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| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
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1) TRADEMARKS:
Electro Source, LLC v. Brandess-Kalt-Aetna Group, 04-55844 (9th Cir.
Aug. 14, 2006). At issue here was whether a summary judgment determination of
abandonment was appropriate where the record supported an inference that the trademark
holder-a small, troubled business-continued to transport and sell trademarked
goods in the ordinary course of trade as part of a good faith effort to deplete
inventory? The USCA held that the answer is "no," as trademark law requires
both discontinuance of all bona fide trademark use in the ordinary course of trade
and an intent not to resume such use. Legitimate commercial transport or sales
of trademarked goods, even for a failing business, are sufficient to defeat a
claim of abandonment. Thomas, McKeown (author), and Berzon, Circuit Judges.
L. Russ of Los Angeles, CA, for the appellant; G. Wood of Los Angeles, CA, for
the appellees.(Download
the full text of this decision at www.ce9.uscourts.gov/)
2) TRADEMARKS: Au-Tomotive Gold, Inc.
v. Volkswagen of America, Inc., 04-16174 (9th Cir. Aug. 11, 2006).
This case concerned the trademarks of two well-known automobile manufacturers-Volkswagen
and Audi. At issue was whether the Lanham Act prevents a maker of automobile accessories
from selling, without a license or other authorization, products bearing exact
replicas of the trademarks of these two car companies. Au-Tomotive Gold argued
that, as used on its key chains and license plate covers, the logos and marks
of Volkswagen and Audi are aesthetic functional elements of the product-that is,
they are "the actual benefit that the consumer wishes to purchase"-and
are thus unprotected by the trademark laws. The USCA found that Au-Tomotive Gold's
incorporation of the marks in its key chains and license plates appeared to be
nothing more than naked appropriation of the marks. The doctrine of aesthetic
functionality did not provide a defense against actions to enforce the trademarks
against such poaching. The USCA thus reversed the district court's grant of summary
judgment in favor of Au-Tomotive Gold on the basis of aesthetic functionality.
It also reversed the de-nial of Volkswagen and Audi's motion for summary judgment
with respect to infringement and dilution and remanded for further pro-ceedings.
Alarcon and McKeown (author), Circuit Judges, and Holland, District Judge.
G. Phillips of Salt Lake City, UT, for the appel-lant; H. Kudon of Potomac, Maryland,
for the appellee. (Download
the full text of this decision at www.ce9.uscourts.gov/)
4) SECURITIES LAW: Dreiling v. American
Express, 04-35715 (9th Cir. Aug. 14, 2006). Section 16(b) of the
Exchange Act bars corporate insiders from profiting on short-swing trades, the
purchase and sale of stock within a six-month period. Rule 16b-3(d) exempts an
insider from Sec. 16(b) liability when the transaction takes place with the issuer
and is specifically approved by the issuer's board of directors or majority of
shareholders. Dreiling, a shareholder in InfoSpace, alleged that American Express
Travel Related Services ("TRS") violated Sec. 16(b) by engaging in a
short-swing trade in InfoSpace stock. He claimed that TRS was an insider, specifically
a "director by deputization," because a TRS executive officer sat on
InfoSpace's board during the trade. The district court dismissed Dreiling's complaint,
ruling that Rule 16b-3(d) exempted TRS from liability because the InfoSpace board
approved the stock grant to insider TRS. On appeal, Dreiling argued that the SEC
lacked authority to promulgate Rule 16b-3(d) or, in the alternative, that Rule
16b-3(d) did not apply to TRS because the InfoSpace board did not know that TRS
was a "director by deputization." The SEC filed an amicus brief, siding
with TRS as to the validity of Rule 16b-3(d), but agreeing with Dreiling that
TRS would not be entitled to the protection of the rule if it were an undisclosed
director by deputization. The USCA agreed that the SEC had authority to adopt
Rule 16b-3(d), and that the district court owed deference to the SEC's interpretation
of the rule to cover directors by deputization. Whether the TRS executive was
a director by deputization and the InfoSpace board knew of that relationship were
questions of fact that defeated 5) TAXATION: Kenney v. USA, 04-16748 (9th Cir. Aug. 17, 2006). This case concerns federal tax liens on proceeds of the sale of a house owned by Kenney and his former wife, Donna, as joint tenants. The liens extend only to Donna's interests in the proceeds. Over the years, Kenney made the payments on notes secured by deeds of trust, both his share and Donna's. He argued that pursuant to oral agreements with Donna, his payment of her share would diminish her interest in the house, and by the time the liens attached she had no remaining interest in the house or the proceeds of its sale. The government and Kenney disagreed over how he should receive equitable subrogation for his payments. At issue was the amount of the proceeds to which the government was entitled and whether Kenney should receive interest on his equitable subrogation. The USCA upheld summary judgment for the government on Kenney's diminishing interest theory, and upheld the calculation of Kenney's equitable subrogation, but adjusted the amount to reflect the appropriate amount of interest on funds held in escrow. It affirmed the denial of interest on Kenney's equitable subrogation award, but reversed the award of litigation costs to Kenney. Hug (author) and O'Scannlain, Circuit Judges, and Benitez, District Judge. B. Sanchez of San Francisco, CA, for the appellant; K. Greene of Washington, DC, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 6) TAXATION: Janis v. CIR, (9th Cir. Aug. 21, 2006). The petitioners, Conrad Janis and his wife, appealed the Tax Court's ruling which found them liable for deficiencies in their joint income tax returns from 1995 through 1997. The deficiencies resulted from Conrad taking inconsistent positions as to the value of an art collection included in his father's estate. On the premise that flooding the market with a large collection of works from significant artists would depress the value of the works, Conrad and his brother Carroll, as co-executors and the sole beneficiaries of the estate, calculated a discounted value for the collection and ultimately agreed with the IRS on a discounted valuation. Some years later, in valuing the collection, the petitioners claimed a higher, undiscounted market value as the tax basis in their joint tax returns. The Tax Court held that the petitioners were bound by the duty of consistency and could not report on their individual tax returns a value different than that stipulated to for the estate tax returns. The USCA affirmed. The Tax Court did not clearly err in determining the valuation, and, having established that value, it then invoked the duty of consistency and held that the petitioners' were bound to use the collection's discounted value as their basis for purposes of calculating their art gallery's cost of goods sold for 1990 through 1997. Janis v. Comm'r, 87 TCM (CCH) 1322, 1329 (2004). This led to a finding of deficiencies for three years. The USCA noted that it is well established in the Circuit that the duty of consistency serves to prevent inequitable shifting of positions by taxpayers. Reinhardt, Trott, and McKeown (author), Circuit Judges. S. Mather of Beverly Hills, CA, for the petitioners; AAG E. O'Connor of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 7) ENVIRONMENTAL LAW: Earth Island Institute v. Ruthenbeck, (9th Cir. Aug. 10, 2006). The district court enjoined U.S. Forest Service regulations governing review of decisions implementing forest plans, find them manifestly contrary to the governing statute. The Service promulgated the challenged regulations pursuant to the Forest Service Decisionmaking and Appeals Reform Act. The government appealed the injunction. In a cross-appeal, the plaintiffs challenged four regulations the district court held were valid. The USCA agreed with the district court that the plaintiffs had established standing. But as only one of the regulations, 36 CFR Sec. 215.12(f), had been applied to a proposed project, it found only it ripe for review. The USCA affirmed the district court's judgment that Sec. 215.12(f) conflicts with the Act and affirmed the nationwide injunction barring its application. It then remanded the judgment and injunction with respect to the remaining regulations with instructions to vacate for lack of a controversy ripe for review. Schroeder (author) and Graber, Circuit Judges, and Duffy, District Judge. K. Hazard of Washington, DC, for the appellants; M. Kenna of Durango, CO, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 8) PESTICIDES: Chemical Producers v. Helliker, (9th Cir. Aug. 31, 2006). At issue here was whether amendments to California's pesticide registration laws, which were challenged and upheld below, render this appeal moot. The USCA held that they do. Because the amendments cannot be attributed to the voluntary conduct of the party seeking relief from the judgment, the USCA vacated the district court's judgment. Hawkins and Paez, Circuit Judges, and Wake (author), District Judge. D. Bamberger of Washington, DC, for the appellant; S. Landfair of Los Angeles, CA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 9) ENVIRONMENTAL LAW: Great Basin Mine Watch v. Hankins, 04-16125 (9th Cir. Aug. 1, 2006). Newmont Mining submitted a proposed expansion of its existing gold mining and ore processing facilities to the Bureau of Land Management ("BLM"). The expansion was to be located at Newmont's South Operations Area Project and called the "Amended South Project." Newmont also submitted a proposal for its Leeville underground gold mine project. Great Basin Mine Watch and the Mineral Policy Center (collectively "Great Basin") appealed the district court's summary judgment on their claims against the BLM. They alleged that the BLM's approval of two gold mining permits for Newmont violated the National Environmental Policy Act ("NEPA") and the APA. The USCA held that the district court did not abuse its discretion in refusing to admit extra-record evidence. The plaintiffs failed to show that the criteria used by the Nevada Division of Environmental Protection ("NDEP") had any relevance to a NEPA analysis. The NDEP Notice did not assist in understanding the subject matter or the BLM decision. It was not relied on by the BLM, was not necessary to explain technical terms, and did not show bad faith on the part of the BLM. Judge Thomas agreed that the BLM's cumulative effects analysis was insufficient under NEPA, and its consequent reversal of the district court's grant of summary judgment as to that issue. However, he dissented from the conclusion that Leeville and the Amended South Project were not connected actions requiring a comprehensive EIS. Wallace (author), Hawkins, and Thomas (dissenting in part), Circuit Judges. R. Flynn of Boulder, CO, for the appellants; T. Sansonetti of Washington, DC, for the appellees; S. Hardt of Denver, CO, for the intervenor. (Download the full text of this decision at www.ce9.uscourts.gov/) 10) ENVIRONMENTAL LAW: Northern California River Watch v. Healdsburg, (9th Cir. Aug. 10, 2006). The City of Healdsburg appealed the district court's judgment for the Northern California River Watch ("NCRW") in this Clean Water Act ("CWA") action. The plaintiff alleged that the City, without obtaining a National Pollutant Discharge Elimination System permit, violated the CWA by discharging sewage into the "Basalt Pond," a rock quarry pit that fills with water from a surrounding aquifer located next to the Russian River. At issue was whether the Pond is subject to the CWA because its contains wetlands adjacent to a navigable river. The district court held that the discharges into the Pond were discharges into the Russian River, a navigable water protected by the CWA. In light of Rapanos v. USA, 126 S.Ct. 2208 (2006), the USCA held that the Pond and its wetlands possess a "significant nexus" to navigable waters because they seep directly into the navigable Russian River. It affirmed the district court's ruling that the Pond is subject to the CWA, and its ruling that neither the CWA's waste treatment system nor excavation operation exceptions applied to the discharges. Schroeder (author), Farris, and Callahan, Circuit Judges. P. McGaw of Walnut Creek, CA, for the appellant; C. Tebbutt of Eugene, OR, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 11) ENVIRONMENTAL LAW: Hale v. Norton, 03-36032 (9th Cir. Aug. 25, 2006). In 2002, the Hales purchased land completely surrounded by the Wrangle-St. Elias National Park and Preserve. They gained access to the property over what once was the McCarthy-Green Butte Road (the "MGB road"). In 1938, the Alaska Road Commission listed the MGB road as "abandoned." All of its bridges had washed away, and the effects of vegetation and erosion had reduced it to little more than a trail. The only house on the Hales' property burned in 2003. During its rebuilding, the Hales used a bulldozer to bring in supplies over the MGB road without first seeking authorization from the National Park Service ("NPS"). The NPS posted a public notice that no motorized vehicles except snow machines could use the MGB road. The Hales contacted the NPS superintendent to request a permanent permit to traverse the MGB road with a bulldozer and a trailer. He offered to assist the Hales in preparing the necessary applications for a right-of-way permit. But, they submitted an "emergency" application for a temporary permit, asserting that they needed to transfer supplies before "freezing up." The NPS requested more information about the nature of the proposed bulldozer use. The Hales responded in writing, but did not provide all of the requested information. The NPS informed the Hales that an environmental assessment ("EA") would be required before it could grant a permit. It explained that it did not regard the situation as falling within the emergency exception to the requirements of the National Environmental Policy Act ("NEPA"). In a series of subsequent contacts, the NPS offered to prepare an EA, waive the expense of conducting the EA, and make a decision in about nine weeks. However, the Hales still did not provide the information the NPS requested. Instead, they sought an injunction requiring the NPS to provide what they deemed adequate and feasible access to their property, and a declaratory judgment that the NPS was violating their right-of-way over the MGB road by requiring a permit. They also sought a declaratory judgment that issuing a permit for temporary use of the MGB road did not constitute a major federal action subject to the requirements of the NEPA. Finally, they moved for a TRO. The district court refused to issue a TRO and dismissed the case for lack of subject matter jurisdiction, holding that even if the Hales had a valid right-of-way over the MGB road, their use of it was subject to reasonable regulation by the NPS. The Hales had to apply for a permit regardless of any right-of-way they might possess. Since the NPS had not acted on the Hales' permit application, the district court concluded that it lacked jurisdiction as there was no final agency action to review. The USCA affirmed. As to the Hales' challenge to the district court's incorporation of NEPA into the permitting proc-ess of the Alaska National Interests Lands Conservation Act ("ANILCA"), which provides limited access rights for inholders such as the Hales, the USCA found that, contrary to the Hales' contention, conducting a NEPA analysis is consistent with the "adequate and feasible access" right of ANILCA. Goodwin, Brunetti, and W. Fletcher (author), Circuit Judges. R. Brooks of Sacramento, CA, for the plaintiffs-appellant; M. Sanders of Washington, DC, for the defendant-appellee; R. Randal of Anchorage, AK, for the intervenors-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 12) ENVIRONMENTAL LAW: Northwest Environmental Advocates v. National Marine Fisheries Service, 05-35806 (9th Cir. Aug. 23, 2006). Northwest Environmental Advocates ("NWEA") challenged the adequacy of a Final Supplemental Integrated Feasibility Report and EIS ("FSIFREIS") prepared by the Army Corps of Engineers in connection with a project to deepen the Columbia River navigation channel and to proposed new sites for the disposal of dredged materials. NWEA argued that the Corps violated the National Environmental Policy Act ("NEPA") as its FSIFREIS failed to take a "hard look" at the channel deepening project's impacts. The district court disagreed, holding that the Corps had taken the requisite hard look. Based on the Corps' "extensive examination" of the project's cumulative, direct, and economic impacts, the USCA affirmed. Dissenting, Judge Fletcher thought the Corps had not met its obligation to take a "hard look" at the direct, indirect, and cumulative impacts of deepening the river, and that its economic analysis was obviously flawed. She added that the Corps acknowledge profound consequences from erosion if large quantities of sand are removed from the littoral system. It also acknowledged that it had designed a deep-water disposal site to hold huge quantities of dredge spoils, but had no mitigation plan should that site be used. Nor did the Corps analyze when and how much erosion would likely to occur-only that it would be profound and devastating. Its analysis of the increased toxicity that might result from dredging was also inadequate, Judge Fletcher thought, as was its analysis of possible changes in salinity. B. Fletcher (dissenting), Silverman (author), and Gould, Circuit Judges. C. Cassady of Seattle, WA, for the appellant; L. Ransom of Seattle, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 13) COMMUNICATIONS LAW: Freeman v. DirectTV, 04-56500 (9th Cir. Aug. 8, 2006). At issue here was whether the Electronic Communications Privacy Act, 18 USC Secs. 2702 and 2707, permit a private cause of action against those who aid and abet, or conspire with, electronic communications service providers in unlawfully disseminating the contents of electronic communications. The sections identify unambiguously who is subject to liability. Moreover, the legislative history and case law is in accord with the clear directive of these sections. The USCA held that the unambiguous language limits liability to providers of electronic communication services that knowingly divulge the contents of those communications while being stored by that provider. It rejected the plaintiffs efforts to read into these sections claims for conspiracy or aiding and abetting. The USCA affirmed the district court's order dismissing the complaint. Reinhardt, Trott (author), and McKeown, Circuit Judges. J. Wilens of Yorba Linda, CA, for the appellants; M. Williams of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 14) COMMUNICATIONS LAW: New Edge Network v. FCC, 04-73800 (9th Cir. Aug. 29, 2006). These petitions arose from a Federal Communications Commission's report and order changing its interpretation of a provision of the Telecommunications Act of 1996. In 2004, the FCC adopted a new rule replacing its "pick-and-choose" interpretation of 47 USC Sec. 252(i) with an "all-or-nothing" interpretation. Petitioners in various circuits challenged the new rule, and the Judicial Panel on Multidistrict Litigation consolidated the petitions in the Ninth Circuit. The USCA found that Sec. 252(i) is ambiguous and that the FCC's "all-or-nothing" interpretation is reasonable. It also found that the FCC did not abuse its discretion by adopting the new rule. The USCA thus denied the petitions for review. Rymer, T.G. Nelson (author), and W. Fletcher, Circuit Judges. R. Blau and S. Joyce of Washington, DC, for the petitioners; J. Carr of Washington, DC, for the respondents; C. Stretch of Washington, DC, for the intervenors. (Download the full text of this decision at www.ce9.uscourts.gov/) 15) DEBT COLLECTION: Clark v. Capital Credit, 04-35563 (9th Cir. Aug. 24, 2006). In an action under the federal Fair Debt Collection Practices Act ("FDCPA") and the Oregon Unfair Debt Collection Practices Act, Linda and Jerry Clark claims several errors, but the USCA addressed only two on appeal: 1) the district court's order granting summary judgment to Jeffrey Hasson and granting partial summary judgment to Capital Credit & Collection Services and Janine Brumley with respect to the "cease communication" directive and debt verification; and 2) its failure to rule on a pending discovery motion before deciding the summary judgment motions. The USCA affirmed in part, reversed in part, and remanded. It adopted a construction of the FDCPA that recognizes there is room within the FDCPA for ethical debt collectors to make occasional unavoidable errors, and avoids imposing unreasonable restrictions on debt collection. It also noted that the broad remedial purpose of the FDCPA is concerned primarily with the likely effect of various collection practices on unsophisticated debtors. Judge O'Scannlain dissented in part. He agreed generally with the majority's desire "to reinforce that the broad remedial purpose of the [FDCPA] is concerned primarily with the likely effect of various collection practices on the minds of unsophisticated debtor." However, he could not agree that Mrs. Clark's waiver of FDCPA Sec. 1692c(c)'s protections did not extend to Janie Brumley or Capital Credit & Collection Service. He thought the trial court properly held that Brumley did not violate Sec. 1692(c)(c) by returning Mrs. Clark's call. Browning, D.W. Nelson (author), and O'Scannlain (dissenting in part), Circuit Judges. D. Gerlt of Portland, OR, for the appellant; W. Goode of Portland, OR, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 16) ERISA: Abatie v. Alta Health & Life Ins. Co., 03-55601 (9th Cir. Aug. 15, 2006). After Joseph Abatie died, his widow, Karla, sought life insurance benefits from Alta under a benefit plan regulated by ERISA. When Alta, which was both the plan's administrator and funding source, denied benefits, Karla sued. The district court upheld Alta's decision. The USCA took the case en banc to reconsider its approach to ERISA cases in which a plan administrator denied benefits, the wording of the plan confers discretion on the administrator, and the administrator has a conflict of interest. It held that Atwood v. Newmont Gold Company, 45 F.3d 1317 (9th Cir. 1995), misinterpreted Firestone Tire & Rubber Company. v. Bruch, 489 US 101 (1989). It established a more comprehensive approach to ERISA cases in which a conflict of interest exists, holding that abuse of discretion review, tempered by skepticism commensurate with the plan administrator's conflict of interest, is the proper standard. Judge Kleinfeld concurred in the judgment, but not the reasoning. He