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| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
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,1) TAXATION: Bakersfield Energy Partners v. CIR, 07-74275 (9th Cir. June 17, 2009). The IRS generally has three years after a return is filed to assess a tax deficiency, but it has six years to do so when the return "omits from gross income an amount properly includible therein which is in excess of 25% of the amount of gross income stated in the return. 26 USC Secs 6501(a), (e)(1)(A). At issue on this appeal was whether the IRS could use this extended six-year limitations period to assess a deficiency where a taxpayer has overstated its basis in an asset and thereby lowered the amount of gross income reported in its return. Like the Tax Court below, the USCA concluded that it is bound by Colony, Inc. v. CIR, 357 US 28, 33 (1958), which held that a taxpayer's overstatement of basis does not omit from gross income an amount properly includible therein for purposes of Sec. 6501(e)(1)(A). The IRS thus had only three years to assess the tax deficiency at issue in this case, and it failed to do so. The USCA affirmed the Tax Court's judgment in favor of the taxpayer. Kleinfeld, Bea, and Ikuta (author), Circuit Judges. S. Mather of Beverly Hills, CA, for the petitioner; J. Oppen-heimer of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 2) TAXATION: Keller v. CIR, 06-75466 (9th Cir. June 3, 2009). These consolidated appeals concern the outstanding tax liabilities for 16 taxpayers who invested in cattle partnerships operated by Walter J. Hoyt III. Their appeals were taken from the decision of the Tax Court holding that CIR did not abuse his discretion in rejecting the taxpayers' offers-in-compromise. In collection due process hearings the taxpayers also challenged the imposition of interest under former 26 USC Sec. 6621(c). The Tax Court held that it lacked jurisdiction in partner-level proceedings to determine whether the partnerships' transactions were tax motivated for purposes of Sec. 6621(c). The effect was to leave standing the CIR's inclusion of Sec. 6621(c) interest in his determination of outstanding liabilities. The Taxpayers appealed that decision as well. The USCA agreed with the Tax Court's disposition on the offers-in-compromise, and with its view that, under River City Ranches #1 Ltd. v. CIR, 401 F.3d 1136, 1144 (9th Cir. 2005), whether transactions were tax motivated is a partnership item to be determined at the partnership-level proceedings. The problem in these cases is that the partnership-level proceedings were completed and the judgment had become final before River City Ranches #1 announced this rule. As the Tax Court has jurisdiction in partner-level proceedings to determine issues relating to liability that the taxpayer has had no opportunity to contest, Sec. 6330(c)(2)(B), the USCA thought it could decide whether the partnership transactions were tax motivated based on the record in the partnership-level proceedings. The USCA said it was as well situated as the Tax Court to undertake this review and, having done so held that the record of the partnership-level proceedings showed that the partnerships' transactions were in fact tax motivated. The USCA thus affirmed in part, vacated in part, and allowed the CIR to proceed with collection actions as determined by the Notices of Determination. B. Fletcher, Rymer (author), and Fisher, Circuit Judges. T. Merriam of Seattle, WA, for the petitioners; A. Sheehan of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 3) TAXATION: Mollison v. USA, 07-16035 (9th Cir. June 15, 2009). At issue here was whether the district court had jurisdiction over a motion to quash a third-party summons issued by the IRS served on the U.S. more than 20 days after the notice of summons was issued. The USCA held that, although a party filing a motion to quash must commence a proceeding to quash the summons within 20 days after the notice is given, the party is permitted 120 days to serve the motion on the United States. Thomas (author) and Bybee, Circuit Judges, and Benitez, District Judge. E. Robbins of Beverly Hills, CA, for the appellants; A. Tebbets of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 4) BANKRUPTCY: In re Bledsoe, 07-35567 (9th Cir. June 25, 2009). At issue here was under what circumstances a federal bank-ruptcy court may avoid a transfer made pursuant to a state court judgment dissolving the debtor's marriage. The USCA held that, under Oregon law, a party who challenges a dissolution judgment must show "extrinsic fraud." Following Ingalls v. Erlewine, 349 F.3d 205 (5th Cir. 2003), the USCA also held that a dissolution judgment that follows from a regularly conducted, contested divorce proceeding conclusively establishes "reasonably equivalent value" under 11 USC Sec. 548(a)(1)(B) in the absence of fraud, collusion, or violation of state law. Judge O'Scannlain concurred in the judgment and agreed entirely with the majority analysis and rejection of the bankruptcy trustee's claim under 11 USC Sec. 544, which would avoid the effect of the marriage dissolution judgment. Although he shared the view that the trustee's parallel claim under Sec. 548 must also fail, the majority's analysis of that issue troubled him, particularly with respect to BFP v. Resolution Trust Corp., 511 US 531 (1994). Judge O'Scannlain interpreted BFP to hold that real estate mortgage foreclosure sales pursuant to state law establish reasonably equivalent value as a statutory matter. However, he thought that state dissolution judgments cannot fulfill such function. Rather, the later merely establish the ownership, not value, of property as between two divorcing spouses. This perspective compelled him to take a different approach on the Sec. 548 issue. O'Scannlain (dissenting in part), Graber (author), and Bybee, Circuit Judges. P. McKittrick of Port-land, OR, for the plaintiff; D. Mills of Eugene, OR, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/) 5) BANKRUPTCY: In re Rucker, 08-55652 (9th Cir. June 26, 2009). Facing a civil judgment of more than $6.5 million, Rucker de-clared bankruptcy and tried to exempt his assets as belonging to private retirement plans under California Civil Procedure Code Sec. 704.115. He had previously put the assets in pension and 401(k) plans funded by his wholly owned corporations. The bankruptcy court denied the exemption on the explicit ground that Rucker's retirement plans were not designed and used primarily for retirement pur-poses. The district court saw it otherwise and reversed. The USCA concluded after considering the totality of the circumstances that the bankruptcy court's decision was not clear error. The USCA thus reversed the district court. B. Fletcher, Fisher, and Gould (author), Circuit Judges. K. Andrassy of Costa Mesa, CA, for the appellants; M. Bradshaw of Foothill Ranch, CA, for the appellee. ((Download the full text of this decision at www.ce9.uscourts.gov/) 6) BANKRUPTCY: In re Warren, 07-17226 (9th
Cir. June 18, 2009). This appeal required the USCA to interpret the interplay
be-tween 11 USC Secs. 521(a)(1) and (i)(1). Under (a)(1), a debtor is required
to file a list of creditors and, "unless the court orders oth-erwise,"
certain financial information. Under (i)(1), if the debtor fails to file the financial
information required by (a)(1) within 45 days of filing the bankruptcy petition,
the case "shall be automatically dismissed" effective on the 46th day.
At issue on appeal was whether the bankruptcy court has discretion to order otherwise
and thereby waive the (a)(1) filing requirement by entering an order after the
45 day filing deadline in (i)(1) has passed. The bankruptcy court found it did
have such discretion and thus entered an order waiving (a)(1) filing requirement
after the 45th day filing deadline had passed. The district court reversed, finding
dismissal was mandatory under (i)(1). The USCA held that the bankruptcy court
acted within its discretion in entering an order waiving the (a)(1) filing requirement
even though the 45 day filing deadline set forth in (i)(1) had passed. The USCA
thus reversed and remanded to the district court with instructions to remand the
case to the bankruptcy court for further proceedings. T.G. Nelson (author),
Kleinfeld, and M.D. Smith, Circuit Judges. J. MacConaghy of Sonoma, CA, for the
appellant; D. Chandler of Santa Rosa, CA, for the appellee. (Download
the full text of this decision at www.ce9.uscourts.gov/)
8) DEBT COLLECTION / ATTORNEYS' FEES: Hyde v. Midland Credit Management, Inc., 07-55326 (9th Cir. June 9, 2009). The plaintiff, Darren Del Nero, sued Midland Credit Management and MRC Receivables Corporation for violations of the Fair Debt Collection Practices Act ("FDCPA") and California Business and professions Code Sec. 17200. Robert Hyde, Joshua Swigart and their law firm represented Del Nero. Del Nero lost on the merits. The district court awarded attorneys' fees and costs to Midland and MRC under the FDCPA, 15 USC Sec. 1692k(a)(3), holding Del Nero and her attorneys jointly and severally liable for the award. The USCA reversed. It held that Sec. 1692k(a)(3) does not authorized the award of attorneys' fees and costs against a plaintiff's attorneys. W. Fletcher (author) and Paez, Circuit Judges, and Duffy, District Judge. A. Buchanan of San Jose, CA, for the appellants; S. Turner of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 9) COPYRIGHTS / ATTORNEYS' FEES: Cadkin v. Loose, 08-55311 (9th Cir. June 26, 2009). This appeal concerns whether a defendant is entitled to attorneys' fees as a prevailing party under Sec. 505 of the Copyright Act, when a plaintiff voluntarily dismisses without prejudice a lawsuit containing copyright claims. Corcoran v. Columbia Broadcasting System, 121 F.2d 575, 576 (9th Cir. 1941), held that a defendant in a copyright suit is a prevailing party and is entitled to attorneys' fees when the plaintiff voluntarily dis-missed the complaint without prejudice after the district court had granted the defendant's motion for more definite statement. The Supreme Court, in the context of the Fair Housing Amendments Act, has since held that prevailing party status turns on whether there has been a "material alteration of the legal relationship of the parties," Buckhannon Bd. & Care Home, Inc. v. W.Va. Dep't of Health & Human Res., 532 US 598, 604 (2001). In addition, the Ninth Circuit has held that dismissal without prejudice does not alter the legal relationship of parties for the purpose of entitlement to attorney's fees under a comparable fee shifting statute. The USCA thus ruled that Corcoran is clearly irreconcilable with Buckhannon and is no longer good law. It overruled Corcoran and held that Buckhannon's material alteration test applies to Sec. 505. Because the plaintiffs in this lawsuit remained free to refile their copyright claims against the defendants in federal court following their voluntary dismissal of the complaint, the USCA held that the defendants were not prevailing parties and thus not entitled to the attorneys' fees awarded to them by the district court. B. Fletcher, Fisher (author), and Gould, Circuit Judges. M. O'Toole