U.S. Ninth Circuit: June 2009 News
U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

9th Circuit June 2009 News

Chapman v. Pier One Imports (U.S.) Inc., No. 07-16326

In an Americans with Disabilities Act action alleging failure to provide restroom accommodations in Defendant's store, summary judgment for Defendant is affirmed where Plaintiff did not have standing to challenge barriers he did not personally encounter.

Read Chapman v. Pier One Imports (U.S.) Inc., No. 07-16326

Appellate Information

Argued February 11, 2009

Filed June 29, 2009

Judges

Opinion by Judge Smith

Counsel

For Appellant:

Lynn Hubbard III, Law Offices of Lynn Hubbard, Chico, CA

Scottlynn J. Hubbard IV, Law Offices of Lynn Hubbard, Chico, CA

For Appellee:

Laura M. Franze, Akin Gump Strauss Hauer & Feld, LLP, Dallas, TX

Richard Cortez, Jr., Akin Gump Strauss Hauer & Feld, LLP, Dallas, TX

Soriano v. Holder, No. 05-72116

Petitioner's petition for review of the BIA's denial of his asylum application is denied, where government informants do not constitute a "particular social group" for purposes of analyzing their eligibility for asylum, and thus Petitioner did not meet the requirements of 8 U.S.C. section 1101(a)(42)(A).

Read Soriano v. Holder, No. 05-72116

Appellate Information

Submitted June 2, 2009

Filed June 26, 2009

Judges

Opinion by Judge Graber

Counsel

Tasha Lani Huber, Korenberg & Abramowitz, Sherman Oaks, CA

Robert G. Stapleton, Criminal Division, U.S. Department of Justice, Washington, DC

Lonberg v. Riverside, No. 06-55781

In an Americans with Disabilities Act (ADA) action against a city for failure to accommodate Plaintiff's disability, an injunction in favor of Plaintiff is vacated where 28 C.F.R. section 35.150(d) is not enforceable through a private right of action.

Read Lonberg v. Riverside, No. 06-55781

Appellate Information

Argued and Submitted February 2, 2009

Filed June 26, 2009

Judges

Opinion by Judge Callahan

Dissent by Judge Silverman

Counsel

For Appellant:

Gregory F. Hurley, Greenberg Traurig LLP, Costa Mesa, CA 

Stacey L. Herter, Greenberg Traurig LLP, Costa Mesa, CA 

For Appellee:

Terry J. Kilpatrick, San Luis Obispo, CA

Page Wellcome, Cardiff-by-the-Sea, CA

US v. Cruz-Gramajo, No. 07-50381

Defendants' sentences for illegal reentry into the U.S. are affirmed, where the District Court in each Defendant's case properly included Defendants' intervening state law crimes, before they were discovered by immigration authorities, in their criminal history calculation.

Read US v. Cruz-Gramajo, No. 07-50381

Appellate Information

Argued and Submitted October 24, 2008

Filed June 26, 2009

Judges

Opinion by Judge Hall

Partial Concurrence and Partial Dissent by Judge Pregerson

Counsel

For Appellants:

Phillip I. Bronson, Sherman Oaks, California

Davina T. Chen, Deputy Federal Public Defender, Los Angeles, CA

Michael Tanaka, Deputy Federal Public Defender, Los Angeles, CA

Gia Kim, Deputy Federal Public Defender, Los Angeles, CA

For Appellees:

Jeff P. Mitchell, Assistant United States Attorney, Domestic Security and Immigration Crimes Section, Los Angeles, CA

Erik M. Silber, Assistant United States Attorney, Criminal Appeals Section, Los Angeles, CA

US v. Showalter, No. 08-50109

In a wire fraud matter, the denial of Defendant's motion to withdraw his guilty plea is affirmed, where "newly available evidence" does not constitute "newly discovered evidence" justifying withdrawal of a guilty plea. Sentence is vacated, where there was insufficient evidence to support the number of victims enhancement imposed by the District Court.

Read US v. Showalter, No. 08-50109

Appellate Information

Argued and Submitted April 8, 2009

Filed June 26, 2009

Judges

Opinion by Judge Thompson

Counsel

For Appellant:

Ezekiel E. Cortez, San Diego, CA

For Appellee:

Mieke Biesheuvel, Santa Ana, CA

Cadkin v. Loose, No. 08-55311

In an appeal from an order granting attorney's fees to Defendant following Plaintiffs' voluntary dismissal of their copyright lawsuit, the order is reversed where, because Plaintiffs remained free to refile their copyright claims, they were not "prevailing parties" and thus were not entitled to attorney's fees.

