Brian J. Bergman’s Daily Journal Article: Decision could change contamination cleanup litigation

October 14, 2014

Wendy McGuire Coats

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We are pleased to provide a link to Brian J. Bergman’s September 30, 2014 Daily Journal article entitled: Decision could change contamination cleanup litigation . Click here: Bergman (DJ-9.30.14)

Brian J. Bergman

Brian J. Bergman

 

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  • Marbut Has Standing And Opens the Door for Future Litigants but the Montana Firearms Freedom Act (MFFA) Fails to Escape Federal Preemption

    August 24,2013

    On Friday August 23, 2013, the Ninth Circuit issued its opinion in Montana Shooting Sports Association; Second Amendment Foundation; Gary Marbut  v. Holder, (Case No. 10-36094) (Aug. 23, 2013) (Judges A. Wallace Tashima, Richard R. Clifton, and Carlos T. Bea). When enacting the Montana Firearms Freedom Act, the State of Montana attempted to limit the federal government’s power to regulate firearms. It expressly states that  a firearm or ammunition “manufactured . . . in Montana and that remains within the borders of Montana is not subject to federal law or federal regulation.”After Montana passed the MFFA, the federal government (Federal Bureau of Alcohol, Tobacco, Firearms & Explosives) sent an “Open Letter to All Montana Federal Firearm Licenses” putting them on notice that the MFFA conflicts with federal law. Plaintiff Gary Marbut (more here & here) wants to manufacture firearms under the MFFA and not comply with applicable federal laws.  Marbut sent at letter to the ATF asking whether he could manufacture his .22 caliber rifle, the “Montana Buckaroo” under the MFFA and “without complying with federal statutes” and be “without fear of criminal prosecution.” In a nutshell, the ATF said no. So Marbut sued.

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    Wendy McGuire Coats

  • Wendy McGuire Coats Named 2013 Rising Star in Appellate Law by Super Lawyers – Northern California

    July 25,2013

    photoMcGuire Coats LLP & the Ninth are pleased to announce that Wendy McGuire Coats has been listed again as a 2013 Rising Star in Appellate Law by Super Lawyers -Northern California. Wendy McGuire Coats dedicates her practice solely to appellate litigation. She represents a wide range of clients and has appeared as attorney of record in over 20 appellate cases since opening McGuire Coats LLP. Among Ms. Coats’ favorable outcomes is the recent Court of Appeals Second Appellate District published decision Spriesterbach v. Holland (2013) 215 Cal.App.4th 255, which held that the giving of a negligence per se instruction based on California Vehicle Code sections 21650 and 21650.1 to require bicyclists to travel with the flow of adjacent traffic when riding on the sidewalk was error. This decision fundamentally changed future litigation involving collisions where a cyclist riding on the sidewalk is hit by a vehicle and negated a 1993 California Attorney General Opinion that had been incorrectly relied upon for decades. Before the Court of Appeals First Appellate District, in In re F.F. 2013 Cal. App. Unpub. LEXIS 2324 (Cal. App. 1st Dist. Mar. 28, 2013), Ms. Coats obtained a reversal of the dispositional order with the court holding that the interrogation of a 12-year old boy by police in his middle school principal’s office violated Miranda. Also before the First District in Simmons v. Feng, Case No. A135024, Ms. Coats successfully represented respondent with the appeal dismissed and the trial court’s order enforcing the settlement agreement in tact. Ms. Coats is a member of publications committee for the American Bar Association’s Council of Appellate Lawyers (CAL), which is the only national bench-bar organization devoted to issues of appellate courts and practice. She regularly contributes to CAL’s tri-annual publication, Appellate Issues. Her next article, A “How To” When Preparing for Multiple Oral Arguments, is forthcoming in August 2013. Locally, Ms. Coats is a member of the Contra Costa County Bar Association’s Appellate section and treasurer of the Women’s Section.

    Wendy McGuire Coats

  • Be Aware: How Identify Theft Led To The Wrongful Arrest for Child Porn

    September 2,2011

    Chism v. Washington (10-35085) (Aug. 25, 2011, full opinion available here) Why should you read this case?  If you have ever heard a friend of a friend say, "OMG, did you hear . . ." and assumed that someone was guilty based on the "where there's smoke there's fire" theory, you should read this case.  And if you've ever thought "the guy must be guilty or the police wouldn't have gone through all the trouble," you should read this case.   It happened to Todd & Nicole Chism.  If it could happen to them, it could happen to you, and as Todd Chism stated, "it could happen to any of us."  Here's a link of Todd Chism speaking in 2008:  Todd Chism Speaks Out Watch the video first, then read on.  Todd & Nicole Chism are married.  They're parents.  Before this, Todd worked as a firefighter with the Spokane Fire Department in Washington.  The Chisms claimed that their civil rights were violated when Todd was investigated and arrested for child pornography.  What you need to know right off the bat is that: "No child pornography was found, and criminal charges were never filed against Todd."

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    Wendy McGuire Coats

  • To the DMV.org or not to DMV.org? That is the Question

    August 3,2011

    TrafficSchool.com, Inc. v. Edriver Inc. (No. 08-56588, July 28, 2011) (full opinion available here) Many of us have searched the web to find our local Department of Motor Vehicles (or “DMV”) in response to a traffic violation, registering a car, or renewing a driver’s license.  If you typed DMV into your search engine, you may have come across the website DMV.org with information about all your DMV related questions.  You may have believed that this was an official state DMV site, and according to DMV.org’s competitors, you wouldn’t have been alone in thinking DMV.org was affiliated somehow with your state’s DMV.   Plaintiffs, who are direct competitors of the defendants who own DMV.org, claimed that the defendants violated federal and state unfair competition and false advertising laws by intentionally marketing themselves as an official state DMV website or at least affiliated or endorsed by a state DMV.  In reality, DMV.org is a business that assists consumers with essentially anything your local DMV can help you with and beyond, including obtaining driving records and car insurance to locating DUI/DWI attorneys.  Under this business model, the defendants profit from the number of visits to the site and from sales of sponsored links and referrals to vendors.  Essentially, the more visitors, the more money they generate. Defendants contend on appeal that the plaintiffs lacked standing to bring their claims.  In analyzing the plaintiffs’ state law unfair competition claims, the district court found that the plaintiffs did not suffer an injury in fact or lose any money or property resulting from defendants’ actions.  However, the district court failed to analyze standing under Article III, which has a broader requirement for an “injury” than the state law claims and is required to establish the jurisdiction of a federal court. The only aspect of the three prong Article III standing test before the Ninth Circuit was whether there was an injury in fact.  In a false advertising claim to establish Article III injury, the plaintiff must show that some consumers purchased the defendant’s products due to defendant’s false advertisements, and otherwise, would have purchased the plaintiff’s products.  The plaintiff, in essence, needs to provide evidence of actual and probable market behavior; that is showing through a chain of inferences that defendant’s deceptive advertising could harm plaintiff’s market shares.  As the plaintiffs did in this case, ample evidence of direct competition is key.  Plaintiffs also showed that an endorsement that the site was “recommended by the DMV” highly affected consumers’ decisions.  In turn, the defendants will gain a larger percentage of the referral market because consumers are misled into believing that DMV.org’s referrals are actually recommended by their state’s DMV as opposed to a privately owned company’s recommendation.  This “injury” was sufficient to establish Article III standing. Moreover, the Ninth Circuit found that the plaintiffs had standing under the Lanham Act because a false advertising plaintiff only needs to show that it is likely to be injured.  Under the Lanham Act standing test established in another Ninth Circuit decision,[1] a plaintiff must show that there was a commercial injury based upon a misrepresentation about a product, and that the injury harmed the plaintiff’s ability to compete with the defendant. A commercial injury generally is presumed when the parties are direct competitors and where the consumers can be misled by the defendant’s misrepresentations.  The parties here are competitors in the traffic school and driver’s education referral markets in numerous states.  While plaintiffs weren’t able to prove an identifiable injury to themselves, the Ninth Court held that this doesn’t preclude a commercial injury.  The Court explained that a plaintiff doesn’t need to show an actual injury, but instead that it is likely to be injured to show commercial injury.  Thus, the plaintiff doesn’t need to establish, for example, that the advertisements caused loss of sales.  The reasoning is that the Lanham Act was established as a consumer protection statute; as such, an onerous level of injury would defeat the purpose of protecting the public.  The second half of the injury test revolves around the question of whether DMV.org misled consumers into believing DMV.org was affiliated with a government agency.  The evidence established that consumers, in fact, were misled.  Not only did this affect actual consumers, but law enforcement officials and actual DMV employees also were believed that DMV.org was their state’s official DMV site.  Additionally, two California cities, a private law firm in Texas, and numerous newspapers mistakenly linked their website to DMV.org instead of a state DMV site.  This is probably in part due to the fact that the DMV.org website copied slogans and state symbols of official DMVs on its website.  It also linked to webpages to help in DMV related transactions, like applying for a license.  Further, in California, when you did an internet search, the website for DMV.org popped up with “ca.” and “california.” prefixes in the domain names so as to suggest an affiliation with the State of California.  In addition, plaintiffs’ survey, although flawed, showed that a majority of California residences searching for traffic schools online thought that DMV.org’s site was the California DMV’s and that a search engine listing for DMV.org was endorsed or sponsored by the California DMV.  While DMV.org had a disclaimer disavowing any connection with any state DMV, the disclaimer was in small font at the bottom of each page, which consumers could easily miss.  The Ninth Circuit also agreed that the evidence substantiated plaintiffs’ false advertising claims.  For an internet false advertising claim, a plaintiff must show that (1) a statement made in an advertisement or promotion is false or misleading, (2) that it deceives or is likely to deceive a substantial segment of the target audience, (3) whose purchasing decisions will be influenced, and (4) that the plaintiff has been or likely to be injured by the false advertisement.  The DMV.org URL, defendants’ search engine marketing, and the DMV.org webpage design also likely – and in fact did – confuse consumers.  The evidence established that DMV.org actually deceived a substantial portion of its consumers, and that consumers were swayed into making purchasing decisions based on the idea that the products were “recommended by the DMV.”  Plaintiffs, as a result, suffered when consumers visited DMV.org instead of plaintiffs’ sites.  As way of remedy, the District Court ordered DMV.org to place a splash screen on its site for each visitor.  The splash screen stated, in all caps, that the site was privately owned and not owned or operated by any state agency.  The visitor then had to click continue to view any of the website’s content.  Defendants argued this remedy was overbroad and violated the First Amendment.  While the Ninth Circuit did not find that the court’s injunction was overbroad, it did find overreach into protected speech.  In general, permanent injunctions are allowed when enjoining false or misleading advertising.  The DMV.org site, however, not only contained deceptive statements, it also contained informational content that is constitutionally protected by the First Amendment.  The Ninth Circuit found that the district court should have formed the injunction so it did not unnecessarily burden protected speech.  The splash screen deters some potential visitors and it interferes with search engines; thus, making it more difficult for consumers to find the protected material on the site.  On remand, the district court had to reconsider the duration of the splash screen in the face of any changes in the site’s content and/or marketing as well as remedying any deception from the site’s past practices.  If the district court requires the continued use of the splash screen, it has to justify the burden on the protected content and what defendants can do to satisfy removal of the splash screen. The splash screen is still up and running on DMV.org, so for the time being, if visiting this website for vehicle related questions, you’ll know that it isn’t the Real McCoy. 

