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| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
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| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
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| PUBLISHABLE OPINIONS 1) SECURITIES / ARBITRATION: Credit Suisse First Boston Corp. v. Grunwald, 03-15695 (9th Cir. Mar. 1, 2005). The California legislature intended that the State's new ethics standards apply to neutral arbitrators in California appointed by the National Association of Securities Dealers ("NASD"). However, the USCA held that the Securities and Exchange Act of 1934, as amended, preempts application of California's ethics standards to NASD arbitrations. The USCA further held that NASD rules approved by the Securities and Exchange Commission have preemptive force over conflicting state law. Concurring, Judge Berzon agreed with the majority except as to whether the NASD's arbitration and waiver rules as applied to employer-employee disputes are capable of preempting state law. Nevertheless, she thought that the two potential results in this case were equally plausible and equally imperfect. Given this apparent equipoise, she did not support creating a circuit split with Drayer v. Krasner, 572 F.2d 348 (2d Cir. 1978). Still, she was not sufficiently convinced that the result reached by the majority was wrong to the extent that would justify dissenting. Leavy, Paez (author), and Berzon (concurring), Circuit Judges. M. Blumenfeld of Los Angeles, CA, for the appellant; M. Early of San Francisco, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 2) EXECUTIVE COMPENSATION: SEC v. Gemstar-TV Guide International, Inc.,
03-56129 (9th Cir. Mar. 22, 2005). In response to a formal application by the
SEC, the district court entered an order pursuant to Sec. 1103 of the Sarbanes-Oxley
Act of 2002, placing in escrow in excess of $37 million representing contemplated
one-time payments by Gemstar-TV Guide International, a public corporation, to
its resigning CEO, Henry Yuen, and CFO, Elsie Leung. This escrow order-directed
to Gemstar-was predicated on the district court's conclusion under the statute
that these payments, to be made during the course of a lawful investigation by
the SEC of Gemstar involving possible violations of federal securities laws, were
"extraordinary." Gemstar did not oppose the entry of this order and
has not filed a substantive brief in connection with this appeal. However, intervenors
Yuen and Leung appealed, claiming: 1) that the stat-ute is unconstitutionally
vague on its face and as applied to them; 2) that the district court erred as
a matter of law in its interpretation of the statutory term "extraordinary
payment"; and 3) that the district court erred in its determination that
the payments in question could be deemed "extraordinary. The USCA affirmed.
The issues arose from Congress' use of the term "extraordinary." The
intervenors-appellants, Yuen and Leung, maintained that the district court erred
in its interpretation and application of this term. But upon examination the USCA
found their claims unpersuasive. It concluded that the district court was correct
in its understanding of the meaning of "extraordinary payments" and
in the application of that flexible standard to the facts and circumstances of
this case. Concurring in the result, and joined by Judge Graber, Judge Reinhardt
agreed that the severance packages in question are "extraordinary payments."
But he did not believe that Congress intended courts to apply a vague and multi-faceted
test that requires consideration of the purpose, circumstances, and size of the
benefit, as well as more complex factors, when determining whether to grant a
temporary order escrowing such one-time payments for a short period of time while
the SEC makes its decision regarding the filing of formal charges. Rather, employing
a well-established meaning of the word "extraordinary," Judge Reinhardt
would hold that all severance packages due top corporate officers, and any other
substantial non-routine payments to which they may be entitled, constitute "extraordinary
payments" that the district court may order placed in escrow temporarily.
Dissenting, Judge Bea noted that Sec. 1103 empowers the SEC to escrow "extraordinary
payments," not payments made under extraordinary circumstances, particularly
where "extraordinary circumstances" means little if anything more than
that the company is under investigation for securities violations. Moreover, if
it is to be a workable standard, the relevant comparison must be not to the company
at issue, but to other comparable companies, under circumstances which have not
resulted in an investigation by securities agencies, but which are otherwise comparable.
Because the SEC failed to adduce any such relevant evidence, Judge Bea would vacate
the district court's order and permit the SEC the opportunity to do so. Schroeder,
Reinhardt (concurring), Trott (author), Thomas, Graber, McKeown,
Wardlaw, Fisher, Clifton, Callahan, and Bea (dissenting), Circuit Judges.
M. Rice of New York, NY, for the intervenors-appellants; R Humes and T. Karr of
Washington, DC, for the plaintiff-appellee; R. Stone for the defendant-respondent-appellee.
(Download the full text of this decision at www.cc9.uscourts.gov/)
4) TAXATION: River City Ranches #1 Ltd. v. IRS, 03-73853 (9th Cir. Mar. 25, 2005). The IRS issued Final Partnership Administrative Adjustments to the tax returns of nine sheep-breeding partnerships. The Adjustments resulted in increased tax liabilities for the individual partners, such that the partners would owe significant back-taxes, penalties, and interest if the Adjustments were valid. The appellant partnerships petitioned the Tax Court for readjustment. They claimed that some of the Adjustments were invalid because the IRS filed them untimely, relying on invalid extensions of the limitations periods governing the Adjustments. They also claimed that insofar as the Adjustments were valid, the partnerships were entitled to certain theft-loss deductions on the adjusted tax returns. The Tax Court denied the petitions entirely, holding that the Adjustments were valid and that the partnerships were not entitled to theft-loss deductions. It held that the asserted losses were not thefts from the partnerships and, even if they were, the partnerships could not claim the deductions for the years at issue. The USCA affirmed in part and remanded in part. It held that: 1) the partnerships are not entitled to additional discovery pertinent to the years for which theft-loss deductions can be claimed; 2) it affirmed the Tax Court's holding that none of the losses-if they are thefts from the partnerships-can be claimed for any of the tax-years at issue; 3) it determined that the Tax Court did not erroneously reject any stipulation of fact; 4) it determined that the partnerships are, however, entitled to limited additional discovery relevant to the validity of the extensions of the limitations period; finally, 5) it held that the Tax Court does have jurisdiction to make findings concerning the imposition of penalty-interest under 26 USC Sec. 6621(c). As the USCA affirmed the Tax Court's holding that the partnerships could not claim the assented theft-losses in the years at issue in any event, it did not review or make any decision concerning the Tax Court's decision that the asserted losses do not constitute thefts from the partnerships, but only from the partners. The USCA remanded so that the partnerships could be given some limited additional discovery relating to the validity of Adjustments issued under the contested extensions of limitations period. It instructed the Tax Court to reconsider the validity of those Adjustments after additional discovery is allowed and to make findings as to penalty-interest. Bright (author), Tashima, and Callahan, Circuit Judges. M. Cobb of Portland, OR, for the petitioners; AAG E. O'Connor of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 5) BANKRUPTCY: In re Sicroff, 03-15610 (9th Cir. Mar. 23, 2005). The USCA held that Sicroff's goal of protesting the closure of the Geography Department at the Univ. of California at Davis campus did not provide just cause or excuse to calumniate Prof. Jett's professional reputation. Not only were Sicroff's libelous statements legaly wrongful, but Sicroff went well beyond the scope of his legitimate goal of protesting the closure in attacking Jett by name. For these reasons, the bankruptcy court erred in its interpretation of the phrase "just cause and excuse" and in its conclusion that Sicroff's defamation was not malicious by virtue of its connection to a larger, legitimate purpose. The USCA held instead that Sicroff's libelous statements were not made with just cause and excuse and that, as a result, they were malicious. Because Sicroff's libelous statements constituted a willful and malicious injury, his debt to Jett was not dischargeable. O'Scannlain (author), Siler, and Hawkins, Circuit Judges. R. Wiens of Sacramento, CA, for the petitioner; D. Whaley of Sacramento, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 6) COPYRIGHT INFRINGEMENTS: Silvers v. Sony Pictures Entertainment, 01-56069 (9th Cir. Mar. 25, 2005). The USCA held that an assignee who holds an accrued claim for copyright infringement, but who has no legal or beneficial interest in the copyright itself, may not institute an action for infringement. Dissenting and joined by Judge Reinhardt, Judge Berzon thought that applying the usual mode of analysis used in the Circuit for determining whether a statute allows assignment of claims, she would conclude that Silvers, as the creator of "The Other Woman," should be allowed to pursue the accrued causes of action that Frank & Bob Films II assigned to her. Dissenting and joined by Judge Kleinfeld, Judge Bea thought that the text, purpose and history of the 1976 Copyright Act allow such assignees of an accrued copyright claim to sue for infringement. He would affirm the district court's denial of Sony's motion to dismiss Silvers' complaint against Sony for the alleged infringement of the copyright of her script, "The Other Woman." Schroeder, Reinhardt, Rymer, Kleinfeld, Graber (author), Wardlaw, Fisher, Gould, Paez, Berzon (dissenting), and Bea (dissenting), Circuit Judges. R. Rauchberg of New York, NY, for the defendant; S. Glaser of Los Angeles, CA, for the plaintiffs. (Download the full text of this decision at www.cc9.uscourts.gov/) 7) TRADEMARK INFRINGEMENTS: Watec Co., Ltd. v. Liu, 03-55823 (9th Cir. Mar. 30, 2005). Watec America and its president, Liu, appealed the district court's denial of their motion for a new trial claiming that they are entitled to a new trial because the district court's denial of their mid-trial motion for judgment as a matter of law had the effect of an evidentiary ruling that barred them from presenting their defense to Watec Japan's trademark infringement claim. Watec America and Liu also challenged the sufficiency of the evidence supporting the jury's verdict that they breached an oral distribution agreement with Watec Japan and infringed on Watec Japan's trademarks. In addition, they argued that the excessiveness of the jury's original trademark infringement damages award showed that the entire verdict was tainted by passion and prejudice. Finally, Watec America and Liu maintained that the district court erred in determining that this was an "exceptional" case warranting an award of attorneys' fees under the Lanham Act. The USCA affirmed the district court's denial of Watec American and Liu's new trial motion, and affirmed the jury verdict and the judgment with remittitur, but vacated and remanded on the issue of attorneys' fees. It held that the district court properly denied the motion for a new trial because Watec America and Liu were not deprived of the opportunity to present their trademark infringement defense. The district court also committed no error in remitting the jury's excessive trademark damages award instead of granting a new trial as there was no evidence that the jury's finding of liability was tainted by passion and prejudice. However, because the district court did not make the requisite finding that this case is "exceptional" under 15 USC Sec. 1117(a), the USCA vacated its award of attorneys' fees and remanded that issue to the district court for its further assessment consistent with the USCA's opinion. The USCA also held that the jury's verdict on breach of contract and trademark infringement must stand because it was supported by substantial evidence. Likewise, the jury's contract damages award must stand because Watec America and Liu lack a factual basis for challenging the time frame the jury used in its calculations. Schroeder, Gould (author), and Clifton, Circuit Judges. R. Trojan of Beverly Hills, CA, for the defendants; C. Nakasaka of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/) 8) TELECOMMUNICATIONS LAW: MetroPCS, Inc. v. San Francisco, 03-16759 (9th Cir. Mar. 7, 2005). MetroPCS brought this action in the District Court for the Northern District of California, alleging that a decision by the San Francisco Board of Supervisors denying MetroPCS permission to construct a wireless telecommunications antenna atop a city parking garage violated the Telecommuni-cations Act of 1996 ("TCA"). Specifically, MetroPCS alleged that the Board's decision 1) was not "in writing" as required by the TCA, 2) was not supported by substantial evidence, 3) constituted unreasonable discrimination among providers of functionally equivalent wireless services, 4) prohibited or had the effect of prohibiting the provision of wireless services and 5) was improperly based on environmental concerns about radio frequency emissions. Both parties moved for summary judgment, and the district court granted the City's motion for summary judgment as to all claims except the prohibition claims, ruling that material questions of fact remained as to whether the Board's decision had the effect of prohibiting the provision of personal wireless services. The USCA affirmed the district court's ruling that the Board's decision was properly "in writing," supported by substantial evidence and not impermissibly based on concerns over radio frequency emissions under the TCA. It also affirmed the district court's ruling that material questions of fact remained as to whether the Board's decision effectively prohibited the provision of personal wireless services under the TCA. But, the USCA reversed the district court's determination that the Board's decision did not, as a matter of law, unreasonably discriminate among providers of functionally equivalent services within the meaning of the TCA. The USCA remanded that for further proceedings. Dissenting in part, Judge Graber said she agreed with the majority that genuine issues of material fact remain with respect to whether the Board denial of MetroPCS's application for a Conditional Use Permit to construct wireless facilities violated the anti-discrimination and anti-prohibition provisions of the TCA. She wrote separately because she thought that the Board's determination that the proposed facilities are unnecessary, premised on the fact that at least one other service provider serves the same area, is irreconcilable with the anti-discrimination provision of the TCA. In view of that inconsistency, the Board's "necessity" finding cannot support its denial of MetroPCS's request even if substantial evidence supports that finding. Judge Graber dissented from the majority's conclusion to the contrary. Cudahy (author), Graber (dissenting in part), and Fisher, Circuit Judges. M. Fineman of San Francisco, CA, for the plaintiff; W. Sanders of San Francisco, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/) 9) PRODUCTS LIABILITY / SANCTIONS: Lasar v. Ford Motor Company, 03-35093 (9th Cir. Mar. 3, 2005). While driving a Ford pick-up truck, Lasar was involved in a rollover accident. He brought a product liability damages action against Ford. The present ap-peal arose from sanctions the district court levied against Ford and its counsel for statements counsel made during his opening statement to the jury that ultimately resulted in a mistrial. In imposing sanctions, the district court determined that counsel violated two pre-trial in limine orders prohibiting Ford from introducing evidence that Lasar had been drinking before the accident and had not been wearing his seatbelt at the time of the accident. Following a sanctions hearing, the district court ordered Ford and counsel to pay sanctions to Lasar and to the district court. The sanctions were intended to reimburse Lasar for unnecessary expenses and attorneys' fees, and to reimburse the district court for the costs of empaneling the jury. The court also found counsel in contempt of court for deliberating violating the pretrial order relating to alcohol use. Finally, the court revoked counsel's pro hac vice status and permanently barred him from appearing pro hac vice in the Missoula Division of the U.S. District Court for the District of Montana. The USCA affirmed the district court's ruling as to all sanctions except the lifetime ban on counsel's pro hac vice appearance before that court, which it reversed because the ban violated counsel's due process right to notice. Tashima, Paez (author), and Bea, Circuit Judges. T. Boutrous of Los Angeles, CA, and R. Derevan of Irvine, CA, for the appellants; M. Weisman of Boston, MA, for appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 10) INSURANCE / HOLOCAUST VICTIMS: Gerling Global Reinsurance Corp. of America v. Garamendi, 04-15332 (9th Cir. Mar. 10, 2005). Plaintiffs, three insurance companies and one insurance trade association, brought this action against the California Commissioner of Insurance seeking to bar the enforcement of the Holocaust Victim Insurance Relief Act of 1999 which requires the disclosure of certain information pertaining to Holocaust-era insurance policies written in Europe. Following the Supreme Court's disposition of this case in their favor, the plaintiffs sought attorneys' fees. The USCA remanded the fees question to the district court, which denied the request. Two issues were then appealed: First, did the district court err when it held that plaintiffs were not prevailing parties under 42 USC 1988? Second, did the foreign affairs power of the Executive branch and the related executive agreements between the U.S., Germany, Austria, and France create private rights under 42 USC Sec. 1983? The USCA held that the plaintiffs are prevailing parties and thus entitled to an award of attorneys' fees. As the plaintiffs were prevailing parties, the USCA did not reach the question of whether executive actions under the foreign affairs power create justiciable private rights. The USCA remanded for the district court to determine the proper fee. Goodwin (author), Graber, (concurring), and Paez, Circuit Judges. C. Rothfeld of Washington, DC, for the plaintiffs; F. Kaplan of Santa Monica, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/) 11) ENVIRONMENTAL LAW: Great Basin Mine Watch v. EPA, 03-70231 (9th Cir. Mar. 23, 2005). Great Basin Mine Watch petitioned for review of a final EPA ruling which allowed Nevada to split a clean air area ("area 61") into two ("lower 61" and "upper 61"). It argued that the EPA, by approving the split, violated its statutory and regulatory duties under the Clean Air Act as it failed to consider the effect of a major pollution emitter, Barrick Goldstrike Mine, in area 61. The USCA denied the petition, concluding that the EPA had not acted arbitrarily, capriciously, or contrary to law when it granted Nevada's request to divide area 61, and that the existence and op-eration of the Mine did not preclude the division. Canby (author), Rymer, and Hawkins, Circuit Judges. R. Flynn of Boulder, CO, for the petitioner; A. Doyle of Washington, DC, for the respondent; W. Frey of Carson City, NV, for the State of Nevada. (Download the full text of this decision at www.cc9.uscourts.gov/) 12) EMPLOYMENT DISCRIMINATION: Obrey v. Johnson, 03-16849 (9th Cir. Mar. 4, 2005). Obrey filed suit for declaratory and injunctive relief, alleging that he was twice denied a promotion at the Pearl Harbor Naval Shipyard. He alleged that the defendant Secretary of the Navy had engaged in a pattern or practice of discrimination against qualified