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| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
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| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
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1) PRODUCTS LIABILITY: Birdsong v. Apple, Inc., 08-16641 (9th Cir. Dec. 30, 2009). Birdsong and Waggoner (collectively, the "plaintiffs") filed a class action complaint claiming that Apple's iPod is defective because it poses an unreasonable risk of noise-induced hearing loss to its users. The plaintiffs appealed the district court's dismissal of their third amended complaint. The district court determined that the plaintiffs failed to state claims for breach of the implied warranty of merchantability and fitness for a particular purpose, and that they lacked standing to assert a claim under California's Unfair Competition Law. It also determined that the danger of hearing loss did not exist unless the consumer decided to use the iPod "in an extreme way." The USCA affirmed. The plaintiffs maintained that the district court failed to take their factual allegations as true, and instead made its own counter-findings that any dan-gers of hearing loss were "obvious" and "avoidable." The USCA found that the district court did not err. The plaintiffs admitted that the iPod has an "ordinary purpose of listening to music," and nothing they alleged suggested that iPods were unsafe for that use or defective. The plaintiffs recognized that iPods play music, have an adjustable volume, and transmit sound through "ear buds." The third amended complaint included statements that the iPod is capable of playing 115 decibels of sound; that consumers may listen at unsafe levels; and that iPod batteries can last 12 to 14 hours and are rechargeable, giving users an opportunity to listen for long periods of time. Taken as true, such statements suggest only that users have the option of using an iPod in a risky manner, not that the product lacks any minimum level of quality. Wallace, Thompson (author), and Thomas, Circuit Judges. J. Friedman of Berkeley, CA, for the appellants; D. Bernick of New York, NY, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 2) TORTS / CIVIL PROCEDURE: Lemoge v. USA,
08-56210 (9th Cir. Dec. 7, 2009). Lemoge appealed the district court's denial
of his motion to set aside the dismissal of his action for personal injuries under
the Federal Torts Claims Act ("FTCA") against the U.S. and to extend
time to serve the summons and complaint. At issue on appeal was whether the district
court abused its discretion under Fed. R. Civ. Proc. 60(b) by denying Lemoge relief
from the dismissal. In April 2004, Lemoge suffered a serious leg injury at a military
facility when a concrete park bench collapsed on him. In April 2006, he filed
an administrative tort claims pursuant to the FTCA with the Department of Navy
concerning that injury. His administrative tort claim was denied. On April 5,
2007, he filed a personal injury action against the United States in federal district
court. In June 2007, his counsel, Mark Caruana, sent a copy of the summons and
complaint to the Navy's administrative-claims attorney. On Sept. 5, 2007, a Navy
attorney notified him that the U.S. Attorney's office had to be served. On Sept.
18, 2007, the district court issued an order to show cause why the action should
not be dismissed for failure to serve the government with the summons and complaint
pursuant to Fed. R. Civ. Proc. 4(m). On October 9, 2007, hearing nothing from
Lemoge, the district court sua sponte dismissed the action without prejudice.
During the time in which Lemoge should have served the government, Caruana suffered
medical complications, including a staph infection, from his own leg injury. Over
several months, he underwent three surgeries, skin grafts, extensive therapy,
and a full regimen of medications. He stated that he was not able to "connect
the dots" and thus did not timely serve the summons and complaint and was
not aware of the order to show cause or the dismissal. Lemoge conceded that because
more than six months had passed since the denial of his FTCA, he is time-barred
from re-filing his action under 28 USC Sec. 2401(B). Thus, on May 8, 2008, Caruana,
on behalf of Lemoge, filed a motion to set aside the dismissal and extend time
to service the summons and complaint. The district court denied the motion orally
at the end of a July 7, 2008 hearing and confirmed the denial through an order
filed one week later. It construed the motion as one for relief under FRCP 60(b)(1)
for excusable neglect. Despite accepting that Caruana had suffered injuries requiring
extensive treatment, the district court ruled that none of Caruana's explanations
justified the significant passage of time before the motion was filed. It also
ruled that the government would be unfairly prejudiced if the action were reopened
as it had relied on the dismissal in settling a related action. The USCA reversed
and remanded. It found that the district court abused its discretion by applying
the wrong legal standard. Proper application of the Pioneer Inv. Servs. Co.
v. Brunswick Assocs. Ltd., 507 US 380 (1993) and Briones v. Riviera Hotel
& Casino, 116 F.3d 379 (9th Cir. 1997), ("Pioneer-Briones")
excusable-neglect analysis under Rule 60(b)(1) requires consideration of four
factors and requires giving proper weight to the movants' prejudice under the
circumstances of the case. Lemoge showed excusable neglect under Pioneer-Briones
and the dismissal should be set aside. 3) BANKRUPCTY: In re Harris, 07-56310 (9th Cir. Dec. 21, 2009). Harris was the petitioner-debtor in a now-closed Chapter 7 bankruptcy case. He sued the bankruptcy trustee and other estate representatives, alleging that the bankruptcy trustee and her agents breached a contract entered into during the course of the underlying bankruptcy case. That contract, he claimed, was directly related to the administration of bankruptcy estate assets. At issue on appeal was whether the bankruptcy court had subject matter jurisdiction over this state law breach of contract claim, and whether the bankruptcy court's approval of the acts Harris now alleges breached the con-tract entitles the defendants to derived quasi-judicial immunity. The USCA answered "yes" to both questions and affirmed. For derived quasi-judicial immunity to apply, the defendants must, and did, satisfy four elements: (1) their acts were within the scope of their au-thority; (2) the debtor had notice of their proposed acts; (3) they candidly disclosed their proposed acts to the bankruptcy court; and (4) the bankruptcy court approved their acts. Gould and Bea (author), Circuit Judges, and Molloy, District Judge. M.L. Jasper of Los An-geles, CA, for the plaintiff-appellant; E. Deitz of San Diego, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 4) FRAUD / FORUM NON CONVENIENS: Boston Telecommunications v. Wood, 08-16358 (9th Cir. Dec. 9, 2009. In late 1995 and early 1996, Marshall, a U.S. citizen, was living and working in Slovakia and providing legal services to various Slovak entities. During much of this time, he shared office space with Deloitte & Touche Slovakia ("Deloitte"), an entity providing consulting, auditing and other professional services. He became acquainted with another American citizen, Wood, who was then managing partner of Deloitte. Around April 1996, Wood began soliciting Marshal to invest in a business venture being pursued by a Deloitte client, Global Cable Systems ("GCS"), a Canadian company. Wood told Marshall that GCS was planning to acquire two Bulgarian cable television companies but needed funds to consummate the purchases. He further represented that GSC had signed a Joint Venture agreement with a handful of other companies pursuant to which those companies would pay GCS for the two Bulgarian cable television companies. Wood told Marshall that Deloitte was assisting GCS with certain tasks related to the acquisition, but that financing for GCS's purchase of the Bulgarian companies had fallen through and without a replacement investor, Wood might lose is job. He told Marshall that if Marshall invested $250,000 in the Bulgarian Venture, Deloitte would give Marshall business referrals, offer him a partnership in Deloitte, guarantee the value of the Bulgarian Venture, and even loan him the amount of his investment. Wood provided various documents related to the Bulgarian Venture, including a valuation report prepared for GCS by Deloitte and a copy of the signed Joint Venture agreement. Initial discussions between Wood and Marshall apparently took place in Slovakia, and another meeting was held in Israel, attended by Wood, Marshall, GCS's chief executive officer Mainas, and others, to discuss the proposed transaction. On Mainas' invitation, Marshall and Wood traveled to Vancouver and San Francisco to negotiate Marshall's investment. Mainas lived and worked in the San Francisco area and GCS was based in Vancouver. At these meetings in June 1996, Wood reiterated his previous representa-tions, and in reliance on these and other representations, Marshall agreed to invest $250,000. Upon their return to Slovakia, Marshall and Wood arranged for the financing of Marshall's investment through a Slovakian bank. Marshall subsequently invested another $250,000 and obtained financing for that investment through the same Slovakian bank. By the end of 2002, Marshall had obtained information that caused him to conclude that Wood had knowingly or recklessly made a number of fundamental factual misrepresenta-tions, including that some of the documentation Marshall had received in connection with the investment was fraudulent, that the Joint Venture had been dissolved long before Wood convinced Marshall to invest, that the Joint Venture agreement contained a forged sig-nature or had been terminated at the time Wood convinced Marshall to invest, that Wood, Mainas and others had acted to deceive Marshall for their own benefits, and that Deloitte Slovakia had never intended to guarantee Marshall's investment. Marshall and Boston Telecommunications Group ("BTG") sued in the District Court for Northern District of California. The District Court dismissed the claims against Woods on forum non conveniens grounds. The USCA reversed. It held that the district court did not hold Wood to his burden of making a clear showing of facts which established such oppression and vexation of a defendant as to be out of proportion to the plaintiffs' convenience. All but one of the private and public interest factors were either neutral or weighed against dismissal. The doctrine of forum non conveniens is "an exceptional tool to be employed sparingly, and the district court abused its discretion in concluding that this was a proper case for application of that doctrine. Wallace (author), Thompson, and Thomas, Circuit Judges. S. Cowley of Boston, MA, for the appellants; S. Jamison of San Francisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 5) DECLARATORY RELIEF / PATRIOT ACT: Mayfield v. USA, 07-35865 (9th Cir. Dec. 10, 2009). At issue here was whether the plaintiff-appellee Brandon Mayfield, a former suspect in the 2004 Madrid train bombings, and his family, had standing to seek declaratory relief against the United States that several provisions of the Foreign Intelligence Surveillance Act, as amended by the Patriot Act, are unconstitutional under the Fourth Amendment of the U.S. Constitution. Although Mayfield settled the bulk of his claims against the government, the settlement agreement allowed him to pursue his Fourth Amendment claims. According to the terms of the settlement agreement, the only relief available to Mayfield, should he prevail on his Fourth Amendment claim, is a declaratory judgment. He may not seek injunctive relief. The USCA held that, in light of the limited remedy available to Mayfield, he did not have standing to pursue his Fourth Amendment claim because his injuries already had been substantially redressed by the settlement agreement, and a declaratory judgment would not likely impact him or his family. The USCA thus vacated the district court's judgment. Paez (author) and Rawlinson, Circuit Judges, and Collins, District Judge. D. Letter of Washington, DC, for the appellant; E. Rosenthal of Portland, OR, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 6) ENVIRONMENTAL LAW: Center for Biological Diversity v. Kempthorne, 08-35402 (9th Cir. Dec. 2, 2009). In August 2006, the U.S. Fish and Wildlife Service promulgated five-year regulations under Sec. 101(a)(5) of the Marine Mammal Protection Act ("MMPA") that authorize for a five-year period the non-lethal "take" of polar bears and Pacific walrus by oil and gas activities in and along the Beaufort Sea on the Northern Coast of Alaska. 