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.

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   The opinion issued May 11, 2007 and published at 486 F. 2d 590 is withdrawn.

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

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

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

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

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

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On 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 consid