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| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. | ||
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| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. | ||
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1) TAXATION: Morrison v. CIR, 06-75332 (9th Cir. May 13, 2009). Morrison successfully challenged a Notice of Deficiency of income tax. He applied for, but was denied, fees. The Tax Court held that because Morrison's former employer paid all fees associated with the litigation, Morrison did not "pay" or "incur" fees, as required by Sec. 7430. However, the USCA held that an individual may "incur" fees even if those fees are paid initially by a third party. It thus reversed the Tax Court's holding to the contrary and remanded for further proceedings. Hug, Paez, and Berzon (author), Circuit Judges. W. Taggert of Oakland, CA, for the petitioner; E. O'Connor of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 2) TAXATION: Xilinx, Inc. v. CIR, 06-74246
(9th Cir. May 27, 2009). At issue here was whether, under the tax regulations
in effect during tax years 1997, 1998, and 1999, related companies engaged in
a joint venture to develop intangible property must include the value of certain
stock option compensation one participant gives to its employees in the pool or
costs to be shared under a cost sharing agreement, even when the companies operating
at arm's length would not do so. The tax court found that related companies are
not required to shard such costs and ruled that the CIR's attempt to allocate
such costs was arbitrary and capricious. The USCA held that: (1) related companies
in a cost sharing agreement to develop intangibles must share all costs related
to the joint venture, even if unrelated companies would not do so; (2) stock options
for which companies claim tax deductions are a cost under former 26 CFR Sec. 1.482-7(d)(1);
and (3) such costs are "related to" the intangible products development,
as part of the compensation package offered to employees involved in activities
under the joint venture. Dissenting, Judge Noonan thought the majority had converted
a cannon of construction into something like a statute and ignored the international
context and Treasury's own practice. He would resolve the conflict based on the
dominant purpose of the regulations, aided by the basic rule that ambiguous documents
are to be interpreted against the drafter and further enlightened by the way the
Treasury has proceeded in drafting tax treaties relevant to American parents and
their foreign subsidiaries. Reinhardt, Noonan (dissenting), and Fisher
(author), Circuit Judges. R. Schrotenboer of Mountain View, CA, for the
petitioner; G. Rothenberg of Washington, DC, for the respondent. (Download
the full text of this decision at www.ce9.uscourts.gov/)
4) BANKRUPTCY: In re Boyajian, 07-55713 (9th Cir. May 1, 2009). New Falls Corporation brought an adversary proceeding in bankruptcy court seeking a declaration that a default judgment owed by the Boyajians is non-dischargeable under 11 USC Sec. 523(a)(2)(B). The judgment was based on a claim that the Boyajians failed to satisfy their obligations under a lease agreement. Al-though the judgment was entered in favor of New Falls's predecessor-in-interest, New Falls argued that it was assigned all rights to the judgment, including that of non-dischargeability under Sec. 523(a)(2)(B). The bankruptcy court held that as New Falls had not itself relied on the Boyajians' financial statements, its claim of non-dischargeability under Sec. 523(a)(2)(B) failed as a matter of law. The BAP reversed, holding that New Falls stood in the shoes of its predecessor and could state a claim for non-dischargeability under Sec. 523(a)(2)(B) based upon its predecessor's reliance. The USCA affirmed the BAP's judgment. Wardlaw, W. Fletcher (author), and Paez, Circuit Judges. H. Madris of Los Angeles, CA, for the appellant; J. Del Monte of Encino, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 5) BANKRUPTCY: In re Lorber Industries of California, 07-56227 (9th Cir. May 4, 2009). At issue here was a statutorily imposed obligation of the debtor, Lorber Industries, to the California Self-Insurers' Security Fund for reimbursement of workers' compensation benefits that the Fund paid on Lorber's behalf. The specific issues were (1) whether the reimbursement amounts owed to the Fund qualify as an excise tax; and if so (2) whether the transaction giving rise to the excise tax occurred in the three years preceding Lorber's bankruptcy petition. The USCA held that the Fund's reimbursement claim did not qualify as an excise tax. It thus did not need to address when the transaction giving rise to the tax occurred. The USCA affirmed the BAP's holding denying priority to the Fund's claims. Farris and Wardlaw, Circuit Judges, and Schwarzer (author), District Judge. D. Sovocool of San Francisco, CA, for the appel-lant; J. Eisenberg of Los Angeles, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 6) BANKRUPTCY: In re Consolidated Freightways Corp., 07-56720 (9th Cir. May 6, 2009). K. Morgan Enterprises, Inc., Trustee of the Trust of Certain Creditors of Consolidated Freightways Corporation and Certain Affiliates appealed from a decision of the district court affirming a determination by the bankruptcy court regarding certain claims of priority made by Aetna, Inc. Aetna claimed priority for "claims for contributions to an employee benefit plan. 11 USC Sec. 507(a)(5). The bankruptcy court agreed with Aetna and accorded priority. The USCA affirmed in part, reversed in part, and remanded for further proceedings. It disagreed with the bankruptcy court's determination that individuals who did not render services within the 180-day period are to be counted in determining the number of employees and are entitled to a priority claim under Sec. 507(a)(5). However, it agreed with the bankruptcy court that the recovery cap under Sec. 507(a)(5) is to be treated as an aggregate cap. Fernandez (author), Silverman, and Callahan, Circuit Judges. D. Neale of Los Angeles, CA, for the appellant; R. Gebhard of San Francisco, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 7) BANKRUPTCY: In re Egebjerg, 08-55301 (9th Cir. May 29, 2009). In this direct appeal, Egebjerg challenged the bankruptcy court's dismissal of his Chapter 7 petition for abuse under 11 USC Sec. 707(b)(3). In an issue of first impression in the Ninth Circuit under the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA"), the USCA considered whether a debtor's repayment of a 401(k) loan constitutes a "monthly payment on account of secured debts" or an "other necessary expense" that can be deduced from a debtor's monthly income for purposes of calculating the debtor's disposable monthly income under Sec. 707(b)(2). Because the USCA concluded that it is not, the debtor's filing in this case was presumptively abusive under the "means test" of Sec. 707(b)(2). The USCA thus affirmed the bankruptcy court's dismissal of his Chapter 7 petition. Hawkins (author), Berzon, and Clifton, Circuit Judges. M. Totaro of Pacific Palisades, CA, for the debtor; K. Corkran of Washington, DC, for the trustee. (Download the full text of this decision at www.ce9.uscourts.gov/) 8) COMMERCE CLAUSE: National Ass'n of Optometrists, LensCrafters, and Eye Care Centers of America v. Brown, 07-15050 (9th Cir. May 28, 2009). At issue in this case was whether portions of certain California statutes and regulations violate the "dormant" Commerce Clause. The challenged laws prevent licensed opticians from having specified business relationships with or offering services in the same locations as licensed optometrist and ophthalmologists. The district court granted summary judgment for the plaintiffs and entered a declaratory judgment that California Business & Professions Code, Secs. 655, 2556 and 3103, and 16 Cal. Code of Regs. Title 16 Secs. 1399.251 and 1514, are unconstitutional because they violate the dormant aspect of the Commerce Clause of the U.S. Constitution to the extent that individually, or together, they prohibit optical companies from offering prescription eyewear at the same location in which eye examinations are provided, and from advertising that eyewear and eye examinations are available in the same location. The district court then permanently enjoined the defendants from enforcing those statues and regulations so as to prohibit optical companies from offering prescription eyewear at the same location in which eye examinations are provided, and from advertising that eyewear and eye exams are available in the same location. The USCA reversed, finding that the district court erred in ruling that the California statutes and regulations discriminate against out-of-state entities in violation of the dormant Commerce Clause. It remanded for the district court to apply the balancing test of Pike v. Bruce Church, Inc., 397 US 137, 142 (1970). The dis-trict court had not applied the Pike balancing test as it had concluded that the laws had a discriminatory effect on the plaintiffs. Hug (author), Paez, and Berzon, Circuit Judges. DAG J. Weck of San Diego, CA, for the defendant-appellant; L. Schechter of San Fran-cisco, CA, for the plaintiffs-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 9) COMMERCE CLAUSE / BODY ARMOR: USA v. Alderman, 07-30186 (9th Cir. May 12, 2009). This case raised an issue of first impression in the Ninth Circuit: whether Congress has the authority under the Commerce Clause of the U.S. Constitution, Art. 1, Sec. 8, cl. 3, to criminalize the possession by a felon of body armor that has been "sold or offered for sale in interstate commerce." 