                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                           FOR THE NINTH CIRCUIT                           JUN 05 2017
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


AARON HAHN,                                      No. 15-35091

              Plaintiff - Appellant,             D.C. No. CV-14-5047-RJB

 v.
                                                 MEMORANDUM*
DOUG WADDINGTON et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Western District of Washington
                     Robert J. Bryan, District Judge, Presiding

                        Argued and Submitted May 11, 2017
                               Pasadena, California

Before: O’SCANNLAIN and OWENS, Circuit Judges and CHRISTENSEN,**
Chief District Judge.

      Plaintiff Aaron Hahn appeals from the district court’s dismissal of his 42

U.S.C. § 1983 claim. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Dana L. Christensen, Chief District Judge for the U.S.
District Court for the District of Montana, sitting by designation.
reverse and remand. As the parties are familiar with the facts, we do not recount

them here.

      The district court erred when it dismissed Hahn’s § 1983 claim as untimely

as a matter of law. Although the complaint was filed over three years after Hahn’s

alleged injury, see Wash. Rev. Code § 4.16.080(2) (2015), Washington law

mandates equitable tolling when, as here, “justice requires.” See Millay v. Cam,

955 P.2d 791, 797 (Wash. 1998) (en banc); see also In re Pers. Restraint of Carter,

263 P.3d 1241, 1248–49 (Wash. 2011) (en banc) (adopting the actual innocence

doctrine). Hahn’s complaint was untimely through no fault of his own. Hahn

timely and appropriately filed in the Eastern District of Washington; after the

Eastern District dismissed Hahn’s claims against residents of the district, that court

erred by dismissing instead of transferring venue to the Western District of

Washington, where the sole remaining defendants resided. See Goldlawr, Inc. v.

Heiman, 369 U.S. 463, 466–67 (1962); see also Burnett v. N.Y. Cent. R.R. Co., 380

U.S. 424, 430 n.7 (1965). By the time Hahn received notice of the dismissal, the

statute of limitations had expired.

      Under the particular circumstances of this case, equitable tolling is

consistent with the policies underlying § 1983, and it is not inconsistent with those

served by Washington’s statute of limitations. See Millay, 955 P.2d at 797 (“In


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Washington equitable tolling is appropriate when consistent with both the purpose

of the statute providing the cause of action and the purpose of the statute of

limitations.”). Strict adherence to the statute of limitations in the face of

procedural unfairness cannot be reconciled with § 1983, which exists to promote

“compensation of persons whose civil rights have been violated, and prevention of

the abuse of state power.” Burnett v. Grattan, 468 U.S. 42, 53 (1984); see also Bd.

of Regents of Univ. of N.Y. v. Tomanio, 446 U.S. 478, 488 (1980). Moreover, the

purposes underlying the statute of limitations—finality and protection against stale

and unverifiable claims—will not be frustrated by allowing equitable tolling here.

See Kittinger v. Boeing Co., 585 P.2d 812, 814 (Wash. Ct. App. 1978). The

defendants were aware of Hahn’s claim within the statutory time frame, when

Hahn first filed in the Eastern District of Washington. Under Washington law,

justice requires tolling, but the remedy is modest—Hahn will simply be placed in

the position he would have been in had the Eastern District appropriately

transferred his claim.

      Thus, Hahn is entitled to equitable tolling under Washington law only if he

was diligent in pursuing this action in the Western District of Washington after

dismissal. See, e.g., Millay, 955 P.2d at 797–98; Douchette v. Bethel Sch. Dist. No.

403, 818 P.2d 1362, 1365 (Wash. 1991) (en banc). A dispute of fact remains as to


                                           -3-
Hahn’s diligence, which cannot be resolved on appeal. See Spitsyn v. Moore, 345

F.3d 796, 802 (9th Cir. 2003). The issue of Hahn’s diligence, along with

Defendants’ other arguments in favor of dismissal, can appropriately be resolved

by the district court on remand.

      REVERSED AND REMANDED.




                                        -4-
Hahn v. Waddington, No. 15-35091                                         FILED
      O’SCANNLAIN, Circuit Judge, dissenting:                              JUN 5 2017
                                                                      MOLLY C. DWYER, CLERK
      I respectfully dissent from the memorandum disposition becauseU.S.I disagree
                                                                          COURT OF APPEALS



with its characterization of Washington law.

                                          I

      The majority asserts that “Washington law mandates equitable tolling when,

as here, ‘justice requires.’” Majority at 2. However, Washington’s highest court

has repeatedly emphasized that “equitable tolling is allowed when justice requires

and when the predicates for equitable tolling are met. The predicates . . . [are] bad

faith, deception, or false assurances by the defendant and the exercise of diligence

by the plaintiff.” In re Bonds, 165 Wash. 2d 135, 141 (2008) (en banc) (emphasis

added); see also In re Haghighi, 178 Wash. 2d 435, 447 (2013) (en banc)

(“[T]raditionally we have allowed equitable tolling when justice requires its

application and when the predicates of bad faith, deception, or false assurances

are met, and where the petitioner has exercised diligence in pursuing his or her

rights.”) (emphasis added); Douchette v. Bethel School Dist. No. 403, 117 Wash.

2d 805, 812 (1991) (en banc) (“In the absence of bad faith on the part of the

defendant and reasonable diligence on the part of the plaintiff, equity cannot be

invoked.”) (emphasis added).
        Washington precedent may be read to leave open the possibility that bad

faith, deception, or false assurances by a third party—as opposed to by

defendants—might satisfy the predicate rule. Specifically, in In re Bonds, the

court characterizes the predicate rule as “mak[ing] equitable tolling available only

in instances where petitioner missed the filing deadline due to another’s

malfeasance.” Id. (emphasis added). Nevertheless, it remains clear that bad faith

rather than mere negligence is necessary for equitably tolling to apply.

                                           II

        Hahn raises no allegation that the Eastern District of Washington acted

maliciously or in bad faith when it dismissed his claims against certain defendants

for improper venue. Rather, he asserts that the court acted in error. Such does not

constitute adequate grounds for equitable tolling under Washington’s predicate

rule.

                                          III

        “[F]ailure to comply with the [Washington] statute of limitations, therefore,

preclude[s] maintenance of this action . . . [because Washington’s] tolling rule is

[not] ‘inconsistent’ with the policies underlying § 1983.” Bd. of Regents of Univ.

of N.Y. v. Tomanio, 446 U.S. 478, 487 (1980).

        Like the New York tolling rule at issue in Tomanio, Washington’s rule is

motivated by “policies of repose [which] cannot be said to be disfavored in federal

                                           2
law.” Id. at 488. Furthermore, “[n]either [deterrence nor compensation, the

principal policies embodied in § 1983,] is significantly affected by this rule of

limitations since plaintiffs can still readily enforce their claims, thereby recovering

compensation and fostering deterrence, simply by [filing a direct appeal that

challenges a district court’s alleged error].” Id. See generally In re Hall,

Bayoutree Assoc., 939 F.2d 802, 805 (9th Cir. 1991) (“We review a determination

of whether to transfer or dismiss for abuse of discretion.”). Hahn opted not to take

advantage of such opportunity to recover compensation and foster deterrence by

filing an appeal, but it was readily available to him nonetheless.

                                          IV

      Because I see no reason to displace a longstanding state rule in favor of an

ad hoc federal one, I would affirm the judgment of the district court.




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