FILED NOT FOR PUBLICATION MAR 17 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT RANDOLPH PETERSON, qui tam as No. 20-35004 Relator; TRI-CITY RAILROAD COMPANY LLC, a Washington limited D.C. No. 2:17-cv-00191-TOR liability company; as a Washington corporation and as relator, MEMORANDUM* Plaintiffs-Appellants, and UNITED STATES OF AMERICA, Plaintiff, v. PORT OF BENTON COUNTY, a Washington State Municipal Entity; SCOTT KELLER, individually and as Executive Director of Port of Benton, PETER ROGALSKY, individually and as Public Works Director of the City of Richland; CITY OF RICHLAND, a Washington State Municipal entity, Defendants - Appellees, and * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ROBERT LARSON, individually and as Commissioner of Port of Benton; ROY KECK, individually and as Commissioner of Port of Benton; JANE HAGERTY, individually and as Commissioner of the Port of Benton, Defendants. Appeal from the United States District Court for the Eastern District of Washington Thomas O. Rice, District Judge, Presiding Argued and Submitted March 2, 2021 Seattle, Washington Before: RAWLINSON and BYBEE, Circuit Judges, and MOSKOWITZ,** District Judge. This case arises from an action filed by Plaintiffs-Appellants Tri-City Railroad Company, LLC (TCRY), and Randolph Peterson, TCRY’s president (collectively Plaintiffs), against Defendant-Appellee Port of Benton (Port) and Defendant-Appellee City of Richland (Richland). Plaintiffs pursued claims pursuant to 42 U.S.C. § 1983 for violations of the First Amendment against both Defendants. Plaintiffs also filed an action against Port under the False Claims Act (FCA), and a tortious interference claim against Richland. Plaintiffs appeal the grant of summary judgment in favor of Defendants and the award of attorney’s ** The Honorable Barry Ted Moskowitz, United States District Judge for the Southern District of California, sitting by designation. 2 fees to Port under the FCA. Reviewing the grant of summary judgment de novo and the award of attorney’s fees for an abuse of discretion, we affirm. See Cates v. Stroud, 976 F.3d 972, 978 (9th Cir. 2020) (summary judgment); see also Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1063 (9th Cir. 2011) (attorney’s fees). 1. Plaintiffs failed to raise a material issue of fact on their § 1983 claim against Richland alleging retaliation for exercising First Amendment rights. See Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 753 (9th Cir. 2001), as amended (requiring the existence of “a genuine issue of material fact” to avoid summary judgment). Plaintiffs proffered no persuasive evidence that termination of TCRY’s agreement was motivated by the filing of the Surface Transportation Board (STB) action. See Sampson v. Cnty. of Los Angeles by & through Los Angeles Cty. Dep’t of Child. & Family Servs., 974 F.3d 1012, 1019 (9th Cir. 2020) (requiring a showing of “retaliatory animus”) (citation and internal quotation marks omitted). Timing alone did not establish the requisite connection because the complained-of conduct took place over two years after TCRY petitioned the STB. See …
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