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| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
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| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
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2) TAXATION / INNOCENT SPOUSE: Ordlock v. CIR, 06-74539 (9th Cir. July 24, 2008). Ordlock, a California resident, ap-pealed the Tax Court's determination that she is ineligible for a refund under 26 USC Sec. 6015 for payments on her husband's tax debt paid from their community property. The USCA affirmed. Nothing in Sec. 6015 clearly preempts California's community property law with respect to an innocent spouse's entitlement to a refund for a community property payment on the non-innocent spouse's federal income tax liability. Pregerson (author), D.W. Nelson, and Fernandez, Circuit Judges. C. Vreeland of Los Angeles, CA, for the petitioner; T. McLaughlin of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)
4) BANKRUPTCY: General Electric Capital
Corp. v. Future Media Productions, 07-55694 (9th Cir. July 3, 2008).
General Electric Capital Corporation ("GECC"), an oversecured creditor,
appealed a bankruptcy court's order denying it default interest and attorneys'
fees. GECC maintained that the bankruptcy court improperly applied a per se rule
against default interest. The USCA reversed and remanded with instructions to
apply the rule adopted by the majority of federal courts and then to determine
whether an award of attorneys' fees is proper. The bankruptcy court had improperly
applied to the facts of this case the rule of In re Entz-White Lumber and
Supply, Inc., 850 F.2d 1338 (9th Cir. 1988). Trott (author), Thomas, and
Fisher, Circuit Judges. M. Maly of San Francisco, CA, for the appellant; H. Hochman
of Los Angeles, CA, for the appellee. (Download the full text of this decision
at www.ce9.uscourts.gov/) 6) ANTITRUST / FRANCHISES: Rick-Mik Enterprises, Inc. v. Equilon-Enterprises, Inc., 06-55937 (9th Cir. July 11, 2008). Equilon Enterprises does business as Shell Oil Products. Its standard franchise agreement requires its franchisees, Shell and Texaco gasoline stations, to use Equilon to process credit-card transactions. In addition to payment for sales of petroleum products, Equilon allegedly gets transaction fees associated with the processing, or some kind of unspecified "kickback" from unidentified banks that process the transactions, or both. Rick-Mik Enterprises, Mike Madani, and Alfred Buczkowski (collectively "Rick-Mik") are Equilon franchisees who-on behalf of themselves and others, similarly-situated Equilon franchises-allege that Equilon violated antitrust laws by illegally tying two distinct products (the franchises and the credit-card processing service). Rick-Mik maintained that franchisees could pay lower transaction fees from others for credit-card processing. It also alleged that Equilon illegally agreed with banks to price-fix processing fees. The district court dismissed the antitrust and related state-law counts from Rick-Mik's complaint. The USCA affirmed because: (1) Rick-Mik's complaint failed to allege market power in the relevant market; (2) in the alleged franchise context, credit-card processing services are not a product distinct from the franchise itself; (3) the price-fixing allegations were impermissibly value; and (4) Rick-Mik waived the opportunity to attempt to cure these deficiencies. B. Fletcher and N.R. Smith, Circuit Judges, and King (author), District Judge. T. Bleau of Los Angeles, CA, for the appellant; B. Phillips of Los Angeles, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 7) SECURITIES FRAUD: Metzler Investment GMBH v. Corinthian Colleges, 06-55826 (9th Cir. July 25, 2008). Metzler Investment GMBH ("Metzler") was lead plaintiff in a putative federal securities fraud class action brought pursuant to Secs. 10(b) and 20(a) of the Securities and Exchange Act of 1934 and Securities Exchange Commission ("SEC") Rule 10b-5. As his Consolidated Third Amended Complaint ("TAC"), despite its lengthy and far-ranging allegations, failed to meet the Private Securities Litigation Reform Act's pleading requirements to properly state a claim in a private securities fraud class action and the standards for pleading loss causation, the USCA upheld the district court's dismissal of the TAC, with prejudice. Goodwin, B. Fletcher (author), and N.R. Smith, Circuit Judges. J. Westerman of Los Angeles, CA, for the appellant; J. Spiegel of Los Angeles, CA, for the appellants. (Download the full text of this decision at www.ce9.uscourts.gov/) 8) COMMUNICATONS LAW: Western Radio
Services v. Quest Corp., 05-35796 (9th Cir. July 9, 2008). Under
the Telecommunications Act of 1996, "incumbent" local exchange carriers
must enter into interconnection agreements with newer local exchange carriers.
If they cannot reach an agreement through negotiations, either party may petition
the state's public utilities commission to request arbitration of any open issues.
Western Radio Services petitioned the Oregon Public Utilities Commission ("PUC")
requesting arbitration of its attempts to establish an agreement with incumbent
Quest Corporation. The arbitrator found for Qwest on nearly every issue and ordered
the parties to submit within 30 days an agreement consistent with his decision
for final approval by the PUC. Qwest drafted an agreement that it maintained accorded
with the arbitrator's decision, but Western refused to sign it. Instead, Western
brought this action, contending that Quest had failed to negotiate in good faith,
and that the PUC and its Commissioners had violated Western's constitutional rights
under 42 USC Sec. 1983. Meanwhile, Qwest submitted its draft agreement to the
PUC. The district court dismissed the good faith cause of action for lack of jurisdiction
and the Sec. 1983 cause of action as unripe. Shortly thereafter, the PUC approved
the agreement submitted by Qwest, ruling that it complied with the arbitration
order. On appeal, the USCA held that, whether or not there is a private right
of action encompassing its good faith claim, Western could not sue Qwest for a
failure to negotiate in good faith until after the PUC addressed Western's good
faith claim. At the time of the USCA's decision, however, the PUC had approved
an agreement, which may represent its decision on Western's good faith claim.
The USCA thus remanded to the district court to allow it to consider in the first
instance whether the PUC's decision is sufficient to permit adjudication of Western's
good faith claim in district court and, if so, to address in the first instance
the availability of such an action under 47 USC Sec. 207. The USCA also remanded
the Sec. 1983 cause of action to the district court so that it may consider whether
the PUC determination affects its conclusion that the Sec. 1983 claim was unripe.
Leavy, Fisher, and Berzon (author), Circuit Judges. M. Dugan of Eugene,
OR, for the appellant; A. Duarte of Portland, OR, for the appellant. (Download the full text of this decision
at www.ce9.uscourts.gov/) 10) ENVIRONMENTAL LAW: Oregon Natural Desert Association v. Bureau of Land Management, 05-35931 (9th Cir. July 14, 2008). At issue here was whether the Bureau of Land Management ("BLM") complied with the requirements of the National Environmental Policy Act ("NEPA") when it developed a land use plan covering a large portion of Oregon. The Oregon Natural Desert Association, Committee for the High Desert, and Western Watersheds Project maintained that the BLM failed to do so because it failed (1) properly to analyze the effects of the plan on lands under its control possessing "wilderness characteristics," and (2) properly to ana-lyze management options for grazing and off-road vehicle use throughout the region covered by the plan. The district courts granted summary judgment for the BLM. The USCA reversed and remanded to the district court with instructions to remand to the BLM. Find-ing that the EIS violated NEPA, the USCA held unlawful and thus set aside the BLM's Southeastern Oregon Resource Management Plan and Record of Decision approving the EIS and the Southeast Oregon Plan. It directed the BLM not too implement the Plan with-out remedying the gaps in the EIS. Fisher and Berzon (author), Circuit Judges, and Barzilay, District Judge. P. Lacy of Portland, OR, for the appellants; D. Shilton of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 11) ENVIRONMENTAL LAW: Northwest Environmental Advocates v. EPA, 03-74795 (9th Cir. July 23 2008). The plaintiffs (Northwest Environmental Advocates, San Francisco Baykeeper, and the Ocean Conservancy) and plaintiffs-intervenors (the States of Illinois, Michigan, Minnesota, New York, Pennsylvania, and Wisconsin) challenged a regulation originally promulgated by the U.S. Environmental Protection Agency ("EPA") in 1973. It exempted certain marine discharges from the permitting scheme of Secs. 301(a) and 402 of the Clean Water Act ("CWA"). That regulation, 40 CFR Sec. 122.3(a), provided that the following vessel discharges into the navigable waters of the U.S. do not require permits: discharge of effluents from properly functioning marine engines; discharge of laundry, shower, and galley sink wastes from vessels; and any other discharge incidental to the normal operation of a vessel, including the discharge of ballast water. The district court held that the EPA exceeded its authority under the CWA in exempting these discharges. It thus vacated Sec. 122.3(a), effective Sept. 30, 2008. The USCA found that the district court had subject