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PUBLISHABLE OPINIONS 1) COPYRIGHTS: Sybersound Records v. UAV Corporation, 06-55221 (9th Cir. Feb. 27, 2008). Sybersound Records, a karaoke record producer, appealed the district court's judgment dismissing the first amended complaint it filed against its competitors, and their officers and employees. At issue was whether a party lacking standing to bring a copyright infringement suit under the Copyright Act, but who complains of competitive injury stemming from acts of alleged infringement, may bring a Lanham Act claim, RICO claim, or related state law unfair competition claims, whose successful prosecution would require the litigation of the underlying infringement claim. The USCA held that it cannot. The USCA also considered whether the transfer of an interest in a divisible copyright interest from a copyright co-owner to Sybersound, unaccompanied by a like transfer from the copyright co-owners, can be an assignment or exclusive license that gives the transferee a co-ownership interest in the copyright. The USCA held that it cannot. O'Scannlain and M.D. Smith (author), Circuit Judges, and Mosman, District Judge. P. Haviland of Los Angeles, CA, for the appellant; P. Sorrell of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 2) BANKING: BONY v. Fremont General, 05-56653 (9th
Cir. Feb. 1, 2008). This case arose from a commercial bank deposit
con-tract involving an account in which funds were held to secure
the payment of workers' compensation insurance claims. The Bank
of New York ("BONY") appealed the district court's entry
of partial summary judgment against it and ultimately judgment against
it following a bench trial. BONY brought suit against Fremont General
Corporation ("FGC"), the corporate parent of Fremont Indemnity
Company ("FIC") and Industrial Indemnity Company ("IIC")-two
California insurance companies that provide workers' compensation
policies to employers in several states, including California and
New York. BONY asserted claims for damages allegedly incurred as
a result of FGC's withdrawal of $14 million from custodial accounts
that FGC maintained at BONY. FGC's withdrawals violated New York
Insurance law and the "custodian agreement" that FIC signed
with BONY. According to BONY, FGC intentionally interfered with
the custodian agreement between FIC and BONY, and converted the
funds in the custodial accounts. The district court entered judgment
against BONY on Claim One for Interference with Contract and Claim
Two for Conversion. The USCA affirmed the judgment in favor of FGC
on the conversion claim, but reversed its grant of partial summary
judgment in FGC's favor on the intentional interference with contact
claim, and remanded to allow the district court to conduct such
proceedings as necessary to resolve the outstanding issues. The
district court found that BONY knew that the money it was transferring
to FIC's separate account was principal. Starting in May 2002, the
Government National Mortgage Association ("GNMA") began
making unscheduled principal reduction payments. Various documents
regarding the transfer of principal approved by various BONY account
supervisors indicate that BONY was aware that the GNMAs were generating
principal reduction payments. BONY nevertheless transferred those
funds to the J.P. Morgan Chase account. That factual finding established
that BONY consented to the transfer, despite knowing it required
written approval from the Superintendent. Under Farrington v.
A. Teichert & Sons, 139 P.2d 80 (Cal. Dist. Ct. App. 1943),
this consent foreclosed BONY's conversion claim, unless BONY could
show that the finding was clearly erroneous. BONY did not carry
that heavy burden. Kozinski, Kleinfeld, and Tallman (author),
Circuit Judges. R. Wallan of Los Angeles, CA, for BONY; M. Lieb
of Los Angeles, CA, for appellee FGC. (Download
the full text of this decision at www.ce9.uscourts.gov/)
4) ENVIRONMENTAL LAW: Pacific Merchant Shipping Association v. Goldstene, 07-16695 (9th Cir. Feb 27, 2008). On January 1, 2007, the California Air resources Board began enforcing state regulations, the "Marine Vessel Rules," limiting emissions from the auxiliary diesel engines of ocean-going vessels within 24 miles of California's coast. The Pacific Merchant Shipping Association, a group of companies that own or operate ocean-going vessels subject to the Marine Vessel Rules, filed suit to enjoin their enforcement, arguing that the Rules are preempted by the Clean Air Act and the Submerged Lands Act. The USCA affirmed the district court's ruling that Marine Vessel Rules are preempted by the Clean Air Act and it reinstated that court's injunction against enforcement of the Marine Vessel Rules. Because the Clean Air Act preempts here, the USCA, like the district court, found it unnecessary to decide whether the Submerged Lands Act also preempts the state rules at issue. Silverman (author), McKeown, and Tallman, Circuit Judges. DAG N. Stern of Sacramento, CA, for the defendant-appellant; B. Baird of Diamond Bar, CA, for the intervenors; E. Wise of Long Beach, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 5) ENVIRONMENTAL LAW: NRDC v. Winter, 08-55054 (9th Cir. Feb 29, 2008). The Secretary of the Navy, Department of the Navy, Secretary of the Department of Commerce, the National Marine Fisheries Service ("NMFS), and two Administrators of the Na-tional Oceanographic and Atmospheric Administration ("NOAA") appealed a district court order granting a motion for a preliminary injunction and imposing certain conditions on the completion of the remaining 8 of 14 large training exercises schedule to be conducted by the Navy's Third Fleet in the waters off southern California between February 2007 and January 2009 (the "SOCAL exercises"). The motion was filed by the Natural Resources Defense Council ("NRDC"), International Fund for Animal Welfare, Cetacean Society International, League for Coastal Protection, Ocean Futures Society, and Jean-Michel Cousteau (collectively "NRDC"), who were concerned that the Navy's use of high-intensity, mid frequency active sonar ("MFA sonar") in the exercises would cause serious harm to various species of marine mammals, and by extension to the plaintiffs themselves. In granting NRDC's motion for a preliminary injunction, the district court found that NRDC had shown probable success on the merits of its claim that the Navy violated the National Environmental Policy Act ("NEPA") by failing to prepare an Environmental Impact Statement ("EIS"). The district court also found that NRDC had shown probably success on the merits of its claim that the Navy violated the Coastal Zone Management Act ("CZMA") by submitting a consistency determination to the California Coastal Commission ("CCC") that did not take into account the planned use of MFA sonar and by failing to adopt the mitigating measures the CCC determined were necessary for the SOCAL exercise to the consistent with the California Coastal Management Program ("CCMP"). On January 15, 2008, the Council on Environmental Quality ("CEQ") approved "alternative arrangements," pursuant to 40 CFR Sec. 1506.11, that would permit the Navy to continue its exercise without first completing an EIS. On the same day, pursuant to 16 USC Sec. 146(c)(1)(B), President Bush exempted from the requirements of the CZMA the Navy's use of MFA sonar in the SOCAL exercises. On February 4, 2008, the district court, upheld its injunction on the basis of the plaintiffs' NEPA claim, concluding that the CEQ's action was invalid. It also expressed concerns about the constitutionality of the President's CZMA exemption on the ground that it appeared to amount to an executive revision of a judicial decision and thus violated the principle, recognized in Hayburn's Case, 2 U.S. (2 Dall.) 408 (1892), that Congress cannot vest review of the decisions of Article III courts in officials of the Executive Branch. However, the court declined to decide the constitutionality of the CZMA exemption because it concluded that the preliminary injunction was firmly supported on NEPA grounds. The district court also found that the plaintiffs had shown a possibly of irreparable harm and that the balance of hardships tipped in the plaintiffs' favor. The USCA upheld the district court's preliminary injunction. The district court concluded that the plaintiffs met the necessary burden of proof to show that preliminary injunctive relief was appropriate. It held that the plaintiffs demonstrated a strong likelihood of success on the merits, as well as the possibility of irreparable injury if relief were not granted. It also held that the plaintiffs established that the balance of hardships tipped in their favor in light of the preliminary injunction's narrowly-tailored mitigation measures which provide that the SOCAL exercises may proceed as planned if conducted under circumstances that provide satisfactory safeguards for the protection of the environment. Finally, it held that the public interest is advanced by a preliminary injunction that imposes adequate mitigation measures. In reaching these conclusions, the district court neither relied on erroneous legal premises nor abused its discretion. B. Fletcher (author), D.W. Nelson, and Reinhardt, Circuit Judges. AAG R. Tenpas of Washington, DC, for the appellants; J. Reynolds of Santa Monica, CA, for the appellee; J. Gaard of Sacramento, CA, for the intervenor. (Download the full text of this decision at www.ce9.uscourts.gov/) 6) NATIONAL PARKS / TORTS Terbush v. USA, 06-15033 (9th Cir. Feb 21, 2008). This case involved the intersection of the mandate of the National Park Service ("NPS") to open federal park lands for recreational use, the scope of the NPS's obligation to