U.S. Ninth Circuit: January 2010 News
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9th Circuit January 2010 News

Coto Settlement v. Eisenberg, No. 08-35966

In an action claiming that plaintiff was entitled to part of an amount refunded by the Federal Trade Commission following a judgment against plaintiff and defendants, dismissal of the action as untimely is affirmed where defendant's actions in raising the reserve requirement of entities partially controlled by defendant gave rise to plaintiff's claims in 2000, and therefore the statute of limitations began to run at that time.

Read Coto Settlement v. Eisenberg, No. 08-35966

Appellate Information

Argued and Submitted October 14, 2009

Filed January 29, 2010

Judges

Opinion by Judge Cudahy

Counsel

For Appellant:

Ernst Leonard, Friedman & Feiger, L.L.P., Dallas, TX

For Appellees:

Derek A. Newman and Derek Linke, Newman & Newman, Attorneys at Law, Seattle, WA

US v. Treadwell, No. 08-50562

Defendants' wire fraud convictions and sentences are affirmed where: 1) 18 U.S.C. section 1343 did not require an intent to cause pecuniary loss; 2) "preponderance of the evidence" was the appropriate standard of proof for determining the amount of loss caused by the conspiracy; and 3) the district court correctly found the scope of relevant conduct under U.S.S.G. section 1B1.3 in attributing losses to defendants as a result of their conspiracy convictions.

Read US v. Treadwell, No. 08-50562

Appellate Information

Argued and Submitted November 3, 2009

Filed January 28, 2010

Judges

Opinion by Judge Gould

Counsel

For Appellants:

David J. Zugman, Burcham & Zugman, San Diego, CA

Jami L. Ferrara, Law Office of Jami L. Ferrara, San Diego, CA

For Appellee:

William P. Cole, Assistant U.S. Attorney, San Diego, CA

New York City Employees' Ret. Sys. v. Jobs, No. 08-16488

In a securities fraud action against Steve Jobs, Apple corporation, and others concerning the issuance of an allegedly false and misleading proxy solicitation for a stock option plan, with allegations based on the backdating of stock options by Apple, dismissal of the complaint is affirmed where the Private Securities Litigation Reform Act did not differentiate between plaintiffs seeking legal and equitable remedies, and thus, without an allegation of economic loss, no remedy, equitable or otherwise, was available. However, the district court's denial of plaintiffs' request for leave to amend the complaint is reversed where the district court erred in applying a "waiver" rule to an omitted claim.

Read New York City Employees' Ret. Sys. v. Jobs, No. 08-16488

Appellate Information

Argued and Submitted October 7, 2009

Filed January 28, 2010

Judges

Opinion by Judge Thompson

Counsel

For Appellant:

Michael J. Barry, Grant & Eisenhoffer P.A., Wilmington, DE

For Appellees:

George A. Riley, O'Melveny & Myers, LLP, San Francisco, CA

Esquivel-Garcia v. Holder, No. 07-70640

Petition for review of the BIA's denial of petitioner's requests for cancellation of removal, adjustment of status and voluntary departure is granted in part where the government needed to put forth reliable evidence to show that the petitioner was convicted of a disqualifying controlled substance offense.  However, the petition is denied in part where there was sufficient evidence to support the Immigration Judge's finding that petitioner had possessed a disqualifying controlled substance, and that precluded adjustment of status.

Read Esquivel-Garcia v. Holder, No. 07-70640

Appellate Information

Argued and Submitted December 9, 2009

Filed January 28, 2010

Judges

Opinion by Judge Thompson

Counsel

For Petitioner:

Sylvia Rivera, Los Angeles, CA

For Respondent:

David Schor, Department of Justice, Washington, DC

Velasco-Cervantes v. Holder, No. 08-73295

Petition for review of the BIA's dismissal of petitioner's appeal of an Immigration Judge's decision denying petitioner's petitions for asylum is denied where material witnesses for the government, such as petitioner, did not constitute a protected social group.

Read Velasco-Cervantes v. Holder, No. 08-73295

Appellate Information

Argued and Submitted December 11, 2009

Filed January 27, 2010

Judges

Opinion by Judge Beezer

Counsel

For Petitioner:

Rosaura Rodriguez, Rios Cantor, P.S., Seattle, WA

For Respondent:

Jeffrey R. Meyer, Office of Immigration Litigation, Washington, DC

Hanrahan v. Riverside Nursing Home, No. 09-0585

In an employment discrimination action, the dismissal of the complaint based on the res judicata effect of a prior state administrative proceeding is vacated where the state court's dismissal was not a decision on the merits that would preclude the filing of a renewed state court action.

Read Hanrahan v. Riverside Nursing Home, No. 09-0585

Appellate Information

Argued: November 2, 2009

Decided: January 25, 2010

Judges

Opinion by Judge Lynch

Counsel

For Appellant:

Anthony C. Donofrio, Massapequa, NY

For Appellee:

Roger H. Briton and Ian B. Bogaty, Jackson Lewis LLP, Melville, NY

McDermott v. Ampersand Pub'g., LLC, No. 08-56202

In an action under the the National Labor Relations Act seeking an injunction to reinstate employees whom defendant-newspaper discharged for union activity directed at pressuring the newspaper's owner and publisher to refrain from exercising editorial control over news reporting, denial of a temporary injunction is affirmed where intervening to support the employees' effort to limit the control of the owner over its news pages necessarily posed some risk to that owner's First Amendment rights.

