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

Ready Transp., Inc. v. AAR Mfg., Inc., No. 08-16941

Order Denying Motion to Strike Confidential Settlement Agreement Reversed

In Ready Transp., Inc. v. AAR Mfg., Inc., No. 08-16941, defendants' appeal from the district court's order denying defendants' motion to strike from its docket a confidential settlement agreement filed by plaintiffs, the court reversed where the district court had jurisdiction to grant the motion to strike pursuant to its inherent powers.

 

Maxwell v. Roe, No. 06-56093

Denial of Habeas Petition Reversed

In Maxwell v. Roe, No. 06-56093, a murder prosecution, the court reversed the denial of petitioner's habeas petition where 1) a state witness's false testimony was material and its inclusion undermined confidence in the judgment of the jury; and 2) the state court could not have reasonably determined that the suppressed evidence relating to the deal the witness received from the state and his prior cooperation with law enforcement as an informant was not material.

Coppinger-Martin v. Solis, No. 09-73725

In Coppinger-Martin v. Solis, No. 09-73725, an action alleging that Nordstrom, Inc. violated the whistleblower-protection provision of the Sarbanes-Oxley Act of 2002, by terminating petitioner's employment in retaliation for her reporting to supervisors conduct she believed violated the rules and regulations of the Securities and Exchange Commission, the court affirmed the Department of Labor's Administrative Review Board's order dismissing petitioner's complaint as untimely filed where petitioner filed her complaint on October 13, 2006, more than 90 days after her final day of work, and equitable tolling did not apply.

 

Coleman v. Estes Express Lines, Inc., No. 10-80152

Class Action Fairness Act Permission to Appeal Granted

In Coleman v. Estes Express Lines, Inc., No. 10-80152, a class action based on multiple alleged violations of California wage and hour statutes, the court granted defendant's application to appeal from the district court's remand order under the Class Action Fairness Act, holding that the array of courts on both sides of the question decided by the district court indicated that it was at least "fairly debatable" and that appellate review would be useful.

 

US v. Lightfoot, No. 09-30063

Drug and Firearm Sentence Affirmed

In US v. Lightfoot, No. 09-30063, defendant's appeal from a denial of his motion to reduce his drug and firearm sentence, the court affirmed where the district court had every reason to be concerned that defendant's prior behavior would become renascent upon his release from prison, and the court did not abuse its discretion when it refused to expedite imposition of defendant upon society by reducing his earlier sentence.

Rodriguez v. Lockheed Martin Corp., No. 10-15813

Wrongful Death Action Arising From Military Accident

In Rodriguez v. Lockheed Martin Corp., No. 10-15813, an action arising from the premature explosion of a mortar cartridge manufactured by General Dynamics during an army training exercise in Hawaii, the court dismissed defendant's appeal from the denial of summary judgment based on the government contractor defense, where the government contractor defense was not a grant of immunity.

 

US v. Johnson, No. 09-50292

Crack Sentence Vacated in Part

In US v. Johnson, No. 09-50292, the court affirmed in part defendant's sentence for knowingly and intentionally distributing at least 50 grams of a mixture containing cocaine base, holding that, although defendant may have been initially a) confused by the terms of his plea agreement, or b) confused by a specific question directed to him by the court, neither constituted plain error.  However, the court vacated in part where due process prohibited setting a condition of supervised release that "either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.

 

Stahl v. US, No. 10-35006

Income Tax Refund Action

In Stahl v. US, No. 10-35006, an action for a refund of personal income taxes, the court reversed summary judgment for the U.S., holding that plaintiff was an employee of the corporation at issue, and, therefore, his medical and meal expenses were deductible at the corporate level when the company's taxable income was determined.

