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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) TAXATION: Estate of Virginia A. Bigelow v.
CIR, 05-75957 (9th Cir. Sept. 14, 2007). The Estate
of Virginia A. Bigelow ap-pealed a Tax Court decision upholding a
deficiency in the Estate's federal estate tax return imposed by the
Commissioner of Internal Revenue (CIR). At issue was the applicability
of 26 USC Sec. 2036(a), which recaptures in a decedent's gross estate
the value of certain assets transferred inter vivos. Upon Bigelow's
death the Estate filed a federal estate tax return that applied a
37% discount for lack of control and marketability to her remaining
interest in a family limited partnership, Spindrift Associates, which
held a residential property Bigelow had transferred before his death.
The CIR filed a notice of deficiency and assessed an additional $217,480
in federal estate tax, claiming that the residence's fair market value,
rather than the value of the partnership shares subject to the discount,
should be included in the gross estate. The Tax Court affirmed, finding
that Bigelow and the Bigelow children had an implied agreement that
Bigelow would retain income and economic enjoyment from the transferred
assert, and that the inter vivos transfer was not a bona fide sale
of adequate and full consideration under 26 USC Sec. 2036(a). The
USCA affirmed. It held that the Tax Court properly found under Sec.
2036(a)(1) that the decedent retained an economic benefit from the
transferred asset because a property, known as "The Padaro Lane
property," continued to secure the debt for which the decedent
was personally liable. The Tax Court likewise did not err in finding
that the decedent and the Bigelow children had an implied agreement
that the decedent would derive income from the transferred asset because
Spindrift paid decedent's monthly $2,000 payment on a bank loan, and
the record supported the finding that in the absence of an implied
agreement, the decedent would have been impoverished and unequipped
to meet her financial needs. The USCA also held that the Tax Court
correctly found that the inter vivos transfer of the Padaro Lane property
was not executed for a legitimate, significant non-tax-related business
purpose based on objective criteria that would have informed the partners
of Spindrift if they had been operating at arm's length. To the contrary,
the record supported the finding that Spindrift was formed to facilitate
the transfer of the Padaro Lane property to decedent's children and
grandchildren primarily as testamentary substitute, with the advantage
of lower the gross estate by applying the discounts for lack of control
and marketability. The Tax Court did not clearly err in finding that
the transfer was not a bona fide sale for an adequate and full
consideration under Sec. 2036's parenthetical exception. Thomas, Wardlaw,
and Gould (author), Circuit Judges. F. Bigelow of Pasadena,
CA, for the appellant; J. Cohen of Washington, DC, for the appellee.
(Download
the full text of this decision at www.ce9.uscourts.gov/)
2) BANKRUPTCY: In re Magnacom Wireless, LLC, 05-35839 (9th Cir. Sept. 17, 2007). At issue on this appeal was the effect of the Federal Communications Commission's cancellation of licenses held by a licensee in bankruptcy proceedings. The trustee to the bankruptcy estate of Magnacom Wireless appealed the district court decision to deny his claim to the proceeds from the FCC's auction of new licenses for the radio spectrum previously covered by Magnacom's cancelled licenses. The USCA affirmed the district court order, concluding that the FCC's cancellation of Magnacom's licenses extinguished Magnacom's interest in those licenses and the underlying spectrum. Such cancellation did not result in any traceable proceeds, and did not constitute a lien-enforcement remedy. Magnacom was not entitled to such proceeds. B. Fletcher, Pregerson, and Ikuta (author), Circuit Judges. D. Verrilli of Washington, DC, for the plaintiff; J. Ripper of Seattle, WA, for the trustee; P. Keisler of Washington, DC, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 3) BANKRUPTCY: In Excel Innovations, 06-17288 (9th
Cir. Sept. 7, 2007). Excel Innovations sought a preliminary injunction
stay-ing arbitration proceedings between two non-bankrupt parties,
Indivos Corporation and former Excel CEO Hoffman. The Bankruptcy
Court granted the injunction, finding a reasonable probability that
the arbitration could affect the debtor and the bankruptcy estate.
The Bankruptcy Appellate Panel affirmed. The USCA held that when
a debtor applies for a 11 USC Sec. 105(a) preliminary injunction
to stay a proceeding in which the debtor is not a party, the Bankruptcy
Court must balance the debtor's likelihood of success in reorganization
against the relative hardship of the parties, as well as consider
the public interest if warranted. Because the Bankruptcy Court misapprehended
the operative legal standard, the USCA reversed and remanded for
further proceedings. Goodwin (author), Bybee, and Smith,
Circuit Judges. K. Palumbo of San Francisco, CA, for the appellants;
S. Goodsell of San Jose, CA, and J. Hansen of San Francisco, CA,
for the appellees. (Download
the full text of this decision at www.ce9.uscourts.gov/)
5) BANKRUPTCY: In re Healthcentral.com, 04-17565 (9th Cir. Sept. 21, 2007). Sigma Micro Corporation appealed to the BAP a summary judgment in favor of the responsible individual for a group of consolidated debtors avoiding several payments made to Sigma. Two issues were raised: (1) whether the bankruptcy court erred in retaining jurisdiction over the action in light of Local Rule 9015-2(b) and Sigma's right to a Seventh Amendment jury trial in the District court, and (2) whether the Bankruptcy Court erred in granting summary judgment in favor of the debtor on its preference action under 11 USC Sec. 547(b) and Sigma's ordinary course of business defense under Sec. 547(c)(2). The BAP affirmed. The USCA affirmed the BAP in part, reversed in part, and remanded. It held that Sigma at least raised a triable issue of fact as to whether Sec. 547(c)(2)(C) was satisfied. But it rejected the Bankruptcy Court's position that Sigma failed to satisfy Sec. 547(c)(2)(C) because its single piece of evidence, a declaration by Teresa Backof, a credit executive certified by the National Association of Credit Management (NACM) with 24 years of credit and payment experience, did not adequately define what "industry" she referred to in her declaration what stated that she obtained "industry" information from NACM, which included "industry-wide" payment history for "all customers of all reporting companies." While Backof's declaration was far from perfect, the USCA found it had to view the evidence in the light most favorable to the nonmoving party and draw all justifiable inference in favor of that party. Under this standard, Backof's declaration, which stated that the payments in question were ordinary for the "industry" was sufficient to create a triable issue of fact as to whether Sec. 547(c)(2)(C) was satisfied. Brunetti (author), O'Scannlain, and Trott, Circuit Judges. I. Macdonald of San Francisco, CA, for the appellant; T. Keller of San Francisco, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 6) BANKRUPTCY: In International FiberCom, 05-16358 (9th Cir. Sept. 12, 2007). This case presented the issue of whether a Bankruptcy Court may limit a prior order which grants relief not permitted by the Bankruptcy Code. Here, the Bankruptcy Court issued an order approving the assumption of a workers' compensation insurance policy under Sec. 365 of the Bankruptcy Code. The Bankruptcy Court later held that the assumption order violated Sec. 365 because it allowed the assumption of a non-executory contract. Relying on Fed. R. of Civ. Proc. 60(b)(6), applied to bankruptcy proceedings by Fed. R. Bank. Proc. 9024, the Bankruptcy Court interpreted the assumption order to comply with Sec. 365. The USCA affirmed, holding that the Bankruptcy Court properly relied upon Rule 60(b)(6) in limiting its prior order to ensure that it complied with the Bankruptcy Code. Hug (author), Rymer, and Fisher, Circuit Judges. K. Turner of Philadelphia, PA, for the appellant; S. Brown of Phoenix, AZ, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 7) ANTITRUST: Cascade Health Solutions v. PeaceHealth,
05-35627 (9th Cir. Sept. 4, 2007). McKenzie-Willamette Hospital
sued PeaceHealth. It asserted five claims under federal antitrust
laws: monopolization, attempted monopolization, conspiracy to monopo-lize,
tying, and exclusive dealing. It's two other claims arose under
Oregon state law: price discrimination and intentional interference
with prospective economic advantage. Before trial, the district
court granted summary judgment in favor of PeaceHealth on the tying
claim. After trial, the jury rendered a verdict in favor of PeaceHealth
on the monopolization, conspiracy to monopolize, and exclusive dealing
claims. But, it found in favor of McKenzie on the attempted monopolization,
price discrimination, and tortuous interference clams. It awarded
McKenzie $5.4 million in damages, which the district court trebled
for a final award of $16.2 million. It also awarded McKenzie $1,583,185
in attorneys' fees, costs, and expenses. The USCA vacated the jury's
verdict for McKenzie on the attempted monopolization, price discrimination,
and tortuous interference claims, and vacated the district court's
summary judgment for PeaceHealth on the tying claim. It also vacated
the award of attorneys' fees, costs, and expenses, and remanded
for further proceedings. Gould (author), Paez, and Rawlinson,
Circuit Judges. M. Popofsky of San Francisco, CA, for the appellant;
T. Triplett of Portland, OR, for the appellee. (Download
the full text of this decision at www.ce9.uscourts.gov/)
9) ANTITRUST: E&J Gallo Winery v. EnCana Corp.,
05-56023 (9th Cir. Sept. 19, 2007). E&J Gallo Winery alleged
that EnCana and WD Energy Services, a wholly-owned marketing subsidiary
of EnCana (collectively EnCana), along with multiple unnamed co-conspirators,
inflated the price Gallo paid for natural gas via violations of
state and federal antitrust laws. EnCana sought summary judgment
on the ground that the filed rate doctrine and federal preemption
barred Gallo's claimed as a matter of law. The District Court denied
EnCana's summary judgment motion. The USCA had jurisdiction over
this interlocutory appeal pursuant to 28 USC Sec. 1292(b) and affirmed.
