U.S. Ninth Circuit: July 2009 News
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9th Circuit July 2009 News

US v. Berger, No. 08-50415

In a loan fraud prosecution, denial of appellant's motion seeking a share of the proceeds of a transaction made by defendant, her husband, is affirmed where community property is available to satisfy a restitution judgment obtained under the Mandatory Victim Restitution Act (MVRA) against a criminally liable spouse, including that portion of the property that otherwise would potentially be awarded upon dissolution of marriage to an innocent spouse who was not involved in the criminal activity.

Read US v. Berger, No. 08-50415

Appellate Information

Argued and Submitted June 1, 2009

Filed July 31, 2009

Judges

Opinion by Judge Smith

Counsel

For Appellant:

Jenny O. Blake, Chicago, IL

For Appellee:

Leon W. Seidman, Assistant United States Attorney, United States Attorney's Office for the Central District of California, Los Angeles, CA

Brent A. Whittlesey, Assistant United States Attorney, United States Attorney's Office for the Central District of California, Los Angeles, CA

US v. Mincoff, No. 08-50058

Defendant's drug distribution conviction is affirmed where: 1) a rational trier of fact could have found the buyer-seller rule inapplicable; 2) defendant and his business partner agreed to the essential terms of the planned transaction; and 3) the evidence was sufficient to establish that defendant knowingly used a telephone to facilitate the distribution of cocaine.

Read US v. Mincoff, No. 08-50058

Appellate Information

Argued and Submitted April 14, 2009

Filed July 31, 2009

Judges

Opinion by Judge Rawlinson

Counsel

For Appellant:

Charles M. Sevilla, San Diego, CA

For Appellee:

Bruce R. Castetter, Assistant United States Attorney, San Diego, California

David D. Leshner, Assistant United States Attorney, San Diego, California

US v. Higuera-Llamos, No. 07-10602

Defendant's conviction and sentence for illegal reentry following deportation are affirmed, where: 1) the district court properly admitted a prior judgment against defendant to prove alienage because it instructed the jury to consider it only for that purpose; and 2) the district court properly considered unconvicted criminal conduct in enhancing defendant's sentence.

Read US v. Higuera-Llamos, No. 07-10602

Appellate Information

Argued and Submitted January 15, 2009

Filed July 31, 2009

Judges

Opinion by Judge Wallace

Counsel

For Appellant:

Lynn T. Hamilton, Hamilton Law Office, Mesa, AZ

For Appellee:

Diane J. Humetewa, United States Attorney, District of Arizona, Phoenix, AZ

Marcus v. Holder, No. 08-15643

In an action seeking a declaration that the Attorney General's investigation of plaintiff regarding alleged campaign finance violations was politically motivated and therefore unlawful, dismissal of the complaint is affirmed where the Attorney General need not obtain the permission of the Federal Elections Commission (FEC)  before investigating or prosecuting possible violations of federal election laws.

Read Marcus v. Holder, No. 08-15643

Appellate Information

Submitted July 16, 2009

Filed July 30, 2009

Judges

Opinion by Judge Silverman

Counsel

For Appellant:

Michael R. Dezsi, Fieger, Fieger, Kenney, Johnson & Giroux, P.C., Southfield, MI

For Appellees:

Thomasenia P. Duncan, General Counsel, Federal Elections Commission, Washington, DC

David Kolker, Associate General Counsel, Federal Elections Commission, Washington, DC

Aloe Vera of Am., Inc. v. US, No. 07-15577

In an action under 26 U.S.C. section 7431(a) claiming that the IRS disclosed false tax information regarding plaintiffs in violation of 26 U.S.C. section 6103(a), summary judgment for defendants is vacated where section 7431(d)'s statute of limitations is jurisdictional, and the district court therefore needed to determine whether the claim was timely filed.

Read Aloe Vera of Am., Inc. v. US, No. 07-15577

Appellate Information

Argued and Submitted October 24, 2008

Filed July 30, 2009

Judges

Opinion by Judge Wallace

Counsel

For Appellants:

Terrence D. Woolston, Woolston & Tarter, P.C., Phoenix, AZ

Tim A. Tarter, Woolston & Tarter, P.C., Phoenix, AZ

For Appellee:

Richard T. Morrison, Acting Assistant Attorney General, Washington, DC

Jonathan S. Cohen, Tax Division, Department of Justice, Washington, DC

Sanchez v. Canales, No. 06-55584

In a 42 U.S.C. section 1983 action claiming that plaintiffs were unlawfully detained during defendant-officers' search of their home, district court's partial denial of qualified immunity to defendants is reversed where, given that officers may search the home of a parolee or probationer without a warrant so long as the officers have probable cause to believe they are at the address where the parolee resides, there is no need to be concerned that a neutral magistrate had not approved the reasonableness of the compliance search.

Read Sanchez v. Canales, No. 06-55584

Appellate Information

Argued and Submitted November 21, 2008

Filed July 30, 2009

Judges

Opinion by Judge Hawkins

Dissent by Judge Pregerson

Counsel

For Appellants:

Blithe S. Bock, Deputy City Attorney, Los Angeles, CA

For Appellees:

Marion R. Yagman, Yagman & Yagman & Reichmann, Venice Beach, CA

Stephen Yagman, Yagman & Yagman & Reichmann, Venice Beach, CA

Desai v. Deutsche Bank Secs. Ltd., No. 08-55081

In a securities fraud class action, denial of plaintiffs' motion for class certification is affirmed where no authority supported plaintiffs' proposed "integrity of the market" presumption in market manipulation cases, and thus, the district court correctly declined to presume class-wide reliance on the allegedly fraudulent statements.

Read Desai v. Deutsche Bank Secs. Ltd., No. 08-55081

Appellate Information

Argued and Submitted May 7, 2009

Filed July 29, 2009

Judges

Per Curiam

Concurrence by Judge O'Scannlain

Concurrence by Judge Graber

Counsel

For Appellants:

Joseph J. Tabacco, Jr., Berman, DeValerio, Pease, Tabacco Burt & Pucillo, San Francisco, CA

Ira M. Press, Kirby, McInerney LLP, New York, NY

For Appellee:

James H.R. Windels, Davis, Polk & Wardwell, New York, NY

Dupree v. Holman Prof'l. Counseling Ctrs., No. 07-55617

In an ERISA action for health benefits, judgment for defendant is affirmed where plaintiff's stay at a residential treatment center that had no contract with defendant-insurer was not covered under plaintiff's health plan.