     
    [1] See Jack Russell Terrier Network of Northern California v. American Kennel Club, Inc., 407 F. 3d 1027, 1037 (9th Cir. 2005). 
    TrafficSchool.com, Inc. v. Edriver Inc. (No. 08-56588, July 28, 2011) (full opinion available here)

    Sanaz Asgharzadeh

  • From the Marketplace to the Courtroom: Where a Foreign Corporation Extends Into the American Market, the American Court is Extending its Reach Under Personal Jurisdiction

    July 27,2011

    Bauman v. DaimlerChrysler (No. 07-15386, May 18, 2011) (full opinion available here). Twenty-two Argentinian residents filed suit against DaimlerChrysler Aktiengesellschaft (“DCAG”) contending that a wholly-owned subsidiary of DCAG, Mercedes Benz Argentina (“MBA”), collaborated with the Argentinian military and police forces to punish plant workers perceived as union agitators.  As a result, the Argentinian security forces kidnapped, detained, tortured, and/or killed these workers during a dark period in Argentina’s history stemming from 1976 to 1983 known as the “Dirty War.”  The Plaintiffs further contend that MBA knew that its collaboration with Argentinian security forces would result in these human rights abuses, and that MBA was pleased with the results because it ended a strike at the plant, thus, restoring maximum production.  The Plaintiffs are all Argentinian residents who are either former plant workers who allege that they were kidnapped, detained, and/or tortured, or relatives of former workers who have “disappeared” and are assumed killed.  While the cause of action did not occur in California, or the United States, and the Plaintiffs are not residents of the United States, they were able to bring their claims in federal court in the Northern District of California under the Alien Tort Statue (“ATS”), 28 USC § 1350 and the Torture Victims Protection Act of 1991 (“TVPA”), 106 Stat. 73, which allows suits by foreign residents in federal court.  The number of ATS and TVPA claims brought against multinational corporations (“MNCs”) alleging human rights abuses in another region of the world have steadily increased over the years.  For those MNCs who operate in the United States as well as abroad, these companies need to understand that federal courts are an available forum for plaintiffs alleging human rights abuses abroad. 

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    Sanaz Asgharzadeh

  • Lujan-Armendariz Up In Smoke: Aliens No Longer to Benefit from FFOA-Like Treatment of State Drug Convictions

    July 14,2011

    En Banc Decision: Nunez-Reyes v. Holder (05-74350) (full opinion available here) overruling the Ninth Circuit's equal protection holding in Lujan-Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000). Many of us suspected this case was coming, but -- even so -- it still knocks the wind out of an immigration attorney.  Background.  Controlled substance convictions (simple possession, under the influence, possession for sale, etc.) are by and large a disaster in immigration.  They make you inadmissible (and ineligible for a waiver of that inadmissibility except for one conviction for a very small amount of marijuana), they make you deportable, and they make you an aggravated felon (when related to sale).  In other words, they're usually a life-ruiner.  But "America is a second-chance nation."  Judge PregersonTo that end, the federal government enacted the Federal First Offender Act (FFOA), which allows someone convicted of a first federal controlled substance crime to eliminate that conviction for all purposes as long as they successfully complete a rehabilitation program.  Even though expungement-like post-conviction activity will not usually eliminate a conviction for immigration purposes, an FFOA expungement is actually honored.  So then come FFOA-like state rehabilitation expungements.  Over ten years ago, California voters opted to extend FFOA-like treatment to state controlled substance convictions as well, and many other states did the same.  While the requirements for and implementation of these programs vary slightly from the FFOA, they are designed to achieve the same end: give people a second chance when it comes to minor drug possession charges.  The question remained whether immigration would honor state FFOA-like expungement statutes as well.  In 2000, the Ninth Circuit gave us an answer: yes.  The Court held in Lujan-Armendariz v. INS that equal protection mandated state expungements for first offenders be honored for immigration purposes as well.  We, as immigration lawyers, like (well, liked...ugh) Lujan.  For our clients who got caught in 2001 with an extremely small amount of marijuana (what is now commonly referred to as a "pot ticket"), successfully completed Prop 36 diversion, and have never been involved in any other criminal activity, Lujan let them move on.  Unfortunately, no one else on the planet agreed.  The Board of Immigration Appeals and every other circuit who has decided this issue all held that a state expungement cannot eliminate a first-offense drug possession charge for immigration.  The Ninth Circuit has now reversed itself and overruled Lujan.  The primary focus was whether there was a rational basis for Congress not including state rehabilitation programs in the statute, of which they found at least two (each of which had been articulated by other circuits).  Now, state rehabilitative expungements will not eliminate a conviction for immigration.  Rats. The good news is that this will only apply to people who accept Prop 36 treatment after today.  The Ninth Circuit did hold that Lujan had been relied on by so many people, that it would be wrong to apply the new rule anything but prospectively.  Which -- incidentally -- saved my partner and I a day of pulling files to see who used to be eligible for relief from deportation.

    Emily K. Allen

  • Ninth Circuit Limits Liablity for Oil Spills But Highlights The Conflict Over Liability for the Passivle Migration of Contamination

    July 8,2011

    Redevelopment Agency of the City of Stockton v. BNSF Railway Co. (09-16585, 09-16739) (full opinion available here) In BNSF, property in Stockton California was contaminated over the course of 20 years when multiple petroleum spills at a nearby industrial site migrated onto the property at issue via an underground french drain pipe installed underneath a railroad as part of the railroads effort to keep water away from the tracks Unlike other pipe systems, a french drain utilizes buried perforated pipe (i.e. holes in the pipe) to help manage rain water.  Since the pipe is perforated, water – and in this case petroleum runoff – can enter and exit the pipe along the entire length of the pipe.  The Stockton Redevelopment Agency (“Agency”) spent several million dollars cleaning up the property at issue.  In 2005, the Agency sued several Railroad companies for the costs of cleanup based on the Railroads operational control over the french drain during the period of time when the contamination spread onto the property.  The Agency sued the Railroads in State Court under theories of nuisance and under the State Redevelopment Act, Cal. Health & Safety Code § 33459.  The Railroads removed the case to the Eastern District of California under Diversity jurisdiction.  Though not discussed in the case, it is interesting that the Agency did not attempt to bring Federal causes of action against the Railroads under the Federal Clean Water Act (33 USC 1321 et seq.) or the  Federal Oil Pollution Act (33 USC 2701 et seq), both of which provide for strict liability against parties that are “responsible” for oil spills.  The District court ruled that the Railroads were liable to the Agency for eight-hundred thousand ($800,000) dollars in cleanup costs.   On appeal, the main issue for the 9th circuit was whether the Railroad companies, as mere operators of the french drain, should be held responsible for the spread of the petroleum contamination through the french drain. The 9th Circuit held that the Railroads’ operation of a french drain designed to transmit storm water did not impose liability on the Railroads when unforeseen contamination entered and was spread by the french drain.  “Because the Railroads’ conduct with regard to the specific nuisance condition – the contamination – was not active, affirmative, or knowing, the Railroads simply did not create or assist in the creation of the nuisance on the Property.  They did not spill the petroleum or otherwise release it into the environment.  They did not affirmatively direct its flow or knowingly permit it to mitigate into the french drain and onto the Property.  While the Railroads may have acted affirmatively with regard to the installation of the French drain, that conduct was wholly unrelated to the contamination…The drainage improvements on the site were designed to move water, not contaminants.”  In short, the 9th Circuit “decline[d] to hold that an otherwise innocent party who builds or installs a conduit or structure for an unrelated purpose which happens to affect the distribution of contamination released by someone else is nonetheless liable for creating or assisting in the creation of a nuisance.”  This case is interesting in that it seems to highlight an internal conflict in the 9th Circuit over how to deal with the issue of liability for passive migration.  

    • When reviewing claims under the Federal  Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), the 9th Circuit has held that there is no liability for passive migration. (Carson Harbor Village Ltd. V. Unocal Corp. (9th Cir. 2001) 270 F.3d 863).
    • When reviewing claims under the Federal Clean Water Act (“CWA”), the 9th Circuit has held that a party can be held responsible for the passive migration of contamination.  (NRDC v. County of Los Angeles (2011) 636 F.3d 1235)  As the Court stated in the NRDC decision, the CWA does not distinguish between those who add pollutants to water and those who simply convey pollutants in water - "the [CWA] is indifferent to the originator of water pollution...[The CWA] bans the discharge of any pollutant by any person regardless of whether that person was the root cause or merely the current superintendent of the discharge."
    • And most recently, in the above discussed BNSF decision, the 9th circuit refused to hold Railroads liable for passive migration for contamination under state nuisance claims.
     The differences in these outcomes can be explained by the differences in the statutory schemes at issue.  Unlike the Carson Harbor case, which dealt with CERCLA claims (no permit at issue), or the BNSF case, which focused on nuisance claims (no permit at issue), the NRDC decision focused on violations of permit requirements under the CWA.  Therefore, the likely conclusion that can be drawn from these cases is that the 9th Circuit will not hold a party liable for damages for the passive migration of contamination if no permit is at issue, but if a party does have a permit requiring that discharges be limited to certain amounts, the court will not care if a party did not actually generate the contamination, but merely transmitted it.  A party will be found liable for violations of permit standards even if the discharges were only attributable to the party because of passive migration from someone else’s discharge.

    Brian J. Bergman

  • SCOTUS Affirms Ninth Circuit Ruling on Violence and Video Games

    June 28,2011

    Brown v. Entertainment Merchants Association (available here)

    In 2005, California passed a law regulating "violent" video games, requiring special packaging and forbidding their sale to minors under 18.  A group of video game and software industry representatives challenged the law, claiming it violated free speech protections.  The Northern District of California blocked its enforcement, and on appeal Judges Kozinski, Thomas and Callahan upheld the injunction (previous discussion here).  Applying strict scrutiny, the Supreme Court ruled that the law violates the First Amendment and affirmed the decision of the Ninth Circuit.

    Justice Scalia writes the majority opinion, joined by Justices Kennedy, Ginsburg, Sotomayor and Kagan.  The Justices are forced to deal with the collision of new technologies with centuries-old free speech precedent, and their opinion is largely on point to the earlier Ninth Circuit decision.

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    Stevie E. Leahy

  • Being “Caught in the Crossfire” Is Not Enough: the Ninth Circuit Holds No Unfettered Discretion to Discipline Public Employees Based On Speech

    In Nichols v. Dancer, No. 10-15359, (opinion available here) the Ninth Circuit clarified that there must be evidence of some actual disruption or a reasonable anticipation of disruption in the workplace to justify a public employer’s demotion or other discipline because an employee’s speech. Kathleen Nichols worked for the Washoe County School District (the “District”) as an assistant to the District’s General Counsel.  In 2003, the General Counsel was suspended, after which Nichols was temporarily transferred to the Human Resources department.  The District scheduled a meeting to decide the fate of the General Counsel.  The day before that meeting, the District told Nichols that regardless  of the outcome of the meeting, she would be returned to her position in the General Counsel’s office.  Nichols attended the meeting, and she sat next to the General Counsel.  At the meeting, the District announced that the General Counsel would be terminated.  The next day, the District told Nichols that she would not be transferred back to the General Counsel’s office because she had attended the meeting and they questioned her loyalty.[1]  The District offered her two choices:  remain in Human Resources where she would not be eligible for salary increases, or take early retirement.  Nichols chose to retire, but she later filed a lawsuit under 42 U.S.C. Section 1983 alleging that she was demoted in retaliation for exercising her First Amendment rights when she attended the meeting and sat next to the General Counsel.  The District of Nevada granted the District’s motion for summary judgment, concluding that the District’s efficiency interests outweighed Nichols’ free association interests.  In its decision, the Ninth Circuit was careful to note that not all speech or expression by a public employee warrants protection.  Rather, there is a balancing test, which requires weighing the interest of a citizen to comment on matters of public concern[2] and the interest of a public employer to promote efficient public services.  In fact, the controlling authority (Pickering) suggests that courts should be deferential to employers when utilizing this balancing test.  Generally, the employer’s actions are justified if the employee’s conduct: (1) impairs discipline by supervisors; (2) impairs harmony among co-workers; (3) has a detrimental impact on close working relationships for which loyalty and confidence are necessary; (4) impedes the performance of the employee’s duties; or (5) interferes with the regular operation of the enterprise.   

