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

9th Circuit December 2010 News

US v. Luong, No. 09-10265

Firearm Usage Sentences Affirmed

In US v. Luong, No. 09-10265, the court affirmed defendants' sentences for use of a firearm in the commission of a violent crime where 1) defendants were not challenging their sentences but instead were challenging their convictions, a challenge that fell outside of the resentencing mandate of the court's previous decision; and 2) because section 924(c) required the sentences imposed, the district court did not err by giving defendants the mandatory sentences.

  • Cabaccang v. US Citizenship & Imm. Servs., No. 09-56089

    Challenge to Denial of Adjustment of Immigration Status

    In Cabaccang v. US Citizenship & Imm. Servs., No. 09-56089, an action challenging the denial of plaintiffs' applications for adjustment of immigration status, the court vacated summary judgment for defendants where a district court may not hear an alien's challenge to the government's denial of an application to adjust status when removal proceedings are simultaneously pending against the alien.

  • The Lands Council v. McNair, No. 09-36026

    Environmental Challenge to Old-Growth Forest Thinning

    In The Lands Council v. McNair, No. 09-36026, an action challenging the United States Forest Service's (Forest Service) decision to thin 277 acres of old-growth forest in the Mission Brush Project area, located in the Idaho Panhandle National Forest (IPNF), claiming that the Project violated the National Forest Management Act (NFMA), and the National Environmental Policy Act (NEPA), the court affirmed summary judgment for defendants where 1) the Forest Service reasonably relied on the 10%-old-growth standard as set forth in the IPNF Plan; and 2) it was within the Forest Service's discretion to rely on its own data and to discount the alternative evidence proffered by petitioner.

    Rezner v. Bayerische Hypo-Und Vereinsbank AG, No. 09-16402

    Suit Alleging Fraudulent Tax Shelters

    In Rezner v. Bayerische Hypo-Und Vereinsbank AG, No. 09-16402, an action alleging that defendant engaged in a scheme to defraud the U.S. of tax revenue through fraudulent tax shelters that caused injury to purchasers of such shelters, the court reversed summary judgment for plaintiff where the district court erred in concluding that plaintiff had satisfied the proximate causation requirement for a civil RICO claim.

  • US v. Valverde, No. 09-10063

    Dismissal of SORNA Indictment Affirmed

    In US v. Valverde, No. 09-10063, a prosecution under the Sex Offender Registration and Notification Act, the court affirmed the dismissal of the indictment where the Attorney General's interim regulation of February 28, 2007 -- applying SORNA's registration requirements retroactively to sex offenders, such as defendant, who were convicted before the statute's enactment -- did not comply with the notice and comment procedures of the Administrative Procedure Act, and did not qualify for the "good cause" exemption under 5 U.S.C. section 553(d)(3).

  • Patton v. Target Corp., No. 08-35177

    State Need Not Consent to Settlement Following Punitive Damages Verdict

    In Patton v. Target Corp., No. 08-35177, the court affirmed the district court's dismissal of an action with prejudice following a settlement where the district court correctly concluded that Or. Rev. Stat. section 31.735 did not require that the State consent to the parties' post-verdict settlement in the aftermath of a punitive damages verdict.

    Munoz v. Mabus, No. 08-16374

    Dismissal of Employment Discrimination Action by Navy Officer Affirmed

    In Munoz v. Mabus, No. 08-16374, a breach of contract and employment discrimination action claiming that a Title VII predetermination settlement agreement required the Navy to provide plaintiff a particular type of training, the court affirmed summary judgment for defendant in part where plaintiff was unable to produce evidence undermining the credibility or validity of the Navy's proffered reasons for denying the training.  However, the court vacated in part where Congress' waiver of sovereign immunity under Title VII did not extend to suits to enforce settlement agreements entered into without genuine investigation, reasonable cause determination, and conciliation efforts by the EEOC.

  • McCullough v. Kane, No. 07-16049

    Grant of Habeas Petition in Murder Matter Affirmed

    In McCullough v. Kane, No. 07-16049, following petitioner's murder conviction, the court affirmed the grant of petitioner's habeas petition where where the Governor of California's reversal of petitioner's parole determination violated due process because it was not supported by "some evidence" of future dangerousness.

