                                                                             FILED
                            NOT FOR PUBLICATION                               OCT 21 2010

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




                            FOR THE NINTH CIRCUIT



KEVIN MURRAY,                                    No. 06-15847

              Plaintiff - Appellant,             D.C. No. CV-05-03633-MJJ

       v.
                                                 MEMORANDUM *
ALASKA AIRLINES, INC.,

              Defendant - Appellee.

                    Appeal from the United States District Court
                      for the Northern District of California
                    Martin J. Jenkins, District Judge, Presiding

                       Argued and Submitted March 13, 2008
                             San Francisco, California
                       Submission Withdrawn April 10, 2008
                          Resubmitted October 19, 2010

Before: REINHARDT, McKEOWN and FISHER, Circuit Judges.

      Kevin Murray appeals from the district court’s entry of summary judgment

in favor of Alaska Airlines, Inc. (“Alaska”). Murray alleges that he was

wrongfully terminated and retaliated against for whistleblowing against his

employer, in violation of the public policy of California. See Cal. Labor Code


        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
§ 1102.5(b). The district court granted summary judgment to Alaska based on

collateral estoppel. We affirm.

      After oral argument, we certified to the California Supreme Court the

question whether, as a matter of California law, issue-preclusive effect should be

given to a federal agency’s investigative findings, when the subsequent

administrative process provides the complainant the option of a formal

adjudicatory hearing to determine the contested issues de novo, as well as

subsequent judicial review of that determination, but the complainant elects not to

invoke his right to that additional process. See Murray v. Alaska Airlines, Inc., 522

F.3d 920, 920 (9th Cir. 2008) (order) (“Murray I”). The California Supreme Court

accepted the certified question for review and, in August 2010, issued an opinion

answering that question in the affirmative. See Murray v. Alaska Airlines, Inc.,

237 P.3d 565, 577 (Cal. 2010) (“Murray II”).

      The state supreme court’s determination of California law is binding on us

and is dispositive of this appeal. In response to Murray’s administrative complaint

under 49 U.S.C. § 42121, the Secretary of Labor found that Murray failed to

establish a causal nexus between his protected activity and an adverse employment

action. See Murray I, 522 F.3d at 921. Causation is an element of the claims

Murray asserts in this action. See Murray II, 237 P.3d at 569 n.4; Murray I, 522


                                          2
F.3d at 922-23 & n.2. Under Murray II, the Secretary of Labor’s finding on

causation is entitled to preclusive effect here. Murray thus cannot establish an

essential element of his claims. The judgment of the district court must therefore

be affirmed.

      In his supplemental brief, Murray argues that applying issue preclusion here

would deny him the constitutional right to a jury trial. Assuming this argument has

not been waived even though Murray failed to raise it earlier, see Devereaux v.

Abbey, 263 F.3d 1070, 1079 (9th Cir. 2001), Murray presents no legal authority to

support his argument. The decision on which he relies, United States v. Utah

Construction & Mining Co., 384 U.S. 394, 421-22 (1966), addresses federal

procedural law, not federal constitutional law. As a general matter, the Seventh

Amendment does not bar application of the collateral estoppel doctrine. See

Parklane Hosiery Co. v. Shore, 439 U.S. 322, 337 (1979). Murray has not offered

any authority for the proposition that this general rule does not apply here.

      AFFIRMED.




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