U.S. Ninth Circuit: March 2010 News
U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

9th Circuit March 2010 News

Agriculture, Immigration and Tort Cases

Guerrero-Silva v. Holder, No. 05-77420, involved a petition for review of the BIA's order removing petitioner from the U.S.  The court of appeals dismissed the petition, holding that petitioner's drug conviction under California Health and Safety Code section 11361(b) qualified as a controlled substance offense under 8 U.S.C. section 1227(a)(2)(B)(i).

Geographic Expeditions, Inc. v. Estate of Lhotka, No. 09-15069, concerned proceedings arising from an individual's death from high altitude sickness while on an expedition to Mount Kilimanjaro.  The court of appeals affirmed the district court's dismissal of petitioner-guided expedition company's petition to compel arbitration for lack of subject matter jurisdiction, on the grounds that 1) applied a preponderance of the evidence standard to its determination of whether petitioner met the "amount in controversy" requirement for diversity jurisdiction, when the legal certainty standard in fact applied; and 2) when it held that a clause in the arbitration agreement limiting damages to $16,831 precluded federal jurisdiction, because the existence of a valid defense to plaintiff's claim on the face of the complaint did not preclude jurisdiction.

National Meat Ass'n. v. Brown, No. 09-15483, involved the State of California's appeal from a preliminary injunction prohibiting the enforcement of California Penal Code section 599f, which banned the slaughter and inhumane handling of nonambulatory animals, against federally regulated swine slaughterhouses.  The Ninth Circuit vacated the injunction, holding that 1) 21 U.S.C. section 678 preempted state regulation of the "premises, facilities and operations" of slaughterhouses, but section 599f dealt with none of these; 2) it was not physically impossible to comply with both section 599f and the Federal Meat Inspection Act; and 3) plaintiff failed to show a likelihood of irreparable injury or that the balance of the equities and the public interest tipped in its favor as to section 599f(e)'s humane handling provision.

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Thompson v. Frank, No. 08-16982

Thompson v. Frank, No. 08-16982, involved the state's appeal from a district court's order staying a habeas petition filed by a Hawaii state prisoner.  The Ninth Circuit dismissed the appeal, holding that, because a district court's conclusion about whether a habeas claim had been exhausted was addressable on appeal after final judgment, the requirements of the collateral order doctrine were not satisfied.

As the court wrote:  "The State of Hawaii and other respondents appeal the district court's order staying a 28 U.S.C. § 2254 habeas corpus petition filed by James Thompson, a Hawaii state prisoner, who is serving a sentence of life with possibility of parole and other concurrent sentences after his conviction of several counts of sexual assault, attempt, and kidnapping. The district court stayed proceedings in the case pending exhaustion of his unexhausted claims in state court. We conclude we lack appellate jurisdiction over the interlocutory appeal and dismiss it."

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Ledezma-Garcia v. Holder, No. 03-73648

Ledezma-Garcia v. Holder, No. 03-73648, involved a petition for review of the BIA's order removing petitioner from the U.S. based on his commission of an aggravated felony of sexually molesting a minor.  The Ninth Circuit granted the petition, holding that 1) the 1988 law that made aliens deportable for aggravated felony convictions did not apply to convictions prior to November 18, 1988; and 2) neither Congress's overhaul of the grounds for deportation in 1990 nor its rewrite of the definition of aggravated felony in 1996 erased that temporal limitation.

As the court wrote:  "Ramon Ledezma-Galicia, a lawful permanent resident alien, was convicted in an Oregon state court in September 1988 of sodomy, for sexually molesting a minor. Current law provides that "sexual abuse of a minor" is an "aggravated felony" as defined by 8 U.S.C. § 1101(a)(43)(A), and therefore grounds for removal under 8 U.S.C. § 1227(a)(2)(A)(iii). Ledezma-Galicia does not dispute that his crime is an aggravated felony. Instead, the question before us is whether Ledezma-Galicia may now be removed from the country based on his 1988 conviction, even though he would not have been deportable for that crime -- or for any aggravated felony -- at the time of his conviction. We conclude that he may not be removed, because (1) the 1988 law that made aliens deportable for aggravated felony convictions did not apply to convictions prior to November 18, 1988; and (2) neither Congress's overhaul of the grounds for deportation in 1990 nor its rewrite of the definition of aggravated felony in 1996 erased that temporal limitation."