provide for visitor safety, and the risks of mountain climbing. In 1999, Terbush was killed by a rockslide in Yosemite National Park while climbing Glacier Point. His family filed claims under the Federal Tort Claims Act, claiming that it was not a freak accident and that the NPS is responsible for creating unsafe conditions and failing to warn of the hazards it created. The district court dismissed for lack of subject matter jurisdiction on the ground that the NPS's actions fell within the discretionary function exception to the FTCA. The USCA agreed with the district court's analysis with respect to the failure to warn claims and with respect to the design and construction of the wastewater facilities, but the recorded was insufficient to rule as a mater of law on the plaintiffs' maintenance claims. The USCA thus reversed and remanded on that issue. Fernandez and McKeown, Circuit Judges, and Trager, District Judge. J. Barr of Redding, CA, for the plaintiffs-appellants; AAG P. Keisler of Washington, DC, for the defendants-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 7) MARINE INSURANCE / ENVIRONMENTAL LAW: Certain Underwriters at Lloyds v. Inlet Fisheries Inc. v. Totem Agencies Inc., 06-35383 (9th Cir. Feb 11, 2008). At issue here was whether the doctrine of uberrimae fidei applies to vessel pollution insurance policies covering statutory environmental liabilities. The USCA held that it did and affirmed the district court's grant of summary judgment in favor of the Lloyds' underwriters and that Lloyds was entitled to void the policy. McKeown (author) and Clifton, Circuit Judges, and Schwarzer, District Judge. J. Treptow of Anchorage, AK, for the appellant; C. Nicoll of Seattle, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 8) PUNITIVE DAMAGES / POST-JUDGMENT INTEREST: Planned Parenthood of the Columbia v. American Coalition of Life Activists, 06-35733 (9th Cir. Feb 11, 2008). At issue here was a matter of some importance under Fed. R. App. Proc. 37(b) relat-ing to the award of post-judgment interest to Planned Parenthood on a punitive damages judgment it and co-plaintiffs obtained against the defendants. In an earlier appeal, the USCA reduced the punitive damages as excessive under the Supreme Court Due Process Clause jurisprudence and directed the district court on remand to enter a judgment for the damage amounts the USCA specified, assuming that the plaintiffs opted not to have a new trial. Because the USCA mandate did not contain instructions about the allowance of post-judgment interest as required by Rule 37(b), the USCA now had to decide whether the district court had the authority to award post-judgment interest from the date of its original judgment, as modified in its final judgment, or only from the date of that final judgment. The USCA held that its own failure to specify the accrual date for post-judgment interest in the mandate precluded the district court's order that interest would run from the date of the original judgment. However, the USCA concluded that the omission was inadvertent and thus recalled the earlier mandate and amended it to provide for post-judgment interest from the date of the original judgment. In so doing, the USCA cautioned that in the future, Rule 37(b)'s requirements as to the terms of its mandates should be noted an adhered to. Leavy, Fisher (author), and Berzon, Circuit Judges. M. Vullo of Seattle, WA, for the plaintiffs-appellees; C. Ferrara of Fairfield, NJ, for the defendants-appellants. (Download the full text of this decision at www.ce9.uscourts.gov/) 9) SOVEREIGN IMMUNITY: Del Campo v. Kennedy, 07-15048 (9th Cir. Feb. 6, 2008). American Corrective Counseling Ser-vices, a private corporation, contracted with the District Attorney for Santa Clara County, California, to run a bad check diversion pro-gram. Its conduct of that program generated this litigation. At issue on appeal was whether a private company contracting with a district attorney for services related to a diversion program is entitled to state sovereign immunity. The USCA held that it is not, as the law makes clear that state sovereign immunity does not extend to private entities. The district court thus correctly let the lawsuit proceed. Gibson, Tashima, and Berzon (author), Circuit Judges. C. Jenkins of San Francisco, CA, for the defendant-appellant; D. Gupta of Washington, DC, for the plaintiffs-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 10) MALICIOUS PROSECUTION: Estate of C. Delores Tucker v. Interscope Records, 05-56045 (9th Cir. Feb 8, 2008). In these consolidated malicious prosecution cases, William Tucker and the Estate of Cynthia Dolores Tucker (collectively "Tucker") appealed the district court's grant of summary judgment to all defendants in both cases. In the early 1990s, Cynthia Tucker, whose history as an activist dates back to the civil rights movement of the 1950s and 1960s, became concerned with the increasing popularity of music known as "gangsta rap," particularly its appeal to African-American youth. She enlisted the support of notable entertainers including Dionne Warwick and Melba More to engage in lobbying and media outreach, with the goal of limiting the sale of gangsta rap to young people. Her efforts brought her head-to-head with two of the genre's most successful production and distribution labels: Death Row Records. and Interscope Records. They filed separate federal court actions against Tucker, alleging intentional interference with their exclusive contractual relationship and other related claims. After Death Row and Interscope successfully moved for dismissal without prejudice, the Tuckers filed separate lawsuits against the two entities and their lawyers in federal district court, invoking diversity jurisdiction and charging them with malicious prosecution. William also sought damages for loss of consortium as a derivative claim. Applying California law, the district court granted summary judgment in both cases based on its conclusion that the Tuckers' evidence did not create a genuine issue of fact as to whether the defendants had acted with malice, a necessary element of a malicious prosecution claim. It also dismissed William's loss of consortium claim on the grounds that he failed to carry his burden of production and that without a viable claim for malicious prosecution, the derivative claim failed as a matter of law. The USCA held that, on the evidentiary record before the district court, it correctly concluded-except with regard to the claim for abuse of process included in the complaint filed by Death Row's attorney David Kenner-that the Tuckers did not present sufficient evidence to defeat the motions for summary judgment on the issue of malice. It affirmed the summary judgment in the consolidated case of Tucker v. Interscope, and affirmed in part and reversed in part the district court's grant of summary judgment in the consolidated Tucker v. Kenner. The USCA then remanded for trial the Tuckers' malicious prosecution claim again Kenner to the extent that it is predicated on the abuse of process claim that he included in Death Row v. Tucker, as to that one claim the Tuckers raised a genuine triable issue of fact. Judge Noonan dissented in part. He saw the legal question to be whether 1) Tucker presented sufficient evidence to create a triable issue of material fact as to whether Death Row and Kenner sued her with malice when they began and continued a suit against her charging her with racketeering involving extortion, mail and wire fraud, intentional interference with contract, and abuse of processed, and 2) there was sufficient evidence of malice to go to a jury as to whether Interscope, Ortner, and Paul, Hastings had acted with malice when they began and continued a suit against tucker in which we was charged with conspiracy, disrupting a contract, depriving Interscope of property and extortion. Judge Noonan thought that Tucker submitted sufficient evidence to defeat the summary judgments in favor of Death Row Records, Interscope, Kenner, Ortner and Paul, Hastings. In discussing Kenner's malice in charging Tucker with abuse of process, Judge Paez observed that a fact-finder could reasonably infer from Kenner's drafting of the complaint charging Tucker with abuse of process that he did not believe the claim was valid when filed, or that the claim was instituted for an improper purpose. Judge Noonan said he agreed with this reasoning, concurred in Judge Paez's conclusion as to the vitality of Tucker's claim for malicious prosecution in Kenner's charge of abuse of process and wondered why the same rule did not apply to the other claims advanced by the defendants where inferably they know they had no probable cause. Judge Noonan said he did not understand how the majority, years after the original litigation, is capable of determining the state of mind of the defendants here. That is a question of fact and as such it is for a jury to decide. In each of the underlying cases, an experienced civil rights fighter, acting to defend her community, was charged with extortion, with seeking to enrich herself, and with exploiting her own organization for profit. In addition, in the case brought by Kenner she was accused of committing major crimes nonexistent in fact and so vaguely alleged as to show on the face of the complaint that the lawyers had conjured them up or simply filled in a blank form. It is up to a jury to determine whether the lawsuits against Tucker were brought without probable cause and with knowledge of the absence of probable cause and therefore with malice. Noonan (dissenting in part), Paez (author), and Tallman, Circuit Judges. R. Angino of Harrisburg, Penn., for the appellants; S. Marenberg of Los