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

US v. Anchrum, No. 09-30013

Defendant's drug and firearm convictions and sentence are affirmed where: 1) the district court's erroneous jury instruction omitting the dangerous or deadly weapon element of 18 U.S.C. section 111 was harmless error that did not affect defendant's substantial rights; 2) the district court clearly separated an officer's testimony into a first "phase" consisting of his percipient observations, and a second "phase" consisting of his credentials in the field of drug trafficking and expert testimony regarding the modus operandi of drug traffickers; and 3) the district court did not abuse its discretion in applying a six-level official victim sentencing enhancement under U.S.S.G. section 3A1.2 or fail to make the necessary findings of fact when defendant objected to the enhancement in the Presentence Report.

Read US v. Anchrum, No. 09-30013

Appellate Information

Submitted December 9, 2009

Filed December 30, 2009

Judges

Opinion by Judge Tallman

Counsel

For Appellant:

Michael D. Dieni, Assistant Federal Defender, Anchorage, AK

For Appellee:

Christine M. Thoreson, Special Assistant United States Attorney, Anchorage, AK

Trachsel v. Rogers Terminal & Shipping Corp., No. 08-74397

In a petition for review by the claimant of a compensation award under the Longshore and Harbor Workers' Compensation Act, the petition is denied where a day should be included as a "day [ ] . . . so employed" under 33 U.S.C. section 910(a) if the employee was paid for that day as if he actually worked it.

Read Trachsel v. Rogers Terminal & Shipping Corp., No. 08-74397

Appellate Information

Argued October 7, 2009

Filed December 30, 2009

Judges

Opinion by Judge Whyte

Counsel

For Petitioner:

Charles Rabinowitz, Law Offices of Charles Rabinowitz, Portland, OR

For Respondent:

Jay W. Beattie, Lindsay, Hart, Neil & Weigler, LLP, Portland, OR

US v. No Runner, No. 08-30449

In defendant's appeal from a pretrial order finding her competent to stand trial, the appeal is dismissed where a pretrial competency determination was a non-final order and the collateral order doctrine did not apply.

Read US v. No Runner, No. 08-30449

Appellate Information

Argued and Submitted November 3, 2009

Filed December 30, 2009

Judges

Opinion by Judge Fisher

Counsel

For Appellant:

R. Henry Branom, Jr., Assistant Federal Public Defender, Great Falls, MT

For Appellee:

Eric Vincent Carroll, Assistant U.S. Attorney, Great Falls, MT

Birdsong v. Apple, Inc., No. 08-16641

In an action claiming that Apple's iPod was defective because it posed an unreasonable risk of noise-induced hearing loss to its users, dismissal of the action is affirmed where: 1) the plaintiffs admitted that the iPod had an ordinary purpose of listening to music, and nothing they alleged suggested iPods were unsafe for that use or defective; 2) the plaintiffs failed to allege how the absence of their suggested changes to the iPod caused any user an injury; and 3) plaintiffs did not allege the requisite injury in fact to have standing under California's Unfair Competition Law.

Read Birdsong v. Apple, Inc., No. 08-16641

Appellate Information

Argued and Submitted October 8, 2009

Filed December 30, 2009

Judges

Opinion by Judge Thompson

Counsel

For Appellants:

Jeff D. Friedman, Berkeley, CA

For Appellee:

David Bernick, New York, NY

Ford v. Hubbard, No. 06-56092

In a murder prosecution, a grant of petitioner's habeas petition is reversed where petitioner failed to establish that the limitations period should be equitably tolled because he did not show that the district court gave him inaccurate instructions regarding the filing of the petition.

