Gadda v. State

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIGUEL GADDA, Esq., 
Plaintiff-Appellant,
v.
THE STATE BAR OF CALIFORNIA;
TRACEY MCCORMICK; BETTY YUNG; No. 06-15344
THE SUPREME COURT OF THE
STATE OF CALIFORNIA; BOARD OF  D.C. No.
CV-05-03112-MHP
IMMIGRATION APPEALS;
DEPARTMENT OF HOMELAND OPINION
SECURITY; MICHAEL CHERTOFF,
Secretary; JENNIFER BARNES;
MIRIAM HAYWARD; ALBERTO
GONZALEZ; MIMI S. YAM,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, District Judge, Presiding
Submitted December 7, 2007*
San Francisco, California
Filed December 27, 2007
Before: Jerome Farris, Robert R. Beezer, and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Beezer
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
16773
16776 GADDA v. STATE BAR OF CALIFORNIA
COUNSEL
Miguel Gadda, San Francisco, California, plaintiff-appellant,
pro se.
Kevin V. Ryan, United States Attorney, Joann M. Swanson,
Chief, Civil Division, and Edward A. Olsen, Assistant United
States Attorney, San Francisco, California, for defendant-
appellees Board of Immigration Appeals, Department of
Homeland Security, Michael Chertoff, Jennifer Barnes, Mir-
iam Hayward, Alberto Gonzalez and Mimi S. Yam.
Michael Von Loewenfeldt and Holly Hogan, San Francisco,
California; Marie M. Moffat, Lawrence C. Yee and Colin P.
Wong, Office of General Counsel, The State Bar of Califor-
nia, San Francisco, California, for defendant-appellees The
State Bar of California, Tracey McCormick and Betty Yung.
OPINION
BEEZER, Circuit Judge:
Miguel Gadda (“Gadda”) appeals, pro se, the district
court’s order granting defendants’ motions to dismiss and for
judgment on the pleadings. Because the retroactive applica-
tion of the 2003 amendment to section 6080.10 of the Califor-
GADDA v. STATE BAR OF CALIFORNIA 16777
nia Business and Professions Code violates neither the Due
Process Clause of the Fourteenth Amendment nor the Ex Post
Facto Clause, we affirm.
I
Gadda was admitted to the California State Bar (“the Bar”)
in 1975. He became a member of the bar of the United States
District Court for the Northern District of California, the
United States Court of Appeals for the Ninth Circuit and the
Supreme Court of the United States. Gadda, who was autho-
rized to practice before the Board of Immigration Appeals
(“BIA”) and all immigration courts throughout the United
States, practiced exclusively in the immigration and federal
courts.
In 1990, the Supreme Court of California suspended Gadda
from practice for two years for several instances of client
neglect. Gadda v. State Bar of Cal., 787 P.2d 95, 102
(Cal. 1990). The Hearing Department of the State Bar Court
determined in 2000 that Gadda had committed myriad acts of
misconduct from 1994 to 1999. In re Gadda, 2002 WL
31012596, at *1 (Cal. Bar Ct. 2002). The Review Department
of the Bar agreed and held that Gadda’s disbarment was war-
ranted under the circumstances. Id. Gadda has now been dis-
barred by the State of California, the BIA, the United States
District Court for Northern District of California and the
Ninth Circuit Court of Appeals. See Gadda v. Ashcroft, 377
F.3d 934 (9th Cir. 2004) (recounting Gadda’s professional
misdeeds and ordering him disbarred from the practice of law
before the Ninth Circuit).
On November 15, 2002, the Bar filed a Certificate of Costs
in the amount of $21,845.14. In a February 2003 order, the
California Supreme Court adopted the Review Department’s
order recommending disbarment and costs. Gadda did not
challenge the cost order. On June 1, 2005, the Bar sent Gadda
a letter requesting that he voluntarily pay the owed costs. If
16778 GADDA v. STATE BAR OF CALIFORNIA
he did not, the Bar warned, a judgment would be filed against
him in state court pursuant to the 2003 amendments to sec-
tions 6086.10 and 6140.5 of the Business and Professions Code.1
Gadda filed suit in the Northern District of California
against the Bar, Bar employees Tracey McCormick and Betty
Yung, the Supreme Court of California, the BIA, the Depart-
ment of Homeland Security (“DHS”), DHS Secretary Michael
Chertoff, Executive Office for Immigration Review attorney
Jennifer Barnes and Immigration Judges Miriam Hayward,
Mimi S. Yam and Alberto Gonzales. In his First Amended
Complaint, Gadda made numerous challenges to his disbar-
ment and to the Bar’s ability to collect disbarment costs from
him. After requesting briefing and holding a hearing, the dis-
trict court dismissed Gadda’s complaint with prejudice in its
entirety. Gadda timely appeals.2
II
We review a judgment dismissing a case on the pleadings
de novo. Turner v. Cook, 362 F.3d 1219, 1225 (9th Cir.
