Appealing in Nevada : Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

The fellows over at the Drug and Device Law Blog have taken time away from their usual discussions of pharmaceutical and medical device product liability litigation to reflect upon the importance of the standard of review in appellate cases.  

Recalling a former life as a clerk at the Ninth Circuit,  DDL notes that “the ‘abuse of discretion’ standard of review meant that we should get out the ‘affirmed in a heartbeat’ stamp, while a ‘de novo’ standard of review meant that there would be a serious shooting match.” 

DDL appropriately reminds appellate attorneys that the appellants wants to find a way to require de novo review, while the appellee benefits from characterizing the standard as clear error or abuse of discretion.  They also offer a handy link to the Ninth Circuit’s standard of review outline, which is updated yearly with the most recent cases defining the standard of review for various issues. 

Thanks to DDL for the timely reminder of the Ninth Circuit’s outline!

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As of April 10, new rules for judicial conduct are in effect. However,  in posting the new rules, the Ninth Circuit felt the need to remind potential complainants that while, any person can file a complaint about a federal judge’s conduct, conduct does not  mean decision. In other words, don’t grieve a judge because you don’t like the ruling.

Here are the links the Court posted about the new rules and the complaint form:

Rules of the Judicial Council of the Ninth Circuit Governing Complaints of Judicial Misconduct or Disability

Complaint Form (Complaint of Judicial Misconduct or Disability)

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The Ninth Circuit heard oral arguments at UNLV yesterday, the first time the Court has sat at the law school. The panel consisted of Chief Judge Alex Kozinski and Circuit Judges Marsha S. Berzon of San Francisco and Jay S. Bybee of Las Vegas. The arguments were held in the Thomas & Mack Moot Court Facility

 The Court heard three cases, including arguments by Federal Public Defender Franny Forsman that former Clark County commissioner Mary Kincaid-Chauncey should receive a new trial due to exclusion of witnesses offered to challenge the credibility of star prosecution witness Michael Galardi. Forsman also argued that the instructions to the jury should have required them to find Kincaid-Chauncey accepted money with the intent to vote in favor of Galardi.

The other two cases heard were Borodkin v. Omni Air International, an appeal of a summary judgment for the defense in a wrongful discharge and defamation case and another criminal matter, United States v. Flaherty.

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In Betz v. Trainer Wortham, the Ninth Circuit made small amendments to the previous opinion, in which the three panel court had held that a jury must decide whether a securities fraud plaintiff was put on inquiry notice of fraud long enough before she filed suit for the statute of limitations to have run. With such amendments, the motion for en banc rehearing is denied. Judge Kozinski writes a stinging dissent from that denial, noting that the Court places itself in “left field again”—that is, alone among all the appellate circuits—by requiring a jury to determine whether the investor was placed on inquiry notice where the facts are undisputed.  Noting here that the investor claims she had been promised zero risk on her investment, yet understood statements showing a decrease in her principal, Kozinski argues that as a matter of law, she was placed on sufficient inquiry notice to start the running of the statute.

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It must be frustrating to a judge, when, after having taken the time to plod through the briefs and evidence presented on dispositive motions, and even drafting a decision that in favor of a party, the parties settle the case—especially if the decision would have resulted in judgment for the defendants. But frustrating as this may be, the judge can’t ignore the settlement and issue its ruling.

On February 19, 2008, in In re Syncor ERISA Litigation: Pilkington v. Cardinal Health, Inc., the Ninth Circuit held the district court abused its discretion in not holding the required hearing to review the binding class action settlement reached by the parties, even though the district court had already drafted – but not entered—an order granting the defendants’ dispositive motions. Instead of holding the hearing, the district court entered judgment against the class.  

But Defendants needn’t feel too badly about their decision to settle the case. The Court also held the summary judgment itself was error, as a material issue of fact regarding whether the defendants breached their duty to conform to the prudent man standard of investment off the plan’s assets.  The Court took care to note that it has not adopted the presumption that a ESOP plan administrator acts consistently with ERISA in investing assets in employer stock.

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In Johnson v. Riverside Health Care System, the Ninth Circuit upheld the dismissal of Johnson’s discrimination claims.  The court upheld the dismissal of the 42 U.S.C. § 1981 claim,  finding no hostile work environment where there was only one alleged incident of racial discrimination; other incidents, while offensive, were not shown to have arisen from racial animus rather than personal dislike.  The state law discrimination claim under California’s Unruh Act, Calf. Civil Code Act § 51,  was properly dismissed as the allegation was for employment discrimination, but the statute covered discrimination in the provision of goods and services.

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On February 11, 2008, in Certain Underwriters at Lloyds,London  v. Inlet Fisheries Inc., the Ninth Circuit held that the doctrine of uberrimae fidei continues to govern maritime insurance contracts, including vessel pollution insurance.  The doctrine requires both parties to an insurance contract to act with the utmost good faith toward each other.  This requires  each  to disclose all material information.

Here, Inlet Fisheries did not make disclosures that were deemed material to its pollution insurance policy, yet had never been requested by Lloyds. However, knowledge of the state of the company’s fleet, and its history of pollution losses, and the reasons its previous insurance had been canceled would have been relevant to Lloyds’s calculation of risk. Since Inlet did not make the disclosures, the insurance was void ab initio.

This uberrimae fidei is an interesting doctrine.  Wouldn't it be nice if it applied in politics?  Think of the elections that could be void, due to nondisclosure to voters of material facts.

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 On February 11, 2008, in Planned Parenthood v. American Coalition of Life Advocates, the Ninth Circuit held that, pursuant to FRAP 37(d),where a mandate instructs entry of judgment of a specific amount without designating the interest date for accrual of interest, the District Court does not have the authority to order the interest to accrue from the date of original judgment.  

Here, there had been an appeal of a punitive judgment award, which was reduced as excessive. The Court had remanded to the district court with instructions to enter judgment for a specific amount, without specifying a date of accrual of post-judgment interest.  The district court ordered that the interest would accrue from the date of the original judgment.  Although this was error, the Court held that its own failure to designate the date of accrual was an oversight, and accordingly, recalled and amended the earlier mandate to provide for accrual of post-judgment interest from the date of the original judgment.

Despite the happy ending for Planned Parenthood, the winner of that punitive judgment award, Judge Fisher calls this opinion “a cautionary tale for all whose judgments are subject to the requirements of Rule 37(d).”  In other words, don’t forget to ask the court to specify the interest accrual date; or seek recall immediately if the date is left out.. The Court recalled its mandate so longer after its issuance here only because it recognized that precedent in the matter had not been clear.

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A private corporation simply cannot be an arm of a state.   That's the conclusion of the Ninth Circuit in Del Campo v. American Corrective Counseling Services.  The court held, somewhat testily, that private entities are not entitled to 11th amendment immunity. 

In this consolidated case, the plaintiffs brought an assortment of state and federal fair debt collection claims against ACCS, a private corporation. ACCS operated a bad check recovery program for the Santa Clara DA.  The Court held that ACCS’s status as a private entity, not its conduct, is what determines its ineligilbity for 11^th amendment immunity.

 

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The Ninth Circuit granted a motion for en banc rehearing in Redding v. Safford Unified  School Dist. #1.  The three judge panel opinion, discussed here, had held that the strip search conducted by the school had not violated the student’s 4^th amendment rights.  

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In Silvas v. E*Trade Mortgage Corp., the Ninth Circuit upheld the dismissal of claims violations of the a Truth in Lending Act predicated on claimed violations of California’s Unfair Competition Law resulting from a refusal to refund a fee charged to lock in an interest rate after the borrowers rescinded the mortgage within the 3 day period.. The Court held the state laws were preempted by the regulations of the Office of Thrift Supervision and Home Owner’s Loan Act.

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In Costco Wholesale v. Hoen, the Ninth Circuit upheld the District Court’s determination that Washington’s requirements that liquor sellers post their pricing, and hold such prices for 30 days violates the Sherman Antitrust Act.  The Court found that Washington’s goals of promoting temperance did not save the statutes, as Washington failed to establish the “post and hold” requirements actually do promote temperance, and therefore, the state’s interests do not outweigh those of the Antitrust Act.  The Court overturned the district court’s finding that other liquor regulations also violated the Sherman Anti-trust Act, finding that once the post-hold requirements were severed, the other regulations, such as prohibiting volume discounts or credit sales to wine and beer retailers were unilateral restraints.

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In Solis v. Beltran, the Ninth Circuit reversed the summary judgments entered against Solis, due to the failure to give Solis, a pro se prisoner, notice of the procedural requirements for response to a summary judgment motion. The Court affirmed the summary judgment of the § 1986 claim as untimely. The Court reversed the district court’s judgment entered following a bench trial as the court had erroneously denied the request for a jury trial and such error was not harmless. The Court held that a properly filed demand for jury trial satisfies all requirements.  Jury trial cannot be deemed waiver by a failure to file jury instructions or special verdict forms.

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Today the Ninth Circuit upheld the NLRB’s exoneration of the Aladdin on certain anti-union charges, and found that Arizona’s specialty license plate program violated an anti-choice group’s First Amendment rights.

In Local Joint Exec. Bd. of Las Vegas v. NLRB, the Ninth Circuit upheld the NLRB’s decision reversing the decision of the ALJ that had held Aladdin Gaming, LLC to have engaged in illegal surveillance of labor activities. The Court upheld the Board’s adoption of a three part test to determine whether activities constitute illegal surveillance that considers the indicia of coerciveness during observation, the employer’s distance from employees while observing, and whether the employer engaged in coercive behavior during its observation.  In this case, the conduct consisted of two individual members of management offering opinions and advice regarding union promises while union organizers were talking to employees.  The Board found there was no evidence of coercive conduct.

In Arizona Life Coalition,  Inc. v. Stanton, the Ninth Circuit held that the Arizona License Plate Commission violated the plaintiff’s first amendment rights when it denied the request for a special organization license pledge that contained the message “Choose Life.”  The Court found that Arizona had created a limited public forum for nonprofits by offering its specialty license plate program.  The Court rejected the claim that the license plate program created an endorsement by the state of the views presented on specialty plates.

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Today marks a change for Appealing in Nevada.

Faithful readers have perhaps noticed a certain lack of attention given to the 9th circuit recently. This is not, of course, due to a lack of interest on my part, but instead, a lack of time. 

Alas, realities, including the tremendous energy of that Court in producing published opinions, and the demands of my own work, have made it challenging for me to review and report on all of its published opinions. After considerable reflection, I have decided to redefine my focus to better fit my own practice, as well as to avoid duplication of efforts made by other bloggers.

For example, the criminal law related decisions by the 9th Circuit are discussed in a very timely and thorough fashion by the Ninth Circuit Blog, which offers commentary by federal public defenders. Frankly, they do a much better job of pointing out the significance of the criminal law decision than I do anyway. There are also a number of blogs offering updates and commentary on immigration law, including The Immigration Law Blog, Greg Siskind’s Blog, and the Immigration Profs Blog. Again, their expertise in the area no doubt makes their commentary more valuable than mine.

Accordingly, henceforth my coverage of the Ninth Circuit will focus on the civil decisions dealing with federal law, and those decisions from diversity cases  that are relevant to Nevada. 

Of course, that doesn’t mean I won’t mention any other types of decisions I find particularly interesting.  

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Today, the Ninth Circuit issued four published opinions:

In U.S. v. Zimmerman, the Court reversed the district court’s determination that Zimmerman’s objections to the taking of a blood sample for purposes of providing the required DNA sample were not religious. The District Court had so found because the Roman Catholic Church, in which Zimmerman was reared, does not forbid blood draws. However, a sincere religious belief need not be based on a mainstream religious view. The Court remanded for determination of the scope of Zimmerman’s belief, including whether other forms of DNA sampling would not violate any such beliefs, as well as the determination of the sincerity of Zimmerman’s beliefs. If the beliefs are religious and sincere, then the court must determine whether DNA sampling serves a compelling state purpose, or whether another form of sampling would serve.

 In PAE Government Services, Inc. V MPRI, Inc., the Curt reversed the district curt’s dismissal of an amended complaint.  The district court had found the allegations in the amended complaint to be inconsistent with those in the original, which had been dismissed, and found the amended complaint to be a sham.  The 9h Circuit held that a district is not authorized to make such determinations at that stage in the proceedings.  Noting that complaints are not required to be verified, and that pleading in the alternative is permitted, the Court held absent a showing that there was bad faith, nothing in the federal rules prohibit a party from making successive, contradictory pleadings.  The Court affirmed the dismissal of the promissory estoppel claim, as such a claim is not permitted in Virginia, the choice of law under the contract the plaintiff sought to enforce.

In Iasu v. Smith,  the Court affirmed the district court’s determination that if had no jurisdiction to determine Iasu’s claim that, because he has a colorable claim for citizenship, removal proceedings must be halted.  The court noted that Iasu could move to reopen his removal proceedings to present his claim that he is actually a citizen.   Because his claim of citizenship could thus be reviewed, the REAL ID Act does not violate the Suspension Act in Iasu’s case.

In K & N Engineering v. Bulat, The Ninth Circuit held that where a plaintiff has elected to pursue statutory, rather than actual damages in a trademark infringement case, the statute, 11 U.S.C. § 1117, does not provide for an award of attorneys fees. Accordingly, the award of fees by the district court was an abuse of discretion

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Today, the Ninth Circuit issued only one published opinion:

In U.S. v. Biagon, the Court held that the defendant’s right to allocate was not infringed by the district court’s refusal to seal the courtroom. The defendant did not follow the procedure to seal  the courtroom, nor was the request tied to a desire to allocate in private. The defendant did actually allocate, and nothing indicate he was refraining from saying more. Finally, the district court was aware of the extent of his cooperation.

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December 10, 2007

Sparkman v. Commissioner Of Internal Revenue

Humanitarian Law Project v. Mukasey

Hale v. U.S. Trustee

December 11, 2007

SEC v.. Shaw

Byrd v. Lewis

Intern’l Union Of Painters, Local 1621 v. B&B Glass, Inc.

Dukes v. Wal-Mart Store

December 12, 2007

U.S. v. SOLTERO   

U.S. v. Moreland

December 13, 2007

Global Horizons, Inc. v. U.S. Department Of Labor            

Toufighi v. Mukasey

Fair Housing Council v. Roommates.Com, Llc

December 14, 2007

Ditto v. Curdy

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December 3, 2007

In Re: Wind & Wave; North Sports v. Knupfer

Bolt V. Usa

Tekle V. U.S. - Appendix

Blanchard V. Morton School

Tekle V. Usa

Avila-Sanchez V. Mukasey

Perfect 10, Inc. V. Amazon

Arizona Health Care V. Mcclellan

Action Apartment Association V. Santa Monica Rent Control

Goodstein V. Industrial Indemnity

Continue Reading...

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November 26, 2007

Miller v. Thane Int'l.

November 27, 2007

Soremekun v. Thrifty Payless, Inc.

Summers v. Delta Airlines, Inc.

Vatyan v. Mukasey

Doe v. Woodford

November 28, 2007

Ufo Chuting Of Hawaii, Inc. v. Smith

Beaty v. Schriro

California Department Of Toxic v. Alco Pacific, Inc.

November 29, 2007

Sekiya v. Gates

Alvarado v. Table Mountain

Chaly-Garcia v. Usa

U.S. v. Brooks

In Re Keith Thomas

Bias v. Moynihan

U.S. v. Kriesel

November 30, 2007

Duran Gonzales v. Homel& Security

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November 19, 2007

Gardner v. Mega Life & Health

Grigoryan v. Keisler

U.S. v. Garcia

November 20, 2007

Wah Chang v. Duke Energy Tradidng

Fisher v. City Of San Jose

November 21, 2007

J&J Celcom v. At&T Wireless

Nascimento v. Dummer

Barragan-Lopez v. Mukasey

There Were No Opinions Issued On November 22 or 23.

