1) TAXATION / INTERNET: Oakland v. Hotels.com LP, 07-17258 (9th Cir. July 16, 2009). The City of Oakland brought suit against ten Internet travel companies, claiming that they failed to calculate and remit occupancy taxes in violation of the Transient Oc-cupancy Tax Ordinance. The difficulty was that Oakland never assessed or imposed the tax. Instead, it merely filed suit in federal court for the collection of the taxes. The district court dismissed the suit with prejudice because the City failed to comply with the Ordinance's exhaustion requirement. The USCA agreed that exhaustion is required, but concluded that dismissal without prejudice is appropriate. Absent a tax assessment, there is nothing to enforce or, the USCA said, and it cannot divine what the "unpaid taxes" might be. The starting point for resolution of this dispute is not the federal court but the administrative process which is geared to address precisely these questions. Noonan, Archer, and McKeown (author), Circuit Judges. M. Olivier of San Francisco, CA, for the plaintiff-appellant; D. Hieber of Los Angeles, CA, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

2) TAXATION: Aloe Vera of America, Inc. v. USA, 07-15577 (9th Cir. July 30, 2009). Aloe Vera of America, Rex Maughan, Ruth Maughan, Maughan Holding, Gene Yamagata, and Yamagata Holdings (collectively "Aloe Vera") sued the government under 26 USC Sec. 7431(a)(1), which allows a taxpayer to bring a civil action for damages against the government when a government officer or employee "knowingly, or by reason of negligence, inspects or discloses any return or return information with respect to a taxpayer" in violation of Sec. 6103. 26 USC Sec. 7431(d) provides that any claim for wrongful disclosure of tax return information may be brought at any time within two years after the date of discovery by the plaintiff of the unauthorized inspection or disclosure. John R. Sand & Gravel Co. v. USA, 128 S.Ct 750, 753 (2008), explained that when the United States is named as a defendant, a statute of limitations, such as the one in Sec. 7431(d), falls into one of two categories. The first includes those statutes of limitations that "seek primarily to protect defendants against stale or unduly delayed claims." These statutes of limitations are subject to forfeiture and waiver, and the statutes may be equitable tolled. The second category includes those statutes of limitations that "seek not so much to protect a defen-dant's case specific interest in timeliness as to achieve a broader system-related goal, such as … limiting the scope of a governmental waiver of sovereign immunity." These statutes are "more absolute" and not subject to waiver or equitable tolling. Also, the time limits imposed are jurisdictional. The first issue here was to determine whether the limitations period provided in Sec. 7431(d) fell into the latter category of jurisdictional statutes of limitations. Reviewing this issue de novo, the USCA concluded that it did. The structure of Sec. 7431 indicates that Congress intended the limitation period to restrict the scope of the government's waiver of sovereign immunity. In addition, the language of Sec. 7431(d) shows that Congress intended the statute of limitations to be absolute. The inclusion of the phrase "notwithstanding any other provision of law" at the beginning of the subsection requires that an action may be brought only within the two-year period. No provision of law may abrogate that prescription, including any provision that may provide for equitable tolling or waiver. By including this phrase, Congress clearly signaled that the statute of limitations is absolute. The USCA thus concluded, as the Fifth Circuit had in Gandy v. USA, 234 F.3d 281, 283 (5th Cir. 2000), that Sec. 7431(d) is jurisdictional. The USCA thus could not rule on the merits of this case unless the action had been timely filed. As for whether Aloe Vera timely filed the action, the USCA held that the statute begins to run on the date on which a plaintiff discovers that the allegedly unauthorized inspection or disclosure has taken place, regardless of whether the plaintiff believed at the time that the inspection or disclosure was authorized. It concluded that "unauthorized" merely modifies "inspection or disclosure." So construed, an action pursuant to Sec. 7431(d) must be filed within two years of the date when the plaintiff realizes that a disclosure was unauthorized. The district court ruled that the complaint was timely filed based on allegations in the amended complaint that Aloe Vera did not discover the unauthorized disclosure until August 7, 1998 as a result of a disclosure order in a Freedom of Information Act suit. It then held that the complaint, which was filed on October 6, 1999, had been timely filed. However, the district court did not make findings of fact as to whether Aloe Vera knew, more than two years before it filed the complaint, that the IRS had disclosed information to the Japanese National Taxing Authority. Nor did it make findings of fact as to when Aloe Vera discovered the specific disclosures it now claims were false. Rather, the district court relied exclusively on the amended complaint's allegation that Aloe Vera did not discover that the disclosure by the IRS were unauthorized until August 1998. The USCA thus vacated the district court summary judgment and remanded the case to the district court so that it could determine in the first instance whether there was sufficient evidence to establish subject matter jurisdiction pursuant to Sec. 7431(d). On remand, the USCA directed that the district court make findings of fact regarding the dates on which Aloe Vera discovered the respective disclosures underlying each of Aloe claims. Wallace (author), Thomas, and Graber, Circuit Judges. T. Woolston and M. Grant of Phoenix, AZ, for the plaintiffs-appellants; R. Morrison of Washington, DC, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

3) ANTITRUST: Blough v. Holland Realty, Inc., 08-35536 (9th Cir. July 27, 2009). Buyers of newly-constructed houses in the Boise, Idaho area claimed that various realtors representing developers tied the sale of undeveloped lots to services and commissions for developed property in violation of federal and state antitrust laws. Applying the "zero foreclosure" doctrine, the district court granted the realtors summary judgment because there is no market for listing and referral services among potential buyers of newly constructed houses, thus no competition in the tied market to be harmed. The USCA agreed and affirmed. Assuming (without deciding) that the buyers met the first to prongs of the test for a per se unlawful tying arrangement, the tying arrangement failed to affect a not insubstantial volume of commerce in the tied product (services and commissions on the sale of developed lots) because there is no market for those services among buyers of newly-constructed houses. When there is no demand, there is zero foreclosure. The district court thus correctly held that the buyers, having shown no foreclosure of competition in the market for the tired product, failed to show the critical third element of a claim for a per se unlawful tying arrangement. Pregerson, Rymer (author), and Tashima, Circuit Judges. S. Berman of Seattle, WA, for the plaintiffs-appellants; E. Ritti of Boise, ID, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

4) ANTITRUST: Doe 1 v. Abbott Laboratories, 08-17699 (9th Cir. July 7, 2009). Do allegations of monopoly leveraging through pricing conduct in two markets state a claim under Sec. 2 of the Sherman Act, absent an antitrust refusal to deal (or some other exclu-sionary practice) in the monopoly market or below-cost pricing in the second market? Following Pacific Bell Telephone Co. v. linkLine Communications, 129 S.Ct. 1109 (2009), the USCA held that no such claim may be brought. As the district court held to the contrary, the USCA reversed. Applying linkLine led the USCA to conclude that the plaintiffs claim fell short. They alleged no refusal to deal at the booster level, and no below cost pricing at the boosted level. They tried to distance themselves from linkLine on the footing that their claim was for monopoly leveraging, not price squeezing, and that Abbott provides products to consumers in both the booster and boosted markets whereas AT&T provided products in the retail and wholesale market. The USCA understood this difference but found it insubstantial. However labeled, Abbott's conduct was the functional equivalent of the price squeeze the linkLine court found unob-jectionable. Schroeder, Reinhardt, and Rymer (author), Circuit Judges. J. Weinberger of Los Angeles, CA, for the defendant; R. Wiebe of San Francisco, CA, for the plaintiffs. (Download the full text of this decision at www.ce9.uscourts.gov/)

5) TRADEMARKS: Marlyn Nutraceuticals v. Mucos Pharma, 08-15101 (9th Cir. July 2, 2009). What criteria should a district court apply in considering a motion to enter a preliminary injunction requiring a product recall in a trademark infringement case? The USCA joined the Third Circuit in requiring that a district court must find a substantial risk of danger to the public or other special cir-cumstances in order to enter an interlocutory order recalling a product in a trademark infringement case. Wallace, Thomas (author), and Graber, Circuit Judges. M. Salapska of Phoenix, AZ, for the appellant; D. Winiarski of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

6) SECURITIES FRAUD: Desai v. Deutsche Bank Securities, 08-55081 (9th Cir. July 29, 2009). At issue here was whether a putative class could be certified in this securities fraud class action. GenesisIntermedia, Inc. ("GENI") is a Delaware corporation with its registered address in California. GENI's stock once traded on the NASDAQ, but since late 2001 it has traded over the counter but off the NASDAQ. Turmoil in GENI's stock price began in the fall of 2001 and continued as the details emerged of what the plaintiffs allege was a sophisticated scheme to manipulate the price of the company's stock. The appellants ("investors") alleged that Deutsche Bank Securities Ltd. ("DBSL"), through Breedon, a vice-president at DBSL, masterminded this stock price manipulation scheme. A common way to manipulate the market in a security is to cause its price to increase by creating the illusion of more investor interest than really exists. The manipulator acquires shares of the security before the price increase, then slowly sells them off and reaps the profits. The problem with this model, however, is that as the manipulator sells off his shares he depresses the price, which lessens his profit. Investors here alleged a scheme that varied the theme in a way designed to cure this problem. It involved a commercial arrangement known as a "securities loan." In the typical securities loan, a broker-dealer lends securities to another broker-dealer, the loan being secured by cash collateral the borrower gives to the lender. The borrower of the security receives "rebate payments," which are like interest on the cash collateral he has transferred to the security lender. As the value of the security increases, the amount of cash collateral and the level of interest also increase. Adjustments-marking the securities to the market-are made daily. According to the investors, a web of schemers used securities loans to profit contemporaneously with the inflation of GENI's stock price, rather than by selling the stock after the price rose (which would have depressed the price.) As the district court put it, the scheme solved the classic problem of market manipulators everywhere: it allowed them to profit from fraudulently inflating a stock's price without having to sell shares. After much legal wrangling, over many years, the class representatives negotiated, as individuals, a settlement with Deutsche Bank, but explicitly preserved their rights to appeal the denial of class certification. The district court entered final judgment and the investors appealed. The USCA concluded that the district court did not abuse its discretion in refusing to adopt the integrity of the market presumption. On the contrary, it permissibly declined to certify the class under Fed. R. Civ. Proc. 23(b)(3) on the ground that the individual issues pertaining to the issue of reliance predominated over common ones. The USCA thus affirmed the district court's denial of the motion for class certification. Judge O'Scannlain concurred in the opinion as far as it went, but he would also conclude that the integrity of the market presumption investors proffered is not legally valid, so the district court did not err in refusing to recognize it. Thus, where a putative class alleges manipulative conduct as a violation of Sec. 10(b), it must either prove reliance directly or invoke its presumption pursuant to the fraud on the market theory. Judge Graber also concurred in the court's opinion but wrote sepa-rately to respond to Judge O'Scannlain's assertion that the court must decide, one way or the other, whether investors are entitled to plead a novel integrity of the market presumption. She thought that neither logic nor precedent required the court to reach that issue in the circumstances presented here. Noonan, O'Scannlain (concurring), and Graber (concurring), Circuit Judges. Per Curiam. J. Ta-bacco of San Francisco, CA, for the appellants; J. Windels of New York, NY, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