 

Lyon v. Gila River Indian Comm., No. 08-15570

Dispute Over Parcel Surrounded By Indian Lands

In Lyon v. Gila River Indian Comm., No. 08-15570, an action seeking a declaratory judgment that debtors' estate had legal title and access to a parcel of land surrounded by Indian lands, the court affirmed partial judgment for plaintiffs where 1) the trustee's claim of a pre-existing easement to access the parcel was not preempted by the existence of a regulatory scheme for obtaining new easements over Indian lands; and 2) the implied easement Arizona obtained from the federal government in 1877 was effectively conveyed to each subsequent purchaser of the parcel.  However, the court vacated in part where the district court erred in refusing to take judicial notice of this official action by the Bureau of Indian Affairs.

  • Eklund v. City of Seattle Mun. Ct., No. 09-35652

    Wrongful Termination Action by Court Employee

    In Eklund v. City of Seattle Mun. Ct., No. 09-35652, an action alleging wrongful termination of plaintiff's employment by a municipal court and denial of due process of law in his termination, the court reversed the denial of qualified immunity where a reasonable person in defendant-judge's position would not have believed that he was constitutionally required to recuse himself.

  • Douglas v. Jacquez, No. 08-17478

    Habeas Petition in Murder Matter

    In Douglas v. Jacquez, No. 08-17478, a habeas petitioner's appeal from the district court's order vacating petitioner's murder conviction, but remanding the case to the state court with instructions for the state court to enter judgment against petitioner for arson of a structure, the court vacated the order where the district court exceeded its habeas powers when it directed the state to modify petitioner's sentence, but the Double Jeopardy Clause would not be implicated if the state court, of its own accord, were to re-sentence petitioner.

  • FreecycleSunnyvale v. The Freecycle Network, No. 08-16382

    Trademark Licensing Dispute

    In FreecycleSunnyvale v. The Freecycle Network, No. 08-16382, a declaratory action arising from a trademark licensing dispute, alleging noninfringement of defendant's trademarks and tortious interference with plaintiff's business relations, the court affirmed summary judgment for defendant where defendant: 1) did not retain express contractual control over plaintiff's quality control measures; 2) did not have actual controls over plaintiff's quality control measures, and 3) was unreasonable in relying on plaintiff's quality control measures.

  • US v. Steel, No. 09-50335

    Interlocutory Appeal from Denial of Dismissal of Indictment Dismissed

    In US v. Steel, No. 09-50335, the court dismissed defendant's appeal from the denial of his motion to dismiss an indictment for conspiracy to interfere with commerce by robbery, in violation of the Hobbs Act, where the court lacked interlocutory jurisdiction because defendant's double jeopardy claim was not colorable.

     

    In re: Schwarzkopf, No. 08-56974

    Fraudulent Transfer Action in Bankruptcy

    In In re: Schwarzkopf, No. 08-56974, an adversary proceeding seeking to recover for bankrupt estates' benefit approximately $4 million in assets, the court affirmed and reversed in part partial judgment for defendants where 1) the district court did not err in finding that a trust to which defendants transferred certain assets was fraudulent; and 2) the California courts had not extended the prohibition on "reverse-piercing" the corporate veil to the trust context.

     

    Humane Soc. of US v. Locke, No. 08-36038

    Environmental Action Regarding Killing of Sea Lions

    In Humane Soc. of US v. Locke, No. 08-36038, a challenge to the National Marine Fisheries Service's (NMFS) authorization of the states of Oregon, Washington and Idaho to kill up to 85 California sea lions annually at Bonneville Dam, the court affirmed judgment for defendants on plaintiffs' National Environmental Policy Act claim where 1) just because NMFS concluded that sea lions were having a significant negative impact on listed salmonid populations did not mean that the agency had also determined that the removal action authorized here would have a significant positive impact on these same populations; and 2) even if NMFS concluded that its action would have a "significant" positive impact on the fish populations involved, that would not necessarily translate into a finding of a significant effect on the quality of the human environment, as required by NEPA.  However, the court reversed summary judgment for defendants on plaintiffs' Marine Mammal Protection Act claim, where 1) the agency failed to adequately explain its finding that sea lions were having a "significant negative impact" on the decline or recovery of listed salmonid populations given earlier factual findings by NMFS that fisheries that caused similar or greater mortality among these populations were not having significant negative impacts; and 2) the agency did not adequately explain why a California sea lion predation rate of 1 percent would have a significant negative impact on the decline or recovery of those salmonid populations.

