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

9th Circuit April 2010 News

Long Beach Area Chamber of Comm. v. Long Beach, No. 07-55691, involved an action challenging the Long Beach Campaign Reform Act (LBCRA), which prohibited "persons" from making any independent expenditures if they received contributions above certain amounts, as applied to the Long Beach Area Chamber of Commerce (Chamber) and its affiliated political action committees (PACs).  The court of appeals reversed summary judgment for plaintiff Chamber, holding that the Chamber failed to demonstrate that it suffered or faced a real and immediate threat of suffering an injury that was fairly traceable to the LBCRA.  However, the court reversed summary judgment against the PACs, on the ground that, though the City identified several governmental interests that purportedly were served by the LBCRA, it did not show that any was "sufficiently important" to support the LBCRA's application to the PACs.

Ventress v. Japan Airlines, No. 08-15731, concerned plaintiff-flight engineer's action under various whistleblower protection laws against an airline.  The Ninth Circuit affirmed in part judgment on the pleadings for one defendant and the confirmation of an arbitral award in favor of another, on the grounds that 1) the filing and denial of a motion to disqualify an arbitrator in one arbitration did not establish bias in a subsequent arbitration, and the arbitrator's supposed affiliations, and plaintiff's unsupported assertions about their ideologies, did not establish bias; 2) plaintiff chose to bring only California state-law claims, argued strenuously that California's interests were paramount, waited nearly a year--until a substantive motion was pending against their complaint-- before attempting to amend it, and did not show that Hawaii law was different on the merits.  However, the judgment reversed in part, on the ground that plaintiff's state-law claim was not "related to" a "service" for purposes of Federal Airline Deregulation Act preemption.

Arizona v. Harkins Amusement Enters., No. 08-16075, concerned an Americans with Disabilities Act (ADA) action claiming discriminatory accommodations at defendant's movie theaters.  The Ninth Circuit reversed the dismissal of the complaint, on the ground that the district court was correct in holding that the ADA does not require Harkins to utilize open captioning as a matter of law, but closed captioning and audio descriptions were "auxiliary aids and services" that a movie theater may be required to provide under the ADA.

Plata v. Schwarzenegger, No. 09-15864, involved a class action challenge deficiencies in prison medical care that allegedly violated the Eighth Amendment and the Americans with Disabilities Act.  The court affirmed the appointment of a receiver, on the grounds that 1) the Prison Litigation Reform Act did not deprive the district court of its equitable power to appoint a receiver in prison litigation; 2) the district court correctly found that a receivership was the least intrusive means of remedying constitutional violations in prisoner health care; and 3) the court lacked jurisdiction to review the district court's refusal to terminate the receiver's construction plan.

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Moor v. Palmer, No. 07-16045, concerned habeas proceedings challenging the denial of petitioner's parole, following his conviction for using a minor in the production of pornography.  The court of appeals affirmed the denial of the petition, holding that 1) the revocation of petitioner's parole in 2002 was not the type of criminal punishment that would trigger the protections of the Double Jeopardy Clause; 2) to the extent petitioner asserted that the parole board's violation or misapplication of Nevada law violated his federal due process rights, petitioner had no liberty interest in parole; and 3) it is not an objectively unreasonable application of Supreme Court precedent to conclude that subjecting petitioner to a review panel certification process would not create a substantial risk that he would serve more prison time than if he had been evaluated for parole under standards applicable at the time of his conviction, as found in Nev. Rev. Stat. section 213.1099.

Buckingham v. Sec'y, U.S. Dept. of Agric., No. 09-15893, involved an action seeking judicial review, pursuant to the Administrative Procedure Act (APA), of the Forest Service's decision to cancel plaintiff's permit to graze cattle in the Santa Rosa Ranger District of the Humboldt-Toiyabe National Forest.  The Ninth Circuit affirmed summary judgment for defendant, on the grounds that 1) plaintiff failed to exhaust his administrative remedies by failing to properly raise an issue before the Forest Service; 2) plaintiff failed to persuasively explain why he was unable to resolve those factual issues through the ample process he was given; and 3) based on the violations occurring in the 2005 grazing season alone, the Forest Service had a reasonable basis for canceling petitioner's 2005 permit.