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November 14, 2007

Center for Biological Diversity v. National Highway Traffic Safety Administration

Scheehle v. Justices Of The Supreme Court Of Arizona

Sissoko v. Rocha

November 16, 2007

Sprint Pcs Assets v. City Of Palos

Al-Haramain Islamic v. Bush

Hepting v. At&T Corportation

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On November 14, 2007, the Ninth Circuit issued one published decision:

In California Pro-Life Council, Inc. v. Randolph, the Ninth Circuit held that California’s Political Reform act.. The Court found that the statute’s definition of “contributions” was narrowly tailored to serve the government’s conceded compelling interest. However, the Court found the statute’s imposition of political action committee-like requirements on “recipient committees” was not sufficiently narrow to survive strict scrutiny, (which standard applied due to law of the case).

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On November 13, 2007, the Ninth Circuit issued two published orders:

In Natural Resources Defense Council, Inc. v. Winter,  the Ninth Circuit vacated its previously issued stay of a preliminary injunction precluding the use of sonar during exercise, effective ten days from the date of the order or completion of a current exercise, whichever is earlier, and remanded with instructions to the District Court to conduct hearings and issue and appropriately tailored injunction by January 4, 2008.

In Busch v. Woodford,  the Court withdrew the opinion issued August 29, 2007, with a promise of a modified opinion at a later date.

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On November 9, 2007, the Ninth Circuit issued one published opinion and one published orders:

 In Doran v. 7-Eleven, Inc., the Ninth Circuit held that a plaintiff has standing to challenge alleged ADA violations not personally experienced by the plaintiff, where the violations the plaintiff did experience prevented the plaintiff form personally discovering those violations. Thus, here, where the plaintiff’s was prevented access by inadequate disabled parking and wheelchair ramp, other violations discovered by his expert may also be challenged. The Court also affirmed a ruling that failure to allow a disabled patron access to an employee only restroom is not a violation of the ADA.

 In Montalvo v. Spirit Airlines, the Ninth Circuit amended a typographical error, and  added a case number of one of the consolidated appeals, Hind v. Southwest Airlines, Case No,. 05-17181, to the opinion originally filed  October 4, 2007.

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On November 8, 2007, the Ninth Circuit issued three published decisions:

In Alaska v. EEOC, the Ninth Circuit dismissed as barred by the 11^th Amendment a suit brought by two former employees of the Alaska Governor’s office.  The Court found that GERA, 42 U.S.C. §§ 2000e-16a, et seq., was enacted without findings by Congress of the existence of state discrimination against employees who are personal staff of elected officials, a class previously exempted from discrimination law protections. The lack of findings results in the inability to find that GERA was a proportionate response to an identified evil.

In Khaligh v. Hadaegh, the Ninth Circuit affirmed Khaligh v. Hadeagh, 338 B.R. 817 (B.A.P. 9^th Cir. 2006), for the reasons stated in that opinion.

In U.S. v. Gamboa-Cardenas, the Ninth Circuit held that “safety valve relief,” which allows a reduced sentence for certain offenses where the defendant meets specific criteria, does not apply to the offense of possession with intent to distribute cocaine while aboard a vessel.  The Court rejected the argument that the government was estopped to argue the safety valve did not apply to the offense as to three defendants, two of whom raised it for the first time on a appeal, and the third who failed to show detrimental reliance. However, the Court found that Gamboa-Victoria had failed to exercise his right to testify at trial in reliance upon the government’s assurance that the safety valve would apply.

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On Tuesday, Nov. 6, the Ninth Circuit issued three published decisions.

U.S. v. Sherburne

Fidelity Exploration v. U.S.

Irons v. Carey

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On Monday, Nov. 6, the Ninth Circuit issued six published decisions.

Perfumebay.Com, Inc. v. EBay,Inc.

Hanna v. Keisler

U.S. v. Gonzales

Lewis v. United States Of Education

Financial Management Advisers v. American International Specialty Line Insurance Company

U.S.  v. Cope

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On Friday, Nov. 2, the Ninth Circuit issued one published decision.

In Rebilas v. Keisler, the Ninth Circuit held that Arizona’s offense of public sexual indecency to a minor includes conduct that falls outside the federal definition of attempted sexual abuse to a minor. The Court noted that the offense could be committed even though the minor was oblivious to the offender’s conduct. As the details available of Rebilas’s conviction did not show that he had committed attempted sexual abuse of a minor, the conviction was not for an aggravated felony for purposes of removal.

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I've fallen behind in my review of Ninth Circuit Cases.  I'll publish links now, and update with descriptions in the next few days.

On Thursday, Nov. 1, the Ninth Circuit issued eight published decisions.

In Re: Wind And Wave; North Sports v. Knupfer

US v. Gooch

Outdoor Media Group v. City Of Beaumont

Skaff v. Meridien North America Beverly Hills, Llc

Beck v. United Food Commercial Workers Union, Local 99

Get Outdoors II, LLC v.. City Of San Diego

Crown Point Development v. City Of Sun Valley

Medley v. Runnels

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On October 31, 2007, the  Ninth Circuit issued three published decisions         

In U.S. v. Preciado, the Ninth Circuit , per curiam,  affirmed the enhancement of Preciado’s sentence, where she brought her four children along with on her attempt to smuggle marijuana into the U.S. from Mexico.   Circumstantial evidence showed that Preciado had time to arrange child care, and also had child caregiver available to her. In those circumstances, the district court could plausibly infer that the presence of the children was intended to enhance her chances of making her border crossing appear to be a family visit.

In U.S. v Hernandez-Vasquez, the Ninth Circuit clarified standards related to orders permitting the involuntary medication of a defendant for purposes of return him to competency. Such orders are permitted under Sell v. United States, 539 U.S. 166 (2003), relying on Washington v. Harper, 494 U.S. 210 (1990)(holding that dangerousness of undedicated inmate justifies government in medicating inmate involuntarily).  The Court adopted a standard of review of Sell orders holding that a district court’s determination of the seriousness of the crime is subject to de novo review, while the remaining Sell factors are reviewed for clear error. The Court also held that such an order must be specific as to permitted medications and dosages, and must set forth a time period for a physician to report back to the court as to status and effect of the treatment. The order here failed to have the necessary specificity, and was therefore vacated, with remand to the district court.

In Suntharalinkam v Keisler, the Ninth Circuit amended the order previously field on October 18, 2007, permitting the withdrawal of the Petition for Review. Judge Kozinski’s dissent to the order permitting withdrawal remains intact.

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The Ninth Circuit issued no published decisions on October 29.

On October 30, 2007, the Ninth Circuit issued one new published decisions and amended a previously issued opinion:

In Jordison v. Keisler, the Ninth Circuit amended the opinion filed on September 4, 2007. The outcome is unchanged.

In Desert Outdoor v. City Of Oakland, the Ninth Circuit upheld an Oakland ordinance regulation outdoor advertising. The ordinance banning freeway-visible advertising signs applied only to commercial speech; the fact that it except time and temperature signs did not transform it to apply to noncommercial speech. The District Court had found the time and temperature exception unconstitutional, and severed. Oakland had not appealed that decision, but this opinion makes clear time and temperature signs are not commercial speech. Oakland had deleting a potentially constitutionally invalid provision from the ordinance prior to the court’s ruling, rendering a challenge of it moot.

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On Monday, October, 29, 2007, the Ninth Circuit issued two published opinions:

In Ellett v. Goldberg , the Ninth Circuit held that a failure to provide the debtor’s accurate social security number in the notice to a creditor of the bankruptcy filing  results in a lack of proper notice, preventing a discharge. Here the creditor did not attend the creditor’s meeting or make a claim to be included in the Chapter 13 plan because of the inaccurate social security number.

In Our Children's Earth Foundation v. EPA , the Ninth Circuit held that while the decision whether to revise effluent guidelines under the Clean Water Act, 33 U.S.C. § 1251(a), is discretionary with the EPA, the agency does not have discretion to ignore technology-based criteria in favor of hazard based criteria. The Court found that technology-based effluent guidelines were central to the requirements of the Clean Water Act’s and its subsequent amendments.  The Court also held that only challenges to the EPA’s non-discretionary acts may be brought by the citizen suit provision from in § 505 of the Clean Water Act.

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On Oct. 25, 2007, the Ninth Circuit issued one published decision:

In U.S. v. Banks, the Ninth Circuit reversed the convictions for a crime of violence in aid of racketeering, due to erroneous instructions.  The Court held the jury was erroneously instructed that it could convictif it “at least one of Defendant’s purposes” in employing the violence was related to maintaining his position in his gang. While a gang related purpose need not be the sole purpose, it must be a substantial purpose. Here, while there was sufficient evidence to support a conclusion that Banks acted to maintain or further his position, there was also considerable evidence that he acted out of personal dislike for his intended victim. The Court rejected the Banks’ challenges to his other convictions. 

This opinion is well worth reading simply for the description of Banks’s spectacularly unsuccessful attempts to harm his victim.  

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Note - There were no 9^th Circuit decisions on Oct. 23.

On Oct. 24, 2007, the Ninth Circuit issued one published decision:

In U.S. v. Salazar-Lopez, the Ninth Circuit held that an Apprendi error occurred in the defendant’s trial for having been found present in the U.S. following removal, as Defendant’s indictment had not included an allegation that he had been removed following a felony conviction. While such allegation and proof is not needed for the conviction, it is required to apply certain enhanced sentencing.  However, the error was harmless, as the record supporting the fact of removal after the conviction was “overwhelming and uncontroverted.”

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On Oct. 22, 2007, the Ninth Circuit issued two published decisions, and one published order:

In U.S. V. Perez-Perez, the Ninth Circuit affirmed the sentence imposed for illegal re-entry after being deported. . The Court held that the sentencing court is not required to address a defendant’s reasons for a downward departure from sentencing guidelines, but must only give reasons for the sentence imposed.

In U.S .v. Rodriguez-Guzman, the Ninth Circuit held that California’s statutory rape law, California Penal Code § 261.5(c), which sets the age of consent at 18,  is overly inclusive, and cannot be consider a categorical crime of violence under the sentencing guidelines.  The majority reasoned that as the vast majority of the states, the federal law, and the Model Penal Code define the age of consent for purposes of statutory rape at 16 so that California’s definition exceeds the common and accepted definition. The Court held that statutory rape is a per se crime of violence.

In Barajas v. Wise, the Ninth Circuit granted the motion for panel rehearing, withdrew the opinion published at 481 F.3d 734 (9^th Cir. 2007) and resolved the matter in an unpublished decision.

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On Oct. 19, 2007, the Ninth Circuit issued two published decision:

In U.S. v. Soltero, the Ninth Circuit partially affirmed Soltero’s sentence and remanded for a change in some details. The Court held the district court's failure to determine whether Soltero had reviewed the presentence report was error, but harmless here where Soltero did not state he had not reviewed it, and did not identify any detail therein he disputed. The Court also affirmed the requirement that Soltero pay for his drug treatment while on supervised release, with the parole officer given discretion to determine his ability to pay, and with the requirement that Soltero not associate with the “Delhi Street Gang.” However, requirements that he use his “true legal name” which prevent him from using the surname Soltero, his step-father’s name, was order rephrased to require him to use Soltero. The requirement that, while on supervised release, he not asociate with “any known member of any . . . disruptive group” was impermissibly vague.  

In US. v. Salcio, where the defendant appeals his conviction for possession of child pornography, the Ninth Circuit avoiding making a determination whether a jury may determine, based solely on the images themselves, whether images depict minors. There was sufficient other evidence, including a detective’s testimony that he recognized and interviewed one of the child victims depicted in the images, and including defendants admissions that he sought out child pornography, to support the jury’s conclusion that the images were of a minor.

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On Thursday,  October 18, 2007, the Ninth Circuit issued one published order.

In Suntharalinkam v.. Keisler, the Ninth Circuit accepted the unopposed motion to withdraw the appeal, and withdrawal of the 3panel decision. Judge Kozinski dissented for about 18 pages, decrying the practice of accepting a motion to withdraw after cases have been argued and submitted. Here, the assumption appears to be that the question asked at oral argument suggested a likely outcome unfavorable to the appellant and to his amici. Judge Kozinski questioned the voluntariness of the withdrawal, and urged the Court to take measures to insure the action was, indeed, a reflection of the will of the appellant.

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On Wednesday, October 17, 2007, the Ninth Circuit issued one published opinion, and two published orders.

In Acosta v. Hill, the Ninth Circuit held that where a jury found that an officer’s actions were reasonable, and therefore, not excessive force, there was no error in the trial court’s failure to give a separate instruction on deadly force. The Court noted that Scott v. Harris, 127 S.Ct. 1769 (2007), which held there is no separate “unconstitutional deadly force issue” governed the issue.

In Beltran v. Santa Clara County and in Navajo Nation v. United States Forest Service, the Ninth Circuit ordered that the matters be reheard en banc.

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On October 16, 2007, the Ninth Circuit issued one published decision.

In Ahmed v. Keisler,  the Ninth Circuit overturned the BIA’s decision that Ahmed had failed to establish his eligibility for refugee status. Ample evidence supported Ahmed’s claims of political oppression and persecution, including three instances of physical harm inflicted by the Bengali army or police

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On Monday, October 15, 2007, the Ninth Circuit issued six published opinions and one published order. 

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Morre to follow

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On Thursday, October 11, the Ninth Circuit issued six published decisions.  More later

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On Wednesday,, October 10, 2007, the Ninth Circuit issued four published opinions.

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On October 9, 2007, the Ninth Circuit issued three published opinions and two published orders:

In Quintero-Salazar v.. Keisler, the Ninth Circuit held that California Penal Code § 261.5(d) is not categorically a crime involving moral turpitude for purposes of removal under immigration law. This offense is for engaging in intercourse with a minor who under 16years of age when the perpetrator is more than 21 years old.The Court pointed out that commission of this offense could reasonably involve a relationship between a college sophomore and a high school junior, which relationship might have commenced while both were still in high school. Such an offense is not categorically one that is inherently base, vile, depraved or so far contrary to moral law as to give rise to outrage.

In Guglielmino v. Mckee Foods, the Ninth Circuit held that where a complaint does not state a specific total amount in controversy, the proper burden of proof for purposes of remand to state court after removal is proof by a preponderance of he evidence that the amount in controversy is more than $75,000.  

In Morgan v. United States District Court For The District Of Arizona, the Ninth Circuit held that when rejecting a sentence bargain plea agreement, the district court must provide individualized reasons for rejecting he agreement, based upon the specific facts and circumstances involved. Here, the district court rejected the agreement simply because the judge did not approve of sentence bargain agreements.  

In Phillips v. Hust, the Ninth Circuit ordered that the September 14, 2007 denial of the Petition for Rehearing and denial of the Petition for Rehearing en Banc be published.              

In U.S. v. Mitchell, the Ninth Circuit granted a motion to amend an opinion to remove a reference to a specific Assistance U.S. Attorney.

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On October 5, 2007, the Ninth Circuit issued four published opinions.

In Foster v. Wilson, the Ninth Circuit upheld dismissal of a security fraud claim, where the complaint alleged that the defendant promised to buy securities for the plaintiffs, but did not deliver the securities after receiving the funds. The allegations may alleged breach of contract, but did not alleged securities fraud.

In Pocatello Education Assoc. v. Heidman, the Ninth Circuit struck down an Iowa law that prohibits any payroll deductions by local government employers for political activities, as a content-based infringement on speech, without compelling justification.

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On October 4, 2007, the Ninth Circuit issued four published opinions.

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On October 3, 2007, the Ninth Circuit issued one amended published opinion.

In Inouye v. Kemna,the Ninth Circuit amended the opinion previously by striking sentences from   footnote. The outcome is unchanged.

