 |
| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
| |
| Copies of decisions, briefs, and other documents in the public record are available through Judicial Update. |
| |
1)
ENVIRONMENTAL LAW / OIL & GAS EXPLORATION: MacClarence v. EPA,
07-72756 (9th Cir. March 4, 2010). The Prudhoe Bay Unit ("PBU") is located
on the North Slope of Alaska and extends over 300 square miles. It consists of
a series of oil and gas facilities, including 38 drill sites or "well pads"
and six production centers, as well as support facilities for workers. Gathering
Center #1 ("GC1") is one of six production facilities at PBU. British
Petroleum Exploration (Alaska) ("BP") owns 26.35% to 50.7% of the facilities
at the PBU, including GC1, and operates all of the PBU facilities pursuant to
an agreement with the other owners. Although the PBU oil field is composed of
a number of different oil leases, those leases have been unitized or pooled by
the State of Alaska so that the field may be exploited efficiently. MacClarence
petitioned the USCA for review of an order by the Environmental Protection Agency
Administrator denying his request that the Environmental Protection Agency ("EPA")
object to the issuance of a Clean Air Act ("CAA") Title V final permit
for pollutant-emitting activities at GC1. The Alaska Department of Environmental
Conservation ("ADEC") granted the permit to BP. Because the Administrator's
denial of MacClarence's request was neither arbitrary nor capricious, the USCA
denied the petition. MacClarence argued that the Administrator improperly faulted
him for failing to challenge the reasonableness of the ADEC's Statement of Basis
for the final permit. In denying the petition, the Administrator stated that MacClarence
failed to provide an argument as to why the ADEC's decision not to aggregate the
entire PBU, which is described in great detail in the Statement of Basis for the
final Revision 1 permit, is unreasonable. MacClarence argued that this statement
reflects an improper interpretation of his burden under Sec. 7661d(b)(2) by requiring
him to show the "unreasonableness" of ADEC's rationale for employing
the hub-and-spoke model in the final permit, rather than the final permit's noncompliance
with the CAA. The USCA rejected this argument. The Administrator's order denying
MacClarence's petition properly set forth MacClarence's burden under Sec. 7661d(b)(2),
stating that to justify exercise of an objection by EPA to a Title V permit pursuant
to Sec. 7661d(b)(2), the petitioner had to show that the permit was not in compliance
with the requirements of the CAA. The Administrator later concluded that the general
allegations of the petitioners in the April 2004 Petition failed to demonstrate
a basis for the petitioner's claim that Revision 1 to the GC1 Permit violates
the CAA. In light of the Administrator's proper recitation of MacClarence's burden,
the USCA found that Administrator's statement that MacClarence should have shown
that ADEC's explanation for its aggregation decision was unreasonable, as requiring
MacClarence to challenge the basis or reasons for ADEC's final decision and to
demonstrate that the permit did not comply with the CAA. The USCA found nothing
wrong with the Administrator's expectation that MacClarence needed to challenge
this reasoning. MacClarence's petition relied on ADEC's March 2003 Statement of
Basis. ADEC, however, rejected the aggregation decisions reflected in that Statement
of Basis and explained why it did so in the new Statement of Basis for the final
permit. The Administrator reasonably expected MacClarence to challenge that explanation.
In addition, the Administrator's conclusion that MacClarence did not challenge
ADEC's reasoning for the final permit was neither arbitrary nor capricious. ADEC's
final Statement of Basis explained how the hub-and-spoke aggregation model complied
with the CAA, why complete aggregation of the facilities in the PBU was impractical
and unprecedented, and why the hub-and-spoke model was a better alternative than
complete aggregation. Although MacClarence asserted in his petition that the out-of-state
permit decisions cited by ADEC did not support its final aggregation decision,
his petition failed to demonstrate that the hub-and-spoke aggregation model did
not comply with the CAA. More importantly, MacClarence failed to challenge the
ADEC's reasoning that the complexity of administering and operating a stationary
source as large as the PBU without clear corresponding environmental benefit argues
against the aggregation of the entire PBU. The USCA thus concluded that the Administrator's
determination that MacClarence did not demonstrate that the entire PBU should
be aggregated did not constitute an impermissible interpretation of MacClarence's
burden under 42 USC Sec. 7661d(b)(2), to "demonstrate" that the ADEC's
final Title V permit for BP's GC1 did not comply with the CAA, nor was it arbitrary
or capricious. Paez (author) and Rawlinson, Circuit Judges, and Collins,
District Judge. W. Eddie of Portland, OR, for the petitioner; AAG R. Tenpas of
Washington, DC, for the EPA.
(Download the full text of this decision at www.ce9.uscourts.gov/)
3) TELECOMMUNICATIONS: Pacific Bell Telephone
Co. v. California Public Utilities Commission, 08-15568 (9th Cir. March
4, 2010). This case concerns the balance the Telecommunications Act of 1996 ("the
Act") strikes between providing newer competitors access to previously monopolistic
telecommunications markets, on the one hand, and encouraging and protecting infrastructure
investments of older, incumbent telecommunications providers on the other. At
issue was the interpretation of two provisions of the Act that impose requirements
on older, incumbent local exchange carriers ("incumbent LECs")-such
as the appellant AT&T-to lease certain components of their existing infrastructure
to rival newer, competitive carriers ("competitive LECs") such as intervenor
Cbeyond. After the Federal Communications Commission ("FCC") issued
its Triennial Review Remand Order in 2005 ("the TRRO"), AT&T sought
to negotiate changes to its agreements with competitive LECs to bring their contracts
into conformity with AT&T's now-changed obligations. After negotiations broke
down, AT&T brought a consolidated arbitration proceeding before the California
Public Utilities Commission ("CPUC"). The CPUC decided in favor of the
competitive LECs on several disputed issues. AT&T then filed an action in
federal district court seeking to set aside four CPUC orders relating to unbundling.
There were two issues on appeal: First, whether 47 USC Sec. 251(c)(2) requires
an incumbent LEC to lease its "entrance facilities" (wires that connect
rival telephone systems) to a competitive LEC at regulated rates when the competitor
wishes to use an entrance facility to permit its own customers to reach customers
of the incumbent LEC; and, second, whether 47 CFR Sec. 51.319(e)(2)(ii)(B) (the
"DSI Cap Rule"), which limits to ten the number of low-capacity DSI
telephone lines an incumbent LEC must lease to a competitive LEC at regulated
(low) rates along certain routes, is a limitation which also applies to any route,
regardless whether the competitive LEC is "impaired" as to the alternative
to such low-capacity lines: the competitive LEC's own higher-capacity DS3 lines.
First, the USCA agreed with the district court and held that under 47 USC Sec.
251(c)(2) incumbent LECs must lease entrance facilities at Total Element Long
Run Incremental Costs ("TELRIC") rates to competitive LECs for the purpose
of interconnection. Second, Cbeyond's contention that the DSI Cap Rule conflicts
with the terms of 47 USC Sec. 251(c)(3) was foreclosed because Cbeyond could not
challenge the validity of the FCC orders in this proceeding. The USCA thus agreed
with the district court and held that, under the plain language of the regulation,
the DSI Cap Rule limits to ten the number of DSI lines an incumbent LEC must lease
to a competitive LEC at the TELRIC rates on all routes. The USCA thus affirmed
the district court's order confirming in part and vacating in part the CPUC's
arbitral order. Schroeder, Tashima, and Bea (author), Circuit Judges. S.