In US v. Franklin, No. 09-30041, the court of appeals affirmed defendant's firearm possession conviction, holding that 1) there was probable cause to believe that defendant was residing in the motel room searched by police; and 2) the terms of defendant's plea agreement were clear and unambiguous and did not contain a promise that federal charges would not be brought.

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Dukes v. Wal-Mart Stores, Inc., No. 04-16688, involved a Title VII action alleging discrimination against female employees by Wal-Mart.  The Ninth Circuit affirmed the district court's certification of a Fed. R. Civ. P. 23(b)(2) class of current employees with respect to their claims for injunctive relief, declaratory relief, and back pay, holding that 1) it was within the district court's discretion, and in line with Falcon, to determine that the commonality prerequisite to class certification was satisfied; 2) decentralized, subjective decision making could contribute to a common question of fact regarding the existence of discrimination; and 3) because the discrimination they claimed to have suffered occurred through alleged common practice --e.g., excessively subjective decision making in a corporate culture of uniformity and gender stereotyping--the district court did not abuse its discretion by finding that their claims were sufficiently typical to satisfy Rule 23(a)(3). 

However, the court of appeals remanded the certification order with respect to plaintiffs' claims for punitive damages, and as to those class members who no longer worked for Wal-Mart, on the grounds that 1) whether certification under Rule 23(b)(2) of the punitive damages claims would cause monetary relief to predominate; and 2) whether an additional class or classes may be appropriate under Rule 23(b)(3) with respect to the claims of former employees.

Fidelity Nat'l. Fin. Inc. v. Friedman, No. 08-16967, concerned an action to enforce a judgment in Arizona.  The Ninth Circuit certified the following questions to the Arizona Supreme Court:  1) Do collection activities (such as filing for a writ of garnishment or applying for orders from the court to inspect a safety deposit box or require a debtor's exam) taken within Arizona, renew a judgment previously registered in Arizona?  2) Does the filing of a related lawsuit in a state other than Arizona renew a judgment previously registered in Arizona?

Fence Creek Cattle Co. v. US Forest Serv., No. 08-36051, involved an action under the Administrative Procedure Act (APA) claiming that the Forest Service's cancellation of plaintiff's use of certain grazing allotments for failure to comply with the terms and conditions of the permit.  The court of appeals affirmed summary judgment for defendant, holding that 1) plaintiff failed to meet its heavy burden to show that the additional materials it sought were necessary to adequately review the Forest Service's decision; 2) based on the lack of evidence that plaintiff actually owned the cattle observed on one allotment, substantial evidence supported the Forest Service's factual finding of non-ownership; and 3) the Forest Service fully complied with the due process requirements of the APA.

Zobmondo Ent'mt., LLC v. Falls Media, LLC, No. 08-56831, concerned an action for trademark infringement, unfair competition, and related claims based on plaintiff's use of defendant's registered trademark "WOULD YOU RATHER . . . ?".  The court of appeals reversed summary judgment for plaintiff, holding that there was a genuine issue of material fact whether "WOULD YOU RATHER . . . ?" was merely descriptive.

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Nunez-Reyes v. Holder, No. 05-74350, concerned a petition for review of the BIA's denial of petitioner's application for adjustment of status due to his marriage to a U.S. citizen and cancellation of removal.  The Ninth Circuit granted the petition on the ground that the State of California dismissed prior charges against petitioner under California Penal Code section 1210.1, and thus those charges could not be used to render petitioner ineligible for cancellation of removal.