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On October 2, 2007, the Ninth Circuit published two new opinions:

In U.S. v. Davis, the Ninth Circuit affirmed a restitution order requiring David to pay as restitution the costs associated with decontamination of a motel room used to manufacture methamphetamine. The Court found that the purpose of restitution is to make the victim whole, and according, costs of repair are appropriate.  However, the Court reversed and remanded that portion of the order which required Davis to pay for loss rent of the motel room, where there was no evidence that the motel lost any income, and for unsegregated costs of asbestos testing.  

In U.S. v. Lujan, the  reversed the Ninth Circuit rejected challenges to federal law requiring DNA samples be given by all persons on supervised release. The Court has previously rejected a 4^th Amendment challenge to the law. Here, the court rejects the claim that the law is a bill of attainder, as DNA sampling is not a punishment.  The Court also rejected Lujan’s claims that the law violates separation of powers.

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On October 1, 2007, the Ninth Circuit published two new opinions:

 In Suter v Goedart, a bankruptcy appeal originating in Nevada, the Ninth Circuit reversed an order of the Bankruptcy court finding a claim moot, holding that the debtors could seek extraordinary writ relief from the Nevada Supreme Court to pursue their malpractice claim. The underlying facts here are truly extraordinary, as the defendants in the malpractice action apparently outbid the debtors in an auction for ownership of the malpractice claim.

In El Toro Materials v. Saddleback Valley, another bankruptcy appeal, the Ninth Circuit held that the cap on damage arising from rejection of a lease  imposed by 11 U.S.C. 502(b)(6) does not include collateral damage. The Court adopted a test to determine whether the damage arises from rejection of the lease: would the landlord still have the collateral damage claim had the lease been assumed rather than rejected? If so, then the cap does not applied to such damages. Here, the collateral damage arose from a million-ton pile of dirt left behind by the debtor.

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On September 28, 2007, the Ninth Circuit issed one new published opinion and one published order:

 In U.S v. Sullivan, the Ninth Circuit held that a community pre-release center was not an “imprisonment” under 18 U.S.C. §3624(e), and accordingly, Sullivan was not under upervised release when he failed a drug test.            

In Ramadan v. Keisler, the Ninth circuit denied a request for rehearing en banc. Nine judges dissented from the order denying rehearing en banc. The decision leaves standing the panel decision concluding the Court had jurisdiction under the REAL ID Act over immigration appeals where the issue of  “changed circumstances” is. This conclusion is contrary to that of seen circuits that have considered the same issue.

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On September 27, 2007, the  Ninth Circuit issued two new published opinions, and one published order.

In U.S. v. Bussell, the Ninth Circuit declined, for purposes of he sentencing guidelines, to impose a categorical limitation upon determining “intended loss” in bankruptcy fraud cases to the value of the concealed assets.  In the circumstances here, the facts supported the district court’s conclusion that the intended loss was equal to the amount of debt scheduled to be discharged in bankruptcy.    Similarly, the evidence supported the district court’s conclusion that the actual loss, for purpose of restitution,  was equal to the amount of debt ultimately discharged.

In Bockting v.Bayer,  the Ninth Circuit determined that the Nevada Supreme Court’s affirmance of Bockting’s conviction for sexual assault on a child was not contrary to federal constitutional law.    Judge Noonan dissented, arguing the Nevada Supreme Court improperly relied upon the trial court’s actions in admitting hearsay statements of the child, rather than upon any factual findings supporting unavailability, particularly where the trial court’s statement suggested a misunderstanding of witness unavailability.

In Li v. Keisler, where three applications for fees in immigration appeals were consolidated, the Ninth Circuit held that the 30 day period to file a request for fees under the Equal Access to Justice Act begins ninety days after issuance of an order remanding an immigration matter to the BIA. The Court found fees justified in two of the cases, but not as to Li.

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On September 26, 2007, the Ninth Circuit issued four new published opinions:

In John v. Youngquist, the Ninth Circuit reversed a denial of summary judgment, finding that a police officer had probable cause to arrest a teacher for sexual assault of a student, based upon the statements made by the student and the officer’s experienced assessment of her credibility. The court noted that the officer did act with unseemly hate in making an arrest, and circumstances did suggest that the arrest was prompted by petulance at the teacher’s request to have an attorney present during questioning. 

In Metoyer v. Screen Actors Guild,   the Ninth Circuit held that material issues of fact prevented summary judgment on all but one of the plaintiffs’ civil rights claims.  The Court held that a mixed motive defense is not available for a § 1981 claim of discrimination, but is for §1981 claims of retaliation.

In The Freecycle Network, Inc. v. Oey,  the Ninth Circuit held that encouraging others to disparage a trademark and to challenge the validity of the trademark, likely do not constitute a “use in commerce” of that mark, a necessary aspect of a trademark infringement claims. Nor are such actions likely to cause confusion between trademarks.  Because Oey’s actions in challenging Freecycle’s trademark are unlikely to be deemed infringement, an injunction against such actions should not have been granted. The Court also held that the Lanham Act does not support claim for trademark disparagement.

In Sanders v. Lockyers,  the Ninth Circuit affirmed the grant of summary judgment against claims alleging that the Master Settlement Agreement against involving state attorneys general and the tobaccos industry resulted in a price fixing cartel causing a vast increase in the p[rice of cigarettes. Sanders argued that the settlement agreement promoted lockstep price increases, because any company that increases it market share is penalized by paying a higher proportion under the settlement agreement. Accordingly, companies are discouraged from lowering their pries in an attempt to gin market share. It also discourages non participating companies from entering the market. The Court patiently found the agreement is not preempted by federal law.

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On September 25, 2007, the Ninth Circuit issued two new published opinions, and amended one previously issued opinion:

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On September 24, 2007, the Ninth Circuit issued four new published opinions:

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On September 21, 2007, the Ninth Circuit issued six new published opinions:

                

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On Thursday, September 20, 2007, the Ninth Circuit issued six new published opinions. 

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On September 19, 2007, the Ninth Circuit issued five new published opinions:

In Melendez v. Gonzales, the Ninth Circuit held that an alien may not avoid immigration consequences of a drug conviction as a time offender, when he is not a first time offender. Here, following an earlier arrest, Melendez had taken advantage of a pre-trial program under a diversion scheme that did not require him to plead guilty.  The Court held that the BIA properly regarded Melendez as one who had gotten “two bites at the ameliorative apple.”  

In Navarro-Lopez v. Gonzales, the Ninth Circuit, en banc,  held that a crime involving moral turpitude must be a crime that is 1) vile, base, or depraved and 2) violates societal moral standard s. California’s offense of “accessory after the fact” does not qualify. Accordingly, Navarro-Lopez had not been convicted of an offense involving moral turpitude, and could be eligible for cancellation of removal.            

In Menken v. Emm, the Ninth Circuit held that while domesticating a judgment in unlikely, without more, to be sufficient to confer personal jurisdiction, that act coupled with additional conduct, such as, as alleged here, attempted to exact a higher payment than the judgment amount, does established sufficient minimum contacts to confer jurisdiction.             

In Brown v. Ornoski, the Ninth Circuit denied habeas relief in a death penalty matter, finding that Brown received effective assistance of counsel at the penalty phase. While the psychologist portrayal of Brown was not positive, it was more sympathetic than that presented by the prosecution, and therefore represented a strategic choice. The Court rejected the claim that counsel should have conducted more background information, as there is little indication that exposure of the jury to the additional would have changed the outcome.             

In E. &J. Gallo v. EnCana Corp. , the Ninth Circuit held that the filed rate doctrine did not apply to transactions not subject to FERC jurisdiction. Here, Gallo’s claims included transactions not based on F$RC rates; accordingly, the District Court properly denied summary judgment.  

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On Tuesday, September 18, 2007 the Ninth Circuit issued one published opinion:

In Kawashima v. Gonzales, the Ninth Circuit held that subscribing to false statements on a tax return, and aid and assisting in the preparation of a false tax return are aggravated felonies, and therefore removable offenses for purposes of immigration law.

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On Monday, September 17, 2007, the Ninth Circuit issued three new published decisions and amended one previously issued decision:

In Equity Lifestyle v. County of San Luis Obispo, the Ninth Circuit affirmed the dismissal of a takings-based challenge to a rent control ordinance enacted in 1984. The Court held the as-applied challenge unripe as there was a failure to exhaust administrative remedies for rent-control takings claims, and the facial challenge was barred by the statute of limitations. The Court also rejected due process and equal protection claim as the rent control measures are rationally related to a legitimate government purpose.

In Corrie v. Caterpillar, Inc., the Ninth Circuit held that the plaintiffs claims could not proceed as adjudication of the claims was precluded by the political question doctrine. The claims arose because the Plaintiffs’ family members were killed or injured when Israeli Defense Forces (IDF) demolished homes in the Palestinian Territories using bulldozers ordered from Caterpillar by the IDF but paid for by the U.S. Government.            

In U.S. v. Mayer, the Ninth Circuit    amended the previously amended opinion filed June 20, 2007, with additional alterations in wording, and otherwise denied the petition for rehearing.

In Thacker v. FCC, the Ninth Circuit    held that the FCC’s extinguishment of licenses terminates any interest of the former licensee, rejecting the claim of the bankruptcy trustee of the former licensee to an interest in the proceeds of the auction of new licenses for the same radio frequency spectrum.

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On September 14, 2007, the Ninth Circuit issued one published decision, and 2 published orders.

 In Estate of Bigelow v. Comm. Of Internal Revenue, the Ninth Circuit affirmed the tax deficiency found as a result of application of a discount for lack of control and marketability to the decedent’ interest in residential property transferred inter vivos to a family partnership.   The Court affirmed the finding that the inter vivos transfer was not a bona fide sale for adequate and full consideration.  

In Villegas v. Gilroy Garlic Festival, the Ninth Circuit issued an order to rehear the case en banc.

In Betz v. Trainer Wortham, the Ninth Circuit granted the motion for rehearing by the panel.   The opinion issued May 11, 2007 and published at 486 F. 2d 590 is withdrawn.

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On September 13, 2007, the Ninth Circuit issued one published opinion:

In Nilsson v. City of Mesa, the Ninth Circuit upheld the summary judgment granted in favor of the City of Mesa, where Nilsson had waived several of her claims with informed consent, failed to preserve others by filing a claim with the EEOC, and had failed to present a material issue of fact as to pretext.  

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On Wednesday, September 12, 2007, the Ninth Circuit issued two published:

In Zurich American Insurance Company v. International Fibercom, Inc., the Ninth Circuit upheld the bankruptcy court’s method of correcting an error made in granting a § 365 assumption that was unauthorized as the contract in question was not executory, and therefore, could not be assumed. The BK court interpreted the assumption order in a way that rendered the order authorized under § 365, by limiting its terms to post petition debt.

In Marmolejo-Campos v. Gonzales,  the Ninth Circuit held a violation of Arizona Rev. Stat. § 28-1383(A)(1) for aggravated DUI (DUI while license suspended) while actually driving is a crime involving moral turpitude. Accordingly, conviction of this offense can justify removal of an alien. Senior Judge Nelson dissents, asserting that calling this conduct morally turpitudinous is illogical and unreasonable.

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On Tuesday, September 11, 2007, the Ninth Circuit issued seven new published opinions and amended a previously published opinion:

In Linkline v. SBC California, Inc.                , the Ninth Circuit held that Verizon Comm’ns, Inc. v. Law Offices of Curtis V. Trinko, 540 U.S. 398 (2004) does not bar a plaintiff from claiming a violation of §2 of the Sherman Antitrust Act for a prize squeeze by a competitor who is also a supplier at the wholesale level, but has no duty to deal with the plaintiffs absent statutory compulsion. 

In Polk v. Sandovalclearly established law. ,  the Ninth Circuit granted a writ (pending Nevada’s decision to retry Polk) overturning Polk’s conviction for first degree murder. The Court found that the instructions given at the trial allowed the jury to convict without making a finding of deliberation. After Polk’s conviction, the Nevada Supreme Court had disapproved of the same instruction in Byford v. State, 994 P.2d 700 (Nev. 2000). Polk had objected to the use the of the instruction, but the Nevada Supreme court denied relief, now holding that giving the prior instruction was not constitutional error. The Ninth Circuit held that this ruling was contrary to

In Brawders v. County of Ventura                , the Ninth Circuit affirmed and adopted as its own the Bankruptcy Appeal panel’s opinion holding that a county may be liable for violating the automatic stay in collection of taxes, but a Chapter 13 plan could not alter the County’s lien rights to collect pre-petition taxes that were unpaid. 

In Bolt v. Merrimack Pharmaceuticals, Inc.,             the Ninth Circuit affirmed summary judgment in favor of Bolt, whose stock agreement required payment if Merrimack’s net worth exceeded $5 million.  The Court rejected the claim that class B stock was required by GAAP to be listed as a liability. 

InCarrington v. U.S, the Ninth Circuit found no exceptional circumstance sufficient to grant the requested sentencing relief.

 In Northern Cheyenne v. Norton              , the Ninth Circuit upheld an injunction that prohibited development of coal bed methane in 93% the Power River Resource Area, pending completion of a revised environment impact statement by the BLM.  The opinion, authored by Judge Kleinfeld, notes that it is written in ordinary English, and might therefore be difficult for environmental specialists to read.   Accordingly, he explains, that the opinion “concerns a NEPA challenge to a ROD of the BLM concluding that a FEIS adequately evaluated CBM development under the Powder River Resource Area RMP.” He continues, but I won’t. 

In DirecTV, Inc. v. Huynh, the Ninth Circuit held that inserting modified access cards into DirecTV receivers does not constitute “assembly” as the term is used in 47 U.S.C. § 605(e)(4).

In Welles v. Turner Entertainment, the Ninth Circuit amended the opinion previously filed to insert a footnote clarifying that it was not creating a presumption against application of a  grant of rights in motion picturesto new technologies.  

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On September 10, 2007, the Ninth Circuit issued four published decisions and one published order:

In Dent v. Cox Communications Las Vegas, Inc. , the Ninth Circuit held that a Dept. of Labor supervised settlement over a wage dispute, authorized by 29 U.S.C. § 216(c) and reflected in the WH-58, did not release FLSA claims for wages earned during a different period. The WH-58 executed by Dent gave notice only that he was waiving claims for the specified period. Additionally, the legislative history of §216 suggests Congress did not intend to extend such settlements to all claims, rather than to claims specifically included in the settlement. The opinion reverses a decision rendered by Judge Jones.     

In Field v. Brown, the Ninth Circuit affirmed the denial of a habeas petition challenging the constitutionality of Field’s convictions for a multitude of violent crimes, including murder, rejecting a claim of juror bias on the basis of a the presence on the jury of a man whose wife had been abducted, beaten, raped, and robbed, where the juror had disclosed that his wife had been assaulted and robbed. The Court also reversed the grant of a habeas relief as to Field’s sentence for death, finding not constitutional error in the penalty phase of his trial. The Court also rejected a claim the jury’s consideration of the foreperson’s notes on the pros and cons of the death penalty, which included biblical references. Judges Gould, McKeown and Wardlow concurred with the outcome on the conviction, but dissented as to the penalty phase issue. Judges Berzon, Reinhardt and Thomas dissented from the majority’s conclusion as to both issues.                                              

In U.S. v. Crews, in a consolidation of two appeals arising from the execution of a warrant at the same address, the Ninth Circuit held the officers were entitled to the benefit of the good faith exception to the exclusionary rule.                                                   

In Bader v. Northern Line Layers, the Ninth Circuit held that a worker’s actual worksite is the “single site of employment” for purposes of the Worker Adjustment and Retraining Notification Act (WARN) 29 U.S.C. §§2101-2109, which requires 60 days notice of a mass layoff at a single site of employment. Because more than 50 workers were no laid off from this worksite, there was no violation of WARN.