It instructed that, on remand, the District Court may consider Gallo's
claims to the extent they are based on rates that are not FERC-authorized
rates. Concurring, Judge Fletcher thought the FERC had not yet set
a standard for determining what is a just and reasonable rate, nor
have the courts. She feared that respect is being given to agency
passivity, allowing anticompetitive and otherwise illegal actions
to escape review. B. Fletcher (concurring), Clifton, and
Ikuta (author), Circuit Judges. R. Levy of Los Angeles, CA,
for the appellant; J. Cotchett of Burlingame, CA, for the appellee.
(Download
the full text of this decision at www.ce9.uscourts.gov/)
11) TRADEMARKS: Comedy Club v. Improv West Associates, 05-55739 (9th Cir. Sept. 7, 2007). The Comedy Club and Al Copeland Investments (collectively CCI) executed an agreement with Improv West Associates which granted CCI an exclusive nationwide license to use Improv West's trademarks. CCI later breached this agreement and sought to protect its interests in the trademarks by filing a declaratory judgment action in District Court. Eventually, the parties were left with an arbitration award and two District Court orders, one compelling the parties to arbitrate, the other confirming the arbitration award. The USCA held it lacked jurisdiction to review the order compelling arbitration, but that the arbitrator properly arbitrated the equitable claims, the arbitrator's award was not completely irrational, the arbitrator exceeded the scope of his authority by enjoining the non-party affiliates, and the arbitrator's award violated California Business and Professions Code Sec. 16600. It thus vacated the District Court's order confirming the arbitration award and remanded with instructions to vacate the Partial Final Arbitration Award in so far as it enjoined CCI's affiliates, except if they are agents or otherwise acting for CCI, and to the extent it prevents CCI from opening or operating non-Improv clubs in counties in which CCI does not now operate or own in Improv club. Farris and Gould (author), Circuit Judges, and Duffy, District Judge. K. Sterman of Beverly Hills, CA, for the appellants; R. Klieger of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 12) TRADEMARKS: The Freecycle Network v. Oey, 06-16219 (9th Cir. Sept. 26, 2007). The Freecycle Network (TFN) is a non-profit Arizona corporation "dedicated to encouraging and coordinating the reusing, recycling, and gifting of goods." Oey made statements on the internet challenging the validity of TFN's claimed trademark in the term "Freecycle" and encouraged others to use the term in its generic sense. TFN sought an injunction and damages, alleging that Oey's statements constituted contributory trademark infringement and trademark disparagement under Sec. 43(a) of the Lanham Act, 15 USC Sec. 1125(a), as well as injurious falsehood, defamation, and intentional interference with a business relationship under Arizona law. The District Court granted a preliminary injunction based solely on TFN's Sec. 1125(a) claims, apparently conflating TFN's allegations of contributory trademark infringement and trademark disparagement. The preliminary injunction preventing Oey from making any comments that could be construed as to disparage TFN's possible trademark and logo, and requiring that he remove all his postings on the internet and other public forums in which he disparaged TFN's possible trademark and logo. The USCA vacated the injunction and remanded. Its analysis of the necessary elements and relevant considerations under Sec. 1125(a) indicated that Oey's actions likely did not constitute infringement because they were not a "use in commerce," created no likelihood of confusion, and did not disparage TFN's products or services. To the extent the injunction was based on TFN's "trademark disparagement" claim under Sec. 43(a), the District Court abused its discretion as no such cause of action exists under the Lanham Act. Even if the claim were cognizable under Sec. 1125(a), TFN had not shown a likelihood of success because the recorded did not demonstrate that Oey made any false statements. O'Scannlain, Hawkins (author), and Wardlaw, Circuit Judges. D. Falk of Palo Alto, CA, for the appellants; P. Andre of Menlo Park, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 13) ENVIRONMENTAL LAW: Oregon Natural Resources Council Fund v. Goodman, 07-35110 (9th Cir. Sept. 24, 2007). The Oregon Natural Resources Council, the Sierra Club and Headwaters challenged the Forest Service's approval of a proposed expansion of the Mount Ashland Ski Area within the Rogue River and Klamath National Forest. The District Court granted the Service summary judgment, finding that it had violated neither the National Environmental Policy Act (NEPA) nor the National Forest Management Act (NFMA), in authorizing the expansion. The USCA reversed. It held that the Service failed to properly evaluate the impact of the pro-posed expansion on the Pacific fisher, in violation of both the NEPA and the NFMA, and that it violated NFMA by failing to appropri-ately designate Riparian Reserves and Restricted Watershed terrain, as required by the Rogue River National Forest Land and Resource Management Plan and the Northwest Forest Plan. It thus reversed the District Court's grant of summary judgment and remanded for issuance of an injunction. Reinhardt, Hall, and Smith (author), Circuit Judges. M. Dugan of Eugene, OR, for the appellant; R. Lundman of Washington, DC, for the appellees; R. Maynard of Boise, ID, for the intervenor. (Download the full text of this decision at www.ce9.uscourts.gov/) 14) ENVIRONMENTAL LAW: The Northern Cheyenne Tribe v. Norton, 05-35408 (9th Cir. Sept. 11, 2007). This appeal chal-lenged an injunction limiting coal bed methane development while the Bureau of Land Management (BLM) expands an environmental impact statement. The USCA affirmed, holding that the District Court did not abuse its discretion in issuing the partial injunction proposed as that provides an equitable resolution consistent with the purposes of the National Environmental Policy Act (NEPA). Dissenting, Judge Schroeder noted that the entire panel agreed that the District Court correctly held that the BLM violated NEPA when it drafted an EIS considering alternatives for large scale exploration and development of coal bed methane mining in the Powder River Basis, but did not consider an alternative that would have phased exploration and development on a more gradual basis. The entire panel also agreed that the District Court correctly ordered the BLM to comply with NEPA by preparing a supplemental EIS that studied that alternative. However, instead of entering an injunction to preserve the status quo pending the BLM's compliance with NEPA, the District Court entered an injunctive order that put into effect the very alternative the BLM failed to study. It was there that Judge Schroeder dissented, as the District Court's order allowed major new activity in the area, potentially involving mining, road construction, and water usage affecting underground aquifers, before NEPA has been satisfied. Schroeder (dissenting), Alarcon, and Kleinfeld (author), Circuit Judges. J. Tuholske of Missoula, MT, and J. Arum of Seattle, WA, for the appellants; J. Stahr of Washington, DC, for the appellees; J. Martin of Washington, DC, for the intervenor. (Download the full text of this decision at www.ce9.uscourts.gov/) 15) ENVIRONMENTAL LAW: USA v. W.R. Grace, 06-30472 (9th Cir. Sept. 20, 2007). From 1963 until the early 1990s, W.R. Grace mined and processed vermiculite ore outside Libby, Montana. In response to on-going health problems suffered by Libby resi-dents, the government obtained an indictment charging W.R. Grace and seven of its executive (together "Grace") with criminal conduct. The superseding indictment charged Grace with (1) conspiring knowingly to release asbestos into the ambient air, thereby knowingly placing persons in imminent danger of death or serious bodily injury in violation of 42 USC Sec. 7413(c)(5)(A), and (2) conspiring to defraud the U.S. in violation of 18 USC Sec. 371. In addition to the dual-object conspiracy alleged in Count I, the indictment charged Grace with three counts of knowing endangerment under the Clear Air Act, and four counts of obstruction of justice in violation of 18 USC Secs 1505 and 1515(b). The USCA reversed the order dismissing the knowing endangerment object of Count I of the superseding indictment. It also reversed the order adopting the regulatory definition of asbestos used for civil regulations and directed that the definition provided in 42 USC Sec. 7412(b) applies. The USCA granted the government's request for a writ of mandate. It affirmed the exclusion of the indoor air studies, the Agency for Toxic Substances and Disease Registry report based on a medical screening study of Libby residents, and the Peipins Publication themselves. However, the USCA reverse their exclusion-and the exclusion of Grace's historic testing of its vermiculite products-as bases underlying an expert's opinion or testimony. Finally, the USCA granted Grace's motion to strike documents included with the government's replied brief. B. Fletcher (author), Pregerson, and Ferguson, Circuit Judges. T. Aagaard of Washington, DC, for the appellant; C. Landau of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 16) TELECOMMUNICATIONS LAW: Lozano v. AT&T Wireless Services, 05-56466 (9th Cir. Sept. 20, 2007). Lozano sued AT&T Wireless (ATS) basing his claims on allegations that ATS billed its customers for cellular telephone calls during a billing period other than the billing period in which the calls were made, a practice termed "out-of-cycle billing." He maintained that in doing this, ATS assessed charges for cellular telephone calls that would not have been assessed if the calls had been billed during the billing period in which they were made. Moreover, Lozano alleged that ATS did not fully and adequately disclose its billing practice to its customers at the time they entered into contracts with ATS. Lozano appealed the District Court's denial of a nationwide class for his Federal Communications Act and declaratory relief claims. He also appealed the Court's denial of a California subclass on these claims, as well as his breach of contract claim. ATS appealed the District Court's certification of a California subclass for Lozano's state law claims. The USCA reversed the District Court's order granting class certification of Lozano's California Consumer Legal