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

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

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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 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.

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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 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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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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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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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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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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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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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 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 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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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 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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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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In Flint v. Dennison, the Ninth Circuit upheld the limits on campaign spending imposed by the University of Montana for its student government elections.   Flint spent more than double the school’s $100 campaign spending limit to win his student senator seat. In a previous year, he and a co-candidate running for executive positions also exceeded campaign limits, for which both candidates received a censure.  The second time he exceeded the limits, the school refused to allow Flint to take office.  Flint sued, claiming the campaign limitations violated the 1^st amendment.  

The Court upheld the decision, finding the student government elections was a limited public forum, and the limitations were content neutral and reasonable. The Court rejected the school’s argument that. Because the purpose of the student government was to offered educational opportunities in leadership to students, the election was not public forum at all.

Although Flint had graduated by the time the Court considered the appeal, the issue was not moot as Flint’s prayer for relief in his complaint had included expungement of the adverse decision from his student record. Additionally, because such expungement would be prospective, rather than retroactive injunctive relief, the school officials sued in their official capacity were not entitled to immunity under the Eleventh Amendment.

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In Weilberg v. Shapiro, the Ninth Circuit ruled that a § 1983  alleging violations of extradition procedures in an extradition from Arizona to Illinois may proceed.  The district court had sua sponte dismissed the complaint, finding that a § 1983 claim could be brought only where the underlying conviction had been overturned. The trial court relied upon Heck v. Humphrey, 512 U.S. 477 (1994), which had held that §1983 suits seeking damages for wrong results in a conviction required the conviction in question to have been overturned. The Ninth Circuit held this rule is limited to suits that rely upon a claim of conduct that would render the underlying conviction invalid, not to suits concerning procedure related to extradition.  

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In Gupta v. Thai Airways International, LTD.,  the Ninth Circuit held that a California state court order dismissing an identical action precluded the federal district court from exercising jurisdiction over claims arising from an airline’s refusal to permit the plaintiff to on a flight.  The state court order of dismissal, based upon the airline’s immunity as the instrumentality of a foreign state, had not been appealed. The District Court held the state court order had no preclusive effect, as it was not an order on the merits.  It also found immunity should not apply. 

Applying California law, the Ninth Circuit held the state court order was res judicata as to the identical claims raised in federal court.  

Prior to reaching the merits, the Court first had to determine it had jurisdiction, even though the district court order has denied a motion to dismiss, ordinarily an unappealable order.  However, the res judicata argument relied upon immunity issues. Interlocutory rulings on immunity are appealable. Accordingly, two of the three member panel concluded the Court had jurisdiction to hear the appeal.  

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In Gilliam v. Nevada Power Company, the Ninth Circuit held that the plain meaning of “wages and salary” does not included severance pay.  The parties disputed whether an employee’s severance pay should be included in the calculation of her average earnings for the purpose of determining her retirement benefits. The severance pay was paid for her voluntary termination and release of claims, rather than for services.  

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In Taylor v. Westly, the Ninth Circuit reversed the denial of a preliminary injunction to prevent the escheatment of the plaintiffs’ property.  The Court held the parties had standing because they sought to prevent escheatment without notice calculated to reach the owner of property, but State of California’s notice requirement allowed notice by a publication. The fact that the plaintiffs are now aware of the policy does not preclude the possibility that their property could again be escheated. This truth also meant plaintiffs could suffer irreparable harm again.

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In Rogers v. County of San Joaquin, the Ninth Circuit held that removal of children from their home without a warrant where there was no risk of imminent bodily harm violated the 4^th amendment.   The children here suffered from bottle rot, and general neglect. The lack of imminent danger was borne out by the emergency room personnel classifying the visit as routine, and the social service agency’s only delay in responding to reports of neglect of the children. The Court reversed the district court’s grant of summary judgment to the social services provider, as well as the denial of summary judgment to the parents.

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In Noyes v. Kelly Services, the Ninth Circuit held that plaintiffs can satisfy their burden to show that the reason given for an adverse employment decision was pretext by showing either that the reason was false, or that the true reason was discriminatory. The Court reversed the summary judgment granted because the plaintiff had presented evidence showing only that the reason given was false. Noyes presented evidence showing that she was no considered for the promotion because the supervisor, who allegedly favored members of a particular religious philosophy, had told others involved in the decision that Noyes was not interested in the position. In those circumstances, if true, the claim that another candidate, less qualified by a member of the favor religion, was the best person for the job, could be considered pretext. 

