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| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
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| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
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1) SECURITIES: Miller v. Thane International,
Inc., 05-56043 (9th Cir. Nov. 26, 2007). In January 2002,
Thane International Inc., a privately held corporation, moved to acquire
Reliant Interactive Media Corporation, which had stock trading on
the Over-the-Counter Bulletin Board ("OTCBB"). Thane initially
promised in a letter to Reliant stockholders that as a condition of
the merger, Thane's stock would be listed on NASDAQ or another national
stock exchange. The final prospectus omitted that listing requirement,
but represented that the merged company's shares had been approved
for trading on NASDAQ. Once the merger was completed, Thane stock
started trading over OTCBB. The share price in the weeks following
the merger ranged between $7 and $8.50. The price dropped a few months
later to below $2 on a poor earnings report, and then the company
repurchased stock at 35 cents a share before the plaintiffs sued as
a class. The plaintiffs appealed the district court's judgment, following
a bench trial, in favor of Thane and its officers and directors on
plaintiffs' action brought under Sec. 12(a)(2) and Sec. 15 of the
Securities Act of 1933. Plaintiffs alleged control person liability
against individual defendants. At issue was whether Thane misrepresented
to investors that it would list its shares on NASDAQ, and if so, whether
that misrepresentation was material. The district court answered "no"
to both question. The USCA reversed and remanded for further proceedings.
After reviewing the "context and manner of presentation"
of Thane's references to the NASDAQ listing, the USCA held that it
had made misrepresentations to investors, and that the district court
clearly erred when it found otherwise. It also held that the misrepresentations
were material. "There can be no dispute," the USCA said,
"that NASDAQ listing carries objective benefits that directly
and positively affect corporate earnings, investor returns, and a
stock's pool of potential shareholders." Silverman, Wardlaw (author),
and Bybee, Circuit Judges. J. Feffer of New York, NY for the appellants;
M. Tu and D. Tyukody of Los Angeles, CA, for the appellees. (Download
the full text of this decision at www.ce9.uscourts.gov/)
2) BANKRUPTCY: In re Lewis, 06-35255 (9th Cir. Nov. 5, 2007). Lewis sought review of a district court's final judgment in favor of the U.S. Department of Education. The bankruptcy court held and the district court affirmed that a congressional amendment to the law governing the dischargeability of a student loan obligation in bankruptcy may be retroactively applied to an obligation incurred prior to the date the law was changed. At issue here was whether the district court correctly ruled that the retroactive amendments govern Lewis's student loans. Lewis argued that he had a right to rely on the statute of limitations in effect at the time he incurred his obligation because 1) the statute of limitations was an implicit term of the contract he signed; 2) his contract created a property right to discharge his student loans after the prescribed statutory period; and 3) any government action to impair his contractual right violated his Fifth Amendment right to due process. The USCA rejected this challenge. Bankruptcy, it noted, is not a right, but a legislatively created benefit that Congress may alter or withhold at its discretion. It did exactly that in 1998 when it amended 11 USC Sec. 523(a)(8)(A) to eliminate, retroactively, the dischargeability of student loans such as Lewis's that have been in repayment for seven years or more. Congress left in place an undue hardship exception to nondischargeability, which Lewis did not claim. Through its power to legislate on bankruptcies, Congress has the power to impair contractual obligations, even retroactively, and Lewis has no superseding right to a discharge in bankruptcy. B. Fletcher (author), Kleinfeld, and Gould, Circuit Judges. D. Zaleha of Boise, ID, for the plaintiff-appellant; AUSA A. Howe of Boise, ID, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 3) BANKRUPTCY / ATTORNEYS' FEES: In re Wind N' Wave, 05-56254 (9th Cir. Nov. 1, 2007). Pursuant to Bankruptcy Code Sec. 503(b)(4), creditors petitioned to recover legal fees incurred in connection with their filing of an involuntary Chapter 7 petition against the debtor. The bankruptcy court denied the fees, but the Bankruptcy Appellate Panel ("BAP") reversed. It granted the creditors' attorneys compensation for their services in connection with the involuntary petition, though it denied them compensation for their work in appealing the bankruptcy court's denial of a fee award. On appeal, the creditors argued that Sec. 503(b)(4) entitles them to attorney fees for the successful appeal of the lower court's decision. The USCA agreed. It thus reversed the BAP's denial of the fee award and remanded to the BAP to award reasonable compensation in accordance with the statute. Hall (author) and Callahan, Circuit Judges, and Strom, District Judge. J. Adler of Los Angeles, CA, for the appellants; E. Israel of Los Angeles, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 4) TERRORISM: Al-Haramain Islamic Foundation v. Bush, 06-36083 (9th Cir. Nov. 16, 2007). Following the 9/11 terrorist at-tacks, President Bush authorized the National Security Agency ("NSA") to conduct a warrantless terrorist communications surveillance program (TSP"). The TSP intercepted international communications into and out of the U.S. of persons alleged to have ties to Al Qaeda and other terrorist networks. After the New York Times revealed the program's existence in late 2005, then-Attorney General Gonzales disclosed that the program targeted communications where the government had concluded that one party to the communications was a member of, or affiliated with, Al Qaeda. Al-Haramain Islamic Foundation, a designed terrorist organization, and two of its attorneys (collectively "Al-Haramain") brought suit against President Bush and other executive branch agencies and officials. They maintained that they were subject to warrantless electronic surveillance in 2004 in violation of the Foreign Intelligence Surveillance Act ("FISA"), the Constitution, and international law. The government countered that the suit is foreclosed by the state secrets privilege, an evidentiary privilege that protects national security and military information in appropriate circumstances. Central to this case is a document classified "Top Secret" (the "Sealed Document") that the government mistakenly gave Al-Haramain in 2004 during separate proceedings to freeze the organization's assets. Faced with the government's motions to dismiss and to bar Al-Haramain from access to the Sealed Document, the district court ruled that the state secrets privilege did not bar the lawsuit altogether. But, it held that the Sealed Document was protected by the state secrets privilege and that the mistaken disclosure did not alter its privileged nature. It further held that Al-Haramain could file in camera affidavits attesting to the contents of the documents based on the memories of lawyers who received copies. The USCA agreed that the state secrets privilege did not bar the very subject matter of this action. And, after in camera review and consideration of the government's documentation of its national security claims, it also agreed that the Sealed Document was protected by the state secrets privilege. However, the USCA reversed the district court's order allowing Al-Haramain to reconstruct the essence of the documents through memory. Such an approach, it said countenances a back-door around the privilege and would eviscerate the state secret itself. Once properly invoked and judicially blessed, the USCA added, the state secrets privilege is not a halfway proposition. Nonetheless, the USCA noted that its resolution of the state secrets issue as applied to the Sealed Document did not conclude the litigation. Al-Haramain also claimed that the FISA preempts the common law state secrets privilege. The USCA remanded this issue as the district court had not reached it in its denial of the government's motion to dismiss. Pregerson, Hawkins, and McKeown (author), Circuit Judges. P. Clement of Washington, DC, for the defendant-appellant; J. Eisenberg of Oakland, CA, for the plaintiffs-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 5) TRADEMARKS: Perfumebay.com Inc. v. eBay Inc., 05-56794 (9th Cir. Nov. 5, 2007). At issue here was whether various forms of the mark "Perfumebay" infringe upon the trademark "eBay." The appellant appealed the district court's decision that Perfumebay infringed eBay's trademark. Specifically, it challenged the district court's finding that the conjoined terms "perfumebay" and "PerfumeBay" create a likelihood of consumer confusion