50 CFR Sec. 18. The term "take" means "to harass, hunt, capture, or kill any marine mammal." 16 USC Sec. 1362(13). Under the regulations, individual oil and gas operators may apply to the Service for a "Letter of Authorization" ("LOA"). The LOA, if granted, lasts for up to one year. Prior to issuing the 2006 regulations, the Service evaluated the impact of the oil and gas industry on polar bears and walrus. With respect to bears, it found that past interaction had been "minimal." Most industry activity is conducted on land, away from the ice floes that polar bears prefer. Thus, most encounters are only short-term behavioral disturbances. It was unlikely that oil and gas activities will physically obstruct or impede polar bear movement. Since 1993, there have been no bears killed by industry activities. Nevertheless, from 1993 to 2004, there were more than 700 sightings of polar bears related to industrial activities. More recently, sightings have increased. Production facilities may negatively affect denning females, with industrial noise causing females to abandon their dens prematurely and endanger their offspring. However, industrial noise-producing activity may need to be very close to the den to cause such a response, and bears may even acclimate to such noises. The Service found that the impact would likely be consistent with that during previous periods of regulation. The impact would be negligible. With respect to walrus, the Service also predicted that the impact would be negligible. Walrus are uncommon in the Beaufort Sea. Between 1993 and 2004, only nine were observed in the area, and there is no evidence that a walrus has been injured directly during an interaction with the oil and gas industry. Pursuant to the National Environmental Policy Act ("NEPA"), and before issuing the final 2006 regulations, the Service produced an environmental assessment ("EA") but not an environmental impact statement ("EIS"). The purpose of the Service's EA in was not to evaluate "the impact of industry on polar bears and Pacific walrus"-the regulations themselves serve that purpose. Rather, the purpose was to "evaluate the impact of issuing incidental take regulations" as opposed to permitting industrial activities in the absence of such regulations. With this understanding, and based on the same information, the Service concluded that the incidental take regulation was likely to have no significant impart on the populations, recruitment, or survival of polar bears and walrus in the Beaufort Sea region. The EA acknowledged that climate change could affect the degree of impact on polar bears, but resolved that the magnitude of this effect was unclear. The plaintiffs, the Center for Biological Diversity and Pacific Environment, filed this action alleging that the Service regulations violate the MMPA and NEPA. The district court granted the defendants summary judgment, upholding the regulations. The USCA affirmed. First, it found that the Service's regulatory interpretation was not "manifestly contrary to the statute." The MMPA's parenthetical exclusion of commercial fishing suggests that it would otherwise qualify as a "specified activity. 16 USC Sec. 1371(a)(5)(A)(i). The term "commercial fishing" is quite broad. The term "gas and oil exploration, exploration, and production activities" is not manifestly broader. It is not too broad to qualify as a "specified activity" under the MMPA. Second, reduced physical fitness due to climate change likely poses a serious threat to the Beaufort Sea polar bear population, but the Service could reasonably conclude that such a threat could not be "reasonably expected" to manifest itself in the context of regional oil and gas activities. In so concluding, the Service made scientific predictions within the scope of its expertise, the circumstances in which the USCA said it exercise its greatest deference. The Service did not act arbitrarily and capriciously and the finding was not arbitrary and capricious for failing to account for the increased vulnerability of polar bears due to climate change. Farris (author), Thompson, and Rawlinson, Circuit Judges. B. Cummings of Joshua Tree, CA, for the appellants; D. Shilton of Washington, DC, for the appellees; J. Leppo of Seattle, WA, for the intervenor. (Download the full text of this decision at www.ce9.uscourts.gov/) 7) ENVIRONMENTAL LAW / ATTORNEYS' FEES: Klamath Siskiyou Wildlands Center v. U.S. Bureau of Land Management, 08-35463 (9th Cir. Dec. 15, 2009). At issue here was whether the plaintiffs were prevailing parties within the meaning of the Equal Access to Justice Act ("EAJA") when before judgment the Bureau of Land Management ("BLM") withdraws its challenged decision to conduct a timber sale. The plaintiffs, Klamath Siskiyou Wildlands Center, Cascadia Wildlands Project, and Umpqua Water-sheds (collectively "Klamath") sued the BLM, alleging that a planned timber sale in the Willy Slide area of the Medford District violated the National Environmental Protection Act ("NEPA"), and the Forest Lands Policy and Management Act ("FLPMA"). Klamath sought a "preliminary injunction; a declaration that the challenged decision violated certain laws; a permanent injunction against the project until the BLM complied with those laws; and an award of costs and attorneys fees." Klamath filed its complaint in October of 2005. The BLM's own guidelines barred proceeding with the Willy Slide timber sale between October 15, 2005 and May 15, 2006, although a BLM official could waive this restriction. While cross-motions for summary judgment were pending before a magistrate, the parties stipulated that the BLM would stay authorization of the sale until the magistrate made a recommendation on the cross-motions and any objection had been resolved. The stay lasted until May 15, 2006, at which time Klamath would have the option of moving for a preliminary injunction. The magistrate adopted this stipulation in January of 2006. Meanwhile, in a different lawsuit, the same plaintiffs challenged, on similar grounds, two other timber sales that the BLM proposed. On November 6, 2006, the USCA decided in favor of Klamath in the appeal of that case. Klamath Siskiyou Wildlands Ctr. v. Boody, 468 F.3d 549 (9th Cir. 2006). At the same time, the cross-motions for summary judgment were still pending in this case before the magistrate. The day after the Boody decision, the magistrate filed Findings and Recommendations ("F&R"). He concluded that Boody was "directly on point" and that Klamath was "entitled to summary judgment" on some of its claims. That same day (November 7, 2006), the BLM on its own vacated its earlier ruling and granted Klamath's protest of the Willy Slide timber sale. In a letter to Klamath, the BLM noted the objection to its previous decision, as well as recent case law pertaining to similar activities and NEPA analysis. The BLM stated that, in light of those two considerations, it would wait to award the Willy Slide sale "until such time that supplemental analysis and decision-making had been completed as appropriate." Is was unclear whether the BLM did this before or after it found out about the magistrate's F&R. The BLM then moved to dismiss the case without prejudice for lack of jurisdiction on the ground that it was either moot or unripe, objecting to the F&F on the same basis. The district court granted the motion to dismiss on both grounds. It concluded that the action was no longer ripe because Klamath's claims were contingent upon future events; the BLM may or may not proceed with the Willy Slide timber sale. The action was also moot because the court could not grant Klamath effective relief as the Willy Slide timber sale decision had been withdrawn and the Annual Species Reviews have been held invalid in Boody. Klamath then moved for attorneys' fees and costs under EAJA. Over the BLM's objection, the district court granted the motion. The BLM appealed. The USCA held that Klamath was not a prevailing party in this case because neither the stipulated order, the magistrate's F&R, nor the binding ruling in Boody amounted to a "material alteration of the legal relationship of the parties" that is "judicially sanctioned," as required in Buchhannon Bd. v. W. Va. Dep't of Health and Human Res., 532 US 598, 604-5 (2001). The USCA thus reversed and vacated the district court's grant of attor-neys' fees and costs to Klamath, and remanded for further proceedings. O'Scannlain (author), Fernandez, and Fisher, Circuit Judges. R. Lundman of Washington, DC, for the appellant; E. Madden of Portland, OR, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 8) ENVIRONMENTAL LAW / NATIVE AMERICANS: South Fork Band Council of Western Shoshone of Nevada v. U.S. Dept. of the Interior, 09-15230 (9th Cir. Dec. 3, 2009). This case involves an appeal from the denial of a preliminary injunction in an environmental challenge to a major gold mining project on the side of Mt. Tenabo in Nevada. The mountain has religious significance for some Indians. The plaintiffs-appellants are the South Fork Band Council of Western Shoshone of Nevada, and other tribes ("the Tribes"). On appeal before the USCA were claims alleging violation of the Federal Land Policy Management Act ("FLPMA") and the National Environmental Policy Act ("NEPA"). In determining whether a preliminary injunction should issue, the USCA said it was bound by Winter v. Natural Res. Def. Council, 129 S.Ct. 365 (2008). At issue was whether the Tribes demonstrated that they are likely to succeed on the merits of their claims; that they are likely to suffer irreparable harm if a preliminary injunction is denied; that the balance of the equities tipped in their favor; and that an injunction is in the public interest. The Tribes had to make each of these showings to be entitled to injunctive relief. Given the thorough consideration of the project's impact on the Tribes religion in the EIS, which was approved after more than two years of study and consultation with the Tribes and with the public, the USCA concluded that the Tribes had not satisfied their burden of showing a likelihood of success on the merits of their PLPMA claims. The USCA reversed the denial of injunctive relief on the NEPA claims, however, and remanded for the entry of an injunction pending preparation of an EIS that adequately considers the environmental impact of the extraction of millions of tons of refractory ore, mitigation of the adverse impact on local springs and streams, and the extent of fine particulate emissions. Schroeder, Tashima, and Berzon, Circuit Judges. Per Curiam. R. Flynn of Lyons, CO, for the appellants; F. Wikstrom of Salt Lake City, UT, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 9) NATIVE AMERICAN LAW: USA v. Washington, 08-35794 (9th Cir. Dec. 11, 2009). The Samish Tribe claims to be a successor to a tribe that entered the Treaty of Point Elliott, 12 Stat. 927 (1855), with the United States. In 1974, the Samish intervened in the foundational treaty