of Los Angeles, CA, for the appellants; S. Levin of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 10) INTERNET / ANTITRUST: CFIT v. VeriSign, Inc. 07-16151 (9th Cir. June 5, 2009). This appeals concerns whether the plaintiff, Coalition for ICANN Transparency, Inc. ("CFIT"), using antitrust statutes drafted in the late 19th Century, successfully stated claims in connection with the administration of the Internet domain name system, so essential to the operation of the 21st Century's communications network. The district court held that the plaintiff failed. The USCA reversed and remanded, finding that the plaintiff had stated claims under both Sec. 1 and 2 of the Sherman Act. Schroeder (author), Tashima, and W. Fletcher, Circuit Judges. B. Fausett of Los Angeles, CA, for the appellant; R. Johnson of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 11) INTERNET: Zango, Inc. v. Kaspersky Lab, Inc., 07-35800 (9th Cir. June 25, 2009). At issue here was whether a distributor of Internet security software was entitled to immunity under the safe harbor provision of the Communications Decency Act of 1996 from a suit claiming that its software interfered with the use of downloadable programs by customers of an online media company. Zango is an Internet company that provides access to a catalog of online videos, games, music, tools, and utilities to consumers who agree to view advertisements while they brose the Internet. It brought this action against Kaspersky Lab which distributes software that helps filter and block potentially malicious software, for improperly blocking Zango's software. Kaspersky invoked the protection of 47 USC Sec. 230(c)(2)(B) for "good Samaritan" blocking and screening of offensive materials. The district court granted summary judgment in Kaspersky's favor, holding that it is a provider of an "interactive computer service" entitled to immunity for actions taken to make available to others the technical means to restrict access to objectionable material. The USCA agreed and affirmed. Judge Fisher concurred that the plain language of the Communications Decency Act's "good Samaritan" immunity provision," compelled the USCA to affirm the district court's judgment that Kaspersky is immune from liability. Nonetheless, extending immunity beyond the facts of this case, he thought, could pose serious problems if providers of blocking software were to be given free license to unilaterally block the dissemination of materials by content providers under the literal terms of Sec. 230(c)(2)(A). The risk, he thought, inheres in the disjunctive language of the statute-which permits blocking of "material that the provider or user considers to be obscene, lewd, las-civious, filthy, excessively violent, harassing, or other wise objectionable, whether or not such material is constitutionally protected-and the unbounded catchall phrase, "otherwise objectionable." B. Fletcher, Rymer (author), and Fisher (concurring), Circuit Judges. M. Rosenberger of Seattle, WA, for the appellants; E. Belt of Boston, Mass., for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 12) TELECOMUNICATIONS LAW: Qwest v. Arizona Corporation Commission, 07-17079 (9th Cir. June 8, 2009). The Tele-communications Act of 1996 created a federal scheme to encourage competition in local telephone service markets previously domi-nated by state-sanctioned local exchange carrier monopolies. Sections 251 and 252 of the Act require former monopoly local carriers to enter into interconnection agreements that provide new competitors with access to some of their telecommunications components on an unbundled basis on terms favorable to the competitors. Meanwhile, Sec. 271 allows local phone companies that used to be subsidiaries of AT&T, previously barred by an antitrust decree from entering the long-distance market, to supply long-distance services if their interconnection agreements contain certain access provision. The Act explicitly authorizes state commissions to play a crucial, but restricted, role in this process, while reserving the power to administer various parts of the Act exclusively to the Federal Communica-tions Commission. Section 252 of the Act invites carriers engaged in negotiating an interconnection agreement to petition a state com-mission to arbitrate unsettled issues. At issue here was whether a state commission overstepped its authority in arbitrating the terms of an interconnection agreement. The Act's language, history, and purpose, in addition to the majority of judicial and administrative decision on the matter, persuaded the USCA that state commissions may not impose Sec. 271 access or pricing requirements in the course of arbitrating interconnection agreements. The USCA further held that state commissions are preempted for forcing carriers to make parts of their networks available on a separately purchasable basis when the FCC has determined that they were not required to do so. D.W. Nelson and Clifton (author), Circuit Judges, and King, District Judge. C. Kempley of Phoenix, AZ, for the appellants; J. Devaney of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 13) TELEPHONE CONSUMER PROTECTION: Satterfield v. Simon & Schuster, Inc., 07-16356 (9th Cir. June 19, 2009). Satterfield, individually and on behalf of those similarly situated, appealed the district court's grant of summary judgment in favor of Simon & Schuster. Satterfield alleged a violation of the Telephone Consumer Protection Act ("TCPA") after she received an unsolicited text message on her cell phone. The USCA held that a genuine issue of material fact existed concerning whether the equipment used by Simon & Schuster had the capacity to (1) store or produce numbers to be called using a random or sequential number generator and (2) dial such numbers. Giving deference to the Federal Communications Commission, the USCA also found it to be reasonable to interpret "call" under the TCPA to include both voice calls and text messages. Finally, it concluded that Simon & Schuster is not an affiliate or brand of Nextones and thus that Satterfield did not expressly consent to receive text messages from Simon & Schuster. The USCA thus reversed the district court and remanded. Noonan, Thompson, and N.R. Smith (author), Circuit Judges. J. Jacobs of Chicago, IL, for the plaintiff-appellant; P. Winik of Washington, DC, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 14) SECURITIES LAW: Warfield v. Alaniz, 07-15586 (9th Cir. June 24, 2009). This appeal presented the question of whether the charitable gift annuities at issue in this case are investment contracts under federal securities law. The USCA concluded that they are and affirmed the judgment of the district court. Wallace, Thomas (author), and Graber, Circuit Judges. B. Bentley of Phoenix, AZ, for the defendants-appellants; A. Patten of Phoenix, AZ, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 15) SECURITIES LAW: Roth v. Reyes, 07-16805 (9th Cir. June 5, 2009). Roth brought this action on behalf of Brocade Communications System under Sec. 16(b) of the Securities Exchange Act of 1934. He sought to recover "short swing" profits, defined as "profits earned within a six month period by the purchase and sale of securities," Blau v. Lehman, 368 US 403, 405 (1962), from four of Brocade's top officers. Because Roth's action was barred by Sec. 16(b)'s two-year limitations period, the USCA affirmed the district court's dismissal of his complaint under Fed. R. Civ. Proc. 12(b)(6). McKeown and Ikuta (author), Circuit Judges, and Walter, District Judge. W. Jonckheer of San Francisco, CA, for the plaintiff-appellant; R. Wechkin of Seattle, WA, and S. Guggenheim of Palo Alto, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 16) WIRETAPS / RICO: Noel v. Hall, 06-35730 (9th Cir. June 12, 2009). This is the second time before the Ninth Circuit for Noel in his more than decade-long feud with Hall over a $750 horse, a $5,000 mobile home, and tapes of recorded telephone calls. On the current appeal, Noel challenged the summary judgment entered by the district court dismissing his case against Weisser, Hall's attorney during the early part of the dispute. Noel also challenged the dismissal of his federal and state law claims against Weisser, as well as the denial of leave to file a fifth amended complaint that alleged RICO violations. The USCA affirmed the district court's entry of summary judgment on the federal wiretap claim, and all other claims. The USCA held that either Noel did not engage in illegal interception and thus could not state a claim that Weisser used or disclosed illegally intercepted material, or Noel did engage in illegal interception and thus had no standing to collect damages for the use or disclosure of the communications he intercepted. In light of its conclusion, the USCA did not need to reach Weisser's argument that he was entitled to a prosecution or litigation privilege for his use of the recordings to bring a wiretap claim against Noel. Pregerson and Reinhardt (author), Circuit Judges, and Strom, District Judge. R. Grant of Portland, OR, for the appellant; J. Radmacher of Portland, OR, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 17) ENVIRONMENTAL LAW / ATTORNEYS' FEES: Citizens for Better Forestry v. U.S. Dept. of Agriculture, 07-16077 (9th Cir. June 9, 2009). The U.S. Dept. of Agriculture ("USDA") appealed the district court's award of attorneys' fees to Citizens for Better Forestry and 11 other environmental groups (collectively "Citizens") under the Equal Access to Justice Act ("EAJA"). Citizens had sought declaratory and injunctive relief against the USDA for its promulgation of a new national forest management rule. The USCA reversed the district court's dismissal of Citizens' suit on standing and ripeness grounds and remanded for a ruling on Citizens' motion for injunctive relief. Before the district court could reconsider the motion, the USDA withdrew the contested rule. Citizens then stipulated to dismiss its case and moved for attorneys' fees. Because Citizens received no relief from any court, it did not qualify as a "prevailing party" under the EAJA and thus was not entitled to fees. There was not a material alteration in the parties' legal relationship sufficient to make Citizens a "prevailing party" under EAJA. Judge Hug dissented. He noted that Citizens filed a suit that, among other things, sought a ruling that USCA had violated the provisions of NEPA by failing to give appropriate notice of the promulgation of a new rule to replace the 2000 Plan Development Rule. The court held that the USCA violated NEPA in promulgating this new rule. Judge Hug thought that the holding on the NEPA violation was, in effect, the equivalent of a declaratory ruling made at the invitation of the USCA. As it provided the relief Citizens sought, the award of attorneys' fees was proper. Hug (dissenting), Brunetti, and Clifton (author), Circuit Judges. AAG R. Tenpas of Washington, DC, for the appellants; P. Frost of Eugene, OR, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 18) ENVIRONMENTAL LAW: Las Vegas v. Federal Aviation Administration, 07-70121 (9th Cir. June 12, 2009). In 2006, the FAA issued a Finding of No Significant Impact ("FONSI") / Record of Decision ("ROD") approving the modification of the departure route at the Las Vegas McCarran International Airport that would direct a third of the eastbound flights departing west from one of the runways to complete a turn to the north of the airport instead of to the south. The City of Las Vegas and other communities to the north of the airport, as well as individual residents of those communities, filed a petition for review challenging the FONSI / ROD under the Administrative Procedure Act and Clean Air Act. The USCA denied the petition, holding that the FAA did not act arbitrarily or capriciously by issuing a FONSI / ROD approving the northern turn. The USCA granted the petitioners' request for judicial notice of Federal Register Notices. It did not consider the requests for judicial notice that are not referred to in this opinion, nor did it consider the FAA's Motion to Supplement to the Certified Index to the Administrative Record with Documents 328 because none of the materials were necessary for resolving issues reached by the USCA. Schroeder, D.W. Nelson, and Reinhardt (author), Circuit Judges. B. Jerbic of Las Vegas, NV, and B. Lichman of Costa Mesa, CA, for the petitioners; A. Christenson of Washington, DC, for the respondents.