Angeles, CA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 11) EMPLOYMENT DISCRIMINATION: Williams v. The Boeing Company, 06-35196 (9th Cir. Feb. 27, 2008). Nearly ten years ago, the plaintiffs filed a lawsuit against The Boeing Company claiming that they had been discriminated against in their employment on the basis of their race. The plaintiffs allege that between June 4, 1994 and May 28, 2000, Boeing paid African-American salaried employees less than similarly situated Caucasian employees. The USCA addressed two questions: First, whether the named plaintiffs had standing to challenge Boeing's allegedly discriminatory compensation practices for the period prior to May 28, 2000 in the district court and whether they continued to have standing on appeal. Second, whether the district court properly held that the pre-May 28, 2000, compensation discrimination claim was barred by the statute of limitations. The USCA held that the plaintiffs' allegations of injury in their Second Amended Complaint were sufficient to establish standing. The district court had jurisdiction to decide whether the pre-2000 compensation discrimination claim was barred by the statute of limitations. The USCA found that it had jurisdiction to review the district court's decision because the plaintiffs continue to have standing on appeal; they did not abandon their individual pre-2000 compensation discrimination claims. The USCA thus denied Boeing's motion to dismiss. On the merits, the district court properly determined that the plaintiffs' pre-2000 compensation discrimination claim was barred by the statute of limitations. The USCA also affirmed the district court's order granting partial summary judgment for Boeing on the plaintiff's pre-2000 compensation discrimination claim. Because that claim is barred by the statute of limitation, the USCA found that it did not need to decide whether the class was properly certified or decertified, and thus dismissed that portion of the plaintiff's appeal as moot. Beezer, Tashima, and Tallman (author), Circuit Judges. S. Berman of Seattle, WA, for the appellants; M. Reiss of Seattle, WA, for the appel-lee. (Download the full text of this decision at www.ce9.uscourts.gov/) 12) CLASS ACTIONS: In re Syncor ERISA Litigation, 06-55265 (9th Cir. Feb. 19, 2008). The USCA held that, when parties enter into a binding class action settlement agreement, which requires court approval pursuant to Fed. R. Civ. Proc. 23(e), and provide the required notice of the settlement to the district court prior to entry of the final judgment, the district court should hold a hearing and review the settlement agreement to determine if it is fair, reasonable, and adequate. Rule 23(e)(2). Failure to do so-even if the court has already drafted a summary judgment order-is an abuse of discretion. The USCA also held that genuine issue of material fact existed regarding whether the defendants breached their fiduciary duty under ERISA as set forth in 29 USC Sec. 1104(a), which precludes an award of summary judgment. Wardlaw, Bea, and N.R. Smith (author), Circuit Judges. T. D. Copley of Seattle, WA, for the appellants; D. Floyd of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 13) EDUCATION LAW: Flores v. Arizona, 07-15603 (9th Cir. Feb. 22, 2008). The district court ruled that Arizona was violating the Equal Educational Opportunity Act of 1974 because the state's funding for English language instruction for non-native speakers was "not reasonably calculated to effectively implement the … educational theory which" the state had approved. Eight years later, Arizona still had not satisfied the terms of that judgment, nor complied with the bulk of the injunctions entered against it as a result of the initial ruling. Although Arizona and the Arizona Board of Education acknowledge that the state remains out of compliance and did not seek to vacate the judgment or the injunctive orders, the Arizona Superintendent of Public Instruction, the Speaker of the Arizona House of Representatives, and the President of the Arizona Senate moved for relief from judgment. The USCA affirmed the district court's denial of relief. It found nothing in Arizona law to suggest that the English Language Learners ("ELL") programming is, in any sense, not part of a "free public education" in Arizona, and, indicating otherwise is the very existence of the Group B weighting program (which adds additional funding for various student groups, including ELL students), as well as HB 2010 (which increases the ELL Group B weight and the amount of money per student) and HB 2064 (to create the Arizona ELL task force to drive the standardization process within the state Department of Education. The district court did not abuse its discretion in holding that HB 2064 did not constitute compliance. The USCA agreed that HB 2064 did not support relief from judgment. Arizona neither appealed the original judgment nor complied with the Declaratory Judgment or with the bulk of the post-judgment relief orders. The USCA thus held that it is not inequitable to continue to require compliance. B. Fletcher, Berzon (author), and Rawlinson, Circuit Judges. D. Cantelme of Phoenix, AZ, for the intervenors; E. Bistrow of Phoenix, AZ, for the appellant; T. Hogan of Phoenix, AZ, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 14) CIVIL RIGHTS: Johnson v. Riverside Healthcare System, 06-55280 (9th Cir. Feb. 13, 2008). At issue here was whether a physician who asserts that he was discriminated against based on his race, sexual orientation, and perceived disability by doctors and nurses at the hospital where he worked could establish civil rights claims under federal and state law. On one occasion, a colleague, Dr. Vlasak, admonished him by using a racial slur after Johnson performed surgery on one of Vlasak's patients. As the facts were presented in Johnson's complaint, Vlasak failed to review the patient's CT scan and thus failed to realize that the patient was suffering from a skull fracture with an underlying brain contusion. Upon discovering this, Johnson admitted the patient for surgery and performed the necessary procedure. When Vlasak learned that Johnson had corrected (and therefore exposed) his oversight, he "charged" into the room was Johnson was standing, moved as if to strike him and "screamed … 'You fucking nigger-why did you do that to me?" This, the USCA noted, is unquestionably evidence of discrimination standing alone. The task was to determine whether this incident, combined with Johnson's other allegations, raised a triable issue of fact as to whether the discrimination Johnson faced at the hospital was so "severe or pervasive" as to alter the conditions of his employment and create an abusive work environment. However, the USCA found no indication that Johnson was subjected to racial discrimination on any other occasion than the one with Vlasak. To establish the severe or pervasive discrimination necessary for a hostile work environment claim, the USCA requires plaintiffs to allege that the offending conduct occurred with a greater frequency than Johnson experienced. O'Scannlain (author) and M.D. Smith, Circuit Judges, and Mosman, District Judges. D. Gronemeier of South Pasadena, CA, for the appellant; J. Payne of Irvine, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 15) IMMIGRATION: Tall v. Mukasey, 06-72804 (9th Cir. Feb. 27, 2008). Tall, a native and citizen of Senegal, petitioned for re-view of the BIA's summary affirmance of an IJ's decision finding him inadmissible for having been convicted of a crime of moral turpitude: California Penal Code Sec. 350(a), which punishes "any person who willfully manufactures, intentionally sells, or knowingly possesses for sale any counterfeit mark." Tall argued that Sec. 350(a) is not a crime involving moral turpitude. However, the USCA held that it is indeed a crime involving moral turpitude under the categorical approach, as it is an inherently fraudulent crime. The crime necessarily defrauds the owner of the mark, or an innocent purchaser of the counterfeit items, or both. The IJ thus correct ruled that Tall's convictions rendered him inadmissible pursuant to INA Sec. 212(a)(2)(A)(i)(I). Silverman (author), McKeown, and Tallman, Circuit Judges. J. Singletary of Costa Mesa, CA, for the petitioner; C. Fuller of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 16) IMMIGRATION: Plasencia-Ayala v. Mukasey, 06-73728
(9th Cir. Feb. 7, 2008). This case presented the issue of whether
failing to register as a sex offender in violation of Nev. Rev.
Stat. Sec. 179D.550 is a crime involving moral turpitude under 8
USC Sec. 1182(a)(2)(A)(i)(I). The USCA held that it is not and granted
the petition for review from the contrary BIA decision. The USCA
noted that where the statute of conviction is categorically broader
than the generic definition of a crime involving moral turpitude,
it employs the "modified categorical" approach of Navarro-Lopez
v. Gonzales, 503 F.3d, 1063, 1073. However, the "modified
categorical" approach only applies when the particular elements
in the statute of conviction are broader than the generic crime.
Id. When the statute of conviction is missing an element
of the generic crime altogether, the USCA said it cannot hold that
"a jury was actually required to find all the elements"
of the generic crime. Id. The crime of failing to register,
like the accessory crime at issue in Navarro-Lopez, lacks an element
of the generic crime: the requisite baseness or depravity. The USCA
thus concluded that there is no reason to apply the "modified
categorical" approach in this case. Farris, Beezer, and Thomas
(author), Circuit Judges. B. Westhoff of Chicago, IL, for
the petitioner; L. Murcia of Washington, DC, for the respondent.