Sum v. Holder, No. 05-75776, a petition for review of the BIA's denial of petitioner's application for an 8 U.S.C. section 212(h) waiver of removal because he was convicted of a qualifying offense after his admission as a lawful permanent resident (LPR).  The court of appeals denied the petition, on the ground that, because petitioner was "admitted" as an LPR in the sense of being inspected and authorized at the port of entry, but later convicted, he was barred from section 212(h) relief.

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Immigration Decision in Hammad v. Holder

Hammad v. Holder, No. 07-72370, a petition for review of the BIA's determination that petitioner was not entitled to permanent resident status.  The Ninth Circuit denied the petition, on the grounds that 1) 8 U.S.C. section 1186a(b) puts the burden of proof on the government to prove that his marriage was fraudulent; 2) given the numerous inconsistencies in his testimony, petitioner failed to carry his burden to prove that his marriage was bona fide; and 3) because petitioner's extreme hardship argument was based on the effect his removal would have on a family from his second marriage, which did not exist during his two-year conditional resident status, he did not qualify for a waiver on that ground.

As the court wrote:  "In 1995, Ivad Mohammed Hammad, a Palestinian immigrant to the United States, was granted permanent resident status on a conditional basis, based on a petition filed by his U.S. citizen wife. His permanent resident status lapsed when his wife admitted to Immigration and Naturalization Service (INS) officials that she had entered into the marriage for a fee, and withdrew her support of his petition to remove the condition on his residency. Now remarried, Hammad appeals a determination by the Board of Immigration Appeals (BIA) that he is not entitled to permanent resident status. Because the BIA's determination was supported by substantial evidence, we deny his petition."

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Civ. Pro. Decision in Labor Class Action Against Cal. Oil Refineries

Int'l Union, AFL-CIO v. Shell Oil Co., No. 10-55269, involved a class action alleging that defendants' oil refineries violated various California labor laws.  The Ninth Circuit reversed the district court's order remanding the case to state court, holding that the denial of class certification did not divest federal courts of jurisdiction over cases properly removed under 28 U.S.C. section 1332(d).

As the court wrote:  "Defendants removed this putative class action from state court pursuant to the Class Action Fairness Act of 2005 (CAFA), 28 U.S.C. §§ 1332(d), 1453. After denying class certification, the district court concluded that it no longer had jurisdiction and remanded the case to state court. We accepted defendants' appeal to consider whether the denial of class certification divests federal courts of jurisdiction over cases removed under § 1332(d). Today we join the Seventh and Eleventh Circuits in holding that it does not. If the putative class action was properly removed to begin with, the subsequent denial of Rule 23 class certification does not divest the district court of jurisdiction. The case remains removed and is not to be remanded to state court."

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Arbitration, Criminal, Indian Law and Water Rights Decisions

In US v. Strickland, No. 08-30091, the Ninth Circuit affirmed defendant's child pornography sentence, holding that defendant's prior Maryland conviction for child abuse was a predicate offense relating to sexual abuse of a minor under 18 U.S.C. section 2252A(b)(1) and (2) resulting in an increased statutory minimum and maximum sentence, because the docket sheet for the Maryland conviction established that the predicate offense was for sexual abuse of a child.

US v. Bell, No. 05-16154, concerned an action by the U.S. against the Truckee-Carson Irrigation District (TCID) alleging a violation of the federal government's water rights.  The court of appeals affirmed in part the district court's ruling that the government under the Settlement Act could pursue any claim for past excess diversions from the bodies of water at issue, and denying prejudgment interest, holding that 1) the U.S. properly brought the action under the Settlement Act; 2) the district court's order did not conflict with prior Nevada state court decrees; and 3) the district court did not err in finding TCID liable under the Settlement Act for its violations of operating criteria and procedures imposed by the Secretary of the Interior.  However, the court vacated in part, on the ground that the district court needed to explain the basis in the record for its legal or equitable award of "water interest," that is, water over the amount wrongfully diverted each year.

