9th Circuit Recent Opinions

From  February 1, 2012 to February 7, 2012, the Ninth Circuit Court of Appeals issued the opinions summarized below.

(1) Administrative Law: Under the Randolph-Sheppard Act, a state licensing agency has no duty to bring an enforcement action against a federal agency to enforce an arbitration award issued pursuant to 20 U.S.C. § 107d-1(b).


(2) Administrative Law: The United States Forest Service failed to take the requisite “hard look” at environmental consequences in an Environmental Impact Statement because they failed to show why it was not reasonably possible to perform any analysis of those consequences.


(3) Administrative Law: Under the National Environmental Policy Act analysis, analogizing triggering events, comparing critical distinctions, and considering uniquely different circumstances satisfy the requisite “hard look” the Department of Energy must make at the environmental consequences of their actions.


(4) Alternative Dispute Resolution: Review of arbitration awards under arbitration agreements governed by the Federal Arbitration Act is limited to the standards specified in the Act, and awards may be vacation only on grounds listed in Section 10 of the Act; an arbitrator’s written explanation of the rulings need only be sufficient enough to allow for this limited review. Furthermore, an arbitrator’s recognition of applicable law in a written explanation is enough to overcome the allegation that the award should be vacated for manifest disregard of the law.


(5)  Civil Law: Protection of judicial integrity in a proceeding is a compelling interest to be protected in not releasing a recording under seal of trial proceedings.


(6) Civil Law: Roommate selection based on sex, sexual orientation, and familial status does not violate the federal Fair Housing Act or California’s Fair Employment and Housing Act.


(7) Criminal Procedure: Where an initial capital sentence imposes the death penalty and the basis for the initial sentence is later invalidated, the state can seek to reimpose the death penalty on different grounds without violating the Double Jeopardy Clause of the Fifth Amendment.


(8) Constitutional Law: Proposition 8, which defines marriage in California as between a man and a woman, is an unconstitutional violation of Equal Protection.


(9) Evidence: Whenever alienage is an element of a crime, the alleged alien who was the subject of the offense does not need to testify, and a jury can make an inference that the alleged alien was not allowed to enter the country legally based upon the non-availability of the non-testifying witness.


(10) Immigration: An alien may challenge removal under the due process clause when (1) they have exhausted all administrative remedies; (2) they have been deprived of the opportunity for judicial review; and (3) the proceeding was fundamentally unfair.


(11) Immigration: “Where a pregnant mother is persecuted in a manner that materially impedes her ability to provide for the basic needs of her child, where that child’s family has undisputedly suffered severe persecution, and where the newborn child suffers serious deprivations directly attributable not only to those facts, but also to the material ongoing threat of continued persecution of the child and the child’s family, that child may be said to have suffered persecution and therefore be eligible for asylum under the INA.”


(12) Landlord Tenant: A landlord is not an intended third-party beneficiary to a Purchase & Assumption Agreement (P&A), which otherwise, would allow them to sue for breach of contract on an agreement between the Federal Deposit Insurance Corporations (FDIC) and a new mortgage purchaser.


(13) Patents: A companies external design elements are not entitled to trade dress protection unless they can prove that the design does not serve any functional purpose and used only to set their design apart.


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(1) Sauer v. United States Department of Education Date Filed: 2/3/12 Case #: 10-55642, 10-55877 Circuit Judge Ikuta, for the Court; Circuit judges Noonan, and Gould.
Full Text: http://www.ca9.uscourts.gov/datastore/opinions/2012/02/03/10-55642.pdf


