NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 19 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JOSEPH HARDESTY; et al.,                        Nos. 18-15772, 18-15773

                Plaintiffs-Appellees,           D.C. Nos.
                                                2:10-cv-02414-KJM-KJN
 v.                                             2:12-cv-02457-KJM-KJN

SACRAMENTO COUNTY,
                                                MEMORANDUM*
                Defendant-Appellant,

and

ROGER DICKINSON; et al.,

                Defendants.

                  Appeal from the United States District Court
                      for the Eastern District of California
               Kimberly J. Mueller, Chief District Judge, Presiding

                      Argued and Submitted January 24, 2020
                            San Francisco, California

Before: W. FLETCHER and R. NELSON, Circuit Judges, and SESSIONS,**
District Judge.
Partial Concurrence and Partial Dissent by Judge R. NELSON

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
      Defendant Sacramento County (“County”) and individual defendants Roger

Dickinson, Jeff Gamel, and Robert Sherry (collectively “Individual Defendants”)

challenge the district court’s denial of their renewed motion for judgment as a

matter of law and motion for a new trial. The jury found Defendants liable for

violating Plaintiffs’ substantive due process rights and awarded $105 million in

compensatory damages against the County and Individual Defendants jointly and

severally, and $1,775,000 in punitive damages against the Individual Defendants.

Defendants argue the verdict is not supported by substantial evidence, the court

erred by failing to offer a proposed jury instruction regarding campaign finance,

the damages are excessive, and the Individual Defendants are entitled to immunity.

Because the parties are familiar with the facts, we do not recount them here. We

reverse the judgment as it applies to the Individual Defendants because they are

entitled to immunity, affirm the judgment of liability against the County, and

remand the damages against the County as excessive.

      We review de novo the denial of a Fed. R. Civ. P. 50 motion for judgment.

Kuntz v. Lamar Corp., 

, 1185 n.8. (9th Cir. 2004). We review that

motion’s attack on the jury verdict for substantial evidence. Gilbrook v. City of

Westminster, 

, 856 (9th Cir. 1999). Arguments that were not properly

raised in a Rule 50(a) motion are reviewed only for plain error. EEOC v. Go

Daddy Software, Inc., 

, 961 (9th Cir. 2009). We review the district


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court’s formulation of the jury instructions for abuse of discretion. Oviatt v.

Pearce, 

, 1481 (9th Cir. 1992).

      1.     Defendant Roger Dickinson is entitled to absolute immunity because

the functions he performed were quasi-judicial. The Supreme Court “has outlined

a list of factors to consider in determining whether an official’s functions are quasi-

judicial in nature: (1) the need to insulate the official from harassment or

intimidation; (2) the presence of procedural safeguards to reduce unconstitutional

conduct; (3) insulation from political influence; (4) the importance of precedent in

the official’s decision; (5) the adversar[ial] nature of the process; and (6) the

correctability of error on appeal.” Miller v. Davis, 

, 1145 (9th Cir.

2008). Dickinson voted against the Schneiders’ appeal at a formal adjudicatory

hearing at which counsel was available to both sides on a transcribed record

subject to judicial review. His role was “functionally comparable” to one of a

judicial nature. Moreover, the factors weigh in favor of him being entitled to

absolute immunity.

is a need to insulate officials making

adjudicatory decisions from harassment and intimidation, Dickinson was just one

of a panel that voted and so there were other procedural safeguards checking

unconstitutional conduct and, as this case shows, the process is adversarial with

opposing parties presenting strong and detailed arguments, through legal counsel,

to support their positions.


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      2.     All three Individual Defendants are entitled to qualified immunity as

to the Hardestys’ claims. No Ninth Circuit or Supreme Court case clearly

established that the Individual Defendants’ enforcement actions were a violation of

the Hardesty’s due process rights to engage in their chosen profession. See

Martinez v. City of Clovis, 

, 1275 (9th Cir. 2019) (internal quotation

marks omitted). And all three Individual Defendants are entitled to qualified

immunity as to the Schneiders’ claims because their actions did not violate a

clearly established constitutional right that any reasonable officer would have

understood he was violating.