18 USC Secs. 931 and 921(a)(35). That is, does the sale of body armor in interstate commerce create a sufficient nexus between posses-sion of the body armor and commerce to allow for federal regulation under Congress' Commerce Clause authority? Under Scarbor-ough v. USA, 431 US 563, 575, 577 (1977), in the context of Title VII of the Omnibus Crime Control Act, proof that a firearm traveled in interstate commerce satisfies the required nexus between possession of the firearm and commerce. In addition, USA v. Cortes, 299 F.3d 1030, 1037 n.2 (9th Cir. 2002), upheld a carjacking statute and stated that "the vitality of Scarborough engenders significant debate," but "until the Supreme Court tells us otherwise … we follow Scarborough unwaveringly." The USCA affirmed and declined to embrace Alderman's challenge to Sec. 931. It found itself bound by the precedent-absent the Supreme Court or the Ninth Circuit en banc court telling it otherwise-and that the felon-in-possession of body armor statute passes muster. Judge Paez dissented. In his view, felon-possession of body armor does not have a substantial effect on interstate commerce; its prohibition under 18 USC Sec. 931 neither regulates commerce or any sort of economic enterprise nor regulates intrastate, non-economic activity that is essential to a comprehensive federal regulatory scheme. Judge Paez thought the USCA should not overlook these substantial failings and neverthe-less affirm Alderman's conviction under Sec. 931 by enlarging the Pre-USA v. Lopez, 514 US 549 (1995), precedent of Scarborough, merely because a jurisdictional element is present. Judge Paez thought the majority's approach effectively renders the Supreme Court's three-part Commerce Clause analysis superfluous and permits Congress, through the use of a jurisdictional element of any strip, to "convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States. B. Fletcher, McKeown (author), and Paez (dissenting), Circuit Judges. AUSA H. Brunner of Seattle, WA, for the plaintiff-appellee; AFPD B. Tsu-chida of Seattle, WA, for the defendant-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 10) CORPORATIONS / STATUTES OF LIMITATIONS: Hatfield v. Halifax PLC, 07-55790 (9th Cir. May 8, 2009). Hatfield appealed a district court decision granting a motion to dismiss in favor of Halifax PLC and HBOS PLC on statute of limitations grounds. Hatfield's allegations stemmed from a June 2, 1997, transaction in which the Halifax Building Society ("HBS"), of which Hatfield was a member, was converted into a publicly traded company called "Halifax PLC"). Hatfield maintained that she, and simi-larly situated individuals, were deceived into believing that, upon completion of the transaction, they would be entitled to free shares in Halifax PLC. However, they never received those shares. The district court found that Hatfield's claims, brought 8½ years after her cause of action arose, were barred by California's statutes of limitations, which are four years or less for each of Hatfield's claims. On appeal, Hatfield argued that: (1) her action was governed by the English six-year statue of limitations as provided by the choice of law provision in the Transfer Agreement between HBS and Halifax PLC; and (2) the six-year limitations period was tolled by the filing of a previous class action in New Jersey state court, making this action timely. The USCA vacated the district court's decision concerning the untimeliness of Hatfield's action, but only with respect to Hatfield individually and members of the putative class who are California residents. Graber and Clifton, Circuit Judges, and Trager (author), District Judge. E. Isaacson of San Diego, CA, for the plaintiff-appellant; P. Graham of Los Angeles, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 11) FIREARMS DEALERS LIABILITY: Ileto v. Glock, 06-56872 (9th Cir. May 11, 2009). By enacting the Protection of Lawful Commerce in Arms Act ("PLCAA"), Congress protected federal licensed manufactures and sellers of firearms from most civil liability for injuries independently and intentionally inflicted by criminals who use their non-defective products. Under the terms of the PLCAA, the claims brought by the victims of the criminal who shot them against a federally licensed manufacturer and a federal li-censed sellers of firearms had to be dismissed. But the claims brought against an unlicensed foreign manufacturer of firearms could proceed. The USCA thus affirmed. Judge Berzon agreed with the majority that the language of the PLCAA's predicate exception is ambiguous. The interpretation on which the majority settled, however, required deciding a substantial constitutional question: whether, if the PLCAA requires the dismissal of the plaintiffs' pending state cause of action, the statute will unconstitutionally deprive them of a protected property interest. The majority resolved this question by concluding that the PLCAA's mandatory dismissal provision is ra-tionally related to a legitimate government interest and that no heightened level of constitutional scrutiny is warranted. The majority's cursory discussion of the constitutional issue, Judge Berzon thought, belied the sweeping nature of what it reads the PLCAA to do, and the difficult questions of constitutional law required to uphold that reading. Reinhardt, Graber (author), and Berzon (dissenting in part), Circuit Judges. P. Nordberg of La Habra, CA, for the plaintiffs-appellants; C. Renzulli of White Plains, NY, the defendants-appellees; H.T. Byron of Washington, DC, for the intervenor.(Download the full text of this decision at www.ce9.uscourts.gov/) 12) ADMIRALTY: Mazda Motors of America v. M/V Cougar Ace, 07-35787 (9th Cir. May 8, 2009). At issue in this in rem admiralty action was whether the defendant ocean vessel could invoke a forum selection clause in the bills of lading governing ocean carriage on that vessel. The ocean carrier that issued the bills of lading indisputably could have invoked the forum selection clause. The bills of lading also include a "Himalaya clause," whereby anyone assisting in the performing the carriage benefits from any contract provision designed to benefit the carrier. The district court dismissed this case for improper venue. The USCA affirmed, holding, be-cause the vessel assisted in performing the carriage, it is a Himalaya beneficiary that may invoke the forum selection clause. Graber, Fisher (author), and M.D. Smith, Circuit Judges. C. Jordan of Seattle, WA, for the appellants; H. Ray of Seattle, WA, for the appel-lees. (Download the full text of this decision at www.ce9.uscourts.gov/) 13) COMMUNICATONS LAW: Barnes v. Yahoo!, 05-36189 (9th Cir. May 7, 2009). At issue here was whether the Communications Decency Act of 1996 protects an internet service provider from suit where it undertook to remove from its website material harmful to the plaintiff but failed to do so. In late 2004, Barnes broke off a lengthy relationship with her boyfriend. He responded by posting profiles of Barnes on a website run by Yahoo. The profiles contained nude photos of Barnes and her ex-boyfriend, taken without her knowledge, and an open solicitation to engage in sex. Barnes did not authorize her ex-boyfriend to post these profiles. The ex-boyfriend then conduced discussions in Yahoo's online "chat rooms," posing as Barnes and directing male correspondents to the fraudulent profiles he had posted. The profiles also included the addresses, real and electronic, and telephone number at Barnes' place of employment. Before long, men Barnes did not know were peppering her office with emails, phone calls, and personal visits, all in the expectations of sex. Barnes sued Yahoo. The district court granted Yahoo!'s motion to dismiss, finding that the Communications Decency Act rendered it immune from liability in this case. 47 USC Sec. 230(c)(1). The USCA affirmed in part, reversed in part, and remanded. It concluded that, insofar as Barnes alleged a breach of contract claim under the theory of promissory estoppel, Sec. 230(c)(1) of the Act did not preclude her cause of action. Because it reviewed only the affirmative defense Yahoo raised on appeal, it did not reach the questions of whether Barnes had a viable contract claim or whether Yahoo had an affirmative defense under Sec. 230(c)(2). O'Scannlain (author), Graber, and Callahan, Circuit Judges. T. Rask of Portland, OR, for the appellant; P. Carome of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 14) TRUTH IN LENDING / CREDIT CARD: Barrer v. Chase Bank USA, 07-35414 (9th Cir. May 19, 2009). At issue here was whether a credit card company, Chase Bank USA, violated the Truth in Lending Act, when it failed to disclose potential risk factors that allow it to raise a cardholder's Annual Percentage Rate. Around April 2005, the plaintiffs noticed that their APR had "skyrocketed" from 8.99% to 24.24%, the latter a rate close to a non-preferred or default rate. None of the events of default specified in the Agreement, however, had occurred. Chase raised the APR due to of information obtained from a consumer credit reporting agency. In particular, it said that "outstanding credit loan(s) on revolving accounts…[were] too high" and there were "too many recently opened installment / revolving accounts." The plaintiffs did not dispute the facts underlying Chase's judgments. They paid the interest on the credit account at the new rate for three months before they were able to pay off the balance. They then brought a class action against Chase in federal court. They did not claim that Chase's practice itself was illegal, but that it was illegal for Chase not to disclose it fully to them or to other members of the putative class. Chase moved to dismiss the cause of action for failure to state a claim under the Act, or alternatively to compel arbitration in accordance with the terms of the Agreement's arbitration provision. The magistrate recom-mended in favor of Chase on both motions. Because the district court agreed that the plaintiffs' cause of action should be dismissed, and their case with it, it never reached the magistrate's recommendation regarding Chase's motion to compel arbitration, but simply entered judgment for Chase. The USCA reversed and remanded. The plaintiffs stated a claim as Chase could not show that, as a matter of law, the Agreement made clear and conspicuous disclosure of the APRs Chase was permitted to use. Judge Graber concurred in the majority's opinion, except as to Parts III.A and IIIB.2.a. She thought that display (e.g., the size and font of the print) and placement were not the only defects in the Chase Agreement, and would have held that that the disclosures were unclear and inconspicuous and also substantively insufficient under Regulation Z. 12 CFR Secs. 226.6(a), 226.5(a)(1), and 226.5(c). O'Scannlain (author), Graber (dissenting in part), Bybee, Circuit Judges. M. Braun of Los Angeles, CA, for the appellants; N. Thomas of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 15) INSURANCE LAW: Evanston Insurance Company v. OEA, Inc., 07-15316 (9th Cir. May 21, 2009). OEA appealed the district court's final