Remedies Act (CLRA) claim based on the inclusion of an unconscionable clause in the agreement. Similarly, it reversed the District Court's certification of Lozano's California Unfair Competition Law claim based on unlawful conduct, as it was dependent on Lozano's CLRA claim. Hall and Callahan, Circuit Judges, and Robart (author), District Judge. J. Gignac of Santa Barbara, CA, for the appellant; M. Weber and G. Pasette of Los Angeles, CA, for the appellant. (Download the full text of this decision at www.ce9.uscourts.gov/) 17) TELECOMMUNICATIONS LAW: Kay v. City of Rancho Palos Verdes, 05-56149 (9th Cir. Sept. 21, 2007). Kay, an FCC-licensed amateur and commercial broadcaster, operates commercial two-way radio systems. He wanted to use a pre-existing amateur antennae on the roof of a house in the City of Rancho Palos Verdes for commercial wireless transmissions. When the city denied him a conditional use permit, he sued. The District court dismissed three of his claims, but ruled in his favor on Telecommunications Act (TCA) and California state law claims. Although the District Court granted injunctive relief, it held that the City had immunity from damages, and denied Kay's request for compensatory damages. The USCA held that the dismissed claims are barred by res judicata, and that the City is immune from damages under controlling California law. It also held that compensatory damages are not available under the TCA. Silverman, Wardlaw (author), and Bybee, Circuit Judges. C.D. Michel of Long Beach, CA, for the appellants; C. Lynch of Rancho Palos Verdes, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 18) TELECOMMUNICATIONS LAW: DirecTV v. Huynh, 05-16361 (9th Cir. Sept. 11, 2007). This case involves efforts of DirecTV to fight end-user piracy. Individuals trying watch DirecTV programs without payment ("pirates") have developed methods of decrypting DirecTV's signals. DirecTV fights such pirates by transmitting electronic countermeasures (ECMs) that disable illegally modified access cards by sending their access software into a loop. Once looped, an illegal card will not direct its receiver to access DirecTV programs until it is reprogrammed. One reprogramming device is a printed circuit board that restores functionality to a disabled access card by resolving the loop created by the ECM. In the present case, DirecTV brought claims against two pirates. The complaint alleged that they each purchased an unlooper and used it to illegally modify DirecTV Access Cards. According to the complaints, these actions constituted conversion and violated both the Federal Communications Act of 1934, as amended, 47 USC Sec. 605(a) and (e), and the Electronic Communications Privacy Act, 18 USC Secs. 2510-2521. As the defendants failed to appear or otherwise respond, they were deemed to have admitted all well-pleaded factual allegations contained in the complaints. DirecTV then moved for a default judgment and $20,000 in statutory damages against each defendant for violations of Sec. 605(e)(4), or alternatively, for violations of 18 USC Sec. 2520(a), or alternatively, for violation of Sec. 605(a). The District court granted DirecTV's motions for default judgments as to liability and damages under Sec. 2520(a), declined to grant default judgment under Sec. 605(e)(4), and declined to reach the issue of liability under Sec. 605(a). The USCA affirmed, finding that the District Court properly refused to grant default judgment under Sec. 605(e)(4) as the complaints failed to state violations of Sec. 605(e)(4) and it does not apply to personal use. Dissenting, Judge Siler would find that the District Court erred in holding that Sec. 605(e)(4) does not apply to individual use. He thought the statute clearly forbids conduct by any person who manufactures, assembles, modifies, or distributes any electronic, mechanical or other device or equipment. It does not, he thought, limit its application to manufactures and sellers. B. Fletcher (author), Siler (dissenting), and Hawkins, Circuit Judges. M. Zwillinger of Washington, DC, for the appellant; J. Schultz of San Francisco, CA, for the amicus curiae. (Download the full text of this decision at www.ce9.uscourts.gov/) 19) CORPORATIONS: Bolt v. Merrimack Pharmaceuticals,
05-16282 (9th Cir. Sept. 11, 2007). In this case the USCA had to
interpret a corporation's articles of organization to decide whether
the corporation had an obligation to redeem certain shares of its
stock. Bolt owned 52,488 shares of Series A Redeemable Preferred
Stock issued by Merrimack Pharmaceuticals, a biotechnology company
organized under Massachusetts law. He sought to redeem them. The
USCA held that Merrimack was obliged to redeem Bolt's Series A Stock
if its net worth equaled or exceeded $5 million. As it held that
the term "net worth" for purposes of the Restated Articles
of Organization should be given its well-established meaning as
the difference between total assets and total liabilities, and because
Merrimack's total assets and total liabilities equaled $11,331,070
and $1,270,230, respectively, as shown on the December 31, 2001
balance sheet calculated in conformity with generally accepted accounting
principles, Merrimack's net worth exceeded $5 million. The USCA
thus affirmed the summary judgment for Bolt. Hall and O'Scannlain
(author), Circuit Judge, and Gonzales, District Judge. D.
Birnbach of Boston, MA for the appellants; W. Warne of Sacramento,
CA, for the appellee. (Download
the full text of this decision at www.ce9.uscourts.gov/)
21) ARBITRATION: Collins v. D.R. Horton, Inc., 05-15737 (9th Cir. Sept. 24, 2007). Collins and Ryan appealed the District Court's denial of their motion to vacate an arbitration award. They maintained that their motion should have been granted because the arbitrators manifestly disregarded the law when deciding not to apply offensive non-mutual collateral estoppel because judicial review of an arbitration award under the Federal Arbitration Act is more limited than judicial review of a district court judgment. The USCA held that the arbitrators did not manifestly disregard the law because no "well defined, explicit, and clearly applicable" law exists to be disregarded. The USCA thus affirmed. D.W. Nelson, Callahan, and Bea (author), Circuit Judge. L. Katz of Phoenix, AZ, for the appellants; L. Williams of Phoenix, AZ, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 22) CONTRACTS / ROYALTY PAYMENTS: Zila, Inc. v. Tinnell, 05-15031 (9th Cir. Sept. 5, 2007). Tinnell developed a liquid to treat lesions caused by the herpes virus. He applied for a patent on the liquid and acquired a defunct corporation, Zela, as a vehicle for marketing and selling the product, which he now called Zilactin. He entered an agreement with Zila that assigned all rights in his invention to Zila in return for royalty payments and company stock. The royalty payments are the subject of this lawsuit. The contract was unambiguous as to the duration of the royalties and the parties agree on their intent at the time it was formed. All the evidence was thus in accord with a single interpretation: Tinnell would relinquish all rights to Zilactin, patent or otherwise, and, in return, receive in perpetuity a 5% royalty of Zila's sales of the invention. However, Zila asserted, and the District Court agreed, that the doctrine announced in Brulotte v. Thys, 379 US. 29 (1964), displaced, because of federal patent policy, the parties' intent and rendered the royalty obligation unenforceable, either entirely or upon the expiration of the first patent that issued on Tinnell's invention. The USCA reversed and remanded. It found that if Tinnell invented an improvement on his 1981 patent, which was itself patented and provided additional monopoly protection, Brulotte cannot be applied to displace the royalty provision when the 1981 patent expires. Instead, the royalty obligation would stand until the end of the term of any such later patent. A disputed issue of fact existed as to whether Tinnell or Edwin Pomerantz invented the improvement embodied in the 1992 patent. Despite the fact that the patent listed Pomerantz as the inventor, Tinnell produced extensive evidence that the idea originated with him: Zila named him as the inventor on the first application; Pomerantz told Zila's patent counsel that Tinnell first had the idea; another witness so testified; and Zila's patent counsel told Tinnell that he would be named the inventor. The USCA thus remanded to the district court for a determination whether Tinnell should be credited with invention of the 1992 patent. If he should be, summary judgment in his favor is appropriate to the extent it declares him entitled to domestic royalties until the 1992 patent expires. If not, summary judgment in Zila's favor is appropriate to the extent that it declares the company released from liability for any domestic royalties after the 1981 patent expired in 1998. D.W. Nelson, Cowen, and Berzon (author), Circuit Judge. L. Johns of Las Vegas, NV, for the appellant; W. Drummond of Newport Beach, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 23) ERISA: Washington v. Bert Bell / Pete Rozelle NFL Player Retirement Plan, 05-16366 (9th Cir. Sept. 21, 2007). Victor Washington, a former player in the National Football League, participated in the Bert Bell NFL Player Retirement Plan (the old Plan) until it was amended and merged with the Pete Rozelle NFL Player Retirement Plan on March 30, 1994 to become the Bert Bell / Pete Rozelle NFL Player Retirement Plan (the new Plan). Washington now participates in the new Plan. Both Plans are governed by ER-ISA and administered by a six-member Retirement Board. Due to injuries, Washington left football in 1976. His claims history started in 1983 and is extensive. Medical opinions differ as to whether he was totally disabled or could perform some type of work. A settlement was reached in 1998. When Washington turned 55 on March 23, 2001, his inactive disability benefits converted to an equal retirement benefit under the new Plan. On October 3, 2001, he again required that his disability benefits be reclassified at the Football Degenerative level. The Board responded that the settlement agreement released all claims for disability benefits, and that Washington had properly converted to retirement benefits at the inactive rate pursuant to Sec. 5.4 of the new Plan. Washington filed the present action in 2004 against the new Plan and the Board to undo the 1998 settlement under ERISA Sec. 502(a)(3), on the ground that the Plan and the Board