1) COPYRIGHTS: Mindys Cosmetics v. Dakar, 09-55134 (9th Cir. July 6, 2010). Plaintiff-appellee Mindys Cosmetics, Inc. ("Mindys") is a cosmetics company owned and operated by members of the Dakar family. Defendant-appellant Kamran is an attorney. In 2007, Kamran registered two of Mindys' trademarks in Sonya Dakar's name. Israel and Natan Dakar brought suit in the name of Mindys against Sonya Dakar, Donna Dakar, and Kamran. Kamran moved under California's anti-SLAPP statute, Cal. Civ. Proc. Code Sec. 425.16, to strike the claims against him. The district court denied the motion. Kamran then brought an interlocutory appeal of the district court's denial. The USCA affirmed the denial of Kamran anti-SLAPP motion to strike Mindys' claims for malpractice, breach of fiduciary duty, fraudulent concealment, and conversion. Mindys alleged claims of fraudulent concealment and conversion based on its contention that the registration of the trademarks in Sonya's name deprived Mindys of its "lawful ownership interest in the subject trademarks." The USCA found that Mindys had made a sufficient prima facie showing of facts supporting both claims to withstand an anti-SLAPP motion to strike. If Sonya did not have an ownership right over the trademark, as Israel and Natan maintained, Kamran may have caused a wrongful appropriation of trademark rights held by Mindys. The USCA thus held that, under a "generous interpretation" of the facts alleged, there is a reasonable probability that Kamran was Sonya's agent such that he, along with Sonya, could be held liable for conversion. Canby and W. Fletcher (author), Circuit Judges, and Tunheim, District Judge. A. Mohajerian of Los Angeles, CA, for the appellee; W. Mills of Los Angeles, CA, for the appellant. (Download the full text of this decision at www.ce9.uscourts.gov/)

2) COPYRIGHT INFRINGEMENT / INTERNET: Toyota Motor Sales v. Tabari, 07-55344 (9th Cir. July 8, 2010). At issue here was the application of the nominative fair use doctrine to internet domain names. Farzad and Lisa Tabari are personal shoppers for cars. They contact authorized dealers, solicit bids and arrange for customers to buy from the dealers offering the best combination of locations, availability, and price. Consumers like the service, as it increases competition among dealers, resulting in a greater selection and lower prices. Auto manufacturers and dealers are not keen on it, as it undermines dealers' territorial exclusivity and lowers profits margins. Until recently, the Tabaris offered this service at buy-a-lexus.com and buyorleaselexus.com. Toyota Motors Sales U.S.A. ("Toyota") is the exclusive distributor of Lexus vehicles in the U.S., and jealous guardian of the Lexus mark. Toyota objected to the Tabaris' use on their website of copyrighted photos of Lexus vehicles and the circular "L" design mark. It also took umbrage at the Tabaris' use of the word "lexus" in their domain names, which it thought was likely to cause confusion as to the source of the Tabaris' websites. The Tabaris removed Toyota's photos and logo from their site and added a disclaimer in large font at the top. But they refused to give up their domain names. Toyota sued, and the district court found infringement after a bench trial. It ordered the Tabaris to cease using their domain names and enjoined them from using the Lexus mark in any other domain name. The Tabaris appeal. The USCA vacated and remanded the district court's decision and awarded the Tabaris their costs on appeal. The USCA instructed that on remand, at the very least, the injunction must be modified to allow some right to use them their domain names to communicate in truthful, non-misleading ways. As to the nominative fair use issue, the USCA noted that when customers purchase a Lexus through the Tabaris, they receive a genuine Lexus car sold by an authorized Lexus dealer, and a portion of the proceeds ends up in Toyota's bank account. Toyota doesn't claim that the business of brokering Lexus cars is illegal or that it has contracted with its dealers to prohibit selling through a broker. Instead, Toyota is using this trademark suit to make it more difficult for consumers to use the Tabaris to buy a Lexus. The district court had applied the eight-factor test for likelihood of confusion articulated in AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir. 1978), and concluded that the Tabaris' domain names infringed the Lexus trademark. But, the USCA has held that the Sleekcraft analysis doesn't apply where a defendant uses the mark to refer to the trademarked good itself. The Tabaris were using the term "Lexus" to describe their business of brokering Lexus cars; when they say "Lexus," they mean Lexus. The USCA noted that it has long held that such use of a trademark is a fair use, namely nominative fair use, and fair use is, by definition, not infringement. The Tabaris did in fact present a nominative fair use defense to the district court. Judge Fernandez concurred that the district court erred in its handling of the nominative fair use defense. But, he wrote separately to disassociate himself from statements by the majority that were not supported by the evidence or by the district court's findings. For example, he could not see the basis for the majority's assertion that the "relevant consumer is … accustomed to shopping online," or that "consumers who use the internet for shopping are generally quite sophisticated" so that they are not likely to be misled. He also said he could not join the gratuitous slap at counsel for Toyota in the majority opinion. And, finally, he did not join in the majority's remarks aimed at nudging the district court to find pro bono counsel for the Tabaris, who have neither chosen to retain their own counsel nor demonstrated that they could not do so. Kozinski (author), Fernandez, (concurring) and N.R. Smith, Circuit Judges. J. Koepke of Los Angeles, CA, for the plaintiff-counter-defendant, appellee; Lisa and Farzad Tabari of Mission Viejo, CA, pro se. (Download the full text of this decision at www.ce9.uscourts.gov/)

3) LANHAM ACT / THE RIGHT OF PUBLICITY: Love v. Sanctuary Records Group, LTD., 07-56008 (9th Cir. July 8, 2010). This appeal presented the issue of whether the Lanham Act and California's common law right of publicity apply extra-territorially to events occurring in Great Britain. Under the circumstances presented by this case, the USCA concluded that such claims are not viable, and affirmed the judgments entered by the district court. In 2004, Brian Wilson, a founding member of The Beach Boys and writer or co-writer of most of the iconic Beach Boy hits, released a solo album called Smile. Wilson then went on tour, with a backup band, to support the album. It had been years since Wilson had toured regularly with The Beach Boys. As part of the settlement of an earlier lawsuit, Mike Love, also a founding member of The Beach Boys, had acquired the right to use The Beach Boys trademark in live performances. He continued to tour as The Beach Boys, playing hundreds of shows each year. As part of a promotion campaign, the Mail on Sunday, a British newspaper, distributed a compact disc, consisting of Wilson's solo versions of Beach Boy songs, along with some of his other solo work, with approximately 2.6 million copies of the paper. The CDs were distributed in the United Kingdom and Ireland. Approximately 425 copies of that edition of the Mail were distributed in the U.S. without the CD, including 18 in California. The cover of the distributed compact disc, entitled Good Vibrations, featured Wilson, along with three smaller photos of The Beach Boys. The small photos of the group included a picture of Mike Love. The front page of the Mail advertised the CD prominently, and included an image of the CD's cover. In addition to sound recordings, the CD contained two videos of live performances by Wilson's band. Love was concerned that Wilson's return to touring and recording would dampen ticket sales for the live performances of his own touring group. He thus sued a variety of parties for their involvement in Wilson's promotion campaign. The district court dismissed for lack of personal jurisdiction the complaint against Big-Time.tv, a British company that licensed and recorded the compact disc, and Associated Newspapers Limited, the publisher of Mail on Sunday. It also dismissed with prejudice Sanctuary Records Group NY, Sanctuary Music Management, Inc., and Sanctuary Music Productions, Inc., on the basis of their unopposed motion asserting that they had nothing whatsoever to do with the case. It also dismissed Melinda Wilson, Brian's wife, from the suit with prejudice, as Love had not been given permission to add her as a defendant, and because the complaint alleged no facts that would support keeping her in the lawsuit. The district court also dismissed the claims for violation of California's statutory and common law rights of publicity after holding that English law, which does not recognize a right of publicity, governed. It dismissed three Lanham Act claims, two for lack of standing, and one after finding that the extra-territorial reach of the statute did not encompass the claims. The district court then dismissed four claims raised only against Wilson, four claims against various defendants for interference with contractual relations and prospective economical advantage, and three copyright claims. Because Love's claims of violation of California fair business practices law depended on the survival of the Lanham Act claims, and because his civil conspiracy allegation depended on the survival of at least one other claim, and that Love had failed to allege acts that would constitute conspiracy, the district court dismissed those two claims as well. The USCA affirmed. Neither the Lanham Act nor California's right of publicity apply extraterritorially. Moreover, the district court did not err in awarding the defendants their attorneys' fees. Thomas (author) and Silverman, Circuit Judges, and Fogel, District Judges. P. Stillman of Cardiff, CA, for the plaintiff-appellant Mike Love; B. Mallen of Los Angeles, CA, for the defendants-appellants Sanctuary Records, Sanctuary Artist Management and Sanctuary Music Productions; N. Johnson of Beverly Hills for defendant-appellee BigTime.tv. (Download the full text of this decision at www.ce9.uscourts.gov/)

