4) INSURANCE: Goodstein v. Industrial Indemnity, 05-35805 (9th Cir. Dec. 3, 2007). At the core of this insurance coverage dis-pute lie two properties, identified as contaminated by the State of Washington, that were sold in their polluted state rather than remedi-ated. After the sale Goodstein, as receiver, tendered a $5.3 million claim to Industrial Indemnity Company ("IIC") under a comprehensive general liability policy. This claim reflected the difference between "the appraised value of the sites if uncontaminated less the sales price of the sites in their contaminated states." When IIC refused to pay, Goodstein sued for a declaration that IIC owed a duty to indemnify and defend Goodstein under the policy and damages for breach of both duties. The district court granted summary judgment for IIC on all claims. The USCA affirmed, holding that Goodstein's claim for the diminution in the sale value of the properties due to pollution was not covered under IIC's policy. But, the USCA reversed the district court's conclusion that IIC, as a matter of law, was not liable for breaching its duty to defend Goodstein. O'Scannlain, Tashima, and Berzon (author), Circuit Judges. W. Cronin of Seattle, WA, for the appellant; D. Schoeggl of Seattle, WA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

5) TERRORISM / FIRST AMENDMENT: Humanitarian Law Project v. Mukasey, 05-56753 (9th Cir. Dec. 10, 2007). At issue here was the constitutionality of Sec. 302 and 303 of the Antiterrorism and Effective Death Penalty Act ("AEDPA") as amended in 2004 by the Intelligence Reform and Terrorism Prevention Act ("IRTPA"). On October 8, 1997, the Secretary of State designated the Kurdistan Workers Party (a.k.a. "Partiya Karkeran Kurdistan" and "PKK"), the Liberation Tigers of Tamil Eelam ("LTTE") and 28 other foreign organizations as "foreign terrorist organizations." The plaintiffs, fearing they would be criminally investigated, prosecuted, and convicted under 18 USC Sec. 2339B(a) (which codifies AEDPA Sec. 303(a), which makes it a crime for anyone to provide support to even nonviolent activities of a designated organization), withheld their support for the PKK and LTTE from the time they were designated foreign terrorist organizations. Arguing that the AEDPA violates their First and Fifth Amendment rights, they sought a preliminary injunction to bar the government from enforcing against them AEDPA's prohibition against providing "material support or resources" to PKK and LTTE. In June 1998, a district court partially granted the plaintiffs' motion for a preliminary injunction and enjoined the Attorney General's enforcement of the AEDPA with respect to it prohibition on providing "training" and "personnel" to PKK and LTTE. It held that the plaintiffs demonstrated a probability of success on their claims that the terms "personnel" and "training" were impermissibly vague. It then rejected the reminder of the plaintiffs challenges, holding that the AEDPA's prohibition on providing "material support or resources" to designated foreign terrorist organizations is a content-neutral limitation on the plaintiffs' right to freedom of association and is subject to an intermediate scrutiny level of review. It further held that the AEDPA does not impose "guilt by association" in violation of the First Amendment because the AEDPA only limits permissible ways in which the plaintiffs can associate with PKK and LTTE. The AEDPA does not criminalize membership; it criminalizes conduct that provides "material support or resources" to designated foreign terrorist organizations. Finally, the district court held that the plaintiffs failed to establish a probability of success on their claims that AEDPA affords the Secretary of State unfettered discretion to designate a group as a foreign terrorist organization. The USCA affirmed. As Sec. 2339B is not aimed at expressive conduct and does not cover a substantial amount of protected speech, the prohibition against providing "material support or resources" to a foreign terrorist organization is not facially overbroad. In addition, Sec. 2339B(j) does not have a close enough nexus to protected speech to allow a facial challenge. Pregerson (author), Thomas, and Rawlinson, Circuit Judges. P. Keisler of Washington, DC, for the appellants; D. Cole of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

6) TRADEMARKS: K&N Engineering, Inc. v. Bulat, 06-55393 (9th Cir. Dec. 18, 2007). At issue here was whether an award of statutory damages for trademark counterfeiting under 15 UCC Sec. 1117(c) precludes an award of attorneys' fees under 15 USC Sec. 1117(b). For several decades, K&N Engineering has been engaged in the design, manufacture, and distribution of aftermarket automotive air filters, air intake kits, and related products. K&N's stylized logo, the basis for two of K&N's registered trademarks, appeared on decals included with many of K&N's products. K&N has separately distributed decals bearing its logo to enthusiasts through an internet promotion. On or about Oct. 14, 2004, K&N became aware that appellants Sarah Bulat and Steve Wandel were selling unauthorized decals bearing the K&N logo on eBay. The appellants created vinyl decals in the shape of the K&N logo and sold 89 sets of these decals (two decals per set) for a total of $267. After contacting the appellants, K&N filed a complaint in the Central District of California alleging trademark infringement under 15 USC Secs. 1114(1) and 1125(a); trademark counterfeiting under 15 USC Sec. 1114(1)(a); trademark dilution under 15 USC Sec. 1125(c); and related state law statutory and common law causes of action. K&N also elected to seek statutory damages under Sec. 1117(c). The district court granted K&N summary judgment on all claims and entered judgment for K&N. Pursuant to Sec. 1117(c)(1) and (b) respectively, the district court awarded K&N statutory damages of $20,000 and attorneys' fees of $100,000. The appellants appealed both the summary judgment and the attorneys' fees award. The USCA reversed. Because an election to receive statutory damages under Sec. 1117(c) precludes an award of attorneys' fees under Sec. 1117(b), it held that the district court abused its discretion in awarding K&N $100,000 in attorneys' fees. The USCA thus did not need to address the appellants' remaining arguments that the fee award was improper. T.G. Nelson, Ikuta (author), and Smith, Circuit Judges. R. Fountain, Mishawaka, IN, for the appellants; S. Muriella of Tustin, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

7) TRADEMARKS: Applied Information Sciences v. eBay, 05-56123 (9th Cir. Dec. 28, 2007). At issue here was what the owner of a federally registered trademark needs to establish in order to mount an infringement action against a user of the trademarked on goods or services that are not the same as those specified in the owner's trademark registration. Applied Information Sciences ("AIS") owns the "SmartSearch" trademark for certain computer related search functions, and claims that eBay uses the name "Smart Search" for its internet auction website, which AIS contends will be confused with its "SmartSearch" product. The district court rejected the claim, granting summary judgment to eBay. AIS appealed. eBay cross-appealed the district court's order denying it attorneys' fees as prevailing party. The USCA affirmed the district court's grant of summary judgment and the denial of attorneys' fees. The district court had denied eBay's motion for attorneys' fees, finding no compelling proof that AIS acted capriciously or pursued litigation to harass eBay, or that AIS intended to bring a meritless or unreasonable case against eBay. The USCA agreed that AIS's case was not frivolous and that AIS raised debatable issues. The district court thus did not abuse its discretion in denying eBay fees. Fisher (author) and Clifton, Circuit Judges, and Fogel, District Judge. J. Esty of Los Angeles, CA, for the appellant; M. Zeller of Los Angeles, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

8) ENVIRONMENTAL LAW: Center for Biological Diversity v. Lohn, 05-35638 (9th Cir. Dec. 27, 2007). At issue here was whether a federal policy regarding the treatment of killer whales under the Endangered Species Act was valid. The National Marine Fisheries Service argued that the issue was moot since, after the district court's decision, it issued a final rule listing the Southern Resident killer whale as a threatened species. The USCA dismissed the appeal as moot and remanded the case to the district court with instructions to vacate its summary judgment for the Service as its issuance of the final rule rendered the case moot. Goodwin, O'Scannlain (author), and Fisher, Circuit Judges. B. Plater of San Francisco, CA, for the appellant; M.A. Thurston of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

9) ENVIRONMENTAL LAW: The Rattlesnake Coalition v. EPA, 05-36097 (9th Cir. Dec. 7, 2007). The Rattlesnake Coalition appealed the district court's dismissal for lack of subject matter jurisdiction and standing its action against the EPA, its administrator, and the City of Missoula. The Coalition had sued under the National Environmental Policy Act ("NEPA"), seeking injunctive, declaratory, and other relief related to the preparation of Environmental Assessments ("EAs") and Environmental Impact Statements ("EISs") prior to implementation of the Missoula Wastewater Facilities Plan Update ("MWFPU"). The Coalition argued that the district court erred by evaluating its complaint as two separate NEPA claims relating to two constituent MWFPU projects, and thereby ruling that the MWFPU itself was not a single, major federal action subject to NEPA regulations. The USCA affirmed. The government argued that the Coalition waived its ability to oppose the district court's rulings by failing in its opening brief to challenge the district court's determination that 1) the Coalition lacked standing because any injury it suffered from the wastewater treatment plant upgrade was not redressable, and 2) the district court lacked jurisdiction over disposition of the claim regarding Missoula's Rattlesnake Sewer Project because there had been no final agency action by the EPA. The USCA rejected this argument as the Coalition had challenged both the district court's findings in its opening brief. As the Coalition's opening brief mounted an attack on both of the district court's rulings, the USCA rejected the government's waiver argument. The Coalition maintained that the district court erred in evaluating the complaint as containing two separate NEPA claims involving two distinct projects. It argued that the district court should have evaluated the MWFPU to determine if it, and not its constituent projects, was a single major federal action. The Coalition maintained that had the district court found MWFPU to be a major federal action, it would have found that the Coalition injury was redressable in the form of adequate environmental review of the uncompleted portion of the MWFPU in accordance with NEPA and a stay of further construction of the project until that review is completed. The USCA held that the Coalition's argument failed, however, because there was insufficient federal control over MWFPU to make it a major federal action under the NEPA. B. Fletcher, Kleinfeld, and Gould (author), Circuit Judges. C. Murdock of San Francisco, CA, for the appellant; M. Kuray of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