breached their fiduciary duties by failing to disclose that the ruling in Brumm v. Burt Bell NFL Ret. Plan, 995 F.2d 1433 (8th Cir. 1993), overturned the criteria used to deny his football-related disability benefits. The District Court entered summary judgment, holding that knowing about Brumm would have made a difference to Washington in deciding whether to settle his 1996 claim for reclassification. The USCA reversed the summary judgment. While a Plan fiduciary must disclose information that would be material to a reasonable participant, the USCA did not agreed with the District Court that the Brumm holding would be material to a request for reclassification to Football Degenerative under the new Plan. Brumm concerned construction of the old Plan whose causation requirement for disability resulting from "a football injury" is different from the new Plan's requirement that Football Degenerative disability arises out of "League football activities." Nothing in Brumm sheds light on what that phrase means. Dissenting in part, Judge Fisher agreed with the majority that the District Court did not abuse its discretion in declining to award injunctive relief with respect to the Board's attempted imposition of fees. He also agreed that if the Brumm decision would have been material to a reasonable person's decision to enter into the settlement agreement at issue here, the Board had a fiduciary duty to disclose it. However, he disagreed with the majority's conclusion that Brumm was not material to a reasonable employee's decision-making process in this circumstance. Hug, Rymer (author), and Fisher (dissenting in part), Circuit Judges. E. Scallet of Washington, DC, for the appellants; S. Martin of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 24) LABOR LAW: Bader v. Northern Line Layers, 05-36012 (9th Cir. Sept. 10, 2007). Former employees of Northern Line Layers (NLL) sought compensation from NLL and its parent Quanta Services, for violating the Worker Adjustment and Retraining Notification Act, which requires employers to give employees 60 days' notice in the event of a plant closing or mass layoff at a "single site of employment." At issue on appeal was whether the "site of employment" for construction workers is the company headquarters or the workers' actual work site. The USCA held it is the latter. The plaintiffs thus failed to show that 50 or more laid-off employees worked at a single site and the USCA affirmed the District Court's grant of summary judgment in favor of the defendants. Hall, Tashima (author), and Callahan, Circuit Judges. K. Peterson of Billings, MT, for the appellants; M. Levine of Houston, TX, for the appellants. (Download the full text of this decision at www.ce9.uscourts.gov/) 25) LABOR LAW: American Federation of Government Employees,
Local 1 v. Stone, 05-15206 (9th Cir. Sept. 5, 2007). The
American Federation of Government Employees, Local 1 (AFGE) and
John Gavello, appealed the District Court's dismissal of their action
against the Administrator of the Transportation Security Administration
(TSA) in his official capacity. The District Court held that the
plaintiffs were not entitled to judicial review of their claims
that the TSA violated their First Amendment rights by disciplining
and then discharging Gavello, a TSA security screener for engaging
in union activities. It also held that AFGE lacked standing. The
USCA reversed the dismissal of the suit for lack of subject matter
jurisdiction and standing and remanded for further proceedings.
Tashima and W. Fletcher (author), Circuit Judge, and Holland,
District Judge. M. Roth of Washington, DC, for the appellants; W.
Kanter of Washington, DC, for the appellees. (Download
the full text of this decision at www.ce9.uscourts.gov/)
27) EMPLOYMENT LAW / CIVIL RIGHTS / AMERICANS WITH DISABILITY ACT: Nilsson v. City of Mesa, 05-15627 (9th Cir. Sept. 13, 2007). Nilsson appealed the District Court's order granting summary judgment in favor of the City of Mesa in her action alleging violations of Title VII of the Civil Rights Act of 1964, Title I of the Americans with Disabilities Act, the U.S. Constitution's due process and equal protection clauses, and various Arizona state laws, including the Arizona Employment Discrimination Act (AEDA). Finding that summary judgment in favor of Mesa was warranted, the USCA affirmed. Nilsson voluntarily, deliberately, and knowingly waived her right to assert her ADA and Sec. 1983 claims against the Mesa Police Department because they were predicated on actions taken during the background investigation. As Nilsson failed to file a charge with either the EEOC or the Arizona Civil Rights Division with respect to her sex and disability discrimination under the AEDA, those claims were not exhausted. Although Nilsson's Title VII and AEDA retaliation claims were not barred, she failed to raise a genuine issue of material fact with respect to pretext. Summary judgment in favor of Mesa thus was warranted as to all of Nilsson's causes of action. Gould and Rawlinson (author), Circuit Judges, and Covello, District Judge. D. Gaona of Phoenix, AZ, for the appellant; M. Steadman of Mesa, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 28) INDIVIDUALS WITH DISABILITIES EDUCATION ACT: Blanchard v. Morton School District, 06-35388 (9th Cir. Sept. 20, 2007) Blanchard sought damages to compensate her for lost income and emotional distress she experienced during her ultimately successful efforts to obtain benefits for her son under the Individuals with Disabilities Education Act (IDEA). When the matter was before the USCA earlier, it reversed the District Court's dismissal for failure to exhaust administrative remedies. The USCA held that because Blanchard sought damages on her own behalf rather than her son's, no administrative remedies existed. On remand, the district court granted summary judgment for the defendants, holding that Blanchard had no individual rights under the IDEA and that the IDEA's enforcement scheme did not contemplate the damages she sought. However, the subsequently decided Winkelman ex rel. Winkelman v. Parma City Sch. Dist., 127 S.Ct. 1994, 1999 (2007), held that those rights were sufficient to permit a parent to appear pro se in pursuit of IDEA remedies to secure for a child the free appropriate public education guaranteed under IDEA Sec. 1415. At issue now was whether 42 USC Sec. 1983 creates a cause of action for money damages under the IDEA for the lost earnings and suffering of a parent pursuing IDEA relief. The USCA held that it does not. It thus affirmed the District Court's judgment for the school district after taking into account Winkelman. Schroeder (author), Goodwin, and Graber, Circuit Judges. L. Davis of Seattle, WA, for the appellant; J. Lyman of Olympia, WA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 29) FOIA / NATIONAL SECURITY: Berman v. CIA, 05-16820 (9th Cir. Sept. 4, 2007). For nearly 50 years, the CIA has sent the President a daily highly classified summary of the most important and timely intelligence relating to America's national defense and foreign policy priorities. They are known as the President's Daily Brief (PDB). Berman filed a FOIA request seeking two Johnson-era PDBs. The CIA denied his request. After his administrative appeal was denied, Berman filed a declaratory judgment action in District Court. It granted summary judgment for the CIA, holding that the CIA made an adequate showing that the documents were shielded from disclosure by exemptions 3 and 5 of the FOIA. 5 USC Sec. 552(b)(1), (b)(3), and (b)(5). The USCA affirmed. It held that exemption 3 excused the CIA from release of the requested PDBs and that PDBs are protected by and the National Security Act, 50 USC Secs. 403-1(i)(1), 403g. The CIA provided ample justification that disclosure of the two PDBs would reveal protected intelligence sources and methods. However, the USCA rejected the CIA's argument that the PDBs are themselves protected intelligence methods. Thompson, Rymer, and Fisher (author), Circuit Judges. T. Burke of San Francisco, CA, for the appellant; P. Keisler of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 30) POLITICAL QUESTIONS: Corrie v. Caterpillar, 05-36210 (9th Cir. Sept. 17, 2007). The plaintiffs filed this action after the Israel Defense Forces (IDF) demolished homes in the Palestinian Territories using bulldozer manufactured by Caterpillar, a U.S. cor-poration. The IDF ordered the bulldozers directly from Caterpillar, but the U.S. government paid for them. The district court dismissed the action under Fed. R. Civ. Proc. 12(b)(6), finding that it lacked jurisdiction because, inter alia, the political question doctrine precluded decision by an Article III court. Because the USCA agreed that the plaintiffs' claims presented nonjusticiable political questions that deprived the District Court of subject matter jurisdiction when construed under Rule 12(b)(1), it did not reach the remaining questions presented under state, federal, and international law. The plaintiffs' action could not proceed because its resolution would require the federal judiciary to ask and answer questions that are committed by the Constitution to the political branches of the government. Alarcon, Hawkins, and Wardlaw (author), Circuit Judges. G. Skinner of Seattle, WA, for the appellants; D. Meyer of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 31) FALSE CLAIMS: USA v. Atalig, 05-10511 (9th Cir. Sept. 6, 2007). Super Typhoon Pongsona struck Rota Island in the Com-monwealth of the Northern Mariana Islands on December 7, 2002. President Bush declared Rota a major disaster area, and the Federal Emergency Management Agency developed an assistance package for the island, including benefits under the federal Disaster Unem-ployment Assistance (DUA) program. The mayor of Rota appointed Atalig to administer the DUA program. Atalig subsequently appealed her conviction for conspiracy to submit false claims to the United States in violation of 18 USC Secs. 287 and 1001 and seven counts of making false statements in violation of Sec. 1001. A jury in the Northern Mariana Islands found that Atalig knowingly made material false statements when submitting applications for federal DUA benefits on behalf of Rota residents. The USCA affirmed, holding that the false statements statute did not require the government to prove which particular agency within the executive branch maintained jurisdiction over the matter involving the submission of false statements. It also found the evidence sufficient to support