(Download the full text of this decision at www.ce9.uscourts.gov/) 19) PROPERTY: Schroeder v. USA, 07-36073 (9th Cir. June 22, 2009). Schroeder appealed a grant of summary judgment for the U.S. in her suit seeking to quiet title in an apartment complex she owns. Under the National Housing Act ("NHA") loan program into which she entered in 1984, she was required to use her property exclusively as low-income housing until she fully repaid her loans. She maintained that, although the loans have not yet come due, the government must now accept payment in full on those loans, thereby allowing her to terminate her participation in the NHA program. The district court ruled that the Emergency Low Income Housing Preservation Act of 1987 ("ELIHPA") forecloses Schroeder's arguments and declined to grant equitable relief. The USCA affirmed, finding that ILIHPA applied to Schroeder's property and that the district court did not abuse its discretion in declining to quiet title to her property. Graber, Fisher, and M.D. Smith (author), Circuit Judges. W. Schroeder of Vale, OR, for the plaintiff-appellant; AUSA S. Bratis of Portland, OR, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 20) ADMIRALTY JURISDICTION / TORTS: Mission Bay Jet Sports v. Colombo, 08-56142 (9th Cir. June 24, 2009). At issue here was whether admiralty jurisdiction exists over tort claims by two women who were seriously injured when thrown off a jet-propelled See-Doo personal watercraft, allegedly operated negligently, on navigable waters in an area of San Diego's Mission Bay reserved for the use of such vessels. The district court thought not, but the USCA believed that both the location of the accident and its connection to traditional maritime activity sustained admiralty jurisdiction. The incident occurred on navigable waters. Its general fea-tures-harm by a vessel in navigable waters to a passenger-had a potential effect on maritime commerce, and the general character of the activity-operation of a vessel in navigable waters-had a substantial relationship to traditional maritime activity. The district court thus had admiralty jurisdiction. The USCA reversed and remanded. Rymer (author) and Graber, Circuit Judges, and Aldrich, District Judge. S. Stires of Rancho Santa Fe, CA, for the appellants; T. Tosdal of San Diego, CA, for the real-party-in-interest. (Download the full text of this decision at www.ce9.uscourts.gov/) 21) MARITIME LAW / PUNITIVE DAMAGES: In re Exxon Valdez, 04-35182 (9th Cir. June 15, 2009). This punitive damage litigation arose from the 1989 wreck of the Exxon Valdez. The U.S. Supreme Court remanded the case to the Ninth Circuit to decide issues related to interest and appellate costs, following the Court's 5-3 decision that under maritime law the maximum ratio of punitive damages to compensatory damages is 1-1. Exxon Shipping Co. v. Baker, 128 S.Ct. 2605, 2633 (2008). On the issue of the availability of vicarious liability for punitive damages under maritime law, the Court was evenly divided and thus left in place the Ninth Circuit's 2001 decision that punitives were available under precedents binding on Ninth Circuit courts. The parties then stipulated to the entry of judgment against the defendant Exxon and in favor of the plaintiffs Baker, et al. in the amount of $507.5 million, representing the amount the plaintiffs were awarded as compensatory damages for the income they lost as a result of the massive oil spill. The judgment achieves the 1-1 ratio the Supreme Court deemed appropriate. Because the evidentiary and legal bases for the original judgment of punitive damages have not been overruled, the USCA awarded interest on the final judgment of $507.5 million, at the statutorily set rate of 5.9%, to run from the date of the original judgment, September 24, 1996. Because the amount of the original $5 billion judgment has been substantially reduced, the USCA ordered that each party bear its own costs. Judge Kleinfeld concurred in the majority decision insofar as it ruled in favor of the plaintiffs on interests. However, he could not concur as to costs. Respect for the Supreme Court's decision in this case and precedent in other circuits, he thought, obligates the USCA to award Exxon most, but not all, of its costs for its mostly successful appeal. Schroeder (author), Kleinfeld (dissenting in part), and Thomas, Circuit Judges. J. Fisher of Stanford, CA, for the plaintiffs; J. Hacker of Washington, DC, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 22) UNFAIR COMPETITION / FISHERY MANAGEMENT: Sea Hawk Seafoods v. Locke, 07-35754 (9th Cir. June 17, 2009). This action focused on regulations promulgated by National Marine Fisheries Service ("NMFS") in December 2002 concerning four amendments to the U.S. Secretary of Commerce's fishery management plans ("FMPs") and their implementing regulations. Sea Hawk Seafoods and the Non-AFA Processors Association (collectively, "plaintiffs"). The plaintiffs were concerned that although the 2002 regulations provided some protections for non-AFA "shoreside processors" against unfair competition related to Pollock fishing, they did not provide adequate sideboard protections for non-AFA shoreside processors with respect to other types of fish, such as salmon. In particular, the plaintiffs complained that the regulations did not restrict AFA-related "floating shoreside processors" from leaving a single geographical location in Alaskan waters after the Pollock fishing season and relocating to Prince William Sound, Alaska to process salmon, which would impact Sea Hawk's business. The USCA considered whether the 30-day statute of limitations of the Magnuson-Stevens Fishery Conservation and Management Act ("MSA"), or the Administration Procedure Act's general 6-year limita-tions period applied the plaintiffs' challenge to regulations promulgated to implement amendments to fishery management plans. These amendments were prompted by the passage of the American Fisheries Act ("AFA"). The USCA also considered whether the plaintiffs adequately alleged a "failure to act" claims under the APA against NMFS and the North Pacific Council, related to the promulgation of the challenged regulations. The USCA concluded that the MSA's 30-day limitations period applied to bar the plaintiffs' direct challenge to the regulations and that the plaintiffs' failure to act claim is an impermissible attempt to recast its direct challenge to the regulations so as to avoid the MSA's shortened limitations period. The USCA thus affirmed the district court's dismissal of the plaintiffs' claims. Gould, Tallman, and Callahan (author), Circuit Judges. L. Feldman of Seattle, WA, for the appellants; A. Katselas of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 23) FRAUD / UNFAIR COMPETITION: Kearns v. Ford Motor Co., 07-55835 (9th Cir. June 8, 2009). Kearns' Third Amended Complaint ("TAC") claimed violations of California's Consumers Legal Remedies Act ("CLRA"), Cal. Civ. Code Secs. 1750-1784, and California's Unfair Competition Law ("UCL"), Cal. Bus. & Prof. Code. Secs. 17200-17210. The state claims were subject to Fed. R. Civ. Proc. 9(b) which requires that allegations of fraud be pleaded with particularity. Because Kearns' claims were all grounded in fraud, the USCA concluded that his failure to plead his TAC with particularity merited its dismissal. The USCA thus affirmed the district court. Pregerson, Hall, and N.R. Smith (author), Circuit Judges. J. Daly of San Diego, CA, for the plaintiff-appellant; T. Riordan of Newport Beach, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 24) EMPLOYEE RETIREMENT SYSTEM: San Diego Police Officers' Association v. San Diego City Employees' Retirement System, 07-56004 (9th Cir. June 10, 2009). The San Diego Police Officers' Association ("Association") appealed a district court or-ders granting summary judgment to the City of San Diego, the San Diego City Employees' Retirement System and various individuals (collectively the "appellees") on the Associations' constitutional claims. The Association and appellees cross-appealed from the district court's final order addressing possible attorneys' fees. The Association argued that (1) the appellees' involvement in approving and enacting an ordinance that reduced the City's contributions to the employees' retirement fund violated the Association's contractual right to an actuarially sound pension system and (2) the City's imposition of its last, best and final offer after the breakdown of 2005 labor negotiations between the City and the Association violated the latter's vested contractual rights. After extensive briefing by the parties, the district court found that none of the alleged actions affected the Associations' constitutionally protected rights. It thus granted summary judgment to the appellees and relatedly entered a final order in which it awarded costs to the appellees as prevailing parties but denied an award of attorneys' fees to any party. The USCA affirmed in all respects, except for the attorneys' fees issue which it remanded to the district court for consideration in accordance with Fed. R. Civ. Proc. 54(d)(2). Callahan and Ikuta, Circuit Judges, and Shadur (author), District Judge. C. Nissen of Irvine, CA, for the appellant; P. Benzian of San Diego, CA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)