  • Greensprings Baptist Christian Fellowship Trust v. Cilley, No. 09-16924

    Dismissal of Appeal from Anti-SLAPP Dismissal

    In Greensprings Baptist Christian Fellowship Trust v. Cilley, No. 09-16924, an action for malicious prosecution, the court dismissed plaintiffs' appeal from the dismissal of their suit under the California anti-SLAPP statute where the court lacked jurisdiction under the collateral order doctrine to entertain an appeal from the portion of a district court's order granting a defendant's anti-SLAPP motion which gives a plaintiff leave to amend her complaint.

  • Greater Yellowstone Coalition v. Lewis, No. 09-35729

    Environmental Challenge to Mine Expansion

    In Greater Yellowstone Coalition v. Lewis, No. 09-35729, an action claiming that the expansion of a mine would violate the National Environmental Policy Act, the Clean Water Act (CWA), and the National Forest Management Act (NFMA), the court affirmed summary judgment for defendants where 1) the CWA and NFMA did not require the Bureau of Land Management (BLM) to identify additional possible sources of pollution; and 2) the record showed that the BLM examined all the relevant evidence.

    Tamas v. Dep't of Soc. & Health Servs., No. 08-35862

    Civil Rights Action Against Department of Social Services

    In Tamas v. Dep't of Soc. & Health Servs., No. 08-35862, an action against the Department of Social and Health Services and nine of its employees alleging negligence and civil rights violations, the court vacated the denial of summary judgment for defendants where the deliberate indifference standard, as applied to foster children, requires a showing of an objectively substantial risk of harm and a showing that the officials were subjectively aware of facts from which an inference could be drawn that a substantial risk of serious harm existed and that either the official actually drew that inference or that a reasonable official would have been compelled to draw that inference.

     

    ERISA Withdrawal Liability Action

    In Resilient Floor Covering Pension Fund v. M&M Installation, Inc., No. 09-17047, an action on a theory of ERISA withdrawal liability, the court reversed summary judgment for plaintiff where, assuming it is possible to be responsible on an alter ego theory, a non-union company may be liable when there is commonality between the union and nonunion firms and an abuse of the double-breasted structure to avoid payment of withdrawal liability.

    Ledezma-Garcia v. Holder, No. 04-35048

    Petition for Review of Removal Granted

    In Ledezma-Garcia v. Holder, No. 04-35048, a petition for review of petitioner's removal based on his 1988 conviction for sexually molesting a minor in Oregon, the court granted the petition where 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.

     

    Guggenheim v. City of Goleta, No. 06-56306

    Challenge to Rent Control Ordinance

    In Guggenheim v. City of Goleta, No. 06-56306, an action against the City of Santa Barbara claiming that its rent control ordinance was a taking of plaintiffs' property without compensation, and asserting numerous other claims, the court affirmed summary judgment for defendants where 1) leaving the ordinance in place impairs no investment-backed expectations of plaintiffs, but nullifying it would destroy the value these tenants thought they were buying; and 2) the ordinance protected owners of mobile homes from the leverage owners of the pads have, to collect a premium reflecting the cost of moving the mobile home on top of the market value of use of the land, which was a legitimate government purpose, related to but distinct from lowering housing prices for all renters.

     

    US v. Alvarez-Perez, No. 09-50334

    Conviction Vacated Based on Speedy Trial Act

    In US v. Alvarez-Perez, No. 09-50334, the court vacated defendant's conviction of being a deported alien found in the United States in violation of 8 U.S.C. section 1326, where the Speedy Trial Act clock ran for 72 days before defendant's trial on January 20, 2009, and therefore the indictment was required to be dismissed.

     

    Wilderness Watch, Inc. v. US Fish & Wildlife Serv., No. 08-17406

    Challenge to Water Stations in Bighorn Sheep Habitat

    In Wilderness Watch, Inc. v. US Fish & Wildlife Serv., No. 08-17406, an action claiming that the Forest Service's actions in building water stations in a bighorn sheep habitat violated the express prohibition on the development of structures in the Wilderness Act, the court reversed summary judgment for defendants where a generic finding of necessity by the Service did not suffice, because the Service was required to make a finding that the structures were "necessary" to meet the minimum requirements for the administration of the area for the purpose of conserving bighorn sheep.

