1) COPYRIGHTS / IMPLIED CONTRACTS: Montz v. Pilgrim Films & Television, Inc., 08-56954 (9th Cir. May 4, 2011). Writers commonly submit copyrighted scripts to producers with the understanding that if the script is used, the producer will compensate the writer for the use of the copyrighted material. What happens when a producer uses an idea or concept embodied in the script but doesn't pay the writer was addressed by the Supreme Court of California in 1956. It recognized an implied contractual right to compensation in such cases. Desny v. Wilder, 299 P.2d 257 (Cal. 1956). Such a "Desny claim" has remained viable under California for over 50 years. The USCA applied that California law in Grosso v. Miramax Film Corp. 383 F.3d 965 (9th Cir. 2004), amended 400 F.3d 658 (9th Cir. 2005), cert. denied 546 U.S. 824 (2005), holding that such an implied contractual claim is not preempted by federal copyright law. The USCA explained that the contractual claim requires that there be an expectation on both sides that the use of the idea requires compensation, and that such bilateral understanding of payment constitutes an additional element that transforms a claim from one asserting a right exclusively protected by federal copyright law, into a contractual claim that is not preempted by copyright law. Grosso has firm roots in federal law as well as in California law. Recently, following Grosso in Benay v. Warner Bros. Entm't, Inc., 607 F.3d 620 (9th Cir. 2010), held that a contractual claim was not preempted and noted that "contract law, whether through express or implied-in-fact contracts, is the most significant remaining state-law protection for literary or artistic ideas." Id. at 629. However, the three judge panel in the current case found a similar claim preempted. Sitting en banc, the USCA again held that copyright law does not preempt a contract claim where the plaintiff alleges a bilateral expectation that he would be compensated for use of the idea, the essential element of a Desny claim that separates it from preempted claims for the use of copyrighted material. The USCA saw no meaningful difference between conditioning use on payment in Grosso and conditioning use in this case on the granting of a partnership interest in the proceeds of the production. Montz, like the plaintiffs in Desny and Grosso, alleged that he revealed his concept to the defendants reasonably expecting to be compensated, should his concept be used. The USCA concluded that the district court's judgment dismissing the contractual claim as preempted should be reversed. The plaintiffs' complaint also alleged a claim under California law for breach of confidence. The district court dismissed it as preempted as well and the panel on appeal affirmed. Sitting en banc, the USCA now also reversed the judgment dismissing that claim and remanded both for further proceedings. Judge O'Scannlain, joined by Judges Gould, Tallman, and Bea, dissented. He noted that Montz did not claim to have sold his rights as a copyright owner. To the contrary, he alleged that he retained those rights, and that defendant implicitly promised not to use or disclose his ideas without his consent. Judge O'Scannlain thought the district court properly held that an action to enforce a promise not to use or to disclose ideas embodied in copyrighted material without authorization assets rights equivalent to those protected by the Copyright Act. Accordingly, he thought the district court's determination that the Copyright Act preempted Montz's claims should be affirmed. Judge Gould also dissented separately. He emphasized his concern with the improvident practical results that the majority decision will likely engender. The "extra element" argument is, he thought, impractical for an "implied" claim like the one at issue here. Although an express contract claim can proceed under state law, Judge Gould thought courts should be cautious in implying a contract claim in circumstances where the claim functionally looks like a copyright claim. See Daboub v. Gibbons, 42 F.3d 285, 290 (5th Cir. 1995). There is, Judge Gould thought, no virtue in permitting a supplemental state law jurisdiction that in substance expands federal copyright law. Under such a legal regime, film production and network companies face the chaotic prospect of having to meet conflicting federal and state standards on essentially the same question, a result the Copyright Act aims to avoid. Studio and network ventures need stable law that does not unsettle expectations. He thought the majority decision, however, will lead to uncertainty by making state law-with its ambiguity, variability, and volatility-available to litigants who bring nebulous state law claims that in substance assert rights in the nature of copyright. Kozinski, Schroeder (author), Reinhardt, O'Scannlain (dissenting), Thomas, Wardlaw, Gould (dissenting), Paez, Tallman, Bea, and M.D. Smith, Circuit Judges. H. Miller of Los Angeles, CA, for the plaintiffs; G. Migdal of Los Angeles, CA, for the defendants. .(Download the full text of this decision at www.ce9.uscourts.gov/)

2) COUNTERFEIT GOODS / FREEDOM OF INFORMATION ACT: Watkins v. U.S. Bureau of Customs and Border Protection, 09-35996 (9th Cir. May 6, 2011). Watkins, a copyright and trademark attorney, appealed pro se the district court's summary judgment in favor of the U.S. Bureau of Customs and Border Protection ("CBP") on his eight Freedom of Information Act ("FOIA") requests for 19 CFR Sec. 133.21(c) Notices of Seizure of Infringing Merchandise from the Ports of San Francisco, Miami, El Paso, Seattle, Newark / New York, Los Angeles / Long Beach, and Boston. Watkins's FOIA requests to the Port of Seattle sought "all notices to trademark owners required to be made pursuant to 19 CFR Sec. 133.21(c), dated during the period January 1, 2005 through July 31, 2007, regarding merchandise seized at the Port of Seattle as being counterfeit, as defined in 19 CFR Sec. 133.21(a)." He made nearly identical requests to the other six ports. According to Watkins, he did not receive any sort of response or acknowledgment of the FOIA requests he sent to the Ports of San Francisco and Miami, or to a second request to the Port of Seattle. He further maintained that the Port of El Paso only informed him that his requests had been sent to the FOIA division in Washington, DC, without providing any further information on the status of the requests. The Ports of Newark / New York, Los Angeles / Long Beach, and Boston demanded, as a prerequisite to responding to Watkins's request that he make an advance payment to cover the processing fees for his FOIA requests. These Ports required advance processing fees ranging from $500 to almost $30,000. In order to avoid paying what he deemed to be exorbitant processing fees for his FOIA requests, Watkins limited the breadth of his FOIA requests to cover a shorter time-period. After considerable back and forth between Watkins and the Ports, the Ports provided Watkins heavily redacted Notices of Seizure sent during the relevant time periods, citing FOIA exemptions 5 USC Sec. 552(b)(2), (b)(4), (b)(6), and (b)(7)(A). The district court first addressed Watkins's claim that the Agency improperly relied on the DHS's FOIA fee regulation instead of its own in order to increase Watkins's costs. According to the court, upon becoming a component of DHS, CBP needed DHS's approval to maintain its previously promulgated FOIA regulations. Because CBP did not seek DHS's approval, DHS's FOIA regulations properly governed Watkins's requests. The district court discounted the amendments CBP made to its FOIA fee regulations after becoming a component as merely technical amendments, which were not enough "evidence that the Agency reviewed its FOIA fee schedule and affirmatively determined that they would remain in the regulations." The district court next addressed the Agency's redaction of the Notices of Seizure pursuant to 5 USC Sec. 552(b)(4), or Exemption 4. First, the court found that information redacted in the Notices constituted "confidential" information. The court was persuaded that Notices of Seizure do not always pertain to counterfeit goods, and noted that the issuance of a Notice does not by itself demonstrate that the importer was (1) liable for trademark infringement and/or (2) aware of the counterfeit nature of the goods. As a result, importers of goods seized are not "unworthy of protection from competitive harm." Second, the court noted that although an agency ordinarily provides affidavits from the submitters of the information objecting to disclosure, the Ninth Circuit has carved out exceptions in cases where the Agency submits a declaration from a declarant that is "very familiar" within the industry at issue. The district court concluded that this exception was met because the Agency's declarants had "extensive knowledge of commercial enforcement and intellectual property affecting the nation's borders." Third, the court found that the Agency's release of the Notices to affect trademark holders did not waive Exemption 4. The Agency was statutorily obligated to provide such "limited disclosures" to interested third-parties. Fourth, the district court found that the Agency "came forth with more than adequate information detailing the various harms that could befall importers if the Notices of Seizure were disclosed." Consequently it granted the Agency's Motion for Summary Judgment and its request for a Protective Order. The USCA affirmed the district court's ruling as it regards FOIA Exemption 4. The district court's finding that the Notices contained plainly commercial information, which disclosed intimate aspects of an importers business such as supply chains and fluctuations of demand for merchandise, was, the USCA found, well supported. The USCA reversed the district court's conclusion as to the fees charged to Watkins. Until CBP repeals the FOIA fee provisions found at 19 CFR Sec. 103, they remain valid, and CBP must follow them. The USCA thus remanded so that the district court could determine the appropriate relief. Dissenting in part, Judge Rymer said she parted company with the majority only with respect to whether the Ninth Circuit should adopt the "public domain" test for waiver embraced by the D.C. Circuit and the Second Circuit. She thought it should, as not only would adopting that test put the Ninth Circuit in line with other circuits, but unlike the majority's test, the public domain test is a clear rule that can be applied without guess work. Judge Smith also dissented in part. He dissented from Part A.2 of the majority opinion, because the government had not carried its burden of showing that the Notices of Seizure fall within the "trade secrets" exemption, 5 USC Sec. 552(b)(4) ("Exemption 4"). Rymer (dissenting in part) and N.R. Smith (dissenting in part), Circuit Judges, and Walter (author), District Judge. S. Watkins of Fall City, WA, proceeding pro se; AUSA K. Stahman of Seattle, WA, for the defendant-appellee. .(Download the full text of this decision at www.ce9.uscourts.gov/)

