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

US v. Ruehle, No. 09-50161

In an options backdating prosecution of a former Broadcom executive, the district court's order suppressing all evidence reflecting defendant's statements to attorneys from Broadcom's outside counsel regarding the stock option granting practices at Broadcom is reversed where, by approaching the exclusion question with a presumption that the privilege attached, the district court inverted the burden of proof, improperly placing the onus on the government to show what information was not privileged.

Read US v. Ruehle, No. 09-50161

Appellate Information

Argued and Submitted September 1, 2009

Filed September 30, 2009

Judges

Opinion by Judge Tallman

Counsel

For Appellant:

Daniel B. Levin, Gregory W. Staples and Andrew D. Stopler, United States
Attorney's Office, Los Angeles, CA

For Appellee:

Matthew D. Umhofer, Richard Marmaro and Matthew E. Sloan, Skadden, Arps, Slate, Meagher & Flom LLP, Los Angeles, CA

Indergard v. Georgia-Pacific Corp., No. 08-35278

In an action claiming that defendant-employer violated the Americans with Disabilities Act (ADA) by terminating plaintiff based on her failure to pass a physical capacity evaluation, summary judgment for defendant is reversed where the district court erred in holding that the evaluation was not a medical examination within the meaning of 42 U.S.C. section 12112(d)(4)(A).

Read Indergard v. Georgia-Pacific Corp., No. 08-35278

Appellate Information

Argued and Submitted June 4, 2009

Filed September 28, 2009

Judges

Opinion by Judge Goodwin

Dissent by Judge O'Scannlain

Counsel

For Appellant:

Kerry M.L. Smith, Smith & Fjelstad, Gresham, OR

For Appellee:

Scott G. Seidman, Tonkon Torp LLP, Portland, OR

Hunter v. Philip Morris USA, No. 07-35916

In a product liability action against a tobacco company, the dismissal of the action on preemption grounds is reversed where the district court erroneously allowed defendants to achieve diversity jurisdiction by its incorrect finding that plaintiffs' state law claims were preempted and constituted fraudulent joinder.

Read Hunter v. Philip Morris USA, No. 07-35916

Appellate Information

Argued and Submitted August 4, 2008

Submission Vacated and Deferred October 29, 2008

Resubmitted August 27, 2009

Filed September 28, 2009

Judges

Opinion by Judge Tashima

Counsel

For Appellants:

Don C. Bauermeister, Burke & Bauermeister, PLLC, Anchorage, AK

For Appellees:

John W. Phillips, Phillips Law Group, PLLC, Seattle, WA

Guggenheim v. Goleta, No. 06-56306

In a Takings Clause challenge to a city's mobile home rent control ordinance, summary judgment for defendants is reversed where: 1) the city forfeited its right to argue that plaintiffs' action was not ripe; 2) a facial challenge under Penn Central existed as a viable legal claim; and 3) the regulation was invalid considering (a) the economic impact of the regulation on the claimant; (b) the extent to which the regulation has interfered with investment-backed expectations; and (c) the character of the governmental action.

Read Guggenheim v. Goleta, No. 06-56306

Appellate Information

Argued and Submitted April 7, 2008

Filed September 28, 2009

Judges

Opinion by Judge Bybee

Dissent by Judge Kleinfeld

Counsel

For Appellants:

Mark D. Alpert, Robert S. Coldren, and C. William Dahlin, Santa Ana, CA

For Appellee:

Julie Hayward Biggs and Amy E. Morgan, Los Angeles, CA

US v. Samueli, No. 08-50417

In a criminal prosecution against the co-founder of Broadcom alleging that defendant made a false statement to the SEC, defendant's appeal from two orders by the district court rejecting his plea bargain is dismissed for lack of jurisdiction where: 1) a plea-rejection order is not completely separate from the merits; and 2) the plea-rejection order was effectively reviewable on appeal from a final judgment.

Read US v. Samueli, No. 08-50417

Appellate Information

Argued and Submitted September 2, 2009

Filed September 24, 2009

Judges

Opinion by Judge Gould

Counsel

For Appellant:

Gordon A. GreenbergMcDermott Will & Emery, LLP, Los Angeles, California

For Appellee:

George S. Cardona, Robb Adkins, Assistant United States Attorneys, and Thomas P. O'Brien, United States Attorney, Los Angeles, California

US v. Sipai, No. 08-10300

In an appeal from the district court's denial of defendant's motion for reduction of his drug and firearm possession sentence under 18 U.S.C. section 3582(c)(2), the district court's order is affirmed where the district court rejected defendant's applicable guidelines range, and reduced defendant's sentence pursuant to the 18 U.S.C. section 3553 factors, and thus any further reduction would not be consistent with the Sentencing Commission's policy statements.

Read US v. Sipai, No. 08-10300

Appellate Information

Argued and Submitted March 9, 2009

Filed September 24, 2009

Judges

Opinion by Judge Hug

Counsel

For Appellant:

Rebecca Sullivan Silbert

For Appellee:

Tracie L. Brown

US v. Watson, No. 08-10385

In an appeal challenging a condition of defendant's supervised release barring him from entering San Francisco without the prior approval of his probation officer, the appeal is dismissed where: 1) the condition was reasonably tied to the court's stated aims of rehabilitation and deterrence and was no more restrictive than reasonably necessary to serve those purposes; and 2) the language of defendant's plea agreement waiver encompassed the appeal, and the waiver was knowingly and voluntarily made given the circumstances surrounding the agreement.

Read US v. Watson, No. 08-10385

Appellate Information

Argued and Submitted July 13, 2009

Filed September 23, 2009

Judges

Opinion by Judge Clifton

Counsel

For Appellant:

Scott A. Sugarman

For Appellee:

William Frentzen

Erika R. Frick

US v. Bragg, No. 08-10221

Defendant's sentence for filing false tax returns is vacated where the district court failed to adequately explain the grounds for the sentence because: 1) the record was not clear that defendant's incarceration would harm his father's business; 2) the district court understated the severity of the offense; and 3) the district court improperly relied on prompt satisfaction of a substantial monetary sanction to impose a non-custodial sentence.