Atalig's fraud conviction. Alarcon, Berzon, and Tallman (author), Circuit Judges. AUSA T. Moran of Guam for the appellee; G. Long of San Jose, Saipan, for the appellants. (Download the full text of this decision at www.ce9.uscourts.gov/) 32) FAIR CREDIT REPORTING ACT: Pintos v. Pacific Creditors Association, 04-17485 (9th Cir. Sept. 21, 2007). Pintos ap-pealed the District Court's summary adjudication of her claims under the Fair Credit Reporting Act (FCRA). She maintained that Pacific Creditors Association (PCA) violated the FCRA by obtaining, without a FCRA-sanctioned purpose, a credit report on her from Experian Information Solutions, a credit reporting agency. She also argued that Experian violated the FCRA by furnishing the report to PCA. The District court granted the defendants summary judgment. Relying on Hasbun v. County of Los Angeles, 323 F.3d 801 (9th Cir. 2003), it held that PCA was authorized to obtain Pintos' credit report under 15 USC Sec. 1681b(a)(3) as it was attempting to collect a debt from Pintos. However, Hasbun was decided prior to the enactment of the Fair and Accurate Credit Transactions Act of 2003 (FACTA) which makes clear that debt collection is a permissible purpose for obtaining a credit report under Sec. 1681b(a)(3)(A) only in connection with a "credit transaction" in which a consumer has participated directly and voluntarily. Because PCA obtained a credit report on Pintos unrelated to any such transaction, the USCA reversed the district court with respect to Pintos' claim against PCA and remanded for further proceedings with respect to damages and to Experian's liability. Schroeder and Clifton (author), Circuit Judges, and Schiavelli, District Judge. A. Ogilvie of San Francisco, CA, for Pintos; D. McLoon of Los Angeles, CA, for Experian Information Solutions; A. Steinheimer of Sacramento, CA, for PCA. (Download the full text of this decision at www.ce9.uscourts.gov/) 33) FAIR CREDIT REPORTING ACT: Dennis v. BHE-1, LLC, 04-56230 (9th Cir. Sept. 25, 2007). At issue here was whether a credit reporting agency can be liable under the Fair Credit Reporting Act (FCRA) when it overlooks or misinterprets documents in a court file. The USCA held that when conducting a reinvestigation pursuant to 15 USC Sec. 1681i, a credit reporting agency must exercise reasonable diligence in examining the court file to determine whether an adverse judgment has, in fact, been entered against the consumer. A reinvestigation that overlooks documents in the court file expressly stating that no adverse judgment was entered falls far short of this standard. On its own motion, the USCA thus granted summary judgment to Dennis on his claim that Experian Information Solutions negligently failed to conduct a reasonable reinvestigation in violation of Sec. 1681i. Whether Esperian's failure was also willful, in violation of Sec. 1681n, was a question for the jury on remand. Kozinski (author), O'Scannlain, and Bybee, Circuit Judges. L. Dell of Los Angeles, CA, for the plaintiff-appellant; M. Feder of Los Angeles, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 34) FALSE CLAIMS: Stoner v. Santa Clara County Office of Education, 04-15984 (9th Cir. Sept. 7, 2007). Under the False Claims Act (FCA), any person who knowingly presents or causes to be presented, to an officer or employee of the United States Gov-ernment a false or fraudulent claim for payment or approval is liable for a civil penalty, treble damages, and costs. 31 USC Sec. 3729(a)(1). The FCA authorizes a private person, known as a relator, to bring a qui tam civil action for a violation of Sec. 3729 for the person and for the U.S. Government in the name of the Government. At issue here was whether a pro se relator may bring a qui tam action in federal court on behalf of the government against various actors in the California schools system. The USCA reversed the District Court's ruling which dismissed the FCA claims against the individual defendants named in Stoner's complaint. It otherwise affirmed the District Court's rulings and remanded for further proceedings. O'Scannlain and Ikuta (author), Circuit Judges, and Sand, District Judge. J. Stoner of Sunnyvale, CA, pro se; M. Davis of San Jose, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 35) HEALTH CARE FRAUD: USA v. Dearing, III, 06-30606 (9th Cir. Sept. 25, 2007). Dearing appealed his conviction on 32 counts of aiding and abetting health care fraud in violation of 18 USC Sec. 1347, arising from a scheme to defraud Idaho Medicaid by submitting false billings from a mental health clinic Dearing owned and operated with his brother. The USCA affirmed. The evidence supported a finding that Dearing willfully participated in the fraudulent billing scheme, and his claims that the District Court erred in permitting a jury instruction that allowed a finding of guilt based upon reckless indifference rather than willful intent was unavailing The District Court instructed the jury that it could not convict Dearing unless it found beyond a reasonable doubt, as to the first element of the crime, "that the defendant knowingly and willingly executed, or attempted to execute a scheme to defraud any healthcare benefit program." It then defined "willfully" as meaning "that the act was committed voluntarily and purposely with the specific intent to do something the law forbids. That is to say, with bad purpose either to disobey or to disregard the law, and not through ignorance, mistake, or accident. The instructions correctly stated that the jury could not find Dearing guilty unless it found he specifically intended to act with a bad purpose in executing a scheme to defraud Medicaid. Canby, Hall (author), and Callahan, Circuit Judges. S. Williams of Salt Lake City, UT, for the appellant; AUSA W. Olson of Boise, ID, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 36) RENT CONTROL / TAKINGS: Equity Lifestyle Properties v. County of San Luis Obispo, 05-55406 (9th Cir. Sept. 17, 2007). At issue here was whether a municipal rent control ordinance survives a due process and equal protection challenge or requires payment of compensation as a government taking. The USCA held that Manufactured Home Communities (MHC) had standing based on its financial interest in the Sea Oaks Manufactured Home Community in Los Osos, California (the Park.) However, it affirmed the District Court's dismissal of MHC's complaint as it contained no claim upon which relief could be granted. Its as-applied takings claim was unripe; its facial claims failed to satisfy the applicable statute of limitations; and, its due process and equal protection claims lacked merit under the U.S. Constitution. Moreover, the principles of abstention justified the District Court dismissal of the petition for a writ of administrative mandamus, and the USCA declined to disturb the state trial court's subsequent decision denying the writ. Hall, O'Scannlain (author), and Callahan, Circuit Judges. Bradford of Chicago, IL, for the petitioner; T. McNulty of San Luis Obispo, CA, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/)
38) FAIR HOUSING ACT: Garcia v. Brockway, 05-35647 (9th Cir. Sept. 20, 2007). At issue in these two consolidated cases was when the statute of limitations begins to run in a design-and-construction claim under the Fair Housing Act (FHA). The USCA affirmed. As both districts courts below held, an aggrieved person must bring a private civil action under the FHA for a failure to properly design and construct within two years of the completion of the construction phase, which concludes on the date the last certificate of occupancy is issued. Because neither plaintiff brought a timely suit, their cases were properly dismissed. Dissenting, Judge Fisher thought the majority had erroneously treated a building's improper design and construction as the event triggering the FHA's two-year statue of limitations. He thought the most plausible reading of the stature is that the limitations period begins (at the earliest) when a disabled person actually experiences discrimination, either in attempting to buy or rent a noncompliant housing unit, in "testing" such a unit or upon moving in as a tenant. Kozinski (author), Fisher (dissenting), and Tallman, Circuit Judges. K. Nagy of Lewiston, ID, for the appellant; C. Dale of Boise, ID, for the appellees. ( (Download the full text of this decision at www.ce9.uscourts.gov/) 39) JURISDICTION: Menken v. Emm, 05-16467 (9th Cir. Sept. 19, 2007). Menken filed a complaint in Arizona state court alleging negligence, interference with contractual relations, civil extortion, and a violation of Arizona Revised Statutes Sec. 33-420. Defendant Tomerlin removed the case (based on diversity of citizenship) to the U.S. District Court for the District of Arizona, which dismissed for lack of personal jurisdiction. Concluding that Tomerlin had sufficient contacts with the State of Arizona to warrant the exercise of personal jurisdiction, the USCA reversed. It emphasized that the simple domestication of a foreign judgment in Arizona, standing alone, is unlikely sufficient to confer personal jurisdiction on the judgment creditor. Tomerlin allegedly did more-domesticating the judgment and then attempting to extract a greater payment than lawfully due under the foreign judgment. It is the alleged attempt to leverage a payment in excess of that lawfully due that conferred specific jurisdiction over Tomerlin. Dissenting in part, Judge Bybee thought the Court could take up factors related to the reasonableness of an assertion of jurisdiction only after establishing that the defendant purposefully established minimum contacts with the forum and that the contacts are related to the cause of the action. Bybee (dissenting in part) and Smith, Circuit Judges, and Seabright (author), District Judge. J. Derrick of Santa Barbara, CA, for the plain-tiff-appellant; V. Creta of Phoenix, AZ, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 40) FIRST AMENDMENT: Dible v. City of Chandler, 05-16577 (9th Cir. Sept. 5, 2007). Ronald and Megan Dible appealed from the District Court's grant of summary judgment against them in their action against the City of Chandler, Arizona, the Chandler Police Department, and the Chandler Police Chief (collectively "the City"). The Dibles maintain that Ronald was a police officer whose rights under the First Amendment were violated when he was terminated for performing in, recording, and purveying a sexually explicit website with his wife. The USCA affirmed, noting that we have not yet abandoned our social