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2) SECURITIES LAW: Siracusano v. NECA-IBEW Pension
Fund, 06-15677 (9th Cir. Oct. 28, 2009). Matrixx Initiatives is
a pharmaceutical company that sells cold products through its wholly-owned subsidiary,
Zicam LLC. One of its products is Zicam Cold Remedy. NECA-IBEW Pension Fund and
James Siracusano are the lead plaintiffs in a class action brought against Matrixx
and three Matrixx executives (the "appellees") under the Private Securities
Litigation Reform Act of 1995 ("PSLRA"). On appeal, the plaintiffs alleged
that the appellees violated the Securities Exchange Act of 1934 by failing to
disclose material information regarding Zicam Cold Remedy-specifically, that Zicam
causes a condition called "anosmia," which is a loss of the sense of
smell, in its users. The district granted in part and denied in part the appellees'
motion to dismiss the complaint and the action. The USCA reversed and remanded
for further proceedings. It found that the district court's reliance on the statistical
significance standard to conclude that the appellants failed to establish materiality
was inconsistent with the Supreme Court's rejection of bright-line rules and emphasis
on having materiality determined by the trier of fact. Viewing the Consolidated
Amended Complaint in the light most favorable to the appellants, the USCA held
that the appellants had sufficiently pled materiality to survive dismissal. Similarly,
the inference that appellees withheld the information regarding Zicam and anosmia
intentionally or with deliberate recklessness was as compelling as any plausible
non-culpable explanation. Schroeder, Tashima (author), and Bea, Circuit
Judges. J. Daley of San Diego, CA, for the plaintiff-appellant; M. Yoder of Newport
Beach, CA, for the defendants-appellees. (Download
the full text of this decision at www.ce9.uscourts.gov/)
4) BANKRUPCTY: In re Greene, 07-16067 (9th Cir. Oct. 2, 2009). Greene purchased a parcel of undeveloped land in Sparks, Nevada in May 1994. By August 11, 2004, he had moved a trailer onto the property and was living in it. On August 11, 2004 he also recorded a declaration of homestead with the Washoe County Recorder's Office for the trailer and property. Sixteen days later, on Au-gust 27, 2004, Greene filed a Chapter 13 bankruptcy petition. He conceded that until early August 2004, he never lived on or made any improvements to the property. On October 8, 2004, Wells, a creditor, filed an objection to Greene's claim of a homestead exemption, asserting the Greene's homestead was not his bona fide residence. Greene voluntarily dismissed the petition on February 17, 2005. On August 11, 2005, he was cited by Washoe County for illegally using a recreational vehicle for dwelling purposes. At that time, Greene told authorities he was no longer using the trailer as a dwelling but was sleeping on the property in his tent. On October 17, 2005, Greene filed a Chapter 7 bankruptcy petition (the petition at issue on this appeal, in which he claimed the market value of the property to be $240,000-the same amount as the market value he claimed for the property in his initial Chapter 13 petition in 2004-as exempt pursuant to the Nevada homestead statute. Wells again filed an objection to the claim of exemption, challenging the validity of the homestead exemption and also maintained that, even if the homestead was valid, it should be reduced to $125,000 pursuant to 11 USC Sec. 522(p)(1), because the homestead was acquired within 1215 days of the filing of the petition. The district court affirmed the bank-ruptcy court's decision limiting Greene's homestead exemption to $125,000 pursuant to Sec. 552(p)(1), based on the fact that Greene established residency on his property and filed his homestead claim within 1215 days of filing is bankruptcy petition. The USCA found that the perfection of a homestead exemption does not constitute acquisition of a property interest for purposes of Sec. 522(p)(1). Based on its analysis of the terms used in Sec. 522(p)(1) and their juxtapositions, the USCA found that the most plausible interpretation of Sec. 522(p)(1) is that the act of recording a homestead or moving onto property to establish residence is not an "amount of interest acquired" for purposes of applying the monetary cap in Sec. 522(p). The USCA held that "any amount of interest that was acquire," as used in Sec. 522(p)(1), means the acquisition of ownership of real property and that the monetary cap in Sec. 522(p) does not apply to property to which a debtor acquired title more than 1215 days before she or he filed a bankruptcy petition. That language does not include a homestead claim for the underling property interest, which claim was recorded within the 1215-day period. The USCA also held that, as the facts in the present case were undisputed with regard to when Greene purchased the property, his homestead was not subject to the $125,000 cap contained in Sec. 522(b), because he purchased the property interest more than 1215 days before the bankruptcy filing. The USCA thus reversed the district court's order affirming the bankruptcy court's decision that, where a debtor initiates his residence on the property and records a homestead during the 1215-day period prior to filing his bankruptcy petition, Sec. 522(p) places a monetary cap on the state law homestead even though the debtor purchased the property before the commencement of the 1215-day period. Greene further argued that the bankruptcy court erred in failing to provide him an evidentiary hearing as to the amount of "pre-petition appreciation" of his property before granting the trustee authorization to sell the property. The property subsequently sold for $370,000, far more than the $240,000 to $260,000 he estimated the property was worth in 2004. His claim, in essence, was that the bankruptcy court did not determine what portion of this appreciation occurred prior to the filing of his petition in 2005. Any pre-petition appreciation, he argued, was properly exempted from the estate. The USCA agreed with the bankruptcy court that, on Greene's own admissions, no such pre-petition appreciation occurred. In his 2005 Chapter 7 petition, he declared, under penalty of perjury, that the value of the property was $260,000. If the value of the property in 2005 when he filed the petition was $240,000, the subsequent sale of the property for a higher amount necessarily captured only post-petition appreciation. Greene did not argue that any such post-petition appreciation was exempt. His claim was that the bankruptcy court failed to conduct a hearing to determine how to divide the appreciation pre- and post-petition, so that the pre-petition appreciation would be exempted. As the bank-ruptcy court correctly held, no evidentiary hearing was necessary to resolve this question on these facts. If Greene's claim was that his 2005 petition incorrectly declared the value of the property, the proper course of action would be for him to amend his petition pursu-ant to Fed. R. Bankr. Proc. 1009(a), in which a "voluntary petition, list, schedule, or statement may be amended by the debtor as a mat-ter of course at any time before the case is closed." The USCA noted that a court may disallow the amendment only upon "as showing of bad faith or prejudice to third parties," Arnold v. Gill, 252 B.R. 778, 784 (9th Cir. BAP 2000), but take no position as to whether bad faith or prejudice exists in this case. Berzon and Tashima, Circuit Judges, and Timlin (author), District Judge. D. Rankine of Reno, NV, for the appellant; R. Vohl of Reno, NV, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 5) BANKRUPCTY: Sternberg v. Johnston, 07-16870 (9th Cir. Filed Oct. 1, 2009; amended Oct. 22, 2009). The filing of a bank-ruptcy petition gives rise to an automatic stay that blocks or freezes most judicial actions against the debtor, and permits the debtor to recoup "actual damages," including attorneys' fees, that result from a willful stay violation. 11 USC Sec. 362. At issue here was when a willful stay violation occurs and what attorney fees may be recovered as "actual damages." The USCA affirmed the holding of the district court that appellant Sternberg willfully violated the automatic stay that arose once Johnston filed for bankruptcy. Ninth Circuit caselaw establish that Sternberg had an affirmative duty to comply with the stay. That duty included ensuring that his actions did not prolong a violation of the stay that resulted from a state court motion seeking relief against Johnston that Sternberg filed prior to the bankruptcy. Sternberg willfully violated the stay by defending an overbroad state court order in its entirety and was thus liable for Johnston's actual damages. The USCA also agreed Johnston suffered actual damages of $2,883 for the interference with his work and an additional $20,000 for emotional distress. His actual damages included attorneys' fees incurred in seeking to enforce the stay and to fix the problem caused by the overbroad state court order. Because Johnston's actual damages under Sec. 362(k)(1) did not include fees incurred in prosecuting the adversary proceeding to obtain damages, the USCA vacated the judgment and remanded for proceedings to determine the appropriate amount. Hawkins, Berzon, and Clifton (author), Circuit Judges. M. Carmel of Phoenix, AZ, for the appellants; R. Ellett of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 6) INSURANCE: Westchester Fire Insurance Company v. Mendez, 07-17383 (9th Cir. Oct. 28, 2009). Westchester Fire Insurance Company brought a declaratory relief action against Phil Mendez (dba Professional Aircraft Line Service), its insured policyholder under a commercial general liability insurance policy. Westchester maintained that it had no obligation to defend or indemnity Mendez against the claim at issue because he failed to give proper notice to the insurance company of the claim. The injured party, Northwest Airlines, whose airplane was allegedly damaged by one of Mendez's employees, intervened in the action. The district court entered default against Mendez for repeatedly failing to appear for his deposition. Based on that default, the court entered a default judgment in favor of the insurance company, giving Westchester the declaration it sought. Northwest appealed, contending that it should have been permitted to defendant the declaratory relief action on its own. The USCA agreed, vacated the default judgment, and remanded for further proceedings. Northwest should not be precluded by the default of Mendez in the litigation from presenting its arguments and having them adjudicated on the merits. D.W. Nelson, Berzon, and Clifton (author), Circuit Judges. J. Eyers of Las Vegas, NV, for the intervenor Northwest Airlines; T. Lincoln of Las Vegas, NV, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 7) INSURANCE / ERISA: Standard Insurance