In Sarausad v. Porter, the Ninth Circuit  denied the petition fore rehearing en banc. Four judges dissented from the denial of the petition for rehearing; Judge Callahan authored the dissent. The Court also vacated its initial order concerning Sarausad’s custody, and remanded with instructions to the District Court to determine whether Sarausad should remain in custody pending the state’s determination of whether to retry him. 

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On September 7, 2007, the Ninth Circuit issued four published decisions and one published order:

In Solidus Networks v Excel Innovations, the Ninth Circuit held that when a bankruptcy debtor seeks to enjoin a proceeding in which the debtor is not a party, the bankruptcy court must weigh the likelihood of succ4ess forhte debtor’s reorganization against the hardship to the parties, as well as any public interest. The matter here was remanded for consideration under this test.         

In Comedy Club, Inc. v Improv West, the Ninth Circuit held that an arbitrator exceeded the scope of his authority by enjoining non party-affiliates.  The arbitrator’s decision also violated California law (CBPI 16600) by prohibiting CCI from opening comedy clubs throughout the U.S., where it should only have prohibited CCI from opening clubs in counties where it already operated.

In Inouye v Kemna, the Ninth Circuit reversed the grant of qualified immunity where a parolee stated a claim that he had been forced to participate in a narcotics addiction program containing religious content, despite protesting such content.  The Court held that the right to refrain from participation in religious-based programs as a condition of parole was clearly established at the time the parole officer recommended revocation of Inouye’s parole because of his refusal to participate in AA/NA. The Court noted that in additional to various uniform decisions on the issue among the circuits, Inouye’s pending lawsuit against the prison for having forced him to participate in such programs, plus his letter to the parole board attaching relevant case law, was enough to put he parole officer on notice.  

In  Stoner v Santa Clara, the Court held that California school districts are state agencies, and therefore, are not “persons” subject to the liability for making false claims to the U.S. government under 32 U.S.C. § 3279.     State officials may be held liable under the statute in their personal capacities.  Here, however, Stoner brought the qui tam action as a relator on behalf of the U.S. government, but, while an attorney, is not admitted to practice in California. Stoner did not identify any authority to allow him to proceed pro se on behalf of the government. 

In Singh v Gonzales, the Court granted Singh’s motion for costs  and fees under the Equal Access to Justice Act.   The Court noted that if the government continued to make rejected arguments before the Court, without noting that such argument had been rejected (thereby preserving them for en banc or Supreme Court review), the Court would consider it sanctionable conduct.

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On September 6, 2007, the Ninth Circuit issued two new published opinions and two amended opinions:

In Van Duyn  v.Baker School District, the Ninth Circuit amended the opinion originally filed April 3, 2007, and published at 481 F. 3d 770. The outcome is unchanged.

In U.S. v. Atalig, the Ninth Circuit  held that the government is not required to prove which particular agency in the government has jurisdiction over the submission of false statements in order for a conviction of making false statements in violation of 18 U.S.C. § 10001.

In  U.S. v. Abbouchi, the Ninth Circuit granted the Petition for rehearing, and amended the opinion originally filed July 13, 2007. The outcome is changed in that  the District Court is instructed to resentence after reconsider the imposition of Abbouchi’s domestic violence treatment condition and its associated payment condition.

In Buone v. Kempthorne , the Ninth Circuit held that the government’s attempted transfer for a pocket of land within the Mojave National Preserve, which transfer was for the purpose of avoiding a federal injunction preventing display of a Latin cross on that land, violated the injunction.

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Zila , Inc. v. Tinnell             

American Federation Of Government Employees v. Stone      

U.S. v. Mitchell    

Dible v. City Of Chandler     

Usa v. Ankeny     

O'guinn v. McDaniel            

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HE V GONZALES

SHERMAN V U.S. PAROLE COMMISSION

DEPARTMENT OF TOXIC SUBSTANCES CONTROL V BURLINGTON NORTHERN                                          

LANDRIGAN V SCHRIRO

CASCADE HEALTH V PEACEHEALTH        

BERMAN V CIA

JORDISON V GONZALES

 

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Usa V Braswell  

Usa V Torres-Flores        

Usa V Holland   

Ortega-Cervantes V Gonzales          

New Regency Product V Nippon Herald Films

He V Gonzales

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National Resources Defense Council, Inc. V Winter                              

Aageson Grain V United States Department Of Agriculture                   

Molski V Evergreen Dynasty

Resident Councils V Leavitt 

Cir V Dunkin      

Williams V United Airlines, Inc.       

Merrick V Paul Revere Life Insurance 

Usa V Stanton     

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HYDRICK V HUNTER

WHITE V FORD MOTOR COMPANY

USA V DEGEORGE

DHX, INC. V SURFACE TRANSPORTATION BOARD

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FORESTER V INS

USA V LOPEZ

NAVARRETTE V USA

WHITE V CITY OF SPARKS

BUSCH V WOODFORD

MIGUEL-MIGUEL V HOMELAND SECURITY

SEC V PHAN

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On Tuesday, August 28, 2007, the Ninth Circuit issued five published opinions:

In Kalouma v. Gonzales, the Ninth Circuit reversed a denial of asylum, holding that the Immigration Judge had erred in determining that an amendment to 8. U.S.C. § 1158(d) required an applicant to provide information to allow the AG to carry out his duty to determine the identity of the applicant.

In Ranchers Cattlemen v. USDA, the Ninth Circuit upheld the Agency’s decision to lift a ban on Canadian beef from beef from cattle under 30 months old, finding the agency’s decision made after consideration of the proper factors.

In Camins v. Gonzales, the Ninth Circuit held that permanent residents who commit crimes or admit to committing crimes, and then leave the country temporarily , are subject to being declared inadmissible on their return; however, because this is a change in the law, the policy cannot be applied retroactively to lawful permanent residents who reasonably relied upon the old policy when they left the country.

In Rodis v. City & County of San Francisco, the Ninth Circuit upheld the denial of qualified immunity to two officers who arrested Rodis on a charge of possession or use of counterfeit money. While the officers might have believed the $100 bill Rodis had was counterfeit (it was actually genuine), they had no reasonable suspicion that Rodis had any intent to defraud.  Further, the totality of the circumstances lacked any suggestion of knowledge or intent upon Rodis’s part; the mere passing of a counterfeit bill is not a crime, absent knowledge it is a fake.

  In Sandoval-Lua v. Gonzales, the Ninth Circuit held that an alien can satisfy his burden of proof for purposes of showing eligibility for cancellation of removal, to show that he had not necessarily been convicted of an aggravated felony by producing an inconclusive record of conviction.

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On Monday, August 27, 2007, the Ninth Circuit issued seven opinions. Three are discussed below; four are discussed here. 

In Webb v. Smart Document Solutions, LLC,, the Ninth Circuit held that HIPAA regulations do not require a lower, fee-based fee to be charged to a law firm seeking its client’s medical records. The lower fee applies only when the patient requests the medical records.

In Intri-Plex Technology v. Crest Group, Inc., , the Ninth Circuit held that an attempt by an insured to split off a single claim from one previously filed by its insurer, in an attempt to recover loses not covered by insurance,  was properly dismissed.

In Nigg v. USPS,  the Ninth Circuit held that the 39 U.S.C. § 1003(c), a statute related to compensation for postal inspectors, does not conflict with or implied overturn the Fair Standards Labor Act requiring overtime pay for nonexempt employees who work more than 40 hours per week. The Court remanded the matter for determination of whether the plaintiffs are satisfy any FLSA exemption.

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On August 27, 2007, the Ninth Circuit issued seven new opinions. Four are discussed below. The other three will be discussed in the next post.

In Hoopai v. Barnhart, the Ninth Circuit upheld the district court’s affirmance of the ALJ’s determination that Hoopai was not eligible for social security disability payments.  While Hoopai was determined to be disabled and unable to perform his previous the ALJ’s determination that he could perform other work was supported by the record.  The ALJ was not required to see testimony of a rehabilitation counselor, because Hoopai’s nonexertional disability was not found to be sufficiently severe so as to limit the range of work permitted by the exertional disability.  The ALJ thus properly consulted the Medical-Vocational Guidelines to determine other jobs Hoopai could perform.

In U.S. v. Chase, the Ninth Circuit overturned a sentence for manufacture of methamphetamine, where the District Court had improperly denied the defendant’s request for an expert to assist in presenting evidence of the quantity of drug produced, where the Defendant’s testimony was that he had produced about a 10^th of what the government expert opined could have been produced. Here, an expert would have assisted defense counsel in cross-examining the government’s expert. The Court further found that the district court’s determination of the among of drug produced was based on a method that lacked indicia of reliability.

In Bryant v. Arizona  Attorney General, the Ninth Circuit affirmed the dismissal as untimely of Bryant’s habeas corpus petition.  The defendant argued that he was impeded from filing his petition in a time manner, since he was imprisoned in a facility that did not provide access to regulations creating the one year statue of limitations. However, the Court found that even if the filing period were tolled during the period the defendant had no access to the relevant legal authority, his petition was filed more than one year after he did have such access.

In The Access Fund v. Dept.  of Agriculture,  the Ninth Circuit affirmed  the decision of the Nevada District Court,  upholding the Forest Service’s decision to prohibit rock climbing at Cave rock at Lake Tahoe. The Court held that there is no violation of the establishment clause to protect an historically and culturally important site where the important of the site derives, in part, from its sacredness to  a particular group.

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SEMBIRING V GONZALES

MEJIA V GONZALES

PORT OF SEATTLE V FERC

SINGH V GONZALES

TRUTH V KENT SCHOOLS DISTRICT

USA V HURD

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AZIZIAN V WILKINSON  

FREDERICK V MORSE      

GUERRERO V RJM ACQUISITIONS      

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Coming soon.

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Coming soon.

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Coming soon.

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Coming soon.

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On Thursday, August 16, the Ninth Circuit issues eight new published opinions. Four of them are provided here, and the other four were addressed in the previous post.

In Pension Fund v. Watson Pharmaceutical, the Ninth Circuit held that Appellants, members of a purported but never certified class, did not have standing to object to lead plaintiff status when lead plaintiff voluntarily dismissed the case.  The Court rejected claims that the appellants were precluded from filing their own complaint or moving to intervene.

In U.S. v. Hernandez-Acuna, the Ninth Circuit rejected a claim that a failure to hold an evidentiary hearing when rejecting a magistrate recommendation to suppress evidence violated due process.  The Court that because the relevant witnesses testified at trial, and the motion to suppress was renewed, and rejected, at trial, remand for an evidentiary hearing is not warranted.

In U.S. v. Lambert, the Ninth Circuit rejected the claim that the sentence enhancement set forth in U.S.S.G. § 2F1.1 cmt. n.5 (200) was intended to apply only where the defendant intended to exploit the generosity, trust, or charitable motives of his victim.

In  Int'l Union of Painters Local 1621 v  B&B Glass, Inc, the Ninth Circuit upheld a motion to dismiss against the union. The union sought to force B & B, a Texas company, to arbitrate claims the union has against a B & B Glass that  is an Arizona company. The union had a contract requiring arbitration with the Texas company. Evidence supported a conclusion that the Texas company had no control over the Arizona company. The Court rejected a claim that because the companies had shareholders in common, there was sufficient control, holding that the union was required to show actual management control.

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On Thursday, August 16, the Ninth Circuit issues eight new published opinions. Four of them are provided here, and the other four will be addressed in the next post.

In U.S. v. Yida the Ninth Circuit held that the consideration of the  reasonableness of the government’s efforts to procure a witness for trial must include action taken both before and after deportation, where the government knew of the desirability of the witness’s testimony prior to deportation.  Here, the government’s decision to allow the witness to leave was not reasonable. Accordingly, the witness was not unavailable for FRE 804 purposes.

In Babasa v. Lencrafters, Inc., the Ninth Circuit held that a letter received for mediation purposes could serve as notice that the amount in controversy so as to begin the running of the time for removal.

In Lewis v. Astrue, the Ninth Circuit amended the opinion originally filed on July 3, 2007 to correct the identification of counsel for the appellee.

In Estrada-Espinoza v. Gonzales, the Ninth Circuit held that California’s statutory rape offense constitutes “sexual abuse of a minor” within the meaning of 8 U.S.C. § 1101, rendering Estrada-Espinoza removable as an “aggravated felon.” Judges Thomas and Leighton concur, finding as did the majority, Afridi v. Gonzales, 442 F. 2d 1212 (9^th Cir. 2006) controlling, but asserting that Affridi was wrongly decided, as the California statutory rape offenses do not require “abuse” to have occurred. California’s age of consent is 18.  Here, the minor in question was “15 or 16” at the beginning of the relationship, which was live-in, and was conducted with knowledge of the parents of both parties and lasted for several years.   

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Congratulations to Judge Marsha S. Berzon, circuit judge for the Ninth Circuit, on being chosen to receive the 2007 Margaret Brent Women Lawyers of Achievement Award by the ABA Commission on Women in the Profession. The award is given to recognize professional excellence, influence on other women in the profession, and leadership in expanding opportunities for women in the profession.   The Commission chose Judge Berzon to receive this year’s award, noting that she was among the first women to serve as law clerks for federal judges, helped expand opportunities for women practicing labor law, had a role in passing legislation advancing the interest of women in the workplace, and coauthored an opinion permitting suits against states over family and medical leave.

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On Wednesday, August 15, the Ninth Circuit issued one order and certified a question to the Oregon Supreme Court:

In The Assoc. OF American Physicians & Surgeons v. Brewer, the Ninth Circuit clarified the order filed July 18, 2007 to state that the complaint  states a cause of action.

In Farmer v. Baldwin, a 12 page opinion explaining the factual background giving rise to the question, , the Ninth Circuit certified the following question to the Supreme Court of Oregon:

Whether, under its rules or practice, the Oregon Supreme Court would deem a federal question not properly raised before it, when that question had been presented by means of an attachment to a Balfour brief field in the Court of Appeals, and the attachment served as (but was not labeled as) Section B of the said brief, and the petitioner states in his petition that his reasons for seeking review are set forth in the Balfour brief.

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On Tuesday, August 14, the Ninth Circuit issued two new published opinions.

In U.S. v. Seljan, the Ninth Circuit upheld convictions of counts of attempting to engage in interstate travel for the purpose of illicit sexual intercourse, using interstate facilities to entice a minor, and possessing and producing child pornography.  The Court rejected the claim that evidence of sexually explicit letters in internationally bound packages, discovered by customs officials in routine searches at FedEx’s regional hub, should have been suppressed.   The Court upheld the search, which included opening sealed envelopes contained inside the packages, because the custom officers were engaged in an interdiction action focused on currency smuggling, for which customs officials are specifically granted the right to open any envelope. Once potentially unlawful conduct was noted, further investigation was permitted. Click here for the Appendix to the opinion, which contains the letter Seljan wrote to a girl he at least believed to be 8 years old. The opinion notes that Seljan was 87 years old at the time of sentencing

In Bickner v.  E.I. DuPont, the Ninth Circuit ruled on a number of matters of first impression involving the Price Anderson Act (PAA), a federal statute government nuclear accidents.  The case involves claims that DuPont is liable for illness arising due to DuPont’s spillage of radioiodine into an area surrounding its plant where the bomb dropped on Nagasaki was produced. The Court held that

DuPont could not invoke the government contractor defense because the PAA was  enacted before such a    defense was recognized;

DuPont could be held strictly liable;

The District Court properly applied Washington law in ruling that plaintiffs had to satisfy the “but for” test  rather than the more lenient “substantial factor” test;

Plaintiffs who filed actions outside the class could be bared by the statute of limitations if those separate actions were untimely.

                Medical monitoring claims were properly dismissed as not cognizable under the PAA.

