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| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
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1) TAXATION:
Johanson v. CIR, 06-75623 (9th Cir. Sept. 3, 2008). Spousal support
paid pursuant to a divorce settlement agree-ment is deemed "alimony"-income
to the recipient and deductible by the payor-if, among other things, the payments
are to terminate on the death of the payee spouse. Here, the marital settlement
agreement did not expressly state what would happen to the payments in the event
of the payee's death. The USCA held that the Tax Court correctly looked to state
law to determine whether they would survive the payee's death. Under California
Family Code Sec. 4337, spousal support terminates on the death of either spouse
unless the parties expressly agree in writing to the contrary. The Tax Court held
that the payments in this case were alimony because the payee failed to clearly
and convincingly establish, as required by California law, that the payments would
continue past her death. O'Scannlain and Silverman (author), Circuit Judges,
and Singleton, District Judge. M. O'Connell of Washington, DC, for the petition-ers;
R. Moriarty of Washington, DC, for the respondent. (Download the full text of this decision
at www.ce9.uscourts.gov/) 2) BANKRUPTCY: In re Rosson, 06-35724 (9th Cir. Sept. 24, 2008). Unable to pay his debts, Rosson filed a voluntary petition for protection under Chapter 13. For almost a year, he assured the court and his creditors that he would soon be receiving several hundred thousand dollars in an arbitration award, and that he would use that money to fund his proposed Chapter 13 plan. But, when the money finally came in, Rosson failed to deliver it to the trustee as the bankruptcy court had ordered him to do. Upon discovering that the award had not been delivered to the trustee, the bankruptcy court found that Rosson was "rebelliously" and "horsing around" with estate assets and, on its own motion, converted the Chapter 13 case into one under Chapter 7. But, before the court filed the formal conversion order, Rosson invoked his right to voluntarily dismiss his Chapter 13 petition under 11 USC Sec. 1307(b). The bankruptcy court denied the request for dismissal and converted the case. Relying on Beatty v. Traub, 162 B.R. 853 (BAP 9th Cir. 1994), Rosson appealed, asserting that Sec. 1307(b) afforded him an "absolute" right to voluntarily dismiss his Chapter 13 case at any time prior to the filing of a conversion order, and that the bankruptcy court abused its discretion by denying his request for dismissal. In affirming, the USCA clarified that, after Marrama v. Citizens Bank of Massachusetts, 127 S.Ct. 1105 (2007), a debtor's right to voluntarily dismiss a Chapter 13 case under Sec. 1307(a) is qualified by an implied exception for bad-faith conduct or abuse of the bankruptcy process. The bankruptcy court did not clearly err in finding bad-faith here. Although it failed to provide Rosson with adequate notice and hearing before converting the case to Chapter 7, Rosson could not show prejudice from the bankruptcy court's deficient procedures. The USCA thus affirmed. B. Fletcher and Paez (author), Circuit Judges, and Schwarzer, District Judge. R. McCarvel of Seattle, WA, for the debtor; D. Gebben of Bellevue, WA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 3) BANKRUPTCY: In re Tippett, 06-15411 (9th Cir. Sept. 4, 2008). After filing a joint Chapter 7 petition in bankruptcy and without authorization, Craig and Christine Tippett retained a realtor and sold their homestead in Sacramento County, California to Seitu Coleman. The trustee in bankruptcy had not recorded the Tippetts' Chapter 7 petition in the office of the Sacramento County Recorder, and the Tippetts had not revealed their bankruptcy to either their realtor or Coleman. It was undisputed that Coleman was a bona fide purchaser under California law. The trustee filed an adversary proceeding seeking, inter alia, to quiet title to the residence in the bank-ruptcy estate. The bankruptcy court ruled in favor of the trustee. On appeal, the Bankruptcy Appellate Panel reversed and entered judgment in favor of Coleman and his purchase-money lenders. The USCA affirmed. It held that the Bankruptcy Code does not pre-empt California's bona fide purchaser statute as it applied to this transaction. In addition, the USCA adhered to the established propo-sition that the automatic stay triggered by a debtor's bankruptcy petition does not void transfers of estate property initiated by the debtor. B. Fletcher, Canby (author), and Rawlinson, Circuit Judges. G. Hughes of Roseville, CA, for the appellant; M. Olden of Sac-ramento, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 4) BANKRUPTCY / COPYRIGHTS: In re Barboza, 06-56219 (9th Cir. Sept. 23, 2008). After a jury trial in district court, Lucia and her husband Antonio Barboza ("appellants") were found liable court for the willful infringement of New Form, Inc.'s copyright in certain Spanish language films. The district court instructed the jury that "willful infringement" requires a showing by a preponderance of the evidence that the appellants "knew that they were infringing [New Form's] copyrights or that they acted with reckless disregard as to whether they were doing so." After judgment was entered, the appellants filed for bankruptcy and sought to discharge the judgment award. The bankruptcy judge held on summary judgment that the judgment award was nondischargeable under 11 USC Sec. 523(a)(6) as a "willful and malicious injury" based upon the jury's finding of willful infringement and uncontroverted evidence of the appellants' know of the appellee's copyright interest. The BAP affirmed and held that a statutory award of damages for willful copyright infringement is a debt for a "categorically harmful activity," which is nondischargeable under Sec. 523(a)(6) "if the Bankruptcy Court determines that the infringer had the requisite subjective intent to injure another's property interest." The BAP held that the uncontroverted evidence of knowledge of the creditor's copyright interest at the time of infringement was proof of their "substantial certainty" of resultant harm. The USCA reversed and remanded for further consideration because: (1) there is a genuine issue of material fact as to whether the infringement as a "willful" injury within the meaning of Sec. 523(a)(6) of the Bankruptcy Code; and (2) the "malicious" requirement was not addressed separately from the "willfulness" requirement as required by the Circuit's precedent. Canby and Bybee, Circuit Judges, and Hunt (author), District Judge. C. Wied of San Diego, CA, for the appellants; R. Weiner of Encino, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 5) COPYRIGHTS Asset Marketing Systems, Inc. v. Gagnon, 07-55217 (9th Cir. Sept. 9, 2008). Gagnon, doing business as Mister Computer, appealed from a grant of summary judgment in favor of Asset Marketing Systems ("AMS"). He maintained that AMS infringed his copyright in six computer programs that he wrote for AMS by continuing to use and modify them without his consent, and that AMS misappropriated trade secrets contained in the programs' source code. Gagnon also challenged the denial of his ex parte application for an order denying or continuing summary judgment. The district court held that Gagnon had granted AMS an unlimited, non-exclusive, implied license to use, modify, and retain the source code of the programs that defeated his copyright infringement and trade secret misappropriation claims. It also denied Gagnon's ex parte application. The USCA affirmed the district court. Silverman, Rawlinson, and M.D. Smith (author), Circuit Judges. T. Moore of San Diego, CA, for the appellant; J. Morris of San Diego, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 6) COPYRIGHTS Omega, S.A. v. Costco Wholesale Corporation, 07-55368 (9th Cir. Sept. 3, 2008). At issue here was whether Quality King Distributors, Inc. v. L'anza Research Intl., Inc., 523 US 135 (1998), requires the Ninth Circuit to overrule its precedents that allow a defendant in a copyright infringement action to claim the "first sale doctrine" of 17 USC Sec. 109(a) as a defense only where the disputed copies of a copyrighted work are either made or previously sold in the United States with the authority of the copyright owner. Omega filed claims for infringing distribution and importation under 17 USC Secs. 106(3) and 602(a) in response to Costco's unauthorized sale of authentic, imported Omega watches bearing a design registered at the U.S. Copyright Office. The district court granted summary judgment to Costco on the basis of the fist sale doctrine and awarded attorneys' fees. The USCA reversed. It held that the Ninth Circuit has construed Sec. 109)(a) to provide no defense to an infringement action under Secs. 106(3) and 602(a) that involves (1) foreign-made non-piratical copies of a U.S.-copyrighted work, (2) unless those same copies have already been sold in the U.S. with the copyright owner's authority. The USCA held that the first portion of this construction is not "clearly irreconcilable" with Quality King, and that it remains the law of the Circuit. Moreover, because there was no genuine dispute that Omega made the copies of the Omega Globe Design in Switzerland, and that Costco sold them in the U.S. without Omega's authority, the "first sale" doctrine was unavailable as a defense to Omega's claims. Silverman, Rawlinson, and M.D. Smith (author), Circuit Judges. D. Richman of Los Angeles, CA, for the appellant; A. Moss of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 7) TELECOMMUNICATONS LAW: Sprint Telephony PCS, L.P. v. County of San Diego, 05-56076 (9th Cir. Aug. 11, 2008). The Telecommunications Act of 1996 precludes state and local governments from enacting ordinances that prohibit or have the effect of prohibiting the provision of telecommunications services, including wireless services. In 2003, the County of San Diego enacted a Wireless Telecommunications Facilities ordinance which imposes restrictions and permit requirements on the construction and location of wireless telecommunications facilities. Sprint Telephony sued, alleging that, on its face, the Ordinance prohibits or has the effect of prohibiting the provision of wireless telecommunications services, in violation of the Act. The district court permanently enjoined the County from enforcing its Ordinance and a three-judge Ninth Circuit panel affirmed. The Circuit then granted an en banc rehearing and reversed. The Act preempts any state or local law that actually or effectively prohibits provision of telecommunications services. Judge Gould concurred but wrote separately to add his view that normally local government will have the ability to enforce reasonable zoning ordinances that might affect where and how a cellular tower is located, but that will not effectively prohibit cellular telephone service. Cases of a preempted zoning ordinance will doubtless be few and far between, Judge Gould thought, and the record in this case shows that telecommunication services were not effectively barred by zoning ordinance. Kozinski, Kleinfeld, Hawkins, Tashima, Thomas, Silverman, Graber (author), Gould (concurring), Berzon, Tallman, and Bybee, Circuit Judges. D. Pascucci of San Diego, CA, for the appellant; T. Bunton of San Diego, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 8) SECURITIES FRAUD: South Ferry LP, #2 v. Killinger, 06-35511 (9th Cir. Sept. 9, 2008). The defendants appealed the district court's partial denial of their motion to dismiss a securities fraud action brought by South Ferry LP, which alleged violations of Sec. 10(b) and 20(a) of the Securities Exchange Act of 1934, and its underlying regulations, found at Rule 10b-5, 17 CFR Sec. 240.10b-5. The defendants maintained that the district court erred by inferring that they had knowledge of "core operations" at Washington Mutual ("WAMU") based