rights case of USA v. Washington, 384 F. Supp. 312 (W.D. Wash. 1974) ("Washington I"), aff'd, 520 F.2d 676 (9th Cir. 1975), in order to establish its entitlement to treaty fishing rights. At that time, the Samish had not been recognized by the federal government. The district court rejected the Tribe's claim to treaty rights, finding that it had not "lived as a continuous separate, distinct and cohesive Indian cultural or political community" and was not "descendent from any of the tribal entities that signed the Treaty of Point Elliott." USA v. Washington, 476 F.Supp. 1101, 1106 (W.D. Wash. 1979) ("Washington II"), aff'd, 641 F.2d 1368 (9th Cir. 1981). Some 20 years later, in connection with separate litigation, the Tribe succeeded in obtaining federal recognition. The Tulalip Tribes, which possessed treaty fishing rights and feared their dilution, were denied intervention in the Samish recognition proceedings on the ground that recognition could not affect treaty rights. Greene v. USA, 996 F.2d 973 (9th Cir. 1993) ("Greene I"). In 2002, the Samish returned to the Washington litigation and sought on the basis of its federal recognition, relief under Fed. R. Civ. Proc. 60(b) from the judgment in Washington II. The district court denied relief. The USCA reversed, holding that the intervening federal recognition was an extraordinary circumstance permitting the reopening of the 1979 decision under Rule 60(b)(6). USA v. Washington, 394 F.3d 1152, 1161 (9th Cir. 2005) ("Washington III"). On remand, the district court again denied Rule 60(b) relief, and the Samish again appealed. The USCA then affirmed. In doing so, it resolved a conflict in its precedent between Washington III, which held that recognition was an extraordinary circumstance justifying the reopening of Washington II, and Ninth Circuit cases hold that federal recognition is an independent process that has no effect on treaty rights. See Greene I, 996 F.2d, 977, and Greene v. Babbitt, 64 F.3d 1266, 120-71 (9th Cir. 1995). The USCA resolved the conflict in favor of the Greene proposition: recognition proceedings and the fact of recognition have no effect on the establishment of treaty rights at issue in this case. Kozinski, Schroeder, Canby (author), Reinhardt, Kleinfeld, Wardlaw, W. Fletcher, Berzon, Rawlinson, Clifton, and Callahan, Circuit Judges. E. Peterson of Washington, DC, for the appellant; M. Morisset of Seattle, WA, for the appellee. ( (Download the full text of this decision at www.ce9.uscourts.gov/) 10) NATIVE AMERICA LAW: Jeffredo v. Macarro, 08-55037 (9th Cir. Dec. 22, 2009). The Pechanga Band of the Luiseno Mission Indians disenrolled some of its members (the "appellants") for failing to prove their lineal descent as members of the Tribe. As federal courts generally lack jurisdiction to consider an appeal from the decision of an Indian tribe to disenrolled one of it members, the appellants brought this petition for habeas corpus under 25 USC Sec. 1303 of the Indian Civil Rights Act ("ICRA"), claiming their disenrollment by members of the Pechanga Tribal Council ("appellees") was tantamount to an unlawful detention. Despite the novelty of this approach, the USCA nonetheless lacked subject matter jurisdiction to consider the claim, because the appellants were not de-tained. The USCA thus held that the appellants could not bring their claims under ICRA Sec. 1303 and affirmed the district court. Judge Wilken dissented. She thought that, when viewed together, the act of stripping the appellants' Tribal citizenship and the current and potential restrictions placed upon the appellants constitute a severe restraint on their liberty. She thought the appellants had been detained within the meaning of Sec. 1303. She would reverse and remand to the district court to hear their habeas petition on the mer-its. Rawlinson and N.R. Smith (author), Circuit Judges, and Wilken (dissenting), District Judge. P. Harris of San Francisco, CA, for the petitioners; F. Lawrence of Los Angeles, CA, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/) 11) ERISA: Anderson v. Suburban Teamsters of Northern Illinois Pension Fund Board of Trustees, 07-15532 (9th Cir. Dec. 1, 2009). Anderson appealed the district court's determination, following a bench trial, that the Suburban Teamsters of Northern Illinois Pension Fund Board of Trustees ("the Trustees") did not abuse their discretion in partially denying his claim for disability benefits pursuant to a plan maintained under ERISA. In the past, the Plan specified one way to calculate disability benefits. Before Anderson applied for benefits, the Plan was amended to change the formula for calculating benefits depending on the date the employee became disabled. Anderson claimed that the Trustees improperly determined the date of his disability, resulting in a lower benefit. He also claimed that if the Trustees appropriately determined the date of his disability, then the 1999 amendment violates ERISA's anti-cutback rule. Finally, Anderson claimed that Trustees improperly applied a Qualified Domestic Relations Order ("QDRO"), allocating half of his pre-divorce disability benefits to his ex-wife. The USCA affirmed. The Trustees did not abuse their discretion in finding Anderson disabled as of November 2001 and correctly applied the QDRO to reduce the amount of his benefits in favor of his ex-wife. Moreover, Anderson's disability retirement pension is an employee welfare benefit plan, even though it is only part of a comprehensive ERISA plan and even though the Plan refers to it as a "pension." As a welfare plan, the disability retirement pension is not subject to the anti-cutback rule. Trott (author) and Bea, Circuit Judges, and Conlon, District Judge. A. Ambrose of Los Angeles, CA, for the plaintiff-appellant; B. Collins of Chicago, IL, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 12) ERISA: Brown v. Southern California IBEW-NECA Trust Fund, 08-55398 (9th Cir. Dec. 7, 2009). At issue here was whether the Board of Trustees of the Southern California International Brotherhood of Electrical Workers-National Electrical Contractors Association ("IBEW-NECA") Pension Plan violated ERISA when it suspended Brown's early retirement benefits. The Trustees determined that Brown's job installing heating, ventilation, and air conditioning ("HVAC") equipment for an electrical contractor constituted "employment as an electrical contractor," a prohibited activity for persons drawing early retirement benefits. The district court found that the Trustees erred when it suspended Brown's early retirement benefits. The USCA affirmed. Under either abuse of discre-tion or de novo review, the Trustees erred by interpreting the Plan in a way that contradicted the Plan's plain language. Kozinski and Pregerson (author), Circuit Judges, and Morrow, District Judge. D. Carroll of San Francisco, CA, for the defendant-appellant; J. St. John of San Francisco, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 13) LONGSHORE WORKERS COMPENSATION: Trachsel v. Rogers Terminal, 08-74397 (9th Cir. Dec. 30, 2009). Trachsel petitioned the USCA for review of an administrative law judge's ("ALJ") compensation award under the Longshore and Harbor Workers' Compensation Act ("LHWCA"). The LHWCA provides that Trachsel's average daily wage, on which compensation is based, should be calculated by dividing his total annual salary in the year preceding his injury by the number of days he was employed in that year. 33 USC Sec. 910(a). The ALJ included unworked paid holidays in the number of days Trachsel was employed, which resulted in a lower award than he would have received had those days not been included. When the Benefits Review Board ("BRB") affirmed, Trachsel petitioned for review, arguing that the ALJ erred by including unworked paid holidays. The USCA affirmed. Following In-galls Shipbuilding, Inc. v. Wooley, 204 F.3d 616 (5th Cir. 2000), it concluded that a day should be included as a "day so employed" under Sec. 910(a) if the employee is paid for that day as if he actually worked it. The BRB correctly adopted this rule. And, the ALJ correctly applied it, concluding that Trachsel's unworked paid holidays counted as "work days" and should be counted as days employed. In addition, for those days where Trachsel received vacation pay and also worked, the ALJ correctly counted them only once. O'Scannlain and N.R. Smith, Circuit Judges, and Whyte (author), District Judge. C. Rabinowitz of Portland, OR, for the petitioner; J. Beattie of Portland, OR, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 14) AMERICANS WITH DISABILITIES ACT: Alvarado v. Cajun Operating Company, 08-15549 (9th Cir. Dec. 11, 2009). At the age of 65, Alvarado was hired by Jesus Tapia, the store manager of a Church's Chicken restaurant in Tucson, Arizona, to perform part-time maintenance work. Alvarado eventually became a cook at Church's. That position required him to clean a walk-in refrigerator. For three and one-half years, he performed satisfactorily according to job evaluations from Tapia and his successor, Tina Montague. That all changed when Alvarado called Church's "hotline" to complain that Montague had made inappropriate comments about his age. When confronted, Montague denied any wrongdoing. However, three days later she gave Alvarado his first Performance Counseling Record noting that he failed to complete his daily duties, such as panning and rotating chicken, battering chicken, and cleaning the walk-in refrigerator. Martinez, an assistant manager, gave Alvarado two additional counseling records for similar derelic-tions. Martinez subsequently stated that she only wrote her reports because Montague told her to do so. She actually thought that Alva-rado did not deserve the negative reports. However, over the next nine months, Alvarado received four more similar reports from assis-tant store manager Don Magel. Alvarado called the hotline a second time, accusing Montague of retaliation against him for making the first hotline call. He also complained to Montague about the pain in his hands when he worked in the walk-in refrigerator. Montague referred Alvarado to a doctor who cleared Alvarado to return to work the same day after noting that he suffered only from arthritis, "a condition common among people his age." Alvarado was eventually terminated. He filed a lawsuit against Cajun Operating Company alleging employment discrimination in violation of the Americans with Disabilities Act ("ADA"), age discrimination, race and national origin discrimination, and employment discrimination and retaliation claims. Cajun filed a motion in limine to bar Alvarado from seeking punitive and compensatory damages for his ADA retaliation claims. It also asserted that, because only equitable relief was available, Alvarado did not have a right to a jury trial on his retaliation claims. The district court granted Cajun's motion in limine, finding that the plain language of 42 USC Sec. 1981a(a)(2) precluded compensatory damages, punitive damages, and trial by jury. The district court certified an interlocutory appeal on these issues, and the USCA granted permission to appeal the district court's interlocutory order. The USCA affirmed. It adopted the reasoning of Kramer v. Banc of Am. Sec., 355 F.3d 961 (7th Cir.), cert denied 542 US 932 (2004), and held that punitive and compensatory damages are not available for ADA retaliation claims. Because such claims are limited to the equitable relief specified in 42 USC Sec. 2000e-5(g)(I), the district court correctly concluded that Alvarado was not entitled to a jury trial on his ADA retaliation claims. Rawlinson (author) and Bybee, Circuit Judges, and Burns, District Judge. R. Martinez of Tucson, AZ, for the appellant; L. Voepel of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 15) AMERICANS WITH DISABILITIES EDUCATION ACT: Ashland School District v. Parents of Student R.J., 