Read US v. Bragg, No. 08-10221

Appellate Information

Argued February 9, 2009

Submitted September 17, 2009

Judges

Opinion by Judge Noonan

Dissent by Judge Smith

Counsel

For Appellant:

Mark Determan

For Appellee:

Anthony E. Colombo

US v. Lemus, No. 08-50403

Defendant's firearm possession conviction is affirmed where the district court properly denied defendant's motion to suppress the firearm at issue because the area in which the police officers discovered the incriminating evidence immediately adjoined the place of arrest, and thus the officers were justified in conducting a search of that area without either probable cause or reasonable suspicion.

Read US v. Lemus, No. 08-50403

Appellate Information

Submitted June 1, 2009

Filed September 22, 2009

Judges

Opinion by Judge Bybee

Counsel

For Appellant:

Jeremy D. Warren

For Appellee:

Kyle W. Hoffman

Bruce R. Castetter

Sharer v. Oregon, No. 08-35396

In a disability discrimination action under the Rehabilitation Act (the Act), summary judgment for defendants is affirmed where Oregon's Office of Public Defense Services was not a "program or activity receiving Federal financial assistance" within the meaning of section 504 of the Act during the period of alleged discrimination and thus the state did not waive its sovereign immunity with respect to that agency.

Read Sharer v. Oregon, No. 08-35396

Appellate Information

Argued and Submitted June 3, 2009

Filed September 21, 2009

Judges

Opinion by Judge Fisher

Counsel

For Appellants:

Stephen L. Brischetto, Portland, OR

For Appellees:

Leigh A. Salmon, Assistant Attorney General, Salem, OR

Chioino v. Kernan, No. 08-15265

In a state robbery prosecution, grant of petitioner's habeas petition is reversed where the district court erred in reducing petitioner's sentence instead of remanding to the California trial court for resentencing, because the district judge's role in the habeas proceeding was solely to ensure that petitioner's sentence was constitutionally determined.

Read Chioino v. Kernan, No. 08-15265

Appellate Information

Submitted July 16, 2009

Filed September 21, 2009

Judges

Opinion by Judge Smith

Counsel

For Appellant:

Peggy S. Ruffra, Supervising Deputy Attorney General

Jeffrey M. Laurence, Deputy Attorney General, San Francisco, CA

For Appellee:

Mary McNamara, Swanson, McNamara & Haller LLP, San Francisco, CA

August Gugelmann, Swanson, McNamara & Haller LLP, San Francisco, CA

US v. Grajeda, No. 07-50387

Defendant's sentence for illegal reentry into the US is affirmed where: 1) a prior conviction for a violation of California Penal Code section 245(a)(1) qualifies as a "crime of violence" within the meaning of U.S.S.G. section 2L1.2(b)(1)(A)(ii); and 2) because defendant's objections to the presentence report were legal, not factual, the district court was not required to make any factual determinations, and so committed no error.

Read US v. Grajeda, No. 07-50387

Appellate Information

Argued and Submitted May 7, 2008

Filed September 21, 2009

Judges

Opinion by Judge Paez

Counsel

For Appellant:

Vincent J. Brunkow, Federal Defenders of San Diego, Inc., San Diego, CA

For Appellee:

Bruce R. Castetter, Assistant U.S. Attorney, San Diego, CA

Eugene S. Litvinoff, Assistant U.S. Attorney, San Diego, CA

APL Co. Pte. Ltd. v. UK Aerosols Ltd., No. 07-16739

In an action based on defendants' shipping of defective products, summary judgment for plaintiff is affirmed where: 1) defendants were not "shippers" entitled to the protection of section 1304(3) of the Carriage of Goods by Sea Act (COGSA); and 2) the bill of lading at issue did not violate COGSA.  However, the district court's denial of plaintiff's motion for attorney's fees is reversed where plaintiff did not waive the right to contend that Singapore law governed the bill of lading.

Read APL Co. Pte. Ltd. v. UK Aerosols Ltd., No. 07-16739

Appellate Information

Argued and Submitted March 12, 2009

Filed September 21, 2009

Judges

Opinion by Judge Wallace

Counsel

For Appellants:

Marilyn Raia, Bullivant Houser Bailey PC, San Francisco, CA

Norman J. Ronneberg Jr., Bullivant Houser Bailey PC, San Francisco, CA

For Appellee:

Charles S. Donovan, Sheppard, Mullin, Richter & Hampton LLP, San Francisco, CA

Amy B. Norris, Sheppard, Mullin, Richter & Hampton LLP, San Francisco, CA

Hamilton v. Ayers, No. 06-99008

In a capital habeas matter, the denial of the petition is affirmed as to petitioner's guilt where: 1) petitioner failed to claim potential or actual bias on the part of a juror; 2) there was no reasonable probability that the outcome of the guilt phase of the trial would have been different had suppressed evidence regarding a witness's plea agreement been introduced.  However, the denial of the petition is reversed as to the penalty phase where trial counsel was constitutionally ineffective for failing to investigate and present to the jury the wealth of classic mitigating evidence that was available to him.

Read Hamilton v. Ayers, No. 06-99008

Appellate Information

Argued and Submitted January 20, 2009

Filed September 18, 2009

Judges

Opinion by Judge Wardlaw

Counsel

For Petitioner:

Katherine L. Hart, Law Offices of Katherine L. Hart, Fresno, CA

Saor E. Stetler, Law Offices of Saor E. Stetler, Mill Valley, CA

For Respondent:

Catherine Chatman, Deputy Attorney General, Office of the California Attorney General, Sacramento, CA

US v. Contreras, No. 08-50126

Defendant's drug conspiracy sentence is reversed where the district court erred by applying an enhancement for abuse of trust, because defendant's position as a prison cook did not involve any "professional or managerial discretion."