    Pulido v. Chrones, No. 05-15916

    Denial of Habeas Petition Affirmed

    In Pulido v. Chrones, No. 05-15916, a murder prosecution, the court affirmed the denial of petitioner's habeas petition where, at most, the jury questions suggested that the jury was uncertain about the application of the felony-murder instruction in the context of aiding and abetting, but there was no indication in the record that the jury imported this uncertainty into its application of the special-circumstance instructions.

     

    Daniels-Hall v. Nat'l. Educ. Assn., No. 08-35531

    ERISA Action Claiming Fraudulent Sale of Annuities

    In Daniels-Hall v. Nat'l. Educ. Assn., No. 08-35531, an ERISA action by members of the National Education Association (NEA) claiming that the NEA knowingly duped them into purchasing unattractive annuities by creating an atmosphere of trust and confidence that was exploited by defendants for their financial gain, the court affirmed the dismissal of the complaint where 1) a marketing plan designed to build brand loyalty is not, under any reasonable definition of the term, a retirement plan; 2) the lack of governmental funding, when considered in light of the necessary governmental involvement in establishing and maintaining section 403(b) plans, did not prevent these plans from falling within the "governmental plan" exemption; and 3) insofar as the "plan" in the complaint referred to the school districts' section 403(b) annuity plans, plaintiffs failed to state a claim upon which relief can be granted.

     

    US v. City of Arcata, No. 09-16780

    Action to Enjoin Municipal Prohibition on Military Recruitment Targeting Minors

    In US v. City of Arcata, No. 09-16780, an action by the U.S. seeking to enjoin the Arcata Youth Protection Act and the Eureka Youth Protection Act, prohibiting agents or employees of the federal government from engaging in military recruitment activities targeting minors, the court affirmed judgment on the pleadings for plaintiff where 1) the ordinances improperly sought to directly regulate the conduct of agents of the federal government; and 2) the ordinances discriminated against the U.S.

    US v. Newhoff, No. 09-30143

    Felon in Possession Conviction Affirmed

    In US v. Newhoff, No. 09-30143, the court affirmed defendant's convictions for being a felon in possession of a firearm and for possession of a stolen firearm where 1) the district court erred by reading back a witness's testimony without an admonition, but this did not affect defendant's substantial rights; and 2) it was a reasonable inference, from the fact that defendant was the burglar who was trying to sell the pistol, that he was the one who found and stole it.

     

    McLeod v. Astrue, No. 09-35190

    Appeal from Denial of Social Security Benefits

    In McLeod v. Astrue, No. 09-35190, plaintiff's appeal from the denial of Social Security benefits, the court reversed where the ALJ had no duty to request more information from the two treating physicians who testified, but the ALJ's failure to help plaintiff develop the record by putting his VA disability determination into the record was "good cause" under Tonapetyan, and the disability determination is "material" under McCartey, so a remand was required.

     

    Lowe v. Washoe Cty., No. 09-15759

    Property Tax Challenge

    In Lowe v. Washoe Cty., No. 09-15759, an action by the putative representatives of a class of approximately 9,000 Incline Village and Crystal Bay, Nevada property owners, alleging that the valuation of their Nevada real property used to calculate their ad valorem property taxes for the 2008-09 taxable year violated both the Nevada Constitution and the Due Process Clause, the court affirmed the dismissal of the complaint where the Tax Injunction Act barred the action because: 1) as to individual taxpayers, Nevada's administrative and judicial review process provided an effective and adequate means by which a dissatisfied taxpayer may contest his property valuation; 2) plaintiffs did not demonstrate that the state court remedy in this case was uncertain and therefore not "plain"; and 3) plaintiffs' claims of bias did not impeach the adequacy of the state court remedy.

     

    Balsam v. Tucows Inc., No. 09-17625

    Action Against Registrar of Pornographic Site For Spamming

    In Balsam v. Tucows Inc., No. 09-17625, an action bringing claims against the registrar of a domain site that bombarded plaintiff with more than 1,000 unwanted emails advertising a pornographic website, the court affirmed the dismissal of the action where plaintiff was not an intended third-party beneficiary of an agreement between the registrar and the Internet Corporation for Assigned Names and Numbers.