2004). We review a district court’s dismissal for failure to
state a claim de novo. Pakootas v. Teck Cominco Metals, Ltd.,
452 F.3d 1066, 1072 (9th Cir. 2006).
1
Sections 6140.5 and 6086.10 are frequently referenced together in the
pleadings and in the record. Section 6140.5 concerns Client Security
Funds. The Bar has not suggested that Gadda owes any such assessments
nor has any court ordered them from Gadda. Both parties agree in their
briefs that section 6140.5 is not at issue in this appeal.
2
Gadda has not raised any issues affecting the federal appellees in his
opening appellate brief. Officers for Justice v. Civil Serv. Comm’n, 979
F.2d 721, 726 (9th Cir. 1992). In his reply brief, Gadda attempts to correct
his oversight by stating that he had intended to preserve those issues, but
he again fails to articulate any colorable argument with respect to them.
It is well established that issues cannot be raised for the first time in a
reply brief. See United States v. Montoya, 45 F.3d 1286, 1300 (9th Cir.
1995).
GADDA v. STATE BAR OF CALIFORNIA 16779
III
[1] Gadda argues that the Bar is unconstitutionally applying
the 2003 amendment to section 6086.10 against him retroac-
tively. There is a traditional presumption against the retroac-
tive application of legislation. Landgraf v. USI Film Prods.,
511 U.S. 244, 265 (1994). In California, “[i]t is an established
canon of interpretation that statutes are not to be given a retro-
spective operation unless it is clearly made to appear that such
was the legislative intent.” Aetna Cas. & Sur. Co. v. Indus.
Accident Comm’n, 182 P.2d 159, 161 (Cal. 1947).3
“California law requires the California Supreme Court to
order disciplined attorneys to pay the costs of their disciplin-
ary proceedings.” In re Taggart, 249 F.3d 987, 990 (9th Cir.
2001); see also Cal. Bus. & Prof. Code § 6086.10(a) (“In any
order imposing discipline, or accepting a resignation with a
disciplinary matter pending, the Supreme Court shall include
a direction that the member shall pay costs.”). When the Cali-
fornia Supreme Court entered the $21,845.14 cost order
against Gadda in February 2003, section 6140.7 of the Busi-
ness and Professions Code stated that “costs assessed against
a member who resigns with disciplinary charges pending or
by a member who is actually suspended or disbarred shall be
paid as a condition of reinstatement of or return to active
membership.” At that time, the Business and Professions
Code did not provide a method for enforcing the cost award.
Rather, it was the Bar’s practice to collect a cost award from
a disciplined attorney only upon application for readmission.
On September 8, 2003, the California Legislature amended
the code to permit enforcement of an order imposing costs in
a money judgment. Cal. Bus. & Prof. Code § 6086.10(a). The
Bar seeks such a money judgment from Gadda.
3
In determining whether California’s statutory amendment applies retro-
actively, we use California rules of statutory construction. In re Eastport
Assocs., 935 F.2d 1071, 1079 (9th Cir. 1991) (citing In re Anderson, 824
F.2d 754, 756 (9th Cir. 1987)).
16780 GADDA v. STATE BAR OF CALIFORNIA
[2] The Bar argues that the California Supreme Court’s cost
order was authorized by law before the 2003 amendments
were enacted and that section 6086.10 is not being applied
retroactively to Gadda. The Bar suggests that the amendment
merely provided a vehicle for the Bar to collect the debt that
Gadda already owed and is not retroactive in the constitu-
tional sense. “[A] retroactive or retrospective law ‘is one
which affects rights, obligations, acts, transactions and condi-
tions which are performed or exist prior to the adoption of the
statute.’ ” Myers v. Philip Morris Cos., 28 Cal. 4th 828, 839
(2002); see also Landgraf, 511 U.S. at 269. Gadda’s debt was
originally due only upon reinstatement or return, but after the
2003 amendments the Bar may enforce the cost order as a
money judgment. This change affects Gadda’s rights and obli-
gations that existed prior to the amendments. The Bar’s
attempt to collect Gadda’s owed costs under section 6086.10
is a retroactive application of the statute.
Having found that the Bar is seeking to apply section
6086.10 to Gadda retroactively, we determine whether the
California legislature intended for the statute to be so applied.
“California courts comply with the legal principle that unless
there is an ‘express retroactivity provision, a statute will not
be applied retroactively unless it is very clear from extrinsic
sources that the Legislature must have intended a retroactive
application.’ ” Myers, 28 Cal. 4th at 841 (quoting Evangelatos
v. Sup. Ct., 44 Cal. 3d 1188, 1209 (1988)). A statute that is
ambiguous as to retroactivity will be construed as unambigu-
ously prospective. Id. Here, the plain language of section
6086.10 does not give any indication whether the legislature
intended it to apply retroactively.
[3] In the absence of express retroactivity language in the
statute, extrinsic sources must show that the legislature clearly
intended retroactive application of the statute. Id. at 844. The
legislative history of the statutory amendment reveals that
clear intent. The session laws for the 2003 amendments state,
“[i]t is the intent of the Legislature that the changes made to
GADDA v. STATE BAR OF CALIFORNIA 16781
Sections 6086.10 and 6140.5 of the Business and Professions
Code by this act shall apply to costs and assessments ordered
but unpaid on the date this act becomes operative.” 2003 Cal.