26) LABOR LAW: NLRB v. C&C Roofing Supply, Inc., 08-70335 (9th Cir. June 25, 2009). The National Labor Relations Board ("NLRB") petitioned for enforcement of its order approving a consent judgment against C&C Roofing Supply ("C&C"). The USCA granted the NLRB's petition, noting that the effect of its holding is to place the burden on C&C to provide proper proof, satisfactory to the NLRB, of the unauthorized status of those individuals it claims are unauthorized aliens, and to rehire the others. Hug, B. Fletcher (author), and Hawkins, Circuit Judges. R. Englehart of Washington, DC, for the petitioner; M. Avakian of Springfield, VA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 27) LABOR LAW / CIVIL PROCEDURE: Smith v. T-Mobile USA, Inc., 08-55535 (9th Cir. June 15, 2009). Smith and Gossett are former hourly employees of T-Mobile USA, who worked as sales representatives in California. They brought an action against T-Mobile under the Fair Labor Standards Act ("FLSA"), California Labor Code Sec. 200 et seq., and California Business and Professions Code. Sec. 17200 et seq. They alleged that T-Mobile willfully failed to pay its hourly employees for all the hours they worked. It forced them to work "off the clock" and denied them pay for hours worked during breaks. After a protracted and contentious discovery, and numerous motions, the parties reached a settlement. On appeal, the USCA noted that Smith and Gossett, the only named plaintiffs in the case, voluntarily settled their FLSA claims before this appeal was taken. The USCA thus concluded that the plaintiffs no longer had a personal stake in the outcome of the case-thus rendering the case moot. The USCA dismissed the appeal for lack of jurisdiction. Hall, Kleinfeld, and Silverman (author), Circuit Judges. G. Freeman of Glendale, CA, for the appellant; J. Severson of San Francisco, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 28) CIVIL PROCEDURE: Kamm v. ITEX Corp., 07-35079 (9th Cir. June 15, 2009). Plaintiffs Kamm and Invision Ltd sued ITEX Corporation on a contract in Oregon state court. ITEX filed a notice to remove the suit to federal district court based on diversity of citizenship. Thirty-one days later, the plaintiffs moved to remand to state court based on a forum selection clause in the contract. The district court granted the plaintiffs' motion to remand. ITEX appealed, contending that under 28 USC Sec. 1447(c) the plaintiffs were required to file their remand motion within thirty days of filing of ITEX's notice of removal. The plaintiffs maintained that because their motion to remand was based on a forum selection clause, it was not subject to the thirty-day requirement of Sec. 1447(c). The USCA agreed with the plaintiffs and affirmed the remand to state court. W. Fletcher (author) and Fisher, Circuit Judges, and Breyer, District Judge. S. Redshaw of Portland, OR, for the appellant; C. Garrett of Portland, OR, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 29) AMERICANS WITH DISABILITIES ACT: Lonberg v. City of Riverside, 06-55781 (9th Cir. June 26, 2009). In 1997, Lonberg, a paraplegic, initiated a lawsuit against the City of Riverside, alleging ADA violations. The district court divided the lawsuit into three phases. Phase one, the only phase at issue on this appeal, concerned Lonberg's claim that the City's plan to achieve ADA com-pliance did not meet the standards set forth in 28 CFR Sec. 35.150(d), which requires public entities to develop a "transition plan" for achieving the ADA's accessibility requirements. The district court granted Lonberg's request for a permanent injunction and ordered the City to prepare a transition plan that complies with Sec. 35.150(d). The City appeal, arguing that Sec. 35.150(d) is not privately enforceable. The USCA reversed and vacated the permanent injunction, holding Sec. Sec. 35.150(d) is not enforceable through the private right of action under Sec. 202 of Title II, 42 USC Sec. 12132. Dissenting, Judge Silverman thought that the City waived its argument that Sec. 35.150(d) is not privately enforceable. Hall, Silverman (dissenting), and Callahan (author), Circuit Judges. G. Hur-ley of Costa Mesa, CA, for the defendant-appellant; T. Kilpatrick of San Luis Obispo, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 30) AMERICANS WITH DISABILITIES ACT: Chapman v. Pier 1 Imports, 07-16326 (9th Cir. June 29, 2009). Chapman sued Pier 1 Imports under the federal ADA, and California's Unruh Civil Rights Act and the Disabled Persons Act, after visiting Pier 1 Imports store in Vacaville, California, and encountering five accessibility barriers to the use of the men's restroom facilities. Chapman did not have standing to pursue unencountered barriers under the Ninth Circuit's prudential standing doctrine, because the barriers Chapman encountered did not deter him from visiting or shopping in the store. Because it concluded that Chapman did not have standing to pursue claims for unencountered barriers, and because the district court granted Pier 1 Imports summary judgment on all the barriers Chapman claimed to have encountered, all other appealed issued are moot. The USCA held that the district court improperly extended the prudential standing doctrine to Chapman's unencountered alleged barriers. Despite encountering some alleged barriers, Chapman was not deterred from shopping at the store or from using its restroom facilities. The USCA thus reversed the district court. Because Chapman did not have standing to pursue the unencountered claims in federal court, and because the district court properly granted Pier 1 Imports summary judgment on all the alleged barriers Chapman encountered, all other issues in this case were moot. Noonan, Thompson, and N.R. Smith (author), Circuit Judges. L. Hubbard of Chico, CA, for the appellee; R. Juarez of Los Angeles, CA, for the appellant. (Download the full text of this decision at www.ce9.uscourts.gov/) 31) SOCIAL SECURITIES: Vernoff v. Astrue, 08-55049 (9th Cir. June 17, 2009). Vernoff, on her own behalf and on behalf of her minor child Brandalynn, appealed the district court's summary judgment upholding the denial by the Commissioner of the Social Security Administration ("SSA") of her claim for child survivor benefits. The SSA determined that Brandalynn did not meet the eligibility requirements because it could not be establish that she was dependent upon the deceased insured at the time of his death under Califor-nia law, due to her posthumous conception. Vernoff also appealed the denial of her claim that the SSA's exclusion of certain posthu-mously-conceived children violates the Equal Protection Clause. The USCA affirmed. Hall (author), Kleinfeld, and Silverman, Circuit Judges. J. Raetz of Pasadena, CA, for the appellant; AAG G. Katsas of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 32) FREEDOM OF INFORMATION ACT: Lahr v. NTSB, 06-56717 (9th Cir. June 22, 2009). TWA Flight 800 exploded in mid-air off the coast of Long Island on July 17, 1996, killing all 230 people aboard. The cause of this tragic event remains, for some, in dispute, and that dispute underlies the current lawsuit brought under the Freedom of Information Act ("FOIA"). The government found that the accident was caused by an explosion in one of the plane's fuel tanks, but Lahr was not convinced. He thought the government had engaged in a massive cover-up of the real cause, which he suspected to be a strike by a missile launched by the U.S. Navy. In an attempt to prove his theory, he initiated more than 200 FOIA requests for documents to federal agencies involved in the investigation. When these agencies gave him only some of the information he requested, he filed this lawsuit. On summary judgment, the district court ordered the government to release some documents in compliance with Lahr's requests but authorized it to withhold others, as exempt from disclosure pursuant to the FOIA's enumerated exemptions. The USCA reversed the district court's ruling that the government must disclose the names of the eyewitnesses and FBI agents, but affirmed the remainder of the district court's rulings. Miner, Wardlaw, and Berzon (author), Circuit Judges. J. Clarke of Washington, DC, for the appellant; S. Frank of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 33) IMMIGRATION: Soriano v. Holder, 05-72116 (9th Cir. June 26, 2009). At issue here was whether government informants constitute a "particular social group" within the meaning of 8 USC Sec. 1101(a)(42)(A) for purposes of analyzing their eligibility for asy-lum? The USCA answered "no" and thus denied the applications for asylum and withholding of removal filed by petitioner Soriano, a native and citizen of the Philippines. With regard to the CAT claim, the USCA noted that the petitioner had to establish that it was more likely than not that he would be tortured if returned to the Philippines. However, there was no evidence showing a likelihood of torture by gang members, if the petitioner were to return to the Philippines. In particular, he presented no evidence demonstrating that he would be subject to torture committed by or with the consent of Filipino government officials. Rymer, Graber (author), and Bea, Circuit Judges. T. Huber of Sherman Oaks, CA, for the petitioner; R. Stapleton of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 34) IMMIGRATION: Ahmed v. Holder, 06-71631 (9th Cir. June 24, 2009). Ahmed, a native and citizen of Bangladesh, petitioned for review of a final order by the Board of Immigration Appeals ("BIA") affirming a ruling by the Immigration Judge ("IJ") denying him a continuance of removal proceedings pending his appeal to the Administrative Appeals Office ("AAO") of the denial of his I-140 visa application. The USCA concluded that the IJ abused her discretion in denying the continuance without providing a reason for denying it. The USCA thus granted the petition and remanded for further proceedings. Pregerson and Thompson (author), Circuit Judges, and Fogel, District Judge J. Cripps of Los Angeles, CA, for the petitioner; N. Simonian of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 35) IMMIGRATION: Romero v. Holder, 05-71029 (9th Cir. June 8, 2009). Romero petitioned for review of the BIA's order denying his motion to reopen and ordering him removed from the United States. During the removal proceedings, Romero applied for cancellation of removal under 8 USC Sec. 1229b(b). To qualify for that form of relief, he had to show that he was a person of "good moral character." 