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PUBLISHABLE OPINIONS 1) TRADEMARKS: Rudolph International v. Realys, Inc., 05-55605 (9th Cir. Apr. 12, 2007). In this trademark infringement case, Rudolph International appealed the district court's grant of summary judgment to defendant Realys, Inc. The parties manufacture and sell abrasive nail files and related products. California regulations required nail technicians to disinfect all instruments used on multiple customers, and all instruments and supplies which come into direct contact with a patron and cannot be disinfected shall be disposed of in a waste receptacle immediately after use. The district court held that the mark "disinfectable" is generic in the parties' line of business and cannot be the subject of trademark protection. The USCA affirmed. The term "disinfectable" relates to the type of product rather than its source and consequently falls on the "what-are-you" side of the genericness test. The district court correctly held that Rudolph failed to introduce sufficient evidence to meet its burden of persuasion that "disinfectable" is not a generic mark. This question did not present a genuine issue of material fact and was appropriate for summary judgment notwithstanding the USCA's reluctance to take such action in trademark cases. Beezer (author) and Reinhardt, Circuit Judges, and Henderson, District Judge. L. Heller of Beverly Hills, CA, for the plaintiff-appellant; D. Olson of Irvine, CA, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 2) TAXATION: Pacific Fisheries v. USA, 04-35897 (9th Cir. Apr. 17, 2007). The Internal Revenue Code allows taxpayers to re-cover costs and attorneys' fees if they prevail in either civil or administrative proceedings, so long as the position of the United States was not substantially justified. 26 USC Sec. 7430. The appellant taxpayers sought attorneys' fees associated with pursuing two federal court petitions to quash third-party summonses. The taxpayers and the United States agree that the summonses were not enforceable. They disagreed about whether the government should pay the taxpayers' legal fees as a consequence. The government's issuance of the summonses essentially forced the taxpayers into court, but once there, the government's only action during the litigation was to promptly withdraw the summonses. At issue was whether the government's pre-litigation conduct should be factored into a determination of whether its position in the judicial proceeding "was substantially justified" as defined in the statute. 26 USC Sec. 7430(c)(4)(B)(i). Looking to the language and structure of the statute, the USCA concluded that the litigation fees of these particular taxpayers did not fall within the coverage of the statute governing fees in a "court proceeding." See 26 USC Sec. 7430(a)(2). B. Fletcher and McKeown (author), Circuit Judges, and Schwarzer, District Judge. R. Chicoine of Seattle, WA, for the appellants; G. Wolfinger of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 3) BANKRUPTCY: In re Harbin, 04-56799 (9th Cir. Apr. 25, 2007). Addressing two issues of first impression, the USCA first held that a bankruptcy court considering the feasibility of a plan or reorganization under 11 USC Sec. 1129(a)(11) must evaluate the possible effect of a debtor's ongoing civil case with a potential creditor, whether that litigation is pending at the trial level or on appeal. Second, it held that under limited circumstances, a bankruptcy court may exercise its equitable powers to grant retroactive approval of a post-petition financing transaction pursuant to 11 USC Sec. 364(c)(2). Cudahy (dissenting in part). Graber, and Ikuta (author), Circuit Judges. J. Morrell of San Diego, CA, for the defendant-appellant; L. Isaacson of Los Angeles, CA, for the plaintiff-appellee; D. Zaro of Irvine, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 4) BANKRUPTCY: In re Ahaza Systems, 05-35455 (9th Cir. Apr. 3, 2007). This case concerned whether payments for product de-sign services made by Ahaza Systems to Stratos Product Development shortly before Ahaza filed for bankruptcy were preferential payments that had to be returned to the bankruptcy estate. Plaintiff Edmund Wood, trustee of Ahaza's estate for the bankruptcy pro-ceedings, sought to recover two payments made to Stratos, maintaining that they were preferential and thus voidable under the Bank-ruptcy Code. 11 USC Sec. 547(c)(2000). The bankruptcy court granted Stratos summary judgment. Determining that the payments fell within the "ordinary course of business" exception to the prohibition on preferential transfers, the Bankruptcy Appellate Panel ("BAP") affirmed. It held that repayment of a debt can be within the "ordinary course of business" exception to the prohibition on preferential transfers even if both the underlying debt and any restructuring agreement are the first such transactions between the parties. The USCA agreed with the BAP's basic holdings. It noted that, though it normally decides whether a debt is "ordinary" by comparing it to the parties' past practice with each other, when the transaction is the parties' first, "ordinary" can be determined in reference to the parties' practice with others. Because this standard was not available to the parties at the time of the bankruptcy court proceedings, and because summary judgment was not otherwise justified, the USCA remanded for further development of the summary judgment record, or, in the alternative, for trial. Rymer (dissenting), Berzon (author), and Tallman, Circuit Judges. T. Pearson of Seattle, WA, for the appellant; J. Hermsen of Seattle, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 5) BANKRUPTCY: In re Brown, 05-15605 (9th Cir. Apr. 26, 2007). A bankruptcy judge ruled in open court on cross-motions for summary judgment regarding debtor Brown's claim that Wilshire Credit Corporation violated the Bankruptcy Code's automatic stay. Later that day, the judge signed a minute entry stating that Wilshire's motion for summary judgment was granted, that Brown's was denied, and he took under advisement a related motion for sanctions. Brown filed his appeal nearly three months later when the court entered judgment awarding sanctions against his counsel. The USCA held that a minute entry that merely grants summary judgment-without more-does not become a final, appealable judgment just because it has been signed by the judge. The minute entry in this case was the memorialization of a ruling, not a judgment, and thus did not trigger the 10-day window in which Brown was required to appeal. The district court thus erred in dismissing Brown's appeal as untimely. Reinhardt, Rymer (concurring), and Silverman (author), Circuit Judges. R. Ellett of Phoenix, AZ, for debtor Brown and appellant Ellett law firm; D. Engelman of Phoenix, AZ, for Wilshire Credit Corporation. (Download the full text of this decision at www.ce9.uscourts.gov/) 6) BANKRUPTCY: In re Wiersma, 05-35246 (9th Cir. Apr.
6, 2007). The debtors, former dairy farmers, appealed the decision of
the Bankruptcy Appellate Panel on issues related to their Chapter 11
bankruptcy case. They alleged errors in the BAP's conclusions that:
(1) creditor Bank of the West held a secure interest in the debtors
settlement proceeds; (2) issues pertaining to court approval of that
settlement were moot; (3) the bankruptcy court did not err in denying
confirmation of the debtors' Second Amended Plan for reor-ganization;
and (4) the bankruptcy court acted within its discretion is dismissing
the debtors' bankruptcy case. The Bank cross-appealed the BAP's assertion
of jurisdiction over the Secured Status Order, as did the U.S. Trustee.
The Trustee also appealed the BAP's assertion of jurisdiction over the
bankruptcy court's order of February 5, 2003, and urged the court to
affirm the BAP's conclusion that the bankruptcy court did not abuse
its discretion in dismissing the debtors' case. The USCA reversed the
BAP's holding that it had jurisdiction over the Secured Status Order
and, in a separate memorandum disposition, affirmed on all other issues.
Ferguson (author), O'Scannlain, and Fisher, Circuit Judges. B.
