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

9th Circuit August 2010 News

In California State Foster Parents' Ass'n v. Wagner, No. 09-15025, an action against officials of the State of California under 42 U.S.C. section 1983 claiming a violation of plaintiffs' federal right to payments under the Child Welfare Act (CWA), and seeking declaratory and injunctive relief, the court affirmed judgment for plaintiffs where the CWA, at 42 U.S.C. sections 672(a) and 675(4)(A), created an enforceable federal right.

Kamalyan v. Holder, No. 05-76408, involved a petition for review brought by an Armenian Jehova's Witness challenging the Board of Immigration Appeals' (BIA) order adopting and affirming a decision of an immigration judge removing petitioner from the U.S.  The court granted the petition on the ground that any reasonable adjudicator would agree that the government did not establish a fundamental change in country conditions by a preponderance of the evidence.

In Singh v. Napolitano, No. 07-16988, the court affirmed the denial of petitioner's habeas petition, holding that the Attorney General's decision in Compean II, which affirmed the Ninth Circuit's language in Lata and Dearinger, did not create "new duties" for petitioner with respect to his habeas petition.

Fernandes v. Holder, No. 07-72415, involved a petition for review of the Board of Immigration Appeals' decision denying his application for asylum and withholding of removal on the ground that he filed a fraudulent asylum application and was not credible.  The court denied the petition on the grounds that 1) the IJ's consideration of petitioner's motion to reopen did not violate the BIA's remand order; and 2) the BIA's adverse credibility determination was supported by substantial evidence.

Fortune Dynamic, Inc. v. Victoria's Secret Stores Brand Mgmt., Inc., No. 08-56291, involved an action by Fortune Dynamic, Inc., the owner of the incontestable trademark DELICIOUS for footwear, against Victoria's Secret for trademark infringement.  The court reversed summary judgment for defendant on the grounds that 1) there was an issue of material facts as to whether consumers were likely to be confused as to the source of Victoria's Secret's pink tank top that read "Delicious"; and 2) although it was possible that Victoria's Secret used the term "Delicious" fairly -- that is, in its "primary, descriptive sense" -- a jury was better positioned to make that determination.

Carvalho v. Equifax Info. Servs., LLC, No. 09-15030, involved an action against credit reporting agencies alleging violations of the California Consumer Credit Reporting Agencies Act (CCRAA).  The court affirmed summary judgment for defendants on the grounds that 1) because the face of plaintiff's superior court complaint lacked any indication of the amount in controversy, it did not trigger the first thirty-day removal period; 2) because section 1785.25(a) was the only substantive CCRAA furnisher provision specifically saved by the Fair Credit Reporting Act, plaintiff's section 1785.25(f) claim was preempted; and 3) unless plaintiff raised a genuine issue as to whether the disputed item was inaccurate, her CCRAA section 1785.16 claims failed as a matter of law.

California v. Safeway, Inc., No. 08-55671, concerned an antitrust action challenging a profit-sharing provision between members of a multiemployer bargaining unit.  The court reversed the denial of summary judgment to plaintiff on the ground that a profit sharing agreement that would ordinarily violate the antitrust laws was not excused from compliance under the nonstatutory labor exemption because it constituted an economic weapon used by the employers in their efforts to prevail in a labor dispute.

FTC v. Network Servs. Depot, Inc., No. 09-15684, concerned an action by the FTC against defendants for making material misrepresentations and engaging in deceptive business practices in violation of Section 5(a) of the Federal Trade Commission Act.  The court affirmed judgment for plaintiffs on the grounds that 1) the facts led only to the conclusion that defendants had actual knowledge that at least some of their company's representations were false and potentially misleading; and 2) the district court did not commit reversible error by imposing a constructive trust upon $238,300 in fees that defendant paid to defense counsel.

Hawn v. Exec. Jet Mgmt., Inc., No. 08-15903, involved an action by flight attendants who were dismissed for sexual harassment, alleging discrimination on the basis of race, sex and national origin in violation of Title VII.  The court affirmed summary judgment for defendant on the grounds that 1) the district court did not err by focusing on the inference of discrimination that was central to plaintiffs' case; and 2) even assuming the female flight attendants reported to the same supervisor as plaintiffs, the two groups were not similarly situated because the female employees' alleged conduct was not unwelcome and never resulted in a complaint.

