Justia U.S. 9th Circuit Court of Appeals Opinion Summaries

Petitioners sought review of the EPA's Risk Evaluation Rule establishing a process to evaluate the health and environmental risks of chemical substances. The Rule was promulgated by the EPA under the Toxic Substances Control Act (TSCA). The Ninth Circuit held that it lacked jurisdiction to review petitioners' challenge to provisions of the Rule relating to the process by which EPA will conduct risk determinations. The panel explained that the challenge was not justiciable where petitioners' interpretation of what EPA intended to do and the resulting theory of injury were too speculative. In regard to petitioners' contention that the Rule contravenes TSCA's requirement that EPA consider all of a chemical's conditions of use when conducting a risk evaluation, the panel held that the challenged preambular language was not final agency action and not reviewable under the Administrative Procedure Act. The panel held that challenges to specific provisions of the Rule were justiciable, but they failed on the merits because the provisions that petitioners point to did not in fact assert discretion to exclude conditions of use from evaluation. Finally, the panel held that EPA's exclusion of legacy uses and associated disposals contradicted TSCA's plain language, but that EPA's exclusion of legacy disposals did not. Accordingly, the panel dismissed in part, granted in part, and denied in part. View "Safer Chemicals, Healthy Families v. EPA" on Justia Law

The Ninth Circuit reversed the district court's dismissal of an action alleging that the FAA wrongfully terminated plaintiff. Plaintiff filed her action in the district court within the 30-day statutory limitations period, but she mistakenly named only the FAA and her former supervisor as defendants. Because plaintiff's action alleged claims of discrimination under Title VII of the Civil Rights Act of 1964, she should have named the head of the executive agency to which the FAA belonged, Secretary of Transportation Elaine Chao. After the statute of limitations had expired, the FAA moved to dismiss and Secretary Chao then filed her own motion to dismiss. The Ninth Circuit held that plaintiff was entitled to relation back under Federal Rule of Civil Procedure 15(c)(2). The panel held that the district court adopted an overly technical interpretation of the term "process" as used in Rule 15(c)(2). Rather, the panel held that the notice-giving function of "process" under Rule 15(c)(2) was accomplished whether or not the summons accompanying the complaint was signed by the clerk of court. Furthermore, the requirements for relation back were met here where both the United States Attorney and the Attorney General were sufficiently notified of the action within Federal Rule of Civil Procedure 4(m)'s 90-day period. Accordingly, the panel remanded for further proceedings. View "Silbaugh v. Chao" on Justia Law

8 U.S.C. 1231(a)(5) bars reopening a removal order that has been reinstated following an alien's unlawful reentry into the United States. Petitioner filed a motion to reopen his 2008 removal proceeding, which the IJ denied. The BIA then denied as moot petitioner's requests for equitable tolling and sua sponte reopening and dismissed his appeal. The Ninth Circuit held that, because petitioner's 2008 removal order has been reinstated, the BIA properly concluded that section 1231(a)(5) deprived it of jurisdiction to entertain his motion to reopen. The panel explained that Morales-Izquierdo v. Gonzales, which stated that reinstatement creates no new obstacles to attacking the validity of a prior removal order, and Miller v Sessions, which held that an individual placed in reinstatement proceedings retains the right conferred by section 1229a(b)(5)(C)(ii), to seek rescission of an in absentia order, were materially distinguishable from petitioner's case. Finally, the panel rejected petitioner's claim that incompetence raised questions similar to abstentia, and noted that even this harsher legal regime offered avenues of relief. Accordingly, the court denied the petition for review of the BIA's decision. View "Padilla Cuenca v. Barr" on Justia Law

The en banc court dismissed an appeal from the district court's grant of summary judgment for plaintiffs in an action challenging Nevada Senate Bill 223. SB 223 amended state vicarious liability and lien collection laws to impose certain administrative requirements on labor union trusts when they pursue debt collection on behalf of union members. While this appeal was pending, the Nevada legislature repealed SB 223 and replaced it with SB 338, with the specific intent to avoid the Employee Retirement Income Security Act (ERISA) preemption issues of SB 223. The en banc court joined other circuits and held that the repeal, amendment, or expiration of legislation creates a presumption that an action challenging the legislation is moot, unless there is a reasonable expectation that the legislature is likely to enact the same or substantially similar legislation in the future. Applying these principles in this case, the en banc court held that the action was moot where no live controversy remained. Accordingly, the en banc court remanded with instructions to vacate the judgment and dismiss the complaint. View "Board of Trustees of the Glazing Health and Welfare Trust v. Chambers" on Justia Law