    (read more)

    Jamie C. Chanin

  • Get it in the Record & Context Matters: Arson, Public Land, Destruction, and Appropriate Proportional Sentencing

    June 17,2011

    Judicial opinions - dry, boring, lacking in spunk, or "attention getting" language? Not always.  In USA v. Clyde Dewayne Holmes, Jr. (09-30211) (full opinion available here), Judges Kozinski (majority) and Kleinfeld (concurrence) remind us that dense statutes, sentencing guidelines, and legal reasoning can still sing with well crafted prose.  The opinions also contain two" forest for the trees" practice/argument reminders:  (1) Get your facts in the record and (2) Keep your facts in context. Holmes was convicted of setting public lands on fire (18 U.S.C. § 1855).  This is pretty much a simple arson case with thousands of acres of sage brush and vegetation burned to the ground.  At his sentencing, Holmes argued that his offense “did not include the destruction or attempted destruction of a place of public use,” which carries a base offense level of 24. See U.S.S.G. § 2K1.4(a)(1).   His theory largely rested on the idea that the land was only temporarily "unusable" but not destroyed. Question before the Ninth Circuit: What does it mean to destroy land? Alternatively, as Judge Kozinski further explains the question: The Guidelines don't explain what it means to destroy something, but we have a pretty good idea from common usage.  Drop a Ming vase, and it’s kaput. Spill some milk on your computer, and you’ll have something to cry over.  And Rover will surely destroy your Jimmy Choos if you give him half a chance.  But it’s hard to think of examples where land is destroyed. A large explosion might dissipate some of the dirt and leave a crater; dumping toxic waste might render land uninhabitable for a long while.  Yet nothing is ever truly destroyed; it merely changes form. E = mc2 and all that.  The question is, when is the change in form sufficient for us to refer to it as destruction? This is followed by some core principles regarding land destruction. (1)  Damage need not be total or irreversible. (2)  Every possible use of the object need not be eliminated.  Cf. United States v. Causby, 328 U.S. 256, 258-59, 262 (1946) (government’s destruction of ability to use land to raise chickens held to be a taking, even though “enjoyment and use of the land [was] not completely destroyed”) (3)  Land is destroyed when its uses (aesthetic, environmental, recreational, economic or cultural) are eliminated for a significant period of time (i.e."more than a year").  (4)  Land is not just the earth's crust, but also includes the vegetation, water, rocks, and fossils. Sounds like Holmes isn't going to make it on this one, but keep reading.  First, the majority noted that the district court correctly interpreted the sentencing guideline, section 2K1.4(a)(1),  to require that the land suffer more than short term damage but did need to be obliterated.  Said the district court below: “[This is] not the situation where there’s a wildfire and then the next year everything is back just the way it was. It sometimes takes decades for the land to restore itself and sometimes it never happens because of cheatgrass infestation which usually follows right on the heels of a wildfire. . . ."I deal with these kinds of cases involving impact on the environment all the time.  There’s a macrobiotic crust that is devastated by the wildfire. There’s just—there’s a lot implicate [sic]—that you can’t see. The grass may be growing but it’s not the same.” So what's the problem? The district court may be right, but there was no evidence in the record that the fires caused damage or the macrobiotic crust or any cheatgrass infestation.  Apparently, the government some evidence about loss of wildlife habitat, shooting areas, and restitution figures, but the district court did not mention or appear to rely on that evidence. Writes the court: "This isn’t the sort of common knowledge district judges may rely on in sending someone to prison.  Rather, the extent of damage to BLM land is a factual determination as to which there needs to be evidence, quite possibly from experts. The government presented no evidence to support the district court’s findings, and Holmes was not given the opportunity to present evidence on how his fires affected the BLM land." Holding: Sentence vacated and remanded for resentencing. Judge Kleinfeld concurred with the result, but differed from the majority on the approach that should be taken by the district court in resentencing.   Judge Kleinfeld summarized: Holmes set seven different fires over a period of around six weeks. All were on unoccupied land, and fortunately all were put out without injury to anyone . . . Several factors added to Holmes’s blameworthiness. He was a volunteer firefighter, and although no special expertise contributed to or was needed to set the fires, people expect firefighters to fight fires, not start them. And he lied when he was caught, sending the authorities down several paths that might have led to charges against innocent people. He gave truck descriptions, license plate numbers, and other identifiers that could have landed someone innocent in federal prison instead of himself. Fortunately, he literally left tracks, tire tracks, pointing to him, reported the fires anonymously from locations establishing that he was probably the person who called 911, his truck was seen by a BLM officer leaving the area where the fires had been reported only thirty seconds before a new fire was discovered, and he set the fires in locations of the fires all within a six mile circle and at times suggesting that he set them all in the afternoon after he got off work and before he got home for dinner. Judge Kleinfeld noted that the “Arson; Property Damage by Use of Explosives” Sentencing Guideline is quite broad:  It covers multiple statutes that sweep Timothy McVeigh blowing up the Oklahoma City Federal Building, Ramzi Yousef blowing up the World Trade Center in 1993, Ahmed Ressam attempting to blow up Los Angeles International Airport, and Clyde Holmes Jr. burning brush on government land all within the same guideline.  In short, Judge Kleinfeld concluded that Holmes's arson "was not in the same class as blowing up the terminal at LAX, or blowing up a truck in the basement of the World Trade Center in hopes of accomplishing what Al Qaeda subsequently succeeded at in 2001, or blowing up the Federal Building in Oklahoma City. That is the class designated by the guideline for the 24 level." Ejusdem Generis & Noscitur A Sociis & Appropriate Proportional Sentencing Writes Judge Kleinfeld:  “Though lawyers do not learn as much Latin as they used to, there is nothing esoteric about listing a series of examples and considering whether something else is like things in the list.”  Ejusdem generis, literally “things of the same kind,” means merely that we determine the meaning of a general term by reference to the others in the list.  Noscitur a sociis, literally, “it is known from its associates,” means merely that we determine the meaning of a general term by reference to those with which it is associated.  . . .  People use the principles of ejusdem generis and noscitur a sociis all the time, to understand ordinary speech, without realizing that they are doing so, just as they do not realize that they are speaking prose. When the waiter says “would you like a cocktail? wine? anything else?,” we know he is asking for a drink order, not a dessert order, and not whether you would like a new car, even though a new car would fall within the “anything else” category were the phrase considered according to dictionary meaning without regard to context. And when the grade school boy tells his mother “we have to bring a ruler, a pencil, paper, and other stuff to school tomorrow,” we know he is talking about school supplies, not his pet puppy. Watching an old movie recently, I saw the words “roll film” on the screen, and quickly realized they meant “start the movie,” not “120 film for cameras.” The only way to tell that “roll” was a verb, not an adjective, was context.  Context requires that we consider “place of public use” in the context of “a dwelling, an airport, an aircraft, a mass transportation facility, a mass transportation vehicle, a maritime facility, a vessel, or a vessel’s cargo, a public transportation system, a state or government facility, [and] an infrastructure facility,” just as we consider the waiter’s “anything else” in the context of drink orders. The general catchall phrase means something of the same sort as the specific phrases. And that is so even though “place of public use” means, construed in isolation, anyplace at all where the public is not excluded, just as “anything else” means anything at all.   . . .  The guideline under which Holmes was sentenced does not address environmental crimes, so it does not much matter for the public arson guideline whether the brush will grow back in a year, or whether the whistle pigs will return promptly, or whether the ground covering after the fire will differ in some respect. No doubt things will be different, just as one can never set foot in the same river twice, and land constantly changes from natural occurrences including lightening-caused fires.   . . .  Though the majority opinion and the district court have discussed this case as though it were charged and sentenced as an environmental crime, it was not, and none of the environmental crime statutes or guidelines were used. As for the risk that a firefighter might be injured or killed fightingHolmes’s fires, the lower level 20 arson and bombing guideline applies where the fire “created a substantial risk of death or bodily injury."   . . .  Blowing up a government building, an airport, or a bus or train would be a 24. Under the majority’s interpretation, so would setting off a cherry bomb in a BLM trailhead suggestion box.  That is not a sensible reading of the statute.    

    Wendy McGuire Coats

  • Book Review: Ross Guberman’s “Point Made. How to Write Like the Nation’s Top Advocates”

    April 18,2011

     I started flipping through Ross Guberman's Point Made. How to Write Like the Nation's Top Advocates  in mid-February.  I was in the process of finalizing an appellate brief and needed some time away from the brief so that I could get a fresh perspective before sending it out the door.  I don't know Mr. Guberman.  I've never taken one of his seminars.  I just have the book. I have tons of books on writing (all time fave: Anne Lamott's bird by bird, especially the 6-page chapter Shitty First Drafts).  I've taken tons of writing workshops and seminars.  I write for a living.  I wasn't sure that another book was going to add much to the do's and don'ts and "try to avoid" and "be sure to remember" and "for heaven's sake run like hell from" compilation of rules and reminders already swarming around me while I'm trying to persuasively uncomplicate the complicated case law.  

    (read more)

    Wendy McGuire Coats

  • “the Ninth” Has a New Home: www.theninthcircuit.com

    April 5,2011

    The Ninth celebrated its first birthday with an upgrade to its own domain name: www.theninthcircuit.com

    Wendy McGuire Coats

  • McGuire Coats LLP and “the Ninth” Turn One

    March 25,2011

    A year ago, on Thursday March 25, 2010, Daniel L. Coats and Wendy McGuire Coats officially launched McGuire Coats LLP.  It's been a great first year.  Thanks to all of our clients, colleagues, family and friends for their continued support.  Especially exciting is the growing following for "the Ninth."  Here are the 2010 stats: 10 authors 161 posts 12,665 visits from over 100 countries/territories 21,771 page views Over 10 citations in the Ninth Circuit Court of Appeals "New & Noteworthy" email blast Listed in multiple blog directories, including the ABA Journal Blawg Directory

    (read more)

    Wendy McGuire Coats

  • Emergency Petition for Writ of Mandamus re Jared Lee Loughner (the Tucson Shooter)

    A copy of the emergency petition for writ of mandamus is available here. Apparently, Loughner was transferred early yesterday morning from Tucson to the Medical Referral Center (MRC) in Springfield, Missouri.  His attorney seeks his return to Tucson, where he was previously being held  in a pretrial detention facility. Previously the district court issued orders concerning a competency examination of Loughner under 18 U.S.C. §§ 4241 & 4247(b).  Those orders are currently stayed pending separate appeal to the Ninth Circuit.  The transfer is related to the competency examination that is currently stayed.

    Wendy McGuire Coats

  • Two Recent Ninth Circuit Opinions Better Define Liability Under the Clean Water Act and CERCLA

    March 15,2011

    City of Los Angeles v. San Pedro Boat Works (9thCir March 14, 2011) No. 08-56163 – lease holders and other holders of “mere possessory interests” are not “owners” for purposes of CERCLA liability (opinion available here) In San Pedro Boat Works, the City of Los Angeles discovered in 1995 that one of its berths at the Port of Los Angeles was plagued by a variety of contaminants, including polychlorinated biphenyls, polycyclic aromatic hydrocarbons, copper, lead, mercury, chromium, and other contaminants.  The City cleaned up the property, and in 2002 the City filed a lawsuit to seek recovery of its cleanup costs against several parties and under several theories, including the Comprehensive, Environmental, Response, Compensation, and Liability Act (“CERCLA”).  One of the named defendants was a Coca Cola bottling entity, which was named because it had certain possessory rights to use the contaminated berth.  CERCLA imposes liability on “any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of.” (42 USC §9607(a)(2)).  In the instant case, the issue was whether Coca Cola’s possessory rights to the use of the berth made Coca Cola an “owner” under the statute, and therefore subject to CERCLA liability for the cleanup.