Company v. Morrison, 08-35246 (9th Cir. Oct. 27, 2009). At issue here was whether the State of Montana's practice of disapproving insurance policies with clauses vesting discretion in insurers runs afoul of the Employee Retirement Income Security Act of 1974 ("ERISA"). Standard Insurance Company applied to Montana's Commissioner of Insurance, John Morrison, for approval of its proposed disability insurance forms which contained discretionary clauses. Morrison denied the request as was his practice. Standard responded by suing in federal district court, arguing that the subject is preempted by ERISA. The district court granted the Commissioner summary judgment and Standard timely appealed. The USCA affirmed. The Commissioner's practice regulates insurance because it is specifically directed toward entities engaged in insurance and substantially affects the risk pooling arrangement between the insurer and the insured. Kentucky Ass'n of Health Plans, Inc. v. Miller, 538 US 329, 342 (2003). Although the USCA acknowledged the tension between the Commissioner's practice and federal common law concerning the stand of review, it saw nothing that would justify taking the extraordinary step of creating a new exclusion under the savings clause. It thus agreed with the district court that the Commissioner's practice of disapproving discretionary clauses is not preempted by ER-ISA's exclusive remedial scheme. Goodwin, O'Scannlain (author), and Fisher, Circuit Judges. M. Feder of New York, NY, for the plaintiff-appellant; J. Hunt of Helena, MT, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 8) LABOR LAW / ARBITRATION: Balen v. Holland America Line, 07-36011 (9th Cir. Oct. 2, 2009). Balen, individually and on behalf of those similarly situated, appealed a district court's order granting Holland American Line's ("HAL's") motion to compel ar-bitration. Balen maintained that his claims could not be resolved through arbitration, because (1) U.S. law does not permit the arbitra-tion of claims brought under the Seamen's Wage Act, 46 USC Sec. 10313, and (2) a valid arbitration agreement did not cover his claims against HAL. Claims under the Seamen's Wage Act are subject to arbitration pursuant to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("Convention") Balen was subject to an arbitration agreement contained in the Collective Bargaining Agreement between his union and his employer. This arbitration agreement was valid and enforceable under the Convention. The district court thus properly granted HAL's motion to compel arbitration. Balen's claims under the Seamen's Wage Act are subject to arbitration pursuant to the Convention. The arbitration agreement was also valid and enforceable under the Convention. The USCA thus affirmed. Wardlaw, Paez, and N.R. Smith (author), Circuit Judges. G. Miller of Seattle, WA, for the plaintiff-appellant; S. Rummage of Seattle, WA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 9) LABOR LAW: Parth v. Pomona Valley Hospital Medical Center, 08-55022 (9th Cir. Oct. 22, 2009). When an employer changes its shift schedule to accommodate its employees' scheduling desires, the mere fact that pay rates changed, between the old and new scheduling schemes in an attempt to keep overall pay revenue-neutral, does not establish a violation of the Fair Labor Standards Act's "(FLSA's") overtime pay requirements. The USCA concluded, as did the district court, that Parth failed to adduce any evidence or authority to support her claim that Pomona Valley Hospital Medical Center's ("PVHMC's") pay plan violated the FLSA. It concluded that PVHMC was justified in responding to its employees' request for an alternative work schedule by adopting the sought-after schedule and paying the employees the same wages they received under the less-desirable schedule. There was no evidence to suggest that PVHMC was attempting to avoid paying its employees overtime wages, nor could the USCA find any authority that prohibits PVHMC from paying employees different hourly rates when they are assigned different shifts. Canby, Rawlinson, and N.R. Smith (au-thor), Circuit Judges. F. Coughlin of Santa Ana, CA, for the plaintiff-appellant; D. Hart of Los Angeles, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 10) WORKERS COMPENSATION: Pedroza v. Benefits Review Board, 05-75449 (9th Cir. Oct. 1, 2009). Claimant Pedroza, an employee of National Steel and Shipbuilding Company, petitioned the USCA to review the determination of the Benefits Review Board ("BBR") that he is not entitled to benefits under the Longshore and Harbor Worker's Compensation Act ("LHWCA"), because his psychological injuries were caused by National Steel's legitimate, adverse personnel decisions. Both parties agreed that substantial evidence supported the findings of the Administrative Law Judge and BRB that Pedroza's psychological injuries were a result of le-gitimate personnel actions. This left one question: Are psychological injuries that result from legitimate personnel actions compensable under the Longshore Act? The USCA answered in the negative and affirmed the BRB. The USCA held that the BRB's development of the Marino-Sewell doctrine is a reasonable interpretation of the LHWCA and a reflection of its underlying policy. Pregerson and N.R. Smith, Circuit Judges, and Collins (author), District Judge. J. Gillelan of Washington, DC, for the petitioner; R. Alexrod of Solana Beach, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 11) DISCRIMINATION / MUNICIPAL SERVICES: Committee Concerning Community v. Modesto, 07-16715 (9th Cir. Oct. 8, 2009). The plaintiffs-appellants are residents of four predominantly-Latino neighborhoods plus two community groups each representing a neighborhood. The neighborhoods are outside the City of Modesto but within the City's "sphere of influence" although not incorporated into the City proper; such neighborhoods are known as "unincorporated territory" or "islands." The City's sphere of influ-ence include 26 such unincorporated islands partly or completely surrounded by the City (including the four appellant islands) and other unincorporated areas. The plaintiffs filed a complaint in federal district court in 2004, claiming that the actions and inactions of defendants City and Stanislaus County in failing to provide the neighborhoods with adequate municipal services and to bring the neighborhoods into the City constituted intentional discrimination based on race or ethnicity, in contravention of the Constitution and federal statutes, and also of California statutes. The complaint was amended three times. In a series of opinions in 2007, the District Court granted motions for summary judgment that were addressed to the Third Amended Complaint ("TAC") and the plaintiffs' claims were dismissed in their entirety. In a further opinion, the district court awarded costs to the defendants. The plaintiffs appealed these adverse decisions. The USCA affirmed the district court's grant of summary judgment to the defendants on the plaintiffs' equal protection claims regarding access to sewers and the provision of infrastructure. It reversed the district court's grant of summary judgment on plaintiffs' equal protection claims regarding exclusion from the Master Tax Sharing Agreement and law-enforcement response, and remanded those claims to the district court. The USCA also reversed the district court's dismissal of the plaintiffs' claims under the Fair Housing Act, 42 USC Sec. 3604(b), regarding the provision of law-enforcement services. It vacated the district court's dismissal of the plaintiffs' state law claims, instructing that the district court may exercise its discretion whether to reinstate those claims. Finally, the USCA vacated the district court's award of costs to the defendants. Schroeder and Reinhardt, Circuit Judges, and Pollak (author), District Judge. B. Brosnahan of San Francisco, CA, for the appellants; J. McDermott of Los Angeles, CA, for the City of Mo-desto. (Download the full text of this decision at www.ce9.uscourts.gov/) 12) DISCRIMINATION IN EMPLOYMENT: Barker v. Riverside County Office of Education, 07-56313 (9th Cir. Oct. 23, 2009). Barker was employed by the Riverside County Office of Education as a Resource Specialist Program teacher for students with disabilities from May 13, 2002 through August 1, 2006. She was the most experienced special education teacher at the County Office and was regularly asked by other teachers to interpret educational test results. In addition, she received three or four telephone calls per day from her colleagues requesting her opinion and assistance in regard to special education issues with students. Beginning as early as 2003, Barker voiced concerns to her supervisors that the special education services provided by the County Office to its disabled stu-dents were noncompliant with federal and state law. In May 2005, Barker and a coworker filed a class discrimination complaint with the U.S. Department of Education's Office for Civil Rights. Their complaint alleged that the Riverside County Office of Education denied its disabled students the free appropriate public education they are entitled to receive under federal and state law. In June 2005, Barker's supervisors first learned that Barker had filed the class discrimination complaint. In the constructive termination action brought to the USCA, Barker alleged that her supervisors retaliated against her throughout the following school year by intimidating her for filing the class discrimination complaint, failed to respond to her emails and phone calls, excluded her from important staff meetings, changed her work assignments to sites further from her home, reduced her caseload even though the disabled student population increased, and refused to allow her to fill in for other teachers during their vacations. Barker also alleged that she was constructively terminated on August 1, 2005 because her supervisors subjected her to an intolerable work environment. The district court dismissed Barker's lawsuit for lack of standing. On appeal, Barker argued that she had standing to sue the County Office pursuant to the anti-retaliation provisions of both Sec. 