8 USC Sec. 1229b(b)(1)(B). The BIA affirmed the IJ's finding that Romero's guilty plea to a first-time, simple possession drug offense, which was deferred for 18 months and then dismissed under a state rehabilitative statute, statutorily barred Romero from proving good moral character. However, because the BIA erred in finding Romero statutorily barred from showing good moral character on the basis of his guilty plea which was later expunged, the USCA granted the petition and remanded for further proceedings consistent with its opinion. Pregerson (author), D.W. Nelson, and Thompson, Circuit Judges. W. Baker of Chula Vista, CA, for the petitioner; P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 36) IMMIGRATION: Torres-Chavez v. Holder, 05-72226 (9th Cir. June 5, 2009). Torres-Chavez petitioned for review of a final order of removal under the Immigration and Nationality Act ("INA"). He claimed that his concession of alienage before the IJ was the result of legal representation so egregiously deficient that it violated his Fifth Amendment right to due process. The USCA held that Torres's due process rights were not violated by his lawyers' performance, and accordingly denied his petition for review. Because Torres was not deprived of due process by the conduct of his lawyer, he was bound to his admissions of alienage and removability be-fore the IJ. The USCA thus did not need to address whether Torres' written and oral admissions to the INS were admissible in Torres' removal proceedings under the confidentiality provisions of Sec. 245A of the Immigration and Nationality Act, 8 USC Sec. 1255a(c)(5)(A)(i). McKeown and Ikuta (author), Circuit Judges, and Block, District Judge. S. Brazelton of Reno, NV, for the peti-tioner; P. Kiesler of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 37) IMMIGRATION: Cinapian v. Holder, 05-72445 (9th Cir. June 3, 2009). The petitioners, Aghavni and Norek Cinapian and their two sons, are natives and citizens of Iran, ethnic Armenians, and Christians who suffered religious persecution in Iran because they briefly discussed the tenets of the Christian faith with a 13-year old Muslim boy, Ali. Ali saw a picture of Jesus Christ in a Bible in the petitioners' home and asked them questions about Christianity, which they answered. Ali apparently mentioned that conversation with someone else because, the Iranian police soon broke down the petitioners' door and beat and arrested Aghavni and Norek in front of their children, accusing them of trying to convert a Muslim boy. The police threatened the petitioners, saying "you know what is waiting for you," as they grabbed and tore Aghavni's Bible. The petitioners testified that after being detained and interrogated by the Iranian police for two days, they were charged with attempting to convert a Muslim to Christianity. They were released after their cousin posted bond. They then hired a lawyer, who advised them that the charge was "equivalent to killing an Iranian" and punishable by death or a lengthy prison sentence. Fearful for their lives, they arranged for a smuggler to help them cross the border into Turkey. From there, they boarded a plane to Mexico, where they later entered the United States and applied for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT). Removal proceedings then were commenced against them. The Forensic Document Examiner concluded that one of the son's birth certificate was "counterfeit" because it did not "conform to a comparable genuine specimen and reference material, and its background design seemed to have been produced using color inkjet technology and a rubber stamp device. The IJ stated that the government should have provided Department of Homeland Security ("DHS") forensic reports to the petitioners prior to the hearing, given that they had been written several months earlier. However, the IJ made clear that she would not "reset this case" and "cannot and will not give you a continuance." Faced with the IJ's refusal to continue the hearing, the petitioners' counsel asked that the reports be given "no weight at all." The IJ acknowledged the concern, but admitted the DHS forensic reports while promising to take the petitioners' concerns into consideration in deciding how much weight to give the reports. The IJ ultimately found that the petitioners were not credible, in large part because of "major inconsistencies and problems" related to "where they are from," which she said went "to the heart of their claim." Based on her adverse credibility finding, the IJ held that the petitioner failed to show that their asylum application was timely and failed to establish their eligibility for withholding of removal and protection under the CAT because they had not credibly shown where they are from. Concluding that the petitioners' right to a fair hearing had been violated and their asylum applications prejudiced by the government's failure to make the author of an adverse forensic evaluation of petitioners' documents available for cross-examination, and to disclose the existence of the report to the petitioners until the day of their hearing, and by the IJ's insistence on proceeding in the face of those failures, the USCA granted the petition for review. The IJ had admitted damning evidence but denied the petitioners an adequate opportunity to rebut that evidence, to explain the doubts that evidence raised, or to introduce additional, corroborating evidence of their Iranian Citizenship. Hawkins (author), Berzon, and Clifton, Circuit Judges. W. Curtis of Tucson, AZ, for the petitioner; B. Maurer of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 38) IMMIGRATION: Morales-Garcia v. Holder, 07-70400 (9th Cir. June 3, 2009). The petitioner sought review of a final order of removal based on the IJ's and BIA's determination that his conviction under California Penal Code Sec. 273.5(a) was categorically a crime involving moral turpitude ("CIMT"), precluding cancellation of removal under Sec. 240A(B) of the Immigration and Nationality Act ("INA"). The USCA held that the petitioner's conviction under Sec. 273.5(a) for abuse of a cohabitant is not categorically a CIMT with the meaning of 8 USC Secs. 1182(a)(2)(A)(i)(I) and 1229b(b)(1)(C). The USCA thus granted the petition for review and re-manded to the BIA for further proceedings. Tashima (author), McKeown, and Gould, Circuit Judges. J. Pope of Phoenix, AZ, for the petitioner; L. Williams of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 39) IMMIGRATION: USA v. Lopez-Velasquez, 07-30241 (9th Cir. June 23, 2009). Lopez-Velasquez waived his right to appeal and was deported in 1994 in a group proceeding in which the IJ did not advise him of the availability of relief from deportation under Sec. 212(c) of the Immigration and Nationality Act. He had a U.S. citizen wife and two young U.S. citizen children at the time, and would have been a strong candidate for this discretionary relief had he applied for it. Over 10 years later, in 2006, Lopez-Velasquez was indicted for illegal reentry in violation of 8 USC Sec. 1326. The district court dismissed the indictment, holding that the 1994 deportation order was invalid due to the IJ's failure to inform him of his apparent eligibility for Sec. 212(c) relief. The USCA affirmed. Lopez-Velasquez's prior deportation was "fundamentally unfair" and could not serve as the basis for his illegal reentry conviction because he was prejudiced by the IJ's failure to inform him of his possible eligibility for Sec. 212(c) relief. Pregerson and Reinhardt (author), Circuit Judges, and Strom, District Judge. AUSA J. Haub of Portland, OR, for the plaintiff-appellant; T. Kolkey of Ashland, OR, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 40) FIRST AMENDMENT: Berger v. Seattle, 05-35752 (9th Cir. June 24, 2009). In 2002, Seattle promulgated a set of rules governing the conduct of visitors to a public park and entertainment complex. The new rules regulated for the first time the behavior of the complex's street performers. Among other provisions, the new rules required street performers at the complex to obtain permits before performing; set out specified locations for street performances and established a "first-come, first-served" rule for using the locations; allowing only passive solicitation of funds by street performers; and prohibited communications, by street performers or anyone else, within 30 fees of visitors to the complex who are waiting in line, attending an event, or sitting in a spot available for eating or drinking. Following the rules' publication, Berger, a balloon artist and frequent complex performer, filed this lawsuit challenging the new rules on the grounds that they violated his First Amendment rights. The district court agreed and invalidated all of the challenged rules. The City sought reversal, asserting that the rules imposed valid "time, place, or manner" regulations on the actions of street performers and other parkgoers. The USCA affirmed, except that it remanded for further factual development concerning the validity of the locational regulation. The City failed to meet its burden, with respect to each new rule, of justifying the regulation of expressive activity in a public forum such as at issue here. Kozinski (dissenting), Pregerson, Reinhardt, Hawkins, Wardlaw, Gould (dissenting), Paez, Berzon (author), Tallman, M.D. Smith, and N.R. Smith (dissenting in part), Circuit Judges. E. Garella of Seattle, WA, for the appellee; G. Keese of Seattle, WA, for the appellants. (Download the full text of this decision at www.ce9.uscourts.gov/) 41) CIVIL RIGHTS / FIRST AMENDMENT: Douglas v. Noelle, 06-35195 (9th Cir. June 5, 2009). Between July 2000 and December 2002, Douglas was in the custody of the Multnomah County Sheriff's Office in Portland, Oregon, In 2004, acting pro se, he filed a complaint under 42 USC Sec. 1983, alleging that Sheriff's Office personnel violated his First Amendment rights on six occasions while he was in jail. The district court held that Douglas failed to file his complaint within the applicable statute of limitations and dismissed it. The USCA reversed, holding that the mailbox rule of Houston v. Lack, 487 US 266 (1988), applied to a pro se pris-oner's Sec. 1983 complaint and that under the mailbox rule Douglas timely filed at least one claim. The USCA remanded to allow the district court to consider that claim on the merits. W. Fletcher (author) and Fisher, Circuit Judges, and Breyer, District Judge. D. Lundsgaard pro se; J. Weber of Portland, OR, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 42) CIVIL RIGHTS: Clem v. Lomeli, 07-16765 (9th Cir. June 2, 2009). Clem, an inmate in the custody of the California Department of Corrections, appealed from an adverse jury verdict in his 42 USC Sec. 1983 civil rights damage action, arguing that the district court gave erroneous jury instructions and that the error was not harmless. In the underlying action, Clem alleged that he was beaten by his cellmate and that a prison officer was liable for the attack under the Eighth Amendment for failing to abate a known risk. Concluding that the jury instruction misstated the law and that the error was prejudicial, the USCA reversed and remanded. Concurring, Judge Hug wrote separately to emphasize that model instruction 9.25, set forth in the 2007 edition of the Ninth Circuit's Civil Model Jury Instruction, does not adequately state the law and should not be used by the district court. The commentary to the instruction correctly notes that the Supreme Court clearly states in Farmer v. Brennan, 511 US 825 (1994), that the key inquiry in an Eighth Amendment conditions of confinement claim is whether the defendant acted with "deliberate indifference." However, the model instruction (like the jury instruction given in this case) never mentions or defines the term "deliberate indifference." Hug (concurring), Hawkins (author), and Tallman, Circuit Judges. K. Kreuzkamp of San Francisco, CA, for the appellant; V. Whitney of Sacramento, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 43) CIVIL RIGHTS: Corales v. Bennett, 07-55892 (9th Cir. June 1, 2009). On March 28, 2006, Anthony Soltero, Annette Prieto, and two other students walked out of De Anza Middle School with the intent to participate in protests in their neighborhood against then-pending immigration reform measures. Two days later, they were disciplined for their one-day absence from school by Vice Principal Bennett, who took away one of their year-end activities and lectured them harshly