4) TAXATION: Bluetooth SIG Inc. v. USA, 08-35312 (9th Cir. July 8, 2010). At issue here was whether an association which owns and markets a wireless networking protocol and the relevant trademark is entitled to exemption from federal income tax as a business league. Bluetooth is a technology that allows for two-way wireless data transmission using radio frequencies between multiple electronic devices over short distances. It provides a language for electronic devices to talk to one another. Originally, it was primarily used to connect mobile phones and wireless headsets. Now it is used for wireless communications between a great variety of products, including personal computers, printers, digital cameras, keyboards, home audio equipment and medical devices. Ericsson Technology Licensing AB began developing Bluetooth. It worked with a few other major manufacturers (Toshiba, IBM, Intel, and Nokia) in refining the Bluetooth technology in an association called "Bluetooth Special Interest Group." Ericsson initially owned the Bluetooth name and patents. The technology companies caused the Bluetooth Special Interest Group to be incorporated as Bluetooth SIG ("SIG") on November 13, 2000 as a Delaware nonprofit corporation to own the name and patents. Its stated purpose was the "development and regulation of technical standards for the compatibility and interoperability of wireless products within a wireless personal network." Ericsson sold all its rights to the Bluetooth name and patents to SIG on February 20, 2001. SIG's operations fell into four categories: specification development, marketing, trademark enforcement, and certification / licensing. First, SIG develops, refines, and adapts the Bluetooth specification. SIG acts as a forum through which different technology manufacturers collaborate in the development process. It does this through meeting, conferences, working groups, and by sharing research results. As a result, the Bluetooth specification is constantly evolving. Second, SIG engages in marketing, public relations, and other promotional activities designed to "influence the acceptance, understand, and use of Bluetooth enabled products." It conducts market research, sponsors trade fairs, and publishes handouts and flyers for trade shows and other events. It also publishes newsletters for members in order to keep them informed of the organization's activities. Third, SIG enforces its trademark both by ensuring that its members conform to the "Bluetooth Brand Book" and by seeking out unauthorized use of the Bluetooth trademark. Fourth, SIG operates a certification and listing program. As of October 2005, SIG had 4,148 members, all independent businesses. SIG has three membership classes: Adopters, Associates, and Promoters. Adopters pay no annual fee, but pay a listing fee of $10,000 per product. Associates pay an annual fee of either $7,500 or $35,000 depending on the size of the manufacturer. Promoters pay no annual fee but enjoy the same benefits as Associates, plus a seat on the board of directors. Between its incorporation and the end of 2000, SIG realized $309,180 in income with $146,985 in expenses. At the end of 2001, it had about $4 million in assets against about $2 million in liabilities (mostly deferred revenue). Its 2001 annual income of about $5.3 million came from membership fees, brand management, and conferences / events. In 2002, SIG applied for an exemption under Internal Revenue Code Sec. 501(c)(6), which exempts business leagues from taxation. In 2004, the IRS denied the application, stating that "Your primary purpose and activity is to promote a single brand of inter-connection technology, rather than the improvement of business conditions of one or more lines of business. In addition, one of your substantial activities consists of providing particular services to individual persons." SIG responded by paying the assessed tax and penalties for 2000, 2001, and 2002 (about $900,000) and then filing administrative refund requests for those years. After waiting the required time period and receiving no response, it sued in federal district court. Its complaint sought a refund of income tax, penalties, additions, and interest paid for 2000-2002 under 28 USC Sec. 1346(a) and IRC Sec. 7422. The district court ruled against SIG. The USCA affirmed. It agreed with the district court that SIG engaged in a business of the sort ordinarily engaged in for profit. It also agreed that SIG provided non-incidental services for particular members. Thus, in granting summary judgment to the U.S. the district court properly held that SIG was not entitled to exemption form taxation under IRC Sec. 501(c)(6). Beezer, O'Scannlain, and Kleinfeld, Circuit Judges. K. Marshall of Saint Louis, MO, for the plaintiff-appellant; B. Rowan of Washington, DC, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

5) TV LOTTERIES: Couch v. Telescope Inc., 08-5637 (9th Cir. July 8, 2010). During broadcasts of the television shows "American Idol" and "Deal or No Deal," viewers had the opportunity to participate in two cash giveaways (the "Games"). The defendants, promoters, and administrators of the Games, ran commercials during each TV broadcast inviting viewers to enter the Games for a chance to win cash prizes. In the "American Idol Challenge," viewers were posed a trivia question about the popular "American Idol" show. In the "Lucky Case" game, viewers of "Deal or No Deal" were shown numbered briefcases and asked to choose the briefcase corresponding to a winning number. For both Games, viewers could enter the drawing by submitting the correct answers within 24 hours, either through a text message for a ninety-nine cent fee in addition to the standard text messaging fees imposed by the viewer's wireless carrier) or through the internet at no charge. Viewers were allowed up to ten entries, and, for each correct submission, the viewer entered a drawing, from which the eventual winner was chosen at random. The plaintiffs entered the Games but did not win. They then sued in federal district court, seeking to represent a class of all individuals who paid the ninety-nine cent text message fee to enter the Games but lost. They claimed that the Games were an illegal lottery under California Penal Code Sec. 319 and thus constituted an unfair business practice. Under California law, an illegal lottery has three elements: (1) distribution of a prize, (2) based on chance, (3) to an individual who has paid valuable consideration. The defendants moved to dismiss the plaintiffs' class action on the basis that the third element-consideration-was missing because the Games had a free method of entry (the internet) available to all participants. Relying on four leading California lottery cases and finding no California law to the contrary, the district court denied the motion. It then granted the defendants' motion to certify its order for interlocutory appeal pursuant to 28 USC Sec. 1292(b) even though it expressly concluded that the jurisdictional predicate of a substantial ground for differences of opinion did not exist. Finding instead that certification was warranted "in the interest of comity," the district court certified a set of questions for the "limited purpose" of having the USCA certify them to the California Supreme Court. The USCA vacated its orders granting permission to appeal, dismissed these appeals for lack of jurisdiction, and remanded to the district court. The district court had ruled that the complaint stated a claim that the defendants conducted an illegal lottery under California Penal Code Sec. 319 and thereby violated California's unfair business practices law, Cal. Bus. & Prof. Code Sec. 17200. Disagreeing, but citing no California law undermining the district court's holding, the defendants sought certification under 28 USC Sec. 1292(b). The district court had concluded that there was no substantial ground for difference of opinion as to its ruling but certified a set of limited questions to the USCA anyway in the "interests of comity" and for the sole purpose of facilitating certification to the California Supreme Court. Because the district court concluded that there was no substantial ground for difference of opinion, an essential requirement for Sec. 1292(b) certification, the USCA vacated its prior order granting permission to appeal and dismissed these appeals for lack of jurisdiction. Kozinski, Trott, and Wardlaw (author), Circuit Judges. J. Westerman of Los Angeles, CA, for the plaintiffs-appellees; C. Hummel of Los Angeles, CA, for the defendant-appellants NBC Universal, et al.; P. Glaser of Los Angeles, CA, for defendant-appellant Endemol USA. (Download the full text of this decision at www.ce9.uscourts.gov/)

6) BANKRUPTCY: In re Penrod, 08-60037 (9th Cir. July 16, 2010). In September 2005, Penrod purchased a 2005 Ford Taurus from a California Ford dealership. According to the figures recited by the Bankruptcy Appellate Panel ("BAP"), the price of the car, including tax and license, was approximately $25,600. Penrod traded in her 1999 Ford Explorer and paid approximately $1,000 down for her new vehicle. She owed over $13,000 on the Explorer and received $6,000 in credit for the vehicle. There thus was over $7,000 in "negative equity on the trade-in vehicle. The dealership paid off the remaining balance on the Explorer and added the negative equity to the amount financed. Penrod financed approximately $31,700 in order to purchase a vehicle that cost approximately $25,600. According to the contract, Penrod was to pay 20% interest on the loan. The dealership subsequently assigned the contract to AmeriCredit Financial Services. 523 days after purchasing the Ford Taurus, Penrod filed for bankruptcy protection under Chapter 13. She still owed $25,675 to AmeriCredit, which included the negative equity from the Ford Explorer. In her Chapter 13 plan, Penrod proposed to bifurcate AmeriCredit's claim into secured and unsecured portions. AmeriCredit objected to the plan, claiming it had a purchase money security interest in the entire amount, including the negative equity. The bankruptcy court held that AmeriCredit did not have a purchase money security interest in the portion of the loan related to the negative equity charges. However, it acknowledged that AmeriCredit had a purchase money security interest in the remaining balance. In doing so, the bankruptcy court adopted the dual status rule, which allows part of a loan to have non-purchase money status, while the remainder is covered by a purchase money security interest. The BAP affirmed in a published opinion. AmeriCredit appealed. At issue on appeal was whether a creditor had a purchase money security interest in the "negative equity" of a vehicle traded in at the time of a new vehicle purchase. The USCA answered this question in the negative and affirmed the BAP decision. The USCA then remanded the case to the bankruptcy court for further proceedings regarding how credit should be given for the rebate and down payment. Goodwin and W. Fletcher, Circuit Judges, and Mills (author), District Judge. W. Burke of Costa Mesa, CA, for the creditor-appellant; K. Klee of Los Angeles, CA, for the debtor-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

7) BANKRUPTCY: Ta Chong Bank Ltd. v. Hitachi High Technologies America, Inc., 08-17007 (9th Cir. July 7, 2010). Ta Chong Bank filed a complaint wherein it asserted several claims against Hitachi High Technologies America based on the Bank's interest in the accounts receivable of a third party, CyberHome Entertainment, Inc., pursuant to certain factoring agreements entered into by those entities. Although the factoring agreements provided that Hitachi would pay the Bank, Hitachi paid CyberHome directly for several months before CyberHome filed for Chapter 7 bankruptcy. The district court dismissed the Bank's claims, reasoning that they were based solely on its interest in CyberHome's accounts receivable, which the bankruptcy court had found to be property of CyberHome's bankruptcy estate. The USCA affirmed. Because the Bank's claims were based on CyberHome's accounts receivable, which were part of the latter's bankruptcy estate, the district court did not err in granting Hitachi's motion to dismiss. Goodwin and W. Fletcher, Circuit Judges, and Mills (author), District Judge. J. Monroe of San Francisco, CA, for the appellant; R. Vasquez of Lafayette, CA, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/)

