The Ninth Circuit affirmed the district court's dismissal of an action brought by E.V., a civilian on a military base in Japan, seeking to enjoin the release of her mental health records. Applying the framework in Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 (1949), the panel held that sovereign immunity barred E.V.'s non-constitutional claims for injunctive relief because they were considered to be against the government and the government had not waived its immunity. Although E.V.'s constitutional claims were considered to be against Judge Robinson as an individual and were not barred by sovereign immunity, the panel held that E.V.'s constitutional claims must be dismissed on other grounds. View "E. V. v. Robinson" on Justia Law

The Ninth Circuit vacated the district court's order denying defendant's motion seeking discovery on a claim of selective enforcement. Defendant was convicted of conspiracy to distribute cocaine and conspiracy to interfere with commerce by robbery after he was caught in a law enforcement reverse sting operation to rob a fictitious stash house. The panel held that in these stash house reverse-sting cases, claims of selective enforcement are governed by a less rigorous standard than that applied to claims of selective prosecution under United States v. Armstrong, 517 U.S. 456 (1996). The panel held that a defendant need not proffer evidence that similarly-situated individuals of a different race were not investigated or arrested to receive discovery on a selective enforcement claim like the defendant's. Rather, a defendant must have something more than mere speculation to be entitled to discovery, and the district court should use its discretion to allow limited or broad discovery based on the reliability and strength of the defendant's showing. Because the district court applied the wrong legal standard, the panel remanded to the district court to determine in the first instance whether defendant has met his burden. View "United States v. Sellers" on Justia Law

The Ninth Circuit reversed the dismissal of an action alleging California consumer claims against MusclePharm Corporation, a manufacturer of nutritional supplements. The complaint alleged that MusclePharm made false or misleading statements about the protein in one of its products. The Ninth Circuit held that the Food, Drug, and Cosmetic Act (FDCA) and its implementing regulations concerned only the calculation and disclosure of protein amount; the FDCA preempted a state-law misbranding theory premised on the supplement's use of nitrogen-spiking agents to inflate the measurement of protein for the nutrition panel; but the FDCA did not preempt a state-law misbranding theory premised on the label's allegedly false or misleading implication that the supplement's protein came entirely from two specifically named, genuine protein sources. In this case, plaintiff's claims were not preempted to the extent they arose under this theory. View "Durnford v. MusclePharm Corp." on Justia Law

The Ninth Circuit affirmed the district court's grant of summary judgment for the SEC on its claims that defendant violated federal securities laws. Having considered the records in the criminal and civil proceedings in light of the relevant Restatement factors, the panel held that defendant's conviction determined the identical issues the SEC was required to prove to establish defendant's liability for securities fraud. Therefore, the district court did not err in entering summary judgment based on the preclusive effect of defendant's conviction. The panel rejected defendant's arguments to the contrary, and all pending motions were denied as moot. View "Securities and Exchange Commission v. Stein" on Justia Law

Under 46 U.S.C. 31342(a), the bunker supplier would be entitled to a maritime lien if it provided necessaries to a vessel on the order of the owner or a person authorized by the owner. The Ninth Circuit affirmed the district court's grant of summary judgment against Bunker Holdings, a supplier of bunkers (marine fuel) in the supplier's in rem action for a maritime lien against a container ship. The panel held that, under United States law, Bunker Holdings was not entitled to a maritime lien, because it did not provide the bunkers on the order of the owner or a person authorized by the owner of the vessel. View "Bunker Holdings, Ltd. v. Yang Ming Liberia Corp." on Justia Law

The Ninth Circuit affirmed Defendant Gonzalez, Luviano, and Ayala's convictions and sentences for conspiracy to deprive a visitor to the Los Angeles County Men's Central Jail of his civil rights in violation of 18 U.S.C. 241; violating his civil rights in violation of 18 U.S.C. 242; and falsifying reports to obstruct an investigation in violation of 18 U.S.C. 1519. Gonzalez was a sergeant with the LA County Sheriff's Department and the other two defendants were deputies under his supervision. A jury found defendants guilty of violating the visitor's civil rights and falsifying reports to conceal the wrongdoing. The panel held that there was sufficient evidence to convict Gonzalez and Ayala of conspiracy under section 241 and for the substantive offense of willfully depriving the visitor of his right to be free from the use of excessive force; the evidence was sufficient to convict Ayala and Luviano for falsifying reports under section 1519; defendants' challenge to the district court's denial of their request to dismiss a juror was rejected; there was no plain error in the jury instructions; the government did not commit misconduct during closing argument; and Ayala's challenge to her sentence was rejected. View "United States v. Gonzalez" on Justia Law

