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

9th Circuit June 2010 News

Carlos-Blaza v. Holder, No. 07-70632, involved a petition for review of the immigration judge's order removing petitioner from the U.S. as an aggravated felon pursuant to 8 U.S.C. section 1227(a)(2)(A)(iii).  The court of appeals denied the petition on the ground that a bank employee who "knowingly stole, embezzled, and misapplied moneys" in the amount of $65,000 committed a crime that "involves fraud or deceit."

In re: Cutera Sec. Litig., No. 08-17627, involved a fraud-on-the-market suit claiming that Cutera, Inc. provided false and misleading revenue projections and failed to disclose material information about the shortcomings of Cutera's sales staff.  The court of appeals affirmed the dismissal of the complaint on the grounds that 1) alleged incomplete disclosures about Cutera's sales force were not material omissions made in violation of the securities laws; and 2) Cutera's earnings projections fall within the statutory safe harbor for forward-looking projections under the Private Securities Litigation Reform Act.

Seaton v. Mayberg, No. 05-56894, concerned an action claiming that defendants violated plaintiff's constitutional right to privacy by allowing psychologists to look at his records and to communicate their opinions and supporting data to the district attorney's office regarding plaintiff's civil commitment.  The Ninth Circuit affirmed the dismissal of the complaint, holding that prisoners did not have a constitutionally protected expectation of privacy in prison treatment records when the state had a legitimate penological interest in access to them.

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In Retired Employees' Assn. v. Cty. of Orange, No. 09-56026, involved an action challenging Orange County's change to the structure of its health benefits under which the County began to split the pool of active and retired employees for purposes of setting premiums.  The Ninth Circuit certified the following question to the Supreme Court of California:  Whether, as a matter of California law, a California county and its employees can form an implied contract that confers vested rights to health benefits on retired county employees.

Stacy v. Rederiet Otto Danielsen, A.S., No. 09-15579, concerned an action for negligent infliction of emotional distress arising from a maritime collision.  The court of appeals reversed the dismissal of the action, on the ground that plaintiff alleged that he was within the zone of danger and that he suffered emotional distress from the fright caused by the negligent action of the defendants, and nothing more was required to assert a cause of action cognizable under maritime law.

In US v. Struckman, No. 08-30312, the court of appeals affirmed the district court's denial of defendant's motion to dismiss the tax fraud charges against him, on the ground that the broad suppression of evidence before trial was an adequate remedy for the prosecutorial misconduct found by the district court, and dismissal of the indictment was unnecessary.

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Lin v. Holder, No. 06-73377, involved a petition for review of the BIA's denial of petitioner's application for asylum and requested withholding of removal under the Immigration and Nationality Act ("INA") and protection under the Convention Against Torture ("CAT").  The Ninth Circuit granted the petition in part, on the ground that petitioner established by clear and convincing evidence that he filed his asylum application within one year of arriving in the United States and that the case must be remanded to the BIA for consideration of his asylum claim on the merits.  However, the court denied the petition in part, holding that the record did not compel the conclusion that the immigration judge erred in denying petitioner's request for withholding of removal.

Visa Int'l. Serv. Assn. v. JSL Corp., No. 08-15206, involved an action by Visa Corporation claiming that a company called eVisa was likely to dilute the Visa trademark.  The court of appeals affirmed summary judgment for plaintiff, holding that introduction of the eVisa mark to the marketplace meant that there were now two products, and not just one, competing for association with that word, which was the quintessential harm addressed by anti-dilution law.

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Lal v. State of Cal., No. 08-15645, involved an action against the California Highway Patrol and certain officers for the shooting death of plaintiff's husband.  The Ninth Circuit reversed the dismissal of the action with prejudice under Federal Rule of Civil Procedure 41(b) for failure to prosecute when her attorney failed to meet deadlines and attend hearings, holding that an attorney's gross negligence constituted an extraordinary circumstance warranting relief from a judgment dismissing the case for failure to prosecute under Rule 41(b).

Kimbrough v. State of Cal., No. 08-17231, concerned an action claiming that the California Department of Corrections and Rehabilitation's (CDCR) grooming regulations concerning hair length interfered with plaintiff's First Amendment right to free exercise of religion.  The court of appeals reversed the district court's award of attorney's fees to plaintiff, holding that, because the district court did not actually adjudicate plaintiff's claims, the Ninth Circuit's decision in Siripongs foreclosed an award of attorneys' fees in this case.