codes to the point that a city can be sanctioned for violating a police officer's First Amendment rights when he causes disrespect of the police department and its members by performing in and purveying pictures of his wife's sexually explicit activities over the internet. The City could take notice of the fact that officers and the department were vilipended. It could react to the effects that Ronald Dible's activities could be expected to and did have upon the police department's mission and functions. To paraphrase Justice Holmes: Ronald maybe have the constitutional right to run his sex oriented business, but he has no constitutional right to be a policeman for the City at the same times. Schroeder, Canby (concurring), and Fernandez (author), Circuit Judges. K. Knowlton of Mesa, AZ, for the appellants; K. Baker of Scottsdale, AZ, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 41) ESTABLISHMENT CLAUSE: Buono v. Kempthorne, 05-55852 (9th Cir. Sept. 6, 2007). A Latin cross sits atop an outcropping known as "Sunrise Rock" in the Mojave National Preserve. The USCA has held that the presence of the cross in the Preserve violates the Establishment Clause of the U.S. Constitution. Buono v. Norton, 371 F.3d 543 (9th Cir. 2004). It thus affirmed the District Court's judgment permanently enjoining the government from permitting the display of the Latin cross in the area of Sunrise Rock. During the pendency of the first appeal, Congress enacted a statute directing that the land on which the cross is situated be transferred to a private organization in exchange for a parcel of privately-owned land located elsewhere in the Preserve. That land exchange was in progress and would have left a little donut hole of land with a cross in the midst of a vast federal preserve. At issue on this appeal was whether the land exchange violated the permanent injunction. The USCA held that it did, and affirmed the district court's order permanently enjoining the government from effectuating the land exchange and ordering it to comply with the injunction. B. Fletcher and McKeown (author), Circuit Judge, and Whyte, District Judge. S. Wooldridge of Washington, DC, for the appellants; P. Eliasberg of Los Angeles, CA, for the appellee. ( (Download the full text of this decision at www.ce9.uscourts.gov/) 42) ESTABLISHMENT CLAUSE: Inouye v. Kemna, 06-15474 (9th Cir. Sept. 7, 2007). Ricky Inouye had a methamphetamine ad-diction and had been sentenced for drug crimes. He was released on parole on November 20, 2000. He brought this 42 USC Sec. 1983 action, alleging that his parole officer had violated his First Amendment rights. His action was carried forward by his son Zenn Inouye, as personal representative of Ricky's estate. Ricky charged that Mark Nanamori, his parole officer, violated the Establishment Clause by requiring him to attend Alcoholics Anonymous / Narcotics Anonymous AA/NA meetings as a condition of his parole. The District court granted summary judgment against Inouye. The USCA held that Nanamori's mistake as to the law was not reasonable. An officer in Nanamori's position, having available near-unanimous judicial invalidation of religious coercion in this and similar contexts, with a lawsuit in progress against the prison system for mandating participation in a similar program, and having Kerr v. Farrey, 95 F.3d 472 (7th Cir. 1996), in hand, should not have reasonably repeated the same mistake. The USCA thus reversed the summary judgment, as Nanamori did not have qualified immunity. It directed that the case go to trial to determine any issues of disputed fact that remain. Concurring in the judgment, Judge Tallman wrote separately as he could not embrace the majority's broad language. The only record evidence that Ricky participated in AA/NA offends the Establishment Clause was a letter that Ricky's attorney wrote on his behalf to the parole board before Ricky's release that simply alleged that AA/NA "has explicit religious content" and enclosed a copy of the Kerr decision. Judge Tallman noted that the panel knows nothing about the content of the Hawaii Salvation Army's AA/NA program. And other courts have recognized that the principal and primary effect of encouraging participation in AA is not to advance religious belief but to treat substance abuse. O'Connor v. California, 855 F.Supp. 303, 307 (C.D. Cal. 1994). Judge Tallman was concerned that the panel's opinion gave parolees incentive to file Sec. 1983 actions when the simple solution would be to return to the sentencing court and seek relief from alleged unconstitutional terms of parole through appropriate motion practice. Thompson, Berzon (author), and Tallman (concurrence), Circuit Judge. W. Schoettle of Honolulu, HI, for Ricky and Zenn Inouye; C. Okinaga and M. Bennett of Honolulu, HI, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 43) IMMIGRATION: Navarro-Lopez v. Gonzales, 04-70345 (9th Cir. Sept. 19, 2007). Navarro-Lopez petitioned for review of a final order of removal, arguing that the BIA erred in summarily affirming an IJ's ruling that his conviction under California Penal Code Sec. 32 for accessory after the fact was a conviction for a crime involving moral turpitude. Based on Navarro-Lopez's conviction, the IJ held he was inadmissible and ineligible for cancellation of removal. The USCA granted the petition and remanded to the BIA for full consideration of the application for cancellation of removal. It held that a crime involving moral turpitude must be a crime that (1) is vile, base or depraved and (2) violates societal moral standards. Accessory after the fact under Sec. 32 does not fall within that definition. The categorical and modified categorical approaches outlined in Taylor v. USA, 495 US 575 (1990), support this conclusion. Judge Reinhardt, joined by Schroeder, Kozinski, Hawkins, Thomas, Wardlaw, W. Fletcher, and Paez, concurred that under the Circuit's two-pronged approach, accessory after the fact under Sec. 32 is neither a crime of fraud nor a crime of depravity. He thus agreed that is not a crime involving moral turpitude. Dissenting, Judge Tallman, joined by O'Scannlain, Rawlinson, Clifton, and Bybee, thought that Navarro-Lopez's petition for review of his final order of removal should be denied because the crime of accessory after the fact in violation of Sec. 32 is a crime involving moral turpitude under the categorical approach established in Taylor, and, In reaching the opposite conclusion, the majority used dubious reasoning and ignored relevant case law from sisters circuits, creating yet another unnecessary circuit split. Dissenting, Judge Bea, joined by O'Scannlain, thought that whether a state crime qualifies as a crime involving moral turpitude under 8 USC Sec. 1182(a)(2)(A)(i)(I) could not be answered, as the majority attempted to do, by using the categorical approach of Taylor. Schroeder, Pregerson (author), Reinhardt (concurring), Kozinski, O'Scannlain, Hawkins, Thomas, Wardlaw, W. Fletcher, Paez, Tallman (dissenting), Rawlinson, Clifton, Bybee, and Bea (dissenting), Circuit Judges. J. Patterson of San Diego, CA, for the petitioner; F. Fraser of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 44) IMMIGRATION: Ortega-Cervantes v. Gonzales, 05-70605 (9th Cir. Sept. 4, 2007). At issue here was whether an alien condi-tionally paroled under 8 USC Sec. 1226(a) is necessarily "paroled into" the USA and thus eligible for adjustment of status under 8 USC 1255(a). The USCA held that Ortega was not paroled into the USA under Sec. 1282(d)(5)(A) and did not become eligible for adjustment of status under Sec. 1255(a) by virtue of his conditional parole under Sec. 1226(a). Schroeder, Trott, and W. Fletcher (author), Circuit Judges. G. Martinez-Senftner of Roseville, CA, for the petitioner; A. Rabin of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 45) IMMIGRATION: Marmolejo-Campos v. Gonzales, 04-76644 (9th Cir. Sept. 12, 2007). The petitioner, a native and citizen of Mexico, sought review of a BIA order dismissing his appeal from an Immigration Judge's order of removal. The USCA denied the petition. The petitioner's convictions under Arizona Revised Statutes Sec. 28-1383(A)(1) were crimes involving moral turpitude under INA Sec. 237(A)(2)(a)(ii). Judge Nelson dissented. She stated the issue of whether the act of driving while intoxicated, which is not a crime involving moral turpitude, becomes morally turpitudinous when coupled with the act of driving without a license, which also is not a crime involving moral turpitude. She thought not. D.W. Nelson (dissenting) and Callahan (author), Circuit Judges, and Carney, District Judge. C. Stender of Phoenix, AZ, for the petitioner; A. Rabin of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 46) IMMIGRATION: Jordison v. Gonzales, 04-71026 (9th Cir. Sept. 4, 2007). Jordison, a Canadian citizen, came to the USA on a temporary visa but remained after that visa expired. At issue here was whether his conviction under California Penal Code Sec. 452(c) for recklessly setting fire to a structure or forest land is "a crime of violence" under 18 USC Sec. 16(b). The USCA vacated the BIA's removal order and remanded so that the BIA could consider whether Jordison is eligible for relief from removal. Brunetti, Kozinski (author), and Rymer, Circuit Judges. P. Medved of Los Angeles, CA, for the petitioner; P. Keisler of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 47) IMMIGRATION: He v. Gonzales, 05-74930 (9th Cir. Sept. 4, 2007). The Hes petitioned for review of a BIA's denial of their second motion to reopen their immigration proceedings. The BIA concluded that the Hes' motion did not fall within any exception to the regulatory bar again motions to reopen that are untimely or successive. Because the birth of two of the Hes' children in the United States cannot established changed circumstances in the petitioners' country of origin, China, within the meaning of 8 CFR Sec. 1003.2(c)(3)(ii), the USCA denied the petition. Thompson, Berzon, and Tallman (author), Circuit Judges. J. Li of Honolulu, HI, for the petitioners; M. Taylor of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 48) IMMIGRATION: Kawashima v. Gonzales, 04-74313 (9th Cir. Sept. 18, 2007). As issue here was whether an alien's convic-tions for subscribing to a false statement on a tax return and for aiding and assisting in preparing a false tax return qualify as "aggravated felonies" under 8 USC Sec. 1101(a)(43)(M)(i)-(ii), and were thus removable offenses. The Immigration Judge held that the convictions of Mr. and