David Brown v. State of Hawaii

FILED
NOT FOR PUBLICATION MAR 25 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DAVID BROWN, No. 10-15000
Plaintiff - Appellant, D.C. No. 1:07-cv-00556-ACK-
LEK
v.
STATE OF HAWAII; LAURA MEMORANDUM *
THIELEN; NANCY MCMAHON, in her
official capacity; MELANIE CHINEN,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Hawaii
Alan C. Kay, Senior District Judge, Presiding
Argued and Submitted February 16, 2011
Honolulu, Hawaii
Before: TASHIMA, W. FLETCHER, and BERZON, Circuit Judges.
David Brown appeals the district court’s grant of summary judgment to the
State of Hawaii, Melanie Chinen, and various defendants in their official
capacities. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Brown argues that Hawaii’s State Historic Preservation Division (“SHPD”)
is violating the Native American Graves Protection and Repatriation Act, 24
U.S.C. § 3001 et seq., by failing to properly inventory and care for Native
Hawaiian human remains under its control. We agree with the district court that
Brown did not meet the requirements for permanent injunctive relief because he
did not demonstrate that he faced immediate or irreparable injury. See G.C. & K.B.
Invs., Inc. v. Wilson, 326 F.3d 1096, 1107 (9th Cir. 2003); Reno Air Racing Ass’n
v. McCord, 452 F.3d 1126, 1137 n.11 (9th Cir. 2006).
Brown also argues that the State, and Chinen in her individual capacity,
decided not to renew his contract in retaliation for his criticisms of the SHPD.
Most of Brown’s speech was made “pursuant to his official duties” and was
therefore unprotected under Garcetti v. Ceballos, 547 U.S. 410 (2006). Some of
Brown’s speech was protected, but Brown failed to controvert Chinen’s declaration
that she was unaware of the protected speech at the time she decided not to renew
Brown’s contract. Therefore, Brown’s protected speech could not have motivated
Chinen to retaliate against him. See Keyser v. Sacramento City Unified Sch. Dist.,
265 F.3d 741, 751 (9th Cir. 2001).
Finally, Brown appeals the award of attorney’s fees to the State and Chinen.
Because Brown did not file a separate notice of appeal after the fee award was
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entered, we have no jurisdiction to review this claim. Leslie v. Grupo ICA, 198
F.3d 1152, 1160 (9th Cir. 1999).
AFFIRMED; appeal from fee award DISMISSED.
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