    (read more)

    Brian J. Bergman

  • No Irreparable Injury Shown From Genetically Engineered Sugar Beets – Injunction Overturned by Ninth Circuit

    March 7,2011

    Center for Food Safety v. Monsanto Company, No. 10-17719 (available here)

    Judges Bennett, Schroeder and Thomas begin their decision by paying homage to the sugar beet and the "considerable contribution" it has made to our agricultural economy.  This crop is used to produce refined sugar, and the defendant/intervenor Monsanto Company found a way to genetically engineer ("GE") the beets to make them resistant to pesticides.  [1] As required by the Plant Protection Act ("Act"), proper permits to grow these beets were obtained in September 2010 in Oregon and Arizona.  Despite the permits, the district court granted an injunction to destroy the GE beets to protect organic farmers and consumers from the negative environmental impact of genetically modified beets.

    The Ninth Circuit reversed, finding that plaintiffs did not demonstrate GE beets "present a possibility, much less a likelihood, of genetic contamination or other irreparable harm."  So why are some interest groups so unhappy with this outcome, if no injury is likely?

    (read more)

    Stevie E. Leahy

  • Pharmaceutical Sales Reps exempt from FLSA Overtime Requirements

    February 17,2011

    The Court in Christopher v. SmithKline Beecham (No. 10-15257, opinion by Judge Milan D. Smith, Jr., available here) decided the narrow issue of whether Pharmaceutical Sale Representatives (“PSRs”) qualified as “outside salesmen” under the Fair Labor Standard Act (“FLSA”) and thereby, whether PSRs are entitled to overtime-pay.  The Court held that PSRs are exempt from the FLSA overtime-pay requirement primarily due to the nature of the sales process in the pharmaceutical industry and the autonomous, commission based nature of PSR work. The employer in Christopher, Glaxo SmithKline (“Glaxo”), sells prescription pharmaceutical products to distributors or retail pharmacies.  The distributors and retail pharmacies then dispense those products to the ultimate user, or patient, as authorized by a physician’s prescription.  Since Glaxo cannot make sales directly to patients, they employ PSRs to provide physicians with information about Glaxo’s products, provide product samples, and attempt to convince physicians to prescribe Glaxo products.

    (read more)

    Todd B. Scherwin

  • Adult Bookstores Lead to Crime, Leads to City Ordinance, Leads to Never-ending Litigation

    February 3,2011

    Alameda Books v. City of Los Angeles, No. 09-55367 (available here)

    In a lengthy case that has been to the Supreme Court and back, we deal with an ordinance restricting the location of adult entertainment businesses in Los Angeles.  A later amendment to this ordinance prohibited an adult bookstore and an adult arcade from operating within the same establishment.  Two adult businesses, featuring a store as well as a viewing arcade, brought suit alleging First Amendment violations.

    After two victories in the lower court for plaintiffs, the Supreme Court reversed and established a new tri-part framework for reviewing ordinances aimed at reducing secondary effects of adult entertainment businesses. [1] Applying this framework on the 2007 MSJ, the district court determined the ordinance failed intermediate scrutiny.  Judges Wardlaw, Fletcher and Cudahy for the Ninth Circuit disagreed, holding that a MSJ was inappropriate because of issues of credibility related to the basis for passing the ordinance (more appropriately decided at trial).

    (read more)

    Stevie E. Leahy

  • Immigration Judge Found Asylum Applicant Wasn’t Really A Christian Because He Thought Thanksgiving Was A Christian Holiday

    January 30,2011

    This is a little case about a guy from China who "found God" and then "found America" and 7 years later finally found a panel of Ninth Circuit judges who followed the law - - he'll likely get to stay now.  Starting point:  The US offers asylum to individuals who have suffered religious persecution in their home country.  Refugee status can be granted as a result of past persecution plus a well-founded fear of future persecution in the home country, based on an applicant’s religion. See 8 U.S.C. § 1101(a)(42)(A). When evaluating whether an applicant is eligible to receive asylum in the United States, an Immigration Judge is charged with making a credibility determination.  Basically, is the applicant teller of truths or lies?  This isn't always a very easy thing to do.

    (read more)

    Wendy McGuire Coats

  • First Amendment Retaliation Claim Properly Alleged Under Public Employee Balancing Test

    Clairmont v. Wilson (available here)

    Last week, Judges Burns, Graber and Paez analyzed the First Amendment as applied to testimony in a criminal proceeding.  The plaintiff Clairmont was a domestic violence counselor, subpoenaed as an expert witness related to his services for the Seattle Municipal Court.  After the Probation Department for the City criticized Clairmont's testimony and his role as a counselor, he was fired from his job and claims the termination was a retaliation for truthful testimony.

    The defendant Wilson, manager of Probation Services with at least implied authority over Clairmont, filed a MSJ claiming qualified immunity.  Applying the Pickering balancing test, the district court found no free speech violation and granted the MSJ; in the alternative, Clairmont's free speech rights were not clearly established at the time of his testimony to support a claim.  The Ninth Circuit reversed on both grounds, finding sufficient evidence to support a valid First Amendment retaliation claim, and remanded to the district court.

    (read more)

    Stevie E. Leahy

  • Ninth Circuit Mourns Shooting Death of Chief District Judge John M. Roll

    January 8,2011

    Text From Ninth Circuit January 8, 2011 Press Release The federal judiciary was in mourning after learning of the death today of Chief District Judge John M. Roll of the United States District Court for the District of Arizona. Judge Roll was one of as many as six people believed killed at political event in Tucson. He was 63. Flags will be lowered to half mast at many federal courthouses in memory of Judge Roll, who had his chambers in Tucson. He had been attending an event organized by Rep. Gabrielle Giffords of Tucson, who also was shot and critically wounded. As many as 16 more people were injured in the shooting. "All of us in the Ninth Circuit court family were shocked and terribly saddened to learn today of the death of Chief District Judge John M. Roll. Our hearts go out to his family and to all of the families of those killed or injured in this senseless tragedy," said Chief Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit.

    (read more)

    Wendy McGuire Coats

  • Perry v. Schwarzenegger Arguments: No Standing and No Rational Basis for Prop 8 Supporters

    December 8,2010

    Oral argument in Perry v. Schwarzenegger was broadcast Monday via CSPAN before Judges Reinhardt, Smith and Hawkins (video available here).  This decision will determine whether a previous injunction against enforcement of Proposition 8, California's initiative-approved ban against same-sex marriage, will survive (previous discussion here).  In general, Olson and Boies for the plaintiffs gave an extremely sharp performance, outshining the attorneys for the Prop 8 Proponents and the County. [1] Although it was obvious the judges thought there should be a platform for appeal, the standing issue will likely decide this case in plaintiffs' favor.  If not, the merits also favors the plaintiffs even under the rational basis test; proponents' argument amounted to preservation of the word "marriage" in the traditional sense for the sake of preservation.   Read on to see why the judges did not seem enthusiastic about that argument....

    (read more)

    Stevie E. Leahy

  • Dirty, Sexy, Election $$: SCOTUS Officially Enters the Clean Election Law Fight

    November 29,2010

    Today, SCOTUS entered the legal controversy involving public subsidies for political candidates when it granted cert in two cases involving Arizona's "clean election" laws. 

    10-239 McCOMISH, JOHN, ET AL. V. BENNETT, KEN, ET AL. The petitions for writs of certiorari are granted. The cases are consolidated and a total of one hour is allotted for oral argument.
    The consolidated case involves a Republican-backed challenge to a 1998 voter-approved Arizona law that's goal is to even out campaign spending.  Arizona's 12-year-old program ties the amount of state funds participating candidates receive to the amount of money raised or spent on behalf of their opponents. (sort of, "the more the other gal spends, the more the state will give you to make up the difference" kind of thing).  Challengers assert that Arizona's "clean elections" system violates the First Amendment rights of candidates who don’t seek public funds. (for example, the "I don't need state funds because deep pockets have backed me" candidate)  The Ninth Circuit upheld Arizona's system in May, overturning a trial judge’s decision and finding the effect on free-speech rights was minimal.  The Ninth Circuit's opinion in McComish v. Bennett is available here.   SCOTUS may already have indicated how it will handle Arizona's election law based on the Supreme Court's June decision to prevent its use during the 2010 election cycle. The case is expected to be calendared for oral argument in March with a decision handed down in the Summer of 2011.

    Wendy McGuire Coats

  • DADT Will Remain In Effect Pending Appeal – Courts “Ill-Suited to Second Guess Military Judgments”

    November 3,2010

    In an unsurprising move, the Ninth Circuit has decided to stay enforcement of the injunction against the Don't Ask Don't Tell policy (DADT) (available here).  Judges O'Scannlain and Trott handed down the decision yesterday, permanently extending the stay that was granted in October (previous discussion of DADT available here).  There will be no further oral argument in this case, since both sides have provided what the court deems "satisfactory information and argument to make this decision."  Therefore, DADT will remain in effect until Congress repeals it or it is overturned on appeal.

    The three reasons given for the grant of the stay were as follows:

    (1) The presumption of constitutionality surrounding acts of Congress favors the government and a stay.

    (2) Since the legislation deals with a military issue, the court should extend even more deference.  "Courts are ill-suited to second-guess military judgments that bear upon military capability and readiness."

    (3) The split within the Circuits.  Four other circuit courts have decided this issue with a different result (1st, 2nd, 4th, 8th).  "Courts in the Ninth Circuit should not grant relief that would cause substantial interference with the established judicial pronouncements of such sister circuits."

    The court points out that if Congress eliminates DADT in the meantime, the appeal will become moot - which is a realistic possibility.  Judge Fletcher, in dissent, would have created a "carve out" stay - meaning the district court’s injunction would remain in effect only with respect to the authority to discharge any member who violates DADT during appeal.  He did not feel that this created any burdens on the government, but obviously was overruled by Judges Trott and O'Scannlain.

    Stevie E. Leahy

  • Ninth Circuit Punts to California Supreme Court on Issue of County Health Benefits Impacted by Budget Crisis

    July 6,2010

    On June 29, 2010 in Retired Employees Association of Orange County, Inc. v. County of Orange, No. 09-56026 (available here), the Ninth Circuit issued an order certifying a question to the Supreme Court of California and staying the appeal.  The question at issue is “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.”  For 23 years, Orange County pooled active and retired employees for the purpose of setting health benefit premiums.  The result of this pooling was that retiree health benefits were subsidized:  retiree premiums were lowered below actual expenses while active employee premiums were raised above actual expenses.  Because of budgetary concerns, the County passed a resolution splitting the pool of active and retired employees, effective January 1, 2008.  In November 2007, the Retired Employees Association (“REA”) filed suit against the County to enjoin the County from splitting the pool, alleging that the County breached an implied contract, was prohibited from changing the pooling by promissory estoppel, and violated the retirees’ due process rights.