under the Lanham Act with respect to the mark "eBay." The appellant maintained that the district court erred in finding initial interest confusion; in granting injunctive relief despite eBay's unclean hands; and in fashioning the permanent injunction to prohibit the appellant's use of the names "perfumebay" and "perfume-bay." It also contested the district court's denial of attorneys' fees. The USCA affirmed in part and reversed in part. It found that the district court did not clearly err in finding that conjoined forms of "perfumebay" created a likelihood of consumer confusion. The district court thus properly enjoined the appellant from utilizing such infringing marks. The district court also did not clearly err in finding that non-conjoined forms of perfumebay's mark, such as PerfumeBay, did not create a likelihood of confusion. However, the USCA held that the district court did error in holding that Perfumebay's marks did not produce a likelihood of dilution, as the marks are nearly identical to eBay's mark. The district court also erred in finding that eBay acted with unclean hands in its advertising, as the record did not affirmatively demonstrate the requisite intent to deceive. Finally, the district court did not abuse its discretion by declining to award attorneys' fees to Perfumebay, and correctly rejected eBay's breach of contract claim. Trott, Roth, and Rawlinson (author), Circuit Judges. R. St. Marie of Los Angeles, CA, for Perfumebay.com; J. Crittenden of San Francisco, CA, for eBay, Inc. (Download the full text of this decision at www.ce9.uscourts.gov/) 6) ENVIRONMENTAL LAW: UFO Chuting of Hawaii, Inc. v. Smith, 05-16545 (9th Cir. Nov. 28, 2007). UFO Chuting of Ha-waii, Inc. and K.M.B.S., Inc. (collectively "UFO") appealed the district court's summary judgment in favor of the defendants, the State of Hawaii and the United States as Intervenor (collectively "State"). The USCA affirmed, holding that UFO's rights to operate vessels under its federal maritime coasting licenses did not preempt Hawaii law prohibiting parasailing off the coast of Maui during limited portions of the year to protect mating humpback whales. Hawaii's reasonable and nondiscriminatory seasonal ban on parasailing off the coast of Maui did not completely exclude UFO from using its federal license. Entry of summary judgment in favor of the State of Hawaii was proper. In addition, because UFO did not qualify as "prevailing party" under 42 USC Sec. 1988, the district court did not abuse its discretion in denying UFO's motion for attorney's fees. Thompson, Berzon, and Tallman (author), Circuit Judges. D. Niles of Wailuku, HI, for the plaintiffs-appellants; DAG W. Wynhoff of Honolulu, HI, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)
8) ENVIRONMENTAL LAW / CERCLA: California Department of Toxic Substances Control v Alco Pacific, Inc., 05-55962 (9th Cir. Nov. 28, 2007). The California Department of Toxic Substances Control ("the State") brought this cost recovery action under the Comprehensive Environmental Response, Compensation and Liability Act seeking cleanup costs arising from the release of hazardous substances at a former lead processing facility ("the site") operated by Alco Pacific, Inc. and Morris P. Kirk (collectively "Alco"). The State asserted that the defendants, RSR Corporation, Quemetco, Inc. Davis Wire Corporation, Pasminco, Inc. and P Kay Metal Supply, Inc. (collectively "defendants") sold lead content materials to Alco and thus were subject to "arranger" liability for contamination of the site under CERCLA Sec. 107(a)(3). The district court granted summary judgment for the defendants upon concluding as a matter of law that the subject sales fell within the "useful product doctrine" and did not constitute arrangements for disposal or treatment of hazardous wastes under CERCLA. The USCA reversed and remanded for further proceedings. Congress created a recycling exemption to encourage reuse of materials, 42 USC Sec. 9627, an exemption that the defendants unsuccessfully sought to claim before the district court. Fisher and Clifton, Circuit Judges, and Fogel (author) District Judge. DAG L. Pearlman of San Diego, CA, for the appellant; C. Amantea of Los Angeles, CA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 9) TORTS: Summers v. Delta Air Lines, 05-35220 (9th Cir. Nov. 27, 2007). As Black disembarked from a SkyWest airplane, she slipped and fell, suffering injuries that allegedly led to her death. Summers, Black's daughter-in-law and personal representative of her estate, brought suit against Delta and SkyWest airlines, alleging that they negligently failed to provide Black with wheelchair assistance. Trial commenced but, before Summers completed her case-in-chief, the district court granted judgment as a matter of law to the defendants on all claims. On appeal, two procedural requirements of Federal Rule of Civil Procedure 50(a) were examined: that, before the district court may grant judgment as a matter of law, 1) the moving party must specify the judgment sought and the law and the facts forming the grounds for its motion, and 2) the nonmoving party must be fully heard on those grounds. The USCA reversed and remanded. FRCP 50 requires district courts to apprise parties of deficiencies in their proof, and to give them an opportunity to present further evidence on the dispositive facts, before granting judgments as a matter of law against them. Although the district court here gave the plaintiff an opportunity to address the matters raised in the defendants' motion, that opportunity was rendered meaningless when the court granted the motion on wholly different grounds. The plaintiff was neither apprised of the alleged deficiencies in her proof nor given the opportunity to cure those deficiencies. The USCA thus held that the district court erred in granted judgment as a matter of law to the defendants on legal bases neither raised in the defendants' motion nor otherwise previewed by the plaintiff in the district court. Graber (author), Paez, and Bea, Circuit Judges. D. Durham of Sebastopol, CA, for the plaintiffs-appellant; M. Williams of Missoula, MT, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 10) PARTNERSHIPS: J&J Celcom v. AT&T Wireless Services, 05-35567 (9th Cir. Nov. 21, 2007). In 2003, J&J Celcom, together with other former owners of minority interest in nine general partnerships involving cellular telephone businesses, filed a diversity suit in federal district court. They alleged that the defendants, AT&T Wireless Services ("AWS"), and nine of its wholly-owned subsidiar-ies, violated Washington State law when it sold its controlling interest in those partnerships to affiliated entities. The plaintiffs asserted claims of breach of contract, breach of the covenant of good faith and fair dealing, breach of fiduciary duties, misrepresentation, tortious interference, and unjust enrichment. The defendants moved for summary judgment, and the plaintiffs cross-moved for partial summary judgment as to liability. The district court granted summary judgment in the defendants' favor, and denied the plaintiffs' motion. This appeal followed. In a December 26, 2006 memorandum, the USCA affirmed the district court's ruling on all issues save one which it certified to the Washington Supreme Court: Does a controlling partner violate the duty of loyalty to the partnership or to dissenting minority partners where the controlling partner causes the partnership to sell all its assets to an affiliated party at a price determined by a third-party appraisal, when the appraisal and the parties to the transaction are disclosed and the partnership agreement allows for sale of asserts upon majority or supermajority vote, but the partnership agreement is silent on the subject of sale to a related party? The Washington Supreme Court answered this question in the negative, finding that a controlling partner does not violate the duty of loyalty where the controlling partner causes the partnership to sell its assets to an affiliated party. As the partnership agreements herein at issue were dependent upon Washington law for the question before the USCA, this answer disposed of the last remain-ing issue between the parties in favor of the defendants. Rymer, Berzon, and Tallman (author), Circuit Judges. J. Oitzinger of Helena, MT, for the plaintiffs-appellants; B. Mangan of Seattle, WA, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 11) INVESTMENT MANAGEMENT INSURANCE: Financial Management Advisors, Inc. v. American International Specialty Lines Insurance Company, 06-55001 (9th Cir. Nov. 5, 2007). Financial Management Advisors and Financial Management Advisors (collectively "FMA") and Kenneth Malamed appealed from the district court's grant of summary judgment in favor of American International specialty Lines Insurance Company ("AISLIC"). FMA provides investment advice and portfolio management services. Malamed is FMA's President and Chief Investment Officer, and acts as the financial advisor to many FMA clients. FMA