     

    U-Haul Int'l., Inc. v. Wilcher, No. 07-16482

    Westfall Act Substitution Issue

    In U-Haul Int'l., Inc. v. Wilcher, No. 07-16482, an action alleging that defendants improperly obtained privileged information and used it against plaintiff in NLRB proceedings, the court affirmed in part the dismissal of the complaint where the district court did not err in upholding the Attorney General's certification that a defendant was acting within the scope of his employment. However, the court reversed in part where the Westfall Act did not empower the district court sua sponte to abrogate the federal government's sovereign immunity and subject it to the risk of liability.


    Gollehon v. Mahoney, No. 09-99011

    Capital Habeas Matter

    In Gollehon v. Mahoney, No. 09-99011, a capital habeas matter, the court affirmed the denial of petitioner's petition where 1) Montana's accountability statutes, together with the deliberate homicide statute, made it "reasonably clear at the relevant time" that petitioner's conduct would subject him to the death penalty; and 2) prior decisions also gave petitioner reasonable warning that aiding and abetting a deliberate homicide would subject him to the death penalty.


    D.N. v. US, No. 10-35037

    Tax Refund Action

    In D.N. v. US, No. 10-35037, a tax refund action involving funds paid from deceased father's 401(k) retirement account to plaintiff-son because mother, the primary beneficiary, was ineligible under Oregon law to receive them because she was the "slayer" of plaintiff's father, the court affirmed summary judgment for the IRS where plaintiff was the distributee of the funds, not his mother, and thus plaintiff was properly liable for the tax.


    US v. Spangle, No. 09-50508

    Sixth Amendment Does Not Apply to Supervised Release Proceedings

    In US v. Spangle, No. 09-50508, defendant's appeal from the twenty-four-month term of imprisonment imposed upon revocation of his supervised release, the court affirmed where 1) because the revocation of supervised release is indistinguishable from the revocation of parole, the Sixth Amendment had no application to supervised release proceedings; 2) in any event, any error in the revocation order was harmless because defendant admitted to violating the terms of his supervised release; and 3) the context of defendant's threat did not necessitate the conclusion that there was an objective basis for recusal.

     

    Hillis v. Heineman, No. 09-17040

    Dismissal for Improper Venue Affirmed

    In Hillis v. Heineman, No. 09-17040, a securities fraud action, the court affirmed the dismissal of the complaint for improper venue where a defendant who files a counterclaim or a third-party complaint does not waive the asserted defense of improper venue under Federal Rule of Civil Procedure 12(b)(3).

     

    Gordon v. City of Oakland, No. 09-16167

    FLSA Challenge to Police Training Cost Repayment Policy

    In Gordon v. City of Oakland, No. 09-16167, a Fair Labor Standards Act (FLSA) challenge to the City of Oakland's policy requiring police officers to repay a portion of their training costs if they voluntarily leave the City's employment before completing five years of service, the court affirmed summary judgment for defendant where because the City issued plaintiff a paycheck exceeding the minimum wage amount, the City's reimbursement demand did not violate the FLSA's minimum wage provision.

     

    Lewis v. Verizon Comms., Inc., No. 10-56512

    Remand Order in Class Action Vacated

    In Lewis v. Verizon Comms., Inc., No. 10-56512, a class action claiming that Verizon billed plaintiffs for services they never ordered, the court vacated the district court's remand order where  the removing defendant supplied an affidavit to show that the potential damages could exceed the jurisdictional amount, and this showing satisfied Verizon's burden.