Read US v. Contreras, No. 08-50126

Appellate Information

Argued and Submitted November 19, 2008

Filed September 17, 2009

Judges

Opinion by Judge Tashima

Counsel

For Appellant:

Thomas W. Kielty, Los Angeles, CA

For Appellee:

Michael Jay Stern, Assistant U.S. Attorney, Los Angeles, CA

Rosemere Neighborhood Ass'n. v. EPA, No. 08-35045

In an action under the Administrative Procedure Act seeking to compel action by the Environmental Protection Agency on plaintiff's complaint that a city failed properly to utilize EPA funds to address environmental problems, dismissal of the action on mootness grounds is reversed where the voluntary cessation exception to the mootness doctrine applied.

Read Rosemere Neighborhood Ass'n. v. EPA, No. 08-35045

Appellate Information

Argued and Submitted April 14, 2009

Filed September 17, 2009

Judges

Opinion by Judge Tashima

Counsel

For Appellant:

Christopher Winter, Crag Law Center, Portland, OR

For Appellees:

Rebecca Shapiro Cohen, Assistant U.S. Attorney, Seattle, WA

Castillo-Cruz v. Holder, No. 06-70896

In a petition for review of the BIA's denial of petitioner's application for cancellation of removal, the petition is granted in part where: 1) the BIA erred in characterizing receipt of stolen property as a crime of moral turpitude; and 2) the BIA needed to decide whether petitioner's petty theft conviction fell within the petty offenses exception of the Immigration and Nationality Act.  However, the petition is denied in part where the BIA correctly determined that petitioner's conviction for petty theft constituted a crime of moral turpitude.

Read Castillo-Cruz v. Holder, No. 06-70896

Appellate Information

Argued and Submitted May 12, 2009

Filed September 17, 2009

Judges

Opinion by Judge Reinhardt

Counsel

For Appellant:

Charles E. Nichol, San Francisco, CA

For Appellee:

Colette J. Winston, United States Department of Justice, Washington, DC

Art Attacks Ink, LLC v. MGA Entmt. Inc., No. 07-56110

In a copyright, trademark, and trade dress infringement action, judgment as a matter of law for defendant on copyright and trade dress infringement claims is affirmed where: 1) defendant did not timely move for judgment as a matter of law, but the time limit under Fed. R. Civ. P. 50(b) is not jurisdictional; and 2) plaintiff failed to demonstrate that defendant had access to plaintiff's copyrighted works or that plaintiff's trade dress had acquired secondary meaning.

Read Art Attacks Ink, LLC v. MGA Entmt. Inc., No. 07-56110

Appellate Information

Argued and Submitted December 9, 2008

Filed September 16, 2009

Judges

Opinion by Judge Pregerson

Counsel

For Appellant:

Michael W. Quade, Quade & Associates, San Diego, CA

For Appellee:

Craig Holden, MGA Entertainment, Inc., Van Nuys, CA

US v. Montalvo, No. 07-16762

In a drug prosecution, denial of defendant's motion to correct his sentence pursuant to a prior version of Federal Rule of Criminal Procedure 35(a) is affirmed where: 1) there is no material difference between the "discretionary" life term authorized by 21 U.S.C. section 848(a) and the "mandatory" life term authorized by section 848(b); 2) defendant could not challenge the process by which his sentence was imposed under Rule 35(a); and 3) Rule 35(a) did not permit defendant to raise the argument that the district court erred in finding facts relevant to the sentence without submitting those facts to the jury.

Read US v. Montalvo, No. 07-16762

Appellate Information

Argued and Submitted March 10, 2009

Filed September 16, 2009

Judges

Opinion by Judge Wallace

Counsel

For Appellant:

Richard B. Mazer, Law Offices of Richard B. Mazer, San Francisco, CA

For Appellee:

Phillip A. Talbert, Assistant United States Attorney, Chief of Appeals, Sacramento, CA

US v. Chaney, No. 08-10298

In a drug prosecution, a denial of defendant's 18 U.S.C. section 3582(c)(2) motion for a reduced sentence is affirmed where section 3582(c)(2) does not require the district court to determine at all what sentence it would have imposed had Amendment 706 to the Sentencing Guidelines been in effect at the original sentencing, much less to do so mandatorily prior to determining whether a reduction is appropriate.

Read US v. Chaney, No. 08-10298

Appellate Information

Argued and Submitted June 8, 2009

Submission Vacated June 10, 2009

Resubmitted August 5, 2009

Judges

Opinion by Judge Hawkins

Counsel

For Appellant:

David M. Porter, Assistant Federal Public Defender, Sacramento, CA

For Appellee:

Philip A. Ferrari, Assistant United States Attorney, Sacramento, CA

LVRC Holdings LLC v. Brekka, No. 07-17116

In an action claiming that defendant violated the Computer Fraud and Abuse Act (CFAA) by accessing plaintiff's computer without authorization, both while defendant was employed by plaintiff and after he left the company, summary judgment for defendant is affirmed where: 1) defendant was authorized to use plaintiff's computers while he was employed by plaintiff, and thus he did not access a computer "without authorization" in violation of the applicable statutes when he emailed documents to himself and to his wife prior to leaving employment; and 2) plaintiff failed to establish the existence of a genuine issue of material fact as to whether defendant accessed plaintiff's website without authorization after he left the company.

Read LVRC Holdings LLC v. Brekka, No. 07-17116

Appellate Information

Argued and Submitted March 13, 2009

Filed September 15, 2009

Judges

Opinion by Judge Ikuta

Counsel

For Appellant:

Thomas G. Grace, Las Vegas, NV

For Respondent:

Norman H. Kirshman, Las Vegas, NV

Montour v. Hartford Life & Accident Ins. Co., No. 08-55803

In an ERISA action challenging defendant-insurer's decision to terminate plaintiff's long-term disability benefits, summary judgment for defendant is reversed where a modicum of evidence in the record supporting the plan administrator's decision will not alone suffice in the face of the administrator's conflict of interest.