Attaway of Washington, DC, for the plaintiff-appellant; F. Lindh of San Francisco,
CA, for the defendants-appellees; C. Deanhardt of Orinda, CA, for the intervenor-appellant. 4) TAXATION / CLASS ACTIONS: Hesse v. Sprint, 08-35235 (9th Cir. March 10, 2010). At issue on appeal here was whether a broad release of claims in a nationwide settlement agreement between Sprint and its customers precluded the present class action involving a Washington state tax that Sprint invoiced to its Washington customers. That nationwide settlement arose out of a lawsuit that challenged Sprint's billing customers for certain federal regulatory fees. The USCA concluded that the Washington plaintiffs' interest were not adequately represented in the prior action and that their claims were not "based on the identical factual predicate as that underlying the claims in the settled class action," Williams v. Boeing Co., 517 F.3d 1120, 1133 (9th Cir. 2008). It held that the prior settlement did not release the claims at issue in the present case and thus vacated the district court's grant of summary judgment in favor of Sprint. Alarcon, Kleinfeld, and Clifton (author), Circuit Judges. D. Breskin of Seattle, WA, for the plaintiffs-appellants; G. Skok of Seattle, WA, for defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 5) TAXATION: Service Employees International Union v. USA, 07-17256 (9th Cir. March 17, 2010). Labor unions do not have to pay income or other federal taxes, but they do have to file informational returns disclosing such matters as their income and disbursement. The Service Employees International Union ("SEIU") and its subsidiary, 100 Oak Street Corporation, are labor organizations enjoying the tax exemption and burdened by the return requirement. SEIU filed its 1999 informational return twenty months late, and Oak Street filed its 1998 informational return four months late. The IRS applied a statutory formula based on the length of delay and gross receipts, and imposed the penalties provided for the statute. SEIU had gross receipts of $11 million, Oak Street union $1 million, and the statutory formula generated penalties of $50,000 on the union and $2,460 on Oak Street. When neither SEIU nor Oak Street paid their penalties, the IRS sent each a "Final Notice of Intent to Levy and Notice of Your Right to a Hearing." The SEIU and Oak Street each requested a "collection due process hearing" as provided for by statute with the IRS Office of Appeals. They argued that their late filings should be excused for reasonable cause, because although their accountant had sent the returns in time for timely filing, and they had signed the returns months or years before they sent them for filing, their failure to send them in resulted from some sort of administrative oversight. They also argued that the penalties, $50,000 for the SEIU and $2,460 for Oak Street, were excessive. The IRS denied relief, noting various problems with the union's arguments, including lack of personal knowledge by one of its two affiants, absence of a signature on the affidavits by both affiants, and multiple delays. SEIU and Oak Street did not pay the penalties or make offers in compromise. Instead, they appealed to the Tax Court, seeking to overturn the IRS decision. When the Tax Court dismissed their appeals for lack of jurisdiction, they appealed to the district court for review. They argued that the penalties should not have been imposed because they had "reasonable cause" under the statute and even if not, the penalties should be reduced. On cross motions for summary judgment, the district court concluded that there was no "reasonable cause," but that as a matter of discretion the IRS should have reduced the penalties. It entered judgment in favor of the IRS, but for only 25% of the $50,000 on SEIU and 50% of the $2,460 penalty on Oak Street, a net of $13,730 for the two of them instead of $52,460. The district court denied the IRS prejudgment interest and denied costs to the SEIU and Oak Street. The IRS appealed the reduction in the amounts of the penalties and argued that in its capacity as an appellate court, the district court had no jurisdiction to enter a money judgment. The SEIU and Oak Street cross appealed the district court order denying them a costs award. The union did not cross appeal the district court's rejection of its claim that its delay was excused by "reasonable cause." The USCA reversed the reduction in penalties and affirmed the denial of costs. Since the USCA reversed the reduction in penalties, the claim for costs as a partially prevailing party was moot. T.G. Nelson, Kleinfeld (author), and M.D. Smith, Circuit Judges. AAG N. Hochman of Washington, DC, for the USA; W. Taggart of Oakland, CA, for the SEIU. (Download the full text of this decision at www.ce9.uscourts.gov/) 6) MEDICAL PRODUCTS LIABILITY / EVIDENCE: Primiano
v. Howmedica Osteonics, 06-15563 (9th Cir. March 10, 2010). Primiano,
an active 36-year-old woman, fell and broke her elbow. The injury was especially
serious because she has had rheumatoid arthritis for years. Unlike osteoarthritis,
a degenerative process of wear and tear on the joints, rheumatoid arthritis is
a chronic inflammatory disease of the connective tissue in the joints. Her physician,
Robert Tait, performed surgery on April 18, 2000, two days after her fall. He
replaced her elbow joint with a device made by the defendant, Howmedica, consisting
of titanium pieces to replace the bone and polyethylene components to prevent
the metal from rubbing against metal. Two thirds of the way through surgery, Tait
discovered that Howmedica had made a mistake in the packing and shipping, so even
though he was replacing Primiano's right elbow, the humeral component (the humerus
is the arm bone running from the elbow to the shoulder) sent to him was labeled
for the left arm. He consulted Howmedica's representative with Primiano's arm
open on the table and was told that the components were symmetrical, identical
in every respect except that the locking pin went into the opposite side of the
left humeral component. Thus, the component he had could be used, but the hole
had to be drilled in Primiano's bone from the inside instead of the outside. The
artificial joint would be equally functional. Tait completed the operation, and
it appeared to be a success. But by July, Primiano's elbow squeaked, and by December,
Tait could hear metal-on-metal contact, which he confirmed in an x-ray. In February,
Tait performed a second surgery to address the failure of the implant and the
risk of metallosis (a destructive immune response of the body to flecks of metal
shaved off by metal-on-metal contact), replacing the humeral component with a
longer one. He used Howmedica's left arm humeral component again, though the long
instead of the standard one, to avoid having to re-drill the remaining bone. He
observed massive metallosis and "severe polyethylene wear" on the bearing
surrounding the pin. Again, the surgery appeared to go fine. But the next month,
Primiano was having trouble controlling her arm and the joint had a "cracking"
sound. She obtained a second opinion from an orthopedic surgeon who concluded
that the components appeared "to be adequately fixed and in good position."
But in June her problems with the joint had not gone away, so she consulted a
third orthopedic surgeon, who recommended another surgery. In July this surgeon
replaced her Howmedica device with one from its competitor, Zimmer. The third
surgeon performed another surgery, the fourth, the next April to correct loosening.
Subsequently, a pin backed out of position, so she needed a fifth surgery in September.
Primiano sued Howmedica, Tait and others in state court for negligence, strict
liability, breach of warranty, and loss of consortium. Howmedica removed the case
to federal district court based on diversity. All that eventually reached the
USCA was the products liability claim. Primiano's expert, Arnold-Peeter Weiss,
M.D., declared that the polyethylene bushing had worn through in less than eight
months, "not a usual or expected circumstance." Though finite, the typical
lifespan of elbow prostheses "far exceeds" the time this one lasted.
Weiss testified in his deposition that although wear starts immediately, elbow
prostheses last as long as ten or fifteen years, even twenty, and the earliest
he had seen them wear out was around five to eight years, varying with the patient's
activity level. Though misalignment could cause excessive wear, he had looked
at the x-rays and found no significant misalignment. In addition, ordinary daily
activity would not produce such extraordinarily rapid wear. Nor could he find
any technically inappropriate use of the prosthesis by Tait. Weiss's opinion was
that the extraordinarily rapid wear was caused by abrasive wear and generation
of debris from movement of the titanium against the polyethylene. He concluded
that the prosthesis failed to perform in a manner reasonably to be expected by
a surgeon using it because it failed too early. The district court granted the
defendants' motion to exclude Weiss's testimony as not meeting the Daubert standard
and then granted summary judgment. It concluded that Weiss's testimony would not
be helpful to the jury. It also rejected Primiano's argument that testimony that
the premature failure was not attributable to over-use, medical malpractice, "her
physiology," or to factors external to the device, would assist the jury.
The USCA reversed. Weiss's background and experience, and his explanation of his
opinion, left room for only one conclusion regarding its admissibility: It had
to be admitted. Once admitted, the opinion precluded summary judgment, because
if the jury accepted it, then the Howmedica prosthesis failed to perform in the
manner reasonably to be expected. His methodology, essentially comparison of what
happened with Primiano's artificial elbow with what surgeons who use artificial
elbows ordinarily see, against a background of peer-reviewed literature, is the
ordinary methodology of evidence based medicine. The jury may reject Weiss's opinion.
It may conclude that Primiano's level of activity, or error by Tait in performing
the surgery, caused the failure. Or it may conclude that the negligence that matters
lay in the packing and shipping department of Howmedica, which sent the wrong
pieces to Tait. But those possibilities related to the merits of Primiano's claim,
not the admissibility of Weiss's opinion. Given that the judge is "a gatekeeper,
not a fact finder," the gate could not be closed to this relevant opinion
offered with sufficient foundation by one qualified to give it. D.W. Nelson, Kleinfeld
(author), and Hawkins, Circuit Judges. P. Wetherall of Las Vegas, NV, for
the plaintiffs-appellants; F. Baker of San Francisco, CA, for the defendant-appellee.