The Ninth Circuit affirmed defendant's conviction for distribution and possession of material involving the sexual exploitation of minors. Because there was no physical intrusion into defendant's residence when FBI agents used wireless tracking software to detect the signal strength of the address of defendant's wireless device, the panel applied the Katz test in holding that the agents did not engage in a search under the Fourth Amendment. The panel held that defendant lacked any expectation of privacy in the emission of the signal strength of the MAC address emanating from outside his apartment. Furthermore, even if defendant harbored a subjective expectation of privacy, that expectation was not one society was prepared to recognize as reasonable. The panel held that the district court did not err in denying defendant’s request for a Franks hearing, because defendant did not present any evidence that the agent acted knowingly, intentionally, or with reckless disregard for the truth in preparing the affidavit. The court also held that none of the alleged false statements or omissions materially affected the probable cause determination. View "United States v. Norris" on Justia Law

The Ninth Circuit dismissed defendant's appeal of the district court's order imposing a probation condition requiring her to register as a sex offender pursuant to the Sex Offender Notification and Registration Act (SORNA). The panel held that the text and structure of SORNA's residual clause make it clear the clause requires the application of a noncategorical approach to determine whether a conviction is for an offense involving "any conduct that by its nature is a sex offense against a minor." In this case, the record supported the district court's determination that defendant committed a "sex offense" as defined by SORNA and thus she was required to register as a sex offender under that law. The panel stated that defendant had adequate notice; the district court did not delegate the Article III judicial power in imposing the sentence; her sentence was legally imposed; and the appellate waiver in her plea agreement was enforceable. View "United States v. Dailey" on Justia Law

The Ninth Circuit affirmed defendant's conviction for attempted transport of aliens and rejected his claim of prosecutorial misconduct. Specifically, defendant alleged that the prosecution committed misconduct by introducing evidence of, and commenting on, his post-arrest silence at trial. However, the panel held that defendant was not silent in response to an agent's questioning on the topic of his coconspirators, and it was not error for the prosecution to introduce evidence of, and comment on, that part of the interrogation including argument characterizing defendant as being evasive about other people involved in smuggling. Therefore, the prosecution properly relied on admissible evidence to rebut the theory that defendant had always intended to turn aliens he picked up over to border patrol. View "United States v. Garcia-Morales" on Justia Law

A consumer suffers a concrete injury in fact when a third-party obtains her credit report for a purpose not authorized by the Fair Credit Reporting Act (FCRA); a consumer-plaintiff need allege only that her credit report was obtained for a purpose not authorized by the statute to survive a motion to dismiss; and the defendant has the burden of pleading it obtained the report for an authorized purpose. The Ninth Circuit reversed the district court's dismissal of plaintiff's claim under the FCRA for lack of standing and failure to state a claim. The panel held that plaintiff pleaded facts sufficient to give rise to a reasonable inference that the Bank obtained her credit report for an unauthorized purpose. In this case, she pleaded that she did not have a credit relationship with the Bank of the kind specified in 15 U.S.C. 1681b(a)(3)(A)–(F), the Bank submitted numerous credit report inquires to Experian, and plaintiff put forth factual assertions which negative each permissible purpose for which Capital One could have obtained her credit report and for which she could possibly have personal knowledge. View "Nayab v. Capital One Bank" on Justia Law

The Ninth Circuit affirmed the district court's grant of a preliminary injunction against DOJ's use of the notice and access conditions imposed on recipients of Edward Byrne Memorial Justice Assistance Grant Program formula grants. The panel held that DOJ lacked statutory authority to require recipients of the grant to comply with DHS requests for notice of a detained alien's release date and time and to allow DHS agents access to detained aliens upon request. The panel held that DOJ lacked statutory authority to the notice and access conditions -- which were not special conditions nor were they listed among the statutorily recognized purposes of a Byrne JAG award -- under section 10102(a)(6) of the Violence Against Women and Department of Justice Act of 2005. The panel rejected DOJ's argument that the notice and access conditions were further supported by provisions in the Byrne JAG statute that authorize the Attorney General to obtain certain information and require coordination with agencies. View "Los Angeles v. Barr" on Justia Law

The Ninth Circuit granted the petition for review of the BIA's denial of two motions to reopen petitioner's removal proceedings. Petitioner sought to reopen her removal proceedings after an IJ issued an in absentia removal order when she failed to appear at an immigration hearing. The panel held that it had jurisdiction over petitioner's case because, absent any prejudice to the Government, a premature petition for review of an immigration order may ripen upon final disposition of the case by the BIA. On the merits, the panel held that the BIA abused its discretion in denying the appeal of a motion to reopen, where the IJ in the underlying removal proceeding ordered petitioner removable in absentia on the basis of an amended notice to appear. In this case, the in absentia removal order was not supported by substantial evidence because the record provided no evidence of proper service of the amended notice to appear, as required by due process, and the IJ ordered petitioner removed based on admissions to the charges for which she did not receive notice. View "Diaz Martinez v. Barr" on Justia Law