Read Ford v. Hubbard, No. 06-56092

Appellate Information

Argued and Submitted March 9, 2009

Filed December 30, 2009

Judges

Opinion by Judge Clifton

Counsel

For Petitioner:

Lisa M. Bassis, Beverly Hills, CA

For Respondent:

Paul M. Roadarmel, Jr., Deputy Attorney General, Los Angeles, CA

Halim v. Holder, No. 04-74868

In a petition for review of the BIA's denial of petitioner's asylum application, the petition is denied where petitioner failed to make a compelling showing that: 1) the reported incidents of discrimination against him amounted to persecution; 2) the incidents provided an objective basis for a well-founded fear of future persecution; or 3) he was a member of a disfavored group who had been individually targeted.

Read Halim v. Holder, No. 04-74868

Appellate Information

Argued and Submitted October 14, 2009

Filed December 30, 2009

Judges

Opinion by Judge Callahan

Concurrence by Judge Cudahy

Counsel

For Petitioner:

Sharon A. Healey, Law Office of Sharon A. Healey, Seattle, WA

For Respondent:

Tony West, Janice K. Redfern, Thankful T. Vanderstar and Anna E. Nelson, U.S. Department of Justice, Washington, DC

Bryan v. McPherson, No. 08-55622

In a 42 U.S.C. section 1983 action based on defendant-officer's use of a taser on plaintiff at a traffic stop, denial of summary judgment based on qualified immunity is affirmed where, viewing the circumstances in the light most favorable to plaintiff, defendant's use of the taser was unconstitutionally excessive and a violation of plaintiff's clearly established rights.

Read Bryan v. McPherson, No. 08-55622

Appellate Information

Argued and Submitted October 9, 2009

Filed December 28, 2009

Judges

Opinion by Judge Wardlaw

Counsel

For Appellant:

Steven E. Boemer, David Stotland, and Carrie L. Mitchell, McDougal, Love, Eckis, Smith, Boehmer & Foley, El Cajon, CA

For Appellee:

Eugene G. Iredale and Julia Yoo, Law Offices of Eugene G. Iredale, San Diego, CA

Jeffredo v. Macarro, No. 08-55037

In a habeas petition under the Indian Civil Rights Act, claiming that petitioners' disenrollment by members of the Pechanga Tribal Council was tantamount to an unlawful detention, denial of the petition is affirmed where the tribe did not detain petitioners within the meaning of the Act, and thus, the district court lacked subject matter jurisdiction.

Read Jeffredo v. Macarro, No. 08-55037

Appellate Information

Argued and Submitted April 17, 2009

Filed December 22, 2009

Judges

Opinion by Judge Smith

Dissent by Judge Wilken

Counsel

For Appellants:

Paul Harris and Patrick Romero Guillory, Dolores Park Law Offices, San Francisco, CA

For Appellees:

Frank Lawrence, Holland and Knight, Los Angeles, CA

John Schumacher, Law Office of John Schumacher, LLC, Riverton, WY

In the matter of: Harris, No. 07-56310

In an action by a Chapter 7 debtor alleging that the bankruptcy trustee and her agents breached a contract that was entered into during the course of the underlying bankruptcy case and was directly related to the administration of bankruptcy estate assets, dismissal of the complaint is affirmed where: 1) the bankruptcy court had subject matter jurisdiction over plaintiff's state law breach of contract claim; and 2) the bankruptcy court's approval of the acts plaintiff alleged breached the contract entitled the defendants to derived quasi-judicial immunity.

Read In the matter of: Harris, No. 07-56310

Appellate Information

Argued and Submitted November 3, 2009

Filed December 21, 2009

Judges

Opinion by Judge Bea

Counsel

For Appellant:

M. Lance Jasper, Munger, Tolles & Olson, LLP, Los Angeles, CA

For Appellee:

Eric R. Deitz, Wingert Grebing Brubaker & Goodwin, LLP, San Diego, CA

Manuel Corrales, Jr., Law Office of Manuel Corrales, Jr., San Diego, CA

Hamazaspyan v. Holder, No. 05-72267

In a petition for review of the BIA's dismissal of petitioner's appeal from an immigration judge's denial of his motion to reopen an in absentia removal order, the petition is granted where the BIA failed to serve petitioner's counsel of record with a hearing notice.