Read Dupree v. Holman Prof'l. Counseling Ctrs., No. 07-55617

Appellate Information

Argued and Submitted October 22, 2008

Filed July 29, 2009

Judges

Opinion by Judge Hall

Dissent by Judge Pregerson

Counsel

For Appellants:

Lisa S. Kantor, Kantor & Kantor, Northridge, CA

For Appellees:

Robert C. Bohner, Sedgwick, Detert, Moran & Arnold, Los Angeles, CA

Michael A. Vanic, Reish Luftman Reicher & Cohen, Los Angeles, CA

Moore v. Czerniak, No. 04-15713

In a murder prosecution, denial of petitioner's habeas petition is reversed where defense counsel's failure to move to suppress petitioner's confession constituted ineffective assistance because counsel's stated reasons for not filing the motion were patently erroneous, and because the detailed, taped confession petitioner gave to the police was highly damaging.

Read Moore v. Czerniak, No. 04-15713

Appellate Information

Argued and Submitted March 10, 2005

Filed July 28, 2009

Judges

Opinion by Judge Reinhardt

Concurrence by Judge Berzon

Dissents by Judges Bybee, Callahan and Bea

Counsel

For Appellant:

Barbara L. Creel, Office of the Federal Public Defender, Portland, OR

For Appellee:

Hardy Myers, Attorney General for the State of Oregon, Salem, OR

Mary H. Williams, Solicitor General, Salem, OR

Blough v. Holland Realty, Inc., No. 08-35536

In an antitrust action alleging that defendant realtors representing developers tied the sale of undeveloped lots to services and commissions for developed property, summary judgment for defendants is affirmed where there was no market for listing and referral services among potential buyers of newly-constructed houses, and thus no competition in the allegedly tied market to be harmed.

Read Blough v. Holland Realty, Inc., No. 08-35536

Appellate Information

Argued and Submitted July 9, 2009

Filed July 27, 2009

Judges

Opinion by Judge Rymer

Counsel

For Appellants:

Steve W. Berman, Hagens Berman Sobol Shapiro LLP, Seattle, WA

Craig R. Spiegel, Hagens Berman Sobol Shapiro LLP, Seattle, WA

For Appellees:

Eugene A. Ritti, Hawley Troxell Ennis & Hawley LLP, Boise, ID

Brad P. Miller, Hawley Troxell Ennis & Hawley LLP, Boise, ID

Johnson v. Couturier, No. 08-17369

In an ERISA action for breach of fiduciary duty through the diversion of corporate assets, a preliminary injunction in favor of plaintiffs is affirmed where the district court did not abuse its discretion when it enjoined advancement of defense costs and froze defendant's assets; but the matter is remanded to allow the district court to set the terms and conditions of a surety bond sufficient to secure defendants against any harm that might wrongfully befall them as a result of the issuance of the injunction.

Read Johnson v. Couturier, No. 08-17369

Appellate Information

Argued and Submitted May 7, 2009

Filed July 27, 2009

Judges

Opinion by Judge Tallman

Counsel

For Appellants:

Theodore M. Becker, Morgan, Lewis & Bockius LLP, Chicago, IL

For Appellees:

Gary D. Greenwald, Keller Rohrback, PLC, Phoenix, AZ

Ron Kilgard, Keller Rohrback, PLC, Phoenix, AZ

US v. Harris, No. 08-10370

Defendant's bank robbery sentence is affirmed where defendant's prior Nevada convictions for robbery and attempted robbery categorically qualified as "crimes of violence" under U.S.S.G. section 4B1.2, and thus defendant was properly classified as a career offender.   

Read US v. Harris, No. 08-10370

Appellate Information

Submitted July 13, 2009

Filed July 24, 2009

Judges

Per Curiam

Counsel

For Appellant:

Jason F. Carr, Federal Public Defender's Office, Las Vegas, NV

For Appellee:

Peter S. Levitt, United States Attorney's Office, Las Vegas, NV

US v. Nobari, No. 06-10465

Defendants' drug conspiracy convictions are affirmed where the prosecution improperly presented, as evidence of defendants' guilt, testimony that drew generalizations on the basis of ethnicity, but the other evidence against defendants was overwhelming and thus the error was harmless.   

Read US v. Nobari, No. 06-10465

Appellate Information

Argued and Submitted February 10, 2009

Filed July 24, 2009

Judges

Opinion by Judge Clifton

Counsel

For Appellant:

Suzanne A. Luban, Oakland, CA

For Appellee:

McGregor W. Scott, United States Attorney, Fresno, CA

Karen A. Escobar, Assistant United States Attorney, Fresno, CA

Conn v. Reno, No. 07-15572

In a 42 U.S.C. section 1983 action based on a prisoner's suicide, summary judgment for defendants is reversed where: 1) a reasonable jury could find that defendant police officers were liable for their deliberate indifference to plaintiff's serious medical need; and 2) defendant city could be found liable for failure to properly train the officers.  

Read Conn v. Reno, No. 07-15572

Appellate Information

Argued and Submitted October 20, 2008

Filed July 24, 2009

Judges

Opinion by Judge Reinhardt

Counsel

For Appellants:

Terri Keyser-Cooper, Reno, NV

For Appellees:

John J. Kadlic, Reno City Attorney, Reno, NV

Donald L. Christensen, Deputy City Attorney, Reno, NV

Public Citizen v. Nuclear Reg. Comm., No. 07-71868

In a petition for review of the Nuclear Regulatory Commission's refusal to include the threat of air attacks in its final revised Design Basis Threat rule, the petition is denied where the Commission was not departing from an established standard but is merely elaborating on the interpretation of its own regulation, and its elaboration was not arbitrary or capricious.   

Read Public Citizen v. Nuclear Reg. Comm., No. 07-71868

Appellate Information

Argued and Submitted November 17, 2008

Filed July 24, 2009

Judges

Opinion by Judge Hall

Partial Concurrence and Dissent by Judge Thomas

Counsel

For Petitioner:

Adina H. Rosenbaum, Public Citizen Litigation Group, Washington, DC

For Respondents:

Steven F. Crockett, Special Counsel, Nuclear Regulatory Commission, Washington, DC

Karen D. Cyr, General Counsel, Nuclear Regulatory Commission, Washington, DC

US v. Guzman-Padilla, No. 08-50114

In a drug prosecution, denial of defendants' motion to suppress evidence is affirmed where the stop of defendants' vehicle was a valid seizure incident to an extended border search, and the force used to effect the stop was not excessive.

Read US v. Guzman-Padilla, No. 08-50114

Appellate Information

Argued and Submitted April 7, 2009

Filed July 23, 2009

Judges

Opinion by Judge Fogel

Counsel

For Appellants:

Shaun Khojayan, San Diego, CA

Janet C. Tung, San Diego, CA

For Appellee:

Mark R. Rehe, San Diego, CA

Bosack v. Soward, No. 08-35248

In a petition to vacate an arbitration award on fraud and conversion claims arising out of the failure of the parties' partnership, denial of the petition is affirmed where 1) the award did not manifestly disregard the law; and 2) the court of appeals was not authorized to review the panel's factual findings and legal conclusions.