Read Cadkin v. Loose, No. 08-55311

Appellate Information

Argued and Submitted May 8, 2009

Filed June 26, 2009

Judges

Opinion by Judge Fisher.

Counsel

For Appellants:

Marty O'Toole, Law Offices of Marty O'Toole, Los Angeles, CA

For Appellees:

Sandra Levin, Colantuono & Levin, P.C., Los Angeles, CA

Michael A. Morguess, Colantuono & Levin, P.C., Los Angeles, CA

Cunning v. Rucker, No. 08-55652

In an appeal from the Bankruptcy Court's order denying an exemption for Debtor's assets in pension and 401(k) plans, the order is affirmed, where the retirement plans were not designed and used primarily for retirement purposes.

Read Cunning v. Rucker, No. 08-55652

Appellate Information

Argued and Submitted May 8, 2009

Filed June 26, 2009

Judges

Opinion by Judge Gould

Counsel

For Appellants:

Kyra E. Andrassy, Weiland, Golden, Smiley, Wang Ekvall & Strok, LLP, Costa Mesa, CA

For Appellees:

Mark Bradshaw, Shulman Hodges & Bastian LLP, Foothill Ranch, CA

Evan D. Smiley, Shulman Hodges & Bastian LLP, Foothill Ranch, CA

NLRB v. C&C Roofing Supply, Inc., No. 08-70335

The NLRB's petition to enforce a consent judgment providing that Respondent would reinstate unlawfully terminated employees is granted, where the burden was on Respondent to provide proper proof, satisfactory to the NLRB, of the unauthorized status of those individuals it claims were unauthorized aliens it was not permitted to rehire.

Read NLRB v. C&C Roofing Supply, Inc., No. 08-70335

Appellate Information

Argued and Submitted June 10, 2009

Filed June 25, 2009

Judges

Opinion by Judge B. Fletcher

Counsel

Robert Englehart, Assistant General Counsel, National Labor Relations Board, Washington, DC

Michael E. Avakian, Smetana & Avakian, Springfield, VA

US v. Garcia-Hernandez, No. 08-50190

Defendant's conviction and sentence for illegal reentry into the U.S. are affirmed where: 1) the indictment was legally sufficient to support Defendant's enhanced sentence; and 2) the District Court properly denied Defendant's motion to suppress his post-arrest confession of alienage.

Read US v. Garcia-Hernandez, No. 08-50190

Appellate Information

Submitted February 10, 2009

Decided June 25, 2009

Judges

Opinion by Judge Ikuta

Counsel

For Appellant:

Devin J. Burstein, San Diego, CA

For Appellee:

Aaron B. Clark, San Diego, CA

Zango, Inc. v. Kaspersky Lab, Inc., No. 07-35800

In an action claiming that Defendant's anti-virus software interfered with the use of downloadable programs by customers of Plaintiff online media company, summary judgment for Defendant is affirmed, where a distributor of Internet security software is entitled to immunity under the safe harbor provision of the Communications Decency Act.

Read Zango, Inc. v. Kaspersky Lab, Inc., No. 07-35800

Appellate Information

Argued February 2, 2009

Filed June 25, 2009

Judges

Opinion by Judge Rymer

Concurrence by Judge Fisher

Counsel

Michael Rosenberger, Gordon Tilden Thomas & Cordell LLP, Seattle, WA

Erik Paul Belt, Bromberg & Sunstein LLP, Boston, MA

Batlan v. Bledsoe, No. 07-35567

In a bankruptcy trustee's motion to avoid a transfer made pursuant to a state court judgment dissolving the Debtor's marriage, the order denying the trustee's motion is affirmed where, under Oregon law, a party who challenges a dissolution judgment must allege and prove "extrinsic fraud," and the trustee failed to do so.

Read Batlan v. Bledsoe, No. 07-35567

Appellate Information

Argued December 9, 2008

Decided June 25, 2009

Judges

Opinion by Judge Graber

Partial Concurrence and Partial Dissent by Judge O'Scannlain

Counsel

For Appellant:

Peter C. McKittrick, Farleigh Witt, Portland, OR

Christopher L. Parnell, Farleigh Witt, Portland, OR

For Appellee:

David B. Mills, Hammons & Mills, Eugene, OR

Phelps v. Alameda, No. 07-15167

In a murder prosecution, the dismissal of Petitioner's habeas petition is reversed, where 1) Fed. R. Crim. P. 60(b)(6) motions may be predicated on intervening changes in the law; and 2) under Rule 24 of the California Rules of Court, a denial of a habeas petition is not final for 30 days after filing.