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On Monday, August 13, the Ninth Circuit issues five new published opinions.

In Emmert Industrial Corp v. Artisan Assocs., the Ninth Circuit held that the time for filing a claim for transportation charges set forth in 49 U.S.C. § 14705 of the ICCTA apply even where the carrier has not filed a tariff.  The Court affirmed the summary judgment granted to Artisan for the claims for transportation services provided. However, the Court also held a contract underlying a third claim to be ambiguous, and reversed and remanded the summary judgment granted as to Emmert’s breach of contract claim.

In Womack v. Del Papa, a habeas appeal arising out of Nevada, the Ninth Circuit held Womack did not receive ineffective assistance of counsel when his attorney advised him a guilty plea was a his “best chance” of receiving a minimum sentence. Although Womack did not receive the minimum sentence, nothing in the record suggests the attorney’s advice was erroneous, or that Womack did know the possible sentences he could receive. 

In Im v. Gonzales, the Ninth Circuit found that the act of unlocking a cell door so that prisoners could be taken to interrogation rooms was not an act integral to persecution. Accordingly, Im, who was once employed at a prison to perform such tasks, was not ineligible for asylum under 8 C.F.R. § 208 13. 

In AmerisourceBergen Corp. v. Roden, the Ninth Circuit held that abstention was not required, reversing the dismissal of a diversity case by the district court. The Court disapproved of the District Court’s balancing of Younger factors, rather than determining whether each factor is satisfied. The Court also clarified that all four of the Younger factors must be satisfied before abstention may occur: 1) a state initiated proceeding is ongoing; 2) that proceeding implicates an important state interest with implications beyond the case itself; 3) the federal litigant is not barred from litigating federal constitutional questions in that proceeding; and 4) the federal action would no enjoin the state proceeding. Diversity action may proceed. Here, the ongoing state proceeding did not concern important state issues; additionally, the federal action would not require the state action to be enjoined.  The Court suggested that AmerisourceBergen’s switch to federal court might have been motivation but its continuing lack of success in the state court, and expressed regret that the District court’s obligation to exercise jurisdiction it has had required the expense to which the parties had been put, as well as for the use of resources in two overburdened court systems, and

In Gulla v. Gonzales, the Ninth Circuit held the Immigration Judge abused his discretion in denying asylum, where the denial was because 1) Gulla had traveled through 3 countries before arriving at the US; 2) Gulla was in good health and not of tender age when he arrived, and 3) Gulla used forged passports  to reach the U.S border.  The IJ failed to balance favorable and negative factors, and gave reasons for the decision the Court described as “not rational.”

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On Friday, August 10, 2007, the Ninth Circuit issued four new published opinions, one amended opinion, and one order for en banc rehearing:

In U.S. v. Aukai, the Ninth Circuit held that the reasonableness of searches of passengers flying on commercial airlines does not depend, in whole or in part, upon consent of the passenger.  Aukai was in such a hurry to catch his flight that he apparently forgot not only his ID, but also that he carried a pipe and methamphetamine. His lack of ID left him subject to additional searches, including a hand-held magnetometer.  The bulge of his pipe in his pants pocket was noticed. Although he announced he no longer wished to board a flight when he was asked to reveal the item, the search continued. The Court held that  allowing a search to end because a passenger declines to fly “makes little sense in a post-0/11 world” as potential terrorists would otherwise have “multiple opportunities to attempt to penetrate airport security by “electing not to fly” on the cusp of detection until a vulnerable portal is found.”

In Cedars-Sinai v. National League of Postmasters, the Ninth Circuit reversed the dismissal in favor of NLP, finding that the hospital’s claims for payment for services rendered was no a claim for medical benefits preempted by the Federal Employees Health Benefit Act (FEHBA), but instead, a contractual claim. FEHBA’s administrative dispute mechanisms were not intended to apply to such contractual claims, but instead, were intended to benefit persons covered under the plan.

In U.S. v. Garcia, the Ninth Circuit reversed  4 of the 18 counts on which Garcia was convicted of conspiring to traffic in distribution of methamphetamine, where there was no evidence of Garcia supplying the methamphetamine at issue in those counts.  The Court remanded 2 additional convictions, where the District Court had granted a motion for acquittal to a codefendant, on the basis that a coconspirator had no longer been part of the conspiracy.  The Court affirmed the sentence enhancements applied to Garcia, as the evidence supported his role as a leader of the conspiracy, and the allegation that he recruited minors to joint the conspiracy. In the consolidated appeal, the Court reversed and remanded a sentence imposed for drug trafficking of a codefendant of Garcia, where the District Court held it could not consider the defendant’s drug conviction as a mitigating factor in sentencing.

In Giles v. GMAC, in consolidated appeals of two diversity matters raised under Nevada law,  the Ninth Circuit reversed both district courts.  The Yerington Ford matter is reversed as the court misapplied Nevada’s economic loss rule.  The opinion thus reverses the decision published at 359 F. Supp. 2d 1075 (D. Nev. 2004).  The Giles Chevrolet case is reversed as the District Court misapplied Nevada’s preclusion law.

In Vacation Village v. Clark County,  the Ninth Circuit amended the opinion originally filed July 23, 2007.  The outcome is unchanged.

In Plumlee v. Masto, the Ninth Circuit ordered            the matter to be reheard on banc, and ordered that the 3-judge panel decision previously issued in the case shall not be cited as precedent, except as adopt by the Court en banc.

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On Thursday, August 9, 2007, the Ninth Circuit issued four published opinions:

In Grocery Outlet Inc. v. Albertson’s Inc., in a per curiam decision,  the Ninth Circuit upheld a preliminary injunction barring Grocery Outlet from using the trademarked name “Lucky.” The court held there was no abuse of discretion in the District Court’s finding that Albertson’s was showed a strong likelihood of success on the merits, or in the conclusion that Albertson’s did not abandon the trademark. Judges Wallace and McKeown writing concurring opinions discussing the burden of proof for an abandonment defense.  Wallace holds the burden is strict, which he defines as requiring “clear and convincing evidence.” McKeown asserts that the Circuit has not decided the appropriate burden.

In Hernandez de Anderson v. Gonzales, the Ninth Circuit held that the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)may not be retroactively applied to applications for naturalization filed prior to its effective date, where such application would cancel rights held prior to the effective date, and where the immigrant can show an objectively reasonable reliance upon prior law.  Here, at the time she applied for naturalization, the immigrant would have been eligible to move for suspension of deportation proceedings.  After IIRIRA, she was no longer eligible to move to cancel removal proceedings.    The Court held that it was objectively reasonable for her to rely on her eligibility to seek to suspend deportation.

In Lockett v. Catalina Channel Express., the Ninth Circuit held that an ADA violation does not occur where an entity makes a one-time reasonable judgment under 28 CFR  §38.208 (permitting denial of accommodation where a risk to health and safety is posed), while investigating the competing interests between the health and safety of one customer and the ADA rights of another. Here, the ferry service declined to sell a ticket to a specific location of its boat to a blind passenger accompanied by a guide dog, where the location had been reserved to be animal dander free to accommodate an allergic passenger.  The Court noted that the ferry service’s change of policy to allow guide animals in all locations otherwise accessible was wise.

In Craig v. M & O Agencies, Inc., the Ninth Circuit reversed the grant of summary judgment on Title VII claims against an a supervisor and employer, where a jury could find the alleged conduct created a hostile work environment and where the employee’s delay of nineteen days in reporting the unwelcome conduct was not objectively unreasonable. The Court also held that, under Arizona law, a supervisor’s repeated propositioning of an employee, following her into the restroom, and grabbing her and sticking his tongue in her mouth can be outrageous conduct. However, the employer is not responsible for such conduct by its employee.

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On Wednesday, August 8, 2007, the Ninth Circuit issued two published opinions:

In McElmurry v. U.S. Bank National Assn., the Ninth Circuit held that a denial of a motion to issue notice of a collective action is not “effectively unreviewable on appeal.”  Accordingly, an interlocutory appeal is not available. 

In Hernandez-Ortiz v. Gonzales, the Ninth Circuit reversed a denial of asylum to two brothers from Guatemala, of Mayan descent, who were persecuting during events of ethnic cleansing. The Court joined the Second, Sixth, and seventh Circuits in holding that “injuries to a family must be considered in an asylum case where the events that form the basis of the past persecution claimed were perceived when the petitioner was a child.” The Court found that the IJ’s findings of lack of credibility were not supported by substantial evidence.

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On Tuesday, August 7, 2007, the Ninth Circuit certified a question to the California Supreme Court and issued one published opinion:

In Fantasyland Video v. County of San Diego, the Ninth Circuit certified the following question to the California Supreme Court:

Under the California Constitution’s liberty of speech clause, should [the Court] review the constitutionality of an ordinance that sets closing times for adult entertainment establishments under strict scrutiny, intermediate scrutiny, or some other standard.

In Day v. Apoliona, the Ninth Circuit held that the U.S. Supreme Court had not undermined Ninth Circuit precedent regarding the viability of § 1983 suits in defending the rights of Native Hawaiians to benefit from lands held in trust pursuant to the Hawaii Admission Act. The Court reversed the District Court’s dismissal of action, and remanded for further proceedings.

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On Monday, August 6, 2007, the Ninth Circuit issued four published opinions:

In U.S. v. Bolanos-Hernandez, the Ninth Circuit held that a California conviction of an assault with intent to commit rape is a conviction of a crime of violence for purposes of sentence enhancement, as it requires at least the attempted application of more physical force than that required to achieve sexual penetration. The court also rejected the defendant’s claims that the court made improper factual findings, finding that the defendant had admitted the fact of his previous deportation.

In Porter v. Jones, the Ninth Circuit held that threats to prosecute operators of  “vote-swapping” websites violates the first amendment. Vote-swapping was an enterprise by which adherents who vote in “swing-states” would agree to vote for mainstream candidates, in return for promises by voters in “safe” states to vote for fringe candidates. The purposes of such vote swapping is to allow the fringe candidates to achieve enough national votes to qualify for federal funding for the party, while not endangering the chances of the mainstream candidates.   The Court found that threats by California’s then Secretary of State, Bill Jones to prosecute the website operators were not sufficiently tailored to serve the state’s legitimate purpose of preventing voter fraud.  However, the Court found that Jones was entitled to qualified immunity in this § 1983 action, as the unconstitutionality of halting vote swapping was not clearly established in 2000.  

In Northern California River Watch v. City of Healdsburg, the Ninth Circuit withdrew the opinion previously filed on August 10, 2006, reported at 457 F.2d 1023. The outcome is unchanged.

In U.S. v. Riedl, the Ninth Circuit rejected a Petition for writ of error coram nobis.  Reidl, who was convicted of and served her sentence for five counts of money laundering, sought to challenge the constitutionality of the statute under which she was convicted.  The Court held that Reidl had waited too long to raise her constitutional challenge, and gave no valid reason for her delay. The Court also rejected Reidl’s claim that she need show delay only in rebuttal to a laches argument, which would require the government to show it was prejudiced by the delay.

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On Friday, August 3, 2007, the Ninth Circuit issued three published opinions:

In U.S. v. Moses, the Ninth Circuit held that a man-made diversion of a stream, with water flow for two months out of the year is part of the “waters of the United States” for purposes of the Clean Water Act. The path of the stream, while dry, remains part of the waters. Placement of pollutant into the dry stream bed can support a verdict for discharge of a pollutant. The opinion, authored by Judge Fernandez, surges with a steady flow of watery allusions.

In Vargas-Hernandez v. Gonzales, an appeal of removal, the Ninth Circuit rejected a claim that the Petitioner’s due process rights were violated by a biased Immigration Judge. The Court found the Petitioners’ attempt to remand the matter so he could claim entitlement to stay as the spouse of a citizen had been untimely, and dismissed the portion of the appeal based upon Petitioner’s claimed that he had committed the offense underlying his removal as a juvenile, where he had been tried and convicted as an adult.

In U.S. v. Valenzuela, the Ninth Circuit rejected a claim that sentence enhancement for possession of a weapon during commission of a felony was improper where the underlying felony was trafficking in stolen weapons.  The Court found the evidence supported the conclusion that Valenzuela was emboldened in his criminal activity by his possession of the weapons.

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On Thursday, August 2, 2007, the Ninth Circuit issued four published opinions and one published order:

In Payan v. Aramark Management, the Ninth Circuit held that where the date of actual receipt of a right to sue letter for Title VII claims is unknown, the Court will apply a three day from mailing presumption. Applying that rule, the Court determined Payan’s suit was untimely, and affirmed the grant of summary judgment in favor of the employer, Aramark.

In Jada Toys Inc v. Mattel Inc., the Ninth Circuit held that consideration of trademark infringement claims require that all eight of the Sleekcraft factors be employed (1) strength of the mark; 2)proximity of the goods; 3)similarity of the marks; 4) evidence of actual confusion; 6)marketing channels; 6) type of goods and degree of care in selecting the mark; 7)defendant’s intent in selecting the mark; and 8) likelihood of expansion of the product lines.  A district court may not rely on dissimilarity alone to hold there is no infringement.  

In Charles Schwab Corp. v. CIR, in a per curiam decision, the Ninth Circuit held that deductions of state tax paid accrue for federal tax purposes on the date provided by state law prior to 196, as required by IRC 461(d)(1). In California, prior to 1961, state franchise tax payments accrued on the first day of the year.  Even though California law has subsequently changed, and such payments accrue on the last day of the year, the federal taxpayer may deduct the payment only for the following year.

In Hoyle v. DA County,  in a habeas proceeding, the Ninth Circuit denied relief where the Petitioner had been acquitted of racketeering charges, but the jury had been unable to reach agreement as to seven predicate acts.  The state subsequently successfully prosecuted Hoyle for five of those seven acts. The Court rejected Hoyle’s claim that the prosecuting was barred by double jeopardy, holding that the jury’s written exception of the seven acts from its acquittal verdict was unambiguous.

The Court also vacated the panel decision in Beck v. Pace Inter’lBeck v. PACE Int’l Union on June 11, 2007. published at 427 F.3d 668, consistent with the U.S. Supreme Court ruling in

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On Wednesday, August 1, 2007, the Ninth Circuit issued two published opinions:

In U.S. v. Larson , the Ninth Circuit held that a defendant’s right to confront witnesses is violated when he is precluded from cross-examining a witness regarding favorable treatment received from authorities in return for testimony.   The Court "clarified" that review of confrontation claims regarding exclusion of an area of inquiry requires de novo review, while review of limitations on cross-examination made because of concerns for harassment, prejudice, confusion, etc., will be for an abuse of discretion.  Here, the denial of cross examination of witnesses regarding the mandatory life sentences they would have received without giving testimony was harmless error. 

This opinion joined by four judges, had a concurrence with another four, and a dissent of seven, and is getting lots of attention.  Greg May at The California Blog of Appeal has collected blog commentary on the case  at More on U.S. v. Larson.

Far less controversial is U.S. v. Goetzke, where, in a per curiam decision, the Ninth Circuit held that an attempt to persuade, induce, entice, or coerce a minor into sexual activity can occur, even though the defendant does not actually have contact with the intended victim.  Here, the defendants letters to the intended child victim never actually reached the victim, having initially been intercepted by the child’s mother.  The subsequent correspondence, which included Goetzke’s expressed hope that the child would allow sexual activity, occurred between the Goetzke and authorities posing as the child.

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No doubt you’ve been thinking that I am once again falling behind in my reporting of decisions from the Ninth Circuit. However, I am innocent of shirking my duties this time. The Court did not issue any opinions on July 30 or July 31.