Read Bosack v. Soward, No. 08-35248

Appellate Information

Argued and Submitted June 4, 2009

Filed July 23, 2009

Judges

Opinion by Judge Thompson

Counsel

For Appellant:

Kathleen M. Sullivan, Redwood Shores, CA

For Appellees:

J. Daniel Sharp, San Francisco, CA

Renee v. Duncan, No. 08-16661

In a challenge to a Department of Education regulation permitting teachers participating in alternative route programs to be considered "highly qualified" under the No Child Left Behind Act, an order granting summary judgment to the Department is vacated with instructions to dismiss the action where plaintiffs lacked standing to challenge the regulation because they could not show that invalidating the regulation would personally benefit them.

Read Renee v. Duncan, No. 08-16661

Appellate Information

Argued and Submitted February 11, 2009

Filed July 23, 2009

Judges

Opinion by Judge Nelson

Dissent by Judge Fletcher

Counsel

For Appellants:

John T. Affeldt, Public Advocates, Inc., San Francisco, CA

Tara Kini, Public Advocates, Inc., San Francisco, CA

For Appellee:

Alisa B. Klein, United States Department of Justice, Civil Division, Washington, DC

Kraus v. Presidio Trust Facilities Div., No. 07-17177

In a Title VII action for employment discrimination by a federal employee, dismissal of the action is reversed where plaintiff was not required to specifically contact a person with the job title "Counselor" to meet 29 C.F.R. section 1614.105(a)(1)'s requirement that she contact an EEO counselor within 45 days of the alleged discrimination.

Read Kraus v. Presidio Trust Facilities Div., No. 07-17177

Appellate Information

Submitted July 16, 2009

Filed July 23, 2009

Judges

Opinion by Judge Berzon

Counsel

For Appellant:

John L. Taylor, Law Offices of John L. Taylor, San Francisco, CA

For Appellee:

Katherine Burke Dowling, Office of the U.S. Attorney, San Francisco, CA

Joseph Russoniello, Office of the U.S. Attorney, San Francisco, CA

River Runners for Wilderness v. Martin, No. 08-15112

In an Administrative Procedure Act (APA) challenge to a National Park Service river management plan, the circuit court adopts the district court's opinion and summary judgment for defendants is affirmed where the APA does not allow the court to overturn an agency decision because it disagrees with the decision or with the agency's conclusions about environmental impacts.

Read River Runners for Wilderness v. Martin, No. 08-15112

Appellate Information

Argued and Submitted June 10, 2009

Filed July 21, 2009

Judges

Per Curiam

Counsel

For Appellants:

Julia A. Olson, Wild Earth Advocates, Eugene, OR

Matthew K. Bishop, Western Environmental Law Center, Helena, MT

For Appellees:

Charles R. Scott, Attorney, United States Department of Justice, Washington, DC

US v. Payton, No. 07-10567

In a child pornography prosecution, denial of defendant's motion to suppress evidence of child pornography found on his personal computer is reversed where a search of defendant's computer exceeded the scope of the warrant and did not meet the Fourth Amendment standard of reasonableness.

Read US v. Payton, No. 07-10567

Appellate Information

Argued and Submitted November 19, 2008

Filed July 21, 2009

Judges

Opinion by Judge Canby

Counsel

For Appellant:

Sherrill A. Carvalho, Assistant United States Attorney, Fresno, CA

For Appellee:

Eric V. Kersten, Assistant Federal Public Defender, Fresno, CA

Huppert v. Pittsburg, No. 06-17362

In a 42 U.S.C. section 1983 action claiming that defendant city violated the First Amendment by disciplining plaintiff police officers based on their speech, summary judgment for defendants is affirmed where the speech at issue was made pursuant to plaintiffs' job duties.

Read Huppert v. Pittsburg, No. 06-17362

Appellate Information

Argued and Submitted July 18, 2008

Filed July 21, 2009

Judges

Opinion by Judge Tallman

Dissent by Judge W. Fletcher

Counsel

For Appellants:

Russell A. Robinson, San Francisco, CA

For Appellees:

Joseph M. Quinn, Meyers Nave Riback Silver & Wilson, San Francisco, CA

Vasquez v. Kirkland, No. 08-55699

In a murder case, the denial of Petitioner's habeas petition is affirmed where testimony by a deaf witness using sign language did not violate the Confrontation Clause because the limitations on the effectiveness of cross-examination resulted from the witness's own physical impairments.

Read Vasquez v. Kirkland, No. 08-55699

Appellate Information

Argued and Submitted May 4, 2009

Filed July 20, 2009

Judges

Opinion by Judge B. Fletcher

Counsel

For Appellant:

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

For Appellee:

David F. Glassman, Deputy Attorney General, Office of the California Attorney General, Los Angeles, CA

T-Mobile USA Inc. v. Anacortes, No. 08-35493

In an action challenging defendant-city's denial of plaintiff's application to erect a wireless antenna under the Telecommunications Act, summary judgment for plaintiff is affirmed where the city failed to rebut plaintiff's showing that the denial of the application amounted to an effective prohibition of wireless services.

Read T-Mobile USA Inc. v. Anacortes, No. 08-35493

Appellate Information

Argued and Submitted June 1, 2009

Filed July 20, 2009

Judges

Opinion by Judge Callahan

Counsel

For Appellant:

Dan S. Lossing of Inslee, Best, Doezie & Ryder, P.S., Bellevue, WA

For Appellee:

T. Scott Thompson, Davis Wright Tremaine, LLP, Washington, DC

Valentine v. Comm'r., Soc. Sec. Admin., No. 08-35374

In an action challenging the Social Security Commissioner's denial of disability benefits, judgment for defendant is affirmed, where 1) the Administrative Law Judge (ALJ) did not ignore or contradict plaintiff's neuropsychological assessment; and 2) the ALJ provided clear and convincing reasons to reject plaintiff's subjective complaint testimony.

Read Valentine v. Comm'r., Soc. Sec. Admin., No. 08-35374

Appellate Information

Argued and Submitted June 5, 2009

Filed July 20, 2009

Judges

Opinion by Judge O'Scannlain

Counsel

Linda S. Ziskin, Lake Oswego, OR

Thomas M. Elsberry, Assistant Regional Counsel, Social Security Administration, Seattle, WA

Hoffman v. Lloyd, No. 08-15814

In a bankruptcy adversary proceeding in which the debtor sought to rescind the sale of his foreclosed home, bankruptcy court's order rescinding the sale is affirmed where the buyer failed to notify the debtor of his rights under California's Home Equity Sales Contract Act, and the parties' settlement agreement did not affect this obligation.

Read Hoffman v. Lloyd, No. 08-15814

Appellate Information

Argued and Submitted May 15, 2009

Filed July 20, 2009

Judges

Opinion by Judge Schroeder

Counsel

For Appellant:

Jeffrey Goodrich, Goodrich & Associates, San Francisco, CA

For Appellee:

Dennis Davis, San Francisco, CA

California Trout v. FERC, No. 07-73664

In a petition for review of the Federal Energy Regulatory Commission's denial of petitioner's motion to intervene in a license renewal proceeding, the petition is denied where 16 U.S.C. section 825g(a) allows the agency to differentiate among untimely interveners and permits the Commission to summarily reject a prospective intervener who cannot demonstrate "good cause" for its untimely motion.