Read Hamazaspyan v. Holder, No. 05-72267

Appellate Information

Argued and Submitted June 9, 2009

Filed December 21, 2009

Judges

Opinion by Judge Bea

Counsel

For Petitioner:

Marjan H. Bahmani, Encino, CA

For Respondent:

Ronald E. LeFevre, John J. W. Inkeles, M. Jocelyn Lopez Wright, U.S. Department of Justice, Washington, DC

Aden v. Holder, No. 08-71168

In a petition for review of the denial of petitioner's asylum application, the petition is denied where: 1) the BIA properly required corroboration of petitioner's testimony; and 2) though the three letters submitted by petitioner supported the conclusion that petitioner's claimed clan and subclan existed, the law was that in order to reverse the BIA finding, the court of appeals must find that the evidence not only supported such conclusion, but compelled it.

Read Aden v. Holder, No. 08-71168

Appellate Information

Argued and Submitted February 12, 2009

Filed December 18, 2009

Judges

Opinion by Judge Kleinfeld

Counsel

For Petitioner:

Victoria Diaz, Ruben Aranda, Linda Imonode, and Mark Sorokin, University of Arizona College of Law, Tucson, AZ

For Respondent:

Gregory G. Katsas, Stephen J. Flynn and Mark C. Walters, Department of Justice, Washington, DC

US v. Bays, No. 09-30124

Defendant's drug and firearm possession sentence is affirmed where a pardon defendant received for a prior state offense did not constitute an expungement and the district court correctly considered defendant's prior state convictions when calculating defendant's criminal history category.

Read US v. Bays, No. 09-30124

Appellate Information

Submitted December 10, 2009

Filed December 17, 2009

Judges

Opinion by Judge Tallman

Counsel

For Appellant:

Dennis Benjamin, Nevin, Benjamin, McKay & Bartlett LLP, Boise, ID

For Appellee:

Thomas E. Moss and Christian S. Nafzger, Assistant United States Attorneys, Boise, ID

Klamath Siskiyou Wildlands Ctr. v. US Bureau of Land Mgmt., No. 08-35463

In an action against the Bureau of Land Management seeking a preliminary injunction against a timber sale, a grant of attorney's fees to plaintiff is reversed where plaintiff was not a prevailing party within the meaning of the Equal Access to Justice Act because, before judgment, the Bureau withdrew its challenged decision.

Read Klamath Siskiyou Wildlands Ctr. v. US Bureau of Land Mgmt., No. 08-35463

Appellate Information

Argued and Submitted June 1, 2009

Filed December 15, 2009

Judges

Opinion by Judge O'Scannlain

Counsel

For Appellant:

Robert Lundman, Brian Perron and Ronald J. Tenpas, United States Department of Justice, Washington, DC

For Appellees:

Erin Madden and Marianne Dugan, Cascadia Law P.C., Portland, OR

California Alliance of Child & Fam. Servs. v. Allenby, No. 08-16267

In an action challenging California's scheme of reimbursement to foster care homes, summary judgment for defendants is reversed where California was not in "substantial compliance" with the federal Child Welfare Act's (CWA) mandate that a participating state "cover the cost" of certain enumerated items for foster care group homes because it paid at a rate that was approximately 80 percent of actual 1986-1987 costs adjusted for inflation, and the CWA required California to pay in full.

Read California Alliance of Child & Fam. Servs. v. Allenby, No. 08-16267

Appellate Information

Argued and Submitted October 7, 2009

Filed December 14, 2009

Judges

Opinion by Judge Rymer

Concurrence by Judge Wu

Counsel

For Appellant:

William F. Abrams, East Palo Alto, CA

For Appellees:

George Prince, Office of the Attorney General, San Francisco, CA

Pelayo-Garcia v. Holder, No. 05-70929

In a petition for review of the BIA's order removing petitioner from the U.S., the petition is granted where petitioner's prior offense of "unlawful sexual intercourse with a minor" under section 261.5(d) of the California Penal Code did not meet the definition of "aggravated felony" in 8 U.S.C. section 1101(a)(43)(A).