(Download
the full text of this decision at www.ce9.uscourts.gov/)
18) IMMIGRATION: Kalilu v. Mukasey, 06-75425 (9th Cir. Feb. 14, 2008). Kalilu, a 27-year old native and citizen of Liberia, sought review of a BIA's decision that he filed a frivolous asylum application, and denying his claims for asylum and withholding of removal, his request for voluntary departure, and his motion to reopen. He maintained that the BIA's frivolousness determination could not be sustained because he was not afforded the required procedural safeguards, including notice and an opportunity respond. He further argued that the BIA abused its discretion in denying his motion to reopen so that he could have an opportunity to pursue adjustment of status on the basis of his marriage to a U.S. citizen. The USCA granted the petition for review and remanded for the BIA to reconsider its frivolousness determination in light of In re Y-L_, 24 I&N Dec. 151, 155 (BIA 2007), and for a renewed exercise of the agency's discretion with respect to the petitioner's motion to reopen. D.W. Nelson, Reinhardt, and Bea, Circuit Judges. Per Curiam. Chea of Duluth, GA, for the petitioner; P. Keisler of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 19) IMMIGRATION: Rendon v. Mukasey, 05-77064 (9th Cir. Feb. 15, 2008). At issue here was whether a state felony conviction for possession with intent to sell a controlled substance contains a trafficking element. The USCA held that it does and that it thus it qualifies as an aggravated felony under the immigration laws. Lopez v. Gonzales, 127 S.Ct. 625, (2006). The USCA thus held that pos-session of a controlled substance with the intent to sell contains a trafficking element and is an aggravated felony. Because the state conviction is an aggravated felony, Rendon is ineligible for cancellation of removal. An aggravated felony is considered to be a particularly serious crime that makes him ineligible for asylum as well. An aggravated felony containing a drug trafficking element is also presumed to be a particularly serious crime which would make Rendon ineligible for withholding to removal. Rendon presented no evidence to overcome this presumption. Schroeder, Hall, and Bybee (author), Circuit Judges. E. Ridley of San Francisco, CA, for the petitioner; S. Flynn of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 20) SEARCH & SEIZURE: USA v. Turvin, 06-30551 (9th Cir. Feb. 26, 2008). The government appealed a district court order sup-pressing evidence obtained from the search of Turvin's vehicle. While Turvin was waiting for a police officer to issue a traffic citation, the officer questioned him about methamphetamine and obtained Turvin's consent to search his vehicle for contraband. The district court held that the officer's questions and request to conduct a search, unsupported by reasonable suspicion, turned an initially reasonable detention into an unconstitutional one and rendered Turvin's consent involuntary. The USCA reversed. The conclusion of USA v. Mendez, 476 F.3d 1077 (9th Cir. 2007), that officers do not need reasonable suspicion to ask questions unrelated to the purpose of an initially lawful stop applied here because the officer's questions and request for consent to search did not unreasonably prolong the duration of the stop. The USCA did not reach the issue of whether reasonable suspicion supported the officer's questioning. As the stop was at all times a lawful detention, Turvin's voluntary consent rendered the search legal. The evidence obtained as a result of the search was admissible and the district court's order to suppress it had to be reversed. Dissenting, Judge Paez did not believe that reasonable suspicion supported the officer's decision to prolong the traffic stop. He would uphold the order granting Turvin's motion to suppress. Wallace (author), Noonan, and Paez (dissenting), Circuit Judges. AUSA D. Nesbett of Anchorage, AK, for the appellant; AFD M. Geddes of Anchorage, AK, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 21) SEARCH & SEIZURE: USA v. Murphy, 06-30582 (9th Cir. Feb. 20, 2008). Murphy appealed the district court's denial of his motion to suppress evidence seized as a result of two searches. The USCA concluded that one search was lawful and the other not. The first search, a protective sweep of storage units following Murphy's arrest, was justified by the officer's legitimate concern about the potential presence of confederates. The USCA concluded that the district court's ruling as to this search was correct. The second search occurred two hours later, after Murphy, who was residing in the units temporarily, refused to consent but the police officers subsequently obtained consent from the individual who rented the storage units. In light of Georgia v. Randolph, 547 US 103 (2006), the USCA reversed the district court's denial of the suppression motion as to this search. Goodwin, Reinhardt (author), and M.D. Smith, Circuit Judges. V. Waliser of Medford, OR, for the defendant-appellant; J. Harper of Medford, OR, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 22) EVIDENCE / SENTENCING: USA v. Jennings, 06-30190 (9th Cir. Feb. 4, 2008). Jennings challenged the district court's denial of his motions to suppress evidence and the district court's determination that he was subject to a 15-year mandatory minimum sentence under 18 USC Sec. 924(e), the Armed Career Criminal Act ("ACCA"). Jennings entered a conditional guilty plea to charges of being a felon in possession of a firearm, in violation of 18 USC Sec. 922(g)(1), and possession of a firearm with an obliterated serial number, in violation of 18 USC Sec. 922(k). He was sentenced to a 15-year term of imprisonment for the felon-in-possession charge, and a five-year concurrent sentence for the second charge. The USCA affirmed Jennings' conviction, but vacated his sentence. It concluded that Jennings did not suffer a violation of his Fourth or Fifth Amendment rights; thus, the challenged evidence was properly held to be admissible. The USCA further held, however, that Jennings did not qualify for a 15-year mandatory minimum sentence under the ACCA because he has suffered three prior convictions for "violent felonies" within the meaning of 18 USCA Sec. 924(e)(2)(B). O'Scannlain (dissenting), Tashima (author), and Berzon, Circuit Judges. M. Martin of Seattle, WA, for the defendant-appellant; AUSA C. Colasurdo of Seattle, WA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 23) EVIDENCE / SENTENCING: USA v. Rosales, 05-30260
(9th Cir. Feb. 13, 2008). This appeal and cross-appeal arose from
Rosales' conviction on one count of conspiring to distribute 500
grams or more of cocaine (Count 1), and two counts of possessing
cocaine with the intent to distribute (Counts 5 and 6). In the same
trial, the jury found that co-conspirator Brooks was guilty of many
drug offenses, on three of which his lawyer conceded liability.
Rosales appealed his conviction on Counts 1 and 5 only. On Count
1, he conceded that there was sufficient evidence to find that he
was involved in a conspiracy to distribute cocaine. But he argued
that there was insufficient evidence that he could have reasonably
foreseen that the quantity of cocaine involved in the conspiracy
would be 500 grams or more. On Count 5, he argued there was insufficient
evidence that he possessed cocaine on April 10, 2003, but on Count
6, he concedes that there was sufficient evidence that he possessed
cocaine with intent to distribute on April 26 and 27, 2003. The
government challenged the district court's decision not to impose
a sentencing enhancement under 21 USC Sec. 841(b)(1)(B). The USCA
held that there was sufficient evidence to affirm the convictions
on Counts 1 and 5 and that the district court erred in failing to
impose an enhancement under Sec. 841(b)(1)(B). Kozinski and, Fisher,
Circuit Judges, and Guilford (author), District Judge. A.
Bentley 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/)
25) SENTENCING: USA v. Barsumyan, 07-50251
(9th Cir. Feb. 28, 2008). Barsumyan appealed the sentence imposed
by the dis-trict court following his guilty plea to one count of
possession of device-making equipment under 18 USC Sec. 1029(a)(4).
He had been arrested and tried for his involvement in schemes to
manufacture counterfeit credit cards. He argued that his 21-month
prison sentence was unreasonable because the operation of Sentencing
Guideline Sec. 2B1.1(b)(10) effected a 6-level increase in his offense
level. He also argued that the sentencing court impermissibly imposed
two conditions of supervised release: a restriction on accessing
or possessing any computer or computer-related devices in any manner,
and a requirement that, if he is deported and reenters the country,
he report to the U.S. Probation Office. The USCA held that the district
court did not abuse its discretion in imposing a 21-month sentence
and that the district court plainly erred in imposing a restriction
on all computer use as a condition of supervised release, but did
not plainly err in requiring the defendant to report to the Probation
Office upon reentering the United States. The USCA thus affirmed
the sentence and reporting conditions, but reversed and vacated
the computer restrictions and remanded for reconsideration of that
condition. Farris and M.D. Smith (author), Circuit Judges,
and Holland, District Judge. DFPD D. Chen of Los Angeles, CA, for
the appellant; AUSA A. Bustamante of Los Angeles, CA, for the appellee.
