Steven Marshall v. Gordon Trucking, Inc. , 649 F. App'x 573 ( 2016 )

FILED
NOT FOR PUBLICATION
MAY 09 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN D. MARSHALL, No. 13-36104
Plaintiff - Appellant, D.C. No. 3:12-cv-01550-BR
v.
MEMORANDUM*
GORDON TRUCKING, INC., a foreign
corporation,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted May 5, 2016**
Portland, Oregon
Before: TALLMAN and HURWITZ, Circuit Judges and BATTAGLIA,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Anthony J. Battaglia, United States District Judge for
the Southern District of California, sitting by designation.
Steven Marshall appeals a district court order dismissing his claims under
the Americans with Disabilities Act for failure to exhaust administrative remedies.
We have jurisdiction under 28 U.S.C § 1291, and we reverse.
1. The district court understandably treated Defendant Gordon Trucking’s
summary judgment motion as an “unenumerated Rule 12(b) motion” under Wyatt
v. Terhune, 315 F.3d 1108 (9th Cir. 2003). Six months after the district court’s
order, we overruled Wyatt in Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014) (en
banc). In Albino, we held that failure to exhaust is an affirmative defense that
should normally be raised thorough a summary judgment motion. Id. at 1166.
Without the benefit of Albino, the district court erred in treating Gordon Trucking’s
motion as a motion to dismiss and not as a summary judgment motion.
2. The district court also erred in holding that it lacked subject matter
jurisdiction over Marshall’s claims because he failed to exhaust remedies available
under Department of Transportation (“DOT”) regulations. We have “rarely found
exhaustion statutes to be a jurisdictional bar.” McBride Cotton & Cattle Corp. v.
Veneman, 290 F.3d 973, 978 (9th Cir. 2002). Rather, “we have found the failure to
exhaust administrative remedies to be a bar to federal subject matter jurisdiction
where the exhaustion statute explicitly limits the grant of subject matter
jurisdiction.” Id. at 979. The DOT regulations at issue here never mention the
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court’s jurisdiction. See 49 C.F.R. §§ 386.13, 386.67, 391.47. Thus, the district
court erred in holding that exhaustion under the DOT regulations is jurisdictional.
On remand, the district court should apply the Albino framework and resolve
any disputed material facts relevant to exhaustion in this case. See Albino, 747
F.3d at 1170-71. The district court should also consider whether to exercise its
discretion to excuse exhaustion or to invoke the doctrine of primary jurisdiction.
See Rodrigues v. Donovan, 769 F.2d 1344, 1349 (9th Cir. 1985) (remanding for
district court to exercise its discretion “in the first instance”); Syntek
Semiconductor Co. v. Microchip Tech. Inc., 307 F.3d 775, 780-81 (9th Cir. 2002)
(summarizing primary jurisdiction and noting factors traditionally considered in
the court’s discretion).
Costs are awarded to appellant.
REVERSED and REMANDED.
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