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In Aholelei v. Public Safety the Ninth Circuit held that filing of a third-party complaint, without more, cannot constitute a waiver of immunity.  The plaintiff was an inmate of a prison who suffered injuries from being beaten by other inmates. He sued state employee defendants. The defendants raised the issue of immunity pursuant to the 11^th amendment, and also filed a separate  third party complaint against the inmates who committed the beating. The Court rejected the claim that filing the third party complaint was a voluntary invocation of federal jurisdiction, noting that the third party complaint was an appropriate defense strategy not inconsistent with the immunity claim.  

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In Blue Cross/Blue Shield v. Rubin, the Ninth Circuit first held that it has jurisdiction to review stays of proceedings which, because they are lengthy and/or indefinitely, effectively put a party “out of court.” Here, stays were granted because the civil proceedings implicated criminal investigations, for some of which there were indictments and others there were not. However, the Court remanded the matter because, at is stated, it searched “in vain for a reasoned decision to review.”

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In addition to U.S. v. Curtin, discussed in the previous post, the Ninth Court issued the following opinions yesterday:

In Gama Puga v. Chertoff, the Ninth Circuit dismissed the petition for habeas brought by an alien who had been removed. The petitioner claimed for the first time in his petition he had received ineffective assistance of counsel with respect to his asylum application. Applying the theory of prudential exhaustion, the Court dismissed by applying the theory for failure to exhaust administrative remedies. Allowing a claim of ineffective assistance of counsel to be raised for the first time in a petition for judicial review would encourage the bypass of administrative scheme.

In U.S. v. Dang, the Ninth Circuit held that the Department of Homeland Security’s regulation requiring a determination that good moral character be assessed in naturalization proceedings is neither unconstitutional nor ultra vires. 

In U.S. v. Jeremiah, the Ninth Circuit upheld the revocation of supervised release. The Court rejected the defendant’s claims that his arrest was invalid, that he was denied a preliminary hearing, that there was insufficient evidence to revoke his supervise release and that the conditions imposed upon his new sentence of supervised release were improper.

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 In U. S. v. Sandoval-Sandoval, the Ninth Circuit upheld a conviction for unlawful reentry by a previously deported alien. The Court rejected the defendant’s claims that a fingerprint exemplar should have been suppressed, since the district court had granted a motion to compel a second fingerprinting, mooting the motion to suppress the first. The Court also rejected the claim that an abstract of judgment cannot be used to support a factual finding regarding a previous sentence imposed.

The Ninth Circuit amended its previous opinion in Baker v. Exxon Mobile Corp, but did not change the  outcome.  The petitions for rehearing and en banc rehearing were denied.

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The Ninth Circuit issues three opinions today:

In Spry v. Thompson, the Ninth Circuit held that state programs expanding medical coverage to populations ineligible for Medicaid are not bound to the same premium and copayments offered under Medicaid.  The decision determines that, while a deviation from Medicaid requirements generally requires a waiver from the Secretary of Health and Human Services, that waiver is not required where the deviations are for person ineligible for Medicaid.

In U.S. v. Meiners,  the Ninth Circuit upheld the fifteen year sentence imposed following the defendant’s plea of guilty to four counts of advertising child pornography. The Court rejected the 8^th amendment challenge, finding the offense to be one that threatens to cause grave harm to society.

In Saravia-Paguada v. Gonzales, the Ninth Circuit denied a petition to review an order of deportation. The petitioner is a legal permanent resident (LPR) who came to the U.S. as a child. He was twice prosecuted for drug related offenses, 1988 and 1992, and served a total time of incarceration of six years and five months. Deportation proceedings were commenced in 1990, but he had sought discretionary relief. However, between the time of is two prosecutions, an amendment to immigration laws eliminated discretionary relief from deportation for anyone who has served more than five years on a felony conviction. Petitioner’s second conviction resulted in his exceeding the five year limit.  

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In Blankenship v. Liberty Life Assurance Co., the Ninth Circuit  held that the rollover of retirement funds into an IRA does not result in the beneficiary “receiving” those funds for the purpose of limiting entitlement to disability payments.  The Court also affirmed the District Court’s use of an interest higher than T-bill rate for prejudgment interest, as the evidence supported that such a deviation was necessary to compensate the interest lost by the claimant because of the use of invested fund to replace the disability payments he had not received.