In US v. Buzo-Zepeda, No. 09-50190, the court of appeals affirmed defendant's sentence for reentry into the U.S. following deportation, holding that a "Johnson waiver" in California state court had no effect on the determination of whether a defendant qualifies for a point increase under United States Sentencing Guidelines Manual section 4A1.1, Criminal History Category.

US v. King, No. 09-50665, concerned defendant's appeal from the district court's judgment revoking his term of supervised release and imposing additional supervised release conditions on the basis of five violations of his supervised release conditions.  The court of appeals affirmed, on the grounds that 1) 18 U.S.C. section 3605's language did not limit a transferee court's power to violations that occur after transfer; 2) together, the ordinary meaning of "associate," the court's cases, and defendant's probation officer's instructions adequately notified defendant that telephone and e-mail communications with felons were prohibited; and 3) the evidence was sufficient to support the district court's finding that defendant's misrepresentation was intentional.

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Denial of Attorney's Fees in ERISA Matter Upheld

Simonia v. Glendale Nissan/Infiniti Disability Plan, No. 09-56025, concerned plaintiff's appeal from the district court's denial of his motion for attorney's fees under the Employee Retirement Income Security Act of 1974.  The court of appeals affirmed on the ground that, even assuming plaintiff achieved some degree of success on the merits, the Ninth Circuit agreed with the district court's conclusion that fees are nonetheless inappropriate after applying the Hummell factors.

As the court wrote:  "Plaintiff-Appellant Aleck Simonia appeals the district court's denial of his motion for attorney's fees under the Employee Retirement Income Security Act of 1974 ("ERISA"). See 29 U.S.C. § 1132(g). We affirmed the district court's grant of summary judgment in favor of his former employer's health care plan in Simonia v. Glendale Nissan/ Infiniti Disability Plan, No. 09-55569, 2010 WL 1896455 (9th Cir. May 12, 2010). We stayed consideration of his attorney's fee appeal pending the Supreme Court's disposition of Hardt v. Reliance Standard Life Insurance Co., ___ S. Ct. ___, No. 09-448, 2010 WL 2025127, at *3 (May 24, 2010). District courts must now determine whether an ERISA fee claimant has achieved "some degree of success on the merits" before awarding fees under § 1132(g). Id. But the Supreme Court expressly declined to foreclose the possibility that, once a court has determined that a litigant has achieved some degree of success on the merits, it may then evaluate the traditional five factors under Hummell v. S.E. Rykoff & Co., 634 F.2d 446 (9th Cir. 1980), before exercising its discretion to grant fees. See Hardt, ___ S. Ct. ___, 2010 WL 2025127, at *9 n.8."

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EEOC v. Peabody Western Coal Co., No. 06-17261, involved an action by the EEOC alleging that, in maintaining its employment preference for Navajo workers, defendant discriminated against non-Navajo Indians, including two members of the Hopi Nation and one member of the Otoe tribe, in violation of Title VII.  The court of appeals reversed summary judgment for defendant, on the grounds that 1) the amended complaint filed by the EEOC after remand did not render it infeasible to join the Navajo Nation; 2) the Secretary  of the Interior was a required party under Rule 19(a), and joining him was not feasible; 3) plaintiff could not bring a third-party damages claim against the Secretary under Fed. R. Civ. P. 14(a), and that EEOC's claim against defendant for damages must therefore be dismissed under Rule 19(b); and 4) plaintiff could bring a third-party claim against the Secretary for prospective relief under Rule 14(a), and therefore EEOC's injunctive claim against defendant should be allowed to proceed.

Simmons v. Navajo County, No. 08-15522, involved a civil rights action against county jail personnel claiming that they negligently permitted the suicide of an inmate.  The court of appeals affirmed summary judgment for defendant in part, holding that 1) no reasonable jury could conclude that a nurse consciously disregarded an excessive risk to plaintiffs' decedent's safety; 2) plaintiffs adduced no evidence that a corrections officer knew that the decedent was suicidal; and 3) because there was no underlying constitutional violation, plaintiffs could not maintain a claim for municipal liability.  The court of appeals vacated in part, on the ground that, should the district court decline to exercise supplemental jurisdiction over plaintiffs' state law claims, it may remand those claims to state court for further proceedings.