Pokorny v. Quixtar, Inc., No. 08-15880, involved a class action claiming that defendants operated an illegal pyramid scheme in violation of the Racketeer Influenced and Corrupt Organizations Act and California Business and Professions Code section 17200.  The Ninth Circuit affirmed the denial of defendants' motion to dismiss or to compel arbitration, on the ground that the arbitration provisions of defendant's agreements with its product distributors were unconscionable under California law.

Rincon Band of Luiseno Mission Indians v. Schwarzenegger, No. 08-55809, concerned the State of California's appeal from the district court's holding that the state violated the Indian Gaming Regulatory Act (IGRA), which provided that a state must negotiate in good faith with its resident Native American tribes to reach compacts concerning casino-style gaming on Native American lands.  The court affirmed, holding that the state's repeated insistence that a tribe pay a portion of its net revenues into the state's general fund constituted an attempt by the state to impose a tax on the tribe in violation of 25 U.S.C. section 2710(d)(4).

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Immigration Cases

Vasquez v. Holder, No. 05-73714, concerned a petition for review of the BIA's denial of petitioner's application for an extreme hardship waiver of removal.  The Ninth Circuit granted the petition, holding that an alien whose legal status as the spouse of a citizen is later terminated because the marriage was fraudulent is eligible for discretionary relief from removal.

Singh v. Holder, No. 08-70434, involved a petition for review of the denial of petitioner's asylum application.  The court of appeals denied the petition, on the grounds that 1) the Immigration Judge (IJ) possessed the authority to require corroborating evidence; and 2) the IJ's conclusion that petitioner's uncorroborated testimony was insufficient to carry his burden to prove his date of entry was proper.

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Criminal and Immigration Cases

Eneh v. Holder, No. 05-75264, involved a petition for review of the BIA's denial of petitioner's application for asylum, withholding of removal, and withholding and deferral of removal under the Convention Against Torture.  The Ninth Circuit granted the petition on the ground that the BIA's reasoning appeared to be at odds with the Immigration Judge's decision, petitioner's credible testimony, and judicially-noticeable facts.

In US v. Alderman, No. 08-30322, the court of appeals affirmed defendant's firearm possession sentence, holding that the first degree theft crime under Washington law of which defendant was convicted was a "crime of violence" for purposes of the Guidelines enhancement, and the shooting committed by defendant was an assault under Washington law.

US v. Velasquez-Bosque, No. 09-50126, concerned the government's appeal from defendant's sentence for illegal reentry into the U.S.  The court reversed, holding that carjacking under California Penal Code section 215 was a categorical crime of violence under U.S.S.G. section 2L1.2(b)(1)(A)(ii).

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Criminal, False Advertising, and Immigration Matters

Joseph v. Holder, No. 05-74390, involved a petition for review of the BIA's decision affirming an immigration judge's denial of petitioner's applications for asylum, withholding of removal, and relief under the Convention Against Torture.  The court of appeals granted the petition, holding that an Immigration Judge, who presides over the same petitioner's bond hearing and removal hearing, may not use her notes from the unrecorded bond hearing in reaching her decision in the removal hearing.

PhotoMedex, Inc. v. Irwin, No. 07-56672, concerned an action involving Lanham Act claims for misleading advertising and California state law claims for false advertising and unfair competition, based on defendants' alleged misrepresentations regarding the release of a medical device.  The court affirmed summary judgment for defendants in part where, because the FDA permitted defendants to determine in the first instance whether their laser device was covered by clearance previously given to a similar device and to market their device without an affirmative statement of approval by the FDA, the Lanham Act claim by plaintiff could not proceed.  However, the court vacated in part, holding that though a forecast of future events may ordinarily be a statement of opinion upon which unfair competition claims could not be based, such a statement may be actionable if the speaker knew at the time the statement was made that it was false or did not have a good faith belief in the truth of what was said.