08-35937 (9th Cir. Dec. 7, 2009). R.J. was born in 1989 and adopted at the age of four-and-a-half. As a second grader, she was diagnosed with attention deficit hyperactivity disorder ("ADHD"). At issue on appeal was whether the district court abused its discretion by denying reimbursement for private-school tuition to R.J.'s parents for services under the Individuals with Disabilities Education Act. The USCA concluded that the district court did not clearly err in finding that R.J.'s residential placement at Copper Canyon, a private school, was not necessary to provide special education and related services. As courts may grant reimbursement under 20 USC Sec. 1415(i)(2)(C)(iii) only when the private school placement is appropriate, Forest Grove Sch. Dist. v. T.A., 129 S.Ct. 2484, 2493 n. 9 (2009), the district court did not abuse its discretion in denying R.J's parents reimbursement for tuition at Copper Canyon. O'Scannlain (author) and N.R. Smith, Circuit Judges, and Whyte, District Judge. M. Broadhurst of Eugene, OR, for the appellant; N. Hungerford of Oregon City, OR, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 16) AMERICANS WITH DISABILITIES EDUCATION ACT: Ashland School District v. Parents of Student E.H., 08-35926 (9th Cir. Dec. 7, 2009). At issue on appeal in this Individuals with Disabilities Education Act ("IDEA") action, was the extent to which a district court must defer to a state hearing officer's decision to order a school district to reimburse a student's parents for the cost of a private education. E. H., a student in the Ashland School District ("ASD"), first began suffering from emotional problems in 1998, while in the third grade. At the same time, she began exhibiting difficulty with peer integration, was teased by other children, and de-veloped migraine headaches. By 2000, while in the fifth-grade year, the migraines became so severe that E.H.'s parents hospitalized her. Her treating physician determined that she was suffering from anxiety and depression, and that her migraines had a medical origin but were triggered by psychological factors. At this time, ASD identified E.H. as eligible for special education services and developed an Individualized Education Program ("IEP"), as required by 20 USC Sec. 1414(d). After ASD implemented this IEP, E.H. repeated the fifth grade with improved results. Throughout her sixth grade and the first two trimesters of her seventh grade, she maintained a strong academic performance, and even participated in a program at Southern Oregon University for talented and gifted children. During the latter part her seventh grade however, she became depressed, began to talk about suicide, and suffered from frequent migraines that ultimately required hospitalization in the spring of 2003. During her eighth grade-the 2003 to 2004 school year-she attended one class a day at Ashland Middle School, and spend the remainder of the school day at Willow Wind, an ASD operated alternative education program. In September of that year, ASD provided her parents with a 23-page pamphlet that outlined their rights and responsibilities under the IDEA. Among other things, the pamphlet notified them that a court or hearing officer might refuse to reimburse them for private school costs if they failed to notify ASD of their objections to the IEP prior to private school enrollment. In late April 2004, near the end of E.H's eighth grade year, ASD held an IEP team meeting to consider strategies to smooth the transition to high school the following school year. Over the summer, E.H. was hospitalized on two occasions for suicide attempts. By this time, her treating physicians and therapists were recommending residential treatment rather than ordinary public school, to address her persistent emotional and medical problems. In September 2004, shortly after E.H.'s second discharge from the hospital, ASD reconvened its team to draft a new IEP. The parents indicated their desire to enroll E.H. in Willow Wind, as they had done the previous school year, but ASD declined because it was unable to monitor E.H. closely enough to prevent another suicide attempt. ASD's personnel then wrote a modified IEP for the next school year, to which the parents did not object. Although the parents enrolled E.H. full time at Ashland High School in the fall of 2004, they indicated to ASD that they were actively searching for a residential facility in which to place their child. By late November 2004, E.H.'s emotional problem resurfaced. The parents and ASD agreed that homebound instruction was appropriate, and ASD provided a tutor. ASD did not draft a new IEP because it believed that the home placement was only temporary pending the child's transfer to a private residential facility. In December 2004, E.H. was once again hospitalized for suicidal tendencies and threatening to injure family members. E.H. briefly returned to Ashland High School for a total of 12 days between December 14, 2004, and January 24, 2005. On January 24, the parents transferred E.H. from Ashland High School to Youth Care, a private out-of-state residential treatment program. Prior to this transfer, the parents never indicated any dissatisfaction with the education ASD provided the child, and ASD never volunteered that, under some circumstances, it was obligated to pay for residential educational facilities. On September 8, 2005, after E.H. had been enrolled in Youth Care for some seven months, the parents mailed ASD a formal letter indicating that they were unhappy with the educational services it had provided and requesting reimbursement for the cost of the residential placement. After receiving this letter, ASD convened a meeting to draft a new proposed IEP. The parents rejected that IEP in January 2006, and requested a due process hearing before a state hearing officer to determine whether ASD had provided E.H. with a Free Appropriate Public Education ("FAPE") and whether they were entitled to reimbursement for the costs of residential treatment. The hearing officer concluded that the IEPs ASD offered in September 2004 and December 2005 did not provide E.H. with a FAPE, as required by the IDEA. He further found that Youth Care did provide a FAPE and was thus an appropriate placement. He also found that the parents had removed E.H. from Ashland High School without notifying ASD of their concerns with the education it was providing. Under Oregon Administrative Rule 581-015-0156(4) (2004)-which required the parents to notify ASD of their concerns either at an IEP meeting or ten days prior to withdrawing E.H.-that failure permitted the hearing officer to deny or to reduce the amount of reimbursement. For the period prior to September 18-ten days after the parents gave ASD notice of their objections to the IEP-the hearing officer ordered ASD to reimburse the parents for half of the costs of this residential program. He also granted the parents full reimbursement for all residential care expenses for the period after September 18, 2005. Although the parents did not satisfy the notice requirements, the hearing officer concluded that he was compelled to require the ASD to reimburse the parents. Moreover, because ASD had the statutorily required ten days notice with respect to this time period, the hearing officer determined that it was proper to award the parents full reimbursement. The district court reversed the hearing officer's reimbursement award. Conducting an independent review of the record, it found that the parents were not entitled to reimbursement for the expenses associated with the residential placement either before or after they provided ASD with notice. It's determination rested on several factors, such as the high cost of residential facilities; the parents' clear failure to adhere to the statutory required notice requirement; the medical, rather than educational, nature of E.H's placement; the parents failure to give ASD notice that they were rejecting the IEP; ASD's cooperation and willingness to revise E.H.'s IEP whenever the parents wished to change E.H's placement; and the parents' apparent unwillingness to consider returning E.H. to an ASD school. The district court also rejected the parents' request for interim relief-or rei-bursement for E.H's residential care during the allegedly delayed administrative proceedings. It concluded that the hearing officer's decision was not unreasonably delayed. The USCA affirmed. As the district court's rulings were amply supported by the record, the USCA could not say that it abused its discretion by denying the parents' claim for reimbursement. The district court's decision that the hearing officer's delay was not unreasonable was based on the numerous motions and briefs the parties filed, as well as the voluminous record. There were many motions before the hearing officer, and the district court reasonably concluded that he decided each motion in a timely fashion. The district court thus did not abuse its discretion by denying the parents' motion for interim relief. O'Scannlain (author) and N.R. Smith, Circuit Judges, and Whyte, District Judge. M. Broadhurst of Eugene, OR, for the appellant; N. Hungerford of Oregon City, OR, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)
18) FOURTH AMENDMENT: Greene v. Camreta, 06-35333 (9th Cir. Dec. 10, 2009). At issue here was whether a child protective services caseworker and a deputy sheriff, understandably concerned for the well-being of two young girls, exceeded the bounds of the U.S. Constitution. Specifically, the girls' mother, Greene, alleged, on behalf of S.G., one of her children, that caseworker Camreta, and deputy sheriff Alford, violated the Fourth Amendment when they seized and interrogated S.G. in a private office at her school for two hours without a warrant, probable cause, or parental consent. Greene also maintained that Camreta's subsequent actions, both in securing a court order removing the girls from her custody and in subjecting them to intrusive sexual abuse examination outside her presence, violated the Greenes' familial rights under the Due Process of the Fourteenth Amendment. The USCA held that Camreta and Alford were entitled to qualified immunity with respect to S.G.'s Fourth Amendment claims and affirmed the district court's grant of summary judgment on that basis. However, with respect to the Greenes' Fourteenth Amendment claims regarding the removal order, the USCA concluded that there existed a genuine issue of material fact as to whether Camreta secured the order by misrepresenting his conversation with S.G.'s mother. The USCA thus reversed the district court's grant of summary judgment on that claim. Finally, the USCA held that Camreta's decision to exclude the mother from her daughters' medical examinations violated the Greenes' clearly es-tablished familiar rights under the Fourteenth Amendment. The USCA thus reversed the district court's grant of summary judgment on that claim as well. Berzon (author) and Bea, Circuit Judges, and Gutierrez, District Judge. M. Miller of Bend, OR, for the appellant; H. Myers of Bend, OR, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 19) CHILD WELFARE ACT: CACFS v. Allenby, 08-16267
(9th Cir. Dec. 14, 2009). The California Alliance of Child and Family Services
("Alliance"), an association of private, non-profit agencies that provide
adoption, foster care, and group home services, ap-pealed a summary judgment entered
in favor of Cliff Allenby, the interim director of the California Department of
Social Services (the "State"). At issue on appeal was whether the State
was in compliance with the mandate of the federal Child Welfare Act ("CWA")
that a participating state "cover the cost" of certain enumerated items
for foster care group homes when it pays at a rate that is approximately 80% of
the actual 1986-1987 costs adjusted for inflation. The district court found that