candidates of Asian-Pacific ancestry in favor of Caucasian applicants for senior management positions at the Shipyard. In a pre-trial hearing, the district court issues several evidentiary rulings excluding the principal evidence supporting Obrey's pattern or practice claim. After a jury trial, judgment was entered against Obrey. The district court's evidentiary rulings formed the basis for this appeal. The USCA reversed and remanded. It held that the district court's erroneous exclusion of the Dannemiller study, the testimony of Mr. Toyama, and the anecdotal testimony of three Shipyard workers was an abuse of discretion requiring reversal. The erroneous exclusion was not harmless. Brunetti, Graber, and Bybee (author), Circuit Judges. C. Ikei of Honolulu, HI, for the plaintiff-appellant; E. Hawkens of Washington, DC, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 13) EMPLOYMENT DISCRIMINATION / NATIVE AMERICAN LAW: EEOC v. Peabody Western Coal Company, 02-17305 (9th Cir. Mar. 10, 2005). The Equal Employment Opportunity Commission ("EEOC") filed this action against Peabody Western Coal Company for maintaining a Navajo hiring preference at mines Peabody leases from the Navajo Nation. The EEOC alleged that Peabody discriminated against non-Navajo Native Americans, including two members of the Hopi Nation and one member of the Otoe tribe. Three issues were presented on appeal. First, whether, under Fed. Rule Civil Proc. 19, it is feasible to join the Navajo Nation as a party. The USCA held that it is feasible to join the Nation in order to effect complete relief between the parties. Because the EEOC is an agency of the U.S., the Navajo Nation cannot assert its sovereign immunity as a defense to joinder. Second, whether the EEOC's claim presents a nonjusticiable political question. The USCA held that it does not. Third, whether the district court erred in dismissing the EEOC's claim that Peabody failed to keep records as required by Title VII, 42 USC Sec. 2000e-8(c). The USCA held that it did. It thus reversed and remanded for further proceedings. Hug, Alarcon, and W. Fletcher (author), Circuit Judges. B. Gutman of Washington, DC, for the plaintiff-appellant; L. Rosenfeld of Phoenix, AZ, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 14) EMPLOYMENT DISCRIMINATION: Mondero v. Salt River Project, 03-16173 (9th Cir. Mar. 15, 2005). Mondero appealed a district court order granting Salt River Project's summary judgment motion to dismiss her claim under Title VII of the Civil Rights Act of 1964. She argued that, because of her gender, she was denied an opportunity to serve as an operations journeyman, with on-the-job training and guaranteed a permanent assignment that had been offered to male employees. The USCA affirmed, concluding that Mondero failed to show that the Project's decision to discontinue the experimental operations journeyman on-the-job training program was motivated by gender discrimination. Alarcon (author), Siler, and Silverman, Circuit Judges. J. Conley of Phoenix, AZ, for the plaintiff; J. Egbert of Phoenix, AZ, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/) 15) LABOR LAW: California State Legislative Board v. Dept. of Transportation, 03-72211 (9th Cir. Mar. 9, 2005). At issue here was whether the Federal Railroad Administration ("FRA") may exclude hotels and motels from regulation under the Hours of Service law for railroad operating employees. In August of 2002, an official of the United Transportation Union, representing such employees, complained to the FRA that the Sierra Motel had unsafe wiring and, because it lacked wall insulation and double-paned windows, allowed in too much noise from traffic on an adjacent highway. The Union alleged that such conditions violated the Hours of Service law, which regulates railroaders' work and mandatory off-duty time. A FRA regional administrator declined to address the complaint on the grounds that the law did not apply to public lodging secured in an arms-length transaction. The Union appealed within the agency, but the decision was upheld. The Union then petitioned for judicial review. The USCA denied the petition for review, finding that the FRA's interpretation of 49 USC Sec. 21106 entitled to deference. O'Scannlain (author), Cowen, and Bea, Circuit Judges. L. Mann of Washington, DC, for the petitioner; P. Plocki of Washington, DC, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/) 16) ADMIRALTY / TORTS: Taghadomi v. USA, 03-16129 (9th Cir. Mar. 22, 2005). Taghadomi, a U.S. citizen, and his wife Nahid, a citizen of Iran, rented a kayak during their honeymoon in Maui. The kayak was buffeted by harsh winds and waves and Nahid was tossed overboard, attacked by a shark, and died. Taghadomi was washed up on an island and stranded for three days before being rescued. A witness on land had telephoned the Coast Guard but by the time its cutter arrived, it was dark and the search was called off. Taghadomi brought this lawsuit, seeking damages from the U.S. for wrongful death and emotional distress. He alleged that the Coast Guard was negligent in carrying out its rescue operation and in failing to contact local authorities who had access to better rescue equipment that might have been able to save the couple. The district court granted the defendant's motion for summary judgment, holding that Taghadomi's claims were not cognizable, and denied as futile his motion to amend. The USCA affirmed. The U.S. can be liable only if it has waived its sovereign immunity. Three immunity-waiving statues are relevant here: 1) the Federal Tort Claims Act ("FTCA"); 2) the Public Vessels Act ("PVA"); and the Suits in Admiralty Act ("SAA"). Taghadomi cannot bring claims under either the PVA or SAA, both because of the PVA's reciprocity requirement and because he failed to file within the applicable limitations periods under both statutes. He thus sought to bring claims under the FTCA. But, the USCA found that none of his claims were cognizable under the FTCA. The district court correctly granted summary judgment for the government. O'Scannlain (author), Cowen, and Bea, Circuit Judges. P. Schey of Los Angeles, CA, for the appellant; P. Berns of San Francisco, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 17) TORTS: Whisnant v. USA, 04-35340 (9th Cir. Mar. 11, 2005). Whisnant appealed the district court's dismissal of his Federal Tort Claims Act ("FTCA") suit against the U.S. for negligence in its operation of a commissary on a naval base. He claims he became ill as a result of exposure to toxic mold negligently allowed to colonize the commissary's meat department over a period of years. Finding the action barred by the FTCA's discretionary function exception, the district court dismissed for lack of subject matter jurisdiction. The USCA found that the government's alleged failure to maintain safe and healthy premises was not a decision susceptible to considerations of social, economic or political policy. It thus reversed. B. Fletcher (author) and Gould, Circuit Judges, and King, District Judge. D. Cochran of Tacoma, WA, for the plaintiff; Q. Bain of Washington, DC, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/) 18) NATIVE AMERICAN LAW / TORTS: Skokomish Indian Tribe v. USA,
01-35028 (9th Cir. Mar. 9, 2005). At issue here was whether an Indian tribe could
bring claims against the U.S. under the Federal Tort Claims Act for violation
of a treaty, or against a city and a public utility under a treaty and 42 USC
Sec. 1983. The Skokomish Indian Tribe and its members bought suit against the
U.S., the City of Tacoma, and Tacoma Public Utilities ("TPU"), alleging
harms caused by the Cushman Hydroelectric Project, a City-owned pro-ject comprised
of two dams, two reservoirs, diversion works, two power-houses and transmission
lines. The Project, completed in 1930, floods over 30 acres of federal land in
a total project area of 4700 acres located upstream from the Tribe's land. The
Project has diverted the flow of the Skokomish River's North Fork to power-generating
facilities and led to aggradation of the river. Allegedly, this has caused flooding
of the Tribe's reservation, failure of septic system, contamination of water wells,
blocking of fish migration, damage to the Tribe's orchards and silting over many
of the Tribe's fisheries and shellfish beaches. The Tribe claims the Project has
caused it nearly $5 billion in losses. It sued for damages, alleging state and
federal causes of action, including claims arising under the Treaty of Point No
Point, Jan. 26, 1855, 12 State. 933. The district court dismissed the U.S. as
a defendant and granted summary judgment in favor of the City and TPU on the treaty-based
and state-law claims. It also dismissed the Tribe's claim under 16 USC Sec. 803(c)
for failing to state a claim upon which relief could be granted. A divided USCA
panel affirmed, but held that the district court should have dismissed the treaty-based
claims for lack of subject matter jurisdiction. Sitting en banc, the USCA
then affirmed in part and transferred to the Court of Federal Claims in part.
It affirmed the summary judgment in favor of the City and TPU. The Tribe's claims,
it held, could not be asserted under the Treaty or Sec. 1983. Judge Graber, joined
by Judges Pregerson, Paez, and Berzon, concurred with two exceptions: First, with
respect to the right of individual members of the Tribe to bring a Sec. 1983 claim
against the City and TPU, Judge Graber agreed with Judge Berzon's dissent. Second,
Judge Graber disagreed with the majority's conclusion that the statute of limitations
had run on the Tribe's Washington-law claims for nuisance and trespass. Dissenting
in part and joined by Judges Pregerson, Paez, and Rawlinson, Judge Berzon thought
that the case law did not support the majority's broad pronouncement that Indian
Tribes and their members cannot, under federal law, sue municipalities for damages
for violation of rights secured by Indian treaties. Schroeder, Pregerson, Kozinski
(author), Rymer, Graber (dissenting in part), Gould, Paez, Berzon (dissenting),
Rawlinson, Bybee, and Callahan, Circuit Judges. M. Morisset of Seattle, WA, for
the plaintiffs; AUSA P. Lynch and J. Creatura of Tacoma, WA, for the defendants.