Mora-Meraz v. Thomas, No. 09-35413, involved a drug possession prosecution.  The court of appeals affirmed the Bureau of Prisons' unwritten requirement that petitioner present documented proof of substance use within twelve months of imprisonment to be eligible for a drug treatment program was not required to comply with the Administrative Procedure Act's procedural requirements including: 1) the need for an agency to provide ample notice and time for comment; and 2) an agency's explanation of its rationale for adopting a particular rule.

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Arizona's Wine Regulations, Bankruptcy Case

Black Star Farms LLC v. Oliver, No. 08-15738, concerned an action by a Michigan winery claiming that certain provisions of Arizona's statutory scheme regulating the direct shipment of wine from wineries -- whether located in-state or out-of-state -- to Arizona consumers violated the dormant Commerce Clause.  The Ninth Circuit affirmed summary judgment for defendant, on the ground that Arizona's statutory exceptions to its three-tier distribution system, which treated similarly situated in-state and out-of-state wineries the same and imposed no new impermissible burdens on out-of-state wineries, did not have the practical effect of favoring in-state economic interests over out-of-state interests.

In re: Sabban, No. 08-60017, involved a Chapter 7 bankruptcy adversary proceeding.  The court of appeals affirmed the bankruptcy court's order holding that a monetary award under California's unlicensed contractor statute, Cal. Bus. & Prof. Code section 7031(b), was dischargeable, on the ground that the award was exempted from discharge pursuant to 11 U.S.C. section 523(a)(2)(A) because it was not premised on either fraud or actual harm.

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Criminal and Immigration Matters

Hein v. Sullivan, No. 07-56277, involved a murder prosecution in which the district court denied petitioners' habeas petition.  The Ninth Circuit affirmed, holding that, in light of the record from the two-month-long jury trial, an undisclosed letter from the state to an eyewitness promising not to prosecute him for his drug dealing activities was not the decisively impeaching evidence petitioners made it out to be, and thus petitioners failed to establish the prejudice required to overturn their convictions.

Lopez-Jacinde v. Holder, No. 07-72046, concerned a petition for review of the BIA's decision that held that petitioner's state felony conviction for possession of pseudoephedrine with intent to manufacture methamphetamine was a "drug trafficking crime" which constituted an "aggravated felony" under federal law, rendering petitioner statutorily ineligible for cancellation of removal.  The Ninth Circuit denied the petition, on the grounds that 1) use of a firearm was not required for a state conviction to constitute an aggravated felony as a "drug trafficking crime"; and 2) the federal crime corresponding to Cal. Health & Safety Code section 11383(c)(1) did not require possession of a minimum amount of pseudoephedrine.

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Employment, Immigration, and Property Matters

Mutuku v. Holder, No. 05-73609, involved a petition for review of the BIA's dismissal of petitioner's appeal of the immigration judge's ("IJ") denial of her claims for asylum, withholding of removal, and relief under the Convention Against Torture.  The court of appeals granted the petition in part, holding that 1) the IJ's adverse credibility finding was premised on a clearly erroneous factual finding; and 2) substantial evidence did not support the IJ's finding that conditions in Kenya had improved for members of the Democratic Party to such an extent that petitioner no longer had a well-founded fear of returning to Kenya.  However, the court denied the petition in part because the record did not compel a finding that petitioner would likely be tortured if she were to return to Kenya.

Ojo v. Farmers Grp., Inc., No. 06-55522, involved a disparate impact suit alleging the discriminatory provision of homeowner's insurance in violation of the federal Fair Housing Act (FHA).  The court of appeals stayed further proceedings, holding that 1) the FHA prohibited discrimination in the denial and pricing of homeowner's insurance; and 2) the reverse-preemption standard set forth in the McCarran-Ferguson Act applied to claims brought under latter enacted civil rights statutes such as the FHA, and certifying to the Texas Supreme Court the issue of whether Texas law permitted an insurance company to price insurance by using credit-score factors that had a racially disparate impact that, were it not for the McCarran-Ferguson Act, would violate the FHA.

