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The Ninth Circuit affirmed the district court's dismissal of an action challenging the constitutionality of California Family Code Section 7962. Section 7962 codified California cases that found gestational surrogacy contracts enforceable. The panel held that this case did not fall within the two limited categories of civil cases that define the scope of Younger abstention. Therefore, the district court erred by abstaining. However, notwithstanding this error, the panel affirmed on issue preclusion grounds the dismissal of the complaint because the California Court of Appeal's decision precluded further litigation of plaintiff's constitutional claims. View "Cook v. Harding" on Justia Law

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Because the text of I.R.C. 6630(d)(1) conditions the tax court’s jurisdiction on the timely filing of a petition for review, the thirty-day deadline in I.R.C. 6330(d)(1) is jurisdictional. The Ninth Circuit affirmed the tax court's dismissal of a petition for review of two Internal Revenue Service Notices of Determination based on lack of jurisdiction. In this case, petitioner mistakenly counted the first day after the date of the IRS's notices as day "zero" for purposes of calculating the 30-day period for filing a petition for review. The panel held that petitioner's failure to meet his deadline divested the tax court of the power to hear his case and foreclosed any argument for equitable tolling. View "Duggan v. CIR" on Justia Law

Posted in: Tax Law

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The Ninth Circuit granted a petition for rehearing, filed an amended opinion reversing the denial of habeas relief challenging petitioner's death sentence, and remanded. The panel held that the Arizona Supreme Court denied petitioner his Eighth Amendment right to individualized sentencing by applying an unconstitutional causal nexus test to his mitigating evidence of a troubled childhood and mental health issues. Such error had a substantial and injurious effect or influence in determining the sentence. The panel denied habeas relief on petitioner's claim that the Arizona courts failed to consider his history of substance abuse as a nonstatutory mitigating factor. Finally, the panel agreed with the district court that petitioner's ineffective assistance of counsel claim was procedurally defaulted because it was fundamentally different from the claim he presented in state court. View "Poyson v. Ryan" on Justia Law

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A trial judge may excuse a juror at any time for any material problem impeding fair deliberations as long as it was not due to the juror's views of the merits of the case. The Ninth Circuit affirmed defendant's convictions and sentence for fraud and conspiracy in connection with a mortgage fraud scheme. The panel held that Juror No. 9 was removed for reasons other than his views on the merits of the case, but rather, because he was physically unwell and could not serve with his fellow jurors. The panel also held that defendant failed to show that the district court committed plain error when it considered evidence for Guidelines-based sentencing purposes which defendant had made no effort to address. View "United States v. Depue" on Justia Law

Posted in: Criminal Law

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A proceeding to revoke supervised release is not a criminal case for purposes of the Fifth Amendment right against self-incrimination. The Ninth Circuit affirmed the district court's judgment revoking defendant's supervised release based on his admissions during mandatory sex-offender treatment. The panel held that the district court did not violate defendant's right against self-incrimination because that right extended only to prohibit the use of an admission in a criminal case. View "United States v. Hulen" on Justia Law

Posted in: Criminal Law

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The Ninth Circuit affirmed the district court's grant of summary judgment for defendants in a class action under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. 227. In this case, plaintiff received a text message from AC Referral, a non-party, that violated the TCPA. Plaintiff claimed that three lenders and two marketing companies ratified the unlawful text messages. The panel held that, although one of the marketing companies, Click Media, had an agency relationship with AC Referral, it was not bound by AC Referral's acts because it lacked knowledge that AC Referral was violating the TCPA and did not have knowledge of facts that would have led a reasonable person to investigate further. Therefore, Click Media could not be deemed to have ratified AC Referral's actions and was not vicariously liable. View "Kristensen v. Credit Payment Services" on Justia Law

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The Migratory Bird Treaty Act (MBTA), 16 U.S.C. 4321 et seq., did not limit the United States government from issuing a permit to remove birds of one species for scientific purposes if its intent was principally to benefit another species. The Ninth Circuit affirmed the district court's grant of summary judgment for the Service in an action challenging a permit allowing the taking of the barred owl. The panel held that the MBTA imposed few substantive conditions itself and delegated to the Secretary of the Interior broad discretion to implement the Act, discretion the Secretary has used to promulgate the regulation at issue that has no text directly supporting Friends' proposed same-species theory. The panel held that the "used for scientific purposes" exception in Article II(A) of the Mexico Convention included taking birds to study whether their absence benefits another protected bird species; even if the canon of noscitur a sociis applied in this case, the panel did not believe that it supported plaintiff's same-species theory; and the Canada, Japan, and Russia Conventions did not support the same-species theory. View "Friends of Animals v. USFWS" on Justia Law

Posted in: Environmental Law

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There is no reason to conclusively presume prejudice when an individual was denied the right to counsel during his initial interaction with DHS officers, provided the individual was able to consult with counsel before the removal order is executed. The Ninth Circuit denied petitions for review of DHS's final administrative order of removal under 8 U.S.C. 1228(b). Assuming that a due process violation occurred when petitioner did not have counsel present at the outset of the removal process, the panel held that petitioner must show that he was prejudiced by the violation. In this case, petitioner failed to show that denial of the right to counsel during his initial interaction with DHS officers prejudiced him. In this case, petitioner has never attempted to contest the charges against him, even after having an opportunity to consult with counsel, so he could not contend that his un-counseled admissions cost him the chance to raise plausible grounds for contesting removal. Nor could he claim prejudice by virtue of his un-counseled waiver of the right to request withholding of removal. View "Gomez-Velazco v. Sessions" on Justia Law

Posted in: Immigration Law

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The Ninth Circuit affirmed the district court's dismissal for lack of jurisdiction of plaintiff's action challenging DHS's denial of I-130 visa petitions. Plaintiff filed petitions seeking Legal Permanent Residence (LPR) status for his non-citizen wife and her three non-citizen children. DHS denied the petitions pursuant to the Adam Walsh Child Protection and Safety Act of 2006 because defendant had been convicted of committing a lewd and lascivious act with a child under the age of fourteen. Because the Adam Walsh Act clearly delineates who may have a petition granted—rather than who may literally file a petition—the panel held that the amended statute applied to petitions that were filed before, but were still pending on, its effective date. Therefore, USCIS correctly applied the Adam Walsh Act in plaintiff's case. The panel also held that applying the Adam Walsh Act to pending petitions did not violate the Ex Post Facto Clause; the panel lacked jurisdiction to review plaintiff's statutory claims concerning the "no risk" determination; and plaintiff's constitutional claims were not colorable. View "Gebhardt v. Nielsen" on Justia Law

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The Ninth Circuit granted CPUC's petition for review of FERC's determination that PG&E was eligible for an incentive adder for remaining a member of the California Independent System Operator Corporation (Cal-ISO) when state law prevented PG&E's departure without authorization. The panel held that FERC's determination that PG&E was entitled to incentive adders for remaining in the Cal-ISO was arbitrary and capricious, because FERC did not reasonably interpret Order 679 as justifying summary grants of adders for remaining in a transmission organization. The panel explained that, because FERC's interpretation was unreasonable, FERC's grants of adders to PG&E were an unexplained departure from longstanding policy. Furthermore, FERC created a generic adder in violation of the order. View "CPUC V. FERC" on Justia Law