7) ARBITRATION: In re Arbitration Between Bosack, Learn, et al., 08-35248 (9th Cir. July 23, 2009). Bosack and his wife Lerner were the founders of Cisco Systems. They employed Soward as their investment manager. The three formed & Capital Partners, LP ("& Capital") in which Soward was the general partner and Bosack and Lerner were limited partners. Several years later, Bosack and Soward formed Cartesian Partners, LP, a partnership formed for the purpose of managing Bosack's "high touch" investments. So-ward was general partner of Cartesian; Bosack was a limited partner. A written partnership agreement for Cartesian (the "Wood Agreement") was drafted, but never signed. A decade or so later, Bosack and Lerner began to suspect that Soward had breached his fiduciary duties in managing their assets. They discovered that Soward had made undocumented loans to himself and his friends. So-ward was removed as the general partner of & Capital and of Cartesian. Soward demanded arbitration, seeking dissolution of Cartesian and an accounting of his partnership interest. Bosack and Lerner participated with Soward in the arbitration proceeding. It lasted two years, during which time more than 60 days of hearings were held, more than 20 witnesses testified, and over 500 exhibits were entered in evidence. Due to the complicated nature of the proceedings, the parties agreed to proceed in stages. The panel entered a series of five interim awards, and then one Final Award. The results of the awards were mixed. In Interim Award I, the panel determined that the terms of the Wood Agreement governed the Cartesian partnership, though that agreement had never been signed. The panel deter-mined that Soward breached his fiduciary duties, but that Bosack had no right to remove him as a general partner of Cartesian. Under the terms of the Wood Agreement, the panel held that Soward remained a limited partner in Cartesian after he was removed as the gen-eral partner. The panel then concluded that the value of Soward's partnership should be calculated as of September 30, 2006. Interim Award I was not made final. Interim Award 2 was not involved in the appeal in this case. In Interim Award 3, the panel determined the value of Soward's partnership interest was $1,496,391. Award 3 was the only interim award the arbitration panel made final and im-mediately enforceable. In Interim Award 4, the panel ruled in favor of Soward on two tort claims. After Bosack removed Soward as the general partner of Cartesian, the panel determined that, under Delaware law, Soward was entitled to an accounting and a prompt distri-bution of his partnership interest. The panel found that Bosack had breached his fiduciary duties to Soward by failing to provide him with an accounting and distribution, and by improperly taking control of the Cartesian assets. The panel also found Bosack and Lerner liable for conversion by their improper appropriation of Soward's interest in Cartesian. Damages awarded under Interim Award 4 were subject to a credit for payments made to satisfy Interim Award 3. In Interim Award 5, the panel ruled that Bosack and Lerner had "acted with malice and oppression," and that Soward was entitled to punitive damages of $10,999,494 against Bosack, and $8,555,162 against Lerner. Bosack and Lerner moved the district court to vacate Interim Awards 4 and 5, as well as the panel's Hearing Order No. 49 (finding that punitive damages applied). They also asked the district court to vacate the Final Award as to Soward's tort claims and punitive damages, and the award of relative costs and attorneys' fees. The district court denied that motion and confirmed the panel's Final Award, which incorporated its earlier interim awards. The USCA affirmed. Bosack and Lerner failed to show that the panel ex-ceeded its authority. The risk that arbitrators may construe the governing law imperfectly in the course of delivering a decision that attempts in good faith to interpret the relevant law, or may make errors with respect to the evidence on which they base their rulings, is a risk that every party to arbitration assumes, and such legal and factual errors lie far outside the category of conduct embraced by Sec. 10(a)(4) of the Federal Arbitration Act. Kyocera Corp. v. Prudential-Bache Trade Servs., Inc., 341 F.2d 987, 1003 (9th Cir. 2003). Canby, Thompson (author), and N.R. Smith, Circuit Judges. K. Sullivan of Redwood Shores, CA, for appellant Bosack; S. Smith of San Francisco, CA, for appellant Lerner; J.D. Sharp of San Francisco, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

8) TELECOMMUNICATIONS LAW: T-Mobile USA, Inc. v. City of Anacortes, 08-35493 (9th Cir. July 20, 2009). The City of Anacortes appealed the district court's determination that the City's denial of an application by T-Mobile to erect a 116-foot monopole antenna at a particular location violates a provision of the Telecommunications Act of 1996, 47 USC Sec. 332(c)(7)(B). The district court found that T-Mobile's proposal was the least intrusive means to close a significant gap in its wireless service in the City, and that the City's denial was not supported by substantial evidence. The USCA determined that, although the district court did not have the benefit of Sprint Telephony PCS, L.P. v. County of San Diego, 543 F.3d 571 (9th Cir. 2008) (en banc), and thus failed to recognize that the City's denial of the application was supported by substantial evidence, the district court nevertheless properly concluded that the City's denial of the application violated Sec. 332(c)(7)(B) because the City failed to rebut T-Mobile's showing that the denial of the application amounted to an effective prohibition of wireless services. Canby, Thompson, and Callahan (author), Circuit Judges. D. Lossing of Bellevue, WA, for the appellant; T. Thompson of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

9) BANKRUPTCY: Hoffman v. Lloyd, 08-15814 (9th Cir. July 20, 2009). Hoffman and related creditors challenged Chapter 11 debtor Lloyd's exercise of his right to rescind the sale of his foreclosed home under California's Home Equity Sales Contract Act ("HESCA"). Cal. Civ. Code Sec. 1695, et seq. The district court affirmed the bankruptcy court's summary judgment in favor of Lloyd because Hoffman never provided Lloyd with notice of his HESCA rights as required by California law. The district court ruled that a general release Lloyd signed during the course of settling an unlawful detainer action by Hoffman against Lloyd did not relinquish Lloyd's HESCA rights, because Lloyd, at the time of the settlement, had no notice or knowledge of such rights. The USCA affirmed. Any contrary result would undermine HESCA by permitting a purchaser to defeat the seller's right to rescind by first executing a sale contract without the required notices, and then executing a release purporting to extinguish any known and unknown claims. As District Judge Patel recognized, "this kind of backdoor loophole is inequitable and frustrates the purposes of HESCA." Schroeder (author) and D.W. Nelson, Circuit Judges, and Marshall, District Judge. J. Goodrich of San Francisco, CA, for the appellees; D. Davis of San Francisco, CA, for the appellants. (Download the full text of this decision at www.ce9.uscourts.gov/)

10) BANKRUPTCY / INSURANCE / ATTORNEYS' FEES: Biltmore Associates, LLC v. Twin City Fire Insurance Company, 06-16417, 07-16036 (9th Cir. July 10, 2009). This consolidated appeal addressed an insurance coverage dispute which arose in the context of bankruptcy. It turned on the "insured versus insured" exclusion. In appeal 06-16417, the USCA affirmed the dismissal of the complaint because the insured versus insured exclusion bars coverage for claims brought as the assignee of the debtor-in-possession. In appeal 07-16036, the USCA remanded the award of attorneys' fees for clarification that Biltmore is only liable in its capacity as representative of the trust. The USCA awarded costs in favor of the Twin City Fire Insurance Company in 06-16417, and in favor of Biltmore Associates in 07-16036. Kleinfeld (author) and N.R. Smith, Circuit Judges, and Mills, District Judge. A. Jacob of Phoenix, AZ, for the appellant; M. Perlis of Los Angeles, CA, and E.J. Kotalik of Phoenix, AZ, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

11) ENVIRONMENTAL LAW / AGENCYS / INTERVENTION: California Trout v. FERC, 07-73664 (9th Cir. July 20, 2009). In this case, the petitioners, California Trout and Friends of the River, maintained that the Federal Energy Regulatory Commission applied its rule governing intervention in a license renewal proceeding in an arbitrary and capricious fashion. Although the petitioners set forth evidence that their late intervention would not prejudice the Commissions' proceeding, under the circumstances, the USCA could not find that the Commission's decision was an abuse of its discretion. The regulation at issue explicitly confers on the Commission a broad power to differentiate among untimely interveners and permits the Commission to summarily reject a prospective intervener who cannot demonstrate "good cause" for its untimely motion. Because the USCA found that the Commission reasonably determined that the petitioners lacked good cause for the untimely attempt to intervene, it denied the petition. Dissenting, Judge Gould thought that the Commission should have allowed the petitioners to intervene both because good cause was shown for a late intervention, and because intervention was permissible in any event under the Commission's usual policy of dispensing with the good cause requirement when, as here, there is no risk of prejudice or disruption to other parties. Here, however, the Commission without explana-tion departed from its own precedent and required the petitioners to make a substantial showing of good cause. This deviation is an arbitrary departure from prior agency rules of decision and is prohibited by USCA precedent. Cal. Trucking Ass'n v. Interstate Commerce Comm'n, 900 F.2d 208, 212 (9th Cir. 1990) (stating that an agency "may not depart, sub silentio, from its usual rules of decision to reach a different, unexplained result in a single case.) By denying the petitioners attempt to intervene, the Commission has ensured that no group can challenge in court whether the Commission's actions in this case comply with federal environment law. Gould (dissenting), Bybee (author) and Tymkovich, Circuit Judges. D. Selmi of Los Angeles, CA, for the petitioners; H. Cafer of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