Robinson of Rupert, ID, for the debtors; K. Greene of Boise, ID, and
M. Mansfield of Washington, DC, for the appellee. (Download
the full text of this decision at www.ce9.uscourts.gov/)
[See memorandum decision #7 below.] 8) ENVIRONMENTAL LAW: Consejo de Desarrollo v. USA, 06-16345 (9th Cir. Apr. 6, 2007). This case involved a dispute over a Bureau of Reclamation project to build a concrete-lined canal to replace an unlined portion of the All-American Canal. The district court denied declaratory and injunctive relief. A USCA motions panel granted a temporary injunction halting work on the project pending appeal. After initial oral arguments and based on intervening legislation, the government moved to vacate the injunction and to remand the action to the district court with instructions that several of the claims be dismissed as moot. The USCA then held a second oral argument to consider the motion. After extensive briefing and arguments by the parties, the USCA concluded that the environmental and other statutory claims were moot and that the district court lacked subject matter jurisdiction over the remaining claims. It vacated the injunction of the project pending appeal and remanded the case to the district court with instructions to dismiss it. Noonan, Tashima, and Thomas (author), Circuit Judges. R.G. Smith of San Diego, CA, for the plaintiff-appellant; W. Snape of Washington, DC and G. Kracov of Los Angeles, CA, for the plaintiffs-appellants. (Download the full text of this decision at www.ce9.uscourts.gov/) 9) ENVIRONMENTAL LAW: National Wildlife Federation v. National Marine Fisheries Service, 06-35011 (9th Cir. Apr. 9, 2007). This case involves another round in the long-running battle over salmon and steelhead listed under the Endangered Species Act ("ESA"). At issue in this action brought by the National Wildlife Federation and others (collectively "NWF"), was a November 2004 Biological opinion ("2004 BiOp") addressing the effects of proposed operations of Federal Columbia River Power System ("FCRPS" or "Columbia River System") dams and related facilities on listed fish in the lower Columbia and Snake Rivers. The 2004 BiOp, issued by the agency formerly known as the National Marine Fisheries Service of the National Oceanic and Atmospheric Administration ("NMFS"), found that proposed FCRPS operations for 2004 through 2014 would not jeopardize the 13 area salmonid species that are listed as threatened or endangered, nor adversely modify their critical habitat. NMFS and the State of Idaho (collectively "NMFS") appealed from the district court's determination that the 2004 BiOp was structurally flawed and from certain portions of its chosen remedy. The USCA affirmed, finding that the district court's rejection of the 2004 BiOp was entirely appropriate, and that it did not abuse its discretion in entering the remand order. Wallace, Tashima, and Thomas (author), Circuit Judges. M. Eames and M. Love of Seattle, WA, for the defendants-appellants; L. Wasden of Boise, ID, for the intervenor-appellant; T. True of Seattle, WA, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 10) ENVIRONMENTAL LAW: Earth Island Institute v. Hogarth, 04-17018 (9th Cir. Apr. 27, 2007). This case concerns the practice of catching yellowfin tuna by encircling dolphins with purse-seine nets. The dispute over whether tuna sellers may label tuna as dolphin-safe if caught with such nets began with the enactment of the International Dolphin Conservation Program Act ("IDCPA") in 1997. It required the Secretary of Commerce through the National Oceanic and Atmospheric Administration ("NOAA"), to conduct scientific studies and determine whether or not the tuna fishery is affecting the dolphin population. According to the bill's proponents, Congress would weaken the then-strict tuna labeling requirements, and permit broader use of "dolphin-safe" labeling, only if the Secretary found that the fishery was not having a significant adverse impact on already depleted dolphin stocks. In 1999, the Secretary made an Initial Finding, despite inconclusive evidence, that the fishery was not having an adverse impact on the dolphin population. Environmental groups then brought suit in to enjoin the Secretary's implementation of weaker labeling standards. The district court held that the agency's findings of no adverse impact was arbitrary and capricious in light of the inconclusive evidence. The USCA affirmed the district court's rejection of the Initial Finding because the agency was required, but had failed, to reach a definitive answer to the questions posed by Congress. The USCA held that the agency should not have made what amounted to a default finding of no adverse impact in the absence of conclusive scientific data. The agency then did some additional studies and reached the same conclusion in a Final Finding in December 2002. The case returned to the USCA again for review of District Judge Henderson's decision that the Secretary's Final Finding is arbitrary and capricious, because the agency still had not complied with Congressional mandates for scientific studies. This time, the USCA affirmed. Schroeder (author), Farris, and Rawlinson, Circuit Judges. R. Nelson of Washington, DC, for the defendants-appellants; R. Mooney of San Francisco, CA, for the plaintiffs-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 11) INSURANCE / ADMIRALTY: Sentry Select Insurance Company v.
Royal Insurance Company of America, 05-35323 (9th Cir.
Apr. 6, 2007). Appellants Kelly-Ryan, Inc., Sentry Select Insurance
Company, and Lloyd's Syndicates 588, 861, and 1209 (collectively "Kelly-Ryan
and the P&I Underwriters") appealed the district court's summary
judgment in favor of Royal Insurance Com-pany. The district court held
that Kelly-Ryan was not entitled to indemnity from Royal under the Marine
Coverage Endorsement ("MEL") to the Big Shield Commercial
Catastrophe Liability Insurance Policy ("Big Shield policy")
issued by Royal, because Kelly-Ryan breached its duty of uberrimae
fidei (utmost good faith) to Royal under federal maritime law. Kelly-Ryan
sought indemnification from Royal after settling a Jones Act suit with
one of its maritime employees who was electrocuted during the delivery
of a prefabricated house in Alaska. The district court held that, under
federal maritime law, the uberrimae fidei doctrine required Kelly-Ryan
to disclose to Royal the material fact that employees covered under
the MEL routinely worked with electrical power lines. Kelly-Ryan had
not made that disclosure. Kelly-Ryan and the P&I Underwriters maintained
that the Royal Big Shield policy and the MEL do not constitute marine
insurance over which the USCA could exercise admiralty jurisdiction,
and as a result the uberrimae fidei doctrine does not apply to bar indemnification
from Royal. The USCA agreed, but affirmed the district court's summary
judgment in favor of Royal on the ground that Royal was not obligated
to provide indemnity for the injured seaman's injuries because those
injuries did not occur in an accident covered by the MEL. The USCA did
not reach the question whether the injured seaman's injuries were covered
under the Alaska State Workers' Compensation Act; whether covered or
not, Royal was not obligated to provide indemnity for them under the
facts of this case. The USCA thus affirmed the district court's summary
judgment for Royal. D. W. Nelson, Thompson (author), and Paez,
Circuit Judges. D. McLean of Seattle, WA, for the plaintiffs-appellants;
M. Helgren of Seattle, WA, for the defendants-appellees. (Download
the full text of this decision at www.ce9.uscourts.gov/)
13) ADMIRALTY / PREJUDGMENT INTEREST RATES: In re Exxon Valdez, 05-35468 (9th Cir. Apr. 16, 2007). Plaintiff Sea Hawk Seafoods operates a seafood processing business on Prince William Sound in Valdez, Alaska. It sued Exxon/Mobil Corporation and Exxon Shipping Company under Alaska state law for business losses resulting from the Exxon Valdez oil spill. The district court dismissed the plaintiff's claims as preempted by federal admiralty laws. The USCA reversed the dismissal of the plaintiffs state law claims. On remand, the parties settled all remaining issues except for one regarding the prejudgment interest rate. The district court had determined prejudgment interest rates under federal law. On de novo review, the USCA reversed, finding that state law supplies the rate of prejudgment interest. Graber (author), Paez, and Bea, Circuit Judges. M. Shein of Seattle, WA, for the plaintiffs-appellees; J. Daum of Los Angeles, CA, for the defendants-appellees; E. Fleisig-Greene of Washington, DC, for the intervenor-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 14) TORTS: Stilwell v. Smith & Nephew, Inc., 05-15000 (9th Cir. Apr. 11, 2007). Stilwell sustained two broken legs in a 1995 automobile accident. During her surgical treatment and recovery, doctors twice implanted a Russell-Taylor metal reconstruction nail to stabilize a compound subtrochanteric fracture of her right femur. These nails failed during the healing process, causing Stilwell pain, suffering, and disability. She brought this action against Smith & Nephew, manufacturer of the nails. Stilwell asserted claims based on strict liability, negligence, and breach of warranty. The district court rejected these claims for lack of proof of causation and ordered summary judgment in favor of Smith & Nephew. On appeal, Stilwell argued that the district court erred by baring the expert testimony of a metallurgist, Arun Kumar, Ph.D., under Federal Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 US 579 (1993), and its progeny. Stilwell relied on the expert opinion to prove causation and, after the court's Rule 702 order, conceded that she could not prevail. The USCA concluded that the court wrongly excluded the testimony but, after reviewing the record, affirmed the summary judgment for Smith & Nephew because the record evidence, including Kumar's deposition testimony and reports, did not demonstrate that any alleged defects were a cause of the delayed healing of Stilwell's fractured leg. Bright (author), D.W. Nelson, and Berzon, Circuit Judges. J. Charles of Glendale, AZ, for the appellant; R. Cusack of Tucson, AZ, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 15) ALIEN TORT CLAIMS: Sarei v. Rio Tinto, PLC, 02-56256 (9th Cir. Apr. 12, 2007). At issue here were questions of justicia-bility and exhaustion in the context of the Alien Tort Claims Act, 28 USC Sec. 1350 ("ATCA"). Plaintiffs are current or former residents of Bougainville, Papua New Guinea ("PNG"), who alleged that they or their family members were victims of numerous violations of international law as a result of Rio Tinto's Bougainville mining operations and the 10-year civil conflict that followed an uprising at the Rio Tinto mine. The plaintiffs appealed the district court's