(Download
the full text of this decision at www.ce9.uscourts.gov/)
27) HABEAS CORPUS: Larson v. Palmateer, 04-35465 (9th Cir. Feb. 13, 2008). Larson appealed the district court's denial of his 28 USC Sec. 2254 habeas petition. He claims that his Fifth Amendment due process rights were violated when the trial court required him to wear a security leg brace during two of his six days of trial before a jury, denied his motion to exclude witnesses from the courtroom, allowed the admission of evidence relating to his past criminal history, and exhibited bias. He also claimed that his Sixth Amendment right to counsel was violated when the trial court refused to appoint him substitute counsel. The USCA affirmed. It agreed that Larson's due process rights were violated when the trial court failed to make a finding on the record justifying the necessity of physical restraints, and that the absence of such a finding could not be cured by the reviewing court's after-the-fact justifications. However, Larson was compelled to wear the leg brace for only two of his six days of trial. The record contained no indication, nor did Larson suggest, that it prevented him from moving about the courtroom as he presented his case pro se. Although the trial court's characterization of the brace as "a kind of leg iron" might have been better phrased, undoubtedly the brace was not as visually obtrusive or prejudicial a restraining device as handcuffs, leg irons, waist chains or gags. Moreover, that Larson was allowed to move about the courtroom unencumbered for four of his six day trial mitigated the prejudicial impact of the trial court's decision to use the leg brace. The jury would likely have interpreted the judge's decision to remove the leg brace-and Larson's subsequent good behavior-as evidence that he was not a dangerous individual in need of constant restraint, particularly when he was actively in front of the judge and jury while acting as his own lawyer. Although it was troubled by the trial court's imposition of a visible security restraint without making a finding of necessity on the record, the USCA held that Larson had not shown that wearing the brace for the first two days of his six-day trial had a "substantial and injurious effect or influence in determining the jury's verdict." Larson also argued that the trial court violated his right to due process when it denied his motion to exclude the state's witnesses during trial. The purpose of witness exclusion is "to prevent witnesses from 'tailoring' their testimony to that of earlier witnesses and to aid in detecting testimony that is less than candid." USA v. Ell, 718 F.2d 291, 293 (9th Cir. 1983). Larson moved to have the state's witnesses excluded from the trial after the prosecutor had begun to present the state's case-in-chief; the trial court denied the motion as untimely. On direct appeal, the Oregon Supreme Court held that the trial judge had ruled improperly as a matter of state law, but determined that Larson had not shown prejudice. The USCA found the correctness of the trial court's evidentiary ruling as a matter of state law to be irrelevant to its review, because a federal court may entertain an application for a writ of habeas corpus "only on the ground that [the petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 USC Sec. 2254(a). Thus the only issue before the USCA was whether the trial court's failure to exclude the state's witnesses from the courtroom "rendered the trial so fundamentally unfair as to violate due process." Windham v. Merkle, 163 F.3d 1092 (9th Cir. 1998). Neither the Ninth Circuit nor the Supreme Court has ever held that the failure to exclude witnesses can violate due process. Under common law, the decision to exclude witnesses was left to the discretion of the trial court. Moreover, as the Oregon Supreme Court held, the record here does not suggest that the state's witnesses tailored their testimony to corroborate the testimony of other witnesses. In addition, the vast majority of the state's 42 witnesses testified about discrete events that presented little risk of tailoring. Larson's witness exclusion claim thus failed. The USCA affirmed the district court. Fisher (author) and Berzon, Circuit Judges, and Barzilay, U.S. Court of Intl. Trade Judge. AFPD N. Brown of Portland, OR, for the petitioner; AAG K. McDonald of Salem, OR, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 28) HABEAS CORPUS: Harris v. Carter, 06-35313 (9th Cir. Feb. 8, 2008). Harris appealed the district court's order dismissing his 28 USC Sec. 2254 habeas petition as time-barred. The district court had held that he was not entitled to equitable tolling. Harris main-tained that he was entitled to equitable tolling because he relies on a Ninth Circuit precedent. However, the USCA noted that the precedent has been overruled by the Supreme Court in a decision that holds that untimely state habeas petitions do not toll the federal statute of limitations for filing a federal petition. Harris' federal habeas petition, which would have been timely under earlier Circuit existing precedent, became time-barred under Pace v. DiGuglielmo, 544 U.S. 408 (2005). Because the USCA held that Harris is entitled to equitable tolling, it reversed the judgment of the district court dismissing his petition as untimely and remanded to permit the district court to consider the merits of his petition. Beezer (author), Tashima, and Tallman, Circuit Judges. D. Zuckerman of Seattle, WA, for the petitioner; AAG G. Rosen of Olympia, WA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 29) HABEAS CORPUS: Anderson v. Terhune, 04-17237 (9th Cir. Feb. 15, 2008). The USCA granted a rehearing en banc in this appeal from the district court's denial of Anderson's habeas petition. Anderson challenged his convicton of special circumstances murder on the grounds that he was denied his constitutional right to remain silent and that admission of his involuntary confession into evidence violated his right to due process. Specifically, Anderson claims that the invoked his Fifth Amendment right to terminate his police interrogation and that the police officers' continued questioning violated that right. The USCA found that the police here continued the conversation with Anderson up to the point he said, "I'd like to have an attorney present." At that point did they stop the interrogation and turn off the recorder. But it was then too late. Judge Silverman, joined by Judge Rawlinson, concurred. He wrote separately as he thought in its treatment of the California Court of Appeal's ruling that Anderson's statements to the police were "ambiguous in context," the majority failed to observe the distinction between an "unreasonable" application of law and an "incorrect" application of law. Woodford v. Visciotti, 537 US 19, 25 (2002). Judge Silverman concurred in the result because the California Court of Appeal rendered an unreasonable determination of the facts when it ruled that the officer's feigned ignorance of the Fifth Amendment was a "legitimate clarifying question." Judge Bea concurred in the majority's holding that Anderson unambiguously invoked his privilege against self-incrimination under the Fifth Amendment. He noted that Anderson repeatedly invoked his right to remain silent -"I don't even want to talk about this no more"; "I'm through with this" and "I plead the fifth" - yet the police did not honor his right to remain silent until he finally requested an attorney. Only at that point did they do what they should have done earlier-cease the interrogation. Given that Anderson requested that the interrogation cease three times in rapid succession, no reasonable officer could have understood anything other than that Anderson wanted the interrogation to stop. However, Judge Bea parted company with the majority where it said "We cannot simply suppress the portion of the interrogation that occurred after the invocation of the right to silence and before Anderson's purported reinitiation of the interrogation." Judge Bea said the record shows that the police did stop the interrogation after Anderson requested an attorney, and before Anderson himself re-initiated the conversation. All this occurred before Anderson confessed to the murder. Thus, he thinks it was not error at all to admit his confession at trial, and that the California Court of Appeal's denial of Anderson's habeas petition was not contrary to, nor an unreasonable application of, clearly established federal law. Judge Tallman, joined by Judge Callahan, dissented. He thought the majority fixated on the words "plead the Fifth" lifted in isolation from a portion of the transcribed interview without giving the required level of deference to the trial court's findings of fact after an evidentiary hearing, which included the entire tape recording and the testimony of the interrogators. No one disputes that Anderson, a known felon on parole, admitted to killing his acquaintance and friend, Robert Clark: Anderson admitted, "I shot [Clark]." Nor does anyone dispute that Anderson answered questions for nearly two and one-half hours before making the statement, "I plead the Fifth." Judge Tallman noted that the California courts examined Anderson's statement in the full context of his confession. Following an evidentiary hearing, the Shasta County Superior Court judge made a factual finding that "while the defendant articulated words that could, in the isolation, be viewed as an invocation of his right to remain silent, the defendant did not intend to terminate the interview." In affirming the trial court's decision to deny Anderson's motion to suppress his later confession because it was knowing and voluntary, the California Court of Appeal neither unreasonable applied clearly established Supreme Court precedent, nor made an unreasonable determination of facts. The state courts' conclusion that Anderson's comments were ambiguous in context was not an unreasonable application of clearly established Supreme Court precedent. Nor was their conclusion that the detective's follow-up question, "Plead the Fifth. What's that?," was a permissible clarification question an unreasonable determination of fact. Schroeder, Reinhardt, Thomas, Silverman (concurring), McKeown (author), Wardlaw, W. Fletcher, Gould, Paez, Tallman (dissenting), Rawlinson, Clifton, Callahan, Bea (dissenting in part), and Ikuta, Circuit Judges. C. Bonneau of Sacramento, CA, for the petitioner; DAG R. Newcomb of Sacramento, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 30) HABEAS CORPUS: Cook v. Schriro, 06-99005 (9th Cir. Feb. 20, 2008). Cook appealed the denial of his 28 USC Sec. 2254 habeas petition. He had waived counsel and represented himself at trial and