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In Chawla v. Holder, No. 05-74823, the Ninth Circuit granted a petition for review of the BIA's decision affirming a denial of petitioner's asylum application, holding that none of the reasons articulated by the Immigration Judge or BIA, considered either separately or in combination, provided a legitimate basis to question petitioner's credibility.

In US v. Dewey, No. 08-30450, the court of appeals affirmed defendant's drug conspiracy sentence, holding that 1) the court generally did not review challenges to the effectiveness of defense counsel on direct appeal; 2) because defendant's 1990 sentence was greater than one year and one month, and his date of last release from prison on that sentence was within the fifteen-year period, the trial court did not err in concluding that defendant qualified as a career offender; and 3) defendant's within-guideline sentence could not be deemed unreasonable when his prior felony offenses brought him within the Guidelines as a career offender.

Brooks v. Seattle, No. 08-35526, concerned an action against a city and its police officers claiming the officers used excessive force when they tased plaintiff three times to effect her arrest.  The court of appeals reversed the denial of summary judgment based on qualified immunity, holding that 1) the officers had probable cause to arrest plaintiff because she refused to sign a notice of infraction concerning her speeding violation, which amounted to a violation of the Seattle Municipal Code; 2) the use of the Taser in drive-stun mode was painful but also temporary and localized, without incapacitating muscle contractions or significant lasting injury; and 3) the district court's general and vague statement that there were "numerous other means of removing" plaintiff reflected after-the-fact speculation and failed to address what else the officers could have done in the situation that confronted them at that moment, when they needed to get the resistant plaintiff out of the car to arrest her.

Daniel v. Coleman Co., No. 08-35592, involved a wrongful death action against the manufacturer of a propane heater.  The court of appeals affirmed judgment for defendant, on the grounds that 1) there was no post-sale duty to warn of a danger already accounted for; and 2) the district court did not err in excluding the results of several tests performed by defendant on its indoor "camping" heater, as well as evidence of an earlier warning campaign associated with the same heater, because plaintiff was permitted to present substantially equivalent evidence.

In US v. Castro, No. 09-50164, the Ninth Circuit vacated defendant's sentence for attempted reentry into the U.S. after removal, holding that defendant's prior conviction under California Penal Code section 288(c)(1) categorically constituted neither "sexual abuse of a minor" nor "statutory rape" and therefore did not qualify as a crime of violence warranting a sixteen-level increase.

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Civil Rights, Criminal, Employment and Immigration Cases

Lee v. Holder, No. 07-71193, involved a petition for review of the BIA's order removing petitioner from the U.S.  The Ninth Circuit denied the petition, holding that the IJ did not err in finding petitioner ineligible for U visa interim relief, a temporary form of relief that was previously made available to immigrant victims of crime, because only U.S. Citizenship and Immigration Services could grant such relief.

Valdivia v. Schwarzenegger, No. 08-15889, concerned proceedings related to a November 2003 injunction based on a stipulation between plaintiff and a class of similarly situated California parolees, and Governor Arnold Schwarzenegger and the State of California, prescribing procedures for parole revocation hearings in California.  The court of appeals affirmed the district court's post-injunction order adopting the injunction-related recommendations of the court-appointed Special Master regarding the use of hearsay evidence in parole revocation hearings, based on United States v. Comito, 177 F.3d 1166 (9th Cir. 1999).

However, the court reversed the district court's order denying the state's motion to modify the injunction to conform to the voter promulgated statute, Cal. Penal Code section 3044, formerly California Proposition 9, holding that the order made no express determination that any aspect of the California parole revocation procedures, as modified by Proposition 9, violated federal constitutional rights, nor any determination that the injunction was necessary to remedy a constitutional violation.

Bamonte v. Mesa, No. 08-16206, concerned an action by police officers contending that a city violated the Fair Labor Standards Act (FLSA) by failing to compensate the officers for the donning and doffing of their uniforms and accompanying gear.  The court of appeals affirmed summary judgment for defendant on the ground that, because the officers had the option of donning and doffing their uniforms and gear at home, the district court correctly determined that these activities were not compensable pursuant to the FLSA and the Portal-to-Portal Act.