dismissal of their lawsuit seeking redress under the ATCA, 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. Although several different doctrines of justiciability were at issue-the political question doctrine, the act of state doctrine and the doctrine of international comity-each provided different ways of asking one central question: are U.S. courts the appropriate forum for resolving the plaintiffs' claims? The answer turned in part on the weight to be given to a statement of interest submitted by the U.S. Department of State asserting that continuation of the lawsuit would risk a potential serious adverse impact on the conduct of U.S. foreign relations. Rio Tinto's cross-appeal also argued that the ATCA requires exhaustion of local remedies-yet another way of questioning whether there is a different and more appropriate forum to develop and try these claims. The USCA held 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 non-justiciable political questions, and in dismissing the plaintiffs' racial discrimination claim under the act of state doctrine. It also vacated for reconsideration the district court's dismissal of the plaintiffs' UN Convention on the Law of the Sea ("UNCLOS") claim under the act of state doctrine, and its dismissal of the racial discrimination and UNCLOS claims under the international comity doctrine. Although Rio Tinto and amicus curiae asserted several plausible rationales in support of an exhaustion requirement, the USCA affirmed the district court's conclusion that no such requirement presently exists, and left it to Congress or the Supreme Court to alter the status quo if warranted. Dissenting, Judge Bybee thought local remedies should have been exhausted before the USCA assumed jurisdiction. In his view, international law requires exhaustion of local remedies as a condition to bringing an international cause of action in a foreign tribunal. And, even if international law does not require exhaustion, he would, as an exercise in discretion, require it as a matter of U.S. domestic law. Exhaustion promotes comity between Art. III courts and any processes available for resolving disputes within PNG, and it preserves the courts role within the separation of powers. Fisher (author) and Bybee (dissenting), Circuit Judges, and Mahan, District Judge. S. Berman of Seattle, WA, for the plaintiffs-appellants; J. Brosnahan of San Francisco, CA, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 16) LABOR LAW: United Steelworkers of America v. NLRB, 04-76132 (9th Cir. Apr. 2, 2007). The United Steelworkers of America alleged unfair labor practices by Tower Industries. An ALJ found that Tower had violated 29 USC Sec. 158 and recommended specific affirmative remedies, including an order requiring Tower to recognize and bargain with the Union, commonly known as a Gissel order. A three-judge panel of the National Labor Relations Board ("NLRB") adopted the ALJ's findings, conclusions, and remedies with the exception of the suggested Gissel bargaining remedy. The Union sought review of the NLRB's refusal to impose a Gissel order. The USCA denied the petition, holding that the NLRB's explanation was sufficient for review and that its chosen remedies were not a clear abuse of discretion. Fernandez, Graber (author), and Ikuta, Circuit Judges. R. Stock of Los Angeles, CA, for the petitioner; S. Zimmerman of Washington, DC, for the respondent; P. Jordan of San Rafael, CA, for the intervenor. (Download the full text of this decision at www.ce9.uscourts.gov/) 17) LABOR LAW: East Bay Automotive Council v. NLRB, 04-74997 (9th Cir. Apr. 16, 2007). At issue here was whether to en-force an affirmative bargaining order issued by the National Labor Relations Board after nearly eight years of litigation involving an automotive dealer and a union in Oakland, California. The USCA rejected both the Union's and the Employer's arguments that the Board's remedy was either inadequate or inappropriate. It thus denied the petitioners for review and granted the Board's petition, enforcing the Board's order. Beezer, O'Scannlain (author), and Trott, Circuit Judges. R. Hulteng of San Francisco, CA, and D. Rosenfeld of Alameda, CA, for the petitioner-intervenor; D. Fleisher of Washington, DC, for the petitioner-respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 18) LABOR LAW / ARBITRATION: Ventress v. Japan Airlines, 04-17353 (9th Cir. Apr. 24, 2007). Ventress, a flight engineer, and Crawford, a pilot, sued Japan Airlines and other entities. They later appealed a judgment on the pleadings for JAL and its subsidiary, Jalways Company. The USCA reversed. Ventress separately challenged the district court's venue transfer order and an order compelling arbitration of his claims against Hawaii Aviation Contract Services. The USCA affirmed the venue transfer and dismissed Ventress' appeal of the arbitration order. Specifically, it held that the Friendship, Commerce, and Navigation Treaty, U.S.-Japan, April 2, 1953, does not preempt California's whistle blower protection laws. The USCA thus reversed the district court's judgment for JAL. It affirmed the order transferring the case to Hawaii and dismissed Ventress' appeal of the interlocutory arbitration order. It then remanded the case against JAL for further proceedings. Goodwin (author), Beezer, and Tallman, Circuit Judges. M. Ventress pro se; A. Pepper of Honolulu, HI, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 19) WRONGFUL TERMINATION / STOCK OPTIONS: Paolini v. Albertson's Inc., 03-35724 (9th Cir. Apr. 6, 2007). Paolini appealed the district court's grant of summary judgment to the defendants-Paolini's former employer Albertson's, Inc. and the Ad-ministrator of Albertson's, Inc.'s Stock-Based Incentive Plan (the "Plan Administrator"), (collectively "Albertson's"). During Paolini's 17 year employment at Albertson's he received several thousand stock options issued pursuant to Albertson's Amended and Restate 1995 Stock-Based Incentive Plan (the "Plan"). According to the Plan, a "change in Control" at the company accelerated the vesting of the stock options. Albertson's adopted new Corporate Governance Guidelines, and, pursuant to the Guidelines, the Board of Directors reduced its size. Six directors resigned in June 2001. That month Albertson's also announced a significant restructuring plan that was to include store closures, division consolidations, and process streamlining. Paolini communicated to the company that he believed that these changes amounted to a change in control. He thus attempted to exercise his stock options based on accelerated vesting, under Sec. 13(a) of the Plan. The Plan Administrator denied his request on the grounds that the events did not constitute a change in control as defined by the Plan. Soon after Paolini raised the issue of a change in control and the attendant accelerated vesting of stock options, he left his job at Albertson's. The parties disputed the factual circumstances of his departure. In 2002, Paolini initiated this suit, challenging the Plan Administrator's decision and alleging that he had been wrongfully terminated. Albertson's counterclaimed for monies due under a promissory note. The district court granted summary judgment for Albertson's. Paolini appealed, raising three issues. First, he argued that summary judgment was improper because material, disputed facts remained as to whether certain events which occurred in 2001 accelerated the vesting of certain stock options he possessed. Second, he maintained that the district court erred when it determined that, as a matter of law, he had not been wrongfully discharged. He argued that he was wrongfully terminated in violation of Idaho's wage laws, public policy, and the covenant of good faith and fair dealing. Finally, he argued that the district court erred in granting summary judgment to Albertson's on its counterclaim, holding that he owed Albertson's the principal and interest due on a promissory note that had been extended to him. Finding that these arguments all lacked merit, the USCA affirmed the district court's ruling. B. Fletcher (author) and Gould, Circuit Judges, and King, District Judge. B. Paolini, pro se; J. W. Sinclair of Boise, ID, for Albertson's, Inc. and the Plan Administration(Download the full text of this decision at www.ce9.uscourts.gov/) 20) EMPLOYMENT DISCRIMINATION: Detabali v. St. Luke's Hospital, 05-15591 (9th Cir. Apr. 16, 2007). Detabali appealed the district court's ruling that her California Fair Employment and Housing Act ("FEHA") claims for employment discrimination and retaliation against St. Luke's Hospital were preempted by Sec. 301 of the Labor Management Relations Act and its imposition of sanctions against her attorney, Charles Katz, for flouting the court's instructions regarding a possible second amended complaint. The USCA reversed the district court's dismissal of Detabali's FEHA claims and the imposition of sanctions against the attorney and remanded to the district court with instructions to remand the action to the San Francisco Superior Court. It held that the district court abused its discretion in imposing sanctions on Katz. His repleading of Detabali's FEHA claims preserved them for this appeal and the USCA decision showed the merits of his decision. The USCA said it would be perverse to uphold an award of sanctions against counsel for taking actions that ultimately preserved his clients' right to proceed with her case. Gould and Smith (author), Circuit Judges, and Covello, District Judge. C. Katz of Millbrae, CA, for the plaintiff-appellant; A. Hernaez of San Francisco, CA, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 21) EDUCATION LAW: Van Duyn v. Baker School District 5J, 05-35181 (9th Cir. Apr. 3, 2007). This case arose from the diffi-cult transition of Christopher Van Duyn, a severely autistic child, from elementary to middle school. Van Duyn alleged that Baker School District 5J failed to implement key provisions of his individualized educational program ("IEP") during the 2001-02 school year, his first year at Baker Middle School, thereby depriving him of the free appropriate public education guaranteed by the federal Individuals with Disabilities Education Act ("IDEA"), 20 USC Sec. 1400 et seq. An ALJ ruled that the School District failed to provide Van Duyn sufficient math instruction, but otherwise found that the District had adequately implemented the IEP. The district court affirmed that ALJ's decision in all respects and declined to award any attorney's fees to Van Duyn. Van Duyn argued that the ALJ and district court were much too forgiving of the School District's failures to provide him the special instructional and support services agreed to in the IEP. Accordingly, the USCA had to decide how much leeway a school district has in implementing an IEP as it translates the plan's