    US v. Anderson, No. 09-50559

    Felon in Possession Indictment Dismissal Reversed

    In US v. Anderson, No. 09-50559, the court reversed the district court's dismissal of defendant's indictment for being a felon in possession of a firearm where 18 U.S.C. section 922(g)(1) required only that the defendant was "convicted" of a previous felony, as defined by the jurisdiction in which the proceedings were held, and California law treated a plea of nolo contendere as equivalent to a guilty plea.


    In re: Oracle Corp. Sec. Litig., No. 09-16502

    Summary Judgment for Oracle in Securities Fraud Case Affirmed

    In In re: Oracle Corp. Sec. Litig., No. 09-16502, a securities litigation against Oracle and three of its officers alleging that Oracle missed its earnings per share target due to an elaborate scheme to defraud the public about the quality of Oracle products and the revenue gained therefrom, the court affirmed summary judgment for defendants where plaintiffs failed to develop evidence sufficient to permit a reasonable jury to conclude that their losses were caused by the market's reaction to defendants' alleged fraud.


    Morin v. Tormey, No. 09-2960

    Civil Rights Action by Public Employee

    In Morin v. Tormey, No. 09-2960, an action alleging that plaintiff was subjected to adverse employment actions in violation of the First Amendment because of her refusal to assist the defendants in gathering adverse information about a Family Court judge to aid their efforts to prevent the judge's election to a higher judicial office, the court affirmed the denial of summary judgment based on qualified immunity where neither the defense of qualified immunity nor defendant's alleged status as a policymaker had been established as a matter of law at this stage of the litigation.


    US v. Todd, No. 08-30360

    Sex Trafficking Conviction Affirmed

    In US v. Todd, No. 08-30360, the court affirmed defendant's conviction of three counts of sex trafficking, holding that 1) defendant knew, in the sense of being aware of an established modus operandi, that his conduct would in the future cause a person to engage in prostitution; and 2) the evidence of defendant's knowledge of his own modus operandi in securing an income from prostitution by a pattern of coercion was sufficient to support the jury's verdict.


    US v. Grob, No. 09-30262

    Cyberstalking Sentence Vacated

    In US v. Grob, No. 09-30262, the court vacated defendant's sentence for cyberstalking his ex-girlfriend where defendant's prior Montana criminal mischief conviction should not have been counted under the applicable sentencing guideline, U.S.S.G. section 4A1.2(c).

     

    Roberts v. Director, OWCP, No. 08-70268

    Longshore and Harbor Workers' Compensation Act Matter

    In Roberts v. Director, OWCP, No. 08-70268, a petition for review of an Office of Workers Compensation Programs' order partially granting petitioner's request for benefits under the Longshore and Harbor Workers' Compensation Act, the court granted the petition where the ALJ erred by applying the national average weekly wage with respect to fiscal year 2002, rather than fiscal year 2005, in calculating the applicable maximum rate.  However, the court denied the petition in part where because petitioner became newly entitled to compensation in fiscal year 2002, the ALJ properly applied the 2002 fiscal year maximum to his compensation for temporary total disability and permanent partial disability.

     

    US v. Diaz-Lopez, No. 09-50604

    Illegal Reentry Conviction Affirmed

    In US v. Diaz-Lopez, No. 09-50604, the court affirmed defendant's conviction for being a removed alien found in the U.S., holding that 1) a border patrol agent's testimony laid a sufficient foundation for the evidence against defendant to be admissible; and 2) testimony that a search of a computer database revealed no record of a matter did not violate the best evidence rule when it was offered without the production of an "original" printout showing the search results.


    Dent v. Holder, No. 09-71987

    Grant of Petition for Review of Removal Order

    In Dent v. Holder, No. 09-71987, a petition for review of the BIA's order affirming the IJ's decision removing petitioner from the U.S., the court granted the petition where, because petitioner was not provided with the documents in his A-file, he was denied an opportunity to fully and fairly litigate his removal and his defensive citizenship claim.