Read Phelps v. Alameda, No. 07-15167

Appellate Information

Argued and Submitted January 13, 2009

Filed June 25, 2009

Judges

Opinion by Judge Reinhardt

Counsel

For Petitioner:

Albert Joel Kutchins, Berkeley, CA

For Respondent:

Juliet B. Haley, Deputy Attorney General, San Francisco, CA

Mission Bay Jet Sports, LLC v. Colombo, No. 08-56142

In an action for negligent operation of a boat, the dismissal of the action for lack of admiralty jurisdiction is reversed, where the location of the accident and its connection to traditional maritime activity sustained admiralty jurisdiction.

Read Mission Bay Jet Sports, LLC v. Colombo, No. 08-56142

Appellate Information

Argued and Submitted June 3, 2009

Filed June 24, 2009

Judges

Opinion by Judge Rymer

Counsel

For Appellants:

Sterling J. Stires, Law Offices of Charles S. LiMandri, Rancho Santa Fe, CA

For Appellees:

Thomas L. Tosdal, Tosdal, Smith, Steiner & Wax, San Diego, CA

Ann M. Smith, Tosdal, Smith, Steiner & Wax, San Diego, CA

US v. Paulk, No. 08-50229

Defendant's drug possession sentence is affirmed, where Defendant was sentenced pursuant to a statutory mandatory minimum, and thus could not be entitled to a reduction of sentence under 18 U.S.C. section 3582(c)(2).

Read US v. Paulk, No. 08-50229

Appellate Information

Submitted February 2, 2009

Filed June 24, 2009

Judges

Per Curiam

Counsel

For Appellant:

Carlton F. Gunn, Deputy Federal Public Defender, Los Angeles, CA

For Appellee:

Daniel B. Levin, Assistant United States Attorney, Los Angeles, CA

US v. Espinosa, No. 08-50092

Defendant's sentence for illegally reentering the U.S. is vacated where the district court erred in assessing a criminal history point based on Defendant's 2004 state loitering conviction, because Section 4A1.2(c)(2) of the Sentencing Guidelines provides that loitering is not a basis for enhancement.

Read US v. Espinosa, No. 08-50092

Appellate Information

Submitted December 12, 2008

Filed June 24, 2009

Judges

Opinion by Judge Pregerson

Counsel

For Appellant:

Jonathan D. Libby, Deputy Federal Public Defender, Los Angeles, CA

For Appellee:

Brock H. Lunsford, Special Assistant United States Attorney, Domestic Security and Immigration Crimes Section, Los Angeles, CA

US v. Tran, No. 07-30270

Defendant's drug possession conviction is reversed where there was insufficient evidence to support the conviction, because the government failed to prove that Defendant participated in the conspiracy to possess marijuana for distribution.

Read US v. Tran, No. 07-30270

Appellate Information

Argued and Submitted August 6, 2008

Filed June 24, 2009

Judges

Opinion by Judge Pregerson

Dissent by Judge Noonan

Counsel

For Appellant:

Allen M. Ressler, Browne & Ressler, Seattle, WA

John C. Dorgan, Browne & Ressler, Seattle, WA

For Appellee:

Catherine L. Chrisham, Assistant United States Attorney, Seattle, WA

Susan M. Roe, Assistant United States Attorney, Seattle, WA

Warfield v. Bestgen, No. 07-15586

In an action by the receiver of a foundation found to have engaged in fraudulent investment sales to recover commissions paid to the foundation's salespersons, judgment for Plaintiff is affirmed, where the charitable gift annuities sold by Defendants were investment contracts under federal securities law.

Read Warfield v. Bestgen, No. 07-15586

Appellate Information

Argued October 23, 2008

Filed June 24, 2009

Judges

Opinion by Judge Thomas

Counsel

For Appellants:

Burton M. Bentley, The Bentley Law Firm, P.C., Phoenix, AZ

For Appellee:

Alisan M.B. Patten, Guttilla Murphy Anderson, P.C., Phoenix, AZ

Ahmed v. Holder, 06-71631

In a petition for review of the Board of Immigrant Appeals order denying Petitioner a continuance of removal proceedings pending his appeal to the Administrative Appeals Office of the denial of his I-140 visa application, the petition is granted, where the BIA abused its discretion by denying the continuance.