California Department of Rehabilitation (“DOR”) and the United States Department of Education (“DOE”) appeal from the district court’s decision enforcing a 2008 arbitration award issued pursuant to 20 U.S.C. § 107d-1(a) of the Randolph-Sheppard Vending Stand Act (“the Act”). Under the Act, state agencies license blind persons to operate vending facilities on federal properties. Section 107d-1(b) of the Act provides that where a state licensing agency finds that federal control of a property fails to comply with the Act, the agency “may file a complaint with the he Secretary of Education who shall convene a panel to arbitrate the dispute.” The issue before the Ninth Circuit was whether the Act requires a state licensing agency to sue a noncomplying federal agency. The Court reviewed de novo, found that it did not, and reversed. The Ninth Circuit examined the plain language of the Act and found, (1) no provision in the Act mentioned judicial enforcement of arbitration awards; (2) that the use of “may” and “shall” in the same provision made it clear the agency had discretion, not the obligation, to pursue arbitration; and (3), though such presumptive discretion “may be rebutted where a substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers … the Act [did] not expressly give state licensing agencies the right, let alone the duty, to bring an action to enforce an arbitration award.” Thus, the Ninth Circuit concluded that the plain language of the statute weighed against interpreting the Act as imposing a duty on state licensing agencies to sue noncompliant federal agencies, and that interpretation otherwise “would be at odds with the Act’s emphasis on cooperation between the states and the federal government.” REVERSED.


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(2) Pacific Rivers Council v. USFS Date Filed: 2/3/12 Case #: 08-17565 Circuit Judge Fletcher for the Court; Circuit Judges Reinhardt and N.R. Smith
Full Text: http://www.ca9.uscourts.gov/datastore/opinions/2012/02/03/08-17565.pdf


This is an appeal of a 2004 decision by the United States Forrest Service (USFS) to amend the Sierra Nevada Forest Plan (The Plan). Pacific Rivers Council (PRC) argued that the 2004 Environmental Impact Statement (2004 EIS) does not sufficiently analyze the impact that the 2004 plan amendments will have on fish and amphibians in violation of the National Environmental Policy Act (NEPA). The Court concluded that the USFS did violate NEPA in their analysis of fish, but not in their analysis of amphibians. The Court based their conclusion on Land Council II, which states, in part, that an agency has acted in an arbitrary and capricious manor when an EIS entirely fails to consider an important aspect of a problem. Prior to the 2004 amendment to the Plan, USFS had previously amended the Plan in 2001. The 2001 EIS offered a detailed analysis of the environmental consequences on fish, while the 2004 EIS had no analysis. USFS argued that the 2004 EIS is sufficient because it is not reasonably possible to provide analysis on individual species because the Plan covers such a large area. USFS also argued that environmental consequences were incorporated by reference. The Court rejected the first argument because the 2004 EIS had extensive analysis of non aquatic species, and the 2001 EIS had extensive analysis on fish, therefore it was reasonably possible that the 2004 EIS should address fish. Next, the Court concludes that the documents incorporated by reference should have been analyzed in the text of the EIS if they were intended to stand as an analysis of environmental consequences. The Court found that the analysis of amphibians in the 2004 EIS, is sufficient to meet the requirements of NEPA. AFFIRMED in part, REVERSED in part, and REMANDED.


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(3) Tri-Valley CARE v. United State Department of Energy Date Filed: 2/7/12 Case #: 10-17636 Circuit Judge Smith M.D. Smith for the Court; Circuit Judge Noonan and Senior District Judge Rakoff
Full Text: http://www.ca9.uscourts.gov/datastore/opinions/2012/02/07/10-17636.pdf