judgment, incorporating its orders of September 22, 2003 and March 30, 2004, granting summary judgment for Evanston Insurance Company and Royal Insurance Company and awarding prejudgment interest to Evanston. The insurance policies at issue were general commercial liability policies, with Royal's policy providing excess coverage above the Evanston policy. The district court determined that Evanston and Royal were not obligated to defend and indemnify OEA in two actions brought by employees of OEA's subsidiary OEA Aerospace, and that Evanston was entitled to reimbursement of and prejudgment interest on funds it had paid toward OEA's defense and settlement pursuant to a reservation of rights. On appeal, OEA maintained that the district court erroneously decided a disputed issue of fact in granting summary judgment for Evanston and Royal and that the district court erred in awarding prejudgment interest for Evanston where OEA's liability was not established until the grant of summary judgment. Because the reim-bursement to Evanston and the award of prejudgment interest were proper, the USCA affirmed. Hug (author), Reinhardt, and Tashima, Circuit Judges. J. Ehrlich of Claremont, CA, for the appellant; D. Tartaglio of Los Angeles, CA, and D. Schenkhan of San Francisco, CA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 16) INSURANCE / RACE DISCRIMINATION: Ojo v. Farmers Group, Inc., 06-55522 (9th Cir. May 12, 2009). Ojo, on behalf of himself and all others similarly situated, appealed the district court's dismissal under Fed. R. Civ. P. 12(b)(1) of a class action suit brought against Farmers Group and its affiliated, subsidiaries, and reinsurers. The complaint alleged disparate impact race discrimination in violation of the federal Fair Housing Act ("FHA"). Ojo, an African-American resident of Houston, Texas, alleged that Farmers used "undisclosed factors" to compute credit scores and to price homeowners insurance policies, with the result that it "charged minorities higher premiums for homeowners' property and casualty insurance that [it] charged to similarly situated Caucasians." Farmers moved to dismiss the complaint under 12(b)(1) for lack of subject mater jurisdiction under 12(b)(6) for failure to state a claim. The district court granted Farmers' 12(b)(1) claim on the grounds it was reverse-preempted by the McCarran-Ferguson Act. The USCA reversed. The district court erred in two respects: First, it erroneously read Ojo's claim as challenging the practice of credit scoring per se; second, it erroneously interpreted Texas insurance law as permitting disparate impact race discrimination that results from credit scoring, thereby triggering McCarran-Ferguson reverse-preemption. Judge Bea dissented. He noted that Bell Atlantic, Inc. v. Twombly, 127 S.Ct 1995 (2007), laid down the rules for class action pleading. Class action litigation is too expensive to allow a plaintiff to engage in discovery unless the plaintiff can in good faith allege the defendant has done something prohibited by law. Ojo had not done so. For that reason, Judge Bea would affirm the district court. Bright, Pregerson (author), and Bea (dissenting), Circuit Judges. S. Svetcov of San Francisco, CA, for the appellants; H. Posner of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 17) ENVIRONMENT LAW: Tucson Herpetological Society v. Salazar, 07-16641 (9th Cir. May 18, 2009). Conservation groups and individual biologists (collectively "plaintiffs") claimed that the Secretary of the Interior's decision to withdraw a rule proposing that the flat-tailed horned lizard be listed as a threatened species was contrary to the requirements of the Endangered Species Act ("ESA") and the Administrative Procedure Act ("APA"). They appealed the district court's order granting the Secretary summary judgment. The USCA reversed in part and remanded to the district court with instructions to remand to the Secretary so that the Secre-tary could reconsider whether to withdraw the proposed listing. Judge Noonan thought the problems in this case were exacerbated by the absence of information: How many flat-tailed horned lizards are there? Apparently, no one knows. If the Secretary does not know what the lizard population was to begin with, or what it was in 1993 when he first proposed listing the species, or what it is now, how will he know if it is increasing, staying the same, or declining? Judge Noonan thus concurred in the majority opinion insofar as it re-jected the plaintiffs' claims. He also dissented from the remand whose command to the Secretary was simply "Guess again." Noonan (dissenting in part), Tashima (author), and W. Fletcher, Circuit Judges. N. Levine of Denver, CO, for the appellants; S. Sankar of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 18) ENVIRONMENT LAW: Siskiyou Regional Education Project, 06-35332 (9th Cir. May. 7, 2009). Siskiyou Regional Education Project ("SREP") and intervenor miners Barton and Hobbs appealed the district court's rulings in favor of the U.S. Forest Service on claims brought in connection with the Service's interpretation of Mineral Management Standard and Guideline MM-1, a mining-related directive contained in the Service's Northwest Forest Plan ("NFP"). Because 36 CFR Sec. 228.4(a) (2002), a Service mining regulation, conflicted with MM-1 as to the amount of regulatory oversight required for small mining operations in riprarian reserves, the Service interpreted MM-1 to impose the same threshold standard for a plan of operations as Sec. 228.4(a). The district court rejected SREP's challenge to this interpretation of MM-1, and granted the Service summary judgment. It also limited intervention by Barton and Hobbs to the remedial phase of the litigation, if necessary. Finally, it dismissed as moot Barton's separate action that had been consolidated with SREP's suit, and struck Hobbs' Answer to SREP's First Amendment Complaint on the ground that it raised claims that exceeded Hobbs' limited role in the litigation. The USCA affirmed both the district court's grant of summary judgment in favor of the Service, and its rulings regarding Barton and Hobbs. Rymer, T.G. Nelson, and Paez (author), Circuit Judges. P. Frost of Eugene, OR, for the appellant; S. Woolridge of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 19) PROPERTY / EMINENT DOMAIN: Kearney v. Foley &
Lardner, LLP, 07-55566 (9th Cir. May 12, 2009). Kearney appealed the district
court's dismissal of the federal and state law claims she filed against a representative
of the Ramona Unified School District ("RUSD") and the law firm that
represented RUSD (collectively "defendants") in an earlier eminent domain
proceeding regarding her property. As to Kearney's federal law claims, since Noerr-Pennington
immunity did not apply to the defendants' actions, the USCA vacated the district
court's judgment and remanded so that those claims could be heard. As to Kearney's
state law claims, the USCA affirmed the district court on all but the spoliation
of evidence claim, which it remanded for a determination of when Kearney discov-ered
the evidence. Pregerson and Hall, Circuit Judges, and Ezra (author), District
Judge. J. Wheeler of San Diego, CA, for the appel-lant; S. Galanter of Washington,
DC, and M. Zebrowski of San Diego, CA, for the appellees. (Download
the full text of this decision at www.ce9.uscourts.gov/)
21) ERISA: Poore v. Simpson Paper Company, 05-36060 (9th Cir. May 21, 2009) (The opinion in this case filed Sept. 22, 2008 has been withdrawn and this opinion filed in its place.) Simpson Paper owned and operated the Evergreen Mill in Oregon from 1990 until 1996, when it closed. The plaintiffs here are former workers in the mill, who retired at ages over 55 but under 65, and the dependent spouses (collectively "retirees"). The Association of Western Pulp and Paper Workers (the "Union") represented the hourly employees at the mill, including the retirees, from the 1970s through the time of the mill's closure. Three collective bargaining agreements were in force during the time Simpson owned the mill: 1990-93, 1993-95, and 1995-2001. All three CBAs incorporated by reference a benefit booklet and the benefits Simpson provided therein remained substantially the same through the lives of the CBAs. In 2002, Simpson notified all retirees that it intended to phase out, and eventually eliminate, retirement health benefits. On July 1, 2004, it carried out this intention and stopped providing retirement health benefits. This action followed. The retirees maintained that Simpson breached its duties under ERISA by terminating health benefits without having obtained the Union's agreement or having bargained to impasse. They also asserted breach of contract claims under the Labor Management Relations Act, arguing that Simpson violated its obligations under the CBAs. The district court granted summary judgment to Simpson, concluding that the early retirees had no vested right to the benefits they sought. But, as it was unclear whether Simpson negotiated as required by the CBAs, the USCA reversed in part the grant of summary judgment in its favor and remanded. It affirmed the grant of summary judgment as to the retirees' claims of breach of fidu-ciary duty and estoppel. O'Scannlain (author), Graber, and Callahan, Circuit Judges. T. Doyle of Portland, OR, for the appellant; D. Parker of Anchorage, AK for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 22) EMPLOYMENT DISCRIMINATION: Browning v. USA, 07-35557 (9th Cir. May 22, 2009). At issue here was whether a district court's refusal to give a permissive jury instruction regarding pretext in an employment discrimination case constituted reversible error. The USCA reaffirmed that so long as the jury instructions set forth the essential elements that the plaintiff must prove, the district court did not abuse its discretion in declining to give an instruction explicitly addressing pretext. The district court did not abuse its discretion in rejecting Browning's more explicit pretext instruction. Graber, Fisher (author), and M.D. Smith, Circuit Judges. B. Creighton of Portland, OR, for the plaintiff-appellant; AUSA K. Zusman of Portland, OR, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 23) WORKERS' COMPENSATION: Dyer v. Cenex Harvest States
Coop., 07-73549 (9th Cir. May 1, 2009). Dyer prevailed in a workers' compensation
claim under the Longshore and Harbor Workers' Compensation Act ("LHWCA").
