovich v. United States, 813 F.2d 1035, 1037 (9th Cir.1987). We previously have invoked the exception in the context of a horizontal conflict of laws. See Telco Leasing, Inc. v. Transwestern Title Co., 630 F.2d 691, 693-94 (9th Cir.1980). Today, we invoke it to resolve a vertical conflict.


In Hogue, the petitioner executed a release agreement, releasing his employer from potential claims in consideration of a payment of $105. The petitioner subsequently instituted an action under the Federal Employers' Liability Act, 45 U.S.C. §§ 51-60 (1988), without first offering to return the consideration. The Supreme Court held that "[t]he question whether a tender back of the consideration was a prerequisite to the bringing of the suit is to be determined by federal rather than state law." Hogue, 390 U.S. at 517, 88 S.Ct. at 1151; cf. Counts v. Burlington N. R.R., 896 F.2d 424, 425 (9th Cir.) (stating that a challenge to the validity of a FELA release presents a question of federal law), cert. denied, 498 U.S. 815, 111 S.Ct. 54, 112 L.Ed.2d 30 (1990); Jones v. Taber, 648 F.2d 1201, 1203 (9th Cir.1981) ("The conditions affecting the validity of a release of significant federal rights are eminently a matter of federal law, and we find it unnecessary to examine Oregon authorities.").

Similarly, in Smith v. Pinell, 597 F.2d 994, 996 (5th Cir.1979) (per curiam), the Fifth Circuit vacated an order of the district court because the district court erroneously had applied state law in determining whether a tender back of consideration was prerequisite to the initiation of an action under the Jones Act, 46 U.S.C. app. § 688 (1988).

The City attempts to distinguish Hogue and Smith as follows:

In each of these cases raised by plaintiff for the first time on appeal, the underlying validity of the release of important federal rights was being challenged. Hence, federal law was applied to determine whether that release was valid and in litigating that federal issue, federal law was applied on the tender requirement as well.

(Emphasis added.) The City would have us believe that the Supreme Court and the Fifth Circuit triflingly applied federal law to the tender issue. We reject the contention. Hogue and Smith specifically held that federal, not state, law applies. Hogue, 390 U.S. at 517, 88 S.Ct. at 1151; Smith, 597 F.2d at 996.


Federal law must be the source of the rule we apply. We next decide whether to incorporate the state rule of "tender back" (assuming Oregon law requires tender 1) as the content of the federal rule.

The doctrine of federal incorporation or "borrowing" of local law is well established. Brown v. United States, 742 F.2d 1498, 1503 (D.C.Cir.1984) (en banc), cert. denied, 471 U.S. 1073, 105 S.Ct. 2153, 85 L.Ed.2d 509 (1985). Incorporation is appropriate where reference to state law is necessary to effectuate the federal policies underlying a federal statutory scheme. See id. at 1504. In the civil rights context, we incorporate state law only where federal law is "deficient in the provisions necessary to furnish suitable remedies," and where the state rule is not "inconsistent with the Constitution and laws of the United States." 42 U.S.C. § 1988 (1988).

In Felder v. Casey, 487 U.S. 131, 140, 108 S.Ct. 2302, 2307, 101 L.Ed.2d 123 (1988), the Supreme Court discussed the possibility of incorporating into an action under § 1983 a state rule requiring notice-of-claim as a prerequisite to suit. The Court agreed with the federal appellate courts that previously had reasoned that "the absence of any notice-of-claim provision [in § 1983] is not a deficiency requiring the importation of such [state] statutes into the federal civil rights scheme." Id. Felder distinguished notice-of-claim rules from statutes of limitation, which the Court previously had ruled could be borrowed, see, e.g., Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), as follows:

Because statutes of limitation are among the universally familiar aspects of litigation considered indispensable to any scheme of justice, it is entirely reasonable to assume that Congress did not intend to create a right enforceable in perpetuity. Notice-of-claim provisions, by contrast, are neither universally familiar nor in any sense indispensable prerequisites to litigation, and there is thus no reason to suppose that Congress intended federal courts to apply such rules,....

Felder, 487 U.S. at 140, 108 S.Ct. at 2308.

A tender-back requirement is neither "indispensable to any scheme of justice" nor an "indispensable prerequisite to litigation." Thus, we see no reason to borrow a state law rule conditioning the initiation of a § 1983 action upon the tendering of any consideration received previously. Cf. Smith, 597 F.2d at 996 (stating that there is no "justification for qualifying a seaman's rights under the Jones Act by incorporating a state's substantive law governing an action for rescission").

Moreover, the rule announced in Hogue, that tender back is not required for suit under the FELA, is generalizable to suits under other federal compensatory statutes. Compare Hogue, 390 U.S. at 518, 88 S.Ct. at 1152 (describing the policy of the FELA as providing " 'railroad employees a right to recover just compensation for injuries negligently inflicted by their employers.' " (quoting Dice v. Akron, C. & Y. R.R., 342 U.S. 359, 362, 72 S.Ct. 312, 314, 96 L.Ed. 398 (1952)) with Felder, 487 U.S. at 141, 108 S.Ct. at 2308 (noting that "the central purpose of the Reconstruction-Era laws is to provide compensatory relief to those deprived of their federal rights by state actors"). Because Hogue can be read broadly, federal law cannot be deemed truly "deficient," for it contains a rule that encompasses the present situation. Without a recognizable deficiency, there can be no state law incorporation. Brown, 742 F.2d at 1504-05.


We have applied the rule in Hogue in the context of a challenge to the validity of a FELA release. See Counts, 896 F.2d at 425. Today we apply it to a release of claims under § 1983. We hold that a...

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