12) ENVIRONMENTAL LAW: Saint John's Organic Farm v. Gem County Mosquito Abatement District, 07-35797 (9th Cir. July 16, 2009). Saint John's Organic Farm and Peter Dill (collectively "Dill") filed suit under the citizen-suit provisions of the Clean Water Act ("CWA") against the Gem County Mosquito Abatement District and Gem County (collectively "GCMAD"). Dill maintained that GCMAD's discharged of pesticides directly into the waters of the United States without a National Pollutant Discharge Elimination System ("NPDES") permit violates the CWA. Dill and GCMAD settled the suit. The Settlement Agreement limited GCMAD's pesticide spraying and provided that an application for "costs of litigation (including reasonable attorney and expert witness fees)" under 33 USC Sec. 1365(d) could be made to the district court. The district court denied the fees and costs application, holding under Sec. 1365(d) that Dill was not a "prevailing or substantially prevailing party" and, in the alternative, that it was not "appropriate" to grant fees to Dill. The USCA reversed. It held that Dill was a prevailing party under Sec. 1365(d) and remanded to allow the district court to determine whether fees and costs were recoverable for work done in connection with the suit in the district court for the District of Columbia. Judge Tallman concurred but wrote separately to note that it is important that the district judge make findings of fact and conclusions of law showing what special circumstances exist in this case, and to emphasize that the standard of review for an award under this doctrine remains the traditional abuse of discretion standard. He also noted his concern with the policy implica-tions of the USCA decision. He thought courts should not be interpreting attorney's fee requirements in such a way as to discourage settlement. If the USCA's decision is read too literally, he thought there would be a disincentive for parties in environmental litigation to negotiate a settlement. W. Fletcher (author), Gould, and Tallman (concurring), Circuit Judges. W. Eddie of Portland, OR, for the appellants; S. Buxton of Boise, ID, for the appellee; R. Brooks of Bellevue, OR, for the intervenor. (Download the full text of this decision at www.ce9.uscourts.gov/)

13) ENVIRONMENTAL LAW: River Runners for Wilderness v. Martin, 08-15112 (9th Cir. July 21, 2009). This case concerns the National Parks Service's decision to permit the continued use of motorized rafts and support equipment in the Grand Canyon National Park. The plaintiffs argued that such activities impaired the wilderness character of the Canyon and that the Park Service's decision violates its management policies and various federal statutes. They asked the court to set aside the decision under the Administrative Procedure Act ("APA"). Reviewing the matter de novo, the USCA adopted the district court's decision as its own. It thus agreed that the plaintiffs had not satisfied the high threshold required to set aside federal agency actions under the APA. Specifically, the plaintiffs failed to establish that the Park Service acted arbitrarily and capricious when it adopted the 2006 Colorado River Manage-ment Plan. Hug, B. Fletcher, and Hawkins, Circuit Judges. Per Curiam. J. Olson of Eugene, OR, for the plaintiffs-appellants. C. Scott of Washington, DC, for the federal appellees; S. Kalen of Washington, DC, and L. Potter of Denver, CO, for the defendants-intervenors-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

14) ENVIRONMENTAL LAW: Public Citizen v. Nuclear Regulatory Commission, 07-71868 (9th Cir. July 24, 2009). The petitioners challenged the Nuclear Regulatory Commission's modification of the Design Basic Threat ("DBT") rule and partial denial of the Committee to Bridge the Gap's petition for rulemaking. The petitioners claimed that the Commission acted arbitrarily and capri-ciously and contrary to law by refusing to include the threat of air attacks in the final revised DBT rule. They also claimed that the Commission violated the National Environmental Policy Act ("NEPA") by not considering the risk of an airborne terrorist attack in its Environmental Assessment ("EA"), and that this risk creates a potential significant impart on the environment necessitating a full Envi-ronment Impact Statement ("EIS"). The USCA denied the petition. By only highlighting one potential deficiency in the EA that could impact the environment, the petitioners implicitly agree with the Commission's argument that the rule was otherwise only beneficial to the environment. The USCA thus did not address whether the Commission violated the holding in Mothers for Peace v. NRC, 449 F.3d 1016 (9th Cir. 2006), or whether the effects of an air-based attack (rather than the possibility of a terrorist attack) were too speculative to necessitate their inclusion in the EA. Because the petitioners identified no effect of the revised DBT rule that "may cause significant degradation of some human environmental factor," no EIS was necessary. Judge Thomas joined the majority in holding that the Commissions use of a "reasonable expectation" standard as a proxy for the division of responsibility between public and private forces is not arbitrary and capricious, that the NRC did not improperly withhold safeguarded information, and that the NRC did not violate the NEPA. However, he would grant the petition for review as to whether the NRC acted arbitrarily and capriciously in excluding air-based threats from the DBT rule. Hall (author), T.G. Nelson, and Thomas (dissenting in part), Circuit Judges. A. Rosenbaum of Washington, DC, for the petitioners; S. Crockett of Washington, DC, for the respondents; D. Repka of Washington, DC, for the intervenor. (Download the full text of this decision at www.ce9.uscourts.gov/)

15) ENVIRONMENTAL LAW / ATTORNEYS' FEES / FOIA: Oregon Natural Desert Assoc. v. Locke, 06-35851 (9th Cir. July 8, 2009). The Department of Commerce, National Oceanic and Atmospheric Administration Fisheries ("NOAA Fisheries") and the National Marine Fisheries Services (collectively "Commerce") appealed the district court's order granting attorneys' fees and costs under the Freedom of Information Act ("FOIA"), in favor of Oregon Natural Desert Association ("ONDA"). The district court issued the attorneys' fees order after it entered judgment in ONDA's action alleging unlawful withholding of requested documents and use of unlawful processing regulations in violation of the FOIA and the Administrative Procedure Act. The USCA affirmed in part, reversed in part, and remanded for recalculation of the attorneys' fee award. On two of its claims ONDA was not a substantially prevailing party under Buckhannon Bd. & Care Home, Inc. v. W.Va. Dept. of Health and Human Res., 532 U.S. 598 (2001). As to those claims, the defendants provided the documents ONDA requested before the district court ordered that they be turned over. ONDA was successful in obtaining the documents, but it succeeded by use of the catalyst theory of recovery, and not by either a judgment on the merits or a court-ordered consent decree as required by Buckhannon. Id at 604. The Openness Promotes Effectiveness in our National Government Act (the "2007 Amendments" to the FOIA) authorizes the payment of attorneys' fees when documents such as those sought by ONDA are recovered using a catalyst theory, but those Amendments were signed into law after the district court entered its attorneys' fees order, and they do not apply retroactively to this case. ONDA thus was not eligible for the recovery of attorney's fees on its first two claims. Nor was it eligible for attorneys' fees on its third claim, which it lost. However, it is eligible for an award of attorneys' fees on its fourth claim for its successful challenge to the cut-off regulation. Thomson (author), Tashima, and M.D. Smith, Circuit Judges. M. Pennak of Washington, DC, for the appellants; P. Lacy of Portland, OR, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

16) BANKRUPTCY / INSURANCE / ATTORNEYS' FEES: Biltmore Associates v. Twin City Fire Insurance Company, 06-16417, 07-16036 (9th Cir. July 10, 2009). In this consolidated appeal, an insurance coverage dispute arose in the context of bankruptcy. It turned on the "insured versus insured" exclusion. In appeal 06-16417, the USCA affirmed the dismissal of the complaint because the insured versus insured exclusion bars coverage for claims brought as the assignee of the debtor-in-possession. In appeal 07-16036, the USCA remanded the award of attorneys' fees for clarification that Biltmore is only liable in its capacity as representative of the trust. Kleinfeld (author) and N.R. Smith, Circuit Judges, and Mills, District Judge. A. Jacob of Phoenix, AZ, for the appellant; M. Perlis of Los Angeles, CA, and E.J. Kotalik of Phoenix, AZ, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

17) LABOR LAW: Boucher v. Villamor, 05-15454 (9th Cir. July 27, 2009). Three former employees of the Castaways Hotel, Casino and Bowling Center together with their local union sued the Castaways' individual managers for unpaid wages under state and federal law. The district court dismissed the plaintiffs' claims. This appeal raised three issues: (1) whether the Castaways' individual managers can be held liable for unpaid wages under Nevada law; (2) whether the union has standing to raise the state law claim; and (3) whether the managers can be held liable under the Fair Labor Standards Act ("FLSA"). The USCA certified the first issue to the Nevada Supreme Court as a question of first impression under Nevada law. The state court held that individual managers cannot be held liable as "employers," and thus that the claim had been properly dismissed by the district court, making the issue of the union's standing moot. The only remaining issue was whether a claim exists under federal law. The USCA held that it does, and the plaintiffs had adequately stated a claim under the FLSA: the managers are independently liable under the FLSA and the automatic stay of Castaway's Chapter 11 bankruptcy protection had no effect on that liability. The USCA thus reversed and remanded the FLSA claim to the district court. Wallace, Cudahy (author), and McKeown, Circuit Judges. R. McCracken of Las Vegas, NV, for the plaintiffs-appellants; C. Akridge of Las Vegas, NV, for the defendants-appellants. (Download the full text of this decision at www.ce9.uscourts.gov/)

18) EMPLOYMENT DISCRIMINATION: Kraus v. Presidio Trust Facilities, 07-17177 (9th Cir. July 23, 2009). Kraus, a federal employee, brought suit against her employer, the Presidio Trust Facilities Division, accusing the Trust of various acts of employment discrimination and retaliation. According to her complaint, she is African American, female, a lesbian, and an individual disabled due to dyslexia, emotional distress, anxiety, depression, a back injury with sciatica, and brain damage caused by lead poisoning. She alleged that she was discriminated against on various occasions because of her race, gender, sexual orientation, and disabilities, and was retaliated against on the basis of her participation in the discrimination complaint process. The district court granted the Trust summary judgment. At issue on appeal was the district court's holding that Kraus failed to satisfy the administrative exhaustion requirement as to several of her claims, rendering those claims subject to dismissal. The USCA held that the district court failed to apply the correct legal standard in its exhaustion analysis. It thus reversed and remanded. D.W. Nelson, Berzon (author), Clifton, Circuit Judges. J. Taylor of San Francisco, CA, for the plaintiff-appellant; K. Dowling of San Francisco, CA, for the defendant-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