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Plus a Government Benefits Matter

Almaraz v. Holder, No. 08-74497, concerned a petition for review of the Board of Immigration Appeals's ("BIA") denial of petitioner's motion to reopen and remand.  The court of appeals denied the petition, on the ground that the adoption of an international trade agreement did not amount to changed country conditions that resurrected his late-filed motion.

Hawaii Stevedores, Inc. v. Ogawa, No. 09-73041, involved a petition for review of a decision of the Benefits Review Board (BRB) affirming an Administrative Law Judge's (ALJ) grant of disability benefits.  The court of appeals granted the petition in part, on the ground that 1) the mere fact that an expert witness talked with a party's lawyer and then altered his or her opinion language, though it might be considered relevant, did not require a factfinder to find that expert witness was other than credible; and 2) the ALJ's finding of the maximum medical improvement date was not supported by substantial evidence.  However, the court denied the petition in part, holding that 1) the ALJ's finding that petitioner did not meet its burden of demonstrating prejudice was supported by substantial evidence, and respondent's late notice was properly excused; and 2) respondent's stroke qualified as a compensable injury under the Longshore Act.

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In Murdoch v. Castro, No. 05-55665, a murder prosecution, the court of appeals affirmed the denial of petitioner's habeas petition, holding that, because the Supreme Court has not clearly established whether and in what circumstances the attorney-client privilege must give way in order to protect a defendant's Sixth Amendment confrontation rights, the California state court could not have unreasonably applied clearly established Supreme Court law when it denied petitioner access to an allegedly exculpatory letter sent by a witness.

Edwards v. First Am. Corp., No. 08-56536, involved an action claiming that defendant improperly paid millions of dollars to individual title companies and, in exchange, those title companies entered into exclusive referral agreements with defendant.  The court of appeals affirmed the denial of defendants' motion to dismiss the complaint, on the ground that the text of the Real Estate Settlement Procedures Act did not limit liability to instances in which a plaintiff was overcharged.

In US v. Batson, No. 09-50238, a prosecution for conspiracy to commit tax fraud, the court of appeals affirmed in part defendant's restitution order, on the ground that the district court was authorized to order restitution for a violation of Title 26 as a condition of supervised release by 18 U.S.C. section 3563(b)(2), which granted courts broad discretion to order restitution as a condition of probation, and 18 U.S.C. section 3583(d), which made that grant applicable to supervised release.  However, the court vacated in part, holding that restitution so ordered must be limited to the offense of conviction when, as here, that offense does not involve an element of a "scheme, conspiracy, or pattern of criminal activity."

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Court Addresses Excessive Force Challenge to Officer's Use of Taser

Te-Moak Tribe of Western Shoshone of Nev. v. US Dept. of Interior, No. 07-16336, concerned an action claiming that the Bureau of Land Management's (BLM) approval of a mining company's amendment to a plan of operations for an existing mineral exploration project in Nevada violated the National Environmental Policy Act (NEPA), the National Historic Preservation Act, and the Federal Land Policy and Management Act.  The court of appeals affirmed summary judgment for defendants in part on the grounds that 1) the BLM did not violate NEPA by approving the amendment without knowing the precise locations of drill sites, access roads, and other project activities; and 2) given the uncertainty of the exploration activities, the BLM imposed mitigation measures designed to adequately protect cultural resources in all phases of the amendment.  However, the court reversed in part, holding that BLM's analysis of the cumulative impacts of the proposed amendment and the project was insufficient, and therefore violated NEPA.

Bryan v. MacPherson, No. 08-55622, concerned an action asserting excessive force in violation of the Fourth Amendment based on an officer's use of a taser on plaintiff.  The court of appeals affirmed in part the denial of summary judgment based on qualified immunity, holding that, viewing the circumstances in the light most favorable to plaintiff, defendant's use of the taser was unconstitutionally excessive.  However, the court reversed in part, on the ground that the violation of plaintiff's constitutional rights was not clearly established at the time.

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Guy v. City of San Diego, No. 08-56024, concerned plaintiff's appeal from the district court's denial of his motion for a new trial on damages following a jury verdict reached in his 42 U.S.C. section 1983 action alleging excessive force by police.  The court of appeals affirmed in part, on the ground that substantial evidence supported the jury's finding that plaintiff suffered only nominal damages.  However, the court reversed in part, holding that an attorney's fee award would serve a purpose beneficial to society by encouraging the City of San Diego to ensure that all of its police officers were well trained to avoid the use of excessive force, even when they confronted a person whose conduct had generated the need for police assistance.