    (read more)

    Jamie C. Chanin

  • No Right to Anonymity for Signatories

    June 29,2010

    Doe et al v. Reed ( decision available here)

    In a case linked to the same-sex marriage battle, the Supreme Court held in an 8:1 decision that disclosure of referendum petition signatories generally does not violate the First Amendment (previous discussion available here).  This ruling affirms the Ninth Circuit decision, and returns the specific facts related to the Washington state law back to the district court to determine if they are sufficient to justify exemption from disclosure.  Justices Sotomayor, Stevens, Ginsburg, Breyer and Scalia expressed doubt that petitioners/plaintiffs should prevail.  However, it is still possible the district court will rule in their favor in light of Justice Alito's concurring opinion, which included helpful language that the evidence in this case may be sufficient once it is finally aired in court.  

    Pending this determination, the names of the signatories on the Washington referendum will be kept anonymous.

    (read more)

    Stevie E. Leahy

  • SCOTUS Reverses 9th Circuit 7-1 in Monsanto Case

    June 27,2010

    In Monsanto Co. v. Geertson Seed Farms, 09-475 (decision available here the Supreme Court reversed a Ninth Circuit opinion affirming an injunction that barred the federal government from de-regulating genetically-modified alfalfa without a detailed environmental study.  Justice Alito, writing for a majority of the court, concluded that this injunction was both premature and overbroad.  In reaching this result, the Court reiterated that there is no presumption in favor of injunctive relief where the federal government has failed to adequately study the environmental impacts of its decisions, as required by the National Environmental Policy Act (NEPA). The Court also refrained from deciding whether a detailed-evidentiary hearing must be held before an injunction issues.   Justice Steven dissented, taking the majority to task for mis-interpreting the injunction [the injunction did not categorically prohibit deregulation contrary to the majority's opinion] and for deciding a legal issue [whether the district court erred in categorically enjoined partial de-regulation of genetically-modified alfalfa in any sense] not adequately presented to the lower courts or SCOTUS.  Justice Stevens would have upheld the district court's injunction as an "equitable application of administrative law."

    Sharla A. Manley

  • SCOTUS Overturns Ninth Circuit Ruling in Quon

    June 24,2010

    In a 9-0 opinion written by Justice Kennedy, the Supreme Court  overturned a Ninth Circuit ruling on the Fourth Amendment as applied to new technologies (decision available here).  Police officer and plaintiff/respondent Quon brought suit after his employer, the City of Ontario Police Dept., read personal text messages sent on his employer-issued pager (previous discussion of the facts available here).   The Ninth Circuit held that the Dept. violated Quon's Fourth Amendment right against unreasonable search and seizure.  They presented three issues for cert, all of which SCOTUS addressed, but in a narrow holding: this decision could have been a watershed case within the emerging area of technology privacy, but the Justices did not expand existing caselaw, instead relying on the existing O'Connor precedent  as controlling.  [1]

    (read more)

    Stevie E. Leahy

  • SCOTUS Grants Cert in McCoy v. Chase Manhattan Bank, USA

    June 22,2010

    On Monday June 21, 2010,  Supreme Court agreed to review the Ninth Circuit’s ruling in McCoy v. Chase Manhattan Bank, USA, 559, F.3d 963 (2009), that found that Chase violated the Truth in Lending Act (“TILA”) by increasing interest rates retroactively to the beginning of the payment cycle due to a default of the lender.   The Ninth Circuit panel in a 2-1 decision available here (Opinion by Judge Hawkins, and agreed to by Judge Pregerson, dissent by Judge Cudahy), found differently than the various District Courts that had examined the same issue.  In fact, the panel even determined that a prior Ninth Circuit unpublished decision  on the issue was erroneous; a fact that Judge Cudahy hammered home in his dissent. 

    (read more)

    Matthew A. Berliner

  • Closing Argument Highlights – Perry v. Schwarzenegger

    June 17,2010

    After an extended wait, lawyers for the Prop 8 trial finally had the opportunity to make their closing arguments to Judge Vaughn Walker of the Northern District of California.  Ted Olson gave the closing on behalf of the plaintiffs, Charles Cooper for the defendants.  Overall, there was a lot of interplay between the judge and the attorneys.  The defense side received tougher questions from Judge Walker, and at times it seemed less like closing argument and more like a witness being examined on cross.  He even called out Cooper on the lack of evidence and witnesses at one point that they bantered over for several pages of the transcript ("[W]hy in this case did you present but one witness on this subject? One witness.  Why only one witness?”).

    Readers, I apologize in advance for the length of this post.  I broke it down by issues, and pulled quotations from both sides to show the contrasting positions.  These are not in a particular order, and there were certainly other important issues discussed that are not included here.  If you are interested in something that was missed, let us know in the comments section.

    (read more)

    Stevie E. Leahy

  • First Amendment Does Not Immunize From Political Fallout

    Blair v. Bethel School District, No. 08-35895 (available here)

    Along with four other individuals, plaintiff/appellant Blair served as an elected member of the Bethel School District Board for the past decade.  Blair was extremely critical of the school superintendent, a view that was not supported by the rest of the Board.  After one outspoken criticism for which Blair refused to offer an apology, the other elected members voted in a "secret session" to remove him from the Vice Presidency (these details are revealed at oral argument, available here).  Although still a member of the Board (without title), Blair sued under 42 U.S.C. § 1983, alleging that he was retaliated against for exercising his First Amendment rights to free speech and petition.

    (read more)

    Stevie E. Leahy

  • “Get me out of this case!”–Ninth Circuit rules that non-settling PRPs may intervene in CERCLA suits to contest settlement agreements of other PRPs

    June 9,2010

    The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) requires liable parties to pay for the clean up of contaminated sites. CERCLA bars contribution claims against Potentially Responsible Parties (“PRPs”) that have obtained administratively or judicially approved settlements with the government.  Therefore, CERCLA provides a strong incentive for PRPs to settle by leaving non-settling PRPs liable for all of the response costs not paid by the settling PRPs.  Early settlement is especially important in environmental matters where the costs of paying for an environmental cleanup often significantly increase over time.  In United States v. Aerojet Gen Corp., 2010 U.S. App. LEXIS 11131 (9th Cir. June 2, 1010) (full opinion available here), the Ninth Circuit addressed the question of whether a non-settling PRP may intervene in court to oppose a consent decree incorporating a settlement that, if approved, would bar contribution from the settling PRP.  This issue had split the federal courts, with the Eight  and Tenth circuits holding that intervention was allowed, while district court’s in the Ninth Circuit and Sixth Circuit had previously held that intervention was not allowed in this circumstance.

    (read more)

    Brian J. Bergman

  • Haskell v. Harris (10-15152) Involving California’s DNA Collection of Arrestees Will Be Re-Heard En Banc the Week of December 19, 2013

    August 23,2013

    Haskell v. Harris, case number 10-15152 has been ordered to be re-argued before the en banc court the week of December 19, 2013 in San Francisco. The case involves a challenge to California’s Proposition 69, which was passed by voters in 2004 to “expand and modify state law regarding collection and use of criminal offender DNA samples and palm print impressions.” The “DNA Fingerprint, Unresolved Crime and Innocence Protection Act” text is available here. What's Changed: Earlier this summer, the United States Supreme Court issued its decision in Maryland v. King, 569 U.S. ___ , No. 12-207 (June 3, 2013). In upholding a Maryland law, the Court said that “when officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA, is like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” (Id. at 28.)   Background: On July 13, 2010, the case was argued and submitted before the three-judge panel: William A. Fletcher, Milan D. Smith, Jr. (Circuit Judges), and James Dale Todd, Senior District Judge (U.S. District Court for Western Tennessee, sitting by designation.) On February 23, 2013 the opinion as filed by Judge Milan D. Smith, Jr. with a dissent by Judge William A. Fletcher. The February 23, 2010 opinion upheld the 2004 Amendment finding that it does not violate the Fourth Amendment. It is “undisputed that a compelled DNA extraction is a ‘search’ for Fourth Amendment purposes” so the court considered the totality of the circumstances and balanced an arrestee’s privacy interests against that of the Government’s need for DNA samples.   Following the decision, both parties have filed supplemental briefs discussing the implications of Maryland v. King. (1) Plaintiffs/Appellants’ Supplemental Brief regarding Maryland v. King (2) Defendants/Appellees’ (Attorney General of California/Assistant Bureau Chief for DNA Programs, California DOJ) Supplemental Brief Pursuant to Federal Rule of Appellate Procedure, Rule 29(a), the Ninth Circuit also granted leave for the filing of amicus briefs.  Briefs are due by October 28, 2013 and must not exceed 2,500 words.

    Wendy McGuire Coats

  • Congratulations to Todd B. Scherwin on his Elevation to Partner at Fisher & Phillips LLP

    January 11,2012

    We at the Ninth send out our congratulations to one of our regular contributors - Todd B. Scherwin - on his elevation to partner. "National labor and employment law firm, Fisher & Phillips LLP, has named Todd Scherwin as partner in its Irvine, Calif. office. Scherwin’s practice area includes representing employers in various aspects of labor and employment law, including employment discrimination, harassment, leave law issues and many others."    

    Wendy McGuire Coats

  • “Four Year Statute of Limitation For Claims Brought Pursuant to 42 USC 1981″

    August 10,2011

    The Court in Johnson v. Lucent Technologies (No. 09-55203, opinion by Judge Betty B. Fletcher available here) determined whether retaliation claims brought pursuant to 42 U.S.C. section 1981 are subject to a four-year statute of limitations provided by 28 U.S.C. Section 1658(a) or the personal injury statutes of the forum state.  The Court held that such claims are subject to the four-year statute of limitations as provided by 28 U.S.C. section 1658.  In Lucent, Defendant’s former employee (Johnson), proceeding pro se, filed suit against his former employer, Lucent, on August 11, 2008 for terminating his long-term disability benefits in retaliation for previously filing suit against the company in 2005.  Notably, Johnson’s long-term disability benefits stemmed from separate litigation between Johnson, again acting in pro se, and Lucent beginning in 1982 and continuing through 2006.  Lucent moved to dismiss Johnson’s retaliation claim on the grounds that Johnson’s claim was time-barred under the relevant California statue of limitations under California Code of Civil Procedure Section 335.1 providing for a two (2) yearstatute of limitations.  The district court dismissed the matter, and Johnson amended his complaint.  Upon receipt of the second complaint, Lucent again moved to dismiss.  The district court once more ruled that Johnson’s claims were time-barred and refused to grant Johnson equitable tolling.  Johnson appealed to the Ninth Circuit.

    (read more)

    Todd B. Scherwin

  • First Amendment Protection of Abortion-Related Speech: Oakland’s “Bubble Ordinance” Upheld, But With Equal Enforcement

    August 2,2011

    Hoye v. City of Oakland, No. 09-16753 (available here)

    A free speech battle is raging between pro-life and pro-choice activists outside the reproductive health clinics in the city of Oakland, mirroring the larger battle taking place in cities, ordinances, policies and debates everywhere.  The pro-life faction, like appellant Hoye, argue they try to speak with women and present their views but are prevented by clinic volunteers.  The pro-choice faction, including some clinic volunteers who escort patients and staff to/from the building, argue that they are protecting women from harassment and violence.  Both sides claim protection under the First Amendment.

    In an attempt to calm the situation outside the clinics, the City of Oakland enacted a "bubble ordinance" - once you are with 100 feet of such an establishment, it is an offense to knowingly and willfully approach within eight feet of an individual seeking entry to the clinic if your purpose is to engage in conversation, protest, or counseling.[1]

    (read more)

    Stevie E. Leahy

  • “Especially Unpleasant Fellow” Making Threats Against Obama – Conviction Reversed on First Amendment Grounds

    July 21,2011

    United States v. Bagdasarian (available here) United States v. Bagdasarian

    The federal statute at issue in this case criminalizes pure speech, providing a punishment of up to five years in jail.  Two weeks before the 2008 presidential election, Defendant/appellant Bagdasarian made numerous statements on a Yahoo message board while intoxicated.  The statements, directed at then-presidential-candidate Obama, were racist and threatening, ex. "[Obama] will have a 50 cal in the head soon."  The internet postings were reported to the Secret Service, and an investigation followed, resulting in the arrest of Walter Bagdasarian, a resident of La Mesa, California.