matter jurisdiction over plaintiffs' suit alleging that the EPA acted ultra vires in promulgating Sec. 122.3(a), and that the EPA's denial of plaintiffs' 1999 petition requesting the repeal of Sec. 122.3(a) was not in accordance with law. The USCA affirmed the district court's remedial order as a proper exercise of its discretion. It also dismissed for lack of subject matter jurisdiction the plaintiffs' petition for review filed directly with the Ninth Circuit. Hawkins, Wardlaw, W. Fletcher (author), Circuit Judges. D. Sivas of Stanford, CA, for the petitioners; J. Scheller of San Francisco, CA, for the respondent; M. Evans of Washington, DC, for the intervenor. (Download the full text of this decision at www.ce9.uscourts.gov/) 12) LABOR LAW / ARBITRATION: Cox v. Ocean View Hotel, 06-15903 (9th Cir. June 23, 2008). Ocean View Hotel and Cox executed an employment agreement containing a mandatory arbitration clause. When a dispute arose during the course of employment, Cox wrote the hotel requesting arbitration, but it responded by telling him that it did not consider his claim ripe for arbitration. Following termination of his employment, Cox filed a complaint in state court. At that point, the hotel decided that it wanted to arbitrate. After removing the action to federal court, the hotel moved to compel arbitration. The district court denied the motion and granted Cox's motion for partial summary judgment on the ground that the hotel previously breached its agreement and waived its right to arbitrate disputes with Cox. The USCA held that the district court erred in granting partial summary judgment for Cox based on his breach-of-agreement theory, because Cox had not properly initiated arbitration under the terms of his employment agreement. The USCA also held that the district court improperly granted summary judgment in Cox's favor on the issue of waiver. O'Scannlain (dissenting in part), Tashima (author), and M.D. Smith, Circuit Judges. R. Rand of Honolulu, HI, for the appellants; S. Hioki of Honolulu, HI, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 13) DISCRIMINATION IN EMPLOYMENT: Parra v. Bashas', Inc., 06-16038 (9th Cir. July 29, 2008). The plaintiffs, current and former Hispanic employees of Bashas', filed this class action alleging that they had been discriminated against based upon their na-tional origin in violation of Title VII of the 1964 Civil Rights Act as amended. They alleged that the defendant discriminated against them in pay and working conditions based on their national origin. The district court certified the proposed class as to the working conditions claim, but denied certification of the proposed class regarding the pay discrimination claim based upon a finding of lack of commonality within the class. Plaintiffs moved the district court to reconsider its motion and, in the alternative, offered to redefine the pay discrimination class. When these motions were denied, the plaintiffs appealed the decision to deny certification of the class alleging pay discrimination. The USCA reversed, concluding that the district court abused its discretion in failing to find commonality in the plaintiffs' original class definition of the discriminatory pay claim. The plaintiffs had presented the district court with extensive evidence showing Bashas' discriminatory pay practices commonly affected all members of the proposed class. Hug (author), Schroeder, and Callahan, Circuit Judges. J. Larkin of Berkeley, CA, for the appellant; S. Quincy of Phoenix, AZ, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 14) AMERICANS WITH DISABILITIES ACT: Molski v. Foley Estates, 06-56385 (9th Cir. July 9, 2008). This case involves a paraplegic who encountered discriminatory barriers to access when he visited the Foley Estates Vineyard and Winery ("Foley"). Un-willing to remove barriers to its historic wine-tasting room, Foley began providing services in an outside a gazebo with a bell where individuals barred from the wine-tasting room could ring for service. Molski and the Disability Rights Enforcement, Education, Services sued Foley for injunctive relief and damages to redress barriers to wheelchair accessibility. The district court ordered barriers removal within the building, but determined that it would not be readily achievable to make an accessible ramp to the entrance. The USCA affirmed the injunction requiring that the barriers be removed within the building and remanded for the district court to apply 28 CFR Sec. 36.405 and the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities when evaluating whether an accessible ramp would be achievable. Pregerson, D.W. Nelson (author), and Fernandez (dissenting in part), Circuit Judges. J. Adams of San Francisco, CA, for the appellant; B. Snyder of Santa Barbara, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 15) AIRLINES / DEEP VEIN THROMBOSIS LIABILITY: Twardowski v. American Airlines, 06-16726 (9th Cir. July 30, 2008). In these consolidated appeals, airline passengers or their survivors appealed from summary judgment in favor of a number of air carriers on their claim for damages for failure to warn of Deep Vein Thrombosis ("DVT") on international flights. They maintained that the airlines' refusal of requests to warn was an unexpected event and thus an "accident" under Article 17 of the Warsaw Convention, because before their flights, the airlines' trade organization, the English House of Lords, and airline medical officers had urged airlines to warn of DVT risks, and the airlines themselves had publicly represented that preventing passengers injury was a priority. However, as already held in Rodriquez v. Ansett Australia, 383 F.3d 914, 917 (9th Cir. 2004), developing DVT in-flight is not an "accident," and failing to warn about its risk is not an "event" for purposes of liability for an "accident" under Article 17, Caman v. Continental Airlines, 455 F.3d 1087, 1092 (9th Cir. 2006). Neither requests by public agencies, nor the airlines' public commitment to safety, converts the failure to warn about DVT into an event or accident; the gravamen remains, at its core, a failure to warn. If there is no liability for failure to warn, there is none for failure to warn effectively. The USCA thus affirmed. B. Fletcher and Rymer, Circuit Judges, and Duffy, District Judge. Per Curiam. C. Robbins of Los Angeles, CA, for the plaintiffs; W. Boyce of Houston, TX, DC, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 16) FEDERAL TORT CLAIMS ACT: Hensley v. USA, 06-35619 (9th Cir. July 9, 2008). The issue in this negligence action arising from a car accident was when the plaintiffs' claim accrued for purposes of measuring the two-year statute of limitations under the Federal Tort Claims Act ("FTCA"). As required by binding precedent, the USCA held that the claim accrued at the time of the collision and not later when the Attorney General certified that the driver of the other vehicle was acting within the scope of his federal em-ployment at the time of the collision. The USCA thus reversed the judgment in favor of the plaintiffs and remanded with instructions to dismiss the action. Graber (author) and Rawlinson, Circuit Judges, and Wright, District Judge. W. Cole of Washington, DC, for the defendant; H. Goodfriend of Seattle, WA, for the plaintiffs. (Download the full text of this decision at www.ce9.uscourts.gov/) 17) TORTS: Mangano v. USA,
05-17334 (9th Cir. July 1, 2008). Dr. Mangano brought suit under the Federal Tort
Claims Act ("FTCA") for emotional distress and other injuries allegedly
suffered in connection with his termination from the San Francisco Veterans Administration
Medical Center. The district court found his claims preempted by the Civil Service
Reform Act ("CSRA") and dismissed the suit. Mangano maintained that
the district court erred because he was hired under a provision that allows the
Veterans' Administration ("VA") to employ part-time physicians "without
regard to civil service or classification laws, rules, or regulations." 38
USC Sec. 7405(a). He relied on Orloff v. Cleland, 708 F.2d 372, 376 (9th
Cir. 1983), which held that the civil service laws to not apply to part-time physicians
employed by the VA. The USCA held that Mangano's tort claims were subject to CSRA
preemption and affirmed the judgment. After Orloff was decided, Congress amended
the CSRA to apply selectively to part-time physicians. 5 USC Sec. 2105(f). Hall
and Bybee (author), Circuit Judges, and Zapata, District Judge. J. Bloch
of San Francisco, CA, for the appellant; AUSA K. Dowling of San Francisco, CA,
for the appellees. (Download the full text of this decision