Bailey v. Hill, No. 09-35450, involved a habeas petition challenging a state court's restitution order entered after petitioner's guilty plea to kidnapping and attempted assault.  The court of appeals affirmed the denial of the petition on the ground that a challenge to a restitution order by a custodial state prisoner who did not challenge the lawfulness of his custody under federal law was not sufficient for jurisdiction under the federal habeas statute 28 U.S.C. section 2254.

In US v. Maciel-Alcala, 09-50038, the court of appeals affirmed defendant's aggravated identity theft conviction, holding that the scienter element of 18 U.S.C. section 1028A required that the government prove only that defendant knew that the victim was a real person, living or deceased, when he procured a passport using the victim's birth certificate.

In US v. Xinidakis, 09-50307, the court of appeals affirmed defendant's sentence for violating the terms of his supervised release, holding that 18 U.S.C. section 3624(e) did not prohibit a district court from imposing consecutive sentences of imprisonment where a defendant violated concurrent terms of supervised release.

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Criminal Matters

In US v. Christensen, No. 08-30120, the court of appeals reversed defendant's sentence for enticement of a minor to engage in sexual activity and obstruction of justice for failing to appear at trial, on the ground that a Sentencing Commission amendment providing that U.S.S.G. section 2G1.3(b)(2)(B)'s sentencing enhancement should not be applied where the "minor" is actually an undercover officer applied retroactively and thus affected defendant's sentence.

In US v. Denton, No. 09-50253, the Ninth Circuit reversed defendant's sentence following the revocation of his supervised release for physically abusing his girlfriend, on the ground that a defendant's uncharged conduct, which would be chargeable under California law as a wobbler offense -- an offense that may be charged as either a misdemeanor or a felony -- was not presumptively a felony, punishable by more than one year in prison, for the purposes of calculating whether the defendant committed a Grade A, B, or C violation of his supervised release.

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Xilinx, Inc. v. Comm'r. of Int'l. Rev., No. 06-74246, involved a tax court petition challenging the IRS's determination that, under the tax regulations in effect during tax years 1997, 1998 and 1999, related companies engaged in a joint venture to develop intangible property must include the value of certain stock option compensation one participant gives to its employees in the pool of costs to be shared under a cost sharing agreement, even when companies operating at arm's length would not do so.

Compton Unified Sch. Dist. v. Addison, No. 07-55751, concerned an administrative claim under the Individuals with Disabilities Education Act (IDEA) for failure to identify plaintiff-student as disabled.  The court of appeals affirmed judgment on the pleadings for plaintiff, holding that 1) a reading of the IDEA that left parents without an adequate remedy when a school district unreasonably failed to identify a child with disabilities would not comport with Congress' acknowledgment of the paramount importance of properly identifying each child eligible for services; and 2) considering plaintiff's substantial degree of success in administrative and district court proceedings, the district court did not abuse its discretion in awarding attorneys' fees.

In re: Taylor, No. 08-60033, involved debtors' appeal from the bankruptcy court's order avoiding a transfer of a security interest in an automobile to a bank.  The court of appeals reversed, holding that the bankruptcy court's determination of the value of the security interest was clearly erroneous, because there was no evidence to support the bankruptcy court's finding that the value of the security interest equaled the amount of the original loan at the time the bank perfected its security interest.

In US v. Nevils, No. 06-50485, the court of appeals affirmed defendant's firearm possession conviction, on the ground that, viewing the evidence as required by Jackson v. Virginia, there was sufficient evidence to permit a rational juror to conclude beyond a reasonable doubt that defendant knowingly possessed firearms and ammunition.

In re: Marshall, No. 02-56002, concerned an action based on defendant's purported tortious interference with a substantial inter vivos gift that plaintiff's late husband intended to give to her.  The court of appeals reversed judgment for plaintiff, holding that a prior Texas probate court judgment should have been afforded preclusive effect because it was the earliest final judgment on matters relevant to the proceeding.

Edgerly v. San Francisco, No. 05-15080, involved a 42 U.S.C. section 1983 action against police officers and a city alleging that the officers unlawfully arrested and searched plaintiff in violation of the Fourth Amendment.  The Ninth Circuit affirmed judgment for defendants in part, holding that 1) plaintiff did not provide sufficient evidence that the officers were acting pursuant to a city policy of conducting strip searches without reasonable suspicion; and 2) the district court did not err in sanctioning plaintiff for filing frivolous motions for reconsideration because its finding that plaintiff's motions did not raise any new issues was not clearly erroneous.  However, the court of appeals reversed in part, holding that, viewing the evidence in the light most favorable to plaintiff, a reasonable jury could find that the officers subjected him to an unreasonable search.

