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

Bailey v. US, No. 09-16247

In Bailey v. US, No. 09-16247, an action by the decedent's widow and children claiming the government was negligent in the Army Corps of Engineers' failure to place warning signs near a submerged dam, the court affirmed the dismissal of the action where the decision not to place warning signs on account of worker peril was a discretionary decision commended by Congress for decision by the Corps, not to be second-guessed by a court or jury.

Polimaster Ltd. v. RAE Sys., Inc., No. 08-15708

In Polimaster Ltd. v. RAE Sys., Inc., No. 08-15708, plaintiffs' appeal from the district court's confirmation of an arbitration award against them and in favor of defendants, the court reversed where the arbitration agreement required that all requests for affirmative relief, whether styled as claims or counterclaims, be arbitrated at the defendant's site, and the parties did not do so.

In US v. Mayweather, No. 08-50449, the court affirmed defendant's conviction and sentence for possessing a firearm in furtherance of a drug trafficking crime, holding that there was a fundamental and dispositive difference between McTiernan and this case -- namely, whether, prior to pleading, the defendant was aware of the prospect of making a suppression motion.

Defendant Could Not Be Forcibly Medicated, and Other Criminal Matter

In US v. Ruiz-Gaxiola, No. 08-10378, an illegal reentry prosecution, the court reversed the district court's order authorizing the government to administer antipsychotic medication forcibly, where 1) the district court erred in finding that the Sell factors were met without affording the question the "thorough consideration and justification" and "especially careful scrutiny" required; 2) the district court clearly erred in finding that the government proved by clear and convincing evidence that the proposed regime of involuntary medication is substantially likely to restore defendant to competency, as required under the second Sell factor; and 3) the district court clearly erred in finding that the government proved by clear and convincing evidence that the proposed treatment was medically appropriate, as required under the fourth Sell factor.

Child Molestation Habeas Petition, and Other Habeas Matter

In Rossum v. Patrick, No. 09-55666, a murder prosecution, the court reversed the denial of petitioner's habeas petition where, in light of the anomalous medical and toxicological evidence, the ready availability of an alternative cause of death, the lapse in the chain of custody of the victim's autopsy specimens, and the failure of petitioner's attorneys to have a test conducted that could have conclusively contradicted the prosecution's theory of the case, petitioner made a strong showing that her lawyers' performance was deficient, and the district court needs to conduct an evidentiary hearing on this issue.

Capital Habeas Matter, and Environmental and Government Benefits Matters

In Berry v. Astrue, No. 09-35421, plaintiff's appeal from the Social Security Administration's denial of his claim for disability insurance benefits, the court vacated where the ALJ needed to allow plaintiff to prove his contention that drug testing requirements made it physically impossible for him to perform his past relevant work.

Phoenix Mem. Hosp. v. Sebelius, No. 09-15506

In Phoenix Mem. Hosp. v. Sebelius, No. 09-15506, an action against the Secretary of Health and Human Services arguing that the adjustment plaintiff-hospitals received for serving disproportionately high numbers of low-income patients should be increased because the reimbursement did not account for all low-income patients included under the Arizona Health Care Cost Containment System, the court affirmed summary judgment for defendant where the Secretary's decision that Medically Needy/Medically Indigent patient days were properly excluded from the Medicaid Low Income Proxy was not contrary to law, arbitrary or capricious, or unsupported by substantial evidence.

In Lopez v. Candaele, No. 09-56238, a student's First Amendment challenge to a community college sexual harassment policy, the court reversed a preliminary injunction in favor of plaintiff, where the student failed to make a clear showing that his intended speech on religious topics gave rise to a specific and credible threat of adverse action from college officials under the college's sexual harassment policy.

Arson Conviction Reversed, and Environmental Matter

In Hapner v. Tidwell, No. 09-35896, an action under the National Environmental Policy Act, challenging the Smith Creek Project in the Gallatin National Forest to reduce the risks of severe wildfire, insect infestation, and disease, as well as to promote habitat diversity, the court affirmed summary judgment for defendants in part where the Forest Service's risk reduction calculations are supported by studies conducted in other regions, as well as by extensive modeling.  However, the court reversed in part where the Project violated the National Forest Management Act by failing to comply with the elk-cover requirement contained in the Gallatin National Forest Plan.