Del Banjo v. Ayers, No. 08-56512, involved a prosecution for kidnapping with the intent to commit rape and/or sodomy and one count of sodomy.  The court of appeals affirmed the denial of petitioner's habeas petition, on the ground that the statute of limitations applicable to the petition was not tolled because petitioner's delay was not reasonable, nor was it consistent with the short periods of time permitted by most states and envisioned by the Supreme Court in reaching its decisions in Saffold and Chavis.

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Habeas Petition in Murder Case, and Other Criminal Matter

Howard v. Clark, No. 08-55340, involved a murder and attempted murder prosecution.  The court of appeals affirmed in part the denial of petitioner's habeas petition, holding that the district court correctly denied petitioner's claim based on his trial counsel's failure to call an expert witness on eyewitness identifications.  However, the court reversed in part, on the ground that the record was not sufficiently developed to determine whether petitioner was entitled to relief based on his attorney's allegedly inadequate investigation of the victim.

US v. Gossi, No. 09-30202, concerned defendant's appeal from a restitution order imposed pursuant to the Mandatory Victims Restitution Act ("MVRA"), 18 U.S.C. section 3663A, following defendant's guilty plea to mail fraud.  The court of appeals affirmed, on the grounds that 1) the district court's valuation of the property at issue was within the discretion afforded district courts; and 2) the district court correctly ordered defendant to pay restitution based on losses proximately resulting from his criminal conduct.

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Blair v. Bethel Sch. Dist., No. 08-35895, involved an action alleging that plaintiff's First Amendment rights were violated when his fellow school board members voted to remove him as their vice president because of his relentless criticism of the school district's superintendent.  The Ninth Circuit affirmed summary judgment for defendants, on the ground that the board's action did not prevent plaintiff from continuing to speak out, vote his conscience, and serve his constituents as a member of the board.

In US v. Villavicencio-Burruel, No. 09-50204, the First Amendment affirmed defendant's conviction for illegal reentry following deportation in violation of 8 U.S.C. section 1326, and for making false claims that he had U.S. citizenship in violation of 18 U.S.C. section 911, holding that 1) defendant did not comply with section 1326(d)(1)'s exhaustion requirement, and his waiver argument was inapposite and did not excuse the nonexhaustion; and 2) the admission of defendant's warrant of removal did not violate his Confrontation Clause rights.  However, defendant's sentence is vacated on cross-appeal by the government where a conviction for making a criminal threat under Cal. Pen. Code section 422 was categorically a conviction for a crime of violence under U.S.S.G. section 2L1.2.

In US v. O'Donnell, No. 09-50296, a prosecution for violating federal campaign finance laws, the Ninth Circuit reversed the district court's dismissal of the charges of contributing in the names of others in violation of 2 U.S.C. section 441f, holding that section 441f prohibited a person from providing money to others to donate to a candidate for federal office in their own names, when in reality they were merely "straw donors."

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Shin v. Holder, No. 06-73782, involved a petition for review of the BIA's order finding petitioners ineligible for 8 U.S.C. section 1182(k) relief because they never possessed valid immigrant visas and were not "otherwise admissible" within the meaning of the statute.  The court of appeals granted the petition, holding that section 212(k) expressly made relief available to non-citizens, like petitioners, who were deemed inadmissible for lacking a valid immigrant visa at the time of entry and were not inadmissible for any other reason.

In US v. Navarro, No. 08-50365, the court affirmed defendant's convictions for importing heroin and possession with intent to distribute, holding that 1) any error the prosecutor may have made in defining duress was neutralized by the district judge's immediate reminder that the court's instructions controlled; and 2) even if error in the grand jury proceedings was brought to the attention of the district court prior to trial, where the motion was denied and a guilty verdict was returned, the error was rendered harmless by the verdict.

