Appeal from the United States District Court for the Central District of California. D.C. No. CV 90-2976 DT. Dickran Tevrizian, District Judge, Presiding
Before: Fletcher, Poole and Thompson, Circuit Judges.
Appellant James Bond Johnson appeals pro se the district court's adverse judgment in his diversity action. Johnson argues, inter alia, that the district court erred in granting appellee Thomas J. Kilcline's motion for a directed verdict. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm the judgment of the district court.
On June 16, 1988, Johnson, a clinical psychologist, was denied eligibility to practice under the guidelines promulgated by the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS), a program sponsored by the United States Department of Defense and intended to provide civilian health care to military dependents and retirees. Johnson's denial of eligibility was upheld in a False Claims Act, 31 U.S.C. § 3729 et seq., action brought against Johnson by the United States of America, United States of America v. James B. Johnson, et al., No. CV 86-2972 DT (C.D. Cal. May 27, 1987), in which the district court found that Johnson misrepresented his eligibility in claims submitted to CHAMPUS and was liable to the United States for receiving reimbursement based on those claims.*fn1
On February 6, 10 and 17, 1989, Johnson, as president of the Long Beach Chapter of the Retired Officers Association (ROA), sent letters to the Assistant Secretary of Defense for Health Affairs requesting retroactive amendments to CHAMPUS regulations governing clinical psychologists. On June 9, 1989, Kilcline, who was serving as the president of the ROA, sent Johnson a letter advising him to cease using his ROA status to continue his already-adjudicated dispute with CHAMPUS. A copy of this letter was also sent to Commander William J. Manes, president of the California Counsel of Chapters of the ROA, and Colonel Jimmy D. Helton, director of CHAMPUS. On June 8, 1990, Johnson brought suit against Kilcline, claiming that the June 9, 1989 letter constituted a defamation, injurious falsehood, invasion of privacy and interference with prospective economic advantage under California law.
Johnson's suit against Kilcline came to trial in the United States District Court for the Central District of California on June 19, 1991. On June 20, 1991, the district court granted Kilcline's motion for a directed verdict pursuant to Federal Rule of Civil Procedure 50(a). The district court found, inter alia, that the contents of the June 9, 1989 letter were true and that Johnson presented no evidence of damages. As a result, the court entered judgment against Johnson on July 8, 1991.
Johnson now appeals to this court.
Johnson raises several issues for the first time on appeal. We will only consider such issues if (1) the issue was not raised in the district court due to exceptional circumstances, (2) the issue arises during the pendency of the appeal, or (3) the issue is purely legal and the opposing party will suffer no prejudice as a result of the failure to raise it in the trial court. See United States v. Carlson, 900 F.2d 1346, 1349 (9th Cir. 1990). None of these exceptions justifies our consideration of the issues Johnson raises for the first time on appeal, and we therefore refuse to consider them.
The only issue which Johnson raises that was considered below is the district court's granting of Kilcline's motion for a directed verdict pursuant to Federal Rule of Civil Procedure 50(a). At the time of the district court's ruling,*fn2 this rule provided that
A party who moves for a directed verdict at the close of evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict is not a waiver of trial by jury even though all parties move for directed verdicts. A motion for directed verdict shall state the specific grounds therefor. The order granting a motion for a directed verdict is effective without any assent of the jury.
A district court's grant of a directed verdict is reviewed de novo. Moore v. IBEW Local Union 569, No. 90-55557, slip op. at 3061 (9th Cir. Apr. 1, 1993) (citing In Re Hawaii Federal Asbestos Cases, 960 F.2d 806, 816 (9th Cir. 1992)). The court determines whether the evidence is such that there can be only one reasonable Conclusion therefrom. See Moore, slip. op. at 3061 (quoting McGonigle v. Combs, 968 F.2d 810, 816 ...