Read Pelayo-Garcia v. Holder, No. 05-70929

Appellate Information

Argued November 19, 2008

Submitted December 3, 2009

Judges

Opinion by Judge Ikuta

Counsel

For Petitioner:

Lilia G. Alcaraz, Gloria P. Martinez-Senftner, The Martinez-Senftner Law Firm PC, Los Angeles, CA

For Respondent:

Peter D. Keisler, Michelle Gordon Latour, Jennifer J. Keeney, Erica Miles, United States Department of Justice, Los Angeles, CA

US v. Washington, No. 08-35794

In an Indian tribe's appeal from the district court's denial of the tribe's Rule 60(b) motion to reopen the judgment in a matter in which the tribe had been denied fishing rights under the Treaty of Point Elliott, the order is affirmed where recognition proceedings and the fact of the tribe's recognition had no effect on the establishment of treaty rights at issue in this case.

Read US v. Washington, No. 08-35794

Appellate Information

Argued and Submitted June 2, 2009

Filed December 11, 2009

Judges

Opinion by Judge Canby

Counsel

For Appellant:

Mason D. Morisset, Morisset, Schlosser, Jozwiak & McGaw, Seattle, WA

James M. Jannetta, Swinomish Indian Tribal Community, La Conner, Wa

For Appellee:

Elizabeth Ann Peterson, Attorney, Department of Justice, Washington, DC

Alvarado v. Cajun Operating Co., No. 08-15549

In an Americans with Disabilities Act (ADA) action alleging that defendant retaliated against plaintiff for complaining that his manager had discriminated against him based on his disability, an order denying plaintiff the right to seek compensatory and punitive damages is affirmed where the plain and unambiguous provisions of 42 U.S.C. section 1981a limited the availability of compensatory and punitive damages to those specific ADA claims listed, and retaliation was not on the list.

Read Alvarado v. Cajun Operating Co., No. 08-15549

Appellate Information

Argued and Submitted June 2, 2009

Filed December 11, 2009

Judges

Opinion by Judge Rawlinson

Counsel

For Appellant:

Richard M. Martinez, Law Office of Richard M. Martinez, Tucson, AZ

For Appellee:

Lori L. Voepel and Rachel Love, Jones, Skelton & Hochuli, P.L.C., Phoenix, AZ

Riordan v. State Farm Mut. Auto. Ins. Co., No. 08-35874

In an action to recover insurance proceeds arising out of a car accident, the district court's award of attorney's fees to plaintiff under Montana law is affirmed where Montana law clearly held that insureds who were forced to sue their insurers to obtain their bargained-for insurance benefits were entitled to attorney's fees.

Read Riordan v. State Farm Mut. Auto. Ins. Co., No. 08-35874

Appellate Information

Argued and Submitted July 7, 2009

Filed December 10, 2009

Judges

Opinion by Judge Pregerson

Partial Concurrence and Partial Dissent by Judge Rymer

Counsel

For Appellant:

Travis Dye, Kalkstein & Johnson, P.C., Missoula, MT

For Appellee:

Justin Starin, Tornabene & McKenna, PLLC, Missoula, MT

Cox v. Ayers, No. 07-99010

In a capital habeas matter, the denial of petitioner's habeas petition is affirmed where: 1) petitioner was not prejudiced by the trial court's decision to shackle him during the guilt phase of the trial; 2) counsel's thorough mitigation investigation was more than reasonable; 3) further evidence about petitioner's childhood and gang activity would have suggested violent propensities at odds with counsel's goal of portraying petitioner as less culpable; and 4) the proposed additional evidence was mostly cumulative of the information already presented at the penalty phase trial.