Read Montour v. Hartford Life & Accident Ins. Co., No. 08-55803

Appellate Information

Argued and Submitted February 10, 2009

Filed September 14, 2009

Judges

Opinion by Judge Clifton

Counsel

For Appellants:

Bradley P. Knypstra, Knypstra & Associates, Irvine, CA

For Appellee:

Bruce D. Celebrezze, Sedgwick, Detert, Moran & Arnold LLP, San Francisco, CA

Dennis G. Rolstad, Sedgwick, Detert, Moran & Arnold LLP, San Francisco, CA

Center for Biological Diversity v. US Dept. of Interior, No. 07-16423

In an action claiming that the Bureau of Land Managementss (BLM) approval of a land exchange transferring ownership of a certain parcel to a mining company violated the National Environmental Policy Act (NEPA), summary judgment for defendants is reversed where the Final Environmental Impact Statement prepared by the BLM contained no comparative analysis of the environmental consequences for the different alternatives proposed and thus violated the NEPA.

Read Center for Biological Diversity v. US Dept. of Interior, No. 07-16423

Appellate Information

Argued and Submitted July 17, 2009

Filed September 14, 2009

Judges

Opinion by Judge W. Fletcher

Dissent by Judge Tallman

Counsel

For Appellants:

Roger Flynn, Western Mining Action Project, Lyons, CO

Jeffrey C. Parsons, Western Mining Action Project, Lyons, CO

For Appellees:

Edward S. Geldermann, U.S. Department of Justice, Washington, DC

Mark R. Haag, U.S. Department of Justice, Washington, DC

Verdugo-Gonzalez v. Holder, No. 06-73733

In a petition for review of an order removing petitioner from the U.S., the petition is denied where petitioner's felony conviction for receipt of stolen property under California Penal Code section 496(a) categorically constituted an aggravated felony under the Immigration and Nationality Act.

Read Verdugo-Gonzalez v. Holder, No. 06-73733

Appellate Information

Argued and Submitted July 17, 2009

Filed September 14, 2009

Judges

Opinion by Judge Clifton

Counsel

For Petitioner:

Kristine L. Wilkes, Latham & Watkins LLP, San Francisco, CA

Lola A. Kingo, Latham & Watkins LLP, San Francisco, CA

For Respondent:

Shelley R. Goad, Senior Litigation Counsel, United States Department of Justice, Washington, DC

Zoe J. Heller, United States Department of Justice, Washington, DC

Schad v. Ryan, No. 07-99005

In a capital habeas matter, a denial of the petition is affirmed in part where the prosecution's failure to produce letters written by the prosecutor on behalf of a government witness resulted in little or no prejudice, given the extensive impeachment material already available to the defense.  However, the denial of the petition is vacated in part where the district court applied the wrong diligence standard to deny petitioner an evidentiary hearing on his penalty phase ineffectiveness claim.

Read Schad v. Ryan, No. 07-99005

Appellate Information

Argued and Submitted May 14, 2009

Filed September 11, 2009

Judges

Per Curiam

Partial Concurrence and Partial Dissent by Judge Rymer

Counsel

For Appellant:

Kelley J. Henry, Nashville, TN

For Appellee:

Jon G. Anderson, Phoenix, AZ

Zepeda v. Walker, No. 08-56085

In an attempted murder prosecution, dismissal of petitioner's habeas petition as untimely is affirmed where the verification requirement for a California habeas petition was so important under California law that, where a petitioner is denied the opportunity to provide a verification upon filing, he must provide one prior to any judicial proceeding.

Read Zepeda v. Walker, No. 08-56085

Appellate Information

Submitted September 1, 2009

Filed September 10, 2009

Judges

Opinion by Judge Tallman

Counsel

For Petitioner:

Lorilee M. Gates, Pasadena, CA

For Respondent:

Kenneth C. Byrne, Supervising Deputy Attorney General, Los Angeles, CA

Michael R. Johnsen, Deputy Attorney General, Los Angeles, CA

US v. Johnson, No. 08-30094

Defendant's firearm possession conviction and sentence is affirmed where: 1) the record amply supported a "stop and frisk" search of defendant's vehicle under Terry v. Ohio, 392 U.S. 1 (1968); and 2) the government presented an adequate reason for declining to file the discretionary motion for downward departure, a reason that could not fairly be characterized as arbitrary or based on an unconstitutional motive.

Read US v. Johnson, No. 08-30094

Appellate Information

Argued and Submitted January 23, 2009

Filed September 10, 2009

Judges

Opinion by Judge Tallman

Partial Concurrence and Partial Dissent by Judge Smith

Counsel

For Appellant:

M.J. Haden, Office of the Federal Public Defender for the District of Alaska, Anchorage, AK

For Appellee:

Erin E. White, United States Attorney's Office for the District of Alaska, Anchorage, AK

MacDonald v. Kahikolu, Ltd., No. 08-15239

In a personal injury action based on injuries plaintiff suffered while diving from defendant's ship, judgment for defendant is affirmed where the rule from The Pennsylvania, 86 U.S. (1 Wall.) 125 (1873), which puts on the ship owner the burden of proving that its violation of a statute or regulation did not cause the injury, did not apply because there must be a threshold causal connection between the violation and the injury before the Rule will apply.

Read MacDonald v. Kahikolu, Ltd., No. 08-15239

Appellate Information

Argued and Submitted June 12, 2009

Filed September 10, 2009

Judges

Opinion by Judge B. Fletcher

Counsel

For Appellant:

John R. Hillsman, McGuinn, Hillsman & Palefsky, San Francisco, CA

For Appellee:

Richard C. Wootton, Cox, Wootton, Griffin, Hansen & Poulos, LLP, San Francisco, CA

Mitchell S. Griffin, Cox, Wootton, Griffin, Hansen & Poulos, LLP, San Francisco, CA

US v. Juvenile Male, No. 07-30290

In an appeal from a juvenile defendant's sentence for violating the terms of his supervised release, the district court's requirement that defendant register as a sex offender under the Sex Offender Registration and Notification Act (SORNA) is reversed where the retroactive application of SORNA's provision covering individuals who were adjudicated juvenile delinquents because of the commission of certain sex offenses before SORNA's passage violated the Ex Post Facto Clause.