this substantially complies with the CWA. The USCA disagreed. The natural meaning
of "cover the cost" is to pay in full, not in part. As the State was
not covering the costs as required by the CWA, the USCA reversed the district
court's summary judgment for the State and denial of summary judgment for the
Alliance. There were no factual disputes in this case and thus, the Alliance was
entitled to judgment as a matter of law. The USCA remanded for the district court
to determine the proper scope of declaratory and injunctive relief. Concurring,
Judge Wu agreed that the district court's summary judgment should be reversed
and remanded but for different reasons than given by the majority. Initially,
the majority characterized the CWA as having a "mandate" that a participating
State "cover the costs" of certain enumerated items for children's foster
care homes. It then suggested that it was adopting the "natural meaning"
of the term "cover the costs" which is "to pay in full, not in
part." The majority also stated that "because the CWA leaves 'cover'
unqualified, the common understanding is that it must refer to meeting all the
costs of food, clothing, shelter, etc. Later, the majority indicates that it is
acceptable under the CWA for a State to create a plan which allows for an estimate
of the enumerated costs for various categories of foster care providers (such
as the Rate Classification Level) and to pay such estimates where the plan also
has a provision for annual adjustments such as the California Necessities Index
("CNI"). Judge Wu agreed with the later conclusion but not with the
initial ones. He also differed with regards to the issues which need to be ruled
upon on this appeal. It is not, he said, necessary to decide what "cover
the cost' means under the CWA or for this court to determine whether "substantial
compliance" with the "CWA's cost requirements suffices" in order
to resolve this appeal. Moreover, discretion warrants that the USCA not do so
here. Rather, because the State plan requires annual CNI adjustments and California
clearly has not fully complied with that requirement (or obtained relief from
that obligation), reversal can and should be based on that ground alone. Goodwin
and Rymer (author), Circuit Judges, and Wu (concurring), District
Judge. W. Abrams of East Palo Also, CA, for the appellant; DAG G. Prince of San
Francisco, CA, for the appellees. (Download
the full text of this decision at www.ce9.uscourts.gov/)
21) CIVIL RIGHTS / EXCESSIVE FORCE: Bryan v. McPherson, 08-55622 (9th Cir. Dec. 28, 2009). Officer Brian McPherson deployed his taser against Carl Bryan during a traffic stop for a seatbelt infraction. Bryan filed this action under 42 USC Sec. 1983, asserting excessive force in violation of the Fourth Amendment. McPherson appealed the district court's denial of his motion for summary judgment based on qualified immunity. The USCA affirmed because, viewing the circumstances in the light most favorable to Bryan, McPherson's use of the taser was unconstitutionally excessive and a violation of Bryan's clearly established rights. Bryan had been stopped at an intersection when McPherson, who was stationed there to enforce seatbelt regulations, stepped in front of his car and signaled him not to proceed. McPherson then approached the passenger window and asked Bryan whether he knew why he had been stopped. Bryan, knowing it was because his seatbelt was not buckled, became increasingly angry "at himself," he later said, and simply stared straight ahead. McPherson requested that Bryan turn down his radio and pull over to the curb. Bryan complied with both requests, but as he pulled his car to the curb, still angry with himself over the prospects of another citation, he hit his steering wheel and yelled expletives to himself. Having pulled his car over and placed it in park, Bryan stepped out of his car. There was no dispute that Bryan was agitated, standing outside his car, yelling gibberish and hitting his thighs, clad only in his boxer shorts and tennis shoes. It was also undisputed that Bryan did not verbally threaten McPherson and, according to McPherson, was standing 20 to 25 feet away and not attempting to flee. McPherson testified that he told Bryan to remain in the car, while Bryan testified that he did not hear McPherson tell him to do so. The one material dispute concerns whether Bryan made any movement toward the officer. McPherson testified that Bryan took "one step" toward him, but Bryan says he did not take any step, and the physical evidence indicates that Bryan was actually facing away from McPherson. Without giving any warning, McPherson shot Bryan with his taser gun. The electrical current immobilized Bryan whereupon he fell face first to the ground, fracturing four teeth and suffering facial contusions. He was arrested and taken to the hospital for treatment. Bryan sued McPherson and the Coronado, California, Police Department, its police chief and the City of Coronado for excessive force in violation of 42 USC Sec. 1983, assault and battery, intentional infliction of emotional distress, a violation of California Civil Code Sec. 52.1, as well as failure to train and related causes of action. On summary judgment, the district court granted relief to the City and its Police Department, but determined that McPherson was not entitled to qualified immunity at this stage of the proceedings. The court concluded that a reasonable jury could find that Bryan presented no immediate danger to McPherson and that no use of force was necessary. In particular, the district court found that a reasonable jury could find that Bryan was between 12 and 25 feet from McPherson and was not facing him or advancing toward him. The court also found that a reasonable officer would have known that the use of the taser would cause pain and, as Bryan was standing on asphalt, that a resulting fall could cause injury. Under the circumstances, the district court concluded that it would have been clear to a reasonable officer that shooting Bryan with a taser was unlawful. The USCA agreed. Pregerson, Reinhardt, and Wardlaw (author), Circuit Judges. S. Boemer of El Cajon, CA, for the appellant; E. Iredale of San Diego, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 22) IMMIGRATION: Toj-Culpatan v. Holder, 05-72179 (9th Cir. Dec. 1, 2009). Toj-Culpatan, a native and citizen of Guatemala, petitioned for review of an order by the Board of Immigration Appeals summarily affirming an Immigration Judge's denial of his request for asylum, withholding of removal, and deferral of removal under the Convention Against Torture. The Immigration Judge denied the petitioner's application for asylum because he failed to file his asylum application within one year after his entry into the United States, as required by 8 CFR Sec. 208.4(a)(2), and faced no "extraordinary circumstances" that would excuse his late filing under 8 CFR Sec. 208.4(a)(5). Because the petitioner did not file an asylum application in English within the one year deadline and no "extraordinary circumstances" prevented him from filing on time, the USCA denied his petition for review of the BIA order affirming the IJ's denial of asylum. Kozinski, Hug, and Bea, Circuit Judges. Per Curiam. L. Calero of Oakland, CA, for the petitioner; A. Barksdale of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 23) IMMIGRATION: Rendon v. Holder, 06-70301 (9th Cir. Dec. 2, 2009). Rendon, a native and citizen of Mexico, sought review of a decision of the BIA affirming the denial of her application for cancellation of removal by the Immigration Judge ("IJ"). She main-tained that the "exceptional and extremely unusual hardship" requirement of 8 USC Sec. 1229b(b)(1) violates the Equal Protection Clause of the U.S. Constitution, and that the IJ denied her a full and fair hearing in violation of the Due Process Clause. The USCA agreed that the IJ denied Rendon a full and fair hearing and that this prejudiced her ability to present evidence in support of her appli-cation for cancellation of removal. It thus granted her petition for review and remanded to the BIA with instructions to order a new hearing before the IJ. Pregerson and Thompson, Circuit Judges, and Fogel (author), District Judge. S. Park of Los Angeles, CA, for the petitioner; P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 24) COMPETENCE TO STAND TRIAL: USA v. No Runner, 08-30449 (9th Cir. Dec. 30, 2009). The government charged Marie No Runner with stealing a vehicle, driving recklessly and causing an accident that killed one person and injured two others. She faced one count of involuntary manslaughter, one count of theft, and two counts of assault resulting in serious bodily injury. She pled not guilty, and moved for a psychiatric competency examination under 18 USC Sec. 4241, arguing that she suffered "traumatic brain injury in the accident" and "has no memory of the events of the Indictment." The district court granted the motion, and Dr. Low, a psycholo-gist, conducted a forensic evaluation of No Runner at the Federal Detention Center in Seatac, Washington. Low acknowledged that No Runner lacked any memory of the events charged in the indictment, but nonetheless concluded that she was competent to stand trial. The district court held a competency hearing. Low, the only witness, testified that No Runner's claimed memory loss was genuine, and that she suffered from post-traumatic amnesiac disorder that deprived her of all memory of the events surrounding the accident. None-theless, Low opined that No Runner was competent to stand trial because "she's going to be able to consult and assist with her attorney beyond that very circumscribed memory loss." The district court found No Runner competent to stand trial. No Runner then appealed the pretrial order finding her competent to stand trial. Because a pretrial competency determination is a non-final order and the collateral order doctrine does not apply, the USCA dismissed her appeal for lack of jurisdiction. Kozinski, Fisher (author), and Paez, Circuit Judges. AUSA E. Carroll of Great Falls, MT, for the appellee; AFPD R.H. Branom of Great Falls, MT, for the appellant. (Download the full text of this decision at www.ce9.uscourts.gov/) 25) IMMIGRATION: Lin v. Holder, 08-71227 (9th Cir. Dec. 3, 2009). This case required the USCA to address a series of motions to reopen seeking to file successive asylum petitions on the theory that China's family planning policies have become more stringent since the time of the original removal proceedings. Lin, the petitioner in the instant case, specifically asserted that because she already has children, she fears that she will be forcibly sterilized if returned to China. The USCA was unpersuaded that the sterilization policies in China have changed to the degree that relief is warranted. It thus denied Lim's petition. Gould and Rawlinson (author), Circuit Judges, and Beistline, District Judge. G. Yerman of New York, NY, for the petitioner; M. Heyse of Washington, DC, for the respon-dent. (Download the full text of this decision at www.ce9.uscourts.gov/) 26) IMMIGRATION: Halim v. Holder, 04-74868
(9th Cir. Dec. 30, 2009). Halim sought review of the denial of his claims for
asy-lum, withholding of removal, and relief under the Convention Against Torture
based on his fear of being persecuted due to his Chinese ethnicity should he return
to Indonesia. The Immigration Judge ("IJ") noted that Halim "testified
to a general pattern of acts of harass-ment taken against him" because of
his Chinese ethnicity, but commented that there were only "two significant
events that required discussion." These were a 1988 incident in junior high
school when Halim was stripped naked and a May 1998 incident when he was beaten
by a mob. The IJ noted that after the 1998 incident, Halim went back to the university
and worked to earn money until he was able to obtain a visa to come to the U.S.