Read Ahmed v. Holder, 06-71631

Appellate Information

Argued April 8, 2009

Filed June 24, 2009

Judges

Opinion by Judge Thompson

Counsel

For Petitioner:

Jesse A. Cripps, Jr., Los Angeles, CA

Matthew D. Taggart, Los Angeles, CA

For Respondent:

Nairi M. Simonian, Department of Justice, Washington, DC

Berger v. Seattle, No. 05-35752

In a challenge to Defendant-City's rules governing street performers in a public park, summary judgment for Plaintiff is affirmed where the rules governed a public forum, had an impermissibly broad scope, and did not meaningfully promote the city's asserted interests.

Read Berger v. Seattle, No. 05-35752

Appellate Information

Argued and Submitted September 23, 2008

Filed June 24, 2009

Judges

Opinion by Judge Berzon

Dissent by Chief Judge Kozinski

Dissent by Judge Gould

Partial Concurrence and Partial Dissent by
Judge N.R. Smith

Counsel

For Appellee:

Elena Luisa Garella, Law Office of Elena Luisa Garella, Seattle, WA

Robert Corn-Revere, Davis Wright Tremaine LLP, Washington, DC

For Appellants:

Gary Keese, Seattle City Attorney's Office, Seattle, WA

Carlton W. Seu, Seattle City Attorney's Office, Seattle, WA

US v. Mitchell, No. 08-10027

Defendant's drug distribution conviction and sentence are affirmed where, even if plain error review did not apply, there was no error in the District Court's failure sua sponte to strike a juror for cause based on the murder of the juror's uncle by a drug dealer.

Read US v. Mitchell, No. 08-10027

Appellate Information

Argued and Submitted October 20, 2008

Filed June 23, 2009

Judges

Before: J. Clifford Wallace, Sidney R. Thomas and Susan P. Graber, Circuit Judges.

Opinion by Judge Wallace

Dissent by Judge Thomas

Counsel

For Appellant:

Dennis A. Cameron, Reno, NV

For Appellee:

William R. Reed, Assistant United States Attorney, Reno, NV

Kessee v. Mendoza-Powers, No. 07-56153

In the state's appeal from the District Court's order conditionally granting Petitioner's habeas petition, the order is reversed where the sentencing judge's finding that Petitioner had committed crimes while on probation fell within Apprendi's "prior conviction" exception.

Read Kessee v. Mendoza-Powers, No. 07-56153

Appellate Information

Argued and Submitted May 4, 2009

Filed June 23, 2009

Judges

Before: John T. Noonan, Diarmuid F. O'Scannlain, and Susan P. Graber, Circuit Judges.

Opinion by Judge Graber

Counsel

Rama R. Maline, Deputy Attorney General of the State of California, Los Angeles, CA

Johanna S. Schiavoni, Latham & Watkins LLP, San Diego, CA

US v. Medina-Villa, No. 07-50396

Defendant's mail fraud sentence is affirmed where the District Court correctly held that it was precluded from considering evidence of Defendant's post-sentencing rehabilitation in determining whether it would have imposed the same sentence had it known the Sentencing Guidelines were advisory. (Amended opinion)

Read US v. Medina-Villa, No. 07-50396

Appellate Information

Argued and Submitted February 3, 2009

Filed May 28, 2009

Amended June 23, 2009

Judges

Before: Harry Pregerson, Susan P. Graber, and Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Wardlaw

Counsel

For Appellant:

Michelle D. Anderson, Law Offices of Michelle D. Anderson, San Diego, CA

For Appellee:

Karen P. Hewitt, United States Attorney, San Diego, CA

Smith v. Richards, No. 07-35857

In a habeas petition alleging that Petitioner sex offender's pending detainer in one state rendered invalid his civil commitment in another state, the denial of the petition is affirmed where the state court was reasonable in finding that Petitioner remained dangerous because he might serve his time but then re-offend.

Read Smith v. Richards, No. 07-35857

Appellate Information

Argued and Submitted March 13, 2009

Filed June 23, 2009

Judges

Before: William A. Fletcher, Ronald M. Gould and Richard C. Tallman, Circuit Judges.

Opinion by Judge Tallman

Counsel

For Petitioner:

Allen M. Ressler, Ressler & Tesh, PLLC, Seattle, WA

For Respondent:

Gregory J. Rosen, Assistant Attorney General, Corrections Division, Olympia, WA

US v. Lopez-Velasquez, No. 07-30241

In a prosecution for illegal reentry into the U.S., the dismissal of the indictment is affirmed where Defendant's deportation order was invalid due to the Immigration Judge's failure to inform Defendant of his apparent eligibility for Immigration and Nationality Act Section 212(c) relief.