(Download the
full text of this decision at www.ce9.uscourts.gov/)
8) BANKRUPTCY: In re Taylor, 08-60033 (9th Cir. The opinion filed in this case on Feb. 26, 2010 has been withdrawn and replaced with this opinion filed March 22, 2010). In 2005, David and Linda Taylor bought a Toyota Camry just before declaring bankruptcy. Their lender, USAA Federal Savings Bank ("USAA"), procured from them a security interest in the car as collateral for the loan. USAA perfected its security interest 21 days after the Taylors purchased their car. USAA's perfection was timely under Idaho law, but one day late under federal bankruptcy provisions. The Taylors' conveyance of a security interest to USAA was then avoidable by the Taylors' bankruptcy trustee, as a preferential transfer. The trustee moved the bankruptcy court to avoid the transfer. The court granted the motion. At issue on appeal was what should be the remedy when a court holds that a security interest is avoidable as a preferential transfer? When a bankruptcy court avoids a preferential transfer, it may award the bankrupt estate either the actual transferred property or the value of the transferred property. 11 USC Sec. 550(a). The bankruptcy court declined to award the estate the transferred property: the security interest. If it had done so, then the bankruptcy trustee could simply have canceled the security interest, thus converting the auto loan into an unsecured debt owed to USAA. Instead, the bankruptcy court opted to award the estate the "value" of the security interest. Hence, because the bankruptcy court left the original transaction untouched, the USAA kept its valid, enforceable secured interest in the car. But, the bankruptcy court also awarded the Taylors' bankruptcy estate more and it was that decision-to award the estate the value of the security interest by means of a new forced loan-that led to the issues on appeal. Once the bankruptcy court decided to award the value of the security interest, it had to decide the value of a security interest, once it is separated from its underlying loan. The bankruptcy court determined that the value of the security interest was the full value of the initial loan. It thus ordered USAA to loan the estate $18,020 plus interest; this amount was in addition to the $18,020 USAA initially loaned the Taylors when they purchased the Camry. Upon payment of the additional $18,020, USAA became entitled to file a non-priority unsecured claim for the additional amount of $18,020 plus interest, which was loaned under the bankruptcy court's order. The USCA concluded that the bankruptcy court's determination of the value of the security interest was clearly erroneous. It agreed that the security interest may have had some value greater than zero. But, there was no evidence in the record to support the bankruptcy court's finding that the value of the security interest equaled the amount of the original $18,020 loan at the time USAA perfected its security interest. In addition, because the value of USAA's security interest was not readily ascertainable, the bankruptcy court erred when it awarded the estate an estimate of that value instead of the transferred property-the security interest. The USCA reversed and remanded the bankruptcy court's decision with instructions to declare USAA's security interest void. The ownership of the car will not be subject to the lien created by the security interest and the USAA will retain an unsecured claim against the estate for $18,020, the value of the loan. The USCA also remanded for the bankruptcy court to determine whether USAA must return the payments it received from the Taylors, and if so, to whom. Pregerson, Noonan and Bea (author), Circuit Judges. L. Reinhold of Akron, OH, for the appellant; T. Stilley of Portland, OR, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 9) BANKRTUPCY: In re Marshall, 02-56002
(9th Cir. March 19, 2010). This case involved a tort claim by Vickie Lynn Marshall
against E. Pierce Marshall, the son of Vickie's late husband, J. Howard Marshall
II, for Pierce's purported interference with an inter vivos gift, estimated to
exceed $300 million, that, Vickie claimed, her late husband intended to give her.
The claim was asserted as a state law counterclaim to a nondischargeability complaint
and proof of claim that Pierce filed in Vickie's bankruptcy proceedings in the
Central District of California. Both the bankruptcy and district courts found
that Pierce was liable for tortious interference and awarded Vickie millions of
dollars in compensatory and punitive damages. While Vickie's tortious interference
claim was pending in federal court in California, a probate court in Texas was
administering the estate of J. Howard Marshall II. Both Vickie and Pierce were
actively engaged in this Texas litigation, participating fully in the five-month
jury trial held by the Texas probate court. To discern J. Howard's true intentions
regarding his will and assets held in trust, the probate court had to resolve
allegations that his estate plan and the transactions underlying it were tainted
by illegality and that contrary to his estate plan, J. Howard intended to give
Vickie a substantial inter vivos gift. In its judgment, which was issued after
the bankruptcy court's "judgment" on Vickie's tortious interference
claim but before the district court had adjudicated the appeal from the bankruptcy
court, the Texas probate court upheld the validity of J. Howard's estate plan
and estate planning documents, finding that J. Howard knowingly effected his estate
plan free from undue influence or coercion from Pierce. It further found that
J. Howard did not intend to give Vickie a gift from the assets that passed through
his will or that were held in his living trust. These and other legal and factual
determinations adverse to Vickie would be fatal to her tortious interference counterclaim
and should be afforded preclusive effect in this proceeding. The USCA held that
the Texas court's ruling should be afforded preclusive effect because it was the
earliest final judgment on matters relevant to this proceeding. The bankruptcy
court exceeded its statutory grant of power and the constitutional limitations
on that power when it purported to enter a final judgment in favor of Vickie on
her counterclaim. The bankruptcy court is empowered by 28 USC Sec. 157(b)(1) to
hear and finally determine "core proceedings arising under title 11, or arising
in a case under title 11." Vickie's counterclaim for tortious interference
was not a "core proceeding" because its resolution was not a necessary
precursor to the resolution of Pierce's claim against the bankruptcy estate for
defamation. That is, her counterclaim was not so closely related to Pierce's claim
that they essentially merged, with her counterclaim becoming part and parcel of
the bankruptcy court's claims determination and allowance process. Thus, the bankruptcy
court could, at most, enter proposed findings of fact and conclusions of law on
Vickie's counterclaim for tortious interference. See 28 USC Sec. 157(c). The USCA
thus held that the district court should have afforded preclusive effect to the
Texas probate court's factual findings and relevant legal conclusions. The determinations
adverse to Vickie in the Texas court prevent her from establishing elements of
her counterclaim, such as J. Howard's intent to give her a substantial inter vivos
gift, the tortious nature of Pierce's conduct regarding the estate planning documents,
and the reasonableness and amount of her expenditures. The USCA thus reversed
the judgment of the district court and remanded with instructions that judgment
be entered in favor of the Estate of Pierce Marshall. Judge Kleinfeld concurred
in the result: Vickie's counterclaim against Pierce was not a core proceeding.
The Texas probate court judgment preceded the district court judgment and controlled.
Judge Kleinfeld said he had no quarrel with that result but wrote separately to
offer additional grounds for the same result. Beezer (author), Kleinfeld
(concurring), and Paez, Circuit Judges. G. Brunstad of Hartford, Conn.,
for the appellant-cross-appellee; K. Richland of Los Angeles, CA, for the appellee-cross-appellant.
10) CONTRACTS / ARBITRATION: Geographic Expeditions,
Inc. v. Estate of Jason Lhotka, 09-15069 (9th Cir. March 31, 2010). This
dispute arose out of a series of events on Mount Kilimanjaro in October 2007.
Geographic Expeditions ("GeoEx"), a California corporation with its
principal place of business in San Francisco, conducts guided expeditions for
profit to various destinations throughout the world. Jason Lhotka, who was 37
years old at the time, and his mother, Sandra Menefee, both citizens of Colorado,
purchased tickets for a GeoEx expedition to Mount Kilimanjaro. As part of their
registration for the trip, Lhotka and Menefee each signed a GeoEx trip contract,
which included a provision requiring them to submit any dispute they might have
with GeoEx to binding arbitration. The agreement further provided that the amount
of recovery would be capped at "the sum of the land and air costs,"
which the parties agreed was $16,831. The expedition began in Africa on September
29, 2007, and was to last until October 8, 2007. On October 1, Lhotka began to
suffer difficulty sleeping and experienced a sudden onset of severe fatigue-early
symptoms of altitude sickness. On October 2, he told the head guide that he needed
to go back down the mountain because of his fatigue. He began his descent, accompanied
by an assistant guide. Although supplemental oxygen was available, it was not
administered to Lhotka, nor was a rapid descent ordered, although such a route
was also available. Both of these procedures are proper protocol for a person
with altitude sickness. On October 4, while descending the mountain, Lhotka died.
In July 2008, Lhotka's estate and his survivors filed suit in San Francisco Superior
Court alleging, inter alia, that Lhotka's death from high altitude sickness was
caused by the negligence of GeoEx employees in failing to recognize and treat
Lhotka's symptoms. In accord with California Code of Civil Procedure Sec. 425.10(b),
the state court complaint did not specify the amount of damages sought. In September
2008, GeoEx filed with the state court a motion to compel arbitration pursuant
to the parties' arbitration agreement. In December 2008, the state trial court
denied GeoEx's motion to compel arbitration, holding that the arbitration agreement
was unconscionable and thus unenforceable. GeoEx appealed, and, on January 29,
2010, the California Court of Appeal affirmed. GeoEx then filed a petition for
review with the California Supreme Court, which is currently pending. In October
2008-after filing in state court its motion to compel arbitration, but before
the state trial court ruled on the motion-GeoEx filed in federal district court
the current petition to compel arbitration. The district court held that GeoEx
had the burden to prove by a preponderance of the evidence that the amount in
controversy exceeded $75,000 but that, because of the contractual damages limitation,
recovery was limited to $16,831. Because GeoEx could not carry its burden of proof,
the district court dismissed GeoEx's petition under Rule 12(b)(1) for lack of
subject matter jurisdiction. The USCA reversed. It concluded that the district
court erred both when it applied a preponderance of the evidence standard and
when it held that the liability cap precluded federal jurisdiction. The district
court erred when it held the amount in controversy could not exceed $16,831. It
should not have relied on GeoEx's potential contractual defense to determine the
amount in controversy. Because it does not appear to a legal certainty that the
underlying amount in controversy was below $75,000, the district court erred when
it dismissed GeoEx's petition to compel arbitration for lack of subject matter
jurisdiction. B. Fletcher, Clifton, and Bea (author), Circuit Judges. R.