19) LABOR LAW / WORKING CONDITIONS ABROAD: Doe I v. Wal-Mart, 08-55706 (9th Cir. July 10, 2009). The plaintiffs are employees of Wal-Mart's foreign suppliers in countries like China, Bangladesh, Indonesia, Swaziland, and Nicaragua. In 1992, Wal-Mart developed a code of conduct for its supplies, called "Standards for Suppliers." These Standards were incorporated into its supply contracts with foreign suppliers. They required foreign suppliers to adhere to local laws and local industry standards regarding working conditions such as pay, hours, forced labor, child labor, and discrimination. Each supplier had to acknowledge that its failure to comply with the Standards could result in cancellation of orders and termination of its relationship with Wal-Mart. The plaintiffs brought claims against Wal-Mart based on the working conditions in each of their employers' factories. The claims relied primarily on the Standards included in the supply contracts. The district court dismissed the complaint for failure to state a claim under Fed. R. Civ. Proc. 12(b)(6). The USCA affirmed. It agreed that the plaintiffs had not stated a claim against Wal-Mart. Wal-Mart had no legal duty under the Standards or common law negligence principles to monitor its suppliers to protect the plaintiffs from the suppliers' alleged substandard labor practices. Wal-Mart was not the plaintiffs' employer and the relationship between Wal-Mart and the plaintiffs was too attenuated to support restitution under an unjust enrichment theory. B. Fletcher, Fisher, and Gould (author), Circuit Judges. D. Stormer of Pasadena, CA, for the plaintiffs-appellant; J. Penrod of San Francisco, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

20) ERISA: Sznewajs v. U.S. Bancorp Amended and Restated Supplemental Benefits Plan, 07-16489 (9th Cir. July 13, 2009). This case concerns the standard of review to be applied by courts in reviewing a decision by the administrator of a pension plan gov-erned by ERISA. As is commonly the case, the documents for the plan involved in this case gave the plan administrator discretionary authority to interpret the terms of the plan, which ordinarily means that a decision by the plan administrator is subject to review by a court for abuse of discretion under Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101,109 S.Ct 948 (1989) and Metropolitan Life Ins. Co. v. Glenn, 128 S.Ct 2343 (2008). However, the plan in question is a "top hat" plan, an unfunded plan that is limited to key executives of the sponsoring company. That fact has led some courts to conclude that a plan administrator's decision should be subject to de novo review. In the circumstances of this case, however, notably the fact that there was no financial conflict of interest that influ-enced the administrator to favor one result over another, the USCA concluded that its review should be for abuse of discretion. Defen-dant U.S. Bancorp Amended and Restated Supplemental Benefits Plan appealed the district court's entry of summary judgment direct-ing the plan to treat plaintiff Franciene Sznewajs as a designated surviving spouse beneficiary. She is the ex-wife of counter-defendant Robert Sznewajs, a former executive employee of U.S. Bancorp covered by the plan. The plan concluded that Robert's second wife, Virginia, should be treated as his survivor beneficiary, a determination held improper by the district court. Applying the abuse of dis-cretion standard of review, the USCA concluded that the plan administrator's interpretation was permissible and should be affirmed. Accordingly, the USCA reversed and remanded the district court judgment with instructions for the district court to enter summary judgment for the plan. Brunetti, Archer, and Clifton (author), Circuit Judges. M. Droke of Seattle, WA, for the defendant-counter-claimant-appellant; T. Berg of Phoenix, AZ, for the plaintiff-counter-defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

21) ERISA: Trustees of the Screen Actors Guild-Producers Pension and Health Plans v. NYCA, Inc., 08-55409 (9th Cir. July 15, 2009). At issue here was whether ERISA allows an employee benefit plan to recover unpaid contributions from an employer who is not a party to the applicable collective bargaining agreement. TaylorMade-Adidas Gold Company manufactures golf-related products. In 1003, TaylorMade recruited Fred Couples, a professional golfer, to endorse its products. Under the deal, Couple received a hefty sum for promoting TaylorMade's golf products in TV commercials and during personal appearances. The endorsement agreement ensured that, in the event payments under a collective bargaining agreement ("CBA") are necessary, TaylorMade will make the required con-tributions. TaylorMade was not a signatory to the Commercials Contract with the Screen Actors Guild and advertising agencies such as NYCA. However, NYCA and TaylorMade had their own contractual relationship, which began before TaylorMade signed the endorsement deal with Couples and under that contract NYCA acted as TaylorMade's exclusive advertising agent for golf-related prod-ucts. Under one provision of that contract, TaylorMade recognized that NYCA is signatory to the CBA with the Screen Actors Guild and other talent-related union agreements, and that the hiring and use of talent by NYCA on TaylorMade's behalf would be subject to the terms of such agreements. As TaylorMade's advertising agent, NYCA works with Couples to produce golf advertisements. Both TaylorMade and NYCA, however, split the bill for Couples' services. NYCA paid Couples $102,181; TaylorMade paid significantly more. NYCA calculated its contribution obligations under the Commercials Contract with reference only to its own payments to Cou-ples, instead of the combined payments made by NYCA and TaylorMade. This resulted in a significantly lower obligation that NYCA would otherwise have owed. The trustee of the employee benefit plans covered by the Commercials Contract sued both NYCA and TaylorMade. They claimed that ERISA entitles them to contributions based upon Couples' total compensation, not merely the portion paid by NYCA. The district court dismissed the case for failure to state a claim under Fed. R. Civ. Proc. 12(b)(6). The USCA affirmed the district court's grant of summary judgment to NYCA and to TaylorMade on the trustees' second, third, and fourth causes of action. It reversed the district court's grant of summary judgment to NYCA on the trustees' first cause and action, and remanded for further proceedings. Goodwin, O'Scannlain (author), and Graber, Circuit Judges. P. Dickinson of Glendale, CA, for the appellants; R. Gerber of San Diego, CA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

22) ERISA: Harris v. Amgen, Inc., 08-55389 (9th Cir. July 14, 2009). The plaintiffs, Harris and Ramos, sued Amgen, Inc. and sev-eral Amgen directors and officers, alleging that the defendants breached their fiduciary duties under ERISA in their operation of two ERISA retirement plans. The district court dismissed Harris' claims on the ground that they lacked standing as an ERISA plan "par-ticipant" because he had withdrawn all of his assets from his plan. It also dismissed Ramos' claims, reasoning that although Ramos had standing, he did not allege any claims against the defendants who were fiduciaries under the plan. The district court also denied the plaintiffs' leave to amend their complaint. The USCA reversed the dismissal of the plaintiffs' complaint. It held that Harris had standing as an ERISA plan participant to seek relief under ERISA Sec. 502(a)(2) despite having withdrawn all of his assets from his plan. It also held that the district court improperly denied the plaintiffs leave to amend their complaint to add more factual allegations where necessary and to identify proper fiduciaries of their plans. B. Fletcher, Fisher, and Gould (author), Circuit Judges. F. Gregorek of San Diego, CA, for the appellants; S. Kramer of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

23) ERISA: Dupree v. Holman Professional Counseling Centers, 07-55617 (9th Cir. July 29, 2009). Timothy Dupree and Alexandra Martini, father and step-daughter, brought this ERISA action concerning whether or not Dupree's employee health plan covered Alexandra's stay at a residential treatment center ("RTC") that had no contract with insurer Holman Professional Counseling Center. The district court found that the stay was not covered. The USCA affirmed. Dupree's employer chose to provide its employees with a behavioral health insurance plan that covered only stays at contracted RTCs, such as the two that were suggested to, but declined by Alexandra. Dissenting, Judge Pregerson disagreed with the majority's opinion that the Behavioral Health Plan that Timothy purchased "unambiguously does not" cover non-emergency treatment at non-contracted provider Residential Treatment Centers. He found the plain text of the contract ambiguous with regard to non-contracted provider RTCs. Pregerson (dissenting) and Hall (author), Circuit Judges, and Ezra, District Judge L. Kantor of Northridge, CA, for the plaintiffs-appellants; R. Bohner of Los Angeles, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

24) ERISA: Johnson v. Couturier, 08-17369 (9th Cir. July 27, 2009). In his capacity as president of Noll Manufacturing Company and its successors ("Noll"), Couturier together with his fellow directors, diverted some $35 million of corporate assets-at least a third of the corporation's value-to his own possession through the buyout of deferred compensation agreements. The plaintiffs, all of whom are participants in Noll's employee stock ownership plan ("ESOP"), filed suit against Couturier and two other directors alleging breach of fiduciary duties under ERISA. At issue on appeal was whether the district court abused its discretion when it enjoined advancement of defense costs and froze Couturier's assets. The USCA concluded that the district court did not abuse its discretion, but remanded to allow the district court, in the first instance, to set the terms and conditions of a surety bond sufficient to secure Couturier and the other defendants against any harm that might wrongfully befall them as a result of the issuance of each injunction. Hug, Hawkins, and Tallman (author), Circuit Judges. T. Becker for the appellants; G. Greenwald for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

25) CLASS ACTIONS / CIVIL PROCEDURE: In re Wells Fargo Home Mortgage, 08-15355 (9th Cir. July 7, 2009). The plaintiffs are current and former home mortgage consultants ("HMCs") who were employed by Wells Fargo Home Mortgage in California. Since 2001, there has been some 5000 such HMCs. This interlocutory appeal challenged a district court order certifying the HMCs as a class. At issue was whether the court abused its discretion in finding that the predominance requirement of Fed. R. Civ. Proc. 23(b)(3) was satisfied, based, in large part, on an employer's internal policy of treating its employees as exempt from overtime laws. While such uniform exemption policies are relevant to a Rule 23(b)(3) analysis, the USCA held that it is an abuse of discretion to rely on such policies to the near exclusion of other relevant factors touching on predominance. It thus reversed the district court's order certifying the class. Silverman and Callahan, Circuit Judges, and Mills (author), District Judge. L. Porter of San Francisco, CA, for the defendant-appellant; A. Lazear of Oakland, CA, for the plaintiffs-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