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act ("ADA"). The USCA agreed with Barker and thus reversed and remanded. Barker did not allege that she lost her job because her employer discriminated against her because of a disability she had. Rather, she alleged that she was retaliated against and subsequently lost her job because she advocated for disabled students who were receiving inadequate public services-education services provided by a public school-which are covered under Title II of the ADA. Public services provided to disabled students are the focus of Title II of the ADA. Barker's claim thus was appropriately brought under Title II. Pregerson (author) and D.W. Nelson, Circuit Judges, and Singleton, District Judge. J. Cleveland of Riverside, CA, for the appellant; J. Cantrell of Riverside, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 13) ATTORNEYS' FEES: Crockett & Myers, Ltd. v. Napier, Fitzgerald & Kirby, LLP, 07-16191 (9th Cir. Oct. 21, 2009). On or about June 8, 2001, Wendy Nostro retained Brian Fitzgerald, a New York lawyer, to investigate whether the death of her husband in Nevada was due to medical malpractice. Soon after, Fitzgerald contacted a Nevada attorney, J.R. Crockett of Crockett & Myers. Crockett and Fitzgerald orally agreed that they would serve as co-counsel to Nostro and that Fitzgerald would receive 50% of the attorneys' fees for his referral. Fitzgerald also convinced Crocket to reduce his usual contingency fee from 40% to 33.33%. Both attorneys continued to represent Nostro. At some point, Fitzgerald contacted Nostro and requested that she pay her share of the court costs. Nostro contacted Crockett, who advised her that "it was their policy not to go after a client for court costs" and that "she could fire Mr. Fitzgerald." Fitzgerald was not included in this conversation. On June 27, 2003, Nostro discharged Fitzgerald. In October 2004, Crockett informed Fitzgerald that a settlement had been reached in Nostro's suit. Crockett did not forward 50% of the attorneys' fees. After a failed attempt at mediation. Crockett filed for relief in Nevada state court, requesting a judgment that Fitzgerald was only entitled to recovery in quantum meruit. The state action was then removed to federal court on the grounds of diversity of the parties. De-fendants-counter-claimants Napier, Fitzgerald & Kirby, LLP and Brian Fitzgerald filed a Second Amended Counterclaim ("SAC"), alleging (1) breach of the oral referral agreement, (2) breach of the written retainer agreement, (3) breach of the implied covenant of good faith and fair dealing, (4) breach of the duty of loyalty and as a fiduciary by reason of joint venture, and (5) breach of fiduciary duties by reason of joint representation. On June 12, 2006, Crockett offered the counter-claimants $35,000 to settle the case, which they rejected. The district court then dismissed with prejudice all of the relevant SAC counterclaims. The counter-claimants appealed. They also appealed the district court's award of quantum meruit compensation subsequent to a bench trial. Crockett cross-appealed the district court's denial of his post-trial motion for attorneys' fees. The USCA affirmed the dismissal of the counter-claimants' SAC, affirmed the denial of Crockett's motion for fees, and vacated the district court's award of quantum meruit compensation and remanded for recalculation. Because it found that the district court did not properly account for the value of the referral, it vacated the award and remanded for recalculation. D.W. Nelson (author), Berzon, and Clifton, Circuit Judges. M. Hutchison Las Vegas, NV, for the plaintiffs-counter-defendants-appellants-cross-appellees. J. Bass and S. Lionel of Las Vegas, NV, for the defendants-counter-claimants-appellees-cross-appellants. (Download the full text of this decision at www.ce9.uscourts.gov/) 14) PUBLIC RECORDS / REFERENDUM PETITIONS: Doe #1 v. Reed, 09-35818 (9th Cir. Oct. 22, 2009). Washington's Secretary of State and Public Records Officer (together, the "State") and the Intervenors, Washington Coalition for Open Government ("WCOG") and Washington Families Standing Together ("WFST"), appeal a decision of the district court granting the plaintiffs, Protect Marriage Washington ("PMW") and two individual signers of the Referendum 71 petition, a preliminary injunction prohibiting the State from making referendum petitions available in response to requests made under Washington's Public Records Act ("PRA"). Under the Washington Constitution, a referendum must be ordered on a bill passed by the legislature if a specified percentage of voters sign a petition for a referendum. The Referendum 71 petition called for a statewide election on Engrossed Second Substitute Senate Bill 5688 ("SB 5688"), which would expand the rights and responsibilities accorded state registered domestic partners. The PRA makes public records, including referendum petitions, available for public inspection. In seeking a preliminary injunction, the plaintiffs argued that, as applied to referendum petitions, the PRA violates the First Amendment. The USCA found that the district court applied an erroneous legal standard when it applied strict scrutiny to the PRA. The proper analysis was to apply intermediate scrutiny. Applying this analysis, the UCA concluded that the PRA is constitutional as applied to referendum petitions. Accordingly, the USCA held that the PRA as applied to referendum petitions does not violate the first Amendment. Pregerson, Tashima (author), and N.R. Smith, Circuit Judges. J. Bopp of Terre Haute, Indiana, for the plaintiff-appellant; W. Collins of Olympia, WA, for the defendants-appellees; L. Weatherhead of Spokane, WA, and A. Beane of Seattle, WA, for the intervenors-appellants. (Download the full text of this decision at www.ce9.uscourts.gov/) 15) PROPERTY / RENT CONTROL: Barrientos v. 1801-1825 Morton, LLC, 07-56697 (9th Cir. Oct. 9, 2009). 1801-1825 Morton LLC ("Morton"), a landlord subject to the Los Angeles Rent Stabilization Ordinance ("LARSO"), Los Angeles Municipal Code Secs. 151.01 et seq., served notices of eviction on tenants whose rent was subsidized by the federal government, because it desired to raise the rent on the apartment units. Though LARSO prohibits eviction for that purpose, Morton maintained that a U.S. Department of Housing and Urban Development ("HUD") regulation permits the eviction of an assisted tenant during the lease term for "good cause" grounds, which "may include [the] desire to lease the unit at a higher rental." 24 CFR Sec. 982.310(d)(1)(iv). At issue on appeal was whether HUD's "good cause" regulation preempts the operation of the City of Los Angeles' eviction control ordinance. The USCA held that it does not. The eviction notices are invalid for failure to comply with LARSO. LARSO is not preempted by HUD's "good cause" regulation because HUD did not intend to preempt local eviction controls when it enacted Sec. 982.310(d)(1)(iv) and LARSO does not pose any obstacle to the accomplishment of HUD's objectives. The USCA thus affirmed the district court's grant of summary judgment in favor of the tenants, permanent injunctive relief, and award of attorneys' fees. O'Scannlain, Rymer, and Wardlaw (author), Circuit Judges. C. Evans of Irvine, CA, for the appellant; M. Soloff of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 16) PROPERTY / NATIVE AMERICAN LAW: USA v. Milner, 05-35802 (9th Cir. Oct. 9, 2009). At issue on this appeal was whether a group of waterfront homeowners were liable for common law trespass and violations of the Rivers and Harbors Appropria-tion Act of 1899 ("RHA"), 33 USC Sec. 403, and the Clean Water Act ("CWA"), 33 USC Sec. 1311, because the ambulatory tideland property boundary had come to intersect shore defense structures erected by the homeowners. The homeowners had an agreement with the Lummi Nation Indian tribe to lease the tidelands. This allowed the upland owners to construct and maintain bulkheads, rip rap, and other shore defense structures on the tidelands in order to protect their property. The homeowners had an opportunity to renew the lease for an additional 25 years, the maximum lease term allowed by Indian trust lands. Additionally, throughout this litigation the Lummi expressed a desire to negotiate a new agreement, and at least before commencement of this suit, the United States. indicated that its concerns would be satisfied if the homeowners entered into agreements with the Lummi. This action was avoidable but because the homeowners have so far been unable or unwilling to negotiate an agreement with the Lummi, the USCA passed on the merits of the dispute. In a series of summary judgment rulings and after a bench trial, the district court found against the homeowners and ordered them to remove violating structures and to pay a $1,500 civil penalty. The USCA affirmed the district court's decisions on the trespass and RHA claims, and its decision not to grant fees under the Equal Access to Justice Act. The USCA found that the government did not carry its burden on the CWA claim against the Nicholsons, successors in interest to some of the parcels derived from the original patents allowed under an executive order of President Grant; the USCA thus reversed on that claim. B. Fletcher (author), Paez, and Tallman, Circuit Judges. R. Stephens of Bellevue, WA, for the appellants; B. Kipnis of Seattle, WA, for the appellee; H. Johnsen of Bellingham, WA, for the intervenor-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 17) CIVIL FORFEITURE / MEDICAL MARIJUANA / SEARCH & SEIZURE: USA v. $186,416 in U.S. Currency, 07-56549 (9th Cir. Oct. 20, 2009). California state law differs from federal law in its treatment of the distribution and possession of marijuana for purportedly medical purposes. California has concluded that marijuana may have medicinal value, and under California law the distribution and possession of "medical marijuana" is not illegal. Cal. Health & Safety Code Sec. 11362.5(b)(1)(A) (declaring that one purpose of a 1996 voter-approved medical marijuana initiative is "to ensue that seriously ill Californians have the right to obtain and use marijuana for medical purposes), and Sec. 11362.765 (exempting from criminal liability individuals who perform certain actions in-volving medical marijuana). The federal government has not recognized a legitimate medical use for marijuana, however, and there is no exemption for medical marijuana distribution or possession under the federal Controlled Substance Act. The present case concerns $186,416.00 seized by officers of the Los Angeles Police Department ("LAPD") during a search of the United Medical Caregivers Clinic ("UMCC"), a non-profit medical marijuana dispensary owned by the United Medical Caregivers Clinic, Inc. Although the LAPD secured a state court warrant for the search, it failed to inform the issuing court of the extensive evidence that UMCC may have been operating in accordance with California's medical marijuana laws. The state court subsequently approved the release of the seized currency to the United States, which then initiated a federal civil forfeiture action against it. UMCC presented its own claim to the cur-rency. On UMCC's motion the district court suppressed the currency as evidence, holding the search to have been illegal. The district court held, however, that the government had sufficient evidence, independent of the currency itself and of any other evidence tainted by the illegal search, to initiate the forfeiture action against the currency. The USCA held that the evidence relied upon by the district court was itself tainted by the illegal