Gould for the petitioner; D. Smith for the respondents. (Download
the full text of this decision at www.ce9.uscourts.gov/)
12) LABOR LAW: Bamonte v. City of Mesa, 08-16206
(9th Cir. March 25, 2010). The City of Mesa, Arizona, requires its police officers
to wear certain uniforms and related gear (e.g., trousers, shirt, nametag, tie,
specified footwear, badge, duty belt, service weapon, holster, handcuffs, chemical
spray, baton, and portable radio). The wearing of body armor is optional, although
the officers are required to have body armor available. Officers employed by Mesa
challenged the district court's entry of summary judgment in favor of the City
on the officers' complaint that the City violated the Fair Labor Standards Act
("FLSA") by failing to compensate officers for the donning and doffing
of uniforms and gear. In support of their argument that the time spent donning
and doffing uniforms and related gear is compensable, the offices emphasized the
relationship between their uniform and gear and the performance of their duties.
Specifically, they claimed that the uniforms and gear contributed to their command
presence, thereby promoting officers and public safety in furtherance of law enforcement
goals. They also explained that it was preferable to don and doff uniforms and
gear at the police station for the following reasons: (1) the risk of loss or
theft of uniforms and gear at home; (2) potential access to the gear by family
members or guests; (3) distractions at home that might interfere with the donning
process; (4) safety concerns with performing firearms checks at home; (5) discomfort
associated with wearing the gear while commuting; (6) the increased risk of being
identified as a police officers while off-duty; and (7) potential exposure of
family members to contaminants and bodily fluids. The City was not oblivious to
these concerns. Each officer was provided a locker at the station and facilities
at which they could don and doff their uniforms and related gear. Officers had
the option to don and doff at home or at work. No requirements were imposed on
officers by the City, with the exception of motorcycle officers, who were required
to don and doff their uniforms and gear at home, because their shifts begin when
they leave their residences. Because the officers had the option of donning and
doffing their uniforms and gear at home, the district court determined that these
activities were not compensable under the FLSA and the Portal-to-Portal Act. The
USCA agreed that these activities were not compensable pursuant to the FLSA. It
also agreed that it was undisputed that officers other than motorcycle officers
have the option and ability to don and doff their uniforms and gear at home. There
was no rule, regulation, policy or practice of the City to limit the officers'
option in any way, although reasons existed for the officers not to avail themselves
of the at-home option, such as comfort, safety concerns, and exposure of family
members to certain substances, those reasons reflect preferences, not mandates.
In sum, the donning and doffing of uniforms and related gear at home was not required
by laws, rules, the employer, or the nature of the officers' work. Dissenting
in part, Judge Gould concurred in the judgment to the extent that it held that
the donning and doffing of the uniform is not compensable, but he would hold that
the donning and doffing of protective gear is compensable unless the time involved
is de minimis. Gould (dissenting in part) and Rawlinson (author),
Circuit Judges, and George, District Judge. W. Aitchison of Portland, OR, for
the appellant; J.M. Ogden of Phoenix, AZ, for the appellee. 13) INDIVIDUALS WITH DISABILITIES EDUCATION ACT: Compton Unified School District v. Addison, 07-55751 (9th Cir. March 22, 2010). Addison received very poor grades and scored below the first percentile on standardized tests during her ninth-grade in school. The school counselor attributed her poor performance to common "transitional year" difficulties and did not consider it atypical for a ninth-grader such as Addison to perform at a fourth-grade level. In the fall of her tenth-grade, Addison failed every academic subject. The counselor considered that to be a "major red flag." Teachers reported that Addison was like a stick of furniture" in class, and that her work was "gibberish and incomprehensible." They also reported that Addison sometimes refused to enter the classroom, colored with crayons at her desk, played with dolls in class, and urinated on herself in class. Her mother was reluctant to have her child "looked at," and School District officials decided not to "push." Instead they referred Addison to a third-party mental-health counselor. That counselor recommended that the School District assess Addison for learning disabilities. Despite that recommendation, the School District did not refer Addison for an educational assessment, and instead promoted her to the eleventh grade. In September 2004, Addison's mother wrote to the School District explicitly requesting an educational assessment and Individualized Education Program ("IEP") meeting. The assessment took place on December 8, 2004. The IEP team determined that Addison was eligible for special education services on January 26, 2005. Addison's mother then brought an administrative claim under the Individuals with Disabilities Education Act ("IDEA"). She sought compensatory educational services for the School District's failure to identify her child's needs and to failure to provide free appropriate public education. The administrative law judge found for Addison, and the district court affirmed. The IDEA seeks to ensure that children with disabilities have access to a free appropriate public education. It provides federal funds to assist state and local agencies in educating children with disabilities, but conditions such funding on compliance with certain goals and procedure. One condition is that each state will enact policies and procedures ensuring that all children with disabilities who are in need of special education services are identified, located, and evaluated. 20 USC Sec. 1412(a)(3)(A). This obligation is known as the "child find" requirement. The USCA concluded that claims based on a local educational agency's failure to meet the "child find" requirement are cognizable under the IDEA, and that here, the School District had clear notice of this fact. The USCA thus affirmed the district court's orders granting judgment on the pleadings and awarding attorneys' fees. Judge Smith dissented. He disagreed with the finding that Congress clearly intended to create a cause of action when it drafted IDEA Sec. 1412. He thought the clear language of the stature was to the contrary. In addition, he thought that even if the conclusion reached by the majority and the district court could be harmonized with the statute, he could not find that Addison was entitled to relief on the record in this case. Judge Smith said he was sympathetic to Addison's plight and disappointed that more was not done to aid her while she was a student in the school district. However, he could not find a private cause of action within the IDEA statutory structure and could not harmonize the language of the statute with a private cause of action for negligence. Moreover, even if he could find such things, he did not believe the record was sufficiently developed for a final judgment at this juncture. Pregerson (author), N.R. Smith (dissenting), Circuit Judges, and Collins, District Judge. B. Green of Los Angeles, CA, for the appellant; G. Crook of Sherman Oaks, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 14) INDIVIDUALS WITH DISABILITIES EDUCATION ACT: Payne v. Peninsula School District, 07-35115 (9th Cir. March 18, 2010). Payne is the mother of D.P., an autistic student who suffers from moderate autism which has delayed his academic progress and caused his resistance to work, his difficulties staying on task, and impulsive, "inappropriate or aggressive" responses to his environment. In September 2003, as required under the Individuals with Disabilities Education Act ("IDEA"), an Individualized Education Plan ("IEP") was developed for D.P. to address his limitations and provide appropriate education. That plan placed him in a transition classroom at Artondale Elementary School, set out instructional goals, and sought to address his behavioral issues through intervention methods, including the use of "time-outs" in a "safe room." This case concerns that safe room, a roughly 5' by 6' room located within the special education classroom. It is the teacher's use of that room with D.P., rather than the room itself, that was at issue. The parties disputed the details as to what Payne consented to (e.g., a locked, closed door, with no adult inside), the duration of D.P.'s confinements in the room, and whether the room's window was covered. However, the parties agreed that D.P. was locked in the room on multiple occasions in response to his classroom behavior. On several occasions, he removed his clothes while in the safe room and urinated and defecated on himself. He helped his teacher, Jodi Coy, clean up his excrement. In time, he began to exhibit anxious behavior and experience emotional and scholastic setbacks. Payne was wary of the safe room's use from the beginning. She consulted with Coy and other District administrators regarding its use during the IEP's development and after a defecating incident, expressing concerns over having D.P. in the room with a closed door and no adult inside. Coy defended her use of the safe room as an appropriate response to D.P.'s attempts to gain attention through misbehavior. Payne continued to have disagreements with Coy and administrators regarding access to the classroom and D.P.'s outside tutoring, which led Payne to request repeatedly that D.P. be removed from Coy's classroom. When her requests were denied, Payne requested mediation. Though that mediation resulted in an agreement that D.P. would be transferred to another school in the district, the record suggests that Payne did not attempt to address D.P.'s emotional problems there and that she was later unhappy with the District's provision of the services to which he had agreed. Despite the mediation agreement's failure to resolve all of Payne's issues with the District's provision of services, Payne never sought an impartial due process hearing. D.P. is currently being home-schooled. In December 2005, Payne filed a complaint in the district court. She claimed that the teacher's use of the room caused her son's "significant regression in communicative and sensory functions," the diminishment of his "academic prowess and abilities," and continuing "signs of emotional trauma." She sought general damages for "extreme mental suffering and emotional distress and special damages," as well as punitive damages for the violation