(Download the full text of this decision at www.cc9.uscourts.gov/)
20) FRANCHISE AGREEMENTS / ARBITRATION: Nagrampa v. MailCoups Inc., 03-15955 (9th Cir. Mar. 21, 2005). Nagrampa entered into an agreement with MailCoups to operate one of the company's mail-advertising franchises. Their agreement included a clause requiring the arbitration of any dispute "arising out of or relating to" the agreement. The clause designated Boston, Massachusetts, as the situs for any arbitration proceedings and provided that costs be borne equally by the parties. Nagrampa claims that the agreement she received in the mail and returned to MailCoups with her signature, was non-negotiable, that she was not given a copy of the agreement for her own records, and that MailCoups did not inform her about the arbitration clause or the costs associated with arbitra-tion. Nagrampa's franchise proved to be a financial failure, and after two years she unilaterally terminated the agreement. MailCoups, which claimed that Nagrampa owed it owed $80,000, initiated arbitration proceedings against her with the American Arbitration Asso-ciation ("AAA"). Nagrampa initially participated in the prehearing procedures but stopped after the arbitrator designated Boston as the location for the arbitration. The proceedings thereafter continued without her participation. Meanwhile, Nagrampa filed suit against MailCoups and the AAA in California state court, alleging that MailCoups was liable for common-law misrepresentation and fraud, as well as for violating the California Consumer Legal Remedies Act and California's franchise and unfair competition laws. She sought monetary damages and an injunction preventing MailCoups from enforcing the arbitration clause against her. Invoking the parties' diversity of citizenship, MailCoups removed the case to federal court and then moved to compel arbitration and stay or dismiss the court proceedings. The district court concluded that the agreement was valid and granted MailCoups' motion to dismiss. The USCA affirmed. It found that its inquiry into whether the parties entered into an enforceable arbitration agreement had to be confined to the arbitration clause's validity. Issues relating to agreement as a whole had to be referred to an arbitrator. O'Scannlain (author), Cowen, and Bea, Circuit Judges. K. Gordon of Oakland, CA, for the appellant; G. Plattner of Los Angeles, CA, for MailCoups; S. Hufstedler of Los Angeles for the AAA. (Download the full text of this decision at www.cc9.uscourts.gov/) 21) STATE ESCHEATMENT: Taylor v. Westly, 02-16511 (9th Cir. Mar. 29, 2005). After the plaintiffs' stock escheated to the state, they sued to get it back. The district court held that the Eleventh Amendment barred their claims. The USCA disagreed. Because the plaintiffs sought prospective relief, and because the funds they sought are held by the state as custodian in trust for them, rather than as the state's own funds, much as a municipality holds a car towed from an expired parking meter, the complaint should not have been dismissed under the Eleventh Amendment. The USCA thus vacated the judgment and remanded. Cudahy, Beezer, and Kleinfeld (author), Circuit Judges. W. Palmer of Sacramento, CA, for the appellants; R. Johansen of San Leandro, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 22) CALIFORNIA'S ANTI-SLAPP STATUTE / CIVIL PROCEDURE: Thomas v. Fry's Electronics, 03-56306 (9th Cir. Mar. 15, 2005). Thomas brought this interlocutory appeal challenging the district court's denial of his anti-Strategic Lawsuit Against Public Purpose ("anti-SLAPP") motion to strike state law counterclaims brought by Fry's Electronics in Thomas's declaratory relief action. The district court ruled that California's anti-SLAPP law conflicts with the Federal Rules of Civil Procedure and thus is unavailable to litigants in federal courts. The USCA reversed. Swierkiewicz v. Sorema, 534 US 506 (2002), does not abrogate USA ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999). Because the district court erroneously held that the anti-SLAPP statute was unavailable in federal court, it did not reach the merits of Thomas' motions to strike or for attorneys' fees and costs. The USCA remanded to the district court so that it could rule on those issues. T.G. Nelson, Silverman, and Tallman, Circuit Judges. Per Curiam. S. McMillan of La Mesa, CA, for the appellant; J. Clayton of Lafayette, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 23) DISCOVERY: Burlington Northern & Santa Fe Railway Company
v. U.S. District Court, 04-72134 (9th Cir. Mar. 31, 2005). Burlington
Northern & Santa Fe Railway petitioned the USCA for a writ of mandamus to
overturn the district court's order that Burlington produce documents to plaintiff
Kapsner in an underlying environmental litigation in which Burlington is the defendant.
The USCA denied the writ, finding that the district court did not err in ordering
Burlington to produce documents as to which it untimely asserted a privilege.
As the district court's order was not clearly erroneous, the USCA found no need
to reach the remaining factors listed in Bauman v. USDC, 557 F.2d 650 (9th
Cir. 1977). Schroeder, Goodwin (author), and Graber, Circuit Judges. J.
Berghoff of Chicago, IL, for the petitioner; J. McGarry of Bozeman, MT, and D.
West of San Francisco, CA, for the real-parties-in-interest. (Download
the full text of this decision at www.cc9.uscourts.gov/) 25) CIVIL PROCEDURE: Darulis v. Garate, 03-16580 (9th Cir. Mar. 22, 2005). Darulis, a California resident, was arrested and incarcerated. He claimed that as a result, his father, an Ohio resident, became distressed, which led to a heart attack and eventual death. Darulis filed a complaint in federal district court, asserting a tort claim for his father's "pre-death suffering." He argued that by unlawfully arresting him, the defendants negligently breached a duty of care they owed his father. He also alleged that he repeatedly mailed the defendants notices of the lawsuit and requests for waiver of service of process. When they failed to respond, he paid the sheriff $90 to effectuate service. The district court granted the defendants' motion to dismiss the complaint as untimely. The USCA affirmed the dismissal but reversed the denial of Darulis' motion for costs and remanded for an award of costs. In light of the express language of Federal Rules of Civil Procedure 4(d)(2) and 54(d)(1), and the Advisory Committee's intent, the district court abused its discreiton in denying Darulis his costs for service of process. Rule 4(d)(2) provides for an award of such costs regardless of which party can recover other costs pursuant to Rule 54(d)(1). Wallace (author), Rawlinson, and Bybee, Circuit Judges. M. Darulis of Millbrae, CA, pro se; B. Gearinger of San Francisco, CA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/) 26) PRIVATE RIGHT OF ACTION: Manshardt v. Federal Judicial Qualifications, 03-55683 (9th Cir. Mar. 17, 2005). Manshardt appealed the dismissal of his complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a justiciable claim. He alleged that the Federal Judicial Qualifications Committee, a committee formed by private citizen Gerald Parsky and U.S. Senators Diane Feinstein and Barbara Boxer to recommend nominees to the President to fill federal district court and U.S. Attorney vacancies in California, had been meeting in private and without a charter in violation of the Federal Advisory Committee Act ("FACA"). The USCA concluded that a private right of action is not available under FACA and affirmed the district court's dismissal of Manshardt's complaint. Noonan, Thompson (author) and Hawkins, Circuit Judges. P. Manshardt of Los Angeles, CA, pro se; J. Klapach of Los Angeles, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/) 27) INTERLOCUTORY APPEALS: Chamberlan v. Ford Motor Company, 04-80074 (9th Cir. Mar. 31, 2005). The USCA here identified its considerations in evaluating whether to permit an interlocutory appeal under Fed. R. Civil Proc. 23(f) which permits a discretionary interlocutory appeal from a district court order denying or granting a class action certification. The USCA noted that Rule 23(f) review should be a rare occurrence. It then adopted the principles justifying review set out in the Advisory Committee Notes-the presence of a death knell situation for either party absent review and the presence of an unsettled and fundamental issue of law related to class actions-along with manifest error in the district court's certification decision. Leavy, McKeown, and Berzon, Circuit Judges. Per Cu-riam. B. Anderson of Washington, DC, for the petitioner; S. Solomon of San Francisco, CA, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/) 28) MEDICARE: Portland Adventist Medical Center v. Thompson, 03-35612 (9th Cir. Mar. 2, 2005). At issue here was whether the Secretary of the Department of Health and Human Services correctly denied reimbursement to the plaintiff hospitals for services to cer-tain low-income populations based on the Secretary's interpretation of the Medicare statute's Disproportionate Share Hospital calculation. The district court held that the Secretary's interpretation of the statute governing reimbursement violated the text and intent of the statute and granted plaintiffs' motion for summary judgment. The USCA affirmed. T.G. Nelson and Rawlinson, Circuit Judges, and Schwarzer (author), District Judge. A. Flentje of Washington, DC, for the appellant; L. Gould of Seattle, WA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/) 29) DISABILITY BENEFITS: General Construction Co. v. Castro,
03-72528 (9th Cir. Mar. 2, 2005). General Construction and Liberty Northwest
Insurance Corporation, together with amicus Longshore Claims Association, petitioned
for review of a Benefits Review Board ("BRB") ruling that claimant Castro
is entitled to total disability compensation under the Longshore and Harbor Workers'
Com-pensation Act ("LHWCA"), during his period of participation in a
vocational rehabilitation program approved by the Office of Workers' Compensation
Programs ("OWCP"). The petitioners also claimed that the ALJ's method
of calculating Castro's average weekly wage was incorrect and that the OWCP violated
the petitioners' procedural rights under the APA and the federal Due Process Clause.