    The defendant was convicted by the district court of a federal statute that makes it a felony to threaten to kill or do bodily harm to a major presidential candidate.  Judges Reinhardt and Kozinski disagreed, finding that a reasonable person (objective standard) would not have believed the defendant was going to harm Obama.  Furthermore, that Bagdasarian himself did not intent the message as a threat (subjective standard).  Failing both tests, the conviction was reversed.

    (read more)

    Stevie E. Leahy

  • RLUIPA Prevents City of Yuma From Excluding Religious Organizations On Main Street

    July 13,2011

    Centro Familiar v. City of Yuma, No. 09-15422 (available here)

    Judges Kleinfeld, Tashima and Thomas addressed the “equal terms” provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA), finding in favor of appellant.  Unfortunately for appellants in this case, they have little recourse even though the Ninth Circuit has agreed with their claims.  The building that Centro Familiar ("Centro") purchased on Yuma's main street to be used as a church, which the City prevented them from using as a church, has been lost to foreclosure since the beginning of the litigation.  The only thing Centro will get out of winning their lawsuit is potential damages from the district court on remand.

    In 2007, Centro purchased a vacant, distressed building in downtown Yuma, an area that the City was attempting to revitalize.  Because the building was in foreclosure, the church had to move quickly and did not have time to secure a conditional use permit.  

    (read more)

    Stevie E. Leahy

  • Asylum Protection for Whistleblowers Expanded

    July 1,2011

    Antonyan v. Holder (07-72719) (full opinion available here)There are five statutorily-protected grounds for asylum and for its sister withholding of removal:  race, religion, political opinion, nationality, and membership in a particular social group.  Simply put, an asylum applicant must show that he or or she has or will suffer persecution on account of one (or more) of those grounds, and that the persecutor is either the government, or someone the government is unwilling/unable to control.  So there are two types of situations that don't fit squarely into this framework.  The first: whistleblowers who expose government corruption.  Asylum law protects whistleblowers by fitting them into the political opinion ground (“Whistle-blowing against government corruption is an expression of political opinion.”  Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010)).The second: people who fear retaliation from private citizens for reporting criminal activity to law enforcement authorities.  This is considered personal retribution not related to the expression of a political opinion.  Both situations have the same feeling, in that we generally want to protect people who report crime and corruption.  But until Antonyan v. Holder, only the first group was protected.  In Antonyan, the Ninth Circuit was presented with a mixture of these two situations.  The applicant reported a crime to the Armenian authorities...the crime of a private citizen.  What she soon found out was that this private citizen was extremely well-connected with the police and prosecutors.  Her reports were ignored; the prosecutions were dismissed.  As she continued up the government chain looking for someone who would listen, the gang of thugs associated with the criminal attacked her and threatened to kill her.  In doing so, she was also exposing the corrupt government employees.  Finally, the police themselves tried to quiet her, at which time she left Armenia. The Immigration Judge and the Board of Immigration Appeals both dismissed her claim, holding that she really only feared the retaliation of a private criminal.  The Ninth Circuit disagreed.  This is a significant expansion of the whistleblowing doctrine, as it broadens the asylum protection given to those who expose criminals with corrupt ties to the government.   

    Emily K. Allen

  • Sharpening the Teeth of the FAA and the Bite of Arbitration Provisions: Mastro’s Restaurants Case Further Confirms Arbitrators’ Authority to Decide Arbitrability.

    In its June 22, 2011 opinion (available here) , John Momot v. Dennis Mastro, et al., No. 10-15276 (“Momot”), the Ninth Circuit reversed the Nevada District Court, holding that, pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16, specific language in an arbitration provision empowers arbitrators with the authority to decide whether a dispute is subject to arbitration.  Courts traditionally decide this “threshold” or “gateway” arbitrability question, along with similar questions such as whether an arbitration provision is legally valid, based upon principles of contract formation.  However, recent cases such as Momot are increasingly empowering arbitrators with authority to decide arbitrability.  Although Momot suggests parties must “clearly and unmistakably” agree to arbitration terms, the Court actually strengthens the position that merely signing an arbitration agreement may eliminate a party’s right to argue almost anything in Court, regardless of the party’s actual intentions or knowledge.   I.       Case Background and Overview  I admit that the Mastro’s in Beverly Hills may be my favorite steakhouse, and I’m happy that this opinion regarding compelling arbitration has very little to do with Mastro’s Restaurants.  Nonetheless, John Momot filed the underlying action alleging complaints concerning his investments in three of the Mastros’ Restaurants.  The Mastros had sold several companies in 2007, including the three Mastros in which Mr. Momot had invested.  The Mastros, Mr. Momot, and other investors all executed an Allocation Agreement as part of the sale, to essentially clarify the valuation of each of the restaurants so that the sale proceeds could be allocated among the investors.

    (read more)

    Christopher S. Jones

  • You Entered the U.S. Last Fall? Okay…If You Say So.

    June 20,2011

      On Friday June 17, 2011, the Ninth Circuit issued its en banc decision in Nirmal Singh v. Holder (08-70434) (full opinion available here). Prerequisite knowledge:  to be eligible for asylum, an applicant is required to file that application prior to the one-year anniversary of his or her last entry into the United States.  If he or she does not file within one year, he or she may still be eligible if "exceptional" or "changed" circumstances are to blame for the filing delay.  If no exceptions apply, the alien will be found ineligible for asylum on this basis alone, and he or she will be left pursuing the much more difficult applications of withholding of removal and relief under the Convention Against Torture.  Those alternatives are inferior to asylum from both the ease and benefits perspective.  They are of course not inferior in the universal sense, as they equally save someone's life. In any asylum case, a decision is typically structured in a three-tiered manner, the first two of which are threshold questions.  First, was the applicant's testimony credible (of which there is a plethora of case law)?  Second, did the applicant file for asylum within one year of his or her last entry into the United States (which must be established by clear and convincing evidence)?  And third -- assuming answers to both previous questions are yes -- has the applicant established past persecution and a likelihood of future persecution?  The recent en banc decision in Singh v. Holder touches on the second question and whether the applicant is required to offer corroborative evidence of his or her date of entry, even when the applicant's testimony was credible. The Ninth Circuit first said yes...but now they say no. Singh is a citizen of India who entered the United States illegally through Canada.   Of course, when one enters the U.S. without being admitted by an immigration officer, there is no stamp or I-94 to serve as a record of the entry.  So how do you prove that you entered illegally on a certain date?  You just say so (in a believable way). We've discussed here before the REAL ID Act, which imposes corroboration requirements on asylum applicants.  While in the past applicants could establish eligibility for asylum with credible testimony alone, the INA now requires corroborate evidence of credible testimony, or a damn good reason why it could not be obtained.  The issue in Singh is whether those requirements apply to the second and third questions above, or only the third. The resolution of this issue for the Ninth Circuit was rooted in statutory construction.  The INA --as modified after the REAL ID Act -- requires corroborative evidence only in establishing that one is a refugee.  It also defines a refugee as a person who is unable or unwilling to return to his or her country because he or she has been or will be persecuted on account of a statutorily protected ground.  Nothing in the definition of a refugee mentions a one-year rule (and of course it doesn't...a refugee is by definition someone who is not in the United States...there is a different between a "refugee" and an "asylee").  On that basis, the Ninth Circuit concluded that corroborative evidence is required for the substance claim only, and not for the threshold issue of whether the application was timely filed. There is a dissent.  The gyst of it is: we disagree because that reading will limit -- their word is "frustrate" -- Immigration Judges in their efforts to properly adjudicate cases.  Of course it does.  Just like the 4th amendment "frustrates" law enforcement, and the 5th amendment "frustrates" prosecutions.

    Emily K. Allen

  • No Grounds to Vacate Prop 8 Judgment Despite Judge Walker’s Sexuality

    June 14,2011

    ORDER DENYING DEFENDANT- INTERVENORS’ MOTION TO VACATE JUDGMENT (available here)

    Immediately after Judge Walker ruled in favor of same-sex marriage back in Aug 2010, opponents were calling foul because of his sexual orientation.  Although Judge Walker was quiet on the issue during the trial (and during his career for that matter), he spoke publicly after his retirement and shared that he was in a ten year same-sex relationship.  United States District Chief Judge James Ware was asked to determine whether it was inappropriate for a gay judge to preside over the Prop 8 trial, and ruled that it was not.

    The statute at issue requires recusal if "the judge has a substantial non-pecuniary interest in the case, or if there is some fact that brings the impartiality of the judge reasonably into question."  Here, since Judge Walker did not recuse himself, the defendant-intervenors asked for his dismissal, alleging an "actual interest" in the outcome (as opposed to a broad bias because of his shared sexuality).  Judge Ware found their arguments unpersuasive.

    (read more)

    Stevie E. Leahy

  • In California FEHA Discrimination Case, Federal Courts Have Jurisdiction to Determine Whether Obtaining Security Clearance Was a Bona Fide Job Requirement

    April 7,2011

    The Court in Zeinali v. Raytheon Company (No.09-56283, opinion by Judge Milan D. Smith, Jr.) clarified the jurisdiction of the federal court to decide discrimination cases involving security clearance decisions and subsequent adverse employment actions by private employers. The Court held that where Executive branch security clearance is at issue, jurisdiction is proper where the judiciary is asked to consider questions that do not involve the merits of the security clearance decisions itself, such as whether the security clearance was a requirement for the job.  In Zeinali, the employer, Raytheon, hired Plaintiff, who is of Iranian descent, in a position that according to Raytheon, required him to obtain “Secret” level security clearance.  Plaintiff was informed that his employment was contingent on obtaining such clearance.  Although Plaintiff’s initial request for interim clearance was denied, Raytheon retained him while the final clearance decision was pending.  During the period in which final clearance was pending, Plaintiff was transferred to a different position.  Ultimately, Plaintiff’s request for clearance was denied, and after conducting internal discussions, Raytheon terminated Plaintiff’s employment.

    (read more)

    Todd B. Scherwin

  • Stolen Valor Act Headed to SCOTUS???

    April 1,2011

    United States v. Alvarez (available here)

    Passed in 2005, the Stolen Valor Act imposes a criminal penalty on people who falsely represent receiving certain military honors.  Appellee Alvarez was convicted under the Act after he lied about receiving the Medal of Honor - however, the Ninth Circuit overturned his conviction, holding the Act unconstitutional (previous post here).  The Ninth Circuit recently denied the petition for panel rehearing and rehearing en banc, re-stating once again: "[a]s presently drafted, the Act is facially invalid under the First Amendment, and was unconstitutionally applied to make a criminal out of a man who was proven to be nothing more than a liar, without more."

    With dissents by Judges O'Scannlain and Gould, is this First Amendment battle being primed for the Supreme Court? There was significant debate in the original Ninth Circuit decision, and once again here in the denial, with both sides using the same well known precedent to support their argument (Gertz, NYTimes, Playboy).  