Read McDermott v. Ampersand Pub'g., LLC, No. 08-56202

Appellate Information

Argued and Submitted March 11, 2009

Filed January 26, 2010

Judges

Opinion by Judge Clifton

Dissent by Judge Hawkins

Counsel

For Appellant:

Ronald Meisburg, John E. Higgins, Jr., Barry J. Kearney, National Labor Relations Board, Washington, DC

For Appellee:

Sri Srinivasan, Framroze M. Virjee and Michael Garrison, O'Melveny & Myers LLP, Los Angeles, CA

United Farm Wkrs. of Am., AFL-CIO v. EPA, No. 08-35528

In an action challenging the EPA's order permitting certain uses of the pesticide Azinphos-Methyl (AZM), dismissal of the action for lack of jurisdiction is affirmed where the cardinal condition for district court jurisdiction under section 16(a) of the Federal Insecticide, Fungicide, and Rodenticide Act, was that the Administrator of the EPA had made a decision "not following a hearing," and the Administrator did hold a hearing in this instance.

Read United Farm Wkrs. of Am., AFL-CIO v. EPA, No. 08-35528

Appellate Information

Argued and Submitted August 7, 2009

Filed January 26, 2010

Judges

Opinion by Judge Noonan

Dissent by Judge Pregerson

Counsel

For Appellant:

Kristen L. Boyles, Seattle, WA

For Appellee:

Ronald J. Tenpas, Washington, DC

US v. Juvenile Male, No. 07-50107

In defendant-juvenile's appeal from a proceeding in which he was found to be a juvenile delinquent, the order is affirmed in part where: 1) the U.S. Attorney may certify to the absence of state court jurisdiction under 18 U.S.C. section 5032 if he learns that the appropriate state prosecutor has decided not to prosecute a particular juvenile for the specific crime at issue; and 2) there was no violation of the Juvenile Justice and Delinquency Prevention Act's speedy trial provision because defendant caused the delay in the start of his trial by lying about his age.  However, the order is reversed in part where, because defendant was, as the district court ultimately determined, a juvenile at the time of his arrest, he was entitled to the protections of 18 U.S.C. section 5033.

Read US v. Juvenile Male, No. 07-50107

Appellate Information

Argued and Submitted August 9, 2007

Filed June 12, 2008

Vacated January 13, 2009

Reargued and Resubmitted April 30, 2009

Filed January 26, 2010

Judges

Per Curiam

Counsel

For Appellant:

Leila W. Morgan and Kris J. Kraus, Deputy Federal Defenders, San Diego, CA

For Appellee:

Christopher P. Tenorio, Assistant United States Attorney, San Diego, CA

Chae v. SLM Corp., No. 08-56154

In student borrowers' claims challenging loan servicer methods of calculating interest, assessing late fees and setting the repayment start date on their loans, summary judgment for defendants is affirmed where the statutes and regulations governing lenders and third-party loan servicers under the Federal Family Education Loan Program of the Higher Education Act preempted plaintiffs' claims.

Read Chae v. SLM Corp., No. 08-56154

Appellate Information

Argued and Submitted November 5, 2009

Filed January 25, 2010

Judges

Opinion by Judge Gould

Counsel

For Appellants:

William J. Genego, Nasatir, Hirsch, Podberesky & Genego, Santa Monica, CA

Michael D. Braun, Braun Law Group, P.C., Los Angeles, CA

For Appellees:

Julia B. Strickland, Lisa M. Simonetti, and David W. Moon, Stroock & Stroock & Lavan LLP, Los Angeles, CA

Hardisty v. Astrue, No. 08-35919

In an appeal from the Social Security Commission's denial of supplemental security income benefits to plaintiff, the district court's denial of attorney's fees to plaintiff is affirmed where a plaintiff may not be awarded attorneys' fees against the U.S. under the Equal Access to Justice Act with respect to issues not reached by a district court in reversing a federal agency's decision.

Read Hardisty v. Astrue, No. 08-35919

Appellate Information

Argued and Submitted October 9, 2009

Filed January 25, 2010

Judges

Opinion by Judge O'Scannlain

Counsel

For Appellant:

Ralph Wilborn, Wilborn Law Office, P.C., Oregon City, OR

For Appellee:

Kathryn A. Miller and Britannia I. Hobbs, Office of the General Counsel, Social Security Administration, Seattle, WA

Hells Canyon Preservation Soc. v. US Forest Serv., No. 07-35456

In an action challenging the Forest Service's failure to close a road through a recreation area to motorized vehicle travel, summary judgment for defendant is affirmed where: 1) as to their claim that the Forest Service lost a map of the wilderness area, plaintiffs did not suffer a cognizable Article III injury, because the loss of the map was not redressable; 2) the Forest Service's publication of a boundary description started the statute of limitations on plaintiffs' boundary claim, and their claim was thus untimely; and 3) plaintiffs failed to identify "an ongoing failure to act" by defendant, and thus failed to state a claim under section 706(1) of the Administrative Procedure Act.

Read Hells Canyon Preservation Soc. v. US Forest Serv., No. 07-35456

Appellate Information

Argued and Submitted December 11, 2008

Filed January 25, 2010

Judges

Opinion by Judge Bybee

Partial Concurrence and Partial Dissent by Judge Graber

Counsel

For Appellants:

Brett E. Brownscombe, Portland, OR

William H. Sherlock, Hutchinson, Cox, Coons, Dupriest, Orr & Sherlock, P.C., Eugene, OR

For Appellee:

Mark R. Haag, United States Department of Justice, Washington, DC

US v. Green, No. 08-10149

Defendant's wire fraud and bid rigging convictions are affirmed where: 1) defendant's conduct did not need to violate a rule or regulation of the E-Rate educational funding program in order to be fraudulent; 2) even accepting that her ultimate motives were laudable, defendant concealed material facts from the federal government in an attempt to induce it to fund her projects; and 3) the evidence at trial easily supported the jury's finding that defendant participated in multiple bid-rigging conspiracies.

