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

Plaintiff brought a civil rights suit alleging that he was asked racially and religiously biased questions in a psychological evaluation required for his parole review. He claimed that the psychologists were prejudiced against him as an African-American Muslim man, which influenced their conclusion that Plaintiff presented a “high” risk of future violence. The psychologists contended that they were absolutely immune from suit because they performed a discretionary function integral to the Board of Parole Hearings (“Board”) quasi-judicial decision-making.   The Ninth Circuit affirmed the district court’s denial of absolute immunity to California Board of Parole Hearings psychologists who prepare comprehensive risk assessment reports for the parole board. Applying the functional approach laid out in the watershed case Antoine v. Byers & Anderson, Inc., 508 U.S. 429 (1993), the panel declined to extend absolute immunity in this case. The panel held that the psychologists’ assessments, while informative, were neither binding nor controlling in any way, nor did the psychologists function in a judicial decision-making capacity. Thus, while the psychologists provided a risk level based on their clinical experience, they had no power of decision in the judicial sense; the psychologists were not members of the Board, and the Board made its own determination about an inmate’s current risk of dangerousness if released to the community. The panel did not address whether qualified immunity was available, leaving the question for the district court to consider. View "OMAR GAY V. AMY PARSONS, ET AL" on Justia Law

The Federal Communications Commission (“FCC”) has long monitored local telephone companies’ “access stimulation.” In 2011, the FCC issued rules to address this phenomenon, defining when carriers engage in access stimulation and restricting the rates that they could charge. After local carriers found loopholes in this regulatory system, the FCC revisited and updated these rules, issuing the Updating the Intercarrier Compensation Regime to Eliminate Access Arbitrage (“Access Arbitrage Order”), 34 FCC Rcd. 9035 (2019). Wide Voice, LLC (“Wide Voice”), rearranged its business model and call traffic path in coordination with closely related entities, HD Carrier and Free Conferencing. Wide Voice petitions for review of the FCC’s order, specifically arguing that the FCC unreasonably concluded that it violated Section 201(b) by restructuring its business operations to continue imposing charges that were otherwise prohibited.   The Ninth Circuit denied the petition for review. The panel held that the FCC properly exercised its authority under § 201(b) to hold Wide Voice liable for circumventing its newly adopted rule in the Access Arbitrage Order when the company devised a workaround. Contrary to Wide Voice’s assertions, the FCC need not establish new rules prohibiting the evasion of its existing rules to find a Section 201(b) violation. The panel rejected Wide Voice’s contention that it restructured its business to comply with, rather than evade, the FCC’s new rules. Finally, the panel rejected Wide Voice’s contention that even if the FCC was permitted to find its conduct “unjust and unreasonable,” it did not have fair notice that its practices were unlawful, and therefore the FCC violated its right to due process. View "WIDE VOICE, LLC V. FCC, ET AL" on Justia Law

To comply with their duties under the National Environmental Policy Act (NEPA), the FAA issued an Environmental Assessment (EA) that evaluated the environmental effects of the construction and operation of an Amazon air cargo facility at the San Bernardino International Airport (the “Project”). In evaluating the environmental consequences of the Project, the FAA generally utilized two “study areas” – the General Study Area and the Detailed Study Area. Petitioners are the Center for Community Action and Environmental Justice and others (collectively “CCA”) and the State of California. In attacking the parameters of the study areas, the CCA asserted that the FAA did not conform its study areas to the FAA’s Order 1050.1F Desk Reference.   The Ninth Circuit filed (1) an order amending the opinion initially filed on November 18, 2021, and amended on October 11, 2022; and (2) an amended opinion denying a petition for review challenging the FAA’s Record of Decision, which found no significant environmental impact stemming from the Project. The panel held that the FAA’s nonadherence to the Desk Reference could not alone serve as the basis for holding that the FAA did not take a “hard look” at the environmental consequences of the Project. Instead, the CCA must show that the FAA’s nonadherence to the Desk Reference had some sort of EA significance aside from simply failing to follow certain Desk Reference instructions. The panel held that the CCA had not done so here. The panel rejected Petitioners’ argument that the EA failed to assess whether the Project met California’s greenhouse gas emissions standards. View "CENTER FOR COMMUNITY ACTION, ET AL V. FAA, ET AL" on Justia Law

