                                                                             FILED
                            NOT FOR PUBLICATION                               FEB 13 2015

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



                            FOR THE NINTH CIRCUIT


ROBERT DIRAFFAEL,                                 No. 12-57200

              Plaintiff - Appellant,              D.C. No. 2:10-cv-07240-DDP-
                                                  VBK
  v.

CALIFORNIA MILITARY                               MEMORANDUM*
DEPARTMENT; et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                    Dean D. Pregerson, District Judge, Presiding

                           Submitted February 10, 2015**
                               Pasadena California

Before: CALLAHAN, WATFORD, and OWENS, Circuit Judges.

       Robert DiRaffael appeals the district court’s denial of his motions under

Federal Rules of Civil Procedure 60(b) and 59(e), which challenged the dismissal

of his complaint for lack of subject matter jurisdiction due to failure to exhaust

        *
             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).
administrative remedies. DiRaffael’s complaint sought “due process” after he

tested positive for illegal drug use and the California Military Department initiated

involuntary separation proceedings against him. Because the parties are familiar

with the facts and procedural history, we do not restate them except as necessary to

explain our decision. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

         1.   An appeal is moot if we can no longer grant effective relief. See, e.g.,

Sandidge v. Washingon, 813 F.2d 1025, 1025–26 (9th Cir. 1987) (citation

omitted). DiRaffael’s claims are based in part on the California Military Board’s

initiation of involuntary separation proceedings. After DiRaffael filed his petition,

the Withdrawal of Federal Recognition Board (“WOFR Board”) determined that

there was insufficient evidence that he had illegally used a drug and determined

that DiRaffael had not “engaged in moral or professional dereliction.” DiRaffael

was thus retained as a member of the California Army National Guard and his

federal recognition was not withdrawn. As DiRaffael prevailed at the WOFR

Board hearing, his claims based on the initiation of separation proceedings are

moot.1



         1
       Appellees’ Motion for Judicial Notice filed October 28, 2013 is
GRANTED. Any claims DiRaffael may have based on the National Guard’s later
determination not to retain DiRaffael pursuant to its selective retention program are
not before us on this appeal.
                                           2
      2.     To the extent DiRaffael’s claims are not moot, we affirm the district

court’s determinations.2 The district court did not abuse its discretion in denying

DiRaffael’s motion for relief under Rules 60(b)(3) and 60(b)(4). See Lemoge v.

United States, 587 F.3d 1188, 1191–92 (9th Cir. 2009). Under Rule 60(b)(3), the

movant must show by clear and convincing evidence that the verdict was obtained

through fraud, misrepresentation, or other misconduct. Jones v. Aero/Chem Corp.,

921 F.2d 875, 878–79 (9th Cir. 1990). The district court did not abuse its

discretion in finding no fraud, misrepresentation, or other misconduct by the

Appellees.

      Under Rule 60(b)(4), a judgment may be set aside as void for lack of

jurisdiction generally “only for the exceptional case in which the court that

rendered judgment lacked even an ‘arguable basis’ for jurisdiction.” United

Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 271 (2010). The judgment was

not void under Rule 60(b)(4) for lack of jurisdiction. At the time the case was

removed, Appellee Kight was a member of both the California National Guard and

National Guard of the United States and Kight alleged, and the district court found,



      2
        It is not entirely clear what remedies DiRaffael sought at the district court
aside from terminating the separation proceedings. We express no opinion as to
whether any other remedies might have been available had he prevailed at the
district court.
                                           3
that the claim was made against her “on account of an act done under color of [her]

office or status.” Thus there was an arguable basis for jurisdiction under 28 U.S.C.

§ 1442a. The fact that the district court determined that dismissal was proper due

to DiRaffael’s failure to exhaust administrative remedies did not divest the district

court of removal jurisdiction under 28 U.S.C. § 1442a.

      The district court also did not abuse its discretion in denying DiRaffael’s

motion for relief under Federal Rule of Civil Procedure 59(e). See Zimmerman v.

City of Oakland, 255 F.3d 734, 737 (9th Cir. 2001). Amendment of a judgment is

appropriate under Rule 59(e) if “(1) the district court is presented with newly

discovered evidence, (2) the district court committed clear error or made an initial

decision that was manifestly unjust, or (3) there is an intervening change in

controlling law.” Id. at 740. There was no newly discovered evidence, clear error,

or intervening change in controlling law which would have mandated relief under

Rule 59(e).

      AFFIRMED.




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