The USCA denied the petition. The BRB properly upheld the ALJ's award under the
LHWCA, and the ALJ's wage calculation was correct under Ninth Circuit law. The
BRB also correctly held that the OWCP's failure to grant the petitioners a hearing
before approving Castro's rehabilitation program did not violate General Construction's
procedural or due process rights. T.G. Nelson and Rawlinson, Circuit Judges, and
Schwarzer (author), District Judge. R. Warns of Seattle, WA, for the petitioners;
W. Hochberg of Edmonds, WA, for respondent Castro; P. Silvain of Washington, DC,
for respondent Director, OWCP. (Download the full text of this
decision at www.cc9.uscourts.gov/)
31) AMERICANS WITH DISABILITIES ACT: Leonel v. American Airlines, Inc., 03-15890 (9th Cir. Mar. 4, 2005). The appellants, all of whom are HIV-positive, applied for flight attendant positions with American Airlines. American issued them conditional offers of employment, contingent upon passing background checks and medical exams. None of the appellants disclosed either his HIV-positive status or related medications. Alerted by the appellants' blood test results, Americans discovered their HIV-positive status and re-scinded the job offers, citing their failure to disclose information during their medical exams. The appellants filed suit, challenging the medical inquiries and examinations as prohibited by the Americans with Disabilities Act and California's Fair Employment and Housing Act. They argued that American could not require them to disclose their personal medical information so early in the application process-before it had completed its background checks such that the medical exams would be the only remaining contingency-and thus their nondisclosures could not be used to disqualify them. They further maintained that American violated their rights to privacy under California law by conducting complete blood count tests on their blood samples without obtaining their consent. The district court granted American summary judgment on all claims. The USCA reversed in part, holding that the appellants raised material issues of fact as to all claims except one for intentional infliction of emotional distress. Cudahy, Graber, and Fisher (author), Circuit Judge. T. Schneider of San Francisco, CA, for the plaintiffs; P. Champagne of Sacramento, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/) 32) AMERICANS WITH DISABILITIES ACT: The Arc of Washington State v. Braddock, 03-35605 (9th Cir. Mar. 29, 2005). The Arc of Washington State and three developmentally disabled individuals (collectively "Arc") appealed the partial summary judgment entered against them, the decertification of a class, and the dismissal of their action against the state Department of Social and Health Services, and others (collectively "DSHS"). Arc argued that the district court committed errors, including a ruling against Arc's claim that the Americans with Disabilities Act of 1990 is violated by a restriction on the number of people who can participate in the special Medicaid waiver program that provides for alternatives other than institutionalization for developmentally disabled people. The USCA affirmed on the ADA issue, holding that notwithstanding the ADA's accommodation provisions, states are permitted to use the cap provided in Medicaid law when they utilize the Medicaid waiver program for the Home and Community Based Services waiver. Kozin-ski, Fernandez (author), and Clifton, Circuit Judges. S. Jones of Seattle, WA, for the plaintiffs; AAG W. Van Hook of Olympia, WA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/) 33) CIVIL RIGHTS / DAMAGES: Cummings v. Connell, 03-17095 (9th Cir. Mar. 29, 2005). The USCA held that when nominal damages are awarded in civil rights class actions every member of the class whose constitutional rights were violated is entitled to nominal damages. An award of nominal damages to only named class representatives fails to appreciate the difference between a class action and a conventional lawsuit. The USCA also held that, pursuant to Ninth Circuit Rule 39-1.6, a request for attorneys' fees incurred on appeal must be made to the USCA not to the district court. The district court is not authorized to award attorneys' fees for an appeal unless the USCA transfers the fee request to the district court for consideration. Alarcon, Siler, and Silverman (author), Circuit Judges. J. Demain of San Francisco, CA, for the defendant; W. Young of Springfield, Virginia, for the plaintiffs. (Download the full text of this decision at www.cc9.uscourts.gov/) 34) CIVIL RIGHTS: Moreno v. Baca, 02-55627 (9th Cir. Mar.
7, 2005). Los Angeles County Deputy Sheriffs Banks and Garcia ap-pealed the district
court's denial of their motion for summary judgment in a 42 USC Sec. 1983 action
brought by Moreno. Moreno al-leged that the appellants, acting under color of
law, deprived him of his constitutional rights when they arrested and searched
him without cause. The appellants responded that Moreno had no right to be free
from suspicionless arrest and search due to his outstanding bench warrant and
parole conditions. Even if reasonable suspicion were required to detain him, the
appellants said they had the requisite level of suspicion due to Moreno's nervous
behavior and the fact that he was walking in a "high crime" area. The
district court sided with Moreno, reasoning that under Griffin v. Wisconsin,
483 US 868 (1987), and USA v. Knights, 534 US 112 (2001), "at least
reasonable suspicion" was required to justify the search and seizure. The
deputies then brought this interlocutory appeal from the district court's denial
of summary judgment on qualified immunity grounds. The USCA affirmed but remanded
for further proceedings. Concurring in the judgment, Judge Clifton said he agreed
that the district court properly denied the appellants' motion for summary judgment
based on qualified immunity, but wrote separately because he disagreed with the
majority's conclusion that the appellants' actions violated Moreno's constitutional
rights on the theory that reasonable suspicion is required to justify a search
or seizure of a parolee, even though the relevant terms of Moreno's parole would
appear to permit a warrantless search or seizure. Judge Clifton thought that the
majority's conclusion to that effect was irrelevant to the result reached in this
case and should be disregarded. Pregerson, Tashima (author), and Clifton
(concurring), Circuit Judges. D. Rutledge of Irving, CA, for the defendants;
K. Bloomfield of Venice Beach, CA, for the plaintiff. (Download
the full text of this decision at www.cc9.uscourts.gov/)
36) IMMIGRATION: Nahrvani v. Gonzales, 03-70586 (9th Cir. Mar. 7, 2005). Nahrvani, a native of Iran, petitioned for review of the BIA's summary affirmance of the IJ's denial of his request for asylum from Iran and his request for withholding of removal and protec-tion under the Convention Against Torture ("CAT") as to Germany. The IJ had granted withholding of removal and protection under CAT as to Iran but found that, due to Nahrvani's conversion to Christianity, he would face persecution if returned to Iran. However, he was firmly resettled in Germany and had failed to establish a well-founded fear of future persecution in Germany. Specifically, he had not established that the German government was unwilling or unable to protect him from alleged persecution in Germany at the hands of unnamed parties from the Iranian Consulate. Finding the IJ's determinations supported by substantial evidence, the USCA denied the petition. Dissenting, Judge Fletcher noted that after two years imprisonment and torture in Iran, Nahrvani knew what the Iranian government could do to him, and understandably escalating death threats and escalating physical damage in Germany were frightening to him and his German wife. They expected worse would follow. His wife decided that separation was better than risking her husband's assassination. For these reasons, Judge Fletcher would find Nahrvani eligible for asylum. B. Fletcher (dissenting), Hansen, and Rawlinson (author), Circuit Judges. L. Gordon of Los Angeles, CA, for the petitioner; D. Goldman of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 37) IMMIGRATION: McDonald v. Gonzales, 03-71986 (9th Cir. Mar. 2, 2005). McDonald, a native of the Philippines and legal U.S. permanent resident, was found removable under 8 USC Sec. 1227(a)(6)(A) for voting in violation of Hawaii law. Although Sec. 1227(a)(6)(A) provides the reason for deportation, the USCA looked to the relevant Hawaii statute, H.R.S. Sec. 19-3.5(2), to decide whether a violation occurred. Because it determined that McDonald did not have the requisite mental state to have violated H.R.S. Sec. 19-3.5(2), the USCA granted her petition. Even taking as true the IJ's conclusions regarding McDonald's conduct, the mental state the IJ found might qualify as "should have known," or possibly as negligence, but it was not knowingness. The IJ did not find that McDonald was aware that she was ineligible to vote, only that she should have made herself aware. That did not amount to a violation. Ferguson, Noonan, and Hawkins (author), Circuit Judges. S. Folinsky of Los Angeles, CA, for the petitioner; N. Friedman of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 38) IMMIGRATION: Solis-Espinoza v. Gonzales, 03-70625 (9th Cir. Mar. 23, 2005). Solis-Espinoza petitioned for review of a BIA decision affirming without opinion a final order of removal to Mexico. He maintained that he is not removable because he is a U.S. citizen. Although born in Mexico, he claimed citizenship by virtue of the U.S. citizenship of the woman he knew as his mother. That woman, who was married to the petitioner's biological father at the time of the petitioner's birth, acknowledged petitioner from his infancy as a member of her family and raised him as his mother, though he did not have a biological connection with that woman. At issue was whether the petitioner was "born out of wedlock," such that the blood relationship requirement of 8 USC Sec. 1409 applied to him and barred his claim to citizenship. The USCA granted the petition, concluding that the petitioner was not born out of wedlock. He thus qualified for citizenship, and as a citizen, was not subject to removal. Reinhardt, Noonan, and Clifton (author), Circuit Judges. T. Lappin of San Diego, CA, for the petitioner; J. Smiley of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 39) IMMIGRATION: Kalal v. Gonzales, 03-71354 (9th Cir. Mar. 30, 2005). Kalal petitioned for review of the BIA summary affirmance of IJ rulings rescinding her conditional legal permanent resident status, denying her withholding of removal, and ordering her removal. That took place after she failed to comply with the