Read US v. Juvenile Male, No. 07-30290

Appellate Information

Argued and Submitted April 7, 2008

Filed September 10, 2009

Judges

Opinion by Judge Reinhardt

Counsel

For Appellant:

Anthony R. Gallagher, Federal Defender, District of Montana,

For Appellee:

Richard A. Hosley, United States Attorney

Marin Gen'l. Hosp. v. Modesto & Empire Traction Co., No. 07-16518

In an action seeking payments under a disability insurance plan, the dismissal of the complaint on ERISA preemption grounds is reversed where 29 U.S.C. section 1132(a)(1)(B) did not completely preempt plaintiff's purely state-law action for breach of contract, negligent misrepresentation, quantum meruit and estoppel.

Read Marin Gen'l. Hosp. v. Modesto & Empire Traction Co., No. 07-16518

Appellate Information

Argued and Submitted January 16, 2009

Filed September 10, 2009

Judges

Opinion by Judge W. Fletcher

Counsel

For Appellant:

Viola Rita Brown, Stephenson Acquisto & Colman, Burbank, CA

Gregory C. Lehman, Stephenson Acquisto & Colman, Burbank, CA

For Appellees:

Bradley Alan Post, Borton Petrini LLP, Fresno, CA

Christopher H. White, Ross Dixon & Bell, Chicago, IL

EEOC v. Go Daddy Software, Inc., No. 07-16190

In an action by the EEOC claiming that defendant terminated an employee in retaliation for engaging in protected activity, judgment for plaintiff is affirmed where: 1) there was sufficient evidence for a reasonable jury to conclude that plaintiff complained of discrimination based on his religion; and 2) the jury could reasonably conclude that the employee had the option of returning to his original sales position at defendant company.

Read EEOC v. Go Daddy Software, Inc., No. 07-16190

Judges

Opinion by Judge W. Fletcher

Dissent by Judge Noonan

Counsel

For Appellant:

Fred W. Alvarez, Wilson Sonsini Goodrich & Rosati, P.C., Palo Alto, CA

Michael J. Nader, Wilson Sonsini Goodrich & Rosati, P.C., Palo Alto, CA

For Appellee:

James M. Tucker, EEOC, Washington, DC

Delgado-Hernandez v. Holder, No. 08-70789

In a petition for review of the BIA's final order removing petitioner from the U.S., the order is affirmed where the BIA did not err in determining that petitioner's conviction for attempted kidnapping under California Penal Code section 207(a) was an aggravated felony because it was categorically a crime of violence.

Read Delgado-Hernandez v. Holder, No. 08-70789

Appellate Information

Submitted September 1, 2009

Filed September 9, 2009

Judges

Per Curiam

Counsel

For Petitioner:

Jaime Lasso, Westlake Village, California for the petitioner.

For Respondent:

T. Bo Stanton, Trial Attorney, Office of Immigration Litigation, Washington, DC

Susan K. Houser, Senior Litigation Counsel, Office of Immigration Litigation, Washington, DC

US v. Charles, No. 08-50086

Defendant's drug and firearm sentence is affirmed where the district court did not plainly err in determining that defendant qualified as a career offender based on his prior convictions under California Health and Safety Code section 11351.5, which constitutes a controlled substance offense.

Read US v. Charles, No. 08-50086

Appellate Information

Argued and Submitted August 3, 2009

Filed September 9, 2009

Judges

Opinion by Judge Callahan

Counsel

Benjamin Lee Coleman, Coleman & Balogh LLP, Los Angeles, CA

E. Martin Estrada, Assistant United States Attorney, Los Angeles, CA

Disability Law Ctr. v. Anchorage Sch. Dist., No. 08-35057

In an action by a child protection agency seeking contact information for the guardians or legal representatives of students in a special education class in which mistreatment of students was alleged, dismissal of the action is reversed where: 1) the district court erred in holding that probable cause under the Developmental Disabilities Act (DD Act) required some showing that abuse and neglect were ongoing or likely to recur; and 2) the Federal Educational Rights and Privacy Act did not override plaintiff's authority under the DD Act to demand guardian or representative contact information from the school district.

Read Disability Law Ctr. v. Anchorage Sch. Dist., No. 08-35057

Appellate Information

Argued and Submitted February 11, 2009

Filed September 9, 2009

Judges

Opinion by Judge Farris

Counsel

For Appellant:

Megan K. Allison, Disability Law Center of Alaska, Anchorage, AK

Holly Johanknecht, Disability Law Center of Alaska, Anchorage, AK

For Appellee:

Bradley D. Owens, Jermain, Dunnagan & Owens, Anchorage, AK

Cheryl Mandala, Jermain, Dunnagan & Owens, Anchorage, AK

Khan v. Holder, No. 07-72586

In a petition for review of the BIA's decision denying petitioner's application for asylum and withholding of removal, the petition is denied where the Immigration Judge properly applied the terrorism bar in the Immigration and Nationality Act (INA) because the definition of "terrorist activity" under the INA does not provide an exception for armed resistance against military targets that is permitted under the international law of armed conflict.

Read Khan v. Holder, No. 07-72586

Appellate Information

Argued and Submitted February 11, 2009

Filed September 9, 2009

Judges

Opinion by Judge W. Fletcher

Concurrence by Judge Nelson

Counsel

For Petitioner:

Robert Bradford Jobe, Law Offices of Robert B. Jobe, San Francisco, CA

For Respondent:

Jeffrey Lawrence Menkin, U.S. Department of Justice, Washington, DC

Los Angeles v. Kern, No. 07-56564

In a dormant Commerce Clause action by recyclers challenging a local ordinance banning a particular method of waste disposal, summary judgment for plaintiffs is reversed in part with instructions to dismiss where the recyclers' injury was not even marginally related to the interests the Commerce Clause seeks to safeguard. The ruling is vacated and remanded in part where the circuit court's dismissal of the federal constitutional claim might materially alter the district court's decision to exercise supplemental jurisdiction over plaintiffs' preemption claim.