8) SECURITIES: SEC v. Platforms Wireless Intl. Corp., 07-56542 (9th Cir. July 27, 2010). Platforms Wireless International Corporation ("Platforms") is an Oklahoma corporation whose stock is not registered with the SEC under the Securities Act of 1933. Since March 2000, Platforms' stock has been traded on the Pink Sheets, now known as Pink Quote, an inter-dealer electronic quotation and trading system for registered and unregistered securities. Platforms was working to develop a new technology called the "ARC System" to provide cellular communications services to large geographic territories. Platforms represented that its ARC System would be a low-cost alternative to ground-based cellular antenna towers or satellites. The ARC System was to be comprised of two components: (1) a portable antenna payload, which would receive radio frequency signals from devices such as cellphones and consolidate and relay those signals to ground stations; and (2) aircraft to carry the antenna payload, either several airplanes flying in rotating shifts or an aerostate (a lighter-than-air aircraft). It was undisputed that Platforms never built nor tested a completed ARC System, although by March 5, 2001, it had built and conducted limited ground-based testing on a prototype payload. Between 1998 and January 17, 2000, William Martin owned and operated a sole proprietorship called Intermedia Video Marketing Company ("Intermedia"). During that time he provided consulting services to Platforms as an employee of Intermedia, but he was otherwise unaffiliated with Platforms. Martin alleged that in exchange for those consulting services, Intermedia earned at least 17.45 million unregistered shares of Platforms stock but that those shares were not then issued to Intermedia. Martin became the Chairman and CEO of Platforms in March 2000. Earlier, in January 2000, he transferred his ownership interest in Intermedia to his former wife as part of a divorce settlement. He remained an officer of Intermedia after the transfer and continued to take actions on behalf of Intermedia, including: (1) applying for a business Visa credit card for Intermedia; (2) executing a document that authorized Martin to transfer and sell "any and all … securities … in the name of or owned by" Intermedia; (3) keeping open and using a joint Intermedia / Platforms checking account; and (4) selling Platforms stock from a brokerage account registered to "Intermedia Video Marketing Corp.; Attn: William C. Martin." Martin executed some of the above documents in his capacity as Intermedia's "President" or "President and CEO." In August of 2000, Platforms issued a press release declaring that Platforms "Unveils New Airborne Wireless Communications 'ZeroGravity AeroStructures.'" The press release described technical details and performance characteristics of five discrete AeroStructure models. When the press release was issued, Platforms had only a description of how the ARC System would operate and did not have prototypes built, nor even the money to build a prototype. In two transactions in September 2000 and February 2001, Platforms transferred 17.45 million of the unregistered shares to Intermedia in payment for its consulting services. Three million of those shares were then issued to Draper, Platforms' then- executive Vice President, Chief Operating Officer, and Chief Technology Officer. The remaining 14.45 million shares went to Benefit Consultants, a company affiliated with Charles Nelson, Platforms' Chief Financial Officer and a member of its board of directors. When the shares were issued, Intermedia executed documents transferring its "beneficial ownership" of those shares to Draper and Benefit Consultants. Platforms' General Counsel, Forrest Walworth Brown, issued opinion letters stating that the transfers complied with a safe harbor from Securities Act registration violation. Shortly after receiving the shares, Draper and Benefit Consultants sold them to the public. The Securities and Exchange Commission ("SEC") filed a civil enforcement action. After concluding that there were securities law violations, the district court entered a final judgment under Fed. R. Civ. Proc. 54(b) pursuant to a partial summary judgment against Platforms and Martin. The district court held that Martin and Platforms sold unregistered securities to the public in violation of the registration provisions of Sec. 5 of the Securities Act of 1933, 15 USC Sec. 77e, and that they issued a fraudulent press release in violation of Sec. 10(b) of the Securities Exchange Act of 1934, 15 USC Sec. 78j(b), and Rule 10b-5, 17 CFR Sec. 240.10b-5, promulgated thereunder. The district court ordered Platforms and Martin jointly and severally to disgorge $1.75 million in proceeds from the sales that violated Sec. 5, plus almost $1 million in prejudgment interest. The court denied summary judgment on the SEC's allegations that Martin and Platforms also violated Sec. 10(b) and Rule 10b-5 by issuing five other press releases between May 2000 and March 2001. Martin and Platforms appealed the partial summary judgment and disgorgement order. The SEC cross-appealed the partial denial of summary judgment. The USCA affirmed the partial summary judgment and disgorgement order and dismissed as moot the SEC's cross-appeal. D.W. Nelson and Gould (author), Circuit Judges, and Dowd, District Judge. S. Morris of Santa Monica, CA, for the defendant-appellant and cross-appellee W. Martin; D. Rasmussen of Irvine, CA, for the defendant-appellant and cross-appellee Platforms Wireless; M. Pennington of Washington, DC, for the SEC. (Download the full text of this decision at www.ce9.uscourts.gov/)

9) SECURITIES: Betz v. Trainer Wortham & Company, 05-15704 (9th Cir. July 7, 2010). The USCA previously held in this case that there existed a genuine issue of material fact as to whether Heide Betz's securities fraud claim against Trainer Wortham & Company, David P. Como, First Republic Bank, and Robert Vile (collectively "appellees") was time-barred under 28 USC Sec. 1658(b). Betz v. Trainer Wortham & Co., 519 F.3d 863, 871-72 (9th Cir. 2008), vacated, 79 USLW 3642 (U.S. May 3, 2010) (No. 07-1489). The appellees had sought review of that decision through a petition for a writ of certiorari filed in the U.S. Supreme Court. After deciding a related case, Merck & Co. v. Reynolds, 130 S.Ct. 1784 (2010), which construed the statute of limitations in 28 USC Sec. 1658(b)(1) for the first time, the Supreme Court granted the appellees' certiorari petition, vacated the USCA's prior opinion, and remanded with instructions for the USCA to reconsider the appeal in light of its decision in Merck. Subsequently, on May 26, 2010, the appellees filed a Motion To Remand To District Court For Further Proceedings, arguing that "the new standard established in Merck requires analysis of the facts of this case-an analysis that the District Court is best situated to perform." The appellees further argued that, if granted a remand, they "anticipate making further dispositive motions" on grounds including the statute of frauds and the application of certain terms of the written contract between the parties. The appellees argued that judicial efficiency favors a remand so that these issues could be considered together with the application of the Merck standard to the statute of limitations issues. On June 3, 2010 filed Betz filed a document captioned "Response Of Appellant To Appellees' Motion to Remand To District Court For Further Proceedings." She argued that before remanding the case to the district court, the USCA should reinstate its prior ruling that Betz raised genuine issues of material fact with respect to both actual and constructive discovery. Betz argued that Merck did not create a new standard, and that "the true effect of Merck is to give U.S. Supreme Court approval to the Ninth Circuit's view of actual and constructive discovery." Betz further maintained that the Supreme Court in Merck agreed with the Ninth Circuit that "discovery" in 28 USC Sec. 1658(b) encompasses the facts constituting the violation actually discovered by the plaintiff as well as those facts that a reasonably diligent plaintiff would have discovered; that constructive discovery occurs when a reasonably diligent plaintiff would have actually discovered the facts constituting the violation; and that scienter is one of the facts constituting a securities violation for purposes of the discovery inquiry. Merck, 130 S.Ct. at 1793098. The USCA noted that, although Betz correctly noted that there are similarities between its prior opinion and the Merck decision, the USCA nonetheless concluded that the appellees' Motion To Remand should be granted. The USCA thought a remand was the better procedure for several reasons. First, the district court has procedures available to it relating to the scope of the record and the determination of facts which are not available to the USCA. For example, the district court could choose in its discretion to permit the parties to file supplemental affidavits on any fact issues that are relevant in light of the holding in Merck. See Fed. R. Civ. P. 56(c). Similarly, the district court could entertain a motion to reopen discovery or could order discovery pursuant to Fed. R. of Civ. Proc. 26(b). In addition, the district court has discretion under Fed. R. Civ. Proc. 16 to require the parties to participate in pretrial conferencing to the end of submitting more detailed factual stipulations or statements about contested issues of fact as relevant under the standard set by Merck. In the USCA's view, the variety of tools available to the district court for supplementing the record with necessary facts make a remand the better immediate procedure. Second, the appellees have argued that they plan to bring further "dispositive motions." If that is the case, it is within the province of the district court to elect whether to grapple with those issues before or after resolving the statute of limitations issue that has been brought to center stage by Merck and the Supreme Court's remanded to the USCA. Third, the USCA did not see how it could ever be incorrect, once the Supreme Court has vacated a circuit court decision and remanded for further assessment in light of one of its decisions, for the court of appeals simply to vacate the district court's decision and remand for further proceedings in the light of the pertinent Supreme Court decision. Once the district court has made its decision and a final order is presented, that matter can again be appealed to the USCA. For these reason, the USCA vacated the district court's prior summary judgment on the statute of limitations issue and remand to the district court for further proceedings. Noonan, Gould (author), and Rawlinson, Circuit Judge. (This opinion does not list the attorneys for the parties.) (Download the full text of this decision at www.ce9.uscourts.gov/)

10) CORPORATE COUNSEL: USA v. Graf, 07-50100 (9th Cir. July 7, 2010). At issue here was the relationship between corporate employees and corporate counsel, a problematic matter when the latter are called to testify in opposition to the former during a criminal trial against the corporation's former officers. Defendant-appellant Graf was a founder of, and ostensibly consultant to, Employers Mutual LLC, a Nevada corporation that purported to provide health care benefits coverage to more than 20,000 plan members. In reality, the company was part of an elaborate scheme to defraud individual and small business purchasers of Employers Mutual health insurance plans. Graf was indicted for his involvement in the fraudulent operation of Employers Mutual. The district court held an evidentiary hearing on his motion in limine to exclude the attorneys' testimony and, after evaluating the briefing, written declarations, and oral testimony presented, issued an order allowing several attorneys who had represented Employers Mutual to testify against Graf at his criminal trial. The court found as fact that the attorneys represented only Employers Mutual and that Graf had no individual attorney-client relationship to establish a privilege that would be violated by the proffered testimony. Following a jury trial, Graf moved for a judgment of acquittal pursuant to Fed. R. Crim. Proc. 29. He challenged the ten counts charging misappropriation in connection with a health care benefit program in violation of 18 USC Sec. 669. The district court reserved ruling on the motion until after the jury returned its verdict. The jury found Graf guilty of conspiracy, mail fraud, misappropriation, conducting unlawful monetary transactions, and obstruction of justice. The district court then denied Graf's Rule 29 motion and sentenced him to 300 months' imprisonment, with three years of supervised release. It also ordered a $2,300 special assessment, and imposed restitution of $20,458,419. The USCA affirmed. It held that the district court did not abuse its discretion in requesting, for case management purposes, the government's summary document, in allowing it to be filed under seal, or in maintaining it under seal. The USCA did not find persuasive Graf's other arguments for access to the sealed records. O'Scannlain and Tallman (author), Circuit Judges, and Block, District Judge. AUSA G. Cardona of Los Angeles, CA, for the USA; P. Trevino of Los Angeles, CA, for Graf. (Download the full text of this decision at www.ce9.uscourts.gov/)