Tri-Valley CAREs challenged the sufficiency of the United States Department of Energy’s (“DOE”) Environmental Assessment (“EA”) of a prospective “biosafety level-3″ facility at the Lawrence Livermore National Laboratory (“LLNL”). The current litigation addressed DOE’s failure to consider the impact of a possible intentional terrorist attack in their EA. The Ninth Circuit previously remanded the case to address this issue, and the district court entered summary judgment in favor of DOE on the grounds that DOE sufficiently revised its Final Revised Environmental Assessment to adequately consider the environmental impact of an intentional terrorist attack on the BSL-3 facility at LLNL. Tri-Valley CAREs appealed the district court decision, petitioning the Court to require the DOE to prepare an Environmental Impact Statement (“EIS”), or revise the EA, due to allegations from their original complaint. The Ninth Circuit found that DOE’s use of the “Maximum Credible Event” centrifuge model is sufficient under National Environmental Policy Act (“NEPA”) and case precedent, because the DOE reasonably justified its selection based upon the record of evidence and additional analysis of site-specific factors. The Ninth Circuit held that the DOE took the requisite “hard look” at the environmental impact of an intentional terrorist attack in the manner required by NEPA, and affirmed the district court’s ruling. Furthermore, the Court held the district court did not abuse its discretion in denying Tri-Valley CARE’s motion to supplement the record. AFFIRMED.


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(4) Biller v. Toyota Motor Corp Date Filed: February 3, 2012 Case #: 11-55587 Circuit Judge Gould for the Court; Circuit Judges Noonan and Ikuta
Full Text: http://www.ca9.uscourts.gov/datastore/opinions/2012/02/03/11-55587.pdf


Former in-house counsel, Dmitrios Biller, entered into a Severance Agreement with his former employer, Toyota Motor Sales (TMS). The Agreement specified that disputes arising under it would be resolved via arbitration, using the Federal Arbitration Act (FAA) as governing law. After an arbitrator awarded liquidated damages, punitive damages, and a permanent injunction in favor of TMS, TMS sought and obtained a confirmation of the award in district court. Biller then appealed the affirmation of the arbitrator’s award, alleging in part that the arbitrator showed a manifest disregard for California law and did not explain his rulings with proper sufficiency so as to allow for judicial review. The Ninth Circuit held that the FAA does not permit review of an arbitration award on the merits, but instead allows for vacatur of an award only on the grounds specified in Section 10 of the act. Thus, the arbitrator’s limited writing was sufficient enough to allow for the limited review available under the FAA. Biller also claimed that the arbitrator showed manifest disregard for the law by not expressly addressing his affirmative defenses of unclean hands and equitable estoppel under California state law. The Ninth Circuit agreed with the district court that the arbitrator’s discussion of the lack of any justification for some of Biller’s unethical actions was “probative that the Arbitrator was aware of the relevant unclean hands law and did not in fact ignore it”, despite the fact that the arbitrator gave no credit to Biller’s evidence of TMS’ allegation of improper conduct. This recognition of the applicable law was enough to show that the arbitrator did not manifestly disregard the law; any manifest disregard of the facts is not enough, alone, to vacate the award. AFFIRMED.


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(5) Perry v. Brown, Jr. Date Filed: 2/2/12 Case #: 11-17255 Circuit Judge Reinhardt for the Court, and Circuit Judges Hawkins and N.R. Smith
Full Text: http://www.ca9.uscourts.gov/datastore/opinions/2012/02/01/1117255.pdf


In 2010, the trial was held regarding the litigation of California’s adoption of a Constitutional Amendment to prohibit same-sex marriage. Prior to the proceedings, the trial judge determined that for satisfaction of the public’s interest in the case, a video feed would be broadcast of the proceedings, accessible in various courthouses and online. At the time of the broadcast, California law allowed this. However, the Supreme Court eventually issued a stay of the broadcast. The first two days of trial were recorded, assuming the stay would be lifted, which it eventually was not. The trial judge then determined that he would continue recording for his benefit in reviewing the trial in chambers. Before closing arguments, the parties were allowed to retain copies of the recordings, under a strict order to return the copies after closing arguments. The Court assumed that the trial recording is subject to the common-law presumption of public access. The Court then reviewed whether there is a sufficiently compelling reason to override this presumption. Proponents relied on the trial judge’s statements that the recordings would not be released or accessible to the public. The Court held that the integrity of the judicial process is a compelling interest that would be harmed by a release of the recording under seal, and the recording cannot be released. REVERSED.