of D.P.'s civil rights, and declaratory relief stating that the safe room policy was tortious and unconstitutional. The defendants-appellees moved for summary judgment. The district court found that it lacked subject matter jurisdiction over Payne's federal claims because Payne failed to exhaust her administrative remedies before going to federal court. It then declined to exercise supplemental jurisdiction over her state law claims, finding no independent basis for jurisdiction over them. The USCA agreed. Payne was contesting one part of the comprehensive educational strategy used to address D.P.'s unique situation. The safe room was included in his IEP; it is a recognized educational tool under Wash. Admin. Code Sec. 392-172-394; and, its use allegedly led to injuries that the services provided under the IDEA are meant to address. The USCA added that its finding neither condemned nor endorsed the manner in which the safe room was used here. Rather, the USCA said it thought that as an educational strategy (even if a misguided or misapplied one), it was better addressed initially by the administrative process. The USCA thus upheld the district court's dismissal of the claims made on D.P.'s behalf. Judge Noonan dissented. He disagreed with the Majority's characterization of Coy's conduct as part of an "educational strategy," the resolution of which required exhaustion under the IDEA. Viewing the facts in the light most favorable to Payne, it is clear that Coy's misuse of the isolation room served no legitimate education purpose, was prohibited by state administrative regulations, and was imposed as punishment. He would hold that under Witte v. Clark County School District, 197 F.3d 1271 (9th Cir. 1999), exhaustion under the IDEA is not required. Pregerson, Hall (author), and Noonan (dissenting), Circuit Judges. T. Vertetis of Tacoma, WA, for the appellant; M. Patterson of Seattle, WA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/) 15) INHUMANE TREATMENT OF ANIMALS: National Meat Association v. Brown, 09-15483 (9th Cir. March 31, 2010). This matter was heard on an interlocutory appeal from a preliminary injunction prohibiting the enforcement of California Penal Code Sec. 599f, which bans the slaughter and inhumane handling of nonambulatory animals, against federally regulated swine slaughter houses. On January 30, 2008, the Humane Society had released a video depicting nonambulatory cows-cows that are unable to stand or walk without assistance-being kicked, electrocuted, dragged with chains and rammed with forklifts at California's Westland/Hallmark slaughterhouse. The video also showed workers trying to get nonambulatory cows to stand by spraying pressured water into their noses to simulate drowning. Public health professionals warned that meat from these "downer" cows, as they are known, was more likely to be diseased, partly because animals can become nonambulatory due to disease and party because downer animals grow sicker as they roll around in other animals' refuse. The video triggered the largest beef recall in U.S. history. California responded by amending California Penal Code Sec. 599f so as to ban the receipt and slaughter of downer animals and require the humane handling of downer animals. Shortly before Sec. 599f, as amended, took effect, the National Meat Association ("NMA"), a trade association representing packers and processors of swine livestock and port products, filed suit in federal district court against the State of California seeking declaratory and injunctive relief barring the application of Sec. 599f to federally inspected swine slaughterhouses. Some NMA members claimed that Sec. 599f would prevent the slaughter of approximately 2.5% of their pigs. NMA argued that Sec. 599f is preempted by the Federal Meat Inspection Act ("FMIA"), violates the dormant commerce clause, and is unconstitutionally vague. The district court entered a preliminary injunction on preemption grounds. California, the intervenors, the Humane Society, and others who supported the bill amending Sec. 599f, brought this interlocutory appeal. The USCA vacated the injunction. It found that the NMA was not likely to succeed on its preemption claims under Sec. 599f(a)-(c)'s ban on the receipt and slaughter of downer animals. And although NMA likely would succeed on its preemption claim again Sec. 599f(e)'s humane handling provision, it failed to show a likelihood of irreparable injury or that the balance of the equities and the public interest tipped in its favor for this provision. The district court thus abused its discretion in granting a preliminary injunction and the USCA vacated the injunction. The USCA added that nothing in its opinion precluded the entry of a preliminary injunction as to Sec. 599f(e) after the appropriate findings are made, or a preliminary injunction on the entirely of Sec. 599f. Kozinski (author), Reinhardt, and Silverman, Circuit Judges. AAG D. Woods of Los Angeles, CA, for the defendants-appellants. S. Conant of Washington, DC, for the defendant-intervenors-appellants; S. Wells of Minneapolis, Minn., for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 16) FIRST AMENDMENT / BILLBOARDS: Desert Outdoor Advertising, Inc. v. City of Oakland, 09-15530 (9th Cir. March 18, 2010). In 2002, Desert Outdoor began displaying a large billboard, visible from a freeway, on East 9th Street in Oakland, California. Desert received a letter from the City of Oakland demanding that the structure be removed or that a variance be sought because the sign was prohibited by Oakland's local ordinances. Desert applied for a variance and was denied. Desert then filed suit in federal district court contending that the Oakland sign ordinances violated the First Amendment to the U.S. Constitution. Both Desert and Oakland moved for summary judgment. District Judge Jenkins granted each motion in part and denied each in part. He noted that Oakland's sign regulations are found in two separate enactments, the Oakland Planning Code ("OPC") and Oakland Municipal Code ("OMC"). The OPC banned the construction of any new "advertising sign" in Oakland without a variance. It also provided for certain regulations pertaining to the size, placement, and number of signs, again with the possibility of a variance. The OMC, Judge Jenkins found, works in conjunction with the OPC to regulate signs in Oakland and the OMC contains an absolute ban on advertising signs visible from a freeway. He struck down a portion of the OMC allowing for signs showing only time and temperature, but found that portion of the ordinance severable. He also struck down provisions of the OPC allowing for conditional use permits and for a design review process and found that those provisions were not severable. He was not explicit as to whether the offending portions of the OPC were severable from the OPC alone, or from the entire sign regulation scheme. Desert appealed to the Ninth Circuit. The USCA affirmed in Desert Outdoor Advertising, Inc. v. City of Oakland, 506 F.3d 798 (9th Cir. 2007). Oakland then filed an action in Alameda County Superior Court and was granted the right to remove the East 9th Street sign as a nuisance per se under its sign ordinances. In response to Oakland's attempts to enforce its state court judgment, Desert filed an emergency motion in federal district court requesting an order clarifying the court's declaratory judgment. Desert sought a declaration that the state judgment impermissibly enforced a regulatory scheme declared unconstitutional by Judge Jenkins. By this time, Judge Jenkins had retired from the bench, and the case was assigned to Judge Illston. She denied Desert's motion and found that the state court's order did not contravene Judge Jenkins's judgment. Desert again appealed. The USCA affirmed. It found that Judge Jenkins' order could not reasonably be understood to have struck down the entire scheme of sign-regulation. He was clear that he was treating the OMC and OPC as two separate enactments. He struck down specific sections of the OMC but found them severable. While he found portions of the OPC unconstitutional and not severable, that part of his order could not be read to have affected the OMC. Moreover, it is the OMC and not the OPC which Oakland was attempting to enforce in state court. In the state court proceedings, Oakland pointed specifically to OMC Sec. 1501, which it maintained rendered the East 9th Street sign a nuisance per se. Desert was wrong when it maintained that merely having a conditional use permit under the OPC would allow the display of a sign otherwise banned under the flat prohibition of the OMC. As Judge Jenkins' judgment did not strike down the OMC in its entirety, Oakland was entitled to enforce that ordinance again Desert. Hall, Noonan, and Thomas, Circuit Judges. Per Curiam. A. Herson of Jacksonville, OR, for the plaintiff-appellant; J. Russo of Oakland, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 17) CONSTITUTIONAL LAW / ESTABLISHMENT CLAUSE: Newdow v. Lefevre, 06-16344 (9th Cir. March 11, 2010). At issue here was whether the national motto of the United States, "In God We Trust," and its inscription on the Nation's coins and currency, violates the Establishment Clause of the First Amendment or the Religious Freedom Restoration Act of 1993 ("RFRA"), or both. The USCA held that its decision in Aronow v. USA, 432 F.2d 242 (9th Cir. 1970), foreclosed both claims. It thus affirmed the district court's order dismissing this case under Fed. R. Civ. Proc. 12(b)(6) for failure to state a claim upon which relief could be granted. In addition, Newdow lacked standing to challenge 36 USC Sec. 302, which establishes that "In God We Trust" is the national motto. His Establishment Clause challenge against 31 USC Secs. 5112(d)(1) and 5114(b) and his RFRA claim also were foreclosed by binding Ninth Circuit precedent. Finally, the USCA dismissed Newdow's challenge to Sec. 302 for lack of jurisdiction, and affirmed the district court's order dismissing the remaining causes of action for failure to state a claim upon which relief could be granted. Concurring, Judge Reinhardt noted that the majority in Newdow v. Rio Linda Union School District (see below) failed to comprehend the constitutional principles set forth in Establishment Clause cases that the Supreme Court decided in the years following the decision in Aronow. As he had to follow that precedent, he also had to conclude that Newdow's claims were foreclosed by Aronow. Judge Reinhardt thus concurred in the result only. D.W. Nelson, Reinhardt (concurring), and Bea (author), Circuit Judges. M. Newdow pro per; P. Keisler of Washington, DC, for the defendants-appellees; K. Snider of Sacramento, CA, for the defendant-intervenor-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 18) CONSTITUTIONAL LAW / ESTABLISHMENT CLAUSE: Newdow
v. Rio Linda Union School District, 05-17257 (9th Cir. March 11, 2010).
