R. ALEXANDER ACOSTA, Secretary of Labor, United States Department of Labor v. Sydney M. Oskoui, individually

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
R. ALEXANDER ACOSTA, Secretary of
Labor, United States Department of Labor,*
Plaintiff-Appellee,
v.
SYDNEY M. OSKOUI, individually and as
President of Sandpoint Gas N Go & Lube
Center, Inc.; et al.,
Defendants-Appellants.
No. 15-35778
D.C. No. 2:14-cv-00357-BLW
MEMORANDUM**
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief Judge, Presiding
Submitted June 26, 2017***
Before: PAEZ, BEA, and MURGUIA, Circuit Judges.
Sydney M. Oskoui and Sandpoint Gas N Go & Lube Center, Inc.
* R. Alexander Acosta has been substituted for his predecessor, Thomas
E. Perez, as Secretary of Labor under Fed. R. App. P. 43(c)(2).
** This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
*** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JUN 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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(“Sandpoint”) appeal pro se from the district court’s entry of default judgment
against them in this action alleging violations of the whistleblower provisions of
the Occupational Safety and Health Act (“OSHA”), 29 U.S.C. §§ 651-678. We
have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion the
district court’s entry of default. Speiser, Krause & Madole P.C. v. Ortiz, 271 F.3d
884, 886 (9th Cir. 2001). We affirm.
The district court did not abuse its discretion by ordering the Clerk to enter
default against Oskoui because Oskoui failed to serve a timely responsive pleading
or motion under Federal Rule of Civil Procedure 12(b). See Fed. R. Civ. P.
12(a)(1)(A)(i) (defendant must serve answer within 21 days after being served with
summons and complaint); Fed. R. Civ. P. 12(a)(4) (describing effect of Rule 12(b)
motion on time to serve a responsive pleading); Fed. R. Civ. P. 55(a) (authorizing
entry of default when defendant “has failed to plead or otherwise defend, and that
failure is shown by affidavit or otherwise”).
The district court properly denied Oskoui’s motions to dismiss for lack of
jurisdiction because counsel for the Secretary of Labor (“Secretary”) was
authorized to file and litigate this action. See 29 U.S.C. § 660(c)(2) (authorizing
Secretary to bring an action in district court for violations of OSHA’s retaliation
provisions); see also 5 U.S.C. § 302(b) (head of agency may delegate authority to
subordinate officials); 5 U.S.C. § 3106 (head of agency may employ counsel to

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conduct litigation “as authorized by law”); 29 U.S.C. § 663 (authorizing Solicitor
of Labor to “appear for and represent the Secretary in any civil litigation brought
under this chapter”); Chen v. Allstate Ins. Co., 819 F.3d 1136, 1141 (9th Cir. 2016)
(setting forth standard of review).
The district court did not abuse its discretion by denying Oskoui’s motion
for sanctions because the motion was based on the same meritless jurisdictional
arguments. See Avery Dennison Corp. v. Allendale Mut. Ins. Co., 310 F.3d 1114,
1117 (9th Cir. 2002) (setting forth standard of review).
The district court did not abuse its discretion or violate Oskoui’s right to due
process by deciding the motions to dismiss and for sanctions without holding a
hearing or setting forth its conclusions in its order. See Carpinteria Valley Farms,
Ltd. v. County of Santa Barbara, 344 F.3d 822, 832 n.6 (9th Cir. 2003) (rejecting
contention that district court violated due process by dismissing claims under
Federal Rule of Civil Procedure 12(b)(6) without oral argument); Spradlin v. Lear
Siegler Mgmt. Servs. Co., 926 F.2d 865, 867 (9th Cir. 1991) (setting forth standard
of review); see also Bright v. Bechtel Petrol., Inc., 780 F.2d 766, 772 (9th Cir.
1986) (“Rule 52(a) provides that findings of fact and conclusions of law are
unnecessary in decisions on motions.”).
The district court did not clearly abuse its discretion by denying with leave
to re-file Oskoui’s request for a continuance of the hearing on punitive damages

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because the district court determined reasonably that Oskoui had not provided
specific information about why the medical condition precluded his attendance at
the hearing. See Danjaq LLC v. Sony Corp., 263 F.3d 942, 961 (9th Cir. 2001)
(setting forth standard of review).
The district court did not err in failing to recuse itself sua sponte because
Oskoui failed to establish extrajudicial bias or prejudice. See 28 U.S.C. § 455;
Noli v. Comm’r, 860 F.2d 1521, 1527 (9th Cir. 1988) (“[I]f no motion is made to
the judge . . . a party will bear a greater burden on appeal in demonstrating that the
judge . . . [erred] in failing to grant recusal under section 455.” (alteration in
original, citation and internal quotation marks omitted)).
We dismiss Sandpoint’s appeal because no attorney has entered an
appearance in this court on behalf of Sandpoint, and Oskoui, a non-attorney, may
not represent Sandpoint. See United States v. High Country Broad. Co., 3 F.3d
1244, 1245 (9th Cir. 1993) (“A corporation may appear in federal court only
through licensed counsel.”); C.E. Pope Equity Trust v. United States, 818 F.2d 696,
697 (9th Cir. 1987) (“Although a non-attorney may appear in propria persona in his
own behalf, that privilege is personal to him. He has no authority to appear as an
attorney for others than himself.” (citations omitted)).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

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Oskoui’s “motion for extension of time or for leave to re-file excerpts of
record” (Docket Entry No. 13) is granted.
AFFIRMED.

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