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Constitutional, Criminal and Education Law Matters

Payne v. Peninsula Sch. Dist., No. 07-35115, involved an action under the Individuals with Disabilities Education Act ("IDEA") by the mother of an autistic student.  The court of appeals affirmed the dismissal of action, holding that the district court correctly found that it lacked subject matter jurisdiction over the federal claims because plaintiff failed to exhaust her administrative remedies before coming into federal court.

Desert Outdoor Advertising, Inc. v. Oakland, No. 09-15530, concerned an action claiming that the city of Oakland's billboard ordinances violated the First Amendment.  The Ninth Circuit affirmed the denial of plaintiff's motion to clarify the district court's prior declaratory judgment partially invalidating the ordinances, holding that, contrary to plaintiff's assertions, the declaratory judgment could not reasonably be understood to have struck down the entire scheme of sign-regulation.

In US v. Rocha, No. 08-50175, the court of appeals reversed defendant's convictions for: 1) assault committed by means of force likely to produce great bodily injury under California Penal Code section 245, as assimilated into federal law by the Assimilated Crimes Act and 2) assault with a dangerous weapon under the federal assault statute, on the grounds that 1) the federal assault statute precluded application of California Penal Code section 245; and 2) the evidence presented to the jury that defendant used his bare hands to perpetrate the assault could not support a conviction under the federal assault statute for assault with a dangerous weapon.

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Insurance and Tax Matters

Service Employees Int'l. Union v. US, No. 07-17256, involved an appeal of the IRS's assessment of penalties for late filing of a return.  The Ninth Circuit reversed the district court's order reducing the assessed penalty, holding that penalties on tax exempt organizations for late filing of informational returns may not be reduced by district courts as a matter of discretion.

Chandler v. State Farm Mut. Auto. Ins. Co., No. 09-55123, concerned an action seeking car rental costs from an insurer arising out of an auto accident.  The court of appeals affirmed the dismissal of the complaint, holding that, under California law, an insurer is permitted to recoup a payout from a third-party tortfeasor's insurance company before the insured has sued the third-party tortfeasor, and without first making the insured whole.

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Criminal, Employment and Immigration Cases

In US v. Maggi, No. 08-30223, the court of appeals vacated defendants' convictions for, respectively, sexual abuse of a minor and assault, holding that 1) there was no evidence that one defendant had any blood from a federally recognized Indian tribe; and 2) the other defendant lacked sufficient government or tribal recognition as an Indian.

Tamang v. Holder, No. 08-73550, concerned a petition for review of the denial of petitioner's asylum application.  The court of appeals denied the petition, holding that 1) the ineffectiveness of petitioner's former counsel's assistance was not plain on its face; 2) petitioner did not suffer any personal persecution, and his claim for asylum was time-barred; and 3) substantial evidence supported the Immigration Judge's finding that changed conditions in Nepal mitigated against any fear of persecution if petitioner returned to Nepal.

Alcazar v. Corp. of the Catholic Archbishop of Seattle, No. 09-35003, involved an action seeking pay for the overtime hours plaintiff worked as a seminarian in a Catholic church in Washington.  The court of appeals affirmed the dismissal of the action, on the grounds that the ministerial exception barred the claim because 1) the First Amendment strongly circumscribed legislative and judicial intrusion into the internal affairs of a religious organization; 2) awarding damages would necessarily trench on the Church's protected ministerial decisions; and 3) plaintiff's complaint demonstrated that plaintiff was a minister for purposes of the ministerial exception.

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Service Employees Int'l. Union v. Nat'l. Union of Healthcare Wkrs., No. 09-15855, concerned an action by a union seeking injunctive relief to obtain restoration of properties it alleged were illegally taken by the former officers and leaders of the union, who formed a rival union.

The court of appeals affirmed the temporary restraining order (TRO) entered by the district court, holding that 1) the TRO was an appealable order and thus the court of appeals had jurisdiction to review it; 2) in its subsequent preliminary injunction the district court explicitly preserved a portion of the TRO as still effective after issuance of the injunction, so the appeal was not moot; and 3) the district court's jurisdiction was proper under 29 U.S.C. section 185(a) because providing a federal forum for injunctive relief against the former officers and leaders of the union promoted the stability of the parent-local relationship and the representation of rank-and-file members.