provisions into action at school and in the classroom. The USCA held that when a school district does not perform exactly as called for by the IEP, its does not violate that IDEA unless it is shown to have materially failed to implement the child's IEP. A material failure occurs when the services provides to a disabled child fall significantly short of those required by the IEP. Applying this standard to the various implementation failures Van Duyn alleged, the USCA concluded that none of them were material (with the exception of the math instruction shortfall, which was later remedied in response to the ALJ's order), and that the School District therefore did not violate the IDEA. Because Van Duyn partially prevailed, however, the USCA held that Van Duyn, to that extent, was entitled to reasonable attorney's fees for the relevant work done at the administrative hearing level-though not for Van Duyn's mother, who as acted as one of his attorneys in these proceedings. The USCA thus affirmed in part and reversed in part the district court's judgment and remanded for further proceedings. Dissenting, Judge Ferguson would reverse the district court and hold that the School District's failure to fully implement the IEP, to which it expressly assented, violated the IDEA. Ferguson (dissenting), O'Scannlain, and Fisher (author), Circuit Judges. P. Van Duyn of Baker City, OR, for the plaintiff-appellant; R. Cohn-Lee of Oregon City, OR, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 22) EDUCATION LAW: Hood v. Encinitas Union School District, 04-57007 (9th Cir. Apr. 9, 2007). Anna Hood and her parents brought this claim alleging that the Encinitas Union School District violated the Individuals with Disabilities Education Act by refusing to provide Anna with special education services. They sought reimbursement for private school education that the Hoods obtained for Anna after withdrawing her from the public schools. A California special education hearing officer denied the Hoods relief, and the district court affirmed. On appeal, the Hoods offered two grounds under which Anna should be categorized as a child with a disability under 20 USC Sec. 1401(3) and thus entitled to special education. First, they argued that Anna has a "specific learning disability" because she exhibits a severe discrepancy between her achievement and intellectual ability in one or more of the academic areas enumerated in Cal. Educ. Code Sec. 56337 (2002), as calculated under the formula provided in Cal. Code Regs. Tit. 5, Sec. 3030(j)(4)(A) (2002), and that discrepancy can't be corrected through services offered within the regular instruction program. Second, they argued that Anna has "other health impairments" under 20 USC Sec. 1401(3)(A) and Cal. Code Regs. Tit. 5, Sec. 3030(f). The Hoods maintained that Anna, by reason of either her "specific learning disability" or "other health impairments," needs special education and related services. They sought to obtain reimbursement for the expenses they incurred for private school education, which commenced during Anna's fifth grade 2001-2002 school year following the school district's determination that Anna was ineligible for special education, as well as recoupment of fees and costs related to this action. After reviewing the evidence before the hearing officer and additional evidence submitted to the district court, the USCA found that the district court's acceptance of the hearing officer's determination that Anna was not legally entitled to receive publically-funded special education was not clear error. It thus affirmed. Kennedy (author), Hall, and Hawkins, Circuit Judges. E. Freedus of San Diego, CA, for the plaintiffs-appellants; P. Carelli of San Diego, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 23) ELECTION LAW: Gonzalez v. Yes on Proposition 200, 06-16521 (9th Cir. Apr. 20, 2007). Proposition 200 was enacted pursuant to Arizona voter initiative in 2004. It amended Arizona law to require that persons wishing to register to vote for the first time in Arizona present proof of citizenship, and to require all Arizona voters to present identification when they vote in person at the polls. The plaintiffs, Indian tribes and various community organizations, filed their complaint in May 2006, seeking an injunction, pending trial, against the operation of both the registration and voting provisions of the Proposition. On September 11, 2006, the district court denied a preliminary injunction. The plaintiffs appealed this denial with respect only to the voter registration requirement. The USCA held that the district court did not abuse its discretion in denying injunctive relief with respect to this requirement because the limited record on appeal did not establish that the balance of hardships and likelihood of success on the merits of plaintiffs' claims justify an injunction at this state of the proceedings. The litigation remains pending in the district court. There, final resolution of the scope of any appropriate permanent relief can be determined on the basis of a fully developed record, and well before the next general election in 2008. Schroeder (author) and Noonan, Circuit Judges, and Schiavelli, District Judge. J. Spector of Lakewood, CO, for the defendant-intervenor; N. Perales of San Antonio, TX, for the plaintiffs-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 24) INTERNATIONAL CHILD ABDUCTION: Papakosmas v. Papakosmas,
05-55211 (9th Cir. Apr. 16, 2007). At issue here was whether the children
of Dimitris and Yvette Papakosmas were habitual residents of Greece
within the meaning of the Hague Conven-tion on the Civil Aspects of
International Child Abduction and thus wrongfully removed from Greece
to the United States by their mother. The USCA agreed with the district
court that there was no shared settled intention on the part of the
parents to shift their children's habitual residence to Greece. It also
agreed that the four-month period spent by the children in Greece was
insufficient to acclimatize them to that country. It thus concluded
that on the date of the children's removal from Greece, their habitual
residence remained in California and their mother's removal of them
from Greece was not wrongful within the meaning of the Hague Convention
and International Child Abduction Remedies Act. O'Scannlain, (author),
Leavy, and Callahan, Circuit Judges. A. Dyer of Austin, TX, for the
plaintiff-appellant; E. Briceno-Velasco of Arcadia, CA, for the defendant-appellee.
(Download
the full text of this decision at www.ce9.uscourts.gov/)
26) SEARCH & SEIZURE: USA v. Heckenkamp, 05-10322 (9th Cir. Apr. 5, 2007). At issue here was whether a remote search of files on a hard drive by a network administrator was justified under the "special needs" exception to the Fourth Amendment because the administrator reasonably believed that the computer had been used to gain unauthorized access to confidential records on a university computer. The USCA concluded that the remote search was justified. Although it assumed that the subsequent search of the suspect's dorm room was not justified under the Fourth Amendment, the USCA concluded that the district court's denial of the suppression motion was proper under the independent source exception to the exclusionary rule. Canby, Hawkins, and Thomas (author), Circuit Judges. B. Coleman of San Diego, CA, for the appellant; AUSA H. Crew of San Francisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 27) BORDER SEARCHES: USA v. Heredia, 03-10585 (9th Cir. Apr. 2, 2007). Sitting en banc, the USCA here revisited USA v. Jewell, 532 F.2d 697 (9th Cir. 1976) (en banc), and the caselaw applying it. The USCA declined to overrule Jewell and held that district judges are owed the usual degree of deference in deciding when a deliberate ignorance instruction is warranted. While the particular form of the instruction can vary, it must, at a minimum, contain the two prongs of suspicion and deliberate avoidance. The district judge may say more, if he deems it advisable to do so, or deny the instruction altogether. Moreover, the USCA held it will review such decision for abuse of discretion. Finally, the instruction given at the defendant's trial below met these requirements, and the district judge did not abuse his discretion in issuing it. Concurring in the result, Judge Kleinfeld thought that because the evidence justified a willful blindness instruction and the instruction's form (to which no objection was made below) was not plainly erroneous, he would affirm Heredia's conviction. But, he thought the majority erred in concluding that motivation to avoid criminal responsibility need not be an element of a willful blindness instruction. Judge Graber, joined by Judges Pregerson, Thomas, and Paez, dissented. As-suming the Jewell instruction to be proper, she agreed with the majority that the standard by which to review a district court's decision to give one is "abuse of discretion" in light of the evidence at trial. But as a matter of statutory construction, she believed that the Jewell instruction is not proper because it misconstrues and misleads the jury about, the mens rea required by 21 USC Sec. 841(a)(1). Because the legal error of giving a Jewell instruction in this case was not harmless beyond a reasonable doubt, Judge Graber dissented. Schroeder, Pregerson, Kozinski (author), Rymer, Kleinfeld (concurring), Hawkins, Thomas, Silverman, Graber (dissenting), McKeown, Paez, Tallman, Clifton, Callahan, and Bea, Circuit Judges. W. Day of Tucson, AZ, for the defendant; AUSA C. Cabanillas of Tucson, AZ, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 28) EVIDENCE: USA v. Moran, 05-30215 (9th Cir. Apr. 2, 2007). The Morans appealed their convictions of conspiracy to defraud the United States, conspiracy to commit wire and mail fraud, aiding and assisting in the preparation and filing of false federal income tax returns, mail fraud, and wire fraud. They maintained that the district court erred (1) by allowing expert testimony that certain financial transactions were "shams," (2) by giving allegedly improper Pinkerton instructions to the jury, by admitting codefendant Anderson's computer records as coconspirator statements, and (4) by excluding Mrs. Moran's testimony regarding outside expert opinions she had received about the legality of the Morans' tax schemes. The USCA found no error in allowing the expert testimony, admitting the computer records, or in the jury instructions. However, because the district court erroneously excluded Mrs. Moran's testimony as hearsay and did not provide a reasoned basis for excluding it under Fed. R. of Evidence 403, and because this testimony would have comprised a critical element of the Morans' good faith defense, the USCA reversed and remanded for a new trial. B. Fletcher and McKeown, Circuit Judges, and Schwarzer, District