10) ENVIRONMENTAL LAW: Sierra Club v. Bosworth, 05-16989 (9th Cir. Dec. 5, 2007). The Sierra Club and the Sierra Nevada Forest Protection Campaign (collectively "Sierra Club") appealed the district court's summary judgment in favor of the U.S. Forest Service and Department of Agriculture, in their action alleging that the defendants violated the National Environmental Policy Act ("NEPA"). The Sierra Club challenged the Forest Service's establishment of a NEPA categorical exclusion ("Fuels CE") for all fuel reduction projects up to 1,000 acres and prescribed burn projects up to 4,500 acres on all national forests in the United States. The USCA held that the Forest Service failed to assess properly the significance of the hazardous fuels reduction categorical exclusion and thus failed to demonstrate that it made a "reasoned decision" to promulgate the Fuels CE based on relevant factors and information. Its promulgation of the Fuels CE was arbitrary and capricious. The USCA thus reversed the district court's summary judgment in favor of the Forest Service and remanded for further proceedings. Thompson (author), Kleinfeld (concurring), and Thomas, Circuit Judges. K. Henry of San Francisco, CA, for the appellants; M. Scott of Sacramento, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

11) FORFEITURE: USA v. Plunk, 06-35269 (9th Cir. Dec. 21, 2007). Plunk appealed the district court's Amended Final Decree of Forfeiture, awarding him compensation in lieu of property to be returned under 28 USC Sec. 2465 and calculated the amount due to Plunk based on the sale proceeds of the property. It denied Plunk any additional compensation for consequential damages related to the seizure and forfeiture of the property, and disagreed with his argument that the value of the property should have been calculated at the date of its return. The USCA affirmed. No Ninth Circuit Case requires that Plunk receive consequential damages, and other circuits have rejected the argument that Sec. 2465 requires compensatory or consequential damages. Wallace (author), Noonan, and Paez, Circuit Judges. P. Weidner of Anchorage, AK, for the appellant; AUSA J. Barkeley of Anchorage, AK, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

12) CONTRACTS / PLEADINGS: PAE Government Services v. MPRI, Inc., 06-56438 (9th Cir. Dec. 18, 2007). At issue here was whether a district court may strike allegations from an amended complaint because they contradict an earlier iteration of the same pleadings. PAE Government Services and MPRI agreed to work together in bidding for a government contract and signed a "Teaming Agreement." MPRI submitted the bid as "prime contractor" and won. PAI claimed in its original complaint that MPRI refused to sub-contract to PAE all the work specified in the Teaming Agreement. The district court dismissed that complaint, finding the Teaming Agreement to be a mere "agreement to agree," governed by Virginia law which does not enforce agreements to agree. PAE thereupon amended its complaint to allege that, after MPRI won the government contract, it entered into a second agreement with PAE. According to the amended complaint, the second agreement was "confirmed" in "written communications" and by the parties' "course of conduct." The amended complaint added a promissory estoppel claim against MPRI. The district court found that PAE's allegations of a second agreement with MPRI to be "sham pleadings" contradicting allegations in the original Complaint. In particular, the allegation of a second agreement contradicted PAE's original claim that following the award of the government contract, MPRI filed and refused to enter into subcontract with PAE. The district court thus struck the new allegations from PAE's first amended complaint. After holding that Virginia law also barred PAE's promissory estoppel claim, the district court dismissed the complaint. PAE then amended its complaint again, adding more detail about its second agreement with MPRI. The district court remained unmoved, deeming the second amended complaint to be merely a revision of the first amended complaint which alleged more specific facts evidencing the existence of a subsequent subcontract between the parties. The district court struck the additional allegations and dismissed the complaint with prejudice. The USCA affirmed in part, reversed in part, and remanded. It found nothing in the Federal Rules of Civil Procedure to prevent a party from filing successive pleadings that make inconsistent or even contradictory allegations. Unless there is a showing that the party acted in bad faith-a showing that can be made only after the party is given an opportunity to respond-inconsistent allegations are not a basis for striking the pleading. Kozinski (author), Tashima, and McKeown, Circuit Judges. R. Drooyan of Los Angeles, CA, for the appellant; K. Wood of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

13) SERVICE OF PROCESS: SEC v. Internet Solutions for Business, 06-15204 (9th Cir. Dec. 11, 2007). The SEC filed a civil enforcement action against Shaw, asserting that it served him through a British process server, who found and served him with a copy of the SEC complaint at Shaw's business address in England. When Shaw failed to appear, and the district court entered final judgment against him. Three and a half years after the default judgment was entered, Shaw moved to set it aside. The district court denied the motion. Shaw appealed, arguing that the judgment was void for lack of personal jurisdiction as he had never been served with process, or, if he was, it was insufficient because it did not comply with the Hague Convention. The district court ruled that Shaw did not meet his burden of showing that he was not properly served. The USCA affirmed. It joined its sister circuits in holding that a defendant moving to vacate a default judgment based on improper service, where the defendant has actual notice of the original proceeding, but delayed in bring the motion until after entry of default judgment, bears the burden of proving that service did not occur. A signed return of service constitutes prima facie evidence of valid service which can be overcome only by strong and convincing evidence. The burden was on Shaw to prove by such evidence. But, as the district court correctly found, he failed to meet that burden. He also waived any argument that service of process was insufficient under the Hague Convention by failing to raise it before the district court. The district court had jurisdiction to enter default judgment against Shaw and properly refused to set it aside. Thomas, Tallman (author), and Ikuta, Circuit Judges. D. Amesbury of Las Vegas, NV, for the appellant; B. Cartwright of Washington, DC, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

14) NEGLIGENCE: Bolt v. USA, 06-35993 (9th Cir. Dec. 3, 2007). After Bolt fell on ice in the common parking area of the U.S. Army apartment complex where she lived, in Fort Wainwright, Alaska, she brought a negligence claim against the United States under the Federal Tort Claims Act ("FTCA"). The district court held that the discretionary function exception to the FTCA's grant of jurisdiction did not apply because Army policies set forth specific and mandatory rules for snow and ice removal from parking areas. It granted the government motion for summary judgment, however, concluding that the Army was similar to a municipality and, in light of Hale v. City of Anchorage, 389 P.2d 434 (Alaska 1964), not liable for injuries due to natural accumulations of snow and ice. The USCA affirmed the district court's jurisdictional ruling that the FTCA's discretionary function exception did not apply, but reversed the summary judgment pursuant to Hale as the relevant question was whether a private landlord, not a municipality, would be liable for negligence under similar circumstances. Finally, the USCA denied Bolt's request for reassignment to a different district judge on remand. Judge Wallace concurred in the majority's result. FTCA Sec. 2680(a) provides an exception for claims based on "the exercise or performance or … failure to exercise or perform a discretionary function or duty." But, the alleged conduct violated a specific or mandatory regulation. Wallace thus thought the majority's remaining jurisdiction analysis unnecessary. As he thought there was jurisdiction, he agreed with the majority that under Alaska law, the landlord (government) had a duty to "keep all common areas of the premises in a clean and safe condition," Alaska Stat. Sec. 34.03.100(a)(2), a duty that includes removing snow and ice. Wallace thought the summary judgment should be reversed. Wallace (concurring), Noonan, and Paez (author), Circuit Judges. R. Sparks of Fairbanks, AK, for the appellant; E. Feigin of Washington, DC, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

15) RENT CONTROL: Action Apartment Assoc. v. Santa Monica Rent Control Bd., 05-56533 (9th Cir. Dec. 3, 2007). At issue here was a claim that Santa Monica's rent control ordinance was unconstitutional under the "public use" component of the Fifth Amendment's Takings Clause and the "substantive" component of the Fourteenth Amendment's Due Process Clause. The USCA held that the Fifth Amendment claims were not viable, that the facial Fourteenth Amendment claim was time-barred, and that the "as-applied" Fourteenth Amendment claim was not ripe. It thus affirmed the district court's dismissal of the complaint. Thomas (author), Fisher, and Gould, Circuit Judges. R. Franklin of Santa Monica, CA, for the appellants; D. Pettit of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

16) DISBARMENT: Gadda v. State Bar of California, 06-15344 (9th Cir. Dec. 27, 2007). In 1990, the Supreme Court of California suspended Gadda from practice for two years for several instances of client neglect. The Hearing Department of the State Bar Court determined in 2000 that Gadda had committed myriad acts of misconduct from 1994 to 1999. The Review Department of the Bar agreed and held that Gadda's disbarment was warranted. He was subsequently disbarred by the State of California, the Board of Immi-gration Appeals, the U.S. District Court for the Northern District of California and the Ninth Circuit Court of appeals. On November 15, 2002, the Bar filed a Certificate of Costs in the amount of $21,845. In a February 2003 order, the California Supreme court adopted the Review Department's order recommending disbarment and costs. Gadda did not challenge the cost order and on June 1, 2005, the Bar sent Gadda a letter requesting that he voluntarily pay the owed costs. If he did not, the Bar said a judgment would be filed against him in state court pursuant to the 2003 amendments to sections 6086.10 and 6140.5 of the Business and Professions Code. Gadda responded by filing suit in the Northern District of California against the Bar and some of its employees, the Supreme Court of California, the BIA, the Department of Homeland Security ("DHS"), DS Secretary Chertoff, the Executive Office for Immigration Review attorney Jennifer Barnes, Immigration Judges Miriam Hayward, Mimi Yam and Alberto Gonzales. In his First Amended Complaint, Gadda made numerous challenges to his disbarment and to the Bar's ability to collect disbarment costs from him. The district court dismissed the complaint with prejudice in its entirety. The USCA affirmed. The California Legislature clearly intended that Sec. 6086.10 be retroactively applicable to disbarred attorneys such as Gadda. Moreover, in amending Sec. 6086.10, California's legislative purpose was legitimate: to recover costs owed the Bar by disbarred attorneys who do not seek readmission. The amendment is rationally related to that legitimate end: by providing a mechanism to obtain a money judgment, the Bar can more easily recover costs owed to it. California's retroactive application of Sec. 6086.10 does not offend due process. Farris, Beezer (author), and Thomas, Circuit Judges. M. Gadda pro se; AUSA E. Olsen of San Francisco, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