3) TAXATION / PARSONAGE EXEMPTIONS: Freedom from Religion Foundation v. Geithner, 09-17753 (9th Cir. May 9, 2011). At issue on appeal here was whether an individual who claims certain federal and state tax exemptions may intervene in an unrelated action challenging the constitutionality of those exemptions. The Freedom from Religion Foundation, Inc. ("FFRF") sued the Secretary of the Treasury and the Commissioner of the Internal Revenue Service in their official capacities under 28 USC Sec. 2201, alleging that the so-called "parsonage exemption" violates the Establishment Clause of the U.S. Constitution. FFRF also sued the Executive officer of the California Franchise Tax Board ("CFTB") in his official capacity under 42 USC Sec. 1983, alleging that California's parsonage exemption violates the Establishment clause of both the U.S. and California Constitutions. The challenged statutes allow "ministers of the gospel" to exclude their rental allowance, or the rental value of any home furnished to them as part of their compensation, from gross income. 26 USC Sec. 107. FFRF sought a declaration that the challenged statutes were unconstitutional and an injunction forbidding the defendants from "continuing to grant or allow tax benefits under Sec. 107 and 265(a)(6) of the Internal Revenue Code and the corresponding sections of the California Revenue and Taxation Code. Six days after FFRF filed its complaint, Pastor Michael Rodgers, a minister of the gospel in the Sacramento, California area who regularly claims both the federal and state parsonage exemptions, moved to intervene as a defendant on behalf of himself and Does 1-100 ministers within the jurisdiction of the Eastern District of California. Rodgers sought to intervene both as of right, pursuant to Fed. R. Civ. Procedure 24(a)(2) and permissively, pursuant to Rule 24(b)(1)(B). The federal defendants opposed the motion, and the district court denied Rodgers' motion both for intervention as of right and for permissive intervention. Rodgers appealed. The USCA affirmed in part, vacated in part, and remanded. First, because the federal defendants adequately represented Rodgers' interests, he was not entitled to intervene as of right under Rule 24(a)(2). Second, it was undisputed that the district court exercised federal-question jurisdiction and that Rodgers did not seek to bring any counterclaims or cross-claims. Accordingly, he was not required to make any further showing that his intervention was supported by independent jurisdictional grounds. Because the district court did not apply the correct legal rule, its decision denying Rodgers permissive intervention was not an appropriate exercise of discretion. The USCA thus vacated that portion of the district court's order and remanded so that the district court could reconsider the request for permissive intervention under the criteria established by Rule 24(b). USA v. City of Los Angeles, 288 F.3d. 391, 404 (9th Cir. 2002). O'Scannlain (author) and Trott, Circuit Judges, and Campbell, District Judge. K. Snider of Sacramento, CA, for the appellant; I. Dale of Washington, DC, for the appellees. .(Download the full text of this decision at www.ce9.uscourts.gov/)

4) ADMINISTRATIVE PROCEDURE ACT: Ursack, Inc. v. Sierra Interagency Black Bear Group, 09-17152 (9th Cir. May 9, 2011). The National Park Service and the U.S. Forest Service require backpackers who visit certain areas in the Sierras to store food in portable bear-resistant containers. Between 2001 and 2007, both the Park Service and the Forest Service required visitors to Yosemite National park, Sequoia and Kings Canyon National Parks ("SEKI"), and the Inyo National Forest to use containers that had been tested and approved by the agencies. An informal body known as the Sierra Interagency Black Bear Group ("SIBBG") tested privately manufactured bear-resistant containers and made recommendations to the Park and Forest Services regarding which containers to approve. Ursack, Inc. manufactures a bear-resistant container called "the Ursack S29." Between 201 and 2007, it urged SIBBG to recommend Ursack containers for inclusion on the agencies' list of approved containers. In 2007, SIBBG recommended that the agencies grant conditional approval to the Ursack S29 ("S29") for the 2007 summer season. SIBBG recommended that the agencies withdraw approval if they determined that the container "failed" three or more times during the season. The agencies accepted this recommendation and granted conditional approval. At the end of the 2007 season, however, SIBBG determined that the S29 failed more than three times, and recommended that the agencies withdraw conditional approval. The National Park Service accepted this recommendation and withdrew conditional approval, and to this day refuses to permit backpackers to use the S29 in the container-only areas of Yosemite and SEKI. The Forest Service has continued to allow backpackers to use the S29 in Inyo National Forest. Ursack and three individual users of the S29 brought this action pursuant to the Administrative Procedure Act ("APA") against SIBBG, the Park Service, the Forest Service, and the superintendents of the relevant national parks and forests, alleging that the decision to withdraw conditional approval of the S29 was arbitrary and capricious and otherwise not in accordance with law. After reviewing the administrative recorded, the district court granted summary judgment to the agencies. Ursack and the three individuals appealed. The USCA affirmed. Ursack argued that SIBBG's decision to revoke conditional approval of the S29 was arbitrary and capricious for several reasons: (1) in deciding to apply a three-strikes (i.e., three failures) standard to the S29, SIBBG failed to consider an important aspect of the problem; (2) SIBBG's decision to apply the "three strikes" standard to the S29 was arbitrary given SIBBG's decision to not revoke the approval of a competing bear canister, the BearVault, after it failed 12 times; and (3) SIBBG's decision to prohibit users from tying the S29 to trees was capricious. Ursack argued that SIBBG's decision to revoke approval of its product after three failures in 2007 amounted to a denial of equal protection because a competing product, the BearVault, failed 12 times in 2005 but did not have its approval revoked. Because SIBBG's decision did not involve a suspect classification, rational basis scrutiny applied, and thus the standard of review is identical to arbitrary and capricious review under the APA. The record indicated that SIBBG had a rational basis for revoking approval of the S29 in 2007, even though it declined to revoke the BearVault approval in 2005 after it failed a dozen times-namely, SIBBG's conclusion that almost all of the BearVault failures were likely caused by the same bear which had figured out how to break into them. If the same incidents were spread over a large area indicating a fundamental problem with the design or the way people used it, it is likely that SIBBG would have pulled their approval. In contrast, SIBBG did not conclude that the six S29 failures in 2007 were caused by the same bear. The USCA concluded that the agency is better equipped than the court to determine how many bears were involved in the relevant incidents. The USCA thus accepted the agency's findings on these matters and conclude that the distinction SIBBG made between the BearVault and the S29 were rational. In addition to its arbitrary and capricious arguments, Ursack argued that the Park Service violated the "licensing" provisions of the APA, 5 USC Sec. 558. These provisions specify procedures that an agency must follow before it revokes as license. Ursack maintained that the conditional approval of the S29 was a license within the meaning of 5 USC Sec. 551(8), and that therefore SIBBG was required to follow the procedures in 5 USC Sec. 558(c) before revoking conditional approval. The USCA concluded that it need not decide whether an APA license exists only where the agency stands as a gatekeeper to a proposed private activity, or whether it also extends to forms of agency approval carrying only financial consequences. This is because even if Ursack had been granted a license, it was not seeking the kind of process available to licensees under Sec. 558(c). Ursack was not asking for a notice and a chance "to demonstrate or achieve compliance with all lawful requirements." Instead, Ursack wanted to argue with SIBBG over its decision to adopt the relevant lawful requirements in the first place. SIBBG decided to revoke constitutional approval on the ground that Ursack failed six times during the 2007 season. Ursack did not dispute that its product was involved in six incidents during the season. But it believed that most of these incidents shouldn't count as failures for various reason, such as that the incident did not involve a bear obtaining food or that a bear obtained food but the failure was caused by user error. However, in granting conditional approval, SIBBG defined "failure" in such a way that made all six incidents failures even under Ursack's view of the physical evidence-i.e., even if no bear obtained food or the failure was caused by user error. Thus, to have convinced SIBBG not to revoke conditional approval, Ursack would have had to have convinced SIBBG to change its licensing criteria. Yet, challenges to licensing criteria are adequately handled through review under the arbitrary and capricious standard. 5 USC Sec. 706. The process afforded by the APA's licensing provisions is limited to providing the licensee with notice and a chance to either demonstrate compliance or cure its transgressions, and Ursack does not claim that it was injured by the Park Service's failure to provide this process. The USCA thus rejected Ursack's argument on the ground that Sec. 558(c) does not entitle Ursack to the relief it requests, even if Ursack had been granted a license. Schroeder and Thomas, Circuit Judges, and Adelman (author), District Judge. T. Cohen of San Francisco, CA, for the plaintiffs-appellants; AAG T. Hansen-Young of Washington, DC, for the defendants-appellees. .(Download the full text of this decision at www.ce9.uscourts.gov/)

5) FAIR & ACCURATE CREDIT TRANSACTIONS ACT / CREDIT CARDS: Simonoff v. Expedia, Inc., 10-35595 (9th Cir. May 24, 2011). In 2003, Congress passed the Fair and Accurate Credit Transactions Act ("FACTA"), an amendment to the Fair Credit Reporting Act, in part to combat identity theft. FACTA provides that "no person that accepts credit cards or debit cards for the transaction of business shall print more than the last 5 digits of the card number or the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction." 15 USC Sec. 1681c(g)(1). This restriction covers only "receipts that are electronically printed, and [does] not apply to transactions in which the sole means of recording a credit card or debit card account number if by handwriting or by an imprint or copy of the card." Id. Sec. 1681c(g)(2). Expedia, Inc. runs a website that allows users to make travel arrangements online. Like other merchants that accept credit cards or debit cards, Expedia must comply with FACTA. Simonoff purchased travel arrangements through Expedia's website. Expedia then emailed him a receipt, which included the expiration date of Simonoff's credit card. He maintained that this email receipt violated FACTA. Two issues were addressed on appeal: the meaning of the words "print" and the meaning of "electronically printed, both in connection with an emailed receipt. "Print" refers to many different technologies, but each involves the making of a tangible impression on paper or other tangible medium. Although computer technology has significantly advanced in recent years, we commonly still speak of printing to paper and not to iPad, iPhone, and Blackberry screens, etc. The USCA thus concluded that under FACTA, a receipt that is transmitted to the consumer via email and then digitally displayed on the consumer's screen is not an "electronically printed" receipt. In reaching this conclusion the USCA joined the Seventh Circuit, as well as the solid majority of district courts that have addressed FACTA's scope, in holding that FACTA does not apply to receipts sent to a customer's email account and then displayed on a screen. Accordingly, the USCA affirmed the district court's dismissal of Simonoff's claims under Rule 12(b)(6). McKeown (author), Fisher, and Gould, Circuit Judges. D. Oppenheim of Seattle, WA, for the plaintiff-appellant; B. Davis of Seattle, WA, for the defendant-appellee..(Download the full text of this decision at www.ce9.uscourts.gov/)

6) ENVIRONMENTAL LAW / ATTORNEYS' FEES: Resurrection Bay Conservation Alliance v. City of Seward, Alaska, 10-35446 (9th Cir. May 19, 2011). The issue presented here was whether the district court abused its discretion in denying an award of attorneys' fees to Resurrection Bay Conservation Alliance, an Alaska nonprofit corporation, and Alaska Community Action on Toxics (collectively "RBCA") pursuant to Sec. 505(d) of the Clean Water Act ("CWA") because RBCA came within the "special circumstances" standard first elaborated in Newman v. Piggie Park Enterprises, Inc., 390 US 400, 402 (1968) (per curiam). The USCA held that the district court abused its discretion in ruling that special circumstances were shown, and remanded with instructions that it award that portion of RBCA's fees and costs reasonably incurred in furtherance of the CWA's purpose. The district court had concluded that an award of attorneys' fees would be unjust. It thus did not consider the reasonableness of the fees requested by RBCA. Although the City had not taken a position on the reasonableness of the amount of fees requested and, instead, took an "all or nothing" approach to a fee award, the USCA concluded that the district court should determine the reasonableness of the fees requested in the first instance. Alarcon (author), Graber, and Bybee, Circuit Judges. V. Clark of Anchorage, AK, for the plaintiffs-appellants; C. Brooking of Anchorage, AK, for the defendant-appellee. .(Download the full text of this decision at www.ce9.uscourts.gov/)