Read California Trout v. FERC, No. 07-73664

Appellate Information

Argued and Submitted February 12, 2009

Filed July 20, 2009

Judges

Opinion by Judge Bybee

Dissent by Judge Gould

Counsel

For Petitioners:

Daniel P. Selmi, Los Angeles, CA

Amy J. Bricker, Los Angeles, CA

For Respondent:

Holly E. Cafer, Washington, DC

Katherine Henry, Washington, DC

Szalai v. Holder, No. 06-74994

In a petition for review of the BIA's order denying petitioner's application for cancellation of removal, the petition is denied where petitioner's violation of a domestic restraining order qualified as a violation of a "protection order" under 8 U.S.C. section 1227(a)(2)(E)(ii).

Read Szalai v. Holder, No. 06-74994

Appellate Information

Argued and Submitted October 24, 2008

Filed July 16, 2009

Judges

Per Curiam

Concurrence by Judge Wu

Counsel

For Petitioner:

Teresa A. Statler, Immigration Law Office of Teresa A. Statler, Portland, OR

For Respondent:

Wendy Benner-Leon, U.S. Department of Justice, Civil Division, Office of Immigration Litigation, Washington, DC

Hopkins v. Bonvicino, No. 07-15102

In a 42 U.S.C. section 1983 action based on an unlawful search, the denial of defendants' summary judgment motion based on qualified immunity is affirmed in part where two of the defendant-officers violated plaintiff's clearly established rights, but reversed in part, where another defendant was a mere bystander to his colleagues' conduct.

Read Hopkins v. Bonvicino, No. 07-15102

Appellate Information

Argued and Submitted October 20, 2008

Filed July 16, 2009

Judges

Opinion by Judge Reinhardt

Counsel

For Appellants:

Todd H. Master, Howard Rome Martin & Ridley, Redwood City, CA

For Appellee:

Anthony Boskovich, Boskovich Law Office, San Jose, CA

Oakland v. Hotels.com LP, No. 07-17258

In an action against Internet travel companies such as Hotels.com, Priceline.com, and Travelocity.com, claiming that they failed to calculate and remit hotel occupancy taxes in violation of a city ordinance, dismissal of the complaint is affirmed in part where plaintiff-city failed to assess the tax as required by the ordinance.

Read Oakland v. Hotels.com LP, No. 07-17258

Appellate Information

Argued and Submitted April 17, 2009

Filed July 16, 2009

Judges

Opinion by Judge McKeown

Counsel

For Appellant:

Monique Olivier, The Sturdevant Law Firm, San Francisco, CA

For Appellees:

Darrel J. Hieber, Skadden, Arps, Slate, Meagher & Flom, Los Angeles, CA

In an action claiming unlawful discharge of pesticides into U.S. waters, denial of plaintiff's application for attorney's fees is reversed where plaintiff was a prevailing party because the settlement agreement at issue effected a material alteration in the legal relationship between the parties.

Read St. John's Organic Farm v. Gem Cty. Mosquito Abatement Dist., No. 07-35797

Appellate Information

Argued and Submitted March 10, 2009

Filed July 16, 2009

Judges

Opinion by Judge Fletcher

Concurrence by Judge Tallman

Counsel

For Appellants:

William M. Eddie, Field Jerger, LLP, Portland, OR

For Appellee:

Susan E. Buxton, Moore Smith Buxton & Turcke, Boise, ID

Murray D. Feldman, Holland & Hart, LLP, Boise, ID

Moss v. US Secret Serv., No. 07-36018

In a Bivens action claiming that Defendant Secret Service agents violated plaintiffs' First Amendment rights when they ordered the relocation of a demonstration, denial of defendants' motion to dismiss based on qualified immunity is reversed where the bald allegation of impermissible motive on the agents' part, standing alone, was conclusory and was therefore not entitled to an assumption of truth.

Read Moss v. US Secret Serv., No. 07-36018

Appellate Information

Argued and Submitted October 24, 2008

Submission Vacated and Deferred December 17, 2008

Resubmitted June 25, 2009

Filed July 16, 2009

Judges

Opinion by Judge Tashima

Counsel

For Appellants:

Edward Himmelfarb, U.S. Department of Justice, Civil Division, Washington, DC

For Appellees:

Steven M. Wilker, Tonkon Torp LLP, Portland, OR

BNSF Rwy. Co. v. O'Dea, No. 08-35075

In an employment discrimination action, dismissal of the complaint for lack of jurisdiction is reversed where district courts have diversity jurisdiction over appeals from state administrative agency decisions when state law places such appeals in state trial courts.

Read BNSF Rwy. Co. v. O'Dea, No. 08-35075

Appellate Information

Argued and Submitted June 1, 2009

Filed July 16, 2009

Judges

Opinion by Judge Fernandez

Concurrence by Judge Fisher

Counsel

For Appellant:

Bryan P. Neal, Thompson & Knight L.L.P., Dallas, TX

Stephen F. Fink, Thompson & Knight L.L.P., Dallas, TX

For Appellee:

Terry N. Trieweiler, Trieweiler Law, Whitefish, MT

In an ERISA action for breach of a collective bargaining agreement requiring advertising agencies to make contributions to certain benefit plans for actors, summary judgment for defendants is reversed where ERISA allows employee benefit plans to recover unpaid contributions from an employer who is not a party to the applicable collective bargaining agreement.

Read Trustees of the Screen Actors Guild-Producers Pension & Health Plans v. NYCA, Inc., No. 08-55409

Appellate Information

Argued and Submitted May 5, 2009

Filed July 15, 2009

Judges

Opinion by Judge O'Scannlain

Counsel

For Appellants:

Peter S. Dickinson, Bush Gottlieb Singer Lopez Kohanski Adelstein & Dickinson, Glendale, California

For Appellees:

Robert S. Gerber, Sheppard, Mullin, Richter & Hampton LLP, San Diego, CA

Matthew W. Holder, Sheppard, Mullin, Richter & Hampton LLP, San Diego, CA

US v. Olander, No. 08-30180

In a child pornography prosecution, denial of defendant's motion to dismiss the charges is affirmed where the crime of receiving child pornography codified at 18 U.S.C. section 2252A(a)(2)(A) does not include intent to distribute among its elements.