11) CREDIT CARDS / TRUTH IN LENDING ACT: Rubio v. Capital One Bank, 08-56544 (9th Cir. July 21, 2010). The appeal in this case arose from a direct-mail credit card solicitation Rubio received from Capital One Bank. The solicitation disclosed a "fixed" annual percentage rate of 6.99% on purchases and balance transfers and named three conditions under which that rate could increase. Three and a half years after Rubio applied for and received Capital One's credit card, the interest rate on purchases and balance transfers increased to 15.9%, even though none of the three triggering conditions occurred. Rubio filed suit, alleging violations of the Truth in Lending Act ("TILA"), the California Unfair Competition Law ("UCL"), and a breach of contract. The district court dismissed each claim under Fed. R. Civ. Proc. 12(b)(6). It reasoned that the required disclosure sufficed as a matter of law. The USCA disagreed, holding that the disclosure was inadequate as a matter of law. It affirmed the district court's dismissal of Rubio's breach-of-contract claim but reversed its dismissal of her claims under TILA and the UCL. The USCA thus affirmed in part, reversed in part and remanded for further proceedings. Judge Graber concurred in part and dissented in part. In her view, the clarity of the disclosure should be considered an issue of fact for the trier of fact. While a finder of fact could conclude, as the majority did, that the disclosure was unclear, Judge Graber thought that a finder of fact also could conclude that the discloser was clear. B. Fletcher (author), Pregerson, and Graber (dissenting in part), Circuit Judges. (Download the full text of this decision at www.ce9.uscourts.gov/)

12) WARSAW & TOKYO CONVENTIONS / DEFAMATION: Eid v. Alaska Airlines, 06-16457 (9th Cir. July 30, 2010). At issue here was the liability of an airline to passengers on an international flight forced to disembark before their voyage was completed. On September 29, 2003, a group of Egyptian businessmen, their wives and a Brazilian fiancée, boarded Alaska Airlines Flight 694 in Vancouver, British Columbia. Their journey had started a few days earlier in Cairo and they were headed for a convention on energy-related products and services in Las Vegas. They were interested in becoming distributors of natural gas equipment manufactured by a Texas company and, to that end, scheduled a meeting with officials of that company who were attending the convention. The nine plaintiffs took up all but three of the first class seats on Flight 694. A tenth passenger was an American, Kimberlie Shealy. According to Shealy, who provided the only independent account of the incident, the flight attendants treated the Egyptians badly, starting early in the flight. She said she "heard some comment by the young man in row one [plaintiff Amre Ginena] about coach passengers using the first class bathroom to a young blond flight attendant [apparently Dalee Callaway]. She said something in response but I could see by her face that she did not like the question. I was surprised by her obvious reaction." About one hour in the flight, Reda Ginena, who was in the front row with his wife and son, stood up to stretch. A second flight attendant, Lee Anne Maykuth, asked him to sit because standing was not permitted right outside the cockpit. Ginena, who was in his 60s, explained that he needed to stretch periodically because his back and circulation problems made protracted sitting extremely painful. Maykuth said he could stand at the rear of the first class cabin. Ginena moved to that location, but a third flight attendant, Robin Duus, came up from coach and ordered Ginena to sit down, using what Shealy described as "an unpleasant loud voice." Shealy said "it was obvious from body language that [Duus] … was not in a good mood from the beginning of the flight. [She] had been glaring at [the Egyptian] group every time she passed through the first class cabin. Duus claimed that at the beginning of the flight Reda Ginena made "a put down to [my] intelligence and my roll [sic] as an authority figure" by asking a scientific question. She refused to answer Ginena's question because it "wasn't really pertinent to anything. It was just an interruption." After Duus asked him to sit, Ginena took his seat but, according to Shealy, Duus continued to hector him: "She wanted to reiterate the fact that he was not suppose to be in the aisle." Ginena responded, "I am sitting down." Duus, according to Shealy, "then gave them a piece of paper and insisted that they fill it out. The older gentleman [Ginena] looked shocked." The form in question was a Customer Inflight Disturbance Report; it was designed to be filled out by the flight crew, not passengers. Ginena's son asked what the form was. According to Ginena, "[Duus] yelled at [my son] to "zip it up, end of discussion." Ginena the elder figured out that the form was actually suppose to be filled out by Duus, and tried to tell her that. In response, according to Shealy, Duus "went ballistic and began pacing between the first row and the galley and yelling. She was completely irrational. [Ginena] and his son could not get a word in." Shealy also claimed that "even at the height of the argument the people in row one were respectful to the flight attendant to the extent that they could be under the circumstances. Mrs. Ginena then told Duus that she couldn't treat passengers this was, to which Duus responded 'I will show you what I can do to you' and thrust another form into her hands." Soon afterwards, according to Shealy, "the flight attendant [Duus] said 'that's it. I'm taking this plane down.' All discussion and loud voices stopped. She went and got a phone and was standing for a second in the middle of the aisle by the galley." And soon thereafter the plane started "a quick descent." When Duus called the cockpit, she announced that she had "lost control of the first-class cabin." Captain Swanigan and First Officer Roberts asked no questions; neither looked through the cockpit window to see what was going on in the cabin. Instead, Swanigan immediately diverted the plane to Reno, where local police and TSA officials were waiting at the gate. The airport police then came onto the aircraft and the passengers were disembarked. The plaintiffs, Swanigan and the flight attendants gave written statements to the police. The plaintiffs protested their innocence but the crew wanted to have the plaintiffs arrested. Swanigan was adamant that the plaintiffs be taken to jail. Nevertheless, the police and TSA quickly cleared the plaintiffs to continue flying. They then asked Swanigan to let them re-board the flight but Swanigan declined, giving as the reason that "his flight attendant would not allow it." With the help of the TSA and police, the plaintiffs then booked seats on America West and were allowed to board the flight even though Alaska contacted America West and urged that the plaintiffs be denied passage. After Flight 694 took off, leaving the plaintiffs behind, a flight attendant announced to the remaining passengers that the plaintiffs had interfered with the flight crew and were responsible for the diversion. Following the incident, Alaska Airlines issued this statement: "I know many of us feel that we were let down because these people were not arrested and also puzzled and dismayed by the ability these same passengers had as they proceeded to another airline, bought tickets and flew to their original destination. Just in case you are wondering, we did inform the other airlines of these people and the incident. One has to question if the system really works." Alaska also reported all nine plaintiffs to the Joint Terrorism Task Force. The plaintiffs suffered serious consequences. Because they had to take a later flight, they missed their scheduled meeting with the manufacturer of natural gas equipment they had hoped to distribute in Egypt. The meeting was rescheduled but, on the afternoon of the meeting, the plaintiffs wee collared by the FBI (responding, apparently, to Alaska's Joint Terrorism Task Force report). The plaintiffs were then marched under guard through the public areas of their hotel and questioned at length: they were interrogated about their Muslim faith, mosque affiliations, employment histories and the incident on Alaska Airlines. Mug shots were taken before the plaintiffs were released. As a consequence, they were two hours later for the rescheduled meeting with the Texas manufacturer, and the hoped-for deal was never consummated. The plaintiffs sued Alaska Airlines alleging damages due to delay under Article 19 of the Convention for the Unification of Certain Rules Relating to International Carriage by Air, Oct. 12, 1919, 49 State. 3000 ("Warsaw Convention"), and a variety of state-law defamation and intentional infliction of emotional distress claims. The district court granted Alaska's motion to dismiss plaintiffs' state-law claims as preempted by the Warsaw Convention. The plaintiffs sought leave to file a supplemental complaint under Fed. R. Civ. P. 15(d), alleging seven new defamation claims based on evidence they obtained during discovery. At about the same time, Alaska filed for summary judgment on the plaintiffs' Warsaw Convention claims. The district court denied the plaintiffs leave to file a supplemental complaint, holding both that the motion was improperly brought under Rule 15(d) and that the statute of limitations on their new defamation claims had expired. The district court also granted Alaska's motion for summary judgment of the Warsaw Convention claim on the ground that the airline was entitled to immunity under the Convention on Offenses and Certain Other Acts Committed on Board Aircraft, Sept. 14, 1963, 20 UST 2941, 704 UNTS 219 ("Tokyo Convention"). The USCA found the record to contain substantial evidence that would support a jury's finding that Captain Swanigan and his crew acted unreasonably toward the plaintiffs. It thus reversed the grant of summary judgment on the plaintiffs' delay claims and remanded them for trial along with their defamation claims for the in-flight announcement after the plane took off from Reno. The USCA affirmed the dismissal of the plaintiffs' defamation claims for the statement made on the ground. It also reversed the district court's denial of the plaintiffs' motion to supplement their complaint. Judge Otero dissented in part and concurred in part. He thought that, depending on whose perspective of the events one adopts, Captain Swanigan is either a dedicated, experienced pilot who believed that an in-flight emergency required him to immediately land his aircraft, or a simpleton in charge of a cockpit crew that failed to follow airline procedures and who was buffaloed by two vindictive flight attendants into needlessly diverting the flight and forcing passengers off the plane. Judge Otero took the former view. More importantly, he noted that the unintended but probable consequence of the standard adopted by the majority for judging the in-flight conduct of a pilot under the Tokyo Convention is risk to passenger and crew safety-an affront to the principal purpose of the Tokyo Convention. Judge Otero thought the majority misinterpreted the standard and examined facts in hindsight that were unknown to Captain Swanigan at the time of the event, concluding that he may have acted unreasonably. Judge Otero dissented from the adoption of a reasonableness standard in favor of a more deferential arbitrary or capricious standard. Kozinski (author) and N.R. Smith, Circuit Judges, and Otero, District Judge. G. Gaynor of Santa Barbara, CA, for the appellants; D. Rushing of San Diego, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

