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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) SECURITIES / WRIT OF MANDAMUS: In re Cohen, 09-70378 (9th Cir. Nov. 5, 2009). The underlying litigation in this case is a consolidated putative security fraud class action brought by investors who purchased NVIDIA Corporation securities between No-vember 8, 2007 and July 2, 2008. In September 2008, Lisa Miller filed the first putative securities fraud class action against NVIDIA. The district court consolidated it with two other actions. The complaint alleged, among other things, that NVIDIA fraudulently con-cealed from investors the use of flawed materials and processes in producing certain products, and that the stock price substantially declined following the disclosure of these facts. After consolidation, seven purported class members or groups of class members filed motions to be appointed lead plaintiff and for approval of their choice of lead counsel. Among those were Robert Cohen, who selected Kahn Gauthier Swick, LLC ("KGS") as his choice for lead counsel; New Jersey Carpenters Pension and Annuity Funds, which se-lected Milberg LLP as its choice for lead counsel; and a group consisting of Douglas Depies, Jerrold Engber, Geoffrey James, Chester Chow, and Kumaraswamy Krishnamurthy, which selected Girard Gibbs LLP ("Gibbs") and Shalov Stone Bonner & Roco LLP as their choice for co-lead. Cohen subsequently sought a writ of mandamus vacating the district court's order to the extent it appointed Gibbs as co-lead counsel and requiring the district court to appoint KGS, as co-counsel. At issue on appeal was whether the district court had authority to select lead counsel under the Private Securities Litigation Reform Act. The USCA granted the petition for a writ of man-damus in part and ordered the district court to vacate its order appointing Gibbs as co-lead counsel. The USCA remanded to the dis-trict court to accept or reject Cohen's selection of KGS. B. Fletcher (author) and Kleinfeld, Circuit Judges, and Duffy, District Judge. M. Ram of San Francisco, CA, for the petitioner; J. Levine of San Francisco, CA, for the real parties in interest. (Download the full text of this decision at www.ce9.uscourts.gov/) 2) SECUTIRIES FRAUD / SENTENCING: USA v. Berger,
08-50171 (9th Cir. Nov. 30, 2009). Craig Consumer Electronics, Inc. ("Craig")
was a publicly traded consumer electronics business that primarily distributed
its products to retail electronics stores. During the relevant time frame, Berger
was Craig's President, Chief Executive Officer, and Chairman of the Board. Two
other corporate officers, Donna Richardson and Bonnie Metz, participated in the
fraudulent scheme and were convicted along with Berger for their in-volvement.
In August 1994, Craig entered into a $50 million revolving credit agreement with
a consortium of banks. Under the agree-ment, the amount Craig was permitted to
borrow was based on the value of its current inventory and accounts receivable.
To determine the fluctuating amount Craig was eligible to borrow, Berger and his
co-defendants were required to provide the lending banks with a daily certification
concerning those assets. Berger and his accomplices began the fraudulent scheme
as early as 1995. Starting at that time and continuing through September 1997,
Craig lacked sufficient qualifying accounts receivable and inventory to continue
borrow-ing the funds needed for Craig's ongoing operations. To conceal Craig's
true financial condition from the lending banks, Berger and his cohorts employed
various accounting schemes to falsify the information contained in the certifications.
Relying on these false statements, the banks lent millions of dollars to Craig
based on either nonexistent or substantially overstated collateral. In May 1996,
Craig made an initial public offering ("IPO"). In connection with this
IPO, Berger publically misrepresented Craig's fiscal viability, misstating Craig's
financial condition in several mandatory reports filed with the SEC. At the time
of the IPO, Craig was actually operating in default of its credit agreement with
the lending banks, and was substantially overdrawn on its credit line. None of
this information was disclosed in Craig's mandatory SEC files, or to its lenders.
In 1997, an audit of Craig's records by its accounting firm uncovered various
accounting irregularities. As a result, Craig was required to restate its earnings
for 1995 and part of 1996, thereby revealing that its earnings were substantially
lower than those shown in its previous financial statement. In the months following
this restatement, Craig's stock price fell from $4.99 to $0.99 per share. In July
1997, Craig's stock was delisted from the NASDAQ because of its failure to meet
NASDAQ's minimum bid price. The securities fraud and accounting irregularities
noted were not publicly revealed until after the delisting. The lending banks
did not discover the full extent of the fraud until August 1997, when Craig filed
for bankruptcy. In March 2003, Berger was indicted for 36 counts of bank and securities
fraud including: conspiracy, loan fraud, falsification of corporate books and
records, making false statements to accountants of a publicly traded company,
and making false statements in reports filed with the SEC. Berger went to trial
and was convicted on 12 counts. The district court, believing that controlling
authority prohibited it from applying any sentencing facts not found by the jury,
calculated an applicable sentencing range of zero to six months and sentenced
Berger to six months imprisonment. It also ordered Berger to pay restitution of
$3.14 million and a $1.25 million fine. Berger appealed his conviction and restitution
order, and the government cross-appealed the sentence. The USCA affirmed the conviction
and restitution amount, but vacated Berger's sentence and remanded to the district
court for resentencing in light of USA v. Booker, 543 US 220 (2005). On
remand, using a preponderance of the evidence standard, the district court found
several facts that significantly increased Berger's sentencing range. Among other
things, the district court found that Berger's fraud caused a loss of $3.14 million
to the various banks with which Craig did business, thereby triggering a 13-level
enhancement under Sentencing Guideline Sec. 2F1.1. To determine the loss to shareholders,
the court adopted one of the government's suggested calculation methods, the "modified
market capitalization theory" (that is, comparing the change in stock value
of other, unaffiliated companies after accounting irregularities in those companies'
records were disclosed to the market). The court determined that the average depreciation
of the selected companies' stock was 26.5% and applied that figure to the value
of Craig's initial public offering (although in Craig's case, the fraud was never
disclosed to the market before trading was halted). The court calculated the resulting
shareholder loss at $2.1 million. The total calculated loss was thus $5.2 million,
which triggered a 14-level sentencing enhancement, from level 16 to 30. This enhancement
increased the applicable sentencing range from 21-27 months to 97-121 months.
The district court imposed a 97-month sentence. Berger appealed that sentence,
arguing that the district court committed significant legal errors in calculating
the sentencing range. He maintained that the district court erred by (1) not adhering
to the civil loss causation principle in finding shareholder loss, as described
in Dura Pharmaceuticals, Inc. v. Broudo, 544 US 336, 342-48 (2005), and
(2) applying an erroneous standard of proof in determining total loss for sentencing
enhancement purposes. While declining to extend the Dura Pharmaceuticals principle
to criminal securities fraud, the USCA held that the district court's loss calculation
approach was nevertheless flawed. It thus vacated Berger's sentence, affirmed
the district court's ruling on the applicable standard of proof in finding sentence-enhancing
facts in this context, and remanded to the district court for resentencing before
a new judge. As in USA v. Riley, 335 F.3d 919 (9th Cir. 2003), USA v.
Armstead, 552 F3d 769 (9th Cir. 2008), and USA v. Garro, 517 F.3d 1163
(9th Cir. 2008), the enhancement under Sentencing Guideline Sec. 2F1.1 was based
entirely on the extent of the fraud conspiracy for which Berger was convicted.
Applying Riley, Armstead, and Garro, the USCA concluded that the district court
did not err in using a preponderance of the evidence standard to determine the
amount of loss for purposes of Sec. 2F1.1. W. Fletcher, Clifton, and M.D. Smith
(author), Circuit Judges. P. Watford of Los Angeles, CA, for the defendant-appellant;
AUSA L. Weidman of Los Angeles, CA, for the plaintiff-appellee. (Download
the full text of this decision at www.ce9.uscourts.gov/)
4) TAXATION: Ulrich v. CIR, 08-70718 (9th Cir. Nov. 3, 2009). Judson and Sheryl Ulrich appealed a decision of the U.S. Tax Court denying their appeal from a Collection Due Process Hearing in which the IRS Appeals Office determined that the IRS could proceed with collection of the Ulrichs' 1999, 2000, and 2001 taxes. At the conclusion of an audit of the Ulrichs' 1999, 2000, and 2001 tax returns, the Ulrichs and the IRS Tax Examiner signed IRS Income Tax Examination Changes Form 4549 ("the Form"), which reflected a revised calculation of the Ulrichs' tax liability for those years. The Form included the following clause: "Consent to Assessment and Collection-I do not wish to exercise my appeal rights with the Internal Revenue Service or to context in the United States Tax Court the findings in this report. Therefore, I give my consent to the immediate assessment and collection of any increase in tax and penalties, and accept any decrease in tax and penalties shown above, plus additional interest as provided by law. It is understood that this report is subject to acceptance by the Area Director, Area Manager or Director of Field Operations." The Ulrichs did not receive any notice that the Form had been accepted by the Area Director, Area Manager, or Director of Field Operations. However, they received tax bills that were consistent with the Form. The Ulrichs did not pay the bills. On April 30, 2005, the IRS sent the Ulrichs a Final Notice of Intent to Levy, which stated that the IRS planned to place a levy on the Ulrich's property in order to satisfy their tax obligations for 1999, 2000, and 2001. The Tax Court rejected the Ulrichs' arguments, finding that by signing the Form, they had waived their right to receive a notice of deficiency and to raise challenges to the liability set forth on the Form. It further held that the IRS had accepted the Form by performing in accordance with its terms. The USCA affirmed. It held that when the Ulrichs signed the Form, which indicated their consent to immediate assessment and collection of any increase in tax and penalties shown on the Form, they waived their right to receive a notice of deficiency prior to collection of the amount listed on the Forum and to raise pre-collection objections to that amount. This conclusion followed the plain language of the Form and was in accordance with the interpretations of the Form made by the Tax Court and Second Circuit. The USCA also held that, contrary to the Ulrichs' contention, their waiver did not require acceptance by the IRS to become effective. Schroeder, Reinhardt, and Bea, Circuit Judges. J. Izen of Bellaire, TX, for the petitioners; N. Hochman of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 5) TAXATION: Severo v. CIR, 08-70817 (9th Cir.