26) CLASS ACTIONS / CIVIL PROCEDURE: Vinole v. Countrywide Home Loans, Inc., 08-55223 (9th Cir. July 7, 2009). The plaintiffs appealed the district court's order granting Countrywide Home Loans' motion to deny class certification. In this wage-and-hour dispute, the plaintiffs sought to represent a proposed class of current and former Countrywide employees who are or were em-ployed as External Home Loan Consultants ("HLCs"). They alleged that Countrywide mis-classified HLCs as exempt outside sales employees and, as a result, Countrywide impermissibly failed to pay premium overtime and other wages. In a procedural wrinkle, Countrywide filed its motion to deny certification before the plaintiffs filed a motion for certification pursuant to Fed. R. Civ. Proc. 23 and prior to the pretrial motion deadline and discovery cutoff. On appeal, the USCA considered whether the district court abused its discretion by (1) considering Countrywide's motion to deny class certification before the plaintiffs had filed a motion to certify and prior to the pretrial and discovery cutoffs, and (2) denying class certification based on its reasoning that individual issues predominate over common issues. See Fed. R. Civ. Proc. 23(b)(3). The USCA affirmed. First, no rule or decisional authority prohibited Countrywide from filing its motion to deny certification before the plaintiffs filed their motion to certify and the plaintiffs had ample time to prepare and present their certification argument. Second, the district court did not abuse its discretion by denying certification under Rule 23(b)(3) because the record supported its conclusion that individual issues predominate over common issues. Silverman and Callahan (author), Circuit Judges, and Mills, District Judge. M. Singer for the appellants; T. Kaufman for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

27) SOCIAL SECURITY: Independent Living Center of Southern California v. Maxwell-Jolly, 08-56422 (9th Cir. July 9, 2009). The petitioners, a group of pharmacies, health care providers, senior citizens' groups, and beneficiaries of the State's Medicaid program, MediCal, sought to enjoin the California Department of health Care Services Director, from implementing state legislation re-ducing payments to certain medical service providers under Medi-Cal by 10% ("AB 5"). The USCA held that the district court did not abuse its discretion in granting the petitioners' motion for a preliminary injunction, because the Director failed to "rely on responsible cost studies, its own and others," Orthopaedic Hosp. v. Belshi, 103 F.3d 1491 (9th Cir. 1997), in determining the effect of the rate cuts mandated by AB 5 on the statutory factors of efficiency, economy, quality and access to care before implementing those cuts. The USCA also held that the district court's preliminary injunction should be modified to cover payments for medical services provided on or after July 1, 2008, because the Director waived the State's sovereign immunity in both state and federal court. Reinhardt, W. Fletcher, and M.D. Smith (author), Circuit Judges. R. Waldow of Los Angeles, CA, for the respondent; L. Carman of Los Angeles, CA, for Independent Living Center; C. Cannizzo of San Francisco, CA, for the interveners.(Download the full text of this decision at www.ce9.uscourts.gov/)

28) SOCIAL SECURITY: AlohaCare v. Hawaii, 08-16589 (9th Cir. July 14, 2009). AlohaCare submitted a proposal to provide managed health care to Medicaid-eligible aged, blind, and disabled individuals. When the Hawaii Department of Human Services awarded the contract to two other health plans, AlohaCare brought suit under 42 USC Sec. 1983, alleging that the State had violated the Medicaid Act. At issue on appeal was whether 42 USC Sec. 1396b(m) confers a federal right to contract eligibility on Aloha Care that can be remedied under Sec. 1983. The USCA concluded that it does not and thus affirmed the judgment of the district court. Koz-inski, Bybee (author), and Callahan, Circuit Judges. J. Feldesman of Washington, DC, for the plaintiff-appellant; DAG J. Molay of Honolulu, HI, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

29) SOCIAL SECURITY: Valentine v. Commissioner Social Security Administration, 08-35374 (9th Cir. July 20, 2009). At issue here was under what circumstances can the Social Security Administration find that a claimant for disability insurance benefits is not disabled despite a contrary finding by the Department of Veterans Affairs based on war related injuries? The district court affirmed the denial of benefits. The USCA affirmed, holding that the Administrative Law Judge was justified in rejecting the VA's disability rating because she had evidence the VA did not, and that undermined the evidence the VA had. The acquisition of new evidence or a prop-erly justified reevaluation of old evidence may constitute a persuasive, specific, and valid reason supported by the recorded for accord-ing little weight to a VA disability rating. Goodwin, O'Scannlain (author), and Fisher, Circuit Judges. L. Ziskin of Lake Oswego, OR, for the appellant; T. Elsberry of Seattle, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

30) ELECTION LAW: Marcus v. Holder, 08-15643 (9th Cir. July 30, 2009). Marcus claimed that he was the target of a politically motivated investigation by the U.S. Attorney General into alleged federal campaign finance violations. He sued the AG and the Federal Election Commission Chairman seeking a declaration that the AG's investigation was unlawful. He claimed that the Federal Election Campaign Act of 1971, as amended, prohibits the AG from investigating or prosecuting suspected criminal violations of the Act unless the FEC has referred the matter to the AG first. The district court dismissed his case with prejudice. The USCA affirmed. It held, as it did in USA v. Intl. Union of Operating Engineers, Local 701, 638 F.2d 1161 (9th Cir. 1979), that the AG need not obtain the permission of the FEC before investigating or prosecuting possible violations of federal election laws. Silverman (author), Clifton, and M.D. Smith, Circuit Judges. M. Dezsi of Southfield, Mich. For the appellant; T. Duncan of Washington, DC, for the appellee. ((Download the full text of this decision at www.ce9.uscourts.gov/)

31) PROPERTY / RESTITUTION: USA v. Berger, 08-50415 (9th Cir. July 31, 2009). Third-Party-Movant-Appellant Berger maintained that the district court erred in including her community property interest in the proceeds of a real estate sale among the funds payable to victims of her former husband's fraud pursuant to the Mandatory Victim Restitution Act ("MVRA), 18 USC Sec. 3663(a). The USCA held that community property is available to satisfy restitution judgments obtained under the MVRA against a criminally liable spouse, including that portion of the property that otherwise would potentially be awarded upon dissolution of marriage to an innocent spouse who was not involved in the criminal activity. The USCA thus affirmed the order of the district court. W. Fletcher, Clifton, and M.D. Smith (author), Circuit Judges. J. Blake of Chicago, Ill, for C. Berger; AUSA L. Seidman of Los Angeles, CA, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

32) VEHICLE CODES: Lone Star Security & Video, Inc. v. City of Los Angeles, 07-56521 (9th Cir. July 10, 2009). Lone Star Security sells security systems to homes and businesses. As part of its marketing strategy, it attached advertisements to a number of mobile trailers and parked them for extended periods on residential streets in Los Angeles. Over several years, officers of the Los An-geles Police Department and Los Angeles Department of Transportaiton towed and impounded 77 of Lone Star's trailers for having been parked longer than 72 hours in violation of Los Angeles Municipal Code Sec. 80.73.2. Lone Star maintained that the Sec. 80.73.2 is invalid under state law and that the Los Angeles violated Lone Star's due process rights under the U.S. Constitution. At issue on appeal was not simply whether the claim stated a federal constitutional violation-it did not-but whether it is so wholly insubstantial and frivolous that the district court lacked jurisdiction to entertain it. Also at issue was whether due process required the City to provide notice to Lone Star, a chronic violated of the ordinance, each time it towed one of its vehicles. The USCA held that the City provided constitutionally sufficient notice before towing Lone Star's vehicles, and affirmed the district court's rejection of this due process claim. It also held that the district court lacked subject matter jurisdiction over Lone Star's claim that Sec. 80.73.2 is invalid under state law. Lone Star elected to bring its invalid-ordinance claim only under federal law, and thus there were no outstanding state-law claims for the district court to address by way of supplemental jurisdiction. Because Lone Star is left without any remaining causes of action, the USCA said it could not remand with instructions to permit Lone Star to amend its complaint. The USCA thus affirmed the district court's rejection of Lone Star's constitutional notice claim, vacate its grant of summary judgment on Lone Star's invalid-ordinance claim and remanded with instructions to dismiss that claim for lack of jurisdiction. B. Fletcher, Fisher (author), and Gould, Circuit Judges. R. Delgadillo of Los Angeles, CA, for the defendant; G. Wallace of Pasadena, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

33) FIRST AMENDMENT: Huppert v. City of Pittsburg, 06-17362 (9th Cir. July 21, 2009). Plaintiffs Huppert and Salgado ap-pealed the district court's grant of summary judgment in favor of the City of Pittsburg and individual police officers within that the Pittsburg Police Department ("PPD"), dismissing their claims under 42 USC Sec. 1983. The USCA held that the speech at issue was given pursuant to plaintiffs Huppert and Salgado's job duties. It thus affirmed the district court's grant of summary judgment. Huppert's speech during in FBI investigation into corruption in the PPD and Huppert and Salgado's speech during the investigation into police corruption at a city-owned golf course were not protected under the First Amendment. In addition, Salgado appealed the district court's dismissal on summary judgment of his Sec. 1983 claim brought under the Fourth, Sixth, and Fourteenth Amendments. The USCA affirmed the district court on this claim as well. Finally, both plaintiffs appealed the district court's grant of costs to the appellees solely on the ground that the appellees failed to timely file their bill of costs. The USCA found this argument meritless and thus affirmed the district court's award of fees. Dissenting, Judge Fletcher thought that the majority had failed to follow binding circuit precedent in four cases decided after the Garcetti v. Ceballos, 547 U.S. 410 (2006). Those case are Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006), Marable v. Nitchman, 511 F.3d 924 (9th Cir. 2007), Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009), and Robinson v. York, 556 F.3d 817 (9th Cir. 2009). The majority also held that Huppert's subpoenaed speech to the grand jury investigating corruption in the PPD was not protected by the First Amendment. In so holding, Judge Fletcher thought the majority created a circuit split with the Seventh Circuit decision in Morales v. Jones, 494 F.3d 590 (7th Cir. 2007), and the Third Circuit's decision in Reilly v. Atlantic City, 532 F.3d 216, 220 (3rd Cir. 2008). W. Fletcher (dissenting) and Tallman (author), Circuit Judges, and Bertelsman, District Judge. R. Robinson of San Francisco, CA, for the appellants; J. Quinn of San Francisco, CA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