search and should be suppressed, and that without the suppressed evidence the government lacked probable cause to connect the defendant currency to a violation of federal law. The USCA thus reversed the district court's judgment and remanded for further proceedings. Hawkins, Berzon, and Clifton (author), Circuit Judges. P. Gabbert of Santa Monica, CA, for the claimant-appellant; AUSA C. Ewell of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 18) CIVIL PROCEDURE / FEDERAL CLAIMS: Los Altos El Granada Investors v. City of Capitola, 07-16888 (9th Cir. Oct. 7, 2009). Despite clear language from the Supreme Court establishing that "a state court determination may not be substituted, against a party's wishes, for his right to litigate his federal claims fully in the federal courts," England v. La. State Bd. of Medical Examiners, 375 US 411, 417 (1964), two California courts determined that this right to a federal forum was "irrelevant" and struck appellant's clear reservation of its federal claims from its complaint. The federal district court determined that these actions of the California courts should be given preclusive effect in federal court. Although it agreed that it must give full faith and credit to the state court's decision to strike the England reservation from the complaint, the USCA concluded that doing so has no effect on the validity of the appellant's reservation of federal claims. The USCA thus reversed the judgment of the district court. Wallace, Thomas, and Bybee (author), Circuit Judges. R. Coldren of Santa Ana, CA, for the appellant; J. Barisone of Santa Cruz, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 19) CIVIL PROCEDURE / FORUM NON CONVENIENS: Loya v. Starwood Hotels & Resorts Worldwide, 07-35571 (9th Cir. Oct. 2, 2009). This appeal involved the applicability of the doctrine of forum non conveniens to claims arising out of the death of a Washington resident while scuba diving off the coast of Mexico on an expedition arranged by the resort at which he was staying in Cabo San Lucas. In particular, it posed the question whether a claim implicating the Death on the High Seas Act ("DOHSA"), 46 USC Sec. 303001, is subject to dismissal on the basis of forum non conveniens. The district court, relying on Pain v. United Technical Cor-poration, 637 F.2d 775, 780-81 (D.C. Cir. 1980), held that DOHSA actions are within the admiralty jurisdiction of the federal courts, and subject to discretionary dismissal. It then dismissed this action after considering the private and public interest factors that inform a forum non conveniens decision. The USCA agreed that the doctrine of forum non conveniens may be invoked in this case, and con-cluded that the district court did not clearly abuse its discretion in applying it. The Death on the High Seas Act, unlike the Jones Act, does not preclude dismissal on the basis of forum non conveniens. The district court found that Baja California Sur is an adequate alternative forum, reasonably balanced the public and private interest factors that inform a forum non conveniens determination, and concluded that Baja California Sur is more convenient, thus more appropriate, forum. The district court thus dismissed this action on grounds of forum non conveniens. In doing so, it did not clearly abuse its discretion. Dissenting, Judge Kleinfeld thought the district court treated forum non conveniens as less than the "exception tool to be employed sparingly" it is, and applied it overly aggressively. The district court erred as a matter of law by failing to apply to choice of law the factors of Lauritzen v. Larsen, 345 US 571 (1953). While the plaintiff failed to make clear how application of the correct factors would change the result, and should have, the error of law in failing to apply the Lauritzen factors affected an already dubious forum non conveniens determination. Judge Kleinfeld thus thought the USCA should give the district court an opportunity to apply correct law before saying it makes no difference and that the plaintiffs ought to be able to sue in Washington-their and the decedent's home-from where they arranged their Mexican vacation with an American company and the Mexican companies it partnered with. O'Scannlain, Rymer (author), and Kleinfeld (dissenting), Circuit Judges. S. Stafne of Arlington, WA, for the plaintiffs-appellants; M. White of Seattle, WA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 20) ARBITRATION AGREEMENTS BANNING CLASS ACTIONS: Laster v. AT&T Mobility LLC, 08-56394 (9th Cir. Oct. 27, 2009). This case involves a class action claim that a telephone company's offer of a "free" phone to anyone who signs up for its service is fraudulent to the extent that the phone company charges the new subscriber sales tax on the rental value of the "free" phone. The phone company demanded that the plaintiffs' claims be submitted to individual arbitration, pointing to the arbitration clause of the written agreement, which clause required arbitration and barred class actions. Because this is an action invoking diversity of citizenship jurisdiction, the plaintiff-subscribers point to California contract law, which they argued renders both the arbitration clause and the class action waiver unconscionable, hence, unenforceable. At first blush, it would seem that the invalidity of an arbitration agreement banning class actions had been decided in Shroyer v. New Cingular Wireless Services, Inc., 498 F.3d 976 (9th Cir. 2007). But the phone company noted that, unlike the arbitration clause in Shroyer, this arbitration clause provides for a "premium" payment of $7,500 (the jurisdictional limit of California's small claims court) if the arbitrator awards the customer an amount greater than the phone company's last written settlement offer made before selection of an arbitrator. The phone company thus maintained that the arbitration clause is not an artifice that has the practical effect of rendering it immune from individual claims. The USCA found that the new "premium" payment did not distinguish the case from Shroyer and that under California law the present arbitration clause is unconscionable and unenforceable. In addition, the USCA found no merit to the phone company's claim that the Federal Arbitration act pre-empts California unconscionabilty law. The USCA thus affirmed the district court's order. Schroeder, Reinhardt, and Bea (author), Circuit Judges. D. Falk of Palo Alto, CA, for the defendant-appellant; K. Hulett of San Diego, CA, for the plaintiffs-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 21) CONTRACTS / IMMUNITY: Medical Development International v. CDCR, 08-15759 (9th Cir. Oct. 30, 2009). A receiver appointed by a federal district court oversees the delivery of medical care to prisoners incarcerated by the California Department of Corrections and Rehabilitation ("CDCR"). Medical Development International ("MDI") provided medical services for two of CDCR's prisons, without a finalized contract. The Receiver terminated MDI's services. As MDI was not paid for much of its work, it filed suit against the Receiver and CDCR. MDI's claim went been before two different federal district courts, but MDI failed to obtain relief from either. Appeals were been taken by MDI from both and consolidated before the USCA. The primary question present was whether the Receiver is immune from suit for MDI's claim. The USCA concluded that under the circumstances presented here the Receiver may be sued in his official capacity and is not covered by judicial immunity. The USCA also held that the federal district court had subject matter jurisdiction over MDI's suit after it was removed from state court, and that MDI was not required to obtain permis-sion from the court that appointed the Receiver prior to filing suit against him, under 28 USC Sec. 959(a). Silverman, Clifton (author), and M.D. Smith, Circuit Judges. B. Lee of San Francisco, CA, for the appellant; DAG M. Mitchell of Sacramento, CA, and M. Dodd of San Francisco, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 22) ENERGY POLICY: California Energy Commission v. DOE, 07-71576 (9th Cir. Oct. 28, 2009). The California Energy Com-mission ("CEC") petitioned for review of an order of the U.S. Department of Energy ("DOE") denying CEC's request for a waiver of preemption under the Energy Policy and Conservation Act ("EPCA"). The CEC sought this waiver in order to establish water efficiency standards for residential clothes washers, as set forth in its state regulations, Cal. Code Regs. tit. 20, Sec. 1605.2(p)(1). To obtain such a waiver, the CEC was required to show by a preponderance of the evidence that the state regulation was needed to meet unusual and compelling State or local water interests. The DOE rejected the CEC's petition for three separate reasons, and asserted that each of these reasons flowed from CEC's failure to provide adequate information to DOE to allow the federal agency to make an informed decision. The DOE also challenged the USCA's jurisdiction under the EPCA to review the denial of the waiver, raising an issue of first impression in the Ninth Circuit. The USCA held that it has jurisdiction under the EPCA. Because the DOE's stated justifications demonstrated an arbitrary and capricious failure meaningfully to address the CEC's application for a waiver, the USCA reversed the DOE's ruling and remanded for further proceedings. Canby (author) and Wardlaw, Circuit Judges, and Trager, District Judge. J. Blees of Sacramento, CA, for the petitioner; H.T. Byron of Washington, DC, for the respondent; C. Samuels of Washington, DC, for the intervenor-respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 23) VEHICLE CODES: Lone Star Security & Video v. City of Los Angeles, 07-56521 (9th Cir. The opinion of July 10, 2009 has been withdrawn and replaced with the opinion filed Oct. 21, 2009). Lone Star Security sells security systems to homes and businesses. As part of its marketing strategy, it attached advertisements to a number of mobile trailers and parks them for extended periods on residential streets in Los Angeles. Over several years, officers of the Los Angeles Police Department and Los Angeles Department of Transportaiton towed and impounded 77 of Lone Star's trailers for having been parked longer than 72 hours in violation of Los Angeles Municipal Code Sec. 80.73.2 (1987). Lone Star maintained that the Sec. 80.73.2 is invalid under state law and that the Los Angeles violated Lone Star's due process rights under the U.S. Constitution. The district court granted Lone Star summary judgment on the ground that Sec. 80.73.2 is invalid under the California Vehicle Code, but also held that the City was not constitutionally required to provide Lone Star notice each time it towed one of Lone Star's vehicles for violating the 72-hour ruled. Following a bench trial, the district court awarded Lone Star damages reflecting the company's overall