at www.ce9.uscourts.gov/) 19) MEDICARE / FALSE CLAIMS ACT: USA v. Bourseau, 06-56741 (9th Cir. July 14, 2008). Bourseau, RIB Medical Manage-ment Services ("RIB"), Dr. Sabaratnam, and Navatkuda, Inc. (collectively "appellants"), appealed the district court's judgment holding them jointly and severally liable to the government for violations of the False Claims Act. The USCA affirmed. The parties agreed that the underlying facts were not in dispute. The government brought this case on behalf of the U.S. Dept. of Health and Human Services, Centers for Medicare and Medicaid Services against two psychiatric hospital operators, Bourseau and Sabaratnam, and their single-employee corporations, RIB and Navatkuda, for fraud in the context of the Medicare reimbursement process. The appellants are liable under the "reverse" false claims provision of the FCA for the submission of false statements in their 1997, 1998 and 1999 cost reports. The government sustained actual damages and is entitled to a treble damages award of $15,657,585, plus a civil penalties award of $31,000. Beezer (author), Hall, and Silverman, Circuit Judges. P. Hooper of Los Angeles, CA, for the appellants; AAG P. Keisler of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 20) SOCIAL SECURITY: Tommasetti v. Astrue, 06-55999 (9th Cir. July 17, 2008). Tommasetti applied for Social Security bene-fits, claiming that he was unable to work because of lower back pain and diabetes mellitus. After an initial denial of his application, and following what the district court characterized as an "administrative odyssey," the Social Security Appeals Council remanded Tommasetti's claim to a new Administrative Law Judge ("ALJ") to conduct a de novo hearing. At that hearing, the ALJ took testimony from a medical expert, a vocational expert ("VE"), and Tommasetti. After largely rejecting the opinion of one of Tommasetti's treating physicians and finding Tommasetti's testimony not credible, the ALJ concluded, based almost entirely on the VE's testimony, that Tommasetti could perform his past work. Alternatively, the ALJ found that Tommasetti could perform other work in the national econ-omy and local economy. The Appeals Council declined jurisdiction over Tommasetti's appeal, and the district court affirmed the ALJ's decision, finding it supported by substantial evidence. The USCA held that the ALJ provided "clear and convincing" reasons for rejecting Tommasetti's testimony as not credible. See Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th Cir. 1996). The USCA further held that the ALJ provided "specific and legitimate" reasons based on substantial evidence for her partial rejection of the treating physician's opinion. See Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). Finally, the USCA held that although the ALJ erred in finding that Tommasetti could perform past work, that error was harmless because the ALJ properly decided that Tommasetti could perform other work in the economy. The USCA thus affirmed the district court's decision. Trott, Clifton, and Callahan (author), Circuit Judges. Y. Cho of Los Angeles, CA, for the plaintiff-appellant; P. Keisler of Los Angeles, CA, the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 21) INSURANCE: Sony Computer Entertainment America, Inc. v. American Home Assurance, 05-17425 (9th Cir. July 15, 2008). Sony Computer Entertainment America appealed the district court's summary judgment for American International Specialty Lines Insurance Company ("AISLIC") and American Home Assurance Company. Sony claimed that the insurance companies failed to indemnity and defend it in a class action alleging product defects in the video game Sony PlayStation 2. The district court found that neither insurance company had a duty to indemnify or defend Sony. The USCA affirmed. Sony had not shown the potential for cover-age either under the loss of use or physical damage provisions of the policy. Sony's indemnification claim failed as well as the duty to defend is broader than the duty to indemnify. The bad faith claim against American Home was similarly rejected because if there is no coverage, there can be no bad faith in refusing coverage. Judge Bybee dissented in part. He disagreed with the majority's conclusion that AISLIC had no duty to defend Sony. Schroeder, Hall (author), and Bybee (dissenting), Circuit Judges. M. Myers of San Francisco, CA, for the appellant; T. Sloan of San Francisco, CA, and L. Ashley of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 22) CROP INSURANCE: Conrad v. Ace Property & Casualty, 06-35539 (9th Cir. July 14, 2008). At issue here was whether a standard Adjusted Gross Revenue Insurance Policy providing crop revenue insurance pursuant to the Federal Crop Insurance Act in-corporates and mandates the claim adjustment procedures set forth in the Federal Crop Insurance Corporation's Adjusted Gross Reve-nue Standard Handbook. The USCA held that it did. When all the provisions are read as a whole, the district court's interpretation provides the only reasonable interpretation of the Policy: Conrad was entitled to an adjustment of his five-year average and Rain & Hail, LLC, was obligated to "apply the claim adjustment and other procedures established or approved by the FCIC. That is exactly what happened. The USCA thus affirmed. Kleinfeld, Tashima (author), and Tallman, Circuit Judges. N. Gellert of Seattle, WA, for the appellant; S. Boutz of Spokane, WA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 23) SCHOOL STRIP SEARCHS: Redding v. Safford Unified School, Dist. #1, 05-15759 (9th Cir. July 11, 2008). On the basis of an uncorroborated tip from a culpable eighth grader, Marissa, public middle school officials searched futilely for prescription-strength ibuprofen by strip-searching another student, 13-year-old honor student Savana. Savana's mother sued the school district and certain individual school officials. The district court ruled for the defendants entirely on the basis that there was no violation of Savana's con-stitutional right, as established by New Jersey v. T.L.O., 469 US 325 (1985). The USCA affirmed in part, reversed in part, and re-manded. It concluded that the school officials violated Savana's Fourth Amendment right to be free from unreasonable search and seizure. The search was neither "justified at its inception," nor, as a grossly intrusive search of a middle school girl to locate pills with the potency of two over-the counter Advil capsules, "reasonably related in scope to the circumstances" giving rise to its initiation. Because these constitutional principles were clearly established at the time that the school officials directed and conducted the search, the school official in charge was not entitled to qualified immunity from suit for the unconstitutional strip search of Savana. Dissenting, Judge Hawkins thought that T.L.O. counsels deference to school officials, and, for that reason, he would find the strip search constitutional, and would forgive the school official's mistake as reasonable. Judge Gould, joined by Judge Silverman, dissented because he felt that the defendants were entitled to a qualified immunity from liability and that constitutional rights were impaired under T.L.O. by a slightly different analytic framework than that advanced by the majority. He would hold that some search of Savana was justified at the inception because of concerns about illicit distribution of drugs at the school and the tip that she had supplied Marissa with prescription strength ibuprofen. Kozinski, Pregerson, Hawkins (dissenting), Silverman (dissenting), Wardlaw (author), Fisher, Gould (dissenting), Paez, Bea, M.D. Smith, and N.R. Smith, Circuit Judges. G. Boyd of Santa Cruz, CA, for the appellant; M. Wright of Phoenix, AZ, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 24) FIRST AMENDMENT: Center for Bio-Ethical Reform v. Los Angeles Sheriff Department, 05-55294 (9th Cir. July 2, 2008). The plaintiffs drove a truck displaying enlarged, graphic photos of early-term aborted fetuses around the perimeter of a public middle school in Rancho Palos Verdes, California. Deputy Sheriffs were dispatched to the school. The plaintiffs maintained that the officers violated their First Amendment rights by ordering them to remove their truck from an area adjacent to the school. They also argued that the officers violated their Fourth Amendment rights by detaining them for an unreasonable time and by searching their vehicle without consent. Plaintiffs sought damages and injunctive and declaratory relief for violation of their First and fourth Amendment rights. The district court held that the officers and the middle school assistant principal were entitled to qualified immunity and dismissed the damages claims against them. It then granted summary judgments for of the defendants on the remaining First and Fourth Amendment claims. The USCA held that the plaintiffs' First Amendment rights were violated, but that the individual defendants were entitled to qualified immunity from a damages action on that issue. It thus reversed the district court's orders granting defendant's summary judgment motion on all the issues in the case, and denying plaintiffs' First Amendment claim and Fourth Amendment claim for unreasonable detention. It affirmed the district court's order dismissing Sheriff Baca and granting qualified immunity to the individual defendants on the First Amendment claim. It then remanded for the district court to resolve plaintiffs' conspiracy claim and request for injunctive relief. Pregerson (author), W. Fletcher, and Berzon, Circuit Judges. J. Hayes of Newport Beach, CA, for the appellants; J. Lehman and J. Mullane of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 25) FOREIGN SOVEREIGN IMMUNITIES ACT:
California Dept. of Water v. Powerex Corp., 06-15285 (9th Cir. July
22, 2008). At issue here was whether Powerex, a Canadian corporation that markets
and distributes electric power, is a "foreign state" within the meaning
of the Foreign Sovereign Immunities Act of 1976. Four years ago, the USCA held
that it was not, but the Supreme Court vacated that decision without resolving
the issued. California v. NRG Energy Inc., 391 F.3d 1011, 1026 (9th Cir.
2008), vacated sub nom. Powerex Corp. v. Reliant Energy Servs., Inc., 127
S.Ct. 2411 (2007). The USCA reversed and remanded. Because it held that Powerex
is an organ of British Columbia, Canada, it falls within the definition of "foreign
state" and is entitled to a federal bench trial. See 28 USC Secs. 1441(d).