17) LABOR LAW / FLU IMMUNIZATION: Virginia Mason Hospital v. Washington State Nurses Assoc., 06-35073 (9th Cir. Dec. 21, 2007). At issue here was a district court decision granting summary judgment to the Washington State Nurses Association ("the union") and upholding an arbitral award prohibiting Virginia Mason Hospital from unilaterally implementing a mandatory flue immunization regime as a "fitness for duty" requirement for all nurses and other employees. The hospital argued that the arbitrator exceeded his authority by failing to apply relevant provisions of the collective bargaining agreement ("CBA") and by imposing a duty that is not part of the CBA's text, to bargain collectively over all terms and conditions of employment. The hospital also maintained that the arbitral award should be set aside as contrary to public policy. The union cross-appealed the district court's refusal to award the union the attorneys' fees that it accrued in defendant the arbitrator's award. The USCA affirmed. Prohibiting the hospital from implementing its mandatory flu immunization policy unilaterally was not contrary to the relevant public polices. The USCA thus allowed it to stand. However, as the hospital's arguments were not frivolous or made for vexatious or oppressive reasons, the union was not entitled to attorneys' fees. Canby, Graber, and Gould (author), Circuit Judges. H. Goodfriend of Seattle, WA, for the appellant; L. Schwerin of Seattle, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

18) LABOR LAW: National Treasury Employees Union v. Federal Labor Relations Authority, 05-76783 (9th Cir. Dec. 19, 2007). Without further comment, the USCA denied the petition for review in this case for the reasons given by the court in National Treasury Employees Union. v. Federal. Labor Relations Authority, 453 F.3d 506, 511-12 (D.C. Cir. 2006). Kozinski, Cowen, and Hawkins, Circuit Judges. Per Curiam. R. Shriver of Washington, DC, for the petitioner; J. Blandford of Washington, DC, for the re-spondent; H. Scher of Washington, DC, for the intervenor. (Download the full text of this decision at www.ce9.uscourts.gov/)

19) LABOR CONTRACTORS: Global Horizons v. U.S. Dept. of Labor, 07-55116 (9th Cir. Dec. 13, 2007). Global Horizons is a labor contractor providing temporary alien agricultural workers to U.S. farmers pursuant to the H-2A workers program. For it to receive government permission to provide workers, it had to show in its application that there are insufficient U.S. workers to perform the labor involved and that the employment will not adversely affect wages and working conditions of U.S. workers similarly employed. The Department of Labor sent Global a "Determination and Notice" stating that it would deny all future Global H2-A labor certification applications for three years because Global had improperly sought certification of 200 workers for which it had neither the agricultural work nor the requisite contractual relationship with a U.S. farmer, and that Global "knowingly provided false information regarding the termination of the employment of U.S. workers." Global's challenge to this ruling was late and the AJL held that the facts failed to qualify for equitable tolling, given Global's failure to give a satisfactory explanation for its delay in responding. Global then sought a preliminary injunction in the district court, which was denied. On appeal, the only issue was whether a sufficiently rational explanation for the decision had been articulated. The USCA held that the district court correctly ruled that Global had not raised serious questions going to the merits of this issue, given the 19-pages of indepth rational analysis provided by the ALJ in its administrative order. Wallace (author), T.G. Nelson, and Smith, Circuit Judges. K. Hong of Portland, OR, for the appellants; AUSA I. Daves of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

20) LABOR LAW / ATTORNEYS' FEES: Tahara v. Matson Terminals, 05-17306 (9th Cir. Dec. 27, 2007). Tahara appealed the attorneys' fees awarded to him by the district court under the Longshore and Harbor Workers' Compensation Act ("LHWCA"). He had requested $31,500 in fees for work his attorney allegedly performed to secure a late payment award under Sec. 914(f) of the LHWCA from Tahara's former employer, Matson Terminals. The district court awarded him only $6,060. The USCA affirmed, finding that the district court properly excluded fees not available under LHWCA Sec. 928(c) and appropriately exercised its discretion in excluding duplicative fees. O'Scannlain, Tashima, and Smith (author), Circuit Judges. J. Gillelan of Washington, DC, for the plaintiff-appellant; M. Nakano of Honolulu, HI, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

21) EMPLOYMENT DISCRIMINATION: Pittman v. State of Oregon, 05-35900 (9th Cir. Dec. 5, 2007). Pittman appealed the dismissal of her 42 USC Sec. 1981 employment discrimination claim against the Employment Dept. of Oregon. The district court dis-missed the action, holding that the statute does not provide a cause of actions against states. The USCA agreed. Fisher and Berzon (au-thor), Circuit Judges, and Barzilay, Intl. Court of Trade Judge. G. Solomon, of Portland, OR, for the plaintiff; M. Abrams of Salem, OR, for the defendants.(Download the full text of this decision at www.ce9.uscourts.gov/)

22) WHISTLEBLOWER RETALIATION: Marable v. Nitchman, 06-35940 (9th Cir. Dec. 26, 2007). Marable is an engineer for the Washington State Ferries ("WSF") with more than 30 years of experience. In his complaint he alleged that in recent years he had observed and reported corrupt practices among members of WSF management, including the defendants, and that the defendants re-taliated against him for speaking out against that corruption. He appealed the district court's grant of summary judgment for the defendants and the resulting dismissal of his case. Specifically, he appealed the district court's dismissal of his claims for damages and injunctive relief to protect his constitutional rights: 1) a 42 USC Sec. 1983 claim alleging violation of his First Amendment rights; 2) a Sec. 1983 claim alleging violation of his Fourteenth Amendment rights to procedural due process; 3) a Washington state law claim of negligent infliction of emotional distress; and 4) a Washington state statutory clam for whistleblower retaliation. The USCA address only his First Amendment claim for damages, which it reversed and remanded for further proceedings. In so doing, the USCA reversed the district court's holding that Marable's job duties foreclosed any of his proffered instances of protected speech from the First Amendment's protection. On remand, the USCA instructed the district court to resolve the remaining triable issues of fact surrounding whether Marable's communications were a motivating factor in the adverse employment action he endured. B. Fletcher, Kleinfeld, and Gould (author), Circuit Judges. S. Hart of Seattle, WA, for the appellant; C. Hendricks of Seattle, WA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

23) SEXUAL DISCRIMINATION: Dukes v. Wal-Mart, Inc., 04-16688 (9th Cir. Dec. 11, 2007). The plaintiffs filed a class action against Wal-Mart alleging sexual discrimination under Title VII of the 1964 Civil Rights Act. The district court certified the class with minor modifications to the plaintiffs' proposed class. The USCA affirmed, concluding that the district court did not abuse its discretion when it certified the class. The district court acted within its broad discretion in concluding that it would be better to handle this case as a class action instead of clogging the federal courts with innumerable individual suits litigating the same issues repeatedly. The district court also did not abuse its discretion in finding the pleading requirements of Rule 23 satisfied, as least as to those plaintiffs who were still Wal-Mart employees on June 8, 2001. Wal-Mart failed to point to any specific management problems that would render a class action impracticable in this case, and the district court has the discretion to modify or decertify the class should it become unmanageable. Although the size of this class action is large, mere size does not render a case unmanageable. Dissenting, Judge Kleinfeld thought that class action certification still violates Rule 23, likely deprives many women who have been discriminated against of the money they are entitled to, and deprives Wal-Mart of its constitutional rights to jury trial and due process of law. Pregerson (author), Kleinfeld (dissenting), and Hawkins, Circuit Judges. T. Boutrous of Los Angeles, CA, for the appellant; B. Seligman of Berkeley, CA for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

24) AMERICANS WITH DISABILITIES ACT: Bates v. United Parcel Service, 04-17295 (9th Cir. Dec. 28, 2007). Bates, a class of hearing-impaired UPS employees, and applicants who could not meet the Department of Transportation ("DOT") hearing require-ment, challenged UPS's policy under Title I of the Americans with Disabilities Act ("ADA"), the California Fair Employment and Housing Act ("FEHA"), Cal. Gov't Fair Employment and Housing Act (FEHA), Cal. Gov't Code Secs. 12900-12996, and the Unruh Civil Rights Act. Bates accepted that UPS may lawfully exclude individuals who fail the DOT test from positions that would require them to drive vehicles exceeding a gross vehicle weight rating ("GVWR") of 10,000 pounds, but asserted that UPS may not lawfully exclude hearing-impaired individuals from consideration for positions that involve vehicles whose GVWR is less than 10,001 pounds. The district court found UPS liable on all of Bates's claims enjoining UPS from using the blanket qualification standard, and required individualized assessment of candidates for the package-car driver positions. The court founded its analysis on the pattern-or-practice burden-shifting framework of Intl. Brotherhood of Teamsters v. USA, 431 US 324 (1977). In determining whether UPS met its asserted "business necessity" defense, the district court looked to Morton v. UPS, 272 F.3d 1249 (9th Cir. 2001). Morton imported into its ADA analysis concepts from both the traditional Title VII business necessity defense to disparate impact claims and the "bona fide occupational qualification" (BFOQ) standard from Title VII disparate treatment challenges to a proscribed classification. The USCA granted a rehearing en banc to consider the contours of the claim that an employer's safety qualification standard discriminates against otherwise "qualified persons with disabilities, 42 USC Secs. 12112(a) and (b)(6), and the showing required of an employer to successfully assert the business necessity defense to use of such qualification under Sec. 12113(a). Because this case involves a facially discriminatory qualification standard, the USCA held that Teamsters' burden-shifting protocol is inapplicable. In addition, the USCA overruled Morton to the extent that it imposes a BFOQ standard under the ADA, as the plain language of the ADA does not support such a construction. Because the district court considered this case under the framework of Teamsters and Morton, the USCA vacated and remanded for further proceedings. It did not consider the merits of the FEHA claim because the pertinent FEHA law has changed since the district court issued its decision. Finally, following, Bass v. County of Butte, 458 F.3d 978 (9th Cir. 2006), the USCA reversed the district court's finding that UPS violated the Unruh Act. Kozinski, Schroeder, Reinhardt, Rymer, Hawkins, Thomas, Silverman, McKeown (author), Fisher, Gould, Paez, Berzon (dissenting in part), Clifton, Smith, and Ikuta, Circuit Judges. M. Perry of Washington, DC, and C. Martin of Palo Alto, CA, and R. Brass of San Francisco, CA, for the appellant; L. Paradis of Berkeley, CA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