Plaintiffs claim the unlawfulness of the

Individual Defendants’ actions was clearly established because they were only

permitted to “order the operator to restrict the operation to its former level” if it

appeared that the operation was expanding beyond the vested right. Hansen

Brothers Enterprises, Inc. v. Board of Supervisors, 

, 575 (Cal.

1996). But the record shows that the Individual Defendants took actions based on

multiple complaints that the Hardesty mine had expanded significantly. It was

therefore reasonable for the officials to believe that the Schneiders had exceeded

the bounds of their vested right and that their actions did not undermine the

original vested right.

      3.     Because the County did not raise its argument that the Hardestys

failed to support their chosen profession theory with evidence until its Rule 50(b)


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motion, “we are limited to reviewing the jury’s verdict for plain error, and should

reverse only if such plain error would result in a manifest miscarriage of justice.”

See Go 

. Our inquiry is limited to “whether there was any

evidence to support the verdict.

Here, the jury was presented with

evidence that the County ordered the Hardesty mining operation to shut down; the

County did so based on impermissible political motivations; and because of the

County’s actions, there was not “much of anything left of the Hardesty Sand and

Gravel Company” and as of trial the Hardestys had not any income for seven or

eight years. Based on that evidence, the jury could conclude the County acted

arbitrarily and unreasonably to deprive the Hardestys of their chosen occupation.

See Benigni v. Hemet, 

, 487 (9th Cir. 1988); Chalmers v. City of Los

Angeles, 762 F.2d 753,758 (9th Cir. 1985). Accordingly, there was no plain error

in the jury’s finding of liability against the County as to the Hardesty plaintiffs.

      4.     There is substantial evidence in the record to support the jury’s verdict

that the Schneiders had a vested right which the County abrogated in violation of

substantive due process. The jury was presented with evidence that the Schneiders

had a vested right and that the County acted arbitrarily and unreasonably in

ordering them to cease mining on their property, thus depriving them of their

vested right. We affirm the jury’s finding of liability against the County as to the

Hardesty plaintiffs.


                                           5
      5.     The Hardestys’ damages award is reversed and remanded as

excessive. The district court abused its discretion by failing to consider

Defendants’ argument that the damages were excessive. “A district court’s failure

to exercise discretion constitutes an abuse of discretion.” Taylor v. Soc. Sec.

Admin., 

, 233 (9th Cir. 1988). The award is excessive because it was

calculated based on the wrong theory of recovery. The Hardestys chose to pursue

a theory of recovery based on their loss of an ability to practice a profession as

individuals. The jury’s award of $75 million was based on the business’s

estimated value if it continued to operate between 75 and 100 more years. The

value of a business, on the one hand, and the damages resulting from an

individual’s inability to practice his or her profession, on the other, are distinct

concepts. Because there was no substantial evidence by which a jury could

conclude that the Hardestys themselves would continue working for over 75 years,

the damages were excessive.

      6.     The Schneiders’ damages award is also reversed and remanded as

excessive. Lost profits were the wrong measure of damages for their due process

claim. The jury awarded damages for the Schneiders’ substantive due process

claim based on the total value of aggregate ore on their property rather than based

on the diminution in value of the property associated with increased regulatory

costs. The jury did not have evidence upon which it could have concluded that the


                                            6
Schneiders lost the entire value of the ore on the land that they continued to own.

      Additionally, the jury failed to account for mitigation in the form of the

Schneiders’ recuperation of the value of the gravel before calculating damages. A

reasonable jury could not include the value of the gravel in the award while

accounting for mitigation.

      7.     The district court did not abuse its discretion in failing to offer the

County’s proposed jury instruction regarding campaign contributions. The district

court accurately stated the law when it informed the jury that campaign

contributions are constitutionally protected free speech. The trial court did not

abuse its discretion by declining to give the proposed jury instruction as

Defendants formulated it.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. THE
PARTIES ARE TO BEAR THEIR OWN COSTS.