34) FIRST AMENDMENT: Moss v. U.S. Secret Service, 07-36018 (9th Cir. July 16, 2009). The plaintiffs, individually and on behalf of a class of people similarly situated, alleged that two U.S. Secret Service Agents violated their First Amendment rights when they ordered the relocation of a demonstration critical of then-President George W. Bush. They sued the Agents for damages under the implied cause of action first recognized in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397 (1971). The Agents moved to dismiss based on qualified immunity. The district court denied the motion, prompting this interlocutory appeal. The defendants also sought review of the district court's deferral of their alternative motion for summary judgment. The USCA reversed the district court's denial of the Agents' motion to dismiss, but directed that the plaintiffs be granted leave to amend their complaint so that they have the opportunity to comply with Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). The USCA concluded that it lacked jurisdiction over the defendants' alternative summary judgment motion and thus dismissed that portion of their appeal. Under the plausibility standard set forth in Twombly and further refined in Iqbal, the plaintiffs failed to allege a colorable claim of unconstitutional viewpoint discrimination against the Agents. They may be able to amend their complaint to include facts that will state a plausible claim, and thus the interests of justice would be served by granting them a chance to do so. Tashima (author) and M.D. Smith, Circuit Judges, and Wu, District Judge. E. Himmelfarb of Washington, DC, for the plaintiffs-appellants; S. Wilker of Portland, OR, for the defendant-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

35) CIVIL RIGHTS / WARRANTLESS PROBATION SEARCH: Sanchez v. Canales 06-55584 (9th Cir. July 30, 2009). Due to an increase in robberies in the Wilshire area, Los Angeles Police Department's ("LAPD") Career Criminal Detail ("CCD") began con-ducting probation compliance checks on probationers in the Wilshire area having prior arrests for robbery. As a condition of release, every probationer in California is required to submit his person, property, place of residence, vehicle and personal effects, to search at any time, without or without a search warrant, warrant of arrest or reasonable cause by any probation officer or officer of the law. LAPD Officer Canales obtained a list of such probationers from Deputy Probation Officer Wesley Woo. Oscar Sanchez was included in the list because police records indicated he was still on probation, had committed prior robberies, and lived in the area. Oscar's ad-dress of record was that of his parents, Eva and Ruben Sanchez. CCD officers reviewed and verified the accuracy of the records and cross-referenced their list against county jail records, eliminating from the list several probationers who were incarcerated in county jail. Oscar, it turned out, was incarcerated in state prison at the time, but remained on the list because the CCD officers did not have ready access to state prison records. Canales, Woo, and six other CCD officers arrived at the Sanchez home at 6am. They woke the family by knocking on the door and shouting to open the door. When Eva opened it, the officers entered the house and ordered the family outside so they could search the home safely, although they allowed one member, Carmen, who was suffering from cancer, to remain inside on the couch. The family remained outside in the front yard for between 10 and 45 minutes. When they allowed the family back inside the house, Ruben showed them a letter Oscar had recently sent the family from prison, as proof he was incarcerated there. The officers then departed. The family filed suit against the officers under 42 USC Sec. 1983, claiming unlawful entry and search, excessive force, and unlawful detention in violation of the Fourth and Fourteenth Amendments. Following discovery, the officers moved for summary judgment, asserting qualified immunity from suit on each claim. The district court granted qualified immunity with respect to the search and excessive force claims. However, the district court denied qualified immunity on the unconstitutional detention claim. The defendants appealed the partial denial of qualified immunity, arguing that any detention of the plaintiffs was constitutionally reasonable. At issue on appeal was, assuming the plaintiffs were detained during a legal search of their home, was the detention a violation of their clearly established constitutional rights? The USCA held it was not, and reversed and remanded with instructions to grant qualified immunity on the unreasonable detention claim. Dissenting, Judge Pregerson agreed with the district court that the plaintiffs raised a triable issue of fact as to their claim of unlawful detention, and that the defendants were not entitled to qualified immunity on that claim. Judge Pregerson said he was also trouble by how the officers carelessly executed the search of the residence. Cudahy, Pregerson (dissenting), and Hawkins (author), Circuit Judges. M. Yagman of Venice Beach, CA, for the appellees; B. Brock of Los Angeles, for the appellants.(Download the full text of this decision at www.ce9.uscourts.gov/)

36) CIVIL RIGHTS / DUE PROCESS: Conn v. City of Reno, 07-15572 (9th Cir. July 24, 2009). For years before she ultimately committed suicide in the Washoe County Jail, Clustka Conn struggled with alcohol abuse and serious mental health problems, including suicidal ideation. While transporting her, two Reno police officers witnessed her wrap a seatbelt around her neck in an apparent attempt to choke herself. She then screamed that they should kill her or else she would kill herself. The officers failed to report the incident to jail personnel or take her to a hospital. Clustka was released from protective custody a few hours later. The next day, she was again detained on a misdemeanor charge. During her second detention, less then 48 hours after the suicide threats, Clustka hanged herself in her cell. When an individual is taken into custody and thereby deprived of her liberty, the officials who hold her against her will are constitutionally obligated to respond if a serious medical need should arise. If, with deliberate indifference, these officials fail to respond appropriately and instead act in a manner that will foreseeably result in harm, they violate her due process rights. The same is true when a municipality, with deliberate indifference, fails to train its law enforcement officers or fails to adopt and implement policies when it is highly predictable that such inaction will result in constitutional violations. The USCA held that, on the facts presented, a reasonable jury could find that the defendant police officers are liable under 42 USC Sec. 1983 for their deliberate indifference to Clustka's serious medical need, and that their actions were a cause in fact and a proximate cause of her suicide. Likewise, a jury could find the City of Reno liable for its failure to train its law enforcement officers or to implement policies on suicide prevention and reporting. For these reason, the USCA reversed the district court grant of summary judgment in favor of the defendants to allow Clustka's surviving children to bring their claims before a jury. Schroeder, D.W. Nelson, and Reinhardt (author), Circuit Judges. T. Keyser-Cooper of Reno, NV, for the appellants; J. Kadlic of Reno, NV, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

37) CIVIL RIGHTS: Hopkins v. Bonvicino, 07-15102 (9th Cir. July 16, 2009). In August 2003, two San Carlos police officers broke into Hopkins' home. They did not have a warrant, nor did they have probable cause. All they had was a statement from a third-party that Hopkins had been involved in an extremely minor traffic incident, an incident so minor that it did not cause as much as a scratch on either of the vehicles involved, and that he appeared to have been drinking. Based on this information, the officers broke into Hopkins' home with their flashlights shining and their guns drawn. When they found Hopkins lying in bed watching TV, they handcuffed him, removed him from his house, and placed him under arrest. The officers' explanation for their warrantless entry was simply that, after hearing that Hopkins had the smell of alcohol on his breath, they feared he was on the brink of a diabetic coma and broke into his house in order to offer medical assistance. They entered with their guns drawn because individuals suffering from diabetic emergencies "may sometimes be confused" and can be "combative." Hopkins, however, was neither confused nor combative and he was not suffering from a diabetic emergency. Yet, after the officers discovered that he was perfectly healthy and non-comatose, they still handcuffed him at gunpoint, removed him from his house, arrested him, and took him to the San Mateo County jail. Hopkins sued the two officers, and their colleague who waited outside, and the City of San Carlos under 42 USC Sec. 1983 for warrantless entry, unlawful arrest, and excessive force. Because "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed, and because the officers' conduct here unequivocally violated Hopkins' clearly established constitutional rights, the USCA affirmed the denial of summary judgment with respect to the two officers who entered the house, although it held that their colleague who waited outside, was entitled to qualified immunity. Schroeder, D.W. Nelson, and Reinhardt (author), Circuit Judges. A. Boskovich of San Jose, CA, for the plaintiff-appellees; T. Master of Redwood City, CA, for the defendants-appellants. (Download the full text of this decision at www.ce9.uscourts.gov/)

38) CIVIL RIGHTS: Nelson v. City of Davis, 07-16905 (9th Cir. July 7, 2009). In 2004, Nelson, a University of California at Davis student, attended a large party that got out of control. The police arrived and in attempting to control and disperse the crowd fired pepperballs. One hit Nelson causing an eye injury. He filed suit in the district court under 42 USC 1983, alleging violations of the Fourth and Fourteenth Amendments. He claimed that he lost his football scholarship after the injury, suffered temporary blindness and perma-nent disfigurement, and has undergone a number of corrective surgeries. He testified as to the circumstances leading up to his injury and presented the deposition testimony of two other people present with him at the time. The district court granted the defendants' motion for summary judgment and dismissed Nelson's claims without hearing oral argument. It decided that Nelson was not an intended target of the pepperballs because "any inference in that regard that may be drawn from the equivocal testimony of others, however, is nullified by Plaintiff's own clear version of what transpired during the period immediately surrounding his injury." Nelson thus could not "avoid summary judgment by citing testimony allegedly inconsistent with his own testimony. The sole issue decided on appeal was whether the "sham affidavit" rule precludes the introduction of testimony from other witnesses that is arguably inconsistent with a plaintiff's deposition testimony. Under the circumstances presented by this case, the USCA concluded that the doctrine does not extend that far. Because the district court's entry of summary judgment was predicated on this extension of the "sham affidavit" rule, the USCA vacated the judgment of the district court and remanded for reconsideration. Wallace, Thomas (author), and Bybee, Circuit Judges. J. Burris of Oakland, CA, for the appellant; J.S. Smith of Sacramento, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

39) CIVIL RIGHTS / JURISDICTION: BNSF Railway v O'Dea, 08-35075 (9th Cir. July 16, 2009). O'Dea applied to and was extended a conditional offer of employment by BNSF Railway Company for the position of Conductor Trainee. Based upon an individualized medical assessment, however, BNSF disqualified O'Dea for the position. O'Dea then filed a complaint for discrimination with the Montana Department of Labor and Industry, Employment Relations Division, alleging that BNSF had discriminated against him because of the perceived disability of obesity in violation of the Montana Human Rights Act, the Americans with Disability Act of 1990, and Title VII of the Civil Rights Act of 1964. A hearing examiner granted O'Dea's motion for a summary ruling on liability and issued a final decision awarding him damages and other relief. The Montana Human Rights Commission affirmed that decision. The Montana Administrative Procedure Act provides for judicial review of agency decisions, and BNSF sought review by filing this action based on diversity jurisdiction. O'Dea argued that the federal courts lack subject matter jurisdiction. The district court held that it did not have jurisdiction because the action, in effect, sought appellate review of a decision of the Montana Human Rights Commission. The USCA reversed and remanded. It noted that in City of Chicago v. Intl. College of Surgeons, 522 U.S., 156, 163 (1997), the Supreme Court so severely undermined the rampart the USCA had erected between district court diversity jurisdiction and the onslaught of actions seeking on-the-record review of state administrative agency decision that the structure's collapse was inevitable. That collapse has now come. The USCA thus held that Shamrock Motors, Inc. v. Ford Motor Co., 120 F.3d 196, 200 (9th Cir. 1997), is no longer the law and that the district court does have subject matter jurisdiction to hear BNSF's review action. Concurring, Judge Fisher was not convinced that Shamrock was "just plain wrong." O'Scannlain, Fernandez (author), and Fisher (concurring), Circuit Judges. B. Neal of Dallas, TX, for the appellant; T. Trieweiler of Whitefish, MT, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