thought the plan did not confer discretion; the district court should have reviewed whether the premium waiver for disability applied to Joseph de novo. That was the default standard of review under ERISA. Judge Gould agreed that that Atwood should be overruled and that review under Firestone should be for abuse of discretion, taking into account any conflict of interests. However, rather than adopt yet another approach, he would follow circuits that have adopted a "sliding scale" assessment: The degree of deference given an administrator's decision should be reduced when the administrator has a conflict of interest, and the greater the conflict, the less the deference to be given. Schroeder, Kozinski, O'Scannlain, Rymer, Kleinfeld (concurring), Silverman, Graber (author), McKeown, Wardlaw, W. Fletcher, Gould (concurring), Paez, Rawlinson, Bybee, and Callahan, Circuit Judges. D. Feinberg of Oakland, CA, for the appellant; R. Lindahl of Portland, OR, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 17) ERISA / ATTORNEYS' FEES: Trustees of the Constr. Ind. v. Summit Landscape Companies, 04-16380 (9th Cir. Aug. 30, 2006). The plaintiffs prevailed in an action to collect delinquent benefit contributions owed to trusts established under ERISA. They then sought attorneys fees and costs. The district court granted some of the requested fees, but refused recovery for work performed by non-attorneys such as law clerks and paralegals. It also refused to allow recovery for expenses incurred in the course of the litigation. The USCA reversed and remanded, finding that if fees for work performed by non-attorneys are customarily billed separately in the relevant market, those fees are recoverable as "reasonable attorney's fees" under 29 USC Sec. 1132(g)(2)(D). Similarly, if the expenses specified by the plaintiffs are customarily billed separately, they are recoverable as "reasonable attorney's fees" under the same section. Rymer, W. Fletcher (author), and Clifton, Circuit Judges. A. Segal of Las Vegas, NV, for the appellants; G. Smith of Las Vegas, NV, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 18) SEXUAL HARASSMENT: MacDonald v. Grace Church Seattle, 04-35984 (9th Cir. Aug. 11, 2006). MacDonald appealed the district court's dismissal of her Title VII claims against some nonprofit religious organizations for sexual harassment and retaliation because she failed to file her charges with the EEOC within 180 days of the last alleged discriminatory act. She argued that the longer 300-day filing deadline (with which she complied) applied because Washington's Human Rights Commission had subject matter jurisdiction over her charges. She maintained that even though Washington's Law Against Discrimination exempts nonprofit religious organizations from the definition of "employer," the Commission had subject matter jurisdiction because it is designated as a Fair Employment Practice agency by the EEOC. She also maintained that the Washington Commission had subject matter jurisdiction because the Washington Law Against Discrimination prohibits sex discrimination and retaliation by parties other than "employers." Finally, she argued that the exemption of nonprofit religious organizations from employment discrimination liability under Washington's Law Against Discrimination violates the Establishment and Equal Protection Clauses, and that because the nonprofit religious organization exemption is unconstitutional, the defendants were not exempt from her charges, the Commission had subject matter jurisdiction to consider her charges, and the 300-day filed deadline applies. The USCA declined to consider this argument as it was raised for the first time on appeal. It affirmed the dismissal of MacDonald's Title VII claims. The Commission did not have subject matter jurisdiction over MacDonald's charges and the 180-day deadline applied. MacDonald did not file her charges with the EEOC within the 180-day time limit, and thus her Title VII claims were properly dismissed. Thompson (author), Tashima, and Callahan, Circuit Judges. K. Barnard of Seattle, WA, for the appellant; S. O'Ban and L. Johnston of Seattle, WA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 19) EMPLOYMENT DISCRIMINATION: Bass v. County of Butte, 04-16705 (9th Cir. Aug. 15, 2006). Bass, Parks, and Muldown asserted employment discrimination claims against the County of Butte and others based on the defendants' alleged failure to accommodate their work-related injuries. They raised their employment claims under California's Unruh Civil Rights Act, Cal. Civ. Code Sec. 51, and the Disabled Persons Act, Cal. Civ. Code Secs. 54, 54.1, on the theory that the two state laws incorporate Title I of the Americans with Disabilities Act of 1990 ("ADA"). The USCA disagreed. The plaintiffs attempt to expand the subject matter scope of these statutes to incorporate Title I of the ADA would create an end-run around the administrative procedures of California Fair Employment and Housing Act solely for disability discrimination claimants. Nothing in the legislative history of either amendment suggests that the legislature intended to carve out such an exception by roundabout implication. Schroeder and Graber (author), Circuit Judges, and Duffy, District Judge. L. Hubbard III of Chico, CA, for the appellants; G. Einhorn of Chico, CA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 20) EMPLOYMENT LAW / AGENCY: Kashin v. Kent, 04-56703 (9th Cir. Aug. 10, 2006). Kent, a senior foreign service officer, sought to avoid exposure to personal liability for an automobile accident in Russia while he was driving home from work in his personal vehicle. He sought certification from the Department of Justice that he was acting within the scope of his employment at the time of the accident, which, if granted, would substitute the United States for him as the defendant in a lawsuit that resulted from the accident The DoJ refused to grant the certification. Kent also petitioned the district court for certification. Applying the Restatement (Second) of Agency, it too concluded that Kent was not acting within the scope of employment and denied his petition. The USCA reversed. Dis-trict of Columbia law governed the question of whether Kent was acting within the scope of employment. Applying that law, the USCA found that Kent was acting within the scope of employment when he was involved in the accident. It noted that this case was far from the standard one involving an employee commuting in a company vehicle. Rather, it involves a Consul General whom the State Department assigned to work in Eastern Russia and who was on duty at all times. Although Kent could have utilized his government-provided private vehicle and driver, he chose to act in the State Department's best interests by shipping his personal vehicle to Russia to reduce the overtime expenses incurred by his driver. Reinhardt, Trott (author), and Wardlaw, Circuit Judges. J. Hannon of Washington, DC, for the appellant; D. Martin of Washington, DC, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 21) EMPLOYMENT LAW: Wallace v. San Diego, 03-56552 (9th Cir. Aug. 25, 2006). Wallace appealed a district court order granting San Diego's motion for judgment as a matter of law and conditionally granting a new trial. The district court issued its order after a jury found that the City had retaliated against him in violation of the Uniformed Services Employment and Reemployment Rights Act ("USERRA), and awarded him $256,800 in damages. Wallace also appealed the district court's finding that the jury verdict was against the great weight of the evidence. He also sought reversal of the jury's finding that the City's violations of USERRA were not willful, precluding an assessment of liquidated damages. The USCA reversed. It held that the jury's findings that the City constructively dis-charged Wallace and took other retaliatory actions against him in violation of USERRA were supported by substantial evidence and not contrary to the great weight of the evidence. Nevertheless, it affirmed the jury's determination that liquidated damages should not have been awarded. Wallace had failed to preserve that issue for appeal. Judge Bybee dissented. In early October, 2000, while Wallace was on duty with the San Diego Police Department ("SDPD"), a woman with an apparent mental problem threatened to file a racial dis-crimination complaint again him. Without waiting to see if she filed the complaint and without consulting his superiors, Wallace quit and filed this action, complaining of constructively discharged. Judge Bybee did not think the law permits Wallace to claim constructive discharge more than three months after the last incident of which he could reasonably complain and at a time when the SDPD had made every effort to accommodate him. He also did not think Wallace could bring a constructive discharge claim when he quit on his own terms and the precipitating event was the possibility that someone outside the SDPD might file a claim against him. He did not think there was such a thing as a claim for "anticipatory constructive discharge." Browning (author), Fisher, and Bybee (dissenting), Circuit Judges. C. Chapman of Coronado, CA, for the appellant; M. Stiffler of San Diego, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 22) LABOR LAW: AMERCO v. NLRB, 04-16389 (9th Cir. Aug. 10, 2006). At issue here was whether a district court had jurisdiction to enjoin an ongoing unfair labor practices hearing where a party asserts that it has not been accorded all the process due. Finding Myers v. Bethlehem Shipbuilding Corp., 303 US 41 (1938), controlling, the USCA affirmed the district court's dismissal of appellants' motion for a preliminary injunction based on lack of subject matter jurisdiction. Under Myers and the rulings of sister circuits, the USCA held that the petition for review process detailed in 29 USC Sec. 160(f), which authorizes appellate court review of final decisions by the NLRB, is the exclusive mechanism for federal court review of decision made in unfair labor practice hearings. Rymer and Wardlaw (author), Circuit Judges, and Alsup, District Judge. S. Claus of Phoenix, AZ, for the appellants; D. Goldstein of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 23) INSURANCE LAW: Unified Western Grocers v. Twin City Fire Ins. Co., 05-15986 (9th Cir. Aug. 14, 2006). At issue here was whether three related corporate entities and six of their officers and/or directors, were entitled to insurance coverage for an underlying litigation brought by the bankruptcy trustee of a former subsidiary of the corporate entities. The district court granted summary judgment to the insurance company as the trustee's complaint alleged only willful acts and sought only restitutionary relief uninsurable under California law. Coverage was properly denied under Sec. 533 of the California Insurance Code, which precludes indemnification or reimbursement for claims resulting from willful acts. The USCA also held that a public policy exclusion under California law pre-cluded indemnification because the claims only sought restitutionary relief or disgorgement of ill-gotten gains. Finally, the district court held that a contractual exclusion in the policy barred reimbursement for claims asserted against plaintiff Bane, as he was sued by a trustee of the outside entity where he was acting as an employee. The USCA held that genuine issues of material fact remained and remanded for further development of the facts. It also found