and Malamed sought insurance coverage for two separate lawsuits brought against them by unrelated investors who received financial advice from Malamed. The first lawsuit was brought by the Sitricks, a family of investors who invested in traditional equities and fixed income products managed by FMA. When the value of their investments began to decline, they sued, claiming that Malamed made misrepresentations in order to dissuade them from liquidating their equity investments and misrepresented the risk inherent in several Collateral Bond Obligation ("CBO") funds managed by FMA. AISLIC assumed the defense in the Sitricks lawsuit. The second lawsuit was brought by Steinman. Relying on Malamed's advice Steinman also invested in a CBO fund. When his investment declined materially, he sought recovery on the ground that Malamed had misrepresented the riskiness of that CBO and had placed his investment into a tranche of the fund different from and riskier than the tranche he had agreed to in vest in. Thus, Steinman alleged not only that FMA and Malamed misled him, but also that they breached their agreement with him. AISLIC denied coverage of Steinman's claims on the ground that they arose out of the same wrongful acts, or wrongful acts related to, those alleged by the Sitricks and thus would be treated as having been made under "Policy I"-the limits of which had been exhausted in settling the Sitrick Claim. The USCA reversed the district court's summary judgment and remanded for further proceedings. It found that the district court erred in holding that the Sitrick and Steinman claims were related within the meaning of the AISLIC insurance policies. Kozinski and Rawlinson, Circuit Judges, and Cederbaum (author), District Judge. D. Roberts of Los Angeles, CA, for the plaintiffs-appellants; A. Waxler of El Segundo, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 12) OIL & GAS LEASES / NATIVE AMERICAN LAW: Fidelity Exploration and Production Company v. USA, 06-35307 (9th Cir. Nov. 6, 2007). Fidelity Exploration & Production Company sought to quiet title to a portion of the bed of the Tongue River on which it holds oil and gas leases issued by the State of Montana, but to which the United States lays claim as trustee for the Northern Cheyenne Indian Tribe. The district court dismissed the action, brought under the Quiet Title Act ("QTA"), for lack of jurisdiction because the United States has a colorable claim to the western submerged riverbed such that the action is within the "Indian lands" exception to the government's waiver of sovereign immunity; and because Fidelity's suit is barred by the QTA's 12-year statute of limitations. The USCA concluded that Fidelity's predecessor in interest knew, or should have known, of the claim of the United States no later than 1926, when an Act of Congress recognized the "middle channel of the Tongue River" as the eastern boundary of the Northern Cheyenne Reservation. The statute of limitations thus had expired by the time Fidelity filed suit in 2004. The USCA affirmed on this basis, without addressing the "Indian lands" exception. B. Fletcher, Beam, and Rymer (author), Circuit Judges. J. Metropoulos of Helena, MT, for the plaintiff-appellant; AAG S. Wooldridge of Washington, DC, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 13) AMERICANS WITH DISABILITIES ACT: Doran v. 7-Eleven, Inc., 05-56439 (9th Cir. Nov. 9, 2007). The district court granted summary judgment to 7-Eleven, Inc. in Doran's suit under the Americans With Disabilities Act ("ADA"). The USCA affirmed on certain alleged ADA violations Doran encountered or of which he had personal knowledge. However, because the district court erred in concluding that Doran did not have standing to challenge other barriers related to his disability and identified in his experts site inspection, the USCA partially vacated the district court's order granting summary judgment and remanded for further proceedings. Judge Duffy dissented. He noted that the majority holds that an ADA plaintiff has standing to sue for things that did not injure him. In holding that a plaintiff who has encountered or has specific knowledge of one barrier at a facility may sue for any unknown barrier on the premises related to his disability, the majority reasons that it "makes no sense to require a disabled plaintiff to challenge, in separate cases, multiple barriers in the same facility, controlled by the same entity, all related to the plaintiff's specific disability. We do not believe Congress would have intended such a constricted reading of the ADA which could render the benefits it promises largely illusory." However, Judge Duffy thought that the majority's approach compromises longstanding constitutional principles for the sake of convenience, and ignores the fact that no one-not even Congress-can preempt the Constitution and confer standing to a party for things that have not injured him. Farris and Gould, Circuit Judges, and Duffy (dissenting), District Judge. Per Curiam. L. Hubbard of Chico, CA, for the plaintiff-appellant; S. Ferrell of Newport Beach, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 14) NINTH CIRCUIT RULE 28-1 / REHABILITATION ACT: Sekiya v. Gates, 06-15887 (9th Cir. Nov. 29, 2007). Sekiya ap-pealed from the grant of a motion for summary judgment in favor of her employer, Gates, in his official capacity as Secretary of State. She maintained that her supervisor discriminated against her on the basis of her disability, in violation of the Rehabilitation Act. The USCA struck Sekiya's opening brief in its entirety pursuant to Ninth Circuit Rule 28-1 and dismissed the appeal. It published this opinion as a reminder that material breaches of it rules undermine the administration of justice and cannot be tolerated. Sekiya's opening brief failed to provide the applicable standard of review and made no legal arguments. It lacked a table to contents, a table of authorities, citations to authority, and accurate citations to the record. Mindful of the harshness of Rule 28-1, and despite the abject deficiency of the brief, the USCA reviewed Sekiya's case on the merits based on a review of the district court record and satisfied itself that the district court did not err. It concluded that Sekiya did not suffer an adverse employment action when her supervisor requested further substantiation of her absences. Moreover, sarcastic comments made by her supervisor about Sekiya's foot, though insensitive, did not rise to the level of a constructive discharge under Ninth Circuit caselaw. O'Scannlain, Tashima, and Smith, Circuit Judges. Per Curiam. V. Carpenter-Asui of Honolulu, HI, for the plaintiff-appellant; AUSA T. Helper of Honolulu, HI, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 15) LABOR LAW: Beck v. United Food and Commercial Workers Union, Local 99, 05-16414 (9th Cir. Nov. 1, 2007). Local 99 of the United Food and Commercial Workers Union appealed from the district court's determination that Local 99 violated Title VII and breached its duty of fair representation in connection with the termination of one of its members, Beck. Local 99's appeal raised the issue of the proper role of comparative evidence in a Title VII case against a union and the framework that must be applied to a member's claim when the union breaches it duty of fair representation. Affirming the district court's decision, the USCA held that the district court's inference of discriminatory intent was not clearly erroneous. It also affirmed the judgment of the district court with respect to its determination that Local 99 breached its duty of fair representation in handling Beck's April discipline. Hall, O'Scannlain, and Ikuta (author), Circuit Judges. M. Anderson of San Francisco, CA, for the defendant-appellant; H. Grimwood of Phoenix, AZ, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 16) LABOR LAW: Calderon v. IBEW, Local 47, 05-56937 (9th Cir. Nov. 13, 2007). Calderon filed a complaint against IBEW Lo-cal 47 and Southern California Edison Company on August 8, 2005. He served the Local but initially failed to serve Edison. On No-vember 3, the district court issued an order to show cause why the action should not be dismissed due to the plaintiff's failure to filed proof of service. Notice of the show cause hearing was sent to the parties via email, but Calderon's counsel didn't check his email regularly. As a result, he did not see the notice, and failed to show up at the hearing. The district judge promptly dismissed the case for lack of prosecution. After learning that the case had been dismissed, Calderon served Edison. He then moved to vacate the dismissal. When the district judge denied the motion without argument, Calderon appealed. The USCA reversed and remanded. Because plaintiff's counsel was not on notice that orders would be served by email, he could not be deemed to have received notice of the show cause hearing. Neither he nor his client could be sanctioned for his failure to attend the hearing. The USCA then noted that the district judge's