Read Cox v. Ayers, No. 07-99010

Appellate Information

Argued and Submitted February 5, 2009

Filed December 10, 2009

Judges

Opinion by Judge Graber

Counsel

For Appellant:

Jeannie R. Sternberg, Habeas Corpus Resource Center, San Francisco, CA

For Appellee:

Jamie L. Fuster, Deputy Attorney General, State of California, Los Angeles, CA

Mayfield v. US, No. 07-35865

In an action brought by a former suspect in the 2004 Madrid train bombings and his family claiming that several provisions of the Foreign Intelligence Surveillance Act (FISA) as amended by the PATRIOT Act were unconstitutional, judgment for plaintiff is reversed where, in light of the limited remedy available to plaintiff under a settlement agreement with the government, he did not have standing to pursue his Fourth Amendment claim because his injuries already had been substantially redressed by the settlement, and a declaratory judgment would not likely impact him or his family.

Read Mayfield v. US, No. 07-35865

Appellate Information

Argued and Submitted February 5, 2009

Filed December 10, 2009

Judges

Opinion by Judge Paez

Counsel

For Appellant:

Douglas Letter and Scott McIntosh, Civil Division, Department of Justice, Washington, DC

For Appellees:

Elden Rosenthal, Rosenthal & Greene, P.C., Portland, OR

Greene v. Camreta, No. 06-35333

In a 42 U.S.C. section 1983 action alleging a student was unlawfully searched and seized, summary judgment for defendants is affirmed in part where: 1) the general law of search warrants applies to child abuse investigations; 2) however, precedent did not clearly establish that the in-school seizure of a student suspected of being the victim of child sexual abuse could be subject to traditional Fourth Amendment protections; and 3) applying the prior lower standard, defendants' actions were not so clearly invalid as to strip them of qualified immunity.  However, the order is reversed in part where: 1) there was a genuine issue of material fact as to whether defendant-social worker secured an order by misrepresenting his conversations with plaintiff-mother; and 2) social worker's decision to exclude mother from her daughters' medical examinations violated the parents' clearly established familial rights under the Fourteenth Amendment.

Read Greene v. Camreta, No. 06-35333

Appellate Information

Argued and Submitted March 6, 2008

Filed December 10, 2009

Judges

Opinion by Judge Berzon

Counsel

For Appellant:

Mikel R. Miller, Law Office of Mikel R. Miller, Bend, OR

For Appellees:

Hardy Myers, Mary H. Williams, David B. Thompson, Office of the Attorney General, Bend, OR

County of Santa Clara v. Astra USA, Inc., No. 06-16471

In a breach of contract action claiming that plaintiff-county was overcharged for certain drugs in violation of pharmaceutical pricing agreements between the Secretary of Health and Human Services and drug manufacturer defendants, dismissal of the complaint is reversed where plaintiff was an intended direct beneficiary of the agreements and thus had the right to enforce the agreements' discount provisions against the manufacturers and sue them for reimbursement of excess payments.

Read County of Santa Clara v. Astra USA, Inc., No. 06-16471

Appellate Information

Filed December 9, 2009

Judges

Opinion by Judge Fisher

Counsel

For Appellant:

Patrick J. Coughlin, Sanford Svetcov, Jeffrey W. Lawrence, Jacqueline E. Mottek, Aelish M. Baig and Jennie Lee Anderson, Coughlin Stoia Geller Rudman & Robbins LLP, Los Angeles, CA

For Appellees:

Robert S. Litt, Jeffrey L. Handwerker and Sharon Douglass Mayo, Arnold & Porter LLP, Washington, DC

Alicia J. Donahue and Sara Romano, Shook, Hardy & Bacon LLP, Washington, DC

Boston Telecomms. Group, Inc. v. Wood, No. 08-16358

In an action arising out of an allegedly fraudulent business venture, dismissal of the complaint on forum non conveniens grounds is reversed where: 1) the parties could seek relevant documents in Slovakia through procedures for international third-party discovery; 2) the fact that defendant might be unable to implead alleged joint tortfeasors in California was by no means determinative of the forum non conveniens inquiry; and 3) defendant, in asking for the extraordinary measure of dismissal on forum non conveniens grounds, needed to provide not simply the numbers of witnesses in each locale, but information sufficient to assist the court in assessing the "materiality and importance" of each witness.

