Stephen Eugster v. Paula Littlewood ( 2018 )

FILED
NOT FOR PUBLICATION
MAY 29 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHEN KERR EUGSTER, No. 16-35542
Plaintiff-Appellant, D.C. No. 2:15-cv-00352-TOR
v.
MEMORANDUM*
PAULA LITTLEWOOD, Executive
Director, WSBA, in her official capacity;
DOUGLAS J. ENDE, Director of the
WSBA of Disciplinary Counsel, in his
official capacity; FRANCESCA
D’ANGELO, Disciplinary Counsel,
WSBA Office of Disciplinary Counsel, in
her official capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, Chief Judge, Presiding
Argued and Submitted May 15, 2018
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: BERZON, THACKER,** and HURWITZ, Circuit Judges.
Stephen Eugster appeals the dismissal of his due process challenge to the
Washington State Bar Association’s (WSBA’s) lawyer discipline system. We
affirm.
1. Eugster alleged that at the time he filed this lawsuit, he faced an
impending disciplinary proceeding under the WSBA system he claims is
unconstitutional. On those facts, he may have had the requisite injury-in-fact for
Article III standing. See Canatella v. State of California, 304 F.3d 843, 853 (9th
Cir. 2002).
The disciplinary matter that spurred Eugster’s suit was resolved, however,
through a stipulated 60-day suspension that ended in July 2017. Eugster’s
complaint does not allege that he will be subjected to the WSBA’s disciplinary
system again in the future. Absent such allegations, he cannot “demonstrate an
appreciable likelihood that [WSBA] will do anything in the future to violate his
rights.” Partington v. Gedan, 961 F.2d 852, 862 (9th Cir. 1992), as amended (July
2, 1992). Eugster therefore lacks the “actual or threatened injury” necessary to
bring his challenge. See id.
**
The Honorable Stephanie Dawn Thacker, United States Circuit Judge
for the U.S. Court of Appeals for the Fourth Circuit, sitting by designation.
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2. Even if we did have jurisdiction over Eugster’s due process challenge, he
would be precluded from asserting it. Eugster’s first disciplinary matter was fully
adjudicated by the Washington Supreme Court. See In re Disciplinary Proceeding
Against Eugster, 166 Wash. 2d 293 (2009) (en banc). Washington law determines
the preclusive effects of that judgment on Eugster’s later assertion of the same or
similar claims. See Noel v. Hall, 341 F.3d 1148, 1166 (9th Cir. 2003). The
Washington Court of Appeals has determined, as a matter of state law, that the
2009 judgment precludes Eugster from bringing a due process challenge similar to
the one underlying his present action. Eugster v. WSBA, 198 Wash. App. 758
(Wash. Ct. App.), review denied, 189 Wash. 2d 1018 (2017). We would defer to
that interpretation of Washington law. See Ryman v. Sears, Roebuck & Co., 505
F.3d 993, 995 (9th Cir. 2007).
The judgment is AFFIRMED.
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