losses for all of its trailers towed under Sec. 80.73.2 between 2001 and 2003, irrespective of whether those trailers were in fact parked more than 72 consecutive hours-such that California Vehicle Code Sec. 22651(k) would permit their towing-or were simply parked "for more than 72 hours in the aggregate" during a 73-hour period. The City timely appealed the district court's determination that it received constitutionally sufficient notice before its vehicles were towed. At issue on appeal was not simply whether the claim stated a federal constitutional violation-it did not-but whether it was so wholly insubstantial and frivolous that the district court lacked jurisdiction to entertain it. Also at issue was whether due process required the City to provide notice to Lone Star, a chronic violated of the ordinance, each time it towed one of its vehicles. The USCA held that the City provided constitutionally sufficient notice before towing Lone Star's vehicles, and affirmed the district court's rejection of this due process claim. It also held that the district court lacked subject matter jurisdiction over Lone Star's claim that Sec. 80.73.2 is invalid under state law. Lone Star elected to bring its invalid-ordinance claim only under federal law. There thus were no outstanding state-law claims for the district court to address by way of supplemental jurisdiction. Because Lone Star was left without any remaining causes of action, the USCA said it could not remand with instructions to permit Lone Star to amend its complaint. The USCA thus affirmed the district court's rejection of Lone Star's constitutional notice claim, reversed its grant of summary judgment on Lone Star's invalid-ordinance claim and remanded. In its petition for rehearing, Lone Star argued that it has preserved other claims that it would be permitted to raise on remand. The USCA expressed no opinion on that question and left it to the district court to determine whether further proceedings were warranted. B. Fletcher, Fisher (author), and Gould, Circuit Judges. R. Delgadillo of Los Angeles, CA, for the defendant-appellant-cross-appellee; G. Wallace of Pasadena, CA, for the plaintiff-appellee-cross-appellant. (Download the full text of this decision at www.ce9.uscourts.gov/) 24) FREE SPEECH RIGHTS: Klein v. City of San Clemente, 08-55015 (9th Cir. Oct. 2, 2009). The City of San Clemente flatly prohibits the leafleting of unoccupied vehicles parked on city streets. The USCA held that the petitioners were likely to succeed in demonstrating that the City's justification for its prohibition was insufficient and that they otherwise met the requirements for obtaining a preliminary injunction enjoining enforcement of the City's prohibition. The USCA thus reversed the district court's order denying the petitioners' motion for a preliminary injunction and remanded for further proceedings consistent with this opinion. The record did not support the district court's conclusion that the City's anti-litter ordinance was narrowly tailored to serve a significant government interest. Moreover, the ongoing violation of the petitioners' right to express their political beliefs constitutes irreparable injury, and the public interest strongly favors enforcing free speech protections. Reinhardt, Miner, and Berzon (author), Circuit Judges. M. Kumeta of La Mesa, CA, for the plaintiffs-appellants; E. Richards of Irvine, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 25) FIRST AMENDMENT: Stormans Inc., v. Selecky, 07-36039 (9th Cir. The prior opinion in this case filed on July 8, 2009 has been vacated and a new opinion was filed on Oct. 28, 2009). The Washington State Board of Pharmacy ("Board") promulgated new rules that require pharmacies to deliver lawfully prescribed Federal Drug Administration ("FDA") approved medications and prohibit discrimination against patients, on the ground that the rules violate pharmacies' or their licensed pharmacists' free exercise rights under the First Amendment to the U.S. Constitution. The heart of the controversy lay in whether pharmacists, such as the plaintiffs-appellees here, should be allowed to refuse to dispense a lawful prescription for "Plan B" based on person, moral, or religious beliefs. Approved by the FDA on July 28, 1999, Plan B is a post-coital hormonal emergency contraceptive which contains the same hormones as ordinary birth control pills, estrogen and progestin, in much stronger dosages. It is used to prevent pregnancy after the intended method of birth control fails or after unprotected sexual activity. The plaintiffs-appellees filed suit in federal district court, asking the court to enjoin enforcement of the new rules pending litigation. The district court issued an order granting a preliminary injunction based solely on the plaintiffs free exercise claim. The court then enjoined the State defendants from enforcing the new rules against any pharmacy or pharmacist who refuses to dispense Plan B but instead refers the patient to the nearest source of Plan B or to a nearby source. The State defendants and the Intervenors timely appealed and asked the district court to stay the preliminary injunctions pending appeal. The plaintiffs opposed the stay, but apparently recognizing that the injunction was overbroad, moved to modify the preliminary injunction, seeking to narrow its scope only to the named plaintiffs and their employees. At issue on appeal to the Ninth Circuit was whether the district court abused its discretion by preliminarily enjoining the enforcement of the Board's new rules. The USCA concluded that the district court abused its discretion in applying an erroneous legal standard of review, failing to properly consider the balance of hardships and the public interest, and entering an overbroad injunction. The USCA instructed that the district court apply the rational basis level of scrutiny to determine whether the appellees have demonstrated a likelihood of success on the merits. The district court must also determine whether the appellees demonstrated that they are likely to suffer irreparable harm in the absence of preliminary relief, whether the balance of equities tip in the favor of the three appellees, and whether the public interest supports the entry of an injunction. If the district court finds in favor of the appellees, it must narrowly tailor any injunctive relief to the specific threatened harms raised by the appellees. The USCA thus vacated, reversed and remanded. Wardlaw (author), Clifton, and N.R. Smith, Circuit Judges. K. Waggoner of Seattle, WA, for the plaintiffs-appellees; AAG A. Copsey of Olympia, WA, for the defendants-appellants; R. Alaily of Seattle, WA, for the intervenors. (Download the full text of this decision at www.ce9.uscourts.gov/) 26) FIRST AMENDMENT: Padgett v. Wright, 08-16720 (9th Cir. Oct. 14, 2009). Wright appealed the district court's denial of his motion for summary judgment on grounds of qualified immunity in this 42 USC Sec. 1983 action. After the instant appeal was filed, the case went to trial and a jury found Wright liable to Padgett for deprivation of his First Amendment rights. The USCA dismissed the appeal as moot. Because the trial had already occurred, the USCA found no compelling reason to deviate from the general rule pre-venting it from reviewing a denial of summary judgment. 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 he is entitled to qualified immunity even if the facts shown by the plaintiffs make out a violation of a constitutional right, as it failed to address whether the right at issue was clearly established at the time of the defendant's alleged misconduct. By now, however, a jury has found that Wright did violated Padgett's constitutional rights. While Wright can obtain review of the final judgment by appealing it, the USCA declined to entertain a prejudgment qualified immunity appeal asking it to decide the same question a jury has already decided. The USCA thus dismissed the appeal. Schroeder and Berzon, Circuit Judges, and Strom, District Judge. Per Curiam. T. Master of Redwood City, CA, for the appellant; M.J. Kallis of San Jose, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 27) IMMIGRATION: USA v. Moriel-Luna, 08-50124 (9th Cir. Oct. 29, 2009). Moriel-Luna appealed the district court's denial of his motion to dismiss his indictment for illegal reentry into the United States by a deported alien in violation of 8 USC Sec. 1326. On an earlier appeal, the USCA reversed the district court by concluding that the Immigration Judge ("IJ") at Moriel's deportation hearing should have informed Moriel of possible relief under Secs. 212(c) and 212(h) of the Immigration and Nationality Act ("INA"). The USCA remanded to the district court to determine whether the government could show that the IJ's error did not cause prejudice. On remand, the district court concluded that there was no prejudice because a visa was not immediately available to Moriel, a prerequisite to receiving such relief. The district court also rejected Moriel's new arguments that he could obtain Sec. 212(c) relief without an im-mediately available visa and that the government denied his right to counsel at his deportation hearing. The USCA affirmed. Moriel was ineligible to receive Sec. 212(c) or Sec. 212(h) relief absent an adjustment of status. In order to adjust his status, he needed an immediately available visa. Because a visa petition had neither been filed on his behalf at the time of his hearing nor could have been filed by either his girlfriend or his non-citizen parents, the government has shown that a visa was not immediately available. The IJ also did not deprive Moriel of his right to counsel at his deportation hearing. Gould (author) and Tallman, Circuit Judges, and Panner, District Judge. J. Libby of Los Angeles, CA, for the plaintiff-appellee; D. McCormick of Santa Ana, CA, for the defendant-appellant. (Download the full text of this decision at www.ce9.uscourts.gov/) 28) EVIDENCE / SENTENCING: USA v. Estrada-Eliverio,
07-50191 (9th Cir. Oct. 5, 2009). Estrada-Eliverio challenged the district court's
16-level enhancement of his offense level based on his prior conviction under
California Penal Code Sec. 245(a)(1) for assault with a deadly weapon or by means
likely to produce great bodily injury. He argued that this conviction was not
a "crime of violence for purposes of sentencing enhancement under Sentencing
Guideline Sec. 2L1.2(b)(1)(A)(ii), and that it was improper to en-hance his sentence
on the basis of a prior conviction that was not charged in the indictment and
that was neither proven to a jury be-yond a reasonable doubt nor admitted. Because
these arguments were foreclosed by Ninth Circuit opinions, the USCA affirmed Estrada-Eliverio's
sentence. To obtain a conviction under 8 USC Sec. 1326, the government had to
prove as an element of the offense that Estrada-Eliverio had previously been deported.