13) EMPLOYMENT DISCRIMINATION: Breiner v. Nevada Dept. of Corrections, 09-15568 (9th Cir. July 8, 2010). In September 2003, the Inspector General ("IG") of the Nevada Department of Corrections ("NDOC") learned that a female inmate at the Southern Nevada Women's Correctional Facility ("SNWCF") had been impregnated by a male guard. In the course of his investigation, the IG discovered that SNWCF had become "an uninhibited sexual environment." He noted "frequent instances of inappropriate staff/inmate interaction," "flirtatious activities between staff and inmates," and "widespread knowledge" of "long-term inmate/inmate sexual relationships." In exchange for sex, prison staff routinely introduced contraband into the institution, including alcohol, narcotics, cosmetics, and jewelry. The inmates freely admitted that their sexual behavior was designed to "compromise staff and enhance inmate privileges"-this, the IG's said, was, "predictable." He attributed the misconduct of guards to "a lack of effective supervisory management oversight and control." There was no evidence that supervisors or managers recognized the risky behavior or did anything to stop it. To address this "leadership void," the IG recommended that "line supervisors undergo leadership training" and that "subordinate staff undergo re-training with emphasis on inmate con games and ethical behavior." In the wake of the IG's report, which ignited "very high profile" media coverage, NDOC Director Jackie Crawford decided to hire only women in SNWCF's three correctional lieutenant positions. Correctional lieutenants are shift supervisors and the senior employees on duty 75% of the time. The plaintiffs, all male Nevada correctional officers, were not among the men who applied for the SNWCF correctional lieutenant positions. They nevertheless filed charges with the Equal Employment Opportunity Commission and each received a right to sue notice. They then filed suit alleging that the state's decision to limit the correctional lieutenant positions to women violated Title VII's prohibition on sex discrimination in employment. The district court granted NDOC's motion for summary judgment, holding that the gender restriction on the three correctional lieutenants positions at SNWCF had a "de minimis" impact on the plaintiffs' overall promotional opportunities within NDOC, and that it was thus unnecessary to decide whether the positions fell within Title VII's exception for jobs in which sex is a bona fide occupational qualification ("BFOQ"), 42 USC Sec. 2000e2(e)(1). Alternatively, the district court concluded that NDOC had carried its burden of proving that "gender constitutes a BFOQ for the three correctional lieutenant posts at SNWCF," because the restriction was designed to meet "NDOC's goal of reversing the very real and documented problems at SNWCF." The USCA reversed and remanded. Restricting employment opportunity on the basis of gender can be justified by the need to counter uncontrollably violent inmate behavior, as in Dothard.v. Rawlinson, 433 US 321 (1977). But this case concerned the behavior of employees, not inmates. Precluding men from serving in supervisory positions in women's prisons is not a substitute for effective leadership and enforcement of workplace rules. As NDOC's correctional lieutenant restriction denied promotional opportunities on the basis of sex and was neither "de minimis" nor "reasonably necessary to the normal operation" of SNWCF, 42 USC Sec. 2000e-2(e)(1), it violated Title VII. The USCA thus reversed the district court's order granting summary judgment to the defendants and remanded for further proceedings. Noonan, Berzon (author), and Ikuta, Circuit Judge. J. Marcin of Las Vegas, NV, for the appellants; R. Madsen of Los Vegas, NV, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

14) FIRST AMENDMENT / ANONYMOUS SPEECH: In re Anonymous Online Speakers, 09-71265 (9th Cir. July 12, 2010). This case grew out of an acrimonious and long-running business dispute between Quixtar, Inc., successor to Amway Corporation, and Signature Management TEAM, LLC ("TEAM"). Quixtar sued TEAM, claiming that TEAM had orchestrated an internet smear campaign via anonymous postings and videos disparaging Quixtar and its business practices. As part of the discovery process, Quixtar sought testimony from Benjamin Dickie, a TEAM employee, regarding the identity of five anonymous online speakers who allegedly made defamatory comments about Quixtar. When Dickie refused to identify them on First Amendment grounds, the district court ordered him to disclose the identity of three of the five speakers. The Anonymous Online Speakers sought a writ of mandamus directing the district court to vacate its order regarding the identity of the three speakers. Quixtar cross-petitioned for a writ of mandamus directing the district court to order Dickie to testify regarding the identity of the anonymous speakers. Because neither party established that it is entitled to the extraordinary remedy of mandamus, the USCA denied both petitions. The USCA thus denied both the Anonymous Online Speakers' petition and Quixtar's cross-petition. Thomas, McKeown (author), and Bybee, Circuit Judges. J. Desmond of Reno, NV, for the petitioner; C. Chao of San Francisco, CA, for the real-party-in-interest and cross-petitioner. (Download the full text of this decision at www.ce9.uscourts.gov/)

15) ENVIRONMENTAL LAW / CERCLA: California Dept. of Toxic Substances Control v. Hearthside Residential Corp., 09-55389 (9th Cir. July 22, 2010). This case presented a question of first impression as to whether "owner and operator" status under the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA") is determined at the time that cleanup costs are incurred or at the time that a recovery lawsuit seeking reimbursement is filed. The USCA held that the owner of the property at the time cleanup costs are incurred is the current owner for purposes of determining CERCLA liability. It thus affirmed the district court's partial summary judgment grant and remanded for further proceedings not inconsistent with the USCA's decision. D.W. Nelson and Gould (author), Circuit Judges, and Gwin, District Judge. D. Robinson of Los Angeles, CA, for the plaintiff-appellee; M. Forsythe of Irvine, CA, for the defendant-appellant. (Download the full text of this decision at www.ce9.uscourts.gov/)

09-16) ENVIRONMENTAL LAW / TIMBER SALVAGE SALE: Alliance for Wild Rockies v. Cottrell,35756 (9th Cir. July 28, 2010). The Alliance for the Wild Rockies ("AWR") appealed the district court's denial of its motion for a preliminary injunction. AWR sought to enjoin a timber salvage sale proposed by the U.S. Forest Service. Citing Winter v. Natural Resources Defense Council, 129 S.Ct. 365 (2008), the district court held that AWR failed to show the requisite likelihood of irreparable injury and success on the merits. After hearing oral argument, the USCA issued an order reversing the district court and directing it to issue the preliminary injunction. Alliance for Wild Rockies v. Cottrell, No. 09-35756, 2010 WL 2640287 (9th Cir. June 24, 2010). In the instant opinion, the USCA set forth the reasons for its reversal, and clarified an aspect of the post-Winter standard for a preliminary injunction. It held that the "serious questions" test remained valid post-Winter and that the district court erred in denying AWR's request for a preliminary injunction. AWR established a likelihood of irreparable injury if the project continues. AWR also established "serious questions" on the merits of its claims under the ARA. Because AWR has done so with respect to the claim under the ARA, the USCA did not reach its claims under NFMA and NEPA. The balance of hardships between the parties tipped sharply in favor of AWR. Finally, the USCA found that public interest favored a preliminary injunction. Judge Mosman concurred while noting that there are good reasons to treat the likelihood of harm and the likelihood of success differently. As between the two, a district court at the preliminary injunction stage is in a much better position to predict the likelihood of harm that the likelihood of success. W. Fletcher (author) and Rawlinson, Circuit Judges, and Mosman (concurring), District Judge. M. Bishop of Helena, MT, for the appellant; J. Arbab of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

17) AMERICANS WITH DISABILITIES ACT: Brownfield v. City of Yakima, 09-35628 (9th Cir. July 27, 2010). Brownfield began working as a police officer for the City of Yakima Police Department ("YPD") in November 1999. Approximately one year later, he suffered a head injury in an off-duty car accident. After recovering from symptoms including reduced self-awareness, he returned to full duty in July 2001. He received positive performance evaluations and was awarded several commendations over the next three years. In June 2004, he complained to his superior, Sergeant Amos, about Officer Dejournette, Brownfield's community service partner for the Police Athletic League ("PAL") and Drug Abuse Resistance Education ("DARE") matters. In an inter-office memo titled "Unethical work practices," Brownfield wrote that Dejournette neglected his duties with respect to the DARE program to work on fraud cases, forcing Brownfield to complete tasks assigned to Dejournette. Brownfield also complained that he "was not recommended for the SWAT team because of PAL and DARE. He thought it unfair that Dejournette could work on fraud cases and disregard DARE. The memo also took issue with Dejournette's use of comp-time and overtime. In particular, Brownfield was disturbed that Dejournette was given 20 hours in "time owed" because Lt. Merryman requested that Brownfield "spend more hours on the development of PAL, but had never offered [him] time owed as a reward." Brownfield continued, "If Lt. Merryman is giving Dejournette time owed for work with PAL it would be a great dishonor to [a third officer] and [Brownfield] since [they] give an enormous amount of time to PAL without compensation." Finally Brownfield argued that Dejournette and Merryman were too friendly with each other. Over the next year, Brownfield compiled notes on Dejournette's perceived shortcomings. These notes detailed Dejournette's failure to complete reimbursement requests, grant applications, and time sheets in a punctual manner, his continued use of overtime and comp-time, and his generally "lackadaisical approach to PAL duties." In May 2005, after Merryman reprimanded Brownfield for failing to schedule an event, Brownfield forwarded his notes to YPD Chief Sam Granato. Shortly after forwarding his notes, Brownfield composed a second email to Granato complaining that Dejournette closed the PAL facility early for illegitimate reasons. On May 11, 2005, Brownfield, Merryman, and Amos met to discuss Brownfield's problems with Dejournette. Midway through the meeting, Brownfield used an expletive in stating that he needed to talk to a union representative. Despite an order from Merryman to remain in the room, Brownfield stood and left. When Amos found Brownfield speaking to another officer, Brownfield swore at him and demanded he leave the room. Brownfield was temporarily suspended for insubordination as a result of this incident. He later explained that he had expected to meet with Granato and was concerned that the meeting included Merryman, who was the subject of some of his complaints. Brownfield stated that he was "consumed" with anger and fear, and he recognized that he needed to take a break. In September 2005, there were four more incidents that led the YPD to refer Brownfield for a fitness for duty exam ("FFDE"). Dr. Decker conducted the FFDE and diagnosed Brownfield as suffering from "Mood Disorder due to a General Medical Condition with mixed features," which manifested itself in "poor judgment, emotional volatility, and irritability" and which could be related to Brownfield's prior head injury. She found Brownfield unfit for police duty and permanently disabled. Brownfield was transferred from administrative to Family Medical Leave Act ("FMLA") leave. In December 2005, Brownfield was injured in another off-duty car accident. He suffered minor back and neck injuries and were treated by his primary care physician, Dr. Gondo. Dr. Gondo singed a release form stating that Brownfield "[could] perform the physical activities described in the job analysis" and references his FMLA leave status. A report attached to the document described Brownfield's recent injuries, but not his preexisting psychological problem. YPD forwarded Dr. Decker's report to Dr. Gondo and asked whether he would defer to its findings, and if not, to provide his mental health qualifications and basis for disagreement. Dr. Gondo stated that he would not defer, but failed to respond to the latter inquiries. In May 2006, the City informed Brownfield that it would hold a pre-termination hearing with respect to his employment with the YPD. In response, Brownfield sent a YPD Captain an email reiterating his complaints about Dejournette and insinuating that Dejournette may have stolen PAL funds. Brownfield advised: "I don't think it would be a good choice for the chief to fire me prior to the independent audit, but that's just me." Prior to the hearing, Brownfield obtained a second opinion from a Dr. Mar who agreed with Dr. Decker that Brownfield was unfit for duty due to his "emotional, cognitive, behavioral, and physical problems." However, Dr. Mar believed that Brownfield's problems might be amenable to treatment. The City continued Brownfield's pre-termination hearing pending treatment and further evaluation by Dr. Mar and Dr. Decker. In December 2006, Dr. Mar reported that Brownfield was progressing well and would be able to return to duty at an unspecified date with continued treatment. Brownfield refused to return to Dr. Decker, leading YPD to order an FFDE with yet another doctor, Dr. Ekemo. Brownfield attended an initial exam in February 2007, and Dr. Ekemo scheduled a second visit with Brownfield to complete his evaluation. However, Brownfield refused to attend the follow-up session. The City informed Brownfield that he would likely be terminated unless he cooperated in the FFDE, but Brownfield again refused. A pre-termination hearing was held on March 19, 2007. City Manager Zais determined that Brown was insubordinate and unfit for duty. Brownfield was terminated on April 10, 2007. On January 8, 2008, Brownfield filed suit in federal court alleging violations of the Americans with Disabilities Act ("ADA"), the FMLA, First Amendment retaliation, and related state law claims. The district court granted summary judgment in favor of the City, dismissed Brownfield's federal claims with prejudice, and declined to exercise supplemental jurisdiction over the state law claims. Brownfield appealed. The USCA affirmed. It held that the City did not violate Brownfield's rights under the ADA by requiring the FFDE after he repeatedly exhibited emotionally volatile behavior while serving as a police officer, that his complaints regarding a coworker with whom he shared duties did not address matters of public concern, and that his FMLA claim lacked merit. Hawkins, Lucero (author), and N.R. Smith, Circuit Judges. J. Bergmann of Seattle, WA, for the appellant; J. Moberg of Ephrata, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