While at a bar at the U.S. Embassy compound in Baghdad, Iraq, Plaintiff was shoved by an intoxicated co-worker. She was reluctant to report the incident, but she eventually acquiesced to requests of the State Department and her employer. Because of her report, Plaintiff’s employer attempted to transfer her to a different position. After initially refusing the transfer, she was fired. Plaintiff filed suit under the Defense Contractor Whistleblower Protection Act (DCWPA). The district court dismissed her complaint without prejudice, allowing leave to amend.   The Ninth Circuit affirmed the district court’s dismissal of Plaintiff’s action under DCWPA against Valiant Integrated Services, LLC, and The Electronic On-Ramp, Inc. The panel held that to survive a motion to dismiss under the DCWPA, a plaintiff must plausibly allege that: (1) she made a disclosure that she reasonably believed was evidence of a violation related to a Department of Defense contract; and (2) her employer discharged, demoted, or otherwise discriminated against her because of that disclosure. The panel held that Plaintiff did not plausibly allege a reasonable belief that her complaint about the shoving incident encompassed one of the acts described in Section 4701(a)(1)(A)-(C). The panel held that, in the context of a defense contract, a violation of law is related to the contract if it is related to the purpose of the contract or affects the services provided by the defense contractor to the Department of Defense. The panel concluded that, under this standard, Plaintiff’s complaint failed to allege a sufficient nexus between the shove and the Department of Defense-Valiant contract. View "SANA KAPPOUTA V. VALIANT INTEGRATED SERVICES, ET AL" on Justia Law

Section 401 certification obligates any applicant for a federal license or permit to conduct activity that may result in a discharge into the navigable waters of the United States to obtain certification (or waiver of certification) from the state governing the area where a discharge would originate. The Section 401 regulatory scheme remained unchanged until July 2020, when the EPA promulgated CWA Section 401 Certification Rule (“2020 Rule”). Several states, environmental groups, and tribes (“Plaintiffs”) filed lawsuits challenging the 2020 Rule. A different set of states and energy industry groups intervened to defend the 2020 Rule. The EPA publicly announced its intent to revise the 2020 Rule and moved in district court for a remand of the 2020 Rule so that the agency could reconsider it. The district court granted the EPA’s remand motion and granted Plaintiffs’ request for vacatur of the 2020 Rule. Intervenor-Defendants appealed the district court’s order vacating the 2020 Rule.   The Ninth Circuit reversed the district court’s order granting a voluntary remand and vacated an EPA regulation promulgated under the CWA. The panel held that a court granting a voluntary remand lacks authority to also vacate the regulation without first holding it unlawful. The panel exercised its jurisdiction and held that courts may not vacate agency actions in conjunction with granting requests for voluntary remands without first holding the agency actions unlawful. Plaintiffs contended that if voluntary remand before merits determinations existed, then so too must the authority to vacate the challenged authority in the interim. The panel held that federal courts do not have unlimited equitable authority. View "IN RE: AMERICAN RIVERS, ET AL V. AMERICAN PETROLEUM INSTITUTE, ET AL" on Justia Law

Members of the Metlakatlan Indian Community (“the Community”) and their Tsimshian ancestors have inhabited the coast of the Pacific Northwest and fished in its waters. In 1891, Congress passed a statute (the “1891 Act”) recognizing the Community and establishing the Annette Islands Reserve as its reservation. In 2020, in response to Alaska’s attempt to subject the Metlakatlans to its limited entry program, the Community sued Alaskan officials in federal district court. The Community contended that the 1891 Act grants to the Community and its members the right to fish in the off-reservation waters where Community members have traditionally fished. The district court disagreed, holding that the Act provides no such right.   The Ninth Circuit filed (1) an order amending its opinion, denying a petition for panel rehearing, and denying a petition for rehearing en banc; and (2) an amended opinion reversing the district court’s dismissal of the Metlakatlan Indian Community’s suit against Alaskan officials. The panel applied the Indian canon of construction, which required it to construe the 1891 Act liberally in favor of the Community and to infer rights that supported the purpose of the reservation. At issue was the scope of that right. The panel concluded that a central purpose of the reservation, understood in light of the history of the Community, was that the Metlakatlans would continue to support themselves by fishing. The panel, therefore, held that the 1891 Act preserved for the Community and its members an implied right to non-exclusive off-reservation fishing for personal consumption and ceremonial purposes, as well as for commercial purposes. View "METLAKATLA INDIAN COMMUNITY V. MICHAEL DUNLEAVY, ET AL" on Justia Law

The National Labor Relations Board (the Board) petitioned for enforcement of a final order issued against Aakash, Inc. d/b/a Park Central Care and Rehabilitation Center (Aakash). The Board ruled that Aakash had violated Sections 8(a)(5) and (1) of the National Labor Relations Act (the Act), 29 U.S.C. Section 158(a)(5) and (1), by refusing to recognize and bargain with Service Employees International Union, Local 2015 (the Union). Aakash cross-petitioned, admitting that it refused to bargain but asserted that the court should nonetheless vacate the Board’s order.   The Ninth Circuit granted the Board’s petition for enforcement. The panel rejected Aakash’s contentions. The panel held that the President may remove the Board’s General Counsel at any time and for any reason. The panel held that several canons of construction supported their conclusion. Even if history mattered here, past administrations have maintained that the General Counsel was removable at will. Finally, neither of the established two exceptions to the President’s plenary removal power applied here. The panel disagreed with Aakash’s claims that the RNs were supervisors because they held the authority to assign, discipline, and responsibly direct employees, and they exercised that authority using independent judgment. First, Aakash failed to present sufficient evidence to prove that the RNs assigned work using independent judgment within the meaning of 29 U.S.C. Section 152(11). Nor did the RNs discipline employees. The power to issue verbal reprimands or report to higher-ups did not suffice. Finally, Aakash did not prove that the RNs responsibly directed other employees using independent judgment. The panel, therefore, concluded the RNs were not statutory supervisors under the National Labor Relations Act. View "NLRB V. AAKASH, INC." on Justia Law