Read US v. Lopez-Velasquez, No. 07-30241

Appellate Information

Argued and Submitted July 9, 2008

Filed June 23, 2009

Judges

Before: Harry Pregerson and Stephen Reinhardt, Circuit Judges, and Lyle E. Strom, District Judge.
Opinion by Judge Reinhardt

Counsel

For Appellant:

Karin J. Immergut, United States Attorney, Portland, OR

Johnathan S. Haub, Assistant United States Attorney, Portland, OR

Kelly A. Zusman, Assistant United States Attorney, Portland, OR

For Appellee:

Terry Kolkey, Ashland, OR

Tennison v. San Francisco, No. 06-15426

In a 42 U.S.C. section 1983 action based on Defendant-Officers' alleged withholding of exculpatory evidence, the partial denial of Defendants' motion for summary judgment based on qualified immunity is affirmed, where police inspectors have a duty to disclose exculpatory evidence and a showing of bad faith was not required.

Read Tennison v. City and County of San Francisco, No. 06-15426

Appellate Information

Argued and Submitted June 12, 2007

Submission Vacated May 21, 2008

Resubmitted September 22, 2008

Filed December 8, 2008

Amended June 23, 2009

Judges

Opinion by Circuit Judge Tashima

Counsel

For Appellees:

Elliot R. Peters, Keker & Van Nest, LLP, San Francisco, CA

John H. Scott, The Scott Law Firm, San Francisco, CA

For Appellants:

James A. Quadra, Moscone, Emblidge & Quadra, LLP, San Francisco, CA

Friedman v. Boucher, No. 05-15675

In a 42 U.S.C. section 1983 action alleging the unlawful taking of a DNA sample, the dismissal of the action on qualified immunity grounds is reversed, where the forcible taking of the DNA sample under these circumstances violated Plaintiff's clearly established Fourth Amendment rights.

Read Friedman v. Boucher, No. 05-15675

Appellate Information

Argued and Submitted October 19, 2007

Filed June 23, 2009

Judges

Opinion by Judge Thomas

Dissent by Judge Callahan

Counsel

For Appellant:

Tyler A. Baker, Fenwick & West LLP, Mountain View, CA

Saundra Riley, Fenwick & West LLP, Mountain View, CA

Kimberly I. Culp, Fenwick & West LLP, Mountain View, CA

Julie A. Nokleberg, Fenwick & West LLP, Mountain View, CA

For Appellees:

Robert J. Gower, Deputy District Attorney, Las Vegas, NV

Lahr v. Nat'l. Transp. Safety Bd., No. 06-56717

In a Freedom of Information Act action seeking documents pertaining to a government investigation of a plane crash, the District Court's order requiring the production of some of the documents sought is affirmed in part, where certain documents were not protected by the deliberative process privilege; but reversed in part, where the eyewitness testimony sought would infringe protected privacy interests.

Read Lahr v. National Transp. Safety Bd., No. 06-56717

Appellate Information

Argued August 8, 2008

Decided June 22, 2009

Judges

Before: Roger J. Miner, Kim McLane Wardlaw and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon

Counsel

For Plaintiff: 

John H. Clarke, Washington, D.C.

For Defendants:

Steve Frank, United States Department of Justice, Washington, D.C.

Leonard Schaitman, United States Department of Justice, Washington, D.C.

George S. Cardona, United States Department of Justice, Washington, D.C.

Peter D. Keisler, United States Department of Justice, Washington, D.C.

Schroeder v. US, No. 07-36073

In an action seeking to quiet title in an apartment complex Plaintiff owned and operated, summary judgment for Defendant federal agencies is affirmed where Plaintiff's argument that she was entitled to repay her federal housing loans in full and begin accepting non-low-income tenants was foreclosed by the Emergency Low Income Housing Preservation Act of 1987.

Read Schroeder v. US, No. 07-36073

Appellate Information

Argued March 5, 2009

Decided June 22, 2009

Judges

Before: Susan P. Graber, Raymond C. Fisher, and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Smith.

Counsel

For Plaintiff:
William F. Schroeder, Vale, OR

For Defendant:
Suzanne A. Bratis, United States Attorney's Office for the District of Oregon, Portland, OR

Kelly A. Zusman, United States Attorney's Office for the District of Oregon, Portland, OR

For Amici Curiae:
Gideon Anders, National Housing Law Project, Oakland, CA

Ed Johnson, Oregon Law Center, Portland, OR

Satterfield v. Simon & Schuster, Inc., No. 07-16356

In an action under the Telephone Consumer Protection Act for sending unsolicited text messages, summary judgment for Defendant is reversed, where a genuine issue of material fact existed concerning whether the equipment used by Defendant had the capacity to store or produce numbers to be called using a random or sequential number generator and to dial such numbers.