Jules Jordan Video, Inc. v. 144942 Canada Inc., No. 08-55075, involved an action by an adult video actor claiming that defendants copied and sold thirteen copyrighted adult DVDs featuring plaintiff's performances.  The court affirmed partial judgment as a matter of law for defendants on the grounds that 1) plaintiff's right of publicity claim was preempted by the Copyright Act; but 2) plaintiffs had standing to assert the copyright claims in question.

Lockwood v. Comm'r Soc. Sec. Admin., No. 09-35546, concerned a petition for review of the denial of social security benefits to petitioner, claiming that the ALJ erred when she failed to explain in her written decision why she treated a social security claimant as being a person closely approaching advanced age instead of treating the claimant as being a person of advanced age.  The court denied the petition on the ground that the ALJ did not err because she was required by regulation only to consider whether to use the older age category.

US v. Hall, No. 08-17267, involved debtors' appeal from the district court's reversal of the bankruptcy court's order sustaining the IRS's objection to debtors' proposed reorganization plan.  The court reversed where, since the chapter 12 estate is not a taxable entity, the chapter 12 estate cannot "incur" a tax.

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Campbell v. Henry, No. 07-16481, involved petitioner's appeal from the dismissal of her federal petition for writ of habeas corpus for failure to file within the one year statute of limitations mandated by 28 U.S.C. section 2244(d).  The court reversed on the ground that, for purposes of the section 2244(d) statute of limitations, she was entitled to the benefit of the mailbox rule when determining the filing dates of her state and federal habeas petitions, all of which were filed pro se.

Northstar Fin. Advisors, Inc. v. Schwab Invs., No. 09-16347, involved an action by investors claiming that a large American investment trust operating a series of mutual funds unlawfully deviated from the investment policies set forth in its registration statement, to the detriment of the fund's shareholders and in violation of section 13(a) of the Investment Company Act.  The court reversed the denial of defendant's motion to dismiss the complaint on the grounds that nothing in section 13(a) as originally enacted or as subsequently amended either created a private cause of action or recognized one existed with the clarity and specificity required under Supreme Court precedent.

In US v. Pineda-Doval, No. 08-10240, the court affirmed defendant's conviction for transportation of illegal aliens resulting in death, holding that 1) a defendant may be found guilty of transportation of illegal aliens resulting in death only if the government proves beyond a reasonable doubt that the defendant's conduct was the proximate cause of the charged deaths, and the government made this showing; and 2) because there was no "reasonable likelihood that the jury" thought the greater and lesser offenses were equivalent, there was no error, let alone plain error, in the verdict form.  However, the court vacated defendant's sentence where, because the court required strict compliance with Fed. R. Crim. P. 32, it could not give the district court the benefit of the doubt and assume it meant "malice aforethought" when it said "recklessness."

Miller v. Thane Int'l., Inc., No. 09-55474, involved a securities fraud class action alleging that a corporation's pre-merger prospectus contained materially misleading representations because it implied that the company's shares would list on the NMS.  The court affirmed judgment for defendant on the grounds that 1) in a prior order, the court did not comment on the reliability of the company's stock prices, other than to state what is undisputed, namely, that the stock traded in an inefficient market; and 2) stock price evidence may be used in a loss causation assessment when the market for a stock is not Cammer-level efficient.

Mesle v. Signed Personal Check No. 730, No. 09-55353

Mesle v. Signed Personal Check No. 730, No. 09-55353, concerned claimant's appeal from the district court's denial of his motion to set aside an entry of default in a forfeiture proceeding against checks drawn on claimant's accounts and funds in those accounts.  The court reversed on the ground that the district court erred by holding the movant to a standard inappropriate for determining whether an unrepresented lay party's conduct demonstrated culpability; and made merits decisions as to the movant's defenses that were premature at this stage of the proceedings, and, moreover, were incorrect.

AOL Trademark Infringement Matter re ADVERTISING.COM

Advertise.com, Inc. v. AOL Advertising, Inc., No. 10-55069, involved Advertising.com's appeal from a preliminary injunction barring it from using a designation or trade name that was confusingly similar to AOL's ADVERTISING.COM trademark.  The court of appeals vacated an injunction in favor of plaintiff in part on the ground that Advertise.com was likely to rebut the presumption of validity and prevail on its claim that ADVERTISING.COM was generic.