18) AMERICANS WITH DISABILITIES ACT: Antoninetti v. Chipotle Mexican Grill, Inc., 08-55867 (9th Cir. July 26, 2010). Antoninetti visited two restaurants in California operated by Chipotle Mexican Grill ("Chipotle"). One of the restaurants was in San Diego and the other was in Encinitas. Antoninetti is a paraplegic who uses a wheelchair for mobility. He visited the San Diego restaurant six times, four times as a customer and twice to gather evidence for this litigation. He visited the Encinitas restaurant twice, once as a customer and once in connection with discovery proceedings in this case. Customers in both restaurants walk along a line that is next to a counter containing foods that are available and on which the customers' individual orders are prepared. The customers' walking line is separated from the "food preparation counter" by a separator wall that rises 45 inches above the floor. The food preparation counter is 34-35 inches high. The parties stipulated that the average eye level of persons in wheelchairs is 43 to 51 inches above the restaurant floor; and that, at a distance of 12 inches from the wall, a person at any height within that average range cannot see the food preparation counter or the food on display there. Prior to this litigation, Chipotle had an unwritten policy of accommodating customers in wheelchairs who wanted to see the available food ingredients or watch the preparation of their food. When customers in wheelchairs so indicated, employees were required to show them samples of the food in serving spoons, held in tongs or in plastic portion cups, or to assemble the food either at the transaction station where the food is paid for, or at a table in the seating area. In February 2007, due to this litigation, Chipotle adopted its written "Customers with Disabilities Policy" (the "written policy"). It provides that the "restaurant staff will offer…a customers with a disability (for example, a visual or mobility impairment) a suitable accommodation based on the individual circumstances, and will be responsive to the customer's requests. Depending on the circumstances, our crew members or manager may ask the customers if we can accommodate them during their visit. Examples of some of the ways we accommodate individuals are: 1) Samples of the food can be placed in soufflé cups and shown or handed to the customer. 2) Some customers may prefer an opportunity to see or even sample the food at a table. 3) Customers may simply wish to have the food or food preparation process described to them. 4) Or combinations of the above accommodations with any other reasonable accommodation requested or appropriate for the individual." Following his experiences as a customer in the two restaurants, Antoninetti filed suit against Chipotle in federal district court. He alleged that Chipotle's treatment of wheelchair-bound customers violated the Americans with Disabilities Act ("ADA"). He sought injunctive relief and damages under a California statute that authorizes damages for violations of the ADA. The district court held that Chipotle's earlier unwritten policy for accommodating customers in wheelchairs violated the ADA, but that its current written policy complied with the Act. It also denied injunctive relief and held that Antoninetti was the prevailing part in the litigation and awarded him attorneys' fees of $136,537. In addition, it awarded him $5000 under the California damages statute. On appeal, the question on the merits was whether the actions Chipotle took to accommodate the customer's disability satisfied the ADA. The USCA held that they did not and thus that Chipotle violated the ADA. Another question was whether the district court erred in denying the customer injunctive relief. The USCA held that the district court should have grant injunctive relief. The USCA also vacated the district court's award of attorneys' fees, which was substantially less than the customer had sought, and directed reconsideration of the amount of the fees in light of the USCA's ruling on the merits. The USCA thus affirmed in part, reversed in part, vacated in part, and remanded to the district court for further proceedings. Friedman (author), D.W. Nelson, and Reinhardt, Circuit Judges. A. Vandeveld of San Diego, CA, for the plaintiff-appellant and cross-appellee; J. Scalia of Irvine, CA, for the defendant-appellee, and cross-appellant. (Download the full text of this decision at www.ce9.uscourts.gov/)

19) IMMIGRATION: Padilla-Romero v. Holder, 07-72492 (9th Cir. July 9, 2010). Padilla-Romero petitioned for review of a Board of Immigration Appeals ("BIA") decision affirming an Immigration Judge's decision holding him statutorily ineligible for cancellation of removal. The USCA denied the petition. After being caught on three separate occasions in early 1998 while attempting to smuggle aliens into the U.S. and at least twice falsely claiming to be a U.S. citizen while doing so, Padilla-Romero was removed to Mexico. It was undisputed that at the time he was removed he was a lawful permanent resident ("LPR") of the U.S. and met the statutory requirements for cancellation of removal under 8 USC Sec. 1229b(a). It was likewise undisputed that he elected not to pursue this remedy and that the first removal terminated his status as a LPR. Subsequently, he illegally reentered or attempted to reenter the U.S. no fewer than five times, again repeatedly lying about his citizenship. At his most recent removal hearing on March 16, 2006, he asserted for the first time that he was eligible for cancellation of removal under 8 USC Sec. 1229b(a). He argued that, as he met in 1998 Sec. 1229b(a)(1)'s requirement that he hold LPR status for at least five years, he remained eligible for cancellation of removal notwithstanding his loss of LPR status eight years before the 2006 merits hearing. The IJ held that he was ineligible for cancellation of removal because Sec. 1229b(a) is available only to an alien with current LPR status, and ordered him removed. The BIA affirmed without opinion. At issue on appeal was whether an alien in removal proceedings who at one time was an LPR and held that status for at least five years but who has since lost that status remains eligible for cancellation of removal under Sec. 1229b(b). Although it found the statute somewhat ambiguous, the USCA held that such an alien in not eligible for Sec. 1229b(a) relief. B. Fletecher and Paez, Circuit Judges, and Walter, District Judge. Per Curiam. J. Smith of San Diego, CA, for the petitioner; M. Antoun of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

20) IMMIGRATION: Perdomo v. Holder, 06-71652 (9th Cir. July 12, 2010). Perdomo, a native and citizen of Guatemala, petitioned for review of the BIA's affirmance of an IJ's order denying asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). He sought asylum based on her fear of persecution as a young woman in Guatemala, arguing that women were murdered there at a high rate with impunity. The IJ denied the application upon finding that young women in Guatemala were not a cognizable social group. The BIA affirmed, finding that a social group consisting of "all women in Guatemala" is over-broad and "a mere demographic division of the population rather than a particular social group." The USCA granted the petition and reversed as the BIA's decision was inconsistent with its own precedent in Matter of Acosta, 19 I&N Dec. at 233-34, and In re C-A-, I&N Dec. at 955, and the USCA's case law in Hernandez-Montiel v. INS, 225 F.3d 1084 (9th Cir. 2000). D.W. Nelson (author), W. Fletcher, and Paez, Circuit Judges. A. Hutchison of Reno, NV, for the petitioner; P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

21) IMMIGRATION: Jiang v. Holder, 08-73186 (9th Cir. The opinion filed May 24, 2010, has been withdrawn and superseded by this opinion filed July 14, 2010). Jiang a native an citizen of China, sought review of the BIA's denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). At issue on appeal was whether the BIA's conclusion that Jiang had not demonstrated persecution for "resistance to a coercive population control program" under the Immigration and Nationality Act ("INA") Sec. 101(a)(42), as supported by substantial evidence. Because the BIA expressly found Jiang credible, the USCA considered whether the BIA correctly applied the law to the record, including Jiang's credible testimony. Because it found that Jiang had suffered persecution for demonstrating resistance to China's coercive population control policy, the USCA granted the petition in part and remanded to the BIA. In reaching its conclusion the USCA deferred to the Attorney's General's interpretation of INA Sec. 101(a)(42) in Matter of J-S-, 24 I&N Dec. 520 (A.G. 2008). Under J-S, a spouse of an individual who has undergone forcible abortion or sterilization may present proof of such treatment to evidence persecution. The USCA reaffirm that, for purposes of Sec. 101(a)(42), a spouse includes an individual whose marriage would be recognized but for the enforcement of China's coercive population control policy, as well as an individual whose marriage is officially recognized by Chinese authorities. Because any reasonable adjudicator would be compelled to conclude that Jiang established past persecution for resistance to the population control policy, the USCA found Jiang entitled to the protections of Sec. 101(a)(42). On remand, it directed the BIA, on behalf of the Attorney General, to exercise discretion regarding whether to grant asylum. Pregerson, Reinhardt, and Wardlaw (author), Circuit Judges. H. Sklar of Los Angeles, CA, for the petitioner; J. Segall of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