25) DISABILITIES EDUCATION ACT: Levina v. San Luis Coastal USD, 06-55179 (9th Cir. Dec. 28, 2007). The San Luis Coastal Unified School District filed an administrative complaint under the Individuals with Disabilities Education Act of 2004 ("IDEA") against Levina when she refused to consent to an Individualized Education Plan ("IEP") for her minor son. When the administrative Hearing Officer dismissed the School District's complaint without prejudice, Levina filed a complaint in district court under 20 USC Sec. 1415(i)(2)(A). The district court granted summary judgment for the School District. Because Levina did not suffer an injury in fact and did not affirmatively request relief, she was not an "aggrieved" party under the IDEA and lacked standing to sue under Sec. 1415(i)(2)(A). The USCA thus dismissed for lack of jurisdiction. O'Scannlain and Smith, Circuit Judges, and Mosman (author), District Judge. M. Tiffany of Torrance, CA, for the appellant; P. Sansom of Vista, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

26) MEDICARE: Maximum Comfort v. Sec. of Health and Human Services, 05-15832 (9th Cir. Dec. 21, 2007). Maximum Comfort supplies power-operated wheelchairs to Medicare beneficiaries. The HHS Secretary, who administers the federal Medicare pro-gram, determined that Maximum Comfort was not entitled to reimbursement for equipment it supplied to certain Medicare beneficiaries as the company had not establish that the power wheelchairs were medically necessary. The district court reversed. At issue was whether Maximum Comfort, by submitting for each wheelchair a "certificate of medical necessity" signed by a physician, established that the wheelchair was medically necessary, thereby precluding the Secretary from requiring additional documentation. Like the other two Circuits to address the issue, the USCA held that the Medicare Act does not make the certificate conclusive, and that the Secretary may require additional documentation to establish medical necessity. Schroeder, Canby (author), and McKeown, Circuit Judges. AUSA H. Scher of Washington, DC, for the appellants; D. Frederick of Washington, DC, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

27) NATIVE AMERICAN LAW / MEDICAID: Arizona Health Care Cost Containment Sys. v. McClellan, 05-16386 (9th Cir. Dec. 3, 2007). The appeal required the USCA to resolve conflicting statutory interpretations of Sec. 402(e) of the Indian Health Care Improvement Act, which requires the federal government to pay 100% of Medicaid costs for services "which are received through an Indian Health Service facility." The Arizona Health Care Cost Containment System, the state entity that administers Arizona's Medicaid program, interpreted this language as requiring the federal government to reimburse states for all health care services provided to Medicaid-eligible Indians under referral agreements between health care service providers and the Indian Health Service ("HIS"). However, the Health Care Financing Administration ("FCFA"), the federal entity that administers Medicaid, interpreted the same language to require the federal government to reimburse states only for health care services provided by "an HIS facility which offers, is responsible for and bills Medicaid for the services provided." The district court held that Arizona's interpretation was correct and granted it summary judgment. The USCA reversed. Arizona had appealed HCFA's disallowance of some $36 million of Arizona's claims. The Departmental Appeals Board ("DAB") upheld the HCFA's disallowance, ruling that the meaning of "received through an Indian Health Service facility" was ambiguous as it could mean "in" or "by means of." Following its procedures for resolving disputes over ambiguous statutory language, the DAV held 1) HCFA's reasonable interpretation of the costs eligible for 100% FMAP was limited to those "received through" an HIS facility which offers, is responsible for, and bills Medicaid for the services provided; 2) HCFA did not change this policy in its memorandum of May 1997; 4) Arizona did not reasonably rely on an alternative interpretation; and 5) the cost disallowed here were not eligible for 100% FMAP rate under HCFA interpretation. The DAB thus upheld all the disallowances. Arizona then brought suit in federal district court to challenge the DAB's decision. The district court ruled in favor of Arizona, determining that HCFA's interpretation (to which the DAB had deferred) was unreasonable. It granted Arizona's motion for summary judgment. The USCA reversed and remanded, finding the DAB's interpretation of Sec. 402(e) a permissible construction of an ambiguous statue. The district court erred in interpreting the phrase "received through" to mean "pertaining [to] services that are provided as a result of a referral from an HIS facility by private health care providers who bill the state Medicaid program for those services." O'Scannlain and Ikuta (author), Circuit Judges, and Sand, District Judge. J. Levy of Washington, DC, for the appellants; C. Miller of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

28) NATIVE AMERICAN LAW: Pyramid Lake Paiute v. Nevada State Engineer, 06-17375 (9th Cir. Dec. 7, 2007). Pyramid Lake Paiute Tribe of Indians appealed the district court's order affirming the decision of the Nevada State Engineer which granted the transfer of water rights from the parcels of property to which they were then appurtenant to new parcels. All of the water rights were within the boundaries of the Newlands Reclamation Project. The Tribe asserted that the rights could not be transferred because they had already been abandoned or forfeited within the meaning of the law of the State of Nevada. In a case that has followed a tortuous path involving far too many parties and claims to enumerate here, the USCA affirmed as to the district court's rulings as to 10 applications, reversed as to 3 applications, and remanded for further consideration of yet another application. Noonan, Fernandez (author), and McKeown, Circuit Judges. S. Zehren-Thomas of Louisville, CO, for the appellant; M. Wolz of Reno, NV, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

29) NATIVE AMERICAN LAW: Burlington Northern Santa Fe Railway Company v. Vaughn, 05-16755 (9th Cir. Dec. 7, 2007). The Burlington Northern & Santa Fe Railway ("BNSF") brought suit against two officials of the Hualapai Indian Tribe, seeking declaratory and injunctive relief against their efforts to enforce or collect the Hualapai Tribe's possessory interest tax against BNSF for use of the railroad's right-of-way through the reservation. The tribal officials filed a motion to dismiss, which the district court denied. At issue was whether under Cohen v. Beneficial Industrial Loan Corp., 337 US 541 (1949), the denial of a tribal sovereign immunity claim is appealable on an interlocutory basis as a collateral order. The USCA held that it is and proceeded to review the district court's ruling on the merits. It then affirmed the district court's ruling that tribal sovereign immunity does not bar suite against Tribal Official Easter, who is allegedly responsible for enforcing the tax at issue in this suit, but reversed with regard to Tribal Official Vaughn, the Tribe's Chairman, who has no alleged enforcement responsibilities to actually collect the tax. The Tribal Officials also appealed the district court's denial of their exhaustion of tribal remedies claim. However, they did not assert an adequate basis to permit the USCA to exercise jurisdiction over that claim now, and the USCA dismissed the remainder of this interlocutory appeal. Alarcon, Thompson, and Tallman (author), Circuit Judges. S. Williams of Corrales, NM, for the appellants; P. Mooney of Phoenix, AZ, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

30) IMMIGRATION: Iasu v. Smith, 06-55681 (9th Cir. Dec. 18, 2007). Iasu faced removal to Eritrea, but insisted that he is a natu-ralized American citizen and challenged the government's power to remove him. The district court 1) dismissed for lack of subject matter jurisdiction Iasu's amended 28 USC Sec. 2241 petition challenging his removability, and 2) declining to transfer the petition to the Ninth Circuit under Sec. 106(c) of the REAL ID Act. The USCA affirmed. The REAL ID Act deprives courts of subject-matter jurisdiction over Iasu's petition and because the case was filed after the REAL ID Act's effective date, the district court correctly declined to transfer the case to the Ninth Circuit. The REAL ID Act does not violate the Suspension Clause because Iasu had, and still has, at least some opportunity for judicial review of his claim to citizenship. Trott and Rawlinson, Circuit Judges, and King (author), District Judge. L. Schoenberg of Pasadena, CA, for the petitioner; J. Paisner of Washington, DC, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/)

31) IMMIGRATION: Avilla-Sanchez v Mukasey, 06-70663 (9th Cir. Dec. 3, 2007). Avila-Sanchez, a native and citizen of Mexico, petitioned for review of a BIA's order denying his motion to reopen so that he could apply for a waiver of inadmissibility pursuant to former 8 USC Sec. 1182(c) (1994). The BIA determined that due to the fact of Avila's prior deportation and subsequent illegal reentry, he was not entitled to relief. In addition, it refused to allow him to collaterally attack prior proceedings. The USCA denied the petition. Avila had been removed in February 1998 because of his criminal history. He returned illegally in 1998. When stopped and detained in 2005 for suspicion of driving under the influence, he sought to reopen proceedings and to attack the prior proceeding. He was ultimately denied that relief, and again ordered removed. Then, with much febrile hyperbole, he maintained that denying him the right to reopen or collaterally attack the prior proceedings violates his constitutional rights. The USCA disagreed. The provisions of 8 CFA Sec. 1003.44(k)(2) are constitutional and were not improperly applied to Avila. Nor did the BIA err when it refused to allow a collateral attack on the prior proceeding. Fernandez (author) and Wardlaw, Circuit Judges, and Collins, District Judge. C. Vellanoweth of Los Angeles, CA, for the petitioner; E. Duffy of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