US v. Bonds, No. 09-17009, involved the government's appeal from various adverse evidentiary rulings in the Barry Bonds perjury prosecution.  The court of appeals affirmed, on the grounds that 1) the district court finding properly focused on the record of untrustworthiness of trainer Greg Anderson in excluding his testimony; 2) the court correctly ruled that the government failed to show that certain statements by Anderson were authorized by Bonds, in excluding those statements; 3) there was sufficient basis in the record to support the district court's conclusion that Anderson acted as an independent contractor rather than an employee; and 4) the district court did not abuse its discretion in refusing to admit certain log sheets as evidence that the samples listed were Bonds'.

US v. Gamboa, No. 09-30217, involved a prosecution for cocaine base distribution.  The court of appeals affirmed the denial of petitioner's petition for a writ of audita querela, holding that the district court did not err in determining that it lacked the authority to consider the merits of his petition for audita querela because the writ presented a claim regarding the legality of his sentence that was cognizable under 28 U.S.C. section 2255.

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Lagstein v. Certain Underwriters at Lloyd's, No. 07-16094, involved plaintiff's appeal from the district court's order vacating an arbitral award on the ground of its excessive size and vacating a punitive damages award on the additional ground that the arbitration panel lacked jurisdiction to enter it after the panel had entered its compensatory award.  The court of appeals reversed, on the grounds that: 1) the district court erred in concluding that the size of the arbitration awards demonstrated manifest disregard of the law; 2) the fact that the majority of the arbitrators may have made a mistake in citing a benefit that plaintiff had not purchased did not establish irrationality of its ultimate conclusion that defendant breached its contract; 3) nothing in plaintiff's policy expressly withdrew determination of procedural issues from the panel; and 4) defendant failed to demonstrate either evident partiality or evident corruption in the arbitrators.

US v. Villasenor, No. 08-50541, concerned the government's appeal from the district court's order suppressing evidence in support of drug charges against defendant.  The court of appeals reversed on the ground that a search conducted after a border crossing qualified as a reasonable search under the extended border search doctrine.

West v. Ryan, No. 08-99000, involved a capital habeas matter in which petitioner challenged the district court's denial, without an evidentiary hearing, of petitioner's claim of ineffective assistance of sentencing counsel.  The court of appeals affirmed, on the grounds that 1) it was clear that defense counsel promptly made appropriate mitigation inquiries and did not wait until after trial to begin their investigation; 2) petitioner failed to explain how an evidentiary hearing would allow him to establish ineffective assistance of counsel; and 3) there was no evidence that counsel's actions somehow impeded a psychologist from performing a thorough neuropsychological evaluation.

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Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, No. 06-55750, concerned a First Amendment challenge to Redondo Beach Municipal Code section 3-7.1601, which prohibits the act of standing on a street or highway and soliciting employment, business, or contributions from the occupants of an automobile.  The court of appeals reversed the district court's preliminary injunction in favor of plaintiffs, holding that the ordinance was a valid time, place, or manner restriction.

Benay v. Warner Bros. Entm't, Inc., No. 08-55719, involved an action alleging copyright infringement under federal law and breach of contract under California law based on defendants' alleged misappropriation of plaintiffs' screenplay.  The court of appeals affirmed summary judgment for defendants in part, holding that, even if defendants had access to the screenplay, plaintiffs did not show sufficient similarity between the screenplay and the film (The Last Samurai) to maintain an infringement claim under federal copyright law.  However, the court reversed in part, on the ground that novelty was not required for an implied-in-fact contract claim arising out of unauthorized use.

In re: Southern Cal. Sunbelt Developers, No. 08-56570, concerned actions seeking punitive damages and attorney's fees arising out of the filing of allegedly meritless involuntary bankruptcy petitions against two alleged debtors.  The court of appeals affirmed judgment against appellants in part, holding that 1) the bankruptcy court properly concluded that 11 U.S.C. section 303(i) permitted an award of attorney's fees for a section 303 action as a whole, including fees incurred to litigate claims for fees and damages under section 303(i)(1) and (2); 2) section 303(i) permitted an award of punitive damages under section 303(i)(2)(B) in the absence of an award of actual damages under section 303(i)(2)(A); and 3) the bankruptcy court properly held two individual appellants jointly and severally liable for the costs and attorney's fees the debtors incurred in obtaining dismissal of the involuntary petitions.  However, the court reversed in part, on the ground that the bankruptcy court erred by holding the individual appellants liable for the debtors' costs and fees incurred on the section 303(i) motions themselves.