unseemly haste in dismissing this case, and his failure to heed the perfectly plausible (and meritorious) explanation proffered by the plaintiff in his motion for reconsideration, cost the parties significant money and delay in pursuing this wholly unnecessary appeal. Justice suffers when judges act in such an arbitrary fashion. The USCA apologized to the parties and admonished the district judge to exercise more care and patience in the future. Kozinski, Tashima, and McKeown, Circuit Judges. Per Curiam. S. Raskin of Torrance, CA, for the appellant; E. Greenstone of Pasadena, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 17) EMPLOYMENT DISCRIMINATION: State of Alaska, Office of the Governor v. EEOC, 07-70174 (9th Cir. Nov. 8, 2007). The State of Alaska, Office of the Governor, appealed a remand order of the Equal Employment Opportunity Commission ("EEOC") in a suit against the State brought by two discharged members of the Governor's Office. The USCA found the suit barred by the Eleventh Amendment and ordered its dismissal. Concurring in the opinion, Judge Wallace and rejected the dissent's assumption that Con-gress voted not to extend the statute's coverage to certain high level state employees for purely political reasons based on only a few representatives' concerns about state rights. The intent of the hundreds of other lawmakers at the time of their vote is unknown. He added: "We do not know why Congress excluded high level state employees in 1972 and the 1990 Congress cannot simply shortcut its action by reference to the 1972 Act. It needed to take the time for hearings to develop an appropriate recorded. It is not that Congress cannot pass a statute such as the GERA [the Government Employee Rights Act]; it is that it must do so in a prescribed manner. Its failure to do so here requires the conclusion that the constitutional protections on state sovereign immunity have not bee met." Dissenting, Judge Paez would hold that Congress validly abrogated the State's Eleventh Amendment immunity to private claims for damages under the GERA. Because the majority decided the Eleventh Amendment inquiry on narrow grounds, and because he disagreed with its holding, Judge Paez proceed to address the two predicate inquiries of the immunity analysis: congressional intent and constitutional authority. He would hold that Congress explicitly abrogated the States' Eleventh Amendment immunity when it enacted GERA, and that the legislation is congruent and proportional to the racial and gender discrimination that Congress sought to remedy. Judge Paez thus would reject Alaska's Eleventh Amendment challenge and allow the ALJ to rule on the merits of the claims. Wallace (concurring), Noonan (author), and Paez (dissenting), Circuit Judges. R. Postma of Anchorage, AK, for the petitioner; S. Marcus of Washing-ton, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 18) BILLBOARDS / FIRST AMENDMENT: Get Outdoors II v. City
of San Diego, 05-56366 (9th Cir. Nov. 1, 2007). Get Out-doors
II is an outdoor advertising company attempting to build and operate
signs in the City of San Diego. On June 2, 2003, it filed 24 applications
for billboard permits with the City, through the City's Development
Services Department. Outdoors alleged that it has already signed
leases with various real property owners to post signs on their
parcels. The City performed a review of the applications and notified
Outdoors the next day that it could not grant permits for any of
the signs under San Diego Municipal Code Sec. 142.1210, which prohibits
new signs bearing "off-premises" messages. Outdoors sued,
arguing that the City's billboard regulations were uncon-stitutionally
overbroad under the First and Fourteenth Amendments because they
favored commercial over non-commercial speech and some types of
non-commercial speech over others, that its own rights were violated
by the ban on off-site signs, as well as certain size and height
restrictions. It also argued that the permitting process was an
invalid prior restraint because it lacked a deadline provision and
because it gave city officials unbridled discretion to grant or
deny permits. Outdoors requested injunctive relief, damages, and
attorney fees. It also requested that the court invalidate the entire
sign ordinance. The USCA affirmed the district court's order granting
summary to the City. It held that the City's billboard size and
height restrictions did not violate the First Amendment, that Outdoors'
permit applications violated these restrictions, and that Outdoors
thus lacked standing to challenge the ban on off-premises message.
Because it also held that the challenge to the permit process failed,
the USCA affirmed. Hall (author) and Callahan, Circuit Judges,
and Strom, District Judge. E. Webb of Atlanta, GA, for the appellant;
R. Morrison of San Diego, CA, for the appellee. (Download
the full text of this decision at www.ce9.uscourts.gov/)
20) CALIFORNIA'S POLITICAL REFORM ACT: California Pro-Life Council v. Randolph, 05-15507 (9th Cir. Nov. 14, 2007). California Pro-Life Council (CPLC) challenged certain provisions of California's Political Reform Act (PRA), including the PRA's definition of "contribution" and the recipient committee requirements imposed on a multi-purpose organization, such as CPLC. On cross-motions for summary judgment, the district court granted summary judgment in favor of the appellees (collectively "California") and denied CPLA's motion for summary judgment. Because strict scrutiny applies and CPLC conceded the existence of a compelling governmental interest in the disclosure of the information at issue, the USCA focused on the narrow tailoring inquiry, concluding that the definition of "contribution" is narrowly tailored, and the additional recipient committee requirements are not. The USCA held that California has demonstrated the existence of a compelling governmental interest and that the PRA's definition of "contribution" is narrowly tailored to promote its compelling informational interest. However, California failed to show how the additional political committee-like requirements were narrowly tailored to advance that compelling governmental interest. Noonan, Gould, and Rawlinson (author), Circuit Judges. J. Bopp of Terre Haute, Indiana for the appellant; T. Block of Sacramento , CA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 21) ENERGY: Wah Chang v. Duke Energy Trading and Marketing, 05-55367 (9th Cir. Nov. 20, 2007). Wah Chang, a division of TDY Industries, a California corporation, appealed the district court's dismissal of its actions against Duke Energy Trading and Marketing, Avista Corporation, and a multitude of other companies (collectively "Energy Companies"). Wah Chang, whose complaints arise out of the energy crisis of 2000-2001, sought to recover damages because of the difference between the rate it was actually charged for electricity, which was a retail rate based upon the wholesale rate, and the rate that it claims a fair rate would have been were it not for manipulation of the market by the Energy Companies and others. The USCA affirmed, concluding that, like the actions of those who have come before it, Wah Chang's action must fail. There may have been a shadow of wrongdoing brooding over the Pacific Northwest wholesale power market, but Wah Chang could not succeed in this forum. The filed rate doctrine bars its rate-based action, just as it has barred the similar actions brought by other victims of the 2000-2001 energy crisis. Judge Pregerson dissented. He saw the issue as whether the filed rate doctrine bars the claims of retail electricity consumers who do not directly challenge the Federal Energy Regulatory Commission's established rates. He thought the court should not extend the reach of this "flawed" doctrine. Pregerson (dissenting), Fernandez (author), and Rymer, Circuit Judges. E. Finklea of Portland, OR, for the plaintiff-appellant; G. Erspamer of Walnut Creek, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)