32) IMMIGRATION: Ramirez v Mukasey, 06-70396 (9th Cir. Dec. 4, 2007). When proceedings before the Board of Immigration Appeals took place in this case, neither the petitioners nor the BIA had the benefit of regulatory guidance regarding U Visas: an alien who is a victim of a "qualifying crime" and who cooperates with law enforcement is eligible for temporary "U" nonimmigrant status, which allows the alien to remain lawfully in the U.S. to assist in the investigation or prosecution of the crime. The BIA declined to remand or reopen the petitioners' case-despite their outstanding U Visa application on an offense that was not charged in the criminal complaint. As the preamble to the regulations made clear, however, inclusion of the qualifying crime in the indictment or complaint is not a predicate to U Visa relief. The regulations also make clear that although U.S. Citizenship and Immigration Services has sole jurisdiction over the issuance of U Visa petitions, the BIA and Immigration Judge have the authority to continue their proceedings at there quest of a petitioner who has applied for U Visa or to terminate proceedings without prejudice at the joint request of the petitioner and Immigration and Customs Enforcement. Although it noted that it does not have jurisdiction to review the petitioners' challenge to the BIA's hardship determinations, and Ninth Circuit precedent forecloses their argument that the BIA's construction of the hardship standard violates due process, the USCA remanded to the BIA for it to consider the petitioners' request in light of the new U Visa regulations as a request for a continuance, or to consider any joint motion for a stay or termination. B. Fletcher, Reinhardt, and Rymer, Circuit Judges. Per Curiam. J. Laguna of Santa Ana, CA, for the petitioner; P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

33) IMMIGRATION: Rivera v. Mukasey, 06-70028 (9th Cir. Dec. 7, 2007). Rivera, a native and citizen of the Philippines, peti-tioned for review of the BIA's dismissal of an IJ's denial of her application for asylum and withholding of removal. The USCA denied the petition, finding that the IJ's adverse credibility ruling was supported by substantial evidence and that the BIA properly exercised its discretion in reducing Rivera's period for voluntary departure to 30 days. Rivera had entered the U.S. in June 1993 on a Visitor's Visa that authorized her to stay until June 1994. When she stayed past that date, the INS issued an order to show cause, charging Rivera with deportation. Rivera responded with an application for asylum and withholding to deportation, contending that she had suffered past harassment, persecution and torture at the hand s of the New People's Army ("NPA") due to her participation in the Filipino Civilian Voluntary Organization. Her asylum application described a 1992 episode in which NPA members abducted and beat her. They kept her for several days until she agreed that she would cease providing the government with information about NPA activities. Soon thereafter, she learned that the NPA had murdered her fiancé, the chief of police in her town. It was then, she said, that she fled to the United States. She added that she briefly returned to the Philippines, but after determining that the NPA was still looking for her, returned to the U.S. in June 1993. She averred that a return to her homeland would result in her arrest, detention, torture or death based upon her past activities and political opinions. The IJ held a merits hearing, after which he denied Rivera's requests for asylum and withholding of deportation. On appeal, the BIA determined that Rivera's counsel had ineffectively assisted her by failing to adequately prepare her for a hearing and remanded the case to the IJ for a new hearing, and directed the IJ to permit the parties to present additional evidence to make an explicit credibility finding. On remand, the IJ held gave Rivera an opportunity to submit another application. But she declined that opportunity, opting instead to merely correct some dates on her initial application. She then testified about the events and circumstances in the Philippines that led her to flee to the United States. But her testimony differed substantially from her 1997 testimony and contained contradictory statements. In respond to questioning by her new counsel, she attempted to explain why her 1997 testimony had been inaccurate, stating that she was confused, scared, nervous and uncomfortable with her attorney. The IJ determined that Rivera's testimony was not credible due to numerous inconsistencies between her 1997 testimony and her 2004 testimony. Alternatively, the IJ found that Rivera had failed to show that she had suffered past persecution or an objective basis for a fear of future persecution. The IJ denied her claims for asylum and withholding of deportation and granted her 90 days for voluntary departure. The BIA affirmed, noting the specific inconsistencies that led to the IJ's negative credibility determination, and finding that the IJ had not committed clear error in determining that Rivera was not credible and could not meet her burden of showing eligibility for asylum. The BIA also reduced the period of voluntary departure from 90 days to 30. The USCA denied Rivera's petition for review, concluding that her inconsistencies deprived her claim of the requisite "ring of truth" and were glaring as her entire clam centered on just two events. Judge Graber concurred except in the court's final four paragraphs which she said included unnecessary dicta on issues not before the court. Beezer (author), Trott, and Graber (concurring), Circuit Judges. A. Dixon of San Francisco, CA, for the petitioner; C. Mullens of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

34) IMMIGRATION: Toufighi v. Mukasey, 04-74010 (9th Cir. Dec. 13, 2007). Toufighi, a native and citizen of Iran, sought review of a BIA decision which denied his motion to reopen his claims for asylum and withholding of removal. He sought to reopen the pro-ceedings in reliance on his marriage to a U.S. citizen, and what he argued were changed circumstances in Iran material to his claims. The USCA denied the petition for review. Toufighi had entered the U.S. as a non-immigrant visitor with authorization to remain for six months. When he overstayed his visa, the INS instituted removal proceedings. At a September 1997 hearing, he testified that he had converted from Islam to Christianity and feared that he would be persecuted for apostasy if returned to Iran. The Immigration Judge ("IJ") found that Toufighi had not in fact converted to Christianity. The IJ further found that Toufighi had not previously practiced Christianity in Iran, and that he would not practice it there in the future because his alleged apostasy was simply a ruse to gain asylum. The IJ thus concluded that Toufighi had not established past persecution, or a well-founded fear of persecution upon his return to Iran. The IJ denied Toufighi's claim for asylum, and because the standard was higher, also denied his request for withholding of removal. It granted Toufighi's alternate request for voluntary departure. However, Toufighi did not depart as promised. Instead, he moved to reopen his case to adjust his status to that of a lawful permanent resident based upon his recent marriage to the U.S. citizen. Alternatively, he asserted that changed conditions in Iran warranted reopening his asylum claim. The BIA denied the motion. First, it found that as a consequence of Toufighi's failure to voluntarily depart pursuant to the BIA's grant of voluntary departure, he was barred from applying for adjustment of status for 10 years under 8 USC Sec. 1229c(d). Second, the BIA held that the application for adjustment of status was barred as untimely under to 8 CFR Sec. 1003(c)(2). Third, the BIA rejected the motion to reopen based on changed circumstances in Iran as it was not supported by evidence that Toufighi would be directly affected by the alleged changes. The USCA denied the petition. The BIA held that Toufighi's motion to reopen to adjust his status based on marriage to a U.S. citizen and the birth of their citizen children could not be considered because the motion was untimely and barred by civil penalties assessed against Toufighi for failing to depart as ordered. As for his request to reopen in light of changed circumstances in Iran, the BIA, in reliance on the IJ's conclusion that Toufighi had not converted, and would not be identified as have done so, held that the evidence presented was not rele-vant, and that he failed to establish a prima facie case for asylum. The BIA's decisions were not an abuse of discretion and were supported by substantial evidence. Dissenting, Judge Berzon thought the BIA misunderstood what the IJ said about Toufighi's con-version and, as a result, failed to consider whether circumstances have changed with regard to how Iran treats apostates. Moreover, she thought that the majority had perpetuated the BIA's error. Berzon (dissenting) and Ikuta, Circuit Judges, and Singleton (author), District Judge. T. Chandler of San Francisco, CA, for the petitioner; A. Dinnel of Washington, DC, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/)

35) IMMIGRATION: Arteaga v. Mukasey, 05-70368 (9th Cir. Dec. 27, 2007). Arteaga, a long-time lawful permanent resident of the United States faced removal to El Salvador. He petitioned for review of a BIA decision dismissing his appeal from an Immigration Judge's order finding him removable as an alien convicted of an aggravated felony and of an offense related to a controlled substance, and denying him withholding of removal and relief under the Convention Against Torture. Arteaga argued that because he is marked with tattoos indicating his gang membership and may thus be persecuted by rival gang members if returned to his home country, he qualifies for withholding of removal under 8 USC Sec. 1231(b)(3) as a member of a "social group." He defined this group variously as American Salvadorian U.S. gang members of a Chicano American street gang, and as former members of the same. The USCA held that Arteaga did not qualify for withholding of removal as a member of a social group within the meaning of Sec. 1231(b)(3). Trott (author) and Rawlinson, Circuit Judges, and King, District Judge. S. Potts of Los Angeles, CA, for the petitioner; G. Holm of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

36) IMMIGRATION: Mendoza-Mazariegos v. Mukasey, 05-70163 (9th Cir. Dec. 6, 2007). Mendoza entered the United States without inspection in 1985 and has since resided here. He and his wife have three children, ages 4, 7, and 11, who are U.S. citizens. The family resides in Palmdale, California, where Mendoza works for a church. In 1998, the government placed Mendoza in removal proceedings, charging him with being an alien present in the U.S. without inspection. Mendoza appeared pro se before the Immigration Judge ("IJ"). He declined to be represented by counsel, and conceded his removability. Recognizing that Mendoza was a candidate for cancellation of removal, the government attorney suggested that the IJ inform Mendoza of available relief. The IJ gave Mendoza a cancellation of removal application form, instructing him to submit it by the next scheduled hearing. The USCA held that Mendoza was effectively denied his statutory right to be represented by counsel. It declined to reach his other contentions and granted his petition for review. It then vacated the order that Mendoza voluntarily depart and remanded to the BIA for further proceedings. Pregerson (author), Gould, and Clifton, Circuit Judges. M. Acosta of Los Angeles, CA, for the petitioner; C. Federighi of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

