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Wannamaker v. Mabus

United States District Court, D. Idaho

June 6, 2018

ERIC EDGECOMB WANNAMAKER, Plaintiff/Appellant,
v.
RAYMOND E. MABUS, Jr. and UNITED STATES NAVY, Defendants/Appellees.

          ORDER

          HONORABLE CANDY W. DALE UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is Plaintiff Eric Wannamaker's motion for transcript payment determination, brought pursuant to Ninth Circuit Rule 10-3.1(f). Wannamaker seeks a determination that Appellees (hereinafter referred to as Mabus) should be responsible for ordering and paying for the transcript on appeal, because Wannamaker deems the transcript unnecessary. Mabus contends that Wannamaker has not established that the hearing transcript is unnecessary to his appeal, and the Court should therefore order Wannamaker to pay the costs for the transcript. Wannamaker disagrees, contending that the hearing did not include witness testimony, and the issues on appeal are legal in nature, rendering only the administrative record and the Court's memorandum decision and order necessary for adjudication of the appeal.

         BACKGROUND

         Wannamaker sought review by the Court of the Secretary of the Navy's denial of Wannamaker's request to convene a special selection board to reconsider him for promotion to the rank of Lieutenant Commander in the United States Navy Judge Advocate General Corps. The Court's review of the Secretary's determination was limited by 10 U.S.C. § 628(g) to review of the agency action. The Secretary submitted the administrative record for the Court's review, and the parties filed cross-motions for summary judgment. Wannamaker requested also to supplement the record.

         The Court conducted a hearing on February 6, 2018, at which both parties appeared and presented oral argument on their motions.[1] The Court took an active role in the process, with questions asked of both Wannamaker, who appeared pro se, and counsel for Mabus.

         On February 15, 2018, the Court issued its memorandum decision and order: (1) denying Wannamaker 's motion to supplement the record; (2) denying Wannamaker 's motion for summary judgment; and (3) granting Mabus's motion for summary judgment. (Dkt. 38.) The Court also entered judgment for Mabus. (Dkt. 39.)

         On April 5, 2018, Wannamaker filed a Notice of Appeal and Certification that No. Transcript Will Be Ordered. (Dkt. 40.) On April 10, 2018, Appellees' counsel requested that, pursuant to Circuit Rule 10-3.1(a), Wannamaker provide Mabus with a statement of the issues that Wannamaker intends to raise on appeal. (Schaefer Decl. at ¶ 3 & Ex. A.) Wannamaker indicated that the mediation questionnaire he filed with the Ninth Circuit adequately provided such a statement. (Id. at ¶¶ 3-4.)

         On April 11, 2018, pursuant to Circuit Rule 10-3.1(b), Mabus: (1) notified Wannamaker that Defendants deem the Hearing Transcript necessary to Wannamaker 's appeal; and (2) requested that Wannamaker order the Hearing Transcript. (Id. at Ex. C.)

         On April 16, 2018, Wannamaker filed a Circuit Rule 10-3.1(f) Certification that Transcripts Are Unnecessary to his appeal. (Dkt. 43.)

         On May 1, 2018, Wannamaker filed a Motion for Transcript Payment Determination under Circuit Rule 10-3.1(f), requesting that the cost of the Hearing Transcript be the sole responsibility of Appellees. (Dkt. 44.)

         Because this matter was decided based upon the administrative record and the parties' cross motions for summary judgment, the only transcript for consideration on appeal is the hearing transcript of oral argument on the motions.

         DISPOSITION

         1. Circuit Rule 10-3.1

         Ninth Circuit Rule 10-3.1 provides that, absent agreement by the parties or appellant's intent to order the entire transcript, the appellant must serve the appellee with a notice specifying which portions of the transcript appellant intends to order, together with a statement of the issues appellant intends to present on appeal. In the alternative, “appellant shall serve on appellee a statement indicating that appellant does not intend to order any transcripts.” Circuit Rule. 10-3.1(a). Appellee may then respond to the appellant's initial notice by serving on appellant a list of any additional portions of the transcript that appellee deems ...


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