Judge. Per Curiam. S. McCloud of Seattle, WA, for the defendants-appellants; G. Davis of Washington, DC, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 29) SPEEDY TRIAL RIGHTS: USA v. King, 05-10629 (9th Cir. Apr. 18, 2007). At issue here was whether a defendant's right to a speedy trial under either the Speedy Trial Act or the Sixth Amendment was violated. The case arose out of the investigation of a bank fraud and identitytheft conspiracy. From June 2002 until May, King conspired with numerous individuals to obtain stolen financial information from bank insiders. He used that information to create fraudulent checks drawn on actual accounts for distribution to his co-conspirators, who cashed the fake checks and returned most of the money to King. On May 8, 2003, a grand jury indicted King and two co-conspirators for multiple counts of conspiracy and bank fraud. On December 2, 2003, the government filed a first superseding indictment which changed King with an additional 12 counts of bank fraud and added a new co-defendant, King's roommate Shandy. Throughout 2004, the district court granted numerous exclusions of time and continuances, including exclusions related to pretrial motions filed by King. On December 16, 2004, the government filed a second superseding indictment which added no new charges but eliminated reference to King's roommate Shandy. On January 19, 2005, King moved to dismiss the indictment on Speedy Trial Act grounds. That motion was denied. The USCA affirmed, holding that the district court did not err in refusing to dismiss the indictment on Sixth Amendment speedy trial grounds. There was nothing to suggest that the delay of some seven months in adding Shandy was unreasonable. This case involved a complex scheme of bank fraud, and the government's case was in flux during those seven months. A number of co-conspirators, and both original co-defendants, chose to plead guilty in the period between the original and first superseding indictment. Moreover, contrary to King's assertions, it was not a foregone conclusion that Shandy would plead guilty instead of proceeding to trial. Beezer, O'Scannlain (author), and Trott, Circuit Judges. J. Greiner of Sacramento, CA, for the defendant-appellant; AUSA M. Rodriguez of Sacramento, CA, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 30) SENTENCING: USA v. Leonard, 06-30127 (9th Cir. Apr. 18, 2007). At issue here was whether, following the defendant's viola-tions of the conditions of his supervised release, a district court may impose a sentence above the advisory range set forth in the Sen-tencing Guidelines, without giving advance notice of the possibility of a sentence outside the Guidelines range. The USCA held that advance notice is not required and affirmed the sentence imposed. The district court was sufficiently specific in explaining why it imposed its above-Guidelines sentence. Farris, Clifton (author), and Bea, Circuit Judges. AFPD G. Needham of Portland, OR, for the appellant; AUSA K. Immergut of Portland, OR, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 31) SENTENCING: USA v. Snellenberger, 06-50169 (9th Cir. Apr. 3, 2007). This case presented the issue of whether a minute or-der, coupled with a charging document, may be sufficient under Shepard v. USA, 544 US 13 (2005), to establish a prior crime of vio-lence for purposes of sentence enhancement. The USCA previously noted that a minute order is "not a judicial record that can be relied upon" to establish the nature of a prior conviction. USA v. Diaz-Argueta, 447 F.3d 1167, 1169 (9th Cir. 2006). It now explicitly held so. Ferguson (author), Siler, and Hawkins (concurring), Circuit Judges. DFPD G. Ivens of Los Angeles, CA, for the defendant-appellant; AUSA A. Gannon of Santa Ana, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 32) SENTENCING: USA v. Olmos-Esparza, 06-50276 (9th Cir. Apr. 24, 2007). Olmos-Esparza, convicted of illegal reentry follow-ing deportation, appealed his sentence on remand following a full post-Booker resentencing. On an issue of first impression in the Ninth Circuit, he argued that the district court erred by considering his convictions from 1972 and 1976 in calculating sentencing enhancements under Sec. 2L1.2 of the 2003 Sentencing Guidelines. The USCA joined the Tenth and Eleventh Circuits in holding that this section contains no time limitation on the age of conviction for purposes of calculating sentencing enhancements. T.G. Nelson, Siler, and Hawkins (author), Circuit Judges. J. Fife of San Diego, CA, for the defendant; AUSA M. Jennings of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 33) HABEAS CORPUS: Nunes v. Ramirez-Palmer, 06-16100 (9th Cir. Apr. 27, 2007). This is an appeal from the district court's order denying a petition for a writ of habeas corpus. The appeal was brought pursuant to 28 USC Sec. 2253. The petitioner maintained that the district court erred when it rejected his assertions that he was charged and sentenced under California's recidivist statute in violation of the Fifth, Eighth, and Fourteenth Amendments of the U.S. Constitution. At issue were: (1) whether the state appellate court's ruling upholding the constitutionality of the petitioner's sentence was the result of an unreasonable application of clearly established federal law; (2) whether the state appellate court's ruling upholding the constitutionality of the sentence was based on an unreasonable determination of the facts; (3) whether it was objectively reasonable for the state appellate court to reject the petitioner's claim of prosecutorial vindictiveness; and (4) whether it was objectively reasonable for the state appellate court to reject the petitioner's claim that the state trial court violated the Fourteenth Amendment when it denied his motion to strike his prior convictions at sentencing. The USCA affirmed the district court's decision. Gould and Smith, Circuit Judges, and Covello (author), District Judges. S. Luban of Oakland, CA, for the petitioner; AAG M.J. Graves of Sacramento, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 34) RESTITUTION: Quarles v. Kane, 06-16308 (9th Cir. Apr. 6, 2007). Quarles, a California state prisoner, appealed pro se the dismissal of his 42 USC Sec. 1983 action, for failure to state a claim. He maintained that his plea agreement and his constitutional rights were violated when, pursuant to a post-conviction amendment to Cal. Penal Code Sec. 2085.5, the amount of restitution payments deductible from his prison wages was increased to a maximum of 50% of the wages, and restitution payments were made deductible from trust accounts as well as from wages. The USCA affirmed. The amendment to Sec. 2085.5 did not increase the amount of restitution, but rather increased the permissible rate at which restitution payments may be collected. This amendment did not violate the Ex Post Facto Clause because it did not impose additional punishment on Quarles. Kozinski, Leavy, and Bybee, Circuit Judges. Per Curiam. A. Quarles per se.(Download the full text of this decision at www.ce9.uscourts.gov/) 35) HABEAS CORPUS: USA v. Thrasher, 05-35929 (9th
Cir. Apr. 18, 2007). In April 1997, Carlson was driving a vehicle in
Gresham, Oregon. Thrasher was in the passenger seat. Officer Durbin
stopped the car after observing several traffic violations. When Carlson
admitted that she had recently used methamphetamine, Durbin arrested
her for being under the influence of an intoxicant and placed her in
his police car. Durbin then informed Thrasher that he intended to impound
the car. Thrasher showed Durbin a driver's license, which falsely indicated
that his name was "Trevor Shaw." Durbin told Thrasher that
he was free to go. When Durbin then searched the car, he discovered
a briefcase containing a loaded .380 caliber semi-automatic pistol.
Carlson first denied knowing anything about it, but later at the police
station said she knew the gun was in the briefcase and knew who the
briefcase belonged to. Thrasher was apprehended and indicted for being
a felon in possession of a firearm in violation of 18 USC Sec. 922(g)(1).
Following trial, Thrasher appealed the district court's denial of his
28 USC Sec. 2255 petition without holding an evidentiary hearing. On
an earlier appeal, the USCA held that in the absence of any "record
evidence upon which Thrasher's credibility could be determined,"
remand was necessary "for a hearing to resolve a critical disputed
fact: whether Scarlett told Storkel that she was going to testify unfavorably
to Thrasher. "This factual dispute," the USCA said, was "central
to the reasonableness of Storkel's decision not to call Scarlett."
On remand, the district court held an evidentiary hearing at which Scarlett,
Odom, and Storkel, among others, testified. The district court rejected
Thrasher's argument based on an ATF report that "Storkel should
have known that Scarlett might change her testimony, and that Storkel
should have verified Scarlett's testimony before mentioning her during
his opening argument." The USCA affirmed. First, the district court
had subject matter jurisdiction over Thrasher's arguments. In this Circuit,
if a district court errs by violating the rule of mandate, the error
is jurisdictional. Second, the USCA's limited remand dealt with Storkel's
mid-trial decision not to call Scarlett as a witness. The district court
held that this did not constitute ineffective assistance of counsel.
Thrasher did not challenge this determination on appeal, and the USCA
affirmed. However, the district court refused to rule on whether Storkel's
opening statement identifying Scarlett as a witness constituted ineffective
assistance of counsel. It determined that the USCA's mandate deprived
it of the authority to consider the merits of this argument. The USCA
held that the district court did not err by refusing to consider the
merits of Thrasher's ineffective assistance of trial counsel argument
based on the AFT report. The USCA had remanded for a single purpose:
to determine whether Scarlett told Storkel that she was going to testify
unfavorably to Thrasher. The plain language of the disposition precluded
the district court from considering any other argument concerning Storkel's
effectiveness. Concurring, Judge Berzon agreed with the majority that
the law of the case exceptions do not apply to the rule of the mandate.
She also agreed, under compulsion of Circuit precedent, that the rule
of mandate is in some sense jurisdictional. But, although this case
did not raise the issue, she thought that there are very limited circumstances
in which the district court may not be required to follow the directions
given in the USCA's mandate. Wallace (author), Gould, and Berzon
(concurring), Circuit Judges. P. Olson of Portland, OR, for the
defendant-appellant; AUSA G. Sussman of Portland, OR, for the plaintiff-appellee.