Cowen, Hawkins (author), and N.R. Smith, Circuit Judges. D. Frederick of
Washington, DC, for the appellant; A. Almendras of San Francisco, CA, for the
appellee.(Download the full text of this decision
at www.ce9.uscourts.gov/) 27) CIVIL PROCEDURE: In re Estate of Marcos, 06-16301 (9th Cir. July 31, 2008). At issue here was a novel situation involving the registration of a federal judgment. The judgment had been rendered in the U.S. District Court for the District of Hawaii and registered in the U.S. District Court for the Northern District of Texas, where the prevailing plaintiff sought to enforce it against a non-party, Texas defendant. The Texas defendant moved to dismiss on the ground that the judgment was not timely registered because, under Texas's borrowing statute, the Hawaii "statute of limitations" for enforcing judgments applied and, under it, the judgment had expired. This prompted the plaintiff to ask the rendering court to declare that the judgment was live and, in any event, to extend it, which the district court did. Meanwhile, the collection defendant moved to intervene in the extension proceeding, which the district court did not allow, and then to appeal the extension, which the court also did not allow. The USCA held that the party against whom enforcement was sought had a significant protectable interest at stake that gave it the right to be heard in the extension proceeding, and to appeal. Having considered the intervenor's arguments on the merits, the USCA also held that the district court erred in purporting to extend the judgment. The USCA thus reversed the order denying intervention, and vacated the order granting extension. Goodwin, Rymer (author), and Ikuta, Circuit Judges. E. Gulland of Washington, DC, for the proposed-intervenors; J. Van Dyke of Honolulu, HI, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 28) CIVIL PROCEDURE: Hearns v. San Bernardino Police Department, 05-56214 (9th Cir. July 1, 2008). Hearns, an African-American male, is a police officer employed by the City of San Bernardino Police Department ("SBPD") In December 2003, he filed a complaint against the SBPD and 10 unnamed defendants in which he alleged that he experienced race-based discrimination and retalia-tion, in violation of 42 USC Secs. 1981, 1983, 1985, and 1986, Title VII, 42 USC Sec. 2000e, and state law. The district court dis-missed the complaint under Fed. R. Civ. Proc. 8 without prejudice with leave to file an amended complaint. When Hearns filed an amended complaint that was substantially unaltered, the district court dismissed the case with prejudice. The USCA found that neither complaint warranted dismissal under Rule 8: Although each set forth excessively detailed factual allegations, they were coherent, well-organized, and stated legally viable claims. The USCA thus reversed appeal 05-56214 and remanded for further proceedings. Pursuant to the defendants' non-opposition, the USCA also reversed appeal 05-56306. Finally, it dismissed appeals 05-56272 and 05-56324 as moot. Kleinfeld (dissenting in part) and Paez, Circuit Judges, and Hart, District Judge. L. Pepper of Riverside, CA, and Leo Terrell of Beverly Hills, CA, for the plaintiff; J. Odlum of San Bernardino, CA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 29) CLASS ACTIONS: Luther v. Countrywide Home Loans Servicing, LP, 08-55865 (9th Cir. July 16, 2008). Section 22(a) of the Securities Act of 1933 creates concurrent jurisdiction in state and federal courts over claims arising under the Act. It also specifically provides that such claims brought in state court are not subject to removal to federal court. The USCA held that the Class Action Fair-ness Act of 2005, which permits in general the removal to federal court of high-dollar class actions involving parties, does not super-sede Sec. 22(a)'s specific bar against removal of cases arising under the 1933 Act. Thus, by virtue of Sec. 22(a), Luther's state court class action, which alleged only violations of the Securities Act of 1933, was not removable. Silverman (author), Rawlinson, and M.D. Smith, Circuit Judges. D. Kitchens of Los Angeles, CA, for the appellants; J. Daley of San Diego, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 30) CIVIL RIGHTS: Harper v. City of Los Angeles, 06-55519 (9th Cir. July 14, 2008). This case arose from the Los Angeles Police Department's ("LAPD") investigation and prosecution of three former police officers, Harper, Liddy, and Ortiz. The three were implicated in wrongdoing by former LAPD officer Perez in an event known as the "Rampart Scandal"-an event that, based on Perez's own unlawful conduct and his allegations of corruption at the Rampart Division, launched an internal investigation that ultimately impli-cated scores of police officers, overturned dozens of convictions, and generated intense media scrutiny. The criminal charges against these officers resulted in acquittals. Harper, Liddy, and Ortiz subsequently sued Perez, the district attorneys, the City of Los Angeles, and former Chief of Police Parks for violations of their constitutional civil rights under 42 USC Sec. 1983. They maintained that the defendants had conducted an improper and negligent investigation, and that they had been arrested without probable cause for falsifying a police report and conspiring to file such a report. The district court dismissed on FRCP 12(b) motions and motions for summary judgment claims against the County of Los Angeles, District Attorney Garcetti, Perez, and Deputy District Attorneys Laesecke and Ingalls. The case then proceeded to trial against the City of Los Angeles and Chief Parks. After an 11 day trial, the jury returned a spe-cial verdict in favor of the plaintiffs, finding that their constitutional rights were violated by the City and by Parks in his official capacity. It awarded each officer compensatory damages in the amount of $5,000,001. The USCA affirmed. It found that both the jury's verdict and the jury's damages award were supported by substantial evidence. It also affirmed the district court's challenged evidentiary rulings. Finally, it affirmed the award of attorneys' fees under 42 USC Sec. 1988. Farris and Paez (author), Circuit Judges, and Block, District Judge. E. Horowitz of Pacific Palisades, CA, for the appellants; J. Ehrlich of Claremont, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 31) CIVIL RIGHTS / SEARCH & SEIZURE: Howell v. Polk, 06-16418 (9th Cir. July 16, 2008). The Howells sued members of the Prescott Area Narcotics Task Force and other municipal and police defendants under 42 USC Sec. 1983. They claimed that the police unconstitutionally executed a knock-and-announce search warrant by failing to wait long enough for the Howells to open the door before breaking it down. A jury disagreed, and found the search to be reasonable. The USCA affirmed. The Howells maintained that, because the case requires balancing competing interests in privacy and law enforcement, only the district judge may determine whether the conduct was reasonable. But, the USCA disagreed, noting that juries are frequently entrusted with the task of determining the rea-sonableness of police conduct. If the jury can weigh probable cause, a tricky and legalistic doctrine, then it can also decide whether a warrant was lawfully executed. The district court didn't err in submitting the issue of reasonableness to the jury. Kozinski, Tashima, and N.R. Smith, Circuit Judges. Per Curiam. C. Shaw of Prescott, AZ, for the plaintiffs-appellants; J. Jellison of Phoenix, AZ for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 32) IMMIGRATION: Gonzalez v. Mukasey, 04-74576 (9th Cir. July 29, 2008). Gonzalez petitioned for review of an order of the Board of Immigration Appeals ("BIA") affirming, in a streamlined decision, a decision of the Immigration Judge ("IJ") denying her motion to terminate her removal proceedings and finding her inadmissible under INA Sec. 212(a)(6)(E)(i) because she assisted in the smuggling of two undocumented alien minors into the United States. She was placed in removal proceedings after she attempted to enter the U.S. in a vehicle that carried two undocumented infants. Earlier that day, she left California with her family, knowing that her father planned on using her U.S.-citizen son's birth certificate to pass one of two infants into the United States. At issue on appeal was whether Gonzalez's presence and acquiescence in her father's plan was sufficient to sustain a finding that she aided and abetted an alien to try to enter the U.S. in violation of the law. The USCA held that her mere presence and acquiescence did not constitute alien smuggling under INS Sec. 212(a)(6)(E)(e). It thus granted the petition for review. Judge Smith dissented. Gonzalez was not merely present in the vehicle: She sat between the two infants in the vehicle. Moreover, she allowed her father to use her son's birth certificate to smuggle the undocumented infants. The majority characterized this agreement as a "reluctant acquiescence" and held that acquies-cence is not an affirmative act as required for alien smuggling. But Judge Smith disagreed. Gonzalez, he noted, had actively assisted her father by explicitly agreeing that he could use her son's birth certificate. Indeed, her father's repeated requests demonstrated that, for whatever reason, he felt that he could not simply take the birth certificate and leave Gonzalez out of his plan altogether. B. Fletcher (author) and N.R. Smith (dissenting), Circuit Judges, and King, District Judge. L. Ceithaml of San Diego, CA, for the petitioner; E. Marsteller of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 33) IMMIGRATION: Rodriguez-Echeverria v. Mukasey, 06-73670 (9th Cir. July 25, 2008). The petitioner sought review of a final order of removal, arguing that the Immigration Judge ("IJ") erred in failing to suppress statements, which she maintained were ob-tained in violation of Department of Homeland Security ("DHS") regulations and were coerced in violation of the Fifth Amendment's Due Process Clause. She also argued that the BIA abused its discretion by affirming the IJ's decision without opinion. The USCA agreed that the IJ erred in determining that Rodriguez was not under arrest at the time she gave her incriminating statements. It thus remanded for the BIA to determine in the first instance whether her rights under the regulation were infringed and whether her statements were freely given. Fisher (author) and Paez, Circuit Judges, and Robart, District Judge. A. Knapp of Los Angeles, CA, for the petitioner; J. Robbins of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 34) IMMIGRATION: Brazil Quality Stones v. Chertoff, 06-55879 (9th Cir. July 10, 2008). Dos Santos is a Brazilian citizen who has served as the President and CEO of Granite Ebenezer, a Brazilian corporation, since its founding in 1998. Granite Ebenezer sells and exports Brazilian granite and other decorate stones for use in residential and commercial construction. Dos Santos owns 99% of its stock; his wife owns the remaining 1%. In 2002, in an effort to improve its ability to import its wares into the U.S., Granite Ebenezer established a U.S.