Read Los Angeles v. Kern, No. 07-56564

Appellate Information

Argued and Submitted March 2, 2009

Submission vacated March 19, 2009

Resubmitted September 9, 2009

Filed September 9, 2009

Judges

Opinion by Judge O'Scannlain

Counsel

For Appellants:

Steven L. Mayer, Howard Rice Nemerovski Canady Falk & Rabkin, San Francisco, CA

Adam Polakoff, Howard Rice Nemerovski Canady Falk & Rabkin, San Francisco, CA

For Appellees:

Thomas S. Hixon, Bingham McCutchen LLP, Los Angeles, CA

Marc R. Bruner, Bingham McCutchen LLP, Los Angeles, CA

Scharff v. Raytheon Co. Short-Term Disability Plan, No. 07-55951

In an ERISA action seeking benefits under plaintiffs' employer's disability plan, dismissal of the complaint is affirmed where, even if the doctrine of "reasonable expectations" applied here, the one-year contractual statute of limitations met its requirements and also met the statutory and regulatory standards for disclosure.

Read Scharff v. Raytheon Co. Short-Term Disability Plan, No. 07-55951

Appellate Information

Submitted May 7, 2009

Filed September 9, 2009

Judges

Opinion by Judge Graber

Dissent by Judge Pregerson

Counsel

For Appellant:

Peter S. Sessions, Kantor & Kantor LLP, Northridge, CA

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

For Appellees:

Ariadne Staples, Metropolitan Life Insurance Company, Long Island City, NY

Robert K. Renner, Barger & Wolen LLP, Irvine, CA

Fleming v. Pickard, No. 07-35979

In an action under the Fair Debt Collection Practices Act (FDCPA) alleging an improper debt collection lawsuit, judgment on the pleadings for defendants is affirmed where a cause of action for tortious conversion does not constitute a debt within the meaning of the FDCPA.

Read Fleming v. Pickard, No. 07-35979

Appellate Information

Submitted May 7, 2009

Filed September 9, 2009

Judges

Opinion by Judge Paez

Counsel

For Appellants:

James Sturdevant, Bellingham, WA

For Appellees:

Terence John Cullen, Forsberg & Umlauf, P.S., Seattle, WA

Susan Kathleen McIntosh, Forsberg & Umlauf, P.S., Seattle, WA

Jackson v. Rent-A-Center West, Inc., No. 07-16164

In an appeal from the district court's order dismissing plaintiff's 42 U.S.C. section 1981 race discrimination claim and compelling arbitration, the order is affirmed in part where the district court did not err in determining that the cost-sharing provision of the parties' arbitration agreement was not substantively unconscionable. However, the ruling is reversed in part and remanded where: 1) the question of whether the parties' agreement was unconscionable was for the court to decide; and 2) the district court failed to address whether certain provisions of the agreement were substantively unconscionable.

Read Jackson v. Rent-A-Center West, Inc., No. 07-16164

Appellate Information

Submitted November 21, 2008

Filed September 9, 2009

Judges

Opinion by Judge Thomas

Dissent by Judge Hall

Counsel

For Appellant:

Ian E. Silverberg, Hardy Law Group, Reno, NV

For Appellee:

Michael T. Garone, Schwabe, Williamson & Wyatt, Portland, OR

Gossett v. Czech, No. 06-16973

In a 42 U.S.C. section 1983 action claiming that defendant unlawfully took a portion of plaintiff-committed inmate's Department of Veterans Affairs (VA) benefits each month and applied the money to partially defray the cost of plaintiff's care at a state hospital, summary judgment for defendant is affirmed where 38 U.S.C. section 5301(a)(1), when read in combination with pertinent regulations such as 38 C.F.R. section 13.71, does not prohibit direct payments of VA benefits to a state hospital for ongoing veteran patient care.

Read Gossett v. Czech, No. 06-16973

Appellate Information

Argued and Submitted June 4, 2009

Filed September 9, 2009

Judges

Opinion by Judge Smith

Counsel

For Appellant:

Paul Gossett, pro se

Charles C. Lifland, O'Melveny & Myers LLP, Los Angeles, CA

For Appellee:

Harry T. Gower, Deputy Attorney General, San Francisco, CA

US v. $6,190.00 in US Currency, No. 08-35221

In an appeal from the district court's order striking claimant's claim to his assets in a civil forfeiture proceeding, the order is affirmed where: 1) 18 U.S.C. section 1956 authorized federal jurisdiction over forfeiture actions for proceeds of a violation of 18 U.S.C. section 1324, if that violation was for financial gain; and 2) 28 U.S.C. section 2466(a), the fugitive disentitlement statute, applied to claimants who were fugitives from state criminal proceedings.

Read US v. $6,190.00 in US Currency, No. 08-35221

Appellate Information

Argued and Submitted April 7, 2009

Filed September 8, 2009

Judges

Opinion by Judge W. Fletcher

Counsel

For Appellant:

Stephen R. Sady, Office of the Federal Public Defender, Portland, OR

For Appellee:

Leslie Jauanna Westphal, Office of the United States Attorney, Portland, OR

Robert David Nesler, Office of the United States Attorney, Portland, OR

US v. Bride, No. 08-30266

In an appeal from the district court's denial of defendant's motion to reduce his sentence under 18 U.S.C. section 3582(c)(2), the order is affirmed where the district court lacked authority to reduce defendant's sentence because the sentence, which was eleven years shorter than the low end of the applicable advisory Guidelines range, was not based on a sentencing range that had subsequently been lowered by the Sentencing Commission.

Read US v. Bride, No. 08-30266

Appellate Information

Argued and Submitted April 7, 2009

Filed September 8, 2009

Judges

Opinion by Judge Fletcher

Counsel

For Appellant:

Juanita Holmes, Law Offices of Ellis, Holmes & Witchley, PLLC, Seattle, WA

For Appellee:

Helen J. Brunner, Assistant United States Attorney, Seattle, WA

Nicholson v. Hyannis Air Serv., Inc., No. 08-15959

In an action claiming that defendant discriminated against plaintiff airline pilot on account of her sex when it suspended her from flying certain routes, summary judgment for defendant is reversed where: 1) crew resource management skills were a subjective qualification that could not be considered in evaluating a plaintiff's qualifications at the first step of the McDonnell Douglas test; and 2) similarly situated male pilots were treated more favorably than plaintiff was.