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On Friday, July 27, the Ninth Circuit issued one amended opinion:

In U.S. v. Lopez, the Ninth Circuit amended the opinion originally filed November 30, 2006 by making number word changes, adding a discussion of the defendant’s Apprendi claim in which the majority found that Lopez admitted his prior conviction. The amended opinion also includes a concurrence by Judge Wardlow, who disagrees that the prior conviction was admitted by Lopez, but otherwise agrees with the outcome. The affirmance of the conviction and sentence is unchanged.  

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Today, the Ninth Circuit issued two published opinions:

In Morgan v. Gonzales, the Ninth Circuit rejected claims that the federal government must be estopped to remove an alien who claimed he had cooperated with authorities in a criminal investigation twenty-five years before. Morgan failed to show that he had been actually promised he would not be deported in return for his cooperation.

In U.S. v. Sperow, the Ninth Circuit rejected a claim that a Sperow’s right to speedy trial had been violated, even though the indictment occurred in 1996 and trial occurred in 2004. However, the delay was due to Sperow’s evasion of authorities. However, the Court found the government’s ambiguous filings with respect to its notice to eek enhancement resulted in a failure to give timely notice of an intent to use a prior conviction to enhance the sentence; accordingly, the Court remanded for resentencing without the enhancement.

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On Wednesday, July 25, the Ninth Circuit issued two published decisions, and amended one previously issued decision:

In U.S. v. Castillo, an en banc decision, the Ninth Circuit held that it has jurisdiction to hear an appeal of a conviction resulting from a valid guilty plea. The Court held that only Congress can give of take away jurisdiction of the circuit courts; no agreement by the parties can do so. The Court overruled its own precedent inconsistent with that position.

In Petrone v. Malone, the Ninth Circuit held that a notice of settlement that including a estimate of average settlement amount per share that was based upon an undisclosed assumption that fewer than 100% of shareholders would file claims was inadequate under the PSLRA.

In U.S. v. Forrester, the Ninth Circuit amended the opinion originally filed on July 6, 2007.  The outcome was unchanged.         

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The Ninth Circuit today issued four published opinions”

In U.S. v. Castillo-Basa, the Ninth Circuit rejected the sua sponte call for rehearing en banc. Five judges dissented from the rejection of the rehearing, asserting that the Court’s decision essentially held that where a defendant convincing lies at his trial, he may not thereafter be prosecuted for perjury.

In U.S. v. Figueroa-Ocampo, the Ninth Circuit remanded for resentencing where sentence enhancement for an immigration offense had been based upon a crime that, while a felony under California law, was only a misdemeanor under federal law. The Court held that an “aggravated felony” for immigration offense sentencing enhancement must be for a crime that would be a felony under federal law. 

In Oregon Natural Resources v. Timber Products Co.,.the Ninth Circuit affirmed the district court’s invalidation of the Timbered Rock Fire Salvage and Elk Creek Watershed Restoration Project

In Golden Pisces, Inc. v. Fred Wahl Marine Construction, Inc., the Ninth Circuit affirmed the district court’s denial of an award of attorneys, where no statute, contract or equitable principal support such an award. The court noted that the American Rule, which limits an award of attorney fees to where one of those three conditions justifies such an award, applies in marine litigation.

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Amendements and revisions to the Ninth Circuit's Rules and Advisory Committee notes, effective July 1, 2007, are available here.

Amongthe revisions of note is a return to the 11-judge en banc panel, following the court's experiementation with 15-judge panels.

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In Hamilton Materials v. Union Carbide Corp., the Ninth Circuit affirmed the dismissal as time barred of Hamilton’s claims that Union Carbide misled it regarding the dangers of asbestos products.  The court held that a reasonably person, particularly a sophisticated manufacturer of asbestos that had been sued hundred of times because of asbestos dangers, would have suspected union Carbide’s alleged duplicity long before.

In Vacation Village Inc.. v. Clark County, Nevada, the Ninth Circuit relied on the Nevada Supreme Court opinion of McCarren Int’l Airport v. Sisolak  137 P.3d 1110 (Nev. 2006), to hold an ordinance limiting construction heights resulted in a per se regulatory taking of airspace.  The Court found that ordinances that prevent result in a physical invasion of airspace constitute a taking under Nevada’s constitution.  An ordinance that merely limited the property to certain uses, however, is not a per se regulatory taking.

In Winzer v. Hall, the Ninth Circuit reversed and remanded with instructions to issue a writ of habeas, finding that admission of the a hearsay statement that the defendant threatened the victim was a violation of the confrontation clause.  The statement, made by the alleged victim to a police officer 5 ½ hours after the threat, was not properly admitted under the spontaneous utterance exception to the hearsay rule, where the victim had made such a calm 911 call between the time of the threat and the statement, that the court deemed it proper to deny admission of the 911 call.

In Magtanong v. Gonzales the Ninth Circuit dismissed the appeal as untimely filed, refusing to make allowance where the overnight carrier used by the Petitioner let him down and took two days to deliver, instead of one.  The court named the carrier as DHL.

In Muradin v. Gonzales, the Ninth Circuit remanded the matter for determination of whether Muradin’s persecution at the hands of the Armenian government was due to his membership of a particular social group.  The Court also vacated the BIA’s order denying Muradin eligibility for relief under the Convention Against Torture. The Court affirmed the BIA’s finding that Muradin had failed to establish his persecution was due to imputation of his mother’s political opinions. 

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The Ninth Circuit issued only one published decision on July 20:

In Poland v. Chertoff, the Ninth Circuit affirmed a finding that the Customs office had retaliated against an employee for filing an age discrimination claim. The Court that where a biased subordinate initiates a proceeding decided by an independent decision maker; the bias of the subordinate will be imputed to the employer where the decision-making process influenced the decision. The Court reversed a finding that the claimant had been constructive discharged, holding that constructive discharge is shown only where working conditions are so poor they trump a reasonable person’s motivation to earn a living.

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 In U.S. v. Bibler, the Ninth Circuit amended, for he second time, the opinion originally filed May 4, 2007. The outcome is changed in that rather than the appeal being dismissed, the district court decision is affirmed.  

In Kutasi v. Las Vigenes Unified, the Ninth Circuit reaffirmed the principles that, prior to filing an action seeking relief for any claim addressable through the IDEA, administrative remedies must be exhausted.  The claims alleged violations of the ADA and the Rehabilitation Act, as well as § 1983 claims, but sought, at least in part, relief obtainable through the IDEA. 

In Hemmerle v. Schiro, the Ninth Circuit determined that, where a state appellate court has concluded its review, the statute of limitations for filing a petition for writ of habeas corpus begins to run.  

In Singh v. Gonzales, the Ninth Circuit granted the petition for rehearing, withdrawing the opinion filed November 28, 2006. The Court remanded the matter to the BIA to consider whether the presumption of correct mailing of the BIA’s decision was rebutted by the affidavits of nonreceipt which accompanied the Singh’s motion to reopen.

In Nehmer v. US Department of Veterans, the Ninth Circuit ordered the VA to pay to pay retroactive benefits to Vietnam War veterans exposed to Agent Orange who later contracted a  and contracted a form of leukemia. Judge Reinhardt, writing for the panel, chided the  agency for its position in the case, saying that agency’s performance “has contributed substantially to our sense of national shame.”

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On Wednesday, July 18, 2007, the Ninth Circuit issued four new published opinions, and one published order.:

In Douglas v. USDC Central District, the Ninth Circuit, in a per curiam decision, held that a service provider may not change the terms of its service by merely posting a revised contract on its website; a contract cannot be unilaterally changed. Here, the district court had ordered arbitration, but he arbitration clause had been among the unilateral changes to the contract. The Court issued a writ of mandamus vacating the order compelling arbitration. 

In U.S. v. Diaz-Leuvano, the Ninth Circuit clarified that its decision in Morales-Izqueirdo v. Gonzales, 486 F. 3d 484 (9^th Cir. 2007) did not overrule U.S. v. Luna-Madellagna, 315 F.3d 1224 (9th Cir. 2003). Physical removal continues to be a valid bases for sentence enhancement.

In Hadera v. Gonzales, the Ninth Circuit remanded the matter to the BIA to redetermine Hadera’s country of removal, as the designated country, Ethiopia, was merely the country where Hadera’s parents were born; he had no other connection to that nation.

In U.S. v. Diaz-Castaneda, the Ninth Circuit held that a license plate check that reveals the person’s car ownership, driver status, and criminal record is not a search for fourth amendment purposes.

In Ass’n of American Physicians & Surgeons v Brewer, the Ninth Circuit granted the petition for rehearing of Plaintiff-Appellant Dean Martin.

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On Tuesday, July 17, the Ninth Circuit issued three new published opinions, and amended two opinions:

In Ball v. Rodgers, the Ninth Circuit dismissed claims by a class of elderly Medicaid beneficiaries suing the State f Arizona for alleged failures to provided adequate community and home based care, as 42 U.S.C. §1396(a)(30)(A) does not provided individual rights enforcement under § 1983. However, the court upheld other claims brought under the “free choice” provisions, § 1396(n)(2)(C)and (d)(2)(C), holding such rights may be enforced through a §1983 action.

In U.S. v. Jenkins, the Ninth Circuit upheld the dismissal of an indictment for vindictive prosecution. Jenkins had twice been arrested for alien smuggling, stating each time she had been paid to drive the car containing illegal aliens  across the border. She was later prosecuted for marijuana smuggling, and testified in her own behalf, stating she believed the car she had been paid to drive contained illegal aliens, as had happened on two previous occasions prior to the marijuana smuggling After her testimony, the government filed the alien smuggling charges. The Court agreed with the district court that the timing of the charges, suggested retaliation for Jenkins testifying on her own behalf.

In Ministry of Defense v. Elahi, the Ninth Circuit made several amendments to the opinion originally filed on May 30, 2007. The outcome is unchanged.

In Edgerly v. City & County of San Francisco, the Ninth Circuit held that Edgerly was entitled to judgment as a matter of law on his §1983 claim for an arrest made without probable cause, reversing the district court’s grant of judgment to the defendants.

In U.S. v. Sine, the Ninth Circuit made several amendments to the opinion originally filed on May 1, 2007. The outcome is unchanged.

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On Monday, July 16, 2007, the Ninth Circuit issued three new published opinions, and substituted a new opinion for one previously issued:

In Orn v. Astrue, the Ninth Circuit held that the evidence presented by the claimant had established his entitlement to SSI benefits. The Court held that the ALJ improperly disregarding the testimony of two treating physicians and the claimant in finding the claimant of performing sedentary work.

In U.S. v. Jimison, the Ninth Circuit held that a statement, made under stress by the defendant, that he might “go Rambo” was insufficient evidence to support a sentence enhancement based upon an intent to use firearms in a shoot out with police. Ge Kozinski’s opinion includes quotes from the film 12 Angry Men.

In yet another change in Benitez v. Garcia, the Ninth Circuit withdrew its opinion originally filed on January 22, 2007 (which had replaced one filed May 23, 2006 )and amended on February 8, 2007. The outcome is changed: Benitez is denied habeas relief. The Venezuelan government relinquished custody of Benitez without extracting an agreement to limit his sentence.  Accordingly, even though the treaty between the countries permits Venezuela to extract a promise that a sentence of death or life imprisonment will not be imposed, where custody is relinquished without such an agreement, the state may impose a life sentence.

In R.B. v. Napa Valley Unified, the Ninth Circuit upheld a decision that R.B. was not entitled to special education services. The Court held that a procedural violation of the IDEA does not violate FAPE where the child has failed to establish eligibility for special education services.

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On July 13, 2007, the Ninth Circuit issued two new published opinions, and amended two previously issued opinions.

In US Mortgage, Inc. v. Saxton, the Ninth Circuit affirmed the dismissal for failure to state a claim of a securities regulation class action brought under the guise of Arizona state law claims. 

In Tanner v. McDaniel, the Ninth Circuit rejected a habeas petition arising out of a Nevada murder conviction.  The Court was unpersuaded by Tanner’s claims that following his plea of guilty to murder, his attorney should have consulted with him regarding an appeal, as no nonfrivolous grounds for appeal were present in his case.

In Earth Island  Institute v. Hogarth, the Ninth Circuit amended the opinion originally filed April 27, 2007 by substituting a sentence.  The outcome is unchanged.

In Irons v. Carey, the Ninth Circuit amended the opinion originally filed March 6, 2007 by substituting several words.  Additionally, Judge Noonan’s concurring opinion was also amended, with several word substitutions, as well as the addition of a paragraph discussing whether habeas corpus is essential to due process.  The outcome is unchanged.

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The Court issued only one published opinion on July 12, 2007:

In U.S. v. Grace, an interlocutory appeal by the government,  the Ninth Circuit held that a district court has no authority to require the government to provide a pretrial list of nonexpert witnesses in a criminal case, and accordingly, cannot exclude witnesses not included from such a list.

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InU.S. v. Shea, the Ninth Circuit affirmed a conviction under the Computer Fraud and Abuse Act, finding the evidence sufficient. The evidence supported the government’s contention that Shea was the source of a “time bomb” program that caused damage to data contained in his former employer’s computers, where the programming was tied to his user name, he had access to the relevant files, he possessed the relatively unique skills necessary to programming involved, he had an antagonistic relationship with the company, and the timing of the programming actions was closely tied to certain unfavorable actions taken against him.

In Dunn & Black PS v. U.S., the Ninth Circuit held that sovereign immunity precludes certain claims by a law firm against the U.S. Government, where the law firm sought to collect fees earned in its successful representation of a client against the government under a contract claim.  The client’s judgment, however, had been claimed by the IRS to repay outstanding taxes. The Court held that IRA refund rules could not waive sovereign immunity, where the law firm had not made the necessary administrative claim for a refund. The Court also rejected an argument that immunity was waived by 28 U.S.C. §2410, involving lien interests, because the government had claimed an ownership interest, rather than lien interest, in the proceeds of the client’s judgment.  

 

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In U.S. v. Horvath,  the Ninth Circuit held that there can be no criminal liability for making a false statement to a probation officer in a presentence interview, where the probation officer is required to include the statement in the presentence report to the judge.  18 U.S.C. §1001 makes it an offense to knowingly make a materially false statement to the federal government a crime, but creates an exception where  the false statement is made to a judge in a judicial proceeding. The Court’s decision extends that exception to the presentence environment.

In Fisher v. NOS Communications, a multidistrict litigation case arising partially out of Nevada, the Ninth Circuit affirmed the dismissal of FCC and other state law tort claims, reversed the district court’s denial of remand for claims brought under Washington’s consumer protection laws, and reversed the district court’s dismissal of certain “Truth in Billing” and state law tort claims. The plaintiffs are customers of interstate telecommunications companies. Their complaints, separately filed in assorted courts, alleged claims associated with the defendants’ billing practices. The FCC claims were dismissed as the claims relied upon challenges to filed and approved tariffs. Remand was upheld where the only claims alleged were state law claims that could be determined without reference to federal law.  The Court held that the stated law claims are preempted where such  claims seek damages referencing the filed-rate, but claims that do not attack the rates nor require reference to the filed-rate are not preempted (a ruling that keeps the claims of Nevada plaintiff’s, Fisher, alive).  “Truth-in-Billing” claims predating the Truth-in-Billing the effective date of that regulation were dismissed, as the Truth-in-Billing regulations do not apply retroactively.

In U.S. v. Snellenberger, the Ninth Circuit amended the opinion originally filed April 3, 2007, and withdrew the concurring opinion originally filed by Judge Hawkins. Judge Hawkins joins in the amended opinion, which does not alter the outcome of the decision.

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In U.S. v. Jernigan, the Ninth Circuit granted a new trial, where the prosecution failed to inform the defense that crimes committed by a suspect matching the defendant’s description continued while she was in custody.