-based affiliate, Brazil Quality Stones ("BQS"), as a California corporation. Dos Santos also owns 99% of BQS's stock, while his wife owns the remaining 1%. BQS and dos Santos (collectively "petitioners") sought to transfer dos Santos from Brazil to the U.S. so that he could operate BQS as its President and CEO. BQS thus petitioned for an L-1A nonimmigrant visa on dos San-tos' behalf. The L visa is designed to allow multinational firms to transfer employees from the firm's overseas operations to its operations in the United States. Dos Santos received the visa but for one year only, subject to extension by a later application. Subsequently the U.S. Bureau of Citizenship and Immigration Services ("USCIS"), as successor to the INS, denied the petition to extend dos Santos' L-1A classification, concluding that the record failed to establish that he was employed in a managerial or executive capacity and that the record did not prove that BQS was doing business in the United States. The Department of Homeland Security Administrative Appeals Office ("AAO") dismissed BQS's appeal, affirming the USCIS's conclusion that the record failed to show that dos Santos was a qualifying employees or that BQS was a qualifying organization. The USCA affirmed, finding that the agency did not abuse its discretion in finding that dos Santos was not a qualifying employee and that the petitioners could not show him eligible for an L-1A classification. It expressed no view on the agency's alternative ruling that BQS failed to show that it was "doing business" in the U.S. for the year preceding its petition to extend dos Santos' visa as is required of a qualifying organization. Goodwin, O'Scannlain (author), and W. Fletcher, Circuit Judges. A. Paparelli of Irvine, CA, for the petitioner; AUSA T. Buck of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 35) IMMIGRATION: Parussimova v. Mukasey, 06-75217 (9th Cir. July 24, 2008). Here the USCA was called upon to interpret 8 USC Sec. 1158(b)(1)(B)(i) of the Real ID Act of 2005 which imposes a new evidentiary burden on asylum applicants, and then to determine whether the BIA, in applying this provision, properly denied asylum to an alien who claimed she was the victim of religious and ethnic persecution in Kazakhstan. The petitioner, a 28-year old native and citizen of Kazakhstan, is an ethnic Russian and an adherent of the Orthodox Christian faith. She was admitted to the U.S. on a non-immigrant B-1 visa in May 2005 but overstayed that visa and filed an application claim that she had been persecuted in Kazakhstan on account of her ethnicity and religion, and that she feared persecution for the same reasons upon her return. The USCA denied the petition. The BIA's ruling that the petitioner was not attacked on account of a protected ground was supported by substantial evidence. Under Sec. 1158(b)(1)(B)(i) an asylum applicant need not prove that the protected ground was the only reason for the persecution she suffered. It requires that a protected ground serve as "one central reason" for the persecution, suggesting that the persecutory act may have multiple causes. Also, an applicant need not prove that a protected ground was the most important reason why the persecution occurred. It states that a protected ground must constitute "at least one" of the central reasons for persecutory conduct; it does not require that a reason account for 51% of the persecutors' motivation. Nevertheless, the plain meaning of the phrase "one central reason" indicates that the Act places a more onerous burden on the asylum applicant that the "at least in part" standard previously applied. O'Scannlain (author) and Hawkins, Circuit Judges, and Selna, District Judge. S. Ahmad of Fremont, CA, for the petitioner; S. Maloney of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 36) IMMIGRATION: Singh v. Mukasey, 05-74817 (9th Cir. July 23, 2008). This appeal concerned the right of a criminal alien, ordered removed before the enactment of the REAL ID Act of 2005, to obtain judicial review of his removal order after the Act became effective on May 11, 2005. Before the Real ID Act, "criminal aliens" could obtain judicial review only through a habeas petition filed with the district court. After the Act, these aliens-like all aliens-may obtain judicial review only through a petition for review in the court of appeals, and the petition must be filed within 30 days of the issuance of a final order of removal. Singh filed his current petition for review on August 17, 2005, more than two years after his order of removal became administratively final and more that three months after the REAL ID Act was enacted. The government argued that the USCA lacked jurisdiction to consider Singh's untimely petition for review. The USCA held that the REAL ID Act must be construed to give aliens whose removal order become final before the REAL ID Act a reasonable opportunity to obtain judicial review. However, it held that aliens whose petitions were rendered untimely by the Act have a grace period of no more than 30 days from the effective date of the Act in which to seek such review. Because Singh's petition was filed more than 30 days after the REAL ID Act was signed into law, the USCA dismissed it. Reinhardt, Noonan, and Fisher (author), Circuit Judges. R. Jobe of San Francisco, CA, for the petitioner; P. Smith of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 37) IMMIGRATION: Tekle v. Mukasey, 05-76841 (9th Cir. July 18, 2008). Tekle petitioned for review of a BIA decision affirming the IJ's denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture. Finding that the BIA's adverse credibility determination was not based on substantial evidence, the USCA granted the petition and remanded for further proceedings. It held that where, as here, the IJ has made an adverse credibility finding and has also concluded in the alternative that the petitioner is ineligible for asylum or other relief, and that BIA has affirmed on the basis of the IJ's adverse credibility finding, but has specifically declined to reach the issue of eligibility for asylum and other relief, the USCA must remand under INS v. Ventura, 537 US 12 (2002) (per curiam). A Ventura remand is particularly necessary here in light of the IJ's contradictory statements about Tikle's eligibility for asylum. Noonan, W. Fletcher (author), and Bea, Circuit Judges. K. Bushman of New York, NY, for the petitioner; A. Insenga of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 38) IMMIGRATION / TAXATION: Kawashima v. Mukasey, 04-74313 (9th Cir. July 1, 2008). At issue here was whether the petitioners' convictions for subscribing to a false statement on a tax return and for aiding and assisting in the preparation of a false tax re-turn qualify as "aggravated felonies" that subject them to removal under the relevant immigration laws. The USCA granted the petition for review of the removal order. Because the statues to which the petitioners pled guilty to violating do not require proof of any particular monetary loss, the USCA did not examine the record of their conviction to determine whether they necessarily pled guilty to causing a loss in excess of $10,000. It's conclusion that the government failed to show that the petitioners' convictions were aggravated felonies under the categorical approach meant that they were not removable and, accordingly, that the petitions for review of the BIA's affirmance of the removal order must be granted. Judge O'Scannlain concurred in the court's opinion because it faithfully applied Ninth Circuit precedent. But he wrote separately because the anomalous result such precedent requires the court to reach ignores the plain meaning of what it interprets and disregards common sense. He thought it fair to ask whether the modified categorical analysis adopted as law of the Circuit in Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc), reasonably interprets the INA. He thought it did not, and wrote separately in the hope that an en banc court with the power to address the anomalies that Navarro-Lopez compels will ask the same question very soon. O'Scannlain (concurring), Leavy, and Callahan, Circuit Judges. Per Curiam. 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/) 39) IMMIGRATION: Loho v. Mukasey, 04-73136 (9th Cir. July 8, 2008). At issue here was whether an Immigration Judge properly discredited an asylum applicant's claim that she suffered persecution in her native country of Indonesia, when she had twice visited and U.S. and yet voluntarily returned to Indonesia. The USCA denied the petition for review. The petitioner alleged that she was "especially fearful that [she and her family] could be … victims because of the consuming hatred the Muslim native Indonesians have against them and their aim to eliminate all Non-Muslims from Indonesia." Nevertheless, she twice voluntarily returned to Indonesia after reaching safety in the Untied States. What cut against her credibility was not that she failed to submit an asylum application during her previous visits, but that after leaving her home country for the safety of the U.S., she took minimal steps to investigate the availability of some means of avoiding a return to the country she claim to have feared. She thus produced insufficient evidence to compel the conclusion that she suffered past persecution or has a well-founded fear of future persecution in Indonesia. Gibson, O'Scannlain (author), and Graber, Circuit Judges. J. Porta of Los Angles, CA, for the petitioner; A. Norwood of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 40) IMMIGRATION: Bustamante v. Mukasey, 06-17228 (9th Cir. July 9, 2008). The USCA held here, as it did 22 years ago in Li Hing of Hong King v. Levin, 800 F.2d 970 (9th Cir. 1986), that ordinarily a consular officials' decision to deny a visa to a foreigner is not subject to judicial review. However, when a U.S. citizen's constitutional rights are alleged to have been violated by the denial of a visa to a foreigner, the USCA undertakes a highly constrained review solely to determine whether the consular official acted on the basis of a facially legitimate and bona fide reason. Here, the consular official offered a facially valid reason for denying the visa: he had reason to believe that the visa applicant was a drug trafficker. Moreover, it was not alleged that the consular official did not have a good faith belief in the truth of the information on which he relied. Silverman (author) and Berzon, Circuit Judges, and Benitez, District Judge. M. Van Der Hout of San Francisco, CA, for the appellants; D. Knauss of Phoenix, AZ, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 41) IMMIGRATION: Dela Cruz v. Mukasey, 05-76564 (9th Cir. July 9, 2008). Stone v. INS, 514 U.S. 386 (1995), held that the filing of a motion to reopen or reconsider with the BIA does not toll the statutory time limit for filing a petition for review in the court of appeals. Here, the USCA held that the reversed is also true: The filing of a petition for review in the USCA does not toll the statutory time limit for filing a motion to reopen in the BIA. Judge Graber concurred but wrote separately to point out that the BIA may reopen a proceeding, sua sponte, at any time. 8 CFR Sec. 1003.2(a). Tashima and Graber (concurring), Circuit Judges, and Timlin, District Judge. Per Curiam. T. Laguatan of Daly City, CA, for the petitioners; D. Scroggin of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 42) IMMIGRATION: Renteria-Morales v. Mukasey, 04-74742 (9th Cir. July 10, 2008). The petitions for review of Irma Renteria-Morales and Maria Jesus Rivera de Alvarado consolidated here raised the question whether a conviction for failure to appear in court in violation of 18 USC Sec. 3146 is categorically an aggravated felony as defined by 8 USC Sec. 1101(a)(43)(S) or (T). Applying the approach prescribed by Taylor v. USA, 495 US 575, 600-02 (1990), the USCA held that a violation of Sec. 3146 is not categorically an aggravated felony under either provision. Applying the modified categorical approach, the USCA held that the prior conviction of one petition qualified as an aggravated felony while the prior conviction of the other petition did not. Judge Tallman dissented from the view that, under the modified categorical approach, Irma's conviction for bail jumping did not meet the elements of an aggravated felony as set forth in Sec. 1101(a)(43)(T). Because that holding was based on a fundamental misunderstanding of federal criminal procedure regarding mandatory conditions imposed on release from custody, and because the charging language of the bail jumping information compelled the opposite conclusion, Judge Tallman would deny the petition for review. Thomas, Tallman (dissenting in part), and Ikuta (author), Circuit Judges. M. Guajardo and C. Dvorkin of San Francisco, CA, for the petitioners; M. Golding of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 43) IMMIGRATION: Dhital v. Mukasey,
06-75043 (9th Cir. July 17, 2008). At issue here was whether an Immigration Judge
properly denied admissibility to a non-citizen student who admitted to having
previously obtained asylum under a false identity. The USCA found that substantial
evidence supported the BIA's decision to affirm the IJ's denial of the petitioner's
application for CAT relief. It thus denied the petition to review the BIA's decision.