on their management positions and argued that such an inference did not satisfy the heightened pleading requirements of the Private Securities Litigation Reform Act of 1995 ("PSLRA"). The district court certified for interlocutory appeal its order granting in part and denying in part the defendants' motion to dismiss. The USCA vacated the district court's order with respect to the PSLRA scienter requirement and remanded for further proceedings consistent with Tellabs, Inc. v. Makor Issues and Rights, Ltd., 127 S.Ct. 2499 (2007). The district court and the parties at the time of the certified order were without the benefit of much of the case law underlying the USCA current opinion, including the Supreme Court's guidance on theory in Tellabs. The USCA thus concluded that the district court in the first instance, with its detailed knowledge of the facts, should have the opportunity to review the defendants' motion to dismiss under the appropriate standard. Fisher, Gould (author), and Ikuta, Circuit Judges. S. Rummage of Seat-tle, WA, for the appellant; M. Weiss of New York, NY, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 9) CLEAN WATER ACT: Fairbanks North Star Borough v. U.S. Army Corps of Engineers, 07-35545 (9th Cir. Sept. 12, 2008). The Clean Water Act ("CWA") makes it unlawful to discharge dredged and fill materials into the waters of the United States except in accord with a permitting regime jointly administered by the Army Corps of Engineers and the Environmental Protection Agency. Fairbanks North Star Borough sought judicial review of a Corps' "approval jurisdictional determination," which is a written, formal state-ment of the Corps' view that Fairbanks' property contained waters of the United States and would be subject to regulation under the CWA. The USCA affirmed the district court's dismissal on the pleadings for lack of jurisdiction. The Corps' approved jurisdictional determination is not final agency action within the meaning of the Administrative Procedure Act. D.W. Nelson, Tashima, and Fisher (author), Circuit Judges. J. Miller of Fairbanks, AK, for the appellant; S. Rusak of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 10) ENVIRONMENTAL LAW / GENETICALLY MODIFIED ALFALFA: Geertson Seed Farms v. Johanns, 07-16458 (9th Cir. Sept. 2, 2008). In the 1990s, Monsanto Company began developing alfalfa that would be resistant to one of its leading herbicides. The Dept. of Agriculture, through the Animal and Plant Health Inspection Service ("APHIS"), approved this genetically modified alfalfa in 2005. But, the district court enjoined future planting of this alfalfa, called "Roundup Ready alfalfa," pending the preparation by APHIS of an environmental impact statement ("EIS"). The injunction was limited in duration to the time necessary to complete the EIS. The injunction was sought by Geertson Seed Farms and Trask Family Seeds, conventional alfalfa-seed farms, together with several environmental groups, as they fear cross-pollination of the new alfalfa with conventional alfalfa, thereby possibly causing conventional alfalfa to disappear. Monsanto and its licensee, Forage Genetics, intervened on the side of the government defendants. The USCA affirmed, finding that the district court did not abuse its discretion in entering the injunction after holding a hearing on the nature of the violation of the National Environmental Police Act of 1969 ("NEPA"), plus two hearings on the scope of injunctive relief, as well as reviewing extensive documentary submissions relating to an appropriate remedy. The existence of the NEPA violation was not disputed on appeal. Dissenting, Judge Smith concluded that the district court's failure to conduct the requisite evidentiary hearing prevented him from joining the majority. It, he thought, correctly recognized that the district court was required to conduct an eviden-tiary hearing before issuing a permanent injunction under Fed. R. of Civil Procedure 65 unless the facts were undisputed, or the adverse party expressly waived its right to an evidentiary hearing. Charlton v. Estate of Charlton, 841 F.2d 988, 989 (9th Cir. 1988). Despite recognizing this clear precedent, the majority affirmed the district court's decision to proceed without the requisite evidentiary hearing, and, in so doing, created an altogether new exception to the evidentiary hearing requirement recognized in Charlton. However, Judge Smith noted that, given that the parties disputed the facts underlying the need for, and scope of, any injunctive relief, the first recognized exception to the evidentiary hearing requirement was unavailable. Charlton, 841 F.2d at 989. The second recognized exception was unavailable too. As the district court noted, Monsanto and Forage Genetics requested an evidentiary hearing apparently so the court could assess the viability of its witnesses' opinions regarding the risk of contamination if the conditions proposed by the U.S. Dept. of Agriculture, through the Animal and Plant Health Inspection Service ("APHIS") were imposed, as well as to resolve disputes with plaintiffs' witnesses. In discussing Monsanto's and Forage Genetics' request for an evidentiary hearing, the majority noted APHIS's failure to request an evidentiary hearing. However, Judge Smith found this failure insignificant given that Monsanto and Forage Genetics had already made their request. Because the parties did not consent to proceed without an evidentiary hearing, the other recognized exception to the evidentiary hearing requirement was unavailable. Given these fact, Judge Smith thought the USCA should reverse to allow the district court to conduct an evidentiary hearing. Schroeder (author) and N.R. Smith (dissenting), Circuit Judges, and Fairbank, District Judge. G. Kimbrell of Washington, DC, for the appellees; M. Kesselman of Washington, DC, for the intervenors. (Download the full text of this decision at www.ce9.uscourts.gov/) 11) ENVIRONMENTAL LAW / ATTORNEYS' FEES: Natural Resources Defense Council, Inc. v. Winter, 07-55294 (9th Cir. Sept. 16, 2008). The Secretary of the Navy appealed the district court's decision to award attorneys' fees to the plaintiffs pursuant to the Equal Access to Justice ACT ("EAJA"). The Secretary claimed that (1) the amount of the award for some of the attorneys working on the case should not have been enhanced above the statutory rate, (2) the limited extent of the plaintiffs' success merited a reduction in fees, and (3) the award of appellate fees was improper because the fee application was filed in the district court, not in the court of appeals. The USCA concluded that the district court did not abuse its discretion on the second and third issues. However, because the standard used by the district court to determine the first issue constituted an error law, the USCA vacated the fee award and remanded for additional fact finding and recalculation of fees. Canby, Bybee, and M.D. Smith (author), Circuit Judges. K. Kovacs of Washington, DC, for the appellants; R. Kendall of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 12) ARBITRATION / CARMACK AMENDMENT / REMOVAL JURISDICTION: White v. Mayflower Transit, 07-55528 (9th Cir. Sept. 12, 2008). This case arose out of an agreement between White and Mayflower Transit to ship White's personal effects from New York to Los Angeles. White was dissatisfied with Mayflower's work, claiming that several of his items were missing or damaged. The parties agreed to binding arbitration of the claims for loss and damage to White's goods. The arbitrator ruled in favor of Mayflower, but, as White believed that the arbitrator had been biased against him, he filed a complaint against Mayflower in state court, alleging "contractual fraud (forgery), insurance coverage, general negligence, property damage and intentional infliction of emotional distress." Mayflower removed the case to federal court, arguing that White's claims were exclusively governed by the Carmack Amendment to the Interstate Commerce Act. The district court denied White's motion to remand, holding that Mayflower had properly removed the case under 28 USC Sec. 1445(b). Mayflower then moved to confirm the arbitration award. The court granted the motion, holding that White had failed to present evidence of actual bias on the part of the arbitrator. It later direct White to file a second amended complaint setting forth any claims not preclude by the arbitration award. White filed a second amended complaint but it con-tained the same allegations as his first complaint. The court than granted Mayflowers motion to dismiss White's second amendment complaint, holding that all of White's claims fell within the scope of a final and binding arbitration award. The court also construed White's complaint as containing two possible cause of action for fraud / forgery and improper billing / overcharging. The district court held that the Carmack Amendment preempted these claims and dismissed White's complaint with prejudice. The USCA affirmed. First, the Carmack Amendment is a federal statute that provides the exclusive cause of action for interstate shipping contracts claims. It completely preempts state law claims alleging delay, loss, failure to deliver and damage to property. If a plaintiff brings a contact action against an interstate carrier for any of these reasons, and the amount in controversy exceeds $10,000, then the defendant may properly remove the case to federal court. White sued Mayflower for property damages and admitted that the amount in controversy exceeded $10,000. The district court properly exercised removal jurisdiction. Second, the USCA held that the Carmack Amendment preempts a claim for intentional infliction of emotional distress to the extent it arises from the same conduct as the claim for delay, loss or damage to shipped property. White's claim for intentional infliction of emotional distress was preempted because it was based solely on the same conduct giving rise to his claims for property damages. White's claims for property damage thus fell within the scope of a final and binding arbitration award. The Carmack Amendment provides a complete defense to White's claims for negligence, fraud and improper billing and preempts his claim for intentional infliction of emotional distress. Farris, Beezer (author), and Hall, Circuit Judges. Z. White pro se; G. Garfinkel of Woodland Hills, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 13) ENERGY: Fall River Rural Electric Cooperative v. FERC, 06-71944 (9th Cir. Sept. 10, 2008). Fall River Rural Electric Cooperative ("Fall River") petitioned for review of two Federal Energy Regulatory Commission ("FERC") orders. It had applied for a li-cense to construct, operate, and maintain a new hydroelectric power generating facility at Hebgen Dam on the Madison River in Gallatin County, Montana. In its orders the FERC dismissed Fall River's license application and denied Fall River's request to hold the proceeding in abeyance and also denied its request for a rehearing. The USCA denied Fall River's petition for review. It found that substantial evidence supported FERC's conclusion that the license held by Pennsylvania Power and Light Montana LLC ("PPL") would be substantially altered under Sec. 6 of the Federal Power Act by Fall River's proposed project, that the FERC's orders were consistent with its precedents and with its issuance of a preliminary permit, and that PPL did not impliedly consent to Fall River's proposed modifications. Reinhardt, Brunetti (author), and Fisher, Circuit Judges. P. Kissel of Washington, DC, for the petitioner; S. Soopper of Washington, DC, for the respondent. ((Download the full text of this decision at www.ce9.uscourts.gov/) 14) PROPERTY: Kingman Reef Atoll Investments v. USA, 07-16817 (9th Cir. Sept. 4, 2008). Kingman Reef Atoll Investments ("KRAI") filed this action against various U.S. departments and officers in their official capacities (collectively, the "U.S."), pursuant to the Quiet Title Act. KRAI