                                                                            FILED
                           NOT FOR PUBLICATION                              DEC 05 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT

TIMOTHY MCINTYRE,                              No. 12-15452

             Plaintiff - Appellant,            D.C. No. 3:09-cv-00581-RCJ-
                                               WGC
  v.

HOWARD SKOLNICK; MARY
CARTER; GREGORY SMITH; LYON                    MEMORANDUM*
COUNTY,

             Defendants - Appellees.


                  Appeal from the United States District Court
                            for the District of Nevada
                 Robert C. Jones, Chief District Judge, Presiding

                         Submitted November 6, 2013 **
                            San Francisco, California

Before: FLETCHER and NGUYEN, Circuit Judges, and DUFFY, District
Judge.****




*      This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36–3.
**     The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Kevin Thomas Duffy, United States District Judge for the
Southern District of New York, sitting by designation.
      Timothy McIntyre appeals the district court’s grant of summary judgment.

We review a grant of summary judgment de novo. Huppert v. City of Pittsburg,

574 F.3d 696, 701 (9th Cir. 2009). Because the issues in McIntyre’s First

Amendment retaliation claim are precluded by Hearing Officer Bill

Kockenmeister’s administrative determination, and because McIntyre has

abandoned his Due Process claim, we affirm.

      “Federal courts give the same preclusive effect to the decisions of state

administrative agencies as the state itself would, subject to the ‘minimum

procedural requirements’ of the Due Process Clause of the Fourteenth

Amendment.” Dias v. Elique, 436 F.3d 1125, 1128 (9th Cir. 2006) (quoting

Kremer v. Chem. Constr. Corp., 456 U.S. 461, 481–82 (1982)). Nevada gives

administrative determinations issue-preclusive effect, State ex rel. Univ. & Cmty.

Coll. Sys. v. Sutton, 103 P.3d 8, 16 (Nev. 2004), provided they satisfy four

requirements: “(1) the issue decided in the prior litigation must be identical to the

issue presented in the current action; (2) the initial ruling must have been on the

merits and have become final; [] (3) the party against whom the judgment is

asserted must have been a party or in privity with a party to the prior litigation; and

(4) the issue was actually and necessarily litigated.” Five Star Capital Corp. v.

Ruby, 194 P.3d 709, 713 (Nev. 2008) (footnote and internal quotation mark

omitted).
      Kockenmeister’s determination satisfies the latter three requirements without

controversy. His ruling was on the merits and is considered final under Nevada

law, see Dickinson v. Am. Med. Response, 186 P.3d 878, 882 (Nev. 2008);

McIntyre is the same party against whom judgment was rendered in both suits; and

the relevant issues were actually litigated.

      In addition, “the issue decided in the prior litigation [is] identical to the issue

presented in the current action.” Five Star Capital Corp., 194 P.3d at 713.

Kockenmeister determined that the substantial evidence failed to establish that

McIntyre was fired for exercising his First Amendment rights. If McIntyre lacked

substantial evidence that he was terminated for exercising his First Amendment

rights, he necessarily lacks proof under the higher preponderance of the evidence

standard. Dias is not controlling because here, unlike in Dias, the different

burdens of proof would not result in different outcomes for the administrative and

federal cases. See Dias, 436 F.3d at 1130.

      McIntyre did not brief his Due Process claim and has thus abandoned it. See

Paulsen v. CNF Inc., 559 F.3d 1061, 1075–76 (9th Cir. 2009).

      AFFIRMED.




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