Judge O'Scannlain join the majority's decision as it faithfully applied Ramadan
v. Gonzales, 479 F.3d 646 (9th Cir. 2007) (per curiam), reh'g en banc
denied, 504 F.3d 973 (9th Cir. 2008), as extended by Husyev v. Mukasey,
528 F.3d 1172 (9th Cir. 2008), to conclude that the Real ID Act of 2005 provides
the USCA with jurisdiction to review the BIA's ruling that the petitioner's second
application for asylum was untimely and not excused by extraordinary circumstances.
However, for the reasons he offered in his dissent from the denial of rehearing
en banc, Judge O'Scannlain continued to believe that Ramadan had been wrong
decided. O'Scannlain (concurring) and Hawkins, Circuit Judges, and Selna,
District Judge. Per Curiam. E. Brasil of San Francisco, CA, for the petitioner;
S. Maloney of Washington, DC, for the respondent. (Download the full text of this decision
at www.ce9.uscourts.gov/) 45) IMMIGRATION: Zhu v. Mukasey, 06-72967 (9th Cir. July 31, 2008). Zhu sought review of the BIA's order affirming an opinion of the Immigration Judge ("IJ") denying Zhu's application for relief from removal. The BIA adopted the IJ's opinion holding that Zhu's testimony was not credible, and that her testimony, even if believed, did not establish eligibility for asylum. The USCA granted Zhu's petition for review and remanded for further proceedings. It held that the IJ's finding that the petitioner did not suffer mistreatment on a protected ground was not supported by substantial evidence. Zhu's testimony adequately established that the police repeatedly sought to arrest her on the basis of a political opinion imputed to her as the result of her whistle-blowing (which took the form of writing the government to inform it that a government official had raped her). She thus satisfied the requirement for asylum that she be mistreated "on account of" a protected ground-in this case, political opinion. Having held that the BIA's credibility finding was not supported by substantial evidence, and that the police sought to arrest her "on account of" a protected ground, the USCA granted the petition for review and remanded to the BIA for a determination whether Zhu is eligible for relief. Judge Gould concurred but wrote separately to emphasize his personal view regarding the IJ's adverse credibility finding based on the IJ's unsupported view that a rape victim in the petitioner's position would have gone to a doctor. The majority correctly rejected the IJ's position as speculation and conjecture. Judge Gould added that in many parts of the world, a young woman's report of a rape is likely to bring shame and discredit upon her and her family, as much as it is likely to result in any prosecution of the wrongdoer. Because the victim may be blamed for a rape or in any event subject to some level of disgrace for it, it is understandable that a young woman like the petitioner might prefer to maintain silence about a rape. This, he said, is all the more so where the rapist is a powerful person in the community. W. Fletcher and Gould (concurring), Circuit Judges, and Pollak (author), District Judge. D. Su of Monterey Park, CA, for the petitioner; S. Manickam of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 46) IMMIGRATION: Nehad v. Mukasey, 07-70606 (9th Cir. July 31, 2008). Nehad petitioned for review of an order denying his motion to reopen removal proceedings on the basis of ineffective assistance of his counsel. This is an atypical ineffective-assistance claim, inasmuch as counsel's alleged ineffectiveness derived not from the giving of incompetent advice, but from pressuring his client into accepting voluntary departure under threat of counsel's withdrawal. The USCA granted the petition for review and remanded with instructions to the BIA to reopen petitioner's case. The counsel's deficient performance and the prejudice resulting from it added up to a violation of Nehad's Fifth Amendment right to due process. W. Fletcher and Gould, Circuit Judges, and Pollack (author), District Judge. C. Choteau of San Diego, CA, for the petitioner; J. Bashyrov of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 47) AGGRAVATED IDENTITY THEFT: USA v. Miranda-Lopez, 07-50123 (9th Cir. July 17, 2008). The defendant, a citizen of El Salvador who had previously been deported from the U.S., was indicted for trying to enter the U.S. using a resident alien card in the name of "Jorge A. Carcia Fregoso." He was charged with two counts-illegal reentry under 8 USC Sec. 1326(a) and (b) and aggra-vated identity theft in violation of 18 USC Sec. 1028A(a)(I). Following the D.C. Circuit, the USCA held that the crime of aggravated identity theft requires proof that, among other things, the defendant knew that the means of identification belonged to another person. It is not enough to prove only that the defendant knew he was using false documents. Dissenting in part, Judge Bybee thought the majority, like the D.C. Circuit before it, had read into Sec. 1028A(a)(1) a second "knowing " requirement, and such a requirement could not peaceable be read into the nearly identical subsequent subsection. He would hold that a person violated Sec. 1028A(a)(1) if he know-ingly transfers, possesses or uses, without lawful authority, a means of identification that belongs to another person, even if the gov-ernment cannot prove that he had actual knowledge that the identification belongs to another person. He would affirm the judgment of the district court. Silverman (author), Berzon, and Bybee (dissenting in part), Circuit Judges. K. Rutman of San Diego, CA, for the defendant-appellant; K. Hoffman of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 48) FALSE IDENTIFICATION: USA v. Fuller, 07-30114 (9th Cir. July 8, 2008). Fuller was convicted of possession of an identifi-cation document that appears to be made by or under the authority of the United States which is stolen or produced without lawful au-thority, in violation of 18 USC Sec. 1028(a)(6). At issue on appeal was whether the government must prove that the identification document appeared to be issued by a real agency of the United States. The USCA held that the government does not need to make such a proof and thus affirmed Fuller's conviction. Kleinfeld, Tashima (author), and Tallman, Circuit Judges. T. Staab of Spokane, WA, for the appellant; AUSA N. Cook of Coeur d'Alene, ID, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 49) HUMAN SMUGGLING: USA v. Singh, 07-30150 (9th Cir. July 17, 2008). Singh was convicted on several counts related to his role in a human smuggling conspiracy. This appeal raised two issues regarding his conviction for bringing an alien to the U.S. for the purposes of financial gain. Singh maintained that there was insufficient evidence to establish that he brought, or aided and abetted the bringing of, an alien into the U.S. as alleged in Court 10. He also challenged his sentence under Apprendi v. New Jersey, 530 US 466 (2000). The USCA affirmed his conviction and sentence. The jury instructions referenced only one burden of proof: "beyond a reason-able doubt." While it would have been better for the jury instructions or the special verdict form itself to have stated specifically that the financial gain question required proof beyond a reasonable doubt, in view of the overall instructions, the specificity of the special verdict form, and the single burden-of-proof instruction, there is no reasonable likelihood that the jury applied another other burden of proof that would constitute constitutional error. Finally, the USCA noted that there could be no serious dispute about the financial gain component. From the start, Singh was insistent that he needed and wanted to make money and he was ultimately paid for his participation. B. Fletcher, McKeown (author), and Paez, Circuit Judges. R. Leen of Seattle, WA, for the appellant; AUSA H. Brunner of Seattle, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 50) ALIEN SMUGGLING / CHILD PROTECTION: USA v. Byun, 07-10254 (9th Cir. July 1, 2008). Byun and her husband owned and operated a night club in Guam in which Byun maintained two rooms where female employees could engage in sexual acts with the club's customers. Byun also arranged for her female employees to leave the club with clients and have sex with them for a fee. She was indicted on four counts of alien smuggling, including one of importing aliens into the U.S. for purposes of prostitution and one of transporting a minor in foreign commerce with the intent that the minor engage in prostitution. After she pleaded guilty to violating 8 USC Sec. 1328 ("importation into the United States of any alien for the purpose of prostitution") the district court determined that she had committed a "sex offense" within the meaning of Sec. 111 of Title I of the Adam Walsh Child Protection and Safety Act of 2006 and was thus subject to the Act's registration requirements. Byun appealed, maintaining that her offense is not covered by the Act. The USCA concluded that Byun's offense was a "specified offense against a minor" and thus a "sex offense within the meaning of the Act. Gibson, Berzon (author), and Bea, Circuit Judges. H. Trapp of Hagatna, GU, for the appellant; K. Gringas of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 51) CONFESSIONS: Moore v. Czerniak,
04-15713 (9th Cir. July 28, 2008). Moore's taped confession was obtained by the
police by means that the state concedes were unconstitutional. It was not contested
that Moore's confession was involuntary. However, Moore's lawyer filed to recognize
that the confession was inadmissible, even though it was unconstitutional for
two separate reasons. It was impermissibly extracted by a promise of leniency,
and it was obtained in violation of Edwards v. Arizona, 451 US 477 (1981),
as Moore had asked for counsel before making the confession but his request was
ignored. As a result of his ineptitude, not because of any strategic reasons,
Moore's lawyer failed to move to suppress the confession and advised Moore that
a plea to felony murder was "the best [they] could do under the circumstances."