Prison Legal News v. Schwarzenegger, No. 09-15006, involved an action claiming that the California Department of Corrections violated a prison newspaper's First Amendment rights.  The court of appeals affirmed the district court's award of attorney's fees, on the grounds that 1) plaintiffs could recover attorneys' fees under 42 U.S.C. section 1988 for monitoring the state officials' compliance with the parties' settlement agreement; and 2) the district court's determination of the fee amount was not an abuse of discretion, because it was reasonable for the district court to conclude that the 31.5 hours spent corresponding with inmates was part of plaintiff's efforts to monitor state officials' compliance with the agreement.

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Also, Decisions in Criminal and Employment Matters

In US v. Laurienti, No. 07-50240, the court of appeals affirmed defendants' convictions for securities fraud conspiracy, holding that 1) defendants did not challenge, and overwhelming evidence supported the finding, that the conspiracy existed and that at least one member of it performed an overt act; 2) the district court erred by failing to give a "trust relationship" jury instruction, but defendants intentionally relinquished their right to challenge the jury instruction; and 3) the characterization of the sales practices as unlawful was relevant, because the government sought to prove that, as conducted by defendants (with an intent to defraud and in violation of trust relationship duties), the practices were indeed unlawful. However, defendants' sentences are vacated where the district court erred in calculating loss both for purposes of the Sentencing Guidelines and for purposes of restitution.

Zuress v. Donley, No. 08-17559, involved a Title VII action claiming sex discrimination by the Air Force.  The Ninth Circuit affirmed the dismissal of the action, holding that the intramilitary immunity doctrine, as embraced by the Ninth Circuit in Mier v. Owens, 57 F.3d 747 (9th Cir. 1995), was not superseded by the National Defense Authorization Act for Fiscal Year 1998.

Shames v. Cal. Travel & Tourism Comm., No. 08-56750, involved an action against the California Travel and Tourism Commission ("CTTC") alleging that the CTTC engaged in antitrust price-fixing in violation of the Sherman Act, and improper meeting practices in violation of California's Bagley-Keene Open Meeting Act.  The court affirmed the dismissal of the action, holding that the CTTC was shielded from antitrust liability under the "state action immunity" doctrine.

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Pollard v. GEO Group, Inc., No. 07-16112, involved an action alleging Eighth Amendment claims against employees of a private corporation operating a federal prison under contract with the Bureau of Prisons.  The court of appeals reversed the dismissal of the action, holding that 1) the company's employees acted "under color of federal law" for purposes of Bivens liability; and 2) a faithful application of Wilkie's two-part test counseled that state tort remedies alone were insufficient to displace Bivens and there were no "special factors counselling hesitation" in allowing plaintiff's suit to proceed.

In Mickey v. Ayers, No. 07-99006, a capital habeas matter, the court of appeals affirmed the denial of the petition, on the grounds that 1) the Japanese prison conditions did not overcome petitioner's will and render his confession involuntary; 2) there was nothing in the record to suggest any additional physical or psychological coercion accompanied petitioner's admissions in Hawaii; 3) any alleged deficiencies in counsel's representation were justified by the reasonable strategic decision to investigate a defense consistent with petitioner's extrajudicial statements; and 4) because certain harmful sexual deviancy evidence would have been admitted in the penalty phase had counsel taken petitioner's proposed path and since the jury must have relied heavily on the gruesome facts of the crime despite the "substantial" mitigation case, the court's "confidence in the outcome" was not undermined by petitioner's counsel's alleged deficiencies.

Lahiri v. Universal Music & Video Dist. Corp., No. 09-55111, involved plaintiff's counsel's appeal from an order by the district court sanctioning him for his five-year bad faith pursuit of a frivolous copyright infringement claim.  The Ninth Circuit affirmed, holding that 1) had counsel, a self-described experienced copyright lawyer, made even a cursory investigation into the circumstances of plaintiff's 21-year old composition, he would have known plaintiff had no copyright interest in music he composed for hire; 2) counsel's repeated misrepresentations of Indian copyright law clearly evidenced his recklessness and bad faith; and 3) the district court carefully excluded inadequately documented costs, as well as taxable costs not included in defendants' bill of costs.