7) ENVIRONMENTAL LAW: Sierra Forest Legacy v. Sherman, 09-17796 (9th Cir. May 26, 2011). At issue on this appeal was whether the process of establishing management guidelines governing 11.5 million acres of federal lands in the Sierra Nevada region complied with both the procedural requirements of the National Environmental Policy Act ("NEPA") and the substantive restrictions of the National Forest Management Act ("NFMA"). Sierra Forest Legacy, the Center for Biological Diversity, the Natural Resources Defense Council, the Sierra Club and the Wilderness Society (collectively "Sierra Forest") appealed a largely unfavorable summary judgment against them and a favorable but limited remedial order in their NEPA and NFMA suit challenging the 2004 Sierra Nevada Forest Plan Amendment ("the 2004 Framework") and the Basin Project, a timber harvesting project approved und the 2004 Framework. The State of California also appealed a summary judgment against it and a limited remedial order in a related NEPA action. The district court found that the U.S. Forest Service and related federal defendants (collectively "the Forest Service") violated NEPA by failing to consider alternative actions using the same modeling techniques and management priorities, but the court rejected several other NEPA and NFMA claims. The district court ordered the Forest Service to prepare a supplemental environmental impact statement ("SEIS") to remedy the NEPA error and denied Sierra Forest and California's requests to enjoin implementation of the 2004 Framework in the interim. Sierra Forest and California maintained that the Forest Service violated NEPA both by failing to consider short-term impacts of the 2004 Framework and by failing to disclose and rebut expert opposition. Sierra Forest separately maintained that the Forest Service violated NEPA when approving the Basin Project by failing to analyze cumulative impacts to sensitive species. Sierra Forest also argued that the 2004 Framework violates NFMA by failing to maintain viable populations of old forest wildlife Sierra Forest further argued that the Basin Project specifically violates NFMA by failing to comply with the 2004 Framework's management indicator species monitoring requirement, despite a 2007 Amendment to the 2004 Framework that purports retroactively to eliminate the monitoring requirements. Both Sierra Forest and California also maintained that the district court abused its discretion when considering the equitable factors governing entry of a permanent injunction. The Forest Service and numerous intervenors contested these assertions and asserted several procedural bars to relief. A majority of the USCA panel affirmed the district court's decision on the merits of Sierra Forest and California's NEPA claim. Specifically, the USCA held that Sierra Forest and California have standing to assert a facial NEPA claim against the 2004 Framework but that the Framework SEIS adequately addressed short-term impacts to old forest wildlife and disclosed and rebutted public opposition. Similarly, the USCA held that the Forest Service did not violate the NEPA when approving the Basin Project because the Forest Service adequately addressed cumulative impacts of the proposed management action. The USCA also held that the Forest Service violated NEPA by failing to update the alternatives from the 2001 Framework SEIS. However, the USCA vacated the district court's orders granting a limited remedy and remanding for reconsideration of the equities of a "substantive" injunction without giving undue deference to government experts. Judge Noonan dissented for the reasons given in his concurrence in Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1024-26 (9th Cir. 2009 (Noonan, J., concurring). The USCA also remanded because it reversed the district court's decision on Sierra Forest's NFMA claim. A majority of the USCA panel agreed to reverse, but for different reasons. Judge Fisher would affirm. Judges Reinhardt and Noonan would reverse. Judge Noonan would reverse for the reasons stated in his concurrence in the Rey decision. However, Judge Reinhardt's hold is narrower and thus controls the disposition of this case. Judge Reinhart held that the Forest Service lacks power retroactively to amend forest plans, so the 2007 Amendment to the 2004 Framework did not change the population monitoring requirements for management indicator species applicable to the Basin Project. The USCA thus remanded for the district court to determine in the first instance whether, when it approved the Project, the Forest Service had complied with the 2004 Framework's population monitoring requirements. The district court should consider the 2004 Framework's requirements as they were at the time the Project was approved, not as the Forest Service represented them to be following the 2007 Amendment. Sierra Forest's challenge to the 2004 Framework itself is not presently ripe for judicial consideration because the district court has yet to consider whether the Basin Project complied with the 2004 Framework as it existed at the time of the Project's approval. Until the district court decides whether the Project complies with the 2004 Framework without the 2007 Amendment, it should not consider Sierra Forest's facial challenge to that Framework. Judge Fisher would affirm the district court on the NFMA claim. He would hold that the Forest Service had power retroactively to amend the 2004 and thus that the species monitoring claim related to the Basin Project is moot. Having concluded that the Basin Project complied with the amended 2004 Framework, Judge Fisher would hold Sierra Forest's NFMA challenge to the 2004 Framework is ripe, as applied to the Basin Project. He would further hold, however, that the adaptive management provisions of the 2004 Framework applied to the Basin Project to not violate NFMA. There were thus four separate opinions in this case. First, a NEPA opinion written by Judge Fisher and joined by Judge Reinhardt appears as Parts I-VI of the decision. Second, a NFMA opinion written by Judge Reinhardt appears as Part VII. Third, a dissent by Judge Fisher on the NFMA issue follows Part VII and, fourth, an opinion by Judge Noonan concurring in the result on the NFMA issue, but dissenting from the NEPA opinion concludes the opinion. Reinhardt. Noonan, and Fisher, Circuit Judges. G. Loarie of Oakland, CA, and P. Gallagher of San Francisco, CA, for the plaintiffs; DAG S. Magnani of Oakland; AAG I. Moreno of Washington, DC, for the defendants; M. Jackson of Quincy, CA, for the defendant-intervenor-appellee. .(Download the full text of this decision at www.ce9.uscourts.gov/)

8) ENVIRONMENTAL LAW: Southeast Alaska Conservation Council v. Federal Highway Administration, 09-35551 (9th Cir. May 4, 2011). The State of Alaska appealed the district court's judgment in favor of Southeast Alaska Conservation Council and five other groups (collectively, "SEACC") in their suit against the Federal Highway Administration ("FHWA"), the Department of Transportation, the Forest Service, the Department of Agriculture, and individual federal officials. Alaska argued that the district court erred in holding that the Environmental Impact Statement ("EIS") issued by FHWA for the Juneau Access Improvement Project violated the National Environmental Policy Act ("NEPA") by failing to consider as a project alternative any plan that would improve existing ferry services in Lynn Canal, Alaska, without the construction of new roads, ferries or terminals. The district court vacated the FHWA's Record of Decision ("ROD"), which approved Alaska's preferred alternative for the project, and enjoined all construction and activities that depended on the issuance of a valid EIS, until one was prepared. At issue on appeal was whether the district court properly ordered Alaska to consider improving existing ferry service between Juneau and the communities of Haines and Skagway before proceeding with expensive construction of a new ferry terminal and highway through a national forest. The USCA affirmed, holding that the district court was correct under settled environmental law. It had properly concluded that it was arbitrary for FHWA to refuse to consider reassigning vessels as a project alternative on the basis that it would increase costs and reduce services elsewhere when the chosen project alternative could have been rejected for the same reason. By failing to examine a viable and reasonable alternative to the proposed project, and by not providing an adequate justification for its omission, FHWA's EIS violated NEPA. Judge O'Scannlain dissented. He thought that the State reasonably concluded that SEACC's proposal to reassign mainline vessels did not require separate analysis. Because the final EIS considers a reasonable range of alternatives, he thought it met the requirements of NEPA. He would reverse the district court's judgment. Schroeder (author), O'Scannlain (dissenting), and Clifton, Circuit Judges. K. Glover of Juneau, AK, for the appellees; S. Lynch of Juneau, AK, for the intervenor..(Download the full text of this decision at www.ce9.uscourts.gov/)

9) ENVIRONMENTAL LAW: Jensen Family Farms, Inc. v. Monterey Bay Unified Air Pollution Control District, 09-16790 (9th Cir. May 27, 2011). In May 2007, the Monterey Bay Unified Air Pollution Control District ("District") adopted Rules 220, 310, and 1010. Rule 220 requires owners or operators of diesel engines to register with the District any diesel engine of 50 horsepower or more that is used for agricultural operations. Rule 310 imposes application fees and annual registration fees on the owners and operators of engines that are subject to Rule 220's registration scheme. Rule 1010 is a "replacement rule" for CARB's ATCM for diesel particulate matter. See Cal. Code Regs. Title 17, Sec. 93115 et seq. Rule 1010 sets emissions standards for stationary diesel. In February 2008, Jensen Family Farms ("Jensen") registered several engines with the District and paid the required fees. In November 2008, Jensen sued the District, alleging that: (1) all of the District's Rules were preempted by the federal Clean Air Act ("CAA"); (2) Rules 220 and 310 violate certain provisions of California law; and (3) the Rules violate Jensen's due process rights. The district court concluded that Rules 220 and 310 were not preempted by the CAA because they were not standards or other requirements relating to the control of emissions. It also rejected Jensen's claim that Rules 220 and 310 violate California law. It further held that because Rule 1010 applies only to stationary sources, it was not preempted by the CAA. Finally, the district court rejected Jensen's due process challenge after concluding that there was a rational basis for the Rules. The USCA affirmed. The principal issue on appeal was whether the Rules were preempted by CAA. The USCA held that the Rules were not preempted, and affirmed the district court's judgment on the pleadings in favor of the defendants. Rules 220 and 310 simply require owners to register and pay fees for certain kinds of diesel engines. Neither Rule contains any references to emissions. The USCA thus could not conclude that they were "standards or other requirements relating to the control of emissions." The USCA was also confident that the registration and fee regime of Rules 220 and 310 was not the type of state action that Congress intended to preempt in CAA Sec. 209(e). However, unlike Rules 220 and 310, Rule 1010 unquestionably sets emissions standards. It is thus preempted by the CAA insofar as it applies to non-road engines. CAA Sec. 209(e). The district court held that Rule 1010 is not preempted because it applies only to stationary engines, which are mutually exclusive from non-road engines. The USCA agreed. Rule 1010 does not apply to any "nonroad engines," as that term is used in the CAA. Paez (author) and Bea, Circuit Judges, and Duffy, District Judge. M. Hale of Newport News, VA, for the plaintiff-appellant; C. McKee of Salinas, CA, for the defendant-appellee. .(Download the full text of this decision at www.ce9.uscourts.gov/)