that the allegations of negligent conduct were not inseparably intertwined with the allegations of willful conduct. Because the breach of fiduciary duty alleged in the complaint might be satisfied by proof of negligent conduct without any evidence of a willful scheme to defraud, the district court erred in finding no genuine issue as to whether there was a covered claim not inseparable from allegations of willful conduct. Kozinski and Gould (author), Circuit Judges, and Martinez, District Judge. J. Steiner of Honolulu, HI, for the appellants; K. West of San Francisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 24) ARBITRATION: Reddam v. KPMG LLP, 05-56664 (9th Cir. Aug. 10, 2006). KPMG and Sidley Austin LLP appealed the district court's remand of this case, which had been removed from the Superior Court for Orange County, California pursuant to 9 USC Sec. 205 (removal of actions relating to arbitration agreements under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards). They argued that the district court erred when it remanded after it determined that an arbitration agreement had become un-enforceable because the arbitrator, the National Association of Securities Dealers ("NASD"), declined jurisdiction over the parties. The USCA reversed, finding that the evidence did not support a determination that the parties agreed to resile from arbitration if the implicitly named arbitrator, NASD, did not consent to act. Fernandez (author), Rymer, and Clifton, Circuit Judges. D. Geyser of Los Angeles, CA, for the defendant-appellant; L. Lindgren of Los Angeles, CA, for the plaintiffs-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 25) DISABILITY BENEFITS: M. Cutter Co. v. Carroll, 04-73937 (9th Cir. Aug. 15, 2006). Claimant Carroll sustained a disabling injury while employed by M. Cutter Company. The employer sought review of the en banc decision of the Benefits Review Board which found it liable for 24-hour attendant care for Carroll under the Longshore and Harbor Workers' Compensation Act ("LHWCA") The USCA denied the petition. The ALJ found as an undisputed fact that the claimant was in need of 24-hour attendant care. LHWCA Sec. 7(a) addresses who pays for that care as a matter of law, not leaving any additional relevant questions of fact for decision. Section 7(a) expressly mandates that the employer furnish the required care. Goodwin, Tashima, and Graber (author), Circuit Judges. J. Dudrey of Portland, OR, for the petitioners; M. Flynn of Portland, OR, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/) 26) DISABILITY BENEFITS: Silver v. Executive Car Leasing Long-Term Disability Plan, 04-55747 (9th Cir. Aug. 7, 2006). Silver claimed he was disabled due to the deteriorating condition of his heart. As a result of this condition, he said he was entitled to benefits under an insurance policy issued by the UNUM Life Insurance Company. UNUM argued that Silver recovered from his disability and that under the terms of the policy he was thus not entitled to benefits. Following a bench trial, the district court upheld UNUM's decision to deny Silver's claim. The USCA reversed. Silver met his burden of proving his disability under the terms of the policy issued by UNUM. B. Fletcher (author), Ferguson, and Callahan, Circuit Judges. L. Mink of Los Angeles, CA, for the appellant; S. Turner of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 27) SOCIAL SECURITY: Avenetti v. Barnhart, 04-15813 (9th Cir. Aug. 8, 2006). Avenetti appealed the summary judgment for the Commissioner of the Social Security Administration. He challenged the district court's interpretation of the then-applicable Medical Listing 1.13, 20 CFR Part 404, Subpt. P, App. 1, Sec. 1.13 (1999). The USCA affirmed, finding substantial evidence that Avenetti was not disabled as of January 1, 1999. Although he had two surgical procedures on an outpatient basis after that date, there was no evidence they were disabling. Wallace (author), Hawkins, and Thomas, Circuit Judges. M. Caldwell of Phoenix, AZ, for the appellant; D. Montano of San Francisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 28) TORTS: In re Phenylpropanolamine, 04-35370 (9th Cir. Aug. 29, 2006). The appeals addressed here were from dismissals entered in a multidistrict litigation for failure to comply with case management orders entered with the agreement of all sides that they were necessary to move hundreds of cases and thousands of plaintiffs toward resolution on the merits. The district court found that many plaintiffs inexcusably failed to do what was required, and dismissed their action. The USCA could not say that the district court abused its discretion in dismissing the cases, except for two which the USCA reversed. D.W. Nelson, Rymer (author & dissenting in part), Fisher, and Leavy, Circuit Judges. M. Miller of Alexandria, VA, for the appellants; D. Hurson of Seattle, WA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 29) ALIEN TORT CLAIMS ACT: Sarei v. Rio Tinto, PLC, 02-56256 (9th Cir. Aug. 7, 2006). The plaintiffs, current or former residents of Bougainville, Papua New Guinea, alleged that they or their family members were the victims of violations of international law as a result of the Rio Tinto mining operations and the 10-year civil conflict that followed an uprising at the Rio Tinto mine. They appealed the district court's dismissal of their lawsuit seeking redress under the Alien Torts Claims Act, which provides that "the district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States." 28 USC Sec. 1350. The USCA found that most of the plaintiffs' claims could be tried in the United States. It held that the district court erred in dismissing all of the plaintiffs' claims as presenting nonjusticiable political questions, and in dismissing the plaintiffs' racial discrimination claim under the act of state doctrine. The USCA also vacated and remanded for reconsideration the dis-trict court's dismissal of the plaintiffs' U.N. Convention on the Law of the Sea ("UNCLOS") claim under the act of state doctrine, and its dismissal of racial discrimination and UNCLOS claims under the international comity doctrine. Although the defendants and amicus asserted several plausible grounds in support of an exhaustion requirement, the USCA affirmed the district court's holding that no such requirement exists. Judge Bybee dissented. He would affirm the district court's dismissal of the suit, but he would do so without prejudice to refiling it after the plaintiffs exhaust their local remedies. He would not reach any of the issues addressed by the majority because he regards them as premature, and he expressed no opinion on the majority's resolution of those issues. Fisher (author) and Bybee (dissenting), Circuit Judges, and Mahan, District Judge. S. Berman of Seattle, WA, for the appellants; J. Brosnahan of San Francisco, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 30) AVIATION LAW / DEEP VEIN THROMBOSIS: Caman v. Continental Airlines, 03-56810 (9th Cir. Aug. 2, 2006). The parties agree, and the USCA concurred, that this action was governed exclusively by the Warsaw Convention. The scope of review was limited to whether Caman could establish liability against Continental Airlines under the Convention. Affirming, the USCA held that the district court properly granted summary judgment in favor of Continental on the grounds that Continental's failure to warn Caman of the possibility of developing Deep Vein Thrombosis during the course of an international flight did not constitute an "accident" under the Convention. He thus could not obtain relief under the Convention. B. Fletcher and Callahan, Circuit Judges, and England (author), District Judge. C. Robbins of Los Angeles, CA, for the appellant; W. Boyce of Santa Ana, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 31) LAND USE: Guru Nanak Sikh Society of Yuba City v. County of Sutter, 03-17343 (9th Cir. Aug. 1, 2006). At issue here was whether a local government's denial of a religious group's application for a conditional use permit to construct a temple on land zoned "agricultural" constituted a "substantial burden" under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), and if it is found to be a substantial burden, whether RLUIPA is constitutional. The USCA found that the government imposed a substantial burden on the Guru Nanak Sikh Society of Yuba City religious exercise under RLUIPA because the stated reasons and history behind the denial at issue, and a previous denial of he Society's application to build a temple on a parcel of land zoned "residential," to a significantly great extent lessened the possibility of the Society constructing a temple in the future. The USCA also held that the government did not assert, much less prove, compelling interest for its action. Finally, it found that the relevant portion of RLUIPA is a permissible exercise of Congress' remedial power under Section Five of the Fourteenth Amendment. D.W. Nelson, Rawlinson, and Bea (author), Circuit Judges. J. Melching of Costa Mesa, CA, for the defendants-appellants; M. Barrette of Yuba City, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 32) FALSE CLAIMS ACT: USA v. Johnson Controls, 04-55536 (9th Cir. Aug. 9, 2006). This case required the USCA to interpret the statutory provisions relating to the "public disclosure" bar and the "original source" exception to that bar in the Federal False Claims Act, 31 USC Secs. 3729-3733, and the California False Claims Act, Cal. Gov't Code Secs. 12650-12656. The USCA held that the federal and state statutes do not require that an individual report relevant information to the government prior to the "public disclosure" at issue to qualify as an "original source." Canby, Noonan, and Berzon (author), Circuit Judges. R. Goodman of Newport Beach, CA, for the appellants; S. Washington of San Diego, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 33) ENERGY LAW: California PUC v. FERC of California, 01-71051 (9th Cir. Aug. 2, 2006). The consolidated petitions here involve orders issued by the Federal Energy Regulatory Commission ("FERC") relating to refunds for excessive electricity costs charged by energy suppliers during California's 2000 and 2001 energy crisis. The USCA held that all the transactions that occurred within the California Power Exchange Corporation ("CalPX") or the California Independent System Operator ("Cal-ISO") markets, or as a result of CalPX or Cal-ISO transactions, were the proper subject of the refund proceedings instituted by FERC. The USCA denied the petitions for review which sought to expand FERC's refund proceedings into bilateral markets beyond the CalPX and Cal-ISO markets. The USCA preserved the scope of the existing FERC refund proceedings, but expanded the refund proceedings to include: 1) tariff violations that occurred prior to Oct. 2, 2000; 2) transactions in the CalPX and Cal-ISO markets that occurred outside the 24-hour period specified by FERC; and 3) energy exchange transactions in the CalPX and Cal-ISO markets. The USCA remanded for further proceedings. Thomas (author), McKeown, and Clifton, Circuit Judges. S. Berman of Seattle, WA, for the petitioner; D. Lane of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 34) ATTORNEYS' FEES: P.N., parents of T.N., a minor v. Seattle School District, No. 1, 04-36141 (9th Cir. Aug. 15, 2006). P.N. filed an action under the Individuals with Disabilities Education Act ("IDEA") to recover attorneys' fees incurred in resolving a conflict with the Seattle