Nov. 20, 2009). Michael and Georgina Severo ("Severos") filed their
1990 joint tax return three days late without paying most of their taxes. The
IRS assessed income tax liability of $63,499 plus $4,180 for failure to pay estimated
taxes and $2,339 for failure to pay tax. The Severos subsequently filed for relief
under Chapter 11 of the Bankruptcy Code, which was converted into Chapter 7 liquidation.
Their first post-conversion meeting of creditors occurred on November 9, 1995,
and the Severos received their Chapter 7 discharge on March 17, 1998. The IRS
first attempted to collect the 1990 tax liability on No-vember 28, 2004, when
it levied against a $196 tax refund claimed by the Severos on their 2003 California
state income tax return. By that time they owed income taxes for each year between
1994 and 2002, in addition to the tax liability for 1990. On August 18, 2005,
the Severos paid $142,479 toward their tax delinquency, but at least some part
of their 1990 tax liability remained outstanding. On September 7, 2005, the IRS
mailed to the Severos a notice of intent to make a second levy on their property
relating to their out-standing 1990 federal income taxes, and on September 8,
2005 the IRS filed a notice of federal tax lien on all of the Severos' property
and property rights. Upon receiving notice of the federal tax lien, the Severos
requested a collection due process hearing. At the time they filed their petition,
they resided in Arcadia, California. During the hearing with a Settlement Officer,
the Severos argued that (a) the IRS was precluded from placing a lien against
their property because the ten-year statute of limitations had expired; and (b)
their 1998 bankruptcy discharge discharged their tax debt to the IRS. The Appeals
Office of the IRS rejected the Severos' arguments and issued a notice of adverse
determination on March 3, 2006. The Severos appealed to the Tax Court, which granted
summary judgment in favor of the Commissioner on November 15, 2007. The Severos
unsuccessfully moved for reconsideration and then timely appealed to the USCA.
The USCA affirmed. The IRS's collection efforts were not barred by the statute
of limitations, and the Severos 1990 tax liability was not discharged by their
bankruptcy proceedings. The Severos appealed from a decision of the U.S. Tax Court
granting summary judgment in favor of the IRS and permitting the IRS to proceed
with its collection action relating to the Severos' 1990 tax liability. The USCA
affirmed the Tax Court's decision. Hall (author) and Tallman, Circuit Judges,
and Lawson, District Judge. M. Severo of Los Angeles, CA, for the appellants;
C. Pett of Washington, DC, for the appellee. (Download
the full text of this decision at www.ce9.uscourts.gov/)
7) BANKRUPCTY: In re Bender, 08-15027 (9th Cir. Nov. 5, 2009). This appeal arose out of an action brought by a bankruptcy trustee, seeking avoidance of the transfer of a parcel of real property from Bender, a debtor in bankruptcy, to the defendant, Congrejo Investments, a Washington limited liability company formed and managed by Bender. Congrejo appealed a portion of the decision of the BAP in which the BAP affirmed the bankruptcy court's determination that the doctrine of equitable tolling applied to the trustee's filing of this adversary proceeding. The trustee cross-appealed from a different portion of the BAP's order-that portion which vacated the bankruptcy court's summary judgment for the trustee and remanded to the bankruptcy court for further proceedings. Because it held that the appealed-from BAP decision was not final under 28 USC Sec. 158(d)(1), the USCA lacked jurisdiction to hear the appeal and remanded the case to the bankruptcy court for further proceedings. Wallace (author), O'Scannlain, and Kleinfeld, Circuit Judges. C. LaVoy of Phoenix, AZ, for the appellant-appellee Congrejo Investments; D. Engelman of Phoenix, AZ, for the appellant-appellee D. Mann, Chapter 7 Trustee. (Download the full text of this decision at www.ce9.uscourts.gov/) 8) ANTI-SUIT INJUNCTIONS: Applied Medical Distribution Corp. v. The Surgical Co., 09-55155 (9th Cir. Nov. 3, 2009). Applied Medical Distribution Corporation appealed the district court's judgment in its diversity action against Surgical, denying injunc-tive relief that would have prevented Surgical from pursuing its suit in Belgium for Statutory termination damages allegedly available under Belgian law. At issue on appeal was whether the district court abused its discretion in denying the anti-suit injunction. The USCA reversed and remanded for the district court to enter the injunction. The district court erred as a matter of law in its application of the Gallo test, which requires, as the first step, a functional analysis concerning whether issues are the same in the sense that the issues in the action to be enjoined come within the terms of the forum selection clause and the local action is capable of disposing of them. E.&J.Gallo Winery v. Andina Licores, 446 F.3d 984 (9th Cir. 2006). The district court's treatment of Surgical's Belgium claims, other than goodwill indemnities, as being available apart from termination was clearly erroneous. The district court denial of the anti-suit injunction was an abuse of discretion. Fisher and Gould (author), Circuit Judges, and England, District Judge. R. Grabowski of Irvine, CA, for the plaintiff-appellant; B. Jackson of San Francisco, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 9) ENVIRONMENTAL LAW: National Parks & Conservation Association v. Kaiser Eagle Mountain, Inc., 05-56814 (9th Cir. Nov. 10, 2009). Kaiser Eagle Mountain sought to build a landfill on a former Kaiser mining site near Joshua Tree National Part. As part of its landfill development plan, Kaiser sought to exchange some private land for several parcels surrounding the mine site and owned by the Bureau of Land Management ("BLM"). Several parties, including the National Parks Conservation Association and Donna and Laurence Charpied, challenged the proposed exchange. Nevertheless, the BLM approved the exchange, as did the Interior Board of Land Appeals. The Conservation Association and the Charpieds pursued challenges in the district court on several grounds, including violations of the Federal Land and Policy Management Act and the National Environmental Policy Act ("NEPA"). The district court held for the Conservation Association and the Charpieds on the Management act claims and some of the NEPA claims. The USCA affirmed in part and reversed in part. First, it noted that the Record of Decision never became effective and was not the final agency action. It thus reversed the district court to the extent that it limited its review to the Record of Decision. The Appeals Board decision which incorporated the EIS is the final agency action before the USCA for review. Second, the Appeals Board had sufficient notice to address the highest and best use issue. Kaiser and the BLM failed to distinguish the facts of this case from those of Desert Citizens Against Pollution v. Bisson, 231 F.3d 1172 (9th Cir. 2000). As such, the highest and best use analysis should have taken the reasonably probable use of public lands for a landfill into consideration as part of the highest and best use analysis. The USCA thus affirmed the district court's grant to summary judgment on the highest and best use claim under the Management Act. Third, the district court's analysis was constrained by its decision to review only the Record of Decision. Having held that the Appeal Board's decision, which incorporates the EIS, is the final agency action under review, the USCA examined a broader set of materials than did the district court. The Final EIS alone includes over 1,600 pages of material not considered by the district court, including detailed environmental analyses. Though it said it did not necessarily agree with the BLM public interest determination, the USCA found that the record as a whole establishes that the BLM's interpretation of "full consideration," as evinced by the analyses in the EIS, is permissible under 43 USC Sec. 1716(a). The USCA thus reversed the district court's determination on that issue. Finally, the BLM adopted Kaiser's interests as its own to craft a purpose and need statement so narrowly drawn as to foreordain approval of the land exchange. As a result of this unreasonably narrow purpose and need statement, the BLM necessarily considered an unreasonably narrow range of alternatives. The USCA thus affirmed the district court's summary judgment on both the "purpose and need" and "reasonable range of alternatives" claims under the NEPA. Judge Trott agreed with the majority insofar as they dispensed with the cross-appeal and the public interest and bighorn sheep issues, but dissented with respect to the rest. He asked: "What sane person would want to attempt to acquire property for a landfill?" He then answered: "Our well-meaning environmental laws have unintentionally made such an endeavor a fool's errand. This case is yet another example of how daunting-if not impossible-such an adventure can be." Pregerson (author), Trott (dissenting), and Paez, Circuit Judges. L. Feldman of Seattle, WA, and T. Roundtree of Washington, DC, for the defendants; D. Sivas of Stanford, CA, and S. Volker of Oakland, CA, for the plaintiffs. (Download the full text of this decision at www.ce9.uscourts.gov/) 10) LABOR LAW / LOCALITY PAY: Matsuo v. USA,
08-15553 (9th Cir. Nov. 12, 2009). The Federal Employees Pay Comparability Act
(the "Act") provides certain federal employees in the contiguous 48
states with "locality pay"-an amount they are paid in addition to salary
in order to equalize their compensation with that of other employees in the same
region. Matsuo is a federal em-ployee in Hawaii and thus ineligible for locality
pay. He claimed that, by denying him this benefit, the Act penalizes him for working
in Hawaii, and thus unconstitutionally burdens his right to travel. Roberts works
in Maryland and, like most other federal employees in the 48 contiguous states,
receives locality pay. But, he would lose it if he returned to Hawaii, where he
was a federal employee earlier. He claimed that this unconstitutionally burdened
his right to travel. The parties stipulated to the certification of two classes-one
representing workers like Matsuo, the other representing workers like Roberts.