sought to quiet title to Kingman Reef, a small, low-lying coral reef atoll located approximately 930 miles south of Honolulu, Hawaii. The district court dismissed KRAI's claim for lack of subject matter jurisdiction. The USCA affirmed because KRAI's predecessor knew or should have know of the claim of the U.S. more than 12 years prior to KRAI's filing of the complaint in this case, and KRAI failed to demonstrate that the U.S. had clearly and unequivocally abandoned its claim of interest in Kingman Reef. Goodwin, Rymer, and Ikuta (author), Circuit Judges. T. Cannata of San Francisco, CA, for the plaintiff-appellant; A. Brabender of Washington, DC, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 15) PROPERTY: McDonald v. Coldwell Banker, 06-16563 (9th Cir. Sept. 10, 2008). At issue here was whether a potential home buyer established a prima facie claim for discrimination against the seller's listing agents, under various federal and state statutes, for a rejected offer where she and they were of different races. The USCA affirmed the district court's grant of summary judgment in favor of the listing agents on all claims. It found that McDonald was not a "qualified buyer" because she refused to "meet the seller's terms." Dissenting in part, Judge Hawkins thought that the actual terms of McDonald's offer, the seller's terms, and McDonald's efforts to adjust her offer, were fact intensive matters wholly inappropriate for resolution on summary judgment. He though McDonald was entitled to a jury trial to determine whether the actions of the agents were the result of discriminatory motives or mere bumbling miscommunication. O'Scannlain (author) and Hawkins (dissenting in part), Circuit Judges, and Selna, District Judge. S. Mehlman of Walnut Creak, CA, for the appellants; M. Sher of Walnut Creek, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 16) PROPERTY: Tapps Brewing v. City of Sumner, 07-35231 (9th Cir. Sept. 25, 2008). In 1995, when the McClungs sought to develop property they owned in the City of Sumner, they learned that their underground storm drain pipe did not meet the City's re-quirement for new developments to include pipes at least 12 inches in diameter. They asserted that the City's subsequent request that they install a 24-inch pipe in exchange for the City approving their permit application and waiving certain permit and facilities fees effected an illegal taking of their property. Their case presents an issue of first impression in the Ninth Circuit: Whether a legislative, generally applicable development condition that does not require the owner to relinquish rights in the real property, as opposed to an adjudicative lad-use exaction, should be reviewed pursuant to the ad hoc standards of Penn Central Transportation Co. v. City of New York, 438 US 104 (1978), or the nexus and proportionality standards of Nollan v. California Coastal Commission, 483 US 825 (1987), and Dolan v. City of Tigard, 512 US 374 (1994). The USCA affirmed, holding that the Penn Central analysis applies to the 12-inch pipe requirement. As for the installation of the 24-inch pipe, the USCA concluded that the McClungs voluntarily contracted with the City to install the 24-inch pipe and thus the installation of that pipe was not a "taking" by the City. Clifton and N.R. Smith, Circuit Judges, and Seabright (author), District Judge. W. Severson of Seattle, WA, for the appellants; M. Walter of Seattle, WA, for the ap-pellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 17) LABOR LAW: Townsend v. University of Alaska, 07-35993 (9th Cir. Sept. 5, 2008). Townsend sued his former employer, the University of Alaska, Fairbanks, in federal district court, alleging violation so the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA"). The district court dismissed his action, concluding that it lacked jurisdiction over a USERRA claim brought by an individual against an arm of the state. It also denied Townsend's motion to amend his complaint to add individual state supervisors as defendants, reasoning that such an amendment would be futile as the court would still lack jurisdiction over the amend-ment complaint. The USCA held that a federal district court lacks jurisdiction over a USERRA action brought by an individual against a state and that USERRA does not create a cause of action against state employee-supervisors. It thus affirmed the district court. D.W. Nelson, Tashima (author), and Fisher, Circuit Judges. D. Hyatt of New Orleans, LA, for the plaintiff-appellant; W. Schendel of Fairbanks, AK, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 18) LABOR LAW: Wicker v. State of Oregon, 07-35429 (9th Cir. Sept. 17, 2008). The petitioners are Oregon public employees who are members of the state's Public Employee Retirement System ("PERS"). They appealed the district court's summary judgment order that held that a 1978 Title VII consent decree entered was not intended to permanently lock in the 1978 refund annuity rates for all PERS members. After reviewing the language of the consent decree and the evidence of the parties' intent in the context of the liti-gation as a whole, the USCA concluded that the consent decree was not meant to create a perpetual floor on refund annuity benefits. It thus affirmed the district court. Pregerson (author) and Reinhardt, Circuit Judges, and Marshall, District Judge. H. Kaplan of Portland, OR, for the petitioners; J. Sacks of Portland, OR, and J. Malkin of San Francisco, CA, for the defendants; W. Gary of Eugene, OR, for the intervenor.(Download the full text of this decision at www.ce9.uscourts.gov/) 19) ERISA: Golden Gate Restaurant v. City and County of San Francisco, 07-17370 (9th Cir. Sept. 30, 2008). Golden Gate Restaurant Association challenged the employer spending requirements of the new enacted San Francisco Health Care Security Ordinance. It argued that the federal Employee Retirement Income Security Act of 1974 ("ERISA") preempts the employer spending requirements of the Ordinance either because those requirements create a "plan" within the meaning of ERISA or because they "relate to" employers' ERISA plans. On December 26, 2007, the district court granted the Associations' motion for summary judgment and enjoined the implementation of the employer spending requirements. On appeal, the USCA held that ERISA does not preempt the Ordinance. It noted that there may be better ways to provide health care than to require employers in the City of San Francisco to foot the bill, but it is beyond the court's province to evaluate the wisdom of the Ordinance. At issue was whether ERISA Sec. 514(a) preempts the employer spending requirements of the Ordinance. The USCA found that the spending requirements do not establish an ERISA plan; nor do they have an impermissible connection with employers, ERISA plans, or make an impermissible reference to such plans. The USCA thus reversed the district court's judgment and remanded with instructions to enter summary judgment in favor of the City and the labor organizations that intervened. Goodwin, Reinhardt, and W. Fletcher (author), Circuit Judges. S. Berzon of San Francisco, CA, the appellants; C. Cole of Pasadena, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 20) ERISA: Vaught v. Scottsdale Healthcare Corporation Health Plan, 06-15507 (9th Cir. Sept. 29, 2008). Vaught was injured when his motorcycle collided with an automobile. The police report stated that "pending the outcome of the blood results from the Scottsdale Police Laboratory, Vaught will be charged via long form for driving under the influence of alcohol." The results revealed that Vaught's blood alcohol content was .2618%, three times Arizona's legal limit for an individual operating a motor vehicle. Vaught sought reimbursement of his accident-related medical costs from the Scottsdale Healthcare Corporation Health Plan ("the Plan"). The Plan is deemed to be an "employee benefit plan," as defined by ERISA. The Plan denied benefits because it does not cover expenses incurred related to driving under the influence of alcohol or drugs. After some administrative proceedings, Vaught filed a complaint in federal district court, alleging that the Plan had violated ERISA and the terms of the Plan in handling his claim. The district court granted summary judgment in favor of the Plan on the ground that Vaught failed to exhaust the Plan's internal remedies. It noted that Vaught had raised his "first substantive challenge" to the Plan's determination in court. Because he had not previously presented these arguments to the Plan administrator, the court ruled that he failed to exhaust his administrative remedies, and could not raise his substantive challenges to the denial of benefits in federal court. The district court thus granted the Plan's motion for summary judgment and dismissed Vaught's ERISA claim. The USCA held that Vaught exhausted the Plan's internal remedies and was not required to exhaust issues. It thus reversed the district court's grant of summary judgment to the Plan and remanded for further proceedings. The USCA also affirmed the district court's dismissal of Vaught's claim for penalties for nondisclosure of documents because the Plan is not the proper defendant under 29 USC Sec. 1132(c). Dissenting in part, Judge Bea noted that Vaught had given seven procedural reasons that the Claims Administrator should have reconsidered the Plan's denial of coverage. Not a single one of these reasons challenged the applicability of the DUI exclusion. When the Plan rejected Vaught's appeal, Vaught brought an action in district court where, for the first time, he raised the "cockamamie" claim that the DUI exclusion did not apply because the collision, not the alcohol, caused his injuries. Because he had never presented this "reason" to the Plan, as was required by his policy, the district court found he had not satisfied the policy requirement that he present "the reason" he thought the denial of coverage was in error first to the Plan. Judge Bea thought the majority had read the policy as requiring only that a claimant give the Administrator any reason he thinks benefits sold not have been denied, whether or not later abandoned. The majority transforms the Plan's requirement that Vaught state "the reason" his challenging the denial of coverage into t requirement that can be satisfied if he states "a reason" or "any reason" for his challenge. However, a primary purpose of the exhaustion requirement is to give an ERISA fiduciary the first opportunity to interpret its plan and fully to consider its determination before a claimant seeks court intervention. Requiring an ERISA claimant to present to the ERISA fiduciary the reasons upon which he claims error for the Plan's denial of coverage-at least where, as here, the policy itself contains this express requirement is critical to effectuate this purpose. Vaught failed to comply with the Plan's internal review procedures and failed to ask the district court to excuse him from that failure. Accordingly, Judge Bea would affirm the district court's order dismissing his claim for failure to exhaust his administrative remedies. W. Fletcher, Bea (dissenting in part), and Ikuta (author), Circuit Judges. R. Bachrach of Phoenix, AZ, for the appellant; L. Rosenfeld of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 21) ERISA: Carmona v. Carmona, 06-15938 (9th Cir. Sept. 17, 2008). At issue here was whether or not a participant in an ERISA regulated Qualified Joint and Survivor Annuity ("QJSA") plan may change the surviving spouse beneficiary after the participant has retired and the annuity has become payable. The conflict here arose between the last two wives of Lupe Carmona, a participant in two ERISA regulated pension plans. Janis, Lupe's eighth wife and his spouse at the time of his retirement, appealed the district court's dismissal of her complaint for lack of jurisdiction against the Hilton Hotels Pension Plan and Judy, Lupe' ninth wife and his spouse at the time