                                                                            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                           NOT FOR PUBLICATION                               FEB 13 2015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

CHARLES V. McCLAIN, III, pro se, and             No. 12-35536
all others similarly situated,
                                                 D.C. No. 2:07-cv-00567-RSM
              Plaintiff - Appellant,

  v.                                             MEMORANDUM AND ORDER*

INTERNATIONAL ASSOCIATION OF
MACHINISTS AND AEROSPACE
WORKERS AFL-CIO, DISTRICT 751,

              Defendants - Appellees.



CHARLES V. McCLAIN, III, and all                 No. 12-35641
others similarly situated,
                                                 D.C. No. 2:08-cv-00613-RSM
              Plaintiff - Appellant,

  v.

BOEING COMPANY, a foreign
corporation, et al.,

              Defendants - Appellees.


                   Appeals from the United States District Court
                     for the Western District of Washington

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                   Ricardo S. Martinez, District Judge, Presiding

                            Submitted January 13, 2015**

Before:        LEAVY, GRABER, and OWENS, Circuit Judges.

      In these consolidated appeals, Charles V. McClain, III, appeals pro se from

the district court’s judgments in his two employment actions arising from his

termination by the Boeing Company and his representation by the International

Association of Machinists and Aerospace Workers AFL-CIO, District 751. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo questions of

preemption, Cramer v. Consol. Freightways Inc., 255 F.3d 683, 689 (9th Cir.

2001) (en banc), summary judgment, Braunling v. Countrywide Home Loans Inc.,

220 F.3d 1154, 1156 (9th Cir. 2000), and claim preclusion, Cabrera v. City of

Huntington Park, 159 F.3d 374, 381 (9th Cir. 1998) (per curiam). We review for

abuse of discretion the application of local rules. Hilton v. Pac. Enters., 5 F.3d

391, 395 (9th Cir. 1993). We affirm both appeals.

      Appeal No. 12-35536

       The district court properly granted summary judgment on McClain’s

disability claim under the Washington Law Against Discrimination (“WLAD”)

          **
             The panel unanimously concludes these cases are suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Accordingly, McClain’s
request for oral argument is denied.

                                           2                                    12-35536
because McClain failed to raise a genuine dispute of material fact as to whether he

is disabled. See Hale v. Wellpinit Sch. Dist. No. 49, 198 P.3d 1021, 1024-25

(Wash. 2009) (during relevant time period, WLAD used definition of “disability”

found in the Americans with Disabilities Act (“ADA”)); see also Braunling, 220

F.3d at 1157 (“Under the ADA, an employee is disabled if . . . [his] physical or

mental impairment substantially limits one or more of the major life activities.”).

      The district court properly granted summary judgment on McClain’s

remaining state law claims because McClain failed to raise a genuine dispute of

material fact as to preemption by section 301 of the Labor Management Relations

Act or the federal statutory duty of fair representation. See Adkins v. Mireles, 526

F.3d 531, 539-40 (9th Cir. 2008) (section 301 preempts state law claims that are

“substantially dependent upon analysis of the terms of an agreement made between

the parties in a labor contract” (internal quotation marks omitted), and the federal

statutory duty of fair representation preempts state law claims derived from the

union’s status as its members’ exclusive bargaining representative).

      McClain’s contention that the district court lacked jurisdiction to deny

McClain’s motion to enforce a purported settlement agreement is unpersuasive and

not supported by the record. See City Equities Anaheim, Ltd. v. Lincoln Plaza Dev.

Co. (In re City Equities Anaheim, Ltd.), 22 F.3d 954, 957 (9th Cir. 1994) (district


                                           3                                     12-35536
court has inherent power to enforce a settlement agreement in a pending action).

      We do not consider McClain’s arguments and allegations raised for the first

time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per

curiam).

      Appeal No. 12-35641

      The district court properly dismissed McClain’s state law claims because

McClain raised, or could have raised, these claims in his prior action that involved

nearly identical defendants; the earlier action was decided on the merits. See

Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (“Res

judicata, also known as claim preclusion, bars litigation in a subsequent action of

any claims that were raised or could have been raised in the prior action.” (internal

quotation marks omitted)).

      The district court did not abuse its discretion by denying McClain’s motion

for reconsideration because McClain failed to establish a basis for such relief. See

W.D. Wash. R. 7(h)(1) (setting forth grounds for reconsideration); see also Sch.

Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir. 1993) (standard of

review and grounds for reconsideration under Fed. R. Civ. P. 59(e)).

      The district court did not abuse its discretion by declining to refer McClain’s

second recusal motion to the chief judge. Even assuming that the denial violated


                                          4                                      12-35536
Local General Rule 8(c), as McClain argues, violation of a local rule does not

warrant reversal unless it affects substantial rights. Alliance of Nonprofits for Ins.,

Risk Retention Grp. v. Kipper, 712 F.3d 1316, 1327-28 (9th Cir. 2013). Any

violation did not affect McClain’s substantial rights because the chief judge had

already rejected McClain’s first round of recusal motions, and because McClain’s

affidavit failed to present a legally sufficient ground for recusal under 28 U.S.C.

§ 144. See W.D. Wash. Gen. R. 8(c) (requiring referral to chief judge of motions

for “alleged bias or prejudice . . . filed pursuant to 28 U.S.C. § 144”); Toth v. Trans

World Airlines, Inc., 862 F.2d 1381, 1388 (9th Cir. 1988) (recusal not required

under § 144 where the affidavit does not allege bias or prejudice that stems from an

extrajudicial source).

      AFFIRMED.




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