                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           DEC 24 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
JEONG KO,                                        No. 14-55487

              Plaintiff - Appellee,              D.C. No. 2:10-cv-05305-R-PJW

  v.
                                                 MEMORANDUM*
CITY OF LA HABRA, A Public Entity,

              Defendant - Appellant.



JEONG KO,                                        No. 14-55705

              Plaintiff - Appellee,              D.C. No. 2:10-cv-05305-R-PJW

  v.

CITY OF LA HABRA, A Public Entity,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                              Argued July 16, 2015
                           Submitted December 24, 2015

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                 Pasadena, California

Before: WARDLAW, BEA, and N.R. SMITH, Circuit Judges.

      The City of La Habra appeals the district court’s grant of summary judgment

in favor of Jeong Ko on his claim that the City violated the Uniformed Services

Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C.

§§ 4301–4335, by failing to grant him a retroactive step increase upon his return

from military leave. The City also appeals the district court’s award of attorneys’

fees. We have jurisdiction under 28 U.S.C. § 1291, and we reverse.

1.    The district court did not violate the law of the case by granting Ko’s motion

for summary judgment. We first considered this case two years ago, when we

reversed the district court’s grant of summary judgment in favor of the City. See

Ko v. City of La Habra (Ko I), 534 F. App’x 615 (9th Cir. 2013) (unpublished).

We held that “[t]he district court erred by holding that Ko failed to raise a dispute

of material fact as to whether he is entitled under the USERRA to STEP pay

increases for which he would have been eligible absent his military leave.” Id. at

615. Although we held that the district court’s grant of summary judgment in

favor of the City was improper, we did not reach the question of whether the City

had raised an issue of material fact sufficient to defeat Ko’s motion for summary

judgment. Because the issue in question must have been “decided explicitly or by


                                          -2-
necessary implication in [the] previous disposition,” the law of the case doctrine

does not apply. Liberty Mut. Ins. Co. v. Equal Emp’t Opportunity Comm’n, 691

F.2d 438, 441 (9th Cir. 1982).

2.    The district court did err in granting summary judgment to Ko, because the

City has shown a “genuine dispute” of “material fact,” see Fed. R. Civ. P. 56(a), as

to whether Ko would have received a step increase “with reasonable certainty had

he . . . remained continuously employed during [his] period of [military] service.”

20 C.F.R. § 1002.236(a).1 In reaching this conclusion, we view the evidence in the

light most favorable to the City, the nonmoving party. See Delta Sav. Bank v.

United States, 265 F.3d 1017, 1021 (9th Cir. 2001).

      The City presented evidence showing that step increases do not

automatically occur. Instead, all step increases are discretionary and based on the

merits of an officer’s job performance.2 Indeed, Ko’s own employment history

shows that step increases are not automatic, given his actual performance




      1
       Because we conclude that the district court erred in granting Ko’s motion
for summary judgment, we also vacate the district court’s award of attorneys’ fees.
      2
        The Memorandum of Understanding between the City of La Habra and the
La Habra Police Association (in effect during the relevant period) provides, “All
step increases are based on merit and must be recommended by the employee’s
supervisor, subject to the approval of the Police Chief, or designee.”

                                         -3-
evaluations and his failure to complete probation during the typical period.3 Ko’s

performance was formally evaluated after six months on the job, at which time he

was eligible for a step increase. He did not receive this step increase because of

concerns about his job performance. Ko was next evaluated after nine months on

the job, and again he failed to receive the step increase because of continued

concerns about his job performance. The City also requires all new police officers

to complete a probationary period that typically lasts for one year. However, Ko’s

probationary period was extended to fifteen months because of his sub-standard

job performance. Thus, viewing the evidence in a light most favorable to the City,




      3
       The dissent notes that we emphasize Ko’s deficient performance. Indeed,
we do focus on this evidence. The standard of review for summary judgment
requires us to do so. The dissent ignores the standard of review, instead focusing
on the evidence presented by Ko, the moving party. The dissent impermissibly
weighs the evidence in reaching the conclusion that a rationale jury would find in
favor of Ko. On a motion for summary judgment, “[i]t is not for the court to
evaluate the persuasiveness of [the] evidence.” Alcantar v. Hobart Serv., 800 F.3d
1047, 1055 (9th Cir. 2015).