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(6) Fair Housing Council v. Roommate.com, LLC Date Filed: 2/2/12 Case #: 09-55969 Chief Judge Alex Kozinki for the Court; Circuit Judges S. Reinhardt and S. Ikuta
Full Text: http://www.ca9.uscourts.gov/datastore/opinions/2012/02/02/09-55272.pdf


Roommate.com (“Roommate”) offers a service in which persons looking for roommates are matched based on criteria that include each person’s preferences, including a potential roommate’s sex, sexual orientation, and family status. The Fair Housing Councils of San Fernando Valley and San Diego (“FHC’s”) sued Roommate in federal court, claiming that the matching of users based on these criteria violated the federal Fair Housing Act (“FHA”) and the California Fair Employment and Housing Act (“FEHA”). The district court dismissed the claims, finding that Roommate was immune under the federal Communications Decency Act (“CDA”). The 9th Circuit reversed, holding that Roommate was only protected by the CDA for publishing the “Additional Comments” section, but not for its selection process. On remand, the district court held that Roommate had in fact violated the FHA and FEHA because it solicits discriminatory preferences from users. On appeal, the Court found that Roommate did not violate the FHA and FEHA because, 1) the lawmaking bodies did not mean for the FHA to apply to the arrangements between two people sharing the same living space, 2) the Constitutional right to association also implies a right not to associate, especially within a relationship as intimate as between roommates, 3) governmental regulation of roommate selection would involve an intrusion into the home, which enjoys special protection and the center of privacy. Accordingly, the Court vacated the district court’s judgment and remanded for entry of judgment for Roommate. VACATED AND REMANDED IN PART; DISMISSED IN PART.


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(7) Farmer v. McDaniel Date Filed: 2/7/2012 Case #: 10-99017 Circuit Judge Bea for the Court; Circuit Judge Trott and District Judge Pallmeyer
Full Text: http://www.ca9.uscourts.gov/datastore/opinions/2012/02/07/10-99017.pdf


In 1984, a three-judge post-conviction sentencing panel sentenced Robert Farmer to death after finding the existence of two statutory aggravating circumstances based on the commission of the murder in the course of other felonies. The panel’s written decision was silent as to any remaining aggravating circumstances. In 2007, Farmer’s death sentence was vacated following the retroactive application of a Nevada Supreme Court ruling, which found it “unconstitutional to use as an aggravating circumstance the fact that a murder was committed in the course of committing another felony.” Nevada filed an amended notice of intent to seek the death penalty, relying on different aggravating circumstances than those found to exist in the first trial. Farmer moved to strike Nevada’s amended notice, arguing that the three-judge panel had impliedly acquitted him of all other aggravating circumstances, and a retrial on the same aggravating circumstances would violate the Double Jeopardy Clause of the Fifth Amendment. After the Nevada Supreme Court affirmed the trial court’s denial of Farmer’s motion to strike, Farmer filed a habeas corpus petition in federal district court. On appeal, the Ninth Circuit held that Nevada’s attempt to reimpose the death penalty does not violate the Double Jeopardy Clause, because Farmer was not acquitted of a death sentence in his initial capital sentencing proceedings. This is so because the grounds on which Nevada relied in its renewed attempt were “neither accepted nor rejected” in Farmer’s first trial. The Court relied on the U.S. Supreme Court’s holding in Poland v. Arizona: “where an initial sentencer in fact imposes the death penalty, the state can again seek the death penalty on another basis even if the sole basis for the initial death sentence was held invalid.” AFFIRMED.


