                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 22 2010

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




                            FOR THE NINTH CIRCUIT



RODNEY PETZAK,                                   No. 09-15926

              Plaintiff - Appellant,             D.C. No. 3:06-cv-00343-ECR-
                                                 VPC
  v.

STATE OF NEVADA EX REL.                          MEMORANDUM *
DEPARTMENT OF CORRECTIONS;
ALYS DOBEL, an individual,

              Defendants - Appellees.



                  Appeal from the United States District Court
                           for the District of Nevada
              Edward C. Reed, United States District Judge, Presiding

                             Submitted June 18, 2010 **
                              San Francisco, California

Before: RIPPLE, Senior Circuit Judge,*** RYMER and FISHER, Circuit Judges.




        *
             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 Kenneth F. Ripple, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.
      Rodney Petzak appeals the district court’s grant of summary judgment in

favor of Alys Dobel on the grounds of qualified immunity and the court’s refusal

to reconsider its decision that Petzak abandoned his Rehabilitation Act claim. We

affirm.

                                           I

      Under Pearson v. Callahan, 129 S. Ct. 808, 821 (2009), we may begin the

qualified immunity analysis by considering whether there is a violation of clearly

established law without determining whether a constitutional violation occurred.

Turning to this prong, we conclude that application of the regulation did not violate

clearly established law. Cf., e.g., Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 314-

16 (1976) (upholding a Massachusetts law that required state police officers to

retire at age fifty); Vance v. Bradley, 440 U.S. 93, 108 (1979) (upholding federal

statute requiring Foreign Service officers to retire at age 60); Gregory v. Ashcroft,

501 U.S. 452, 473 (1991) (upholding provision in a state constitution requiring

judges to retire at age 70). As a result, it would not “be clear to a reasonable

officer that h[er] conduct was unlawful in the situation [s]he confronted.” Saucier

v. Katz, 533 U.S. 194, 202 (2001), overruled in part by Pearson, 129 S. Ct. at 813.

Dobel is, accordingly, entitled to qualified immunity.




                                           2
                                           II

      Petzak failed to contest the state’s assertion during summary judgment

proceedings that he had abandoned his Rehabilitation Act claim. Instead, he

sought to present evidence that he had in his possession since before the complaint

was filed on a motion to reconsider. That he had not used the evidence before does

not mean that it was “newly discovered” for purposes of reconsideration. Shalit v.

Coppe, 182 F.3d 1124, 1132 (9th Cir. 1999). Reconsideration is only appropriate

“if the district court (1) is presented with newly discovered evidence, (2)

committed clear error or the initial decision was manifestly unjust, or (3) if there is

an intervening change in controlling law.” Sch. Dist. No. 1J v. ACandS, Inc., 5

F.3d 1255, 1263 (9th Cir. 1993). There is no dispute the last two conditions were

not met. Consequently, the district court did not abuse its discretion in declining to

grant Petzak’s motion based on his proffer.

      We decline to consider whether Petzak’s motion should have been treated as

a Rule 15 motion under the Federal Rules of Civil Procedure, because this issue

was raised for the first time in reply. Eberle v. City of Anaheim, 901 F.2d 814,

817-18 (9th Cir. 1990).

      AFFIRMED.




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