 In Crater v. Galaza, the Ninth Circuit again finds the Anti-Terrorism and Effective Death Penalty Act constitutional, rejecting a claim that the Act effectively suspends all privileges of writs of habeas corpus. The Court agreed with the Fourth and Seventh Circuits in finding that the ct merely alters the standards on which writs issue.   The Court rejected a claim that the Act infringes upon federal court power by requiring consideration of whether a state court’s appellate decision was not “contrary to” or “an unreasonable application of” U.S. Supreme Court decisions.

In Abebe v. Gonzales, the Ninth Circuit denied a petition seeking to prevent removal of an alien due to conviction of an offense of sexual misconduct with a minor. The Court joined the First, Third, Fifth and Seventh Circuits in finding that a statute need no longer be interpreted to apply an exception to exclusion to prevent removal.

In Loma Linda University v. Leavitt, the Ninth Circuit held that the Provider Reimbursement Review Board may order reimbursement for a provider’s cost allowable under the Medicare regulations, but excluded from the provider’s cost report. The Court joined with the First Circuit in reaching this conclusion, and disagrees with the Seventh’s Circuit’s resolution of this issue.

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In U.S. v. Ruiz-Chairez, the Ninth Circuit affirmed a level 16 sentence enhancement for the offense of being in the U.S. after being deported. The Court rejected an equal protection claim based on the fact that the underlying basis of the enhancement, prior convictions of drug trafficking and a crime of violence, would result in a lower enhancement level for offenses other than presence in the U.S. after deportation.   

In U.S. v. Forrester, the Ninth Circuit reversed the conviction of Forrester, finding him improperly advised where, when warned of the dangers of self-representation,  he was not informed of the charge against, and was advised that he faced ten years in prison, when the maximum penalty was actually twenty years.  In the same opinion, the Court affirmed the conviction of Dennis Louis Alba, finding that computer surveillance analogous to a pen register, and not a search for Fourth Amendment purposes.  

In U.S. v. Moran, the Ninth Circuit amended the opinion originally filed April 2, 2007 by deleting the word “tax” where it appeared before “schemes.”  The Court also inserted a footnote.  The outcome was unchanged.

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 In U.S. v Juvenile Male, the Ninth Circuit reversed the transferal of  a juvenile to adult prosecution, holding the district court’s factual findings regarding the juvenile’s social environment clearly erroneous, as, in reviewing the factors mandated by 18 U.S.C. § 5032,  the district court found there the juvenile had not suffered from domestic violence in his upbringing, contrary to the evidence.

In U.S. v. Ensign, the Ninth Circuit upheld the district court’s decision refusing to permit the defendant to be represented by an attorney seeking admission pro hac vice. The Court held the denial did not violate the defendant’s sixth amendment right to counsel, and the attorney had no standing to appeal the decision..

In Andrews v. Cervantes,  the Ninth Circuit substituted language in the opinion previously filed on June 26, 2007. The outcome was unchanged.

 

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   In Lewis v. Astrue, the Ninth Circuit affirmed the ALJ’s determination that the claimant was not eligible for supplemental security insurance, finding the decision as a whole indicated the ALJ had considered all the evidence.

In Perfect 10, Inc. Visa Int’l., the Ninth Circuit upheld the dismissal of claims based upon the defendants’ processing of credit card payments from websites alleged t violated plaintiffs intellectual property rights. The Court held that processing of credit cards payments does not constitute a material infringement of copyright violations.   

In U.S v Gonzalez, the Ninth Circuit upheld the imposition of a nine-level sentence enhancement to a charge of interference with a flight crew member, where the evidence supported a finding that the defendant’s conduct constituted a threat to the crew, passengers, and aircraft.

In Schroeder v. Tilton, the Ninth Circuit denied an application for habeas, holding that application of a California evidentiary rule allowing evidence of prior sexual misconduct to be admitted in a trial involving other charges, did not violate the prohibition against ex post facto laws, even thought the evidentiary rule did not exist at the time of the prior offenses.

In Sherman v SEC, the Ninth Circuit amended the opinion originally filed March 23, 2006. The outcome is unchanged.

In Foote v. Del Papa, the Ninth Circuit  amended the opinion previously filed.  That previous opinion, on which I reported here, seems to have been withdrawn from the court’s website. The outcome is apparently unchanged.

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The Ninth Circuit issued two opinions, and amended two opinions on Monday”

In The Lands Council v. Mcnair the Ninth Circuit reversed the dnial of a preliminary injunction to halt the Mission Brush Project, which would allow selective logging of more than 3000 acres in the Idaho Panhandle Forest.  The Court held the Lands Council was likely to succeed on the merits because of the lack of evidence that the Forest service’s strategy is likely to improve the old-growth habitat over time.   Additionally, although the risk of economic harm from delaying the project is high, including placing several dozen jobs at risk, in a community where unemployment is already high, the Court determined the balance of the hardships tipped in favor of the risk of environmental harm.

In Schoenfeld v. Quamme, the Ninth Circuit reversed the dismissal of a personal injury claim against the federal government, arising from injuries received in a traffic accident on a military based. The claims against the government were based upon  the failure to repair a previously damaged guardrail. The district court had determined that the Feres doctrine, which limits claims related to limitary service by military personnel, barred the claim under the Federal Torts Claim Act.  In reversing, the Court found that Schoenfeld’s activities at the time of the accident, occurring while he was on liberty, did not implicatge military duty or discipline, and accordingly, should not fall within the Feres bar.

In U.S. v. Jeremiah, the Ninth Circuit the Ninth Circuit changed a few words in the opinion originally filed on May 24, 2007. The outcome is unchanged. 

In Lambright v. Schriro, the Ninth Circuit changed a few words in the opinion originally filed on May 11, 2007. The outcome is unchanged.

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In Hansen Beverage Co. v. National Beverage Co., the Ninth Circuit reversed a preliminary injunction based on a likelihood of confusion by consumers between the Monster (produced by Hansen) and Freek energy drink products. The Court reversed the district court’s rulings that the trade dress for the products was very similar.   Given the examples shown below, it’s hard to argue with this opinion. The Court also rejected  Hansen’s argument that Freek Man was the pictorial equivalent of the Monster trade dress.

 

 The appendix filed with the opinion offers  black and white images of the two products.

 

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In. American Wagering v. Racusin, the Ninth Circuit denied the petition for rehearing, and substituted the new opinion for that previously filed on October 6, 2006. The outcome is unchanged.

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The Court issued only one published opinion today.

In Peru v. Office of Workers’ Compensation Programs, the Ninth Circuit held that a worker employed by the exclusive provider of photographic services on the U.S.S. Missouri was employed in a retail sales capacity. Because the nature of the work performed related to retail sales, the worker would not be eligible to receive worker’s compensation under the Longshore and Harbors Workers’ Compensation Act unless she was not covered by the state workers compensation plan. The Court rejected the employer’s argument that the worker was per se ineligible for both the state and federal plans. The Court remanded for a determination of whether the worker was covered by the state plan.

 

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In Beltran v. Santa Clara County, the Ninth Circuit held that social workers are entitled to absolute immunity for statements made in dependency and custody petitions, and in statements of facts filed with such petitions,  filed with a dependency court.

In Singh v. Gonzales, the Ninth Circuit denied a petition for review of habeas, where the motion to reopen was untimely. The Petitioner had waited some months after being advised to obtain a more diligent attorney, and therefore, the Petitioner himself had not exercised due diligence, so that equitable tolling did not apply.

In Nitco Holding Corp, v.  Boujkian, the Ninth Circuit, applying the rule of SCOTUS opinion, Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., held that a civil appeal for insufficiency of the evidence is procedurally forfeited if the appellant failed to file as port-verdict motion for JNOV.

In U.S. v. Ressam, the Ninth Circuit denied the Petition for en banc rehearing of the ruling that reversed one count of the Millennium Bomber’s conviction. Six judges dissented from the denial.

In U.S. v. Norbury, the Ninth Circuit held that an expunged or dismissed state drug conviction may still be used for sentence enhancing purposes under 21 U.S.C. § 841 if the expungement or dismissal does not alter the legality of the conviction or represent that the defendants was actually innocent of the offense.  

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 In Caliber One v.Carey, the Ninth Circuit reversed a summary judgment in favor of the insurer.  The parties agreed that a renewed policy had been intended to provide the same coverage as the original policy, and that a clerical error had reduced the coverage to ten percent of that intended. The district court erred in failing to find that mutual mistake justified reformation of the contract. However, the district court did not err in finding ambiguous a deductible based on a percentage, where the policy did not indicate the figure from which the percentage was to be calculated.

 

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In U.S. v. Diaz, the Ninth Circuit upheld a search conducted while executing an arrest warrant.  The officers entered Diaz’s home to execute the warrant, but Diaz was not present. The Court found that the evidence, including past experience with Diaz by the officers, supported the reasonable belief by the officers that Diaz would be found within the home was at home at the time they entered. The Court rejected the argument that a reasonable belief that the suspect is present must be supported by specific evidence indicting presence; probably cause can be supported by circumstantial evidence.

 

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I'm still playing catch up for last week's opinions.  Here are Thursday's releases:

In Pesnell v. Arsenault, the Ninth Circuit reversed a dismissal of claims brought against government officials.  Pesnell had previously brought claims under the Federal Tort Claims Act (FTCA).  A judgment in an action brought under the FTCA bar any later action on the same subject matter.  However, Pesnell’s FTCA claims had been dismissed for lack of jurisdiction.  To bar future claims, the judgment must have been on the merits.

In Moreno-Mornate v. Gonzales, the Ninth Circuit denied the petition to cancel removal on the basis of pending adoption of the alien’s grandchildren, as the grandchildren, themselves citizens, were not qualifying relatives, nor does the de facto parent-child relationship prevent removal.                                                  

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In Lopez v. Stewart, the Ninth Circuit upheld the denial of habeas in a death penalty case out of Arizona.  Lopez was convicted of child abuse and felony murder. Although there is apparently no dispute that Lopez had no intent to kill his son, the sentencing court found no mitigating factors in Lopez’s favor.  The Ninth Circuit found that Lopez had received meaningful appellate review in the state court, and had failed to exhaust certain of his ineffective assistance of counsel issues. However, the Court did expand the Certificate of Appealability to include ineffective assistance with regarding to investigation and presentation of mitigation evidence.

Judge Thomas dissented, finding that both the sentencing court and the Arizona Supreme Court were objectively unreasonable in failing to consider the lack of mens rea as a specific mitigating factor.

 

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In Williams v. Gover, the Ninth Circuit upheld the dismissal of a suit against the Bureau of Indian Affairs (BIA).  At the heart of the dispute was the downgrading of the membership of certain member of the Moorehead Rancheria Indian tribe. However, the actions undertaken to reclassify certain members as "adoptee members” was an action taken by the tribe, not the BIA.  A tribe has the right to determine its membership.

 

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Last week, the Ninth Circuit rejected a rather novel argument concerning the waiver of state-created employee compensation rights.

In Burnside v. Kiewit Pacific Corp. the Ninth Circuit held that 29 U.S.C. 185(c), § 301 of the Labor Management Relations Act, does not preempt claims by workers for compensation for time spent traveling from designated meeting places to the jobsites and back. 

Kiewit required its employees to travel to the meeting sites for instructions and assignments, at the beginning of a work day,  and thence to the job site, and back again at the end of the work day. The travel time often added 2-2 ½ hours per day to what were already 8 hour days or more. The employees were no compensated for this travel time. The stated reason for the required was a lack of parking spaces at the jobsites. 

Relevant collective bargaining agreements expressly provided that the workers would travel to and from meeting places on their own time, but would be compensated for travel time from meeting places to jobsites, unless they voluntarily agree to be transported by the company; or provided only that employees would be provided parking.

The Court held that the suit for over time was not preempted because the right to compensation was provided by state law, independent of any bargaining agreement, and further, because reference to the relevant bargain agreements was not necessary to determine the issues raised.  California state law requires employees to be compensated for travel between meeting areas and job sites, where the employee require the travel, unless such compensation is waived under a collective bargaining agreement.   The Court rejected Kiewit’s argument that because the right to such compensation could be waived under a collective bargaining agreement, the right did not exist independent of a collective bargaining agreement. 

 

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While the Supreme Court offered some relief from shareholder suits last week, as discussed here and here, the Ninth Circuit opened the door to more suits.

In Johnson v. Aljian, the Ninth Circuit held that a plaintiff need not plead an actionable predicate violation in order to maintain an action under 20A of the Securities Exchange Act of 1934.

The Plaintiff alleged that the defendants had engaged insider trading in violation of § 10b and Rule 10b-5, control person liability, and trading liability violation of § 20A.  However, while the § 20A claim was brought within its statute of limitations,  the §10b and Rule 10b-5 violations were time barred. These time barred violations were the sole predicate acts on which the § 20A claim relied.

Section 20A authorizes a claim against any “person who violates any provision” in the Exchange Act. In holding that the predicate acts need not still be viable to bring a § 20A, the Court looked to the plain meaning of “violates,” noting that it is not modified by any term that would limit the predicate act to one that could still give rise to a separate claim.

 

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Tuesday’s other opinion from the Ninth Circuit also involved the unusual service offered by the Portland police.  However, in U.S. v. Ankeny , the Ninth Circuit refused to suppress, despite a far more outrageous example of the Portland police department crossing a line. 

While Mr. Washington, see previous post, was treated with courtesy throughout the time during which he was being unlawfully seized, Ankeny, the defendant here, physically suffered at the hands of a gang of officers executing a valid search warrant.   Even though the police stormed the house, essentially performed a no-knock without authorization, causes thousands of dollars in damage, and caused 1^st and 2d burns on the defendant, near whom a flash bang device thrown by police exploded, the evidence was no suppressed because a failure to obtain a “no-knock” component to an otherwise valid warrant cannot justify suppression under Hudson v. Michigan, 126 S.Ct. 2159 (2006), and because the arguably unreasonable nature of the search did not actually  lead to discovery of the evidence.

Judge Reinhardt dissented, arguing that the suppression was warranted by “the extreme use of excessive force,” which rendered the search unreasonable. Reinhardt felt that facts showed “a lack of professionalism and disdain for the rights of individuals on the part of some law enforcement officers” unlikely to be cured by the threat of a § 1983 action.  Reinhardt fears the majority ruling creates a blanket exception to the exclusionary rule whenever the officers have a valid warrant.

Reinhardt’s description of the conduct as unprofessional is an understament.  Electric Lawyer notes the facts of the case are truly shocking, with which I agree.  Indeed,  with the enthusiastic text message of officers gloating over the property damage and the  injuries suffered by the defendant, and declaring a “good time had by all,” the Portland police come off sounding like teenagers enthusing over the latest violent video game.

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In U.S. v. Washington,  the Ninth Circuit held that a defendant’s consent to a search was not voluntary, as he reasonably believed he had no choice by to permit the search. The state conceded the investigatory stop was not supported by reasonably suspicion, but had claimed the search of the defendant’s car, which yielded a gun, had been by consent. Reviewing the totality of the circumstances, the Court held Washington’s belief that he was not free to leave, and had no choice by to consent to the search, was reasonable.

Important factors in the defendant’s belief that he was not free to leave were the officer’s authoritative manner, as well as the city’s recent, highly publicized shootings of African American males during traffic stops. Following these incidents, the Portland, Oregon Police Department apparently created some pamphlets to advise its citizens, especially its African American citizens,  how to avoid being shot by the police during a stop. Among the tips: “follow the officer’s instructions” and “if ordered, comply with the procedures for a search.”  

Decision of the Day asserts that the opinion turned ordinary Fourth Amendment Analysis on its head, because it focused on the defendant’s safety, rather than the officer’s.   I don’t agree that the Ninth’s analysis here was particularly out of the ordinary, as the focus of fourth amendment analysis is generally the reasonable belief of the defendant. 

But I would agree that the Portland police’s views of protection and service seem quite skewed.

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 In U.S. v. Garner, the Ninth Circuit upheld a sentence enhanced due to conduct committed approximately 35 years before. 