    (read more)

    Stevie E. Leahy

  • NINTH CIRCUIT ORDERS NEW TRIAL AFTER ERRONEOUS JURY INSTRUCTION ON FMLA “INTERFERENCE” CLAIM

    March 24,2011

    As a litigator, it is my worst nightmare to go through trial, only to have all of the work nullified and to prepare the same case for trial years later.  Unfortunately, this is not uncommon, and it happened in Sanders v. City of Newport, Nos. 08-359996, 09-35119 and 09-35196 (available here).   On March 17, 2011, the Ninth Circuit remanded the case for a new jury trial on some claims, to be followed by a bench determination on others.              City employee Diane Sanders went on a medical leave protected under the Family Medical Leave Act (“FMLA”) and its Oregon state equivalent.  Sanders had been a billing clerk for the City for ten years, compiling and issuing utility bills and providing customer service.  Her doctor placed her on leave after diagnosing her with multiple chemical sensitivity, largely because he wanted to determine whether her handling of low-grade billing paper at her job was the cause of her condition.  Sanders requested and received a one-month FMLA leave. 

    (read more)

    Jamie C. Chanin

  • Nine-Judge Panel Finds Statutory Interpretation of RLUIPA Favors Muslim Appellant Forced to Remove Headscarf While in Courthouse Holding Facility

    March 21,2011

    Khatib v. County of Orange, No. 08-56423 (available here)

    In an unusually short decision by a nine-judge panel, Judge McKeown reversed the lower court based on the interpretation of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA).  This legislation was designed to safeguard religious freedom in all aspects of life, including when a person is being detained prior to trial.  Appellant Khatib, a Muslim, was forced to remove her headscarf while being held in the Santa Ana courthouse holding facility.  She argued that this was a violation of RLUIPA, but the district court held that the courthouse facility was not an institution covered by the Act.

    Chief Judge Kozinski, as well as Judges Schroeder, O’Scannlain, Thomas, McKeown,Fisher, Gould, Rawlinson, Clifton, Ikuta and Smith all agreed that the plain language of RLUIPA [1] clearly includes the facility that the defendant was held in awaiting her probation violation hearing.

    (read more)

    Stevie E. Leahy

  • “Who Decides?” Second Guessing Extradition & the Federal Courts’ Power to Review Go En Banc

    March 9,2011

    On February 28, 2011 the Ninth Circuit ordered Hedelito Trinidad Y Garcia v. Benov (Warden, Metropolitan Detention Center - LA), 09-56999 (Aug. 24, 2010 unpublished memorandum disposition available here ).  Following District Court Judge Margaret M. Morrow's order granting Trinidad's petition for a writ of habeas corpus and ordering his release, the government appealed.  The issue before the Ninth Circuit panel was: Whether federal courts have jurisdiction to review a decision by the Secretary of State that an extraditee will not be subjected to torture if returned to the requesting State. Why does the Republic of the Philippines want Trinidad back? In 2003 the Philippines requested the U.S. extradite Trinidad so that he could stand trial in the Philippines on a charge of kidnapping for ransom.  A magistrate judge certified Trinidad extraditable under 18 U.S.C. § 3184,  the Secretary of State conducted an internal review examining Trinidad's claims that he would be subjected to torture if returned to the Philippines. The claims of torture were rejected.  The Secretary decided to surrender Trinidad to Philippine officials and signed a surrender warrant.

    (read more)

    Wendy McGuire Coats

  • Just Another Reason Why Marriage Does Matter

    February 22,2011

    Estate of Bernard Shapiro v. USA, 08-17491 (full opinion available here). Bernard Shapiro (Bernard) and Cora Jane Chenchark (Cora) were in a relationship for 22 years.  Bernard paid the bills and Cora cooked, cleaned, and maintained their household.  This would seem like a typical long term marriage, but for one thing - Bernard and Cora never tied the knot. In 1999, Cora learned that Bernard was in a relationship with another woman.  Cora thereafter filed a complaint against Bernard for breach of express and implied contract, breach of fiduciary duty, and quantum meruit.  During the pendency of her lawsuit, Bernard died.  Bernard’s estate (the Estate) then filed an estate tax return and paid $10,602,238 in estate tax and generation-skipping transfer tax.  The Estate continued to defend against Cora’s civil claims.  Cora lost in the state court, with the Court finding that Cora did not enter into a specific or implied contract with Bernard for property distribution.  Cora appealed the ruling and filed a will contest against the Estate.  During the pendency of those proceedings, Cora settled with the Estate for $1 million.

    (read more)

    Lauren B. Browne

  • UPDATE ON NINTH CIRCUIT TEST FOR RELIGIOUS EXEMPTION FROM TITLE VII

    February 15,2011

    On January 25, 2011, the Ninth Circuit denied rehearing en banc and issued an amended opinion (per curiam) in Spencer v. World Vision, Inc., No. 08-35532.  The amended opinion indicates that Spencer will not be permitted to file any subsequent petitions for rehearing or rehearing en banc.             As you may remember, World Vision, Inc. terminated a number of employees after learning that they did not subscribe to certain Christian tenants.  The employees filed a religious discrimination lawsuit under Title VII.  World Vision moved for summary judgment based on the religious exemption from Title VII.  The District Court granted summary judgment, and the Ninth Circuit affirmed this decision on August 23, 2010.              The amended per curiam opinion presents a succinct summary of the test adopted by the Ninth Circuit to determine exemption from Title VII for certain religious organizations.  The opinion enunciates a four-part test, as follows: (1) the entity is organized for a religious purpose; (2) the entity is engaged primarily in carrying out that religious purpose; (3) the entity holds itself out to the public as an organization carrying out that religious purpose; and (4) the entity does not engage primarily or substantially in the exchange of goods or services for monetary gain, beyond nominal amounts.  This test is consistent with Judge Kleinfeld’s Concurrence.  While the first three factors are also set forth in Judge O’Scannlain’s Concurrence, he believes the fourth prong should entail whether the entity is a non-profit organization.  Judge Kleinfeld disagrees with a non-profit requirement, explaining that some congregations may retain employees without utilizing any corporate apparatus.                  The decisions of Judges O’Scannlain, Kleinfeld and Berzon remain substantively unchanged.  The amended opinion essentially provides clarification on the applicable test in light of the three differing underlying opinions.  The narrower, more exclusive test, which is the analysis described by Judge Kleinfeld, controls.  With this guidance, religious entities will be better able to assess their obligations, or lack thereof, under Title VII.

    Jamie C. Chanin

  • Young v. Holder Makes a Case for Citizenship

    February 2,2011

    On January 28, 2010 the Ninth Circuit issued a decision in Young v. Holder, 07-70949 (available here).  That decision should serve as encouragement to all long time permanent residents to consider becoming U.S. citizens. Being a permanent resident is lovely.  It allows an alien to enter the U.S. without a hassle, to petition certain members of his or her family to also obtain permanent resident status, and to live and work in the U.S. without threat of deportation.  That is, unless the alien violates the terms of his or her residency.  There are many ways to spoil the fun, and they are mostly contained in section 237 of the Immigration and Nationality Act (see more here).  And Now Citizenship.  After five years of being a permanent resident (3 years if you are married to and living with a U.S. citizen), an alien is eligible to apply for citizenship.  To do so, he or she must be proficient in written and spoken English, must pass a civics/government test, must be willing to take an oath of allegience to the U.S., and must otherwise satisfy the qualifications for naturalization.  There are a gazillion exceptions to everything I just said, but you get the idea.

    (read more)

    Emily K. Allen

  • First Impression Decision: Under WARN Act Quitting Due to Business’s Imminent Closing is Not “Voluntary Departure”

    January 27,2011

    The Court in Collins v. Gee West Seattle LLC (No. 09-36110, opinion by Judge N.R. Smith available here) determined the meaning of the term “voluntary departure” under the Worker Adjustment and Retaining Notification (“WARN”) Act, 29 U.S.C. section 2101 et seq. On an issue of first impression for the Ninth Circuit, the Court held that if an employee leaves a job because the business is closing that employee has not voluntarily departed, but instead has suffered an “employment loss” within the meaning of the WARN Act.  In Collins, the employer, Gee West Seattle LLC (“Gee West”), operated several automobile franchises.  Due to financial losses, Gee West attempted to sell the business beginning in July of 2007.  On September 26, 2007, Gee West informed its employees that it was pursuing a sale of the business and that if the sale could not be finalized by October 7, 2007 the company would be shutting down.  Employees were further notified that notice could not be provided earlier because “Gee West was actively seeking business to keep the business running…and it was concerned that potential purchasers would not make a purchase, had its workforce been seeking alternate employment.” Prior to its potential -closing announcement, Gee West had approximately 150 employees.  Following the announcement, several employees stopped reporting to work.  By October 5, 2007, only 30 employees reported to work at Gee West’s facilities.  Each employee who terminated his or her respective employment after September 26, 2007 stated that he or she had done so because the “business closed.”  Gee West officially closed on October 5, 2007, because too few employees remained to continue operations.  The employees brought suit claiming Gee West violated the WARN Act by not providing 60-days notice to its employees before closing its doors.  The district court granted Gee West’s motion for summary judgment finding that the approximately 120 employees who had "voluntarily departed" Gee West had not suffered an “employment loss” as defined by the WARN Act.

    (read more)

    Todd B. Scherwin

  • Ninth Circuit Overturns Finding The Mount Soledad Cross, a Prominent La Jolla Landmark, Violates the Establishment Clause

    January 11,2011

    Jewish War Veterans of the United States of America, et al. v. City of San Diego, et al., No. 08-56415 (available here). In its January 4, 2011 opinion, Jewish War Veterans of the United States of America, et al. v. City of San Diego, et al., the Ninth Circuit held for the first time that the Mount Soledad veterans’ memorial in La Jolla, particularly its imposing and highly visible centerpiece, a 43 foot cross, violates the Establishment Clause of the First Amendment of the United States Constitution.  The Court acknowledged that its decision to reverse the District Court and label the cross as unconstitutional was both difficult and important:

     “this case represents the difficult and intractable intersection of religion, patriotism, and the Constitution”; while the balance between protecting the “role of religion in our civil society” and the importance of not “favoring one religion over another” is subtle yet “fundamental to our freedom of religion”.

    (read more)

    Christopher S. Jones

  • Armenian Genocide Plaintiffs Allowed to Proceed Against Insurer & Reminder that Cal. Civ. Pro. Section 354.4 Claims must be filed by DECEMBER 31, 2010

    December 10,2010

    Movsesian, et al. v. Versicherung, et al. (07-56722) (full opinion available here).  Something you don't see very often.  On Friday December 10, 2010:

    Judge Pregerson and Judge Nelson vote to grant the petition for rehearing and Judge Thompson votes to deny the petition for rehearing. The petition for rehearing is GRANTED. The opinion and dissent filed on August 20, 2009, are hereby withdrawn. The opinion and dissent attached to this order are hereby filed.
    Armenian Genocide Plaintiffs May Proceed Against Insurers In 2000, the California legislature amended the California Code of Civil Procedure providing California courts with jurisdiction over certain claims arising out of insurance policies held by "Armenian Genocide victim[s]" codified in Section 354.4 of the California Code of Civil Procedure.  The 2000 amendment also extended the statute of limitations until 2010 for claims arising out of life insurance policies issued to “Armenian Genocide victim[s].” Cal. Civ. Proc. Code § 354.4(c).  This statutorily provided extension will lapse on DECEMBER 31, 2010.