Serra v. Lappin, No. 08-15969, concerned an action by prisoners claiming that the low wages they were paid for work performed in prison violated their rights under the Fifth Amendment and various sources of international law.  The court of appeals affirmed the dismissal of the aciton, holding that prisoners had no enforceable right to be paid for their work under the Constitution or international law.

Ramirez-Villalpando v. Holder, No. 08-72102, involved a petition for review of the BIA's decision affirming an order of removal based on petitioner's conviction for an aggravated felony.  The court of appeals denied the petition, holding that petitioner's prior conviction for grand theft under California Penal Code section 487(a) qualified as an aggravated felony under the modified categorical approach.

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Criminal and ERISA Matters

Wise v. Verizon Comms., Inc., No. 08-35866, involved an ERISA action based on the termination of plaintiff's disability benefits.  The court of appeals affirmed the dismissal of the complaint in part, holding that 1) plaintiff did not allege that the plan as a whole incurred an injury as a result of the Plan Administrators' mishandling of her claim; and 2) plaintiff's state law claims were preempted because her complaint necessarily referenced an ERISA plan.  However, the court reversed in part, on the grounds that 1) only one statute of limitations per state applied to benefits-recovery actions under 29 U.S.C. section 1132(a) (1)(B); and 2) plaintiff filed her complaint within the six-year statute of limitations applicable to her claim.

US v. Juarez, No. 09-50323, involved defendant's appeal from the district court's judgment revoking his supervised release and sentencing him to eighteen months in prison.  The Ninth Circuit affirmed, holding that the fugitive tolling of a defendant's term of supervised release begins when the defendant becomes a fugitive, not at the later time when a warrant was issued for his apprehension.

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Criminal and Water Law Matters

US v. Orr Water Ditch Co., No. 07-17001, involved an Indian tribe's appeal from Nevada State Engineer Ruling 5747, allocating groundwater in the Tracy Segment Hydrographic Basin, on the ground that the ruling adversely affected the tribe's water rights under a consent decree.  The Ninth Circuit reversed the dismissal of the action for lack of subject matter jurisdiction, on the grounds that 1) the decree forbade groundwater allocations that adversely affected the tribe's decreed rights to water flows in the river; and 2) the federal district court had jurisdiction over an appeal from groundwater allocations by the Engineer that were alleged to have such an adverse effect.

In White v. Martel, No. 08-16387, the court of appeals affirmed the dismissal of petitioner's habeas petition as untimely, holding that 1) the adequacy analysis used to decide procedural default issues was inapplicable to the issue of whether a state petition was "properly filed" for purposes of 28 U.S.C. section 2244(d)(2); and 2) petitioner's delay did not demonstrate the diligence required for application of equitable tolling.

In US v. Tello, No. 08-50579, the court of appeals affirmed defendant's conviction for using a means of interstate commerce to knowingly persuade, induce, entice, or coerce a minor to engage in a sexual activity for which he could be charged with a criminal offense, on the ground that defendant could have been convicted of a criminal offense under California law, even if he intended to engage in sexual activity with the minor only after returning to Arizona.

US v. Andrews, No. 09-30072, concerned defendant's appeal from a restitution order imposed pursuant to the Mandatory Victims Restitution Act following his guilty plea to an assault resulting in serious bodily injury.  The Ninth Circuit remanded for a renewed restitution proceeding, holding that the district court abused its discretion in precluding defendant's expert witness from testifying regarding the proximate cause of the victim's injuries.

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Criminal and Cyberspace Law Matters

CRS Recovery, Inc. v. Laxton, No. 08-17306, involved an action alleging theft of Internet domain names.  The court of appeals vacated summary judgment for plaintiffs, on the grounds that: 1) California law applied because Virginia did not have an interest in its law applying given how the parties were situated; 2) the district court begged the factual question as to whether plaintiffs lost the domain name at issue due to theft or fraud in characterizing defendant's control of the name as a "seizure" when the circumstances of the transfer were unclear; and 3) further factual development was necessary regarding the precise circumstances through which plaintiff lost control of the domain names.