40) NATIVE AMERICAN LAW: North County Community Alliance, Inc. v. Salazar, 07-36048 (9th Cir. July 15, 2009). The North County Community Alliance brought suit against the National Indian Gaming Commission ("NIGC"), the Department of Interior, and those agencies' principal officers (collectively "appellees"). The Alliance maintained that the NIGC's failure to make an "Indian Lands" determination either before approving the Nooksack Indian Tribe's gaming ordinance in 1993, or before the Nooksack licensed and began constructing the Northwood Crossing Casino in 2006, violated the Indian Gaming Regulatory Act ("IGRA"). The Alliance also claimed that the appellees violated the National Environment Policy Act ("NEPA") by failing to prepare an Environ-mental Impact Statement ("EIS") in connection with construction of the Casino. The USCA held that the Alliance's challenge to the NIGC's 1993 approval of the ordinance, insofar as it relates to the licensing and construction of the Casino, was not time-barred. On the merits, the USCA held that the NIGC did not have a duty under IGRA to make an Indian lands determination in 1993 before ap-proving the Nooksack non-site specific proposed gaming ordinance. It also held that the NIGC did not have a duty under IGRA to make an Indian lands determination in 2006 when the Nooksack licensed and began construction of the Casino pursuant to the approved Ordinance. Finally, the USCA held that there was no violation of NEPA. W. Fletcher (author), Gould (dissenting in part), and Tallman, Circuit Judges. B. Amsbary of Bellevue, WA, for the appellant; R. Cohen of Washington, DC, or the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

41) NATIVE AMERICAN LAW: USA v. Washington, 07-35062 (9th Cir. July 13, 2009). This case concerns an action by one Indian tribe to obtain against other tribes an equitable apportionment of a shared fishery. In 1981, the Skokomish Indian Tribe requested a determination that it had the primary right to fish in the Hood Canal. The claim for a "primary right" entails "the power to regulate or prohibit fishing by members of other treaty tribes" with fishing rights in the same territory. Primary right adjudication depends on the historical relationship between the tribes at the time of the treaties. The USCA upheld the dismissal of the request for determination because the Skokomish did not plead "real and substantial injury or damage" as required for equitable allocation between sovereigns. O'Scannlain, Rymer, and Kleinfeld (author), Circuit Judges. D. Endreson of Washington, DC, for the appellant; L. Rasmussen of Seat-tle, WA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

42) IMMIGRATION: Park v. Holder, 07-74420 (9th Cir. July 9, 2009). Giving deference to the reasonable interpretation of the term "domicile" by the Board of Immigration Appeals ("BIA"), the USCA found that substantial evidence supported its determination that Joseph Higa did not qualify as a sponsor, because he was not domiciled in the U.S. as required by 8 USC Sec. 1183a(f). Accordingly, the petitioner failed to demonstrate her eligibility for adjustment of status due to her lack of a qualifying sponsor. The USCA also held that Park lacked standing to pursue Higa's constitutional claims. It thus denied the petition for review. Schroeder, Paez, and N.R. Smith (author), Circuit Judges. R. Oldenburg of Waipahu, HI, for the petitioner; J. Bless of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

43) IMMIGRATION: Carrillo-Jaime v. Holder, 06-74581 (9th Cir. July 15, 2009). Carrillo-Jaime, a citizen of El Salvador and lawful permanent resident of the U.S., pled guilty in 2005 to violating Sec. 10801 of the California Vehicle Code, which prohibits owning or operating a "chop shop." The government thereafter initiated removal proceedings. The Immigration Judge ("IJ") held that the con-viction under Sec. 10801 categorically qualified as an aggravated felony theft offense under 8 USC Sec. 1101(a)(43)(G) and ordered Carrillo-Jaime removed. The BIA affirmed. The USCA held under the categorical approach of Taylor v. USA, 495 U.S. 575 (1990), that a conviction under Sec. 10801 is not an aggravated felony theft offense under Sec. 1101(a)(43)(G). It further held that the record was not sufficient to establish that the Sec. 10801 conviction was an aggravated felony theft offense under the modified categorical approach. The USCA thus granted the petition for review and remanded to the BIA for further proceedings. Concurring, Judge Tallman thought the panel had faithfully applied the Taylor framework in holding that a conviction for operating a chop shop under Sec. 10801 is not an aggravated felony. He also thought Congress could not have intended such a result. Were the panel writing on a clean slate, he would uphold the order of removal. D.W. Nelson, W. Fletcher (author), and Tallman (concurring), Circuit Judges. K. Hong of Portland, OR, for the petitioner; J. Hunolt of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

44) IMMIGRATION: Blanco v. Holder, 05-72159 (9th Cir. July 15, 2009). At issue here was whether an alien's otherwise complete and timely application for adjustment of status was properly rejected as untimely for the sole reason that his lawyer's accompanying check for the proper amount of the filing fee was inadvertently unsigned. The USCA answered "no" and granted the petition for review. Noonan, O'Scannlain, and Graber (author), Circuit Judges. R. Marshak of Los Angeles, CA, for the petitioner; L. Fascett of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

45) IMMIGRATION: Szalai v. Holder, 06-74994 (9th Cir. July 16, 2009). At issue here was whether a judgment holding Szalai in contempt for disobeying the "stay away" portion of a restraining order issued pursuant to Oregon's Family Abuse Prevention Act ("FAPA"), qualified as a violation of a "protection order" under 8 USC Sec. 1227(a)(2)(E)(ii). Szalai, a native and citizen of Hungary and a lawful permanent resident, appealed from a BIA order dismissing his appeal and affirming an IJ's decision which denied his re-quest for cancellation of removal and other forms of relief. The USCA denied the petition for review. Even assuming that the BIA erred by considering the police report, Szalai did not deny that he violated the restraining order's 100 yard stay away provision which Alanis-Alvarado v. Holder, 558 F.3d 833 (9th Cir. 2009), concluded "involved protection against credible threats of violence, repeated harassment, or bodily injury." Give the import of Alanis-Alvarado, all information necessary to the Sec. 1227(a)(2)(E)(ii) analysis was contained in the FAPA restraining order and the Judgment on Contempt Hearing, documents which Szalai admits may be considered under the modified categorical approach. Thus any error the BIA's consideration of the police report was harmless. Judge Wu con-curred in the result and in most of the majority's analysis based upon Alanis-Alvarado, but he thought that case's holding as to the ap-plicability of the categorical and modified categorical approaches of Taylor v. USA, 495 U.S. 575 (1990), to Sec. 1227(a)(2)(E)(ii) had been simply assumed without analysis and was incorrect. Tashima and M.D. Smith, Circuit Judges, and Wu (concurring), District Judge. Per Curiam. T. Statler of Portland, OR, for the petitioner; W. Benner-Leon of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

46) IMMIGRATION: Ayala-Villanueva v. Holder, 07-70110 (9th Cir. July 14, 2009). Removal proceedings were initiated against Ayala on March 7, 2003, when the Department of Homeland Security ("DHS") issued and served on Ayala a notice to appear, charg-ing him with removal as an aggravated felon under 8 USC Sec. 1227(a)(2)(A)(iii) and 8 USC Sec. 1101(a)(43)(G) (theft offense). Based on his conviction for possession of stolen property in violation of Nevada Revised Statutes Sec. 205.275 Ayala maintained that he is a derivative citizen and thus not removable. On three occasions, the IJ terminated the removal proceedings concluding that Ayala had presented substantial, credible evidence of his citizenship and that the government had failed to prove deportability by clear and convincing evidence. Each time the IJ terminated removal proceedings, the DHS appealed to the BIA which sustained each DHS ap-peal and thrice remanded the matter to the IJ. On the third remand, the IJ feeling that she could do nothing else but comply with the BIA order, found that Ayala is a native and citizen of El Salvador and removable because he was convicted of an aggravated felony. The BIA dismissed Ayala's appeal. Ayala then petitioned the USCA for relief. The USCA noted that the evidence as to Ayala's pater-nity was disputed. The administrative record contains various versions of two conflicting records of Ayala's birth. There thus existed a genuine factual dispute concerning the identity of Ayala's father and that the resolution of this factual dispute would determine whether or not Ayala acquired derivative citizenship. The USCA thus transferred the proceedings to the U.S. District Court of Nevada for a new hearing on Ayala's nationality claim and a decision on that claim as if an action had been brought. Hug (author), B. Fletcher, and Hawkins, Circuit Judges. L. Rosen of Las Vegas, NV, for the petitioner; R. Zanfardino of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

47) IMMIGRATION: Nevarez v. Holder, 07-74271 (9th Cir. July 8, 2009). The petitioners moved the BIA reopen removal proceed-ings so they could supplement their cancellation of removal application with newly acquired information about their youngest son's learning disability. The BIA denied the motion to reopen as "number-barred" and denied the motion to toll the voluntary departure. The USCA granted the petition and remanded to the BIA for further consideration of the number-bar issue for determination of the effect that Dada v. Mukasey, 128 S.Ct. 2307 (2008) may have on the petitioners' eligibility for cancellation of removal. Reinhardt (au-thor), Noonan, and McKeown, Circuit Judges. R. Jobe of San Francisco, CA, for the petitioner; G. Katsas of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

48) IMMIGRATION: Popa v. Holder, 05-76507 (9th Cir. July 6, 2009). The sole issue on this appeal was whether the government is permitted to provide notice of removal proceedings to an alien using a two-step process: (1) sending a Notice to Appear in which the government states that the date and time of the hearing will be provided at a later time and (2) later sending notice of the hearing with the date and time of the hearing. Popa, a native and citizen of Romania, petitioned for review of the BIA's decision affirming the IJ's order denying her motion to reopen removal proceedings following a removal hearing in absentia. Popa maintained that she did not receive proper notice of the time and place of the hearing because her Notice to Appear bore no time and place for the hearing; it stated that she would be notified of the time and place in a separate and later writing. A later writing did contain the date, time, and place of the hearing, but was sent to a post office box she no longer checked. The USCA held that the government is permitted to use the two-step process and denied Popa's petition. Schroeder, Tashima, and Bea (author), Circuit Judges. J. Sekhon of San Francisco, CA, for the petitioner; AAG P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