Read US v. Green, No. 08-10149

Appellate Information

Argued and Submitted October 5, 2009

Filed January 22, 2010

Judges

Opinion by Judge Tashima

Counsel

For Appellant:

Phillip H. Stillman, Cardiff, CA

For Appellee:

Adam D. Hirsch, Antitrust Division, U.S. Department of Justice, Washington, DC

Charles Schwab & Co. v. Debickero, No. 07-15261

In an interpleader action by a bank seeking to determine the ownership of an IRA account held by decedent, summary judgment for the named beneficiaries of the IRA is affirmed where: 1) the surviving spouse protections in ERISA did not apply to the IRA even though some of the funds originated from an ERISA-protected pension plan, and 2) the Internal Revenue Code also did not impose automatic surviving spouse rights on IRAs similar to those protections afforded under ERISA.

Read Charles Schwab & Co. v. Debickero, No. 07-15261

Appellate Information

Argued and Submitted October 23, 2008

Filed January 22, 2010

Judges

Per Curiam

Counsel

For Appellant:

Scott Blair, Blair Law Firm, PLC, Scottsdale, AZ

Robert A. Olson, Greines Martin Stein & Richland, LLP, Los Angeles, CA

For Appellees:

Jerome K. Elwell and J. Brent Welker, Warner Angle Hallam Jackson & Formanek PLC, Phoenix, AZ

Adkison v. Comm'r. of Int'l. Rev., No. 08-70485

In a taxpayer's appeal from a tax court's dismissal of his claim for relief from joint and several tax liability with his spouse under 26 U.S.C. section 6015, the order is affirmed where the deficiency challenged by the taxpayer stemmed from a partnership interest that was the subject of an ongoing partnership proceeding under the Tax Equity and Fiscal Responsibility Act and regulated by a separate set of provisions.

Read Adkison v. Comm'r. of Int'l. Rev., No. 08-70485

Appellate Information

Argued and Submitted September 2, 2009

Filed January 21, 2010

Judges

Opinion by Judge Bybee

Counsel

For Appellant:

Cori Flanders-Palmer, Chicoine & Hallert, P.S., Seattle, WA

For Appellee:

Teresa E. McLaughlin and Randolf L. Hutter, United States Department of Justice, Tax Division, Washington, DC

Hoffman v. Tonnemacher, No. 08-16166

In an action under the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. section 1395dd(a), based on an emergency room physician's failure to diagnose plaintiff's bacterial infection, summary judgment for defendants is affirmed where the district court had discretion to entertain successive motions for summary judgment and did not abuse its discretion in permitting defendants to file a successive motion.

Read Hoffman v. Tonnemacher, No. 08-16166

Judges

Opinion by Judge Graber

Appellate Information

For Appellant:

Kevin G. Little, Fresno, CA

For Appellee:

Lara M. Krieger, Greines, Martin, Stein & Richland LLP, Los Angeles, CA

Coyt v. Holder, No. 05-77080

In a petition for review of the BIA's denial of petitioner's motion to reissue the BIA's decision and stay his removal, the petition is granted where the BIA may not deem a motion to reopen or reissue withdrawn by operation of law when the government removes a petitioner before the BIA has ruled on the motion.

Read Coyt v. Holder, No. 05-77080

Appellate Information

Argued and Submitted October 5, 2009

Filed January 20, 2010

Judges

Opinion by Judge Thomas

Counsel

For Petitioner:

Robert Bradford Jobe, San Francisco, CA

For Respondent:

Eric Warren Marsteller, U.S. Department of Justice, Washington, DC

US v. Palos-Marquez, No. 08-50498

Defendant's conviction for transportation of illegal aliens is affirmed where an in-person tip by an unidentified informant provided reasonable suspicion to support border patrol agents' investigatory stop of defendant's vehicle.

Read US v. Palos-Marquez, No. 08-50498

Appellate Information

Argued and Submitted November 4, 2009

Filed January 19, 2010

Judges

Opinion by Judge Ikuta

Counsel

For Appellant:

Erick L. Guzman, Federal Defenders of San Diego, Inc., San Diego, CA

For Appellee:

David L. Katz, Office of the United States Attorney, San Diego, CA

Fishermen's Finest Inc. v. Locke, No. 08-36024

In a petition for review of the Secretary of Commerce's order allocating Pacific cod in the Bering Sea and Aleutian Islands Management Area among different sectors of the fishing industry, the petition is denied where: 1) petitioner failed to demonstrate that the allocation, although disadvantageous to it, was not fair or equitable in furthering the beneficial objectives of the relevant Fishery Management Plan; and 2) the Fishery Management Councils also considered the best available sociological data.

Read Fishermen's Finest Inc. v. Locke, No. 08-36024

Appellate Information

Argued and Submitted November 6, 2009

Filed January 19, 2010

Judges

Opinion by Judge Alarcon

Dissent by Judge Clifton

US v. Aguirre-Ganceda, No. 08-35696

In an appeal from a denial of defendant's motion to correct his sentence as untimely, the order is affirmed where: 1) the district court properly determined that defendant's judgment of conviction became final upon the Supreme Court's denial of certiorari; and 2) extraordinary circumstances justifying equitable tolling did not include defendant's lawyer's miscalculation of a limitation period.

Read US v. Aguirre-Ganceda, No. 08-35696

Appellate Information

Argued and Submitted December 7, 2009

Filed January 19, 2010

Judges

Opinion by Judge Beezer

Counsel

For Appellants:

Matthew Campbell, Assistant Federal Public Defender, Spokane, WA

For Appellee:

Gregory M. Shogren, Assistant United States Attorney, Yakima, WA

Narouz v. Charter Comms., LLC, No. 07-56005

In a class action for unpaid wages, the district court's denial of the parties' motion to certify a class for settlement purposes is vacated where: 1) the voluntary dismissal by a class representative of his personal claims in a putative class action lawsuit did not render moot his appeal of the denial of class certification; and 2) the district court erred in denying class certification without providing any findings or providing any analysis of the Fed. R. Civ. P. 23 factors.