He then sought attorneys' fees pursuant to LHWCA Sec. 28(a). The Benefits Review
Board ("BRB") held that he was entitled to recover only those fees incurred
after his employer, Cenex Harvest States Cooperative ("Cenex"), refused
to pay his claim. The BRB held that Dyer was not entitled to recover attorneys'
fees for the period between his injury and Cenex's refusal. In the jargon of this
area of the law, the BRB allowed fees for the post-controversion period but denied
fees for the pre-controversion period. The BRB also affirmed the District Director's
reduction of Dyer's lawyer's requested hourly rate from $350 to $235. On review,
the USCA held that Dyer was entitled to both pre- and post-controversion fees,
but it did not decide the proper hourly rate for Dyer's attorney. It thus vacated
and remanded so that the BRB could decide that issue under the principles articulated
in Christensen v. Stevedoring Services, 557 F.3d 1049 (9th Cir. 2009), and Van
Skike v.OWCP, 557 F.3d 1041 (9th Cir. 2009). W. Fletcher (author) and
Fisher, Circuit Judges, and Roll, District Judge. C. Robi-nowitz of Portland,
OR, for the petitioner; J. Dudrey of Portland, OR, for the respondents. (Download
the full text of this decision at www.ce9.uscourts.gov/)
25) FALSE CLAIMS ACT: Meyer v. Horizon Health Corp., 06-17084 (9th Cir. May 14, 2009). In 2000, qui tam relators Meyer, Szerlip, and Weatherford sued Horizon Health Corporation, Summit Medical Center, and Dr. Grewal (collectively "appellees"), asserting claims under the qui tam provisions of the False Claims Act. The gravamen of their allegations was that the appellees fraudulently billed Medicare for patient services. Specifically, they maintained that the appellees admitted patients to Horizon's Senior Bridge program despite knowing that those patients, who suffered from dementia, could not benefit from the program. On appeal, they maintained that the district court erred by granting the appellees' motion to dismiss for lack of subject-matter jurisdiction. The principal issues on appeal related to whether the relators' fraud allegations were based on a public disclosure, and, if so, whether the relators were the original source of those allegations. The USCA affirmed the district court's dismissal of the Third Amended Complaint with prejudice and denied the appellees' motion to strike certain matters sought to be presented by the relators. Judge Reinhardt agreed with the majority that the Weatherford suit constituted a public disclosure, thereby triggering the requirement that the relators be "original sources" in order to proceed with their qui tam suit. However, he disagreed with the majority's assessment of the record, and con-cluded that Szerlip met her burden of showing "original course" status, thereby establishing jurisdiction by a preponderance of the evi-dence. Bright (author), Reinhardt (dissenting), and Tashima, Circuit Judges. S. Wright of San Rafael, CA, for the plaintiffs-appellees; T. Brown of Los Angeles, CA, and S. Hanson of San Francisco, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 26) HEALTH CARE / INSURANCE: Bova v. City of Medford,
08-35091 (9th Cir. May 4, 2009) (The memorandum disposition filed March 6, 2009
has been redesignated an authored opinion.) This appeal concerns the City of Medford's
policy of discontinuing health care insurance coverage to City employees after
that have retired from City service. The plaintiffs are current employees of the
City who have not yet retired, and thus who have not yet been denied benefits,
but who seek injunctive and declaratory relief from the City. The USCA dismissed
their claims as unripe. In a related case, Doyle v. City of Medford, 07-35753,
retired City employees as-serted the same substantive claims as in this action.
In an order also filed on May 4, 2009, the USCA certified certain questions regard-ing
those substantive claims to the Oregon Supreme Court. Graber (author),
Fisher, and M.D. Smith, Circuit Judges. S. Brischetto of Portland, OR, for the
plaintiffs-appellants; R. Franz of Springfield, OR, for the defendants-appellees.