22) IMMIGRATION: Hernandez-Velasquez v. Holder, 06-75728 (9th Cir. July 14, 2010). Hernandez-Velasquez, a native and citizen of Honduras, petitioned for review of a BIA denial of her motion to reopen and reinstate proceedings, which the BIA construed as a motion to reissue its decision denying her administrative appeal. Hernandez filed a declaration in which she declared under penalty of perjury that she did not receive notice of the BIA's denial of her administrative appeal because the BIA mailed its decision to her previous address, at which she no longer resided. She also declared that she timely submitted a "Change of Address" form to the BIA providing it with her correct new address, before it issued its decision. The BIA found no evidence to corroborate Hernandez's claims. It stated that there was no proof that it received the Change of Address form that Hernandez declared under penalty of perjury she had mailed, and that its decision had not been returned by the postal service. It thus held that there was no apparent error in service. The USCA held that the BIA abused its discretion in failing to discuss Hernandez's declaration and the attached photocopied Change of Address form in its decision, thereby failing to consider the "weight and consequences" of that evidence in its denial of her motion to reopen. The BIA had to undertake such an analysis before ruling on the veracity of Hernandez's claim that she mailed a Change of Address form and that she did not receive notice from the BIA of its decision. The USCA thus granted Hernandez's petition and remanded the matter to the BIA for further proceedings. Reinhardt (author) and Bybee, Circuit Judges, and Selna, District Judge. S. Tollafield of San Francisco, CA, for the petitioner; A. Gevas of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

23) IMMIGRATION: Vega v. Holder, 07-72618 (9th Cir. July 19, 2010). Vega petitioned for review of a BIA decision denying his motion to reopen as untimely. He maintained that although his motion was not filed within 90 days of the BIA's merits determination, the motion to reopen was filed within 90 days of the denial of his motion to reconsider and was thus timely. The Attorney General maintained that, to be timely, the motion to reopen had to be filed within 90 days of the BIA's initial merits determination, not within 90 days of the denial of his motion to reconsider. The USCA agreed with the AG. The BIA did not abuse its discretion by denying Vega's motion to reopen as untimely. The motion had to be filed within 90 days of the May 10, 2004 order affirming the IJ's determination. That order was designated the "final administrative order of removal" under 8 USC Sec. 1229a(c)(7)(C)(i) and remained so through all subsequent proceedings. Vega's motion was nearly one year late when filed on July 7, 2005. The USCA thus denied the petition. Trott (author) and W. Fletcher, Circuit Judges, and Breyer, District Judge. J. Bennett of Amarillo, TX, for the petitioner; M. Heyse of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

24) IMMIGRATION: Truong v. Holder, 05-74666 (9th Cir. July 27, 2010). The petitioners, Trung Van Truong and his wife, are natives and citizens of Vietnam. Their two children, who are also petitioners, were born in Italy, but are not citizens of that country. All four family members have lived in the U.S. for almost 20 years. Throughout their immigration proceedings, the Truongs have consistently been found to be credible. In his asylum application and in a hearing before an Immigration Judge ("IJ"), Mr. Truong established that he fought as a sergeant in the anti-communist South Vietnamese army in the Vietnam War. During the War, he was captured and tortured by communist guerrillas. After the North Vietnamese victory, he went into hiding and became an active member of an underground anti-communist organization. In April 1979, he and his wife escaped Vietnam. They stayed for a year in an UN-sponsored refugee camp in Malaysia before being admitted to Italy as refugees. They lived in Italy from 1980 until 1991, when they were granted non-immigrant visas and entered the U.S., where they have remained ever since. In 1995, the Truongs were charged with overstaying their visas and placed in deportation proceedings. They applied for asylum. The IJ granted their application. He was influenced in part by his finding that deportation would be "extremely traumatic" for the Truongs' two children, particularly Martina, whom the IJ described, after hearing her testimony, as "totally Americanized." The IJ was also concerned that, although the Truongs had been granted temporary refugee status in Italy, "the truth is that they cannot return to Italy." He found, and the USCA subsequently agreed, that by staying in the U.S. beyond the period permitted by the Italian government, the Truongs had lost their refugee status in that country. Finally, the IJ was moved by the fact that Mr. Truong had fought on behalf of the U.S.-backed South Vietnamese Army. The IJ understood Mr. Truong's service on behalf of the U.S.'s South Vietnamese allies to place some responsibility on the U.S. government to remedy, if possible, his family's subsequent statelessness. The government appealed the IJ's decision. After the appeal had been pending for almost 6 years, Martina wrote to the BIA to inquire as to the status of her family's case. She asked that the BIA issue a final, favorable decision, so that she could regularize her immigration status in order to pursue an education at the University of California, where she had been accepted as an undergraduate student. Shortly after receiving Martina's letter, in August of 2001, the BIA reversed the IJ's decision. It held that the Truongs were ineligible for asylum because they had firmly resettled in Italy. It ordered them to depart the U.S. within 30 days. In 2003, the USCA granted the Truongs' petition for review of the BIA decision. It found that the facts supported persecution and/or a well-founded fear of persecution in Italy. On remand, a new IJ observed that the Truongs' case was "extremely sympathetic," and stated that he "would do anything in [his] power to grant their asylum case." He offered to grant a continuance so the Truongs could accumulate additional evidence supporting their persecution claims, but the Truongs' counsel declined and requested an immediate decision. The IJ then granted the Truongs' application for withholding of removal to Vietnam, but found that the Truongs had failed to establish that the Italian government was unable or unwilling to protect them and, accordingly, denied their asylum application. The USCA then referred the case to mediation in an effort to find a country that would accept the Truongs. Mediation proved unsuccessful and the parties asked the USCA do decide the matter on the merits. The USCA denied the petition. It noted that the few pieces of documentary evidence that the Truongs produced before the IJ were unavailing. At best, they showed that ethnic minorities and immigrants living in Italy face sporadic violence and discrimination; they do not suggest that the Italian government is complicit in or unwilling to combat such discrimination. The USCA thus held that the record was not so overwhelming that a reasonable factfinder would be compelled to conclude that the Truongs faced past persecution at the hands of the Italian government or forces that the Italian government was unable or unwilling to control. Judge Reinhardt concurred, noting that it was most unfortunate that the court is compelled to affirm the BIA in this case. Under current Supreme Court law, he thought the USCA had no choice but to agree that the government has the legal authority to deport the Truongs. Friedman, D.W. Nelson, and Reinhardt (concurring), Circuit Judges. Per Curiam. G. Sarin of Los Angeles, CA, for the petitioners; P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

25) IMMIGRATION: Cortez-Pineda v. Holder, 08-72314 (9th Cir. July 2, 2010). Cortez-Pineda petitioned for review of a BIA decision dismissing his appeal of an IJ's denial of his application for special rule cancellation of removal, asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). The USCA denied the petition. Cortez is a native and citizen of El Salvador. The government initiated removal proceedings against him in December 2005 with the filing of a Notice to Appear. It alleged that he entered the U.S. on or about June 1, 1990, and that he was removable as an alien present in the U.S. without having been admitted or paroled. Cortez-Pineda admitted the allegations and conceded removability, but sought special rule cancellation or removal under Sec. 203 of the Nicaraguan Adjustment and Central American Relief Act ("NACARA"), which extends eligibility for relief from removal to Salvadoran nationals who first entered the U.S. on or before September 19, 1990. At a June 2006 hearing, Cortez-Pineda testified in support of his eligibility for special rule cancellation, stating that he entered the U.S. in June 1990. During cross-examination, the government asked whether Cortez-Pineda had admitted to immigration officers during a 1992 immigration fraud investigation that contrary to his claimed June 1990 entry, he "entered the United States in 1991." Cortez-Pineda answered, "No." The government also pressed an inconsistency between Cortez-Pineda's claimed June 1990 entry date and a statement in his asylum application that he experienced problems in El Salvador "towards the end of 1990.) During the exchange, Cortez-Pineda's counsel stated in passing that the Notice to Appeal stated that June 1990 was his entry date. At the end of this hearing, the IJ accepted the government's request that an evidentiary hearing be set on the issue of Cortez-Pineda's date of entry if the government was able to secure evidence from the 1992 investigations. At the hearing, the government offered testimony from the two immigration officers who had interviewed Cortez-Pineda during the 1992 investigation. The officers testified that during the interview, Cortez-Pineda had admitted to entering on January 4, 1991, and had retracted as false an earlier entry date indicated in his application for Temporary Protected Status. The government also introduced an affidavit prepared by the officers in which they had contemporaneously memorialized their interview with Cortez-Pineda. The IJ credited the testimony of the officers and determined that Cortez-Pineda was not eligible for special rule cancellation because he entered the U.S. after September 19, 1990. The IJ then denied Cortez-Pineda's claims. The BIA adopted the IJ's decision and dismissed the appeal. The USCA denied Cortez-Pineda's petition for review. It held that the government should not be held to have made a binding judicial admission about Cortez-Pineda's entry date because the government vigorously disputed the entry date during the November 2006 evidentiary hearing after notice was giving to Cortez-Pineda that the issue was in dispute, and Cortez-Pineda never expressly objected on the grounds of judicial admission, instead stipulating to an evidentiary hearing on the issue. He was specifically instructed by the IJ in a July order and again during an August master calendar hearing that the entry-date issue would be the focus of the November evidentiary hearing, and he was given adequate time-almost half a year from the June hearing-to prepare for the November hearing. His counsel never suggested that the Notice to Appear conclusively established Cortez-Pineda's entry date, and his counsel's passing reference to the entry-date allegation in the Notice of Appeal could not reasonably be construed as an objection to a contest of that issue. Instead, when the IJ instructed Cortez-Pineda's counsel at the June 2006 hearing that she would have until July 21, 2006, to respond to the government request, if any, for an evidentiary hearing concerning the entry-date issue, Cortez-Pineda's counsel acknowledged, "That would be okay." Wardlaw and Gould (author), Circuit Judges, and Ware, District Judge. E. Hall of Seattle, WA, for the petitioner; T. West of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

26) IMMIGRATION: Banuelos-Ayon v. Holder, 07-71667 (9th Cir. July 14, 2010). Banuelos-Ayon, a native and citizen of Mexico, was admitted as a lawful permanent resident on July 3, 1985. Following a 2000 conviction for domestic violence, he was charged with removability for committing a crime of violence pursuant to 8 USC Sec. 1227(a)(2)(E)(i). He conceded removability and applied for cancellation of removal. The BIA denied his application, holding that his conviction under California Penal Code Sec. 273.5(a) is categorically a crime of domestic violence. The USCA agreed and denied the petition for review: a conviction under Sec. 273.5(a) is a categorical crime of violence under 8 USC Sec. 16(a). Kozinski, Callahan (author), Circuit Judges, and Martinez, District Judge. R. Frankel of Washington, DC, for the petitioner; J. Bucholtz of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