    US v. Schafer, No. 08-10167

    Medical Marijuana Convictions Affirmed

    In US v. Schafer, No. 08-10167, the court affirmed defendants' convictions and sentences arising from their operation of a medical marijuana growing operation and dispensary where 1) pursuant to Fed. R. Crim. P. 12, the district court could not resolve the parties' suppression issues before trial, and therefore it did not abuse its discretion when it denied defendants' request for an evidentiary hearing; 2) whether defendants were lulled into believing their marijuana operation was legal and done on the express authorization of agents who could bind the federal government necessitated a credibility determination that fell within the province of the jury; and 3) medical necessity was not a defense to manufacturing and distributing marijuana.

     

    Earth Island Inst. v. Carlton, No. 09-16914

    Challenge to Post-Wildfire Logging

    In Earth Island Inst. v. Carlton, No. 09-16914, an appeal from the district court's order denying plaintiff's motion for a preliminary injunction seeking to enjoin the U.S. Forest Service from conducting post-wildfire logging in the Plumas National Forest, the court affirmed where 1) the Forest Service satisfied the requirement to assess MIS habitat in the project area; and 2) the district court did not abuse its discretion in finding that the Forest Service's tree mortality guidelines were not enforceable.

    Saavedra-Figueroa v. Holder, No. 05-75210

    Grant of Petition for Review of BIA Order

    In Saavedra-Figueroa v. Holder, No. 05-75210, a petition for review of the Board of Immigration Appeals (BIA)'s determination that petitioner was removable because he had been convicted of an aggravated felony and two crimes of moral turpitude, the court granted the petition where 1) the BIA's determination was not entitled to Chevron deference, because the BIA did not issue or rely on a precedential decision; and 2) although petitioner admitted both prior misdemeanor convictions, there was no record evidence of the factual allegations underlying his second conviction.

    Hudson Ins. Co. v. Colony Ins. Co., No. 09-55275

    NFL Merchandise-Related Insurance Case

    In Hudson Ins. Co. v. Colony Ins. Co., No. 09-55275, an action by one insurer against another for equitable contribution arising out of the defense of a suit by the NFL against the insured for allegedly selling counterfeit jerseys, the court affirmed summary judgment for plaintiff where the insured was potentially liable for slogan infringement, a claim covered by defendant's insurance policy.

    Am. Cargo Transp., Inc. v. US, No. 08-35010

    Action for Violation of Cargo Preference Laws

    In Am. Cargo Transp., Inc. v. US, No. 08-35010, an action against the Department of State Agency for International Development, alleging a violation of federal cargo preference laws and requesting injunctive and declaratory relief, as well as damages for unjust enrichment, the court affirmed summary judgment for defendant where 1) claims for injunctive and declaratory relief under 46 C.F.R. section 381.5 were moot because the U.S. adopted plaintiff's position going forward -- that defendant was required to seek Department of Transportation Maritime Administration's concurrence before making a recommendation about the cargo because plaintiff offered to carry a full shipload; and 2) this case did not fall within the exception to sovereign immunity in the Suits in Admiralty Act.

    US v. Wright, No. 08-10525

    Child Pornography Conviction Reversed in Part

    In US v. Wright, No. 08-10525, the court affirmed in part defendant's conviction and sentence for the transportation and possession of child pornography, holding that any additional evidence concerning defendant's alibi would have been merely cumulative.  However, the court reversed in part where 1) at the time of defendant's offense, 18 U.S.C. section 2252A(a)(1) required the government to prove that the child pornography images actually crossed state lines; and 2) the district court needed to make essential factual findings explaining the basis for its decision to deny defendant's suppression motion.

    US v. Hantzis, No. 05-50507

    Methamphetamine Conviction Affirmed

    In US v. Hantzis, No. 05-50507, the court affirmed defendant's conviction and sentence for possessing with the intent to distribute, and distributing, at least fifty grams of methamphetamine, holding that 1) the district court conducted an adequate Faretta colloquy and defendant knowingly and intelligently waived his right to counsel; 2) the district court was not required to engage in additional Faretta colloquies at the subsequent evidentiary hearing or at sentencing in defendant's case because no significant changes in circumstance occurred; and 3) the district court did not err in declining to appoint new counsel for counsel for defendant at his sentencing.