Read Boston Telecomms. Group, Inc. v. Wood, No. 08-16358

Appellate Information

Argued and Submitted October 8, 2009

Filed December 9, 2009

Judges

Opinion by Judge Wallace

Counsel

For Appellants:

Steven M. Cowley, Boston, MA

For Appellee:

Roderick Marshall and Susan K. Jamison, San Francisco, CA

Ewing v. City of Stockton, No. 08-15732

In a 42 U.S.C. section 1983 action alleging violations of plaintiffs' constitutional rights arising out of the search of their home and the arrest of plaintiffs in connection with a murder they did not commit, summary judgment for defendants is affirmed where: 1) neither of an officer's problematic representations in support of the warrant at issue was critical to the probable cause determination; 2) the issuing judge could reasonably find the information provided by a witness to be reliable under the circumstances; and 3) the language of the warrant was not overbroad.

Read Ewing v. City of Stockton, No. 08-15732

Appellate Information

Argued and Submitted October 6, 2009

Filed December 9, 2009

Judges

Opinion by Judge Adelman

Counsel

For Appellants:

Terry Gross, San Francisco, CA

For Appellees:

Shelley L. Green and Jason R. Morrish, Stockton, CA

Robinson v. Kramer, No. 07-55611

In a drug possession prosecution, denial of petitioner's habeas petition is affirmed where petitioner never raised a claim for unconstitutional denial of his right to self-representation -- i.e. to proceed without a lawyer -- on direct appeal in the state courts, nor in his state habeas petition, nor in his district court habeas petition.

Read Robinson v. Kramer, No. 07-55611

Appellate Information

Argued June 23, 2009

Filed December 9, 2009

Judges

Opinion by Judge Bea

Counsel

For Appellant:

Jan B. Norman, Los Angeles, CA

For Appellee:

Blythe J. Leszkay and Colleen Mary Tiedemann, Deputy Attorneys General, Los Angeles, CA

Pinholster v. Ayers, No. 03-99003

In a capital habeas matter, grant of petitioner's habeas petition is affirmed where defense counsel provided petitioner ineffective assistance at the penalty phase because: 1) petitioner properly challenged the district court's legal conclusions, as opposed to its factual ones; 2) counsel spent almost no time preparing for the penalty phase hearing; 3) counsel failed to obtain any of the readily available medical, psychological, law enforcement, or school records for petitioner or his siblings; and 4) properly presented evidence of petitioner's brain injury, and its profound effect on his behavior, could have altered the jury's impressions of his detrimental guilt phase testimony and of his boastful, disrespectful demeanor by indicating an organic basis for his inappropriate expressions and for his tendency to exaggerate his past.

Read Pinholster v. Ayers, No. 03-99003

Appellate Information

Filed December 9, 2009

Judges

Opinion by Judge Fisher

Counsel

For Petitioner:

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

For Respondent:

Kristofer Jorstad, Deputy Attorney General, Los Angeles, CA

Lemoge v. US, No. 08-56210

In a Federal Tort Claims Act action against the U.S. based on injuries suffered by plaintiff at a military facility, dismissal of the action as untimely is reversed where the district court did not address whether plaintiff acted in good faith in failing to serve the complaint in a timely fashion.

Read Lemoge v. US, No. 08-56210

Appellate Information

Argued and Submitted November 4, 2009

Filed December 7, 2009

Judges

Opinion by Judge Gould

Counsel

For Appellants:

David W. Baumgarten, Yale & Baumgarten, LLP, San Diego, CA

For Appellee:

Melanie A. Andrews, Special Assistant United States Attorney, San Diego, CA

Brown v. S. Cal. IBEW-NECA Trust Funds, No. 08-55398

In an ERISA action regarding the suspension of plaintiff's early retirement benefits, judgment for plaintiff is affirmed where defendant trustees conflated "electrical construction work" with "employment as an electrical contractor" under the benefits plan, thus running afoul of the court of appeals' holding that "each provision in an agreement should be construed consistently with the entire document such that no provision is rendered nugatory."