of his death. The Nevada Resort Association International Alliance of Theatrical and State Employees Local Pension Trust ("IATSE"), Lupe's second pension plan provider, appealed the district court's grant of summary judgment in favor of Judy on its cross-claim. On the merits, both IATSE and Janis argued that Janis, as Lupe's spouse at the time of his retirement, is the rightful surviving spouse beneficiary for the purposes of Lupe's retirement plan because her interest in surviving spouse benefits irrevocably vested at the time of Lupe's retirement. Joining the Fourth Circuit, as well as a number of other jurisdictions, the USCA held that QJSA surviving spouse benefits irrevocably vests in the participants' spouse at the time of the annuity start date-in this case the participant's retirement date-and may not be reassigned to a subsequent spouse. Applying that conclusion to the judgment entered by the district court in this case, the USCA affirmed in part and reversed in part. Hawkins, Thomas, and Clifton (author), Circuit Judges. W. Freedman of Las Vegas, NV, for the plaintiff-appellant; M. Willick of Las Vegas, NV, for the defendant-appellee; A. Segal of Las Vegas, NV, for the cross-claimant-appellant. (Download the full text of this decision at www.ce9.uscourts.gov/) 22) EEOC: Equal Employment Opportunity Commission v. Federal Express Corporation, 06-16864 (9th Cir. Sept. 10, 2008). This appeal presented three issues pertaining to Federal Express Corporation's ("FedEx") refusal to comply with an administrative subpoena issued by the EEOC: First, whether FedEx's compliance with an administrative subpoena in another case, which resulted in FedEx providing the EEOC with the same information that the EEOC seeks to compel in this case, moots this appeal. The USCA held that it does not. Second, whether, as a matter of first impression, the EEOC retains the authority to issue an administrative subpoena against an employer after a charging party has been issued a right-to-sue notice and instituted a private action. The USCA held that the EEOC does. Third, whether the EEOC subpoena in this case, which does not seek direct evidence of discrimination, but instead, seeks general employment files in order to help the EEOC draft future information requests, seeks evidence "relevant" to a charge of systemic discrimination. The USCA held that it does. In light of these holdings, the USCA affirmed the district court's decision to enforce the administrative subpoena. Tashima (author), McKeown, and Gould, Circuit Judges. F. Douglas of Memphis, Tenn., for the defendant-appellant; S. Oxford of Washington, DC, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 23) AGE DISCRIMINATION IN EMPLOYMENT: Whitman v. Mineta, 05-36231 (9th Cir. Sept. 2, 2008). Whitman was em-ployed by the FAA at the Anchorage Air Route Traffic Control Center. He filed suit against the FAA, alleging violations of the Age Discrimination in Employment Act ("ADEA"), alleging that his employer discriminated against him when it promoted a student intern to a full-time salaried position which Whitman himself sought. He also alleged that his employer retaliated against him when he filed a formal complaint of age discrimination. The district court dismissed the retaliation claim after concluding that the ADEA did not permit a claim for retaliation against a federal employer. It then granted summary judgment to the FAA on the remaining claims of age discrimination. The USCA reversed and remanded in part so that the district court could reconsider the retaliation claim. The district court dismissed the claim on the ground that the federal-employee provision of the ADEA does not waive the federal government's sovereign immunity for a claim of retaliation. Subsequently, the Supreme Court has held, to the contrary, that the ADEA provides a cause of action for retaliation against federal employers. Gomez-Perez v. Potter, 128 S.Ct. 1931, 1936 (2008). The USCA thus reversed and remanded in part so the district court could reconsider Whitman's claim for retaliation in light of Potter. The USCA affirmed the district court's judgment dismissal of Whitman's other claims for age discrimination. D. Nelson (author), Tashima, and Fisher, Circuit Judges. T. Whitman pro se; A. Flentje of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 24) INDIVIDUALS WITH DISABILITIES EDUCATION ACT: Oscar v. Alaska Dept. of Education, 07-35795 (9th Cir. Sept. 3, 2008). Oscar filed a lawsuit under the Individuals with Disabilities Education Act ("IDEA") and 42 USC 1983 against the Alaska Department of Education and Early Development ("DEED"). The lawsuit alleged that DEED violated his rights under the IDEA when it refused to accept his administrative complaint. DEED filed a successful Rule 12(b)(6) motion and the lawsuit was dismissed without prejudice because the administrative complaint was not signed. The district court awarded attorneys' fees to DEED as the prevailing party pursuant to 20 USC Sec. 1415(i)(3)(B)(i)(II). The USCA reversed and vacated. It held that the dismissal without prejudice did not confer prevailing party status upon the defendant. Without prevailing party status, the defendant is ineligible for an award of attorneys' fees under Sec. 1415(i)(3)(B)(i)(II). D.W. Nelson (author), Tashima, and Fisher, Circuit Judges. M. Allison of Anchorage, AK, for the plaintiff-appellant; AAG S. Slotnick of Juneau, AK, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 25) INDIVIDUALS WITH DISABILITIES EDUCATION ACT: C.B. v. Hellgate Elementary School District, 07-35018 (9th Cir. Sept. 4, 2008). Minor C.B. and his parents alleged that Hellgate Elementary School District violated the Individuals with Disabilities Education Act ("IDEA"), 20 USC Sec. 1400, by failing to provide C.B. with a free appropriate public education ("FAPE"). They appealed the district court's order affirming the hearing officer's findings of fact, conclusions of law, and order that found Hellgate did not violate the IDEA. On appeal, they argued that C.B.'s procedural and substantive rights under IDEA were violated. They main-tained that Hellgate failed to meet its procedural obligation under IDEA to evaluate C.B. to determine whether he was autistic. They also maintained that C.B. was denied his substantive rights under the IDEA when Hellgate denied him extended school year ("ESY") services. The USCA vacated and remanded the district court's order that Hellgate was not liable for violating C.B.'s procedural rights under IDEA. It concluded that Hellgate did not fulfill its procedural requirements under IDEA to evaluate C.B. It also affirmed the district court's decision that Hellgate did not violate C.B.'s substantive rights in denying ESY services. Alarcon (author), Graber, and Rawlinson, Circuit Judges. A. Larose of Helena, MT, for the plaintiffs-appellants; E. Kaleva of Missoula, MT, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 26) DISABILITY INSURANCE BENEFITS: Klemm v. Astrue, 06-16981 (9th Cir. Sept. 16, 2008). The Commissioner of the Social Security Administration denied Klemm's motion to reopen his application for Disability Insurance benefits ("DIB") under Title II of the Social Security Act. Klemm subsequently filed a complaint with the district court. It dismissed for lack of subject matter jurisdiction. Two issues were presented on appeal: Whether Klemm's appeal was timely and whether the district court erred by concluding that it lacked subject matter jurisdiction. The USCA held that Klemm's notice of appeal, though deficient, was timely filed. Exercising its jurisdiction pursuant to 28 USC Sec. 1291, the USCA further held that Klemm failed to state a colorable constitutional claim and affirmed the district court. Tashima (author), McKeown, and Gould, Circuit Judges. I. Sammis of San Rafael, CA, for the plaintiff-appellant; AUSA D. Stachel of San Francisco, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 27) MEDICAID: Independent Living Center of Southern California v. Shewry, 08-56061 (9th Cir. Sept. 17, 2008). Assembly Bill X3-5 ("AB 5"), enacted on February 16, 2008, during a special session convened by the Governor of California to address California's budget deficit, reduces payments to medical providers participating in the state's Medi-Cal program by ten percent. The petitioners, pharmacies, health care providers, senior citizens' groups, and Medi-Cal beneficiaries (collectively "ILC"), sought to enjoin the Department of Health Care Services and its Director, Sandra Shewry, from implementing AB 5 and reducing payments under the state's Medicaid program, known as "Medi-Cal," by ten percent. ILC maintained that the state legislation violates certain provisions of the federal Medicaid Act and is thus preempted by the Supremacy Clause. The district court denied ILC preliminary relief, holding that ILC could not allege a viable claim for injunctive relief as none of the petitioners or their members have any federal right to Medi-Cal payments or benefits. The USCA did not believe that the suit failed for this threshold reason and reversed. Under well-established law of the Supreme Court, and of the Ninth and other Circuits, a private party may bring suit under the Supremacy Clause to enjoin imple-mentation of state legislation allegedly preempted by federal law. In this case, ILC alleged that the cuts mandated by AB 5 violate the substantive provisions of the federal Medicaid Act (the "Act"), and were thus unlawful. They did not seek to enforce any substantive "right" conferred by statue; instead, they argued that the cuts mandated by AB 5 were themselves unenforceable, because they exceed the scope of the State's discretion under the Act and violate federal standards. As AB 5 is causing injury to one or more of the plaintiffs and the other requirements of Article III standing are met, no more is required to allow this suit to go forward. The USCA expressed no opinion on the merits of ILC's preemption claim. It simply reaffirmed over a century's worth of precedent and held that ILC had a valid cause of action under the Supremacy Clause to assert such a claim for injunctive relief. It thus reversed the district court's opinion and remanded for further proceedings. Reinhardt, Berzon (author), and M.D. Smith, Circuit Judges. L. Carman of Los Angeles, CA, for the petitioners; J. Kim of Sacramento, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 28) FIRST AMENDMENT: Wong v. Bush, 07-16799 (9th Cir. Sept. 5, 2008). The plaintiffs, many of whom participated in protests on August 26 and 27, 2007, opposed to the operation of the Hawaii Superferry ("HSF") to the Nawiliwili Harbor in Kauai, Hawaii. They alleged that it is illegal. They appealed the district court's denial of their motion for declaratory relief, a temporary restraining order, a preliminary injunction, and a permanent injunction. They argued that by establishing a security zone to enable the HSF to dock at Nawiliwili Harbor, the U.S. Coast Guard violated their First Amendment right to free speech, the National Environmental Policy Act, and 50 USC Sec. 191 and 33 CFR Sec. 165.30, which governs the Coast Guard's authority to create security zones safeguarding U.S. waters and harbors. The USCA affirmed. Although the plaintiffs had standing, the USCA disagreed that the rule establishing the security zone violates their First Amendment rights. To the extent the plaintiffs' blockade in protest of the HSF constitutes symbolic speech, the rule establishing the security zone is a reasonable time, place, and manner restriction. The rule is content-neutral, narrowly tailored to achieve a significant government interest, and leaves open ample alternative channels of communication. Thompson and Wardlaw (author), Circuit Judges, and Bolton, District Judge. L. Sinkin of Hilo, HI, for the appellants; AUSA L. Tong of Honolulu, HI, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 29) CIVIL RIGHTS / FIRST
AMENDMENT: Villegas v. Gilroy Garlic Festival, 05-15725 (9th Cir. Sept.