terms of her K-1 visa. The USCA denied her petition. Kalal's K-1 visa subjected her to a number of strictures Congress carefully designed for the purpose of putting an end to the activities of those who would otherwise take advantage of its solicitude for affianced couples. She abided by none of the restrictions, and now wants to avoid them entirely: she did not marry her fiancé within 90 days; she did not marry him at all; and she did not obtain a legal conditional lawful permanent resident status as those who follow the law must. Kalal was properly ordered removed. Fernandez (author), Tashima, and Gould, Circuit Judges. B. Klein of Seattle, WA, for the petitioner; G. Mack of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 40) IMMIGRATION: Minasyan v. Gonzales, 02-73556 (9th Cir. Mar. 22, 2005). Minasyan, a native of Armenia, petitioned for review of a per curiam BIA order affirming an IJ order denying Minasyan's application for withholding of removal and protection under the Convention Against Torture. The BIA found that Minasyan had not shown eligibility for derivative citizenship under a now defunct provision of the Immigration and Nationality Act, Sec. 321(a)(3). The USCA granted the petition, holding that Minasyan is a derivative citizen of the U.S. pursuant to that provision, and thus not subject to removal as a felon convicted of an aggravated offense. Specifically, Minasyan met the statutory requirements of Sec. 321(a) because his parents were legally separated when his custodial parent naturalized. Reinhardt (author), Hall, and Wardlaw, Circuit Judges. H. Varzandeh of Los Angeles, CA, for the petitioner; AAG P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 41) IMMIGRATION: Kasnecovic v. Gonzales, 03-70775 (9th Cir. Mar. 11, 2005). Kasnecovic, a native and citizen of Yugoslavia, sought review of a final BIA order denying her applications for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). The IJ had found her asylum application to be untimely and that she had not shown the extraordinary circumstances needed to excuse that untimeliness. In the alternative, the IJ had denied Kasnecovic's asylum claim on the merits, based on an adverse credibility finding. Because substantial evidence supported the IJ's adverse credibility finding, the USCA denied the petition as to the withholding of removal and CAT claims and dismissed the petition as to the asylum claim. B. Fletcher, Leavy (author), and Berzon, Circuit Judges. R. Jobe of San Francisco, CA, for the petitioner; J. Hogan of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 42) IMMIGRATION: Recinos de Leon v. Gonzales, 02-73352 (9th Cir. Mar. 11, 2005). This case concerns an IJ opinion which was incomprehensible except that it denied the petitioner's applications for asylum and withholding of removal. Pursuant to the "streamlin-ing" regulation, 8 CFR Sec. 1003.1(e)(4) (2004), the BIA affirmed it without opinion. When the agency's only explanation of its final ac-tion is incoherent, the USCA may not substantively review it without violating basic principles of judicial review. It thus granted the petition and remanded the case to the BIA. B. Fletcher, Leavy, and Berzon (author), Circuit Judges. A. Knapp of Los Angeles, CA, for the petitioner; W. Erb of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 43) IMMIGRATION: Mohammed v. Gonzales, 03-70803 (9th Cir. Mar. 10, 2005). Female genital mutilation involves the cutting and removal of all of some of a female's external genitalia. It is often performed under unsanitary conditions with rudimentary instruments and the procedure is extremely painful and permanently disfigures the female genitalia exposing the female to the risk of serious, potentially life-threatening complications. Mohammed, a native and citizen of Somalia, sought to reopen her asylum, withholding of removal, and Convention Against Torture claims on the basis of her first attorney's failure to raise the issue that the genital mutilation (to which Mohammed had been subjected as a child) constitutes ineffective assistance of counsel sufficient to warrant reopening. Because Mo-hammed demonstrated that she was prejudiced by her attorney's ineffective assistance, the BIA abused its discreiton in denying her motions to reopen and reconsider. The USCA granted her petition for review and remanded with instructions to grant the motion to re-open. Reinhardt (author), Thompson, and Berzon, Circuit Judges. R. Nwadibia for the petitioner; AAG P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 44) IMMIGRATION: Lolong v. Gonzales, 03-72384 (9th Cir. Mar. 18, 2005). Lolong sought asylum. The IJ granted relief, but the BIA reversed. The USCA granted the petition for review as compelling evidence established that Lolong had a well-founded fear of future persecution on account of her Chinese ethnicity should she be returned to Indonesia. She demonstrated that Indonesians of Chinese ethnicity are a significantly disfavored group and that she is particularly at risk because she is also a Christian and a woman. The record compelled the conclusion that the Indonesian government is unwilling or unable to control the forces behind ethnic and religious persecution in Indonesia. B. Fletcher (author), Noonan, and Thomas, Circuit Judges. H. Allred of San Francisco, CA, for the petitioner; L. Jentzer of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 45) IMMIGRATION: Kon v. Gonzales, 03-71121 (9th Cir. Mar. 18, 2005). Kon, a native and citizen of Hong Kong, petitioned for review of a BIA's decision summarily affirming an IJ's denial of asylum and withholding of removal. The USCA concluded that Kon's voluntary departure from the U.S. deprived it of jurisdiction and thus dismissed Kon's claims for lack of jurisdiction. Ferguson, Noonan, and Hawkins, Circuit Judges. Per Curiam. D. Gardner of Los Angeles, CA, for the petitioner; P. Fiorino of Washington, DC, for the re-spondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 46) IMMIGRATION: Karouni v. Gonzales, 02-72651 (9th Cir. Mar. 7, 2005). Karouni, a native and citizen of Lebanon, first entered the U.S. in 1987 on a multiple-entry, non immigrant visitor for pleasure visa. He applied for asylum in 1998. The BIA affirmed without opinion an IJ decision that Karouni failed to show that he was persecuted in the past, or had a well-founded fear of future persecution. As the evidence compelled the conclusion that Karouni has a well-founded fear of future persecution if removed to Lebanon, the USCA granted his petition for review. Goodwin, Pregerson (author), and Tallman, Circuit Judges. D. Nelson of San Diego, CA, for the petitioner; L. Perez of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 47) IMMIGRATION: Handa v. Clark, 04-35293 (9th Cir. Mar. 25, 2005). Handa, a United Kingdom citizen who entered pursuant to the Visa Waiver Program ("VWP"), appealed the district court's denial of his habeas petition. He argued that he had been wrongfully removed to the U.K. after overstaying the 90-day limit on his visa. The USCA affirmed. The VWP is designed to eliminate unnecessary red tape and make it possible for people to travel more easily to the U.S., while also making it easier for U.S. citizens to travel to cooperating countries. But the linch-pin of the program is the waiver, which assures that a person who comes on a VWP visa leaves on time and will not raise a host of legal and factual claims to impede removal if he overstays. Handa was aware of the restrictions on his entry and waiver, and still took it upon himself to overstay. He was caught and removed. He is not now entitled to relief from those consequences. Fernandez (author), Tashima, and Gould, Circuit Judges. R. Pauw of Seattle, WA, for the petitioner; AUSA C. Pickrell of Seattle, WA, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/) 48) IMMIGRATION: Qu v. Gonzales, 03-71141 (9th Cir. Mar. 8, 2005). At issue here is whether a husband is entitled to withholding of removal solely by virtue of the fact that his wife has been involuntarily sterilized pursuant to China's coercive population control program. The USCA held that, just as a husband is statutorily eligible for asylum in such circumstances, he is entitled, without more, to withholding of removal. He need make no further showing or meet any further conditions nor requirements to obtain such relief. In-voluntary sterilization irrevocably strips person of one of the important liberties we possess as humans: our reproductive freedom. Thus, one who has suffered involuntary sterilization, either directly or because of the sterilization-of a spouse, is entitled, without more, to withholding of removal. The BIA erred in not granted Qu this relief. Reinhardt (author), Wardlaw, and Paez, Circuit Judges. W. Kiang of San Gabriel, CA, for the petitioner; J. Davis of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 49) IMMIGRATION / ALIEN SMUGGLING: USA v. Garcia, 04-50105 (9th Cir. Mar. 11, 2005). At issue here was whether aiding and abetting under 18 USC Sec. 2 is a separate offense from, or a different theory of liability for, the substantive offense of alien smuggling and transportation of aliens in violation of 8 USC Sec. 1324. Garcia appealed his conviction on four counts of alien smuggling and transportation, plus aiding and abetting. He maintained that the indictment was duplicitous as the two offenses have separate elements and thus require either the government to elect between them or the district court to give a specific unanimity instruction. The USCA concluded that aiding and abetting is not a separate offense from the underlying substantive crime, but rather a different theory of liability for the same offense. It thus affirmed Garcia's conviction on all counts. Goodwin, Magill, and Rymer (author), Circuit Judges. T. Burns of San Diego, CA, for the defendant-appellant; AUSA J. Huynh of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 50) EVIDENCE / JURY INSTRUCTIONS: USA v. Younger, 04-10206 (9th Cir. Mar. 1, 2005). Young appealed his jury conviction for possession with intent to distribute cocaine base in violation of 21 USC Sec. 841(a)(1) and (b)(1)(B), and for being a felon in possession of a firearm in violation of 18 USC Sec. 922(g)(1). He maintained that 1) the district court erred in denying his motion to suppress statements, 2) it erred in permitting certain expert opinion testimony, 3) the prosecutors engaged in prejudicial misconduct during closing argument, 4) the Second Amendment bars prosecution for felon in possession; and 5) the evidence failed to satisfy the "interstate commerce" element of the felon-in-possession charge. The USCA affirmed. As to 3), the USCA found that the district court cut off the prosecutors' comments before any pretrial rulings were revealed, and gave the jury