At issue here was whether a teacher-led recitation of the Pledge of Allegiance
to the Flag of the United States of America, and to the Republic for which it
stands, by students in public schools constitutes an establishment of religion
prohibited by the U.S. Constitution. The USCA held that it does not. California
Educational Code Sec. 52720 and the School District's Policy of having teachers
lead students in the daily recitation of the Pledge, and allowing those who do
not wish to participate to refuse to do so with impunity, do not violate the Establishment
Cause. The USCA thus reversed the district court's judgment and vacate the permanent
injunction prohibiting the daily recitation of the Pledge in the Rio Linda School
District. Dissenting, Judge Reinhardt would hold that the decision in this case
is controlled by binding Supreme Court precedents. Were today's majority to examine
the Pledge, as amended in 1954 to add the words "under God," and as
applied "through the unsentimental eye of our settle doctrine," it would
have to strike it down as a clear violation of the Establishment Clause. Marsh
v. Chambers, 463 US 783, 796 (1983) (Brennan, J. dissenting). Following
settled precedents, Judge Reinhardt concluded that the state-directed, teacher-led
daily recitation in public schools of the amended "under God" version
of the Pledge of Allegiance, unlike the recitation of the historic secular version,
without the two added words, contravenes the rules and principles set forth in
Lemon v. Kurtzman, 403 US 602 (1971), Santa Fe Indep. Sch. Dist. v. Doe,
530 US 290 (2000) and Lee v. Weisman, 505 US 577 (1992). D.W. Nelson, Reinhardt
(dissenting), and Bea (author), Circuit Judges. M. Newdow for the
plaintiffs-appellees; C. Blackwell of Washington, DC, for the United States; T.
Cassidy of Sacramento, CA, for the Rio Linda Union School District; K. Hasson
of Washington, DC, for the intervenors. (Download
the full text of this decision at www.ce9.uscourts.gov/)
20) IMMIGRATION: Chawla v. Holder, 05-74823 (9th Cir. March 26, 2010). Satpal Sing Chawla ("Chawla"), his wife Jasbir Kaur, and his son Inderpreet Singh Chawla (collectively "petitioners") sought review of a Board of Immigration Appeals' decision affirming an immigration judge's denial of Chawla's application for asylum, withholding of removal, and Convention Against Torture ("CAT") relief. The BIA's decision was based on an adverse credibility finding. The USCA granted the petition for review. Because each of the IJ's and BIA's proffered reasons for the adverse credibility finding failed, the USCA accepted Chawla's testimony as credible. That determination however, did not end the matter. As the BIA had not addressed (1) whether Chawla's treatment in India amounted to persecution, (2) whether his treatment was on account of one of the grounds protected by USCA asylum law, and (3) whether he had a well-founded fear of persecution should he be returned to India, the USCA remanded for further proceedings. O'Scannlain, Trott (author), and Paez, Circuit Judges. C. Stender of San Francisco, CA, for the petitioner; W. Munich of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 21) IMMIGRATION: Lee v. Holder, 07-71193 (9th
Cir. March 25, 2010). Lee sought review of a BIA decision affirming an IJ's order
of removal. He argued that the IJ erred in finding her ineligible for "U"
visa interim relief, a temporary form of relief previously made available to immigrant
victims of crime. Because the IJ had no authority to grant Lee "U" visa
interim relief, the USCA denied the petition for review. Petitioners who are denied
"U" visas may appeal only to the Administrative Appeals Office of the
U.S. Citizenship and Immigration Service ("USCIS), and not also to the immigration
court. 8 CFR Sec. 214.14(c)(5)(ii). Because the USCIS, and not the IJ, had jurisdiction
over Lee's request for interim relief, Lee's appeal failed. Kozinski, Thompson,
and McKeown, Circuit Judges. Per Curiam. A. Park of Santa Clara, CA, for the petitioner;
S. Baghai of Washington, DC, for the respondent.
(Download the full text of this decision at www.ce9.uscourts.gov/)
23) IMMIGRATION: Tamang v. Holder, 08-73550 (9th Cir. March
16, 2010). The petitioner sought review of a BIA's order dismissing his appeal
of an IJ's denial of his application for asylum, withholding of removal, and protection
under the Convention Against Torture ("CAT"). The USCA dismissed the
petition as to Tamang's asylum claim on the ground that the claim was untimely.
As to his remaining claims, the USCA denied the petition for review. Gould and
Tallman, Circuit Judges, and Benitez (author), District Judge. P. Cantor
of Tukwila, WA, for the petitioner; T. West of Washington, DC, for the respondent.
24) IMMIGRATION: Kazarian v. USCIS, 07-56774 (9th Cir. The opinion with dissent filed on Sept. 4, 2009 has been withdrawn and superseded by the opinion filed March, 4, 2010). Kazarian, a 34-year-old native and citizen of Armenia, applied for an employment-based immigrant visa for "aliens of extraordinary ability" (Form I-140). He maintained that he was an alien with extraordinary ability as a theoretical physicist. The U.S. Citizenship & Immigration Service ("USCIS") denied his petition. Kazarian appealed to the Administrative Appeals Office ("AAO") which dismissed his appeal, finding that he failed to satisfy the evidentiary criteria set forth in the relevant "extraordinary ability" visa regulations. Kazarian appeal again. The district court granted the USCIS summary judgment upon finding that its denial of the "extraordinary ability" visa was not arbitrary, capricious, or contrary to law. The USCA affirmed. It noted that although Kazarian appears to be a well-respected, promising physicist, who may well have been able to qualify for an "exceptional ability" visa, he had applied for an "extraordinary ability" visa instead and presented only two of the types of evidence set forth at 8 CFR Sec. 204.5(h)(3)(i)-(x). The "extraordinary visa" regulations require three. The AAO's conclusion that Kazarian presented zero types of evidence was in error, but that error was harmless. Kazarian failed to establish his eligibility for an "extraordinary ability" visa and the district court correctly granted USCIS's summary judgment motion. Judge Pregerson concurred but wrote separately to emphasize the injustice perpetrated by our immigration laws and system in this case. Kazarian received his Ph.D. in theoretical physics from Yerevan State University and, since arriving in the U.S. has continued research and teaching in this field. He participated in a research group headed by Dr. Kip Thorne at the California Institute of Technology. Dr. Thorne submitted a letter in support of Kazarian's visa application. Kazarian volunteers his teaching services at Glendale Community College and has authored and published his own physics textbook. He has received strong words of praise from colleagues at Yerevan State University, Glendale Community College, and the California Institute of Technology. His contributions in to the United States have been valuable. Forcing him to depart would be wasteful and make one think there is something haywire in our system. Although Kazarian did not submit the three of the types of evidence required for the "extraordinary visa," he would have been an excellent candidate for an "exceptional ability" visa. Indeed, it was likely the error of an ineffective lawyer that led Kazarian to apply for the wrong visa in the first place. Pregerson (concurring), D.W. Nelson (author), and Thompson, Circuit Judges. R. Sarkisian of Glendale, CA, for the appellant; C. Kuhn of Washington, DC, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/) 25) IMMIGRATION: Lanuza v. Holder, 07-71943 (9th Cir. March 5, 2010). Lanuza and her daughter are natives and citizens of Guatemala. They petitioned for review of the BIA's affirmance of an IJ's decision pretermitting their applications for special rule cancellation of removal under Sec. 203 of the Nicaraguan and Central American Relief Act of 1997 ("NACARA"). The government argued and Lanuza did not contest that the USCA lacked jurisdiction to consider this application for relief. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") expressly precludes the USCA from reviewing the BIA's determination of eligibility for NACARA Sec. 203 relief. Section 309(c)(5)(C)(ii) provides that "a determination by the Attorney General as to whether an alien satisfies the requirements of clause (i) is final and shall not be subject to review by any court." IIRIRA Sec. 309(c)(5)(C)(ii), as amended by NACARA. The USCA thus lacked jurisdiction to determine Lanuza's statutory eligibility for NACARA Sec. 203 relief. Lanuza also argued that she was denied due process because the IJ determined that she was ineligible for NACARA Sec. 203 relief before she began to testify. However, the record belies this contention. The IJ reviewed the record evidence, heard counsel's arguments and Lanuza's testimony, and allowed cross-examination, and directly questioned Lanuza over the course of four hearings before making the ineligibility determination. The IJ thus did not violate Lanuza constitutional right to due process by depriving her of a full and fair hearing and a reasonable opportunity to present evidence on her behalf. Wardlaw and Callahan, Circuit Judges, and Sedwick, District Judge. Per Curiam. J. Porta of Los Angeles, CA, for the petitioners; K. Kane of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 26) IMMIGRATION: Tampubolon v. Holder, 06-70811 (9th Cir. March 9, 2010). Tampubolon and his wife Silitonga ("petitioners") are devout Protestant Christians, and natives and citizens of Indonesia. In 1989, when he was 31 years old, Tampubolon entered the U.S. on a tourist visa. In 1992, when she was 22, his wife entered the U.S. on a tourist visa. The two met in the U.S. and married in 1995. They have two U.S. citizen daughters, ages 12 and 14. The entire family is active in their local church. Tampubolon and Silitonga are both