through sentencing. The jury convicted him of two counts of first-degree murder and the court sentenced him to death under Arizona Revised Statutes Sec. 13-503 and 13-703. On appeal, he claimed (1) that his decision to waive counsel was involuntary because his original appointed trial counsel was ineffective; (2) that his co-defendant plea agreement violated Cook's right to a fair trial; and, (3), that the prosecutor improperly commented on Cook's failure to testify and his post-Miranda silence. Cook also maintained that the trial court erred by failing to instruct the jury on second-degree murder. He further argued that the ineffectiveness of his appellate counsel excused his procedural default of some of his remaining claims. Finally, he argued that the sentencing court failed to consider evidence of intoxication and his prior mental health history as mitigating factors before imposing the death penalty. The USCA affirmed the district court's denial of Cook's habeas petition. Cook had not shown cause to excuse his procedural default. Nor had he established that the default resulted in any fundamental miscarriage of justice. The district court thus properly found that Cook's claims of a biased trial judge was procedurally defaulted. There also was no evidence to warrant a second-degree murder instruction. The trial court thus properly refused to give a lesser included offense instruction. The sentencing court properly considered Cook's intoxication and mental history and held that they did not outweigh the aggravating factors in this case. Finally, the district court properly found that Cook's remaining claims were procedurally defaulted. O'Scannlain, Graber, and Callahan (author), Circuit Judges. M. Meehan of Tucson, AZ, for the petitioner; K. Cattani of Phoenix, AZ, for the respondent-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 31) PRISONERS' RIGHTS: Arrington v. Daniels, 06-35855 (9th Cir. Feb. 20, 2008). This case is but the most recent in a series of challenges to the Bureau of Prisons' ("BOP") implementing regulations governing early release of prisoners who successfully complete a residential substance abuse program. The relevant statute provides that the BOP may reduce by up to one year the prison term of an inmate convicted of a nonviolent felony if the prisoner successfully completes such a program. 18 USC Sec. 3621(e)(2)(B). The BOP's implementing regulation categorically excludes from eligibility for early release a prisoner whose current offense is a felony involving the carrying, possession, or use of a firearm or other dangerous weapon or explosive. 28 CFR Sec. 550.58(a)(1)(vi)(B)(2000). The issue presented here is whether the BOP violated Sec. 706(2)(A) of the Administrative Procedure Act ("APA") when it promulgated this regulation. The USCA held that it did. For 12 years, the BOP has sought to exclude those convicted of offenses involving the carrying, possession, or use of a firearm or other dangerous weapon or explosives form eligibility for early release under Sec. 3621(e). In that time, the BOP has failed to adopt a valid regulation to support its exclusion policy. Its first attempt was struck down because the BOP adopted an impermissible definition of "crime of violence." Its second attempt was struck down on notice and comment grounds. Its final rule, like its predecessors, also fell short of meeting the governing legal standards. The BOP thus failed to set forth a valid rationale for its categorical exclusion rule. APA Sec. 706 requires that it do so. The USCA reversed the judgment of the district court in the consolidated cases and directed it to grant the habeas petitions. Reinhardt (author), Hall, and M.D. Smith, Circuit Judges. DFPD S. Sady of Portland, OR, for the petitioners; K. Zusman of Portland, OR, 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 1) BANKRUPTCY: In re Cool Fuel, Inc., 06-56017 (9th Cir. Feb. 19, 2007) (unpublished). Trott, Clifton, and Callahan, Circuit Judges. Cool Fuel, a reorganized debtor, appealed from the bankruptcy court's judgment on remand in favor of the Board of Equalization of the State of California (the "Board"), and also from the bankruptcy court's denial of its motion for relief pursuant to Fed. R. Civ. Proc. 60(b). The USCA affirmed. Cool Fuel argued that the bankruptcy court improperly entered judgment on remand from the Ninth Circuit because the district court's prior sanctions order was not, and could not have been, before the Ninth Circuit in the Board's appeal. The USCA reviewed the scope of the prior mandate de novo. Although matters that were adjudicated on the first appeal were not open to re-examination, Coleman Co. v. Holly Mfg. Co., 269 F.2d 660, 664 (9th Cir. 1959, "an order issued after remand may deviate from the mandate … if it is not counter to the spirit of the circuit court's decision." Lindy Pen Co. v. Bic Pen Corp., 982 F.2d 1400, 1404 (9th Cir. 1993). Cool Fuel's objections to the entry of judgment were not well taken. The USCA's disposition of the Board's appeal specifically instructed the bankruptcy court "to enter judgment in favor of the Board." Moreover, the USCA found it significant that: (1) the sanctions order was entered before the summary judgment order; (2) it was provisional and did not finally adjudicate any facts: (3) it was fully briefed in the Board's appeal; (4) Cool Fuel represented to the USCA in the Board's appeal that there were no material facts in dispute; and (5) the most reasonable reading of the USCA's prior disposition is that it considered the discovery issues. The USCA thus held that the district court properly entered judgment in favor of the Board. Cool Fuel maintained that the bankruptcy court did not consider the Rule 60(b) motions on their merits and that the motions were compelling. However, upon review of the record, the USCA noted that the bankruptcy court considered Cool Fuel's Rule 60(b) motions on their merits, but found them not persuasive. The bankruptcy court's denial of Cool Fuel's Rule 60(b) motions was well reasoned. It reasonable denied relief under Rule 60(b)(2) because Cool Fuel knew of the discovery issues before the entry of judgment and the issues were not likely to change the disposition of the case. The bankruptcy court reasonably denied relief under Rule 60(b)(3) because there was no evidence of "fraud, misrepresentation, or other misconduct," and the alleged conduct did not prevent Cool Fuel from fully and fairly presenting its case. The bankruptcy court properly denied relief under Rule 60(b)(6) because Cool Fuel failed to demonstrate both injury and circumstances beyond its control that prevented it from proceeding in a proper fashion. The USCA thus upheld the bankruptcy court's entry of judgment in favor of he Board and its denial of Cool Fuel's Rule 60(b) motions. (Download the full text of this decision at www.ce9.uscourts.gov/) 2) BANKRUPTCY: In re Zamos, 06-55595 (9th Cir. Feb. 12, 2008) (unpublished). Pregerson, Archer, and Wardlaw, Circuit Judges. Zamos appealed the BAP's determination that spousal support payments he owed to his ex-wife are non-dischargeable debts under 11 USC Sec. 523(a)(5)(b). The USCA affirmed, noting that it looks to the parties' intent at the time of a separation agreement to determine whether a payment is actually in the nature of alimony, maintenance, or support. In re Sternberg, 85 F.3d 1400, 1405 (9th Cir. 1996), rev'd on other grounds, In re Bammer, 131 F.3d 788 (9th Cir. 1997) (en banc). Because, as the bankruptcy court found, the Zamos' martial settlement agreement in 1982 clearly intended that Zamos would pay spousal support to his ex-wife, that debt is non-dischargeable. The USCA rejected Zamos' attempt to link the spousal support payments with the equalization payments. Zamos' contention that the California Superior Court had no jurisdiction to issue its judgment in his ex-wife's favor in 2000 also lacked merit. See In re Siragusa, 27 F.3d 406, 407-08 (9th Cir. 1994) (holding that the state court has jurisdiction to modify alimony awards, even after discharge in bankruptcy). Zamos waived his contention that his due process rights were violated by his ex-wife's delay in bringing suit to collect delinquent support payments, as he did not raise it below. Even were it to reach the issue, the USCA said it would hold that Zamos' contention was without merit, as the due process clauses of the Fifth and Fourteenth Amendment apply only to the conduct of federal and state actors. ((Download the full text of this decision at www.ce9.uscourts.gov/) 3) TAXATION: Hightower v. CIR, 06-73838 (9th Cir. Feb. 12, 2008) (unpublished). Fisher, Gould, and Ikuta, Circuit Judges. The stock payment Hightower received for his share of an asset called "Green Hills" was taxable income in 2000 as it was received without restriction as to its disposition and Hightower had no fixed legal obligation to restore the funds to any other party. N. Am. Oil Consol. v. Burnet, 286 US 417, 424 (1932). The possibility that the stock transaction could have later been unwound by a California court did not alter the analysis. Healy v. CIR, 345 US 278, 284 (1953). Also irrelevant was Hightower's claims that the transaction may have left Green Hills with a negative new worth in violation of state law. Wentworth v. CIR, 510 F.2d 883, 886 (6th Cir. 1975) ("The liability of closely held corporations and their shareholders for federal taxes should have been made to depend upon their compliance with state law.") Hightower's unilateral intent not to claim and exercise dominion over the funds also did not affect his tax liability. CIR v. Alamitos Land Co., 112 F.2d 648, 651 (9th Cir. 1940). As the stock payment was taxable income to Hightower in 2000, the interest which accrued on the principal was also taxable income in the year the interest was received. Hightower was obliged to report the pass-through distributive share of Green Hills' income. Treas. Reg. Sec. 1.1361-1(e); Pahl v. CIR, 150 F.3d 1124, 1129 (9th Cir. 1998). Even though Hightower's role in Green Hills management may have been restricted, he retained beneficial ownership of his shares through the October 13, 2000 sale date. Contrary to Hightower's assertions, the arbitration award did not have the effect of divesting him of beneficial ownership of his Green Hills shares in 1998. Rather, it merely gave O'Dowd the financial benefit of the bargain retroactively once the sale took place in 2000. (Download the full text of this decision at www.ce9.uscourts.gov/) 4) INTERNET LAW / SPAM / JURISDICTION: Silverstein v. Experienced
Internet.Com, 05-16882 (9th Cir. Feb. 14, 2008) (unpublished).
Wallace, Hug, and Schroeder, Circuit Judges. 5) IMMIGRATION: Mussa v. Mukasey, 05-70751 (9th Cir.