(Download the full
text of this decision at www.ce9.uscourts.gov/)
28) IMMIGRATION / REENTRY AFTER DEPORTATION: USA v. Lomeli-Mences, 07-50452 (9th Cir. May 28, 2009). On June 24, 1997, the defendant, a citizen of Mexico, was convicted in a California state court of unlawful sexual intercourse, in violation of California Penal Code Sec. 261.5. In 1998, he was lawfully deported and removed from the United States. In 1999, he reentered without authorization. According to the Presentence Report, on April 16, 2000, the defendant harassed his ex-girlfriend over the phone, sexually assaulted her, and then attempted to bribe her not to testify against him. Six years later, On August 5, 2006, police officers recognized the defendant as the subject of a felony warrant relating to the 2000 incident with his ex-girlfriend. When they con-fronted him, he provided a false name and fraudulent identification. The officers arrested him both for false imprisonment of the ex-girlfriend in 2000 and for "false personation," that is, presenting fake identification. The defendant pleaded guilty to entering the U.S. after having been deported, in violation of 8 USC Sec. 1326(a) and (b)(2). The plea agreement provided that immigration authorities found the defendant in San Bernardino County, California, on or about April 23, 2007. On appeal, the defendant raises two arguments challenging the district court's calculation of his sentence under the Sentencing Guidelines: (1) the district court abused its discretion in finding that his prior conviction for false imprisonment and false personation were not "related" for purposes of calculating his criminal history score; and (2) the district court erred in asserting criminal history points for those two offenses, because the defendant was sentenced for them after he committed the instant offense. The USCA disagreed with both contentions and affirmed. Having admitted to the April 23, 2007 date in both his written plea agreement and oral change of plea proceedings, the defendant could not later argue that he was "found in" the U.S. on a different date. He did not challenge the April 23, 2007, date at the plea agreement stage; by signing the plea agreement, he waived his objections and became bound by the facts recited therein. As of that date, he was under a criminal justice sentence for the 2006 offenses; the three-point increase under Guideline Secs. 4A1.2(d) and (e) thus was warranted. The USCA remanded the matter to the district court with instructions to correct the judgment of conviction to exclude the reference to 8 USC Sec. 1326(b)(2). Pregerson, Graber (author), and Wardlaw, Circuit Judges. R. Harley of Santa Ana, CA, for the defendant-appellant; AUSA J. Behnke of Riverside, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 29) IMMIGRATION / REENTRY AFTER DEPORTATION: USA v. Heron-Salinas, 08-50276 (9th Cir. May 20, 2009). The defendant appealed the district court's denial of his motion to dismiss his indictment for attempted entry into the U.S. after deportation. He maintained that his underlying deportation was invalid under 8 USC Sec. 1326(d) because his conviction for assault with a firearm under California Penal Code Sec. 245(a)(2) was not a "crime of violence," as that term is defined in 18 USC Sec. 16. The USCA af-firmed. It previously held that aiding and abetting assault with a deadly weapon in violation of California Penal Code Sec. 245(a)(1) is categorically a crime of violence under Sec. 16, and that an alien convicted of that crime is an aggravated felon under 8 USC Sec. 1101(a)(43)(F). Sections 245(a)(1) and 245(a)(2) proscribe the same conduct, the only difference bring the type of weapon involved. On appeal, the USCA held that a conviction for assault with a firearm under Sec. 245(a)(2) is categorically a "crime of violence" and an "aggravated felony" for immigration purposes. Noonan, O'Scannlain, and Graber, Circuit Judges. Per Curiam. J. Coon of San Diego, CA, for the appellant; AUSA N. Jones of San Diego, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 30) IMMIGRATION / REENTRY AFTER REMOVAL: USA v. Medina-Villa, 07-50396 (9th Cir. May 28, 2009). Once again, Medina-Villa was convicted of attempted reentry into the U.S. after removal in violation of 8 USC Sec. 1326. He was sentenced to a 60 month term of imprisonment and three years of supervised release, following a 16-level increase in his offense level for a prior conviction under California Penal Code Sec. 288(a), which criminalizes lewd and lascivious acts on a child under fourteen. At issue was whether, in light of Estrada-Espinoza v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc), a conviction under Sec. 288(a) constitutes "sexual abuse of a minor," qualifying it as a "crime of violence" that warrants the 16-level increase under Sentence Guideline Sec. 2L1.2. The USCA held that it does. The USCA also had to decide whether the district court erred in denying (1) Medina-Villa's motion to dismiss the indictment grounded in the government's deportation of material witnesses without first informing Medina of his right to retain them, and (2) Medina-Villa's motion to suppress his initial statements to the field agent for failure to give Miranda warnings. The USCA affirmed the district court's rulings and, under Almendarez-Torres v. USA, 523 US 224 (1998), rejected Medina-Villa's argument on appeal that his conviction and sentence were unconstitutional. Because Estrada-Espinoza did not overrule Ninth Circuit precedent holding that a conviction under Sec. 288(a) constitutes "sexual abuse of a minor' and was thus a "crime of violence," the district court correctly calculated Medina-Villa's sentence under Sec. 2L1.2. The district court properly denied Medina-Villa's motion to dismiss the indictment for failure to inform Medina-Villa of his right to retain witnesses because Medina did not have a right to retain the two witnesses, whose proposed testimony was not favorable to Medina-Villa. The district court also correctly denied Medina-Villa's motion to suppress his filed statements for failure to give Miranda warnings because, given the nature and circumstances of the border patrol's inquiry, Medina-Villa was not in custody and thus not entitled to Miranda warnings. Finally, pursuant to Almen-darez-Torres, Medina-Villa's Sec. 1326 conviction and sentence did not violate Apprendi. Pregerson, Graber, and Wardlaw (author), Circuit Judges. M. Anderson of San Diego, CA, for the defendant-appellant; AUSA M. Rehe of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 31) IMMIGRATION: Escobar v. Holder, 07-72843 (9th Cir. May 27, 2009). At issue here was whether Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005), compels the conclusion that a parent's status as an alien lawfully admitted for permanent residence may be imputed to an unemancipated minor child residing with that parent, for purposes of satisfying the five-year permanent residence requirement for cancellation of removal under Sec. 240A(a)(1) of the Immigration and Nationality Act ("INA"). The USCA concluded that it does because the rationale and holding of Cuevas-Gaspar apply equally to the five-year permanent residence and the seven-year continuous residence requirements. Viewing Sec. 240A in the context of the INA, Cuevas-Gaspar compels the conclusion that the BIA's interpretation of Sec. 240A(a)(1) was unreasonable. In so holding, the USCA did not guarantee that Escobar and others in her situation could remain in the United States. On the contrary, the USCA merely granted access to the possibility of cancellation of removal, leaving the ultimate determination to the sound discretion of the Attorney General. Judge Graber concurred but wrote separate to express her concerns with both the BIA's current rule and the holding in Cuevas-Gaspar. Farris, Graber (concurring), and Wardlaw (author), Circuit Judges. C. Stender of San Diego, CA, for the petitioners; C. Federighi of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 32) IMMIGRATION: Robleto-Pastora v. Holder, 07-71492 (9th Cir. May 27, 2009). The petitioner is a native and citizen of Nicaragua who entered the U.S. in 1984, was granted asylum, then adjusted status to that of lawful permanent resident in 1988. Following his 2005 forgery conviction in Oregon state court, he was ordered removed as an aggravated felon pursuant to sections 237(a)(2)(A)(iii) and 101(a)(43)(R) of the Immigration and Nationality Act ("INA"). He petitioned for review of the removal order and the denial of his motion to reconsider that order. The USCA denied both petitions. It found that the BIA did not err in denying the petitioner's applications for asylum and withholding of removal under the INA and the Convention Against Torture. Moreover, it held that the petitioner retained his status as a lawful permanent resident during the removal proceedings, and thus was not covered by INA Sec. 208(c)'s termination provisions and its attendant regulations. The USCA also concluded that, as an alien with lawful permanent resident status, the petitioner was not eligible to seek relief from removal under INA Sec. 209(b) in connection with a waiver of inad-missibility under Sec. 209(c). Finally, the USCA held that the denial of the petitioner's request for a continuance did not amount to a due process violation. Beezer, Gould, and Callahan (author), Circuit Judges. P. Smith of Portland, OR, for petitioners; G. Katas of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 33) IMMIGRATION: Brezilien v. Holder, 06-73693 (9th Cir. May 12, 2009). The petitioner, a native and citizen of Haiti, sought review of the final decision of the Board of Immigration Appeals ("BIA") sustaining the government's appeal of an Immigration Judge's ("IJ") grant of asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). The IJ initially found Brezilien removable under 8 USC Sec. 1182(a)(2)(A)(i)(I), as an alien who had been convicted of a crime involving moral turpitude. Appearing pro se, the petitioner conceded removability but applied for asylum, withholding of removal and CAT relief. He asserted a fear of future persecution on account of his ties to former Haitian president Aristide and the Lavalas political party, and a fear of torture on account of his criminal