School District over her child's education. The conflict was resolved by a settlement agreement signed only by the parties. The district court held that P.N. was not a prevailing party, and thus, not entitled to attorneys' fees under the IDEA as the settlement lacked any judicial imprimatur. The USCA affirmed. It held that the definition of "prevailing party" set forth in Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 US 598, 600 (2001), applied to the IDEA's attorneys' fees provision, that the determination that a parent is a prevailing party requires that there be some judicial sanction of the settlement agreement, and that there is no judicial imprimatur of the settlement. Thompson, Tashima, and Callahan (author), Circuit Judges. C. Cassady of Seattle, WA, for the appellant; L. Ransom of Seattle, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 35) ATTORNEYS' FEES: Ford v. Long Beach Unified School Dist., 04-36141 (9th Cir. Aug. 23, 2006). Whitney and her father, Rodney, appealed the dismissal of their request under the Individuals with Disabilities Education Act ("IDEA") for attorneys' fees for legal services provided by Whitney's mother and Rodney's wife, Tania. At issue was whether a parent performing legal services for her own child is entitled to attorneys' fees under IDEA? The USCA held that attorney-parents are not entitled to fees for representing their children in IDEA proceedings. T.W. Nelson (author), Thomas, and Tallman, Circuit Judges. T. Whiteleather of Lakewood, CA, for the appellant; A. Newman of Cerritos, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 36) ATTORNEYS' FEES: Aguirre v. Los Angeles Unified School District, 03-57138 (9th Cir. Aug. 29, 2006). At issue here was whether the "degree of success" standard announced in Hensley v. Eckerhart, 641 US 424 (1983), applies to attorney's fees award under the Individuals with Disabilities Education Act. The USCA held that it does. It thus vacated the district court's judgment and remanded for further proceedings. Pregerson (concurring), Clifton, and Bybee (author), Circuit Judges. B. Green of Los Angeles, CA, for the appellants; P. Roberts of Huntington Beach, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 37) ELECTION LAW: Washington State Republican Party v. Washington, 05-35774 (9th Cir. Aug. 22, 2006). Political parties in Washington challenged the constitutionality of the partisan primary system, enacted as a result of the passage of Initiative 872 in the November 2004 state general election. In an earlier action, the USCA concluded that Washington's previous "blanket" primary system was unconstitutional because it was "materially indistinguishable from the California scheme held to violate the constitutional right of free association in Cal. Democratic Party v. Jones, 530 US 567 (2000). See Democratic Party of Wash. v. Reed, 343 F.3d 1198, 1203 (9th Cir. 2003). Initiative 872 retained a partisan primary, in which each candidate could self-identify with a particular party regardless of that party's willingness to be associated with that candidate. The state and Initiative 872's sponsor, the Washington State Grange, failed to identify a compelling state interest-apart from those rejected in Jones-to justify the Initiative's burden on the political parties' asso-ciational rights. Nor was the Initiative's modified blanket primary narrowly tailored. The USCA found that it could not sever the uncon-stitutional provisions because it could not reasonably be believed that Washington voters would have passed the Initiative without it unconstitutional provisions. The USCA thus held that Washington's modified blanket primary as enacted by the Initiative is unconsti-tutional and affirmed the permanent injunction against its implementation. D.W. Nelson, Rymer, and Fisher (author), Circuit Judges. R. McKenna of Olympia, WA, for Washington; T. Ahearne of Seattle, WA, for the Washington State Grange; J. White of Kirkland, WA, for the Washington Republican Party; D. McDonald of Seattle, WA, for the Washington Democratic Central Committee. (Download the full text of this decision at www.ce9.uscourts.gov/) 38) CIVIL RIGHTS / MALICIOUS PROSECUTION: Newman v. County of Orange, 04-56103 (9th Cir. Aug. 7, 2006). At issue here was what evidence a civil rights plaintiff alleging malicious prosecution must produce to overcome the presumption that a prosecutor exercises independent judgment in choosing to file charges. The USCA held that the fact that a plaintiff's version of an incident conflicts with that of the law enforcement officers involved is not enough to defeat the presumption that a prosecutor exercises independent judgment. A plaintiff who presents only such evidence cannot survive summary judgment on a malicious prosecution claim. Newman's evidence was insufficient to rebut the presumption. D.W. Nelson and O'Scannlain (author), Circuit Judges, and Jones, District Judge. J. Steering of Newport Beach, CA, for the appellant; D. Lawrence of Orange, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 39) IMMIGRATION: Maldonado-Galindo v. Gonzales, 05-72395 (9th Cir. Aug. 3, 2006). Maldonado-Galindo appealed the BIA's denial of his petition for cancellation of removal. He argued that Sec. 240A of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 has an impermissibly retroactive effect because it limits Sec. 240A Cancellation of Removal relief to those who have not previously been granted relief under Sec. 212(c) of the Immigration and Nationality Act. The USCA denied the petition, finding that Congress had unmistakably limited Sec. 240 relief to those who have not received Sec. 212(c) relief and that Sec. 240A does not have a retroactive effect. Congress evinced a clear intent that prior receipt of Sec. 212(c) relief would foreclose access to Sec. 240A relief. Such a statutory scheme is not impermissibly retroactive because Congress' intent was clear, the relief was prospective, and Maldonado-Galindo did not rely upon the future availability of Sec. 240A relief when he sought for and received Sec. 212(c) relief. Siler, Rawlinson, and Bybee (author), Circuit Judges. A. Jacobs of Tucson, AZ, for the petitioner; AAG P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 40) IMMIGRATION: Cardoso_Tlaseca v. Gonzales, 04-70774 (9th Cir. Aug. 21, 2006). The petitioner, a native and citizen of Mexico, sought review of the BIA's January 30, 2004 order denying his motion to reopen its September 30, 2003 order affirming an immigration judge's removal order and denial of his application for adjust of status. (Appeal No. 04-70774). He also petitioned for review of the BIA's order denying his motion to reconsider its January 30, 2004 decision. (Appeal No. 04-72264). The USCA granted the petition in 04-70774 and remanded to the BIA for a determination as to whether the petitioner's original conviction was vacated on the merits or because of immigration consequences. In denying the petitioners' motions to reopen and reconsider, the BIA limited Wiedersperg v. INS, 896 F.2d 1179 (9th Cir. 1990), to cases in which the vacated state court conviction is "the sole ground of deportability." That was error. Both Wiedersperg and Estrada-Rosales v. INS, 645 F.2d 819 (9th Cir. 1981), apply where the conviction is a "key part" of the deportation proceeding. The USCA denied the petition in 04-72264 as moot. Leavy (author) and Rymer, Circuit Judges, and Moskowitz, District Judge. R. Jobe of San Francisco, CA, for the petitioner; AAG P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 41) IMMIGRATION: Ornelas-Chavez v. Gonzales, 04-72798 (9th Cir. Aug. 21, 2006). The petitioner sought review of a Board of Immigration Appeals final order affirming the Immigration Judge's denial of his application for withholding of removal under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), 8 USC 1231(b)(3), and the Convention Against Torture ("CAT"). He also appealed the BIA's denial of his due process challenge to the proceedings before the IJ. He claimed: 1) the BIA erroneously required that he must have reported third-party persecution to government authorities to qualify for withholding of removal under Sec. 1231(b)(3); 2) the BIA erred in denying protection under CAT by affirming the IJ's decision requiring that the alleged torture occur within the control or custody of a state actor who sanctioned it; and 3) the IJ's stereotyping of the way gay men dress and behave prevented him from receiving a fair hearing in violation of his due process rights. The USCA held that the BIA applied the wrong legal standards to the petitioner's claims for withholding of removal under IIRIRA and CAT. It granted his petition with respect to those claims. Because it remanded to the BIA for application of the correct standards, it did not reach the due process claim. Judge O'Scannlain dissented. He did not agree that the BIA applied the wrong legal standard to the withholding of removal claim, as it did not impose a strict reporting requirement to show persecution. He also thought the petitioner failed to meet his burden of showing that he was more likely than not to be tortured, if returned to Mexico. Browning (author), D.W. Nelson, and O'Scannlain (dissenting), Circuit Judges. E. Wydra of Washington, DC, for the petitioner; C. Federighi of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 42) IMMIGRATION: Suntharalinkam v. Gonzales, 04-70258 (9th Cir. Aug. 18, 2006). This case lies at the intersection of the immigration and counterterrorism laws. The petitioner, a 27-year-old male from Sri Lanka, sought review of a Board of Immigration Appeals' summary affirmance of an immigration judge's denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture. He maintained that he was persecuted by the Sri Lankan government because of its incorrect suspicion that he was a member of the Tamil Tigers, a terrorist organization at war with the Sir Lankan government. The government claims that the petitioner was never persecuted by the Sri Lankan government and is in fact a suspected Tamil Tiger who entered the U.S. to further that organization's terrorist activities. The IJ denied relief, but not on any legal grounds related to terrorism. Instead, he veiled his concerns about the petitioner's terrorist ties, denying his application for relief based on a contrived adverse credibility finding. The USCA agreed with the IJ that none of the supposed "discrepancies" individually provided an adequate basis for his finding. Given that none individually supported the adverse credibility determination, however, the IJ then incorrectly found that the "discrepancies" cumulatively supported the adverse credibility finding. The USCA granted the petition and remanded to the BIA for consideration of the remaining elements of the petitioner's claims. The USCA noted that the Department of Homeland Security has ample authority to deny admission to a suspected terrorist under both immigration and criminal laws. Dissenting, Judge Rawlinson did not agree that the Court is compelled to find the petitioner credible. So long as one of the IJ's identified reasons for disbelieving the petitioner is supported by substantial evidence and goes to the heart of the persecution claim, the USCA must accept the IJ's adverse credibility determination. Judge Rawlinson also noted that the concept of cumulative incredulity was endorsed in Pal v. INS, 204 F.3d 935, 938 (9th Cir. 2000). As he did not think the USCA was compelled to find the petitioner credible, Judge Rawlinson would deny his