in August 2000. The IJ stated that he did not condone acts of harassment and physical
assault, but held that they did not amount to persecution. The USCA affirmed the
denial of relief upon concluding that Halim had not made a compelling showing
that (1) the reported incidents of discrimination amounted to persecution, and
(2) the incidents provided an objec-tive basis for a well-founded fear of future
persecution, or (3) he is a member of a disfavored group who has been individually
targeted. Judge Cudahy concurred but wrote separately to point out that under
other circumstances, this matter should be remanded to the BIA to consider the
effect of Wakkary v. Holder, 558 F.3d 1049 (9th Cir. 2009), Lolong v.
Gonzales, 484 F.3d 1173 (9th Cir. 2007) (en banc), and Sael v. Ashcroft,
386 F.3d 922 (9th Cir. 2004)-all decided after the BIA dealt with the present
case. Cudahy (concurring), Rawlinson, and Callahan (author), Circuit
Judges. S. Healey of Seattle, WA, for the petitioner; AAG T. West of Washington,
DC, for the respondent. (Download
the full text of this decision at www.ce9.uscourts.gov/)
28) IMMIGRATION: Hamazaspyan v. Holder, 05-72267 (9th Cir. Dec. 21, 2009). Hamazaspyan petitioned for review of the Board of Immigration Appeal's dismissal of his appeal from an Immigration judge's denial of his motion to reopen an in absentia removal order. The IJ ordered Hamazaspyan's removal after he failed to appear at a hearing scheduled by the IJ to consider his removal. Hama-zaspyan maintained that he had not received notice of the time and place of the hearing and that it was error for the immigration court not to send the notice of the time and place of the hearing to his counsel of record. It was not contested that the IJ did not send such notice to counsel. The USCA found that the immigration court erred because it did not serve Hamazaspyan's counsel with a hearing notice. It held that an in absentia removal order must be rescinded if the government sent notice of the time and place of a removal hearing by mail to an address provided by he alien, but (1) the BIA has not proven the alien received actual notice; (2) the alien has proven he is represented by counsel who filed a notice of appearance as counsel of record with the immigration court before such notice had been sent; and (3) the government has not proven it sent notice to the alien's counsel of record. The USCA held that the BIA erred when it adopted and affirmed the IJ's decision. As a result, the USCA granted Hamazaspyan's petition for review, reversed the BIA's decision that adopted the IJ's order to deny Hamazaspyan's motion to reopen, and remanded for further proceedings. Schroeder, Tashima, and Bea, (author), Circuit Judges. M. Bahmani of Encino, CA, for the petitioner; R. LeFever of San Francisco, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 29) IMMIGRATION: Aden v. Holder, 08-71168 (9th Cir. Dec. 18, 2009). Abdirisaq Hassan Aden entered the U.S. from Mexico at the San Ysidro, California, port of entry. He conceded removability and, with the help of counsel, applied for asylum. He presented himself as a Somalian from a minority clan who feared persecution from the two dominant clans. His account of Somalian life was horrific. He testified that he is from the Bilisyar (or Biliser) subclan of the Wardey clan, though he also gave the name of his clan as Warduy-Ali or Madaheweyne. He spoke of the rape and murder of members of his family by Hawiye men, as well as of his own beat-ings by Hawiye. The Immigration Judge ("IJ") was skeptical of Aden's account. He doubted that Aden was the impoverished illiterate from a mud hut that he testified he was because photographs found in his possession showed him looking affluent in cloths that would go fine in America, and one showed him with a book with English on the cover. He testified that he learned English by watching movies on a video cassette, which only added to the IJ's suspicion that Aden's family was not as poor as Aden claimed. The IJ also doubted that Aden was a bereft of English as he said for another reason, that he sometimes answered the questions before the translator translated them. As relates to Aden's asylum claim, the IJ was skeptical of Aden's story that he hid from the Hawiye, but was found, and that all the men in his family ran away leaving the women to the Hawiye. The IJ even doubted that there was such a clan as the Bilisyar or Wardey, because none of the country material produced by either side mentioned either name. Aden's claim for asylum was that he was persecuted on account of being a member of the Bilisyar subclan of the Wardey clan. Because of his doubts, the IJ continued the hearing and requested that Aden produced corroboration regarding existence of the clan and Aden's membership in it. At the resumed hearing, Aden produced three things he said he had obtained by calling the Somali community in San Diego, which in turn contacted the Somali community in Minneapolis. All three were unsworn documents from Minneapolis labeled "affidavit," one saying that Abdirisaq "Hussein" Adan was a member of the "Wardaa" clan, the other two saying that they had personal knowledge of the Wardey-Ali clan and the Bilisyar subclan, because they had lived in the Lower Juba region near Goobweyo where Aden had testified he was from. The IJ remained unsatisfied, as none of the three writers claimed to know Aden and no anthropological or other country evidence from scholarly sources was produced to show that the Bilisyar or Wardey clans actually existed. The IJ thus denied Aden's application for asylum and withholding of removal under the Convention Against Torture ("CAT"). The IJ specifically declined to make any adverse credibility determination, but held that Aden's failure to produce adequate corroboration for his statements of clan membership undermined his application for asylum. The BIA did not adopt the IJ's decision but in its own decision held that there was no clear error in the IJ's findings of fact, "including his assessment of the respondent's claim to his identity as a member of a minority clan in Somalia." In particular, the BIA found "no error in the Immigration Judge's decision to give little weight to the affidavits … where the affidavits were in fact inconsistent with each other." The USCA denied Aden's petition for review. First, the main issue in this case was corroboration. Under the REAL ID Act of 2005, the applicant's credible testimony may be sufficient without corroboration, but the trier of fact may require corroboration (unless not reasonably obtainable) even for "otherwise credible testimony." In addition, the Act restricts the effect of apparently credible testimony by specifying that the IJ need not accept such testimony as true. Second, to be eligible for withholding of removal based on the CAT, Aden had to prove that it was more likely than not that he would be tortured if sent back to Somalia. Torture must be "inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. The USCA found that it could not say on the record before it that a reasonable adjudicator would be compelled to find, contrary to the IJ's findings, that Aden established these facts. The USCA thus affirmed the denial of relief under the CAT. Kleinfeld (author), Bea, and Ikuta, Circuit Judges. W. Jordan-Curtis of Tucson, AZ, for the petitioner; G. Katsas of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 30) SEX WITH MINORS / EVIDENCE: USA v. Curtin, 08-10394 (9th Cir. Dec. 4, 2009). Curtin was convicted by jury of travel with intent to engage in a sexual act with a juvenile, in violation of 18 USC Sec. 2423(b), and (2) one count of coercion and enticement, in violation of 18 USC Secs. 2422(b) and 3583(k). On appeal, he alleged errors in the admission and exclusion of evidence regarding his intent, and the imposition of a vindictive sentence of lifetime supervised release. The USCA affirmed. The charges were the result of a government initiated sting operation designed to identify adults trolling for juveniles on the Internet. Curtin's only defense was that he had no intent to engage an underage female in sex. He asserted that his "role-playing" was only to meet an adult pretending to be a child for that purpose. As part of the government's case, the court admitted only one carefully redacted story from Curtin's PDA entitled "Melanie's Busy Day, An Erotic Story" which explicitly described prurient sexual activity between an adult and a child. To dilute this evidence, the defense elicited from the FBI agent who found and examined Curtin's PDA testimony that it contained other stores as well that pertained to innocent subjects that did not involve sex with juveniles, such as science fiction. To blunt the inference that "Melanie's Busy Day" was just one of many other innocent stories, the district court permitted the agent on redirect to testify that the total number of child sex stories in the PDA was in excess of 140. The district judge said: "Well, it has been made to appear that there is only one story and that all of these other things are on there: science fiction, dance, other literature, 'Space Jockey.' I'm going to allow you to-to just talk about the number, not go into details." The USCA held that the district judge's decision was an appropriate exercise of discretion. Under the circumstances of the case examined in light of Curtin's defense and his cross-examination of the agent, the number of sexually-oriented stories on Curtin's PDA was more relevant than prejudicial to counter the inference Curtin attempted to create that "Melanie's Busy Day" was a small, insignificant and non-probative part of the PDA's total content. The USCA noted that Curtin did not challenge either the large number of stories in his PDA or the agent's characterization of them as involving child/adult sexual behavior. In fact, Curtin's counsel admitted to the court that the stories were all child/adult sex stories. Thus, Curtin's claim on appeal that the court did not read all the stories to verify what his counsel conceded was meaningless. The USCA affirmed, ruling that the district court's choice of a lifetime term of supervision was grounded in the evidence, well within the court's prerogative, and designed only to protect and to serve the public interest, not to punish the defendant. Curtin's fanciful allegations of vindictiveness have not a scintilla of support in the record. There was not "reasonable likelihood" that his extended term of supervised release was "the product of actual vindictiveness." Alabama v. Smith, 490 US 794, 799 (1989). Wallace, Trott (author), and Rymer, Circuit Judges. J. Carr of Las Vegas, NV, for the appellant; A. Flake of Las Vegas, NV, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 31) DISGORGEMENT OF ILL-GOTTEN GAINS: USA v. Kuo, 08-10314 (9th Cir. Dec. 3, 2009). Defendants Kuo and Wang appealed the imposition of restitution following their pleas of guilty to violating 18 USC Sec. 241, Conspiracy to Violate Civil Rights. They had "knowingly and willfully conspired to injure, oppress, threaten, and intimidate [Chinese women] recruited