Read Nicholson v. Hyannis Air Serv., Inc., No. 08-15959

Appellate Information

Argued and Submitted February 11, 2009

Filed September 8, 2009

Judges

Opinion by Judge Reinhardt

Counsel

For Appellant:

Phillip Torres, Hagåtña, Guam

For Appellee:

David Ledger, Hagåtña, Guam

Mercado-Zazueta v. Holder, No. 07-71428

In a petition for review of the BIA's order denying petitioner's request for cancellation of removal, the petition is granted where Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005), compelled the conclusion that a parent's status as an alien lawfully admitted for permanent residence may be imputed to an unemancipated minor child residing with that parent, for purposes of satisfying the five-year permanent residence requirement for cancellation of removal under section 240A(a)(1) of the Immigration and Nationality Act.

Read Mercado-Zazueta v. Holder, No. 07-71428

Appellate Information

Argued and Submitted December 8, 2008

Filed September 8, 2009

Judges

Opinion by Judge Wardlaw

Concurrence by Judge Graber

Counsel

For Petitioner:

Randy J. Tunac, Allen & Tunac, PLLC, Phoenix, AZ

For Respondent:

Charles E. Canter, Office of Immigration Litigation, U.S. Department of Justice, Civil Division, Washington, DC

Nurre v. Whitehead, No. 07-35867

In a 42 U.S.C. section 1983 action challenging under the First Amendment a high school's decision that a music piece could not be played at a graduation ceremony because it could be seen as endorsing religion, judgment for defendants is affirmed where the district's action in keeping all musical performances at graduation entirely secular in nature was reasonable in light of the circumstances surrounding a high school graduation, and therefore it did not violate plaintiff's right to free speech.

Read Nurre v. Whitehead, No. 07-35867

Appellate Information

Argued and Submitted January 22, 2009

Filed September 8, 2009

Judges

Opinion by Judge Tallman

Dissent by Judge Smith

Counsel

For Appellant:

W. Theodore Vander Wel, Vander Wel & Jacobson, Bishop & Kim, PLLC, Bellevue, WA

For Appellee:

Michael A. Patterson, Patterson Buchanan Fobes Leitch & Kalzer, PS, Seattle, WA

Smith v. Curry, No. 07-16875

In a burglary prosecution, a grant of petitioner's habeas petition is affirmed where a state court's approval of the trial court's instruction, directing the jurors to the evidence the judge believed supported conviction, crossed the boundary from appropriate encouragement to exercise the duty to deliberate in order to reach a unanimous verdict, and went into the forbidden territory of coercing a particular verdict on the basis of the judge's selective view of the evidence.

Read Smith v. Curry, No. 07-16875

Appellate Information

Argued September 24, 2007

Submitted September 8, 2009

Judges

Opinion by Judge Schroeder

Dissent by Judge Smith

Counsel

For Petitioner:

David M. Porter, Federal Defender, Sacramento, CA

For Respondents:

David A. Eldridge, Department of Justice, Sacramento, CA

Cassirer v. Kingdom of Spain, No. 06-56325

In an action under international law seeking to recover a painting on display at a Spanish museum that was allegedly stolen by Nazis during World War II, defendants' appeal from a denial of their motions to dismiss is dismissed in part, where there was no final judgment on the issues of personal jurisdiction, standing, and the existence of a justiciable case or controversy.  However, the district court's order is vacated in part where the expropriation exception of the Foreign Sovereign Immunities Act applied when the foreign state (against whom a claim is made) was not the entity that expropriated the property in violation of international law.

Appellate Information

Argued September 24, 2007

Submitted September 8, 2009

Judges

Opinion by Judge Smith

Dissent by Judge Ikuta

Counsel

For Appellants:

William M. Barron, Alston & Bird, LLP, New York, NY

Thaddeus J. Stauber, Nixon Peabody, LLP, Los Angeles, CA

For Appellee:

Stuart R. Dunwoody, Davis Wright Tremaine, LLP, Los Angeles, CA

Teruya Bros. v. Comm'r. of Int'l. Rev., No. 05-73779

In an appeal from a tax court's judgment denying nonrecognition treatment for the parties' like-kind real estate transactions, the order is affirmed where the exchanges did not qualify for nonrecognition treatment under 26 U.S.C. section 1031, because they took their peculiar structure for no apparent purpose except to avoid Section 1031.

Read Teruya Bros. v. Comm'r. of Int'l. Rev., No. 05-73779

Appellate Information

Argued February 11, 2009

Filed September 8, 2009

Judges

Opinion by Judge Thomas

Counsel

For Petitioner:

Renee M.L. Yuen, Honolulu, HI

For Respondent:

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

Bridget M. Rowan, Attorney, Tax Division, Department of Justice, Washington, DC

Asvesta v. Petroutsas, No. 08-15365

In a petition for return of a child under the Hague Convention on the Civil Aspects of International Child Abduction (Convention), the District Court's order extending comity to a Greek court's denial of Respondent's petition pursuant to the Convention is reversed where the Greek court misapplied the provisions of the Convention, relied on unreasonable factual findings, and contradicted the principles and objectives of the Convention.

Read Asvesta v. Petroutsas, No. 08-15365

Appellate Information

Argued Submitted July 14, 2008

Submitted August 28, 2009

Filed September 4, 2009

Judges

Opinion by Judge Paez

Counsel

For Petitioner:

Renee C. Day, Hoover & Bechtel, LLP, San Jose, CA

Kelly A. Powers, Miles & Stockbridge P.C., Towson, MD

For Respondent:

Carmenella Athena Roussos, Elk Grove, CA

Kazarian v. US Citizenship & Immigration Servs., No. 07-56774

In an action claiming that the United States Citizenship and Immigration Service's denial to plaintiff of an "extraordinary ability" visa was arbitrary and capricious, summary judgment for defendant is affirmed where: 1) plaintiff's internal review of students' work failed to establish sustained national or international acclaim; 2) there was no evidence that plaintiff's textbook had been adopted by any schools; 3) there was no evidence in the record that plaintiff's scholarship was cited by others; and 4) lectures and conference presentations are not "artistic exhibitions or showcases" under 8 C.F.R. section 204.5.