See USA v. Barragan-Cepeda, 29 F.3d 1378, 1381 (9th Cir.1994). To prove
Estrada-Eliverio's prior deportation, the government submitted three documents
from his immigration file ("A-file"): a notice of intent to issue a
final administrative removal order, a final administrative removal order, and
a warrant of removal or deportation. Because the seal that normally authenticates
such documents was not visible, they could not be admitted as self-authenticating
documents under Federal Rule of Evidence ("FRE") 902. Over Estrada-Eliverio's
objections, the district court instead admitted the documents under FRE 901, based
on authenticating testimony by Perez, a Border Patrol agent. Perez testified that
such documents are kept in A-files, that the documents offered were copies of
documents from Estrada-Eliverio's A-file, that he, Perez, was the custodian of
that A-file, and that the documents admitted were true and correct copies of the
documents in the A-file, which Perez had personally seen. According to Estrada-Eliverio,
this evidence was critical to the jury's guilty verdict. In challenging his conviction,
Estrada-Eliverio argued that the district court erroneously admitted documents
from the A-file that were not properly authenticated at trial. He maintained that
the district court erred by allowing authentication under FRE 901 and that even
if FRE 901 applied, the government did not satisfy the rule's requirements. At
issue was whether the Federal Rules of Criminal Procedure permit authentication
of official documents under FRE 901. The USCA concluded that they do and, in addition,
that the district court did not abuse its discretion in admitting A-file documents
under Rule 901. The USCA thus affirmed Estrada-Eliverio's conviction. Fisher and
Paez (author), Circuit Judges, and Robart, District Judge. V. Brunkow of
San Diego, CA, for the appellant; AUSA M. Rehe of San Diego, CA, for the appellee.
(Download the full
text of this decision at www.ce9.uscourts.gov/)
30) JURY INSTRUCTIONS: USA v. Rivera-Alonzo, 08-10081 (9th Cir. Oct. 26, 2009). Border Patrol Agent Mendoza encountered Rivera-Alonzo and his cousin Valdez-Cordero after they illegally entered the U.S. near San Luis, Arizona. When Agent Mendoza approached the men, he was wearing his Border Patrol uniform and driving in a marked Border Patrol vehicle. When Rivera and Valdez began running, Agent Mendoza pursued them. As he drew near, he ordered the men in English and Spanish to stop, but both kept running. Agent Mendoza said he made two attempts to physically stop Rivera. On the second attempt, as Mendoza approached, Rivera dove at his legs. A physical struggle ensured. During the struggle, Mendoza initially subdued Rivera by drawing his gun and ordering him to the ground. But when the agent holstered his gun, Rivera began fighting with the Agent again and eventually took the his gun from him, attempting to pull the slide to chamber a round. As Rivera and Agent Mendoza struggled for control of the gun, Agent Oceguera arrived and helped subdue Rivera. Rivera was indicted by a federal grand jury on one count of felony assault on a federal officer in violation of 18 USC Sec. 111(a)-(b). After a two-day jury trial, Rivera was convicted as charged and sentenced to 120 months' imprisonment. The final jury instructions included instructions on (1) felony assault on a federal officer using a deadly weapon; (2) the offense of felony assault on a federal officer involving physical contact with the victim; and (3) self-defense. Rivera's request for a jury instruction on the lesser-included, misdemeanor offense of simple assault was denied. Rivera appealed on the grounds that the district court failed to instruct the jury on the lesser included offense of simple assault. He also challenged his 120 month sentence, arguing that the district court erred in enhancing the sentence for conduct motivated by the official status of the victim under USSG Sec. 3A1.2. The USCA affirmed. A district court does not abuse its discretion in refusing to give an instruction on the lesser included offense, where, as here, a rational jury could not have convicted the defendant of the lesser-included offense without finding the element that would convert the lesser offense into the greater offense. In addition, given the record in this case, the district court did not commit clear error in finding on sentencing that the defendant's conduct was motivated by the victim's official status. Noonan, Berzon, and N.R. Smith (author), Circuit Judges. A. Gonzales of Chandler, AZ, for the appellant; AUSA K. Delord of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 31) PEREMPTORY STRIKES: Gonzales v. Brown, 07-56107 (9th Cir. Oct. 30, 2009). At issue here was the significance of a prosecutor's stated inability to recall the reason for exercising a preemptory strike to remove an African-American potential juror, pur-suant to the second step of the inquire required by Batson v. Kentucky, 476 US 79 (1986). The USCA held that in view of the relatively low number of peremptory challenges that the prosecutor exercised against African-American jurors, the prosecutor's ability to justify her other peremptory challenges with specificity and to the state court trial judge's satisfaction, as well as the fact that two African-American jurors remained on the jury and a third was a prospective juror, the USCA could not say that the California Court of Ap-peals' denial of Gonzalez's Batson claim was contrary to Supreme Court precedent or an objectively unreasonable application of such precedents. The district court thus properly denied habeas corpus relief in this case governed by the Antiterrorism and Effective Death Penalty Act of 1996. The USCA affirmed. Gould (author) and Tallman, Circuit Judges, and Panner, District Judge. S. Perez of Las Vegas, NV, for the appellant; D. Glassman of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 32) MONEY LAUNDERING / SENTENCING: USA v. Van Alstyne, 07-50105 (9th Cir. Oct. 22, 2009). Van Alstyne appealed his conviction for money laundering and the sentence imposed by the district court following a limited remand. After Van Alstyne filed his appeal but before briefing, the Supreme Court decided USA v. Santos, 128 S.Ct. 2020 (2008), which addressed the meaning of the money laundering statute. Van Alstyne argued that Santos required the USCA to reverse his conviction. The USCA agreed in part. It held that Santos undermined the Circuit's earlier approach to determining whether funds arising from a specified illegal activity consti-tute "proceeds" for the purposes of the money laundering statute, 18 USC Sec. 1956, and required a reversal of Van Alstyne's money laundering conviction for two of the three money laundering counts. As to the third count, the USCA affirmed the conviction as consis-tent with Santos. The USCA also agreed with Van Alstyne that the district court erred in calculating the enhancement to the money laundering sentence under Guideline Sec. 2S1.1 in determining his fraud offense level under Guideline Sec. 2F1.1(b)(1), and in impos-ing the restitution requirement, and so remanded for reconsideration of those portions of Van Alstyne's sentence. Hawkins, Berzon (author), and Clifton, Circuit Judges. J. Locklin of Los Angeles, CA, for the appellant; D. McCormick of Santa Ana, CA, for the ap-pellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 33) FRAUD / SENTENCING: USA v. Kilbride, 07-10528 (9th Cir. Oct. 28, 2009). Defendants Kilbride and Schaffer appealed their convictions and sentences for fraud and conspiracy to commit fraud in connection with electronic mail, interstate transportation and interstate transportation for sale of obscene materials, and conspiracy to commit money laundering. Their convictions arose from con-duct relating to their business of sending unsolicited bulk email ("spam") advertising adult websites. They argued that (1) the district court committed reversible error in its jury instructions defining obscenity; (2) 18 USC Sec. 1037, which criminalizes fraud in connection with electronic mail, is unconstitutionally vague as applied to the defendants on its face; (3) the district court committed a clerical error in its written judgment by labeling as felonies defendants' convictions for fraud in connection with electronic mail; (4) defendants' money laundering conspiracy convictions should be reversed because the required related activity charged in the Indictment was not shown beyond a reasonable doubt to be unlawful as defined in 18 USC Sec. 1462; and (5) the district court erred in applying an obstruction of justice enhancement to Kilbride's sentence. The USCA affirmed the convictions and sentences, but remanded to the district court for it to correct the clerical error in the written judgment describing the defendants' misdemeanor convictions as felonies. Hug, B. Fletcher (author), and Hawkins, Circuit Judges. G. Kaufman of Los Angeles, CA, for the defendants-appellants; B. Kane of Washington, DC, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 34) SENTENCING: USA v. Wesson, 08-30177 (9th Cir. Oct. 19, 2009). Wesson, who pleaded guilty to distribution of crack cocaine, appealed the district court's denial of his motion for a sentence reduction. He maintained that he is eligible for such a reduction under Amendment 706 to the Sentencing Guidelines, which reduced by two points the base offense level assigned in Guideline Sec. 2D1.1 to each threshold quantity of crack cocaine. Because Wesson was sentenced as a career offender and was thus not eligible for a reduction of his prison sentence under