Moore pled no contest to that charge. The USCA held that there could be no serious
doubt that Moore's counsel was ineffective and that Moore was deprived of his
basic constitutional rights under the Sixth Amendment, as clearly established
in Strickland v. Washington, 466 US. 668 (1984). Moreover, the USCA could
not find that counsel's failure to move to suppress the confession was harmless.
Moore was prejudiced by his counsel's failure to file the suppression motion and
that, because counsel's performance fell below an objective standard of reasonableness,
he received ineffective assistance of counsel. It is likely that, but for counsel's
failure to file a suppression motion, Moore would have not entered into the plea
agreement that required him to plead no contest to a felony murder charge with
a mandatory 25 year sentence. Moore thus was entitled to a writ of habeas corpus
directing the state to permit him to withdraw his plea or to release him
from custody. Judge Berzon concurred. But because the state, by forfeiture, had
acknowledged that Moore's confession was involuntary for the purposes of this
appeal, Judge Berzon saw no reason to reach that issue de novo. She thus
did not concur in footnote 10 of the majority's opinion, which did so. Dissenting,
Judge Bybee said he could not join any part of the majority's opinion. He thought
the majority was wrong on the facts, wrong on the law, and failed to accord the
state court decision the deference required by the Antiterrorism and Effective
Death Penalty Act. He thought it was not clear what the majority had accomplished,
for Moore or for anyone else since the majority granted Moore a writ of habeas
corpus and ordered the state either to permit him to withdraw his plea or to release
him. Oregon will surely allow Moore to withdraw his plea and then prosecute him
to the hilt. When it does, it will be under no obligation to offer him any kind
of deal, and if it does decide to bargain, it has no obligation to offer Moore
a plea bargain as attractive as what he got in this case. It might even seek the
death penalty. Even if Oregon were to offer a new plea deal, Moore's counsel must
reject it until he has filed every conceivable pre-trial motion he can. After
the majority's decision, no conscientious defense attorney should even consider
accepting a plea deal-no matter how good the bargain and no mater what other evidence
the prosecutor has-if there are potentially "meritorious" motions that
can be filed. Reinhardt (author), Berzon (concurring), and Bybee
(dissenting), Circuit Judges. B. Creel of Portland, OR, for the petitioner;
H. Myers of Salem, OR, for the respondent. (Download the full text of this decision
at www.ce9.uscourts.gov/) 53) WARRANTLESS SEARCES: USA v. Caseres, 06-50546 (9th Cir. July 21, 2008). Caseres appealed the district court's denial of his motion to suppress evidence discovered during a warrantless search of his car. After the district court denied his motion to sup-press, he entered a conditional guilty plea to a violation of 18 USC Sec. 922(g)(1), which prohibits felons from possessing ammunition. The USCA reversed the district court's denial of the motion to suppress and remanded for further proceedings. Because the govern-ment failed to show that an exceptions to the probable cause requirement applied, the USCA held that the search of Caseres' car with-out probable cause violated the Fourth Amendment. The evidence obtained as a result of the unlawful search had to be suppressed. Bright, Pregerson (author), and Wardlaw, Circuit Judges. DFPD J. Libby of Los Angeles, CA, for the appellant; AUSA T. O'Brien of Los Angeles, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 54) SENTENCING: USA v. Jimenez, 07-10399 (9th Cir. July 23, 2008). Jimenez is a prisoner being held in Florence, Arizona pending designation to a Bureau of Prisons facility. After pleading guilty to Unlawful Reentry of a Deported Alien, he was sentenced to 46 months imprisonment. The district court imposed a 16-level enhancement for his two prior convictions of Unlawful Use of a Commu-nication Facility, 21 USC Sec 843(b), which it found to be "drug trafficking offenses" pursuant to Sentencing Guidelines Sec. 2L1.2(b)(1)(A)(i). Jimenez appealed, arguing that his prior convictions did not qualify as "drug trafficking offenses under the Guidelines, but were merely "aggravated felonies" warranting only an 8-level enhancement pursuant to Guideline Sec. 2L1.2(b)(1)(C). The USCA affirmed. Jimenez's prior convictions under Sec. 843(b) qualify as "drug trafficking offenses under Sec. 2L1.2(b)(1)(A)(i) as reasoned in USA v. Orihuela, 320 F.3d 1302, 1305 (11th Cir. 2003). B. Fletcher and Rymer, Circuit Judges, and Duffy (author), District Judge. AUSA R. Bork of Las Vegas, NV, for the appellee; AFPD B. Weksler of Las Vegas, NV, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 55) SENTENCING: USA v. Warr, 07-30125 (9th Cir. July 2, 2008). Warr appealed his 120-month sentence after pleading guilty to nine counts of Wildlands arson in violation of 18 USC 1855. On appeal, he maintained that the district court erred in calculating the advisory sentencing guidelines range by including fire suppression costs in the loss calculation, resulting in an elevated total offense level. He also asserted that the district court imposed an unreasonably long sentence. Finally, he argued that the district court erred by relying at the sentencing hearing on a statistical study about recidivism by young offenders without providing advance notice to Warr. The USCA rejected Warr's arguments and affirmed his sentence. The district court did not err in its calculation of the advisory sentencing guidelines range, nor did it impose an unreasonable sentence. Although the district court should not have relied on the Bureau of Prisons' study at sentencing without notifying Warr in advance, its failure to provide advance notice was not plain error. Kleinfeld, Tashima, and Tallman (author), Circuit Judge. K. DeSoto of Missoula, MT, for the appellant; AUSA L. Johnson of Missoula, MT, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 56) SENTENCING: USA v. Evans-Martinez, 05-10280 (9th Cir. July 2, 2008). The defendant was sentenced to 15 years imprisonment after pleading guilty to sexual abuse of a minor, sexual exploitation of minors and witness tampering. He timely appealed on the ground that the district court failed to provide adequate notice of its intent to sentence him above the term suggested by the Guidelines. Fed. R. Crim. P. 32(h) requires that a district court provide notice of the potential it will depart from the Guidelines range. At issue was whether this requirement survived USA v. Booker, 543 US 220 (2005). The USCA held that it did and vacated the sentence and re-manded. Beezer (author) and Fisher, Circuit Judges, and Timlin, District Judge. P. Wolff of Honolulu, HI, for the appellant; AUSA L. Tong of Honolulu, HI, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 57) SENTENCING: USA v. Whitehead, 05-50458 (9th Cir. July 14, 2008). Whitehead sold over $1 million worth of counterfeit "access cards" that allowed his customers to access DirectTV's digital satellite feed without paying for it. The jury convicted him of breaking the Digital Millennium Copyright Act which forbids the sale of devices that are designed to circumvent a technological measure that protects copyrighted works. The district court calculated a Guidelines range of 41 to 51 months, but imposed a more lenient sentence of probation, community service and restitution. The government appealed, arguing that this below-Guidelines sentence was unreasonable, and Whitehead cross-appealed, claiming that the indictment and jury instructions omitted an element of the crime. Neither party disputed the district court's Guideline calculations. The USCA deferred submission pending its en banc decision in USA v. Carty, 520 F.3d 984 (9th Cir. 2008). It then affirmed, finding no abuse of discretion in the district court's conclusion that a substantial amount of community service (1000 hours), a hefty restitution order ($50,000) and five years of supervised release were more appropriate than prison. The district court was in a superior position to find the relevant facts and to judge their import. The district court did not abuse its discretion in so doing. Dissenting, Judge Bybee noted that Whitehead will serve no jail time for pirating a million dollars worth of "access cards" and selling them on the internet to persons who use them to steal satellite television service from Direct TV. The advisory Guidelines, after taking into account Whitehead's personal circumstances, called for a sentence of 41-51 months. Whitehead walked with probation, restitution, and community service. This, Judge Bybee said, was not an exercise of discretion so much as an abdication of responsibility. Being deferential does not, he added, mean turning a blind eye to an injustice. Kozinski, O'Scannlain, and Bybee (dissenting), Circuit Judges. Per Curium. AUSA M. Raphael of Los Angeles, CA, for the appellant; N. Marino of Beverly Hill, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 58) HABEAS CORPUS: USA v. Lopez, 07-35389 (9th Cir. July 16, 2008). Lopez filed a habeas motion in the district court seeking to vacate her drug conviction because the government withheld until long after her trial potentially damaging credibility information about one of the government's principal witnesses, in violation of the government's disclosure obligations under Brady v. Maryland, 373 US 83 (1963). The district court rejected the government's argument that the court lacked jurisdiction to hear the motion because it was barred by 28 USC Sec. 2255 as "second or successive," and denied the motion on its merits. The USCA held that the motion was a second or successive habeas motion that, under Sec. 