Feb. 21, 2008) (unpublished). Schroeder, Silverman, and Bybee,
Circuit Judges. 6) IMMIGRATION: Hajji v. Mukasey, 04-73500 (9th Cir. Feb. 25, 2008) (unpublished). Schroeder and Bybee, Circuit Judges, and Wu, District Judge. Hajji, a Moroccan native and citizen, petitioned for review from the denial of his applications for asylum and with-holding of removal. A BIA decision that an alien has not established eligibility for asylum must be upheld if "supported by reasonable, substantial, and probative evidence on the record considered as a whole." Gu v. Gonzales, 454 F.3d 1014, 1018 (9th Cir. 2006). In ad-dition, the USCA must uphold the BIA's denial unless the petitioner shows that the evidence he presented "was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." INS v. Elias-Zacarias, 502 US 478, 483-84 (1992). To prevail on an asylum claim, an applicant must show either past persecution or a well-founded fear of persecution on account of "race, religion, nationality, membership in a particular social group, or political opinion." Gu, 454 F.3d at 1019. As Hajji did not claim that he has suffered past persecution, to prevail, he had to establish both a subjectively genuine, and objectively reasonable, well-founded fear of persecution. Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir. 2003). Absent past persecution, the objective component can only be satisfied by "adducing credible, direct, and specific evidence in the record of facts that would support a reasonable fear of persecution." Ladha v. INS, 215 F.3d 889, 897 (9th Cir. 2000). Hajji has not presented sufficient evidence that the Moroccan police were interested in him based on a protective ground to compel the conclusion that "no reasonable factfinder could fail to find the requisite fear of persecution." Although he testified that police came to his house looking for him and indicated that it was important for him to come to the police station, that alone did not compel a well-founded fear of persecution finding. Gu, 454 F.3d at 1022. Although the petitioner may have more than a "10 percent chance" that he will be contacted again by Moroccan police, he has not shown that he will be persecuted by the police based on one of the protected grounds. Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir. 2000). There was no evidence that the police knew Hajji had participated in the Casablanca demonstration, much less that they came to his house to arrest or otherwise mistreat him based upon his participation in the demonstration four months earlier. Nor was there evidence that they were arresting or persecution others who participated in the demonstrations along with Hajji. The Immigration Judge and the BIA were not compelled to find that Hajji had a well-founded fear of persecution based on this evidence. The USCA thus concluded that Hajji could not satisfy the standard for withholding of removal. (Download the full text of this decision at www.ce9.uscourts.gov/) 7) IMMIGRATION: Bibi v. Mukasey, 06-72485 (9th Cir. Feb. 27, 2008) (unpublished). Thomas and Bybee, Circuit Judges, and Block, District Judge. Bibi, a citizen and native of Fiji, petitioned for review of the BIA's order dismissing her appeal and denying her application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). The USCA held that the BIA's conclusion that Bibi did not suffer past persecution was not supported by substantial evidence. The BIA failed to consider Surita v. INS, 95 F.3d 814 (9th Cir. 1996), a case similar to the instant one. Bibi presented even more significant evidence of persecution than did the petitioner in Surita. Bibi's home was invaded, her husband assaulted, and her family was forcibly removed from their home and driven into the jungle. The police refused to investigate the crime. Bibi tried to regain possession of her home for three months, but was refused entrance. She was also told that she would be killed if she attempted to reclaim her house or any of the stolen property. This incident was preceded by other assaults and an episode in which all of the family's livestock was slaughtered. Under Surita, the evidence presented compels the conclusion that Bibi suffered past persecution. "A finding of past persecution triggers a regulatory presumption that the applicant has a well-founded fear of future persecution, which provisionally establishes the applicant's refugee status and eligibility for asylum." Surita, 95 F.3d at 821; 8 CFR Sec. 208.13(b)(1). To rebut this presumption, the government must show "by a preponderance of the evidence, that since the time the persecution occurred conditions in the applicant's country … have changed to such an extent that the applicant no longer has a well-founded fear of being persecuted if …[she] were to return." Surita, 95 F.3d at 821. Bibi showed that she was persecuted, so the presumption that she has a well-founded fear applied. In addition, "if an applicant's life or freedom was threatened in the proposed country" of removal, a presumption that the applicant is entitled to withhold of removal is triggered. Surita, 95 F.3d at 821 (quoting 8 CFR Sec. 208.16). The USCA thus remanded to the BIA to resolve whether the U.S. can produce sufficient evidence to rebut, by a preponderance of the evidence, these two regulatory presumptions. Finally, because Bibi presented no evidence that she was tortured in Fiji, see 8 CFR Sec. 1208.18(a) (defining "torture"), the BIA reasonably held that Bibi had not shown she was "more likely than not" to be subjected to torture if returned to Fiji." (Download the full text of this decision at www.ce9.uscourts.gov/) 8) IMMIGRATION: Fazaa v. Mukasey, 06-72319 (9th Cir. Feb. 1, 2008) (unpublished). Hall, O'Scannlain, and Paez, Circuit Judges. Fazaa, a native and citizen of Syria, petitioned for review of the BIA's order affirming the Immigration Judge's denial of his application for asylum, withholding of removal and relief under the Convention Against Torture ("CAT"). The USCA denied the petition. Where the BIA adopts the IJ's decision, the USCA reviews the IJ's decision as if it were that of the BIA. Fazaa maintained that the IJ's adverse credibility determination lacked a valid basis. The USCA disagreed. The adverse credibility finding was based upon, inter alia, a material omission in his asylum application and credible fear interview regarding a beating he allegedly suffered at the hands of the Syrian military draft board, as well as a discrepancy between Fazaa's testimony and documentary evidence he submitted. Each finding was specifically and cogently described by the IJ, and supported by the record. Because both the omission and the discrepancy also cast doubt on the events at the heart of Fazaa's asylum claim, substantial evidence supported the denial of asylum. Substantial evidence also supported the IJ's finding that Fazaa failed to establish past persecution or that he has a well-founded fear of future persecution on account of a statutorily-protected ground. Fazaa thus was not eligible for asylum. Because he could meet the lower standard of eligibility for asylum, he failed to show he is entitled to withholding of removal. Fazaa's CAT claim was based on the testimony found not credible, and he offered no other evidence that the IJ should have considered in making the CAT ruling. The CAT claim thus fails. (Download the full text of this decision at www.ce9.uscourts.gov/) 9) IMMIGRATION: Capistrano v. Dept. of State, 06-55912 (9th Cir. Feb. 19, 2008) (unpublished). Pregerson and Wardlaw, Cir-cuit Judges, and Leighton, District Judge. Fifteen Filipino visa applicants, along with their American Citizen or permanent resident relatives, appealed the district court's dismissal of their complaint alleging that the American Consulate in Manila failed to follow proper protocol in determining that the applicants were inadmissible for entry into the U.S. due to admissions of prior drug use. Upon the motion of the Department of State, the district court dismissed the complaint because the doctrine of consular nonreviewability deprived it of subject matter jurisdiction. The USCA agreed that it lacked subject matter jurisdiction to review the consul's decision to deny visas to these applicants for the same reason. The doctrine of consular nonreviewability predates the founding of the Republic. Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999) (noting that the doctrine is in accordance with ancient principles of international law dating from Roman times). The Circuit has held that this doctrine prevents it from reviewing decisions reached by consular officials regarding the entry of visa applicants. Li Hing of Hong Kong v. Levin, 800 F.2d 970, 970 (9th Cir. 1986) ("The doctrine of nonreviewability of a consul's decision to grant or deny a visa stems from the Supreme Court's confirming that the legislative power of Congress over the admission of aliens is virtually complete."); Ventura-Escamilla v. INS, 647 F.2d 28, 30 (9th Cir. 1981) (holding that the USCA lacks jurisdiction when "the relief sought is a review of the Consul's decision denying their application for a visa."). This aligns the Ninth Circuit with courts nationwide. E.g., Centeno v. Shultz, 817 F.2d 1212 (5th Cir. 1987) ("This result is in accord with our prior holdings that decision of the United States consuls on visa matters are not reviewable by the courts."); Wan Shih Hsieh v. Kiley, 569 F.2d 1179,1181 (2d Cir. 1978) ("It is settled that the judiciary will not interfere with the visa-issuing process."); Saavedra Bruno, 197 F.3d at 1159-60 ("For the greater part of this century, our court has therefore refused to review visa decisions of consular officials.") That the appellants characterized their complaint as one challenging the process followed by the consulate rather than its ultimate decision does not exempt the case from this well-settled doctrine. Loya-Bedoya v. INS, 410 F.2d 343, 347 (9thcir. 