Read Satterfield v. Simon & Schuster, Inc., No. 07-16356.

Appellate Information

Appeal from the United States District Court for the Northern District of California. Claudia Wilken, District Judge, Presiding
Argued and Submitted February 11, 2009--San Francisco, California
Filed June 19, 2009

Judges

Before: John T. Noonan, David R. Thompson and N. Randy Smith, Circuit Judges.
Opinion by Judge N.R. Smith.

Counsel

John G. Jacobs, The Jacobs Law Firm, Chtd., Chicago, Illinois, for the plaintiff-appellant.

Peter L. Winik and Barry J. Blonien, Latham & Watkins LLP, Washington, DC, for the defendants-appellees. 

US v. Leniear, No. 08-30199

Defendant's drug distribution sentence is affirmed, where Defendant was not eligible for a sentence reduction under Amendment 706 to the Sentencing Guidelines because, in light of the grouping rules under U.S.S.G. section 3D1.4, Amendment 706 did not lower the applicable guideline range.

Read the full decision in US v. Leniear, No. 08-30199.

Appellate Information:

Appeal from the United States District Court for the District of Alaska. James K. Singleton, Senior District Judge, Presiding
Argued and Submitted on March 12, 2009 Seattle, Washington
Filed June 18, 2009

Judges:

Before: William A. Fletcher, Ronald M. Gould, and Richard C. Tallman, Circuit Judges.

Opinion by Judge Tallman.

Counsel:

Allan D. Beiswenger, Anchorage, Alaska, for the defendant-appellant.

Audrey J. Renschen (argued) and Jo Ann Farrington, Assistant United States Attorneys, and Nelson P. Cohen, United States Attorney, Anchorage, Alaska, for the plaintiff-appellee.

US v. Overton, No. 08-30075

Defendant's child pornography conviction and sentence are affirmed where: 1) the evidence was sufficient to allow the District Court to find that the photographs at issue depicted sexually explicit conduct; and 2) Defendant's conviction complied with the Double Jeopardy Clause because 18 U.S.C. sections 2251(a) and (b) constitute separate offenses.

Read the full decision in US v. Overton, No. 08-30075.

Appellate Information:

Appeal from the United States District Court for the District of Montana. Donald W. Molloy, District Judge, Presiding.
Argued and Submitted January 21, 2009 -- Seattle, Washington
Filed June 18, 2009

Judges:

Before Thomas M. Reavley, Senior Circuit Judge, Richard C. Tallman and Milan D. Smith, Jr., Circuit Judges. The Honorable Thomas M. Reavley, Senior United States Circuit Judge for th Fifth Circuit, sitting by designation.

Opinion by Judge Tallman


Counsel:

Anthony R. Gallagher, Office of the Federal Public Defenders for the District of Montana, Great Falls, Montana, for the defendant-appellant.

Eric B. Wolff (argued), Marcia Hurd, Assistant United States Attorneys, and William W. Mercer, United States Attorney for the District of Montana, Billings, Montana, for the plaintiff-appellee.

Wirum v. Warren, No. 07-17226

In an appeal from a Bankruptcy Court order waiving 11 U.S.C. section 521(i)(1)'s requirement that a debtor file a list of creditors within 45 days of filing a bankruptcy petition, the District Court's order vacating the Bankruptcy Court's order is reversed, where the Bankruptcy Court acted within its discretion in entering the order waiving the filing requirement even though the deadline had passed.

Read the full decision in Wirum v. Warren, No. 07-17226.

Appellate Information:

Appeal from the United States District Court for the Northern District of California. Charles R. Breyer, District Judge, Presiding.
Argued and Submitted April 16, 2009 -- San Francisco, California
Filed on June 18, 2009

Judges:

Before Thomas G. Nelson, Andrew J. Kleinfeld and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge T. G. Nelson.

Counsel:

John H. MacConaghy, MacConaghy & Barnier, Sonoma, California, for the appellant.

David Chandler, Santa Rosa, California, for the appellee.

In a Tax Court petition challenging an IRS deficiency notice, judgment for Petitioner is affirmed, where a taxpayer does not "omit[ ] from gross income an amount properly includible therein" for purposes of 26 U.S.C. section 6501(e)(1)(A) by overstating its basis.

Read the full decision in Bakersfield Energy Partners v. Commissioner of Internal Revenue, No. 07-74275.

