                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 18 2010

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




                            FOR THE NINTH CIRCUIT



PHILLIX SINCLAIR; et al.,                        No. 07-56823

              Plaintiffs - Appellants,           D.C. No. CV-03-05741-CAS

  v.
                                                 MEMORANDUM *
CITY OF NEEDLES; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Central District of California
                    Christina A. Snyder, District Judge, Presiding

                      Argued and Submitted February 3, 2010
                               Pasadena, California

Before: SCHROEDER, FISHER, and N.R. SMITH, Circuit Judges.

       Phillix Sinclair, Bupendra Patel, and Radha Hotels, Inc. (collectively

“Appellants”), appeal summary judgment on their procedural due process claims

related to conditional use permit (“CUP”) hearings, issuance of jury instructions




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
concerning adjudicator bias, and denial of Appellants’ post-trial motions. We

affirm.

      The City did not provide individualized notice of the original CUP hearings,

but its repeated offers to put the matter back on the City Council agenda provided

constitutionally adequate procedural protections.1 Reopening of the hearing would

have afforded Appellants a meaningful “opportunity to be heard.” Ford v.

Wainwright, 477 U.S. 399, 413 (1986) (internal quotation marks and citations

omitted). Appellants concede that they received notice of the revocation hearing,

and their due process rights were unaffected by the failure to provide notice to

others potentially interested in the hearing.

      The jury instruction that Appellants could demonstrate an appearance of bias

through “evidence of a decision-maker’s financial or personal interest in the

outcome” addressed the breadth of Appellants’ bias allegations as well as the range

of circumstances in which implied bias violates due process. See Peters v. Kiff,

407 U.S. 493, 502 (1972). Read as a whole, the jury instructions concerning

adjudicator bias were neither misleading nor inadequate. See United States v.

Frega, 179 F.3d 793, 807 n.16 (9th Cir. 1999).


      1
         The district court properly considered evidence submitted alongside the
City’s reply brief, as it did not deny Appellants an opportunity to respond. See
Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 979 n.1 (9th Cir. 2006).

                                      Page 2 of 4
      Murch and Bradshaw testified that they were not actually biased, and they or

their relatives’ involvement in the investigatory process does not overcome the

presumption of honesty and integrity. See Withrow v. Larkin, 421 U.S. 35, 46–47

(1975). Therefore, there is legally sufficient evidence to sustain the jury’s verdict

on Appellants’ due process claim, see Reeves v. Sanderson Plumbing Prods., Inc.,

530 U.S. 133, 149 (2000), and the evidence does not weigh heavily against the

verdict, see United States v. Chen, 754 F.2d 817, 821 (9th Cir. 1985).

      The revocation of Appellants’ CUP triggered notice and other due process

requirements, which the Appellants were provided. The revocation of a CUP,

however, does not necessarily constitute a taking, and, in this instance, the

revocation of Appellants’ CUP according to its terms did not constitute a taking.

Cf. Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S.

Cal., 508 U.S. 602, 641 (1993) (“Given that [the petitioner’s] due process

arguments are unavailing, it would be surprising indeed to discover [that] the

challenged statute nonetheless violat[ed] the Takings Clause.”). Moreover, to the

extent that Appellants argue that the City committed a taking by over-enforcing its

ordinances against Appellants in order to force Appellants to sell their property (or

to diminish the value of the property), the district court did not abuse its discretion




                                      Page 3 of 4
by finding that the weight of the evidence supported a verdict against liability.




AFFIRMED.




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