Read Narouz v. Charter Comms., LLC, No. 07-56005

Appellate Information

Argued November 17, 2008

Submitted December 1, 2009

Filed January 15, 2010

Judges

Opinion by Judge Smith

Counsel

For Appellants:

Stephen M. Harris, Knapp, Peterson & Clarke, Glendale, CA

For Appellees:

Steven D. Allison and Mandana Massoumi, Dorsey & Whitney LLP, Irvine, CA

Weissburg v. Lancaster Sch. Dist., No. 08-55660

In an action seeking attorney's fees based on an administrative proceeding under the Individuals with Disabilities in Education Act in which an Administrative Law Judge concluded that defendant school district misclassified the disability of plaintiffs' son, dismissal of the action is reversed where: 1) plaintiffs were a prevailing party because the change in the student's disability classification legally entitled the child to instruction by teachers qualified to teach students with both mental retardation and autism; and 2) even though parents were not eligible to receive attorneys' fees when they represented their children themselves, a parent was eligible to receive attorneys' fees when a non-parent relative provided legal representation for their child.

Read Weissburg v. Lancaster Sch. Dist., No. 08-55660

Appellate Information

Argued and Submitted October 8, 2009

Filed January 14, 2010

Judges

Opinion by Judge Pregerson

Counsel

For Appellants:

Diane B. Weissburg, Diane Bargara Weissburg Law Offices, Marina del Rey, CA

For Appellees:

Carol J. Grogan, Schools Legal Service, Bakersfield, CA

Clouthier v. Contra Costa, No. 07-16703

In a 42 U.S.C. section 1983 action alleging that a mental health specialist, two sheriff's deputies, and a county violated the Fourteenth Amendment due process rights of plaintiffs by failing to prevent their son's suicide while he was in pretrial detention, summary judgment for defendants is affirmed in part where, as to certain defendants, the evidence was insufficient to allow a jury to conclude that they knew the decedent was suicidal and deliberately ignored that risk.  However, the order is reversed in part where, in light of a defendant's understanding that the decedent was not "out of the woods" yet, and in light of the clearly established law at the time, a reasonable mental health professional could not have thought it was lawful to remove key suicide prevention measures put in place by a prior staff member.

Read Clouthier v. Contra Costa, No. 07-16703

Appellate Information

Argued and Submitted March 10, 2009

Filed January 14, 2010

Judges

Opinion by Judge Ikuta

Partial Concurrence and Partial Dissent by Judge Block

Counsel

For Appellant:

Stan Casper and Thomas A. Seaton, Casper, Meadows, Schwartz & Cook, Walnut Creek, CA

For Appellees:

Janet L. Holmes, Office of County Counsel, Martinez, CA

Crowe v. San Diego, No. 05-55467

In a 42 U.S.C. section 1983 action based on defendants' investigation and prosecution of plaintiffs-teenagers for a crime of which they were innocent (the murder of one of the teens' sister), partial summary judgment for defendants on a majority of plaintiffs' claims is reversed in part primarily where: 1) a Fifth Amendment cause of action against the relevant defendants arose when two plaintiffs' coerced statements were introduced against them during pre-trial proceedings, namely a California law "Dennis H." hearing, grand jury proceedings, as well as a Cal. Crim. P. Code 707 hearing; 2) interrogations violated two plaintiffs' Fourteenth Amendment rights to substantive due process, and defendants were not entitled to qualified immunity; and 3) summary judgment was erroneously granted on a number of other claims, as well.

Read Crowe v. San Diego, No. 05-55467

Appellate Information

Argued and Submitted June 1, 2008

Filed January 14, 2010

Judges

Opinion by Judge Thomas

Counsel

For Appellants:

Milton J. Silverman and Robert T. Geile, Law Office of Milton J. Silverman, San Diego, CA

Jon R. Williams and Lindsay J. Reese, Ross, Dixon & Bell, San Diego, CA

For Appellees:

George W. Brewster Jr. and John J. Sansone, County Counsel, County of San Diego, San Diego, CA

Richard J. Schneider, Golnar J. Fozi, Daley & Heft LLP, Solana Beach, CA

U.S. Philips Corp. v. KBC Bank N.V., No. 08-56296

In plaintiff's appeal from the district court's order granting movant-bank's motion to modify a preliminary injunction freezing the assets of the underlying defendants, the order is vacated where the temporary restraining order and preliminary injunction entered by the district court dissolved when the default judgment issued, and thus the district court's subsequent modification order was void ab initio.

Read U.S. Philips Corp. v. KBC Bank N.V., No. 08-56296

Appellate Information

Argued and Submitted November 2, 2009

Filed January 12, 2010

Judges

Opinion by Judge Gould

Counsel

For Appellant:

Sean A. O'Keefe, O'Keefe & Associates Law Corporation, P.C., Newport Beach, CA

For Appellee:

James M. Andriola and Tony L. Richardson, Reed Smith LLP, Los Angeles, CA

Elliot-Park v. Manglona, No. 08-16089

In a 42 U.S.C. section 1983 action based on officers' alleged failure to investigate a crime or arrest the alleged perpetrator because of the race of the victim and that of the perpetrator, denial of defendants' motion to dismiss based on qualified immunity is affirmed where: 1) officers' discriminatory failure to arrest, as well as investigate, can violate equal protection; 2) plaintiff sufficiently alleged such a violation in this case; and 3) defendant-officers had a more than fair warning that failure to investigate and arrest the perpetrator because of race violated equal protection.

Read Elliot-Park v. Manglona, No. 08-16089

Appellate Information

Argued and Submitted May 12, 2009

Filed January 12, 2010

Judges

Opinion by Judge Kozinski

Counsel

For Appellants:

Braddock Jon Huesman, Assistant Attorney General, CNMI Office of the Attorney General, Saipan, MP

For Appellee:

George L. Hasselback and Joseph E. Horey, O'Connor Berman Dotts & Banes, Saipan, MP

Mattos v. Agarano, No. 08-15567

In a 42 U.S.C. section 1983 action based on defendant-officers' use of a Taser on plaintiff, a denial of summary judgment based on qualified immunity is reversed where, given the dangerous nature of domestic violence situations, the close quarters in which the officers and plaintiffs were contained, and plaintiff's husband's intoxicated state, there was the risk of immediate threat to the safety of the officers.