status in the U.S., which he argued would subject him to indefinite detention in deplorable conditions in Haiti. On three separate occasions, the IJ granted the petitioner relief from removal. The government appealed the IJ's rulings to the BIA, and each time the BIA reversed the IJ's decision. The BIA held that the petitioner's fear of future persecution was speculative, that he could avoid harm through internal relocation, and that there was no pattern or practice of persecution or Aristide or Lavalas supporters in Haiti. The USCA agreed with the petitioner's main argument that the BIA violated its own regulations, 8 CFR Sec. 1003.1(d)(3)(i)-(iii), when it engaged in factfinding to deny the petitioner asylum, withholding, and CAT claims. The BIA also improperly reversed the IJ's factual finding, without applying the "clearly erroneous" standard of review, that the petitioner and his family suffered persecution because of their ties to the Lavalas party. The BIA's errors of law required that the petition be granted and the matter remanded for further proceedings. Paez (author) and Berzon, Circuit Judges, and Baer, District Judge. R. Jobe of San Francisco, CA, for the petitioner; P. Keisler of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 34) IMMIGRATION: Barrios v. Holder, 06-74983 (9th Cir. May 27, 2009). Barrios, a native and citizen of Guatemala, petitioned for review of the BIA's affirmance of the IJ's denial of his application for asylum, withholding of removal, relief under the Convention Against Torture ("CAT"), and special rule cancellation of removal under Sec. 203 of the Nicaraguan Adjustment and Central American Relief Act ("NACARA"). The USCA held that Barrios was ineligible for asylum and withholding of removal because his refusal to join a gang did not make him a member of a particular social group or constitute a political opinion. It also held as a matter of first impression that Barrios was not entitled to NACARA relief because a minor who seeks relief as a derivative must personally satisfy the Act's requirement of seven years of continuous physical presence. Barrios' father's physical presence in the U.S. could not be imputed to him to satisfy this requirement. The USCA did not reach Barrios' CAT claim as he waived it by failing to include it in his opening appellate brief. Farris, Graber, and Wardlaw (author), Circuit Judges. A. Kazaryan of Glendale, CA, for the petitioner; J. Blakely of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 35) IMMIGRATION / HABEAS CORPUS: Negrete v. Holder, 08-15543 (9th Cir. May 12, 2009). The Cisneroses appealed from the district court's dismissal for lack of jurisdiction of their habeas petition challenging the BIA's denial of their motion to reopen their immigration proceedings. Both petitioners are Mexican citizens who entered the U.S. without inspection in 1989 and have lived here since. Their youngest child, Herbert, was born in the U.S. and is thus a U.S. citizen. In removal proceedings, the Cisneroses applied for cancellation of removal under the Immigration and Nationality Act, arguing that removal would result in exceptional and extremely unusual hardship to Herbert. The Immigration Judge rejected this claim. The BIA affirmed the IJ's decision. After the BIA's decision, Herbert was diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD"). The Cisneroses moved to reopen their case before the BIA, citing In re Monreal, 23 I&N Dec. 56, 63 (BIA 2001), which held that a citizen child with "compelling needs in school" met the exceptional and extremely unusual hardship standard justifying cancellation of removal. The BIA denied the motion, ruling that the Cisneroses had not show new evidence that established a prima facie case of exceptional and extremely unusual hardship because they did not show that Herbert's ADHD was "so severe that it would cause significant problems at home or at school" or that treatment for ADHD was unavailable in Mexico. The Cisneroses then filed a habeas petition in district court, claiming that the BIA violated their due process rights by failing to follow its own precedent in rejecting their claims. They argued that because the court of appeals lacks jurisdiction over direct appeals of denials of motions to reopen under Fernandez v. Gonzales, 439 F.3d 592, 603-04 (9th Cir. 2006), the Suspension Clause dictates that the district court must have habeas jurisdiction over their claims despite the jurisdiction striping provisions of the REAL ID Act. The USCA affirmed, finding that this argument misread its precedent. McKeown and Ikuta, Circuit Judges, and Block, District Judge. Per Curiam. S. Brazelton of Reno, NV, for the petitioner; AUSA A. Hemesath of Sacramento, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 36) CIVIL RIGHTS: Labor / Community Strategy Center v. L.A. County Metropolitan Trans. Authority, 06-56866 (9th Cir. May 5, 2009). This appeal arose after 14 years of litigation in Los Angeles County. In 1994, the Labor/Community Strategy Center and other County community organizations and local residents (collectively the "Bus Riders Union" or "BRU"), brought a civil rights class action against the County's Metropolitan Transit Authority, charging the MTA with unlawfully discriminating against "inner-city and transit dependent bus riders" in its allocation of public transportation resources. The case did not go to trial; rather, in 1996, the parties agreed to, and the district court approved, a consent decree that committed MTA to implementing "a detailed plan to improve bus service." The district court's jurisdiction over the decree was explicitly set to expire in ten years. Shortly before the tenth anniversary of the decree, BRU moved to extend the duration of the decree on the grounds that MTA had allegedly failed to comply with the decree's overcrowding provision. BRU also sought civil contempt sanctions against MTA for MTA's alleged failure to comply with a 2004 remedial order. Ruling that MTA had substantially complied with the decree, the district court denied BRU's motion seeking these remedies and allowed the decree to expire. The USCA held that the district court did not abuse its discretion in denying BRU's motion to extend the decree and for contempt sanctions. It thus affirmed the district court's decision in all respects. Dissenting, Judge Berzon thought the defendants failed to comply with the consent decree and that the associated orders from the Special Master spelled out in detail the method by which the parties agree to measure bus overcrowding and define performance targets MTA is required to meet. Schroeder, Silverman (author), and Berzon (dissenting), Circuit Judges. K. Lockwood of Washington, DC, for the appellants; C. Mankey of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 37) CIVIL RIGHTS: Tibbetts v. Kulongoski, 07-36067 (9th Cir. May 29, 2009). Oregon Governor Kulongoski appealed a district court's order denying his motion for summary judgment on the grounds of qualified immunity. The plaintiffs, former employees of the State Accident Insurance Fund, bought this action pursuant to 42 USC Sec. 1983, alleging that Kulongoski violated their Fourteenth Amendment due process rights by making stigmatizing statements about them in two press releases without providing them name-clearing hearings. Because the relevant parameters of a Fourteenth Amendment right to a name-clearing hearing were not clear at the time of the allegedly stigmatizing statement, the USCA ruled that a reasonable official in the Governor's position would not have been aware of his alleged obligation to provide name-clearing hearings. It thus reversed the district court and held that the Governor is enti-tled to qualified immunity in this suit. Graber, Fisher, and M.D. Smith (author), Circuit Judges. H. Myers of Salem, OR, for the appel-lant; G. Hartman of Portland, OR, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/) 38) CIVIL RIGHTS / SEARCH & SEIZURES: Millender v. County of Los Angeles, 07-55518 (9th Cir. May 6, 2009). This Sec. 1983 action arose out of a nighttime search and seizure. The district court granted qualified immunity to some defendants on some issues and denied it on others. This interlocutory appeal by the City of Los Angeles and two deputy sheriffs, Messerschmidt and Law-rence, challenged only the district court's denial of qualified immunity on the scope of the search warrant to cover (1) evidence of gang affiliation and (2) all firearms and firearms-related items. The USCA reversed the district court denial of qualified immunity. Even if the record is viewed in a light most favorable to the plaintiffs, the officers were entitled to immunity under the second prong of the test set forth in Saucier v. Katz, 533 US 194, 201 (2001), as they reasonably relied on the approval of the warrant by a deputy district at-torney and a judge. Concurring, Judge Fernandez said he thought the warrant was overbroad and that the search thus violated the plain-tiffs' constitutional rights. But, the officers had not merely acted on their own. They had a warrant, and, in seeking that warrant, they asked a superior officer to review the affidavit and the proposed scope of the warrant. It was approved. It was then submitted to a dep-uty district attorney, who also approved it. Then, it was submitted to a judge for his approval. He signed it with no apparent caveats or misgivings. The officers had done exactly what the courts want them to do. Dissenting, Judge Ikuta noted that while Bowen is allegedly a member of a street gang and he punched, bit and then shot at his girlfriend when she tried to leave him, the assault was incontrovertibly not related to his gang activity. Moreover, the girlfriend identified the weapon used in the crime: a black pump-action, sawed-off shotgun with a pistol grip. She even gave the police a photograph of Bowen holding the shotgun. Instead of seeking a warrant for that shotgun, Messerschmidt sought a warrant for "all handguns, rifles or shotguns of any caliber …." His affidavit provided two grounds for the warrant: (1) Bowen was "a known Mona Park Crip gang member" and (2) Messerschmidt believed that the items sought would be in Bowen's possession and their recovery could be invaluable in the