the curative instruction defense counsel requested. The district court's attentiveness and swift corrective action prevented the prosecutors' improper comments from materially affecting the verdict, and the prosecutors' misconduct in referring to the court's rulings was harmless. Noonan and Callahan, Circuit Judges, and Jones (author), District Judge. D. Blank of San Francisco, CA, for the defendant; AUSA H. Horsley of San Francisco, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/) 51) EVIDENCE: USA v. Rodriguez-Preciado, 03-30285 (9th Cir. Mar. 4, 2005). Rodriguez-Preciado appealed his conviction on narcotics offenses. He argued that the district court improperly denied his pre-trial motion to suppress evidence obtained from his person, his motel room, and his vehicle, as well as statements he made in the motel room and during a subsequent two-day interrogation. He main-tained that the officers did not obtain a valid consent to enter and search the motel room and began a custodial interrogation in the motel room without giving him Miranda warnings. He also asserted that he did not validly waive his right to remain silent after he was eventually given Miranda warnings, the warnings became "stale" and should have been re-administered at the outset of the second day of interrogation, and that officers' failure to advise him of his right under Article 36 of the Vienna Convention required suppression. The USCA affirmed. Dissenting in part, Judge Berzon agreed with the majority's decision with one exception: she did not agree that the Miranda warning administered on the night of June 26 was still effective the following afternoon. By that time the defendant had been moved twice since first being advised of his rights, and was then incarcerated at the local country jail. The combination of the lapse in time and the change in custodial circumstances was sufficient that the suspect could well question whether he retained the same rights. Wallace (author), Gould, and Berzon (dissenting in part), Circuit Judges. J. Halley of Portland, OR, for the defendant; AUSA K. Immergut of Portland, OR, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/) 52) EVIDENCE / GUILTY PLEAS: USA v. Lopez-Armenta, 04-10081
(9th Cir. Mar. 10, 2005). Lopez-Armenta was indicted on charges related to the
possession and distribution of methamphetamine and cocaine. After unsuccessfully
moving to suppress evidence ob-tained through a search of his vehicle, he entered
an unconditional guilty plea to all counts. He appealed the district court's denial
of his motion to suppress, arguing that the police lacked both probable cause
and reasonable suspicion and that his plea should not be construed as waiving
his right to challenge the lower court's ruling on these issues. The USCA ruled
that he waived his right to appeal pretrial constitutional defects when he entered
an unconditional guilty plea. Kozinski, W. Fletcher, and Bybee (author),
Circuit Judges. AFPD M. Powell of Reno, NV, for the appellant; AUSA C. Denney
of Reno, NV, for the appellee. (Download the full text of this
decision at www.cc9.uscourts.gov/)
54) NEWLY DISCOVERED EVIDENCE: USA v. Garcia, 04-30172 (9th Cir. Mar. 16, 2005). Garcia appealed the district court's denial of his motion to withdraw his guilty plea to a charge of manufacture of methamphetamine and a related firearm charge. After his plea was accepted but before he was sentenced, Garcia moved to withdraw his plea on the basis of new evidence and an intervening change in the law. Because the newly discovered evidence constituted a "fair and just reason" to permit him to withdraw the plea prior to sen-tencing, the USCA vacated the conviction, set aside the guilty plea, and remanded for further proceedings. Instead of focusing on the "fair and just reason" inquiry, the district court improperly considered the voluntariness of Garcia's plea, his supposed failure to claim innocence, and the timing of the motion, as reasons to deny his motion to withdraw his plea. That was an abuse of discretion. B. Fletcher (author), McKeown, and Gould, Circuit Judges. R. Goldsmith of Seattle, WA, for the defendant; AUSA B. Miyake of Seattle, WA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/) 55) BATTERED WOMEN'S SYNDROME DEFENSE: McNeil v. Middleton, 01-56565 (9th Cir. Mar. 29, 2005). McNeil took a shotgun and fired it into the midsection of her husband while he was cooking. Not feeling that she had done enough damage, she reloaded and shot him in the face. He died. McNeil asserted that she suffered from Battered Women's Syndrome ("BWS") and had shotgunned her husband in an act of perfect self-defense. At the very least, she argued, her acts were an instance of imperfect self-defense, which would make her guilty of voluntary manslaughter at worst. Each of these defenses requires that a woman have an actual belief in the need to defend herself. They differ in that perfect self-defense requires that the belief be reasonable, whereas for imperfect self-defense the belief must be unreasonable. The trial judge correctly instructed the jury that BWS could be considered on the issue of McNeil's actual belief, but incorrectly instructed that it could not be considered in testing reasonableness for perfect self-defense purposes. The jury could consider BWS for the purpose of deciding if there was an unreasonable belief for imperfect self-defense purposes. The jury specifically found that McNeil was guilty of second degree murder and that she was not guilty of voluntary manslaughter. When this case was previous before the USCA, it determined that if the jury had followed the instructions literally, it could have rejected imperfect self-defense because McNeil did not behave as a reasonable person in acting as she did. However, on appeal, the Supreme Court did not agree and said the USCA had expected too much legal sophistication on the part of jurors. On this new appeal the USCA affirmed. It could not say that the state courts unreasonably applied federal law when they upheld McNeil's conviction. Dissenting, Judge Paez thought that McNeil's due process right to present a complete defense was violated when the trial court incorrectly instructed the jury that the BWS evidence could not be considered for the reasonableness of her belief in the need for self-defense. This effectively precluded the jury from finding that she acted in self-defense. Judge Paez would thus reverse the district court's denial of habeas relief. Beezer, Fernandez (author), and Paez (dissenting), Circuit Judges. C. Khoury of New Hampshire for the petitioner; DAG W. Robinson of San Diego, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 56) EMBEZZLEMENT: USA v. Kranovich, 03-10226 (9th Cir. Mar. 23, 2005). A former sheriff appealed his conviction and sentence for theft involving a federally funded program in violation of 18 USC Sec. 666(a)(1), and theft of government property, in violation of 18 USC Sec. 641. He attacked his Sec. 666 conviction by arguing that there was insufficient evidence of a connection between the wrongfully expended funds and either the expenditure of federal funds or the integrity of federal programs, and that his county received a federal benefit in excess of $10,000. He challenged his Sec. 641 conviction by contending that there was insufficient evidence that the embezzled funds were U.S. property. The USCA affirmed. Wallace (author) and McKeown, Circuit Judges, and Moskowitz, District Judge. F. Atcheson of Reno, NV, for the defendant; AUSA R. Rachow of Reno, NV, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/) 57) SENTENCING / "THREE STRIKES": Reyes v. Brown, 00-57130 (9th Cir. Mar. 4, 2005). Reyes brought this 28 USC Sec. 2254 habeas action to challenge his sentence under California's "Three Strikes" law. He was convicted of perjury for making misrepresentations on a California Dept. of Motor Vehicles driver's license application. This perjury conviction was his third strike and he was sentenced to 26 years to life. Reyes argued that this punishment violated the Eighth Amendment's prohibition on cruel and unusual punishment. The district court denied his habeas petition. Finding that the facts necessary to evaluate Reyes' petition had not been suffi-ciently developed in the district court, the USCA vacated the denial of Reyes' petition and remanded for further proceedings to see if Reyes' punishment violated the proportionality principle. Dissenting, Judge Tallman noted that the U.S. Supreme Court has found that California's Three Strikes sentences generally do not violate the prohibition on cruel and unusual punishment, but that such a violation might arise in an "exceedingly rare and extreme case." The present case, Judge Tallman thought, was not such a case: Reyes did not present an "extraordinary" rare case; he was a career criminal. Between 1981 and 1997, he committed six crimes and spend almost seven years behind bars, five of which in state prison. Reyes' criminal history reflected the very type and degree of recidivism the Supreme Court said Three Strikes laws were properly intended to address. Pregerson (author), Fisher, and Tallman (dissenting), Circuit Judges. G. Fusilier of Carlsbad, CA, for the petitioner; DAG D. Delgado-Rucci of San Diego, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 58) RESTITUTION: USA v. Gunning, 04-30104 (9th Cir. Mar. 31, 2005). Gunning appealed a judgment entered against him pursuant to his plea of guilty to wire fraud. He maintained that the scheduled for payment of restitution while he was in prison was improperly delegated to the Bureau of Prison ("BOP") and that he was improperly denied allocation at sentencing. The USCA agreed and re-manded for further proceedings. When this case first came before the USCA in 2003, the USCA remanded so that the district court could correct the errors of the sentencing proceeding. Now, some 18 months later, the USCA reviewed the district court's attempt to correct those errors. But, it had again delegated part of its non-delegable duty to set the manner and schedule of restitution payments-this time to the BOP rather than to the probation office. In addition, the district court overlooked according Gunning his right of allocution at resentencing. Thus, the USCA remanded to the district court. Unless the issue become moot, the district court shall schedule Gunning's restitution payments for the period while he is in prison. It shall also accord him his right of allocution at sentencing. To avoid any further confusion, the USCA vacated the sentence. Goodwin, Fernandez (author), and Gould, Circuit Judges. K. Sharaga of Seattle, WA, for the appellant; AUSA R. Westinghouse of Seattle, WA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 59) HABEAS CORPUS: Hayes v. Brown, 99-99030 (9th Cir. Mar.
