Duane Garvais v. United States

MEMORANDUM

The United States appeals a final judgment following a bench trial in the Eastern District of Washington in favor of Duane Garvais seeking damages for malicious prosecution under the Federal Tort Claims Act, 28 U.S.C. § 2674 . The Government challenges the district court’s conclusions regarding three of the five malicious prosecution elements under Washington law, the substantive tort law applicable to the claim. See 28 U.S.C. § 1346 (b)(1) (2006); Clark v. Baines, 150 Wash.2d 905 , 84 P.3d 245, 248 (2004). We affirm.

We review mixed questions of law and fact de novo unless factual issues predominate, in which case they are reviewed for clear error. Plata v. Schwarzenegger, 603 F.3d 1088, 1093 (9th Cir.2010); see United States v. McConney, 728 F.2d 1195, 1202-03 (9th Cir.1984) (en banc), overruled on other grounds by Estate of Merchant v. C.I.R., 947 F.2d 1390, 1392-93 (9th Cir.1991). Regarding whether the BIA instituted or continued the tribal court prosecution against Garvais, factual issues predominate. While it is a close question, the record supports the district court’s finding that the BIA both instituted and continued the criminal proceedings. Therefore, the…