regarding the possible legal consequences of truancy, including police involvement, a $250 fine, and a juvenile hall sentence. Tragically, Anthony committed suicide after school that day. His parents and one of the other students brought this action against Bennett, Principal Kinley, and the Ontario-Montclair School District, alleging violations of the students' and parents' civil rights under 42 USC Sec. 1983; violations of California's Unruh Act; intentional infliction of emotional distress, and negligently causing Anthony's suicide. The district court granted summary judgment to the defendants. Because Bennett did not violate the students' constitutional rights, and there was no evidence that Bennett intended to harm the students, and Anthony's death was not proximately caused by Bennett's actions, the USCA affirmed. Pregerson and Hall (author), Circuit Judges, and Ezra, District Judge. R. Paz of Culver City, CA, for the appellants; J. Berryessa of Irvine, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 44) CIVIL RIGHTS: Catholic League for Religious and Civil Rights v. San Francisco, 06-17328 (9th Cir. June 3, 2009). The Catholic League for Religious and Civil Rights, Richard Sonnenshein, and Valerie Meehan (collectively "League") appealed the dis-missal of their civil rights action under 42 USC Sec. 1983 for failure to state a claim. At issue was the constitutionality of a non-binding resolution adopted by San Francisco's Board of Supervisors concerning the adoption of children by same-sex couples and the Catholic Church's position against such adoption. The League argued that in adopting the resolution the Board expressed disapproval of the Catholic religion in violation of the First Amendment's Establishment Clause. The USCA affirmed, holding that the resolution passed constitutional scrutiny. Properly contextualized, the resolution does not have the purpose or primary effect of expressing hostility towards Catholic religious beliefs, and it does not foster excessive government entanglement with the Catholic Church. Hug, Paez (author), and Berzon (concurring), Circuit Judges. R. Muise of Ann Arbor, Mich., for the appellants; V. Chhabria of San Francisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 45) CIVIL RIGHTS / QUALIFIED IMMUNITY: Cousins v. Lockyer, 07-17216 (9th Cir. June 15, 2009). Cousins appealed from the dismissal of his 42 USC Sec. 1983 complaint against several California state officials, in which he alleged that he was wrongfully imprisoned for an additional 19 months after a California appellate court overturned the statute under which he was incarcerated. He argued that the officials breached their alleged duties to monitor whether his sentence was void under the invalidated statute and to take steps to effectuate his release. He also asserted that the district court erred in determining that the former Attorney General was entitled to absolute prosecutorial immunity, and that the remaining defendants were entitled to qualified immunity. The USCA affirmed the district court's judgment regarding Cousins' federal claims because they fell within the scope of the former AG's duties as a criminal prosecutor, and because Cousins could not show that any federal constitutional right that may have been violated by the remaining defendants was clearly established in law. However, the USCA reversed and remanded Cousins' state cause of action. His state false imprisonment claim was not subject to any state statutory immunity. His remaining state claims were all derivative of that claim, and none of his claims were subject to the federal common law doctrine of qualified immunity. T.G. Nelson, Kleinfeld, and M.D. Smith (author), Circuit Judges. D. Cunningham of San Francisco, CA, for the plaintiff-appellant; W. Fong of Oakland, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 46) FOURTH AMENDMENT / DNA SAMPLES: Friedman v. Boucher, 05-15675 (9th Cir. June 23, 2009). Las Vegas Metropolitan Police Detective Boucher, with the approval of Clark County Deputy District Attorney Luzaich, forcefully extracted a DNA sample from Friedman. The officer did not have a warrant or a court order authorizing the taking of the sample, nor was Friedman under any suspicion of a crime for which a DNA sample might be justified. The extraction occurred simply because Luzaich wanted to put Friedman's DNA sample in a cold case data bank. Friedman alleged that the forcible extraction occurred after he was shackled and chained to a metal bar. Friedman brought suit against Boucher and Luzaich under 42 USC Sec. 1983 on the ground that they violated his Fourth Amendment rights by taking the sample. The district court held that the defendants were entitled to qualified immunity and granted their motion to dismiss. The USCA reversed, finding that the forcible taking of a DNA sample under these circumstances vio-lated Friedman's clearly established Fourth Amendment rights. Viewing the facts in the light most favorable to Friedman, the USCA held that a reasonable officer in Baucher's circumstances would have known that forcibly taking a DNA sample from a pre-trial detainee without a search warrant or other court authority would violate that detainee's clearly established Fourth Amendment rights. When a right is clearly established and a reasonable officer should be familiar with that clearly established law, then the officer cannot escape liability purely by reliance on a prosecutor's equally unconstitutional actions. Judge Callahan dissented from the majority's reversal of the district court's grant of qualified immunity. The majority determination that Friedman had a clearly established right of privacy under the Fourth Amendment to prevent state authorities from used a buccal swab to take a DNA sample, failed to appreciate three lines of precedents that undermine its conclusion. First, both the Supreme Court and the Ninth Circuit have held that incarcerated individuals have little, if any, expectation of privacy under the Fourth Amendment. Second, the Ninth Circuit has also held that a person legitimately in state custody has almost no right against disclosing his or her identity. Third, the USCA has held that governments have compelling interests in establishing the identity of incarcerated repeat sex offenders. Friedman, a convicted sex offender, was a pre-trial detainee facing charges of indecent exposure and open and gross lewd conduct when the state officials took a buccal swab from the inside of his mouth. Judge Callahan would hold that this minimal invasive search was reasonable. Roth, Thomas (author), and Callahan (dissenting), Circuit Judges. T. Baker of Mountain View, CA, for the appellant; DDA R. Gower of Las Vegas, NV, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 47) EVIDENCE: USA v. Begay, 07-10487 (9th Cir. June 1, 2009). Begay appealed his convictions for two first-degree murders in violation of 18 USC Secs. 1153 and 1111, and two counts of using a firearm during a crime of violence in violation of 18 USC Sec. 924(c)(1)(A). On appeal, he argued that the evidence at trial, when taken in the light most favorable to the government, failed to estab-lish that he committed a "premeditated killing." Because, it agreed that the government failed to introduce evidence sufficient to show premeditation-an essential element of first-degree murder-the USCA reversed the denial of his motion for judgment of acquittal on counts one and two and thus his first-degree murder convictions. However, the USCA affirmed his two convictions for using a firearm during a crime of violence and his sentence of 35 years imprisonment on those two counts. Judge Bright concurred but wrote sepa-rately on the reversal of Bagay's murder convictions. He said that, if he were writing on a clean slate in the Ninth Circuit, he would direct the district court to enter a judgment of conviction on the less-included offense of second-degree murder. However, as he is bound by USA v. Vasquez-Chan, 978 F.2d 546 (9th Cir. 1992), which mandates a procedure that when, as in this case, the conviction for the greater offense is in issue and may be reversed, the government must request such possible relief in its opening brief. This requirement is not the rule in similar cases in other circuits. Bright (concurring), Hug, and Reinhardt (author), Circuit Judges. AFPD D. Kaplan of Phoenix, AZ, for the appellant; AUSA A. Scheel of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 48) EVIDENCE: USA v. Tran, 07-30270 (9th Cir. June 24, 2009). Tran appealed his jury convictions for conspiracy to possess more than 100 kilograms of marijuana with the intent to distribute in violation of 21 USC Secs. 841(a)(1), (b)(1)(B), and 846, plus two counts of possession of marijuana with intent to distribute in violation of 21 USC Secs. 841(a)(1) and (b)(1)(D). Tran argued that the district court erred by admitting a portion of a co-defendant's redacted plea agreement as substantive evidence under Fed. R. Evid. 801(d)(1)(A). He further argued that there was insufficient evidence supporting his convictions. Although it found that the district court did not err in its evidentiary rulings, and, in particular, did not err by admitting a redacted portion of co-conspirator Nguyen's plea agreement, the USCA reversed Tran's convictions as the evidence was insufficient as a matter of law to support his conviction for conspiracy or possession with intent to distribute. Dissenting, Judge Noonan thought the majority had misread the evidence. The re-dacted plea agreement admitted as substantive evidence against Tran, states: "Tam Phu Quy Nguyen together with Han Quong Tran picked up approximately 70 pounds of marijuana for redistribution that night." Judge Noonan thought that Nguyen's statement was sufficient to establish that Tran was a participant in the conspiracy to distribute marijuana and was in possession of marijuana with intent to distribute. Nguyen declares clearly and unequivocally that together he and Tran picked up the 70 pounds for redistribution. The majority, faced with that statement, says that it "supports no more than Tran's presence at the time of conspiratorial conduct carried on by others." But the majority misreads the sentence. It does not say that that Tran stood by while Nguyen picked up the drugs. It says that Nguyen and Tran together picked up the drugs. Pregerson (author), Canby, and Noonan (dissenting), Circuit Judges. A. Ressler of Seattle, WA, for the appellant; AUSA C. Chrisham of Seattle, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 49) SEXUAL EXPLOITATION OF A MINOR: USA v. Overton, 08-30075 (9th Cir. June 18, 2009). Following a two-day bench trial, Overton was convicted on two counts of sexual exploitation of a minor in violation of 18 USC Sec. 2251(a) and (b), and on separate counts of receipt of child pornography and possession of child pornography in violation of 18 USC Sec. 2252A(a)(2) and (a)(5)(B), respectively. The district court sentenced Overton to a term of incarceration of 235 months, to be followed by a lifetime of supervised release. Overton made three arguments on appeal. He maintained (1) that there was insufficient evidence to support a con-viction on the sexual exploitation