Federal Rule of Civil Procedure 60(d) is subject to the certificate of appealability requirement in 28 U.S.C. 2253(c)(1). The Ninth Circuit denied petitioner's request for a certificate of appealability (COA) to appeal the district court's denial of his motion under Federal Rule of Civil Procedure 60(d)(3). Petitioner alleged that the district attorney who secured his conviction and death sentence made false sworn statements during the federal habeas proceedings, and that these statements were part of a larger scheme involving assignment of inmate informants to cells next to defendants incarcerated in Orange County, California, in hopes of obtaining incriminating admissions. The panel held that, although a COA was required in this case, petitioner was not entitled to one because regardless of how the prosecution obtained the informants' testimony or later explained its tactics to the district court, the evidence itself was not material to petitioner's conviction and sentence. View "Payton v. Davis" on Justia Law

Plaintiff filed suit against a police officer and a towing company after the officer seized plaintiff's truck on the Lummi reservation. Plaintiff was stopped by Lummi police and marijuana was found in his truck. The officer cited a violation of tribal drug laws and issued a notice of forfeiture and took possession of the truck. The Ninth Circuit affirmed the district court's grant of summary judgment against plaintiff because plaintiff failed to exhaust his tribal remedies against the towing company. Applying principles of comity, the panel held that the Lummi Tribal Court must be given the opportunity to first address the question of whether tribal jurisdiction exists. The panel held that the district court properly substituted the United States as a party for the tribal police officer pursuant to the Westfall Act, and that plaintiff failed to exhaust his administrative remedies against the United States pursuant to the two-step test in Shirk v. U.S. ex rel. Dep't of Interior, 773 F.3d 999, 1006 (9th Cir. 2014), which determined whether a tribal employee could be deemed a federal Bureau of Indian Affairs employee for the purposes of Federal Tort Claims Act liability. Finally, the panel vacated the district court's dismissal and remanded with instructions to dismiss the action without prejudice to refiling after plaintiff has exhausted the appropriate remedies. View "Wilson v. Horton's Towing" on Justia Law

FDA trans fat regulations governing the contents of the Nutrition Facts Panel did not preempt California's unfair competition laws proscribing false or misleading advertising elsewhere on a food product's label. The Ninth Circuit reversed the district court's dismissal of a putative consumer class action alleging that The Kroger Company sold Kroger Bread Crumbs that included misleading labels in violation of California law. The panel held that plaintiff had standing to challenge the legitimacy of defendant's product advertising on the face of the label that it contained "0g Trans Fat per serving." The panel took the occasion to reinforce and apply it's holding in Reid v. Johnson & Johnson,780 F.3d 952, 960 (9th Cir. 2015), that a requirement to state certain facts in the nutrition label was not a license to make that statement elsewhere on the product. The panel also held that plaintiff's labeling claims were not preempted because the FDA regulations did not authorize the contested statements. View "Hawkins v. The Kroger Co." on Justia Law

The Ninth Circuit vacated defendant's 20 month sentence imposed after revocation of supervised release. In this case, in its order sentencing defendant, the district court relied on the probation officer's confidential sentencing recommendation, which included factual information that had not been disclosed to defendant and to which she had no opportunity to respond before her sentence was imposed. The panel took the opportunity to address the procedure employed by the district court, holding that even if the defendant is given an opportunity to appear and speak before the magistrate judge, the district court must provide the defendant an additional opportunity before the actual sentence is imposed. In this case, defendant's failure to obtain a hearing before the district court by objecting to the magistrate judge's finding and recommendation did not constitute an explicit waiver of her right to be present and allocute at the imposition of her sentence. Therefore, the panel remanded for resentencing. View "United States v. Gray" on Justia Law