     

    Beacon Healthcare Servs., Inc. v. Leavitt, No. 09-56246

    Provider Reimbursement Review Board Order Affirmed

    In Beacon Healthcare Servs., Inc. v. Leavitt, No. 09-56246, a healthcare provider's appeal from the district court's judgment affirming the Provider Reimbursement Review Board's (PRRB) determination that it did not have jurisdiction to hear plaintiff's appeal of a fiscal intermediary's decision, and concluding on the merits that the Secretary of the U.S. Department of Health and Human Services (Secretary) was not required by law to adjust plaintiff's target Tax Equity and Fiscal Responsibility Act (TEFRA) costs and dismissing plaintiff's remaining claims, the court affirmed where 1) because plaintiff did not experience an increase in operating costs beyond the TEFRA ceiling, the district court correctly determined that plaintiff was not eligible for a TEFRA target cost adjustment under 42 U.S.C. section 413.40(g)(1)(iii); and 2) plaintiff was barred from joining the claims it did not bring before the PRRB to its appeal of the agency's final decision.

     

    Norse v. Santa Cruz, No. 07-15814

    First Amendment Action Based on Ejection from City Council Meeting

    In Norse v. Santa Cruz, No. 07-15814, a First Amendment action based on plaintiff's ejection from the Santa Cruz city council after he gave the council a silent Nazi salute, the court reversed judgment for defendants where the district court gave plaintiff only two days to prepare for a hearing on summary judgment on the day of trial.

    A.M. v. Monrovia Unif. Sch. Dist., No. 09-55169

    Individuals with Disabilities Education Act Action

    In A.M. v. Monrovia Unif. Sch. Dist., No. 09-55169, an action for violation of the Individuals with Disabilities Education Act (IDEA), and violation of Section 504 of the Rehabilitation Act, the court affirmed summary judgment for defendants in part where 1) defendant-school district did not commit a procedural violation by failing to implement the 2005 Individualized Education Plan (IEP) or by failing to develop and implement a new valid IEP within thirty days of the student at issue transferring into the district; and 2) defendant placed the student in the least restrictive environment appropriate.  However, the court reversed in part where the district court needed to determine whether attorneys' fees should be granted because plaintiffs waived reimbursement and damages, and therefore had no claim that survived the student.

     

    Price v. Stevedoring Servs. of Am., No. 08-71719

    Longshore and Harbor Workers' Compensation Act Benefits Act

    In Price v. Stevedoring Servs. of Am., No. 08-71719, an action seeking disability benefits under the Longshore and Harbor Workers' Compensation Act (LHWCA), the court affirmed the Department of Labor Benefits Review Board's order affirming the ALJ's decision to award simple interest at the rate determined by 28 U.S.C. section 1961(a), where interest on past due disability payments under the LHWCA was properly calculated as simple interest at the rate defined in section 1961(a).

     

    She v. Holder, No. 06-71794

    Petition for Review of BIA Order Partially Granted

    In She v. Holder, No. 06-71794, a petition for review of an order of the Board of Immigration Appeals (BIA) dismissing her appeal from an Immigration Judge's (IJ's) denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT), the court granted the petition in part where, although the IJ did not put it in so many words, the BIA improperly surmised that the IJ had properly made a finding of firm resettlement.  However, the court denied the petition in part where the BIA properly upheld the IJ's decision to pretermit petitioner's applications for withholding of removal and CAT relief.

     

    Ocampo v. Holder, No. 06-71848

    BIA's Order Dismissing Motion to Reopen as Untimely Affirmed

    In Ocampo v. Holder, No. 06-71848, a petition for review of a Board of Immigration Appeals (BIA) order denying as untimely petitioner's motion to reopen his immigration removal proceedings, the court denied the petition where a removal order that grants voluntary departure becomes final upon the earlier of: 1) a BIA determination affirming the order; or 2) the expiration of the deadline to seek the BIA's review of the order, and not upon overstay of the voluntary departure period.