Read Brown v. S. Cal. IBEW-NECA Trust Funds, No. 08-55398

Appellate Information

Argued and Submitted April 14, 2009

Filed December 7, 2009

Judges

Opinion by Judge Pregerson

Counsel

For Appellant:

Donald C. Carroll, Charles P. Scully, II, Law Offices of Carroll & Scully, Inc., San Francisco, CA

For Appellee:

John R. St. John, St. John, Wallace, Brennan & Folan LLP, San Francisco, CA

Ashland Sch. Dist. v. Parents of E.H., No. 08-35926

In an Individuals with Disabilities Education Act action, the district court's order denying reimbursement to plaintiff-parents for their child's residential treatment is affirmed where: 1) the district court adequately responded to the hearing officer's conclusions before reaching a contrary result; 2) parents' failure to give notice was a relevant consideration when determining whether to deny reimbursement; and 3) the record contained ample evidence supporting the district court's conclusion that the parents placed the child in residential care to treat medical, not educational, problems.

Read Ashland Sch. Dist. v. Parents of E.H., No. 08-35926

Appellate Information

Argued and Submitted October 8, 2009

Filed December 7, 2009

Judges

Opinion by Judge O'Scannlain

Counsel

For Appellant:

Mary E. Broadhurst, Eugene, OR

For Appellee:

Andrea L. Hungerford and Nancy J. Hungerford, Hungerford Law Firm, LLP, Oregon City, OR

In plaintiff Indian tribe's appeal from a denial of a preliminary injunction in an environmental challenge to the Bureau of Land Management's approval of a gold mining project, the order is affirmed in part where, given the thorough consideration of the project's impact on the tribe's religion (which was approved after more than two years of study and consultation with the tribes and with the public), the tribes had not satisfied their burden of showing a likelihood of success on the merits of their Federal Land Policy Management Act claims.  However, the order is reversed in part where plaintiff demonstrated a likelihood of success on its National Environmental Policy Act (NEPA) claims because the BLM failed to issue an environmental impact statement that adequately considered the environmental impact of the extraction of millions of tons of refractory ore, mitigation of the adverse impact on local springs and streams, and the extent of fine particulate emissions.

Read South Fork Band Council of W. Shoshone of Nev. v. US Dept. of Interior, No. 09-15230

Appellate Information

Argued and Submitted June 10, 2009

Filed December 3, 2009

Judges

Per Curiam

Counsel

For Appellant:

Roger Flynn, Lyons, CO

For Appellee:

Sambhav N. Sankar, Washington, DC

Lin v. Holder, No. 08-71227

Petition for review of the BIA's denial of petitioner's motion to reopen her removal proceedings is denied where there was insufficient evidence that China's family planning policies had become more stringent since the time of the original removal proceedings.

Read Lin v. Holder, No. 08-71227

Appellate Information

Argued and Submitted June 5, 2009

Filed December 3, 2009

Judges

Opinion by Judge Rawlinson

Counsel

For Petitioner:

Gary J. Yerman, New York, NY

For Respondent:

Michael C. Heyse, Washington, DC

Bradway v. Cate, No. 08-55296

In a murder prosecution, denial of petitioner's habeas petition is affirmed where the California special circumstances statute that enhanced petitioner's first degree murder sentence to life without the possibility of parole (specifically, the lying in wait special circumstance) was not unconstitutionally vague under the Fourteenth Amendment.