3, 2008). Villegas and co-plaintiffs (collectively "Top Hatters"), all
members of a motorcycle club, brought this lawsuit against the City of Gilroy,
California, and the Gilroy Garlic Festival Association ("GGFA") under
42 USC Sec. 1983 for alleged violations of their civil rights arising out of events
occurring at the Gilroy Garlic Festival on July 30, 2000. On that day they were
wearing vests that included an image of a skull with wings and a top hat with
the words "Top Hatters" above the top hat and "Hollister"
below. Pursuant to an unwritten policy of the GGFA that prohibited guests from
wearing "gang colors or other demonstrative insignia, including motorcycle
club insignia," the Fes-tival's chair of security, an off-duty police officer,
requested an on-duty police officer to remove the Top Hatters. This litigation
fol-lowed. The district court granted summary judgment in favor of both the City
and GGFA, ruling that wearing such vests was neither expressive conduct nor expressive
association within the protection of the first Amendment and that in any event
the GGFA was not a state actor within the meaning of Sec. 1983. On appeal, a three-judge
Ninth Circuit panel affirmed, holding that the motorcycle club insignia was subject
to expressive conduct analysis but that there was no First Amendment violation.
It did not reach the state action issue. Upon rehearing the matter en banc, the
USCA did not reach the question of whether wearing the Top Hatters clothing and
insig-nia constituted expressive conduct. It held that neither the GGFA nor the
City had been engaged in state action. Running a festival is not a traditional
municipal function and the City required a permit, showing that it retained control
of the park and provided security services-for which it billed the GGFA. Judge
Thomas, joined by judges Wardlaw, Fisher, and Paez dissented as he thought the
evidence, viewed in the light most favorable to the Top Hatters, demonstrated
that there were genuine issue of fact precluding summary judgment. Moreover, were
the court to reach the constitutional issues, Judge Thomas would hold that under
Sammartano v. First Judicial District Court, 303 F.3d 959 (9th Cir. 2002),
the Top Hatters' act of wearing their motorcycle club vests and insignia was expressive
conduct deserving of protection under the First Amendment. Dissenting, Judge Gould
thought that because there was no "policy statement, ordinance, regulation,
or decision officially adopted and promulgated" by the City to enforce the
dress code at issue, the City was not liable under Monell v. Dept. of Social
Services, 436 US 659, 690-91 (1978). In addition, because he thought that
there was an issue of fact as to whether the GGFA and City engaged in joint action
sufficient to render the festival a state action, he joined Part I of Judge Thomas'
dissent. Kozinski, O'Scannlain (author), Rymer, Thomas (dissenting),
McKeown, Wardlaw, Fisher, Gould (dissenting), Paez, Callahan, and N.R.
Smith, Circuit Judges. R. Hammock of Canoga Park, CA, for the plaintiffs-appellants;
B. Lacy of San Jose, CA, for the defendants-appellees. (Download the full text of this decision
at www.ce9.uscourts.gov/) 31) FINANCIAL INFORMATION PRIVACY: American Bankers Association v. Lockyer, 05-17163 (9th Cir. Sept. 4, 2008). In 2003, the California State Legislature enacted the California Financial Information Privacy Act ("SB1"), Cal. Fin. Code Secs. 4050-4060, "for financial institutions to provide their consumers notice and meaningful choice about how consumers' nonpublic personal information is shared or sold by their financial institutions." The American Bankers Association, The Financial Services Roundtable, and the Consumer Bankers Association filed suit, alleging that the federal Fair Credit Reporting Act ("FCRA") preempted SB1's regulation of information sharing between financial institutions and their affiliates. Previously, the USCA held that the affiliate-sharing preemption clause of the FCRA preempted the affiliate-sharing provisions of SB1 "insofar as [SB1] attempts to regulate the communication between affiliates of 'information,' as that term is used in 15 USC Sec. 1681a(d)(1)," which defines "consumer report" information under the FCRA. The USCA then remanded to determine whether, applying this restricted meaning of "information," any portion of the affiliate-sharing provisions of SB1 survived preemption and, if so, whether it is severable from the portion that does not. On remand, the district court held that no portion of Sec. 4053(b)(1) survives preemption and that, even if a portion did survive, the court lacked the power to sever the preempted application. The court thus enjoined enforcement of Sec. 4053(b)(1) to the extent that it is preempted by 15 USC Sec. 1681t(b)(2), which, the court ruled meant the statute in its entirety. On de novo review, the USCA reversed and remanded. It held that Sec. 4053(b)(1) has non-preempted applications and that California law requires that the USCA reform Sec. 4053(b)(1) to sever its preempted application. Judge Wallace agreed with the majority that Sec. 4053(b) has non-preempted applications, but he disagreed that California law permits the USCA to reform Sec. 4053(b) to sever its preempted applications. He would allow the California Legislature to reform Sec. 4053(b) to conform to federal law, if it chooses to do so. It may be true, he added, that the Legislature in passing SBI was concerned with protecting non-preempted consumer information, but it did not follow that the patched-up version of SB1 proposed by the majority would effectuate policy judgments clearly articulated by the Legislature, or that the Legislature would necessarily prefer such a reformed version of the statute in validation of the statute. Kopp v. Fair Political Practices Comm'n, 905 P.2d 1248, 1290 (Cal. 1995). The very best indicator of the Legislature's intent-the statute itself-suggests that the Legislature would disfavor the USCA's interference. Judge Wallace would affirm the district court's holding that, even if a portion of Sec. 4053(b)(1) survives preemption, the court lacks the power to sever the preemption applications. Wallace (dissenting) and Graber (author), Circuit Judges, and Ezra, District Judge. C. Ysrael of Los Angeles, CA, for the appellants; E. Bruce of Washington, DC, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 32) TORTS / ATTORNEYS' FEES: Rodriguez v. USA, 07-55241 (9th Cir. Sept. 4, 2008). The plaintiffs, five members of the family of Maria Rodriguez, sued the United States following an attempt by federal immigration officers to execute an administrative war-rant for the arrest and removal of Marisela Rodriguez-Wence at the Rodriguez family's home. After a bench trial, the district court entered judgment for the family on some of its claims under the Federal Tort Calms Act ("FTCA") and awarded the family a total of $230,000 in damages. The family moved for attorneys' fees under the Equal Access to Justice Act ("EAJA"). The district court awarded the family $917, 684 in fees on the grounds that the government litigated a number of issues in bad faith and that the government's pre-litigation conduct was in bad faith. The government appealed the fee award. The USCA affirmed in part, reversed in part, and remanded to the district court. Silverman, Rawlinson, and M.D. Smith (author), Circuit Judges. P. Maier of Washington, DC, for the appellants; G. Limon of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 33) TORTS: Dumontier v. Schlumberger Technology Corp., 05-36005 (9th Cir. Sept. 11, 2008). Schlumberger Technology em-ployees carelessly left cesium-137 on a drilling rig. The plaintiffs later worked on the rig and were exposed. Exposure can cause burns, radiation sickness and cancer, although plaintiffs have not yet developed cancer or any other illness. Nevertheless they sued Schlum-berger, claiming that the radiation caused subcellular damage, including to their DNA. They brought a claim under Montana law seeking damages for emotional distress, medical monitoring and actual malice. Schlumberger argued that this claim was preempted and moved to replace it with a federal cause of action under the Price-Anderson Act, 42 USC Sec. 2014(h); it also moved for summary judgment on the Price-Anderson claim. The district court granted both motions. While the plaintiffs claimed compensation for exposure to radioactive material, they can recover only if they meet the requirements of the Act. They did not. Kozinski (author) and Fisher, Circuit Judges, and Guilford, District Judge. A. Blewett of Great Falls, MT, for the appellants; D. Jose of West Chester PA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 34) IMMIGRATION: Hassan v. Mukasey, 06-17252 (9th Cir. Sept. 11, 2008). In January 2002, while physically present in the United States, Hassan, a citizen of Pakistan, applied for adjustment of status to lawful permanent resident pursuant to Sec. 245 of the Immigration and Nationality Act. In October 2004, as the government had not yet acted on his application, he filed this mandamus action in federal district court to compel the government to act on his application. In 2005, the government questioned him about possible ties to a group the government suspected of having links to terrorists. While his adjustment application was still pending, Hassan had traveled to Saudi Arabia. He received a travel document from the government, Form I-512, commonly referred to as an "advance parole." It granted him permission to return to the United States, so long as his application for adjustment remained pending. While he was abroad, the government denied his adjustment application and revoked his advance parole. Thus, when he attempted to return to the U.S., he was denied admission, placed in expedited removal proceedings, and removed. He amended his complaint in this action to challenge the denial of status adjustment and revocation of advanced parole. The district