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Morton v. Hall, No. 07-55574

Morton v. Hall, No. 07-55574, concerned a 42 U.S.C. section 1983 action alleging that prison officials' deliberate indifference contributed to a violent assault on plaintiff by inmates.

In short, as described by the court, "On June 18, 2003, Morton was assaulted by unknown
inmates in the prison yard at Ironwood State Prison in Blythe, California ("Ironwood"). It is not clear why he was assaulted, although he alleges it was because inmates gained access to his prison central file ("C-file") and learned facts relating to his commitment offense (assault and murder of his five-year old step-daughter) that stigmatized him as a sex-offender."

The court of appeals affirmed the dismissal of the complaint for failure to exhaust administrative remedies, on the ground that the grievance filed by plaintiff was insufficient to put prison officials on notice of plaintiff's complaint that prison-staff conduct contributed to his assault.

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Criminal, First Amendment and Immigration Matters

Newdow v. Rio Linda Union Sch. Dist., No. 05-17257, concerned an Establishment Clause action by the atheist parent of a student challenging the recitation of the pledge of allegiance by other students in the school at issue.  The court of appeals reversed an injunction in favor of plaintiffs, holding that the Pledge of Allegiance did not violate the Establishment Clause because Congress's ostensible and predominant purpose was to inspire patriotism and that the context of the Pledge--its wording as a whole, the preamble to the statute, and this nation's history--demonstrated that it was a predominantly patriotic exercise, despite its use of the words "under God."

Tijani v. Holder, No. 05-70195, concerned a petition for review of the BIA's denial of petitioner's asylum application.  The court of appeals granted the petition in part, on the ground that the court was required to remand to the BIA to address the questions of whether petitioner would be in danger of persecution on account of his religion or would be entitled to other relief.  However, the court of appeals denied the petition in part, holding that petitioner's credit card fraud in violation of Cal. Penal Code § 532a(1) constituted a crime of moral turpitude.

Newdow v. US Congress, No. 06-16344, involved an action claiming that the national motto of the United States, "In God We Trust," and its inscription on the Nation's coins and currency, violated the Establishment Clause and the Religious Freedom Restoration Act of 1993.  The court of appeals affirmed the dismissal of the complaint, holding that the Ninth Circuit's prior decision in Aronow v. U.S., 432 F.2d 242 (9th Cir. 1970), foreclosed both claims.

In Stanley v. Schriro, No. 06-99009, a capital habeas matter, the Ninth Circuit affirmed the denial of the petition in part where defense counsel's performance did not prejudice petitioner during the guilt phase of his trial.  However, the court reversed in part on the grounds that trial counsel rendered ineffective assistance during the penalty phase of trial by failing to investigate and present readily available mitigating evidence, and that failure was prejudicial.

Coyote Publishing, Inc. v. Miller, No. 07-16633, concerned a facial First Amendment challenge to restrictions on advertising by legal brothels.  The court of appeals reversed summary judgment for plaintiff, holding that the advertising restrictions targeted pure commercial speech, and there were strong reasons why the sale of sexual services, in particular, ought to be treated differently than other advertising bans on "vice" activities.

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Civil Procedure, Criminal and Personal Injury Matters

Primiano v. Cook, No. 06-15563, involved an action against the manufacturer of an artificial elbow.  The court of appeals reversed summary judgment for defendant on the ground that the exclusion of plaintiff's expert's evidence was error as plaintiff's expert, with a sufficient basis in education and experience, testified that the artificial joint "failed to perform in the manner reasonably to be expected in light of its nature and intended function," which was enough to assist a trier of fact.

In Valdovinos v. McGrath, No. 08-15918, the court of appeals reversed in part the denial of petitioner's habeas petition in a murder prosecution, holding that a reasonable probability existed that certain undisclosed Brady material, which included evidence of prior photo lineups, the drugs and gun found in a government witness's possession, and the favorable treatment the witness received for his testimony, could have altered the result of the trial.

Hesse v. Sprint Corp., No. 08-35235, concerned a class action alleging that defendant Sprint Corp. unlawfully collected a Washington state tax from Washington customers.  The court of appeals vacated summary judgment for defendant, on the ground that a prior class action settlement challenged Sprint's billing of customers for certain federal regulatory fees, and the Washington plaintiffs' interests were not adequately represented in that litigation.