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Arizona Cattle Growers' Assn. v. Salazar, No. 08-15810, involved a challenge to the United States Fish and Wildlife Service's (FWS) designation of critical habitat for the Mexican Spotted Owl.  The court of appeals affirmed summary judgment for defendants, on the grounds that 1) the FWS permissibly interpreted the word "occupied" in the Endangered Species Act to include areas where the owl was likely to be present and, applying this definition, the FWS designated only "occupied" areas; 2) the FWS did not arbitrarily and capriciously treat unoccupied areas as occupied; and 3) even if the FWS listed the species concurrently with designating critical habitat, listing the species is a necessary antecedent to designating habitat.

Addington v. US Airline Pilots Assn., No. 09-16564, concerned an action claiming that a union breached its duty of fair representation by negotiating a contract that would impermissibly favor one group of represented pilots at the expense of another.  The court of appeals reversed judgment for plaintiff, on the ground that this case presented contingencies that could prevent the effectuation of the union's proposal and the accompanying injury, and thus the matter was not ripe for adjudication.

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Barnes-Wallace v. San Diego, No. 04-55732, concerned an action claiming that the Boy Scouts' lease of public lands for its headquarters, accompanied by the Boy Scouts' prohibitions on atheism and homosexuality, was unconstitutional.  The Ninth Circuit certified the following questions to the California Supreme Court:  1) Do the leases interfere with the free exercise and enjoyment of religion by granting preference for a religious organization in violation of the No Preference Clause in article I, section 4 of the California Constitution?; 2) Are the leases "aid" for purposes of the No Aid Clause of article XVI, section 5 of the California Constitution? and 3) If the leases are aid, are they benefiting a "creed" or "sectarian purpose" in violation of the No Aid Clause?

Montz v. Pilgrim Films & Television, Inc., No. 08-56954, involved an action for copyright infringement and related state claims based on defendants' use of plaintiffs' materials in developing a television show involving a team of "paranormal investigators" called "Ghost Hunters."  The Ninth Circuit affirmed the dismissal of plaintiffs' state-law claims, holding that 1) the Copyright Act preempted plaintiffs' implied contract claim because the rights asserted by the plaintiffs under the implied contract were equivalent to the rights of copyright owners under 17 U.S.C. section 106 -- namely, the exclusive rights to use and to authorize use of their work; and 2) defendants' alleged breach of confidence stemmed from an alleged violation of the very rights contained in section 106.

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US v. APW N. Am., No. 08-55996, involved an appeal from the denial of a motion to intervene in an action filed by the EPA under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).  The court of appeals reversed, holding that, under CERCLA, a non-settling potentially responsible party (PRP) may intervene in litigation to oppose a consent decree incorporating a settlement that, if approved, would bar contribution from the settling PRP.

Mendoza v. Holder, No. 08-71007, concerned a petition for review of the BIA's decision reversing an order of an Immigration Judge (IJ) and dismissing petitioner's appeal of the IJ's subsequent order of removal.  The court of appeals denied the petition, on the grounds that 1) res judicata did not bar the government from using petitioner's 2003 shoplifting conviction because it did not bring it up in its first removal proceedings; and 2) the vacatur of petitioner's conviction for shoplifting in Arizona was for rehabilitative purposes and therefore, the government could use this conviction in his subsequent removal proceeding.

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Butte Env'tl. Council v. US Army Corp of Eng'rs., No. 09-15363, concerned a challenge to decisions of two federal agencies approving the construction of a business park on protected wetlands in California.  The court of appeals affirmed summary judgment for defendants, on the grounds that 1) the Army Corps of Engineers applied the proper presumption under 40 C.F.R. section 230.10(a)(3), and found that it had been rebutted under the appropriate standard; 2) the Corps' consideration of the project's stated purpose was not unreasonable; 3) while it was true that the Corps made compensatory mitigation a condition of the permit, there was no indication that such mitigation was meant as an obligation in place of the city's responsibility to adopt the least environmentally damaging practicable alternative, as opposed to an obligation in addition to it; and 4) the Fish and Wildlife Service's finding of no "adverse modification" was neither arbitrary nor capricious.

In re: Jordan, No. 09-72379, concerned a petition for a writ of mandamus ordering the district court to direct the government to return motorcycles seized in connection with a criminal investigation.  The court of appeals denied the petition, on the ground that the district court did not clearly err in determining that, when the government has failed to provide notice of a seizure in accordance with 18 U.S.C. section 983(a)(1)(A), section 983(a)(1)(F) does not compel the government to return seized property before initiating a judicial forfeiture proceeding.

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