Read Kazarian v. US Citizenship & Immigration Servs., No. 07-56774

Appellate Information

Argued and Submitted December 9, 2008

Filed September 4, 2009

Judges

Opinion by Judge Nelson

Dissent by Judge Pregerson

Counsel

For Appellant:

Ruben N. Sarkisian, Glendale, CA

For Appellee:

Craig W. Kuhn, Office of Immigration Litigation, Department of Justice, Washington DC

Elizabeth J. Stevens, Office of Immigration Litigation, Department of Justice, Washington DC

Al-Kidd v. Ashcroft, No. 06-36059

In a Bivens action alleging that plaintiff was unlawfully arrested pursuant to a Bush Administration policy illegally using the federal material witness statute to detain suspected terrorists, the denial of defendant's motion to dismiss on qualified immunity grounds is affirmed in part, where plaintiff did not alleged adequate facts to render plausible defendant's personal involvement in setting the harsh conditions of his confinement. However, the order is reversed in part where: 1) defendant was acting in an investigative rather than a prosecutorial capacity in detaining plaintiff; and 2) plaintiff's right not to be arrested as a material witness in order to be investigated or preemptively detained was clearly established.

Read Al-Kidd v. Ashcroft, No. 06-36059

Appellate Information

Argued April 8, 2008

Submitted May 18, 2009

Filed September 4, 2009

Judges

Opinion by Judge Smith

Partial Concurrence and Partial Dissent by Judge Bea

Counsel

For Appellant:

Robert M. Loeb, Department of Justice, Civil Division, Washington, DC

Matthew M. Collette, Department of Justice, Civil Division, Washington, DC

For Appellee:

Lee Gelernt, Immigrants' Rights Project, American Civil Liberties Union, New York, NY

US v. Knight, No. 08-30372

In defendant's appeal from his sentence of twenty-four months imprisonment and twelve months supervised release imposed after the district court revoked defendant's supervised release, the sentence is affirmed where 18 U.S.C. section 3583(e)(3) does not require a district court to reduce the maximum term of imprisonment to be imposed upon revocation by the aggregate length of prior revocation imprisonment terms.  However, defendant's term of supervised release is vacated where, under 18 U.S.C. section 3583(h), as amended in 2003, the maximum term of supervised release that can be imposed on a defendant following multiple revocations of his supervised release must be reduced by the aggregate length of any and all terms of imprisonment imposed upon revocation of supervised release.

Read US v. Knight, No. 08-30372

Appellate Information

Argued and Submitted July 6, 2009

Filed September 2, 2009

Judges

Opinion by Judge Pregerson

Counsel

For Appellant:

Steven C. Haddon, Haddon Law Office, Helena, MT

For Appellee:

Paulette L. Stewart, Assistant United States Attorney, Helena, MT

Eric B. Wolff, Assistant United States Attorney, Helena, MT

US v. Hickey, No. 05-10004

Defendant's mail fraud and securities fraud conviction and sentence are affirmed where: 1) any claimed error by the district court in proceeding with limited pretrial matters before the Court of Appeals issued a previous mandate was harmless; 2) because the magistrate judge considered the statutory factors under the Speedy Trial Act in granting an "ends of justice" exclusion, allowing the magistrate to clarify those findings was not in error; 3) so long as the original indictment remains pending, a superseding indictment that omits a charge contained in the first indictment does not stop the tolling of the statute of limitations as to that charge; 4) even if defendant genuinely believed his investment scheme would be profitable and would result in gains for his investors, he would still be guilty of securities fraud and mail fraud if he knowingly lied to investors about the risks associated with his plan; 5) nothing in the jury instructions to which defendant objected negated the mens rea instruction; and 6) the Sixth Amendment did not require that the loss be proved to a jury beyond a reasonable doubt.

Read US v. Hickey, No. 05-10004

Appellate Information

Argued and Submitted April 13, 2009

Filed September 2, 2009

Judges

Opinion by Judge McKeown

Concurrence by Judge Reinhardt

Counsel

For Appellant:

Ezekiel E. Cortez, San Diego, CA

For Appellee:

Vijay Shanker, United States Department of Justice Criminal Division, Appellate Section, Washington, DC

Landin-Molina v. Holder, No. 05-73677

In consolidated petitions for review of the BIA's denial of petitioners' applications for permanent resident status, the petitions are denied where petitioners were ineligible to adjust to lawful permanent resident status via the "grandfathering" regulations implementing Section 245(i) of the Immigration and Nationality Act.  As to one petitioner, his marriage occurred after his wife adjusted to lawful permanent resident status, and thus his wife did not impart grandfathered status to him.  As to the other petitioner, she was not grandfathered because being a registrant for the Replenishment Agricultural Worker program did not satisfy the requirement of having filed an application for labor certification.

Read Landin-Molina v. Holder, No. 05-73677

Appellate Information

Submitted June 12, 2009

Filed September 1, 2009

Judges

Opinion by Judge McKeown

Counsel

For Petitioners:

Nicomedes E. Suriel, Phoenix, AZ

Christopher J. Todd, Mill Valley, CA

For Respondent:

Joanne E. Johnson, U.S. Department of Justice, Civil Division, Office of Immigration Litigation,
Washington, DC

US v. Inzunza, No. 05-50902

In an honest services fraud prosecution involving two former San Diego City Council members, one defendant's convictions are affirmed where: 1) the district court did not err by basing the denial of defendant's motion for acquittal on the statements of co-conspirators; 2) there was sufficient evidence to find a quid pro quo relationship between defendant's promised actions and the political contributions at issue; and 3) private gain is not an element of honest services fraud.  The grant of the other defendant's motions for acquittal and new trial are also affirmed where the evidence did not permit a finding of a quid pro quo relationship beyond a reasonable doubt with respect to that defendant because there was neither an explicit promise nor a connection of a campaign promise to a contribution.

Read US v. Inzunza, No. 05-50902

Appellate Information

Argued June 3, 2008

Submitted August 26, 2009

Judges

Opinion by Judge Canby

Counsel

For Appellant:

Demetra Lambros, Attorney, United States Department of Justice, Washington, DC

For Appellees:

Benjamin L. Coleman, Coleman & Balogh, LLP, San Diego, CA

Dennis P. Riordan, Riordan & Horgan, San Francisco, CA