10) WHISTLEBLOWERS / SECURITIES LAW: Tides v. The Boeing Company, 10-35238 (9th Cir. May 3, 2011). In January 2007, plaintiffs Neumann and Tides began working as auditors in Boeing's IT Sarbanes-Oxley ("SOX") Audit group. Tides worked in St. Louis, and Neumann worked in Seattle. At the time, the IT SOX Audit group was one of two departments housed within Boeing's Corporate Audit organization. It was charged with helping the company comply with SOX's requirement that it annually assess the effectiveness of its internal controls and procedures for financial reporting. Auditors in the IT SOX Audit group performed audits and testing on information technology controls. The group was staffed with about 10 Boeing employees, including Tides and Neumann, and supplemented by some 70 contract auditors from PriceWaterhouseCoopers. Another accounting firm, Deloitte & Touche, served as Boeing's external auditor and was responsible for annually attesting to, and reporting on, the company's assessments of its internal controls, as required by Sox. See 15 USC Sec. 7262(b). Tides and Neumann both claimed that tensions were high in the IT SOX Audit group upon their arrival in January 2007 because management feared that Deloitte & Touiche might declare a "material weakness" in the company's internal controls. They alleged that managers pressured IT SOX auditors to rate Boeing's internal controls as "effective" and fostered a generally hostile work environment. Beginning in February 2007, Tides and Neumann began separately expressing concerns about this perceived pressure and several deficiencies in Boeing's auditing practices that they viewed as potential violations of SOX. Their primary concern related to Boeing's use of PriceWaterhouseCoopers contractors in the internal auditing of the company's IT controls. Tides and Neumann repeatedly complained to management about the practice of giving these contractors managerial authority over Boeing employees, as well as the involvement of these contractors in both the design and audit of Boeing's internal controls. They also expressed concerns about the integrity of data stored in the software system Boeing used to record its IT SOX audit results. Both Tides and Neumann believed that the system permitted unauthorized users to alter the ratings given to the company's internal controls. At some point in April 2007, Andrea James, a reporter with the Seattle Post-Intelligencer, tried to speak with Tides and Neumann about an article she was writing on Boeing's compliance with SOX. Neither Tides nor Neumann responded to her requests, hoping instead to resolve their concerns internally with the help of management and human resources. At the time, both were aware that Boeing had in place a policy that restricted the release of company information to the news media. Boeing's policy required employees to refer inquires of any kind from the news media to the communications department and prohibited the release of company information without prior review by that department. In late May 2007, James contacted Neumann again, this time showing up uninvited at his home with another Post-Intelligencer reporter. Neumann agreed to speak with them about Boeing's compliance with SOX. He described the pressure he felt to render positive audit results and detailed a recent meeting where he and other IT SOX auditors expressed concerns over the role of contractors from PriceWaterhouseCoopers in audits of Boeing's internal controls. James asked Neumann if he knew of any examples of significant deficiencies in Boeing's internal controls going unreported or of any auditors being instructed to change their findings, but he said he didn't know of any specifics. Several days after their meeting, James emailed Neumann parts of a draft of her article Neumann responded that the excerpt looked good and sent James the text of an email that he and other IT SOX auditors recently received from a manager. The manager's email reminded employees that Boeing policy prohibited the release of information to the media without prior approval from the communications department. Tides contacted James in July 2007 after receiving what he viewed as a negative and unsubstantiated performance evaluation for the second quarter of the year. He forwarded her a series of work-related emails from his Boeing computer. Most of the emails documented the concerns he previously raised with management and human resources regarding perceived problems with the IT SOX Audit group's auditing practices. Tides also forwarded James several internal Boeing documents, including copies of the company's policies governing contract labor. On July 17, 2007, the Post-Intelligencer published the article "Computer security faults put Boeing at risk," co-authored by James. The article reported that "for the past three years, the Boeing Co. has failed, in both internal and external audits, to prove it can properly protect its computer systems against manipulation, theft and fraud." It detailed, among other things, a threatening company culture perceived by employees involved in SOX compliance, a record of poor internal audit results indicating that many of the company's computer system controls were failing, and an internal allegation that the audit results were being manipulated. At some point prior to the publication of this article, Boeing caught on that some of its employees were likely releasing company information to the media. It investigated and discovered that Tides and Neumann had been communicating with James. Boeing terminated both. Tides and Neumann then filed SOX whistleblower complaints with the Occupation Safety and Health Administration ("OSHA"). After more than nine months of delay, OSHA issued letters acknowledging that Tides and Neumann had the right to proceed de novo in federal court. Tides and Newman next filed complaints in federal district court, alleging that they were terminated in violation of 18 USC Sec. 1514A(a)(1) for reporting violations of SOX and other securities laws. The cases were consolidated. Boeing moved for summary judgment, and the court granted its motion. On appeal, the USCA held that by its express terms, the whistleblower provision of Sec. 1514A(a)(1) protects from retaliation employees of publicly-traded companies who disclose certain types of information to the three categories of recipients specifically enumerated in the Sarbanes-Oxley Act. However, Sec. 1514A(a)(1) does not protect employees of publically-held companies from retaliation when they disclose information regarding designed types of fraud or securities violations to members of the media. Kleinfeld, Tashima, and Silverman (author), Circuit Judges. J. Tollefsen of Lynnwood, WA, for the plaintiffs-appellants; J. Harmon of Richmond, VA, for the defendant-appellee..(Download the full text of this decision at www.ce9.uscourts.gov/)

11) SECOND AMENDMENT: Nordyke v. King, 07-15763 (9th Cir. May 2, 2011). At issue here was whether the Second Amendment prohibits a local government from banning gun shows on its property. Russell and Sallie Nordyke operate a business that promotes gun shows throughout California. A typical show involves the display and sale of thousands of firearms, generally ranging from pistols to rifles. Since 1991, the Nordykes have promoted numerous shows across the state, including ones at the public fairgrounds in Alameda County. The Alameda gun shows routinely draw about 4,000 people. In the summer of 1999, the county passed an ordinance making it a misdemeanor to bring onto or possess a firearm or ammunition on county property. Alameda Code Sec. 9.12.120(b). The Ordinance does not mention gun shows. The county maintains that it passed the Ordinance in response to a shooting that occurred the previous summer at the annual county fair. The Ordinance's text reflects this, finding that "gunshot fatalities are of epidemic proportions in Alameda County." Id. Sec. 9.12.120(a). However, the Nordykes alleged that the Ordinance's real purpose is to ban gun shows from county fairgrounds. To support this allegation, they note that, shortly before proposing the Ordinance, former county supervisor Mary King sent a memorandum to Richard Winnie, the county counsel, stating that King has "been trying to get rid of gun shows on County property" for "about three years," and asking Winnie to research "the most appropriate way that [King] might proceed." The memorandum stated that, in her efforts to ban gun shows, King had "gotten the run around" from "spineless people hiding behind the Constitution." At a subsequent press conference, the Nordykes asserted that King again had made clear that the purpose of the Ordinance was to outlaw gun shows on county property. At that press conference, King stated that she "finds it ridiculous that the county is participating … in the distribution of guns" by hosting gun shows on the county fairgrounds. She said she found it "strange," that "a facility owned by the residents of this county" is used "to display guns for worship as deities for the collectors who treat them as icons of patriotism." She also spoke of her past efforts to outlaw gun shows on county property, and implied that the Ordinance was the fruit of these efforts. She later referred to gun shows supporters as "gun worshipers." Whatever the intent of the Ordinance, the Nordykes maintained that its effect was to ban gun shows on county property. After the country passed the Ordinance, the manager of the fairgrounds asked to Nordykes to submit a written plan explaining how their next gun show would comply with the Ordinance. Although the Ordinance did not expressly prohibit gun shows or the sale of firearms, the Nordykes insisted then and maintained throughout this action that they could not hold a gun show without guns. Rather than submit a compliance plan, the Nordykes filed this suit. Joined by several would-be exhibitors or patrons at their gun shows (collectively, "the Nordykes"), they first sued Alameda County, its Board of Supervisors, and a number of its employees, including King (collectively, "the County") in 1999. Initially, the Nordykes asserted just two claims: a First Amendment free speech claim, and a claim that the Ordinance was preempted by state law. In due course, they moved for a preliminary injunction forbidding the County from enforcing the Ordinance against their gun show. After the district court denied this motion, the USCA accept the Nordykes' interlocutory appeal. Rather than reaching the First Amendment question, however, the USCA certified the preemption question to the California Supreme Court. Nordyke v. King, 229 F.3d 1266, 1267 (9th Cir. 2000) ("Nordyke I"). The California Supreme Court answered that the Ordinance was not preempted by state law. Nordyke v. King, 44 P.3d 133, 138 (Cal. 2002) ("Nordyke II"). After receiving that response, the USCA turned to the Nordykes' First Amendment claim. Construing their challenge as a facial one, it rejected the argument that the Ordinance burdened the expressive conduct of gun possession. Nordyke v. King, 319 F.3d 1185, 1190 (9th Cir. 2003) ("Nordyke III") The USCA's opinion noted that its rejection of the facial attack did not "foreclose a future as applied challenge to the Ordinance." Id. at 1190 n.3. In Nordyke III, the USCA also responded to developments in the law while the certified question was pending in the California Supreme Court, by granting the Nordykes' motion to file supplemental briefing on a potential Second Amendment claim, and then holding that Ninth Circuit precedent precluded such claims. Id at 1188, 1191-92. On remand, the Nordykes moved for leave to amend the complaint to add claims under the Second Amendment, the Equal Protection Clause, the Due Process clause, and the Ninth Amendment. The district court allowed the addition of all claims except for the Second Amendment claim, which the district court deemed futile because Nordyke III had already held that a Second Amendment claim was precluded by binding circuit precedent. After two motions to dismiss, only the First Amendment and Equal Protection claims survived. The district court then granted summary judgment to the County on those remaining claims. The Nordykes timely appealed. On that appeal, the Nordykes challenged the district court's ruling that adding a Second Amendment claim would be futile, as well as the district court's grant of summary judgment on their First Amendment and Equal Protection claims. Before the USCA ruled on this appeal, however, the Supreme Court decided District of Columbia v. Heller, 554 U.S. 570 (2008), which held that the Second Amendment protects an individual's right to keep and bear arms for self-defense. After further briefing, the USCA affirmed on all three issues. Nordyke v. King, 563 F.3d 439 (9th Cir. 2009) ("Nordyke IV"). On the Second Amendment issue, the USCA held: (1) the individual's right to keep and bear arms recognized in Heller is incorporated against state and local governments through the Due Process Clause of the Fourteenth Amendment; but (2) the Ordinance constituted a permissible regulation of firearms under the Second Amendment. Id. at 446-60. The USCA declined to adopt an explicit standard of review for evaluating gun-control regulations. Nordyke IV was subsequently vacated and reheard en banc. Nordyke v. King, 575 F.3d 890 (9th Cir. 2009). But before the en banc panel issued its decision, the Supreme Court decided McDonald v. Chicago, 130 S.Ct. 3020 (2010), holding, as the USCA did in Nordyke IV, that the Second Amendment right to keep and bear arms is "fundamental to our scheme of ordered liberty" and, thus, incorporated against the state through the Due Process Clause of the Fourteenth Amendment. Id. at 3036. To support this holding, the Court went to lengths to show that the right to keep and bear arms is a "fundamental" right. Id. at 3037, 3041-44. McDonald also specifically rejected the suggestion that the Second Amendment should receive less protection that the rest of the Bill of Rights. Id at 3044. And, like Heller before it, McDonald did not explicitly adopt a standard of review for Second Amendment cases. In response, the en banc panel remanded the case to the three-judge panel for further consideration in light of McDonald. The USCA then ordered supplemental briefing addressing "the impact of McDonald on the disposition of the case, as well as any other issue properly before the court, including the level of scrutiny that should be applied to the Ordinance. Because the Supreme Court has yet to articulate a standard of review in Second Amendment cases, that task falls to the courts of appeals and the district courts. However, the USCA found that the Supreme Court's reasoning in Heller and McDonald suggests that heightened scrutiny does not apply unless a regulation substantially burdens the right to keep and bear arms. The USCA too was satisfied that a substantial burden framework would prove to be far more judicially manageable than an approach that would reflexively apply strict scrutiny to all gun-control laws. The USCA thus held that only regulations which substantially burden the right to keep and to bear arms triggers heightened scrutiny under the Second Amendment. Having determined the standard of review, the question become whether the Nordykes' Proposed Second Amended Complaint sufficiently alleged that the Ordinance substantially burdens their right to keep and bear arms. The Nordykes only challenged the Ordinary as an effective prohibition of gun shows on country fairgrounds. That is, they complained that they cannot display and sell guns on county property; they did not allege that they wished to carry guns on county property; they did not allege that they wished to carry guns on county property for the purpose of defending themselves while on that property. Thus, the proper inquiry was whether a ban on gun shows at the county fairgrounds substantially burdened the right to keep and bear arms; not whether a county can ban all people from carrying firearms on all of its property for any purpose. The Nordykes submitted the Proposed Second Amended Complaint over six years ago. Since then, all of the Supreme Courts modern Second Amendment case law has been created. E.g., Heller and McDonald. Accordingly, there may well be facts which the Nordykes did not consider relevant in 2004, and thus did not allege in the Proposed Second Amended Complaint, but which, if now alleged, might plausibly suggest that the Ordinance substantially burdens the Nordykes' Second Amendment rights. Judge Gould concurred in the majority opinion to the extent that it affirmed the dismissal of Nordykes' complaint and remanded to allow amendment of pleadings, giving the Nordykes an opportunity to seek to assert an actionable claim in light of recent Second Amendment law. However, Judge Gould would use a test to decide Second Amendment claims different from that set out by the majority. He would subject to heightened scrutiny only arms regulations falling within the core purposes of the Second Amendment, that is, regulations aimed at restricting defense of the home, resistance of tyrannous government, and protection of the country. He would subject incidental burdens on the Second Amendment right to reasonableness review. Alarcon, O'Scannlain (author), and Gould (concurring in part), Circuit Judges. D. Kilmer of San Jose, CA, for the plaintiffs-appellants; S. Weaver of Los Angeles, CA, for the defendants-appellees..(Download the full text of this decision at www.ce9.uscourts.gov/)