They then filed cross-motions for summary judgment. The district court denied
the plaintiffs relief. The USCA affirmed. It found that the Act imposes no travel
penalty on federal employees like Matsuo; if anything it imposes a penalty for
staying put. In fact, the Act encourages these employees to travel by providing
superior pay in the 48 contiguous states. They thus lacked standing to being a
right-to-travel claim. Plaintiffs like Roberts would lose locality pay if they
moved to Hawaii or Alaska and continued to work for the federal government, so
traveling would arguably trigger a penalty. But not everything that deters travel
burdens the right to travel. States and the federal government would otherwise
find it quite hard to tax airports, hotels, moving companies or anything else
involved in interstate movement. Califano v. Torres, 435 US 1 (1978) (per curiam),
teaches that the right to travel permits the federal government to put new migrants
to a state or territory on the same footing as that of long-established citizens.
This is all that would occur should a plaintiff like Roberts move from the 48
contiguous states to Hawaii. He would be denied locality pay because all federal
employees in Alaska are denied locality pay. Torres forecloses a right-to-travel
claim in such circumstances. Kozinski (author), Bybee, and Callahan, Circuit
Judges. G. McGillivary of Washington, DC, for the plaintiffs-appellants; M. Raab
of Washington, DC, for the defendants-appellees. (Download
the full text of this decision at www.ce9.uscourts.gov/)
12) FORUM NON CONVENIENS: Vivendi SA v. T-Mobile USA, Inc., 08-35561 (9th Cir. Nov. 2, 2009). This appeal concerned a French corporation's allegations that a German corporation and a Polish billionaire colluded fraudulently in Europe to wrest control of a Polish wireless telephone company from the French corporation. The French corporation, Vivendi, sought a remedy for these alleged wrongs in the U.S. District Court for the Western District of Washington. The district court dismissed the case on the ground of forum non conveniens. The USCA affirmed. To grant a motion to dismiss on forum on conveniens grounds, a district court must determine (1) whether an adequate alternative forum exists, and (2) whether the balance of private and public interest factors favors dismissal. Vivendi maintained that the district court abused its discretion (1) by affording insufficient deference to Vivendi's choice of forum and (2) by unreasonably balancing the public and private interest factors. However, the USCA noted that under Ninth Circuit law, foreign plaintiffs are entitled to less deference than are plaintiffs who file suit in their home forums. Vivendi filed this action related to European transactions in a forum far from its home. The district court thus did not abuse its discretion when it afforded Vivendi's choice of forum "little deference." Moreover, the USCA's review of a district court's forum non conveniens determination is highly deferential. In cases concerning foreign plaintiffs, the USCA rarely has reversed a district court's grant of a motion to dismiss for forum non con-veniens. Likewise, the choice of forum of Vivendi's American co-plaintiff, Vivendi Holding, deserves reduced deference because the district court found that Vivendi had engaged in forum shopping. As for the balancing of interests, the USCA held that the district court did not abuse its discretion when it concluded that the private interest factors favor dismissal. Five of the seven parties reside or have their principal places of business in Europe, and, of the 22 witnesses Vivendi identified, only three reside in the United States. Notably, none of these U.S.-based witnesses has information about the substance of the dispute between the parties. Pregerson, Noonan, and Bea (author), Circuit Judges. L. Davis of Washington, DC, for the appellants; S. Keesal of San Francisco, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 13) HUMANE SLAUGHTER ACT: Levine v. Vilsack, 08-16441 (9th Cir. Nov. 20, 2009). The plaintiffs appealed from a summary judgment ruling in favor of the Secretary of the U.S. Department of Agriculture ("USDA"). At issue was a dispute over whether chickens, turkeys and other domestic fowl are excluded from the humane slaughter provisions of the "Humane Methods of Slaughter Act of 1958" ("HMSA"). 7 USC Secs. 1901-07. In particular, the parties disputed whether poultry should be considered "other livestock" as that phrase is used in that statute. Id. at Sec. 1902(a). The plaintiffs challenged the USDA's enunciation of its position-made most recently on September 28, 1005, in the Federal Register Notice issued by the USDA's Food Safety and Inspection Service that "there is no specific federal humane handling and slaughter statute for poultry." Id. at 56,625. In Levine v. Conner, 540 F. Supp. 2d 1112 (N.D. Cal. 2008), the district court determined that, while the plain meaning of the word "livestock" as used in the HMSA of 1958 is ambiguous, Congressional intent behind the term was clear and consistent with the interpretation adopted by the USDA. Because the USCA concluded that the plaintiffs could not satisfy the redressability prong of Article III standing, it vacated Levine and remanded to the district court so that it could dismiss the action. Goodwin and Rymer, Circuit Judges, and Wu (author), District Judges. S. Uhlemann of Washington, DC, for the appellants; G. Katsas of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 14) SOCIAL SECURITY / ATTORNEYS' FEES: Crawford v. Astrue, 06-55822 (9th Cir. Nov. 4, 2009). In each of the three cases consolidated for review here, the Social Security Administration ("SSA") denied claims for benefits. Each claimant retained an attorney to challenge the administrative action in federal court. Each claimant was represented by a different attorney, although all three were affiliated with the Rohlfing law firm, which specializes in Social Security matters. In each case, the claimant signed a written con-tingent-fee agreement under which the attorney would be paid 25% of any past-due benefits awarded to the claimant. The district court remanded each case back to the SSA, which eventually awarded substantial past-due benefits to each claimant. The attorneys then filed motions in the district court pursuant to 42 USC Sec. 406(b) requesting fees of less than the 25% of past-due benefits for which their attorney-client fee agreements provided. In each case the Commissioner of Social Security declined to assert a position on the reason-ableness of the fees requested by the attorneys. None of the claimants objects to the requested fees. Nevertheless, the district court in each case awarded significantly lower fees than the attorneys sought. At issue here was whether the district courts followed the mandate of Gisbrecht v. Barnhart, 535 US 789 (2002), in determining the amount of attorneys' fees awarded to lawyers who successfully represented Social Security disability insurance claimants under contingent-fee contracts? The USCA held that they did not and vacated the district courts' orders and granted the attorneys the contingency-based fees they requested, finding the fees reasonable under the test mandated by Gisbrecht. Judge Clifton, joined by Judge Kozinski, agreed with the majority that the district court did not apply the proper standard in determining the amounts of fees awarded to the attorneys who represented the claimants in these cases. But, he did not agree with the majority's order that claimants' attorneys be awarded the amounts they requested. He thought the case should instead be remanded so the respective district courts could determine reasonable fees by applying the proper standard. Judge Bea, joined by Judges Rawlinson and N.R. Smith, dissented. He disagreed with the way the majority read Gisbrecht, thought the majority had faulted the district court for doing something-namely considering the amount of time the attorneys worked on each case-that the Supreme Court requires them to do. Under Gisbrecht, Judge Bea thought the district courts did not abuse their discretion by finding the requested fee amounts were unreasonable, or in awarding the attorneys a lower amount of fee based on the amount of time the attorneys spend on each case. He would affirm the decisions below. Kozinski Schroeder, B. Fletcher (author), Pregerson, Reinhardt, Kleinfeld, Berzon, Rawlinson, Clifton (dissenting in part), Bea (dissenting), and N.R. Smith, Circuit Judges. L. Rohlfing of Santa Fe Springs, CA, for the real parties in interest-appellants; M. Robinson of Washington, DC, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 15) FAMILY LAW: Burke v. County of Alameda, 08-15658 (9th Cir. Nov. 10, 2009). At issue here was a conflict between the right of families to be free of arbitrary governmental interference and the legitimate role of the state in protecting children from abuse. In 2005, B.F., the 14-year-old daughter of Melissa Burke and Clifton Farian, ran away from home. One week after she returned, Mark Foster, an Alameda County police officer, met with B.F. to discuss formally the circumstances surrounding her runaway. During the interview, B.F. reported that David Burke, her stepfather, had physically and sexually abused her. Although Foster had no warrant and made no attempt to contact Farina, B.F.'s biological father, he took B.F. into protective custody because he believed that she was in imminent danger of serious bodily injury. Melissa and Farina brought suit against Foster and the County of Alameda under 42 USCA Sec. 1983, alleging, inter alia, that (1) Foster interfered with their constitutional right of familial association by removing B.F. without a protective custody warrant, and (2) the County caused their injury by failing to train its officers on the need to procure such warrants. The district court granted summary judgment in favor of Foster and the County. The USCA affirmed as to Foster, but vacated the judgment as to the County. Whether Foster reasonably believed that Dave Burke would engage in inappropriate and abusive sexual conduct during the time it would take to procure a warrant and remove B.F. was for a jury to decide. However, the additional risk of beatings tipped the scale and made clear that summary judgment for Foster was appropriate on this element. There was reasonable cause to believe that B.F. was in imminent danger of physical harm, and Foster