Read US v. Olander, No. 08-30180

Appellate Information

Argued and Submitted May 5, 2009

Filed July 15, 2009

Judges

Opinion by Judge Fletcher

Counsel

For Appellant:

Amy Baggio, Federal Public Defender's Office, Portland, OR

For Appellee:

Greg Nylus, Office of the United States Attorney, Portland, OR

Michelle Holman Kerin, Office of the United States Attorney, Portland, OR

Apana v. TIG Ins. Co., No. 08-15550

The Court of Appeals certifies the following question to the Hawaii Supreme Court: Does a total pollution exclusion provision in a standard commercial general liability insurance policy apply to localized uses of toxic substances in the ordinary course of business, or is it limited to situations that a reasonable layperson would consider traditional environmental pollution?

Read Apana v. TIG Ins. Co., No. 08-15550

Appellate Information

Filed July 15, 2009

Judges

Opinion by Judge Kozinski

US v. Noster, No. 07-50391

Defendant's firearm possession conviction and sentence are affirmed where 1) arresting officers had probable cause to believe that defendant had obtained his vehicle through fraud; and 2) the record contained sufficient evidence to support the district court's finding that defendant had intended to use the incendiary devices at issue for terrorism.

Read US v. Noster, No. 07-50391

Appellate Information

Argued October 23, 2008

Submitted July 15, 2009

Judges

Opinion by Judge Callahan

Dissent by Judge Shadur

Counsel

For Appellant:

Sean K. Kennedy, Federal Public Defender, Los Angeles, CA

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

For Appellee:

Thomas P. O'Brien, United States Attorney for the Central District of California, Los Angeles, CA

Craig H. Missakian, Assistant United States Attorney, Los Angeles, CA

North Cty. Community Alliance v. Salazar, No. 07-36048

In a challenge to the National Indian Gaming Commission's (NIGC) approval of an Indian tribe's proposed casino, dismissal of the complaint is affirmed where the NIGC did not have a duty under the Indian Gaming Regulatory Act to make an Indian lands determination in 1993 before approving the tribe's non-site-specific proposed gaming ordinance.

Read North Cty. Community Alliance v. Salazar, No. 07-36048

Appellate Information

Argued and Submitted March 11, 2009

Filed July 15, 2009

Judges

Opinion by Judge Fletcher

Partial Concurrence and Partial Dissent by Judge Gould

Counsel

For Appellant:

Brian D. Amsbary, Groen Stephens & Klinge, LLP, Bellevue, WA

For Appellees:

Rebecca Shapiro Cohen, Office of the United States Attorney, Seattle, WA

Brian Kipnis, Office of the United States Attorney, Seattle, WA

Thomas v. Mundell, No. 07-15388

In an action by county attorneys challenging certain post-sentencing probation programs adopted and supervised by the superior court, dismissal of the complaint is affirmed where plaintiffs lacked standing to challenge the programs because their alleged injury was insufficiently concrete.

Read Thomas v. Mundell, No. 07-15388

Appellate Information

Argued and Submitted October 23, 2008

Filed July 15, 2009

Judges

Opinion by Judge Wallace

Counsel

For Appellants:

Michael A. Carvin, Jones Day, Washington, DC

For Appellees:

Scot L. Claus, Mariscal, Weeks, McIntyre & Friedlander, P.A., Phoenix, AZ

Carrillo-Jaime v. Holder, No. 06-74581

Petitioner's petition for review of the BIA's order removing him from the United States is granted, where a conviction for owning a "chop shop" under Cal. Veh. Code section 10801 is not an aggravated felony theft offense under 8 U.S.C. section 1101(a)(43)(G).

Read Carrillo-Jaime v. Holder, No. 06-74581

Appellate Information

Argued and Submitted February 9, 2009

Filed July 15, 2009

Judges

Opinion by Judge Fletcher

Concurrence by Judge Tallman

Counsel

For Petitioner:

Kari Elisabeth Hong, Portland, OR

For Respondent:

James Arthur Hunolt, United States Department of Justice, Washington, DC

Gladys Marta Steffens Guzman, United States Department of Justice, Washington, DC

Blanco v. Holder, No. 05-72159

Petitioner's petition for adjustment of his visa status is granted where his application was improperly rejected as untimely for the sole reason that his lawyer's accompanying check for the proper amount of the filing fee was inadvertently unsigned.

Read Blanco v. Holder, No. 05-72159

Appellate Information

Argued and Submitted May 4, 2009

Filed July 15, 2009

Judges

Opinion by Judge Graber

Counsel

For Petitioner:

Russell L. Marshak, Popkin, Shamir & Golan, Los Angeles, CA

For Respondent:

Lauren Fascett, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC

Song E. Park, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC

US v. Young, No. 07-10541

In the government's appeal from the district court's suppression of a firearm obtained from defendant's hotel room as fruit of a warrantless search and seizure, the district court's order is affirmed where the hotel did not actually evict defendant, and thus, he maintained a reasonable expectation of privacy in his hotel room.

Read US v. Young, No. 07-10541

Appellate Information

Argued and Submitted November 18, 2008

Filed July 14, 2009

Judges

Opinion by Judge Goodwin

Dissent by Judge Ikuta

Counsel

For Appellant:

Allison Marston-Danner, Assistant United States Attorney, San Francisco, CA

For Appellee:

Elizabeth M. Falk, Assistant Federal Public Defender, San Francisco, CA

Ayala-Villanueva v. Holder, No. 07-70110

In a petition for review of a BIA order removing petitioner from the U.S., the matter is transferred to a district court for further review where there was a genuine factual dispute concerning the identity of petitioner's father, and the resolution of this factual dispute would determine whether petitioner acquired derivative citizenship.

Read Ayala-Villanueva v. Holder, No. 07-70110

Appellate Information

Submitted June 11, 2009

Filed July 14, 2009

Judges

Opinion by Judge Hug

Counsel

For Petitioner:

Leon Rosen, Law Office of Leon Rosen, Las Vegas, NV

For Respondent:

Richard Zanfardino, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, DC

AlohaCare v. Hawaii, No. 08-16589

In an action claiming that defendant-state violated the Medicaid Act by awarding a managed health care contract to plaintiff's competitors, dismissal of the complaint is affirmed where 42 U.S.C. section 1396b(m) does not confer a federal right to contract eligibility on plaintiff that could be remedied under Section 1983.

Read AlohaCare v. Hawaii, No. 08-16589

Appellate Information

Argued and Submitted May 15, 2009

Filed July 14, 2009

Judges

Opinion by Judge Bybee

Counsel

For Appellant:

James L. Feldesman, Feldesman Tucker Leifer Fidell LLP, Washington, DC

For Appellees:

John F. Molay, Deputy Attorney General, Department of the Attorney General, Honolulu, HI

Charles A. Miller, Covington & Burling, LLP, Washington, DC

Harris v. Amgen, Inc., No. 08-55389

In an action alleging that Defendants breached their fiduciary duties under ERISA in the operation of a corporation's retirement plans, the dismissal of the complaint is reversed where plaintiff had standing as an ERISA plan participant to seek relief under 29 U.S.C. section 1132(a)(2), despite having withdrawn all of his assets from his plan.