employed in the healthcare industry and pay taxes; neither has been arrested for any crime. The petitioners came to the attention of the Department of Homeland Security ("DHS") when they conformed to the National Security Entry-Exit Registration System ("NSEERS") and registered with Immigration and Customs Enforcement. In 2003 and 2004, respectively, DHS issued Notices to appear, charging the petitioners with removability for overstaying their visas. They conceded removability and applied for relief from removal, including cancellation of removal, asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). The IJ denied each application for relief and also denied the application for asylum because the petitioners failed to file their applications within one year of arrival, and also failed to demonstrate changed circumstances. The IJ denied the petitioners' application for withholding of removal because neither had suffered past persecution and both had similarly situated siblings living in Indonesia who had not experienced problems practicing their Christian faith. The IJ denied the petitioners applications for cancellation of removal because they failed to show that removal would result in exceptional and extremely unusual hardship to their two U.S. citizen daughters. The BIA adopted and affirmed the decision of the IJ, citing Matter of Burbano, 20 I&N Dec. 872 (BIA 1994). The petitioners timely petitioned for review. The USCA granted the petition in part, denied it in part and remanded. It held that on the record, Christians are a disfavored group in Indonesia and the BIA erred in failing to analyze petitioners' withholding claim according to disfavored group analysis. The USCA thus granted the petition for review and remanded for the BIA to apply disfavored group analysis. The USCA affirmed the BIA and denied the petition with respect to all other applications for relief. It then awarded costs on appeal to the petitioners. B. Fletcher, Pregerson (author), and Graber, Circuit Judges. V. Weisz of Los Angeles, CA, for the petitioner; K. Edison of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 27) IMMIGRATION: Najmabadi v. Holder, 05-72401 (9th Cir. March 9, 2010). The petitioner, a native and citizen of Iran, sought review of a BIA's order denying her motion to reopen her removal proceedings on the basis of changed conditions in Iran. Finding that the petitioner failed to introduce previously unavailable, material evidence, the USCA denied the petition for review. Najmabadi is a 60-year-old native and citizen of Iran. She has lived in the U.S. since April 5, 1987. In those 23 years, she studied fashion design, established a dress-making business, and now designs Western style clothing for Iranian women. The IJ found her credible, but concluded that she lacked a well-founded fear of future persecution based on the record at that time. On December 14, 2004, Najmabadi moved the BIA to reopen based on changed circumstances in Iran following September 11, 2001. On March 31, 2005, the BIA denied Najmabadi's motion. The USCA then denied Najmabadi's petition for review of the BIA's denial of her motion to reopen. Dissenting, Judge Pregerson would grant that petition. Some of the evidence Najmabadi submitted shows a reasonable likelihood that she satisfied the requirement of a 1-in-10 chance of persecution based on her Western appearance and affiliation. Pregerson (dissenting), Bybee, and M.D. Smith (author), Circuit Judges. E. Arevalo of South Pasadena, CA, for the petitioner; P. Keisler of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/) 28) IMMIGRATION: Tijani v. Holder, 05-70195 (9th Cir. March 11, 2010). Jijani, a native and citizen of Nigeria, entered the U.S. in 1982 on a student visa and adjusted his status to lawful permanent resident in 1985. He later married a U.S. citizen. In 1986, the year after he achieved the status of lawful permanent resident, Tijani was convicted of perjury in violation of Cal. Penal Code Sec. 118 and of grand theft in violation of Cal. Penal Code Sec. 487. He was sentenced to three years probation. The next year, 1897, he was convicted of passing fraudulent checks in violation of Penal Code Sec. 476a(a) and sentenced to one and one third years imprisonment. As a result of these felony convictions, the Immigration and Naturalization Service, now Department of Homeland Security ("DHS"), placed Tijani in deportation proceedings. He applied for a waiver of inadmissibility, submitting a letter on the letterhead of the Brotherhood of the Cross and Star, with its world headquarters indicated as Calabas, Nigeria, and its local headquarters indicated as Los Angeles. The letter was signed by "Pastor O.J. Omogi" and stated that Tijani had been a practicing member of this Christian church for two years. In 1989, an immigration judge granted the waiver. Two years later, in 1991, Tijani was convicted of violating Cal. Penal Code Sec. 532a(1) by providing false information to obtain credit cards and using the cards to obtain goods; he was again convicted of filing false statements and had his prison sentence doubled. On June 9, 1999, he was convicted of 12 counts under the same section of the criminal law which he had been found in 1991 and 1992 to have violated; this time the crimes had been committed between June 1996 and July 1998. He was sentenced to prison for nine years and ordered to pay $27,793 in restitution. In 2003, he was charged with being removable as an alien convicted of an aggravated felony and two crimes of moral turpitude under 8 USC Sec. 1227(a)(2)(A)(ii) and (iii). He applied for asylum, withholding of deportation, and other relief, testifying that, brought up a Muslim, he become a Christian in 1994 and that, upon returning to his mother's village in 1995, he revealed his change of religion. Her neighbors told the Sharia police, who reproached him for his apostasy from Islam. They then stuck him on the head, a blow requiring 17 stitches to repair and leaving a scar. He was summoned to explain his apostasy in court, but fled Nigeria instead. At his removal hearing, the IJ found the charges against him true, rendering him removable. The IJ further found that the 1991 and 1999 convictions were for crimes of moral turpitude and that the 1999 conviction was for an aggravated felony. He found that Tijani's credit card frauds were particularly serious crimes, hurtful to the credit structure on which the U.S. economy rests. The IJ ruled that considering the multiple lies underlying his convictions and the conflict between his story of his change of religion and the account given in Omogi's letter, the IJ had "reason not to believe him." The IJ concluded that Tijani failed to prove eligibility for asylum, withholding of removal, or relief under the Convention Against Torture ("CAT"). The BIA, using its streamlined procedure, affirmed the IJ's decision without opinion. Tijani petitioned for review. The USCA affirmed in part, reversed in part, and remanded. It noted that although there were reasons for doubting Tijani's credibility, compelled by precedent, it nonetheless accepted his story. The IJ found that the weight of Tijani's words was not sufficient to carry his burden of proving eligibility for asylum, but nevertheless explicitly refused to find Tijani not credible. Precedent holds that an adverse credibility finding does not require the recitation of a particular formula, yet the finding must be "explicit." Mansour v. Ashcroft, 390 F.3d 667, 671-72 (9th Cir. 2004). Absent such explicit finding, an IJ cannot require corroboration evidence. The REAL ID Act of 2005 has remedied some of the problem created by the precedent, as it permits an IJ to ask for corroboration of otherwise credible testimony. The proceedings here began before the effective date of the new law and were not governed by it. The USCA thus had to remand to the agency to address the questions of whether Tijani would be in danger of persecution on account of his religion or would be entitled to other relief. Judge Tashima dissented in part because the majority employed an unauthorized non-categorical mode of analysis in concluding that the petitioner was convicted of a crime involving moral turpitude. He dissented from the majority opinion, except for part entitled "Relief." Dissenting in part, Judge Callahan thought the petition should be denied as the IJ had properly required Tijani to provide some corroboration of his testimony, and had properly denied him relief when he failed to do so. Noonan (author), Tashima (dissenting in part), and Callahan (dissenting in part), Circuit Judges. C. Wang of San Francisco, CA, for the petitioner; A. Bosque of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/) 29) SMUGGLING AND HARBORING ILLEGAL ALIENS: USA v. Reyes-Bosque, 08-50253 (9th Cir. March 1, 2010). Reyes-Bosque was convicted and sentenced to 210 months imprisonment for (1) aiding aggravated felon aliens enter the U.S. in violation of 8 USC Sec. 1327; (2) conspiring to bring in, transport and harbor illegal aliens, in violation of 8 USC Sec. 1324(a)(1)(A)(i), (iii), and (v)(I) (the "brings to" offense); (3) four counts of bringing in illegal aliens for financial gain, in violation of 8 USC Sec. 1324(a)(2)(B)(ii); and (4) four counts of harboring illegal aliens, in violation of 8 USC Sec. 1324(a)(1)(A)(iii) and (v)(II). Ramirez-Esqueda was convicted and sentenced to a term of 48 months for six counts of harboring illegal aliens. Both defendants appealed the district court's denial of their individual motions to suppress evidence. Reyes-Bosque also challenged the sufficiency of the evidence to support his conviction, the admission of hearsay evidence at his trial, and the district court's denial of his motion for appointment of new counsel before his sentencing. The USCA affirmed. It found that the evidence sufficiently demonstrated that Reyes-Bosque was connected to conduct that occurred before the entry of illegal aliens to the United States. Although a plethora of evidence connected him to alien smuggling