(Download
the full text of this decision at www.ce9.uscourts.gov/)
37) HABEAS CORPUS: Brazzel v. Washington, 05-36145 (9th Cir. Apr. 12, 2007). In this 28 USC Sec. 2254 habeas appeal, Brazzel challenged, as a violation of the Double Jeopardy Clause, his retrial on an attempted murder charge, after his first jury remained silent on that charge, and convicted him of a lesser alternative offense. In time, two different juries convicted him of that lesser offense, first degree assault, and both failed to reach the alternate and more serious charge of attempted murder. The USCA based its analysis on two cases. First, Green v. USA, 355 US 184 (1957), explained that when a jury convicts on a lesser alternate charge and fails to reach a verdict on the greater charge-without announcing any splits or divisions and having had a full and fair opportunity to do so-the jury's silence on the second charge is an implied acquittal. A verdict of implied acquittal is final and bars a subsequent prosecution for the same offense. Second, under Price v. Georgia, 398 US 323 (1970), putting the defendant in jeopardy a second time is not necessarily harmless error or moot, even if the defendant is only convicted of the lesser crime, because the Double Jeopardy Clause is "cast in terms of the risk of hazard of trial and conviction, not the ultimate legal consequences of the verdict." Although the Washington Court of Appeals assumed that the lack of a verdict on the attempted murder charge following Brazzel's first trial was an implied acquittal, the state court grounded its denial of Brazzel's double jeopardy claim in a mootness or harmless error analysis in contravention of Price. Accordingly, because the decision was contrary to clearly established U.S. Supreme Court precedent, the USCA reversed with instructions to grant habeas corpus. As did the Court in Price, the USCA remanded to enable the Washington courts "to resolve the issues pertaining to petitioner's retrial, if any such retrial is to be had." Id. at 332. B. Fletcher and McKeown, Circuit Judges, and Schwarzer, District Judge. R. Leonard of Tacoma, WA, for the appellant; G. Rosen of Olympia, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) MEMORANDA
Unpublished decisions may not be cited to or by the courts of this circuit except when relevant under the Doctrine of Law of the Case, Res Judicata, or Collateral Estoppel. Rule 36-3
2) BANKRUPTCY / JURISDICTI0N: In re Poplin, 05-16048
(9th Cir. Apr. 20, 2007) (unpublished). Reinhardt, Noonan, and
Smith, Circuit Judges. Solomon appealed directly from the district court's order affirming in part and remanding in part a bankruptcy court's order dismissing his complaint served one business day after the expiration of the time provided by Fed. R. Civ. Proc. 4(m). The USCA dismissed for lack of jurisdiction. Under 28 USC Sec. 158(d), it lacks jurisdiction to hear interlocutory appeals in bankruptcy cases. In re City of Desert Hot Springs, 339 F.3d 782, 787 (9th Cir. 2003). Here, the district court's order was not final; the Trustee appealed the district court's order before the bankruptcy court could make the requisite determinations on the remanded issues. 3) BANKRUPTCY / SANCTIONS: In re Lawrence, 05-35442 (9th
Cir. Apr. 23, 2007) (unpublished). Gould, Paez, and Rawlinson,
Circuit Judges. The appellants, Larry and Ann Lawrence, filed a motion for sanctions under 11 USC Sec. 362(h) (2004) in the U.S. Bankruptcy Court for the District of Idaho against Butler & Looney, P.C. They also filed an adversarial complaint against Harold Looney and Butler & Looney pursuant to 11 USC Secs. 523, 524, and 727. The bankruptcy court denied the Sec. 362(h) motion and dismissed the adversarial complaint. The district court affirmed. Pursuant to its jurisdiction over the Lawrences timely appeal under 28 USC Secs. 158(d) and 1291, the USCA affirmed. The Lawrences' motion for sanctions under Sec. 362(h) alleged that Butler & Looney violated the automatic stay effected by their filing for chapter 7 bankruptcy on April 4, 2002 by filing for foreclosure against Larry Lawrence's co-defendant in a separate state court proceeding, and by recording it assignment of interest in the Lawrences' real property. To prevail on their motion, the Lawrences had to prove actual damages. Because they failed to do so, the bankruptcy court correctly denied their motion on the merits. The Lawrences adversarial complaint alleged that Harold Looney and Looney & Butler violated the permanent injunction imposed under Sec. 524 upon the entry of the bankruptcy court's discharge order in their chapter 7 case by continuing its foreclosure action against them in state court. They argued that the Anderson judgment was an unsecured claim that had been permanently discharged in 2002. (Butler & Looney had previously acquired Lynette Anderson's interest in a $70,070 judgment against the Lawrences.) The bankruptcy court dismissed the complaint on three independent grounds: waiver, judicial estoppel, and laches. The Lawrences failed to challenge the bankruptcy court's waiver determination in their opening and reply briefs; an objection to that ground for dismissal was thus waived. The USCA thus affirmed the district court judgment on this ground alone. The appellees' motion to strike the Lawrences pro se Reply Brief and supporting exhibit was denied as moot. 4) BANKRUPTCY: In re Kyle, 04-56925 (9th Cir. Apr. 23,
2007) (unpublished). Graber, Clifton, and Bea, Circuit Judges. 5) BANKRUPTCY: In re Kyle, 05-55566 (9th Cir.
Apr. 18, 2007) (unpublished). Canby and Silverman, Circuit Judges,
and Jones, District Judge. Irving appealed a BAP decision affirming the dismissal of his adversary complaint seeking to prevent the sale of a parcel of real estate belonging to the debtor. Irving's attorney, David Kyle, appealed the BAP's decision affirming the award of sanctions against him for violating Bankr. R. Proc. 9011. The USCA affirmed. Before the sale, the bankruptcy court ruled that the property in dispute was part of the debtor's bankruptcy estate and that Carolyn Dye, the Chapter 7 Trustee, satisfied all the requirements in 11 USC Sec. 363. Irving challenged that ruling on appeal, but failed to obtain a stay pending appeal. That was fatal to his efforts to cancel the original quitclaim deed to the debtor-once the property was sold to a good faith purchaser, Irving's appeal became moot. In re Nat'l Mass Media Telecommutation System, 152 F.3d 1178, 1181 (9th Cir. 1998) (failure to obtain stay from order permitting sale of debtor's assets moots an appellant's case pursuant to the "bankruptcy mootness rule"). The ruling the property was part of the bankruptcy estate became the law of the case. And since Irving's adversary complaint merely contested the debtor's ownership interest in the property, it was moot as well. Moreover, at the hearing on Dye's motion for an order authorizing the sale, Irving had a full and fair opportunity to make out his case-including arguments that Dye improperly secured the transfer of title from the Cinderella Living Trust back to the debtor and that an order approving the sale would conflict with prior state court adjudications concerning the property. Irving's due process arguments thus were without merit. The bankruptcy court did not abuse its discretion in sanctioning Kyle. In re Deville, 361 F.3d 539 (9th Cir. 2004) (award of sanctions reviewed for abuse of discretion). The record supported the conclusion that Kyle, who was also the debtor's husband, filed an adversary complaint on behalf of Irving to improperly delay Dye's sale of the property. In re Silberkraus, 336 F.3d 864 (9th Cir. 2003) (in determining whether sanctions are appropriate under Rule 9011(c), a bankruptcy court considers both the frivolousness and improper purpose of the pleading). Initially, the debtor showed ownership and control over the property by transferring her interest to the Cinderella Living Trust pre-bankruptcy. Before October 2003, the debtor and Kyle filed numerous papers with the bankruptcy court asserting her ownership of the property. In particular, the debtor sought a $125,000 homestead exemption, which was amended and subsequently approved, and then moved to compel Dye to abandon the property. When it became apparent that Dye could sell the property for a surplus, however, the debtor and Kyle reversed course and began asserting the position that her deceased aunt's estate was the true owner. Indeed, Kyle pursued this course despite the fact that no heirs had ever questioned the debtor's legal and equitable title to the property in the 12 years since the quitclaim conveyance. In addition, Kyle failed to obtain leave of the court before amending his complaint, and included Dye's law firm and the court-approved real estate broker as defendants even though Irving lacked standing as to them. That, the USCA concluded, was enough to uphold sanctions. 6) BANKRUPTCY / SANCTIONS: In re Brown, 05-15607 (9th
Cir. Apr. 26, 2007) (unpublished). Reinhardt, Rymer, and Silverman,