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The Ninth Circuit decided a variety of cases today. Here's the run-down:

Najmabadi v. Holder, No. 05-72401, involved a petition for review of the BIA's order denying petitioner's motion to reopen her removal proceedings on the basis of changed conditions in Iran.  The court of appeals denied the petition, holding that 1) substantial evidence supported the Board's finding that the evidence petitioner submitted in her motion to reopen was not qualitatively different from the evidence presented at the original hearing; and 2) there was no evidence establishing that returnees from the U.S. would likely face persecution.

Native Ecosystems Council v. Tidwell, No. 06-35890, involved an action challenging the Forest Service's approval of a project to update grazing allotments in the Beaverhead-Deerlodge National Forest.  The court of appeals reversed summary judgment for defendant, on the grounds that 1) because the Forest Service's environmental assessment was based on a nonexistent management indicator species, its habitat proxy analysis was not reliable; and 2) the Forest Service failed to take the requisite "hard look" at the project as required by the National Environmental Policy Act.

Tampubolon v. Holder, No. 06-70811, involved a petition for review of the BIA's denial of petitioners' asylum application.  The court granted the petition in part, on the ground that the BIA erred in failing to apply disfavored group analysis to petitioners' withholding claim because the record compelled a finding that Christians in Indonesia are a disfavored group.  However, the court denied the petition in part, holding that the BIA's failure to address two irrelevant cases did not render the proceeding fundamentally unfair.

Martinez v. Wells Fargo Home Mortgage, Inc., No. 07-17277, concerned an action under Section 8(b) of the Real Estate Settlement Procedures Act (RESPA), and California's Unfair Competition Law (UCL), claiming that a mortgage lender charged plaintiffs an illegal underwriting fee.  The court of appeals affirmed the dismissal of the complaint, on the grounds that 1) the clear and unambiguous language of RESPA Section 8(b) did not reach the practice of "overcharging"; and 2) the UCL claims alleging "unfair" and "fraudulent" conduct were preempted by the National Bank Act, and the allegations of "illegal" conduct failed to state a claim.

Espinosa v. City & County of San Francisco, No. 08-16853, was a 42 U.S.C. section 1983 action claiming excessive force by defendants-officers.  The court of appeals affirmed the denial of summary judgment based on qualified immunity, holding that 1) defendants failed to show as a matter of law that plaintiff's decedent did not have a reasonable expectation of privacy; 2) the district court properly found that defendants failed to show as a matter of law that the emergency and exigency exceptions to the Fourth Amendment warrant requirement applied; 3) defendants failed to show that there were no questions of fact regarding whether a security guard had apparent authority to consent and implied consent; and 4) the district court did not err in finding that there were genuine issues of fact regarding whether the officers intentionally or recklessly provoked a confrontation.

In US v. Cha, No. 09-10147, the court of appeals affirmed the grant of defendant's motion to suppress evidence, holding that the warrantless seizure of defendants' residence, which lasted a minimum of 26.5 hours, was constitutionally unreasonable.

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Criminal Matters

The Ninth Circuit issued five opinions, all dealing with criminal matters.  Three involved the capital murder conviction and sentence of the same defendant, and the other two concerned immigration issues.

In Rhoades v. Henry (Haddon), No. 07-35808, a capital habeas matter, the court of appeals affirmed the denial of petitioner Paul Rhoades' habeas petition on the grounds that 1) the deposition testimony and affidavits of both counsel supported the district court's finding that petitioner failed to show that defense counsel lacked the information contained in an allegedly withheld report; 2) petitioner pointed to no evidence that the judge was unable to preside over his case in a fair and impartial manner; and 3) petitioner offered insufficient authority to justify the application of a heightened standard of reliability to guilt phase issues.

In Rhoades v. Henry (Baldwin), No. 07-99022, the court of appeals affirmed the denial of Rhoades' petition pertaining to another murder victim, on the grounds that 1) an allegedly exculpatory confession by another witness was not reliable and was thus appropriately excluded; 2) there was no Brady violation when a defendant possessed the information that he claims was withheld; 3) defendant's statement that "I did it" came after his handcuffs were removed and while petitioner was being booked at the station, and in these circumstances no Mosley error occurred; and 4) the aggravating circumstances were too strong, and the new mitigating evidence added too little, to create a reasonable probability of a different outcome absent defense counsel's alleged ineffectiveness.