court held that under the REAL ID Act of 2005, both the denial of adjustment of status and the revocation of the advance parole were discretionary decisions that it lacked jurisdiction to review. It thus dismissed Hassan's complaint. The USCA also found that it lacked jurisdiction to review the government's actions and affirmed the district court's dismissal. Hassan's challenge to the denial of adjustment was not raised upon a petition for review filed with the USCA. In addition, the district court properly rejected Hassan's argument that it had jurisdiction to review the revocation of advanced parole as an ultra vires. The revocation was lawfully authorized. Schroeder, Walker, and N.R. Smith, Circuit Judges. Per Curiam. E. Bjotvedt of Phoenix, AZ, for the appellant; T. Dupree of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 35) IMMIGRATION: Figueroa v. Mukasey, 05-75157 (9th Cir. Sept. 10, 2008). Luis and Hilda Figueroa, a married couple, con-ceded that they are removable aliens. They petitioned the USCA to review the BIA's denial of their Application for Cancellation of Removal. They maintained that the IJ applied improper legal standards in determining whether they had shown that their removal would result in a sufficient hardship to their tow citizen-children. They also argued that their petition should be granted and the IJ's opinion vacated because the IJ's opinion is indiscernible. The government argued that the USCA lacked jurisdiction to hear the petitioners' challenge because the petitioners sought review of a discretionary determination, which the USCA lacks jurisdiction to review, and because the petitioners failed to exhaust their administrative remedies with the BIA. The USCA held that the petitioners exhausted their challenges, and that it had jurisdiction to hear their legal challenges, and that the IJ committed legal error. The USCA thus granted the petition and remanded the case to the BIA for further proceedings. Tashima (author), McKeown, and Gould, Circuit Judges. P. Barilovits of Palo Alto, CA, for the petitioner; J. Pfluger of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 36) IMMIGRATION: Alanis-Alvarado v. Mukasey, 06-72369 (9th Cir. Sept. 11, 2008). At issue here was whether a conviction under California Penal Code Sec. 273.6, for violating a protective order issued pursuant to California Family Code Sec. 6320, cate-gorically qualifies as a violation of a "protection order" under 8 USC Sec. 1227(a)(2)(E)(ii) of the Immigration and Nationality Act. The USCA held that it does and, thus, denied the petition for review. Judge Rawlinson concurred in the majority's conclusion that the petitioners' convictions did not constitute violations of a protection order under 8 USC Sec. 1227(a)(2)(E)(ii) when analyzed pursuant to the categorical approach articulated in Taylor v. USA, 495 US 575, 600-601 (1990), but he dissented from that portion of the major-ity's opinion holding that the petitioner's conviction constitutes violations of a protective order under the modified categorical approach articulated in Taylor. Alarcon, Graber (author), and Rawlinson (dissenting in part), Circuit Judges. M. Rios of Seattle, WA, for the petitioner; J. Bless of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 37) IMMIGRATION: Santos-Lemus v. Mukasey, 07-70604 (9th Cir. Sept. 8, 2008). Santos-Lemus, a native and citizen of El Salvador, entered the U.S. without inspection on July 18, 2004. He petitioned from the BIA's dismissal of his appeal from an IJ's denial of his application for asylum, withholding of removal, and protection under the Convention against Torture ("CAT"). He argued that he was persecuted in El Salvador because of his membership in two particular social groups, (1) his family and (2) "the class of young men in El Salvador who resist the violence and intimidation of gang rule." He also claimed persecution on account of his anti-gang political opinion. Finally, he argued that he established that it was more likely than not he would be tortured if returned to El Salvador. The BIA affirmed the IJ's denial of Santo-Lemus' asylum, withholding of removal, and CAT claims and dismissed the appeal. It held that Santos-Lemus had not established a well-founded fear of future persecution on account of membership in a particular social group. The USCA denied the petition. It found that substantial evidence supported the BIA's finding that Santos-Lemus' fear of persecution based on family membership was not well-founded and that it was not more likely than not that he would be tortured if returned to El Salvador. In addition, the BIA correctly determined that Santos-Lemus' proposed ground of young men in El Salvador resisting gang violence is not a "particular social group," and that a general anti-gang opinion is not a protected political opinion, for asylum and withholding of removal purposes. Wallace (author) and Graber, Circuit Judges, and Timlin, District Judge. S. Shaiken of San Francisco, CA, for the petitioner; J. Grimes of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 38) IMMIGRATION: Mota v. Mukasey, 07-71880 (9th Cir. Sept. 17, 2008). Mota, a citizen of Mexico, petitioned for review of an a BIA order affirming an IJ's decision finding her ineligible for cancellation of removal due to her conviction for inflicting injury upon a child, in violation of California Penal Code Sec. 273d. The BIA held that Mota's conviction qualified as a crime involving domestic violence. The USCA granted the petition for review. As Mota's conviction occurred on January 22, 1990, the BIA erred as a matter of law in ruling that this conviction made her ineligible for cancellation of removal. Thompson (author) and Wardlaw, Circuit Judges, and Moskowitz, District Judge. E. Abriel of Santa Clara, CA, for the petitioner; P. Fiorino of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 39) IMMIGRATION: Karapetyan
v. Mukasey, 05-75865 (9th Cir. Sept. 16, 2008). Karapetyan, a native of
the former Soviet Union and a citizen of Armenia, petitioned for review of a final
BIA order summarily affirming an IJ's denial of his application for asylum, withholding
for removal and protection under the Convention Against Torture. He also petitioned
for review of the BIA's denial of his motion to reconsider its decision. The USCA
granted relief and remanded for further proceedings. It held that Karapetyan is
statutorily eligible for asylum relief. It also found that the IJ abused her discretion
in denying Karapetyan's motion for a continuance so that he could submit fingerprints.
Pregerson (author) and Wardlaw, Circuit Judges, and Archer, District Judge.
H. Davis of Van Nuys, CA, for the petitioner; P. Keisler of Washington, DC, for
the respondent.(Download the full text of this decision
at www.ce9.uscourts.gov/) 41) IMMIGRATION: Bromfield v. Mukasey, 05-75844 (9th Cir. Sept. 15, 2008). Bromfield petitioned for review of a BIA order affirming an IJ's denial of his application for withholding of removal under INA Sec. 241(b)(3), 8 USC Sec. 1231(b)(3), and the Con-vention Against Torture ("CAT"). The USCA held that the record evidence compelled the conclusion that there exists in Jamaica a pattern or practice of persecution of gay men and that the IJ applied the wrong legal standard in evaluating Bromfield's CAT claim. It thus remanded Bromfield's case so that the agency could reconsider whether Bromfield would more likely than not be persecuted or tortured if removed to Jamaica. B. Fletcher (author) and Paez, Circuit Judges, and Schwarzer, District Judge. M. Adams of Seattle, WA, for the petitioner; P. Stone of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 42) IMMIGRATION REFORM: Chicanos Por La Causa, Inc. v. Napolitano, 07-17272 (9th Cir. Sept. 17, 2008). This case concerns a facial challenge to an Arizona state law, the Legal Arizona Workers Act, enacted in 2007 and aimed at illegal immigration. It reflects rising frustration with the U.S. Congress' failure to enact comprehensive immigration reform. The Act "targets employers who hire illegal aliens, and its principal sanction is the revocation of state licenses to do business in Arizona. It has yet to be enforced against any employer. Various business and civil-rights organizations brought these actions against the 15 county attorneys of Arizona, the Governor of Arizona, the Arizona Attorney General, the Arizona Registrar of Contractors, and the Director of the Department of Revenue of Arizona. The plaintiffs alleged that the Act is expressly and impliedly preempted by the federal Immigration Reform and Control Act of 1986, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. They also alleged that the Act violates employers' rights to due process by denying them an opportunity to challenge the federal determination of the work-authorization status of their employees before sanctions are imposed. The district court held that the law was not preempted. On appeal, the main argument was that the Act is expressly preempted by the federal immigration law provision preempting state regulation "other than through licensing and similar laws." 8 USC Sec. 1324a(h)(2). The USCA affirmed. The district court correctly determined that the Act was a "licensing" law within the meaning of the federal provision and thus not expressly preempted. A second, implied preemption issue that relates to the provision requiring employers to use the electronic verification system now being refined by federal government as a tool to check the work-authorization status of employees through federal records. It is know as E-Verify. Under current federal immigration law, the use of the system is voluntary, and the Arizona law makes it mandatory. The USCA held that such a requirement to use the federal verification tool, for which there is no substitute under development in the state, federal, or private sectors, is not expressly or impliedly preempted by federal policy. Finally, the plaintiffs maintained that