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                                                                             FILED
                                                                             AUG 19 

. Sacramento County, 18-15772
                                                                          MOLLY C. DWYER, CLERK
R. NELSON, Circuit Judge, concurring in part and dissenting in part:       U.S. COURT OF APPEALS


      I concur in the panel’s determinations that the Individual Defendants are

entitled to qualified immunity as to the Hardestys’ claims; that the County is liable

for its conduct as to both the Hardestys and the Schneiders; that the district court

abused its discretion by failing to consider Defendants’ argument that the damages

were excessive; that the Schneiders’ damages were excessive; and that the district

court did not err in failing to offer the County’s proposed jury instruction regarding

campaign contributions. But I dissent from the panel’s holdings that Dickinson is

entitled to absolute immunity; that the Individual Defendants are entitled to

qualified immunity as to the Schneiders’ claims; and that the Hardestys’ damages

were based on the wrong theory of recovery.

      First, I would hold Dickinson is not entitled to absolute immunity because

his position was not immune from political influence. The ultimate question is

whether his role was “functionally comparable” to that of a judge. Miller v. Davis,

, 1145 (9th Cir. 2008). As the majority notes, some of the factors

identified in Miller are present in this case. But the Supreme Court has

emphasized that whether a decisionmaker “exercises his independent judgment on

the evidence before him, free from pressures by the parties or other officials within

the agency” is “[m]ore important[]” than whether the powers the decisionmaker



                                          1
exercises are similar to those of a judge. See Butz v. Economou, 

, 513

(1978).

      Far from being insulated from political influence, Dickinson was held liable

precisely on the theory that he violated Plaintiffs’ substantive due process rights to

benefit an influential competitor. He was an elected official who received

campaign contributions and gifts from a powerful competing mine. That same

competing mine argued before the Board of Supervisors over which Dickinson

presided that the Schneiders never had a vested right, and may have coordinated

with the County to draft findings of fact for the Board’s approval after the hearing.

And Dickinson received campaign contributions from that competitor in the two-

week period between the Board’s tentative decision to deny the appeal and its final

decision. Granting absolute immunity under these circumstances shields officials

from liability based on supposed independence when the jury found, and

substantial evidence supports, precisely the opposite: Dickinson voted to deprive

the Schneiders of their vested right to appease a more powerful competitor.

      Second, I would hold the Individual Defendants are not entitled to qualified

immunity as to the Schneiders’ substantive due process claim. The law was clearly

established as of 1996 that the Schneiders had a right to mine on their property.

Hansen Bros. Enters., v. Bd. of Supervisors, 

, 1335 (Cal. 1996). The




                                          2
County recognized that vested right on multiple occasions before the Schneiders’

competitors began to complain.

      It was clearly established that the Individual Defendants’ conduct violated

that vested right. They did not follow Hansen’s clear instruction that, even if the

County believed that the Schneiders may have been operating beyond the scope of

the vested right, the only proper action would be to “order the operator to restrict

the operation to its former level, and seek an injunction if the owner does not

obey.” 

. Instead, the Defendants forced the Schneiders

to shut down all operations, in violation of the Schneiders’ clearly established

right. That action was clearly established as arbitrary and unreasonable by

Hansen. I would therefore hold the Individual Defendants are not entitled to

qualified immunity as to the Schneiders’ claims.

      Finally, I concur with the majority’s holding that the district court abused its

discretion by failing to consider Defendants’ argument that the Hardestys’

damages were excessive. But rather than limiting its holding to the arguments

presented by the parties, the majority holds sua sponte that the award is excessive

because it was based on the wrong theory of recovery. That argument was not

made before this panel, let alone before the district court. This Court may review a

waived argument in limited circumstances which are not present here. See Bolker

v. Comm’r of Internal Revenue, 

, 1042 (9th Cir. 1985) (quotation


                                          3
marks and citation omitted). As a unanimous Supreme Court reminded our Circuit

earlier this year, “[i]n our adversarial system of adjudication, we follow the

principle of party presentation . . . ‘we rely on the parties to frame the issues for

decision and assign to courts the role of neutral arbiter of matters the parties

present.” United States v. Sineneng-Smith, 

, 1579 (quoting

Greenlaw v. United States, 

(2008)). In short, the Court reminded us,

we “do not, or should not, sally forth each day looking for wrongs to right. [We]

wait for cases to come to [us], and when [cases arise, we] normally decide only

questions presented by the parties.’”

v. Samuels, 

1298, 1301 (8th Cir.1987) (Arnold, J., concurring in denial of reh’g en banc)). I

therefore do not join the majority’s holding that the Hardestys’ damages were

based on the wrong theory of recovery when Defendants did not at any time

present that argument.




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