Read Mattos v. Agarano, No. 08-15567

Appellate Information

Argued and Submitted May 15, 2009

Filed January 12, 2010

Judges

Per Curiam

Counsel

For Appellants:

Brian T. Moto, Laureen L. Martin and Moana M. Lutey, Deputies Corporation Counsel, Wailuku, HI

For Appellees:

Eric A. Seitz and Lawrence I. Kawasaki, Honolulu, HI

Richardson v. Runnels, No. 07-16736

In a 42 U.S.C. section 1983 action by a prisoner alleging that he was placed in racially discriminatory lockdowns, summary judgment for defendants is affirmed in part where the lockdown did not violate due process because it did not impose extraordinary hardship on plaintiff. However, the order is reversed in part where defendants offered no evidence to disprove plaintiff's claim of racial discrimination.

Read Richardson v. Runnels, No. 07-16736

Appellate Information

Argued and Submitted February 13, 2009

Filed January 12, 2010

Judges

Opinion by Judge Noonan

Counsel

For Appellant:

Cynthia J. Larsen, Sacramento, CA

For Appellees:

John W. Riches, II, Sacramento, CA

Donohue v. Quick Collect, Inc., No. 09-35183

In an action claiming that defendant collection agency violated the Fair Debt Collection Practices Act (FDCPA) by charging a usurious rate of interest, summary judgment for defendant is affirmed where: 1) the creditor's assessment of finance charges was not a forbearance, and therefore there was no Washington usury law violation; and 2) the complaint correctly calculated the total debt plaintiff owed, accurately stated the principal owed, and accurately listed the total non-principal amount owed inclusive of interest and finance charges.

Read Donohue v. Quick Collect, Inc., No. 09-35183

Appellate Information

Argued and Submitted December 10, 2009

Filed January 13, 2010

Judges

Opinion by Judge Gould

Counsel

For Appellant:

Michael J. Beyer, Spokane, WA

For Appellee:

Christopher J. Kerley, Evans, Craven & Lackie, P.S., Spokane, WA

US v. Yip, No. 08-10235

Defendant's tax fraud conviction is affirmed where: 1) the district court properly included defendant's unpaid state taxes in the tax loss computation on which his term of imprisonment and his restitution order were based; 2) defendant was not entitled to an imputed deduction for his unpaid state taxes; and 3) the district court properly applied the sentencing enhancement because defendant's actions obstructed an IRS audit.  However, defendant's sentence is vacated per a separate unpublished memorandum.

Read US v. Yip, No. 08-10235

Appellate Information

Argued and Submitted October 13, 2009

Filed January 13, 2010

Judges

Opinion by Judge Graber

Counsel

For Appellant:

Theodore Y. H. Chinn and Howard T. Chang, Honolulu, HI

For Appellee:

Leslie E. Osborne, Jr., Assistant United States Attorney, Honolulu, HI

Baghdasaryan v. Holder, No. 05-72416

In a petition for review of the BIA's denial of petitioner's asylum application, the petition is granted where: 1) the evidence in the record would compel a reasonable factfinder to conclude that petitioner was mistreated because of his political opinion; and 2) the BIA needed to consider whether the threats, harassment, fines, detention, and beating that petitioner experienced rose to the level of persecution.

Read Baghdasaryan v. Holder, No. 05-72416

Appellate Information

September 30, 2009

Filed January 13, 2010

Judges

Opinion by Judge Pregerson

Counsel

For Petitioner:

Shawn Sedaghat, Law Offices of Shawn Sedaghat, Encino, CA

For Respondent:

Brigid Martin, United States Department of Justice, San Francisco, CA

In an appeal from the district court's order vacating a maritime attachment of defendant's property, the order is affirmed where the district court properly vacated the attachment because plaintiff failed to show it had a valid prima facie breach of contract or unjust enrichment claim against defendant.

Read Equatorial Marine Fuel Mgmt. Servs. Pte. Ltd. v. MISC Berhad, No. 08-57046

Appellate Information

Argued and Submitted July 7, 2009

Filed January 11, 2010

Judges

Opinion by Judge Kozinski

Counsel

For Appellant:

Brian D. Starer and Alan Heblack, Squire, Sanders & Dempsey L.L.P., New York, NY

For Appellee:

William H. Collier, Jr., Elizabeth P. Beazley and Tara B. Voss, Keesal, Young & Logan, Long
Beach, CA

US v. Mausali, No. 08-50062

A defendant waives his claim of outrageous government conduct of which he is aware if he fails to assert it in a pretrial motion to dismiss. Defendant's drug conspiracy conviction is affirmed where defendant failed to raise outrageous government conduct before the district court prior to trial, during trial, or even after trial, despite knowing the facts supposedly supporting his claim months before trial began.

Read US v. Mausali, No. 08-50062

Appellate Information

Submitted December 11, 2009

Filed January 11, 2010

Judges

Opinion by Judge Silverman

Counsel

For Appellant:

Cristina Gabrielidis Lechman, Lechman & Lechman, San Diego, CA

For Appellee:

Thomas P. O'Brien, Christine C. Ewell and Joseph N. Akrotirianakis, Los Angeles, CA

US v. Pineda-Moreno, No. 08-30385

Defendant's drug manufacturing conviction is affirmed where: 1) defendant could not show that the police invaded an area in which he possessed a reasonable expectation of privacy when they walked up his driveway and attached a tracking device to his vehicle; and 2) the police did not conduct an impermissible search of defendant's car by monitoring its location with mobile tracking devices.