    MDY Indus., LLC v. Blizzard Entm't, Inc., No. 09-15932

    Copyright Infringement Action Concerning World of Warcraft

    In MDY Indus., LLC v. Blizzard Entm't, Inc., No. 09-15932, an action seeking a declaratory judgment to establish that plaintiff's sales of a "leveling" program (Glider) for World of Warcraft (WoW) did not infringe Blizzard's copyright or other rights, the court affirmed in part judgment for defendant where plaintiff was liable under Digital Millennium Copyright Act section 1201(a)(2) with respect to WoW's dynamic non-literal elements.  However, the court reversed in part where 1) WoW players did not commit copyright infringement by using Glider in violation of the terms of use; and 2) Blizzard did not maintain an effective access control measure with respect to WoW's literal elements and individual non-literal elements, and therefore, plaintiff did not violate DMCA section 1201(a)(2) with respect to these elements.

     

    Krottner v. Starbucks Corp., No. 09-35823

    Action Alleging Violations of Employee Privacy by Starbucks

    In Krottner v. Starbucks Corp., No. 09-35823, an action by current or former Starbucks employees whose names, addresses, and social security numbers were stored on a laptop that was stolen from Starbucks claiming violations of Washington law, the court affirmed the dismissal of the complaint where plaintiffs alleged a credible threat of real and immediate harm stemming from the theft of a laptop containing their unencrypted personal data, but their allegations failed to state a claim under Washington law.

     

    Harmston v. City and Cty. of San Francisco, No. 09-16562

    Appeal from Sanctions Order Dismissed

    In Harmston v. City and Cty. of San Francisco, No. 09-16562, plaintiff's appeal from the district court's order sanctioning plaintiff and his attorney for violating the court's discovery protective order, the court dismissed the appeal where, because the district court's remand order constituted a final order, plaintiff's last day to appeal came 180 days later, on April 17, 2009, and thus the appeal was untimely.

     

    Knox v. Cal. State Employees Ass'n., Local 1000, No. 08-16645

    Challenge to Constitutionality of Union's Hudson Notice

    In Knox v. Cal. State Employees Ass'n., Local 1000, No. 08-16645, a First Amendment action challenging the constitutionality of a Hudson notice given by SEIU Local 1000, the court reversed summary judgment for plaintiffs where a union was not required, pursuant to Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986), in addition to an annual fee notice to members, to send a second notice when adopting a temporary, mid-term fee increase.

    Movsesian v. Victoria Versicherung AG, No. 07-56722

    Insurance Claims by Persons Descended from Armenians Persecuted by the Ottoman Empire

    In Movsesian v. Victoria Versicherung AG, No. 07-56722, claims by persons descended from Armenians persecuted by the Ottoman Empire seeking benefits from defendant insurers, the court affirmed the denial of defendants' motion to dismiss plaintiffs' claims for breach of contract and breach of the covenant of fair dealing, where Cal. Civ. Proc. Code section 354.4 did not conflict with a clear, express federal executive policy, because there was no express federal policy forbidding states to use the term "Armenian Genocide."

    US v. Goyal, No. 08-10436

    Securities Fraud Conviction Reversed

    In US v. Goyal, No. 08-10436, the court reversed Defendant's convictions for securities fraud and making materially false statements to auditors where 1) because defendant's jury had no competent evidence of materiality before it, it could not have properly convicted him on any of the securities counts; 2) no evidence supported a finding that defendant knew that his company's subsidiary's commitments violated GAAP; and 3) there was no proof that defendant willfully concealed buy-in letters.

     

    US v. Lawrence, No. 09-30285

    Felon In Possession Sentence Affirmed

    In US v. Lawrence, No. 09-30285, the court affirmed defendant's sentence for being a felon in possession of a firearm and ammunition where a violation of Wash. Rev. Code section 9A.36.02 (1)(a) qualified as a violent felony under the categorical approach because it "had as an element the use, attempted use, or threatened use of physical force against the person of another."

    Albina Engine & Machine v. Director, OWCP, No. 09-70592

    Review of Longshore and Harbor Workers' Compensation Act Decision

    In Albina Engine & Machine v. Director, OWCP, No. 09-70592, a petition for review of a decision of the Benefits Review Board upholding the Administrative Law Judge's (ALJ) ruling that petitioner was liable for payment of death benefits to claimant under the Longshore and Harbor Workers' Compensation Act (LHWCA), the court granted the petition where, in LHWCA occupational disease cases involving multiple employers: 1) the 33 U.S.C. section 920(a) (section 20(a)) presumption must be invoked against each employer before that employer may be found liable for payment of benefits; 2) each employer may rebut the section 20(a) presumption with substantial evidence that it is not the last responsible employer; 3) once an employer has rebutted the section 20(a) presumption, it may be found liable only if a preponderance of the evidence supports a finding that that employer is responsible; and 4) the analysis with respect to each employer shall be applied sequentially, beginning with the last (most recent) employer, and need not be conducted for earlier employers once a responsible employer is found.