1969). At its core, the relief sought by the appellants would require the Manila consulate to revisit its decision denying the visa applications. Issuing such relief would be exactly what the doctrine of nonreviewability prevents courts from doing. (Download the full text of this decision at www.ce9.uscourts.gov/) 10) SANCTIONS: Mirch v. Frank, 06-15529 (9th Cir. Feb. 6, 2008) (unpublished). W. Fletcher and Bea, Circuit Judges, and Miller, District Judge. Mirch appealed the district court's imposition of sanctions in the form of attorneys' fees against him under 28 USC Sec. 1927, which authorizes sanctions for an attorney's unreasonable and vexatious multiplication of proceedings. The USCA affirmed both the imposition of and amount of sanctions. In 1995, Mirch, representing Dr. Kenneth Frank and Advanced Physicians Products (collectively, the "Frank parties"), obtained a default judgment in a case in which Mirch claimed he was to receive 40% of the judgment and $25 per hour as attorneys' fees. Thereafter, Dr. Frank retained a collection agency to locate the assets of the defaulted party. As a result of the collection efforts, $1.8 million became the subject of an interpleader action in which Mirch intervened and filed a lien for attorneys' fees. Subsequently, in 2001, Mirch filed a separate state court action against the Frank parties for breach of contract based on his claim for attorneys' fees. This action was removed to district court, and McDonald Carano LLP became counsel for the Frank parties. The Frank parties counterclaimed against Mirch for abandoning the Frank parties in their original action and failing to execute on the default judgment obtained in favor of the Frank parties. Mirch then filed a third-party complaint against McDonald Carano and two of the firm's attorneys (collectively, "McDonald Carano") for indemnification for any malpractice liability suffered by Mirch. Effectively as a result of Mirch's third-party complaint, McDonald Carano moved to withdraw as counsel for the Frank parties. After the district court granted the motion to withdraw, McDonald Carano moved to dismiss under Fed. R. Civ. Proc. 12(b)(6) for failure to state a claim. The district court granted the motion, holding that Nevada law would not allow Mirch to recover on his indemnification claim. On the day of the dismissal, Mirch voluntarily moved to dismiss the third-party complaint, claiming to have realized that the third-party complaint destroyed diversity jurisdiction. The court declared Mirch's voluntary motion moot. McDonald Carano then moved for sanctions under Fed. R. of Civ. Proc. 11, 28 USC Sec. 1927, and the court's inherent authority. On August 24, 2004, the court granted sanctions in the form of attorneys' fees and costs solely under Sec. 1927. After further briefing, the court awarded McDonald Carano $16,271.12 in attorneys' fees and costs. Mirch argues that the district court erred in imposing sanctions and that the sanctions award was excessive. The USCA affirmed. Under Sec. 1927, any attorney "who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys' fees rea-sonably incurred because of such conduct." A court can award Sec. 1927 sanctions only upon a finding of bad faith, which is present when an attorney acts with knowing recklessness or argues a meritorious claim for the purpose of harassing the opposition. B.K.B. v. Maui Police Dep't, 276 F. 3d 1091, 1107 (9th Cir. 2002); Gomez v. Vernon, 255 F.3d 1118, 1134 (9th Cir. 2001). While Sec. 1927 does not apply to an initial pleading, Moore v. Keegan Mgmt. Co., 78 F.3d 431, 435 (9th Cir. 1996), a third-party complaint is not an initial pleading because it cannot arise absent an underlying case. Fed. R. Civ. P. 14(a) and (b). Here, Mirch's third-party complaint multiplied the proceedings by precipitating the motion to dismiss and McDonald Carano's withdrawal as counsel for the Frank parties. In addition, the district court found that Mirch acted in bad faith and supported this conclusion with detailed factual findings demonstrating Mirch's intent to harass his adversaries. The USCA found that the district court did not abuse its discretion in imposing sanctions under Sec. 1927. Reasonable attorneys' fees are determined by following a two-part "loadstar" approach. First, the court calculates the presumptively-reasonable lodestar figure by multiplying the hours reasonably spent on the litigation by a reasonable hourly rate. Second the court considers whether to adjust the lodestar figures based on factors listed in Kerr v. Screen Extras Guild, 526 F.2d 67, 69-70 (9th Cir. 1986). The district court carefully followed the lodestar method by calculating the reasonable hourly rates charged by McDonald Carano's counsel, determining the reasonable time spent defending the third-party complaint, and finding that the Kerr factors merited no adjustment of the lodestar amount. The final fee award was reasonable and appropriately limited to time spend defending the third-party complaint, and thus did not constitute an abuse of discretion. (Download the full text of this decision at www.ce9.uscourts.gov/) 11) AMERICANS WITH DISABILITIES ACT: Granados v. J.R. Simplot Co., 06-35584 (9th Cir. Feb. 1, 2008) (unpublished). Beezer, Tashima, and Tallman, Circuit Judges. Granados appealed the district court's grant of summary judgment for his employer, J.R. Simplot Company, on his claim under the Americans with Disabilities Act. ("ADA"). The USCA affirmed. Granados argued that the district court erred in holding that he failed to raise a genuine issue of material fact that e was disabled at the time of his termination. To qualify as disabled under the ADA's definition of disability at 42 USC Sec. 12102(2)(A), a claimant must prove that he has a physical or mental impairment, the impairment limits a major life activity, and the limitation upon that activity is substantial. Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 194095 (2002). On appeal, Granados argued that the district court overlooked evidence that he was substantially impaired in the major life activity of sleeping. The Circuit has previously held that sleeping is a major life activity. Head v. Glacier Nw., Inc., 413 F.3d 1053, 1058 (9th Cir. 2005). To establish a substantial limitation on the major life activity of sleeping for the purpose of defeating summary judgment, all that is required is the plaintiff's declaration alleging great difficulty sleeping at night. Id. A plaintiff's statements may not be merely self-serving, however, and they must contain sufficient detail to convey the existence of an impairment. Id. at 1059. Granados's affidavit failed to meet this standard. Although he alleged that he was unable to obtain "restful" sleep, and that his impairment allowed him to sleep for three or four hours at a time, he failed to provide details alleging the extent or regularity of the impairment. The USCA also affirmed the district court's ruling that Granados was not substantially limited in the major life activity of working. To be substantially limited in the major life activity of working, one must be precluded from more than one type of job, a specialized job, or a particular job of choice. Similarly, if a host of different types of jobs are available, one is not precluded from a broad range of jobs." Sutton v. United Air Lines, Inc., 527 U.S. 471, 492 (1999). In light of this requirement, the Circuit has required plaintiffs to "present specific evidence about relevant labor markets to defeat summary judgment." Thornton v. McClatchy Newspapers, 261 F.3d 789, 795 (9th Cir. 2001). It was undisputed that Granados did not make such a showing. Finally, the USCA noted that even if Granados had succeeded in establishing that he was disabled under the ADA, Simplot would not have been required to accommodate his disability because, as he conceded, he did not make a specific request for an accommodation. He argued, however, that a post-suspension letter he wrote to Simplot which mentioned grogginess and sleepiness was sufficient to trigger Simplot's duty to engage in the interactive process. In the absence of a specific request, an employer is "required to initiate the interactive process only when an employee is unable to make such a request and the company knows of the existence of the employee's disability." Brown v. Lucky Stores, 246 F.3d 1182, 1188 (9th Cir. 2001). Nothing in the record indicated that Granados' alleged sleepiness, or any other factor, prevented him from requesting an accommodation. (Download the full text of this decision at www.ce9.uscourts.gov/) 12) AMERICANS WITH DISABILITIES ACT: Deanda v. Savings Investment,
Inc., 06-55881 (9th Cir. Feb. 22, 2008) (unpublished).
Hall, Graber, and Berzon, Circuit Judges. In this action under
Title III of the Americans with Disabilities Act of 1990 and the
California Unruh Civil Rights Act, defendants Del Taco and Savings
Investment (collectively "Del Taco") appealed an award
of $73,693.50 in attorneys' fees in favor of plaintiff Deanda. Del
Taco argued that the district court should have reduced or eliminated
the fee award because Deanda (1) failed to give Del Taco pre-filing
notice and an opportunity to cure the alleged barriers to access
at the restaurant in question, and (2) rejected Del Taco's early
settlement offer. The USCA affirmed. First, pre-filing notice is
not a prerequisite for attorney's fees in ADA actions. Skaff
v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 844-45
(9th Cir. 2007) (per curiam). Nor was any lack of notice
a basis for reducing fees in this case. Even if Del Taco would have
fixed its doors and tables upon request, it did not maintain that
it would also have paid Deanda statutory damages, which he legitimately
sought under Cal. Civ. Code Secs. 51(f) and 52(a). Indeed, at the
time Deanda sued, it appeared well-settled that his Unruh Act claims
qualified for $4,000 in statutory damages for each time he encountered
an architectural barrier that denied him equal access to the restaurant.
But as the parties' negotiations show, it was only though litigation
and a successful summary judgment motion that he forced Del Taco
to increase its initial settlement offer from $5,501 to $18,250.
So, contrary to Del Taco's contention, the purported lack of pre-filing
notice did not lead to unnecessary litigation, and any inefficiency
resulting from Deanda's somewhat vague complaint could have been
redressed through normal procedures. E.g., Fed. R. Civ. P. 12(e)
(motion for a more definite statement). Moreover, it is not strictly
accurate that no notice was given. Deanda asked employees at the
restaurant to look into fixing the doors on more than one occasion.
This put Del Taco on notice that at least some parts of the restaurant
were inaccessible, and should have triggered an investigation of
the restaurant's other features. More importantly, Del Taco did
not fix the doors prior to Deanda's filing of the case, despite
the request to do so. There was no reason to believe that pre-filing
notice about the other barriers to access would have led to their
being remedied prior to filing. The district court thus did not
abuse its discretion by discounting Del Toco's pre-filing notice
argument. (Download
the full text of this decision at www.ce9.uscourts.gov/)
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