Read US v. Pineda-Moreno, No. 08-30385

Appellate Information

Argued and Submitted October 5, 2009

Filed January 11, 2010

Judges

Opinion by Judge O'Scannlain

Counsel

For Appellant:

Harrison Latto, Portland, OR

For Appellee:

Amy E. Potter and Judith R. Harper, Assistant United States Attorneys for the District of Oregon, Medford, OR

Nunez v. Duncan, No. 04-36146

In a Bivens action arising out of an allegedly unlawful strip search of a prisoner, summary judgment for defendants is affirmed where: 1) plaintiff failed to exhaust his administrative remedies with respect to his First Amendment claim; and 2) the evidence plaintiff presented that a guard was motivated to search him for non-penological reasons was irrelevant to the reasonableness of the search.

Read Nunez v. Duncan, No. 04-36146

Appellate Information

Argued and Submitted May 6, 2009

Filed January 11, 2010

Judges

Opinion by Judge Fletcher

Dissent by Judge Ikuta

Counsel

For Appellant:

Banurekha Ramachandran, Perkins Coie, LLP, Portland, OR

For Appellees:

Margaret M. Ogden and Amy Potter, Federal Bureau of Prisons, SeaTac, WA

In re: Ormsby, No. 08-15572

In an action by a creditor to prevent the bankruptcy court's discharge of a state court judgment against the debtor, summary judgment for the creditor is affirmed where: 1) the debtor's conduct constituted larceny within the federal meaning of the term, and accordingly under 11 U.S.C. section 523(a)(4), his debt could not be discharged; 2) the debtor knew that the creditor's injury was substantially certain to occur as a result of his conduct; and 3) the district court's withdrawal of the creditor's motion for attorney's fees and subsequent decision on attorney's fees were not improper.

Read In re: Ormsby, No. 08-15572

Appellate Information

Argued and Submitted June 11, 2009

Filed January 8, 2010

Judges

Opinion by Judge Roth

Counsel

For Appellant:

Helga A. White, Auburn, CA

For Appellee:

James A. Tiemstra, Esquire, Law Offices of James A. Tiemstra, CA

Singh v. Holder, No. 07-73792

In a petition for review of the BIA's denial of petitioner's application for a hardship waiver of the joint petition requirement for permanent residence, the petition is denied where: 1) the BIA considered hardship to all the family members discussed in petitioner's testimony; 2) because petitioner was a former permanent resident who lacked conditional status when he filed his second and third petitions requesting hardship waivers, he had no status to extend; and 3) even if the immigration judge erred in evaluating the evidence concerning hardship, his errors were rendered harmless by the BIA's de novo review.

Read Singh v. Holder, No. 07-73792

Appellate Information

Argued and Submitted October 6, 2009

Filed January 8, 2010

Judges

Opinion by Judge Berzon

Counsel

For Petitioner:

Martin Avila Robles, Immigration Practice Group, P.C., San Francisco, CA

For Respondent:

Eric W. Marsteller, Office of Immigration Litigation, U.S. Department of Justice, Washington, DC

US v. Capener, No. 07-10359

In a case involving a failed prosecution for health care fraud, an order partially granting defendant's motion under the Hyde Act and awarding fees to cover the costs of defending against certain counts associated with one of the theories advanced by the government on the ground that the theory was frivolous, is reversed and the fee application is denied where the failure by the government to thoroughly investigate the case was not the kind of misconduct requiring a fee award.

Read US v. Capener, No. 07-10359

Appellate Information

Argued and Submitted November 17, 2008

Filed January 8, 2010

Judges

Opinion by Judge Trager

Counsel

For Appellant:

Vijay Shanker, United States Department of Justice, Washington, DC

For Appellee:

Jeffery S. Parker, Great Falls, VA

Cook v. Lamarque, No. 08-15894

In a murder prosecution, a denial of petitioner's habeas petition is affirmed where: 1) the prosecution's justification for striking certain jurors based on their prior experiences with the criminal justice system were legitimate and not pretextual; 2) another prospective juror's reaction during voir dire was uniquely cynical and could plausibly indicate bias in favor of defendants who did not have wealth; and 3) another juror's attitude toward law enforcement, not his race, was the determining factor in the prosecutor's decision to strike him.

Read Cook v. Lamarque, No. 08-15894

Appellate Information

Argued and Submitted October 6, 2009

Filed January 7, 2010

Judges

Opinion by Judge Tallman

Partial Concurrence and Partial Dissent by Judge Hawkins

Counsel

For Appellant:

Allison Claire, Federal Public Defender's Office, Sacramento, CA

For Appellee:

Ward A. Campbell and Eric L. Christoffersen, Office of the California Attorney General, Sacramento, CA

Retuta v. Holder, No. 04-74855

Petition for review of the BIA's order removing petitioner from the U.S. based on a prior controlled substance offense is granted where 8 U.S.C. section 1101(a)(48)'s definition of "conviction" did not include criminal judgments whose only consequence was a suspended non-incarceratory sanction.

Read Retuta v. Holder, No. 04-74855

Appellate Information

Argued and Submitted October 6, 2009

Filed January 7, 2010

Judges

Opinion by Judge Pollak

Counsel

For Petitioner:

James Todd Bennett, El Cerrito, CA

For Respondent:

Bryan Stuart Beier, U.S. Department of Justice, Washington, DC

In an action seeking compensation for defendant's alleged denial of employees' meal breaks, denial of class certification is reversed where the district court abused its discretion when it assumed, for the purpose of Fed. R. Civ. P. 23 certification analysis and without any separate inquiry into the merits, that plaintiffs' legal theory would fail.