petition. Wardlaw (author) and Rawlinson (dissenting), Circuit Judges, and Cebull, District Judge. V. Rudrakumaran of New York, NY, for the petitioner; G. Holm of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 43) BIVENS CLAIMS / EXCESSIVE FORCE: Tekle v. USA, 04-55026 (9th Cir. Aug. 11, 2006). Tekle, a minor, by and through his mother and guardian ad litem, sued the United States and various individuals for declaratory relief and damages under the Federal Tort Claims Act, and for alleged civil rights violations under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 US 388 (1971). The complaint stemmed from an incident at Tekle's home when federal agents arrested Tekle's parents. The district court granted summary judgment in favor of the individual defendants on the basis that they did not violate Tekle's constitutional rights and that, even if they had, were entitled to qualified immunity. Because the liability of the United States was derivative of the liability of the individual defendants, the court also granted summary judgment for the United States. The USCA reversed and remanded. It held that the alleged facts established a violation of Tekle's constitutional rights. Moreover, a reasonable officer should have known that it was constitutionally excessive to use such force and to use the handcuffs in the manner alleged against an unarmed 11-year-old child who was cooperating with the officer's requests. The USCA thus reversed the summary judgment for the officers on Tekle's Bivens claims. Because the grant of summary judgment for the United States was predicated on the district court's erroneous conclusions regarding the excessive force and unreasonable detention claims, the USCA also reversed the summary judgment for the United States on the FTCA claims and remanded for further proceedings. Concurring in the result, Judge Kleinfeld agreed that pointing guns at the boy amounted to the use of excessive force so the officers who did so lacked qualified immunity. He also would reverse on the handcuffs issue, but more narrowly. He would reverse on only one aspect of the use of the handcuffs: lifting the boy to his feet by the handcuffs which were fastened behind him. No law enforcement purpose has been offered to justify that sadistic bit of bullying. Kleinfeld (concurring), Tashima (author), and Fisher, Circuit Judges. A. Hodges of Pasadena, CA, for the appellant; AUSA F. Travieso of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 44) VENUE: USA v. Valdez-Santos, 05-10360 (9th Cir. Aug. 10, 2006). Valdez-Santos was convicted in the Eastern District of California of conspiracy to possess and distribute a listed chemical with knowledge or reasonable cause to believe it would be used to manufacture methamphetamine, and possession and distribution of a listed chemical with knowledge and reasonable cause to believe that it would be used to manufacture methamphetamine. After conviction, the district court granted his motion for acquittal on the conspiracy conviction and his motion for a change of venue and a new trial on the possession charge, and transferred the case to the Central District of California. The USCA reversed. As the government emphasized, the facts of the case made venue in the Eastern District proper. Testimony suggested a link to the Eastern District that reached beyond this single offense. The USCA did not hold that an aider and abetter to a continuing crime can in always be tried in any district where the substantive offense took place, but here it found the link to the Eastern District sufficient to make venue proper. Goodwin, B. Fletcher (author), and Fisher, Circuit Judges. AUSA C. Delaney of Sacramento, CA, for the appellant; F. Dawson of Fair Oaks, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 45) CHILD PORNOGRAPHY: USA v. Battershell, 05-30397 (9th Cir. Aug. 10, 2006). Police seized Battershell's computer after responding to a call from his girlfriend and her sister that they had found child pornography on it. A detective trained in retrieving computer evidence applied for a search warrant to examine its contents. The application did not include copies of the digital photographs taken by officers of two pictures they saw on the computer when taking the complaint. However, the police report appended to the application recited the women's complaint that the computer contained photos of "kids having sex" as well as the officers' description of the photos they saw. The district court found the warrant application sufficient to establish probable cause that Battershell's computer contained images of minors engaged in sexually explicit activity. Battershell was indicted for possession of more than 2,500 prohibited images on his computer. He moved to suppress the evidence on grounds the warrant was invalid. The district court denied his motion. The USCA found that the application established probable cause, and that the district court's decision denying Battershell's motion to suppress the evidence was correct. It affirmed the conviction. Beezer, Tallman (author), and Bybee, Circuit Judges. C. Fieman of Ta-coma, WA, for the appellant; J. McKay of Seattle, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 46) CHILD PORNOGRAPHY: USA v. Hill, 05-50219 (9th Cir. Aug. 11, 2006). Hill pled guilty to possession of child pornography subject to his challenge of the validity of the warrant to search his computer and storage media for pornographic images of children. Also at issue was whether it was reasonable for the police to take all of Hill's computer storage media from his home so they could conduct their search offsite in a police laboratory, rather than onsite and taking only whatever evidence of child pornography they might fine. The USCA upheld the district court's denial of Hill's motion to suppress evidence. In so doing, it adopted the reasons stated by Judge Kozinski, sitting as the district court judge in USA v. Hill, 322 F. Supp. 2d 1081 (C.D. Cal. 2004). The search was supported by probable cause and, notwithstanding shortcomings of the warrant affidavit, its execution did not require suppression of the fruits of that search. Schroeder, Goodwin, and Fisher (author), Circuit Judges. DFPD C. Gunn of Los Angeles, CA, for the appellant; AUSA M. Wilner of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 47) CHILD PORNOGRAPHY: USA v. Ziegler, 05-30177 (9th Cir. Aug. 8, 2006). At issue here was whether an employee had an expectation of privacy in his workplace computer sufficient to suppress images of child pornography sought to be admitted into evidence in a criminal prosecution. The computer was company-owned, and the company's computer policy included routine monitoring, a right of access by the employer, and a prohibition against private use by an employee. Ziegler thus had no objective reasonable expectation of privacy in his workplace computer and no standing to invoke Fourth Amendment protection. As copying of the hard drive on Ziegler's workplace computer violated no reasonable expectation of privacy, the USCA had no need to assess whether an agency relationship with the FBI existed or whether the search was otherwise reasonable. O'Scannlain (author), Silverman, and Gould, Circuit Judges. AFD D. Ness of Great Falls, MT for the appellant; AUSA M. Hurd of Billings, MT, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 48) EVIDENCE: USA v. Choudhry, 05-10819 (9th Cir. Aug. 25, 2006). Upon observing a vehicle parked illegally, officers performed an investigatory traffic stop. Choudhry was a passenger and under his seat they discovered a gun. He was indicted for being a felon in possession of a firearm. He argued that a civil parking offense, enforced through an administrative process, cannot, standing alone, justify an investigatory stop. The USCA affirmed. Because parking infractions constitute traffic violations under California's Vehicle Code, and the officers had the authority to enforce the violation at issue, a civil parking violation under the Code fell within the scope of Whren v. USA, 517 US 806 (1996). The parking violation provided the officers with reasonable suspicion to conduct an investigatory stop. Merritt, Kleinfeld, and Paez (author), Circuit Judges. M. Rosenbush of San Francisco, CA, for the appellant; AUSA D. Owens of San Francisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 49) EVIDENCE: USA v. Hartz, 05-30134 (9th Cir. Aug. 17, 2006). Hartz was convicted of conspiracy, interference with commerce by robbery, use of a firearm during and in relation to a crime of violence, and being a felon in possession of a firearm. On appeal, he argued 1) that the district court admitted evidence obtained during an unlawful police search in violation of the Fourth Amendment; 2) that the jury instructions constructively amended the indictment in violation of the Fifth Amendment; and 3) that the evidence offered at trial was insufficient to warrant the jury's verdict. The USCA affirmed. Viewing the evidence in the light most favorable to the government, a rational jury could have concluded that when Hartz robbed the store, he possessed either the .357 revolver or the 9mm pistol described in the indictment, each of which had been stipulated by the parties to have traveled in interstate commerce. They further stipulated that Hartz had been convicted of a felony. The USCA held that there was sufficient evidence for a rational jury to conclude beyond a reasonable doubt that Hartz had been convicted of a felony, and that between June 21, 2000 and June 24, 2000, he had possessed a firearm that had traveled in interstate or foreign commerce. O'Scannlain, Silverman, and Gould (author), Circuit Judges. D. Zuckerman of Seattle, WA, for the appellant; AUSA S. Roe of Seattle, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 50) SEARCH & SEIZURE: USA v. Flatter, 04-30337 (9th Cir. Aug. 9, 2006). Flatter, a postal employee, was suspected of stealing mail. Before questioning him, officers conducted a pat-down search to ensure their safety. They had no evidence that he had a weapon, but search him because they were concerned that the questioning might turn confrontational. The search revealed evidence of Flatter's guilt, which the officers seized. The district court found the search lawful and, after a jury trial, Flatter was convicted and sentenced to probation. The USCA reversed, holding that the officers violated the Fourth Amendment by frisking Flatter for weapons without a reasonable belief that he was armed or dangerous. Beezer (author), Tallman, and Bybee, Circuit Judges. J. Finer of Spokane, WA, for the appellant; AUSA S. Lister of Spokane, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 51) FELON IN POSSESSION OF A FIREARM: USA v. Johnson, 05-10708 (9th Cir. Aug. 29, 2006). At issue here was whether an "innocent possession" defense exists such that would excuse a defendant for being a felon in possession of a firearm if he had obtained it innocently and his possession was transitory. Departing from the D.C. Circuit, but joining the First, Fourth, and Seventh circuits, the USCA declined Johnson's invitation to create such a defense. It found itself in accord with the Sixth and Eleventh circuits, which have rejected defenses that similarly would have inquired into the circumstances and motivations for a convicted felon's gun possession. Hug and O'Scannlain (author), Circuit Judges, and Miller, District Judge. AFPD C. Hahn of Reno, NV, for the appellant; AUSA W. Reed of Las Vegas, NV, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 