for and engaged in prostitution, in the Territory of American Samoa." The district court imposed terms of incarceration and entered judgment against the defendants. The government then filed a motion for restitution, followed by a supplemental motion in support of restitution pursuant to 18 USC Sec. 1593-an inapplicable statute. It next amended it motion for restitution under 18 USC Sec. 3664. The district court granted in part and denied in part the amended restitution motion and ordered the distribution of $4,226 seized during the defendants' arrests, but declining to impose the additional amount requested by the government due to a lack of supporting documentation and discernible reasoning for the amount requested. The district court then gave the government another opportunity to move for restitution. The government filed a renewed restitution motion, which the district court granted. It held that the victims were entitled to restitution in the amount of the average customer charge for each sex act multiplied by the total number of sex acts performed. The court determined that the average charge was $170 per act and held that one woman, Y.H., was entitled to $8,500 ($170 x 50 acts), and a second woman, J.C., was entitled to $11,050 ($170 x 65 acts). However, the court further held that "these amounts, reflecting the victims' total losses, would be offset by the respective portions of the seized $4,226. It thus ordered that Y.H. should be awarded $6,387 and J.C. shall be awarded $8,937. The USCA affirmed the district court's restitution order insofar as it held that the $4,226 seized from the defendants during the execution of the search warrant may be used to pay restitution to the two victims in equal parts. The defendants had not challenged that portion of the order. However, the USCA vacated the portion of the order that calculates the amounts of restitution and remanded for a new calculation. It noted that restitution for "lost income," 18 USC Sec. 3663, is not the same as disgorgement of all of the defendants' ill-gotten gains from the victims' forced prostitution. Beezer, Graber (author), and Fisher, Circuit Judges. P. Wolff of Honolulu, HI, for the appellants; K. Stevens of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 32) SENTENCING: USA v. Thompson, 07-50351 (9th Cir. Dec. 3, 2009). Following a jury trial, Thompson was convicted on seven counts related to his possession, distribution, and manufacture of phencyclidine ("PCP"), and one count of being a felon in possession of a firearm. He appealed the district court's order permitting him to represent himself at trial, and its subsequent denial of his request for a continuance, and reappointment of counsel. On appeal, he first argued that the district court erred when it allowed him to exercise his right to self-representation on August 21, 2006. He maintained that the district court would have reached a different conclusion if Indiana v. Edwards, 128 S.Ct. 2379 (2008), which was decided after Thompson's trial, had been decided before the district court ruled on his request to represent himself. Second, he maintained that the district court erred when it refused to reappoint him counsel, which would also have required that the court grant him another continuance. The USCA affirmed the district court's orders permitting Thompson to represent himself at trial and denying his request for a continuance. There was no dispute in the record that Thompson knowingly and intelligently waived his right to counsel after being fully advised by the district court of the dangers of proceeding pro se. Indeed, Thompson argued that under Edwards the district court was compelled to deny his request for self-representation or reap-point counsel. But Edwards held no such thing. In Menefield v. Borg, 881 F.2d 696 (9th Cir. 1989), the USCA expressly recognized that "there are times when the criminal justice system would be poorly served by allowing the defendant to reverse his course at the last minute and insist upon representation by counsel." Id. at 700. For example, when "for purposes of delay, criminal defendants have sought continuances on the eve of trial, we have refused to disrupt the proceedings to accommodate their wishes." Id. That was precisely the situation presented here. Thus, the district court did not abuse its discretion in denying Thompson's request for a continuance. T.G. Nelson, Bybee, and M.D. Smith (author), Circuit Judges. K. Landau of Oakland, CA, for the appellant; AUSA C. Ewell of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 33) SENTENCING: USA v. Truong, 08-10446 (9th Cir. Dec. 1, 2009). Truong appealed his ten year sentence for possessing 15 or more unauthorized access devices with intent to defraud. He argued that by treating retail gift cards as access devices, the district court wrongly calculated the advisory sentence under the Guidelines. He also argued that his sentence was unreasonable. The USCA af-firmed. Truong would steal gift cards from retail stores and capture the information stored magnetically on each card. He would then scratch off a panel to reveal each card's PIN. After duplicating the card, he would return the duplicates to the shelves from which he had stolen the originals. He kept the originals. Later, he would use the PIN to learn whether the duplicate gift card had been sold and, if so, how much money had been loaded onto it. If the duplicate had been sold and activated for use, Truong would use the original card to make purchases or would exchange it for cash. When he was arrested, police found more than 3,884 cards from nine different retail stores, paperwork containing another 4,050 Wal-Mart gift card account numbers, and equipment used to duplicate cards. The USCA affirmed Truong's sentence. First, it found that nothing in the plain language of the statute or the case law requires that an "access de-vice" contain information identifying a particular person as its owner. What matters is that Truong's stolen cards were a "means of account access" by which he obtained money, goods or services. 18 USC Sec. 1029(e)(1). Second, under its "deferential abuse-of-discretion standard of review," the USCA found that the district court's sentence was not unreasonable. The district court sufficiently explained that the Guidelines did not account for Truong's particular type of recidivism. It was astounded not by the mere fact of Truong's recidivism, but by his repeated commission of the same kind of crime despite repeated punishment. The court also relied on the fact that, while fleeing, Truong "almost killed" the driver of another car and, thus, would "do anything to avoid justice." The charges pending against Truong in state courts did not make the sentence unreasonable, as they neither erased Truong's long history of recidivism nor guaranteed that he would face further punishment. Nor did the amount of proven actual loss require reversal, for the PSR's calculation of actual loss was relatively low only because the probation officer could not identify the many of the victims of Truong's fraud. Finally, the sentencing transcript evidenced the district court's thorough consideration of all of the 18 USC Sec. 3553(a) factors. The USCA found no abuse of discretion in its sentence. B. Fletcher, Canby, and Graber, Circuit Judges. Per Curiam. AUSA L. Brown of Sacramento, CA, for the appellee; J. Wiseman of Davis, CA, for the appellant. (Download the full text of this decision at www.ce9.uscourts.gov/) 34) SENTENCING: USA v. Anchrum, 09-30013 (9th Cir. Dec. 30, 2009). Anchrum appealed a jury conviction and sentence for one count of possession of controlled substances with intent to distribute in violation of 21 USC Secs. 841(a)(1) and (b)(1)(c), two counts of assault on federal officers with a deadly or dangerous weapon in violation of 18 USC Secs. 111(a)(1) and (b), and one count of possession of firearms in furtherance of drug trafficking in violation of 18 USC Sec. 924(c)(1)(A)(i). He maintained (1) that the jury instruction on the assault counts erroneously required the jury to find that he used a "motor vehicle" instead of a "deadly or dangerous weapon," (2) that the government's use of DEA Agent Solek as both a lay and expert witness resulted in testimony inconsistent with the holding in USA v. Freeman, 498 F.3d 893, 904 (9th Cir. 2007), as well as Fed. R. Evidence 704(b), and (3) that the district court erred in applying a six-level official victim enhancement at sentencing under Guidelines Sec. 3A1.2(c)(1). The USCA found no preju-dicial error and affirmed. Throughout sentencing the district occur recited the testimony at trial and referenced Anchrum's act of inten-tionally driving his vehicle at, and striking, Agent Solek after he exited his police care in a vest clearly marked "Police." These facts easily support the official victim enhancement under Sec. 3A1.2(c)(1). Beezer, Gould, and Tallman (author), Circuit Judges. M. Dieni of Anchorage, AK, for the appellant; AUSA C. Thoreson of Anchorage, AK, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 35) SENTENCING: USA v. Roblero-Solis, 08-10396 (9th Cir. Dec. 2, 2009). To accommodate the enormous number of prosecutions for illegal entry into the U.S., the district court for the District of Arizona (Tucson) adopted a procedure for the taking of pleas en masse yet intended to preserve the rudiments of Fed. R. Crim. Proc. 11 and the Constitution. One magistrate is assigned each week full time to handle these cases. The procedure has been in practice for at least two years and is apparently followed in several other federal courts whose districts border on Mexico. Abstractly considered, the USCA found, this shortcut to be understandable and reasonable. However, it did not comply with Rule 11. The USCA said it could not permit the rule to be disregarded in the name of efficiency or violated because too demanding to observe. It thus held the procedure to be contrary to Rule 11. Noonan (author) and W. Fletcher, Circuit Judges, and Duffy, District Judge. AFPD J. Hannan of Tucson, AZ, for the defendants-appellants-appellees; AUSA R. Miskell of Tucson, AZ, for the plaintiff-appellee-appellant. (Download the full text of this decision at www.ce9.uscourts.gov/) 36) SENTENCING: USA v. Bays, 09-30124 (9th Cir. Dec. 17, 2009). Bays pleaded guilty to a drug user in possession of a firearm and possession with intent to distribute methamphetamine. The district court calculated a criminal history category of 11 for Bays and sentenced him to a 78-month term of imprisonment on each count, to run concurrently. Bays timely appealed his sentence, arguing that the district court incorrectly calculated his criminal history category. He argued that a pardon he received in 2007 from the State of Idaho Commission of Pardons and Parole completely expunged an earlier state conviction. Under Sec. 4A1.2(j) of the U.S. Sentencing Guidelines, expunged convictions should not be calculated when determining a defendant's criminal history category. U.S. Sentencing Guidelines Manual Sec. 4A1.2 (2008). The USCA found that a pardon does not constitute an