Read Harris v. Amgen, Inc., No. 08-55389

Appellate Information

Argued and Submitted May 8, 2009

Filed July 14, 2009

Judges

Opinion by Judge Gould

Counsel

For Appellants:

Mark C. Rifkin, Wolf Haldenstein Adler Freeman & Herz LLP, San Diego, CA

For Appellees:

Steven O. Kramer, Mayer Brown LLP, Los Angeles, CA

Robert P. Davis, Mayer Brown LLP, Los Angeles, CA

Desrochers v. San Bernardino, No. 07-56773

In an action claiming that defendant city suspended plaintiff police officers in retaliation for engaging in constitutionally protected speech, summary judgment for defendant is affirmed where poor interpersonal relationships amongst coworkers that might hamper the work of a government office does not automatically transform speech on such issues into speech on a matter of public concern.

Read Desrochers v. San Bernardino, No. 07-56773

Appellate Information

Argued and Submitted March 5, 2009

Filed July 13, 2009

Judges

Opinion by Judge O'Scannlain

Counsel

For Appellants:

Michael A. McGill, Lackie & Dammeier APC, Upland, CA

For Appellees:

James A. Odlum, Mundell, Odlum & Haws, LLP, San Bernardino, CA

US v. Washington, No. 07-35062

In an action by an Indian tribe against another tribe seeking equitable apportionment of a shared fishery, the dismissal of the complaint is affirmed where the request for allocation was not permitted by the terms of the tribe's agreement.

Read US v. Washington, No. 07-35062

Appellate Information

Argued and Submitted October 21, 2008

Filed July 13, 2009

Judges

Opinion by Judge Kleinfeld

Counsel

For Appellants:

Douglas B. L. Endreson, Sonosky, Chambers, Sachse, Endreson & Perry, LLP, Washington, DC

For Appellees:

Lauren P. Rasmussen, Law Offices of Lauren P. Rasmussen, PLLC, Seattle, WA

In an ERISA action seeking an order directing a benefit plan to treat plaintiff as a designated surviving spouse beneficiary, summary judgment for plaintiff is reversed where the plan administrator's interpretation denying her that status was not an abuse of discretion.

Read Sznewajs v. U.S. Bancorp Amended & Restated Supp. Benefits Plan, No. 07-16489

Appellate Information

Argued and Submitted October 23, 2008

Filed July 13, 2009

Judges

Opinion by Judge Clifton

Counsel

For Appellant:

Michael W. Droke, Dorsey & Whitney LLP, Seattle, WA

For Appellee:

Timothy Berg, Fennemore Craig, P.C., Phoenix, AZ

Doe v. Wal-Mart Stores, Inc., No. 08-55706

In a breach of contract action by employees of foreign suppliers to a U.S. retailer based on a code of conduct included in Defendant's supply contracts specifying labor standards suppliers must meet, the dismissal of the complaint is affirmed where the code of conduct did not create a duty on the part of Defendant to monitor the suppliers, and did not provide Plaintiffs a right of action against Defendant as third-party beneficiaries.

Read Doe v. Wal-Mart Stores, Inc., No. 08-55706

Appellate Information

Argued and Submitted May 8, 2009

Filed July 10, 2009

Judges

Opinion by Judge Gould

Counsel

For Appellants:

Terrence P. Collingsworth, Conrad & Scherer, Washington, DC

Dan Stormer, Hadsell & Stormer, Pasadena, CA

For Appellee:

James N. Penrod, Morgan, Lewis & Bockius, San Francisco, CA

Thomas M. Peterson, Morgan, Lewis & Bockius, San Francisco, CA

Lone Star Security & Video, Inc. v. Los Angeles, No. 07-56521

In a 42 U.S.C. section 1983 action claiming that a city ordinance under which Plaintiff's vehicle was towed was invalid under state law, summary judgment for Plaintiff is reversed, where Plaintiff's claim that the ordinance contravened state law failed to raise a colorable federal question.

Read Lone Star Security & Video, Inc. v. Los Angeles, No. 07-56521

Appellate Information

Argued and Submitted May 7, 2009

Filed July 10, 2009

Judges

Opinion by Judge Fisher

Counsel

For Appellant:

Michael D. Nagle, Deputy City Attorney, Los Angeles, CA

For Appellee:

George M. Wallace, Wallace, Brown & Schwartz, Pasadena, CA

Kardoh v. US, No. 07-15700

In an action seeking to recover money paid by Plaintiff to an officer posing as a corrupt immigration official, judgment for Plaintiff is reversed, where the doctrine of in pari delicto barred Plaintiff from recovering the money.

Read Kardoh v. US, No. 07-15700

Appellate Information

Argued and Submitted October 24, 2008

Filed July 10, 2009

Judges

Opinion by Judge Clifton

Counsel

For Appellant:

Hartley M. K. West, U.S. Attorney, San Francisco, CA

Stephanie M. Hinds, U.S. Attorney, San Francisco, CA

For Appellee:

Erik Babcock, Oakland, CA

Ramirez v. Yates, No. 07-15087

In a burglary prosecution, the denial of Petitioner's habeas petition is vacated, where the District Court was required to undertake further factfinding to resolve whether Petitioner was entitled to equitable tolling based on the improper denial of library materials.

Read Ramirez v. Yates, No. 07-15087

Appellate Information

Argued and Submitted June 8, 2009

Filed July 10, 2009

Judges

Opinion by Judge Hawkins

Counsel

For Appellant:

Maitreya Badami, San Francisco, California

For Appellee:

Juliet B. Haley, Office of the Attorney General of the State of California, San Francisco, CA

US v. Gerritsen, No. 06-50552

Defendant's conviction for malicious interference with a military radio system is affirmed, where Defendant waived his right to counsel knowingly and intelligently, because the prosecutor did not err in including the potential sentencing enhancements in his calculation of the maximum possible penalty provided by law.

Read US v. Gerritsen, No. 06-50552

Appellate Information

Argued and Submitted January 13, 2009

Filed July 10, 2009

Judges

Opinion by Judge Ikuta

Counsel

For Appellant:

Elizabeth A. Newman, Deputy Federal Public Defender, Los Angeles, CA

For Appellee:

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

Biltmore Assocs., LLC v. Twin City Fire Ins. Co., No. 06-16417

In a bankruptcy adversary proceeding by former officers of the Debtor for indemnification in an underlying action for breach of fiduciary duty, the dismissal of the complaint is affirmed where the "insured versus insured" exclusion in the relevant policies barred coverage, because a post-bankruptcy debtor in possession acts in the same capacity as the pre-bankruptcy debtor for the purpose of directors and officers liability insurance.

