Ingle v. Circuit City ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CATHERINE INGLE, 
Plaintiff-Appellee, No. 04-55927
v.
 D.C. No.
CV-99-01297-RHW
CIRCUIT CITY, a Virginia
corporation, OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
Robert H. Whaley, District Judge, Presiding
Submitted March 21, 2005*
Pasadena, California
Filed May 18, 2005
Before: Harry Pregerson, David R. Thompson, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Pregerson
*The panel unanimously finds this case suitable for decision without
oral argument. Fed. R. Civ. P. 34(a)(2).
5367
INGLE v. CIRCUIT CITY 5369
COUNSEL
Rex Darrell Berry, Livingston & Mattesich Law Corporation,
Sacramento, California, for defendant/appellant Circuit City
Stores, Inc.
Michael H. Crosby, San Diego, California, for the plaintiff/
appellee.
OPINION
PREGERSON, Circuit Judge:
In this appeal we consider Circuit City’s renewed petition
to compel arbitration, in which it again asks the district court
to compel former employee Catherine Ingle to arbitrate her
employment-related claims. In Ingle v. Circuit City Stores,
5370 INGLE v. CIRCUIT CITY
Inc., 328 F.3d 1165 (9th Cir. 2003) (“Ingle I”), we held that
Circuit City’s arbitration agreement with Ingle, which
required her to arbitrate any employment-related claims as a
condition of employment, was procedurally and substantively
unconscionable under California contract law, and thus unen-
forceable. Accordingly, we affirmed the district court’s denial
of Circuit City’s motion to compel arbitration of Ingle’s state
and federal employment discrimination and harassment
claims. On January 26, 2004, the Supreme Court denied Cir-
cuit City’s petition for a writ of certiorari. See Circuit City
Stores, Inc. v. Ingle, 540 U.S. 1160 (2004).
Less than a month after the parties returned to the district
court to litigate Ingle’s discrimination and harassment claims,
Circuit City filed a renewed petition to compel arbitration. In
its petition, Circuit City argued that this court’s en banc deci-
sion in EEOC v. Luce, Forward, Hamilton & Scripps, 345
F.3d 742 (9th Cir. 2003) (en banc) (“Luce Forward”), filed
four-and-a-half months after Ingle I,1 implicitly undermined
the holding of Ingle I. Circuit City claimed that because Luce
Forward weakened the holding of Ingle I, the district court
did not need to comply with our decision in Ingle I and could
compel Ingle to arbitrate her discrimination and harassment
claims against Circuit City. The district court disagreed and
denied Circuit City’s renewed petition to compel arbitration.
Circuit City appeals.
“The denial of a petition to compel arbitration is immedi-
ately appealable under 9 U.S.C. § 16(a)(1)(B).” Ferguson v.
Countrywide Credit Indus., Inc., 298 F.3d 778, 782 n.4 (9th
Cir. 2002). We affirm.
1
Our decision in Ingle I was filed on May 13, 2003. Our decision in
Luce Forward was filed on September 30, 2003.
INGLE v. CIRCUIT CITY 5371
DISCUSSION
1. The Law of the Case
[1] Under the law of the case doctrine, “a court is generally
precluded from reconsidering an issue previously decided by
the same court, or a higher court in the identical case.” United
States v. Lummi Indian Tribe, 235 F.3d 443, 452 (9th Cir.
2000). This doctrine has developed to “maintain consistency
and avoid reconsideration of matters once decided during the
course of a single continuing lawsuit.” 18B Wright, Miller &
Cooper, Federal Practice and Procedure: Jurisdiction
2d § 4478, at 637-38 (2002). Because application of the doc-
trine is discretionary, we review a district court’s decision to
apply the law of the case for an abuse of discretion. See
Lummi Indian Tribe, 235 F.3d at 452.
[2] A district court abuses its discretion in applying the law
of the case doctrine only if (1) the first decision was clearly
erroneous; (2) an intervening change in the law occurred; (3)
the evidence on remand was substantially different; (4) other
changed circumstances exist; or (5) a manifest injustice would
otherwise result. See id. at 452-53.
2. Circuit City’s Renewed Petition Lacks Merit
Circuit City argues that Luce Forward undermined Ingle I
and, therefore, constitutes an intervening change in the law.2
2
After the parties finished briefing, Circuit City submitted an additional
citation pursuant to Federal Rule of Appellate Procedure 28(j) directing
our attention to Nagrampa v. Mailcoups, Inc., 401 F.3d 1024 (9th Cir.