In Rhoades v. Henry (Michelbacher), No. 07-99023, the court of appeals affirmed the denial of Rhoades' petition as to another victim, holding that 1) no Brady violation could occur when a defendant possessed the information that he claims was withheld; 2) petitioner offered no support for his assertion that the district court should have held an evidentiary hearing on the Brady claim; and 3) it was not reasonably likely that a challenged instruction, in context of the instructions overall, caused the jury to misapply the state's burden of proof.

US v. Arias-Ordonez, No. 08-10259, involved a prosecution for reentry following removal from the U.S.  The court of appeals affirmed the dismissal of the indictment, holding that the order instructing defendant to report for removal misinformed him that he had no administrative remedies and he was never told that he had a right to reopen to seek voluntary departure.

In US v. Molina, No. 09-10066, the court of appeals affirmed defendant's sentence for transporting an illegal alien, on the grounds that 1) because there was no evidence of involuntariness, the district court properly admitted the hearsay evidence at defendant's sentencing hearing pursuant to a signed stipulation; and 2) the conflicting evidence weighed against a finding that defendant accepted responsibility for his actions.

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Capital Habeas, Government Benefits and Immigration Decisions

The Ninth Circuit decided one capital habeas case, one involving longshoremen's benefits, and another concerning an immigration law issue.

In Smith v. Mahoney, No. 94-99003, a capital habeas matter, the Ninth Circuit affirmed the denial of the petition, on the grounds that 1) although defense counsel inadequately investigated the facts of the case before allowing petitioner to plead guilty, petitioner did not establish that he was prejudiced by his lawyer's representation; 2) non-character, non-circumstance evidence need not factor into the constitutionality of a death sentence; and 3) petitioner failed to develop his claim of judicial bias sufficiently to warrant an evidentiary hearing.

In Lanuza v. Holder, No. 07-71943, a petition for review of the BIA's decision pretermitting petitioners' applications for special rule cancellation of removal under Section 203 of the Nicaraguan and Central American Relief Act (NACARA), the court of appeals denied the petition where 1) the court lacked jurisdiction to determine petitioner's statutory eligibility for NACARA section 203 relief; and 2) the Immigration Jude did not violate petitioner's constitutional right to due process by depriving her of a full and fair hearing and a reasonable opportunity to present evidence on her behalf.

In Rhine v. Stevedoring Servs. of Am., No. 08-73370, a petition for review of a decision of the Benefits Review Board under 33 U.S.C. section 921(c) of the Longshore and Harbor Workers' Compensation Act, the court of appeals denied the petition where 1) a reasonable mind could have concluded that the Pacific Maritime Association Average adequately represented petitioner's annual earning capacity; and 2) the availability of alternative employment was determined by reference to two criteria: the claimant's physical abilities and the economic availability of particular jobs in the market.

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Telecommunications and Environmental Cases

The Ninth Circuit decided one environmental law matter and one concerning an arbitral award regarding telecommunications local exchange carriers.

MacClarence v. EPA, No. 07-72756, involved a petition for review of the EPA's order denying petitioner's request that the EPA object to the issuance of a Clean Air Act Title V permit for pollutant-emitting activities at an oil and gas processing facility.

The court of appeals denied the petition, holding that 1) the EPA Administrator's conclusion that petitioner failed to provide adequate information to support his claim that the entire facility should be aggregated was not arbitrary or capricious; and 2) the Administrator's order denying the petition properly set forth petitioner's burden under 42 U.S.C. section 7661d(b)(2), stating that "to justify exercise of an objection by EPA to a title V permit pursuant to section 7661d(b)(2), a petitioner must demonstrate that the permit is not in compliance with the requirements of the CAA" and later concluding that "the general allegations of the Petitioner in the April 2004 Petition . . . fail to demonstrate a basis for Petitioner's claim that Revision 1 to the GC 1 Permit violates the CAA . . . ."