     

    Alcazar v. Corp. of the Catholic Bishop of Seattle, No. 09-35003

    Overtime Claim by Minister in Training Under Washington's Minimum Wage Act

    In Alcazar v. Corp. of the Catholic Bishop of Seattle, No. 09-35003, an overtime claim brought under Washington's Minimum Wage Act, the court affirmed judgment on the pleadings for defendant where plaintiff was a minister under any reasonable interpretation of the ministerial exception, as he had entered into a church-recognized seminary program to become a minister and brought suit concerning employment decisions arising from work as a seminarian.

     

    Roberts v. Marshall, No. 08-55901

    Denial of Habeas Petition as Untimely Affirmed

    In Roberts v. Marshall, No. 08-55901, a second-degree murder prosecution, the court affirmed the denial of petitioner's habeas petition where the record was amply developed, and it indicated that petitioner's mental incompetence was not so severe as to cause the untimely filing of his habeas petition, and thus the district court was not obligated to hold evidentiary hearings to further develop the factual record, notwithstanding his allegations of mental incompetence.

     

    US v. Caruto, No. 09-50309

    Cocaine Importation Conviction Affirmed

    In US v. Caruto, No. 09-50309, the court affirmed defendant's conviction for importation of cocaine and possession of cocaine with intent to distribute, 1) the district court's instruction to the grand jury did not say that voting was jurors' exclusive recourse or alter the basic message conveyed by the instruction approved in Navarro-Vargas; 2) even if the grand jury might have been misled, that error would not justify reversal of defendant's conviction now; and 3) the entirety of the court's instruction emphatically underscored the grand jury's independent role.

  • Appeal From Denial of Costs in Condemnation Action 

    In Transwestern Pipeline Co. v. 17.19 Acres of Prop. Located in Maricopa Cty., No. 09-16850, an appeal from the district court's denial of defendant's motion for fees and costs in a condemnation action, the court affirmed where the term "United States," as used in 42 U.S.C. section 4654(a)(2), did not include a private entity prosecuting a condemnation action under the authority granted by the Federal Electric Regulatory Commission.

  • Moormann v. Ryan, No. 08-99035

    Capital Habeas Matter

    In Moormann v. Ryan, No. 08-99035, a capital habeas matter, the court affirmed the denial of petitioner's habeas petition where 1) trial counsel's failure to investigate and pursue a Christensen defense did not prejudice petitioner; 2) there was nothing in trial counsel's declaration to contradict the Arizona Supreme Court's finding that petitioner knowingly waived the lesser-included-offense instructions; and 3) even assuming there was a plausible argument that trial counsel should have done more, there was no reasonable probability that the Arizona Supreme Court would have reversed petitioner's capital sentence.

  • Bills v. Clark, No. 08-17517

    In Bills v. Clark, No. 08-17517, a prosecution for possession of a sharp instrument by a state prisoner, the dismissal of petitioner's habeas petition is reversed where equitable tolling is permissible when a petitioner can show a mental impairment so severe that petitioner was unable personally either to understand the need to timely file or prepare a habeas petition, and that impairment made it impossible under the totality of the circumstances to meet the filing deadline despite petitioner's diligence.

  • US v. White & Case LLP, No. 10-15758

    Appeal from Order Quashing Subpoenas

    In US v. White & Case LLP, No. 10-15758, the United States' appeal from an order of the district court quashing certain subpoenas directed to the respondent law firms, seeking nonprivileged material in aid of a grand jury investigating the clients of the law firms, the court reversed where the court applied its per se rule that a grand jury subpoena took precedence over a civil protective order.

     

    Progressive Gulf Ins. Co. v. Faehnrich, No. 09-16487

    Auto Accident Insurance Matter

    In Progressive Gulf Ins. Co. v. Faehnrich, No. 09-16487, an action by an insurer seeking a declaration that the family member exclusion in an auto insurance policy barred recovery for defendants arising out of a car accident, the Ninth Circuit certified the following question to the Supreme Court of Nevada: Does Nevada's public policy preclude giving effect to a choice-of-law provision in an insurance contract that was negotiated, executed, and delivered while the parties resided outside of Nevada, when that effect would deny any recovery under Nevada Revised Statutes section 485.3091 to Nevada residents who were injured in Nevada?