successful prosecution of Bowen and the curtailment of further crimes being committed. However, Judge Ikuta thought that because neither of these statements provided a "substantial basis" for demonstrating "a fair probability that contraband or evidence of a crime will be found in a particular place," no officer of reasonable competence could have thought this affidavit established probably cause to search the items listed in the warrant. Fernandez (concurring), Callahan (author), and Ikuta (dissenting), Circuit Judges. E. Ramirez of Los Angeles, CA, for the defendants-appellants; O. Orange of Los Angeles, CA, for the plaintiffs-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 39) INDICTMENTS / SENTENCING / IMMIGRATION: USA v. Mendoza-Zaragoza, 08-30130 (9th Cir. May 27, 2009). This appeal arose from an arguable ambiguity in cases applying Apprendi v. New Jersey, 530 US 466 (2000), to indictments and sentences under 8 USC Sec. 1326. The USCA here eliminated that ambiguity, and clarified that an indictment charging the illegal reentry of a previously removed alien may support an increased maximum sentence under 8 USC Sec. 1326(b)(2)-a sentence enhancement applicable to aliens removed after an aggravated felony conviction-even if it alleges the date of the prior removal without specifying the relative date of the prior conviction. The date of an alien's removal is the only fact "other than the fact of a prior conviction … that increases the penalty for [the] crime beyond the prescribed statutory maximum" of two years. Apprendi, 530 US at 490. Thus, with the removal date properly established, the district court may determine whether the prior felony conviction predated the defendant's removal. Accordingly, when the indictment alleges the removal date, a district court does not abuse its discretion by requiring the defen-dant to admit his removal date as the factual basis for a guilty plea to the indictment, as the district court required here. B. Fletcher (author), Rymer, and Fisher, Circuit Judges. AFPD R. Pennell of Yakama, WA, for the appellant; AUSA A. Ekstrom of Yakima, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 40) EVIDENCE: USA v. Osazuwa, 08-50244 (9th Cir. May 7, 2009). Defendant Osazuwa was convicted of assaulting a federal prison guard while incarcerated for failing to pay restitution associated with a prior bank fraud conviction. Osazuwa and the guard were the only two eyewitnesses and offered different accounts of events. The government cross-examined Osazuwa concerning his veracity. Osazuwa challenged the government's use, as impeachment evidence, of the facts underlying his bank fraud conviction. The USCA held that the district court abused its discretion in admitting that evidence and, accordingly, reversed and remanded for a new trial. Evidence of a prior conviction of a crime that involves dishonesty may be admissible under Rule 609. But evidence admissible under Rule 609 for impeachment purposes may not include collateral details of the crime of conviction. A defendant does not "open the door" to otherwise inadmissible evidence by doing no more than providing a truthful answer to a direct question. Here, the improperly admitted testimony prejudiced his case. Pregerson, Graber (author), and Wardlaw, Circuit Judges. DFPD E. Newman of Los Angeles, CA, for the defendant-appellant; AUSA D. Kowal of Los Angeles, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 41) EXTRADITION: USA v. Iribe, 07-50432 (9th Cir. May 6, 2009). Iribe entered a conditional guilty plea during trial, to conspir-acy to kidnap and attempt to kidnap Richard Post, in violation of 18 USC Secs. 371 and 1201(d). He reserved the right to appeal with respect to an alleged violation of the doctrine of specialty, which prohibits a requesting nation from prosecuting an extradited individ-ual for any offense other than the one for which the surrendering state agreed to extradite, as well as with respect to the lawfulness of his convictions for both conspiracy to kidnap and attempt to kidnap the same person, whom he actually did kidnap and kill. The USCA held that there was no violation of the doctrine of specialty, because Mexico agreed to Iribe's extradition for these two crimes, and that the district court properly convicted Iribe of both conspiracy and attempt to kidnap Post. The USCA thus affirmed Iribe's convictions. Pregerson, Graber (author), and Wardlaw, Circuit Judges. F. Carroll of San Diego, CA, for the defendant-appellant; AUSA J. Forge of San Diego, CA, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 42) ASSAULT ON A FEDERAL OFFICER / JURISDICTION: USA v. Juvenile Female, 07-50549 (9th Cir. May 27, 2009). In 2007, Juvenile Female was found guilty of Juvenile Delinquency based on her violation of 18 USC Sec. 111 (Assault on a Federal Officer). She appealed the denial of her motion to dismiss for lack of jurisdiction, as well as the denial of her motion for a judgment of acquittal. The USCA affirmed both of the district court's orders. The district court did not err in assuming jurisdiction over Juvenile Female, or in denying the motion for a judgment of acquittal. At issue was whether an "assault involving a deadly or dangerous weapon or resulting in bodily injury," under Sec. 111, is, categorically, a crime of violence. The USCA held that it is. Pregerson, D.W. Nelson (author), and Thompson, Circuit Judges. T. Burns of San Diego, CA, for the defendant-appellant; AUSA G. Hardy of San Diego, CA, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 43) SENTENCING: USA v. Maness, 06-30607 (9th Cir. May 19, 2009). Maness was convicted of firearm possession following a jury trial and, after a remand from the USCA, sentenced to 120 months' imprisonment. Maness appealed his sentence on the grounds that the district court violated his right to represent himself at sentencing and improperly applied a sentencing enhancement based on his possession of a semiautomatic assault weapon. The USCA affirmed. It held that an improper denial of a defendant's motion to proceed pro se at sentencing, rather than at trial, is not a structural error and thus is subject to harmless error analysis. The record made it evi-dent that the district court's denial of Maness' request to represent himself did not cause any error because, although it did not allow Maness to proceed without an attorney, the court did permit him to file briefs and motions per se. The court acted upon those pro se filing, ordering the government to respond to several motions and granting one. It was thus clear beyond a reasonable doubt that the Sixth Amendment error did not result in prejudice. In addition, one of the weapons Maness possessed at the time he was arrested was a Norinco MAK-90. The Sentencing Guidelines in effect when Maness was sentenced specified a higher base offense level if the offense involved a firearm described in 26 USC Sec. 921(a)(30), which describe characteristics of semiautomatic assault weapons as part of the then-extant semiautomatic assault weapons ban. Another section of the statute, however, exempted weapons manufactured prior to September 13, 1994 from the ban. Maness argues that because the Norinco MAK-90 was manufactured prior to that date, the district court should not have applied the sentencing enhancement. The USCA disagreed. The Guidelines borrow the statutory definition of a semiautomatic assault weapon, but do not explicitly incorporate the statute's effective date, and the Sentencing Commission's determi-nations do not turn on whether possession of a weapon constitutes a separate criminal act under the statute. The district court's sentenc-ing enhancement was thus proper. B. Fletcher, Rymer, and Fisher, Circuit Judges. Per Curiam. B. Manes pro se; AUSA J. Farrington of Anchorage, AK, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 44) SENTENCING: USA v. Nguyen, 07-30197 (9th Cir. May 15, 2009). Nguyen appealed her jury conviction and sentence for conspiracy to transport stolen property in interstate commerce in violation of 18 USC Sec. 2314, for two counts of the transportation of stolen property in interstate commerce in violation of 18 USC Sec. 2314, for three counts of the introduction of misbranded medical devices into interstate commerce in violation of 18 USC Sec. 352(a), and for conspiracy to commit money laundering in violation of 18 USC Sec. 1956. The USCA affirmed the convictions for felony misbranding of medical devices, but reversed those for conspiracy to transport stolen property, the transportation of stolen property, and conspiracy to commit money laundering. It thus affirmed in part, reversed in part, and remanded for retrial and resentencing. The USCA found that Nguyen's Confrontation Clause rights were violated. Dissenting in part, Judge Callahan agreed that Nguyen adequately preserved in the district court her claims that the admission of the statement by Sess Merke to Agent Borden violated the Confrontation Clause. She also agreed that the admission of Merke's statement offended the Confrontation Clause. However, she disagreed with the majority's conclusion that this error was not harmless beyond a reasonable doubt. She would affirm Nguyen's convictions for conspiracy to transport stolen property, conspiracy to commit money laundering, and transportation of stolen property. Beezer, Gould (author), and Callahan (dissenting in part), Circuit Judges. S. Gordon of Seattle, WA, for the appellant; J. Sullivan of Seattle, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 45) SENTENCING: USA v. Raygosa-Esparza, 07-50573
(9th Cir. May 15, 2009). The defendant was found guilty by a jury of two counts
of conspiring to smuggle drugs into a federal prison. The indictment identified
heroin, methamphetamine, and marijuana as objects of the conspiracy. Prior to
trial, the parties stipulated to the type and quantity of the drugs involved.
The jury returned a general verdict on both counts; neither party requested a
special verdict reflecting the drugs involved. The defendant was sentenced to
210 months on each count. The district court imposed the two terms concurrently,
along with three years of supervised release and a special assessment of $200.
Several months later, the defendant filed a pro se motion under Sec. 28 USC Sec.