37) IMMIGRATION: Estrada-Rodriguez v. Mukasey, 06-75064 (9th Cir. Dec. 28, 2007). The petitioner sought review of a Board of Immigration Appeals ruling that he was removable as an aggravated felon based upon his conviction for resisting arrest in violation of Arizona Revised Statutes Sec. 13-2508. The BIA characterized the crime as a crime of violence under 8 USC Sec. 1101(a)(43)(F), which classifies crimes of violence as aggravated felonies. The USCA denied review, holding that resisting arrest under Sec. 13-2508 categorically constitutes a crime of violence. D.W. Nelson (author) and Bea, Circuit Judges, and Oberdorfer, District Judge. J. Braca-monte of Phoenix, AZ, for the petitioner; E. Marsteller of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

38) CIVIL RIGHTS / POLICE INTERNAL AFFAIRS: Aguilera v. Baca, 05-56617 (9th Cir. Dec. 27, 2007). The plaintiffs, vari-ous Los Angeles Country sheriff deputies, appealed a summary judgment in favor of Sheriff Baca, the Sheriff's Department, other supervisory officers, and internal affairs investigators. The deputies alleged that they were improperly detained at a sheriff's station and later punished through involuntary shift transfers and failing to give non-privileged statements in connection with an internal criminal civil rights investigation of their possible misconduct while on uniformed patrol duty. They claimed violations of their own Fourth Amendment right to be free from unreasonable seizures, their Fifth Amendment due process right against compelled self-incrimination, and their Fourteenth Amendment due process rights to be free from coercive police questioning and governmental conduct that shocks the conscience. The USCA affirmed. As it found that the supervisors did not violate the deputies' Fourth, Fifth, or Fourteenth Amendment rights, it upheld the district court's summary judgment. Since no violation of any constitutional right occurred, the USCA did not reach the claim against the County under Monell v. Dept. of Social Services, 436 U.S. 658 (1978). It too had been properly dismissed. Judge Kozinski dissented for the most part. He thought that the plaintiffs had presented a triable issue of fact on their claim that they were arrested without probable cause because a jury could find, on the evidence presented, that reasonable people in the plaintiffs' position would have believed they were placed under arrest and not merely asked to work overtime. Kozinski (dissenting), Kleinfeld, and Tallman (author), Circuit Judges. E. Gibbons of Encino, CA, for the appellants; P. Beach of Glendale, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

39) CIVIL RIGHTS / EXCESSIVE FORCE CLAIMS: Long v. City and Country of Honolulu, 05-16567 (9th Cir. Dec. 21, 2007). Long, mother of decedent Dustan Long, appealed the grant of a motion for summary judgment in favor of defendants, City and County of Honolulu, and police officer Sterling. She maintained that Sterling used deadly force against her son in violation of his Fourth Amendment rights and that the district court erred in granting him qualified immunity. Concluding that Sterling acted in an objectively reasonable manner under the circumstances, the USCA affirmed the district court's judgment. O'Scannlain, Tashima, and Smith (author), Circuit Judges. J. Schweigert of Honolulu, CA, for the plaintiff-appellant; B. Hiyane of Honolulu, HI, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

40) EVIDENCE: USA v. Berber-Tinoco, 06-50684 (9th Cir. Dec. 19, 2007). Berber-Tinoco challenged the district court's denial of his motion to suppress his statements and fingerprints which were taken pursuant to an arrest by Border Patrol officers. He argued that the officers lacked reasonable suspicion to stop him, and that the USCA must reverse the district court due to misconduct by the district court judge during the suppression hearing. The USCA held that there was reasonable suspicion for the stop and that the judge's violation of Fed. R. Evid. 605 was harmless. Wallace, T.G. Nelson, and Ikuta (author), Circuit Judges. J. Fife of San Diego, CA, for the appellant; AUSA D. Leshner of San Diego, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

41) DNA TESTING / RELIGIOUS FREEDOM: USA v. Zimmerman, 06-50506 (9th Cir. Dec. 18, 2007). At issue here was whether compelling a criminal defendant to give a blood sample for DNA testing could violate his rights under the Religious Freedom Restoration Act ("RFRA"). The district court rejected Zimmerman's objections and held that his DNA could be extracted through a blood sample. The USCA held that the district court erred in holding that Zimmerman's belief that he can't give blood isn't religious. It thus vacated and remanded for the district court to reconsider the matter, instructing it to first determine the scope of Zimmerman's beliefs, and then whether his beliefs are religious, whether they are sincerely held and whether a compelled DNA sample substantially burdens the exercise of religion. If Zimmerman can show that the exercise of a sincerely held religious belief is substantially burdened by an DNA extraction, the government must establish that it proposes to use the lead restrictive means to further a compelling governmental interest. Kozinski and Rawlinson, Circuit Judges, and Baer, District Judge. Per Curiam. DFPD G. Ivens of Los Angeles, CA, for the appellant; AUSA B. Kim of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

42) FIREARMS: Jennings v. Mukasey, 05-16869 (9th Cir. Dec. 20, 2007). The Bureau of Alcohol, Tobacco, and Firearms ("ATF") denied Jennings' application to renew his federal firearms license ("FFL") because Jennings had been convicted in California of a mis-demeanor crime of domestic violence ("MCDV"). He also had failed to disclose that conviction on the license renewal questionnaire. Jennings argued that he did not disclose his conviction because it had been "expunged" by a 1999 expungement order granted under California law. As this "expungement" wiped out the conviction, the ATF was precluded from using it, or his failure to disclose it, to deny the FFL renewal application. The district court disagreed and upheld the ATF's action. The USCA affirmed, finding that the "ex-pungement" under California law did not eliminate the MCDV conviction, and the ATF properly relied on it to deny the FFL renewal application. Alarcon, Thompson (author), and Tallman, Circuit Judges. J. Sabalos of Newport Beach, CA, for the appellants; AUSA G. Addington of Reno, NV, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

43) FELONS IN POSSESSION OF FIREARMS: USA v. Crampton, 06-30219 (9th Cir. Dec. 20, 2007). The USCA here con-strued aspects of the law criminalizing possession of firearms by felons and the Armed Career Criminal Act ("ACCA"). Crampton argued that the indictment did not state an offense because under Oregon law (the state of all four of his convictions) he was permitted to possess ammunition. However, federal law controls what Crampton could possess and it criminalizes Crampton's possession of ammunition. Second, the ACCA imposes a 15-year minimum sentence on people with three prior convictions of sufficient seriousness. Crampton argued that his predicate offenses were insufficiently serious impose the harsher penalties under this statute. However, USA v. Dunn, 946 F.2d 615, 621 (9th Cir. 1991), and USA v. Amparo, 68 F.3d 1222, 1225-26 (9th Cir. 1995), held that possession of an unregistered short-barreled shotgun is a "crime of violence" even if it was never used and the statute does not require violent use. Finally, Crampton's drug convictions counted as predicate offenses for the ACCA. Thompson, Kleinfeld (author), and Bybee, Circuit Judges. R. Fredericks of Eugene, OR, for the appellant; AUSA F. Papagni of Eugene, OR, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

44) TAX EVASION: USA v. Cohen, 06-10145 (9th Cir. Dec. 26, 2007). These consolidated appeals follow the convictions and sen-tences of a well-known recidivist tax protestor, Irwin Schiff, and two of his acolytes, Cynthia Neun and Lawrence Cohen. After Schiff's last release from prison in 1991 for income tax evasion, he opened a store in Las Vegas, Nevada, where he sold books, audio tapes, videos and instructional packages, many created by him, explaining how to "legally stop paying income taxes." Cohen and Neun worked at the store, and, together with Schiff, the provided "consultation services" to clients who wished to avoid paying federal income taxes. They encouraged their clients to file "zero returns," federal individual income tax returns containing a zero on every line related to income and expenses, and, in most cases, seeking an improper refund of all federal income taxes withheld during the tax year for which it was filed. Following a 23-day joint trial in which Schiff represented himself, the jury returned guilty verdicts with respect to many of the counts in the indictment. In particular, Cohen was convicted of one count of aiding and assisting in the filing of a false federal income tax return in violation of 26 USC Sec. 7206(2), for which he received a 33-month sentence. At trial, the district court summarily convicted Schiff of 15 counts of criminal contempt pursuant to 18 USC Sec. 401 based on his unruly courtroom behavior. Schiff's total sentence for those convictions was 12 months in prison to be served consecutive to his tax evasion and conspiracy sentence. Cohen maintained that his conviction must be overturned because the district court wrongfully excluded the expert testimony of his psychiatrist who would have offered evidence of Cohen's mental state. The USCA agreed and reversed Cohen's conviction, vacated his sentence, and remanded for a new trial. Schiff challenged the contempt convictions and the resulting sentences. The USCA vacated the contempt convictions due to the district court's failure to properly file contempt orders for each of those convictions as required by Fed. R. of Crim. Proc. 42(b) and Ninth Circuit precedent. The USCA remanded to allow the district court to file those orders in the proper form, to then reinstate the contempt convictions and reimpose punishment for Schiff's contumacious behavior. Thomas, Tallman (author), and Ikuta, Circuit Judges. C. Bowers and M. Cristalli of Las Vegas, NV, and S. Waxman of South Haven, Michigan, for the appellants; M. Determan of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

45) TRIAL DELAYS / EVIDENCE: USA v. Corona-Verbera, 06-10538 (9th Cir. Dec. 7, 2007). Corona-Verbera appealed his jury conviction and four concurrent 18-year sentences on numerous cocaine and marijuana importation and distribution charges. At issue before the USCA was 1) whether a nearly 5-year delay between events giving rise to the indictment and the return of the indictment constituted a due process violation; 2) whether, in spite of a nearly 8-year delay between the indictment and arrest, the U.S. government was diligent in searching for Corona-Verbera and bringing him to trial; 3) whether there was sufficient evidence to convict Corona-Verbera on all four counts; and 4) whether four concurrent 18-year sentences were unreasonable. The USCA affirmed. Corona-Verbera failed to show actual prejudice with respect to his claims of unlawful delay. The government was diligent in its efforts to bring him to trial and was not required to seek extradition from Mexico when it believed extradition was futile. His Sixth Amendment claim thus failed. There was also sufficient evidence for a reasonable juror to convict him on counts 1, 2, 19, and 20. Finally, the 18-year sentence was reasonable and did not violate any treaty obligations or the terms of the extradition agreement. Beezer, Trott (author), and Smith, Circuit Judges. A. Matheson of Tucson, AZ, for the defendant-appellant; AUSA G. Ferko of Tucson, AZ, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