    (read more)

    Wendy McGuire Coats

  • Ninth Circuit Announces Criteria for Granting Discretionary Appeals Under the Class Action Fairness Act of 2005

    December 1,2010

    Coleman v. Estes Express, et al., 10-08152, (Nov. 30, 2010), per curiam opinion, Circuit Judges O'Scannlain, Trott, and Fletcher, W - an October 2010 motions panel decision. Facts: After being sued by Coleman on behalf of a proposed class in California state court, Estes Express removed the action to federal district court under the Class Action Fairness Act of 2005 ("CAFA").[1]  The district court remanded the action to state court because the case involved a local controversy, which provides an exception to federal jurisdiction.  Estes Express sought leave from the Ninth Circuit's October motions panel to appeal the remand order.  The Issue on Appeal: In its remand order, the district court noted that courts are split on the issue of whether to look beyond the complaint to determine whether the local controversy exception to CAFA applies.  This issue could be determinative of whether to exercise federal jurisdiction in this case.  While courts are split, this issue also remains an open question in the Ninth Circuit. The Ninth Circuit announces the criteria for determining whether a discretionary appeal under CAFA is appropriate. Under CAFA, a party may seek leave to appeal a remand order to the court of appeals, which has discretion whether to accept the appeal. 28 U.S.C. § 1453(c)(1).  The Ninth Circuit acknowledges that CAFA does not provide guidance to reviewing courts on how to determine whether to accept an appeal of a remand order.  In establishing criteria for future reviewing courts, the Ninth Circuit was guided by the First Circuit's decision in Coll. of Dental Surgeons of P.R. v. Conn. Gen. Life Ins. Co., 585 F.3d 33, 38-39 (1st Cir. 2009) and the Tenth Circuit's decision in BP Am., Inc. v. Oklahoma, 613 F.3d 1029, 1034-35 (10th Cir. 2010).

    (read more)

    Wendy McGuire Coats

  • Did the Ninth Circuit Take an Improper Blow at AT&T’s Arbitration Provision Banning Class-Actions or Properly Invalidate the Provision as Unconscionable? The Supreme Court will Make the Call.

    November 8,2010

    Introduction Perhaps overwhelmed with the urge to “reach out and touch someone”, I recently bought a new iPhone at an AT&T store.  I wasn’t exactly overjoyed to pay taxes on the full retail value of the phone even though the store had advertised only a discounted price.  It turns out I wasn’t alone, as a series of cases regarding potentially misrepresented costs involved with mobile phone contracts – especially the arbitration and class-action provisions within those contracts – have made it through various Circuits, including the Ninth Circuit.  Now, the Supreme Court is set to examine the issue, particularly the Ninth Circuit’s holding that an arbitration provision prohibiting class-action litigation is unconscionable pursuant to California law.   Specifically, the Supreme Court will hear the matter AT&T Mobility LLC v. Vincent and Liza Concepcion (Docket No. 09-893; briefing available here) on November 9, 2010. 

    (read more)

    Christopher S. Jones

  • Assisted Suicide Ballot Initiative Stirs First Amendment Debate in Washington

    October 17,2010

    Human Life of Washington, Inc. v. Chair Bill Brumsickle, et al., No. 09-25128 (available here)

    The pro-life NPO Human Life brought suit against officials in the state of Washington, alleging that the Public Disclosure Law (Washington's Public Disclosure Commission) enacted as part of a campaign finance reform violates the First Amendment.  While giving praise to the district court opinion below, the Ninth Circuit affirmed  that the Law presented no constitutional infringement - groups like Human Life are required to disclose donors.  Judges Gould, Wardlaw and Ware unanimously agreed that 2010 SCOTUS precedent allows regulation of political speech through such disclosure requirements.

    The battleground:

    In 2008, Washington voters were asked to consider a ballot initiative that would allow assisted suicide.  The mission statement for the Human Life NPO advocates a "natural death," and the group was strongly opposed to the passage of this initiative.  

    (read more)

    Stevie E. Leahy

  • Eleven Things You Need to Know About Immigration to Have an Educated Opinion on SB 1070

    June 30,2010

    On July 28, 2010, Senate Bill 1070 will go into effect in Arizona.  Supporters from the right and opponents from the left have been battling over the propriety of 1070 since before Governor Brewer signed the controversial measure on April 23 of this year, and the debates--both legal and political--will continue.  Polls show that between 50 and 60 percent of Americans are in favor of the Support Our Law Enforcement and Safe Neighborhoods Act, and that number is even higher in Arizona.  Proponents say the law is aimed at criminal aliens, drug smugglers, and human traffickers; others allege that the law takes aim at all Hispanics.  Governor Brewer added fuel to the debate last week when she said that most "illegal" immigrants are drug mules, from which even many conservative political figures quickly stepped back. As an immigration attorney, SB 1070 and the debates surrounding it are frustrating.  Immigration law is second only to the federal tax code in complexity, and the validity of someone's physical presence in the United States can often be incredibly difficult to ascertain.  While SB 1070 holds itself out to be an uber-strict and no-nonsense approach to "illegal" immigration, I do not think it is.  Rather, it creates an entire new world of issues for Arizona law enforcement who continue having absolutely no authority over the ultimate fate of "illegal" aliens. So, I am offering my list of the eleven things you need to know about immigration law to truly understand SB 1070.  Beyond that, you decide.

    (read more)

    Emily K. Allen

  • Ninth Circuit Rules that Counsel’s Gross Negligence Warrants Relief from a Judgment Dismissing a Plaintiff’s Lawsuit due to Failure to Prosecute

    June 28,2010

    On June 25, 2010, the Ninth Circuit, in Lal v. State of California, No. 09-15645 (Judges Fletcher and Paez; with Judge Hall in dissent; opinion available here), held that an attorney’s gross negligence that results in a judgment from a dismissal due to the plaintiff’s failure to prosecute may provide grounds for relief from the judgment.   In Lal v. State of California, the plaintiff, Lal, sued the State of California, the highway patrol, and two officers for the shooting death of her husband.  During the time that the matter was pending before the District Court, Lal’s counsel failed to serve required pleadings, failed to attend a case management conference, and even failed to appear before the District Court for the hearing to show cause why Lal’s suit should not be dismissed.  During all of this, Lal did not know that her counsel was failing to prosecute her case and missing court hearings and deadlines.  Subsequently, the District Court dismissed Lal’s suit for failure to prosecute and entered judgment in favor of the defendants.

    (read more)

    Matthew A. Berliner

  • En Banc Decision in Murdoch Denies Habeas Relief; Kozinski in Scathing Dissent: “Spectacular misscarriage of justice” & “Cases like this are the reason federal habeas exists”

    June 26,2010

    On June 21, 2010 the Ninth Circuit issued its en banc opinion in Murdoch v. Castro, 05-55665,  (Opinion by Judge Tashima; Concurrence by Judge Silverman; Dissent by Chief Judge Kozinski (joined by Judges Fletcher and Wardlaw, and joined in part by Judges Thomas and McKeown; Dissent by Judge Thomas  - all available here).  Judge Tashima's introduction sets the stage for the case:

    Charles Murdoch was convicted of murder in California state court. Before trial, the prosecutor informed the court that a prosecution witness and participant in the crime had written a letter to his attorney  that Murdoch was not involved in the crime and that the witness had been coerced into implicating Murdoch. The state court ruled that Murdoch could not have access to the letter because it was protected under California’s attorney-client privilege.  In order to determine whether Murdoch is entitled to habeas relief, we must decide whether, under “clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), the Confrontation Clause of the Sixth Amendment of the United States Constitution compelled the release of the letter to Murdoch in spite of the attorney-client privilege.
    Ultimately, the Ninth Circuit en banc panel said no, finding no Supreme Court case directly addressing the potential conflict between state-law attorney-client privilege and the Confrontation Clause.

    (read more)

    Wendy McGuire Coats

  • “The Ninth” Publisher & Contributing Authors Named “Rising Stars” 2010 by Southern California Super Lawyers

    June 23,2010

    Publisher Wendy McGuire Coats and Contributing Authors  Brian J. Bergman and  Matthew A. Berliner were named "Rising Stars" 2010 by Southern California Super Lawyers.   Wendy McGuire Coats is a founding partner of McGuire Coats LLP and Publisher of The Ninth.  Brian J. Bergman is an associate with the law firm Bergman & Dacey, Inc.     Matthew A. Berliner is a founder of the law firm Brown, Wegner & Berliner LLP located in Irvine, California.

    Daniel L. Coats

  • 1st Impression: 9th Cir. Holds Restitution May Be Ordered As Part of Supervised Release for “Any Criminal Offense” Including Violations of Internal Revenue Code

     In USA v. Batson(09-50238) (Circuit Judges Canby, Hall, and O'Scannlain, full opinion available here)  the government wins the battle on the issue of the district court's power, but it seems to lose the war on the restitution amount awarded in this case. Question of 1st Impression: Whether federal courts may order restitution as a condition of supervised release for offenses set forth in the Internal Revenue Code? Answer, yes. The Power to Issue Restitution Orders:  Unlike many of their inherent powers (like the power to sanction), a district court's power to order restitution is conferred only by statute.  The VWPA (Victim and Witness Protection Act) and the MVRA (Mandatory Victims Restitution Act) are two such statutes.  The VWPA is discretionary and the MVRA is mandatory if the elements are met, and both acts are tied to violations defined by statute.  Additionally, the Probation Statute (18 U.S.C. § 3563(b)) authorizes courts to order restitution as a condition of probation and 18 U.S.C. § 3583(d) extends this power to supervised release.  This Case: Batson spent 3 years falsifying tax returns and assisting her clients in receiving undeserved tax returns.  She was indicted (1 count conspiracy, 6 counts aiding & assisting in preparing fraudulent tax returns, 2 counts making false statements) and pled guilty to one count of aiding and assisting.  The financial loss caused by this one count is in dispute somewhere between $4,571 and $8,028, but during her plea colloquy Batson stipulated that she prepared false returns totalling $965,673 (at minimum).  Batson was sentenced to 12 months imprisonment and 12 months of supervised release (plus fines and the $100 special assessment).  As for restitution, the governemnt requested and the district court ordered Batson pay restitution in the amount of $176,854 (basically, the amount the government can't get back from Batson's clients).

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    Wendy McGuire Coats

  • Barry Bonds Perjury Trial: Blood/Urine Sample Evidence Out (No Exceptions!); A Reminder of What Deference Looks Like; and What This Means For Bonds’ Trial

    June 16,2010

    USA v. Bonds, 09-10079 (Circuit Judges Reinhardt & Schroeder, Judge Bea in dissent) (full opinion available here). You may or may not know that the government is currently prosecuting Barry Bonds (SF Giants player who hit 71 home runs in 2001 . . . more here) for perjury (lying under oath).  Basically, the government's position is that in 2003 Bonds lied to the grand jury when he swore under oath that he had not taken performance enhancing drugs.  To convict Bonds of perjury, it must prove he lied.  To prove the lie, the government has blood and urine samples and test result log sheets from San Francisco based BALCO Laboratories, Inc. under the name "Barry Bonds" that purportedly show positive test results for performance enhancing drugs.  The government's big hurdle, which it notably failed to clear, is that it must prove that the tested samples BALCO recorded actually came from Barry Bonds.  It's a game of connect the dots:  Barry Bonds' blood/urine . . .to  Anderson . . .  to Valente . . . BALCO samples & tests results.

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    Wendy McGuire Coats

  • Boy Scouts Policy vs. State Constitutional Law

    June 14,2010

    Barnes-Wallace v. City of San Diego, No. 04-55732 (available here) The Ninth Circuit has requested clarification from the California Supreme Court on the No Preference and No Aid Clauses of the California Constitution in connection with policies of The Boy Scouts of America.  This group seems to attract litigation on numerous issues across the country, and Barnes-Wallace deals with a lease between the Boy Scouts and the City of San Diego.  Although federal and state constitutional violations were alleged, the questions certified by the Ninth to the CA SCT are exclusively state constitutional law issues.  Here are the facts....

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    Stevie E. Leahy

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