Read United Steel, Paper & Forestry Int'l. Union v. ConocoPhillips Co., No. 09-56578

Appellate Information

Argued and Submitted November 4, 2009

Filed January 6, 2010

Judges

Opinion by Judge Bybee

Counsel

For Appellants:

Anne Richardson, Hadsell, Stormer, Keeny, Richardson & Renick, LLP, Pasadena, CA

For Appellee:

Rex S. Heinke, Akin Gump Strauss Hauer & Feld, LLP, Los Angeles, CA

In an antitrust action claiming that plaintiffs overpaid for defendant's pulse oximetry sensors because defendant used improper marketing agreements and made its sensors incompatible with generic products, summary judgment for defendant is affirmed where: 1) there was no evidence that defendant foreclosed competition in a substantial share of the sensor market; and 2) the undisputed evidence showed that defendant's patented sensor design was an improvement over the previous design.

Read Allied Orthopedic Apps. Inc. v. Tyco Health Care Group LP, No. 08-56314

Appellate Information

Argued and Submitted December 8, 2009

Filed January 6, 2010

Judges

Opinion by Judge Silverman

Counsel

For Appellants:

Herbert E. Milstein, Cohen Milstein Sellers & Toll PLLC, Washington, DC

Bruce E. Gerstein and Joseph Opper, Garwin Gerstein & Fisher LLP, New York, NY

For Appellees:

Theodore B. Olson, Christopher D. Dusseault, and Margaret A. Farrand, Gibson Dunn & Crutcher LLP, Los Angeles, CA

Vasquez-Hernandez v. Holder, No. 05-74392

In a petition for review of the BIA's denial of petitioner's motion to reopen his removal proceeding, the petition is denied where petitioner was statutorily ineligible under 8 U.S.C. section 1229b(b) for cancellation of removal based on his conviction for corporal injury to a spouse, an offense described in 8 U.S.C. section 1227(a)(2), and the petty offense exception in 8 U.S.C. section 1182(a)(2) was inapplicable.

Read Vasquez-Hernandez v. Holder, No. 05-74392

Appellate Information

Argued and Submitted November 2, 2009

Filed January 6, 2010

Judges

Opinion by Judge Nelson

Counsel

For Petitioner:

Robert F. Jacobs, Downey, CA

For Respondent:

Lyle D. Jentzer, Department of Justice, Washington, DC

US v. Forrester, No. 09-50029

Defendant's conviction for conspiracy to manufacture and distribute ecstasy are affirmed where: 1) substantive collateral attacks on permanent scheduling orders were impermissible in criminal cases where defendants' sentences would be determined by those scheduling orders; and 2) the district court properly denied defendant's motion to dismiss the indictment because it tracked the language of the conspiracy statute, identified a location and co-conspirators, and alleged the purpose of the conspiracy. However, defendant's sentence is vacated where the district court made inadequate findings to justify its reliance on a temporary amendment to U.S.S.G. section 2D1.1 that increased ecstasy-related penalties.

Read US v. Forrester, No. 09-50029

Appellate Information

Argued and Submitted November 3, 2009

Filed January 5, 2010

Judges

Opinion by Judge Smith

Counsel

For Appellant:

Benjamin L. Coleman and Ethan A. Baloch, Coleman & Baloch, LLP, San Diego, CA

For Appellee:

Bruce R. Castetter, Todd W. Robinson and Stewart M. Young, Assistant United States Attorneys, San Diego, CA

US v. Morales, No. 09-30047

Defendant's supervised release revocation sentence is affirmed where the commission's policy statement concerning whether a sentence reduction was authorized, U.S.S.G. section 1B1.10, was binding, and did not authorize a reduction in defendant's supervised release revocation sentence.

Read US v. Morales, No. 09-30047

Appellate Information

Argued and Submitted November 4, 2009

Filed January 5, 2010

Judges

Opinion by Judge Kozinski

Counsel

For Appellant:

Stephen R. Sady, Alison M. Clark, Assistant Federal Public Defender, Portland, OR

For Appellee:

Leah K. Bolstad, Karin J. Immergut and Kathleen L. Bickers, Assistant United States Attorney, Portland, OR

Shrestha v. Holder, No. 08-74751

In a petition for review of the denial of petitioner's asylum application, the petition is denied where: 1) the record's demonstration that petitioner's unresponsiveness was a pattern throughout the hearing was one of the circumstances that the REAL ID Act entitled the BIA to consider in assessing petitioner's credibility; and 2) petitioner's inability to consistently describe the underlying events that gave rise to his alleged fear of persecution was an important factor that could be relied upon by the Immigration Judge in making an adverse credibility determination.

Read Shrestha v. Holder, No. 08-74751

Appellate Information

Submitted December 10, 2009

Filed January 5, 2010

Judges

Opinion by Judge Gould

Counsel

For Petitioner:

Patrick Cantor, Buttar & Cantor LLP, Tukwila, WA

For Respondent:

Tony West, Anthony C. Payne and Corlette J. Winston, Office of Immigration Litigation, Washington, DC

Sanchez v. Aerovias de Mexico, S.A., No. 08-55588

In a class action challenging an airline's collection of a tourism tax for the Mexican government from which plaintiffs were exempt, summary judgment for defendants is affirmed where defendant did not make any contractual commitment to advise passengers about the Mexico tourism tax, not to collect it from exempt passengers, or to refund that portion of the price attributable to the tax.

Read Sanchez v. Aerovias de Mexico, S.A., No. 08-55588

Appellate Information

Argued and Submitted May 5, 2009

Filed January 5, 2010

Judges

Opinion by Judge Rymer

Dissent by Judge Kleinfeld

Counsel

For Appellant:

H. Rossbacher, The Rossbacher Firm, Los Angeles, CA

For Appellee:

Frank A. Silane, Condon & Forsyth LLP, Los Angeles, CA

Harrison v. Gillespie, No. 08-16602

In a capital habeas matter, a denial of petitioner's habeas petition is reversed where the state sought to retry petitioner and seek the death penalty following a mistrial, but there was no manifest necessity for the trial court to have declared a mistrial without first polling the jury in order to determine whether petitioner had been acquitted of the death penalty.