27) IMMIGRATION: Afriyie v. Holder, 08-72626 (9th Cir. July 26, 2010). Afriyie, a citizen of Ghana, was persecuted by Muslims because he proselytized as a Baptist preacher in predominantly Muslim areas of Ghana. He fled to the U.S. and applied for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). The BIA denied his application for asylum and withholding of removal, concluding that he failed to show that the Ghanaian government was unable or unwilling to protect him and, in the alternative, that he could not safely relocate in his home country. The USCA concluded that the BIA erred by denying Afriyie asylum and withholding removal, taking the opportunity to clarify the "unable or unwilling" standard applicable to nongovernmental persecution. In light of its analysis of the "unable or unwilling" asylum and withholding issue, the USCA also remanded Afriyie's CAT claims for further consideration of whether Ghanaian police acquiesced in Afriyie's torture. The USCA thus granted Afriyie's petition and remanded with respect to the motion to reopen to introduce the March 6, 2007 Department of State, Bureau of Democracy, Human Rights and Labor country report on Ghana. The report described police corruption, use of bribes, and spotty investigation of complaints against the police. Such evidence appeared relevant to government acquiescence for the purpose of Afriyie's CAT claim and the BIA's consideration of whether relocation would be safe and reasonable. Having clarified the appropriate legal standards applicable to the relocation analysis and the evidence that must be considered for CAT relief, the USCA thought the article might be sufficiently probative to change the outcome of Afriyie's claim. The USCA thus granted Afriyie's petition in this narrow respect to give the BIA the opportunity to reconsider whether to admit that one article. Tashima, Fisher, and Berzon (author), Circuit Judges. J. Daugherty of Seattle, WA, for the petitioner; J. Robbins of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

28) IMMIGRATION: Rahimzadeh v. Holder, 08-73985 (9th Cir. July 26, 2010). Rahimzadeh testified that he was persecuted first in Iran by the government on account of his political activity and later in the Netherlands by Muslim extremists on account of his conversion to Christianity. The IJ deemed his testimony credible and granted withholding of removal to Iran, but denied asylum from, and withholding of removal to the Netherlands. The IJ concluded that Rahimzadeh had not suffered past persecution in the Netherlands and that his fear of future persecution was not objectively reasonable, because he did not show that Dutch authorities were unable or unwilling to control his attackers. After the BIA affirmed, he petitioned the USCA for review. The USCA denied the petition. Given that the burden was on Rahimzadeh to show that the Dutch authorities were unable or unwilling to control his attackers, the USCA could not say that the IJ erred in concluding that he did not meet it. Because Rahimzadeh did not demonstrate that he is eligible for asylum, his claim for withholding of removal, which is governed by a more stringent standard, was foreclosed. Tashima, Fisher, and Berzon (author), Circuit Judges. R. Tanner of Missoula, MT, for the petitioner; T. West of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

29) IMMIGRATION / ILLEGAL REENTRY / SENTENCING: USA v. Gallegos, 07-30199 (9th Cir. July 30, 2010). Gallegos appealed his two criminal sentences, imposed at the same time for separate offenses. The sentences arose from Gallegos's entry of two guilty pleas-one for illegal reentry, and the other for escape while awaiting sentencing on the first charge. On appeal, Gallegos argued that the district court's imposition of a partially concurrent and partially consecutive sentence for the escape charges violated 18 USC Sec. 3584. He also argued that the district court's refusal to offer a reduction for acceptance of responsibility on the illegal reentry charge in combination with an enhancement for obstruction of justice resulted in impermissibly double counting. The USCA affirmed the sentences. The district court did not commit plain error in imposing a partially concurrent and partially consecutive sentence. In addition, there was no plain error in declining to offer a reduction for acceptance of responsibility on the illegal reentry charge while also enhancing Gallegos's sentence based on his obstruction of justice. W. Fletcher and Rawlinson, Circuit Judges, and Mosman (author), District Judge. K. Lindholdt of Spokane, WA, for the defendant-appellant; AUSA J. Kirk of Yakima, WA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

30) PROPERTY / MAIL FRAUD / SELF-REPRESENTATION: USA v. Johnson, 08-10147 (9th Cir. July 6, 2010). In 2004-2005, Johnson and Heineman started a debt-elimination program that purported to offer a mechanism for borrowers to eliminate their mortgage debt. It was entitled the "Dorean Process" and consisted of several steps: Homeowners first transferred their interests in their properties to a trust, naming the defendants as trustees. The defendants then sent demand notices to the lenders questioning the validity of their lending practices. When the banks failed to respond or "prove" that their lending practices were valid, the defendants recorded bogus documents with county clerks' offices ostensibly establishing that the homes were no longer subject to a mortgage. The homeowners then refinanced with a different bank using their supposedly unencumbered homes as collateral. In addition to up-front fees, Heineman and Johnson also took a significant portion of the proceeds of the new loans the homeowners obtained. By their own admission, they made over $3 million with this scheme. After they were indicted for conspiracy and multiple counts of mail fraud, they were adamant in their desire to represent themselves and asserted an absurd legal theory wrapped up in Uniform Commercial Code talk. Both were examined by a psychiatrist and found to have no diagnosable mental disorder. The district court conducted Faretta hearings spanning several days in which the defendants were extensively advised of their right to counsel and the disadvantages of self-representation. The judge practically begged them to accept counsel but they refused. The district court found that the defendants were competent to represent themselves and that such was their constitutional right. On appeal, the defendants maintained that Indiana v. Edwards, 554 US 164 (2008), decided by the Supreme Court after their trial concluded, required the district court to terminate their self-representation because of what they described as their "nonsensical" legal "antics" after the trial began. They argued that they may have been competent to stand trial but not to represent themselves. The USCA found that the record clearly showed that the defendants were "fools," but that was not the same as being incompetent. Under both Edwards and Faretta v. California, 422 US 806 (1975) (establishing that a defendant has the constitutional right to represent himself when he voluntarily and intelligently elects to do so), they had the right to represent themselves and go down in flames if they wished, a right the district court had to respect. There was no legal or medical basis to foist a lawyer on them against their will. Silverman (author), Fisher, and M.D. Smith, Circuit Judge. M. Badami of San Francisco, CA, for the defendants-appellants; AUSA L. Gray of San Francisco, CA, for the Government-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

31) HABEAS CORPUS / DEATH PENALTY: Rhoades v. Henry, 07-99023 (9th Cir. July 15, 2010). Rhoades was convicted by an Idaho jury of the 1987 first degree murder, first degree kidnapping, robbery, rape, and infamous crime against the nature of Susan Michelbacher. The trial court sentenced him to death on his convictions for first degree murder and first degree kidnapping; and the Idaho Supreme Court upheld his conviction, sentence and denial of post-conviction relief. State v. Rhoades (Michelbacher), 822 P.2d 960 (Idaho 1991). The district court denied his petition for habeas corpus. Rhoades appealed, and the USCA previously affirmed the denial of relief on the conviction. Rhoades v. Henry (Michelbacher), 598 F.3d 495 (9th Cir. 2010). However, because a post-conviction petition asking the Idaho Supreme Court to apply Ring v. Arizona, 536 US 584 (2002), retroactively was then pending before the Idaho Supreme Court, the USCA deferred submission on penalty phase issues. After that court upheld the sentence in Rhoades v. State, 2010 WL 937272 (Idaho Mar. 17. 2010), reh'g denied (June 4, 2010), the USCA turned to the issues on which Rhoades sought to overturn the district court's judgment that his sentence was not constitutionally infirm. It found no error, and affirmed. First, Rhoades claimed that his trial counsel rendered ineffective assistance in failing to investigate, develop, and present mental state issues, in particular, with respect to obtaining assistance of mental health experts, seeking meaningful mitigation investigation assistance, and otherwise familiarizing themselves with his background. For example, he maintained that counsel furnished no social history to the expert they did have, they were either unaware of incest within Rhoades' family or did not think it was important, and they didn't have specific information about Rhoades' drug use and didn't believe it was germane. In addition, he maintained that the district court abused its discretion in denying him an evidentiary hearing on the issue. The district court found that Rhoades could not establish deficient performance in light of counsels' concerns about the extent to which their expert would help or hurt and the possibility of developing adverse information that could have been used in Rhoades' pending murder cases. It also concluded that Rhoades could not establish prejudice because the aggravated nature of these crimes was too strong, and new mitigating evidence added too little, to create a reasonable probability of a different outcome. The USCA agreed with the district court. The crimes were especially cruel as the trial court found and for the reasons it gave. The state court was also aware of mitigating circumstances that were individual to Rhoades. They were not as detailed or extensive as in the proffer, but the difference between that Rhoades' counsel investigated and presented, and what they could have investigated and presented, is not so pronounced that the new evidence would have outweighed any one of the aggravating circumstances. As the district court noted, even the proffer had no persuasive evidence that Rhoades was himself physically or violently abused as a child, abandoned, placed within the state's custody, or otherwise institutionalized. Further, as the court found, despite the passage of 20 years, the defense experts did not conclusively fill in the blanks about Rhoades' mental or emotional state. The USCA noted that it considered the same proffer and expert submissions in the Baldwin case, and concluded that they had no greater effect here for the same reasons it explained there. See Rhoades v. Henry (Baldwin), 596 F.3d 1170, 1191-95 (9th Cir. 2010). The USCA thus concluded that Rhoades could not satisfy the prejudice prong of Strickland v. Washington, 466 US 668 (1984). His claim of ineffective assistance of counsel based on the failure to investigate and present mental state issues thus failed. Second, Rhoades asserted that he was entitled to an evidentiary hearing, but he USCA found that assertion to be unsupported by argument. Not only did that waive the issue, but Rhoades pointed to no additional evidence that would be presented if one were held. The USCA could not find an abuse of discretion in these circumstances. Rymer (author), Gould, and Bybee, Circuit Judges. O. Loewy of Boise, ID, for the petitioner; DAG L. Anderson of Boise, ID, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)