52) FIREARMS: USA v. Young, 05-30313 (9th Cir. Aug. 17, 2006). At issue here were the conditions under which federal criminal law prohibits an individual from possessing a firearm if he is subject to a state domestic violence restraining order. The USCA agreed with the Eighth and Sixth circuits that in 18 USC Sec. 922(g)(8), the term "hearing" clearly refers to a proceeding of which the defendant had actual notice and an opportunity to participate. On December 6, 2004, the court appointed an attorney and told Young that he would be arraigned on December 8, 2004. Young thus had actual notice of the December 8 hearing at which the predicate Washington state Domestic Violence No. Contact ("DVNC") order was issued. A judgment of acquittal on this ground was improper. Young also maintained that the term "opportunity to participate" required actual participation sufficient to meet the requirements of due process. The district court concluded that Young did not have an "opportunity to participate" in the December 8 hearing, noting that he did not have an opportunity to consult with his attorney during the December 8 hearing; that Young was not asked whether he wished to dispute the contents of the police report; that he was not asked if he had evidence to present; and that he was not asked if he objected to the issuance of the December 8 DVNC order. While the district court noted that none of these facts were dispositive, it "the judge's princi-pal concern was whether Mr. Young understood he was bound by the order. While significant, the inquiry prompted by this concern did not satisfy Sec. 922(g)(8)(A)." The USCA disagreed. Joining the Fifth and Seventh Circuits, it held that under the plain text of the statute the "opportunity to participate" is a minimal requirement. The prosecution must show merely an opportunity to participate; that is, a proceeding during which the defendant could have objected to the entry of the order or otherwise engaged with the court as to the merits of the order. O'Scannlain (author), Silverman, and Gould, Circuit Judges. AUSA K. Bolton of Spokane, WA, for the appellant; R. Pennell of Yakima, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 53) CROSS-EXAMINATION: USA v. Larson,
05-30076 (9th Cir. Aug. 28, 2006). At issue here was whether defense counsel was
improperly prevented from cross-examining co-conspirators about prison sentences
they would have received but for their cooperation. The government claimed that
the cross-examination passed constitutional muster and, if not, any error was
harmless. The USCA found it similar to that in USA v. Dadanian, 818 F.2d
1443 (9th Cir. 1987), modified on other grounds, 856 F.2d 1391 (9th Cir. 1988)
(rejecting a claim that the district court violated the Sixth Amendment when it
failed to allow cross examination of a cooperating witness about his maximum jail
time exposure). The sentence a cooperating witness would otherwise face-even where
certain because of an applicable statutory minimum-is marginally relevant in light
of testimony about the existence of an agreement generally. Such evidence may
be excluded where the jury may have improperly inferred that the defendants faced
sentences of similar duration. O'Scannlain (author), Graber, and Bea, Circuit
Judges. AFD D. Ness of Great Falls, MT, for the appellant; AUSA J. Thaggard of
Great Falls, MT, for the appel-lee. (Download
the full text of this decision at www.ce9.uscourts.gov/)
55) SENTENCING: USA v. Maciel-Vasquez, 05-50524 (9th Cir. Aug. 16, 2006). Maciel appealed the sentence imposed after his guilty plea to a violation of 8 USC Sec. 1326. The USCA held that the district court had not given greater weight to the Guidelines calculation than to the other 18 USC Sec. 3553(a) factors, and so Maciel's argument, which rested upon USA v. Zavala, 443 F.3d 1165 (9th Cir. 2006), failed-the district court did not treat the Guidelines sentence as a presumptive sentence. As for Maciel's contention that the district court did not explain why it selected a 36 month sentence rather than some other term, the USCA noted that neither Booker nor Ninth Circuit precedent require that the district court state why it imposes a particular sentence rather than some other potential sentences. Maciel also argued that 8 USC 1326(b)(2) is unconstitutional. However, the USCA found that argument foreclosed by Almendarez-Torres v. USA, 523 US 224 (1998), which is still good law despite USA v. Weiland, 420 F.3d 1062 (2005). Finally, the USCA did not find a harmful error in the condition of supervised release requiring Maciel to participate in outpatient substance abuse treatment and submit to drug and alcohol testing as instructed by the probation officer. Judge Thomas dissented from the majority's holding that the condition authorizing the probation officer to require unlimited drug and alcohol testing outside of treatment did not constituted plain error. Thomas (dissenting in part) and Gould (author), Circuit Judges, and Schwarzer, District Judge. DFPD E. Newman of Los Angeles, CA, for the appellant; AUSA S. Lokey of Riverside, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 56) SENTENCING: USA v. Ellsworth,
05-10365 (9th Cir. Aug. 9, 2006). Ellsworth was convicted of robbery and first
degree murder in a Nevada state court. He was sentenced to life imprisonment with
the possibility of parole. He was paroled after serving 16 years. Subsequently,
he was arrested while in possession of a loaded handgun. A search of his car and
room uncovered additional ammunition and a holster. He pled guilty to being a
felon in possession of a firearm in violation of 18 USC Sec. 922(g)(1). The district
court applied a two-level enhancement in accordance with the advisory Sentencing
Guidelines because the firearm was stolen. The government admitted that it could
not prove Ellsworth knew that the gun was stolen, but under the Guideline applied,
knowledge was not necessary for an enhancement. The district court also increased
Ellsworth's criminal history score by two categories upon finding that the Guideline's
criminal history calculation significantly underrepresented the seriousness of
Ellsworth's prior offenses. It thus imposed a 78-month sentence-roughly double
the length the probation office recommended in its presentence report but well
within the 10-year statutory maximum for a Sec. 922(g)(1) offense. The USCA affirmed.
The different scienter requirements for enhancements for felons in possession
of stolen firearms are rationally related to a legitimate government interest
and do not violate the Equal Protection Clause. There was no need for the district
court to conduct an analysis under Taylor v. USA, 495 US 575 (1990), when
it relied on Ellsworth's "stale" prior offenses to increase his criminal
history score. Ellsworth's admission during sentencing that the presentence report
was accurate precluded his Fifth Amendment due process claim. The sentence imposed,
based in part on prior offenses that would not or-dinarily be countered towards
Ellsworth's criminal history score under Guideline Sec. 4A1.2(e) (2003), was reasonable.
Goodwin, B. Fletcher, and Fisher (author), Circuit Judges. AFPD C. Hahn
of Reno, NV, for the appellant; AUSA R. Gifford of Reno, NV, for the appellee.
(Download the full
text of this decision at www.ce9.uscourts.gov/)
58) SENTENCING: USA v. Almazan-Becerra, 05-10056 (9th Cir. Aug. 1, 2006). Almazan-Becerra is a Mexican national who has been deported from the U.S. on three prior occasions. He now appealed a sentence of 70 months imprisonment following his conviction of illegal reentry after deportation. He maintained that the application of a 16-level enhancement for his prior felony drug conviction was erroneous. The USCA vacated the sentence and remanded for resentencing. First, at sentencing, neither party challenged the district court's determination that Almazan-Becerra's base offense level was eight. The district court applied a 16-level enhancement, based on its determination that his 1995 conviction qualified as "a drug trafficking offense for which the sentence imposed exceeded 13 months" under Guideline Sec. 2L1.2(b)(1)(A). It then made a downward departure based on the relative minor nature of the 1995 conviction, which involved two sales of marijuana for approximately $15 each. It also departed downward 4 levels, based on its belief that Alma-zan-Becerra's 1998 conviction would have required a 12-level enhancement under Guideline Sec. 2L1.2(b)(1)(B) as a "conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or less," if the 16-level enhancement had not applied. On appeal, the government conceded that the 1998 conviction did not qualify for the 12-level enhancement, as Almazan-Becerra spe-cifically pled guilty to transporting drugs, which does not qualify for a drug trafficking enhancement. The USCA held that the district court's decision to depart 4 levels downward was a legal error. The USCA instructed that, at resentencing, if the district court decides to make a downward departure, it may not rely on the erroneous premise that the 1998 conviction qualifies for a 12 enhancement under Guideline Sec. 2L1.2(b)(1)(B). Second, the USCA has held that when a defendant pleads guilty to facts stated in a conjunctive, each factual allegation is taken as true. At issue here was whether the same is true of a disjunctive plea. Because Almazan-Becerra pled to the disjunctive either transporting or selling or offering to sell marijuana, he could have pled either to transporting or to solicitation, neither of which qualifies for the enhancement. A plea to selling marijuana is only one possible interpretation of these statements. The USCA thus held that this disjunctive guilty plea did not "unequivocally establish" that Almazan-Becerra committed a drug trafficking crime. Finally, if on remand the government continues to assert that the police reports, which Almazan-Becerra's counsel stipulated constituted a factual basis for his disjunctive plea, support the application of the enhancement, the district court will need to determine whether this case can be distinguished from USA v. Shepard, 544 US 13 (2005). Wallace (author), Hawkins, and Thomas, Circuit Judges. D. Searles of San Francisco, CA, for the appellant. AUSA B. Valliere of San Francisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 59) SENTENCING: USA v. Montgomery, 05-10587 (9th Cir. Aug. 29, 2006). On remand pursuant to USA v. Ameline, 409 F.3d 1073, 1085 (9th Cir. 2005) (en banc), the district court did not "obtain the views of counsel" before deciding not to re-sentence Montgomery. The USCA held that Ameline requires the district court to obtain the views of counsel before it decides whether Ameline re-sentencing is warranted. Because the district court failed to do so, the USCA remanded a second time. B. Fletcher, Pregerson (author), and Canby, Circuit Judges. G. Long of Saipan, MP, for the appellant; AUSA T. Moran of Saipan, MP, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 60) SENTENCING / SUPERVISED RELEASE: USA v. Decoud, (9th Cir. Aug. 2, 2006). This case involves the DEA's investigation and the prosecution of a drug-trafficking organization in California. The appellants challenged their convictions and sentences for conspiracy to distribute cocaine base and, in Decoud's case, for being a felon in possession of a firearm. They raised a number of issues ranging from the government's non-disclosure of its confidential informant's identity to the district court's