2005). That case, however, is inapposite because it examined an arbitra-
tion clause embedded in a larger franchise agreement. As the court in
Nagrampa explicitly recognized, its analysis was confined to such agree-
ments and had no application to stand-alone arbitration agreements. See id.
at 1028 n.4. As Circuit City concedes in its 28(j) submission, the arbitra-
tion agreement held unconscionable in Ingle I is a stand-alone arbitration
agreement.
5372 INGLE v. CIRCUIT CITY
According to Circuit City, the district court should have
granted its renewed petition to compel arbitration despite our
decision in Ingle I. We disagree.
Our decision in Luce Forward was narrow. We considered
only whether the Civil Rights Act of 1991 precluded employ-
ers from requiring employees, as a condition of employment,
to waive their right to bring future Title VII claims in court.
Luce Forward, 345 F.3d at 749. Sitting en banc in Luce For-
ward, we overruled our previous decision in Duffield v. Rob-
ertson Stephens & Co., 144 F.3d 1182 (9th Cir. 1998), and
held that the Civil Rights Act of 1991 does not preclude
employers from requiring employees to arbitrate their future
Title VII claims as a condition of employment. See id. at 745
(“We now conclude that . . . Duffield was wrongly decided;
we therefore overrule it ourselves.”). The en banc court exam-
ined the text of the Civil Rights Act of 1991, and concluded
that there was nothing in the text of the statute that precluded
employers from requiring employees to arbitrate their future
Title VII claims as a condition of employment. See id. at 751-
52.
[3] Luce Forward did not limit or overrule Ingle I; nor did
Luce Forward even address or cite Ingle I. Ingle I held that,
as a matter of California contract law, Circuit City’s compul-
sory arbitration agreement was unconscionable and hence,
unenforceable. Ingle, 328 F.3d at 1180. Luce Forward did not
examine California contract law at all. Rather, Luce Forward
was a narrowly written decision overruling Duffield and hold-
ing that the Civil Rights Act of 1991 does not preclude an
employer from requiring an employee to arbitrate Title VII
claims as a condition of employment. See Luce Forward, 345
F.3d at 745.
[4] Post-Luce Forward, we continue to examine compul-
sory arbitration agreements to determine if they comport with
state contract law. For example, we recently held that a 1998
version of Circuit City’s arbitration agreement was uncon-
INGLE v. CIRCUIT CITY 5373
scionable under Washington state law because the agreement
was “excessively one-sided” in favor of Circuit City. See Al-
Safin v. Circuit City Stores, Inc., 394 F.3d 1254, 1262 (9th
Cir. 2005). We noted that Luce Forward “forecloses Al-
Safin’s arguments that Duffield prohibits enforcement of the
arbitration agreement,” id. at 1258 n.2, but nevertheless held
the agreement unconscionable, and hence unenforceable, as a
matter of state law, id. at 1262.
[5] In sum, Circuit City’s claim that Luce Forward some-
how overruled or undermined Ingle I is not persuasive. The
district court did not abuse its discretion in denying Circuit
City’s renewed petition to compel arbitration.
3. Sanctions Against Circuit City
[6] Ingle contends that Circuit City’s present appeal is friv-
olous and requests that we impose sanctions under 28 U.S.C.
§ 1912, 28 U.S.C. § 1927, and Federal Rule of Appellate Pro-
cedure 38. Specifically, Ingle asks for the imposition of dou-
ble costs, attorney’s fees, or both. “An appeal is considered
frivolous if the result is obvious or the appellant’s arguments
are wholly without merit.” Adriana Int’l Corp. v. Thoeren,
913 F.2d 1406, 1417 (9th Cir. 1990).
[7] As discussed above, Circuit City’s position in this
appeal is wholly without merit. We therefore impose sanc-
tions in the form of double costs and reasonable attorney’s
fees under Federal Rule of Appellate Procedure 38. See Har-
rah’s Club v. Van Blitter, 902 F.2d 774, 777 (9th Cir. 1990)
(imposing sanctions in the form of double costs and attorney’s
fees where appellant’s claim was “utterly meritless”). Ingle
has failed, however, to provide evidence that Circuit City’s
latest appeal was motivated by bad faith. Accordingly, we
decline to impose sanctions under 28 U.S.C. § 1927. See T.W.
Elec. Service, Inc. v. Pac. Elec. Contractors Assoc., 809 F.2d
626, 638 (9th Cir. 1987) (declining to impose sanctions under
28 U.S.C. § 1927 because, even though the substance of the
5374 INGLE v. CIRCUIT CITY
appeal was nonmeritorious, there was no evidence of bad
faith).
CONCLUSION
The judgment of the district court is AFFIRMED. Ingle’s
request for sanctions against Circuit City in the form of dou-
ble costs and attorney’s fees is GRANTED.