7, 2005). This case presented the question of whether a prosecutor's knowing presentation
of false evidence and failure to correct the record violate a criminal defendant's
due process rights. The USCA concluded that such actions violate due process,
and thus reversed the district court's denial of the petition for a writ of habeas
cor-pus. Judge Tallman, joined by Judges Kleinfeld, Gould, and Bybee, thought
that in considering all of the evidence presented to the jury in determining Hayes's
guilt, he had to disagree with the majority's conclusion that there was a reasonable
likelihood that the information the prosecutor withheld from the court could have
affected the jury's verdict. In concluding otherwise, Judge Tallman thought the
majority had misapplied the test for materiality and ignored the substantial evidence
introduced at trial otherwise impeaching a witness's credibility. Schroeder, Kleinfeld,
Thomas (author), Graber, Wardlaw, W. Fletcher, Fisher, Gould, Paez, Tallman
(dissenting in part), and Bybee, Circuit judges. D. Senior of Los Angeles,
CA, for the petitioner; DAG M. Chan of Sacramento, CA, for the respondent. (Download
the full text of this decision at www.cc9.uscourts.gov/)
61) HABEAS CORPUS / DISCOVERY: Pham v. Terhune, 03-17214 (9th Cir. Mar. 7, 2005). In 1998, a jury convicted Pham and a co-defendant of first degree murder. Pham was sentenced to 29 years to life. Now a California state prisoner, he appealed the district court's denial of his 28 USC Sec. 2254 habeas petition. The USCA found that the district court erred in using the highly deferential AEDPA standard in denying Pham's Rule 6(a) discovery request. Beezer, W. Fletcher, and Fisher, Circuit Judges. Per Curiam. C. Gardner of San Francisco, CA, for the petitioner; G. Pruden of San Francisco, CA, for the respondent-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 62) HABEAS CORPUS / EXTRADITION: Barapind v. Enomoto, 02-16944 (9th Cir. Mar. 9, 2005). At issue here was whether competent evidence existed to support the extradition court's finding of probable cause that Barapind committed multiple murders and, if so, whether the crimes charged were of a "political character" which the extradition treaty between the U.S. and India protects from extradition. This, in turn, requires the USCA to settle the standard by which the USCA determines that question. The district court denied Barapind's habeas petition challenging the certification of his extradition to India. The USCA affirmed that denial with respect to incidents designated as FIR 100 and FIR 89. But, it reversed as to incident FIR 34. Given that extradition is proper on two of the grounds specified by the extradition court, the USCA remanded for the district court to determine whether it is necessary and appropriate to revise its ruling as to incident FIR 34. Judge Rymer, joined by Judges Kleinfeld, Tallman, Rawlinson, and Callahan, concurred in the judgment in part and dissented in part. In Judge Rymer's view there was competent evidence of the criminality of Barapind with respect to each of the three incidents. Moreover, although Quinn v. Robinson, 783 F.2d 776, 809-10 (9th Cir. 1986), suggests a standard for whether an offense is "incidental to" a political uprising and thus within the exception, since the USCA is sitting en banc it is free to consider whether that standard, or some other, should govern. Judge Rymer thought Quinn's elaboration of the "incidental to" prong should be overruled and that the approach articulated in Ornelas v. Ruiz, 161 US 502, 511 (1896), should be followed instead: considering the "character of the foray, the mode of attack, the persons killed or captured, and the kind of property taken or destroyed." Applying these factors, Judge Rymer could not say that the extradition magistrate had "no choice" but to hold that the crimes Barapind committed against civilian non-combatants were of a political character. She would thus affirm the district court across the board. Schroeder, Kozinski, Rymer (dissenting in part), Kleinfeld, Hawkins, Thomas, Graber, W. Fletcher, Tallman, Rawlinson, and Callahan, Circuit Judges. Per Curiam. J. Sekhon of San Francisco, CA, for the appellant; AUSA S. Boone of Fresno, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 63) HABEAS CORPUS: Riggs v. Fairman, 02-55185 (9th Cir. Mar. 7, 2005). California state prisoner Riggs filed a habeas petition seeking to set aside his conviction on the basis that he was denied effective assistance of counsel during plea bargaining. The district court ruled that Riggs' attorney's failure to inform him that California's "three strikes" law might apply to his case constituted ineffective assistance. It vacated Riggs' conviction and sentence and ordered the parties to return to the pre-error negotiating stage. The court declined Riggs' request that it order the government to resurrect its original plea offer. Because this remedy was within the district court's discretionary bounds, the USCA affirmed. It was not disputed that the plea offer Riggs was a result of a misunderstanding of the three strikes law by all involved. Absent the fundamental misunderstanding that pervaded the plea negotiations, Riggs never would have been offered a five-year plea sentence. Under such circumstances, the USCA said it could not conclude that the remedy of specific performance of the government's plea offer was the only appropriate remedy. Judge Bea dissented in part. He found it well-established law that in fashioning a remedy for ineffective assistance, the USCA must put Riggs back in the position he would have been in had he received effective assistance. Trott, Rawlinson (author), and Bea (dissenting), Circuit Judges. D. Falk of Palo Alto, CA, for the appellant; DAG K. Shaffer of San Diego, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/) 64) HABEAS CORPUS / JURY TAMPERING: Turney v. Pugh, 03-35165 (9th Cir. Mar. 15, 2005). Turney appealed the denial of his habeas petition, arguing that the Alaska jury tampering statute under which he was convicted violates the First Amendment. As inter-preted by the Alaska Supreme Court, the statute prohibits knowingly communicating with a juror, directly or indirectly, with the intent to influence the outcome of a specific case, unless such communication is permitted by the rules of the proceeding. The USCA found that the Alaska Supreme Court had interpreted the statute narrowly enough so that it did not reach a substantial amount of protected speech. It thus affirmed the denial of Turney's petition. The fact that judicial proceedings can be sensitive and controversial does not diminish the importance of vigorous national debate on matters concerning the administration of justice. But, the USCA noted, courts will be unable to carry out their vital functions if jurors are not insulated from influences that could undermine their ability to decide the cases before them fairly and impartially. B. Fletcher (author) and Gould, Circuit Judges, and King, District Judge. AFPD M. Geddes of Anchorage, AK, for the petitioner; AAG D. Kossler of Anchorage, AK, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 65) HABEAS CORPUS: Stuard v. Stewart, 03-15300 (9th Cir. Mar. 22, 2005). The habeas petitioner here claims he was unconstitu-tionally forced to choose between two constitutional entitlements, his right to a speedy trial and his right to effective assistance of counsel. The USCA disagreed. A compulsion to choose between two advantages, where the compulsion does not force the defendant to forfeit any constitutional entitlements, is not contrary to or an unreasonable application of Simmons v. USA, 390 US 377 (1968), and USA v. Jackson, 390 US 570 (1968). Oakes, Kleinfeld (author), and Callahan, Circuit Judges. D. MacPherson of Phoenix, AZ, for the ap-pellant; AAG V. Rabago of Tucson, AZ, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/) 66) HABEAS CORPUS: Insyxiengmay v. Morgan, 02-36017 (9th Cir. Mar. 30, 2005). The petitioner was convicted of two counts of murder in the first degree and two counts of assault in the first degree for an attack on four high school teens who egged his gang's hangout. Following his conviction and a series of state court appeals, he unsuccessfully petitioned the district court for a writ of habeas corpus. On appeal, he argued that the district court erred in dismissing three of his six claims on the ground that they were procedurally barred and also erred in denying his Sixth Amendment claim that he and his counsel were improperly excluded from an in camera hearing regarding a confidential informant. The three claims that the district court dismissed on procedural grounds are that the trial court failed to give a manslaughter instruction, that a non-testifying co-defendant's statement inculpating the petitioner should not have been received in evidence, and that the prosecution's key witness's adverse polygraph examination results should have been admitted. Because the petitioner timely presented the claims to the state Supreme Court as federal issues, and because the Sixth Amendment allegations necessitated an evidentiary hearing in federal court, the USCA reversed the district court's dismissal of the petition and remanded for consideration of the claims. D.W. Nelson, Reinhardt (author), and Thomas, Circuit Judges. N. Tenney of Seattle, WA, for the petitioner; C. Gregoire of Olympia, WA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/) 67) PRISONER LITIGATION: Ngo v. Woodford, 03-16042 (9th Cir. Mar. 24, 2005). At issue here was whether the district court properly dismissed a prisoner's complaint for failing to exhaust all available administrative remedies as required by the Prison Litigation Re-form Act of 1995 ("PLRA"), even though the prisoner's administrative appeal was deemed time-barred and no further level of appeal remained in the state prison's internal appeals process. The USCA reversed. Ngo exhausted all administrative remedies available to him as required by the PLRA when he completed all avenues of available administrative review. The PLRA's exhaustion requirement did not bar subsequent judicial consideration of an exhausted administrative appeal denied on state procedural grounds. Pregerson (author) and Kozinski, Circuit Judges, and Rhoades, District Judge. M Feder of New York, NY, for the plaintiff; DAG J. Perkell of San Francisco, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/) MEMORANDA
1)
RICO / TRADE SECRETS: Steinberg, Moorad & Dunn, Inc. v. Dunn, 03-55953
(9th Cir. Mar. 30, 2005) (unpublished). Kozinski and Trott, Circuit Judges,
and Sand, District Judge. 2)
ATTORNEYS' FEES: Metcalf v. Household International, Inc., 03-16554
(9th Cir. Mar. 30, 2005) (unpublished). Hawkins, McKeown, and Clifton,
Circuit Judges. 3) BANKRUPTCY: In re Seagulf
Group, LLC, 03-35754 (9th Cir. Mar. 22, 2005) (unpublished). Fernandez,
Tashima, and Gould, Circuit Judges. 4) IMMIGRATION / CREDIBILITY / ASYLUM: Mapalad
v. Gonzales, 02-74514 (9th Cir. Mar. 28, 2005). B. Fletcher, Noonan,
and Thomas, Circuit Judges. |
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