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(8) Perry v. Brown Date Filed: 2/7/12 Case #: 10-16696 Circuit Judge Renhardt for the court; Circuit Judge Hawkins; Circuit Judge N.R. Smith dissenting
Full Text: http://www.ca9.uscourts.gov/datastore/opinions/2012/02/07/1016696com.pdf


Plaintiffs brought this action challenging California’s constitutional amendment brought by Proposition 8 which defined marriage as being between a man and women. The district court held that by stripping same-sex couples of the right to be ‘married’ while having all of the same rights and privileges of marriage under California’s statutes, Proposition 8 violated the Equal Protection clause of the United States Constitution. The Ninth Circuit held there must be “at least a legitimate reason for the passage of the a law that treats different classes of people differently.” The Court held that there was no legitimate reason the law could have been enacted including those set forth by the proponent of protecting California’s interest in child-rearing, preventing same-sex marriage of being taught in schools, making significant changes to marriage laws without more consideration and caution and protecting religious freedom. The Court found that by stripping same-sex couples of the right to call their unions marriage, the amendment violated the California Constitution and the United States Constitution. The Court also decided the proponents had standing to appeal the district court decision based on California statutory language. AFFIRMED


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(9) United States v. Noriega-Perez Date Filed: 2/1/12 Case #: 10-50501 Circuit Judge: Tallman for the Court; Circuit Judge: Ferdinand F. Fernandez and Partial Concurrence and Partial Dissent by Circuit Judge for the Sixth Circuit.
Full Text: http://www.ca9.uscourts.gov/datastore/opinions/2012/02/01/10-50501.pdf


Noriega was convicted on numerous counts involving his rental of two properties on the United State-Mexico border to an alien smuggling organization for the purposes of concealing and transferring illegal aliens. Immigrations officers raided the properties and apprehended eighteen material witnesses; eight of those witnesses testified at Noreiga’s trial. Noriega appealed, arguing that insufficient evidence linking him to the cross-border transportation of the material witnesses and of the alienage of material witnesses. The Ninth Circuit found that the fact that Noriega lived on the property, was recorded by detectives stating the number of “illegals” that could be housed on the property, and that he erected aluminum siding to obstruct outside view was sufficient evidence to show Noriega was aware that he was renting the property to be used as a “load house” for illegal immigrants. The Court also found that the jury could make a reasonable inference that non-testifying material witnesses lacked permission to enter the country. The Court refused to institute a rule that any time alienage is an element of a crime, the alleged alien who was the subject of the offense must testify. The Court held that forcing every alleged alien to testify would run afoul of the political branches’ authority to regulate immigration. The Court also found that given Noriega’s admissions on tape and the erection of the aluminum fence, a jury could find Noriega was aiding and abetting the illegal transportation of aliens into the United States. AFFIRMED


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(10) United States v. Reyes-Bonilla Date Filed: 2/6/12 Case #: No. 10-50361 Senior Circuit Judge Godwin for the Court; Circuit Judge McLane, and District Judge Cogan
Full Text:  http://www.ca9.uscourts.gov/datastore/opinions/2012/02/06/10-50361.pdf


The U.S. discovered Willis Reyes-Bonilla (Reyes) was in the U.S. illegally and initiated deportation proceedings against him. Reyes signed a waiver admitting to the immigration violation and waived all his statutory rights. He was removed in 2001 and subsequently reentered the U.S. in 2008. He was then charged with violating the 2001 removal order. Reyes challenged the indictment on the basis that the 2001 removal order was invalid because he was never advised of his rights in a language he understood, prejudicing him because he was unable to seek relief under the Convention Against Torture. The district court denied his motion and Reyes appealed to the Ninth Circuit arguing the removal order violated his due process rights. To succeed in a due process challenge, an alien must prove that he (1) exhausted all administrative remedies, (2) the deportation proceeding deprived him of opportunity for judicial review, (3) and the proceeding was fundamentally unfair. The Ninth Circuit found Reyes was exempted from proving he exhausted all administrative remedies because the government did not meet their burden of proving by clear and convincing evidence that Reyes was instructed in a language he understood. By signing the removal waiver without being informed of its contents, the waiver was not “considered or intelligent.” However, Reyes was unable to show he was prejudiced because he failed to demonstrate he had a plausible claim for relief from the 2001 removal order, thus failing to prove the fundamental unfairness of the proceeding. AFFIRMED.