Mrs. Kawashima were for aggravated felonies and thus that the Kawashimas were removable. The IJ then denied their motion to terminate the proceedings and ordered that they be removed to Japan. The USCA first held that tax offenses not covered by Subsection (M)(ii)'s specific reference to Sec. 7201 qualify as aggravated felonies under Subsection (M)(i) where the loss exceeds $10,000. Second, it held that the petitioners' conviction under Sec. 7206(1) constituted an aggravated felony as described in subsection (M)(i) because it involved "fraud or deceit" and because the offense resulted in a loss to the government in excess of $10,000. The USCA thus denied Mr. Kawashima's petition for review of the BIA's affirmance of the IJ's order. Third, the USCA held that it could not hold that Mrs. Kawashima committed an offense involving "fraud or deceit" resulting in loss to the government in excess of $10,000, as required by subsection (M)(i). The government failed to carry its burden. The USCA granted Mrs. Kawashima's petition for review of the BIA's affirmance of the IJ's order and vacated her order of removal. Finally, the USCA denied Mr. Kawashima's petition for review of the BIA's denial of the motion to reopen. O'Scannlain (author), Leavy, and Callahan, Circuit Judges. J. Wood of Los Angeles, CA, for the petitioners; N. Freedman of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 49) VIENNA CONVENTION RIGHTS: Cornejo v. County of San Diego, 05-56202 (9th Cir. Sept. 24, 2007). Cornejo sought damages and injunctive relief against the County of San Diego, several deputy sheriffs, and various cities within the County on behalf of foreign nationals arrested and detained without being advised of their rights to have a consular officer notified as required by Article 36 of the Vienna Convention on Consular Relations. The District Court dismissed the action, holding that Cornejo could not bring a 42 USC Sec. 1983 claim for violation of the Convention because it creates no private rights of action or corresponding remedies. The USCA agreed that Article 36 does not create judicially enforceable rights. Article 36 confers legal rights and obligations on States in order to facilitate and promote consular functions. Consular functions include protecting the interests of detained nationals, and for that purpose detainees have the right for the consular post to be notified of their situation. In this sense, detained foreign nationals benefits from Article 36's provisions. But the right to protect nationals belongs to States party to the Convention; no private right is unambiguously conferred on individual detainees such that they may pursue it through Sec. 1983. Alarcon, D.W. Nelson (dissenting), and Rymer (author), Circuit Judges. G. Lara of San Bernardino, CA, for the appellants; D. Shanahan of San Diego, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 50) SEARCH & SEIZURE: Redding v. Safford Unified School District #1, 05-15759 (9th Cir. Sept. 21, 2007). Redding, a minor, by her mother and legal guardian, appealed from the district court's order entering summary judgment in favor of defendants Wilson, Romero, Schwallier, and the Safford Unified School District, in this 42 USC Sec. 1983 action for monetary damages. Redding maintained that the defendants violated her Fourth Amendment rights by conducting a warrantless search of her person during school hours and on school premises. Finding that that the defendants did not violate Redding's Forth Amendment rights, the USCA affirmed. Dissenting, Judge Thomas thought the school's strip search of Redding violated the Fourth Amendment and to hold otherwise would be to conclude that her constitutional rights disappeared at the schoolyard gate. He would reversed the District Court. Hawkins, Thomas (dissenting), and Clifton (author), Circuit Judges. B. Macdonald of Tucson, AZ, for the appellant; M Wright of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)
52) RECUSAL: USA v. Holland, 06-30258 (9th Cir. Sept. 4, 2007). Holland appealed his conviction and sentence for mailing threat-ening communications and threatening the President of the United States. He maintained that the district court judge who imposed the sentence should have recused himself after Holland obtained the judge's home telephone number and left at least one threatening message prior to his sentencing. The USCA held that the district judge reasonably construed Holland's threatening phone message as an attempt to manipulate the court system which did not warrant his sua sponte recusal. The USCA affirmed. Thompson, Kleinfeld, and Bybee (author), Circuit Judges. P. Gordon of Boise, ID, for the appellant; A. Burrow of Boise, ID, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 53) JURY INSTRUCTIONS: USA v. Torres-Flores, 05-50898 (9th Cir. Sept. 4, 2007). The defendant drove up to the San Ysidro Port of Entry in an extended-cab pickup. He told the inspector that he had nothing to declare, but the inspector was suspicious and proceeded to investigate. When he opened the driver's side door, he saw a "big hump" in the carpet behind the back seat. That "hump" turned out to an alien who lacked authorization to enter the United States. Defendant was arrested and charged with bringing an unauthorized alien to the USA without presenting him for inspection at the port of entry. He was convicted and sentence to 30 months imprisonment. At issue on appeal was whether the district court erred in refusing to give a lesser-included-offense jury instruction, and whether the defendant was eligible for a sentencing enhancement pursuant to Guideline Sec. 2L1.1(b)(5) (2005) for transporting an alien in a manner creating a "substantial risk of death or serious bodily injury." The USCA held that the district court erred in applying the Guideline. As a rational jury could not have convicted the defendant of the lesser misdemeanor offense outlined in 8 USC Sec. 1324(a)(2)(A), without convicting him of the felony offense, the district court did not abuse its discretion in refusing to give a lesser-included instruction. But, as it held that the District Court erred in finding that the defendant was subject to an enhancement under Sec. 2L1(b)(5) (2005), the USCA vacated the sentence and remanded for re-sentencing. Dissenting in part, Judge Ikuta thought the majority's holding that the District Court abused its discretion in determining that the Sec. 2L1.1(b)(5) enhancement applied to the defendant's offense was based on evidence not in the record and conflicted with the Circuit's normal procedure for reviewing sentences. Reinhardt, Kozinski (author), and Ikuta (dissenting in part), Circuit Judges. M. Shaftel of San Diego, CA, for the appellant; AUSA R. Haines of San Diego, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 54) THEFT OF PUBLIC PROPERTY: USA v. Sargent, 06-30498
(9th Cir. Sept. 20, 2007). Sargent was indicted on one count of
theft of public property in violation of 18 USC Sec. 641 and seven
counts of theft of postal service property in violation of 18 USC
Sec. 1707. Following a bench trial, the district court entered a
judgment of conviction on all eight counts and sentenced Sargent
to a term of imprisonment of 30 months on six counts and 12 months
on two counts, all to run concurrently. The USCA reversed. The government
maintained that value includes actual loss to the victim. However,
the USCA said it did not need to decide that issue because the government
failed to present evidence showing that the theft of Postal Statements,
(containing information about bulk mailers such as the mailer's
name and address and an estimate of the postage due) caused the
USPS a particular dollar amount of actual loss, and the district
court did not make findings to that end. The government also asserted
that value included the amounts recorded on the Postage Statements
as those amounts reflect the "cost price" of the USPS
delivering the mail. While Sec. 641 requires that the USCA assess
the "cost price" of the stolen thing, according to the
indictment the "thing of value" was the Postal Statements,
not the USPS's service. The government "cost price" argument
thus failed. Because the government failed to show value in excess
of $1,000, a necessary element of the Sec. 641 crime charged, the
conviction on Count One had to be reversed. The District Court also
erred by holding that the government proved the Postage Statements
had "value" in excess of $1,000 within the meaning of
18 USC Sec. 1707 which makes it a crime to steal any property used
by the Postal Service. It also provides that if the value of the
property exceeds $1,000, the defendant shall be imprisoned for no
more than three years, but otherwise is eligible for a sentence
of no more than one year. Section 1707 does not define value, and
neither the government nor Sargent argued that this element of the
felony offense should be interpreted differently than how it is
interpreted in Sec. 641. The USCA thus reversed the conviction on
the remaining felony counts. Wallace (author), Noonan, and
Paez, Circuit Judges. AFPD M. Geddes of Anchorage, AK, for the appellant;
AUSA R. Randall of Anchorage, AK, for the appellee. (Download
the full text of this decision at www.ce9.uscourts.gov/)