Interpretation of Bankruptcy Homestead Exemption, and Criminal Matter

In Dunn v. Castro, No. 08-15957, a challenge to a restriction that was temporarily imposed on plaintiff's right to receive visits from his three minor children while he was in prison, the court reversed the denial of defendants' motion to dismiss the complaint where a reasonable prison official could have believed that terminating plaintiff's right to receive visits from his children was lawful, in light of clearly established law and the information he possessed.

In US v. Espinoza-Morales, No. 09-50267, the court vacated defendant's sentence for attempted reentry following deportation, holding that neither defendant's prior conviction for sexual battery under California Penal Code section 243.4(a) nor his conviction for penetration with a foreign object under California Penal Code section 289(a)(1) constituted a crime of violence warranting the U.S.S.G. section 2L1.2(b)(1)(A)(ii) enhancement.

In Anderson v. City of Hermosa Beach, No. 08-56914, a First Amendment challenge to a city's ban on tattoo parlors, the court reversed summary judgment for defendant where tattooing was purely expressive activity fully protected by the First Amendment, and the city's total ban on such activity was not a reasonable "time, place, or manner" restriction.

Capital Habeas Matter, and Civil Rights and Immigration Matters

In Heishman v. Ayers, No. 07-99016,  a capital habeas matter, the court affirmed the denial of the petition, holding that 1) there is no reasonable likelihood that certain false testimony could have changed the jury's verdict or that the cumulative impact of the false testimony and undisclosed Brady material would have changed the jury's verdict; 2) although counsel's investigation regarding mitigation evidence could have been initiated earlier, petitioner did not show that counsel's timetable was per se constitutionally deficient under professional norms existing in 1980; and 3) the additional mitigation evidence that might have been uncovered was not compelling when weighed against the case in aggravation.

In Alday v. Raytheon Co., No. 08-16984, an action alleging that defendant breached collective bargaining agreements (CBAs) with plaintiffs and violated the Labor Management Relations Act (LMRA) and the Employee Retirement Income Security Act (ERISA), the court affirmed summary judgment for plaintiff where 1) the language of the CBAs made clear that defendant's agreement to pay retiree medical insurance premiums continued beyond the term of the CBAs, even where its agreement to pay non-retired employee premiums did not; 2) defendant's leeway to amend its benefit plans did not allow it to alter the terms of the CBAs under which it agreed to provide company-paid health insurance to retirees; and 3) plaintiffs failed to allege sufficient facts supporting their claim for punitive and extra-contractual damages.

McCormick v. Adams, No. 09-15546, involved the denial of a petition for habeas relief brought by a prisoner who waived his right to counsel and represented himself at trial and now claimed the waiver was not knowing and voluntary.  The court affirmed over petitioner's claims that 1) the trial court led him to believe he could revoke his Faretta waiver at any time, and that he relied on this promise in waiving his right to counsel; and 2) he made a mid-trial request for counsel that was wrongly denied by the trial court.

In Atlantic Nat'l Trust LLC v. Mt. Hawley Ins. Co., No. 09-35716, an action seeking insurance proceeds arising from a fire, the court dismissed defendants' appeal from the grant of plaintiff's motion to remand, holding that the court lacked appellate jurisdiction to review a federal district court order remanding a case to state court based on a ground colorably characterized as a "defect" for purposes of 28 U.S.C. section 1447(c).

In Garcia v. Holder, No. 07-71182, a petition for review of the BIA's order denying petitioners' motion to reopen their removal proceedings, the court granted the petition in part where the BIA erred by failing to exercise its discretion to consider or decline to consider petitioners' supplemental brief and the attached exhibit relating to a new medical condition allegedly incurred by mother.  However, the court denied the petition in part where the BIA did not abuse its discretion in concluding that petitioners' daughter's new medical condition did not warrant reopening.

In US v. Armstrong, No. 09-30395, the court affirmed defendant's sentence for participating in a racially motivated assault against an African American man, holding that 1) under U.S.S.G. section 3A1.1(a), the court acted properly in imposing the three-level enhancement at sentencing; and 2) the prosecution pointed to, and the district court relied on, specific and material instances of defendant's false testimony.