was entitled to summary judgment on that element. As for the County however, the district court granted it summary judgment because it found that there had been no constitutional depriva-tion. Although the USCA agreed with the district court for the most part, Farina had raised a triable issue of fact as to whether Foster's failure to contact him violated his constitutional right of familiar association. Because local government units are not entitled to the qualified-immunity defense, the USCA vacated the district court's judgment as to County liability and remanded to that the district court could examine the other elements of the Monell v. Dept. of Soc. Servs., 436 US 658 (1978), claim in the first instance. D.W. Nelson (author), W. Fletcher, and Paez, Circuit Judges. R. Powell of San Jose, CA, for the plaintiffs-appellants; C. Wheeler of Oakland, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 16) AMERICANS WITH DISABILITIES ACT: Boose v. Tri-County Metropolitan Transportation District of Oregon, 08-35878 (9th Cir. Nov. 23, 2009). Tri-County Metropolitan Transportation District of Oregon ("TriMet") is a public entity providing mass transportation services in Multnomah, Washington, and Clackamas Counties in the Portland, Oregon area. Pursuant to the Americans with Disabilities Act ("ADA"), TriMet developed and implemented a plan for providing paratransit services for disabled riders unable to use its fixed route system of buses and light rail. TriMet's plan was approved by the Federal Transit Administration, a division of the Department of Transportation, as meeting the requirements of the ADA. TriMet's paratransit system ("LIFT") provides door-to-door, shared-ride service 22 hours a day, seven days a week, in all areas in the TriMet district. When no vehicle is available, LIFT contracts with taxi companies to provide backup service. Boose, who suffers from a balance disorder, as been approved by TriMet to use LIFT since 1996. She uses LIFT "to get to medical appointments, do her grocery shopping, and generally, to get around." In 2006, she submitted a request that LIFT accommodate her disability by scheduling rides in only sedans or taxis, as she experiences "less dizziness and nausea" in those vehicles than in LIFT buses. When TriMet declined her request, Boose filed a complaint in the district court alleging that TriMet's refusal to accommodate her request violated the ADA and the Rehabilitation Act of 1973. She sought declaratory and injunctive relief, as well attorneys' fees and costs. Boose and TriMet filed cross-motions for summary judgment. The district court granted TriMet's motion and denied Boose's motion. The sole issue presented on appeal, and one of first impressions in the Ninth Circuit, was whether under the ADA and Rehabilitation Act, LIFT must accommodate Boose pursuant to a Department. of Justice ("DOJ") regulation requiring public entities to "make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity. 28 CFR Sec. 35.130(b)(7). The USCA affirmed. Application of the DOJ's modification regulation to TriMet in this instance would effectively re-quire paratransit system to schedule trips by vehicle type in violation of the regulations enabling statute. 42 USC. Sec. 12134(a). The USCA declined to impose a requirement on TriMet that would upset the balance of authority that Congress has allocated between the Attorney General and Secretary of Transportation. The USCA concluded that the DOJ's modification regulation did not, and could not, apply by its own independent force. O'Scannlain (author) and N.R. Smith, Circuit Judges, and Whyte, District Judge. K. Berkowitz of Portland, OR, for the appellants; K. Garza of Oak Grove, OR, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 17) AMERICANS WITH DISABILITIES ACT: Fleming v. Yuma Regional Medical Center, 07-16427 (9th Cir. Nov. 19, 2009). This case presented a question of first impression for the Ninth Circuit: Does Sec. 504 of the Rehabilitation Act extend to a claim of discrimination brought by an independent contractor? To answer that question, the USCA had to decide whether Sec. 504(d), which refers to the standards applied under Title I of the Americans with Disabilities Act ("ADA"), as that section relate to employment, in-corporates Title I literally or selectively. If Title I is incorporated literally, then the Rehabilitation Act is limited by the ADA and only covers employer-employee relationships in the workplace; if selectively, then the Rehabilitation Act covers all individuals "subject to discrimination under any program or activity receiving Federal financial assistance," who may bring an employment discrimination claims based on the standards found in the ADA. The Sixth and Eighth Circuits have concluded that Title I is incorporated literally, while the Tenth Circuit has concluded that Title I is incorporated selectively. The USCA agreed with the Tenth Circuit, and concluded that Sec. 504 incorporates the "standards" of Title I of the ADA for proving when discrimination in the workplace is actionable, but not Title I in toto, and therefore the Rehabilitation Act covers discrimination claims by an independent contractor. The USCA thus reversed the district court. Gould, Bybee (author), and Tymkovich, Circuit Judges. S. Lubin of Phoenix, AZ, for the plaintiff-appellant; S. Creta of Phoenix, AZ, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 18) AMERICANS WITH DISABILITIES ACT: Becerril v. Pima County Assessor's Office, 08-17070 (9th Cir. Nov. 25, 2009). Becerril has a temporomandibular disorder ("TMD"). She worked in the Pima County Assessor's Office's mobile home section until December 2003, at which time the Pima County Assessor, Richard Lyons, decided to reassign her to the Office's public service section. The record suggests that the public service section can be stressful, and the Becerril's TMD is aggravated by stress. Becerril re-quested a transfer out of the public service section as a reasonable accommodation under the Americans with Disabilities Act ("ADA"). Her request was denied. She currently works full-time in the Assessor's Office's audit section. After her request for a reasonable accommodation was denied, Becerril filed suit under the ADA. She claimed that the Office had discriminated against her by reassigning her because of her disability and by refusing to engage in the ADA's "interactive process" after she had requested a reasonable accommodation. The district court dismissed the claims on summary judgment. The USCA affirmed. It assumed without deciding that Becerril stated a prima facie case of discriminatory reassignment under the ADA. The Office, however, articulated several legitimate, nondiscriminatory reasons for the reassignment. Thus, to survive summary judgment Becerril had to raise a genuine issue of material fact as to whether those reason were pretexts for discrimination. The USCA held that Becerril failed to raise a genuine issue of material fact on that issue. There was no evidence that Lyons reassigned her because her coworkers in the pubic service section complained about accommodations she received for her TMD; the complaints Lyons received were about Becerril's alleged misconduct. The fact that Lyons never publicly articulated his concerns about the alleged misconduct also failed to raise a genuine issue, for circumstantial evidence of pretext must be specific and substantial. His failure to investigate the allegations also did not show pretext, since Lyons was concerned with the "morale problem" the allegations created and not the allegations themselves. Finally, Becerril's disbelief of Lyons' explanation for the reassignment could not create a genuine issue of fact on pretext, as there was no evidence to substantiate her disbelief. Consequently, the district court did not err in granting summary judgment on Becerril's discriminatory reassignment claim. B. Fletcher, Canby, and Graber, Circuit Judges. Per Curiam. R. Martinez of Tucson, AZ, for the defendant-appellant; S. Roseberry of Tucson, AZ, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 19) FIRST AMENDMENT: Legal Aid Services of Oregon v.
Legal Services Corporation, 08-35467 (9th Cir. Nov. 23, 2009).
At issue here was whether restrictions on lobbying, soliciting clients, participating
in class actions, and seeking attorneys' fees (the "Restrictions") that
Congress has imposed on legal aid organizations that receive federal grants through
the Legal Services Corporation ("LSC"), comport with the requirements
of the First Amendment. In Legal Aid Society of Hawaii v. LSC, 145 F.3d
1017 (9th Cir. 1998) ("LASH III"), the USCA upheld the Restrictions
as facially constitutional. It concluded that the LSC's program integrity rule
("PIR") permits grantees to channel restricted speech, paid for with
non-federal dollars, through unrestricted affiliates, and thus, the Restrictions
do not unconstitutionally condition the receipt of federal funds on the relinquishment
of First Amendment rights. Id. at 1025. Legal Aid Services of Oregon ("LASO"),
Oregon Law Center ("OLC"), individual LASO and OLC attorneys and board
members and organizations representing LASO clients and private donors (collectively
"plaintiffs"), presented a two-pronged attack on the Restric-tions and
PIR. First, they maintained that the Supreme Court's decision in LSC v. Velazquez,
531 US 533 (2001) ("Velazquez III"), superseded LASH III, and that
under Velazquez III, the Restrictions had to be struck down as facially violative
of the First Amendment. They also maintained that even if LASH III were good law,
LSC has applied the PIR to them in a manner that cuts off alternative ave-nues
for engaging in protected speech. The district court dismissed the plaintiffs'
facial challenge to the Restrictions, granted summary judgment in favor of LSC
on their as-applied challenge to the PIR, and denied their motion for a new trial.
The USCA affirmed. It agreed with the district court that LASH III continues to
control, and that the plaintiffs' distortion theory relies on a mistaken reading
of Velazquez III. Because LSC's grant program operates much like a limited public
forum, Velazquez III explained, it is subject to the First Amendment principles
that govern such forum. The USCA noted that in prohibiting grantees from soliciting
clients, lobbying, seeking attorneys' fees, and participating in class actions,
Congress did not discriminate against any particular viewpoint or motivating ideology.