12) TORTS / HUMAN RIGHTS: Bauman v. Daimler- Chrysler Corporation, 07-15386 (9th Cir. May 18, 2011). The plaintiffs, 22 Argentinian residents, were workers or relatives of workers at the Gonzales-Catan plant of Mercedes-Benz Argentine ("MBA"), a wholly owned-subsidiary of DaimlerChrysler AG's predecessor-in-interest. In an action brought in a U.S. federal district court under the Alien Tort Statute ("ATS), 28 USC Sec. 1350, and the Torture Victims Protection Act of 1991 ("TVPA"), 106 Stat. 73, note following 28 USC Sec. 1350, they alleged that MBA sought to brutally punish plant workers whom it viewed as union agitators, and that it collaborated with the Argentinian military and police forces in doing so. The plaintiffs also allege that MBA had knowledge that the results of this collaboration would be the kidnapping, torture detention and murder of those workers, and that the plan was implemented, in part, in the following manner. First, MBA labeled the appellants as "subversives" and "agitators" and passed on this information to the state security forces. Second, MBA "had members of the military and police forces stationed within" the Gonzales-Catan plant. Third, MBA opened the plant to periodic raids by those forces. Fourth, MBA hired Ruben Lavallen, the police chief who had been behind much of the reign of terror and installed him as Chief of Security, providing legal representation to him when he was "accused of human rights abuses." The plaintiffs further allege that MBA was pleased with the results of the raids and detentions because they helped end a strike and restored maximum production at the plant. In their suit against DaimlerChrysler AG ("DCAG"), they alleged that DCAG's subsidiary, MBA, collaborated with state security forces to kidnap, detain, torture, and kill the plaintiffs and/or their relatives during Argentina's "Dirty War." Some of the plaintiffs are themselves former employees of MBA and the victims of kidnapping, detention, and torture, while others are close relatives of MBA workers who were "disappeared" and are presumed to have been murdered. The only issue on appeal was whether the district court had personal jurisdiction over DCAG. The district court granted DCAG's motion to dismiss the case for lack of jurisdiction. On appeal, the USCA concluded that DCAG was subject to personal jurisdiction in California through the contacts of its subsidiary Mercedes-Benz USA ("MBUSA"). It held that MBUSA was DCAG's agent, at least for personal jurisdictional purposes, and that the exercise of personal jurisdiction was reasonable under the circumstances of this case. It thus reversed and remanded. At the time this suit was filed, MBUSA's business was sufficiently important to DCAG that without MBUSA or another representative, DCAG would have performed those services itself. Moreover, DCAG had the right to control to one extent or another nearly every aspect of MBUSA's business. The USCA thus concluded that at least for the limited purpose of determining general jurisdiction, MBUSA was DCAG's agent. The Supreme Court "long ago rejected the notion that personal jurisdiction might turn on 'mechanical' tests" that fail to take account of reality. Burger King Corp. v. Rudzewicz, 471 US 462, 478-79 (1985) (quoting Int'l Shoe Co. v. Wash., 326 US 310, 319 (1945). The reality is that in an increasingly complex and globalized economy, international corporations such as DCAG reap enormous profits from the sale of their goods in the United States. The sales are achieved through the use of major distributors, frequently in the form of subsidiaries. Many international companies organize their corporate structure and establish subsidiaries for the sole purpose of obtaining the maximum benefit from the American market. The USCA noted that it would seem odd if the manufacturer of Mercedes-Benz vehicles, which are sold in California in vast numbers by its American subsidiary, for use on the state's streets and highways, could not be required to appear in the federal courts of California. Mercedes-Benz cars are ubiquitous in California, and Mercedes-Benz dealerships, required to display the signage mandated by DCAG, have a highly visible presence in the state. At the time this suit was filed, MBUSA's sales in California accounted for 2.4% of DCAG's total worldwide sales. Moreover, when considering burdens on the defendant and the issue of state sovereignty, the USCA said it could not overlook the fact that when this suit was filed, nearly 50% of DCAG's overall revenue came from the U.S., and that in order to make this income, DCAG created MBUSA, a wholly-owned subsidiary, to sell Mercedes-Benz vehicles in the United States. The USCA said its test for personal jurisdiction must take these realities into account in determining whether it is reasonable to subject a parent company to the jurisdiction of the courts of this nation on the basis of the acts of its agent. After applying this test, the USCA said it has no doubt that DCAG is subject to personal jurisdiction in California, and that the exercise of such jurisdiction is not only reasonable, but fair and just. The USCA thus reversed and remanded for further proceedings consistent with its opinion. Schroeder, D.W. Nelson, and Reinhardt (author), Circuit Judges. T. Collingsworth of Washington, DC, for the plaintiffs-appellants; M. Kemner of San Francisco, CA, for the defendants-appellees. .(Download the full text of this decision at www.ce9.uscourts.gov/)