Pac. Bell Tel. Co. v. Cal. Pub. Utils. Comm., No. 08-15568, involved a telecommunications company's appeal from (1) the district court's confirmation of an arbitral order affirming the California Public Utilities Commission's (CPUC) requirement that plaintiff lease entrance facilities to competitor local exchange carriers (LECs) at Total Element Long Run Incremental Cost (TELRIC) rates for the purpose of interconnection; and (2) the district court's order vacating the arbitrator's affirmance of CPUC's conclusion that 47 C.F.R. section 51.319(e)(2)(ii)(B) applied only on routes where competitive LECs were not "impaired" as to DS3 transport circuits.

The court of appeals affirmed the orders where 1) FCC regulations authorized state public utilities commissions to order incumbent LECs to lease entrance facilities to competitive LECs at regulated rates for the purpose of interconnection; and 2) the plain language of the governing regulation, 47 C.F.R. section 51.319(e (2)(ii)(B), limited a competitive LEC to a maximum of ten DS1 circuits along any route regardless of whether the competitive LEC was impaired as to DS3 lines.

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The Ninth Circuit decided two cases pertaining to California legislation impacting health-related government benefits.

Dominguez v. Schwarzenegger, No. 09-16359, was an action to enjoin California legislation that reduced the state contribution to wages paid to In-Home Supportive Services (IHSS) providers because it was preempted by Section 30(A) of the Medicaid Act.

The court of appeals affirmed an injunction for plaintiff on the grounds that 1) both the legislature and the Department of Social Services recognized that reimbursement rates--that is, providers' wages and benefits--were directly correlated to ensuring that services were consistent with efficiency, economy, and quality of care, and sufficient to ensure access to services under the IHSS program; 2) since the court of appeals determined that the State should have studied the impact of its decreased contribution to providers' wages and benefits prior to passing Cal. Welf. & Inst. Code section 12306.1(d)(6), the State was not ipso facto immunized from challenges to its actions because it had no system in place to make such an assessment; and 3) the district court did not abuse its discretion in concluding that plaintiffs established irreparable harm absent injunctive relief, as its finding regarding provider harm was not clearly erroneous.

California Pharm. Assn. v. Maxwell-Jolly, No. 09-55532, involved an action to enjoin the California Department of Health Care Services Director from implementing state legislation reducing payments to certain medical service providers.

The Ninth Circuit affirmed a preliminary injunction in favor of plaintiffs, on the ground that the state failed to study the impact of a 5% percent rate reduction on the statutory factors of efficiency, economy, quality, and access to care prior to implementing the rate reductions.

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Education and Employment Law Matters

The Ninth Circuit decided one matter concerning a civil rights action against a school district, and another involving an employment discrimination claim.

Rutti v. Vermillion, No. 07-56599, was a class action on behalf of all technicians employed by defendant to install alarms in customers' cars, in which plaintiff sought compensation for the time technicians spent commuting to worksites in defendant's vehicles and for time spent on preliminary and postliminary activities performed at their homes.

The court of appeals affirmed partial summary judgment for defendant, holding that 1) pursuant to the Employment Commuter Flexibility Act, use of an employer's vehicle to commute was not compensable even if it was a condition of employment; and 2) the conditions defendant placed on plaintiff's use of its vehicle did not make his commute compensable.  However, the court reversed the judgment in part on the ground that, on summary judgment, the district court could not determine that plaintiff's postliminary activities were not integral to plaintiff's principal activities.

Doe v. Kamehamema Schs./Bernice Pauahi Bishop Estate, No. 09-15448, was a racial discrimination action against a school district in which plaintiffs, four minor children, sought to proceed anonymously in their suit.  The court of appeals affirmed the dismissal of the complaint on the ground that the district court did not abuse its discretion in refusing to allow anonymity because the district court did not clearly err in its conclusion that plaintiffs did not reasonably fear severe harm.

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Ruling in Alien Trafficking Case of US v. Reyes-Bosque

In US v. Reyes-Bosque, No. 08-50253, the Ninth Circuit affirmed defendants' convictions for aiding aggravated felon aliens to enter the U.S. and related offenses.

The court of appeals held that 1) defendant did not present sufficient evidence to prove that he was an overnight guest in an apartment searched by police, and did not argue that he had standing to challenge the search on any other grounds; 2) the fact that defendant physically gave the landlord the rent payment was insufficient to establish that he had a legitimate expectation of privacy in another apartment; and 3) the agents who performed the search had an objectively reasonable basis for believing that there was an immediate need to protect the individuals in the apartment.

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