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In Orkin v. Taylor, the Ninth Circuit determined that Elizabeth Taylor may keep her Van Gogh painting entitled Vue de ‘Asile at de law Chapelle de Saint-Rémy. .  In an opinion at times that at times waxes philosophical regarding the reflections of the life of the artist in the life of the painting, Judge Sidney Thomas traces the ownership of the painting entitled from Van Gogh’s brother through several collectors to Ms Taylor, who purchased it at a London auction in the 1960’s.  The factual contention between the parties was whether the plaintiffs’ ancestor had been forced to relinquish the painting during the Nazi control of Germany, or had legitimately sold it to its known subsequent owner, a Jewish art dealer who moved from Germany to Switzerland in1934 . However, that factual issue remains unresolved, as the trial court’s dismissal of the suit was upheld.

The plaintiffs sought relief through under the Holocaust Victims Redress Act and state law theory of replevin. The Court found the Act does not create a private right of action. The language of the Act indicates that it urges government to make efforts to return property confiscated by the Nazis to its rightful owners. State law does provide a right of recovery for lost or stolen property, but in California, such claims must be brought within three years of discovery of the claim.   Taylor’s ownership of the painting was discoverable as early as 1963, when her purchase of the painting was high publicized. Accordingly, the Court upheld the finding that the plaintiffs are time-barred from such claims.

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For the second day in a row, the Ninth Circuit issued an important ruling relating to Internet copyright ruling.

In Perfect 10 v. Amazon.com, Inc., the Ninth Circuit lifted a preliminary injunction preventing Google from showing thumbnail-size photos from Perfect 10’s site. The Court reasoned that displaying the thumbnail-sized photos, which requires Google to copy and store an image of Perfect 10’s photos on its own computers, is an infringement. But the Court held that a party seeking a preliminary injunction must show a likelihood of prevailing over a defense. Perfect 10did not show a likelihood of overcoming Google’s fair use defense because the thumbnails are transformative, meaning they alter the original works with “new expression, meaning or message.” The thumbnails are transformative because they serve a very different purpose than the full size image. Additionally, Google’s use serves the interests of the public and promotes the purpose of copyright law.  

However, the Court also held Google could be secondarily liable for allowing links to web sites with pirated photos, if Google has knowledge of the infringing activity and contributes to its occurrence.

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In Vasquez v. Los Angeles County, the Ninth Circuit held that replacement of an image of a cross with that of Mission San Gabriel from the county seal does not violate the establishment clause of the U.S. Constitution.  The cross was removed to avoid a potential establishment clause violation, which is a valid secular purpose for the action. Moreover, the replacement of the cross could not render the primary message of the seal an anti-religious one. The Court also held the plaintiff, a county employee, had standing to challenge to revision of the seal because of his frequent contact with the seal.

Click here for the appendices to the opinion showing the previous and revised county seals.

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In Fair Housing Council v. Roommate.com, Inc., the Ninth Circuit held that a web site can be held liable for user generated content, where that content was created in response to web site questionaires and then posted.  The defendant website had alleged the Communications Decency Act immunized it because it was not the questions, but rather, the users’ answers to those questions, that could conceivably violate fair housings standards. The roommate  preferences stated by users could and did include those based on race, gender, religion, sexual preference.  However, the web site is immune from liability for content created in response to the mere opportunity to give additional comments about the user's roommate preferences.

 At the heart of the differences between the user-generated content a website could be liable for and that it could not be liable for, is the direction given by the website to guide the nature of the content. Here, the site’s questionnaires offered users specific choices regarding their roommate preferences, from which the users would choose.  Thus, the potential responses were in the control of the website. However, that portion of the questionnaire that requested additional comments contained no direction or specific options guiding the nature of the user-generated material. Therefore, the site is immune from liability arising from the content of those comments.

The latter immunity is not limitless. The opinion hypothesizes that a web site could so direct the nature of the content so as to make actionable content likely. The example given was a website set up to allow users to “get even” by posting comments about others.  Not surprisingly, response to this opinion by the Internet community has not been enthusiastic

 The opinion, authored by Judge Kozinski, includes the following editorial pun in  Footnote 10, quoting  one of the user comments posted on the defendant’s website:

“The female we are looking for hopefully wont [sic] mind having a little sexual incounter [sic] with my boyfriend and I [very sic].”

Regardless of the outcome of he case, it's always a pleasure to read one of Kozinski's opinions.

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