Ernst

MEMORANDUM *

Both parties appeal from orders by the district court. The plaintiff Damon Ernst appeals from an order denying him attorney fees. The defendant Western States Chiropractic College (‘Western States”) cross-appeals from an order denying its motion to review the jury’s punitive damages award for excessiveness. In each situation, the district court denied the moving party’s request on the ground that this court’s disposition in Ernst v. Western States Chiropractic College, No. 97-36115, 1999 WL 993652 (9th Cir. Nov. 1, 1999) (“Ernst I”), precluded consideration of the motion. In so ruling, the district court misread the import of Ernst I. Because the parties are familiar with the facts of this case, we recount them only as necessary to explain our decision.

A. Attorney Fees

Ernst I did not explicitly address any attorney fees issues. The district court, based on our silence on the fees issue and our determination to affirm the judgment only on the battery claim (which would not by itself support an award of fees to plaintiff), held that we had denied the attorney fees claim in Ernst I.

This divining of what Ernst I implicitly held is directly contradicted by what the…

I concur in the majority’s treatment of the attorneys’ fee issue.

I dissent from its remand on the punitive damages issue. The district court obeyed to a “T” the remand ordered by the prior panel: It awarded $1.00 in actual damages and reinstated the award of punitive damages in the amount of $150,000.

The exact language of the prior panel was:

It concludes: “Because the jury’s award of punitive damages is sustainable wholly on its finding of battery, we need not reach the arguments concerning Title IX raised by the parties.”

Western States cross-appealed in Ernst I. It did not challenge the amount of punitive damages awarded by the jury as excessive. Its argument was simply none should be awarded because there was no evidence to support either actual or punitive damages. It’s now too late to raise excessiveness as a new and separate issue in Ernst II. The panel in Ernst I explicitly found “[t]he jury’s award of punitive damages is sustainable wholly on its finding of battery.” That should put the issue at rest.

We should not reverse the district court that faithfully followed the mandate laid down by our court.