2255(h), required USCA certification before it could be heard by the district court. The district court thus erred in reaching the merits because it lacked jurisdiction. Fisher (author), Gould, and Ikuta, Circuit Judges. AUSA S. Whitaker of Spokane, WA, for the appellee; B. Bollinger of Spokane, WA, for the appellant. (Download the full text of this decision at www.ce9.uscourts.gov/) 59) HABEAS CORPUS / JURY SELECTON: Green v. LaMarque, 06-16254 (9th Cir. July 17, 2008). While selecting a jury for a criminal trial in Alameda County, California, the prosecutor used peremptory challenges to exclude all six African-Americans on the jury panel. The African-American defendant claimed that the prosecutor based these challenges on race. The prosecutor then offered race-neutral reasons. However, the USCA concluded that these reasons also applied to unchallenged white jurors, and, this disparity in treatment convinced it that the non-racial reasons claimed by the prosecutor were pretext. Because the elimination of even a single juror due to race taints the trial, the USCA reversed the district court's denial of the writ of habeas corpus. W. Fletcher and Bea (author), Circuit Judges, and Miller, District Judge. A. Kutchins of Berkeley, CA, for the appellant; C. rove of Oakland, CA, for the ap-pellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 60) HABEAS CORPUS: Tablada v. Thomas, 07-35538 (9th Cir. July 3, 2008). Tablada, an inmate at the Federal Correctional Institute in Sheridan, Oregon, had been convicted of a narcotics offense and sentenced to a 20-year term of imprisonment, followed by 10 years of supervised release. As of February 2007, his projected release date, taking into consideration his good time credit, was April 16, 2008. On October 31, 2006, he filed an amended habeas petition under 28 USCA Sec. 2241 challenging the calculation of his good time credits by the Bureau of Prisons ("BOP") pursuant to the good time credit statute, 18 USC Sec. 3624(b). He argued that in promulgating its method for calculation of good time credit in 28 CFR Sec. 523.20 and Program Statement 5880.28, Sentence Compu-tation Manual, the BOP failed to articulate a rational basis for its interpretation of the federal statute, thus violating 5 USC Sec. 706(2)(A). The district court found the BOP's interpretation in Sec. 523.20 reasonable and not in violation of Sec. 706(2(A) of the Administrative Procedure Act. The BOP admitted it violated Sec. 706(2)(A) in failing to set forth a valid rationale for its interpretation of the good time statute when it promulgated 28 CFR Sec. 523.20. Still, invalidating Sec. 523.20 left in place the same interpretation of Sec. 3624(b) contained in BOP Program Statement 5880.28. The USCA held that the BOP's methodology for calculating good times in Program Statement 5880.28 was reasonable and persuasive under Skidmore v. Swift & Co., 323 US 134 (1944). It thus affirmed the district court's denial of Tablada's habeas petition. Berzon and Bea, Circuit Judges, and Gutierrez (author), Circuit Judges. S. Sady of Portland, OR, for the petitioner; AUSA S. Asphaug of Portland, OR, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 61) HABEAS CORPUS: Houston v. Schomig, 06-15523 (9th Cir. July 22, 2008). Houston, a Nevada state prisoner, appealed the district court's judgment denying his habeas petition which challenged his jury trial conviction for conspiracy to commit murder, three counts of attempted murder with the use of a deadly weapon, and three counts of discharging a firearm out of a motor vehicle. He ar-gued that his Sixth Amendment rights were violated when the state trial court denied his motion to continue the trial so he could be represented by retained counsel, and denied his appointed counsel's motion to withdraw based on a conflict of interest arising from the public defender's prior representation of the prosecution's star witness. The USCA held that the trial court's denial of Houston's motion to continue the trial did not violate the Sixth Amendment and that the Nevada Supreme Court's rejection of this claim was neither contrary to, nor an unreasonable application of, federal law. The USCA vacated and remanded for an evidentiary hearing to determine whether Houston's right to conflict-free counsel was violated. Dissenting in part, Judge Smith thought the majority's approach would burden district courts with evidentiary hearings even on obviously unmeritorious Sixth Amendment claims. He would affirm the denial of the petition. Canby and M.D. Smith (dissenting in part), Circuit Judges, and Larson (author), District Judge. AFPD A. Traum of Las Vegas, NV, for the petitioner; DAG R. Hulse of Las Vegas, NV, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 62) HABEAS CORPUS / EVIDENCE / JURY INSTRUCTIONS: USA v. Mejia, 06-16460 (9th Cir. July 25, 2008). Mejia ap-pealed the district court's denial of his habeas petition with respect to state convictions for two counts of kidnapping, two counts of assault with a firearm, and one count of assault with a deadly weapon. At issue on appeal was whether infirm jury instruction read at trial violated Mejia's due process rights under In re Winship, 397 US 358 (1970), and whether the admission of evidence of prior un-charged sexual offenses against Mejia's daughter violated clearly established Supreme Court precedent. The USCA affirmed, finding that the infirm jury instructions did not violate Mejia's rights under Winship with respect to the kidnapping and assault convictions and that the admission of the uncharged sexual offenses did not violate clearly established Supreme Court precedent. The most likely interpretation of the instructions was that they allowed an impermissible inference only as to the sexual offense charges, but not as to the remaining charges. The Supreme Court has never said that the introduction of evidence of uncharged offenses necessarily offends due process. The introduction of this evidence in the context of this case did not render the trial fundamentally unfair. Gould (author), Clifton, and N.R. Smith, Circuit Judges. S. Luban of Oakland, CA, for the petitioner; AAG D. Gillette of Sacramento, CA, for the re-spondents. (Download the full text of this decision at www.ce9.uscourts.gov/) 63) HABEAS CORPUS / CIVIL DETENTION: Prieto-Romero v. Clark, 07-35458 (9th Cir. July 25, 2008). This appeal arose from the district court's denial of Prieto-Romero's habeas petition concerning whether the government may continue to detain a legal permanent resident of the U.S. for over three years while he seeks administrative and judicial review of his removal order. The USCA held that this civil detention, although lengthy, is authorized by statute. An alien whose removal order is administratively final, but whose removal is stayed pending the court of appeals' resolution of a petition for review, maybe be subject to detention under 8 USC Sec. 1226(a). Section 1226(a) does not manifest a clear congressional intent to authorize prolonged and indefinite detention; and, applying the canon of constitutional avoidance, the USCA construed that statute as not authorizing such detention. Still, the USCA rejected the petitioner's challenge to his detention. The detention remains statutorily authorized because the petitioner had not shown that there is no significant likelihood of his removal in the reasonable foreseeable future. The government will be able to remove him to Mexico in the event that his petition for review of his administratively final order of removal is denied. He has not been denied procedural due process while in custody. He received a bond hearing that afforded him an individualized determination of the government's interest in his continued detention by a neutral decisionmaker. The Immigration Judge ("IJ") held that he was not a flight risk or a danger to the community, and so merited release on bond. The IJ's subsequent discretionary judgment that a $15,000 bond was necessary to ensure that the petitioner would appear at removal is not subject to judicial review. Farris, Fisher (author), and M.D. Smith, Circuit Judges. M. Adams of Seattle, WA, for the petitioner; G. Juncaj of Washington, DC, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/) 64) PRISONERS' RIGHTS: O'Neal v. Price, 06-15591 (9th Cir. July 14, 2008). Section 1915(g) of the Prison Litigation Reform Act of 1995 ("PLRA") precludes a prisoner from proceeding in forma pauperis if on three or more prior occasions he incurred a "strike"-that is, brought an action that was dismissed because it was frivolous, malicious, or failed to state a claim. Here, O'Neal challenged the district court's determination that he incurred three strikes. Agreeing that the three prior actions identified by the district court constituted "strikes," the USCA affirmed. Dissenting in part, Judge Thomas thought that the PLRA has the laudable goal of screening frivolous prisoner lawsuits early in the litigation and deterring prisoners from filing multiple frivolous actions. The PLRA and the power of courts to enter pre-filing orders against vexatious litigants provide ample means of controlling frivolous and malicious prisoner litigation without distorting our fundamental concept of what constitutes a civil action. A denial of leave to proceed in forma pauperis, however, does not result in the dismissal of the action. It has no effect on whether the prisoner can proceeding with the action. It has no res judicata effect. Judge Thomas thus thought that the denial of an application to proceed in forma pauperis should not constituted a strike under Sec. 1915(g). Thomas (dissenting in part), Tallman, and Ikuta (author), Circuit Judges. A. Grace of Stockton, CA, for the appellant; DAG M. O'Carroll of Sacramento, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)
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