23) TAKINGS: Crown Point Development, Inc. v. City of Sun Valley, 06-35189 (9th Cir. Nov. 1, 2007). At issue on this appeal was whether a developer may state a claim for relief based on the allegedly arbitrary and irrational denial of a permit application. The district court said "no," relying on Armendariz v. Penman, 75 F.3d 1311 (9th Cir. 1996) (en banc), which held that the Fifth Amendment's Takings Clause subsumes or "preempts" substantive due process claims. It thus dismissed the complaint by Crown Point Development, LLC, against the City of Sun Valley and members of the City Council. Crown Point argued on appeal that it could proceed despite Armendariz, because the U.S. Supreme Court ruled in Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 532 (2005), that a property owner's challenge to a regulation that does not substantially advance legitimate interests is grounded in due process, not the Takings Clause. The USCA agreed that Armendariz has been undermined to the limited extend that a claim for wholly illegitimate land use regulation is not foreclosed. However, it found the record undeveloped on this point. Having clarified that Armendariz did not block the way altogether, the USCA left it to the district court on remand to flesh out the parameters of Crown Point's claim. It also left questions of stay and abstention for the district court's consideration. D.W. Nelson, Beam, and Rymer (author), Circuit Judges. J. Beemer of Sacramento, CA, for the appellant; J. Davis of Boise, ID, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 24) REMOVAL: Gardner v. MEGA Life and Health Insurance Co., 06-55045 (9th Cir. Nov. 19, 2007). The district court awarded fees and costs to Gardner upon remanding this case to the state court from which it was removed. The USCA concluded that MEGA Life and Health Insurance Company had an objectively reasonable basis for removal. The USCA also found nothing in the record to suggest that there were "unusual circumstances" to justify departing from the general rule of Martin v. Franklin Capital Corp., 546 U.S. 132, 141 (2005), that when an objectively reasonable basis for removal exists, fees should be denied. The district court thus abused its discretion in awarding fees and costs to Gardner under 28 USC Sec. 1447(c). Trott, Tashima, and Rawlinson (author), Circuit Judges. A. Cronthall of Los Angeles, CA, for the defendant-appellant; A.D. Mastroianni of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 25) INTERLOCUTORY APPEALS / SANCTIONS: Nascimento v. Dummer, 06-35062 (9th Cir. Nov. 21, 2007). At issue here were questions relating to the district court's jurisdiction during the pendency of interlocutory appeals and whether a sanction of dismissal was error. The appellant raised three issues: 1) whether the Montana district court had jurisdiction to set a discovery schedule before the mandate had issued on his appeal of a Nevada district court order transferring the case to Montana; 2) whether the Montana district court abused its discretion in denying his motion to extend the discovery deadline; and 3) whether the Montana district court erred in dismissing, or even had jurisdiction to dismiss, his suit without prejudice as a sanction for his and his attorney's failure to appear at a scheduled pretrial conference. The USCA affirmed. The Nevada district court order of which Nascimento was seeking reconsideration had two components: dismissal of some, but not all, of the defendants for lack of personal jurisdiction; and transfer of the claims against the remaining defendants to the District of Montana under 28 USC Sec. 1406. Neither of these orders is a final appealable order, nor does either satisfy the collateral order doctrine. The denial of Nascimento's motion to reconsider these earlier interlocutory orders was thus not independently appealable. When a Notice of Appeal is defective in that it refers to a non-appealable interlocutory order, it does not transfer jurisdiction to the appellate court, and so the ordinary rule that the district court cannot act until the mandate has issued on the appeal does not apply. Nascimento's June 2004 Notice of Appeal was defective in that it sought to appeal non-appealable orders. The USCA thus never had jurisdiction over that appeal, and it was proper for the Montana district court to begin exercising jurisdiction over the case. B. Fletcher, Kleinfeld, and Gould (author), Circuit Judges. K. Vainio of Butte, MT, for the appellant; R. Weber of Helena, MT, pro se. (Download the full text of this decision at www.ce9.uscourts.gov/) 26) PSYCHIATRIC EVALUATIONS: Bias v. Moynihan, 05-16752 (9th Cir. Nov. 29, 2007). Bias appealed the district court's summary judgment for Police Officer Moynihan, Police Chief Kitchen, and the City of San Leandro. Bias maintained that the district court erred in concluding that she failed to show that there were genuine issues of facts in dispute regarding whether the appellees detained her for psychiatric evaluation without probable cause in violation of her federal and state law rights. She also claimed that the district court abused its discretion in its evidentiary and procedural rulings. The USCA affirmed, finding that probable cause existed to justify detaining her on two occasions, and that the district court's evidentiary and procedural rulings did not compel a reversal of the judgment. In both instances, Bias was detained because, while in extreme an state of agitation, she stated that she would kill herself. Alarcon (author) and Tallman, Circuit Judges, and Duffy, District Judge. B. Tagawa of San Francisco, CA, for the appellant; J. Quinn of Oakland, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 27) ATTORNEYS' FEES: USA v. Sherburne, 06-30534 (9th Cir. Nov. 6, 2007). Blaze Construction submitted an application for federal grant funds under a Department of Housing and Urban Development program designed to fund the construction of private homes for low income Native Americans. Blaze's project to build homes on the Blackfeet Indian Reservation of Montana was plagued with difficulty and controversy from beginning. As part of an investigation of the project, FBI agents interviewed Sherburne, manager of Lodge Builder Management, a company associated with Blaze. During that interview, Sherburne made an incriminating statement while represented by counsel. The government subsequently brought criminal charges against 13 defendants including Sherburne. The charges against Sherburne were for conspiracy and wire fraud, based on alleged abuses in the funding and construction of the Blaze project. At trial, the district court excluded Sherburne's incriminating statement upon which the government had relied in deciding to bring charges against him. Without the excluded evidence, the government could not prove its wire fraud allegations and thus recommended that the court acquit all defendants on the wire fraud charges after the defendants had moved for an acquittal under Fed. R. Crim. Proc. 29. Sherburne later was acquitted of all charged and dismissed from the case. Following trial, Sherburne, and others moved for attorney fees under the Hyde Amendment, which permits a criminal defendant to recover fees when the government's position was "vexatious, frivolous, or in bad faith." 18 USC Sec. 3006A Note. The district court adopted the standard set forth in USA v. Holland, 34 F. Supp. 2d 346, 364 (E.D. Va. 1999), which framed the proper inquiry under the "vexatiousness" prong of the Hyde Amendment as "whether a reasonable prosecutor should have concluded that the applicable law and the available evidence were insufficient to prove the defendants' guilty beyond a reasonable doubt and, if so, was the continuation of the prosecution vexatious." Applying this standard, the district court awarded fees to Sherburne. The USCA reversed in an earlier appeal, but on remand the district court held that both the subjective and objective elements of "vexatiousness" were present, and reinstated the fees. The USCA now reversed again. It did not reach the question whether the prosecution was objectively without foundation. As the district court clearly erred in finding that the government subjectively intended to harass Sherburne, it abused its discretion in ruling that "vexatiousness" existed in Sherburne's prosecution. A grant of fees under the Hyde Amendment was thus inappropriate. B. Fletcher (author) Beam, and Rymer, Circuit Judges. AUSA E. Wolff of Billings, MT, for the plaintiff-appellant; P. Flaherty of Great Falls, MT, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 28) NATIVE AMERICAN LAW: Alvarado v. Table Mountain Rancheria, 06-15351 (9th Cir. Nov. 29, 2007). The plaintiffs, indi-viduals who unsuccessfully petitioned the Table Mountain Tribal Council for admission to the Table Mountain Rancheria, an Indian Tribe, sought an order compelling the Rancheria to admit them as members. The district court dismissed the action, concluding that it lacked subject matter jurisdiction over the claims because the case was indistinguishable from those in which tribal immunity precludes federal court jurisdiction over tribal membership disputes. The USCA affirmed. The district court properly found that it lacked subject matter jurisdiction to order the defendants to admit the plaintiffs claims. However, the USCA noted that the appellants subject matter arguments suffered from a more fundamental flaw: the appellants failed to establish that the district court had subject matter jurisdiction over their causes of action even if the Rancheria were not immune from suit. Alarcon (author), Thompson, and Tallman, Circuit Judges. B. Leighton of Clovis, CA, for the appellants; P. Yost of San Francisco, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 29) IMMIGRATION: Gonzales v. Dept. of Homeland Security, 07-35021 (9th Cir. Nov. 30, 2007). In December 2006, the District Court for the Western District of Washington granted preliminary injunctive relief to a class of aliens, enjoining the Department of Homeland Security and Secretary Chertoff (collectively "DHS") from denying certain applications for permission to reapply for admission into the U.S., or from acting on any denied applications. The USCA vacated that decision and remanded. It found that In re Torres-Garcia, 23 I&N Dec. 866 (BIA 2006), was dispositive of the plaintiffs request for injunctive relief. Pursuant to In re Torres-Garcia, the plaintiffs as a matter of law are ineligible to adjust their status because they are ineligible to receive I-212 waivers. The USCA thus concluded that the plaintiffs have no likelihood of success on the merits of their suit and vacated the preliminary injunction. The USCA remanded for further proceedings consistent with this opinion. Canby, Hall, and Callahan (author), Circuit Judges. P. Keisler of Washington, DC, for the defendant-appellants; M. Adams of Seattle, WA, and M. Van Der Hout of San Francisco, CA, for the plaintiffs-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 30) IMMIGRATION: Hanna v. Keisler, 04-73960 (9th Cir. Nov. 5, 2007). Hanna petitioned for review of a BIA decision affirming an Immigration Judge's order denying her request for asylum. The IJ examined Hanna's eligibility for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT") and denied all three forms of relief upon finding that Hanna was not credible. The BIA affirmed the IJ's holding that 1) Hanna had not presented adequate evidence of fear of persecution; 2) had not shown that he suffered persecution compelling asylum for humanitarian reason; and 3) was unable to show a well-founded fear of persecution after Saddam Hussein and the Ba'ath party fell from power. The USCA reversed the BIA's decision regarding changed country conditions and remanded to the BIA to consider Hanna's credibility, whether he suffered past persecution, and whether he now had a well-founded fear of future persecution. It also remanded Hanna's withholding of removal claim. The BIA assumed that Hanna suffered past persecution on account of his religion, creating a presumption of a fear of future persecution. As a result the burden shifted to the government to show changed country conditions rebutting the presumption of a fear of future persecution. The BIA's holding that the fall of the Ba'ath party removed any fear of future persecution was not supported by substantial evidence. The USCA thus reversed and remanded for the BIA to consider whether Hanna suffered past persecution and whether he has a well-found fear of future persecution. Because the BIA's mistakenly concluded that the fall of the Ba'ath party foreclosed Hanna's petition for withholding of removal, the USCA remanded that issue as well. Finally, it remanded Hanna's claim for humanitarian asylum with instructions that the BIA consider whether he had shown that a reasonable possibility exists that he would suffer serious harm if returned to Iraq. The USCA rejected Hanna's claim for relief under CAT. Pregerson (author), Fernandez, and Siler, Circuit Judges. D. Nelson of San Diego, CA, for the petitioner; M. Candaux of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 31) IMMIGRATION: Grigoryan v. Keisler, 05-77020 (9th
Cir. Nov. 30, 2007). Grigoryan, a native and citizen of Armenia,
peti-tioned for review of a BIA order denying her motion to reopen
removal proceedings on the ground of ineffective assistance of counsel.
She had previously applied for asylum, which the agency denied for
failure to demonstrate a nexus to a protected ground, and the USCA
denied her petition for review. Represented by new counsel, she
moved to reopen. When the BIA denied that motion, she petitioned
for review. The USCA denied in part and granted in part that petition
and remanded with instructions for the BIA to consider Grigoryan's
contention that she was entitled to benefit from a presumption of
prejudice and that she had shown plausible grounds for relief when
she submitted evidence that her fear of persecution was objectively
based. The record showed that former counsel filed a boilerplate
brief to the BIA that resulted in Grigoryan not receiving meaningful
review. The BIA abuse its discretion when it failed to presume prejudice
and instead required Grigoryan to show that she suffered prejudice.
As to her past persecution claim, whether or not prejudice is presumed,
she failed to show plausible grounds for relief. Despite the opportunity
to file new evidence, she made no showing that an attack on her
in 1995 was on account of a protected ground. The USCA concluded
that the BIA did not abuse its discretion when it failed to consider
the claim, failed to presume prejudice, and failed to determine
whether she established plausible grounds for relief. The USCA thus
granted in part the petition for review and remanded to that the
BIA could make this determination in the first instance. Pregerson,
Reinhardt, and Tashima, Circuit Judges. Per Curiam. A. Sarian
of Glendale, 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: Vatyan v. Mukasey, 04-72386 (9th Cir. Nov. 27, 2007). Vatyan, an Armenian citizen, petitioned for review of a Board of Immigration Appeals decision upholding an Immigration Judge's denial of his application for asylum, withholding of removal and relief under the Convention Against Torture. During his asylum hearing, Vatyan attempted to introduce documents purportedly from the Armenian government but the IJ refused to consider them, apparently because Vatyan failed to obtain government certification of their authenticity. The USCA held that an immigration petitioner may seek to authenticate a public document by any established means-including through the petitioner's own testimony if consistent with the Federal Rules of Evidence-and therefore the IJ erred in requiring official certification. Fisher (author) and Clifton (dissenting), Circuit Judges, and Martinez, District Judge. V. Sigal of Los Angeles, CA, for the petitioners; S. Siegal of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 34) IMMIGRATION: Barragan-Lopez v. Mukasey, 05-73883 (9th Cir. Nov. 21, 2007). The petitioner sought review of the ques-tion whether an Arizona conviction for solicitation to possess at least four pounds of marijuana for sale, in violation of Ariz. Rev. Stat. Secs. 13-1002(A) and (B)(2), and Secs. 13-3405(A)(2) and (B)(6), constitutes a crime involving moral turpitude for purposes of 8 USC Sec. 1227(a)(2)(A)(i). The USCA held that it does and denied the petition for review. Hug, W. Fletcher, and Clifton (author), Circuit Judges. T. Sultan of Tucson, AZ, for the petitioner; T. Scadron of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 35) IMMIGRATION: Sissoko v. Rocha, 02-56751 (9th Cir. Nov. 15, 2007). The factual and procedural background of this appeal was set out in the now-withdrawn opinion: Sissoko v. Rocha, 440 F.3d 1145 (9th Cir. 2006). In the current decision, which replaces the withdrawn opinion, the USCA adopted the "scope of review" section of its prior opinion, id at 1153-54, and affirmed the district court's denial of Rocha's motion under Fed. R. Civ. P. 59(e) with respect to her newly raised legal issue concerning Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The USCA concluded that the district court lacked jurisdiction over Sissoko's claim because it arose from a decision or action of the Attorney General to commence removal proceedings. Judge Skopil concurred in the decision to withdraw the prior decision and to file a revised one, but he did not agree with Footnote 8 of the revised opinion and thus dissented from the majority's decision to include that Footnote. Skopil (dissenting in part), Noonan, and Berzon (author), Circuit Judges. R. Loeb of Washington, DC, for the defendants-appellants; M. Simone of Los Angeles, CA, for the plaintiffs-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 36) IMMIGRATION: Rebilas v. Keisler, 05-76988 (9th Cir. Nov. 2, 2007). Rebilas, a native and citizen of Poland, petitioned for review of the Board of Immigration Appeals' ("BIA") decision denying his motion for reconsideration of the BIA's earlier holding that his conviction for two counts of "attempted public sexual indecency to a minor" under Arizona Revised Statutes ("ARS") Sec. 13-1001 and 13-1403(B) constitutes sexual abuse of a minor and attempted sexual abuse of a minor under 8 USC Sec. 1101(a)(43)(A) and (U). As such, the BIA found the petitioner to be removable as an aggravated felon under 8 USC Secs. 1101(a)(43), 1227(a)(2)(A)(iii). He was ordered removed. The USCA granted the petition for review and held that Arizona's statutory definition of attempted public sexual indecency to a minor under ARS Secs. 13-1001 and13-1403(B) includes conduct that falls outside the federal definition of attempted sexual abuse of a minor under 8 USCA Sec. 1101(a)(43) and U). Hawkins, Thomas, and Bea (author), Circuit Judges. S. Reynolds of Berkeley, CA, for the petitioner; P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 37) ARRESTS: Fisher v. City of San Jose, 04-16095 (9th Cir. Nov. 20, 2007). Fisher claimed constitutional violations stemming from a 