activities, including the fact that Reyes-Bosque provided cell phones, cars, and a place to keep the illegal immigrants, the key evidence to connect him to the conduct that occurred before the "brings to" offense was complete was found in Villagomez-Alonso's testimony that the person he negotiated with crossed into the U.S. with him, accompanied him and about 20 to 25 others to a house where they stayed some four hours and then took him to another location ("Unit 4"). Under USA v. Lopez, 484 F.3d 1186, 1191, the offense "ends when the person who transports the aliens to the country terminates his act of transportaiton and drops off the aliens in the United States. Here the person who transported Villagomez-Alonso into the U.S. transported him to the first house, but did not drop him off. Instead they continued to Unit 4. The government also presented a ledger obtained from Unit 4 with Villagomez-Alonso's name on it, thereby linking Reyes-Bosque's involvement in the smuggling operation to the cross-border transportaiton of Villagomez-Alonso. This evidence connected Reyes-Bosque to activities that occurred before "the person who transported the aliens to the country terminated his act of transportation and dropped off the aliens. Reyes-Bosque's conviction thus was sufficiently supported by the evidence. Schroeder, Siler (author), and Ikuta, Circuit Judges. H. Sullivan and T. Scott of San Diego, CA, for the appellants; AUSA A. Schopler of San Diego, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/) 30) IDENTITY THEFT: USA v. Maciel-Alcala, 09-50038 (9th Cir. March 25, 2010). Maciel-Alcala, a Mexican citizen, had been living in the U.S. under the stolen identity of Ramon Ramirez, a man with whom Maciel was not acquainted. Maciel used Ramirez's identity to purchase a truck, rent an apartment, secure loans, and obtained several cellular telephone accounts. He also used Ramirez's identity to obtain a California identification card, birth certificate, and Social Security card, all of which were issued in Ramirez's name. In August 2004, Maciel used these documents to procure a U.S. passport, which he later used to travel to Mexico. On March 17, 2008, he was arrested by U.S. Customs and Border Protection ("Customs") officials for attempting to use the fraudulently obtain passport to reenter the U.S. and for falsely claiming U.S. citizenship on his Customs declaration. The government indicted Maciel for making a false statement in his passport, 18 USC Sec. 1542, for falsely representing himself as a U.S. citizen to Customs, 18 USC Sec. 911, and for two counts of aggravated identity theft in connection with the underlying counts in violation of 18 USC Sec. 1028A(a)(1). Section 1028A(a)(1) provides an additional two years of incarceration for anyone who "during and in relation to any felony" enumerated in the statute, two of which are Maciel's underlying offenses, "knowingly transfers possesses, or uses, without lawful authority, a means of identification of another person." Maciel pled guilty to the Sec. 911 and Sec. 1542 charges and waived his right to a jury trial on the aggravated identity theft counts. During the bench trial, a supervisor from the Orange County Clerk Recorder's Office testified that on February 19, 2004, a person representing himself to be Ramirez applied for and was given a copy of his birth certificate. The real Ramirez, who was alive and well and residing in Arizona, testified that he never requested a copy of his birth certificate from Orange County, where he was born. Nor did he authorize Maciel to request a copy of this birth certificate. Maciel did not contest this evidence, but stipulated that (1) he had applied for a passport in Ramirez's name and presented a copy of Ramirez's birth certificate in support of his application on August 11, 2004, and (2) he had presented the passport to Customs officers when he reentered the United States. Before closing argument, Maciel moved for judgment of acquittal pursuant to Fed. R. Crim. Proc. 29. Drawing upon language from Flores-Figueroa v. USA, 129 S.Ct. 1886 (2009), Maciel argued that, to secure the enhanced penalty under Sec. 1028A, the government had to prove that Maciel knowingly possessed, transferred, or used a means of identification of "another person" who he then knew to be a "live" person-as opposed to a "deceased" person. The government conceded that it could not provide that Maciel knew Ramirez was alive when he used Ramirez's birth certificate to obtain the passport. Holding that Sec. 1028A requires the government to prove only that Maciel knew Ramirez was a real person, living or deceased, the district court denied Maciel's motion and entered a guilty verdict on the two counts of aggravated identity theft. Concluding that the government was not required to prove that Maciel knew that Ramirez was a living person when he committed the crime of aggravated identity theft, the USCA affirmed the judgment of conviction for violating Sec. 1028A(a)(1). Canby, Wardlaw (author), and Callahan, Circuit Judges. S. Kennedy of Los Angeles, CA, for the appellant; T. O'Brien of Los Angeles, CA, for the appellant. (Download the full text of this decision at www.ce9.uscourts.gov/) 31) EXCESSIVE FORCE / USE OF TASERS: Brooks v. City
of Seattle, 08-35526 (9th Cir. March 26, 2010). On November 23, 2004,
Seattle Police Department officer Ornelas stopped Brooks for speeding in a school
zone. The situation deteriorated quickly. Brooks claimed that she had not been
speeding, grabbed her driver's license out of Ornelas's ticket book and only reluctantly
gave it back. She then repeatedly refused to sign a Notice of Infraction regarding
her speeding violation. When Office Jones arrived, Ornelas told him that Brooks
had refused to sign the Notice and was being uncooperative. Jones tried to obtain
her signature himself, but Brooks refused his entreaties as well, despite assurances
that signing was not tantamount to admitting the violation. She then accused Jones
of lying to her about the import of signing, suggested he was being racist, and
became upset, repeating "I'm not signing, I'm not signing" over and
over. Throughout, she remained in the car with the ignition running. Ornelas then
called his supervisor, Sergeant Daman. When Daman arrived, Brooks continued to
refuse to sign the Notice. Daman then asked her one more time if she was going
to sign the ticket. When she refused he told Ornelas and Jones to book her. When
they attempt to do so, Brooks refused to leave her car, remaining in it with the
ignition running and her door shut. Jones then showed Brooks his Taser, explaining
it would hurt "extremely bad," if applied. Brooks told them she was
pregnant and that she needed to use the restroom. The officers discussed where
to taser her, deciding upon her thigh. Jones demonstrated the Taser for her. Brooks
still remained in the car, so Ornelas opened the door and reached over to take
the key out of the ignition, dropping the keys on the floorboard. Ornelas then
employed a pain compliance technique, bringing Brooks' left arm up behind her
back, whereon Brooks stiffened her body and clutched the steering wheel in order
to frustrate her removal from the car. Jones then discharged the Taser against
Brooks' thigh, through her sweat pants, which caused her "tremendous pain."
She began to yell and honk the car's horn. Within the next minute, Jones tased
her two more times, against his shoulder and neck, the latter being the only area
of exposed skin. Brooks was unable to get out of the car herself during this time
because he arm was still behind her back. The third tasing moved Brooks to the
right, at which point Ornelas and Jones were able to extract her from the car
through a combination of pushing and pulling. She was immediately seen by medical
professionals. Two months later delivered a healthy baby. She was charged with
(1) violation of Seattle Municipal Code 11.59.090 for refusing to sign the Notice,
and (2) resisting arrest. She was convicted of the first charge, but the jury
hung on the second, which was later dismissed. Brooks then filed this action against
the officers, asserting a claim under 42 USC Sec. 1943 and assault and battery
claims under state tort law for the alleged excessive force. The district court
denied the officers' motion for summary judgment on those claims, finding a clearly
established constitutional violation in the use of excessive force that deprived
the officers of qualified immunity on both the federal and state claims. The USCA
reversed and remanded for further proceedings. It found the officers' use of force
to be reasonable and not excessive under the Fourth Amendment. Moreover, as the
use of force was reasonable, the officers were entitled to state law qualified
immunity for assault and battery claims. The officers had probable cause under
Washington law to arrest Brooks for obstructing officers in the exercise of their
official duties, did so at the behest of the superior office on the scene, and
acted reasonably and in accordance with Seattle Police Department's Use of Force
Training Guidelines. The officers were thus entitled to immunity for these state
law claims. Judge Berzon dissented. She said she could not comprehend how her
colleagues could conclude that it was objectively reasonable to use any force
against Brooks, let alone three activations of a Taser, in response to such a
trivial offense. Hall (author), O'Scannlain, and Berzon (dissenting),
Circuit Judges. K. Cobb of Seattle, WA, for the defendants-appellants; E. Zubel
of Seattle, WA, for the plaintiff-appellee.(Download
the full text of this decision at www.ce9.uscourts.gov/)
|
| Readers of 9th Circuit Update can receive online access to the full texts of Ninth Circuit published decisions on the same day such decisions are announed by the Court. Decisions are usually online by 10:00 a.m. Docket Sheets are also online, but Memoranda Decisions are not. This service can be reached at: www.ce9.uscourts.gov/ © 2000 - 2010. 9th Circuit Online. All rights reserved. |