                                         -4-
a reasonable jury could conclude that it was not “reasonably certain” that Ko

would have received a step increase but for his military service.4

      We recognize that Ko has presented competing evidence supporting an

inference that he would have received a step increase but for his military service.

We previously concluded as much in Ko I, when we reversed the district court’s

grant of summary judgment in favor of the City. However, “[a]t the summary

judgment stage the judge’s function is not himself to weigh the evidence and

determine the truth of the matter but to determine whether there is a genuine issue

for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

3.    On remand, the case does not need to be reassigned to a different district

court judge. In determining whether the case should be reassigned, we consider:

      (1) whether the original judge would reasonably be expected upon
      remand to have substantial difficulty in putting out of his or her mind
      previously-expressed views or findings determined to be erroneous or
      based on evidence that must be rejected, (2) whether reassignment is
      advisable to preserve the appearance of justice, and (3) whether
      reassignment would entail waste and duplication out of proportion to any
      gain in preserving the appearance of justice.



      4
       The district court alternatively concluded that Ko was entitled to step
increases as a matter of law under Tilton v. Missouri Pacific Railroad Company,
376 U.S. 169 (1964). But the pay increase in Tilton depended entirely on longevity
and had no merit-based component, whereas here, the City’s step increases are
based on both longevity and satisfactory performance reviews. Accordingly,
Tilton does not support a grant of summary judgment to Ko.

                                         -5-
Evon v. Law Offices of Sidney Mickell, 688 F.3d 1015, 1034 (9th Cir. 2012)

(quoting United States v. Arnett, 628 F.2d 1162, 1165 (9th Cir. 1979)). The

“unusual circumstances” necessary for reassignment “rarely exist,” Glen Holly

Entm’t, Inc. v. Tektronix, Inc., 352 F.3d 367, 381 (9th Cir. 2003), and do not exist

here. The district judge can adequately consider the City’s position on remand.

That conclusion is especially warranted, given that this judge has now granted

summary judgment for both parties and that it will be a jury—not the judge—that

will be resolving the material question of fact here.

      REVERSED and REMANDED.




                                          -6-
                                                                             FILED
Ko v City of La Habra 14-55487/14-55705
                                                                             DEC 24 2015
Wardlaw, Circuit Judge, concurring in part and dissenting in part:
                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
      I concur in the majority’s law of the case holding and agree that this case

should not be reassigned to a different district court judge. I believe that the

district court judge got this case right upon remand, however, so I disagree with the

majority’s reversal of summary judgment in favor of Ko.

      To prevail on his USERRA claim, Ko was required to prove that he would

have, “with reasonable certainty,” received a step increase. 20 C.F.R.

§ 1002.236(a). A “reasonable certainty” means “a high probability,” not “an

absolute certainty.” Id. § 1002.213.

      The majority emphasizes Ko’s deficient performance during his first year on

the job. At the fifteen-month mark, however, Ko’s performance evaluation

indicated that he had completed a personal improvement plan and additional

training, “improved greatly,” “overcame [his] noted deficiencies,” and received a

step increase. His next performance evaluation, which covered the five months

before he left for military service and the seven months after he returned, noted

Ko’s “exceptional work habits,” his “above average” productivity “in all areas,”

and his “bright future in law enforcement”; gave him an overall rating of “exceeds

standards”; and awarded him another step increase. The President of the La Habra

Police Association attested that a step increase requires only a “meets standards”
evaluation, and—as the City conceded at oral argument in Ko I—it was “unusual”

for an officer not to receive a step increase. Accordingly, a rational jury would

necessarily conclude that Ko was reasonably certain to have received a step

increase if he had remained continuously employed during his seventeen-month

period of military service. See Alcantar v. Hobart Serv., 800 F.3d 1047, 1055 (9th

Cir. 2015) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986)).1

Finding for the City at trial would impermissibly rely “on an assumption that a

series of unlikely events could have prevented the employee from gaining the right

or benefit.” 20 C.F.R. § 1002.213.

      I would therefore affirm the district court’s grant of summary judgment in

favor of Ko.




      1
        Because these facts are either undisputed or are admissions by the City,
there are no genuine disputes of material fact.

                                          2