Read Biltmore Assocs., LLC v. Twin City Fire Ins. Co., No. 06-16417

Appellate Information

Argued and Submitted May 15, 2008

Filed July 10, 2009

Judges

Opinion by Judge Kleinfeld

Counsel

For Appellant:

Andrew S. Jacob, Shughart Thompson & Kilroy, P.C., Phoenix, AZ

For Appellee:

Michael F. Perlis, Stroock & Stroock & Lavan LLP, Los Angeles, CA

Indep. Living Ctr. v. Maxwell-Jolly, No. 08-56422

In a challenge to state legislation reducing payments to certain medical service providers under the Medi-Cal program, a preliminary injunction in favor of Plaintiffs is affirmed, where the state failed to rely on responsible cost studies in determining the effect of the rate cuts.

Read Indep. Living Ctr. v. Maxwell-Jolly, No. 08-56422

Appellate Information

Argued and Submitted February 18, 2009

Filed July 9, 2009

Judges

Opinion by Judge Smith

Park v. Holder, No. 07-17322

In a petition for review of the BIA's determination that Petitioner did not qualify for lawful permanent residency due to her lack of a qualifying sponsor, the petition is denied, where substantial evidence supported the BIA's determination that the proposed sponsor did not qualify because he was not domiciled in the U.S. as required by 8 U.S.C. section 1183a(f).

Read Park v. Holder, No. 07-17322

Appellate Information

Argued and Submitted November 20, 2008

Filed July 9, 2009

Judges

Opinion by Judge Smith

Counsel

For Petitioner:

Ronald T. Oldenburg, Waipahu, HI

For Respondent:

Jesse M. Bless, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, DC

Norwood v. Vance, No. 07-17322

In a 42 U.S.C. section 1983 action alleging that prison officials violated the Eighth Amendment when they denied Plaintiff outdoor exercise during lockdowns, judgment for Plaintiff is reversed, where the lockdowns were reasonable precautions given the violence that had occurred at the prison, and thus Defendants were entitled to qualified immunity.

Read Norwood v. Vance, No. 07-17322

Appellate Information

Argued and Submitted October 29, 2008

Filed July 9, 2009

Judges

Opinion by Judge Kozinski

Dissent by Judge Thomas

Counsel

For Plaintiff:

Carter White, Supervising Attorney, U.C. Davis School of Law, King Hall Civil Rights Clinic, Davis, CA

Erin Haney, Certified Law Student, U.C. Davis School of Law, King Hall Civil Rights Clinic, Davis, CA

For Defendants:

Christopher J. Becker, Deputy Attorneys General, Office of the California Attorney General, Sacramento, CA

Jim Sobolewski, Deputy Attorneys General, Office of the California Attorney General, Sacramento, CA

Nevarez v. Holder, No. 07-74271

In a petition for review of the BIA's denial of Petitioner's application for cancellation of removal, the petition is granted, where the District Court was required to determine the effect that Dada v. Mukasey, 128 S.Ct. 2307 (2008), may have on Petitioners' eligibility for cancellation of removal.

Read Nevarez v. Holder, No. 07-74271

Appellate Information

Argued and Submitted April 15, 2009

Filed July 8, 2009

Judges

Opinion by Judge Reinhardt

Counsel

For Petitioners:

Robert B. Jobe, Law Office of Robert B. Jobe, San Francisco, CA

Arwen Swink, Law Office of Robert B. Jobe, San Francisco, CA

For Respondent:

Gregory G. Katsas, United States Department of Justice, Washington, D.C.

Stormans, Inc. v. Selecky, No. 07-36039

In a First Amendment challenge to rules promulgated by the Washington State Board of Pharmacy requiring pharmacies to deliver lawfully prescribed FDA-approved medications, a preliminary injunction in favor of Plaintiffs is reversed, where the District Court erroneously treated Plaintiffs' as-applied challenge as a facial challenge.

Read Stormans, Inc. v. Selecky, No. 07-36039

Appellate Information

Argued and Submitted July 8, 2008

Filed July 8, 2009

Judges

Opinion by Judge Wardlaw

Concurrence by Judge Clifton

Counsel

For Appellants:

Alan D. Copsey, Assistant Attorney General, Olympia, WA

Rima J. Alaily, Seattle, WA

For Appellees:

Kristen K. Waggoner, Seattle, WA

Oregon Natural Desert Ass'n. v. Locke, No. 06-35851

In a Freedom of Information Act action involving a request for documents regarding the effects of livestock grazing on Upper and Middle Columbia River Steelhead, the award of attorney's fees to Plaintiff is affirmed in part, where the District Court ruled in Plaintiff's favor on its Administrative Procedure Act claim, but reversed in part, where Defendants provided certain documents Plaintiff requested before the District Court ordered that they be turned over and thus Plaintiff was not a "prevailing party" with respect to those documents.

Read Oregon Natural Desert Ass'n. v. Locke, No. 06-35851

Appellate Information

Argued and Submitted October 21, 2008

Filed July 8, 2009

Judges

Opinion by Judge Thompson

Counsel

For Appellant:

Mark W. Pennak, United States Department of Justice, Washington, DC

For Appellee:

Peter M. Lacy, Portland, OR

Vinole v. Countrywide Home Loans, Inc., No. 08-55223

In a class action for failure to pay overtime brought by current and former Countrywide External Home Loan Consultants, the denial of class certification is affirmed where no rule or decisional authority prohibited Defendant from filing its motion to deny certification before Plaintiffs filed their motion to certify, and Plaintiffs had ample time to prepare and present their certification argument.

Read Vinole v. Countrywide Home Loans, Inc., No. 08-55223

Appellate Information

Argued and Submitted February 5, 2009

Filed July 7, 2009

Judges

Opinion by Judge Callahan

Counsel

For Appellant:

Michael D. Singer, Cohelan, Khoury & Singer

For Appellee:

Thomas R. Kaufman, Seyfarth Shaw LLP

Doe v. Abbott Labs., No. 08-17699

In an antitrust action alleging monopoly leveraging in an HIV drug market, the denial of summary judgment to Defendants is reversed, where allegations of monopoly leveraging through pricing conduct in two markets does not state a claim under Section 2 of the Sherman Act absent an antitrust refusal to deal in the monopoly market or below-cost pricing in the second market.

Read Doe v. Abbott Labs., No. 08-17699

Appellate Information

Argued and Submitted May 13, 2009

Filed July 7, 2009

Judges

Opinion by Judge Rymer

Counsel

For Appellant:

James F. Hurst, Winston & Strawn LLP, Chicago, IL

Jeffrey I. Weinberger, Munger, Tolles & Olson LLP, Los Angeles, CA

For Appellees:

Richard R. Wiebe, Law Office of Richard R. Wiebe, San Francisco, CA

Mevorah v. Wells Fargo Home Mortgage, No. 08-15355

In a class action alleging failure to pay overtime brought by current and former Wells Fargo home mortgage consultants, the District Court's order certifying a class is reversed where the District Court abused its discretion by relying on Defendant's uniform policy of treating its employees as exempt from overtime laws, to the near exclusion of other relevant factors touching on predominance.