The Restrictions simply limit specific procedural tools and strategies that grantee
attorneys may utilize in the court of carrying out their legal advocacy. As such,
they are permissible under Velazquez III. Judge Pregerson dissented in part. The
plaintiffs had mounted a facial challenge to the Restrictions on: (1) attempts
to influence legislation and/or administrative rule-making processes; (2) initiation
of, and participation in, class action lawsuits; (3) claiming, collecting or retaining
attorneys' fees available under any federal or state law; and (4) soliciting clients.
The plaintiffs argued that the Restrictions violated their First Amendment rights
to free speech and association because the Restrictions distort the plaintiff's
ability to provide legal services to their clients. The district court rejected
the plaintiffs' distortion argument. In doing so, Judge Pregerson thought the
district court erred. First, determining whether the Restrictions distort the
ability of legal services attorneys to effectively represent their clients is
key to determining whether the Restrictions are unreasonable in light of the purpose
of the LSC grants, and violate the First Amendment. Second, the Restrictions distort
the legal system by imposing serious and fundamental limits on legal services
providers' ability to effectively represent their clients such that the Restrictions
are unreasonable in light of the purpose of the LSC grants. The purpose of LSC
grants is to help ameliorate the social problem of finding good lawyers for the
poor by providing funds for legal assistance to people who could not otherwise
pay for a lawyer. Upholding the Restrictions severely constrained lawyers who
choose to serve the poor by seriously and fundamentally limiting their ability
to effectively represent their clients. Under the limited public forum analysis,
because the Restrictions distort legal services attorneys' ability to effectively
represent their clients, they are unreasonable in light of the purpose of the
LSC grants and violated the First Amendment. For this reason, Judge Pregerson
would reverse the district court as to the plaintiffs' facial challenge to the
Restrictions. Pregerson (dissenting), Rymer, and Tashima (author),
Circuit Judges. S. Walters of San Francisco, CA, for the plaintiffs-appellants;
W. Freeman of Palo Alto, CA, for the defendant-appellee; M. Collette of Washington,
DC, for the defendant-intervenor-appellant. (Download
the full text of this decision at www.ce9.uscourts.gov/)
21) FIRST AMENDMENT / QUALIFIED IMMUNITY: Padgett v. Loventhal, 08-16720 (9th Cir. Nov. 20, 2009). (The mandate in this case and opinion filed on Oct. 14, 2009 have been withdrawn and replaced with the opinion filed Nov. 2, 2009). Defendant Wright appealed the district courts denial of his motion for summary judgment on the ground of qualified immunity in his Sec. 1983 action. After this qualified immunity appeal was filed, the case went to trial, and a jury found Wright liable to appellee Padgett for deprivation of his First Amendment Rights. The USCA dismissed the appeal. Wright's interest in immediately appealing the district court's denial of qualified immunity was an interest in avoiding standing trial or facing other burdens of litigation. Because the trial had already occurred, there was no longer any compelling reason for the USCA to deviate from the general rule preventing it from reviewing denials of summary judgment. The USCA added that it would be particularly inappropriate for it to hear this appeal, as it focused entirely on the threshold issue of whether a constitutional violation occurred. Wright's opening brief made no argument as to whether his entitlement to qualified immunity and failed to address whether the right at issue was clearly established at the time of the defendant's alleged misconduct. Schroeder and Berzon, Circuit Judges, and. Strom, District Judges. Per Curiam. T. Master of Redwood City, CA, for the defendant; M.J. Kallis of San Jose, CA, for the plaintiffs. (Download the full text of this decision at www.ce9.uscourts.gov/) 22) FIRST AMENDMENT: Reed v. Town of Gilbert, 08-17384 (9th Cir. Nov. 20, 2009). This case presented another variation on a sign ordinance-one that prohibits all signs without a permit, subject to 19 enumerated exemptions ranging from directional signs to ideological and political signs. Good News Community Church sought to spread the word about its Sunday services by placing tempo-rary directional signs around the Town of Gilbert, Arizona. Gilbert, however, limits Good News' deployment of temporary directional signs via the town's comprehensive sign ordinance. Good News and its Pastor, Clyde Reed, (collectively "Good News"), challenged the ordinance's constitutionality under the First and Fourteenth Amendments, contending that it impermissibly burdens the right to free speech and treats similar speech unequally. Good News appealed the district court's denial of a preliminary injunction barring en-forcement of the ordinance. Although the USCA concluded that the provision of the ordinance directly regulating Good News' signs did not of itself violate the First Amendment, the district court did not address Good News' claim that the ordinance unfairly discriminates among forms of noncommercial speech. Consequently, the USCA remanded for the district court to consider this aspect of Good News' challenge, within the context of the preliminary injunction motion. Reinhardt, Noonan, and McKeown (author), Circuit Judges. B. Bull of Scottsdale, AZ, for the plaintiffs; R. Grasso of Chandler, AZ, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/) 23) FIRST AMENDMENT: Delano Farms Company v. California Table Grape Commission, 08-16233 (9th Cir. Nov. 20, 2009). At issue here was whether a state statutory scheme requiring growers to fund generic advertising for promotion of agricultural products violates the First Amendment. Here the USCA considered the case of compelled assessments on California table grape growers levied through the California Table Grape Commission. Specifically, the USCA addressed whether this generic advertising scheme is the government's own speech and is thus exempt from a First Amendment compelled speech challenge, based on the analysis in Johanns v. Livestock Marketing Association, 544 US 550 (2005) and Paramount Land Co. LP v. California Pistachio Commission, 491 F.3d 1003 (9th Cir. 2007). Because the Commission's promotional activities constitute government speech that is immune to challenge under the First Amendment, the USCA affirmed the district court's grant of summary judgment on the ground that the Commission's promotional activities constitute government speech and is thus immune to challenge under the First Amendment. Judge Reinhardt concurred in the majority opinion up to the concluding paragraph of Part. I. Rather than find an "uncharted gap" or "tipping of the balance," Judge Reinhardt would simply conclude that the Commission is a government entity and that its speech is thus government speech. For that reason, he found Part II wholly unnecessary to the opinion and would not reach the question of government control. Reinhardt (concurring) Noonan, and McKeown (author), Circuit Judges. B. Leighton of Clovis, CA, for the appellants; R. Wilkinson of Fresno, CA, and S. Waxman of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 24) NATIVE AMERICAN LAW / EASEMENTS: Robinson v. USA, 07-17052 (9th Cir. Nov. 2, 2009). In the mid-1970s, Clinton and Lorene Miller and Spencer and Alverda Robinson purchased some 620 acres of land in Butte County, California. In 1978, a 20-foot wide road, known as Alverda Drive, was built across Parcels 2, 3, and 4 of the lot. Alverda Drive connects several of the other parcels with local roads. In 1979, the Robinsons and the Millers entered into a Road Maintenance Agreement (the "RAM") whereby they both agreed to bear the cost of maintaining the "roadways and drainage facilities." In 1980, the Millers gifted a portion of their land, as well as a 60-foot "non-exclusive right of way for road and public utilities" over Parcels 2 through 4, to the Robinson family. The RMA was duly recorded. Through a series of transactions, Parcels 2 through 4 were conveyed to the Indians of the Mooretown Rancheria, who are also known as the Maidu Indians of California. All of the grants noted the "60.00 foot right of way for road and public utility purposes" (the "easement"). The Maidu subsequently conveyed the parcels, subject to the easement, to the United States to hold in trust for the Tribe. In the 1990s, the Maidu constructed homes and a casino on Parcel 4. In 2004, Dennis, Spencer, Rickie, Cynthia, and Vickie Robinson filed suit in the Eastern District of California alleging, inter alia, that an unshored slope caused subsidence and that a curb, concrete walkway, wrought iron fence, and fire hydrant encroached onto the easement. The complaint alleged disruption of lateral and subjacent support, negligence, and nuisance. Although the Government did not dispute the existence of the easement, it filed a motion to dismiss arguing, inter alia, that the court lacked subject matter jurisdiction over the claim due to its sovereign immunity under the Quite Title Act ("QTA"). The district court agreed and dismissed the case for lack of subject matter jurisdiction. The Robinsons then appealed the dismissal of their complaint for lack of subject matter jurisdiction due to the sovereignty of the U.S. government under the Quite Title Act. The USCA vacated the district court's order. Because, pragmatically, the effect of this suit as pleaded is not to challenge the federal government's title, the QTA does not apply to the Robinsons' suit. Accordingly, the USCA remanded so that the district court could determine whether the appellants may assert jurisdiction of the Federal Tort Claims Act. D.W. Nelson (author), Berzon, and Clifton, Circuit Judges. J. Mascovich of Sacramento, CA, for the appellants; T. Roundtree of Washington, DC, for the appellee United States. ( (Download the full text of this decision at www.ce9.uscourts.gov/) 25) IMMIGRATION: Hernandez-Aguilar v. Holder, 06-71945 (9th Cir. Nov. 25, 2009). Hernandez-Aguilar is a native and citizen of Mexico. He was born in Tijuana, Mexico in 1972 and entered the U.S. in 1973. He was granted temporary resident status, but that status was revoked in May of 1997. In the instant action, he sought review of the Board of Immigration Appeals' decision affirming the Immigration Judge's final order of removal. The BIA held that his conviction under California Health and Safety Code Sec. 11379(a) qualified as a basis for