46) THE "ACTUAL INNOCENCE" STANDARD: Smith v. Baldwin, 04-35353 (9th Cir. Dec. 26, 2007). The USCA took this case to correct a misconstruction of the Schlup v. Delo, 513 US 298 (1995), "actual innocence" gateway by a divided panel in Smith v. Baldwin, 466 F.3d 805 (9th Cir. 2006), reh'g en banc granted, 482 F.3d 1156 (9th Cir. 2007). The panel erroneously held that Smith could satisfy the "actual innocence" standard to overcome "a procedural default of his claims in so far as they relate to his felony murder conviction," thus permitting him to proceed with his constitutional claims. The USCA, sitting en banc, disagreed, and affirmed the district court's decision. It held that Smith procedurally defaulted the claims in his federal habeas petition, and it could not excuse his default because he failed to show actual innocent or cause and prejudice. The USCA thus did not reach the merits of Smith's petition. Concurring, Judge Fisher, joined by Schroeder, W. Fletcher, and Paez, wrote separately to note that while he agreed in the majority's result, he did not agree with all of its reasoning. Specifically, he would affirm the district court's decision on narrower grounds, relying solely on the determination that Smith cannot overcome the high stand set by Schlup with respect to element (d) of Oregon's affirmative defense to felony murder. Thus Smith cannot pass through the "gateway" to have his otherwise barred constitutional claims considered on the merits. Judge Fisher agreed that the court should assume that there was prosecutorial misconduct, generally for the reasons spelled out in Reinhardt's and Thomas' dissents. But, he was not persuaded that the facts of this case warrant skipping over the Schlup gateway to remedy this misconduct. Smith's problem was his inability to show that, on the record as a whole, no reasonable juror would have concluded that he proved all the necessary elements of Oregon's affirmative defense to felony murder. Dissenting, Judge Reinhardt, joined by Thomas, thought that in reading the majority's opinion, one "could hardly discern that this appeal is about a case of egregious prosecutorial misconduct-threatening a witness with execution if he testifies favorably to the defendant." Instead, the majority engaged "in a remarkable and creative act of hypothetical appellate fact-finding and, on the basis of the testimony, it believed might have been given, concludes that the witness's testimony had that of others, whatever that testimony might have been, would be of no consequence." Concurring in Judge Reinhardt's dissent, Judge Thomas wrote separately to amplify his own views. He said he could conceive of no stronger governmental interference with a witness's free choice to testify than to threaten the witness with death at the hands of the state if that witness testifies consistent with his sworn affidavit. He thought that either the government did not believe the witness's affidavit-in which case it was prepared to seek capital punishment despite its belief that the man did not commit the murder-or the government wanted to suppress truthful statements that might case a man who did not commit the murder to be freed or his sentence reduced. If this type of threat had been made by the defense, Judge Thomas thought there was little doubt the court would call it witness tampering, sanctionable by an obstruction of justice charge. Judge Thomas would hold that the petitioner's due process rights were violated by the threat made against the witness and remand for a full Schlup evidentiary hearing. Smith (author), joined by Kozinski, Kleinfeld, McKeown, Wardlaw, Tallman, Clifton, Bybee, and Ikuta; Fisher (concurring), joined by Schroeder, W. Fletcher, and Paez; Reinhardt (dissenting), joined by Thomas; Thomas (dissenting) separately. T. Hester of Portland, OR, for the petitioner; AAG K. Cegla of Salem, OR, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

47) DOUBLE JEOPARDY: USA v. Zalapa, 06-50487 (9th Cir. Dec. 5, 2007). The USCA held that a defendant who fails to object in the district court to multiplicitous convictions and sentences does not waive his or her right to raise a double jeopardy challenge on appeal. Finding that the district court plainly erred in sentencing Zalapa on multiplicitous firearm counts, the USCA reversed and instructed the district court to vacate the multiplicitous conviction and sentence. T.G. Nelson, Ikuta, and Smith (author), Circuit Judges. DFPD J. Locklin of Los Angeles, CA, for the defendant-appellant; AUSA B. Gilchrist of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

48) WIRETAPS / PROSECUTORIAL MISCONDUCT / SENTENCING: USA v. Lococo, 05-50550 (9th Cir. Dec. 27, 2007). The defendants pled guilty to conspiring to possess and distribute cocaine. At issue was the government's application for the wiretap on which its case was built, an allegation of prosecutorial misconduct and the constitutionality of the defendants' sentences. The USCA dismissed in part and affirmed in part. First, the district court did not abuse its discretion in finding that the application justified the wiretap. Law enforcement officials do not need to exhaust ever conceivable investigative technique before seeking a wiretap. Second, the defendants did not show that the application contained false statements or material omissions. Third, the defendants did not show that that the government's failure to product its recordings of defendant Lococo's phone calls prejudiced anyone's defense or affected anyone's decision to plead guilty. Fourth, in his plea colloquy, Lococo waived his right to have a jury determine the amount of drugs the conspiracy sold. There was no need for the district court to advise him of this right at sentencing. Fifth, in their plea agreements, defendants Lococo and Edwards waived their right to appeal their sentences. Edwards claimed his waiver wasn't valid, but his plea colloquy showed he waived the right knowingly and voluntarily. These waivers barred the defendants from appealing the district court's interpretation of the Sentencing Guidelines, its calculation of the Guidelines range, its alleged failure to consider the sentencing factors in 18 USC Sec. 3553(a), and the reasonableness of the sentences imposed. Kozinski, Tashima, and McKeown, Circuit Judges. Per Curiam. G. Fusilier of Carlsbad, CA, and A. Peterson of Irvine, CA, for the defendants; AUSA J. Corbet of Los Angeles, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

49) SENTENCING: USA v. Biagon, 06-10479 (9th Cir. Dec. 17, 2007). At issue here was whether the district court violated Bi-agon's right of allocution when it denied his motion to close the courtroom for sentencing. The USCA held that his rights were not violated, and affirmed the district court. Judge Kleinfeld concurred in the majority's result and in most of its reasoning. He agreed with the majority that Biagon 1) had a constitutional right to allocution, 2) exercised it, 3) did not say that he had more that he wanted to say if he could speak in a closed courtroom, and 4) the judge did not abuse his discretion under Fed. R. Crim. Proc. 32 in denying Biagon's lawyer's request at the commencement of the sentencing hearing to close the courtroom to the public or move the hearing to when everyone else (probably lawyers and defendant in other cases) would be gone. Kleinfeld further noted that defense counsel did not want the public proceeding to reveal Biagon's cooperation with the government. That cooperation was the reason urged for lenience in sentencing. The judge said he was familiar with this "elephant in the room" and would consider it, so closing the courtroom in order to bring the "elephant" to his attention was unnecessary. That decision was within its discretion under Rule 32(i)(4)(C), because the "good cause" shown for in camera proceedings did not outweigh the interest in an open courtroom. That, Kleinfeld thought, was all that the majority needed to say to decide the case. He did not agree with the majority that Biagon did not make a motion and he did not see a good reason to turn "this easy case affirming denial of a defendant's motion to seal the courtroom" into a case about an entirely different subject not raised by the appellant's brief-a new press right to be present during sentencing hearings. Thompson, Kleinfeld (concurring), and Thomas (author), Circuit Judges. C. Leary of San Francisco, CA, for the appellant; AUSA J. Finigan of San Francisco, CA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

50) SENTENCING: USA v. Holt, 06-30597 (9th Cir. Dec. 5, 2007). Holt contested his sentenced following his guilty plea to coercing and enticing a minor to engage in sexual activity in violation of 18 USC Sec. 2422(b) and possession of child pornography in violation of 18 USCA Sec. 2252A(a)(5)(B). The USCA affirmed. It noted that it has previously held that a district court can apply the sadistic conduct enhancement any time images portray the penetration of prepubescent children by adult males because such images are necessarily pleasurable for the participant and painful for the child. USC v. Rearden, 349 F.3d 608, 614-15 (9th Cir. 2003). In the instant case, it follows even more strongly that the district court properly applied the enhancement where at least one image in Holt's possession depicted the penetration of a two- or three-year-old child by an adult male. In addition, a district court can apply the vulnerable victim enhancement where a child is so young and small that he or she is less able to resist than other child victims of pornography and will experience great pain from sexual penetration. See USA v. Wright, 373 F.3d 935, 943-44 (9th Cir. 2004) (holding that the district court's application of both the enhancement for children under twelve and the enhancement for vulnerable victim did not constitute improper double counting). Although Holt argued that the USCA should distinguish Wright on the ground that the victim in Wright was an infant, whereas here a toddler victim could have walked away, the USCA found that argument to be so weak as to be frivolous. There could be no dispute that the two- or three-year-old child shown being sexually penetrated was not in a position of sufficient strength to resist the sexual abuse. Canby, Graber, and Gould (author), Circuit Judges. C. Smith of Missoula, MT, for the appellant; AUSA E. Wolff of Billings, MT, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