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(11) Mendoza-Pablo v. Holder Date Filed: 2/7/12 Case #: 07-73592 Senior District Judge Rakoff for the Court; Circuit Judge Tashima; and partial concurrence and dissent by Circuit Judge Rawlinson
Full Text: http://www.ca9.uscourts.gov/datastore/opinions/2012/02/07/07-73592.pdf


A member of the Mam Mayan group, Mendoza-Pablo appeals the Immigration Judge and Board of Immigration Appeals’ denials of “his applications for asylum, withholding of removal, and protection under the Convention Against Torture.” The Court remands the BIA’s holding that Mendoza-Pablo was ineligible because he “had not been the victim of past persecution because he was never personally challenged or confronted by any potential persecutor.” Mendoza-Pablo was unborn at the time of his family’s persecution but suffered malnutrition in his infant-hood as a direct result of his family being forced to flee to the mountains. Further, his family’s fear of persecution caused their flight to Mexico, “which in turn inflicted further serious deprivations on” Mendoza-Pablo. Even in the absence of expert testimony, the Court recognizes “the likelihood that these deprivations would have some deleterious and long-lasting effects.” Taken together, the Court finds these facts sufficient to support a finding of past-prosecution despite the indirectness of that persecution on Mendoza-Pablo personally. PETITION GRANTED; REMANDED.


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(12) GECCMC 2005-C1 Plummer Street V. JP Morgan Chase Bank Date Filed: 2/1/12 Case #: 10-56219 Circuit Judges Goodwin, Fletcher, and Rawlinson
Full Text: http://www.ca9.uscourts.gov/datastore/opinions/2012/02/01/10-56219.pdf


After Washington Mutual Bank (WaMu) failed in 2008, their assets and obligations passed to the FDIC. Under the P&A, those obligations were purchased by JP Morgan Chase Bank (Chase). Originally, WaMu was a tenant under a lease of two properties, Plummer and Oakdale in Los Angeles. Through a non judicial foreclosure sale, GECCMC (GE) became the landlord of those leases. Upon assuming these obligations, Chase notified GE’s predecessor in interest that it would not be assuming the Plummer and Oakdale leases. GE filed an administrative claim with FDIC for the repudiation of its leases. The FDIC, within its statutory power to manage a failed bank’s assets, denied those claims. GE brought suite in the California district court for enforcement of its lease agreements. The district court dismissed GE’s claims finding that they were not a party, nor an intended third party beneficiary, to the P&A agreement between the FDIC and Chase. On appeal, the Ninth Circuit affirmed the decision. The landlord is neither a party nor intended third party beneficiary to a P&A contract and has no standing to sue for breach.


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(13) Secalt S.A. v. Wuxi Shenxi Construction Machinery Co. Date Filed: 2/7/12 Case #: No. 10-17007 Circuit Judge McKeown for the Court; Circuit Judges Hawkins and Smith.
Full Text: http://www.ca9.uscourts.gov/datastore/opinions/2012/02/07/10-17007.pdf


Tractel manufactures and sells traction hoists used for commercial building projects and maintenance. Jiangsu, a Chinese competitor, exhibited a similar looking hoist at a trade show. Tractel brought suit claiming that Jiangsu’s hoist infringed the trade dress of their hoist in violation of the Lanham Act and other state laws. The district court granted Jiangsu’ motion for summary judgment and Tractel appealed. In support of their claim, Tractel argued that the exterior appearance of its hoist is nonfunctional and designed solely to set it apart from other competitor hoists. However, the Ninth Circuit found that the exterior design served other functional purposes resulting in superior performance and easy maintenance and was not entitled to trade dress protections, despite Tractel’s design patent. Further, the Court affirmed the district courts finding that Tractel’s continued pursuance of their claims, despite being put on notice of lack of proof, was unreasonable and entitled Jiangsu’s to attorney’s fees under the Lanham Act’s AFFIRMED in part; REVERSED in part; and REMANDED


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