removability under 8 USC Sec. 1182(a)(2)(A(i)(II), which makes removable any alien convicted of a violation of (or a conspiracy or attempt to violate) any law of a state relating to a controlled substance (as defined in Sec. 802 of title 21). The USCA denied the petition for review. Following Mielewczyk v. Holder, 575 F.3d 992 (9th Cir. 2009), the USCA held that a conviction under Sec. 11379(a) categorically qualifies for removal under Sec. 1182(a)(2)(A)(i)(II), so long as the substance involved in the conviction is a controlled substance, irrespective of whether the underlying offense was solicitation. The petitioner did not dispute that the substance involved in his conviction was methamphetamine, which is a controlled substance. His conviction thus categorically quali-fied him for removal. W. Fletcher (author) and Clifton, Circuit Judges, and Pollak, District Judge. H. Davis of Santa Monica, CA, for the petitioner; B. Beier of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 26) IMMIGRATION: Bermudez v. Holder, 08-72133 (9th Cir. Nov. 10, 2009). Bermudez petitioned for review of a final BIA order denying his request to terminate proceedings and his request for cancellation of removal. He maintained that his conviction for pos-sessing "a pipe and/or packets" that are used for and with the drug methamphetamine is not a violation of law "relating to a controlled substance," so that he is eligible for cancellation of removal. The USCA was not persuaded. It held that the petitioner's conviction was indeed on "relating to a controlled substance" and, as result, it lacked jurisdiction over the petition for review. Beezer, Graber, and Fisher, Circuit Judges. Per Curiam. J. Stanton of Honolulu, HI, for the petitioner; L. Williams of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 27) PREVIOUSLY REMOVED ALIENS: USA v. Ambriz-Ambriz, 08-30431 (9th Cir. Nov. 10, 2009). Ambriz-Ambriz ("Am-briz"), a Mexican citizen, was convicted of an aggravated felony in 1980 and deported from the U.S. in 1985. Sometime thereafter, he reentered the U.S. without inspection or permission. On February 28, 2008, he sought to travel by car from the U.S. to Canada. He was denied entry into Canada. As a result, his vehicle was forced to proceed back into the U.S. where it stopped for inspection at the Roosville Porto Entry. Ambriz subsequently challenged the jury instructions and his conviction of being a previously removed alien found in the U.S. in violation of 8 USC Sec. 1326. He maintained that because he was detained as at a port of entry he was entitled to a jury instruction addressing the official restraint doctrine. The USCA concluded that because Ambriz had not legally left the U.S. on the date of his detention, and was not entering the U.S. from a foreign country, the official restraint doctrine is inapplicable. His travel on Feb-ruary 28, 2008 began in the U.S. but he never officially entered another country. The USCA thus affirmed his conviction and sentence. Cudahy, Rawlinson, and Callahan (author), Circuit Judges. A. Gallagher of Missoula, MT, for the defendant-appellant; AUSA T. Racicot of Missoula, MT, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 28) ALIEN SMUGGLING: USA v. Liera, 07-50546 (9th Cir. Nov. 4, 2009). On February 15, 207, Liera entered the U.S. from Mexico at the Calexico West Port of Energy. He was driving a 1989 Chevrolet pickup truck with Mexican license plates. During a border search of the truck Customs and Border Protection officers found to unrelated aliens, Le Chen and Wu Chen, under the truck's hood lying in separate built-in compartments located on each side of the engine. Liera was convicted of two counts of bringing aliens into the U.S. for financial gain and aiding and abetting, in violation of 8 USC Sec. 1324(a)(2)(B)(ii) and 18 USC Sec. 2. He was also con-victed to two counts of bringing aliens into the U.S. without presentation in violation of 8 USC Sec. 1324(a)(2)(B)(iii). On appeal, Liera's primary argument was that the district court erred by not suppressing incriminating statements Liera made to law enforcement officers during the time they unreasonably and unnecessarily delayed presenting him before a magistrate for arraignment. The USCA agreed and vacated Liera's convictions and remanded for a new trial. The district court erred by not suppressing statement Liera made during a second interrogation because law enforcement officers unnecessarily delayed presenting him to a magistrate for arraignment in violation of Federal Rule of Criminal Procedure 5(a), 18 USC Sec. 3501(c), and the rule of McNabb v. USA, 318 US 332 (1943), and Mallory v. USA, 354 US 449 (1957). The district court's admission of the statements Liera made during the second interrogation was not harmless. The USCA also held that the district court erred by admitting into evidence Le Chen's testimony regarding his mother's statements concerning the cost of smuggling a person into the United States. The USCA affirmed the district court's ruling on the Miranda waiver and the district court's jury instructions. The USCA thus vacated Liera's convictions and remanded for a new trial. Pregerson (author), D.W. Nelson, and Thompson, Circuit Judges. S. Hubacheck 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/) 29) SEARCH & SEIZURE: USA v. Garcia-Villalba, 05-30506 (9th Cir. Nov. 2, 2009). This case concerns a wiretap that led to the takedown of a drug-trafficking organization. Run by members of the Garcia-Villalba family, the drug ring operated in rural Washing-ton. Couriers made drug runs by car to Arizona, where they picked up narcotics that had been smuggled into the U.S. from Mexico. The vehicles contained secret "stash compartments" designed to ferry the drugs back to Washington undetected. There, the couriers were met by higher-ups in the organization, who unloaded and distributed the drugs. The defendant was one such distributor. In 2003, the DEA began an investigation spear-headed by undercover Agent Hackett. Hackett became a reliable customer of the ring. He pur-chased significant quantities of methamphetamine and later bought heroin and cocaine. He obtained three cell-phone numbers from ring members which became the focus of the investigation. After about eight months, a magistrate authorized a pen register and trap-and-trace device to be used on all three numbers. Using information gleaned from the pen register and trap-and-trade device, Hackett identified several ring associates. In March 2004, the DEA sought authorization to wiretap one of the phones. In support of the wiretap application, Agent Hackett submitted an affidavit to U.S. District Judge Lasnik. The affidavit cited the limits of the information provided by physical and aerial surveillance, the pen register, and confidential informants. It also explained why alternative investigatory techniques, such as trash searches, search warrants, grand jury subpoenas, and interviews, were rejected as impractical. Judge Lasnik authorized the wiretap (the "TCT1" wiretap). Two more wiretaps were then sought. Sensing they were abut to break the case wide open, the DEA sought authorization for a fourth wiretap, which the district court approved (the "TCT4" wiretap). TCT4 generated information linking the defendant to narcotics trafficking. The legality of TCT4 is the central issue in this appeal. Based on information obtain from the four wiretaps, Agent Hackett sought a warrant to search four separate structures that he believed were being used as stash houses. A magistrate judge signed the warrant upon concluding that the affidavit established probable cause that narcotics would be found at one of the structures, a residence on Dunbar Road in Mount Vernon, Washington, known as "the choza." Agents executed the warrant and found heroin, cocaine, and methamphetamine, a digital and gram scales, sandwich bags, magazines for firearms, ammunition, drug legers, wire transfer receipts, bills, and receipts. Agents then arrested members of the Garcia-Villalba ring, including the defendant Armando Garcia-Villalba. A grand jury indicted Armando on 46 counts. Prior to trial, he moved to suppress the evidence obtained form the TCT4 wiretaps. The district court concluded that the search of the "choza" was not supported by probable cause, but nevertheless denied the motion to suppress because the officers relief in good faith on the search warrant. After a jury trial, Armando was convicted and sentenced to the mandatory minimum of 120 months in prison followed by five years of supervised release. The USCA affirmed. Armando took no issue with anything that occurred during the trial. Rather, he challenged the denial of his pretrial motions to suppress. In particular, he claims that the government did not adequately demonstrate necessity for the wiretap. He also insisted that the search of the "choza" was not supported by probable cause and that the officers did not rely in good faith on the magistrate's approval of the warrant. The USCA disagreed. The affidavit as a whole speaks in case-specific language and the USCA was persuaded that it contains "a full and complete statement as to whether or not investigative procedures have been tried and failed or why they reasonable appeal to be unlikely to succeed if tried or to be too dangerous." 