Amendment 706, the USCA affirmed. W. Fletcher, Gould, and Tallman (author), Circuit Judges. T. Staab of Spokane, WA, for the defendant-appellant; AUSA R. Ellis of Spokane, WA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 35) HABEAS CORPUS: Jones. v. Ryan, 07-99000 (9th Cir. Oct. 2, 2009). Jones, an Arizona inmate on Death Row, appealed the district court's denial of his habeas petition. The USCA held that Jones had been denied constitutionally effective assistance of counsel at sentencing, and reversed the district court. The Ninth Circuit has held that "prejudice may result from the cumulative impact of multiple deficiencies." Harris ex rel. Ramseyer v. Wood, 64 F.3d 1432, 1438 (9th Cir. 1995). Thus, while the lack of neuropsychological testing, partisan mental health experts, and failure to accurately present Jones' life history each would be sufficient to undermine confidence in the sentence, in combination there could be no question that the deficiencies were fatal. B. Fletcher, Hawkins, and Thomas (author), Circuit Judges. T. Goddard of Phoenix, AZ, for the respondents; J. Sands of Tucson, AZ, for the petitioner. (Download the full text of this decision at www.ce9.uscourts.gov/) 36) HABEAS CORPUS / QUALIFIED IMMUNITY: McSherry v. City of Long Beach, 06-55837 (9th Cir. The opinion filed March 30, 2009 has been withdrawn and replaced by the opinion filed Oct. 20, 2009). After McSherry served almost 14 years in prison for kidnapping, raping, and molesting a six-year-old girl, he was exonerated by DNA evidence acquired from George Valdespino and Valdespino's confession to these crimes. McSherry was released from prison pursuant to a writ of habeas corpus issued by the Los Angeles Superior Court. Alleging violations of his civil rights pursuant to 42 USC Sec. 1983, he then filed suit related to his arrest and conviction against defendants City of Long Beach, Long Beach Police Department ("LBPD"), and the officers he claimed wee respon-sible for his faulty conviction, Detective Turley and Sergeant Roberson. The district court granted the defendants summary judgment on the basis of qualified immunity. It held that probable cause existed by McSherry's arrest. In addition, it held that the fabrication of evidence claim failed because (1) McSherry did not present "any evidence that the defendants deliberately fabricated evidence, or acted in any way that produced false information; (2) the District Attorney had conducted an independent investigation of the evidence, and under the totality of the circumstances, there was "no evidence that the defendants knew or should have know that McSherry was innocent; and (3) McSherry failed to make or support any factual allegations of any fabrication of evidence that were logically capable or supporting a claim that Turley used unconstitutionally suggestive interview techniques. Finally, the district court held that the Monell v. Dept. of Soc. Servs. of the City of New York, 436 US 658 (1978), claim against the City and LBPD failed because McSherry did not show a constitutional violation by either Roberson or Turley. The USCA affirmed. First, it held that there existed no genuine issue of material fact regarding probable clause or the legality of McSherry's arrest and detention for trial. Second, it noted that McSherry was offered a DNA test by the prosecution before trial, and he declined, preferring instead to go to trial without delay. Deputy District Attorney Lamb testified that he was willing to waive time to allow the DNA test to be performed, but that McSherry was not. Third, against the record in the case, McSherry put forward insufficient facts and evidence to proceed past summary judgment. The record was devoid of any information, facts, or valid inferences that might undermine the prosecutor's testimony. In fact, the evidence-including the victim's continuing affirmation of her identification of McSherry as her attacker-supported Lamb's deposition testimony. Accordingly, this case was distinguishable from Borunda v. Richmond, 885 F.2d 1384, 1390, and Barlow v. Ground, 943 F.2d 1132, 1136-37, where the prosecutors relied only upon police reports in making their decision to file charges. The case was manifestly so "one-sided" that it did not need to be submitted to a jury. Because McSherry had no case against the officers, and because he tended no facts other than their alleged personal misdeeds as evidence of a policy statement, ordinance, regulation, decision, custom, usage, or practice of either the City of Long Beach of the LBPD that caused his injury, his Monell claim also failed as a matter of law. Trott (author), Clifton, and Callahan, Circuit Judges. M. Borenstein of Los Angeles, CA, for the plaintiff-appellant; M. Mullins of Los Angeles, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 37) HABEAS CORPUS: Libberton v. Ryan, 07-99024 (9th Cir. Oct. 2, 2009). Libberton, James, and Norton were convicted in Arizona state court for crimes connected to the murder of Juan Maya. The prosecution theory at trial was that Libberton, along with James and Norton, severely beat Maya, drove him to an isolated area, killed him, and threw his body down a mine shaft. The prosecution maintained that the Libberton and James were essentially equal participants in the murder and that Libberton, who had recently walked away from a work furlough program, participated in the killing because he wanted to use Maya's car to flee the jurisdiction. The jury returned a verdict of guilty for first degree murder, robbery, theft, and kidnapping. The judge sentenced Libberton to death. Libberton appealed. The USCA concluded that his arguments as to the guilty phase of his trial all failed. Even if it is true that Norton entered into an undisclosed deal with prosecutors before being interviewed by the prosecutor, this would not be material. Libberton failed to estab-lish that, had the alleged oral deal been revealed to the judge, there would have been a reasonable probability of a different outcome. Because he did not meet that standard of materiality, his arguments under Brady v. Maryland, 373 US 83 (1963), Giglio v. USA, 405 US 150 (1972), and Napue v. Illinois, 360 US 264 (1959), failed. However, the USCA also concluded that Libberton's counsel rendered unconstitutionally ineffective assistance with respect to sentencing. The USCA thus affirmed the judgment of the district court with respect to all of Libberton's guilt-phase claims, but reversed and remanded with instructions to grant the writ of habeas corpus with respect to the sentencing. It instructed the district court to grant the state a reasonable amount of time in which to resentence Libberton. If the state chooses not to resentence, Libberton's sentence will automatically be converted to life in prison in accordance with Arizona law. W. Fletcher (author), Clifton, and M.D. Smith, Circuit Judges. J. Cardenas of Phoenix, AZ, for the petitioner; R. Gorman of Tucson, AZ, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 38) PRISONERS' RIGHTS: Brodheim v. Cry, 07-17081 (9th Cir. Oct. 28, 2009). Brodheim, a prisoner at the California Medical Facility ("CMF"), appealed the district court's grant of summary judgment against him on his claim that his First Amendment right to petition the government for redress of grievance was violated by defendant Michael Cry, the prison Appeals Coordinator. The claimed violation occurred when a prison official denied Brodheim's written "interview request," and noted on the denial that he should be "careful" what he writes and requests in his administrative grievances. This was followed by a request from Cry that Brodheim be transferred out of the CMF due to his filing of grievances and this lawsuit. On cross-motions for summary judgment, the district court granted summary judgment for the prison officials on the alternative bases of res judicata and that the undisputed facts failed to establish the required elements of a prison retaliation claims as set forth in Rhodes v. Robinson, 408 F.3d 559 (9th Cir. 2005). The court found that no genuine issue of fact existed as to whether Brodheim suffered any retaliatory adverse action, whether an adverse action was taken in response to protected conduct, or whether his rights were sufficiently "chilled." Even if he had so suffered, the court held that any such adverse action was justified by a legitimate penological interest. As it found that the district court applied incorrect legal standards in reaching these conclusions, the USCA reversed the entry of summary judgment and remanded. Dissenting in part, Judge Bea agreed with the majority except for its treatment of the prison's legitimate penological interest. He thought that the majority's holding that there is no legitimate penological interest in admonishing prisoners to be more respectful in future written grievances is unnecessary to the resolution of the case. If the majority made the exact opposite holding, that there is a legitimate penological interest, summary judgment would still be in error because a rational trier of fact could find, based on Cry having warned Brodheim to "be careful what you write" on this form, that Cry retaliated against Brodheim for either being disrespectful in the grievance, or for having filed the grievance itself. Because there is no legitimate penological interest in warning prisoners not to file grievances, a trial would still be necessary to resolve the issue of Cry's retaliatory motive even if the majority held there was no penological interest in admonishing prisoners to be more respectful. Thus, because the district court erred by granting summary judgment to the defendants no matter which way the USCA decides the issue, it was unnecessary to decide it. However, Judge Bea agreed that the district court erred in granting summary judgments to the defendants so he concurred. Reinhardt and Bea (dissenting in part), Circuit Judges, and Larson (author), District Judge. J. Elford of Oakland, CA, for the appellant; K. Hammond of Sacramento, CA, for the appellee. (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
