                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 16 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DUANE H. GARVAIS,                                No. 10-35369

              Plaintiff - Appellee,              D.C. No. 2:03-cv-00290-JLQ

  v.
                                                 MEMORANDUM *
UNITED STATES OF AMERICA,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Eastern District of Washington
              Justin L. Quackenbush, Senior District Judge, Presiding

                       Argued and Submitted March 11, 2011
                               Seattle, Washington

Before: FISHER, GOULD, and TALLMAN, Circuit Judges.

       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



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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, 84

P.3d 245, 248 (Wash. 2004). We affirm.1

      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 district court’s decision on this issue is not

clearly erroneous.

      The district court correctly concluded that Garvais’s successful federal

habeas petition, on the basis that he was a non-Indian defendant, satisfied the

abandonment prong of a malicious prosecution claim. See Restatement (Second) of

Torts §§ 659(c), 660, 661; see also Peasley v. Puget Sound Tug & Barge Co., 125



      1
        Because the parties are familiar with the facts, we repeat them here only as
necessary to explain our decision.

                                           2
P.2d 681, 687–88 (Wash. 1942) (stating requirements of malicious prosecution

claim). This result also aligns with the Indian Civil Rights Act, 25 U.S.C. § 1303,

which authorizes the use of the Great Writ to contest tribal court proceedings.

      Finally, under Washington law, in a malicious prosecution claim the

subjective views of the prosecutors that probable cause existed “merely constitute

evidence which could be considered” along with all other evidence the district court

heard to determine whether a “reasonable person” would believe probable cause

existed. Bender v. City of Seattle, 664 P.2d 492, 502 (Wash. 1983); see also

Peasley, 125 P.2d at 692. Thus, the determination that probable cause was lacking

in a malicious prosecution claim is a primarily factual inquiry reviewed for clear

error. See Bender, 664 P.2d at 502; see also McConney, 728 F.2d at 1202.

      This too was a close question. But because the record as a whole supports

the district court’s conclusion that probable cause did not exist, we cannot declare it

clear error. The United States did not challenge the factual finding that the case

agent acted with malice. Accordingly, the record also supports the district court’s

determination that the BIA acted in bad faith. In the face of that determination, the

Government’s argument that it acted in good faith, and that probable cause is

therefore established as a matter of law, fails. See Bender, 664 P.2d at 500




                                           3
(explaining that full and fair disclosure made in good faith is a complete defense in

a malicious prosecution action).

      AFFIRMED.




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