expungement and the district court cor-rectly considered Bays' prior state convictions when calculating his criminal history category. The USCA thus upheld the sentence. Gould and Tallman (author), Circuit Judges, and Benitez, District Court. D. Benjamin of Boise, ID, for the appellant; AUSA C. Nafzger of Boise, ID, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 37) HABEAS CORPUS: Pinholster v. Ayers, 03-99003 (9th Cir. Dec. 9, 2009). Pinholster was sentenced to death after a jury convicted him of double murder with a knife in the course of a home robbery and burglary. After exhausting state remedies, he sought a writ of habeas corpus in federal district court in which he alleged ineffective assistance of counsel at both the guilt and penalty phases. Applying the standards of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the district court upheld his convic-tion, but granted habeas relief on his death sentence because it found that the trial counsel's deficient performance at the penalty phase of the trial unconstitutionally prejudiced Pinholster's defense. A three-judge Ninth Circuit panel affirmed the district court's guilt phase ruling but reversed its grant of habeas relief on the penalty phase. Sitting en banc, the USCA affirmed. Although the denial of Pinholster's guilt phase ineffective assistance claim was appropriate, his penalty phase ineffective assistance claim warranted relief even when considered under AEDPA's deferential standards. The USCA remanded the case to the district court to vacate Pinholster's death sentence, unless within a reasonable time set by the court the State conducts a new penalty phase trial or imposes a lesser sentence consistent with applicable law. Judge Kozinski, joined by Judges Rymer and Kleinfeld, dissented. He noted that the California Supreme Court twice considered Pinholster's claim that his death sentence be set aside because his lawyers performed ineffectively, and twice rejected that claim on the merits. Under AEDPA, those determinations came to the USCA encased in a double layer of deference: first, the substantial deference to which lawyers are entitled under Strickland in making judgments during the course of their representations and, second, the deference to which a state court is entitled in determining whether the lawyers' performance was ineffective and prejudicial. The first layer of deference may be overcome only if counsel's performance was objectively unreasonable under prevailing norms at the time and place of trial. The second layer may be overcome only if the state supreme court's ruling is contrary to or an unreasonable application of clearly established Supreme Court authority. Pinholster had come nowhere close to flipping this "double deferential" presumption. The majority reached the contrary conclusion through a series of mistakes that have, Judge Kozinski thought, become far too common in the Ninth Circuit. First, it relied on evidence never presented to the state courts and that it may thus not consider in habeas proceedings under the AEDPA. Second, the majority applied retrospectively a standard for counsel's performance that bore no relationship to that prevailing in California at the time of Pinholster's trial in 1984. Third, the majority accorded no deference to the California Supreme Court's superior expertise in determining what constitutes competent representation among the members of its bar and the likely consequences (or lack thereof) of any deficient performance. Kozinski (dissenting), Pregerson, Reinhardt, Rymer, Kleinfeld, Wardlaw, W. Fletcher, Paez, Berzon, Bybee, and M.D. Smith (author), Circuit Judges. DAG K. Jorstad of Los Angeles, CA, for the respondent; S. Kennedy of Los Angeles, CA, for the petitioner. (Download the full text of this decision at www.ce9.uscourts.gov/) 38) HABEAS CORPUS: Cox v. Ayers, 07-99010 (9th Cir. Dec. 10, 2009). Cox was convicted in state court, and sentenced to death for murdering four people. In his habeas proceeding brought pursuant to 28 USC Sec. 2254, he challenged his convictions and death sentence on the grounds that the state trial court's decision to shackle him during the guilt phase of the trial prejudiced the jury during both the guilt and penalty phases, and that he received ineffective assistance of counsel during the penalty phase. Because Cox was not prejudiced by the trial court's decision to shackle him during the guilt phase of the trial, and because he received constitutionally sufficient assistance of counsel at the penalty phase, the USCA affirmed. Given the fact that the jury heard substantial mitigating evidence and given the grim and gruesome facts of the crimes themselves, there is no reasonable probability that Cox would have escaped the death penalty had counsel presented additional mitigation evidence or expert testimony at sentencing. Dissenting, Judge Pregerson parted ways with the majority on the issue of ineffective assistance at the penalty phase. At the time of the murders, Cox was 18 years old. Although the jury was left with the impression that he had experienced a fairly normal childhood, the record was that he suffered severe abuse and was routinely exposed to extreme violence. Cox's attorneys provided ineffective assistance by failing to obtain and present evidence of this abuse. Pregerson (dissenting), Graber (author), and Wardlaw, Circuit Judges. J. Sternberg, San Francisco, CA, for the petitioner; DAG J. Fuster of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 39) HABEAS CORPUS: Sainez v. Venables 08-56398 (9th Cir. Dec. 2, 2009). On June 26, 1999, Sandoval, Sevillano, and others confronted Sainez' gang and a violent altercation ensured. Sandoval was shot and killed; Sevillano was injured. Witnesses gave signed, sworn statements describing the events. Sainez was arrested at the San Ysidro, California, Port of Entry in December 2006. Mexico requested extradition on March 23, 2007. At his extradition hearing before a magistrate, Sainez argued that the statute of limitations for both his homicide and battery charge had run under U.S. law. The magistrate certified Mexico's extradition request on the homicide charge only, because the statute of limitation had expired on the battery charge. The district court denied Sainez's habeas petition which challenged the magistrate's finding of extraditability. Sainez appealed the denial of this petition, challenging his arrest pending extradition on the Mexican warrant. Because the USCA held that the district court's probable cause determination was supported by the record, and its ruling on the statute of limitations issue free from error, it affirmed the district court's decision. Sufficient probable cause existed to establish Sainez as the shooter, making him answerable to Mexican authorities. Sainez' extradition was not time-barred, because his Mexican arrest warrant tolled the applicable statute of limitations. Sufficient probably cause existed to establish Sainez as the shooter, and thereby answerable to Mexican authorities. Gould, Rawlinson (author), and Bybee, Circuit Judges. J. Ser of San Diego, CA, for the appellant; AUSA C. Tenorio of San Diego, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 40) HABEAS CORPUS: Ford v. Pliler, 06-56092 (9th Cir. Dec. 30, 2009). Ford, a state prisoner, challenged his confinement by fil-ing two habeas petitions in federal district court. Both were dismissed by the district court as untimely based on the one-year statute of limitations of 28 USC Sec. 2244(d)(1). The USCA reversed in part in a decision holding that the district courts must advise petitioners regarding certain aspect of dealing with the statute of limitations before dismissing habeas petitions. The Supreme Court vacated the USCA decision, holding that the advisements were not required. Pliler v. Ford, 542 US 225 (2004). It then remanded for further pro-ceedings, in light of the USCA's concern that Ford had been affirmatively misled. On remand, the district court determined that it had affirmatively misled Ford and thus the limitations period should be equitable tolled. The state successfully sought leave to appeal that determination, and the USCA reversed it as inconsistent with the Supreme Court's decision. Because Ford had not established that the limitations period should be equitably tolled, the federal habeas petitions had to be dismissed as untimely. Hawkins, Berzon (dissenting in part), and Clifton (author), Circuit Judges. L. Bassis of Beverly Hills, CA, for the petitioner; DAG P. Roadarmel of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 41) HABEAS CORPUS: Robinson v. Kramer, 07-55611 (9th Cir. Dec. 9, 2009). Robinson, a California state prisoner, was con-victed in California state court of one count of possession for sale of cocaine base, a violation of California Health & Safety Code Sec. 11351.5. He appealed the district court's denial of his habeas petition under 24 USC Sec. 2254 on his claim that his motion to substi-tute counsel was improperly denied. Because he never raised a claim for unconstitutional denial of his right to proceed without a lawyer on direct appeal in the state courts, nor in his state habeas petition, nor in his district court habeas petition, the USCA held that he could not now raise such a claim. It thus affirmed the district court's denial of habeas relief. Gould and Bea (author), Circuit Judges, and Molloy, District Judges. J. Norman of Los Angeles, CA, for the petitioner; DAG B. Leszkay of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 42) HABEAS CORPUS / MURDER WITH SPECIAL CIRCUMSTANCES: Bradway v. Cate, 08-55296 (9th Cir. Dec. 3, 2009). In 2001, Bradway was charged with first degree murder by means of lying in wait. The special circumstance of lying in wait was also charged, making Bradway eligible for a penalty of death or life imprisonment without the possibility of parole. In the trial court Brad-way successfully moved to dismiss the lying in wait special circumstance as impermissibly vague, but the California Court of Appeal overturned that ruling and reinstated the special circumstance charge. It found some overlap in the two statutes, but held that the lying in wait special circumstance required specific intent to kill, while the first degree murder statute did not. Bradway was then convicted and sentenced to life without parole. Relief under the same vagueness claim was denied in subsequent state habeas proceedings and by the district court in this federal habeas action. The district court held that California sufficiently distinguished the lying in wait special circumstances from the lying in wait first degree murder statue. It thus rejected Bradway's vagueness challenge. Because Bradway failed to show that the distinction drawn by California courts was either contrary to, or an unreasonable application of, clearly establish federal law, the USCA affirmed. Canby (author), Rawlinson, and N.R. Smith, Circuit Judges. M. Braner of San Diego, CA, for the petitioner; DAG B. Carlton of San Diego, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)
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