Judith Maniates v. Lake County Oregon; Kenneth Kestner

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUDITH MANIATES,
Plaintiff - Appellant,
v.
LAKE COUNTY OREGON; KENNETH
KESTNER,
Defendants - Appellees.
No. 09-35178
D.C. No. 1:08-cv-03038-PA
MEMORANDUM *
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Argued and Submitted March 5, 2010
Portland, Oregon
Before: PAEZ, TALLMAN, and M. SMITH, Circuit Judges.
Judith Maniates (“Maniates”) appeals the district court’s grant of judgment
as a matter of law in favor of the defendants, Lake County, Oregon, and County
Commissioner Kenneth Kestner. Maniates brought a claim under 42 U.S.C.
§ 1983 for improper retaliation under the First Amendment. She also alleged
FILED
MAR 12 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

Though Maniates failed to make a motion for recusal before the district1
court, she may still pursue a claim on appeal for failure to recuse due to bias under
28 U.S.C. § 455. United States v. Bosch, 951 F.2d 1546, 1548 (9th Cir. 1991).
Maniates appeals the district court’s judgment as a matter of law on all2
three claims. However, she does not properly present argument in her opening
brief as to her Oregon whistleblower claim, and therefore this claim is deemed
abandoned. See Babasa v. LensCrafters, Inc., 498 F.3d 972, 975 n.1 (9th Cir.
2007) (noting that appellant waived any argument on an issue by failing to address
it in its briefs on appeal).
2
violations of whistleblower protection and tortious interference with economic
relations under Oregon state law. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
Maniates cannot show that Judge Panner erred in failing to recuse himself
due to bias. Under 28 U.S.C. § 455, a judge should recuse himself if the1
complaining party shows either (1) bias stemming from some “extrajudicial
source,” or (2) “a deep-seated favoritism or antagonism that would make fair
judgment impossible.” Liteky v. United States, 510 U.S. 540, 554, 555 (1994).
Here, Maniates can show neither and instead points to Judge Panner’s “ordinary
efforts at courtroom administration . . . , [which] remain immune” from § 455
challenges. Id. at 556. Therefore, this claim fails.
Maniates next argues that the court improperly granted judgment as a matter
of law to the defendants. We affirm the district court’s determination. First, for2
her First Amendment retaliation claim, Maniates did not present evidence during

-- 2 of 3 --

3
her case in chief proving that her protected speech was a “substantial or motivating
factor” in her termination or in the County’s decision not to employ her. See Alpha
Energy Savers, Inc. v. Hansen, 381 F.3d 917, 928–29 (9th Cir. 2004), cert. denied
sub nom. Multnomah County v. Alpha Energy Savers, Inc. 544 U.S. 975 (2005)
(stating that there must be “more than ‘mere evidence’ that the defendants were
aware of [plaintiff’s] expressive conduct in order to establish a genuine material
dispute as to whether retaliation was a substantial or motivating factor for their
conduct”). Second, a reasonable jury could not have found that Kenneth Kestner
acted solely for his own benefit as required for the common law tort of intentional
interference with economic relations. Sims v. Software Solutions Unlimited, Inc.,
939 P.2d 654, 658 (Or. Ct. App. 1997) (“[S]o long as the actor’s actions are within
the scope of his authority and are undertaken at least in part to further the best
interests of the employer, it is immaterial that the actor has additional motives.”).
AFFIRMED.

-- 3 of 3 --