2) BANKRUPTCY: In re Baer, 07-60043 (9th Cir. Oct. 30, 2009) (unpublished). Baer, a Chapter 7 debtor, appealed pro se from the Bankruptcy Appellate Panel's order dismissing his appeal as untimely under Federal Rule of Bankruptcy Procedure 8002(a). The USCA affirmed. The BAP properly dismissed the appeal because Baer filed his notice of appeal more than ten days after entry of the bankruptcy court's order denying the motion for relief from judgment. See Fed. R. Bankr. P. 8002(a) (requiring that a notice of appeal "be filed with the clerk within 10 days of the date of the entry of the judgment, order, or decree appealed from."); Green v. USA (In re Souza), 795 F.2d 855, 857 (9th Cir. 1986) (requiring strict compliance with Rule 8002(a)'s 10-day provision). The USCA found Baer's arguments about impediments to filing the notice of appeal to be unavailing. B. Fletcher, Leavy, and Rymer, Circuit Judges. (Download the full text of this decision at www.ce9.uscourts.gov/) 3) BANKRUPTCY: In re Marinkovic, 08-17273 (9th Cir. Oct. 29, 2009) (unpublished). Mel M. Marin appealed pro se from the district court's judgment affirming the bankruptcy court's judgment in an adversary proceeding concerning the disposition of money from the sale of Chapter 11 debtor Milivoj Marinkovic's home, and from the bankruptcy court's order denying his motion for leave to sue the bankruptcy trustee. The USCA affirmed. The bankruptcy court properly concluded that the adversary proceeding was a core proceeding because it concerned whether the estate included money from the sale and whether Marin had a valid lien. See Johnston Envtl. Corp. v. Knight (In re Goodman), 991 F.2d 613, 617 (9th Cir. 1993) (explaining that determinations about the nature and extent of the bankruptcy estate constitute core proceedings, and that a proceeding is not removed from the jurisdiction of the bankruptcy court solely because the resolution maybe affected by state law. See also 28 USC Sec. 157(b)(2) (listing examples of core proceedings). The bankruptcy court properly concluded that, regardless of whether the home was held in trusts, the trusts were revocable, and the money held by the bankruptcy trustee from the sale of the home was property of the bankruptcy estate. See Abele v. Phoenix Suns Ltd. P'ship (In re Harrell), 73 F.3d 218, 219 (9th Cir. 1996) (per curiam) (stating that the bankruptcy estate includes all legal or equitable interests of the debtor in property as of the commencement of the case, and that courts look to state law to determine the existence and scope of a debtor's interest in property (quoting 11 USC Sec. 541(a)(1)); Zanelli v. McGrath, 82 Cal. Rptr. 3d 835, 850 (Ct. App. 2008) (explaining that, under California law, property in a revocable trust is deemed property of the settler). The bankruptcy court properly concluded that Marin did not have a secured interest in the sale proceeds. Assuming that Marin had an equitable mortgage on the property, he did not present evidence at trial that his interest was recorded, and thus the bankruptcy trustee's interest had priority over his interest. See Robertson v. Peters (In re Weisman), 5 F.3d 417, 419-20 (9th Cir. 1993) (explaining that the Bankruptcy Code grants the trustee status as a hypothetical bona fide purchaser of real property from the debtor; state law determines whether the trustee's status as a bona fide purchaser prevails over the rights of others; and, under California law, a conveyance of real property must be recorded to be valid against a sub-sequent purchaser); Cal. Civ. Code Sec. 1215 (providing that a lien is a conveyance under California law). Assuming Marin had a lien on the sale proceeds, he did not present evidence at trial they he perfected his lien, and thus the bankruptcy trustee's interest had priority over his interest. See Neilson v. Chang (In re First T.D. & Inv., Inc.), 253 F.3d 520, 526 (9th Cir. 2001) (explaining that the Bankruptcy Code grants the trustee status as a hypothetical creditor with a judgment lien on the estate property and that the trustee takes priority over security interests unperfected under state law). Cal. Com. Code Secs. 9102(42), 9310(a), 9312(b)(3), 9313(a), and 9501(a)(2). Marin lacked standing to raise the California homestead exemption on behalf of the debtor. See Fox v. Smoker (In re No-blit), 72 F.3d 757, 758-59 (9th Cir. 1995) (explaining that the homestead exemption is provided for the benefit of the debtor only, and creditors lack standing to raise the exemption). The bankruptcy court did not abuse its discretion by denying leave to sue the trustee. See Curry v. Castillo (in re Castillo), 197 F.3d 940, 947 (9th Cir. 2002) (The Trustee is immune for actions that are functionally comparable to those of judges, i.e., those functions that involve discretionary judgment). B. Fletcher, Leavy, and Rymer, Circuit Judges. (Download the full text of this decision at www.ce9.uscourts.gov/) 4) AMERICANS WITH DISABILITIES ACT: Watson v. Las Vegas Valley Water District, 08-16748 (9th Cir. Oct. 30, 2009) (unpublished). Watson appealed from the district court's grant of summary judgment to her employer, Las Vegas Valley Water District, in this Americans with Disabilities Act ("ADA") and Title VII action on claims of employment discrimination and retaliation. The USCA affirmed. The district court properly concluded that Watson's claims under the ADA and Title VII were time-barred. The alleged discriminatory act occurred on October 14, 2003, when Las Vegas Valley Water District sent Watson the letter communicating its decision to terminate her employment. See Delaware State Coll. v. Ricks, 449 US 250, 258 (1980). Neither Watson's November 19, 2003 letter requesting reasonable accommodations, nor Las Vegas Valley Water District's November 20, 2003 letter reiterating its termination decision, constituted a separate discriminatory act. Id. From the date of the discriminatory act, Watson had 300 days to file an administrative charge with the Equal Employment Opportunity Commission ("EEOC"). 42 USC Sec. 2000e-5(e)(1). Watson did not file an intake form with the EEOC until August 11, 2004, two days after the deadline. See Laquaglia v. Rio Hotel & Casino, 186 F.3d 1172, 1775 (9th Cir. 1999) ("A detailed, signed intake form … may serve as a charge to initiate administrative proceedings.") Thus Watson's ADA and Title VII claims were time-barred. Hug and Paez, Circuit Judges, and Wu, District Judge.(Download the full text of this decision at www.ce9.uscourts.gov/) 5) AMERICANS WITH DISABILITIES ACT: Reza v International Game Technology, 08-16616 (9th Cir. Oct. 30, 2009) (unpublished). Reza appealed the district court's order granting summary judgment in favor of the defendant International Game Technol-ogy ("IGT"), her former employer, on claims that she was terminated in violation of the Family and Medical Leave Act ("FMLA") and the Americans with Disabilities Act ("ADA"). The USCA affirmed. The FMLA did not require IGT to restore Reza to her lead position or to another position because she was unable to perform an essential function of her position. See 29 CFR Sec. 824.216(c). Reza could not speak, and there is no genuine dispute that speaking was an essential function of her position. Reza also had not shown that IGT violated 29 CFR Sec. 825.220(c) by using her FMLA-protected leave as a negative factor when it eliminated one of the lead posi-tions. See Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1125 (9th Cir. 2001). Accordingly, the district court properly granted summary judgment on Reza's FMLA claim. The district court also properly granted summary judgment on the ADA claim. IGT suffi-ciently engaged in the ADA-mandated interactive process with Reza regarding reasonable accommodations for her speaking disability. See Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128, 1137 (9th Cir. 2001). Reza's December 2004 discussions with IGT resulted in a reasonable accommodation, an extension of Reza's medical leave. See id. at 1135-36. In March 2005, IGT offered Reza another ac-commodation, reassignment to a position on the production line based on restrictions IGT ascertained from Reza's doctor. The reas-signment was a reasonable accommodation because no accommodation would allow Reza to perform the essential functions of the lead position, and there was no vacant equivalent position to which IGT could reassign Reza. See 42 USC Sec. 12111(9)(B); Dark v. Curry County, 451 F.3d 1078, 1089 (9th Cir. 2006); 29 CFR pt. 1630, app. Sec. 1630.2(o). After Reza rejected that reasonable accommodation, she was no longer a qualified individual under ADA. See 29 CFR Sec. 1630.9(d). Finally, as Reza failed to provide medical evidence supporting her new "smells" condition, IGT was not required to engage in further interactive processes, and Reza was not entitled to accommodation under the ADA. See Allen v. Pac. Bell, 348 F.3d 1113, 1115-16 (9th Cir. 2003) (per curiam). Rymer and Tashima, Circuit Judges, and Restani, Court of Intl. Trade Judge.(Download the full text of this decision at www.ce9.uscourts.gov/)
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