Appellate Information:

Appeal from a Decision of the United States Tax Court
Argued and Submitted February 9, 2009 -- Pasadena, California
Filed June 17, 2009

Judges:

Before: Andrew J. Kleinfeld, Carlos T. Bea, and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta

Counsel:

Steven R. Mather, Beverly Hills, California, for the petitioners-appellees.

Joan I. Oppenheimer, Washington, D.C., for the respondent-appellant.

Vernoff v. Astrue, No. 08-55049

In an appeal from the Social Security Administration's order denying Plaintiff child survivor benefits, the order is affirmed where the child at issue did not meet the eligibility requirements for such benefits because she could not establish that she was dependent upon the deceased insured at the time of his death under California law.

Read the full decision in Vernoff v. Astrue, No. 08-55049.

Appellate Information:

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding.
Argued and Submitted May 6, 2009 -- Pasadena, California
Filed June 17, 2009

Judges:

Before: Cynthia Holcomb Hall, Andrew J. Kleinfeld, and Barry G. Silverman, Circuit Judges.

Opinion by Judge Hall

Counsel:

James T. Raetz and Wallace R. Vernoff, Coulter Vernoff & Pearson, Pasadena, California, for the appellant.

Gregory G. Katsas, Assistant Attorney General, and Kelsi Brown Corkran, Attorney, Civil Division, Department of Justice, Washington, D.C. for the appellee.

Sea Hawk Seafoods, Inc. v. Locke, No. 07-35754

In an action challenging certain fishery management regulations, the dismissal of the complaint is affirmed where: 1) the Magnuson-Stevens Fishery Conservation and Management Act's (MSA) limitations period barred Plaintiffs' direct challenge to the regulations; and 2) Plaintiffs' failure to act claim was an impermissible attempt to recast its direct challenge to the regulations so as to avoid the MSA's shortened limitations period.

Read the full decision in Sea Hawk Seafoods, Inc. v. Locke, , No. 07-35754.

Appellate Information:

Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding.
Argued and Submitted December 9, 2008 -- Seattle, Washington
Filed June 17, 2009

Judges:

Before: Ronald M. Gould, Richard C. Tallman and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan

Counsel:

Leonard J. Feldman, Michael T. Shein, Kevin P. Sullivan, Seattle, Washington, on behalf of appellants Sea Hawk Seafoods, Inc. and the Non-AFA Processors Association.

Anna T. Katselas, United States Department of Justice, Washington, D.C., on behalf of appellees Gary F. Locke, United States Secretary of Commerce; United States Department of Commerce; National Oceanic and Atmospheric Administration; and National Marine Fisheries Service.

Holley v. Yarborough, No. 08-15104

In a habeas matter involving a prosecution for lewd and lascivious acts on a child, the denial of the petition is reversed where the trial court erred in prohibiting Petitioner from introducing evidence that the victim had made prior claims of her own sexual appeal, because such evidence was clearly relevant to impeach the victim.

Read the full decision in Holley v. Yarborough, No. 08-15104.

Appellate Information:

Appeal from the United States District Court for the Eastern District of California. Ralph R. Beistline, District Judge, Presiding.
Argued and Submitted April 13, 2009 - San Francisco, California
Filed June 16, 2009

Judges:

Before Thomas G. Nelson, Andrew J. Kleinfeld and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

Counsel:

Suzanne Adele Luban, Oakland, California, for the petitioner-appellant.

Edmund G. Brown Jr., Dane R. Gillette, Michael P. Farrell, Brian G. Smiley, and Tami M. Warwick, Office of the California Attorney General, Sacramento, California, for the respondent-appellee.

Cousins v. Lockyer, No. 07-17216

In a 42 U.S.C. section 1983 action alleging that Defendant officials breached their duty to monitor whether Plaintiff's sentence was void and take steps to effectuate his release, the dismissal of the complaint is affirmed in part, where Plaintiff's federal claims were barred by prosecutorial immunity; but reversed in part, where Plaintiff's state law claims were not subject to an immunity defense.

Read the full decision in Cousins v. Lockyer, No. 07-17216.

Appeal Information:

Appeal from the United States District Court for the Northern District of California. Saundra B. Armstrong, District Judge, Presiding.

Argued and Submitted April 13, 2009--San Francisco, California

Filed June 15, 2009

Judges:

Before Thomas G. Nelson, Andrew J. Kleinfeld, and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

Counsel:

Dennis Cunningham and William Gordon Kaupp, Law Offices of Dennis Cunningham, San Francisco, California, for the plaintiff-appellant.