     

    Affiliated FM Ins. Co. v. LTK Consulting Servs., Inc., No. 07-35696

    Negligent Construction Advice Lawsuit

    In Affiliated FM Ins. Co. v. LTK Consulting Servs., Inc., No. 07-35696, an action asserting that defendant provided negligent design advice to the Seattle Monorail System that resulted in fire damage, the court reversed summary judgment for defendant where a party with a contractual right to operate commercially and extensively on another's property may bring a suit in tort against a third party for damage to that property.

     

    US v. Lopez-Velasquez, No. 07-30241

    Illegal Reentry Prosecution

    In US v. Lopez-Velasquez, No. 07-30241, a prosecution for illegal reentry, the court reversed the dismissal of the indictment where an immigration judge's (IJ) duty was limited to informing an alien of a reasonable possibility that the alien is eligible for relief at the time of the hearing, and the IJ who presided over defendant's deportation fulfilled that duty.

     

    Wild Fish Conservancy v. Salazar, No. 09-35531

    Challenge to Fish and Wildlife Service Biological Opinion

    In Wild Fish Conservancy v. Salazar, No. 09-35531, a challenge to a Fish and Wildlife Service (FWS) biological opinion addressing the effects of the operations of the Leavenworth National Fish Hatchery on the bull trout, the court reversed summary judgment for the FWS where the FWS in several respects failed to articulate a rational connection between the facts found and the "no jeopardy" conclusion.

    Carijano v. Occidental Petro. Corp., No. 08-56187

    Forum Non Conveniens Dismissal Reversed

    In Carijano v. Occidental Petro. Corp., No. 08-56187, an action by members of the Peruvian Achuar indigenous group dependent for their existence upon the rainforest lands and waterways along the river, and Amazon Watch, a California corporation, against an oil company, for environmental contamination and release of hazardous waste, the court reversed the dismissal of the action where defendant failed to meet its burden of demonstrating that Peru was a more convenient forum, and the district court gave insufficient weight to the strong presumption in favor of a domestic plaintiff's choice of forum.

    Sacora v. Thomas, No. 10-35553

    Challenge to Bureau of Prisons Policies

    In Sacora v. Thomas, No. 10-35553, a habeas corpus action pursuant to 28 U.S.C. section 2241 challenging the policies by which the Bureau of Prisons (BOP) placed inmates in community correctional facilities, also known as residential re-entry centers, the court affirmed the district court's partial denial of the petition where the BOP's policies violated neither the statutory provisions that they implement nor the Administrative Procedure Act.

    Gilman v. Schwarzenegger, No. 10-15471

    Action Challenging California Victim's Bill of Rights Act

    In Gilman v. Schwarzenegger, No. 10-15471, an action by eight California life-term prisoners who represented a class of similarly situated California prisoners, alleging that Proposition 9, the "Victims' Bill of Rights Act of 2008: Marsy's Law," which modified the availability and frequency of parole hearings, violated the Ex Post Facto Clause, the court reversed a preliminary injunction in plaintiffs' favor where the advance hearings provided for by the statute sufficiently reduced the risk of increased punishment for prisoners.

    Goldberg v. Pac. Indemn. Co., No. 09-16243

    Denial of Expert Witness Fees and Double Costs Under Arizona Law Affirmed

    In Goldberg v. Pac. Indemn. Co., No. 09-16243, defendants' appeal from the district court's denial of their request for expert witness fees and double costs pursuant to Arizona Rule of Civil Procedure 68, the court affirmed where Arizona Rule 68 did not apply because it conflicted with Federal Rule of Civil Procedure 68, under which defendants were not entitled to recover costs because judgment was entered in their favor.

    US v. Rivera-Gomez, No. 08-10480

    Illegal Reentry Sentence Vacated

    In US v. Rivera-Gomez, No. 08-10480, the court vacated defendant's illegal reentry sentence, holding that the district court erred in determining that defendant's state resisting-arrest conviction could not be "relevant conduct" under U.S.S.G. section 1B1.3(a)(1)(A) as a matter of law, even if defendant intended to "avoid detection or responsibility" for his reentry offense.