    Akiak Native Comm. v. EPA, No. 08-74872

    Petition for Review of Alaskan Pollutant Discharge System Denied

    In Akiak Native Comm. v. EPA, No. 08-74872, a petition for review of the approval by the EPA of the State of Alaska's application to assume responsibility for administration of portions of the National Pollutant Discharge Elimination System, pursuant to section 402(b) of the Clean Water Act, the court denied the petition where 1) since Alaska law enabled the State to sue permit violators, there was no reason to conclude that Alaska lacks adequate enforcement remedies; and 2) the EPA did not directly manage public lands and was not a federal land management agency.

     

    US v. Lazarenko, No. 08-10185

    Criminal Restitution Order Reversed

    In US v. Lazarenko, No. 08-10185, the prosecution of the former Prime Minister of Ukraine for money laundering and conspiracy to commit money laundering, the court reversed the district court's order awarding $19 million in restitution to defendant's co-conspirator, holding that, in the absence of exceptional circumstances, a co-conspirator cannot recover restitution.

     

    Ahanchian v. Xenon Pictures, Inc., No. 08-56667

    Denial of Extension of Time to File Brief Reversed

    In Ahanchian v. Xenon Pictures, Inc., No. 08-56667, plaintiff's appeal from the district court's denial of plaintiff's request for an extension of time to oppose defendant's summary judgment motion, the court reversed where the district court abused its discretion in denying both the request for an extension of time and the motion to accept the late-filed opposition, and erred in granting defendants' motion for summary judgment and in awarding attorneys' fees to defense counsel, because plaintiff's counsel clearly demonstrated good cause.

    Arredondo v. Holder, No. 08-73835

    Grant of Petition for Review of Dismissal of BIA Appeal

    In Arredondo v. Holder, No. 08-73835, a petition for review of the Board of Immigration Appeals (BIA) dismissal of petitioner's appeal from an Immigration Judge's (IJ's) decision denying cancellation of removal, the court granted the petition where 1) the BIA did not discuss the problem that petitioner's Idaho conviction was recorded in 1997, more than five years after petitioner entered this country; and 2) the court could not affirm the BIA on a ground upon which it did not rely.

    Montana v. BNSF Rwy. Co., No. 08-35667

    Anti-Injunction Act Decision

    In Montana v. BNSF Rwy. Co., No. 08-35667, defendant's appeal from the denial of its motion in federal court to enjoin a Montana state court action alleging contamination of private property and seeking, among other remedies, "investigation and restoration of real property," the court affirmed the district court's denial of defendant's motion to enjoin the state action, holding that  no exception to the Anti-Injunction Act, 28 U.S.C. section 2283, applied to a Montana state court proceeding stemming from facts related to an earlier federal proceeding, but involving distinct parties and claims.

  • US v. Leal-Felix, No. 09-50426

    Unlawful Entry Sentence Affirmed

    In US v. Leal-Felix, No. 09-50426, the court affirmed defendant's sentence for unlawful reentry into the U.S. of a removed alien where, because there were prison sentences for each of defendant's prior traffic violations, the court properly calculated 2 points for each guilty-plea conviction under U.S.S.G. section 4A1.1(b).

  • Stiefel v. Bechtel Corp., No. 09-55764

    Retaliatory Discharge Action

    In Stiefel v. Bechtel Corp., No. 09-55764, an action alleging that defendant discriminated against plaintiff because of a disabling work-related injury and failed to accommodate that disability, and then laid him off to retaliate against him for seeking accommodation, the court affirmed in part summary judgment for defendant where plaintiff failed to demonstrate either that he applied to be rehired or that it would have been futile to do so.  However, the court reversed in part where plaintiffs' California Department of Fair Employment and Housing (DFEH) charge was deemed filed with the EEOC pursuant to a "Worksharing Agreement" between the DFEH and the EEOC.