12-hour standoff at his apartment between him and a large number of San Jose police officers, at the end of which he came out of the apartment and submitted to arrest. He sued the City of San Jose and several officers under 42 USC Sec. 1983, contending that his arrest was invalid because the police never obtained or attempted to obtain a warrant. A jury found for the defendants on all claims, including a claim for warrantless arrests. Fisher thereupon filed a renewed motion under Fed. R. Civ. Proc. 50(b) for judgment as a matter of law on the warrantless arrest claim. Granting the motion against the City, the district court ordered the City to pay nominal damages of one dollar and issued an injunction regarding future training of police officer. The USCA upheld the district court's ruling, as it agreed that the failure to obtain a warrant under the circumstances of this case constituted a constitutional violation as a matter of law. There were plenty of police officers involved and there was plenty of time to obtain a warrant. It was unconstitutional to fail to do so. Judge Callahan dissented. He noted that this case concerned a very dangerous situation that was resolved safely for all concerned-Fisher, the public, and the police-because of good police work. Nevertheless, the majority penalized the police by announcing a new warrant requirement and imposing liability upon them for failing to obtain a telephone arrest warrant in the midst of a police standoff that could have turned deadly at any moment. After reviewing all the facts and receiving proper instructions on the law, 12 jurors unanimously found that the police had handled the situation lawfully. Judge Callahan thought the majority should have accept the wisdom of the jurors' decision. Thompson, Berzon (author), and Callahan (dissenting), Circuit Judges. C. Greenberg of San Diego, CA, for San Jose for the City of San Diego; D. Kilmer of San Jose, CA, for Fisher.(Download the full text of this decision at www.ce9.uscourts.gov/) 38) FELONS IN POSSESSION OF FIREARMS / SENTENCING: USA v. Gooch, 06-30645 (9th Cir. Nov. 1, 2007). Gooch ap-pealed his conviction and sentence for being a felon in possession of a firearm under 18 USC Sec. 922(g)(1). His appeal focused on the district court's denial of his motion to suppress. He argued that the initial entry by police into a residence he shared with Michael Conn, an entry that led to the issuance of a search warrant where evidence supporting Gooch's conviction was obtained, exceeded the bounds of the Fourth Amendment as that entry was made in pursuit of Conn in order to execute a misdemeanor bench warrant for failure to appear in court. The USCA affirmed. Consistent with the decisions of other federal courts that have consider the issue, the USCA held that police possessing a valid bench warrant for the arrest of a person who has failed to appear may enter that person's residence to the extent necessary to execute the warrant. In addition, the district court did not err in imposing Gooch's sentence. His two prior state court convictions (for second degree burglary and third degree assault) were correctly assessed for purposes of determining the severity of his sentence pursuant to the Armed Career Criminals Act. 18 USC Sec. 924(e) (2006). The district court properly relied on the "modified categorical" approach to determine the effect of those convictions on Gooch's sentence. Finally, Gooch was not entitled to a separate jury trial to determine the applicability of his prior convictions to this sentence in this case. See USA v. Smith, 390 F.3d 661, 666 (9th Cir. 2004). B. Fletcher (author) and Gould, Circuit Judges, and Larson, District Judge. B. Whitaker of Spokane, WA, for the appellant; AUSA J. Kimball of Spokane, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 39) VOUCHING: USA v. Brooks, 05-30261 (9th Cir. Nov.
29, 2007). Brooks appealed his drug-related convictions, challenging
as-pects of the jury instructions, the indictment, the sentencing,
and testimony he claims was reversible vouching. The USCA affirmed,
although it did not condone the vouching. Ultimately, the vouching
did not undermine the strong evidence presented against Brooks in
a lengthy trial, which began and ended with curative instructions.
Viewing the vouching cumulatively in the context of the entire trial,
the fairness, integrity and public reputation of judicial proceedings
were not seriously affected, and failing to reverse would not amount
to a miscarriage of justice. Thus, the seriousness of the vouching
did not outweigh all other considerations supporting the verdict.
The vouching was within the broad bounds of the plain error standard,
but pushed hard against those bounds and threatened the integrity
of the verdict. It was not a model for future trial. Kozinski and
Fisher, Circuit Judges, and Guilford (author), District Judge.
L. Nussbaum of Seattle, WA, for the defendant-appellant; AUSA T.
Greenberg of Seattle, WA, for the plaintiff-appellee. (Download
the full text of this decision at www.ce9.uscourts.gov/)
41) SENTENCING: USA v. Garcia, 05-30356 (9th Cir. Nov. 19, 2007). At issue here was whether the USCA had jurisdiction to review a sentence imposed in accordance with a plea agreement under Fed. R. Crim. Proc. 11(c)(1)(C) and that is not contingent upon the advisory Sentencing Guidelines, and also whether a district court committed plain error by failing to explicitly set the maximum number of non-treatment related drug tests to which the defendant will be exposed as a condition of supervised release. The USCA also had to evaluate whether a district court commits plain error by imposing a financial disclosure condition on a defendant who has been convicted of a drug trafficking offense and has a history of drug use. The defendants had been sentenced to a term that was within the range they agreed to in their Rule 11(c)(1)(C) plea agreement and that was not contingent upon the Guidelines. Consequently, the USCA did does not have jurisdiction under 18 USC Secs. 3742(a)(1) or (a)(2) to review the sentence. In addition, the district court did not commit plain error by imposing either condition of supervised release. Wallace, Wardlaw, and Fisher (author), Circuit Judges. M. Royle of Vancouver, WA, for the appellant; AUSA J. Lulejian of Seattle, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 42) SUPERVISED RELEASE: USA v. Cope, 06-50441 (9th Cir. Nov. 5, 2007). In 2003, San Bernardino Sheriff deputies discovered over 600 images and 20 videos of child pornography on Cope's home computers, including videos of sadistic and masochistic acts. Cope pled guilty to one count of possession of child pornography, in violation of 18 USC 2252A(a)(5)(B). He entered his pea pursuant to a plea agreement with the government in which both parties stipulated to a total offense level of 28 under the Sentencing Guidelines, including numerous upward adjustments relating to the possession of child pornography. The government conditionally agreed to seek the low end of the Guidelines range for incarceration, but made no agreement as to what term of supervised release it would seek. In return, Cope agreed to waive his statutory right to appeal "any sentence imposed by" the district court, provided certain requirements were met. He retained his right to appeal most of the special conditions of his supervised release. At issue on appeal was whether the district court's imposition of a lifetime of supervised release was reasonable and whether the district court was required to articulate findings before imposing certain special conditions of supervised release pertaining to medication. Under the circumstances of this case, the USCA concluded that the term of supervised release imposed was reasonable, but that the district court should hare articulated findings before imposing special conditions of release that would implicate a particularly significant liberty interest of the defendants. It thus affirmed in part, vacated the sentence in part, and remanded for further proceedings. On remand, the district court is to 1) provide notice to the parties of any special conditions of supervised release not contemplated by the Sentencing Guidelines; 2) articulate specific, medically informed findings on the record regarding the need to Cope to undergo plethysmograph testing and take medications that implicate particularly significant liberty interests; and 3) clarify that any conditions requiring Cope to take all prescribed medications is limited to those medications reasonably related to sex offender treatment. Thomas (author), Fisher, and Gould, Circuit Judges. AFPD S. Kennedy of Los Angeles, Ca, for the appellant; AUSA G. Cardona of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 43) DNA ANALYSIS BACKLOG ELIMINATION ACT OF 2000 / SUPERVISED RELEASE: USA v. Kriesel, 06-30110 (9th Cir. Nov. 29, 2007). In 2004 the USCA held that the DNA Analysis Backlog Elimination Act of 2000 satisfies the requirements of the Fourth Amendment with respect to individuals on supervised release. USA v. Kincade, 379 F.3d 813, 839 (9th Cir. 2004) (en banc). The 2000 Act required collection of DNA samples from individuals in custody and on probation, parole, or supervised release who have been convicted of "qualifying Federal offenses," then defined as certain violent crimes. 