Circuit Judges. Ronald Ellett of the Ellett Law Officers, P.C., appealed a district court's order affirming the bankruptcy court's award of sanctions for violation of Bankr. R. Proc. 9011. The USCA reversed. In a separate opinion contemporaneous with this Memorandum [see published opinion #5 above], the USCA reversed the district court's ruling that it lacked jurisdiction over the bankruptcy court's ruling on the cross-motions for summary judgment. On remand, the district court will be first to decide the correctness of those rulings, but regardless, the imposition of sanctions against Ellett and his firm was erroneous. There was no dispute that the trustee's sale occurred after the bankruptcy stay was in place and that the sale did not get completely unwound until after Ellett, on Brown's behalf, sued Wilshire Credit Corporation violating the automatic stay: Brown's lawsuit was filed before all steps had been taken to unwind the sale, and may have succeeded in prodding Wilshire into promptly finishing the unwinding. Even if Brown's suit for damages for willful violation of the stay turns out to be a loser, it was not frivolous. 7) BANKRUPTCY: In re Wiersma, 05-35246 (9th Cir. Apr. 6, 2007) (unpublished). Ferguson, O'Scannlain, and Fisher, Circuit Judges. This disposition resolves the issues remaining in the Chapter 11 bankruptcy case of the Wiersmas (the "debtors") following the USCA's published opinion on the jurisdictional issue in In re Wiersma, 0535246 (9th Cir. Apr. 6, 2007) [See published opinion #6 above.] Because the debtors' appeal of the Secured Status Order was untimely, the USCA lacked jurisdiction to review it. However, it did addressed the debtors' remaining claims. First, the debtors argued that the bankruptcy court's Order Approving Settlement should be invalidated because the court erred when it approved the Gietzen settlement for cash. They claimed that the parties had discussed a settlement for cows instead. The USCA could not reach that issue because the settlement had already been agreed to by the parties, submitted to and approved by the bankruptcy court, and fully consummated. The bankruptcy court stated: "It appears that Gietzen set-tlement has now been completely consummated and effected. … Gietzen Electric and its insurers have, as far the Curt understands, paid the full amount of the settlement monies and those funds have been distributed to the debtors. I think under these circumstances it would be clearly inappropriate at this time to attempt to undo that settlement." The debtors provided no evidence that these conclusions regarding the administration of the settlement were clearly erroneous. The USCA thus adopted them and agreed with the bankruptcy court and the BAP that there was no longer any meaningful relief to be had. Moreover, because the bankruptcy case as a whole was properly dismissed, the bankruptcy court's approval of the settlement was moot. Second, the requirements for confirmed of a pr-posed plan of reorganization are set forth in 11 USC Sec. 1129 (2006) and two of these requirements are relevant here: The feasibility requirement of Sec. 1129(a)(11) and the indubitable equivalence requirement of Sec. 1129(b)(2)(A). Under Sec. 1129(a)(11), the bankruptcy court shall confirm a plan only if "confirmation of the plan is not likely to be followed by the liquidation, or the need for further financial reorganization, of the debtor or any successor to the debtor under the plan, unless such liquidation or reorganization is proposed in the plan." This section requires a determination regarding the feasibility of the plan. The proponents of a Chapter 11 plan must show that the plan "has a reasonable probability of success," and is more than a "visionary scheme." However, "the prospect of financial uncertainty does not defeat plan confirmation on feasibility grounds since a guarantee of the future is not required. The mere potential for failure of the plan is insufficient to disprove feasibility." Mutual Life Ins. Co. v. Patrician St. Joseph Partners, Ltd. P'ship (In re Patrician St Joseph Partners Ltd. P'ship), 169 B.R. 669, 674 (D. Ariz. 1994). Here, the debtors proposed their Second Amended Plan for confirmation in November 2002. The plan involved purchasing cows in Georgia, where the debtors would move and then lease an operating dairy for $10,000 per month. They presented the testimony of Bob Matlick, a financial consultant for dairy clients in the Western United States. He testified about the specifics of dairy operations and economics in the Western and Southeastern United States. Nevertheless, the bankruptcy court was left with serious doubts about the plan's feasibility. It raised a host of concerns related to the fact that the new operation differed from the debtors' prior dairy in "obvious" and "significant" ways. The debtors' Idaho dairy produced milk to be processed as cheese, whereas their proposed Georgia dairy would have sold liquid milk for direct consumption, a difference that "impacts the market price they will receive for their milk significantly. The court also recognized relevant climatic differences between the regions: Idaho is cold and dry, while Georgia is warm and wet. The debtors lacked experience running a dairy in the southern climate and market. As a result, the debtors predictions of success were highly speculative. As the bankruptcy court noted, "based upon the Court's years of experience with agricultural reorganizations, and in light of the evidence submitted at the hearing, the court would remind the parties of what should be obvious: that farming in general, and the dairy business in particular, is predictably unpredictable." Given the bankruptcy court's extensive hearings regarding feasibility and its reasoned conclusion that the Second Amended Plan did not have "a reasonable probability of success," the USCA could not say it is left with "the definite and firm conviction that a mistake has been committed." Latman v. Burdette, 366 F.3d 774, 781 (9th Cir. 2004). Section 1129 limits when a court may confirm a plan without the consent of creditors. A nonconsensual plan may be confirmed "if the plan does not discriminate unfairly, and is fair and equitably, with respect to each class of claims or interest that is impaired under, and has not accepted, the plan." 11 USC Sec. 1129(b)(1). A plan is "fair and equitable" if, with respect to a class of secured claims, it provides, inter alia, "for the realization of such holders of the indubitable equivalent of such claims." Sec. 1129(b)(2)(A)(iii). In more basic terms, if a reorganization plan is to bind an unconsenting creditor, the creditor should hold at least the same value of claims under the plan as it would hold without the plan: an "indubitable equivalence." Here, the Bank did not consent to the Second Amended Plan. To "cramdown" the plan, then, the debtors needed to show that the plan gave the Bank the indubitable equivalent of its present claim to the proceeds of the Gietzen lawsuit. 8) TAX EVASION / SUMMONS: Schulz v. USA, 05-17388 (9th
Cir. Apr. 27, 2007) (unpublished). Graber, Clifton, and Bea,
Cir-cuit Judges. Schulz appealed pro se from the district court's denial of his petition to quash a third party summons in connection with a investigation of his internet tax evasion scheme. The district court's decision to enforce an IRS summons will not be disturbed unless its findings that the summons had been issued for a proper purpose was clearly erroneous. Ponsford v. USA, 771 F.2d 1305, 1307 (9th Cir. 1985). The district court's denial of a motion to reconsider is reviewed for abuse of discretion. Sch. Dist. No. 1j, Multnomah County v. ACandS, 5 F.3d 1255, 1262 (9th Cir. 1993). The USCA affirmed. The district court's ruling upholding the summons was not clearly erroneous. The IRS submitted a declaration establishing a prima facie case that the summons was issued in good faith as part of a legitimate investigation concerning Schultz's tax liabilities and his role in assisting others in evading federal income tax law. Fortney v. USA, 59 F.3d 117, 119-20 (9th Cir. 1995). The district court did not err in finding that Schulz failed to meet his burden of proving that the investigation was motivated by bad faith. Id. at 120 ("Once a prima facie case is made a heavy burden is placed on the taxpayer to show an abuse of process or the lack of institutional good faith.") The district court did not abuse its discretion by denying Schulz's motion for reconsideration because he re-argued issues already raised and rejected and did not establish any grounds for relief. ACandS, Inc., 5 F.3d at 1263. 9) TAXATION: Bell v. CIR, 06-72755 (9th Cir. Apr.
23, 2007) (unpublished). O'Scannlain, Graber, and Bea, Circuit
Judges. 10) TAXATION / DEFICIENCY ASSESSMENTS: Davenport v. CIR,
06-73263 (9th Cir. Apr. 23, 2007) (unpublished). O'Scannlain,
Graber, and Bea, Circuit Judges. Davenport appealed pro se a Tax Court order denying his motion
to vacate its denial of his petition for redetermination of federal
income taxes owed for tax year 2000. The USCA affirmed. To the extent
the Davenport maintained that there was no valid authority for the CIR
to assess federal income taxes, the USCA summarily rejected such arguments.
In re Becraft, 885 F.2d 547 (9th Cir. 1989) (commenting on the frivolity
of arguments challenging the application of the federal income tax laws
to U.S. citizens). Also frivolous was Davenport's contention that IRS
agents acted without proper authority from the Secretary of the Treasury.
Hughes v. USA, 953 F.2d 531 (9th Cir. 1992). Davenport's due
process rights were not violated during the Tax Court proceedings. Kanto
v. CIR, 998 F.2d 1514 (9th Cir. 1993) (court does not look past
notice of deficiency to question the CIR's motives). The Tax Court properly
upheld the CIR's deficiency assessment based on evidence of Davenport's
receipt of income, and he failed to proffer timely evidence challenging
that determination or supporting his claim of a capital loss. Rockwell
v. CIR, 512 F.2d 882 (9th Cir. 1975) (burden of proof on taxpayer
to show the merits of his claim by a preponderance of the evidence).
The fact that Davenport appeared pro se did not excuse his failure to
comply with the Tax Court's orders and rules. Carter v. CIR,
784 F.2d 1006 (9th Cir. 1986). Ramos appeals pro se the district court's dismissal following denial of his motion to file an amended complaint in his action against the United States challenging levies against him by the IRS. He alleged due process violations in the levy procedure and sought damages under 26 USC Sec. 7433 and sought to quiet title under 28 USC Sec. 2410. The USCA affirmed. To the extent Ramos sought damages from the United States for allegedly violating his constitutional rights, his claim was barred by sovereign immunity. Pereira v. U.S. Postal Service, 964 F.2d 873 (9th Cir. 1992). The district court also properly dismissed his claim for damages for alleged tortuous acts by IRS employees on the ground that Congress has established a comprehensive statutory scheme for seeking redress in federal tax matters, which Ramos did not follow. 26 USC Sec. 7433; Adams v. Johnson, 355 F.3d 1179 (9th Cir. 2004). He also could not use quiet title statutes to collaterally attack the merits of an IRS deficiency assessment. Hughes v. USA, 953 F.2d 531 (9th Cir. 1992). To the extent he argued that federal income tax law violates the Constitution, the USCA summary reject his arguments. In re Becraft, 885 F.2d 547 (9th Cir. 1989) (commenting on the frivolity of arguments that challenge the application of the federal income tax laws to U.S. citizens). 12) AGE DISCRIMINATION: Siddiqui v. AG Communications Systems
Corporation, 05-15119 (9th Cir. Apr. 26, 2007) (unpublished).