Read Mevorah v. Wells Fargo Home Mortgage, No. 08-15355

Appellate Information

Argued and Submitted February 5, 2009

Filed July 7, 2009

Judges

Opinion by Judge Mills

Counsel

For Appellant:

Lindbergh Porter, Jr., Littler Mendelson, P.C., San Francisco, CA

For Appellees:

Kevin J. McInerney, McInerney & Jones, Reno, NV

Ali v. Hickman, No. 07-16731

In a murder prosecution, Petitioner's habeas petition is granted, where a comparative juror analysis, in combination with other facts in the record, demonstrated that the prosecutor's purported race-neutral reasons for striking at least one of the jurors were pretexts for racial discrimination.

Read Ali v. Hickman, No. 07-16731

Appellate Information

Argued and Submitted December 12, 2008

Filed July 7, 2009

Judges

Opinion by Judge Berzon

Counsel

For Appellant:

Albert Joel Kutchins, Berkeley, CA

For Appellee:

Michele Swanson, Office of the California Attorney General, San Francisco, CA

Nelson v. Davis, No. 07-16905

In a 42 U.S.C. section 1983 action based on allegedly excessive force by police, summary judgment for Defendants is reversed where the "sham affidavit" rule does not preclude the introduction of testimony from other witnesses that is arguably inconsistent with a plaintiff's deposition testimony.

Read Nelson v. Davis, No. 07-16905

Appellate Information

Argued and Submitted March 13, 2009

Filed July 7, 2009

Judges

Opinion by Judge Thomas

Counsel

For Appellant:

John L. Burris, Law Offices of John L. Burris, Oakland, CA

Adanté D. Pointer, Law Offices of John L. Burris, Oakland, CA

For Appellees:

J. Scott Smith, Angelo, Kilday & Kilduff, Sacramento, CA

Douglas R. Thorn, Angelo, Kilday & Kilduff, Sacramento, CA

US v. Ringgold, No. 06-10492

Defendant's firearm possession sentence is affirmed, where a District Court does not abuse its discretion by declining to consider the disparity between a recommended Guidelines sentence and the maximum sentence a defendant would receive if convicted of the same conduct in state court.

Read US v. Ringgold, No. 06-10492

Appellate Information

Argued and Submitted December 15, 2008

Filed July 7, 2009

Judges

Opinion by Judge Thomas

Counsel

For Appellant:

Barry J. Portman, Federal Public Defender, Oakland, CA

For Appellee:

Joseph P. Russoniello, United States Attorney, San Francisco, CA

W.S. Wilson Leung, Assistant United States Attorney, San Francisco, CA

Herrera v. US Citizenship & Imm. Servs., No. 08-55493

In an action seeking review of the revocation of Plaintiff's visa, summary judgment for Defendants is affirmed, where the enactment of 8 U.S.C. section 1155 did not alter the Citizenship and Immigration Services' authority to revoke its previous approval of a visa petition "at any time" for "good and sufficient cause."

Read Herrera v. US Citizenship & Imm. Servs., No. 08-55493

Appellate Information

Argued and Submitted May 4, 2009

Filed July 6, 2009

Judges

Opinion by Judge Graber

Counsel

For Appellants:

John B. Bartos, The Miller Law Offices, Studio City, CA

Charles M. Miller, The Miller Law Offices, Studio City, CA

For Appellee:

Sherease Pratt, Office of Immigration Litigation, United States Department of Justice, Washington, DC

US v. Old Chief, No. 08-30317

Defendant's assault sentence is affirmed, where Defendant restrained the victim and thus assisted another person in stabbing the victim, and accordingly the District Court properly applied the enhancement under U.S.S.G. section 3A1.3 for physical restraint.

Read US v. Old Chief, No. 08-30317

Appellate Information

Argued and Submitted June 5, 2009

Filed July 6, 2009

Judges

Opinion by Judge Goodwin

Counsel

For Appellants:

J. Mayo Ashley, Helena, MT

Evangelo Arvanetes, Assistant Federal Public Defender, Great Falls, MT

For Appellee:

Carl E. Rostad, Assistant United States Attorney, Great Falls, MT

Popa v. Holder, No. 05-76507

Petitioner's petition for review of the BIA's order of removal is denied, where the BIA is permitted to provide notice of removal proceedings to an alien using a two-step process: 1) sending a Notice to Appear stating that the date and time of the hearing will be provided later; and 2) later sending notice of the date and time.

Read Popa v. Holder, No. 05-76507

Appellate Information

Argued and Submitted June 9, 2009

Filed July 6, 2009

Judges

Opinion by Judge Bea

Counsel

For Petitioner:

Jagdip Singh Sekhon, Sekhon & Sekhon, San Francisco, CA

For Respondent:

Peter D. Keisler, Assistant Attorney General, Washington, DC

In a trademark infringement action involving the enzyme-based dietary supplement Wobenzym, the District Court's preliminary injunction requiring Defendant to cease selling a dietary supplement is affirmed in part, where Defendant did not meet its burden to prove that Plaintiff ceased production of the supplement; but vacated in part, where a District Court must find a substantial risk of danger to the public or other special circumstances in order to enter an interlocutory order recalling a product in a trademark infringement case.

Read Marilyn Nutraceuticals, Inc. v. Mucos Pharma GBMH & Co., No. 08-15101

Appellate Information

Argued and Submitted October 20, 2008

Filed July 2, 2009

Judges

Opinion by Judge Thomas

Counsel

For Appellant:

Maria Salapska, Law Offices of Maria Salapska, PLLC, Phoenix, AZ

Paul M. Levine, McCarthy Holthus Levine, Phoenix, AZ

For Appellee:

Paul F. Donahue, K&L Gates LLP, Chicago, IL

Jason M. Marks, Bell, Boyd & Lloyd LLP, Chicago, IL

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Bible v. Ryan, No. 07-99017

In a capital habeas matter, the denial of Petitioner's petition is affirmed, where Petitioner was not prejudiced by any of his counsel's alleged errors during the sentencing phase of his trial, because there was no reasonable probability that the sentencing judge would have reached a different result in the absence of the alleged errors.

Read Bible v. Ryan, No. 07-99017

Appellate Information

Argued and Submitted March 26, 2009

Filed July 1, 2009

Judges

Opinion by Judge Gould

Counsel

For Appellant:

Daniel D. Maynard, Maynard Cronin Erickson Curran & Sparks, PLC, Phoenix, AZ

For Appellee:

Terry Goddard, Office of the Attorney General for Arizona, Phoenix, AZ

Kent Cattani, Office of the Attorney General for Arizona, Phoenix, AZ

Robert J. Gorman, Office of the Attorney General for Arizona, Phoenix, AZ

J.D. Nielsen, Office of the Attorney General for Arizona, Phoenix, AZ