Summary Judgment for Defendants in CERCLA Action Affirmed

Plus Civil Rights, Criminal, Environmental and Government Benefits Matter

Cheney v. Washington, No. 08-35204, involved a habeas petition regarding petitioner's conviction for sexual abuse of a minor, claiming that petitioner was deprived of his Sixth Amendment right to effective assistance of counsel because his defense counsel failed to object properly at two points during his trial.  The Ninth Circuit affirmed the denial of the petition on the grounds that: 1) defense counsel could have decided not to object to a detective's testimony because it led the detective to admit not only that abuse allegations are sometimes baseless, but that his personal views were sometimes a determinative factor in the decision whether to prosecute; and 2) the state court could reasonably conclude that there was no reasonable probability of a different outcome had defense counsel made an immediate objection to the prosecutor's imprudent remarks.

Krainski v. Nevada, No. 08-17523, involved an action alleging constitutional and state law violations by a college student arising from an altercation with plaintiff's former roommate that led to plaintiff's arrest and subjection to university discipline.  The Ninth Circuit affirmed the dismissal of the action on the grounds that 1) the district court did not err in dismissing plaintiff's claims against defendants in their official capacities based on sovereign immunity; 2) the record did not contain any information that would create a genuine issue of material fact as to whether officers had facts sufficiently detailed to cause a reasonable person to believe a crime had been committed and that plaintiff was the perpetrator; and 3) plaintiff did not allege that defendants suspended or expelled her for her conduct, or that she was otherwise deprived of an entitlement to education conferred by the state or secured by some other independent source or understanding. 

City of Colton v. Am. Promotional Events, No. 06-56718, concerned an action by the City of Colton, California, under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for response costs allegedly incurred as a result of perchlorate contamination in its water supply.  The court of appeals affirmed summary judgment for defendants on the grounds that 1) plaintiff conceded that it failed to comply with the national contingency plan (NCP) in its past response action; and 2) CERCLA's purposes would be better served by encouraging a plaintiff to come to court only after demonstrating its commitment to comply with the NCP and undertake a CERCLA-quality cleanup.

Pit River Tribe v. US Forest Serv., No. 09-15385, involved an action by an Indian tribe against various agencies alleging that they violated various federal environmental laws during the leasing and development process regarding the development of a geothermal power plant.  The court of appeals affirmed summary judgment for defendants in part on the ground that the district court did not abuse its equitable powers in ordering that the original 1988 leases be treated as capable of extension.  However, the district court reversed in part with instructions to correct an inconsistency in the district court's order.

Turner v. Comm'r of Soc. Sec., No. 09-35080, involved a challenge to the denial of social security benefits by the Commissioner of Social Security.  The court of appeals affirmed summary judgment for defendant on the grounds that 1) there was no evidence in the record from an appropriate medical source during the relevant time period that refuted the administrative law judge's (ALJ) determination that plaintiff, even with post-traumatic stress disorder, was capable of performing simple, repetitive tasks in an environment where he could work alone and without public contact; and 2) the ALJ did not err in determining Turner's residual functional capacity.

In US v. Monday, No. 08-50206, the court of appeals affirmed defendant's conviction for violating 18 U.S.C. section 1709, which provided for felony penalties for a U.S. Postal Service employee entrusted with mail who "steals, abstracts, or removes from any such letter, package, bag, or mail, any article or thing contained therein . . . .", holding that the statute, in prohibiting Postal Employees from removing contents from mailed items, contained no specific intent requirement.

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Eid v. Alaska Airlines, Inc., No. 06-16457, concerned an action against an airline alleging damages due to delay under Article 19 of the Convention for the Unification of Certain Rules Relating to International Carriage by Air (Warsaw Convention), and a variety of state-law defamation and intentional infliction of emotional distress claims.  The court of appeals affirmed in part summary judgment for defendants on the ground that the crew's report to the police was covered by the Warsaw Convention and thus was not subject to defamation claims.  However, the court reversed in part on the ground that the fact finder here could conclude that the captain did not have reasonable grounds to believe that plaintiffs posed a threat to the security or order of the aircraft.

International Union v. J&R Flooring, Inc., No. 08-17089, involved an action to compel arbitration of a labor dispute.  The court of appeals affirmed the dismissal of the action on the ground that the particular dispute was principally representational and thus fell within the primary jurisdiction of the NLRB.

In US v. Gallegos, No. 08-17089, the court of appeals affirmed defendant's sentence based on his entry of two guilty pleas, one for illegal reentry, and the other for escape while awaiting sentencing on the first charge, on the grounds that 1) the plain language of 18 U.S.C. section 3584(a) authorized the district court's imposition of defendant's partially concurrent and partially consecutive sentence for the escape charge; and 2) there was no plain error in declining to offer a reduction for acceptance of responsibility on the illegal reentry charge while also enhancing defendant's sentence based on his obstruction of justice.

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