dismissal of a juror based on her claimed inability to discharge her duties in light of her religious views. The USCA held that the appellants failed to show that the district court committed reversible error. The government conceded, however, that a limited remand was appropriate to give the district court the opportunity to correct the supervised-release term that it imposed as part of appellant Israel's sentence. The USCA thus affirmed the district court's judgments except for Israel's sentence which it remanded for further proceedings. Judge Ferguson dissented from the majority's approval of the district court's failure to hold an evidentiary hearing regarding whether racial bias infected the jury that sat in judgment of appellants Israel and Trice. B. Fletcher, Ferguson (dissenting), and Callahan (author), Circuit Judges. V. Oliver of Los Angeles, CA, for the appellant; AUSA C. Missakian for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 61) HABEAS CORPUS: Taylor v. Lewis, 04-17517 (9th Cir. Aug. 15, 2006). At issue here was whether it was an unreasonable application of federal constitutional law for a California court to decide that a "three strikes" sentence of 25 years to life for possessing 0.036 grams of cocaine did not violate the Eighth Amendment. Taylor's only viable argument was that the California Court of Appeal's decision was an unreasonable application of the Supreme Court's "proportionality" standard. But in light of Rummel v. Estelle, 445 US 263 (1980), Ewing v. California, 538 US 11 (2003), and Lockyer v. Andrade, 538 US 63 (2003), where lengthy recidivist sentences were upheld, the USCA was satisfied that the state court was not required to find a violation of the Eighth Amendment because: 1) Taylor would be eligible for parole after 25 years; 2) his triggering offense was not obviously less serious than a property offense such as felony grand theft; and 3) his prior offenses involved violence and crimes against a person and he had served multiple prior prison terms. The USCA held that the state court's decision was not an objectively unreasonable application of clearly established federal law. Concurring, Judge Thomas thought the state court decision was not an objectively unreasonable application of clearly established federal law as determined by the Supreme Court. Goodwin, O'Scannlain (author), and Thomas (concurring), Circuit Judges. K. Little of Fresno, CA, for the petitioner; J. Riley of Sacramento, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 62) HABEAS CORPUS: Hovey v. Ayers, 03-99001 (9th Cir. Aug. 11, 2006). Hovey sought relief from his 1982 conviction and death sentence for first degree murder during the course of a kidnapping. He asserted that more than a dozen errors infected his trial, principally: denial of the due process right to be present at a mid-trial hearing on his attorney's competence; ineffective assistance of counsel at the guilt and penalty phases; Griffin error; Brady error; and exclusion of forward-looking evidence to support a proper penalty-phase jury instruction. Because Hovey admitted he had taken his victim against her will and committed the acts that resulted in her death, he could not show the requisite prejudice to succeed on his claims of error in the guilty phase. The district court correctly rejected all of Hovey's guilt-phase claims, finding a number of errors but determining that none, alone or cumulatively, was sufficient to merit a reversal of Hovey's conviction. The USCA held that the district court erred in ruling that the counsel's deficient performance did not prejudice Hovey. The counsel's failure to investigate Hovey's mental condition at the time of the murder and to adequately prepare Hovey's penalty-phase expert witness sufficiently undermined the USCA's confidence in the verdict as to require it to reverse the denial of his petition as to the penalty phase. Wardlaw (author), Paez, and Berzon, Circuit Judges. W. Turner of San Francisco, CA, for the petitioner; DAG S. Schalit of San Francisco, CA, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 63) HABEAS CORPUS: Alberni v. McDaniel, 05-15570 (9th Cir. Aug. 9, 2006). Alberni appealed the denial of his habeas petition following his state conviction of second degree murder using a deadly weapon. He argued that his Fourteenth Amendment due process rights were violated by the introduction of character evidence and that his Sixth Amendment right to conflict-free counsel was violated by his trial counsel's cross-examination of a prosecution witness who had been his attorney's client. The USCA affirmed in part: The Nevada Supreme Court's ruling that Alberni's right to due process had not been violated was not contrary to and did not involve an unreasonable application of federal law. But, the USCA vacated and remanded for an evidentiary hearing to determine whether Al-berni's right to conflict-free counsel had been violated. Dissenting in part, Judge McKeown thought that the majority had incorrectly adopted a presumption of prejudice in a successive representation case. She would not order an evidentiary hearing because even if there were an actual conflict from the successive representation, it would be harmless in light of the overwhelming evidence of Alberni's guilt and the absence of Strickland prejudice. She would affirm the state court's denial of Alberni's Sixth Amendment claim. Alarcon (author) and McKeown (dissenting in part), Circuit Judges, and Holland, District Judge. AFPD P. Turner of Las Vegas, NV, for the petitioner; J. Warwick of Carson City, NV, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/) 64) HABEAS CORPUS: LaMere v. Slaughter, 05-35588 (9th Cir. Aug. 8, 2006). In his State of Montana trial, LaMere unsuccessfully moved for a directed verdict of acquittal at the close of the state's case-in-chief. He that argued that he was entitled to habeas relief under In re Winship, 397 US 358 (1970), and Jackson v. Virginia, 443 US 307 (1979), because the state failed to introduce sufficient evidence of his guilt during its case-in-chief. The USCA affirmed the district court's denial of the writ. It held that Winship and Jackson do not apply to a motion for directed verdict of acquittal at the close of the state's case-in-chief. Tashima and W. Fletcher (author), Circuit Judges, and Pollak, District Judge. C. Wright of Helena, MT, for the appellant; I. Becker of Helena, MT, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 65) HABEAS CORPUS: Stark v. Hickman, 03-17241 (9th Cir. Aug. 1, 2006). State prisoner Stark appealed the district court's dismissal of his habeas petition. He argued that his federal right to due process was violated at his state trial for murder when the trial court instructed the jury during the guilt phase that he was presumed to be "conclusively sane." The USCA found that the instruction violated the Due Process Clause of the Fourteenth Amendment and that the error was not harmless. It reversed the denial of Stark's petition and remanded with instructions to grant the writ, unless California grants Stark a new trial within a reasonable period to be set by the district court. Thomas and W. Fletcher, Circuit Judges, and Mahan (author), District Judge. J. Jordan of San Francisco, CA, for the petitioner; J. Deist of San Francisco, CA, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 66) HABEAS CORPUS: Lara v. Ryan, 05-16055 (9th Cir. Aug. 1, 2006). Lara was convicted of two counts of attempted murder and two counts of non-aggravated mayhem. The jury was instructed that it could convict him of attempted murder under either a proper theory of express malice or an improper implied-malice theory. Lara alleged that the flawed jury instruction made it impossible to determine whether he was convicted under the correct legal theory. The district court denied habeas relief. The USCA affirmed, finding it certain that the jury convicted Lara under the express-malice theory. B. Fletcher (author), Kozinski, and Fisher, Circuit Judges. M. Badami of San Francisco, CA, for the petitioner; B. Lockyer of San Francisco, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 67) HABEAS CORPUS: Sass v. California Board of Prison Terms, 05-16455 (9th Cir. Aug. 31, 2006). State prison Sass appealed the district court's denial of his habeas petition. HeSass argued that the respondent's decisions denying him parole violated his due process. The USCA affirmed. California inmates continue to have a liberty interest in parole after In re Dannenberg, 34 Cal. 4th 1061 (2005). However, the state court decisions upholding Sass' parole denials were not contrary to, and did not involve an unreasonable application of, clearly established federal law as determined by the Supreme Court. Dissenting, Judge Reinhardt thought Sass' continued incarceration ran contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation-a person who is entitled to relief under any rational application of the law. Goodwin (author), Reinhardt (dissenting), and Hawkins, Circuit Judges. M. Littlefield of Bolinas, CA, for the petitioner; DAG J. Garland of San Diego, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 68) PRISONERS' RIGHTS: Myron v. Terhune,
04-15770 (9th Cir. Aug. 7, 2006). Myron, a California state prisoner, filed this
42 USC Sec. 1983 action along with other plaintiffs in 1999. They named several
prison correctional and medical personnel as defendants. The district court, after
conducting its mandatory sua sponte review of the complaint pursuant to 28 USC
Sec. 1915A, dismissed most of the plaintiffs' claims and held that prison regulations
governing inmate classification, prison publications, and law library access did
not create cognizable Fourteenth Amendment liberty interests. The USCA affirmed.
The regulations did not eliminated all the discretion of the prison officials,
and they did not mandate a particular outcome if the substantive predicates have
been met because prison officials retain discretion to place inmates not in accordance
with their placement scores. Placement in a level four facility does not impose
an atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life. The regulations thus do not give rise to a Fourteenth
Amendment liberty interest. The USCA also held that a regulation governing prison
publications did not impose sub-stantial predicates or contain explicitly mandatory
language, and did not eliminate all discretion. It thus did not create a federal
liberty interest. Finally, Myron argued that prison officials violated his constitutional
rights by denying him access to library services during periods of lockdown and
curtailing the hours of library services due to a lack of staffing, space, and
resources. He argued that these actions violated his Fourteenth Amendment rights
created by 15 Cal. Admin. Code tit. 15, Sec. 3120 (2006). That provision might
create a liberty interest by requiring that prisons have a law library and a set
schedule. However, it also affirmatively invests discretion in the warden to regulate
access to library facilities. Because of that discretion, the USCA held that the
regulation created no Fourteenth Amendment liberty interest in library access
hours. Wallace (author), Hawkins, and Thomas, Circuit Judges. S. Svetcov
of San Fran-cisco, CA, for the appellant; DAG T. Patterson of San Francisco, CA,
for the appellees; B. Herwig of Washington, DC, for the interve-nor USA. (Download
the full text of this decision at www.ce9.uscourts.gov/)
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