the Act does not guarantee employers an opportunity to be heard before their business license may be revoked. However, the USCA noted that the Act can and should be reasonably interpreted to allow employers, before any license can be adversely affected, to present evidence to rebut the presumption than an employee is unauthorized. The USCA thus upheld the statute in all respects against this facial challenge, but it noted that it is brought against a blank factual background of enforcement and outside the context of any particular case. If and when the statue is enforced, and the factual background is developed, other challenges to the Act "as applied" in a particular instance or manner will not be controlled by the current decision. Schroeder (author), Walker, and N.R. Smith, Circuit Judges. J. Weissglass of San Francisco, CA, for the appellants; M. O'Grady, and B. King of Phoenix, AZ, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 43) ALIEN SMUGGLING: USA v. Lopez-Martinez, 07-10174, (9th Cir. Sept. 10, 2008). Following a five-day trial, a jury convicted the defendant of one count of conspiracy to bring aliens to the United States, in violation of 8 USC Sec. 1324(a)(1)(A)(v)(I), one count of aiding and abetting bringing aliens to the United States resulting in death, in violation of 8 USC Sec. 1324(a)(1)(B)(iv), three counts of aiding and abetting bringing aliens to the United States for profit, in violation of 8 USC 1324(a)(2)(B)(ii), and one count of illegal re-entry after deportation, in violation of 8 USC Sec. 1326(a). The defendant appealed his conviction (except for the illegal reentry count) on a multitude of grounds, attacking the actions of the judge, the prosecutor, and the jury. The USCA affirmed. First, during a break in the prosecution's direct examination of a witness, the judge asked counsel to remain in the courtroom. He and the prosecutor then went back and forth, with the prosecutor explaining how she had made, or planned to make, her case, and the judge explaining where he found holes in her evidence and what sort of testimony would be necessary to fill in the gaps. Contrary to the defendant's view of this exchange, the USCA concluded that the judge's remarks were not improper. It agreed with sister circuits that have found nothing wrong with a judge suggesting a line of questions to an attorney. It would, the USCA said, be disingenuous to condemn the trial judge's inquiry, given that it is already well established that the judge may question the witness directly. Second, in presenting its case, the prosecution introduced expert testimony from Border Patrol Agent Martinez. After recounting his experience and training Martinez testified about the methods and patters of human smugglers in the Yuma, Arizona, area. On appeal, for the first time, the defendant argued that Martinez should not have been allowed to testify as an expert. The USCA disagreed. The defendant's first objections boiled down to criticism of the trial judge for not conducting a more formal Daubert hearing, or requiring Martinez to give a precise description of each step in the chain he used to arrive at his conclusions. However, the USCA noted that these procedures were not required under either Supreme Court precedent or Ninth Circuit case law. Martinez, who has 14 years of experience as a border patrol agent, including 5 as the intelligence chief for the Yuma station, testified about patterns and methods common among smugglers in the Yuma area. Martinez's explanation of methods and experience was sufficient for the trial judge to be confident in their reliability. The USCA thus concluded that the trial court did not plainly err in admitting this testimony. Second, in light of Martinez's testimony, as well as the testimony of the other witnesses, neither did the trial court err in denying the defendant's Rule 29 motion. When viewed in the light most favorable to the prosecution, a reasonable jury could easily have found the evidence sufficient. Third, the main fact in dispute at trial was whether the prosecution had sufficiently demonstrated that the defendant was a foot guide for the group of aliens attempting to cross the US-Mexico border, as opposed to just another client of the smugglers. That this fact was disputed, the USCA noted, did not mean that the jury unreasonably found the defendant guilty; the jury's job as the factfinder was precisely to resolve disputed issues of fact. One client testified that the defendant led the group during the times when he was in front, and that he would regularly switch places with the Morales brothers, in what appeared to be a coordinated fashion. Moreover, during breaks, he and the Morales brothers would gather away from the rest of the group, and talk among themselves. In addition, the defendant had a cell phone with him, which would be very unusual for a smuggling client, but common for a smuggler. Agent Martinez confirmed that the defendant's behavior, as described by the client witness, fit the pattern he had observed among smugglers. Viewing the testimony in the light most favorable to the prosecution, a reasonable jury could have found beyond a reasonable doubt that the defendant was one of the guides, not simply a client of the Morales brothers. Tashima, McKeown (author), and Gould, Circuit Judges. M. Ryan of Phoenix, AZ, for the appellant; AUSA T. Bardorf of Phoenix, AZ, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 44) COMPETENCY TO STAND TRIAL: Cox v. Del Papa, 06-15106 (9th Cir. Sept. 4, 2008). At issue here was whether the Constitution requires that a trial court conduct a sua sponte examination of a criminal defendant's Miranda waiver when his competency to stand trial has been raised. After scouring the record for mitigating evidence that counsel failed to present-and in light of the peti-tioner's failure to present any such evidence on his own-the USCA held that counsel's investigation was appropriate and reasonable in light of the facts and issues and the applicable Anti-Terrorism Effective Death Penalty Act's deferential stand of review. Thus, the Nevada Supreme Court's denial of relief, despite Cox's claim of ineffective assistance of counsel at resentencing, could not be said to be "contrary to, or … an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 USC Sec. 2254. O'Scannlain (author), Hawkins, and Wardlaw, Circuit Judges. AFPD P. Turner of Las Vegas, NV, for the petitioner; DAG D. Neidert of Las Vegas, NV, for the respondents.(Download the full text of this decision at www.ce9.uscourts.gov/) 45) PROSTITUTION / THE TRAVEL ACT: USA v. Nader, 06-30311 (9th Cir. Sept. 5, 2008). Nader and Lake, operators of a prostitution business, appealed their convictions for violating the Travel Act, 18 USC Sec. 1952, which prohibits the use of "any facility in interstate or foreign commerce" with intent to further certain unlawful activity, including prostitution. Nader and Lake used telephones to conduct their unlawful business, but there was no evidence of any call that crossed state lines. At issue on appeal was whether telephone calls within a single state-intrastate rather than interstate calls-can violate the Travel Act. The USCA upheld the convictions and held that intrastate calls made with intent to further unlawful activity can violate the Travel Act because they involve use of a facility in interstate commerce. Wardlaw, Clifton (author), and N.R. Smith, Circuit Judges. N. Hoines of Great Falls, MT, and M. Werner of Billings, MT, for the appellants; AUSA K. Alme of Billings, MT, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 46) SENTENCING: USA v. Bendtzen, 07-50549, (9th Cir. Sept. 5, 2008). Bendtzen pled guilty to bank robbery, in violation of 18 USC Sec. 2113(a), and was sentenced to 80 months imprisonment, 12 months below the low-end Guidelines range of 92 months, fol-lowed by three years of supervised release. He appealed the upward adjustment to his offense level pursuant to U.S. Sentencing Guide-lines Manual Sec. 2B3.1(b)(2) (2005), which provides for a four-level increase where "a dangerous weapon was otherwise used." He argued that because he used only a fake bomb, he did not use a dangerous weapon within the meaning of Sec. 2B3.1. He also main-tained that his criminal history score overrepresented his criminal past and that the district court erred by placing him in category VI. Affirming, the USCA found that the district court correctly calculated Bendtzen's Guideline sentence and that the sentence imposed was reasonable. Guideline Sec. 2B3.1(b)(2)(D) provides a four-level adjustment for otherwise using a dangerous weapon in connection with a robbery. For purposes of this adjustment, the definition of "dangerous weapon" includes objects that appear to be instruments capable of inflicting death or serious bodily injury. Guideline Sec. 1B1.1 cmt. N.1(D). Bendtzen's use of the fake bomb thus constituted otherwise using a dangerous weapon. Moreover, the district court did not err by considering Bendtzen's past crimes and thereby arriving at a category VI criminal history. Thus his 80-month sentence was substantively reasonable. Wardlaw (author) and Ikuta, Circuit Judges, and Fogel, District Judge. FPD S. Kennedy of Los Angeles, CA, for the appellant; AUSA C. Lui of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 47) SENTENCING: USA v.
Waknine, 06-50521 (9th Cir. Sept. 10, 2008). Waknine appealed his
sentence of 121 months of imprisonment and $646,000 in restitution imposed by
the district court after he pleaded guilty to one count of racketeer influenced
and corrupt organizations ("RICO") conspiracy, in violation of 18 USC
Sec. 1962(d), for laundering proceeds by embezzling from the Tel Aviv Trade Bank
and brokering loans through extortion. He maintained that (1) the government violated
the plea agreement by not orally recommending a 108-month prison term at the sentencing
hearing pursuant to the plea agreement, (2) the district court violated Fed. R.