counts, (2) that his conviction on the multiple counts violated the Fifth Amendment's prohibition against double jeopardy, and (3) that the district court committed reversible errors in imposing his sentence. The USCA affirmed. First, it found no error in the district court's finding that Exhibits 6-2, 6-4, and 6-5 portray the lascivious exhibition of the genitals or pubic area and thus depict "sexually explicit conduct." Viewing the evidence in the light most favorable to support the conviction, a rational trier of fact could have found the essential elements of the sexual exploitation counts beyond a reasonable doubt. Second, because there is no clearly expressed legislative intention to the contrary, the test of Blockburger v. USA, 284 US 299 (1932), conclusively demonstrated that violations of Sec. 2251(a) and (b) constitute separate offenses for which Congress authorizes multiple punishments. Overton's conviction on separate sexual exploitation counts thus was constitutionally permissible. Third, the record on appeal demonstrates that Overton's conviction for receipt and the lesser included possession of child pornography was based on separate conduct and thus did not violate his Fifth Amendment double jeopardy rights. Finally, the district court did not commit procedural error or abuse its discretion in imposing the within-Guidelines sentence. Reavley, Tallman (author), and M.D. Smith, Circuit Judges. A. Gallagher of Great Falls, MT, for the defendant-appellant; AUSA M. Hurd of Billings, MT, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 50) SEX OFFENDERS: USA v. Ensminger, 08-30183 (9th Cir. June 3, 2009). Ensminger pled guilty to a single count of failure to register as a sexual offender in violation of 18 USC Sec. 2250(a), the enforcement provision of the Sex Offender Registration and No-tification Act ("SORNA"). After securing a continuance of the sentencing hearing, he moved to withdraw his guilty plea in order to file a motion to dismiss the indictment. The district court denied his motion and imposed a 21-month sentence. On appeal, Ensminger maintained that the district court abused its discretion by denying his motion to withdraw his guilty plea. The USCA affirmed. A deci-sion to allow withdrawal of a plea is solely within the discretion of the district court. The district court below did not abuse its discre-tion in concluding that USA v. Powers, 544 F. Supp. 2d 1331 (M.D. Fla. 2008), vacated, 562 F.3d 1342 (11th Cir. 2009), did not con-stitute a fair and just reason entitling Ensminger to withdraw his guilty plea. In addition, Ensminger did not maintain that Sec. 2250 is an invalid, unconstitutional exercise of congressional authority under the Commerce Clause. The USCA thus did not address that issue. W. Fletcher, Gould, and Tallman (author), Circuit Judges. A. Gallagher of Billings, MT, for the appellant; AUSA M. Hurd of Billings, MT, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)
52) SENTENCING: USA v. Amezcua-Vasquez, 07-50239 (9th Cir. June 1, 2009). Amezcua-Vasquez, a native and citizen of Mexico, appealed his 52-month prison sentence for attempting to reenter the U.S. unlawfully in violation of 8 USC Sec. 1326. Nearly 50 years after becoming a permanent resident and more than 20 years after completing a 4-year sentence for assault with great bodily injury and attempted voluntary manslaughter, Amezcua-Vasquez was deported to Mexico as an alien convicted of an aggravated felony. Shortly thereafter, he was apprehended re-entering the United States. He was indicted and pled guilty to one count of illegal reentry in violation of Sec. 1326. The district court applied a 16-level enhancement under Guideline Sec. 2L1.2(b)(1)(A)(ii), which was predi-cated on Amezcua-Vasquez's 25-year-old convictions, and imposed a Guidelines sentence of 52 months imprisonment. The USCA vacated the sentence as substantively unreasonable under USA v. Booker, 543 US 220 (2005), and remanded to the district court for resentencing. On the specific facts presented, a 52-month sentence that is largely predetermined by a 16-level enhancement under Guidelines Sec. 2L1.2(b)(1)(A) is substantively unreasonable, and it was an abuse of discretion for the district court to impose it. The USCA made no pronouncement as to the reasonableness of a comparable sentence were Amezcua-Vasquez's convictions more recent, the sentence resulting from the prior convictions more severe or the need to protect the public from further crimes of the defendant otherwise greater. 18 USC Sec. 3553(a)(2)(C). Canby (author), Kleinfeld, and Bybee, Circuit Judges. J. Tung of San Diego, CA, for the appellant; AUSA C. Alexander of San Diego, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)
54) SENTENCING: USA v. Paulk, 08-50229 (9th Cir. June 24, 2009). At issue here was whether a defendant sentenced pursuant to a statutory mandatory minimum is entitled to a reduction of sentence under 18 USC Sec. 3582(c)(2). The USCA held that the district court had no authority to reduce a sentence in these circumstances because the sentence was not "based on a sentencing range that has subsequently been lowered by the Sentencing Commission, but rather was based on the statutory mandatory minimum under 21 USC Sec. 841. Pregerson, Graber, and Wardlaw, Circuit Judges. Per Curiam. DFPD C. Gunn of Los Angeles, CA, for the appellant; AUSA D. Levine of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 55) SENTENCING: USA v. Garcia-Hernandez, 08-50190 (9th Cir. June 25, 2009). Garcia-Hernandez appealed his conviction for illegal reentry under 18 USC Sec. 1326, which provides an enhanced maximum sentence for an alien who was removed from the U.S. after being convicted of a felony. Garcia argues that the indictment was legally insufficient to support his enhanced sentence and that the district court should have suppressed his post-arrest confession of alienage. The USCA disagreed and affirmed his conviction. The indictment sufficiently alleged a violation of Sec. 1326, and Garcia's confession of alienage was properly admitted. Kleinfeld, Bea, and Ikuta (author), Circuit Judges. D. Burstein of San Diego, CA, for the defendant-appellant; A. Clark of San Diego, CA, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 56) SENTENCING: USA v. Mitchell, 08-10027 (9th Cir. June 23, 2009). Mitchell appealed from his conviction and sentence for possession with intent to distribute cocaine base in violation of 21 USC Sec. 841(a)(1) (Count One), and possession of marijuana in violation of 21 USC Sec. 844 (Count Two). On Count One, he was sentenced to "a mandatory term of life imprisonment without re-lease and ten years of supervised release." On Count Two, he was sentenced to a term of 90 days imprisonment and three years of su-pervised release. The sentences of imprisonment were to run concurrently, as were the terms of supervised release. The jury convicted Mitchell of both counts. Although Mitchell raised a number of issues on appeal, the USCA dealt with only one: Whether he was denied his constitutional right to an impartial jury? The USCA affirmed Mitchell's conviction and sentence. As it held that Jane Doe's voir dire statements were insufficient to evidence impermissible bias, the USCA held the district court did not err in failing to strike her from the jury sua sponte. There was no violation of Mitchell's Sixth Amendment right to an impartial jury. Dissenting, Judge Thomas noted that the prospective juror had told the court that her ability to be a fair juror would be affected because a drug dealer had murdered her uncle. Despite this admission, she was seated. Judge Thomas thought the presence of this biased juror was structural error requiring reversal. Wallace (author), Thomas (dissenting), and Graber, Circuit Judges. D. Cameron of Reno, NV, for the defendant-appellant; AUSA W. Reed of Reno, NV, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 57) SENTENCING: USA v. Sanchez, 07-50564 (9th Cir. June 23, 2009). At issue here was whether, on a limited Ameline remand, a district court could consider post-sentencing factors and circumstances in determining whether it would have imposed the same sen-tence had it known the Sentencing Guidelines were advisory. The USCA affirmed, holding that the district court accurately understood the scope of its review on this limited Ameline remand by ultimately concluding that it was precluded from considering evidence of the defendant's post-sentencing rehabilitation. The district court also properly denied the defendant's request for placement in the Bureau of Prisons' residential drug and alcohol treatment program, an issue the defendant had waived. Pregerson and Thompson (author), Circuit Judges, and Fogel, District Judge. AUSA E. Lindsay of Los Angeles, CA, for the plaintiff-appellant; G. Burcham of San Diego, CA, for the defendant-appellant.(Download the full text of this decision at www.ce9.uscourts.gov/) 58) SENTENCING: USA v. Cruz-Gramajo, 07-50381 (9th Cir. June 26, 2009). These consolidated cases concern Sentencing Guidelines applicable to illegal reentry into the U.S. in violation of 8 USC Sec. 1326. The defendants are foreign citizens who were deported and then returned to the U.S. without permission. After their illegal reentries, but before immigration authorities discovered them, the defendants committed and were convicted for various state law offenses, including burglary, driving under the influence, and evading police. At sentencing for their Sec. 1326 offenses, the district courts held that the defendants' intervening state law crimes constituted "criminal history" for purposes calculating their Guidelines ranges. The defendants attacked these holdings. They noted that the Guidelines exclude from "criminal history" acts that are defined as "relevant conduct" to the conviction offense. Relevant conduct, they argued, includes conduct occurring "during" the conviction offense. Illegal reentry is a continuing offense that lasts from reentry until the violator is found by immigration authorities. The defendants thus argued that the state law crimes they committed after returning to this country were still "during" their Sec. 1326 offenses and thus did not constitute "criminal history." However, the USCA found that the defendants' argument ignores the context, structure and purpose of the Guidelines. The USCA thus affirmed the district courts' deci-sions to include the defendants intervening state law crimes in the criminal history calculation. Dissenting in part, Judge Pregerson would find that each of the district courts below erred in assigning additional criminal history points to the defendants for the state law offenses committed after the defendants illegally reentered the U.S., but before each was "found" by immigration authorities. He would also find that one district court erred in assigning two additional criminal history points to defendant Cruz-Gramajo for committing an 8 USC Sec. 1326 offense "while under [another] criminal justice sentence." Guidelines Sec. 4A1.1(d). Pregerson (dissenting in part), Hall (author), and N.R. Smith, Circuit Judges. P. Bronson of Sherman Oaks, CA, for the appellant; AUSA J. Mitchell of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 