18 USC Sec. 2518(1)(c). The affidavit was thus sufficient detailed. In addition, the issuing judge did not abuse his discretion in finding that the TCT4 wiretap was necessary. O'Scannlain (author), Kleinfeld, and Berzon, Circuit Judges. B. Holland of Spokane, WA, for the defendant-appellant; AUSA M. Morgan of Seattle, WA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 30) SEARCH & SEIZURE: USA v. Ruckes, 08-30088 (9th Cir. Nov. 9, 2009). Following a search of his vehicle, Ruckes was convicted of being a felon in possession of a firearm and possessing cocaine base with the intent to distribute. He moved to suppress the evidence discovered during that search: a 9mm handgun and over six grams of crack cocaine. After an evidentiary hearing, Judge Bur-gess of the Western District of Washington denied his motion. Ruckes then entered a conditional guilty plea and filed this timely appeal. He maintained that Washington State Trooper Wiley's search was not valid incident to his arrest because he was not arrested until after contraband was located within the vehicle. Following the district court's analysis, the government proffered two alternative theories for upholding the conviction: First, it argues that the search was proper because, under New York v. Belton, 453 US 453 US 454 (1981), when officers have probable cause to effect a full custodial arrest of a vehicle's recent occupant, a search of the passengers compartment of the vehicle is warranted. Second, to the extent the search was not incident to Ruckes' arrest, the firearm and cocaine would have been discovered during a routine inventory search of the vehicle after impound. The district court relied on both grounds to uphold the search. The USCA affirmed. After the case was submitted for decision, Arizona v. Gant, 129 S.Ct. 1710 (2009), limited the applicability of Belton to situations where (1) "the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search," or (2) it is "reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle." Because the USCA found that Wiley's search of Ruckes' vehicle dos not fit within either of these two narrow situation to satisfy the search-incident-to-arrest exception to the warrant requirement, it held that his search cannot be sustained on this theory under the Fourth Amendment. However, because the district court did not err in alternatively holding that the drugs and firearm would have been uncovered during a routine inventory search of the vehicle upon impound, the USCA affirmed its denial of the motion to suppress under the doctrine of inevitable discovery. Because the Washington State Patrol is authorized to both impound and inventory a vehicle when its operator is arrested for driving on a suspended license, Ruckes' loaded pistol and crack cocaine would have inevitably been discovered notwithstanding Wiley's invalid search incident to arrest. The evidence was thus properly admitted under the inevitable discovery exception to the exclusionary rule. Tallman (author) and M.D. Smith, and Reavley, Circuit Judges. J. Sullivan of Seattle, WA, for the plaintiff-appellee; M. Schwartz of Tacoma, WA, for the defendant-appellant. (Download the full text of this decision at www.ce9.uscourts.gov/) 31) FIREARMS: USA v. Mahan, 08-30475 (9th Cir. Nov. 16, 2009). At issue here was whether an individual who trades drugs for guns possesses the firearms "in furtherance of" his drug trafficking offense. Isabell and Copley offered to sell several stolen firearms to Mahan. Copley called his mother to gauge her interest in acquiring them. During this phone call, he also spoke with Mahan, who was living with Copley's motion at the time. Based on Copley's conversation with Mahan, Copley and Isabell drove to his mother's house with the stolen firearms. After smoking some methamphetamine and Mahan supplied, the three left he house and went to a nearby shed, where Copley showed Mahan the guns. After viewing them, Mahan agreed to buy them for a combination of 1/8 ounce of methamphetamine and some $700 in cash. Mahan was eventually arrested and charged on a three-count indictment. The final count charged him with possession of a firearm "in furtherance of" a drug trafficking offense in violation of 18 USC Sec. 924(c). Mahan's motion for acquittal was denied before closing argument. The jury then convicted Mahan. The USCA affirmed. It rejected Mahan's attempt to re-characterize the meaning of "in furtherance of," and again reaffirmed that "intended to be used" and "in furtherance of" are different standards. Given that the statute uses these two phrases in different contexts, the USCA found no reason to interpret the provisions as identical. O'Scannlain (author) and N.R. Smith, Circuit Judges, and Wolle, District Judge. T. Wood of Eugene, OR, for the defendant-appellant; AUSA F. Papagini of Eugene, OR, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 32) JURY INSTRUCTIONS / FRAUD / PERJURY: USA v. Mohsen, 07-10059 (9th Cir. Nov. 25, 2009). Mohsen was convicted by a jury of conspiracy, three counts of perjury, subornation of perjury, eight counts of mail fraud, obstruction of justice, and contempt of court. He was convicted by the same jury (in Phase II of a bifurcated trial) of witness tampering and solicitation to commit arson. On appeal, the USCA rejected his arguments and affirmed. Mohsen first maintained that the district court committed reversible error because it did not instruct the jury on substantive patent law. However, defense counsel failed to propose an instruction on patent law. Mohsen argued that in order to understand the element of materiality in the various perjury and fraud charges against him, the jury needed an instruction on patent law. The USCA disagreed. This was not a patent case. It was a perjury and fraud case. The trial judge correctly instructed the jury on the materiality element of the perjury and fraud charges. USA v. McKenna, 327 F.3d 830, 939 (9th Cir. 2003). The jury heard sufficient unchallenged expert testimony regarding the substance of patent law and of the underlying dispute to understand and convict Mohsen. B. Fletcher and Kleinfeld, Circuit Judges, and Duffy, District Judge. Per Curiam. D. Riordan of San Francisco, CA, for the appellant; AUSA A. Rosen of San Jose, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 33) TAX EVASION / ABUSE OF DISCRETION: USA v. Hinkson, 05-30303 (9th Cir. Nov. 5, 2009). At issue here was the "abuse of discretion" standard and how it limited the power of an appellate court to substitute its own view of the facts for that of the district court. Hinkson refused to pay income tax on business profits. He asserted that the U.S. Constitution forbade the federal government from taxing a person's income. He was investigated by IRS Agent Hines, prosecuted to conviction for income tax evasion by U.S. Attorney Cook, and sentence by District Judge Lodge. While awaiting trial, Hinkson solicited his friend and employee, Elven Joe Swisher, to torture and kill Hines, Cook, and Lodge, for $10,000 per head. Swisher reported Hinkson's solicitations to federal authorities. Hinkson was then indicted, tried and convicted by a jury for solicitation of the murders. Swisher testified on behalf of the government. Hinkson moved for a new trial principally on grounds that Swisher had fraudulently presented himself to Hinkson, and later to the judge and jury, as a Korean War veteran with experience in killing people, but he had no such war service, nor did he have that experience. He had falsely held himself out to be a war hero. The trial court denied the new trial motion. Hinkson appealed that denial and several trial court evidentiary rulings. The USCA granted en banc review of the panel's decision to reverse the district court's denial of Hinkson's new trial motion and, concluded that its "abuse of discretion" standard is in need of clarification. The standard grants a court of appeals power to reverse a district court's determination of facts tried before it, and the application of those facts to law, if the court of appeals forms a "definite and firm conviction that a mistake has been committed." The standard also denies a court of appeals the power to reverse such a determination if the district court's finding is "permissible." As it has previously been left to the USCA to decide, without further objective guidance, whether it has a "definite and firm conviction that mistake has been committed," or whether a district court's finding is "permissible," there has been no effective limit on its power to substituted its judgment for that of the district court. Now, after review of its cases and Supreme Court precedent, the USCA re-state the "abuse of discretion" standard of review of a trial court's factual findings as an objective two-part test. The newly stated "abuse of discretion" test requires the USCA first to consider whether the district court identified the correct legal standard for decision of the issue before it. Second, it then requires the USCA to determine whether the district court's findings of fact, and its application of those findings of fact to the correct legal standard, were illogical, implausible, or without support in inferences that may be drawn from facts in the record. Applying this test, the USCA affirmed the district court's rulings. Judge Fletcher, joined by Judges Pregerson, Wardlaw, and Paez, dissented. Hinkson made three arguments on appeal: First, he argued that the district court wrongly excluded documentary evidence showing that Swisher presented a forged document and lied on the stand; second, he argued that the prosecutor engaged in misconduct when he invoked Swisher's military service in his closing argument despite having substantial reason to suspect that Swisher had lied about that service; third, he argued that the district court abused its discretion in denying his motion for a new trial based upon his discovery after trial of new evidence conclusively establishing that Swisher had lied on the stand. Judge Fletcher would reverse the district court based on Hinkson's first and third arguments. He would hold that the district court abused its discretion when it excluded documentary evidence that would have contradicted Swisher's claim on the stand that he was a decorated veteran. He would also hold that the district court abused its discretion when it denied Hinkson's motion for a new trial. Kozinski, Pregerson, O'Scannlain, Kleinfeld, Wardlaw, W. Fletcher (dissenting), Paez, Callahan, Bea (author), Ikuta, and N.R. Smith, Circuit Judges. D. Riordan of San Francisco, CA, for the defendant; J. De Pue of Washington, DC, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/) 34) SENTENCING: USA v. Tupuola, 08-10422 (9th Cir. Nov. 24, 2009). Tupuola and Maave appealed the district court's denials of their motions for sentence reductions. Both were sentenced under the "career offender" Sentencing Guidelines ranges contained in U.S.S.G. Sec. 4B1.1. They argued that they should each be entitled to a sentence rehearing because at trial they sought downward departures due to the disparity between the crack cocaine Guidelines ranges of U.S.S.G. Sec. 2D1.1 and the career offender ranges. They made this argument even though the district court refused to depart from the Guidelines and sentenced them within the applicable career offender Guidelines ranges. The USCA held that the district court correctly declined to reduce the sentences. Their sentences were not based on a sentencing range that has subsequently been lowed by the Sentencing Commission. Beezer (author), Graber, and Fisher, Circuit Judges. A. Silvert of Honolulu, HI, for the defendants; B. Sameshima of Honolulu, HI, for the plaintiff. (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 1) BANKRUPTCY / LEGAL MALPRACTICE: Holland & Knight, LLP, 08-35814 (9th Cir. Nov. 24 2009) (unpublished). The USCA affirmed the district court's decision granting summary judgment to the law firm Holland & Knight on Alan DeAtley's counter-claim for legal Malpractice in this diversity suit based on Washington Law. DeAtley was judicially estopped from asserting the coun-terclaim. He had claimed an interest in his father's paving business, Superior Asphalt, at the time he filed for Chapter 7 bankruptcy, yet he chose not to list it as an asset. This deprived DeAtley's creditors of his claim of a share in the business, so that DeAtley's debts were discharged without the debtors being able to pursue whatever interest DeAtley had. DeAtley argued that it was unclear whether the interest which he admits he though he had in Superior Asphalt was legally enforceable at the time he filed for bankruptcy. That was for his creditors and the bankruptcy court to decide, not him. The bankruptcy code requires scheduling all assets, including "potential" claims. 