42 USC Sec. 14135a (2000). Congress amended the Act in 2004 to expand the qualifying offenses to all felonies. Joining every other Circuit to consider the 2004 Act, the USCA now holds that the amended statute passes constitutional muster with respect to a convicted felon on supervised release. Dissenting, Judge Fletcher noted that when the 2000 Act "narrowly survived" Fourth Amendment review in this court, the panel was told to take solace in the "limited nature of [the] holding." Yet, by invoking the Kincade analysis, the majority now approves, a statute that effects a far broader and far less justified erosion of the Fourth Amendment, extending Kincade without acknowledging doing so. However, well-intentioned that may be, Judge Fletcher said she found "cold comfort in the majority's assurance that its decision today is confined to the precise circumstances before us." B. Fletcher (dissenting) and McKeown (author), Circuit Judges, and Schwarzer, District Judge. C. Fieman of Tacoma, WA, for the appellant; H. Brunner of Seattle, WA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 44) HABEAS CORPUS: Medley v. Runnels, 05-55295 (9th Cir. Nov. 1, 2007). Medley appealed a district court order denying his 28 USC Sec. 2254 habeas petition which challenged his conviction for murder in state court and a related 20-year enhancement for dis-charge of a firearm during the commission of a felony. He alleged: 1) that he received ineffective assistance of counsel when his attorney ignored his requests to testify; 2) that the state trial court violated his right to due process by instructing the jury that a flare gun is a firearm, thus taking from the jury the determination of an element of the offense; and, 3), that he received ineffective assistance of counsel when his trial and appellate counsel failed to contest the jury instructions. The USCA upheld he denial of Medley's habeas petition as to the first issue. But, as to the firearm enhancement, it reversed and remanded with instructions to grant a conditional writ of habeas corpus which directed the state court to either resentence without applying the firearm enhancement or allow the state to retry the enhancement charge under California Penal Code Sec. 12022.53(c) within a reasonable time as set by the district court. Judge Ikuta dissented in part. She thought the majority twice erred in its analysis of Medley's due process claim: First, it applied Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") deference incorrectly where AEDPA doesn't apply at all, because under 28 USC Sec. 2254(d) AEDPA's deferential standard of review operates only "with respect to any claim that was adjudicated on the merits in State court proceedings." As Medley's due process claim had not been adjudicated on the merits in state court, it could not be considered under AEDPA. Second, the majority, having wrongly held that AEDPA applied, erred again by applying it without the deference AEDPA and Supreme Court precedent require. Schroeder, Reinhardt, Hawkins, Thomas, Silverman, Wardlaw, Fisher Gould, Paez, Berzon, Tallman, Clifton, Bybee, Callahan (author), and Ikuta (dissenting in part), Circuit Judges. W. Young of Santa Monica, CA, for the petitioner; DAG R. Foster of San Diego, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 45) HABEAS CORPUS: Doe v. Woodford, 06-16154 (9th Cir. Nov. 27, 2007). The petitioner, Doe, pleaded guilty to first degree murder. He petitioned for habeas corpus in the California state trial court, alleging ineffective assistance of counsel and that his plea was not voluntary and intelligent. After a three-day evidentiary hearing, the state court denied the petition without opinion. The California Court of Appeal and Supreme Court also summarily denied the petition. Doe then petitioned the Northern District of California. It denied the petition but issued a certificate of Appealability as to the voluntariness of the plea given the length of time the petitioner had to consider the proposed plea agreement. Doe appealed the denial of his petition and raised uncertified issues concerning ineffective assistance of counsel as well. The USCA declined to expand the certificate of Appealability and affirmed the denial of the petition as to the certified issue. Doe's testimony at the evidentiary hearing described the difficulty he had in making the decision to plead guilty. However, Doe had been offered identical terms shortly after he was arrested, more than a year before he pleaded guilty. No doubt the decision to plead guilty is a difficult one for many defendants, but the fact that one struggles with the decision, and might later even come to regret it, does not render it coerced. Doe had participated in a thorough plea colloquy, in which he answered in the affirmative that his plea was voluntary under the circumstances and, specifically answered in the affirmative when asked if he had had enough time to discuss the plea with his attorneys. The USCA concluded that the California Supreme Court was not objectively unreasonable in its application of controlling federal law by determining that Doe's plea was voluntary. Wallace, Cudahy (author), and McKeown, Circuit Judges. D. Lipmanson of Ukiah, CA, for the petitioner; D. Jung of San Francisco, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 46) HABEAS CORPUS: Beaty v. Schriro, 05-99013 (9th Cir. Nov. 28, 2007). The USCA earlier remanded this capital habeas ap-peal to the district court with instructions to conduct an evidentiary hearing on whether the petitioner's inculpatory statements to a prison psychologist were voluntary within the meaning of the Fifth Amendment. On the current appeal, the USCA had to decide whether the district court erred in concluding on remand that the statements were constitutionally voluntary and property admitted at the petitioner's trial. The USCA affirmed, holding that the petitioner's inculpatory statements were voluntary within the meaning of the Fifth Amendment. It agreed with the district court that Beaty's reliance upon the document known as the "Interpersonal Relationships Group Contract" to protect the confidentiality of his confession was not reasonable given the surrounding facts and circumstances. It also agree that any promise that existed, whether in the form of a contract or a relationship, was not sufficiently compelling or coercive to have overborne Beaty's will against self-incrimination. O'Scannlain (author), Graber, and McKeown, Circuit Judges. J. Charland of Phoenix, AZ, for the petitioner; AAG J. Todd of Phoenix, AZ, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) MEMORANDA Unpublished decisions may not be cited to or by the courts of this circuit except when relevant under the Doctrine of Law of the Case, Res Judicata, or Collateral Estoppel. Rule 36-3
2) SECURITIES FRAUD / ATTORNEYS' FEES: In re Riverstone Networks, Inc., 05-17272 (9th Cir. Nov. 28, 2007) (unpub-lished). Hall and Bybee, Circuit Judges, and Zapata, District Judge. Chandler appealed the district court order granting him attorneys' fees in an amount less than requested for services provided as an objector to proposed attorneys' fees for class counsel in a securities fraud putative class action settlement. The district court granted Chandler $5,000 in attorneys' fees and $1,500 in expenses to be paid from the settlement fund. It denied his request for an incentive fee. The district court applied the lodestar method, finding that Chandler raised objections similar to those already raised by another objector and thus, "provided some-though not a major or extensive-benefit to the common fund." The district court did not err in finding that the hours Chandler claimed were excessive and that Chandler's objection accomplished "essentially the same thing" as the three-page letter submitted by the first objector. In addition, Chandler's objections were only partially responsible for the reduction in class counsel's attorneys' fees. The district court acted within its discretion when it discounted hours that did not benefit the class. Wininger v. SI Management L.P., 301 F.3d 1115, 1125-27 (9th Cir. 2002). Finally, the district court did not abuse its discretion by denying Chandler a risk multiplier. Chandler's work was not extremely difficult given that similar objections had already been aired. See id. at 1126. 3) ATTORNEYS' FEES / UNCLAIMED SETTLEMENT FUNDS: Nickel v.
Bank of America National Trust and Savings Assoc., 06-15593
(9th Cir. Nov. 27, 2007) (unpublished). 4) IMMIGRATION: Abdulkader-Fares v. Mukasey, 04-71927
(9th Cir. Nov. 30, 2007) (unpublished). 5) IMMIGRATION: Zatollah Yousefi-Talouri v. Mukasey,
04-71055 (9th Cir. Nov. 26, 2007) (unpublished).
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