13) IMMIGRATION LAW / MORAL TURPITUDE: Pannu v. Holder, 07-71988 (9th Cir. May 11, 2011). Pannu, a native of India who was admitted to the U.S. in 1990 as a lawful permanent resident ("LPR"), petitioned for review of a decision by the Board of Immigration Appeals ("BIA"), affirming the Immigration Judge's determination that he is removable for having been convicted of two or more crimes involving moral turpitude ("CIMT"), one being his failure to register as a sex offender as required by California law. Because of several significant legal developments since the BIA issued its decision in 2007, the USCA remanded to the BIA to consider their impact on this case in the first instance. In 1994, Pannu was convicted under California Penal Code Sec. 314.1 of misdemeanor indecent exposure. Later that same year, he was convicted a second time for indecent exposure. The second conviction was classified as a felony, requiring Pannu to register as a sex offender. In 2001, he was convicted of misdemeanor theft under California Penal Code Sec. 484(a). In 2002, he was convicted under California Penal Code Sec. 290(g)(1) for the misdemeanor of failing to register as a sex offender. Pannu was issued a Notice to Appear in January 2004, charging him with removability for convictions of two or more crimes involving moral turpitude, and for conviction of an aggravated felony (this basis for removal was later withdrawn). Pannu conceded the fact of his four convictions and conceded that his theft conviction qualified as a CIMT. He denied that the remaining convictions constituted CIMTs, and also sought relief from inadmissibility. In August 2004, an Immigration Judge ("IJ") pretermitted his application for relief and ordered him removed for having been convicted of two or more CIMTs. 8 USC Sec. 1227(a)(2)(A)(ii). Pannu appealed. The BIA held that Pannu's convictions for indecent exposure were categorically CIMTs. Pannu then petitioned the USCA for review. In an earlier appeal, the USCA determined that the indecent exposure convictions were not categorically CIMTs, and remanded for the BIA to either apply the modified categorical analysis or determine whether the failure to register conviction constituted a CIMT. Pannu v. Gonzales, 05-70422, 2006 WL 2233237 (9th Cir. Aug. 4, 2006). On remand, the BIA determined that Pannu's conviction for failing to register constituted a CIMT, and, coupled with the conceded theft, the CIMT rendered him removable. The BIA thus found it unnecessary to conduct a modified categorical analysis regarding Pannu's indecent exposure convictions. Pannu sought review of the BIA's determination. The law impacting this case changed considerably since the BIA's decision. Shortly before the USCA remanded to the BIA in the previous appeal, the BIA issued a precedential decision, In re Tobar-Lobo, 24 I&N Dec. 143 (BIA 2007), which held that a failure to register as a sex offender in violation of California Penal Code Sec. 290(g)(1) categorically constituted a CIMT. Pannu had been convicted of the same California failure to register as Tobar-Lobo. Thus, when the BIA addressed Pannu's case following the USCA remand, it understandably found the intervening Tobar-Lobo decision to be controlling. However, subsequent to the BIA's decision in this case, the USCA considered whether failure to register as a sex offender under a similar Nevada Law, Nev. Rev. Stat. Sec. 179D.550, constituted a CIMT. Plasencia-Ayala v. Mukasey, 516 F.3d 738 (9th Cir. 2008). Reviewing the BIA's decision de novo, the USCA rejected its reasoning, explaining that moral turpitude involves conduct that is "inherently base, vile, or depraved," and that such crimes must be done willfully or with evil intent. Id. at 746. The USCA noted that the Nevada law creates strict liability for failing to register or notify of a change of address, so that a defendant could be convicted for forgetting to register or even for accidentally sending his registration forms to the wrong address. Id. at 747; see also id. at 743 n.2 (noting that although the California statute purportedly requires willfulness, it also extends to forgetfulness). The USCA also rejected the BIA's Reasoning that the failure to register was a breach of a duty owed to society, noting that commission of any crime, by definition, runs contrary to some duty owed to society, but does not necessarily demonstrate moral depravity. Id. at 748. The USCA concluded that "it is the sexual offense that is reprehensible, not the failure to register" and that although the registration laws may serve useful purposes, "the mere failure to register as a sex offender cannot constitute morally turpitudinous behavior." Id. at 748-49. Still later, the USCA, sitting en banc, held that the USCA should show Chevron deference to BIA unpublished determinations of whether a crime constitutes a CIMT, if those decisions rely on prior precedential decisions of the BIA that are dispositive of the interpretive issue in the case. See Chevron USA, Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). Marmolejo-Campos v. Holder, 558 F.3d 903, 911 (9th Cir. 2009) (en banc), held that where the BIA determines that certain conduct is morally turpitudinous in a precedential decision, the USCA applies Chevron deference regardless of whether the order under review is the precedential decision itself or a subsequent unpublished order that relies upon it. In doing so, the en banc court expressly overruled Plasencia-Ayala's analysis of the six offender registration CIMT issue. Id. In addition, subsequent to the BIA's decision below, the Attorney General ("AG") issued an opinion in Matter of Silva-Trevino, 24 I&N Dec. 687 (A.G. 2008), for the purpose of producing a standardized approach to making determinations of CIMTs to replace the "patchwork of conflicting legal and evidentiary standards" existing in the circuit courts. Id. at 688. The AG: (1) opinion that the IJ or BIA must determine whether there is a "realistic probability, not a theoretical possibility" that the underlying criminal statute would be applied to reach conduct that does not involve moral turpitude, id. at 690 (citing Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)); (2) noted that if the categorical analysis does not resolve the inquiry, the agency should proceed to a modified categorical inquiry, first considering the typical record of conviction documents, but permitting an examination of evidence beyond the formal record of convictions, id.; and (3) addressed the proper definition of moral turpitude, explaining that a "finding of moral turpitude under the Act requires that a perpetrator have committed the reprehensible act with some form of scienter," id. at 706. In Marmolejo-Campos, the USCA cited Silva-Trevino for this scienter requirement, noting that the "presence of scienter" is "an essential element of a crime involving moral turpitude." 558 F.3d at 915. The USCA also applied Silva-Trevino in Saavedra-Figueroa v. Holder, 625 F.3d 621 (9th Cir. 2010), concluding that a misdemeanor false imprisonment conviction was not categorically a CIMT, and noting that this result was not inconsistent with Silva-Trevino because the misdemeanor conviction lacked any degree of scienter. Id. at 627. The USCA perceived the Silva-Trevino scienter requirement to be in tension with the BIA's earlier decision in Tobar-Lobo. Even though the California sex offender registration statute facially requires a willful violation, the BIA acknowledged that it had been applied by California courts to include even mere forgetfulness. That California courts have applied the statute in such a manner makes clear that there is a "realistic probability," and not just a "theoretical possibility," of such an application. The result is, in effect, a strict liability crim. In light of these significant intervening developments, the USCA remanded for the BIA to reconsider whether Pannu's crime constitutes a CIMT under the "proper definition of moral turpitude" as outlined in Silva-Trevino, id. at 705-06. Should the BIA determine that Pannu's failure to register conviction does not qualify as a CIMT, it should consider the issue left open in its prior ruling regarding Pannu's indecent exposure conviction. Reinhardt, Hawkins (author), and Gould, Circuit Judges. J. Siguenza of Burlingame, CA, for the petitioner; J. Holt of Washington, DC, for the respondent..(Download the full text of this decision at www.ce9.uscourts.gov/)

14) IMMIGRATION LAW: Paulo v. Holder, 07-71198 (9th Cir. May 4, 2011). Paulo, a native and citizen of the Philippines, was admitted to the U.S. as an immigrant on Aug. 8, 1985. At that time he was 14 years old. He is the son of a lawful permanent resident mother and a U.S. citizen father. He has a U.S. citizen daughter, born on October 28, 1997. On September 5, 1991, he was convicted in California state court of assault with a firearm in violation of California Penal Code Sec. 245(a)(2). He served two years and nine months' imprisonment. For reasons not clear from the record, on October 26, 1994, a California Superior Court vacated this conviction and Paulo pled guilty to assault with a deadly weapon other than a firearm in violation of California Penal Code. Sec. 245(a)(1). The new conviction was entered nunc pro tunc as of the date of the original conviction, and the sentence was unchanged. On March 30, 1998, Paulo pled guilty to receiving known stolen property in violation of California Penal Code Sec. 496(a) and was sentenced to 16 months' imprisonment. On September 28, 1998, he was served with a Notice to Appear based on these criminal convictions. The Notice charged him as removable under both Sec. 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA"), for conviction of an aggravated felony, and INS Sec. 237(a)(2)(A)(ii), for conviction of two crimes involving moral turpitude not arising out of a single scheme. The aggravated felony charge was based on his conviction for assault with a deadly weapon, and the moral turpitude charge was based on both criminal convictions. Paulo conceded removability and sought relief through withholding of removal, asylum and the Convention Against Torture ("CAT"). For reasons not relevant to this appeal, the Immigration Judge ("IJ") concluded that Paulo was not eligible for either asylum or withholding of removal, and rejected Paulo's CAT claim. The IJ then issued an order of removal to the Philippines on October 18, 2000. The BIA affirmed on February 22, 2001. The USCA dismissed the subsequent petition for review for lack of jurisdiction on May 23, 2001. On June 25, 2001, the Supreme Court decided INS v. St. Cyr, 533 U.S. 289 (2001), a challenge to the retroactivity application of the provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") that repealed INA Sec. 212(c), formerly codified at 8 USC Sec. 1182(c). Section 212(c) gave the Attorney General the discretionary power to grant relief from deportation to certain aliens convicted of criminal offenses. St. Cyr held that the repeal of Sec. 212(c) cannot be applied retroactively to aliens who had, before the passage of IIRIRA, reasonably relied on the availability of Sec. 212(c) relief in pleading guilty to offenses making them deportable. St. Cyr, 533 US at 325-26. Under St. Cyr, Paulo was potentially eligible for Sec. 212(c) relief. About one year later, on November 8, 2002, a California Superior Court vacated Paulo's conviction for receiving known stolen property on the ground that his plea had been unconstitutionally obtained. Paulo then pled guilty to "false personation" under California Penal Code Sec. 529(3). False personation is not a crime of moral turpitude. Thus, Paulo was no longer removable under INA Sec. 237(a)(2)(A)(ii). Because the time in which he was entitled to file a motion to reopen with the BIA had expired, see 8 CFR Sec. 3.2(c)(2) (2003), he petitioned for a writ of habeas corpus in the District Court for the Northern District of California on May 23, 2003. The two grounds for his petition were (1) that he was entitled to a new removal hearing because one of the grounds for his removal, his conviction of two crimes of moral turpitude, was no longer valid; and (2) that he was eligible for Sec. 212(c) relief under St. Cyr. The government objected to both grounds: First, it argued that Paulo was still convicted of an aggravated felony-assault with a deadly weapon other than and firearm-and thus his removal order should stand under INS Sec. 237(a)(2)(A)(iii); second, it argued that Paulo was not covered by St. Cyr because at the time he pled guilty to assault with a firearm in 1991, a lawful permanent resident convicted of a firearm offense was not eligible for Sec. 212(c) relief and Paulo could not have relied on the availability of Sec. 212(c) relief when he pled guilty to assault with a firearm. The district court agreed that because the removal order was based on two independent grounds, one of which remained valid, Paulo was not entitle to a new removal hearing. However, it also agreed with Paulo that he was eligible for Sec. 212(c) relief based on St. Cyr. It held that the 1994 plea for assault with a deadly weapon other than a firearm was the relevant plea for purposes of St. Cyr's reliance analysis. The district court thus granted Paulo's habeas petition. In compliance with the district court's order, the BIA remanded the case to the IJ on December 22, 2004 to allow Paulo to apply for Sec. 212(c) relief. The IJ ruled that In re Blake, 23 I&N, Dec. 722 (BIA, 2005), controlled and on Feb. 28, 2006 pretermitted Paulo's Sec. 212(c) application and ordered Paulo removed. The IJ found that under Clifton v. Attorney General of California, 997 F.2d 660, 663 (9th Cir. 1993), res judicata does not apply when there has been an intervening change in the law. He held that Blake represented such a change, and that res judicata did not bar the Department of Homeland Security from challenging Paulo's eligibility for Sec. 212(c) relief. He also held that issue preclusion did not apply because the precise question of whether the lack of a statutory counterpart in the grounds of excludability made Paulo ineligible for Sec. 212(c) relief was not argued before the district court. Because the parties agreed that under Blake the grounds for Paulo's removability had no statutory counterpart in the grounds for excludability, the IJ ordered Paulo removed. The BIA affirmed. The USCA granted Paulo petition and remanded. It held that res judicata bound the BIA to the district court's final decision, which was that Paulo was eligible for discretionary relief under Sec. 212(c) based St. Cyr. Hug, W. Fletcher (author), and M.D. Smith, Circuit Judges. R. Jobe of San Francisco, CA, for the petitioner; D. Goldman of Washington, DC, for the respondent. .(Download the full text of this decision at www.ce9.uscourts.gov/)