Read Bradway v. Cate, No. 08-55296

Appellate Information

Argued and Submitted April 15, 2009

Filed December 3, 2009

Judges

Opinion by Judge Canby

Counsel

For Appellant:

Matthew Braner, Deputy Public Defender, San Diego, CA

For Appellees:

Barry J. Carlton, Deputy Attorney General, San Diego, CA

US v. Kuo, No. 08-10314

The district court's restitution order imposed upon defendants for conspiracy to violate civil rights relating to a prostitution scheme is vacated where restitution for "lost income" under 18 U.S.C. section 3663 was not the same as disgorgement of all of defendants' ill-gotten gains from the victims' forced prostitution.

Read US v. Kuo, No. 08-10314

Appellate Information

Argued and Submitted October 15, 2009

Filed December 3, 2009

Judges

Opinion by Judge Graber

Counsel

For Appellant:

Peter C. Wolff, Jr. and Pamela E. Tamashiro, Honolulu, HI

For Appellee:

Karen L. Stevens, United States Department of Justice, Civil Rights Division, Washington, DC

US v. Thompson, No. 07-50351

Defendant's drug and firearm possession convictions are affirmed where: 1) the district court properly determined whether defendant lacked the mental capacity to conduct trial proceedings; and 2) the district court's decision to deny defendant's request for a continuance was more than fair and reasonable.

Read US v. Thompson, No. 07-50351

Appellate Information

Argued and Submitted November 3, 2009

Filed December 3, 2009

Judges

Opinion by Judge Smith

Counsel

For Appellant:

Karen L. Landau, Oakland, CA

For Appellee:

Christine C. Ewell and Lamar Webster Baker, Assistant United States Attorneys, Los Angeles, CA

US v. Truong, No. 08-10446

Defendant's sentence for possessing unauthorized access devices is affirmed where: 1) nothing in either the plain language of 18 U.S.C. section 1029 or the case law required that an "access device" contain information identifying a particular person as its owner; and 2) the district court sufficiently explained that the Guidelines did not account for defendant's particular type of recidivism.

Read US v. Truong, No. 08-10446

Appellate Information

Argued and Submitted September 14, 2009

Filed December 1, 2009

Judges

Per Curiam

Counsel

For Appellant:

Joseph J. Wiseman, Law Offices of Joseph J. Wiseman, Davis, CA

For Appellee:

Lawrence G. Brown and Matthew D. Segal, Office of the United States Attorney, Sacramento, CA

In an ERISA action challenging defendant pension fund's denial of disability benefits, judgment for defendant is affirmed where: 1) the fund's trustees did not abuse their discretion when they determined the date of plaintiff's disability; 2) 29 U.S.C. section 1054(g) did not apply to "employee welfare benefit plans" such as that of defendant; and 3) the Qualified Domestic Relations Order (QDRO) applied by the trustees was a separate interest QDRO, and plaintiff thus could not share in any of the benefits allocated to his ex-wife.

Read Anderson v. Suburban Teamsters of N. Ill. Pension Fund Bd. of Trustees, No. 07-15532

Appellate Information

Argued and Submitted September 14, 2009

Filed December 1, 2009

Judges

Opinion by Judge Trott

Counsel

For Appellant:

Andrea A. Ambrose and Colin B. Vandell, Latham & Watkins LLP, Los Angeles, CA

For Appellees:

Barry G. Collins, Asher, Gittler, Greenfield & D'Alba, Ltd., Chicago, IL

Toj-Culpatan v. Holder, No. 05-72179

In a petition for review of the BIA's order denying petitioner's asylum application, the petition is denied where petitioner did not file an asylum application in English within the one year deadline and no "extraordinary circumstances" prevented him from filing on time.

Read Toj-Culpatan v. Holder, No. 05-72179

Appellate Information

Argued and Submitted March 1, 2009

Filed December 1, 2009

Judges

Per Curiam

Counsel

For Petitioner:

Lisa M. Calero and Robert L. Lewis, Law Offices of Robert L. Lewis, Oakland, CA

For Respondent:

Antoinette Barksdale, Ronald E. LeFevre and Mark Lenard Gross, United States Department of Justice, Washington, DC