Read Harrison v. Gillespie, No. 08-16602

Appellate Information

Argued August 10, 2009

Submitted August 14, 2009

Filed January 5, 2010

Judges

Opinion by Judge Reinhardt

Dissent by Judge Silverman

Counsel

For Appellant:

JoNell Thomas, David M. Schieck, Scott L. Bindrup, Clark County Special Public Defender, Las Vegas, NV

For Appellee:

Steven S. Owens, Clark County District Attorney, Las Vegas, NV

Upper Skagit Indian Tribe v. Washington, No. 07-35061

In a motion by an Indian tribe pursuant to a prior consent decree seeking a determination that the tribe possessed fishing rights in a certain area, summary judgment for plaintiff is affirmed where the fact that the judge who initially issued the decree defined "Puget Sound" in one order as including Skagit Bay and Saratoga Passage did not mean that references to "Puget Sound" in other orders always included those same areas.

Read Upper Skagit Indian Tribe v. Washington, No. 07-35061

Appellate Information

Argued and Submitted October 21, 2008

Filed January 5, 2010

Judges

Opinion by Judge Rymer

Dissent by Judge Kleinfeld

Counsel

For Appellants:

Michelle Hansen, Office of Tribal Attorney, Suquamish, WA

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

For Appellees:

Harold Chesnin, Office of the Tribal Attorney, Sedro Woolley, WA

Andrew H. Salter, Seattle, WA

Farrakhan v. Gregoire, No. 06-35669

In a Voting Rights Act (VRA) action by minority citizens of Washington state who lost their right to vote pursuant to the state's felon disenfranchisement provision, summary judgment for defendants is reversed where: 1) plaintiffs had standing because a decision invalidating Washington's felon disenfranchisement provision would redress plaintiffs' injury in that it would restore their right to vote; 2) a failure to show that a state had a history of discriminatory voting practices did not negate a showing under the VRA that the current voting practice at issue was discriminatory; and 3) plaintiffs demonstrated that racial minorities were overrepresented in the felon population based upon factors that could not be explained by non-racial reasons.

Read Farrakhan v. Gregoire, No. 06-35669

Appellate Information

Argued and Submitted April 8, 2008

Filed January 5, 2010

Judges

Opinion by Judge Tashima

Dissent by Judge McKeown

Counsel

For Appellants:

Ryan P. Haygood, NAACP Legal Defense & Educational Fund, Inc., New York, NY

For Appellees:

Carol Murphy, Deputy Solicitor General, Olympia, WA

US v. Laurico-Yeno, No. 09-50093

Defendant's sentence for being a deported alien found in the U.S. is affirmed where the use of physical force against the person of another was an element of California Penal Code section 273.5, and thus defendant's prior violation of that statute was a categorical crime of violence under U.S.S.G. section 2L1.2.

Read US v. Laurico-Yeno, No. 09-50093

Appellate Information

Argued and Submitted November 3, 2009

Filed January 4, 2010

Judges

Opinion by Judge Molloy

Counsel

For Appellant:

Kristi A. Hughes, Federal Defenders of San Diego, Inc., San Diego, CA

For Appellee:

Douglas Keehn, Bruce R. Castetter, Mark R. Rehe, Assistant United States Attorneys, San Diego, California

Caviness v. Horizon Cmty. Learning Ctr., Inc., No. 08-15245

In a 42 U.S.C. section 1983 action challenging a charter school's termination of a teacher, dismissal of the complaint is affirmed where plaintiff's allegations were insufficient to raise a reasonable inference that defendant was a state actor and thus acted under color of state law in taking the alleged actions.

Read Caviness v. Horizon Cmty. Learning Ctr., Inc., No. 08-15245

Appellate Information

Argued and Submitted June 9, 2009

Filed January 4, 2010

Judges

Opinion by Judge Ikuta

Counsel

For Appellant:

David C. Larkin, David. C. Larkin P.C., Tempe, AZ

For Appellee:

Sally A. Odegard and Larry J. Wulkan, Holloway, Odegard, Forrest & Kally, P.C., Phoenix, AZ

US Life Ins. Co. v. Superior Nat'l. Ins. Co., No. 07-55938

In a motion to vacate an arbitral award in a reinsurance dispute, the denial of the motion is affirmed where, although the process employed by the arbitration panel, which included an ex parte meeting with panel retained workers' compensation experts, was unusual, the arbitration process provided the parties with a fundamentally fair arbitration and the arbitration award rested on a plausible interpretation of the governing arbitration documents.

Read US Life Ins. Co. v. Superior Nat'l. Ins. Co., No. 07-55938

Appellate Information

Argued and Submitted November 19, 2008

Filed January 4, 2010

Judges

Opinion by Judge Shea

Counsel

For Petitioner:

Andrew S. Amer and Deborah Lynn Stein, Simpson, Thatcher & Bartlett LLP, New York, NY

Kathleen M. Sullivan, Quinn Emanuel Urquhart Oliver & Hedges LLP, Redwood Shores, CA

For Respondents:

Margaret M. Grignon, Reed Smith LLP, Los Angeles, CA

Joseph K. Hegedus, Lewis Brisbois Bisgaard & Smith LLP, Los Angeles, CA

Taslimi v. Holder, No. 05-71006

In a petition for review of the BIA's order finding petitioner statutorily ineligible for asylum, the petition is granted where the BIA was required to determine whether, in an exercise of discretion, petitioner merited a grant of asylum under 8 U.S.C. section 1158(b).

Read Taslimi v. Holder, No. 05-71006

Appellate Information

Argued and Submitted December 10, 2008

Filed January 4, 2010

Judges

Opinion by Judge Pregerson

Counsel

For Petitioner:

Haleh Mansouri, Los Angeles, CA

For Respondent:

Stuart Nickum, Department of Justice Trial Attorney, Washington, DC