Wilfred T. Fong, Office of the California Attorney General, Oakland ,California, for the defendants-appellees.

Mollison v. US, No. 07-16035

In a motion to quash a summons issued by the IRS and served on the U.S. more than twenty days after it was issued, the District Court's order dismissing the action for lack of jurisdiction is reversed where, although a party filing a motion to quash must commence a proceeding to quash the summons within twenty days after the notice is given, the party is permitted 120 days to serve the motion on the U.S.

Read the full decision in Mollison v. US, No. 07-16035.

Appeal Information:

Appeal from the United States District Court for the District of Nevada. Howard D. McKibben, District Judge, Presiding.

Submitted March 11, 2009, San Francisco, California. The panel unanimously finds this case suitable for decision without oral argument.

Filed June 15, 2009

Judges:

Before Sidney R. Thomas and Jay S. Bybee, Circuit Judges, and Roger T. Benitez, District Judge. The Honorable Roger T. Benitez, United States District Judge for the Southern District of California, sitting by designation.

Opinion by Judge Thomas

Counsel:

Edward Robbins, Jr. and Heather K. Lee, Hochman, Salkin, Rettig, Toscher & Perez, P.C., Beverly Hills, California, for the appellants.

Andrea R. Tebbets and Ivan C. Dale, United States Department of Justice, Washington, D.C., for the appellees.

Smith v. T-Mobile USA, Inc., No. 08-55535

In a Fair Labor Standards Act collective action seeking unpaid overtime for hourly employees, the appeal is dismissed for lack of jurisdiction where, because Plaintiffs voluntarily settled their Fair Labor Standards Act claims before the appeal was taken, the action was moot.

Read the full decision in Smith v. T-Mobile USA, Inc., No. 08-55535.

Appeal Information:

Appeal from the United States District Court for the Central District of California. Audrey B. Collins, District Judge, Presiding

Submitted May 4, 2009, Pasadena, California

Filed June 15, 2009

Judges:

Before Cynthia Holcomb Hall, Andrew J. Kleinfeld and Barry G. Silverman, Circuit Judges.

Opinion by Judge Silverman.

Counsel:

Gwen Freeman, Knapp, Petersen & Clark, Glendale, California, for the plaintiffs-appellants.

James Severson, Bingham McCutchen, LLP, San Francisco, California, for the defendants-appellees.

Baker v. Exxon Mobil Corporation, No. 04-35182

In an action for property damage based on an oil spill caused by Defendant's tanker, the Exxon Valdez, the District Court's order awarding post-judgment interest on punitive damages starting in 2008 is reversed, where the Supreme Court "meaningfully ascertained" Plaintiffs' entitlement to punitive damages in 1996, and thus that was the proper date from which to start the post-judgment interest.

Read the full decision in Baker v. Exxon Mobil Corporation, No. 04-35182.

Appeal Information:

Appeal from the United States District Court for the District of Alaska. H. Russel Holland, District Judge, Presiding

Argued and Submitted on December 15, 2008--Pasadena, California. Filed June 15, 2009.

Judges:

Before Mary M. Schroeder, Andrew J. Kleinfeld and Sidney R. Thomas, Circuit Judges.

Opinion by Judge Schroeder. Partial Concurrence and Partial Dissent by Judge Kleinfeld.

Counsel:

Jeffrey L. Fisher, Davis Wright Tremaine LLP, Stanford, California, for the plaintiffs-appellees-appellants.

Jonathan Hacker, O'Melveny & Myers, LLP, Washington, D.C., for the defendants-appellants-appellees.

Kamm v. ITEX Corp., No. 07-35079

In a breach of contract action concerning an Independent Retail Brokerage Service Agreement, the District Court's order remanding the action to state court is affirmed, as Plaintiffs' motion to remand was based on a forum selection clause and thus was not subject to the thirty-day requirement of 28 U.S.C. section 1447(c).

Read the full decision in Kamm v. ITEX Corporation, No. 07-35079.

Appeal from the United States District Court for the District of Oregon. Anna J. Brown, District Judge, Presiding.

Judges:

Before William A. Fletcher and Raymond C. Fisher, CircuitJudges, and Charles R. Breyer, District Judge. The Honorable Charles R. Breyer, UnitedStates District Judge for the
Northern District of California, sitting by designation.

Opinion by Judge Fletcher.

Counsel:

Stephen A. Redshaw, Stoel Rives LLP, Portland, Oregon, for the appellant.

Christopher L. Garrett, Perkins Coie LLP, Portland, Oregon, for the appellees.