In US v. Valencia-Barragan, No. 09-50018, the court of appeals affirmed defendant's sentence for attempted reentry into the U.S., on the grounds that 1) a conviction under Wash. Rev. Code section 9A.44.076(1) categorically constituted "sexual abuse of a minor" and was therefore a crime of violence warranting a sixteen-level increase; and 2) the district court did not impose a procedurally or substantively unreasonable sentence.

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Civil Rights, Education, Insurance and Intellectual Property Cases

Holley v. Cal. Dept. of Corrs., No. 07-15552, concerned a 42 U.S.C. section 1983 action by a prisoner claiming that California Department of Corrections grooming regulations requiring short hair imposed a substantial burden on his exercise of religion in violation of section 3 of the Religious Land Use and Institutionalized Persons Act (RLUIPA).  The court of appeals affirmed summary judgment for defendants, holding that the acceptance of federal prison funding by the state of California did not effect a waiver of the state's sovereign immunity that would allow the RLUIPA claim for damages against state officials in their official capacities to proceed in federal court.

JustMed, Inc. v. Byce, No. 07-35861, involved a copyright infringement and trade secret action claiming that defendant misappropriated a software program used on plaintiff's digital audio larynx device.  The Ninth Circuit affirmed judgment for plaintiff in part, holding that the district court did not err in finding that defendant was an employee of plaintiff when he worked on the program, and thus the program was a work for hire for copyright purposes.  However, the court reversed in part on the ground that the district court's finding that defendant disclosed part of the source code to the Copyright Office was insufficient to hold defendant liable for misappropriation under a disclosure theory.

Hyundai Motor Am. v. Nat'l. Union Fire Ins. Co., No. 08-56527, concerned an action against an insurer to recover defense costs based on a third party's action against plaintiff for patent infringement, involving plaintiff's use of certain features on its website.  The court of appeals reversed summary judgment for defendants on the ground that the patent infringement claims in the underlying action alleged the "misappropriation of advertising ideas," and thus stated an "advertising injury" under the policy.

N.D. v. State of Hawaii Dept. of Educ., No. 09-17543, involved an action alleging violations of the Individuals with Disabilities Education Act (IDEA) by the Hawaii Department of Education.  the denial of a preliminary injunction seeking to prevent Hawaii from shutting down public schools on seventeen Fridays and concurrently furloughing the teachers is affirmed, on the ground that the stay-put provision of the IDEA was not intended to cover system-wide changes in public schools that affected disabled and non-disabled children alike, and such system-wide changes were not changes in educational placement.

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Morales-Izquierdo v. Dept. of Homeland Sec., No. 08-35965

Morales-Izquierdo v. Dept. of Homeland Sec., No. 08-35965, a habeas petition seeking review of the BIA's denial of petitioner's application to adjust his immigration status to that of a lawful permanent resident.  The court of appeals affirmed the denial of the petition, holding that 1) to permit petitioner's challenge to the denial of his adjustment-of-status application to proceed as a habeas corpus petition would be contrary to a central purpose of the REAL ID Act; 2) a Form I-212 waiver, even if granted, did not cure the inadmissibility of an alien who reentered the U.S. without inspection after a prior removal; and 3) petitioner had no constitutional right to reside in the U.S. simply because other members of his family were citizens or lawful permanent residents.

As the court wrote:  "Petitioner-Appellant Raul Morales ("Morales") filed an application to adjust his immigration status to that of a lawful permanent resident. His application was denied because his prior removal from the United States made him "inadmissible."  Morales filed a petition for a writ of habeas corpus challenging the rejection by an Immigration and Naturalization Service ("INS") official of his adjustment-of-status application, denial of which by the district court prompted this appeal."

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