59) SENTENCING: USA v. Showalter, 08-50109 (9th Cir. June 26, 2009). Showalter pleaded guilty to one count of wire fraud in violation of 18 USC Sec. 1343. He appealed the order denying his motion to withdraw that guilty plea and his sentence. The USCA affirmed the denial of his motion to withdraw his guilty plea, but vacated his sentence and remanded for resentencing. Pregerson and Thompson (author), Circuit Judges, and Fogel, District Judge. E. Cortez of San Diego, CA, for the defendant-appellant; AUSA M. Biesheuvel of Santa Ana, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 60) SENTENCING: USA v. Leniear, 08-30199 (9th Cir. June 18, 2009). Leniear appealed the district court's denial of his motion for a sentence reduction based on Amendment 706 to the U.S. Sentencing Guidelines. Amendment 706 reduces by two points the base offense level assigned to each threshold quantity of crack cocaine listed in Guidelines Sec. 2D1.1 Drug Quantity Table. The USCA affirmed finding that Leniear was not eligible for a reduction of his prison sentence under Amendment 706. While he did not waive his right to the instant appeal, his appeal nonetheless failed. Because Amendment 706 has not lowered the sentencing range applicable to Leniear, and because reducing his prison term would not be consistent with Guideline Sec. 1B1.10, the district court did not err in con-cluding that it lacked jurisdiction under 18 USC Sec. 3582(c)(2) to modify Leniear's sentence pursuant to Amendment 706. W. Fletcher, Gould, and Tallman (author), Circuit Judges. A. Beiswenger of Anchorage, AK, for the defendant-appellant; AUSA A. Ren-schen of Anchorage, AK, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 61) HABEAS CORPUS / SENTENCING: Kessee v. Mendoza-Powers, 07-56153 (9th Cir. June 23, 2009). At issue here was the scope of the "prior conviction" exception to the general rule that a sentencing judge may not make factual findings that increase the statutory maximum criminal penalty? As the Supreme Court has not yet answered that question, the answer currently depends on what level of scrutiny is applied to the sentencing decision. When the USCA reviews de novo, it makes an independent determination of the scope of the prior conviction exception, using its normal interpretative methods. When its review is constrained by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), however, it cannot grant habeas relief unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 USC Sec. 2254(d)(1). Under the AEPDA, even if the USCA has reached a particular conclusion about the scope of the prior conviction ex-ception, its view may not be the only reasonable one; if the state court's interpretation is also reasonable, the USCA may deny habeas relief. Because the Supreme Court has not given explicit direction and the state court's interpretation is consistent with the interpreta-tions of many other courts, the USCA could not hold that the state court's interpretation was contrary to, or involved an unreasonable application of, Supreme Court precedent. Noonan, O'Scannlain, and Graber (author), Circuit Judges. R. DAG R. Maline of Los Angeles, CA, for the respondent; J. Schiavoni of San Diego, CA, for the petitioner. (Download the full text of this decision at www.ce9.uscourts.gov/) 62) HABEAS CORPUS: Scott v. Schriro, 05-99012 (9th Cir. June 2, 2009). Scott, an Arizona state prisoner sentenced to death, appealed the denial of his habeas petition. A district court will not decide a claim denied by a state court where the petitioner has failed to follow a rule of state procedure that is both adequate and independent of federal law. To be considered "adequate," the state rule must be one that is consistently applied by the courts of that state in the same manner it was applied to the current petitioner. The dis-positive issue here was whether the Arizona Superior Court relied on an adequate state bar, consistently applied, by the Arizona courts when it denied Scott's state petition for post-conviction relief. The USCA concluded that it did not. It held that Arizona Rule of Crimi-nal Procedure 32.6(d) prohibited Scott from filing an amendment to his previously-dismissed Arizona post-conviction petition for relief. His amendment alleged that he had suffered ineffective assistance of counsel at trial. In doing so, the post-petition court ignored Arizona precedent holding such a petition could be so amended. See State v. Rodriguez, 903 P.2d 639, 641 (Ariz. Ct. App. 1995) (holding a post-conviction court has the authority under Rule 32.6(d) to allow the filing of an amended petition upon a showing of good cause, even after the court has already dismissed the first petition) Scott's first petition for post-conviction relief was filed in 1995. Accordingly, the amended Rule 32.6(d) was not an "adequate" state procedural rule that barred subsequent federal review of Scott's ineffective assistance of counsel claim. The USCA remanded those claims to the district court to consider in the first instance. Kozinski, Farris, and Bea, Circuit Judges. Per Curiam. J. Sands of Phoenix, AZ, for the petitioner; T. Goddard for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 63) HABEAS CORPUS: Holley v. Yarborough. 08-15104 (9th Cir. June 16, 2009). Holley appealed the district court's order denying his petition for habeas corpus. He maintained that he was denied his rights under the Sixth and Fourteenth Amendments when the trial court precluded the introduction of impeachment evidence and prevented his cross-examination of the alleged victim about her prior statements, including statements about sex and indications that others had made sexual advances toward her. Holley also claimed that the was denied a fair trial, in violation of the Due Process Clause of the Fourteenth Amendment, by the trial court's admission of evidence that he kept sexually explicit materials in his home, that he owned weapons, and that he battered a prior girlfriend. The USCA reversed and remanded for issuance of the writ. Clearly established federal law, as set forth in Davis v. Alaska, 415 US 308 (1974), Delaware v. Van Arsdall, 475 US 673 (1986), and Michigan v. Lucas, 500 US 145 (1991), indicates that the trial court committed constitutional error by denying Holley the right to meaningful cross-examination of the prosecution's leading witness. As a consequence, the facts indicate that Holley was denied a fair trial. Holley was convicted and sentenced to eight years in prison, a sentence he has already served. Although habeas petitions are typically granted as a means of releasing the petitioner from custody, the federal habeas statute "does not limit the relief that may be granted to discharge of the applicant from physical custody," Carafas v. LaVallee, 391 US 234, 238-39 (1968). T.G. Nelson, Kleinfeld, and M.D. Smith (author), Circuit Judges. S. Luban of Oakland, CA, for the petitioner; D. Gillette of Sacramento, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 64) HABEAS CORPUS: Smith v. Richards. 07-35857 (9th Cir. June 23, 2009). At issue here was whether a pending detainer in one state renders invalid a sex offender's civil commitment in another state. Smith, a detainee at Washington's Special Commitment Cen-ter, appealed the district court denial of his habeas petition. The USCA affirmed, holding that the State's Court of Appeals reasonably applied federal law in holding that Washington's civil commitment statute was narrowly tailored. The Washington court also reasonably assessed the facts in determining that Smith would remain a threat to the community even if he were temporarily incarcerated in Alaska. Any restraint on Smith's liberty derived solely and independently from these valid legal and factual determinations. The pending Alaska detainer did not render unconstitutional Smith's permissible civil commitment. W. Fletcher, Gould, and Tallman (author), Circuit Judges. A. Ressler of Seattle, WA, for the petitioner; AAG G. Rosen of Olympia, WA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 65) HABEAS CORPUS: Phelps v. Alameida.
07-15167 (9th Cir. June 25, 2009). For over 11 years, Phelps has sat in prison
while unsuccessfully trying to present his habeas petition to a federal judge,
despite having overcome each of the procedural hurdles. At each stage in Phelps'
struggle over the past 11 years to have his petition evaluated on the merits,
he has put forward sound legal arguments, at times doing so pro se, for why his
petition was timely filed. In fact, his arguments have been more than sound, they
have been undeniably correct under currently governing law. Phelps's one fault
throughout this protracted process, if it can be described as a "fault,"
is that his arguments have been overly prescient: On multiple occasions, the legal
arguments he put forward for why his petition was properly filed were rejected
by judges before whom he appeared, only to be fully embraced within a matter of
months by judges authoring a more authoritative, controlling opinion in a different
case. The positions Phelps advanced were not, at the time they were made, foreclosed
by then-governing precedents; to the contrary, when he presented his arguments
the law was simply unsettled with respect to the procedural hurdles standing in
his way. However, on multiple occasions shortly after Phelps advanced the precise
interpretation of the law that would soon be adopted, his position was vindicated
in a case other than his own. On each occasion, the argument Phelps advanced was
adopted as the governing legal rule mere months after a directly contrary, but
nonprecedential, ruling was entered against him. Thus, entirely due to misfortune,
Phelps sat in prison without a single federal judge ever having evaluated the
substance of his habeas petition, a petition that indisputably satisfied the strict
procedural requirements set forth in the Anti-Terrorism and Effective Death Penalty
Act. When a dismissal of a habeas petition rests upon an answer to an open legal
question that is promptly rejected and then replaced in a more authoritative opinion
by the very answer proposed by a diligent but unsuccessful petitioner, the petitioner
is entitled to seek reconsideration of the dismissal entered against him. The
court should not treat the motion for reconsideration as per se non-cognizable.
Ultimately, in evaluating the motion, the district court's overriding concern
should be the incessant command of the court's conscience that justice be done
in light of all the facts. Here, because the district court incorrectly applied
a per se rule in rejecting Phelps' motion for reconsideration rather than evaluating
the specific circumstances of his case, and because the USCA ruled that the extraordinary
circumstances of this case merit relief under Fed. R. Civ. P. 60(b)(6), the USCA
reversed the denial of Phelps' motion for reconsideration and remanded for an
evaluation of the merits of his petition. Bright, Reinhardt (author), and
Tashima, Circuit Judges. A. Kutchins of Berkeley, CA, for the petitioner; DAG
J. Haley of San Francisco, CA, for the respondent.(Download
the full text of this decision at www.ce9.uscourts.gov/)
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