49) IMMIGRATION: Herrera v. U.S. Citizenship and Immigration Services, 08-55493 (9th Cir. July 6, 2009). The U.S. Citizenship and Immigration Services may revoke its previous approval of a visa petition "at any time" for "good and sufficient cause." 8 USC Sec. 1155. At issue here was whether the enactment of 8 USC Sec. 1154(j) (the "Portability Provision") altered the agency's revocation authority. The USCA held that it did not. Because the agency's decision was otherwise free of legal error and supported by substantial evidence, the USCA affirmed the district court's grant of summary judgment to the defendants. Noonan, O'Scannlain, and Graber (author), Circuit Judges. J. Bartos of Studio City, CA, for the plaintiffs-appellants; S. Pratt of Washington, DC, for the defen-dants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

50) IMMIGRATION / FAKE REGISTRATION CARDS: Kardoh v. USA, 07-15700 (9th Cir. July 10, 2009). Kardoh, a Syrian national, obtained four alien registration cards bearing the names of person not entitled to enter the U.S. from an undercover agent posing as a corrupt immigration official, to whom Kardoh paid $40,000 in exchange. A few minutes after the transaction, Kardoh was arrested, still carrying the four cards. The government did not prosecute Kardoh, but he was deported two months later. He then sought to recover the $40,000. After the government declined to return the money voluntarily, Kardoh filed a motion for return of property under Fed. R. Crim. Proc. 41(g). The district court concluded that the government could not retain the money and granted Kardoh's motion for return of property. The USCA reversed, concluding that Kardoh's claim was subject to the doctrine of in pari delicto. The government supported its position with the declaration of the undercover agent who met with Kardoh multiple times and who was given the $40,000 by Kardoh. The declaration described not only the transactions in sufficient detail to make their impropriety clear but also the statements by Kardoh both before and after his arrest admitting his awareness that the transactions were illegal. Kardoh offered no evidence to rebut the agent's declaration. That, the USCA found, was not enough to defeat a motion for summary judgment. Fed. R. Civ. P. 56(e)(2). On the record on appeal, there was no genuine issue as to any material fact and the government was entitled to judgment as a mater of law. The district court thus should not have assumed jurisdiction over and granted Kardoh's motion for return of $40,000. Hug, Archer, and Clifton (author), Circuit Judges. AUSA B. Valliere of San Francisco, CA, for the defendant-appellant; E. Babcock of Oakland, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

51) ILLEGAL REENTRY / SENTENCING: USA v. Higuera-Llamos, 07-10602 (9th Cir. July 31, 2009). Higuera had previously been removed or deported from the U.S. on eight separate occasions. He was convicted under 8 USC Sec. 1325 for improper entry by an alien on December 9, 2003 and sentenced to 45 days' imprisonment. He was convicted under 8 USC Sec. 1326(a) for reentry of a removed alien on December 20, 2004 and sentenced to 18 months' imprisonment. On December 25, 2006, less than one month after Higuera's most recent deportation, border patrol agents apprehended him in Arizona. He admitted to the agents that he was a citizen of Mexico and that he was present in the U.S. illegally. After he was transported to the Yuma Border Patrol Station, he again admitted that he was born in Mexico, that he was previously deported from the U.S. on November 27, 2006, and that he had entered the U.S. on December 25, 2006 without proper permission. He was charged with attempted reentry after deportation under Sec. 1326(a), as enhanced by Sec. 1326(b)(1). The jury in the district court found him guilty as charged and he was sentenced to 30 months imprisonment. The USCA affirmed. It found the district court's decision to increase Higuera from a Criminal History Category IV to a Category VI and to sentence him to 30 months imprisonment was substantively reasonable given Higuera's prior conduct and the failure of prior sentences to deter him from re-offending. Wallace (author), Farris, and McKeown, Circuit Judges. L. Hamilton of Mesa, AZ, for the appellant; AUSA K. McDonald of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

52) SENTENCING: USA v. Ringgold, 06-10492 (9th Cir. July 7, 2009). Ringgold pled guilty to being a felon in possession of a fire-arm in violation of 18 USC Sec. 922(g)(1). The pre-sentence report calculated a base offense level of 24 under Sentencing Guideline Sec. 2K.2.1(a)(2) because Ringgold had at least two prior felony convictions for controlled substance offenses. The recommended sen-tence represented a 10-level increase over the base offense level otherwise applicable to Ringgold under Sec. 2K.2.1(a)(6). The pre-sentence report also advocated a 2-level enhancement because the firearm had an obliterated serial number, a 3-level downward depar-ture for acceptance of responsibility, and a criminal history category of VI, resulting in an advisory Guidelines range of 92 to115 months. At sentencing, the government recommended the low-end Guidelines sentence of 92 months. Ringgold proposed a 60-month sentence, arguing that the Sec. 2K2.1(a)(2) base offense level of 24 was unwarranted because his prior controlled substance convictions involved only small amounts of marijuana and were relatively non-serious. He also argued that the district court judge should take into account the fact that he would be subject to a maximum three-year sentence if convicted of the same conduct in a California state court. The district court addressed these arguments, analyzed the 18 USC Sec. 3553(a) factors in Ringgold's case, and determined that these factors warranted the low-end recommended Guidelines sentence of 92 months' imprisonment. At issue on appeal was whether, after USA v. Booker, 543 U.S. 220 (2005), a district court abuses its discretion by declining to consider the disparity between a recommended Guidelines sentence and the maximum sentence a defendant would receive if convicted of the same conduct in state court. Under the circumstances presented by this case, the USCA held that the district court did not abuse its discretion or commit procedural error in declining to consider such a disparity. In addition, the USCA held that the sentence imposed by the district court was not substantively unreasonable. Wallace, Leavy and Thomas (author), Circuit Judges. B. Portman of Oakland, CA, for the defendant-appellant; J. Russoniello of San Francisco, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

53) PRISONERS' RIGHTS: Norwood v. Vance, 07-17322 (9th Cir. July 9, 2009). Norwood was incarcerated at CSP-Sacramento, a maximum security prison, during a particularly violent period in the prison's history. He brought this 42 USC Sec. 1983 action alleging that the prison officials violated the Eighth Amendment when they denied him outdoor exercise during four separate extended lock-downs over the course of two years. The prison initiated the lockdowns after serious inmate assaults on staff. During the lockdowns, inmates were confined to their cells and normal programs were suspended while officials investigated the violence. A jury found that the defendants violated Norwood's Eighth Amendment right to outdoor exercise but concluded that Norwood suffered no harm and thus awarded no compensatory damages. It awarded $11 in nominal damages and $39,000 in punitive damages. The district court then awarded $23,875 in attorneys' fees. The USCA reversed. It declined Norwood's invitation to micro-manage officials whose expertise in prison administration far exceeds its own. It held that the defendants were entitled to qualified immunity. In addition, as Norwood was no longer the prevailing party, the USCA vacated the award of attorneys' fees. Judge Thomas dissented. He thought there was no reason on the record to disturb the jury verdict. Kozinski (author), Thomas, and Callahan, Circuit Judges. C. White of Davis, CA, for the appellee; C. Becker of Sacramento, CA, for the appellants. (Download the full text of this decision at www.ce9.uscourts.gov/)

54) HABEAS CORPUS / PEREMPTORY CHALLENGES: Ali v. Hickman, 07-16731 (9th Cir. July 7, 2009). In 2001, a California state court jury convicted the petitioner of first-degree murder. During jury selection, the prosecutor peremptorily struck the only two African-American members in the jury pool. The petitioner argued that these strikes were racially-motivated and thus violated his rights under the Equal Protection Clause of the Fourteenth Amendment. The USCA held that a comparative juror analysis, in combination with the other facts in the record, demonstrated that the prosecutor's purported race-neutral reason for striking at least one of the jurors were pretext and racial discrimination. The USCA further held that the California Court of Appeals' contrary conclusion was not only incorrect, but unreasonably so. The USCA thus reversed the district court's denial of the petition for writ of habeas corpus. It granted the writ and remanded with direction for the district court to issue a conditional writ of habeas corpus requiring the petitioner's release from custody, unless the State elects to retry the petitioner within a reasonable time to be determined by the district court. Tashima and Berzon (author), Circuit Judges, and Timlin, District Judge. A. Kutchins of Berkeley, CA, for the petitioner; M. Swanson of San Francisco, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

55) PROBATION: Thomas v. Mundell, 07-15388 (9th Cir. July 15, 2009). In 1998, the Maricopa County Adult Probation Department instituted a separate and specialized probation program for individuals convicted of aggravated driving-under-the-influence ("DUI") offenses. This program was funded through a grant from the National Traffic Safety Administration and was known as the "DUI court." An eligible person would be enrolled in the DUI court after having completed his sentences. The DUI court differed from traditional criminal probation in several respects. For example, probationer in the DUI court have more frequent contract with their probation officers, participate in substance abuse treatment courses and counseling, and take part in peer support groups and observa-tion. Probationers also were required to attend monthly status hearings before a superior court judge who monitors their progress. The County instituted separate DUI courts for Spanish-speaking and for Native American probationers in order to address observed defi-ciencies in the treatment and rehabilitation services rendered to these groups of probationers in the standard DUI court program. The plaintiffs alleged that separate DUI courts "segregate targeted recipients and treat them differently than the 'regular' DUI court." Spe-cifically, they allege that proceedings in the Spanish-speaking DUI court are conducted in Spanish and presided over exclusively by defendant Judge Mundell. They also alleged that probationers in the Spanish-speaking DUI court received more positive reinforcement and fewer or lighter punishments as compared to probationers in the regular DUI court. The district court dismissed their claims for lack of standing. The USCA agreed that the plaintiffs lacked standing and affirmed the dismissal. They failed to successfully plead their standing to challenge the constitutionality of the separate DUI courts. They had not alleged sufficient interest in the dispute to merit their entry into federal court. Wallace (author), Thomas, and Graber, Circuit Judges. M. Carvin of Washington, DC, for the appellants; S. Claus of Phoenix, AZ for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)