11 USC Secs. 521, 541. Failure to list an asset or interest on the bankruptcy schedules causes the debtor to be judicially es-topped from pursuing a claim to recover that interest after discharge. Hamilton v. State Farm Fire & Casualty Co., 270 F.3d 778, 783, 7855 (9th Cir. 2001). DeAtley discharged over $1 million in debts during his Chapter 7 bankruptcy, yet he listed only $26,000 in assets and made no mention of his interest in Superior. The creditors were denied the opportunity to pursue assets of Superior Asphalt, so the district court in the malpractice action properly determined that the district court in the underlying litigation would have "invoked judicial estoppel to protect the integrity of the bankruptcy process." Hamilton, 270 F.3d at 785. DeAtley argued that he acted in good faith on the advice of his bankruptcy counsel in not scheduling his interest in Superior. But counsel's advice did not protect DeAtley from the estoppel, since he got the benefit of the discharge. See Hamilton, 270 F.3d at 784-85; Eastman v. Union Pacific Railroad Co., 493 F.3d 1151, 1157-58 (10th Cir. 2007). In addition, DeAtley's pleading in this malpractice action established the absence of good faith. He claimed that he and his father transferred assets to keep them out of his creditors' hands, and that his "interest" in Superior "became an issue" "during" the bankruptcy. See Notice Regarding Related Litigation, Ex. 1 Para 20(e)-(f), Holland & Knight LLP v. DeAtley, CV-06278 (E.D. Wash., Aug. 29, 2008) (docket entry 160); see also DeAtley v. Barnett, 112 P.3d 540, 543 (Wash. App. 2005) ("the DeAtleys chose to discharge the burdens of [a different] contract obligation and did not list their allegedly matured right of first refusal as an asset"). Judicial estoppel in the bankruptcy context prevents a litigant from abusing the bankruptcy process in this manner. In the alternative, independently compelling the same result, DeAtley lacked standing to bring his suit against his father to enforce his interest in Superior. When a party failed to schedule a claim in bankruptcy, that claim remains the property of the bankruptcy estate even after discharge, and the debtor lacks standing to pursue it. Dunmore v. USA, 358 F.3d 1107, 1112 (9th Cir. 2004). DeAtley claimed that he did not have a claim of ownership of Superior until his father signed a written guaranty in 1994, after the bankruptcy was complete. However, the 1994 guaranty is "sufficiently rooted in the pre-bankruptcy past" and remains part of the bankruptcy estate. In re Ryerson, 739 F.2d 1423, 1426 (9th Cir. 1984). DeAtley's contention that he had no claim to a share of Superior until after the bankruptcy was over was belied by the document he, his wife, and his mother signed and presented to his father before the bankruptcy. The 1994 guaranty, which DeAtley claimed created a new post-bankruptcy right, says that it finishes the process of transferring 50% of the ownership to him "as we have agreed to do for many years." Because DeAtley failed to list the claim on his bankruptcy schedules, his interest in Superior remained part of the bankruptcy estate and did not revert to him upon discharge of his debts. Cusano v. Klein, 264 F.3d 936, 946 (9th Cir. 2001). Because the interest in Superior is not DeAtley's property, he lacks standing to pursue it. His malprac-tice suit against his lawyers for failing to pursue DeAtley's claim in superior more effectively was thus meritless. The underlying litigation in which DeAtley alleges Holland & Knight committed malpractice was doomed to fail for two reasons independent of each other, judicial estoppel and lack of standing. He suffered no damages and summary judgment was appropriate. See Daugert v. Pappas, 704 P.2d 600, 603-04 (Wash. 1985). Alarcon, Kleinfeld, and Clifton, Circuit Judges. (Download the full text of this decision at www.ce9.uscourts.gov/) 2) INSURANCE: Western World Insurance Company v. County
of Hawaii, 08-16462 (9th Cir. Nov. 23, 2009) (unpublished). Western
World Insurance Company appealed from the district court's grant of summary judgment
for the County of Hawaii on the issue of Western World's duty to defend the County
in two pending state court suits. The USCA upheld the district court's declaratory
judgment. The district court correctly determined that Western World had a duty
to defend the County in the pending suits. So long as "the pleadings have
alleged claims for relief which fall within the terms for coverage," there
is a duty to defend whenever there is the mere possibility that coverage exists.
Hawaiian Holiday Macadamia Nut Co. v. Indus. Indem. Co., 872 P.2d 230,
233 (Haw. 1994). The policy covers the off-duty actions of the County's emergency
personnel, as well as the post-mortem handling of human bodies and resulting emotional
distress damages. There is at least a possibility that some of these covered claims
may not be subject to administra-tive exhaustion requirements under Sec. 671-12
of the Hawaii Revised Statutes. Western World has a duty to defend. Beezer, Graber,
and Fisher, Circuit Judges. (Download
the full text of this decision at www.ce9.uscourts.gov/)
4) EMPLOYMENT LAW / DAMAGES: Goddard v. DHL Express (USA), Inc., 08-16919 (9th Cir. Nov. 23, 2009) (unpublished). Defendant DHA Express ("DHL") appealed the judgment of the district court denying its motion for judgment as a matter of law, or alternatively for a new trial, on the ground that the district court should have ordered a new trial because the jury's compensatory damages award of $350,000 stemming from a verdict in favor of plaintiff-appellant Jill Shumway on her Title VII retaliation claim was excessive. DHL argued that: (1) the jury improperly awarded Shumway compensatory damages based on pecuniary loss for a time period subsequent to her voluntary resignation; and (2) the portion of the award representing emotional distress damages is excessive. The USCA affirmed. It reviewed the district court's ruling on the motion for a new trial pursuant to Rule 59(a) of the Federal Rules of Civil Procedure for an abuse of discretion. McEuin v .Crown Equip. Corp., 328 F.3d 1028, 1032 (9th Cir. 2003). The district court's judgment with respect to whether a jury verdict is excessive and warrants either remittitur or a new trial was reviewed for clear abuse of discretion, affording substantial deference to the jury's findings of the appropriate amount of damages. Gasperini v. Center for Humanities, 518 US 417, 434-35 (1996); Del Monte Dunes at Monterey, Ltd. v. Monterey, 95 F.3d 1422, 1434-35 (9th Cir. 1996) ("Del Monte"). A jury's finding on the amount of damages will be upheld unless the amount is "grossly excessive or monstrous, clearly not supported by the evidence, or based only on speculation or guess work." Del Monte, 95 F.3d at 1435. In other words, the damages award must be affirmed unless it is "shocking to the conscience." Brady v. Gebbie, 859 F.2d 1543, 1557 (9th Cir. 1988). DHL maintained that the district court abused its discretion in denying DHL's motion for a new trial because the jury's verdict likely unlawfully included the amount of the controlled credit Shumway would have received for the fourth quarter of 2005 even though she resigned voluntarily before the end of the quarter and failed to allege or prove constructive discharge at trial. The jury's damages verdict was expressed on a general verdict form. It is well settled that courts of appeals "cannot, by way of speculation, pierce the general verdict" to reach conclusions contended for by one party or another to reversed a district court's judgment denying a motion for a new trial on damages. Porterfield v. Burlington N., Inc., 534 F.2d 142, 147 (9th Cir. 1976). The USCA thus declined DHL's invitation to attempt to divine the jury's apportionment of damages within the general verdict. Moreover, even assuming that the jury awarded Shumway $109,461 for the loss of her controlled credit and $240,000 in emotional distress damages, the USCA could not say that the emotional distress damages award was "shocking to the conscience." Brady, 859 F.2d at 1557. Zhang v. American Gem Seafoods, Inc., upheld a district court's decision to deny defendant's motion for remittitur or a new trial, permitting an emotional distress damages award of up to $223,155 to stand based on allegations of the plaintiff, a Chinese-American who had been discharged in violation of Title VII, that his job had been "[his] dream, working in this country," and that he was "troubled" and "couldn't believe it" when he was terminated. 339 F.3d 1020, 1040-41 (9th Cir. 2003). Similarly, Shumway testified that the emotional distress she suffered because of DHL's retaliatory conduct in revoking her controlled credit, lying to her about the 51% rule, and otherwise trying to cover up their unlawful conduct, "was consuming." She testified that the distress from DHL's conduct also "affected [her] personal life," and that it was "the biggest professional disappointment [she had] ever experienced." Shumway's testimony was corroborated by one of her supervisors who said that he thought the lost commission "had really become consuming of her," and that he thought it was "probably starting to impact her professionally and possibly personally as well, so we tried to talk about it." Based on this testimony, and considering the "substantial deference" afforded to a jury's damages determination, Del Monte, 95 F.3d at 1435, the USCA held that the jury's award of damages was not "shocking to the conscience," Brady, 859 F.2d at 1557, and that there was evidence which, if believed, would support the verdict. See Passantino v. Johnson & Johnson Consumer Product, Inc., 212 F.3d 493, 513 (9th Cir. 2000). Noonan and W. Fletcher, Circuit Judges, and Duffy, District Judge. (Download the full text of this decision at www.ce9.uscourts.gov/)
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