Skopil, Farris, and Ferguson, Circuit Judges. After Siddiqui was discharged from his job at AG Communications System Corporation ("AGCS"), he filed this action, claiming that AGCS violated the Age Discrimination in Employment Act ("ADEA"), the Americans with Disabilities Act ("ADA"), the Equal Employer Opportunity Act, the Family and Medical Leave Act ("FMLA"), the Fair Labor Standards Act ("FLSA"), the Civil Rights Act of 1964, 42 USC Sec. 1981, and various state statutory and common law doctrines, including intentional interference with contractual relations, intentional and/or negligent infliction of emotional distress, slander, liable, blacklisting, breach of the implied covenant of good faith and fair dealing, and breach of contract. The district court ruled that some of Siddiqui's claims were barred and granted summary judgment on the remaining claims when Siddiqui failed to oppose AGCS's motion. It then denied his request for reconsideration and granted AGCS's motions for sanctions and partial attorneys' fees. The USCA affirmed. The district court determined that some of Siddiqui's federal claims were time-barred because the discrete acts alleged in support of those claims occurred more than 300 days prior to his filing his EEOC discrimination charge. The Supreme Court held that 42 USC Sec. 2000e-5(e)(1) (providing time limitations for filing of EEOC charges) "precludes recovery for discrete acts of discrimination or retaliation that occur outside the statutory time period." National RR Passenger Corp. v. Morgan, 536 US 101, 105 (2002). Discrete acts "such as termination, failure to promote, denial of transfer, or refusal to hire" are actionable only if they take place within the timely filing period. Thus, Siddiqui's discrimination claims based on discrete events alleged to have occurred outside the statutory time period were barred. Porter v. California Dept. of Corrections, 419 F.3d 885, 891-92 (9th Cir. 2005) The district court barred Siddiqui's claim of racial discrimination on the basis that he refused to allege his race. Rather, he claimed to be a "Muslim-American … of Pakistani national-origin." In a Sec. 1981 action, there must be an allegation "that plaintiff suffered discrimination on the basis of race." Parks Sch. Of Bus. Inc. v. Symington, 51 F.3d 1480, 1487 (9th Cir. 1995); London v. Coopers & Lybrand, 644 F.2d 811, 818 n.4 (9th Cir. 1981) (noting that Sec. 1981 requires an allegation that plaintiff "is a member of a distinct racial minority"). An allegation of the discrimination on the basis of "ethnic characteristics" may qualify as racial discrimination under Sec. 1981, but the defendant disputed whether Siddiqui's allegations were sufficient. The USCA concluded that it did not need to decide the issue in this case. Notwithstanding the district court's ruling on the alleged failure to state a race, Siddiqui filed an amended complaint that again alleged racial discrimination under Sec. 1981. Summary judgment was correctly granted on all discrimination claims. With respect to Siddiqui's Sec. 1981 claim, the USCA noted in particular that he failed to raise a triable issue of fact regarding the defendant's alleged intent to discriminate. The district court granted summary judgment on Siddiqui's remaining claims when he failed to oppose AGCS's motion. It did so only after concluding that AGCS's motion had merit. Martinez v. Stanford, 323 F.3d 1178, 1182 (9th Cir. 2003) (noting nonmoving party's failure to oppose summary judgment "does not excuse the moving party's affirmative duty … to demonstrate its entitlement to judgment as a matter of law"). The USCA agreed that AGCS amply supported its motion with affidavits, declarations, and documentary evidence, including Siddiqui's deposition and his response to interrogatories. Siddiqui's challenges to the weight of the evidence and the credibility and bias of potential witnesses did not create triable issues of fact that would preclude summary judgment. Bodett v. Cox-Com, Inc. F.3d 736, 740 n.3 (9th Cir. 2004) (noting "party cannot create a dispute of fact by simply questioning the credibility of a witness"). Siddiqui maintained that he should have been granted additional discovery. He did not, however, comply with Fed. R. Civ. Proc. 56(f)'s standards. Although he identified the type of information he sought, he did not explain how the additional discovery would aid in opposing summary judgment or why he had not sought such information during the previous two years of discovery. Teamsters Local 175 v. Clorox Co., 353 F.3d 1125, 1130 (9th Cir. 2004) ("The district court does not abuse its discretion by denying further discovery if the movants has failed diligently to pursue discovery in the past, or if the movants fails to show how the information sought would preclude summary judgment.") Siddiqui also complained that the district court should have granted him a second extension of time to prepare his opposition due to his "acute back pain" and "bad health conditions." The USCA found that there was no abuse of discretion. FTC v. Gill, 265 F.3d 944, 957 (9th Cir. 2001) (upholding denial of a request for a second continuance because district courts have broad discretion to control their dockets and to set deadlines). Siddiqui moved for reconsideration, seeking to vacate the district court's grant of summary judgment. He attached a lengthy affidavit and documentation that he argued would rebut AGCS's evidence. The district court denied relief, noting that Siddiqui had been given extra time to prepare his opposition and failed to do so. The USCA found no abuse of discretion here. Reconsideration is appropriate only "in the face of the existence of new evidence, an intervening change in the law, or as necessary to prevent manifest injustice." Navajo Nation v. Confederated Tribes of Yakama Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003). The motion "may not be used to raise arguments or present evidence for the first time when they could reasonably have been raised earlier in the litigation." Kona Enters, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). The district court also imposed sanctions against Siddiqui for asserting "groundless" allegations: Fed. R. Civ. Proc. 11 provides for such sanctions when a filing is frivolous, legally unreasonable, without factual foundation, or is brought for an improper purpose. Estate of Blue v. County of Los Angeles, 120 F.3d 982, 985 (9th Cir. 1997). Frivolous filings are "those that are both baseless and made without a reasonable and competent inquiry." Buster v. Greisen, 104 F.3d 1186 (9th Cir. 1997). The USCA agreed with the district court that Siddiqui's allegations regarding the FMLA and the ADA were groundless. The imposition of sanctions was not an abuse of discretion. Finally, the district court awarded partial attorneys' fees to AGCS for its defense against Siddiqui's ADA claim and his state law claims of breach of contract, breach of implied covenants of good faith and fair dealing, and blacklisting. Siddiqui argued that AGCS was not entitled to fees on his ADA claim because the district court did not find that claim "frivolous, unreasonable, or without foundation" as required by Christiansburg Garment Co. v. EEOC, 434 US 412, 421 (1978). The district court, however, expressly acknowledged the Christiansburg requirement, and found that "Siddiqui's ADA claim was frivolous, even in light of his pro se status." Siddiqui further argued that state law did not permit fees on his contract claims because it was "just a small part of a complaint." He relied on In re Larry's Apartment, 249 F.3d 832, 836 (9th Cir. 2001), which reversed an award of fees because the underlying contract was "merely somewhere within the factual background." Siddiqui, however, alleged an at-will employment agreement, and the state's fee-shifting statute applies regardless of the nature of the contract or even when no contract exists. Berthot v. Sec. Pac. Bank of Arizona, 823 P.2d 1326, 1332 (Ariz. Ct. App. 1991) (affirming fee award when no contract existed). Siddiqui challenged the district court's award of fees for his blacklisting claim brought under Ariz. Rev. Stat. Sec. 23-1361. That statute mandates an award of fees to the prevailing party. AGCS prevailed on Siddiqui's blacklisting claim and thus was entitled to attorneys' fees. Finally, Siddiqui challenged the district court's finding that he had the ability to pay fees. The district court, however, carefully considered Siddiqui's ability to pay, including reviewing his deposition testimony and a detailed financial statement before deciding the award would not subject Siddiqui to "financial ruin" or "extreme hardship." Associated Indem. Corp. v. Warner, 694 P.2d 1181 (Ariz. 1985) (court should not assess fees that would cause "extreme hardship"). The USCA affirmed the district court's partial grant of fees, but declined to grant AGCS's request for fees on appeal. 13) AMERICANS WITH DISABILITIES ACT: Hudock v. Aventis Pharmaceuticals,
06-15287 (9th Cir. Apr. 25, 2007) (unpublished). Graber, Clifton,
an Bea, Circuit Judges. Hudock appealed pro se from a district court's judgment following a jury verdict for the defendant in Hudock's action alleging that Aventis Pharmaceuticals discriminated against her in violation of the Americans with Disabilities Act ("ADA") when it ended her employment as a pharmaceutical sales representative because she was unable to drive to appointments with customers. The USCA affirmed. The district court did not abuse its discretion by permitting Aventis to introduce evidence of Hudock's prior statement regarding whether driving was an essential function of his position. Kennedy v. Applause, 90 F.3d 1477 (9th Cir. 1996) (holding that a plaintiff in an ADA employment termination action must be able to perform the "essential functions" of the job). The USCA did not consider Hudock's challenge to the jury instructions as she had not shown that she objected to the instructions in district court. Fed. R. Civ. P. 51(c)(1) (an objection to a jury instruction must be on the record, and state "distinctly the matter objected to and the grounds of the objection"; Larson v. Neimi, 9 F.3d 1397 (9th Cir. 1993) (holding that Rule 51 is "strictly enforced"). 14) LOW GRADE SUIT: Hurd v. Hansen, 05-16747 (9th Cir. Apr. 24, 2007) (unpublished). Schroeder, Trott, and W. Fletcher, Circuit Judges. Hurd, on behalf of his minor daughter Brady, appealed from a summary
judgment against his claims that schoolteacher Hansen violated Brady's
substantive due process and equal protection rights by giving her a
"C" grade in a seventh-grade physical education class. Bates
was alleged to be liable as Hansen's supervisor. The USCA affirmed.
Assuming, without deciding, that Hansen's grading decision could have
implicated property or liberty interests protected by substantive due
process, it was not arbitrary. Regents of the Univ. of Michigan v.
Ewing, 474 US 214 (1985). The decision was not "such a substantial
departure from accepted academic norms as to demonstrate that [Hansen]
did not actually exercise professional judgment." Id. at
22. Hurd also failed to establish, as a disputed issue of fact, that
Hansen's decision was motivated by improper racial bias or personal
animus towards Brandy rather than by Brandy's failure to cooperate and
poor effort in class. Summary judgment on Hurd's equal protection claim
was thus proper. Because it affirmed the summary judgment on the grounds
relied upon by the magistrate, the USCA did not need to reach the appellees'
alternative arguments for dismissal. | ||
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