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

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

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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 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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 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 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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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 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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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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 In Garcia-Jimenez v. Gonzales, the Ninth circuit amended its previous opinion by withdrawing Judge Pregerson’s previous concurrence, and issuing a new opinion with a dissent by Judge Pregerson. The outcome is otherwise unchanged.

In Safe Air for Everyone v. EPA, the Ninth Circuit clarified its previous opinion. The outcome is otherwise unchanged.

In Perfect 10 v. CCBill LLC, the Ninth Circuit court amended its previous opinion by adding a footnote.  The outcome is otherwise unchanged.

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