The U.S. Fish & Wildlife Service (the “Service”) approved the original Grizzly Bear Recovery Plan in 1982 and revised it in 1993. Since 1993, the Service has issued several Plan Supplements that provide habitat-based recovery criteria for identified recovery zones. The district court entered summary judgment against the Center for Biological Diversity (the “Center”) because it found that the Plan was not a “rule” subject to a petition for amendment under 5 U.S.C Section 553(e). It also found that it lacked jurisdiction to review the denial of the petition under the citizen-suit provision of the ESA, 16 U.S.C. Section 1540(g)(1)(C), because the Center did not allege that the Service failed to perform any nondiscretionary duty.   The Ninth Circuit affirmed, on different grounds, the district court’s summary judgment against the Center. The panel affirmed on the ground that Administrative Procedure Act (“APA”) review was not available because, even assuming the Plan was a “rule,” the denial of the Center’s petition was not “final agency action.” Because the Center did not claim that the Service’s denial of its petition was otherwise reviewable by statute, the sole issue is whether the denial of the petition is “final agency action.” Because the term “rule” under the APA is defined broadly, the panel assumed that a recovery plan fit under this broad umbrella. The panel concluded that a decision not to modify a plan was not a final agency action. Because the Center’s suit did not challenge a final agency action, the district court was not authorized to review the denial of the petition under Section 704 of the APA. View "CENTER FOR BIO. DIVERSITY V. DEB HAALAND, ET AL" on Justia Law

The Washington State Health Care Authority (“HCA”) and the Swinomish Indian Tribal Community petition for review of a Center for Medicare and Medicaid Services (“CMS”) decision denying Washington’s request to amend Apple Health, the Washington State Medicaid plan (the “State Plan”). HCA petitioned CMS to amend the State Plan to include dental health aide therapists (“DHATs”) on the list of licensed providers who can be reimbursed through Medicaid. CMS rejected the Amended State Plan on the basis that it violates the Medicaid free choice of providers statute and regulation guaranteeing all Medicaid beneficiaries equal access to qualified healthcare professionals willing to treat them. Petitioners challenged this denial.   The Ninth Circuit granted the petition of review. The panel rejected CMS’s reasoning on the ground that the underlying Washington statute—Wash. Rev. Code Section 70.350.020—did not violate Section 1396(a)(23) because it merely authorized where and how DHATs can practice and did not in any way restrict Medicaid recipients’ ability to obtain service from DHATs relative to non-Medicaid recipients. CMS’s rejection of the Amended State Plan was “not in accordance with law.” 5 U.S.C. Section 706(2)(A). Accordingly, the panel granted the petition for review and remanded to the agency with instructions to approve the Amended State Plan. View "WASHINGTON STATE HEALTH CARE A, ET AL V. CENTERS FOR MEDICARE & MEDICAI, ET AL" on Justia Law

The City of Costa Mesa (“City”) began amending its zoning code to reduce the number and concentration of sober living homes in its residential neighborhoods. Two of its new ordinances—Ordinances 14-13 and 15-11 (“Ordinances”)—made it unlawful to operate sober living homes without a permit. Appellants SoCal Recovery, LLC (“SoCal”) and RAW Recovery, LLC (“RAW”) (together, “Appellants”) operate sober living homes in Costa Mesa, California, for persons recovering from drug and alcohol addiction. Appellants alleged that two new City ordinances and the City’s enforcement practices discriminated against them on the basis of disability under the Fair Housing Act (FHA), the Americans with Disabilities Act (ADA), and the California Fair Employment and Housing Act (FEHA). Granting the City’s motions for summary judgment, the district court found that Appellants did not establish that residents in their sober living homes were actually disabled, or that the City regarded their residents as disabled.   The Ninth Circuit reversed the district court’s summary judgment. The panel held that Appellants and other sober living home operators can satisfy the “actual disability” prong of the ADA, FHA, or FEHA on a collective basis by demonstrating that they serve or intend to serve individuals with actual disabilities; they need not provide individualized evidence of the actual disability of their residents. Rather, they can meet their burden by proffering admissible evidence that they have policies and procedures to ensure that they serve or will serve those with actual disabilities and that they adhere or will adhere to such policies and procedures. prong of the disability definition. View "SOCAL RECOVERY, LLC, ET AL V. CITY OF COSTA MESA, ET AL" on Justia Law