2255. The government alerted the district court to a possible Apprendi error,
though the defendant had not raised the issue in his Sec. 2255 petition. The district
court found that the defendant's original sentence had been calculated in violation
of Apprendi, because the sentence relied on the fact that his offense involved
marijuana, heroin, and methamphetamine, a specific fact that was not found by
the jury in the general verdict. The court granted the defendant's Sec. 2255 motion
on this sole ground, and held that the jury's verdict supporting a finding of
guilty only with respect to the marijuana, which carried the lowest statutory
maximums of the three drugs involved. The government consented to resentencing
in lieu of a new trial. The district court vacated the original sentence, and
following a resentencing hearing, sentenced the defendant to terms of 60 months
imprisonment for each offense, to be served consecutively. The defendant challenged
the new sen-tence on the grounds that the prison terms should have been imposed
to run concurrently, his sentence was vindictively imposed, and his Fifth and
Sixth Amendment rights were violated by the court relying on facts not found by
the jury. The USCA affirmed. The revised sentence did not exceed the statutory
maximum. Thus, no constitutional violation occurred, even if the district court
did rely on facts not found by the jury. Findings outside the jury verdict violate
the Sixth Amendment only where they are used to increase the penalty for a crime
beyond the prescribed statutory maximum. Apprendi v. New Jersey, 530
US 466, 490 (2000). The district court was permitted to consider the fact that
the offenses involved heroin, methamphetamine, and marijuana, so long as the sentence
imposed did not exceed the statutory maximum for a marijuana-only offense. Pregerson
and Thompson (author), Circuit Judges, and Fogel, District Judge. DFPD
N. Mehta of Los Angeles, CA, for the defendant-appellant; AUSA S. Pym of Riverside,
CA, for the plaintiff-appellee. (Download
the full text of this decision at www.ce9.uscourts.gov/)
47) HABEAS CORPUS: Byrd v. Lewis, 06-15977 (9th Cir. May 15, 2009). Byrd was convicted by jury in federal district court for unlawful taking a vehicle under Cal. Vehicle Code Sec. 10851(a). He was sentenced to a prison tem of 25 years to life. He appealed the district court's denial of his 28 USC Sec. 2254 habeas petition challenging his conviction. The USCA held that the state court's application of harmless error review to the trial court's jury instructions was not an unreasonable application of clearly established Su-preme Court precedent. Because the trial court's failure to sua sponte give a mistake-of-fact instruction did not prejudice Byrd, and the instructional error addressing the scope of consent was properly subjected to harmless error review, the USCA upheld the district court's denial of Byrd's habeas petition. Judge Wallace concurred in the result but wrote separately to highlight his disagreement: First, he did not believe it was reasonably likely that the jury applied the scope-of-consent instruction in an unconstitutional manner, and would hold that the California Court of Appeal unreasonably applied Supreme Court precedent when it reached the opposite conclusion. Second, he thought it unnecessary and unwise for the USCA three-judge panel here to attempt to "overrule" the prior three-judge panel decision in Gibson v. Ortiz, 387 F.3d 812 (9th Cir. 2004). Wallace (concurring) and Rawlinson (author), Circuit Judges, and Restani, Court of Intl. Trade Judge. K. Hart of Sacramento, CA for the petitioner; M. Farrell of Sacramento, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 48) HABEAS CORPUS: King v. Ryan, 06-55858 (9th Cir. May 5, 2009). King appealed a district court's order dismissing his ha-beas petition. He had filed a "mixed" habeas petition in federal court-one including both exhausted and unexhausted claims-two days before the end of the one-year statute of limitations applicable under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). He then asked the district court to stay the petition and dismiss his unexhausted claims so that he could exhaust them in state court before adding them back into the stayed federal petition, thereby invoking the three-step procedure outline in Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002). The district court denied King's request and, instead, ordered King to either abandon his unexhausted claims and proceed with his exhausted claim or dismiss the entire action without prejudice. King did neither. The district court then dismissed King's unexhausted claims and allowed the case to proceed only with respect to King's one remaining fully-exhausted claim. The USCA held that, in so doing, the district court applied an erroneous legal standard. Contrary to the district court's order, the Kelly procedure remains available after the Supreme Court's decision in Rhines v. Weber, 544 US 269 (2005), and unlike the procedure permitted by Rhines, does not require that a petitioner show good cause for his failure to exhaust state court remedies. The USCA nonetheless affirmed the dismissal because the error was harmless. King fared no better under the Kelly standard than under the district court analysis. Hawkins, Berzon (author), and Clifton, Circuit Judges. F. Arfa of Los Angeles, CA, for the petitioner; D. Glassman of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) MEMORANDA
Unpublished decisions may not be cited to or by the courts of this circuit except when relevant under the Doctrine of Law of the Case, Res Judicata, or Collateral Estoppel. Rule 36-3 3) IMMIGRATION: Yousif v. Holder, 05-73287 (9th Cir. May 26, 2009) (unpublished). Yousif, a native and citizen of Iraq, peti-tioned for review of the BIA's order dismissing her appeal from an IJ's decision denying her application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). The USCA granted the petition for review in part, and dis-missed in part. The BIA assumed arguendo that Yousif, a Chaldean Christian, established past persecution. When the petitioner has established past persecution, Ninth Circuit case law requires that the agency provides an "individualized analysis of how changed con-ditions will affect the specific petitioner's situation," Lopez v. Ashcroft, 366 F.3d 799, 805 (9th Cir. 2004), and "information about gen-eral changes in the country is not sufficient." Rios v. Ashcroft, 287 F.3d 895, 901 (9th Cir. 2002). Here, the government did not submit evidence specifically discussing the effects of the American invasion on the persecution of Chaldean Christians, and the record did not provide the agency with evidence indicating that any changes in Iraq would eliminate Yousif's fear of future persecution as a Chaldean Christian. Hanna v. Keisler, 506 F.3d 933, 938-40 (9th Cir. 2007); Mousa v. Mukasey, 530 F.3d 1025, 1030 (9th Cir. 2008). Thus, substantial evidence did not support the BIA's finding that change circumstances rebutted the presumption of a well-founded fear of future persecution, Hanna, 506 F.3d at 938, or the BIA's denial of withholding of removal, Baballah v. Ashcroft, 367 F.3d 1067, 1079 (9th Cir. 2004) (establishing past persecution raises a presumption of eligibility for withholding of removal; Hanna, 506 F.3d at 940. Substantial evidence also did not support the agency's denial of CAT protection, as the IJ failed to consider all of the relevant evidence, including a country reports, in assessing whether it is more likely than not that Yousif would be tortured as a Chaldean Christian if removed to Iraq. Kamalthas v. INS, 251 F.3d 1279, 1282-84 (9th Cir. 2001); 8 CFR Sec. 1208.16(c)(3) ("In assessing whether it is more likely than not that an applicant would be tortured in the proposed country of removal, all evidence relevant to the possibility of future torture shall be considered.") Finally, the USCA lacked jurisdiction to consider Yousif's contention that the BIA erred in not addressing her humanitarian asylum claim because she failed to raise this issue before the BIA. Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). The USCA also lacked jurisdiction to consider Yousif's contention that the BIA violated her due process rights by not allowing her the opportunity to supplement the record with evidence of current conditions in Iraq because she id not raise this claim before the BIA. Id. The USCA thus granted the petition for review as to Yousif's asylum and withholding claims, and remanded for the BIA to determine whether Yousif had established past persecution and was eligible for relief. Hanna, 506 F.3d at 938; see also INS v. Ventura, 537 US 12, 16-17 (2002) (per curiam). It also granted the petition for review as to Yousif's CAT claim, and remanded to the BIA to consider whether, in light of the country conditions, Yousif is eligible for CAT protection. See id. Pregerson, Canby, and Berzon, Circuit Judges. (Download the full text of this decision at www.ce9.uscourts.gov/) 4)
IMMIGRATON: Afzal v. Holder, 05-72273 (9th Cir. May 21, 2009) (unpublished).
Muhammad Afzal petitioned for review of a BIA order affirming an Immigration Judge's
("IJ") denial of his applications for asylum, withholding of removal
and relief under the Convention Against Torture. The USCA denied the petition.
The IJ had identified specific and cogent reasons to support her adverse credibility
finding, including the inconsistencies between Afzal's airport interview and later
statements. The USCA recognized that border interviews are suspect sources of
impeachment "because of the conditions under which they are taken and because
a newly-arriving alien cannot be expected to divulge every detail of the persecution
he or she sustained." Li v. Ashcroft, 378 F.3d 959, 962-63 (9th Cir.
2004). However, Afzal's airport interview did not differ from his later statements
in mere details or depth; rather, he expressly denied suffering any persecution
in Pakistan and asserted he came to the U.S. to work. Because of this complete
contradiction with his later statements, the IJ could reasonably conclude that
the sworn airport interview statement was a reliable impeachment source, and that
ended the USCA inquiry. Id. at 963. Afzal's airport interview followed all relevant
regulatory requirements and the IJ reasonably relied upon it in her adverse credibility
finding. See 8 CFR Sec. 235.3(b)(2)(i). The BIA noted an additional reason that
did not appear in the IJ's decision as further support for the adverse credibility
finding. It was not clear that the BIA gave this reason any material weight or
any weight at all. Even so, Afzal was on notice that his credibility had been
questioned, and he was thus responsible for explaining all inconsistencies in
his testimony. He thus had a reasonable opportunity to explain to the BIA all
inconsistencies but failed to do so. B. Fletcher, Fisher, and Gould, Circuit Judges.
(Download the full
text of this decision at www.ce9.uscourts.gov/)
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