Stat. 334 (emphasis added). In Gadda’s case, the California
Supreme Court ordered his debt paid on February 21, 2003.
Section 6086.10, as amended, went into effect on January 1,
2004. The California Legislature clearly intended that Section
6086.10 be retroactively applicable to disbarred attorneys
such as Gadda.
[4] Even where the legislature intends for legislation to
apply retroactively, such legislation may still run afoul of the
Due Process Clause of the Fourteenth Amendment. Retro-
spective economic legislation need only survive rational basis
review in order to pass constitutional muster. That is, the stat-
ute must be based on “a legitimate legislative purpose fur-
thered by rational means.” Campanelli v. Allstate Life Ins.
Co., 322 F.3d 1086, 1100 (9th Cir. 2003) (quoting Gen.
Motors Corp. v. Romein, 503 U.S. 181, 191 (1992)). In
amending section 6086.10, California’s legislative purpose
was a legitimate one: to recover costs owed to the Bar by dis-
barred attorneys who do not seek readmission. The amend-
ment is rationally related to that legitimate end: by providing
a mechanism to obtain a money judgment, the Bar can now
more easily recover costs owed to it. California’s retroactive
application of section 6086.10 does not offend due process.
Gadda raises two further arguments as to why section
6086.10 is being improperly applied against him. Citing Plaut
v. Spendthrift Farm, Inc., 514 U.S. 211 (1995), he contends
that the finality of the California Supreme Court’s cost order
protects him from the effect of new legislation. In Plaut, the
Supreme Court held that Congress could not declare through
retroactive legislation that the law applicable to a particular
case was something different from what a court said it was.
514 U.S. at 227. Plaut is inapplicable here. The 2003 amend-
ments to section 6086.10 did not alter a court’s interpretation
16782 GADDA v. STATE BAR OF CALIFORNIA
of the law, but merely provided the Bar with a new avenue to
collect owed costs.
[5] Gadda also argues that the retroactive application of
section 6086.10 runs afoul of the Ex Post Facto Clause
because the 2003 amendments indicate that the costs imposed
are now “penalties.” Cal. Bus. & Prof. Code § 6086.10(e).
Under the Supreme Court’s decision in Smith v. Doe, 538
U.S. 84 (2003), there is a two-step inquiry to determine
whether section 6086.10 constitutes retroactive punishment
forbidden by the Ex Post Facto Clause: (1) whether the intent
of the California legislature in enacting the statute was to
impose punishment and (2) if so, whether it is “so punitive
either in purpose or effect as to negate [the State’s] intention
to deem it civil.” Hatton v. Bonner, 356 F.3d 955, 961 (9th
Cir. 2004) (internal quotation omitted). The costs imposed
against Gadda were ordered pursuant to existing law. Accord-
ing to the statute, the purpose of the imposition of costs is to
“promote rehabilitation and to protect the public.” Cal. Bus.
& Prof. Code § 6086.10(e). The 2003 amendments to section
6086.10 merely provide a new avenue for the Bar to recover
those costs. The availability of a new mechanism to collect
costs already owed cannot be construed as remotely punitive
so as to negate California’s civil intentions. The Ex Post Facto
clause is not implicated by the retroactive application of sec-
tion 6086.10.
IV
Gadda claims that the district court improperly dismissed
his claims with prejudice and without leave to amend. “Dis-
missal without leave to amend is improper unless it is clear,
upon de novo review, that the complaint could not be saved
by any amendment.” Polich v. Burlington N., Inc., 942 F.2d
1467, 1472 (9th Cir. 1991). Gadda has not suggested any pos-
sible way that he could cure his complaint to survive dis-
missal upon amendment, nor is one apparent. Because
allowing amendment would be futile, we hold that the district
GADDA v. STATE BAR OF CALIFORNIA 16783
court properly dismissed Gadda’s claims with prejudice and
without leave to amend. Saul v. United States, 928 F.2d 829,
843 (9th Cir. 1991).
V
Gadda contends that the district court erred by failing to
consider his summary judgment motion before dismissing the
case. It is well established that district judges have “inherent
power to control their dockets.” Thompson v. Hous. Auth. of
City of L.A., 782 F.2d 829, 831 (9th Cir. 1986). The district
judge’s decision to rule on the defendants’ motions before
Gadda’s summary judgment motion was clearly within her
authority.4
VI
Gadda argues that the Bar had no jurisdiction over him to
collect costs because he only practices in federal immigration
court. We have previously considered this argument, Gadda,
377 F.3d at 943—46 (9th Cir. 2004), and again reject it here.
AFFIRMED.
4
Gadda’s argument is particularly misplaced because he actually agreed
with the defendants’ request for an extension of time to file a response to
his motion for summary judgment until after their motions were ruled
upon.