Garner was convicted of two counts of attempted receipt of child pornography and six counts of possession of child pornography, and received a sentence of 262 months. Based on Garner’s admission that he had sexually abused his children or step children some 35 years before, his sentence included an enhancement for a “pattern of activity involving the sexual abuse of exploitation of a minor” as permitted by U.S.S.G. § 2G2.2. The Court noted that commentary to the sentencing guidelines made clear that the “pattern of activity” need not be conduct concurrent with the charged offense.

 

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Today’s Ninth Circuit decision reminds us that the time to be creative in the gathering of evidence is before, not after, the hearing.

In Goel  v. Gonzales, the Ninth Circuit declined to overturn an administrative finding that an applicant for asylum lack credibility. The credibility finding was based upon inconsistencies between documentary evidence submitted by the applicant, and the applicant’s testimony.

The Court also upheld the denial of a request to reopen the evidence in the matter on the basis of newly discovered evidence. The “new” evidence consisted of the applicant’s polygraph examination, taken after his application had been denied, in which he was found to be truthful, and also, a medical report stating that the applicant’s scars could have been caused by the torture he described in support of his application. The Court found that such evidence was not newly discovered, as the applicant could have undergone the polygraph or medical examination prior to his hearing, so that such evidence could have been presented then.  The Court noted the applicant had not been in custody, and thus, had been free to gather such evidence as he desired to present.

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It’s been a busy day for opinions. I’ll have more description of today’s rulings later, but meanwhile, here are links:

The Nevada Supreme Court issued two opinions:

• Johnson v. State
• Schmidt v. Washoe County

The Ninth Circuit issued one opinion, an immigration appeal matter:

Goel  v. Gonzales

The U.S. Supreme Court issued three opinions,

Bowles v. Russell

Permanent Mission of India to United Nations v. City of New York

Davenport v. Washington Ed. Assn.

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In Singh v. Gonzales, the Ninth Circuit that mere inference is insufficient to support a denial of asylum. Singh is an Indian Sikh who claims he left India after being detained and beaten several times by Indian police.  He entered the U.S. through Canada, where he had been briefly detained.  While there, he was fingerprinted and sign some documents. 

Investigators attempted to obtain the Canadian file, but Canada would not release it without Singh’s permission.  Singh refused to release the file, claiming he feared his family in India would be killed if the person who had helped him get to Canada learned of it.

The Immigration judge denied the application for asylum because of Singh’s refusal to release his Canadian file.  The judge acknowledged the file could confirm the claim of persecution, but also noted the file could contain contradictory.  

The Court held that the evidence did not support the denial, where the IJ did not make any finding of lack of credibility in Singh’s testimony, but instead, relied only on the fact of Singh’s refusal to release his Canadian file.

 

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In Murdoch v. Castro, the Ninth Circuit held that exclusion of a letter in which a testifying co-defendant told his attorney he was not present at the scene of the murder was not error.  The issue required a balance of the co-defendant’s right to counsel and the defendant’s right to impeach the co-defendant’s testimony, which contradicted the contents of the letter.  Here, the witness had been impeached with inconsistencies in prior testimony , as well as motive, and the letter would thus have had minimal impact.

 

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In U.S. v. Freeman, the Ninth Circuit held that allowing a drug agent to give both expert testimony regarding the meaning of slang terms and lay testimony regarding the interpretation to be given other expressions used was harmless error. Admission of the testimony of why a defendant acted in a certain way was error, but the error was harmless in light of the entirety of the evidence.

 

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In U.S. v. Strong, the Ninth Circuit held that commitment for treatment and restoration of a defendant found incompetent to stand trial is constitutional. Strong was committed under 18 U.S. § 4241(d), which mandates institutionalization of all defendants found incompetent to stand trial. Because the statute has a definite term of commitment for no longer than four months, it comports with due process requirements.

 

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That pesky habit of Oregon of packing all sorts of additional ways to commit crimes in its statutes has resulted in another successful sentencing challenge arising from offenses committed in Oregon.

In U.S. v. Beltran-Munguia,  the Ninth Circuit held Oregon’s 2d degree sexual assault offense was not a “crime of violence” under  the Federal Sentencing Guideline’s enhancement scheme. Or at least, not as crime of violence is defined when enhancing a sentence for the offence of illegally entering or remaining in the U.S.   

To be a crime of violence other than those listed by name in the guidelines (2L1.2(b)(1)(A)(ii)), the use, or attempted or threatened use of physical force against the victim must be a necessary element of the crime. However, a perpetrator can commit 2d degree sexual assault in Oregon without force. For example, a victim may appear to consent, but be legally incapable of doing so due to minority, mental incapability, physical helplessness due to intoxication, etc. For the same reason, the offense is not “forcible sex offense.”

The Court notes that the definition of crime of violence differs in other parts of the sentencing guidelines. Thus, in U.S. v. Riley, 183 F.3d 1155 (1999), a rape statute that also criminalizes “nonconsensual but not necessarily forceful sex,” was held to be a crime of violence. The section of the guidelines at issue there, §4B1.2(a) included a catchall “involves a serious potential risk of physical injury to another.”

Judge Berzon authored the opinion. Judges Rymer and Tallman concurred, each noting that precedent bound them to do so. Tallman went further, and questioning the adherence to legal form over substance and the Court’s “zeal to be good legal technicians.”

The same week, the court issued U.S. v. Grisel, which similarly held that Oregon’s 2d degree burglary statute was not a categorical burglary offense because of the expansive way in which it might be committed. See my report on that case.

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In Ford Motor Company v. Todecheene, the Ninth Circuit substituted the new opinion for that previously filed, and stays the appeal until Ford exhausts its appeals in the tribal courts.

In Community House v. City Of Boise, the Ninth Circuit amended the previous opinion filed in the matter by replacing footnote 2 with new text.  The outcome was otherwise unchanged.

In Earth Island Institute v. Ruthenbeck, the Ninth Circuit substituted the new opinion for that previously filed.

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In Paramount Land Co. v. California Pistachio Commission, the Ninth Circuit vacated an injunction issued to prevent the collection of subsidies from pistachio growers.  The Court held that the growers had failed to make a sufficient showing of a likelihood of success in its claim that the subsidy was unconstitutional.  The subsidy is collected from pistachio producers and importers, and used to pay for the budget of the Pistachio commission, including its advertising campaign dedicated to increasing sales of California pistachios. The Court held that the pistachio advertising is the government’s own speech, and therefore, exempt from first amendment requirements.  

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This has been a week in which we’ve gotten some revealing glimpses into the extraordinary lengths law enforcement will go in their “investigations.” On Monday,   U.S. v. Mayer told us of an FBI agent’s intrepid masquerade as an enthusiastic member of NAMBLA.  On Friday, we learn of the skill shown by the DEA and cooperating local police in staging an elaborate scam beginning with a staged car accident, included a mock car chase, and culminated in a car seizure disguised as a theft.  The elaborate ruse was employed because law enforcement want to prevent delivery of the contraband in the  car without tipping off the conspirators about he ongoing investigation.  

 In U.S. v. Alverez-Tejeda,  the Ninth Circuit upheld the search of the vehicle, concededly made with a warrant after the car had been seized through the staged theft. The District Court had suppressed the drugs found in the car, but the Ninth Circuit reversed. The parties had conceded that the government had the authority to seize the car, because there was probable cause to believe the car was being used to carry contraband.  The issue was whether the lawful seizure was carried out in an unreasonable manner.  The Court found the intrusion into the defendant was mild, as the staged accident used minimal force, without serious risk of injury.  While the use of deception to gain access to areas the government could not otherwise access would be inappropriate, there was not constitutional violation here, as the government was entitled to seize the property anyway.

 

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In California Dept. of Water Resources v. FERC, the Ninth Circuit denied a petition for review of a decision by the Federal Energy Resource’s Commission allowing the Pacific Gas & Electric Company to include certain charges in its tariff. The utility company is required to allow anyone to transmit power over the transmission lines belonging to the company.  The company included in its tariff costs for certain facilities.  The Court found the evidence supported a finding that the facilities in question had transmission function, justifying inclusion of  their costs in the tariff.

In Macial v. Cir, the Ninth Circuit  held the government was not prevented by a sentencing court’s determination that a defendant had no fraudulent intent from seeking civil penalties consistent with fraud.   In a tax deficiency case where the defendant had previously entered a plea agreement to criminal tax charges, the sentencing court found that the defendant had no fraudulent intent.  However, fraudulent intent was relitigated in the tax court, and defendant was required to pay penalties. The Court found that findings made in a criminal sentence proceeding should not ordinarily have a preclusive effect in a subsequent civil case.   

In Reynoso-Cisneros v. Gonzales, the Ninth Circuit remanded a matter where the BIA had denied a motion to reopen solely because it erroneously believed it had no jurisdiction to hear the motion.  The BIA had jurisdiction because the alien had been deported after the completion of immigration proceedings.

 

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The Ninth Circuit Judicial Conference will be held in Honolulu July 16-19. the Conference theme is “Collision Course: When Liberty and Order Clash.” No doubt it is the tie-in to that collision theme that explains one program offering: “Killer Asteroids and What We Can Do about Them.”  Less obvious is the connection for the program on lasik eye surgery, unless liberty and order are both nearsighted prone to bump into each other.

 However, a few law related topics are also on the agenda, including the promise of a reexamination of the use of the criminal justice system to treat drug abuse, discussions of court confidentiality in this age of the Internet and a look at how war affects the courts. Also offered is a “Conversation with the Justice,” with Justice John Paul Stevens.

Check here for the court’s press release, which provides absolutely no information on how to register for this event.

 

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FBI agent’s infiltration of NAMBLA not unconstitutional

In U.S. v. Mayer, the Ninth Circuit rejected the claim an FBI agent’s undercover membership in the North American Many Boy/Love Association (NAMBLA) violated Mayer’s constitutional rights.   The agent maintained the membership for a number of years, gradually gaining the trust of other members, learning their names and predilections.  This knowledge enabled the agent to suggest to defendant a trip to Mexico where Mayer would be able to have a “special friend” provided to him.  The agent sent a link to a website with such offerings, without revealing, of course, that the website was a fake created by the FBI.  Mayer booked a trip, and traveled to San Diego, where he and others were arrested and charged with travel with intent to engage in illicit sexual conduct.   The Court rejected Mayer’s proposed agent provocateur doctrine, under which an agent could not infiltrate a first-amendment protected organization and provoke illegal conduct, noting that any constitutional violations that might arise already had adequate remedies. 

The captivating aspect of this opinion is the description of the agent’s progress in the organization, such as participating in a Christmas card program that sent holiday greetings to imprisoned pedophiles, and, ironically, serving on the privacy committee, for which he even wrote a policy statement. The agent also volunteered to host the 2005 NAMBLA conference.  Mayer’s arrest ended that volunteer position, and, sadly, the conference had to be canceled.    Mayer offered this example in support of his claims that the infiltration violated constitutional rights since it interfered with the organization’s activities.  The Court was slightly more impressed with this argument than with others made by Mayer, but only slightly.

As a fiction writer, I sometimes feel disheartened when I read cases like this.  I have a damn good imagination, but I could never have thought this up.  And if I had written a story like this, it would undoubtedly be rejected as implausible.

NAMBLA “U.S. v. Mayer”  “agent provocateur” “1^st amendment” “4th amendment” “5^th amendment”

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In Tang v. Gonzales, the Ninth Circuit granted a petition for review of a denial of a grant of asylum. Tang had sought asylum from China due to the forced termination of his common law wife’s pregnancy.  Forced abortion results in a statutory entitlement of asylum for the woman and her partner. Tang presented evidence that his wife was required to submit to a gynecological examination by her employer, was  found to be pregnant, was physically taken by the employer to the medical facility, and suffered an abortion performed without anesthesia.   The Court rejected the immigration judge’s (IJ) findings that the abortion had not been forced Tang and his wife had not protested, physically resisted, or attempted to go into hiding. The Court relied upon the facts that the examination had been mandatory, the employer required the abortion, the employer physically took the wife to the facility, and the abortion was performed without anesthesia to find force was established.

 

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In Gruver v. Lesman Fisheries, the Ninth Circuit held that the admiralty court had jurisdiction over a case arising from personal injuries received in a physical confrontation arising from a dispute over wages for a commercial fisherman.  The fight occurred on board a ship due to leave the next morning for a fishing expedition. The parties stipulated that the fight occurred on a ship floating on navigable waters, a location requirement for admiralty jurisdiction.  The parties also agreed that the fight had the ability to disrupt maritime commerce.  The disagreement arose over the “connection” requirement for jurisdiction.  

The Court held the matter giving rise to the fight, the wage dispute, showed a substantial relationship to traditional maritime activity, as it involved a failure to pay wages for services performed aboard a commercial vessel.  The Court rejected defendant’s claim that the fight, rather than the underlying cause of the fight, was the appropriate focus of this second part of the connection requirement.

 

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In U.S. v. Narvaez-Gomez, the Ninth Circuit vacated the sentence imposed for illegal reentry of an alien after removal.  The defendant’s sentence had been enhanced because he’d been convicted of discharge of a firearm at a residence under California penal Statute 246, which could be a reckless offense.  However, the enhancer was for a crime of violence, which requires intentional use of force.

The Court affirmed the underlying conviction, even though a confession was obtained without proper Miranda warnings, and then, after warnings were given, another confession was obtained.  The latter confession was admitted at trial. The Court determined this was not a deliberate “two-step interrogation process barred by Missouri v. Seibert because the personnel taking the confessions changed, and several hours passed between confessions.

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In Gautt v. Lewis, the Ninth Circuit granted the petition for habeas where the defendant had been charged with a sentence enhancement under one statute, but sentenced under another statute. As a result, the defendant was sentenced under a 25 year to life enhancement, instead of a 10 year enhancement.

 

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In U.S. v. Grisel, the Ninth Circuit held that a conviction for second degree burglary as defined by the State of Oregon is not a categorical burglary offense for purposes of applying the Armed Career Criminal Act of 1984 (ACCA).  To be a predicate felony under the ACCA, the state crime must fit the generic federal crime.  Congress failed to define “burglary,” resulting in the Supreme Court requiring that a generic definition of burglary be used, limiting the crime to unlawful entry into a “building or structure.”  Oregon’s definition of “building” for 2d degree burglary  includes “booth, vehicle, boat, aircraft, or other structure adapted for overnight accommodations of persona.” Or. Rev. Stat. § 164.205(1).   Because second-degree burglary in Oregon includes offenses outside the generic federal definition of burglary, it cannot be a categorical offense for purposes of the ACCA. Because the offense is not a categorical burglary offense, the case was remanded for determination of whether the facts underlying the conviction satisfy the federal burglary definition.

This decision overrules the Court’s  previous decision of U.S. v. Cunningham,  911 F. 2d 361 (9^th Cir. 1990).  

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The Ninth Circuit does not automatically vacate panel opinions once en banc rehearing is granted.  Instead, it merely orders that the opinion may not be cited as precedent. As a result, the order dismissing Animal Legal Defense Fund v. Veneman,  and vacating the previous opinion in accordance with the agreement of the parties, is accompanied by both a concurrence and a dissent, each discussing the propriety of vacating an opinion because of agreement of the parties.   

In concurring with the vacation, Judge Bybee, explains that the Ninth Circuit does not automatically vacate the panel opinions because such vacation results in their deletion from the West reporter system.  Bybee also notes that Lexis treats the panel opinion as vacated, even though no vacation actually occurred.

 Judge Thomas, writing for a six judge dissent, argues that a vacatur is not justified by voluntary settlement of the parties.  

 

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In the latest in what is apparently a series lawsuits against each other brought by these two sets parties, the Ninth Circuit twice disappointed the Carnes parties. 

 In