51) SENTENCING: USA v. Macias-Valencia, 06-10711 (9th Cir. Dec. 5, 2007). At issue here was whether the mandatory minimum sentence of 10 years prescribed by 21 USC Sec. 841(b)(1)(A)(viii) applies to a conviction for conspiracy with intent to distribute, and attempted possession with intent to distribute, 50 grams or more of methamphetamine, even when no actual contraband was involved in the commission of the offense. Joining the Sixth Circuit, the USCA answered "yes." Congress has dictated that a conviction for a conspiracy to distribute or an attempt to distribute a controlled substance carries the same penalty as a conviction for the distribution of the same amount of the same controlled substance. Neither a conspiracy conviction nor an attempt conviction requires the delivery, presence, or even existence of actual contraband. The district court thus properly imposed the mandatory minimum sentence. Beezer, Trott, and Graber (author), Circuit Judges. R. Bondoc of San Francisco, CA, for the defendant-appellant; AUSA J. Glang of San Jose, CA, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

52) RESTITUTION: USA v. Moreland, 05-30541 (9th Cir. Dec. 12, 2007). For his participation in a fraudulent pyramid scheme, Moreland was convicted of mail and wire fraud, money laundering, and related conspiracy charges. On an earlier remand, the district court imposed a revised sentence of 18 years in prison and ordered Moreland to pay restitution of some $36 million. Moreland appealed his conviction on the grounds that he involuntarily waived his right to counsel and received ineffective assistance of counsel, the district court erred in not granting an adequate continuance, the prosecution committed misconduct resulting in a violation of his due process rights, and the evidence was insufficient. He appealed his sentence on the grounds it was unreasonable under 18 USC Sec. 3553(a), and, he appealed the imposition of restitution because the district court failed to comply with the time frame outline in Sec. 3664(d)(5) of the Mandatory Victims Restitution Act. The USCA found that none of Moreland's arguments warranted reversal and affirmed. In particular, the prosecution did not waive its right to seek restitution. Restitution under the MVRA is not a right to be sought or waived by a prosecutor. Restitution is mandatory where the MVRA applies. Hug (author), McKeown, and W. Fletcher, Circuit Judges. J. Gross of Seattle, WA, for the appellant; AUSA A. Friedman of Seattle, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

53) SUPERVISED RELEASE / CREDIT FIXING: USA v. Betts, 06-50205 (9th Cir. Dec. 14, 2007). Betts worked for TransUnion, one of the three major credit reporting agencies. He headed the unit that decided disputes, where people claimed that some negative mark on their credit score was inaccurate. He took bribes and conspired with his codefendants to falsely improve people's credit scores. His coconspirators would take money from people who wanted to improve their credit, and send letters that Betts would put in TransUnion's data base in such a way as to delete negative entries. It was a kind of private sector ticket-fixing scheme, with the outside people calling themselves "Second Chance Financial Services," designed to make it easier for people with bad credit records to borrow money. Betts did not create or direct the conspiracy, but was the essential inside man at TransUnion and helped his coconspirators compose an effective form letter. Betts falsified 654 credit histories, generating around a million dollars in losses to lenders who got stuck with the bad risks. He pled guilty to conspiracy and raised no issue on appeal except with regard to sentencing: He claimed that the conditions of supervised release were too restrictive. The judgment applied these conditions to the entire three-year period of supervised release. The USCA found that the employment and search conditions were proper, but that the windfall and abstention conditions were error. Kleinfeld (author), Gould, and Smith, Circuit Judges. DFPD J. Locklin of Los Angeles, CA, for the appellant; AUSA D. McCormick of Santa Ana, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

54) HABEAS CORPUS: Bradley v. Henry, 04-15919 (9th Cir. Nov. 19, 2007). At issue on this appeal was whether a California Court of Appeal was not merely erroneous but objectively unreasonable in its application of the U.S. Constitution as the meaning of the Constitution was determined, at the time of the decision of the California court, by the U.S. Supreme Court. The USCA reversed and remanded for further proceedings. The in-camera hearing below, without the petitioner present denied her right to the assistance of counsel, and this error was confirmed and compounded by the court's refusal to let the petitioner address the issue in open court. The harmful sequel to this first error of constitutional magnitude was the court's constitutional error in refusing to replace attorney Andrian when the attorney-client relationship had broken down. This error led to a third denial of the right to assistance of counsel; the court's refusal to have Andrian replaced or assisted by Jordan, with the resultant injury to the petitioner's defense at trial. Judge Clifton, joined by Schroeder, Fletcher, and Berzon concurred in the judgment reversing the denial of Bradley's petition under 28 USC Sec. 2254, but wrote separately because his own conclusion was based upon the denial by the trial court of Bradley's January 1999 motion, filed more than six weeks before the then-scheduled trial date, to substitute retained counsel Jordan for the attorney previously appointed by the court to represent her, Andrian. Clifton thought that the subsequent decision by the California Court of Appeal to affirm Bradley's conviction despite that denial of her motion to substitute was an unreasonable application of established Supreme Court precedent, even under the deferential standard applicable to USCA review of a state court conviction. Judge Silverman, joined by Tallman, dissented. He noted that the majority held that Bradley's wrongful exclusion from a critical hearing justified reversal de-spite an explicit determination by the California Court of Appeal that the exclusion was harmless, and that it criticized the trial court's denial of Bradley's request to replace appointed counsel with retained counsel one month before trial, but ignored the trial court's rea-soning which was amply supported by the facts-Bradley's poor track record of maintaining relationships with previous retained coun-sel. Silverman thought the majority's de novo analysis flew in the face of the facts, the reasoning offered by the California courts, Ninth Circuit law, and the constraints of the Antiterrorism and Effective Death Penalty Act. Schroeder, Pregerson, Ferguson, Noonan (author), Thomas, Silverman (dissenting), W. Fletcher, Berzon, Tallman, Rawlinson, and Clifton (concurring), Circuit Judges. D. Riordan of San Francisco, CA, for the petitioner; DAG G. Ott of San Francisco, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

55) HABEAS CORPUS: Byrd v. Lewis, 06-15977 (9th Cir. Dec. 11, 2007). The district court denied Byrd 28 USC Sec. 2254 ha-beas corpus petition which challenged his jury conviction for unlawfully taking a vehicle under Cal. Vehicle Code Sec. 10851(a). The USCA held that that state court's application of harmless error review to the trial court's jury instruction lowering the prosecution's burden of proof was contrary to or an unreasonable application of clearly established Supreme Court precedent. It reversed the district court's denial of Byrd's habeas petition as to that issue, but otherwise affirmed. Dissenting in part, Judge Wallace did not think it was an unreasonable application of clearly established federal law for the court to apply harmless error review. Wallace (dissenting in part) and Rawlinson (author), Circuit Judges, and Restani, U.S. Court of Intl. Trade Judge. K. Hart of Sacramento, CA, for the petitioner; D. Gillette of Sacramento, CA, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/)

56) HABEAS CORPUS: Smith v. Patrick, 04-55831 (9th Cir. Dec. 4, 2007). Smith was convicted in California state court of assault on a child resulting in death. The state court of appeal affirmed the conviction and the California Supreme Court denied review. Smith then filed a federal habeas petition claiming that her conviction violated due process because the evidence was constitutionally insufficient. The district court denied the petition and Smith appealed. The USCA reversed and directed issuance of the writ. It held that no rational trier of fact could have found beyond a reasonable doubt that Smith caused the child's death, and that the state court's affirmance of Smith conviction was an unreasonable application of Jackson v. Virginia, 443 US. 307 (1979). When the State's petition for panel and en banc rehearing was denied, it petitioned for certiorari in the U.S. Supreme Court. While that petition was pending, Carey v. Musladin, 127 S.Ct. 649 (2006), was decided. The Supreme Court then granted certiorari in the present case, vacated the USCA's judgment, and remanded for further consideration in light of Carey. The USCA ordered supplemental briefing and, upon re-considering its earlier decision as directed, it concluded that its earlier decision is unaffected by Carey. It thus reinstated its judgment and opinion. It found that the opinion of the prosecution experts that shaking of the infant had caused death was wholly unsupported by the physical evidence. Pregerson and Canby, Circuit Judges, and Reed, District Judge. M. Brennan of Manhattan Beach, CA, for the petitioner; DAG K. Jorstad of Los Angeles, CA, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/)

57) HABEAS CORPUS: Cooper v. Brown, 05-99004 (9th Cir. Dec. 4, 2007). Cooper appealed the district court's denial of his third federal habeas petition. Sitting en banc, the USCA held that Cooper made out a prima facie case that entitled him to file a second or successive application; it authorized him to file it; and then it remanded for the district court to order that two tests be performed so that the issue of his innocence could be addressed once and for all. Cooper v. Woodford, 358 F.3d 1117, 1124 (9th Cir. 2004). The two tests were a mitochondrial test of blond hairs found in one of the victim's hands, and a test for the presence of the preservative agent EDTA on a bloody T-shirt that was not part of the prosecution's case at trial but that Cooper specifically asked, on appeal, to have tested. On remand, the district court conducted the two tests. But the results did not show Cooper's innocence. The court also held extensive evidentiary hearings at which 42 witnesses testified with respect to all issues encompassed in Cooper's third application. In a 159 page ruling comprehensively addressing each claim, the district court then denied the petition on the merits and, alternatively, on the ground that Cooper's claims on the successive petition were procedurally barred. Cooper then sought and the USCA provisionally granted, a Certificate of Appealability ("COA") on whether the district court abused its discretion by denying discovery, necessary forensic testing, evidentiary hearings, and a request to expand the record; whether he is entitled to relief on his claims of actual innocence, the state contaminated or tampered with key evidence, that the state failed to disclose material exculpatory evidence in violation of Brady v. Maryland, 373 US 83 (1963), and that Ryen's testimony was unreliable; and whether he demonstrated constitutional errors without which the jury would have returned a not guilty or non-capital verdict. The USCA affirmed and left the COA in place, but saw no abuse of discretion and adopted the district court's analysis on each claim. Rymer (author), McKeown (concurring), and Gould, Circuit Judges. N. Hile of San Francisco, CA, for the petitioner; DAG Holly of San Diego, CA, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/)

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