                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                             JUL 18 2016
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
DONALD J. LOEN,                                  No.   14-35135

              Plaintiff-Appellant,               DC No. CV 13-00117 TSZ

 v.
                                                 MEMORANDUM*
SNOHOMISH COUNTY; SNOHOMISH
COUNTY SHERIFF’S OFFICE; JOHN
LOVICK; SUSANNA JOHNSON, in their
individual and/or official capacities,

              Defendants-Appellees.


                    Appeal from the United States District Court
                      for the Western District of Washington
                     Thomas S. Zilly, District Judge, Presiding

                        Argued and Submitted July 6, 2016
                              Seattle, Washington

Before:       TASHIMA, McKEOWN, and M. SMITH, Circuit Judges.

      Donald Loen, a former police sergeant for the city of Snohomish, sued

Snohomish County, Snohomish County Sheriff’s Office, John Lovick, and

Susanna Johnson (collectively, the “County”) for defamation and other related


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
claims. The claims arose out of the County’s release of certain information

regarding Loen’s performance on two polygraph tests to the Ellensburg and

Kittitas police departments. Loen had applied to work at both police departments;

as part of his applications, Loen signed unilateral contracts authorizing the broad

release of information to facilitate a standard background investigation. The

district court granted summary judgment to the County on Loen’s defamation and

related claims. Loen appeals. We have jurisdiction under 28 U.S.C. § 1291, and

we affirm.

      1.     The releases that Loen signed are valid contracts. Loen argues that

the releases are not enforceable because they violate Washington public policy, but

the cases he cites concern liability for negligence, not defamation. As discussed

further below, Washington follows the Restatement of Torts in holding that an

individual may consent to an intentional tort. See, e.g., Morinaga v. Vue, 935 P.2d

637, 644 (Wash. Ct. App. 1997). Because Loen’s claim sounds in defamation,

rather than negligence, Washington public policy does not bar enforcement of a

contract consenting to the release of information.

      2.     Similarly, the releases are neither procedurally nor substantively

unconscionable. “Procedural unconscionability is ‘the lack of a meaningful choice,

considering all the circumstances surrounding the transaction including [t]he


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manner in which the contract was entered,’ whether the party had ‘a reasonable

opportunity to understand the terms of the contract,’ and whether ‘the important

terms [were] hidden in a maze of fine print.’” Adler v. Fred Lind Manor, 103 P.3d

773, 781 (Wash. 2004) (quoting Nelson v. McGoldrick, 896 P.2d 1258, 1262

(Wash. 1995)). The two releases were titled in large print and unambiguously

stated that a signature would waive liability for the release of information

regarding Loen’s background. The broad scope of the releases was clear from the

text, and there is no indication in the record that Loen did not have a reasonable

opportunity to ask clarifying questions before signing the forms. See Tjart v. Smith

Barney, Inc., 28 P.3d 823, 830 (Wash. Ct. App. 2001). As for substantive

unconscionability, a routine release permitting a prospective employer to access

information related to Loen’s fitness for employment is not “monstrously harsh” or

“exceedingly calloused.” Adler, 103 P.3d at 781. Rather, especially in the law

enforcement context, such a release may be necessary to enable prospective

employers to ensure that candidates are fit for the job. See Wash. Rev. Code §

4.24.730 (conferring qualified immunity to former or current employers who

disclose background information to prospective employers of law enforcement

officers).




                                           3
      3.     Washington follows the Restatement of Torts in recognizing consent

as a complete defense to a defamation claim. See Jolly v. Valley Pub. Co., 388

P.2d 139, 141 (Wash. 1964); Restatement (Second) of Torts § 583 (1977). In Cox

v. Nasche, 70 F.3d 1030 (9th Cir. 1995), we applied the Restatement approach to a

claim of defamation. Id. at 1031-32. Like the plaintiff in Cox, Loen signed

releases authorizing the recipient to share a broadly defined set of information with

the release’s holder. The information that the County provided regarding Loen’s

performance on the polygraph tests falls squarely within the scope of both releases.

Because Loen consented to publication of the polygraph results when he signed the

releases, the County’s disclosure of that information was absolutely privileged.

See id. at 1032. Loen’s defamation claim and related reputational claims against

the County fail.

      4.     Loen has also moved for certification to the Washington Supreme

Court. See Wash. Rev. Code § 2.60.020 (authorizing certification when “it is

necessary to ascertain” Washington law). Because, as described above,

Washington follows the Restatement approach to defamation, and state courts are

virtually unanimous in holding that a valid release is consent to defamation, giving

rise to an absolute privilege to the recipient of the release, see Cox, 70 F.3d at 1031




                                           4
(collecting cases), we perceive no need to certify any question to the Washington

Supreme Court.1

      AFFIRMED; certification DENIED.




      1
             Loen also did not seek certification in the district court until his
motion for reconsideration, after the district court had ruled against him. This is a
further reason disfavoring certification. See Thompson v. Paul, 547 F.3d 1055,
1065 (9th Cir. 2008).
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