of Crim. Proc. 32 by not giving the government an opportunity to speak at the
sentencing hearing, (3) the district court committed procedural error by not considering
the 18 USC Sec. 3553(a) factors before imposing his sentence, and (4) the district
court erred in its restitution calculation. The USCA held that there was plain
error in the sentencing, and thus vacated the sentence and remanded with instructions
for the district court properly to calculate the Sentencing Guidelines range,
to discuss the Sec. 3553(a) factors in rendering the sentence, and to comply with
Rule 32 by permitting each party to be heard before announcing the sentence. The
USCA also vacated the district court's restitution order, and remanded for recalculation
and explanation of the restitution payments. Judge Ikuta agreed with the majority
that Waknine's sentence should be vacated and the case should be remanded for
resentencing and not reassigned to a different judge on remand. On the restitution
issue, she agreed with the majority that the district court clearly erred in its
factual analysis of the loan amounts submitted as part of Hadad's restitution
claim, which resulted in the district court's order that Waknine pay $371,000
in restitution to Hadad, one of Waknine's victims. Hadad's restitution award thus
should be vacated. However, Judge Ikuta dissented from the remainder of the majority's
restitution analysis and, most critically, could not agree that "the district
court erred by relying exclusively on the one-page loss summaries provided by
the victims and in not requiring more detailed explanations of the losses each
victim suffered. Maj. Op. at 12571. She thought there was no support for that
proposition in either the statutory framework governing restitution or in Ninth
Circuit case law. Moreover, there was no basis for vacating the district court's
factual findings. Wallace, Gould (author), and Ikuta (dissenting in
part), Circuit Judges. R. Richards of Beverly Hills, CA, for the appellant;
AUSA T. O'Brien of Los Angeles, CA, for the appellee. (Download the full text of this decision
at www.ce9.uscourts.gov/) 49) SENTENCING: USA v. Gianelli, 07-10233 (9th Cir. Sept. 17, 2008) (The opinion of March 20, 2008 in this case has been withdrawn and replace by the instant opinion.). In May 1987, Gianelli pleaded guilty to one count of mail fraud. He was ordered to pay restitution to the federal governmetn in the amount of $125,000. He did not appeal that judgment. However, he now appealed a May 2007 district court order reinstating an Oct. 17, 2001 Order Imposing Payment Plan aimed at collecting the remaining amount of resti-tution owed. Gianelli maintained that the government was barred from enforcing the restitution judgment because ten years from the date of that judgment passed on May 13, 1997, and California law precludes enforcing a judgment after that period of time. He also argued that the original $125,000 restitution amount was improper because it was not predicated on the government's actual loss, as required by Hughey v. USA, 495 US 411 (1990). The USCA concluded that Gianelli waived the right to appeal the amount of the resti-tution order by failing to file a direct appeal. It thus affirmed the district court's May 1, 2007 order reinstating the October 17, 2001 payment plan. Canby, Thompson (author), and M.D. Smith, Circuit Judges. P. Sullivan of Oakland, OR, for the appellant; R. Friedman of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 50) DEALTH PENALTY: Edwards v. Ayers, 05-99001 (9th Cir. Sept. 9, 2008). In 1981, Edwards spotted two 12-year old girls heading out of a campground alone for a picnic. He followed them in his truck, waited until they reached a remote spot, drove up alongside them, stopped, called "Girls," and then shot each in the head, killing one and seriously injuring the other. He was convicted in 1983 of first degree murder, with the special circumstance of "lying in wait"-that qualified him for the death penalty. He was sentenced to death in 1986 after two penalty phase mistrials. Neither at the guilty phase nor at the penalty phase was the jury informed of Edwards's pre-1977 history. At the penalty modifications hearing, his counsel sought reduction of the penalty on the basis of his pre-1977 history, specifically his lifelong history of mental problems and disturbed behavior from early childhood. The trial court declined to modify the penalty, nothing that even if it had the power to reduce the penalty on the basis of evidence not before the jury, it would not do so because that evidence was even more damaging that the evidence the jury actually heard. Following state appeals, the district court denied the petition. There were four issues on appeal to the USCA: (1) whether the "lying in wait" special circumstance instruction was overbroad in failing adequately to distinguish Edwards' case from non-death eligible first degree murders; (2) whether Edwards was prejudiced by the prosecution's failure to disclose the complete Patuxent file; he had been committed to Maryland's Patuxent Institution For Defective Delinquents at the age of 19 and confined there for 14 years; (3) whether trial counsel was ineffective in not presenting a diminished capacity defense at the guilt phase; and (4) whether trial counsel was ineffective in not presenting Edwards' lifelong history of mental problems and disturbed behavior as mitigating evidence at the penalty phase. The USCA affirmed as to each issue. Schroeder (author), Silverman, and Bybee, Circuit Judges. J. Schlesinger of Sacramento, CA, for the petitioner; G. Beaumont of San Diego, CA, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 51) HABEAS CORPUS: Johnson v. Knowles, 07-15221 (9th Cir. Sept. 2, 2008). Johnson was charged in California state court with kidnap for ransom, robbery, assault with a deadly weapon, and use of a firearm. While incarcerated and awaiting trial, he learned of a murder plot between two fellow inmates. He informed the authorities of his discovery and thereafter entered into a plea agreement that he would testify against the individuals involved in the plot, if he himself could plead guilty to the charges against him and serve a sen-tence of just over 17 and ½ years imprisonment. Pursuant to this agreement, Johnson testified against the individuals at their preliminary hearings. Thereafter, one of the plotters went to trial and Johnson testified during those proceedings. However, Johnson later alleged that "law enforcement officers" employed at the jail where he was being held during trial threatened to kill him if he continued testifying for the state. Johnson maintained that these officers beat him and threatened to place him in a cell with the plotting individuals and to ensure that he was labeled a snitch when he ultimately went to prison. As a result of these threats, Johnson recanted his trial testimony. The prosecutor learned of the threats against Johnson, however, and convinced Johnson to explain in open court what happened to him and why he had changed his testimony. Johnson did so and also reaffirmed his initial trial testimony. The trial court then ordered that he be moved to a different jail. The defense attorney representing the plotter on trial moved to strike Johnson's trial testimony as unreliable. The prosecutor objected, explaining that "the system failed [Johnson] ultimately, because I'm responsible for any witness' safety ultimately. And the fault is mine; not his." The trial court denied the motion and allowed the jury to consider Johnson's testimony. The trial ended with a hung jury. Following trial, the prosecutor moved to rescind Johnson's plea agreement because Johnson committed perjury when he initially recanted his trial testimony. Follow advice of counsel, Johnson did not oppose the prosecutor's motion. But later learned that his own attorney had previously represented the second plotting individual against whom Johnson had testified. Johnson was ultimately tried and convicted and sentenced to life-plus-11 years' imprisonment. In November 2002, he filed a pro se federal habeas petition, primarily challenging the revocation of his plea agreement and asserting ineffective assistance of counsel. The State moved to dismiss the petition as untimely under the AEDPA's one-year statute of limitations, 28 USC Sec. 2244(d)(1)(A). The district court granted the motion, finding that Johnson's petition was filed more than three years after the limitations period ran. It also held that the statutory tolling and equitable tolling did not apply. On an earlier appeal, Johnson conceded that he failed to comply with the one-year limitations period. The Appellate panel affirmed as to equitable tolling, but found the record unclear as to whether statutory tolling was calculated correctly and remanded for further proceedings. On remand, Johnson conceded that he was not entitled to statutory tolling, but maintained that his untimeliness should be excused under the miscarriage of justice exception. He argued that the State's revocation of the plea agreement after he had testified at his peril and his own attorney's conflict of interest resulted in his being unfairly held in prison longer than he should have been. The district court disagreed and again dismissed the petition as untimely. At issue on appeal was whether a claim of miscarriage of justice excuses an untimely filed habeas petition where the petitioner does not allege actual innocence. The USCA affirmed, concluding that the miscarriage of justice exception is limited to those extraordinary cases where the petitioner asserts his innocence and establishes that the court cannot have confidence in the contrary finding to guilt. A petitioner who asserts only procedural violations without claiming actual innocence fails to meet this standard. Johnson's concession of guilt was thus fatal to his untimely habeas petition. O'Scannlain (author), Hawkins, and McKeown, Circuit Judges. M. Eibert of Half Moon Bay, CA, for the petitioner; P. Ruffra of San Francisco, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 52) HABEAS CORPUS: Rodriguez v. Smith, 07-16014, (9th Cir. Sept. 4, 2008). Rodriguez filed a habeas petition seeking an order directing the Bureau of Prisons ("BOP") to immediately consider transferring him to a Residential Re-entry Center ("RRC") pursuant to 18 USC Sec. 3621(b), and without reference to certain BOP policies that he asserted contradict the plain language and intent of Sec. 3621(b). The district court granted the petition. On the warden's appeal, the USCA concluded that the BOP's categorical exercise of discretion as promulgated in 28 CFR Secs. 570.20 and 570.21 violates the intent of Congress regarding statutory inmate placement and transfer considerations the BOP must undertake. The USCA thus affirmed the district court. Dissenting, Judge Rymer noted that while she understands joining the parade of courts in deciding the issue presented here, she would reverse for the reason stated in Muniz v. Sabol, 517 F.3d 29, 31 (1st Cir. 2008), and in Judge Raggi's dissent in Levine v. Apker, 455 f.3d 71, 87 (2d Cir. 2006). Hug, Rymer (dissenting), and Rawlinson (author), Circuit Judges. M. Scott of Sacramento, CA, for the respondent; S. Sady of Portland, OR, for the petitioner.(Download the full text of this decision at www.ce9.uscourts.gov/) 53) HABEAS CORPUS: Paulino v. Harrison, 07-55429, (9th Cir. Sept. 4, 2008). Paulino, an African-American male, was tired and convicted of second degree robbery, kidnapping for robbery, and first degree murder in Los Angeles County Superior Court. He is current serving a life sentence without the possibility of parole. In his habeas petition, he alleged that the jury that convicted him was unconstitutionally constituted, in violation of Batson v. Kentucky, 476 US 79 (1986). Paulino v. Castro, 371 F.3d 1083 (9th Cir. 2004), held that Paulino had established a prima facie case of discrimination and remanded his petition for an evidentiary hearing. Following that hearing, the district court granted the petition. The USCA affirmed. The State offered no evidence of race-neutral reasons to ex-plain the prosecutor's pattern of strikes or the resulting statistical disparities. In light of Paulino's strong prima facie case and the total lack of evidence rebutting it, the USCA held, as had the district court, that Paulino's petition should be granted. Paez (author) and Rawlinson, Circuit Judges, and Conlon, District Judge. M. Maxwell of Los Angeles, CA, for the respondent; DFPD K. Froyen of Los Angeles, CA, for the petitioner. (Download the full text of this decision at www.ce9.uscourts.gov/) 54) HABEAS CORPUS: Hebner
v. McGrath, 06-16533, (9th Cir. Sept. 16, 2008). Hebner challenged his
California state conviction with a petition for habeas corpus under 28 USC Sec.
2254. At issue on appeal was whether a new argument contained within a proposed
amended habeas petition, filed by Hebner after the one-year limitations period
imposed by 28 USC Sec. 2244(d)(1), related back to his timely filed original petition.
The district court denied Hebner's motion for leave to file the amended petition,
concluding that the new claim was untimely. The USCA agreed and answered the question
posed above in the negative. The district court correctly rejected Hebner's original
claim of ineffective assistance of counsel, as he could not show prejudice. The
jury instruction claim pre-sented in Hebner's amended petition did not relate
back to his original petition because it arose from a different core of operative
facts; it thus was untimely under the statute of limitations. The USCA affirmed
the denial by the district court of Hebner's habeas petition. Gould, Clifton (author),
and N.R. Smith, Circuit Judges. G. Boisseau of Santa Rosa, CA, for the appellant;
DAG N. Winaker of San Francisco, CA, for the appellee. (Download the full text of this decision
at www.ce9.uscourts.gov/)
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