15) IMMIGRATION LAW: Go v. Holder, 06-71575 (9th Cir. May 5, 2011). Go, a native and citizen of the Philippines, entered the U.S. in early 2003 pursuant to a non-immigrant visa. Although his visa expired in August 2003, Go neither departed nor obtained authorization to remain in the United States. He was charged with being a removable alien for overstaying the term of his visa. Go contested removability and filed an application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). He alleged that he and his wife would be subject to a sham criminal prosecution in the Philippines should they be removed to that country. According to Go, he and his wife had been falsely charged with kidnapping James King, a member of a prominent family that resides in the Cebu region of the Philippines. Go and his wife assert that they fled to the U.S. to escape prosecution and to avoid retaliation by the King family, which allegedly has significant political influence over the government in Cebu. With respect to CAT, Go averred that he would be subject to torture if he were held in a Philippine detention facility pending his trial for kidnapping. At his August 2004 removal hearing before an Immigration Judge ("IJ"), Go and the government each presented several witnesses, affidavits, and other documentary evidence describing the Philippine Criminal justice system and the kidnapping charges. Go testified that he had become involved in a drug-trafficking organization operated by King in early 2002. Together, Go and King devised a "check kitting" scheme to finance the purchase of illegal narcotics. Some six months after Go joined the scheme, however, he and King had some sort of falling out. The evidence supported two versions of what happened: either Go kidnapped and assaulted King over a financial disagreement, or King fabricated the charges to conceal his role in the illegal scheme. The IJ determined that the evidence weighed against granting Go's claims for relief. Given Go's admission to being involved in an illegal drug-trafficking scheme, the IJ found him statutorily ineligible for asylum and withholding of removal. With respect to Go's claims that his kidnapping charges were pretext for government persecution, the IJ concluded that the charges had been initiated as part of a legitimate criminal prosecution. Then, relying on a government witness, who testified that Go would not be tortured in a Philippine detention facility while awaiting trial, the IJ concluded that Go failed to carry his burden of demonstrating eligibility for relief under CAT. The Board of Immigration Appeals ("BIA") denied Go's appeal in two separate orders. In a May 2005 order, it agreed with the IJ that Go was statutorily ineligible for asylum and withholding of removal. Go's CAT claim, however, was remanded for further proceedings. According to the BIA, the IJ may not have considered various country reports suggesting a relatively high frequency of abuse and mistreatment in Philippine detention facilities. The BIA also expressed concern that the IJ had improperly excluded testimony from a Philippine defense attorney, who was familiar with the kidnapping charges. Go petitioned for review of the BIA's May 2005 order denying his claims for asylum and withholding of removal and its March 2006 order denying his claims for protection. The USCA denied Go's petition. First, it agreed with the BIA's ruling that Go's drug-trafficking activities prior to entering the U.S. bar him from obtaining asylum and withholding relief. It also agreed with the BIA's determination that there are serious reasons for believing that Go actually committed this offense. During his removal hearing, Go explicitly admitted under oath to being involved in a scheme to finance "drug transactions." While living in the Philippines. He then stated that he knowingly drove an accomplice to "drug deals" for a period of six months. These admissions were sufficient to establish probable cause for believing that Go engaged in a drug-trafficking scheme before entering the United States. As for Go's CAT claim, the USCA concluded that, although some instances of abuse and mistreatment have been reported in Philippine detention facilities, the BIA reasonably concluded that it was unlikely that Go would be tortured in the Philippines. He was not the only person charged with kidnapping King. Yet one of his alleged accomplices has been detained for some time without harm or incident. Similarly, while several of Go's family members were charged with participating in Go's alleged crimes, none has been taken into government custody, placed in a detention center, or tortured. Finally, the USCA rejected Go's contention that he was deprived of his right to due process. The Fifth Amendment guarantees due process in immigration proceedings. Go maintained that the BIA and IJ violated his due process rights by crediting and relying on testimony from a person named "Tajanlangit," which Go describes as "questionable" and "inconsistent with reality." However, the USCA found that the Tajanlangit testimony was clearly relevant and based on personal knowledge. It did not deprive Go of a fundamentally fair proceedings. Go had the opportunity to cross-examine Tajanlangit, to present contrary evidence, and to impeach his testimony. There was nothing in the record to compel the conclusion that Tajanlangit's testimony somehow precluded Go from presenting his claims for relief. Wallace (author) and Graber, Circuit Judges, and Mills, District Judge. P.J. Sandoval of Los Angeles, CA, for the petitioner; C. Erb of Washington, DC, for the respondent. .(Download the full text of this decision at www.ce9.uscourts.gov/)

16) IMMIGRATION LAW: Ayala v. Holder, 08-71868 (9th Cir. May 19, 2011). Ayala, a native and citizen of El Salvador, petitioned for review of a decision of the Board of Immigration Appeals ("BIA") affirming an Immigration Judge's denial of his application for asylum, withholding of removal and protection under the Convention Against Torture ("CAT"). He alleged that during his past service as a military officer, he investigated drug crimes, and that after he was discharged he was attacked and threatened by drug dealers he had personally arrested. The USCA denied the petition for review. It noted that it reviews de novo questions of law, including whether a group constitutes a "particular social group" under the Immigration and Nationality Act ("INA"). It examines the BIA's factual findings, including whether a petitioner was persecuted on account of his membership in a "particular social group," under the substantial evidence standard. To establish eligibility for asylum, an applicant must demonstrate that "race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant." 8 USC Sec. 1158(b)(1)(B)(i). In this case, Ayala claims past persecution and fear of future persecution on account of his membership in a particular social group of former military officers who suffer reprisals based on their prior prosecution of wrongdoers. Because Ayala was a former officer when the relevant incidents took place, he was not precluded from establishing a cognizable social group under the INA. Although Arriaga-Barrientos v. INS, 937 F.2d 411, 414 (9th Cir. 1991), held "that the military is not a social group qualifying its servicemen or former servicemen for asylum eligibility," the Ninth Circuit later recognized that former officers may be members of a cognizable social group. See Cruz-Navarro v. INS, 232 F.3d 1024, 1029 (9th Cir. 2000). In addition, the BIA held in Matter of C-A-, 23 I&N Dec. 951 (BIA 2006), that a particular social group of former officers is conceivable. According to C-A-, "were a situation to develop in which former police officers were targeted for persecution because of the fact of having served a police officers, a former police officer could conceivably demonstrate persecution based on membership in a particular social group of former police officers." Id. at 958-59. The USCA deferred to the BIA's interpretation of "particular social group" and adopted the C-A- analysis. Nevertheless, although Ayala is not precluded from demonstrating membership in a particular social group, he is still not entitled to relief. Even assuming that Ayala's proposed social group is both "socially visible" and "particular," Ayala must establish that any persecution was or will be on account of his membership in such group. Substantial evidence supported the BIA's determination that Ayala failed to make this showing. Rather than demonstrating that Ayala was persecuted on account of his membership in a particular social group, the evidence demonstrates that he was only shot at and threatened because, while an office, he had arrested a particular drug dealer. Although disturbing, this type of persecution is not cognizable under the INA. Because Ayala failed to establish eligibility for asylum, he necessarily failed to establish eligibility for withholding of removal. Finally, because there was no indication that Ayala would be tortured upon return to El Salvador, or that any mistreatment he might suffer upon return will be inflicted with the consent or acquiescence of Salvadoran public officials, he is not entitled to protection under CAT. Fisher and Tallman, Circuit Judges, and Tarnow, District Judge. Per Curiam. F. Sprouls of San Francisco, CA, for the petitioner; AAG G. Katsas of Washington, DC, for the respondent. .(Download the full text of this decision at www.ce9.uscourts.gov/)

