Mukhtar v. California State University

319 F.3d 1073

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 12, 2003
• Docket: No. 01-15565
• Status: Published

Opinions

O’SCANNLAIN, Circuit Judge.

ORDER

The opinion filed August 7, 2002 is hereby ordered amended as follows:

Slip Op. at 11465: Replace the counsel listings with the following:

“Fania E. Davis, Oakland, California, argued the cause for plaintiff-appellee and filed a brief; Darryl Parker, Seattle, Washington, was on the brief.

Felicia R. Reid, Curíale Dellaverson Hirschfeld Kelly & Kraemer, San Francisco, California, argued the cause for defendants-appellants and filed a brief.

Oren M. Sellstom, Susan K. Serrano, Khari J. Tillery, San Francisco, California, for amicus curiae Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, filed a brief in support of plaintiff-appellee’s petition for rehearing and rehearing en banc.

Michael E. Tigar, Washington, D.C., for amici curiae Michael E. Tigar and Charles J. Ogletree, Jr., filed a brief in support of plaintiff-appellee’s petition for rehearing and rehearing en banc.”

Slip Op. at 11483 n.11. Add the following to the end of footnote 11:

“But the issue left unresolved at trial was whether his research and opinions were sufficiently reliable so that the trial judge would permit him to apply his theories to the facts and tell the jury that Dr. Rees’ decision must have been racially motivated.”

Slip Op. at 11484: Add the following footnote on line 13 following Velarde, 214 F.3d at 1210:

“Elsayed’s petition for rehearing and rehearing en banc and the amici curiae brief filed by Charles J. Ogletree, Jr. and Michael E. Tigar in support of El-sayed’s petition for rehearing and petition for rehearing en banc both argue that the panel should remand for an evidentiary hearing to determine reliability instead of remanding for a new trial. We decline to do so. See, e.g., Goebel v. Denver and Rio Grande Western R.R. Co., 215 F.3d 1083(10th Cir.2000); Velarde, 214 F.3d at 1212. To remand for an evidentiary hearing post-jury verdict undermines Daubert’s requirement that some reliability determination must be made by the trial court before the jury is permitted to hear the evidence. Otherwise, instead of fulfilling its mandatory role as a gatekeeper, the district court clouds its duty to ensure that only reliable evidence is presented with impunity. A post-verdict analysis does not protect the purity of the trial, but instead creates an undue risk of post-hoc rationalization. This is hardly the gatekeeping role the Court envisioned in Daubert and its progeny.”

Slip Op. at 11485: Delete the second paragraph and replace with the following paragraph:

“To establish racial discrimination in the employment context, Elsayed must demonstrate that CSUH denied him tenure ‘because of his race. See Costa v. Desert Palace, Inc., 299 F.3d 838, - slip op. at 10993 (9th Cir.2002) (en banc). While race need not be the sole factor in CSUH’s decision, it must be ‘a motivating factor’. Id. Thus, we look to what evidence Elsayed presented, other than Dr. Wellman’s testimony, that would tend to establish discrimination on the part of CSUH. Six CSUH professors testified that they believed Elsayed was qualified for a tenure appointment, and Dr. Hewitt, the outside expert hired to evaluate Elsayed, also recommended tenure despite his misgivings. The jury knew of Elsayed’s instructional achievement, book-length dissertation, and article recommended for publication in AJISS, which, in fact, was never published. Finally, both arbitrations found procedural errors in the tenure process, although the second arbitration had been vacated in state court. Thus, El-sayed argues, there was plenty of evidence, even apart from Dr. Wellman’s testimony, upon which the jury could have based its decision. We are not persuaded.”

Slip Op. at 11485 n. 13: Delete footnote 13. Except as herein modified, the panel has voted unanimously to deny the Petition for Rehearing. Judge O’Scannlain and Judge Tallman have voted to reject the Petition for Rehearing En Banc and Judge King so recommends.

The full court was advised of the Petition for Rehearing En Banc. A judge of this court requested a vote on whether to rehear the matter en banc. The matter faded to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration.

The petition for rehearing and the petition for rehearing en banc are DENIED.