    US v. Farmer, No. 09-5012

    Child Pornography Sentence Affirmed

    In US v. Farmer, No. 09-5012, the court affirmed defendant's child pornography possession sentence, holding that defendant's prior conviction under California Penal Code section 288(a), for lewd and lascivious acts involving a child, categorically qualified as "a prior conviction . . . relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward."

    Civil Rights Action Concerning Alleged Fabrication of Evidence in Parental Rights Revocation

    In Costanich v. Dept. of Soc. & Health Servs. for the State of Wash., No. 08-35217, a 42 U.S.C. section 1983 action alleging the deprivation of plaintiff's due process rights to her foster care license and guardianship of her dependents, the court affirmed summary judgment for defendants where defendants were entitled to qualified immunity because it was not clear at the time the events at issue took place that the right not to have evidence fabricated by a social worker applied in the context of proceedings adjudicating a foster care license and termination of guardianship.

    US v. Milovanovic, No. 08-30381

    Honest Services Mail Fraud Indictment Dismissal Reversed

    In US v. Milovanovic, No. 08-30381, a prosecution for "honest services" mail fraud, involving the corrupt issuance of commercial drivers' licenses in the State of Washington, the court reversed the dismissal of the indictment where honest services mail fraud did not require proof of a fiduciary relationship, and did not require damages to the money or property of the victim.

     

    Javhlan v. Holder, No. 06-71565

    Petition for Review of BIA Order Granted

    In Javhlan v. Holder, No. 06-71565, a petition for review of a decision by the Board of Immigration Appeals (BIA) denying petitioner's applications for asylum, withholding of removal, and protection under the Convention Against Torture, the court granted the petition where the IJ erred in relying only on petitioner's unexplained detention in Mongolia to find that there was no past persecution, particularly in light of the frequent harassment and serious threats the Secret Police agents made to petitioner's life and safety.

     

    Peterson v. Islamic Repub. of Iran, No. 08-17756

    Iran Immune from Judgment Enforcement Under FSIA

    In Peterson v. Islamic Repub. of Iran, No. 08-17756, plaintiffs' appeal from the district court's order denying plaintiffs' motion to assign the rights of a French debtor of Iran to plaintiffs, on the basis that Iran's rights to payment from the debtor were immune under the Foreign Sovereign Immunities Act (FSIA), the court affirmed where 1) the court could not require a defendant to affirmatively plead foreign sovereign immunity from suit, since a court must decide immunity even if a defendant does not appear; and 2) Iran's rights to payment from the debtor did not constitute "property in the United States" under 28 U.S.C. section 1610(a).

     

    Simmonds v. Credit Suisse Secs. (USA) LLC, No. 09-35262

    Dismissal of Short-Swing Trading Action Affirmed in Part

    In Simmonds v. Credit Suisse Secs. (USA) LLC, No. 09-35262, an action alleging that the defendant-appellee investment banks violated Section 16(b) of the Securities Exchange Act of 1934 by engaging in prohibited "short-swing" transactions in connection with the Initial Public Offerings (IPOs) of the fifty-four defendant corporations between 1999 and 2000, the court affirmed the dismissal of the complaint in part where plaintiff failed to present an adequate demand letter to the issuing companies prior to filing her lawsuits.  The court reversed in part where Section 16(b)'s two-year statute of limitations began to run from the time that the defendant filed a Section 16(a) disclosure statement, and plaintiff alleged that such statements were never filed.

     

    Center for Biological Diversity v. US Dept. of Agr., No. 09-17233

    FOIA Order Compelling Disclosure By USDA Reversed

    In Center for Biological Diversity v. US Dept. of Agr., No. 09-17233, the U.S. Department of Agriculture's (USDA) appeal from the district court's order requiring the USDA, under the Freedom of Information Act (FOIA), to disclose the GPS coordinates of wolf depredations to which it had responded, the court reversed where FOIA Exemption 3 applied because Section 8791 of the Food, Conservation, and Energy Act of 2008 exempted from disclosure such geospatial data and applied to this case even though it took effect after the USDA withheld the coordinates.