17) IMMIGRATION LAW: Irigoyen-Briones v. Holder, 07-71806 (9th Cir. May 31, 2011). At issue on this appeal was whether the 30-day deadline for filing a notice of appeal with the Board of Immigration Appeals ("BIA") is jurisdictional. The petitioner, a native and citizen of Mexico, entered the U.S. illegally in 1991. In 2003, removal proceedings were commenced against him. He appeared pro se at a hearing before an Immigration Judge ("IJ") on December 18, 2006, and conceded removability, but he sought cancellation of removal or voluntary departure. The IJ decided against him on both issue. He had 30 days to appeal. The petitioner saw a lawyer on January 4, 2007, but that lawyer could not do nothing without first listening to the Immigration Court's tapes (not yet transcribed), and needed a retainer before she invested the time it would take. The petitioner needed a few days to raise the money, and came in with enough to retain her on January 8, 2007. His lawyer then promptly made an appointment with the Immigration Court so that she could listen to the tapes on January 11, 2007. That morning she drove the 45 miles to the Immigration Court and listened to what she could (the appointment did not allow her enough time to listen to the tapes in their entirety). She then performed the necessary legal research on January 11 and 12, and prepared the notice of appeal. Monday, January 15 was Martin Luther King Jr. day, so the post office was closed. Counsel drove to the post office herself on January 16, and sent the papers express mail for guaranteed delivery the day that they were due, Wednesday, January 17. But, the post office let her down. The papers arrived at the BIA's Falls Church, Virginia office (the only place where they could be filed) a day later. The post office sent her a form so that she could get back the money she had paid for guaranteed next-day delivery, but that was no remedy for her client getting deported. A clerk told her that some sort of error appeared to have been made by the post office at the airport in Virginia. The post office "guarantee" of next day delivery assures no more than a refund of the extra fee the post office charges if they break their promise. The BIA dismissed the appeal as untimely because the papers were filed a day late. The petitioner's lawyer filed a motion for reconsideration or, in the alternative, for the BIA to certify the appeal to itself. She argued that the BIA had jurisdiction over his untimely appeal in light of the "rare circumstances" exception explained in Oh v. Gonzales, 406 F.3d 611, 613 (9th Cir. 2005), and Zhong Guang Sun v. U.S. Department of Justice, 421 F.3d 105, 111 (2nd Cir. 2005). The BIA denied the motion. It held that the 30-day deadline was jurisdictional, so "the Board does not have the authority to extend the time in which to file a notice of appeal" under 8 CFR Sec. 1003.38(b), following its own 2006 decision in Matter of Liadov, 23 I&N Dec. 990 (BIA 2006). The petitioner appealed, arguing that the BIA's determination that it does not have jurisdiction to accept an appeal filed one day late was incorrect. The USCA agreed, granted the petition, vacated the BIA's decision, and remanded. With respect to the petition, the USCA noted that its power is limited to correcting the BIA's "misconstruction of the jurisdictional nature of its own filing deadline." Since the agency erred as a matter of law in concluding that it lacked jurisdiction, under INS v. Ventura, 537 US 12, 14 (2002), the USCA had to remand to the agency to permit it fully to reconsider whether, under the circumstances presented, it would hear the appeal from the IJ's decision. The USCA added that it is sympathetic to the agency's need to assure timely filing by litigants by strict enforcement of deadlines. Still, "strict" does not include "unreasonable." Any overloaded adjudicative entity may be tempted to avoid exercising judgment, seeking refuge from its caseload by arbitrarily enforcing claim-processing rules. There would be nothing wrong with a rigid filing deadline if it could be complied with from anywhere in the country with certainty, but rigidity is fundamentally unfair if people cannot assure their own compliance. To protect is important interest in proceeding expeditiously in these cases, yet avoid subjecting aliens to the risk of losing their appeals due to bad weather or delivery service error, all the BIA need do is what courts and private companies routinely do: allow people to send their notices of appeal over the internet. It is a cruel irony, the USCA added, that the BIA distributes via the internet the manual lawyers are to use as guidance, yet pretends the internet does not exist when it comes to receiving papers. The BIA's claim that it lacked jurisdiction to consider the petitioner's appeal was an invalid excuse. Siler, Kleinfeld (author), and M.D. Smith, Circuit Judges. C. Nichol of San Francisco, CA, for the petitioner; C. Canter of Washington, DC, for the respondent..(Download the full text of this decision at www.ce9.uscourts.gov/)

18) IMMIGRATION LAW: Zheng v. Holder, 06-75258 (9th Cir. May 6, 2011). Petitioner Zheng, a native and citizen of China, sought review of two final orders of the Board of Immigration Appeals ("BIA"). In the first, the BIA denied Zheng relief under former Sec. 212(c) of the Immigration and Nationality Act, 8 USC Sec. 1182(c), and denied him protection under the Convention Against Torture ("CAT"). In the second, the BIA denied his motion to reopen his CAT claim based on alleged changed country conditions, and refused to sua sponte reopen his application for Sec. 212(c) relief to consider his newly acquired equities. The USCA granted the petition for review with respect to the denial of Sec. 212(c) relief and thus did not reach the BIA's denial of a sua sponte reopening of the petitioner's Sec. 212(c) proceedings. It also denied relief on the petitioner's CAT claims. The petitioner had been convicted at the age of 16 for very serious crimes involving kidnaping, robbery and firearms. He was sentenced as an adult and incarcerated for 19 years followed by immigration detention. While incarcerated, among many other positive activities, he learned English, obtained his GED, earned an Associate of Arts Degree in Liberal Arts, co-facilitated a course entitled "Alternatives to Violence," developed a curriculum targeting at-risk immigrant teenagers, currently being used by community service providers in Northern California, and developed a business plan for a non-profit agency. He thus demonstrated, beyond his own rehabilitation, a genuine desire and commitment to prevent youth from following in his criminal footsteps. He performed substantial service to the community, through his youth work, leading to a grant of parole by the California Board of Prison Terms, and he continued such work while in immigration proceedings. The dispositive issue in this case was whether the BIA should have considered the petitioner's value and service to the community in assessing all of the relevant concerns bearing on his eligibility for Sec. 212. The Ninth Circuit has consistently emphasized that in considering eligibility for Sec. 212(c) relief, the BIA must consider all relevant circumstances, and the BIA itself has recognized that such circumstances include value and service to the community. Because the BIA in this case did not indicate that it had considered the petitioner's value and service to the community, the USCA granted the petition for review with respect to the petitioner's application for Sec. 212(c) relief and remanded for consideration of all relevant factors. Schroeder (author), Thomas, and Gould, Circuit Judges. Z. Nightingale of San Francisco, CA, for the petitioner; S. Maloney of Washington, DC, for the respondent..(Download the full text of this decision at www.ce9.uscourts.gov/)

19) MURDER: Doody v. Ryan, 06-17161 (9th Cir. May 4, 2011). This case arose from a horrendous crime-the murder of nine people, including six monks, inside a Buddhist temple. The ensuing investigation ensnared petitioner Doody, at the time a 17 year old high school student. Although Doody confessed to participating in the nine murders, he challenged his confession, asserting that the Miranda advisements he was given were inadequate and that his confession was involuntary. In its opinion reported at 596 F.3d 620 (9th Cir. 2010 (en banc), the USCA concluded that the advisement provided to Doody, which consumed 12 pages of transcript and completely obfuscated the core precepts of Miranda, was inadequate. The USCA also held that nearly 13 hours of relentless overnight questioning of a sleep-deprived teenager by a tag team of officers overbore the will of that teen, rendered his confession involuntary. Id. at 622-23. The USCA concluded that the state court rulings to the contrary were an unreasonable determination of the facts and an unreasonable application of governing Supreme Court precedent. Id. at 636, 653. The Supreme Court granted certiorari, vacated the USCA judgment and remanded the case to the USCA for further consideration in light of Florida v. Powell, 130 S.Ct. 1195 (2010). Having reviewed the facts and circumstances of this case in light of Powell, the USCA now reaffirmed its prior rulings. It held that the Arizona Court of Appeals' decision constituted an unreasonable determination of the facts and an unreasonable application of the governing law to the particular facts of this case. The Arizona Court of Appeals unreasonably concluded that the Miranda warnings were clear and understandable, despite the detective's erroneous warnings regarding Doody's right to counsel and the use of qualifying language to downplay the warnings' significance. The USCA thus held that under the standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Doody was entitled to a writ of habeas corpus on the ground that the Mariana warnings the police gave him were inadequate and his confession was thus inadmissible. In addition, the Arizona Court of Appeals' ruling that Doody's confession was voluntary was an unreasonable determination of the facts in light of the audiotapes that reflect the relentless, nearly 13-hour interrogation of a sleepy juvenile by a tag team of detectives. The Arizona Court of Appeals also unreasonably applied clearly established federal law when it failed to consider the totality of the circumstances to determine if Doody's will had been overborne by the interrogation. The USCA thus held that under the standard of review set forth in the AEDPA, Doody was entitled to a writ of habeas corpus on the ground that his confession of his involvement in the temple murders was involuntary and thus inadmissible. Accordingly, the USCA reversed and remanded this case to the district court to grant Doody's habeas petition unless the State of Arizona elects to retry Doody within a reasonable time.

Judge Kozinski concurred in the result. He noted that the state court may well have been wrong to find Doody's confession voluntary. But that is not the only way to read the record. Judge Kozinski noted that Doody was nearly 18, maintained good grades and "participated in his high school honor guard." The officers employed a "courteous, almost pleading style of questioning" and "testified at the suppression hearing that Doody remained alert and responsive throughout the interrogation. Id. at 446. The officers also "offered Doody food and drinks and accommodated his requests to use the restroom." Id. During his long period of silence, Doody may have been thinking up a story that would fit the evidence against him but also keep him out of trouble. Indeed, when Doody confessed, he gave a relatively exculpatory account in which he was outside the temple at the time of the killing. He started crying, he said, because the police "came out and ma[d]e it sound like [they] didn't believe" that version of events. That's the statement of a person who had staked his future on a half-truth, Judge Kozinski thought, as opposed to someone whose will was overborne. He doubted that anyone but Doody will ever know with certainty whether his confession was voluntary, and perhaps not even Doody himself. Judge Kozinski would thus let stand the state court's finding that the confession was voluntary. Nevertheless, Judge Kozinski found it was clear that Doody had not been properly read his rights and the thought the USCA should grant Doody's petition on that ground alone. Upholding the warning give here would contravene the very core of the rule established by Miranda.

Judge Tallman, joined by Judges Rymer and Kleinfeld, dissented. He noted that, while the Supreme Court has repeatedly instructed the Ninth Circuit to adhere to the highly deferential standard of review of state court judgments that the AEDPA requires in federal habeas cases, his colleagues here treated this case as if it were on direct appeal to be reviewed de novo. In particular, he thought the majority had "refused to yield to the shot across its bow fired by the Supreme Court" when it granted Arizona's petition for certiorari and vacated and remanded the USCA's original en banc decision for reconsideration in light of Florida-a case that reaffirmed the Court's precedent under which the Arizona Court of Appeals' decision upholding Doody's confession reasonably fits. Subsequently, in Judge Tallman words, "the Court fired a torpedo amidships in Harrington v. Richter, 131 S.Ct. 770 (2011). But the majority "steams defiantly ahead, far from the rest of the fleet." Judge Tallman thus dissented. He noted that his colleagues in the majority had virtually ignored the fact that Arizona had conducted a ten-day evidentiary hearing and a thirty-four day trial. Four judges and twelve jurors thoroughly reviewed all of the circumstances surrounding Doody's interrogation. All concluded that his confession was voluntary. The AEDPA obligates the USCA to affirm that conclusion unless it can be found objectively unreasonable. 28 USC Sec. 2254(d). Judge Tallman thought that the majority had nevertheless parsed the record and re-weighed the evidence to reach what was effectively a de novo determination-and then strike down the Arizona court's decision when it arrived at a different result. Kozinski (concurring), Schroeder, B. Fletcher, Pregerson, Reinhardt, Rymer, Kleinfeld, Thomas, Wardlaw, Tallman (dissenting), and Rawlinson (author), Circuit Judges. V. Eiger of New York, NY, for the petitioner; T. Goddard of Phoenix, AZ, for the respondents. .(Download the full text of this decision at www.ce9.uscourts.gov/)

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