56) CAPITAL PUNISHMENT: USA v. Mitchell, 03-99010 (9th Cir. Sept. 5, 2007). Mitchell, a Navajo, appealed his conviction and sentence for first degree murder, felony murder, carjacking resulting in death, and related federal crimes involving other Navajos on the Navajo Indian reservation in Arizona. A jury convicted Mitchell on all counts. Mitchell then faced capital punishment under the Federal Death Penalty Act because of his conviction for carjacking resulting in death. Following a penalty phase hearing, the jury unanimously recommended of a sentence of death as to each of the two victims who were murdered. The district court sentenced Mitchell to death on the carjacking count in accordance with the jury's verdict. The USCA held that no error requiring reversal occurred in connection with either conviction or sentence, and affirmed. Dissenting, Judge Reinhardt thought the majority erred both in affirming the conviction and upholding the death sentence. He noted that during the investigation of the crimes, federal agents convinced tribal authorities to arrest Mitchell, who was then held in tribal custody for 25 days without counsel or arrangement. Federal agents repeatedly interrogated Mitchell during this period of detention, and unlawfully secured from him a series of confession. These inculpatory statements, which were used in violation of Mitchell's federal rights were then used to convicted him at trial. Judge Reinhardt thought that another error occurred during jury selection and that the sentencing phase was rife with errors. Reinhardt (dissenting), Rymer (author), and Silverman, Circuit Judges. AFPD C. Rumann of Phoenix, AZ, for the appellant; AUSA D. Drake of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 57) CAPITAL PUNISHMENT: Fields v. Brown, 00-99005 (9th Cir. Sept. 10, 2007). Fields, a California state prisoner was sentence to death for a series of crimes, including murder. Both his convictions and sentence were upheld by the California courts. On the federal side, the District Court found no constitutional error in Fields' conviction, but granted him habeas corpus on his claim that the jury considered extrinsic evidence during the penalty phase. Rehearing cross-appeals from these rulings en banc, the USCA considered whether Fields was denied a fair trial on account of juror bias, on which the district court held an evidentiary hearing at the USCA's request, and whether his sentence should be set aside because of the jury foreperson's notes about the "pros" and "cons" of capital punishment which included Biblical references. The USCA held that the foreperson's presence on the jury did not undermine its impartiality. It thus affirmed the denial of the writ as to the convictions. As it saw no prejudicial constitutional error at the penalty phase, it reversed that part of the judgment. The effect was to deny Fields habeas relief, thereby leaving his convictions and sentence in place. Judge Gould, joined by McKeown and Wardlaw, dissented in part. He concurred to the extent the majority ejected the bias claims urged by Fields as grounds for habeas relief from his convicton. But he dissented from the majority's analysis of the challenged introduction by the jury foreman of written biblical quotations and notes "for" and "against" capital punishment. Judge Gould disagreed with the majority's decision not to decide if the foreman's appeal to the "higher law" of the Bible constituted jury misconduct. Judge Berzon, joined by Reinhardt and Thomas, dissented. She thought that Fields had been convicted and sentenced to death by a jury containing a juror whose personal circumstances, objectively speaking and assuming an entirely good faith effort on his part to disregard those circumstances, make it highly unlikely that he could be the "impartial and indifferent" decisionmaker that "due process alone has long demanded." See Morgan v. Illinois, 504 US 719, 727 (1992). Schroeder, Reinhardt, Kozinski, O'Scannlain, Rymer (author), Thomas, Silverman, McKeown, Wardlaw, Gould (dissenting in part), Berzon (dissenting), Tallman, Clifton, Callahan, and Bea, Circuit Judges. D. Olson of Sherman Oaks, CA, for the petitioner; AAG R. Anderson of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 58) CAPITAL PUNISHMENT: Stenson v. Lambert, 05-99011 (9th Cir. Sept. 24, 2007). Stenson was convicted and sentence to death in Washington State in 1994 for first-degree murders of his wife and his business partner. The trial was punctuated by disagree-ments between Stenson and his appointed counsel, Leatherman, who thought the trial phase was not winnable and thus thought he should focus on the penalty phase to spare Stenson from the death penalty. Stenson believed that Leatherman should focus on acquittal. At issue during the guilt phase was whether, during cross-examination of the business partner's wife, Leatherman should attempt to suggest that she, not Stenson, committed the murders. Stenson also thought that Leatherman should introduce "other suspect" evidence to implicate the partner's wife. Leatherman refused because the evidence suggesting that she had committed the murders was non-existent. The penalty-phase issue was whether Leatherman was ineffective for conceding Stenson's guilty after the jury had decided the issue in the issue in the guilt phase, in an effort to persuade the jury not to impose the death penalty. Because of these disagreements, Stenson moved for appointment of new counsel or, in the alternative, to represent himself, pursuant to Faretta v. California, 422 U.S. 806 (1975). The trial court denied the requests for substitution of counsel and found that his request to represent himself was untimely and equivocal. The Washington Supreme Court agreed that Stenson's Faretta request was equivocal, and did not reach the issue of timelines. Stenson also asked the trial court to appoint independent counsel to represent him at the hearing on his motion to appoint new counsel, raising an issue as to whether the hearing constituted a critical stage of the proceedings. The Washington Supreme Court found that while the hearing constituted a critical stage, independent counsel was not required because Leatherman's second-chair, David Neupert, adequately represented Stenson's interests. Stenson also challenged the trial court's refusal to allow testimony from his father and sister regarding the impact his execution would have on his three young children, claiming the exclusion violated Lockett v. Ohio, 438 US 586 (1978). As to Leatherman's concession of Stenson's guilt, the Washington Supreme Court ruled that the decision was tactical and not deficient under Strictland v. Washington, 466 US 668 (1984). It further held that even if the decision had been deficient, under Strickland's second prong Stenson could not show that he suffered prejudice as a result of Leatherman's conduct. As to the Lockett claim, the Washington Supreme Court reasoned that Stenson's right to present mitigating evidence had not been violated because the trial court allowed all character and background evidence, including evidence of Stenson's relationships with his friends and family. It excluded only direct statements of how Stenson's execution might impact his family members, as such evidence would amount to "nothing more than their opinions as to the sentence" Stenson should receive. The USCA found no basis to disagree with the Washington Supreme Court's rulings. It thus affirmed the judgment of the district court denying Stenson's habeas petition. Schroeder (author), Kleinfeld, and Bea, Circuit Judges. AFPD R. Bombiner of Seattle, WA, for the petitioner; AAG J. Samson of Olympia, WA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 59) HABEAS CORPUS: USA v. Braswell, 05-35009 (9th Cir. Sept. 4, 2007). At issue here was whether a habeas petitioner's argu-ment that his indictment was constitutionally defective was procedurally barred due to his failure to raise it on direct appeal. The USCA held that the claim was procedurally barred. O'Scannlain (author), Tashima, and Berzon, Circuit Judges. D. Mondou of Marana, AZ, for the appellant; AUSA R. Pomeroy of Anchorage, AK, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 60) HABEAS CORPUS: Poke v. Sandoval, 06-15735 (9th Cir. Sept. 11 2007). Polk, a Nevada state prisoner, appealed the denial of his 28 USC Sec. 2254 habeas petition, challenging his conviction for first-degree murder with a deadly weapon and discharge of a firearm from a motor vehicle. The USCA held that Polk's federal constitutional right to due process was violated because the instructions given at his trial permitted the jury to convict him of first-degree murder without a finding of the essential element of deliberation. As the error was not harmless, the USCA reversed and remanded to the District Court do grant the writ unless the State elects to retry Polk within a reasonable time. B. Fletcher (author), Clifton, and Ikuta, Circuit Judges. AFPD L. Teicher of Las Vegas, NV, for the petitioner; DAG R. Weiland of Reno, NV, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/) 61) HABEAS CORPUS: Brown v. Ornoski, 05-99008 (9th Cir. Sept. 19, 2007). Brown was convicted in California and sentenced to death for the rape and murder of a fifteen-year-old girl. The District Court denied his habeas petition, but granted a Certificate of Ap-pealability (COA) on his claims that he had received ineffective assistance of counsel in the sentencing phase of his trial. The USCA expanded the COA to include a claim involving penalty phase ineffective assistance of counsel, and a claim that lethal injection violates the Eighth Amendment. The USCA affirmed the District Court's denial of the writ. Hawkins (author), Thomas, and Bea, Circuit Judges. J. Norman of Los Angeles, CA, for the petitioner; DAG B. Carlton of San Diego, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 62) PAROLE VIOLATORS: Sherman v. U.S. Parole Commission, 05-35364 (9th Cir. Sept. 4, 2007). At issue here was whether an administrative warrant issued pursuant to 18 USC Sec. 4213(a) for the retaking of an alleged parole violator is subject to the oath or affirmation requirement of the Fourth Amendment's Warrant Clause. The USCA held that neither Sec. 4213 nor the Fourth Amendment requires an oath or affirmation for the issuance of a valid administrative warrant for the retaking of an alleged parole violator. As the petitioner alleged no other statutory or constitutional defect in the warrant on which he was retaken and held pending a preliminary hearing on revocation, the USCA concluded that his detention was not unlawful. The USCA thus affirmed the denial of the petitioner's habeas challenge to his detention on an unsworn parole violator warrant. Brunetti (author), T.G. Nelson, and Paez, Circuit Judges. AFPD C. Stebbins of Portland, OR, for the petitioners; AUSA K. Bauman of Portland, OR, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/) 63) PRISONERS' DISABILITIES: O'Guinn v. Lovelock Correctional Center, 06-15972 (9th Cir. Sept. 5, 2007). A Nevada state prisoner, O'Guinn, sued prison officials claiming they denied him accommodation and treatment for mental illness. The District Court dismissed the suit pursuant to the Prison Litigation Reform Act (PLRA), as amended, due to O'Guinn's failure to exhaust administrative remedies prior to filing suit. At issue on appeal was whether the PLRA requires prisoners to exhaust available administrative remedies before bringing claims under the Americans With Disabilities Act and the Rehabilitation Act. The USCA held that it does and thus affirmed the district court. Hall, O'Scannlain, and Ikuta (author), Circuit Judges. B. Johnson of Phoenix, AZ, for the appellant; DAG M. Potter of Carson City, NV, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)
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