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

Plaintiff was a Syrian national living in California as a legal permanent resident and is now a U.S. citizen. She is not and has never been a Kuwaiti national. In 2014, Plaintiff entered into a written employment contract with the Consulate to work as a secretary. Plaintiff alleges that the Consulate created a hostile work environment by harassing, discriminating, and retaliating against her on the basis of her gender, religion, and Syrian national origin, violated various wage and hour laws, and breached her employment contract. Claiming that she was constructively terminated from her employment, she filed suit.The Ninth Circuit affirmed the district court’s denial of the Consulate’s motion to dismiss. The commercial activity exception to the Foreign Sovereign Immunities Act, 28 U.S.C. 1605(a)(2), applied. The employment of diplomatic, civil service, or military personnel is governmental and the employment of other personnel is commercial unless the foreign state shows that the employee’s duties included “powers peculiar to sovereigns.” The district court properly exercised its discretion in finding that Plaintiff, who was employed as an administrative assistant, was not a civil servant and that her duties did not include “powers peculiar to sovereigns.” View "Mohammad v. General Consulate of the State of Kuwait in Los Angeles" on Justia Law

The Federal Energy Regulatory Commission (FERC) awarded “incentive adders,” upward adjustments to utilities’ rate of return on equity, to three California-based public utilities. FERC regulations allow for incentive adders to induce voluntary membership in independent system operators. The Ninth Circuit previously concluded that FERC improperly awarded incentive adders to PG&E without considering the California Public Utilities Commission’s (CPUC) assertion that PG&E’s membership in the California independent system operator (CAISO) is mandated. The court directed FERC to “inquire into PG&E’s specific circumstances, i.e., whether it could unilaterally leave the C[AISO].” On remand, FERC concluded that membership in CAISO is voluntary.The Ninth Circuit upheld the decision, holding that its previous decision did not resolve whether California law prevented the utilities from leaving CAISO without approval. FERC did not deviate from the mandate on remand. There was no error in FERC’s conclusion that membership in CAISO was voluntary despite a contrary suggestion in a CPUC 1998 Decision. FERC was not required to apply the Erie doctrine and defer to California’s interpretation. The incentive adder and its requirements arose from federal law. The California Supreme Court has not decided whether membership in CAISO is voluntary; no California Code provision mandates CAISO membership, and no case law discusses whether CAISO members must remain such. California courts would not defer to the CPUC’s 1998 Decision because it was inconsistent with the statute. View "California Public Utilities Commission v. Federal Energy Regulatory Commission" on Justia Law

The Ninth Circuit reversed the district court's judgment setting aside a land-exchange agreement between the Secretary of the Interior and King Cove, an Alaska Native village corporation. King Cove seeks to use the land it will obtain in the exchange to build a road through the Izembek National Wildlife Refuge to allow access to the city of Cold Bay.The panel explained that one of the purposes of the Alaska National Interest Lands Conservation Act (ANILCA) is to address the economic and social needs of Alaskans. The panel concluded that the Secretary appropriately weighed those needs against the other statutory purposes in deciding whether to enter the land-exchange agreement. The panel disagreed with the district court's conclusion that the Secretary violated the Administrative Procedure Act by departing from his predecessor's position on the land exchange without adequate explanation. Rather, the panel concluded that the Secretary acknowledged the competing policy considerations and that the prior findings that keeping the area roadless would best protect the habitat and wildlife of the Izembek Refuge. Finally, the panel concluded that the land-exchange agreement is not subject to the special procedures that ANILCA requires for the approval of transportation systems. The panel agreed with the government that the Secretary need not follow the process because 16 U.S.C. 3192(h), the land-exchange provision that he invoked, was not an "applicable law" for purposes of Title XI of ANILCA. View "Friends of Alaska National Wildlife Refuges v. Haaland" on Justia Law

The Ninth Circuit affirmed the district court's grant of summary judgment in favor of the Service in an action challenging the Service's "barred owl removal experiment," which was designed to protect the northern spotted owl, a threatened species under the Endangered Species Act (ESA). The panel held that this experiment will produce a "net conservation benefit" under the plain language of the ESA’s implementing regulations because it allows the agency to obtain critical information to craft a policy to protect threatened or endangered species. The panel also held that the Service did not have to conduct a supplemental environmental impact statement under the National Environmental Policy Act (NEPA) because it had adequately contemplated this experiment in its earlier analysis. Accordingly, the Service complied with both the ESA and NEPA in issuing the permits and safe harbor agreements. View "Friends of Animals v. United States Fish and Wildlife Service" on Justia Law

Canyon Mine is located within the Kaibab National Forest, which has been withdrawn from new mining claims; the withdrawal did not extinguish “valid existing rights.” The Trust challenged the Forest Service’s determination that Energy Fuels holds a valid existing right to operate the uranium mine, alleging that in determining that there were “valuable mineral deposits,” 30 U.S.C. 22, the Service ignored sunk costs. The Ninth Circuit previously held that the Trust had Article III standing.The Ninth Circuit subsequently affirmed the summary judgment rejection of the claim. It was not arbitrary for the Service to ignore costs that have already been incurred and cannot be recovered. Applying Chevron analysis, the court held that the critical term in the Mining Act, “valuable mineral deposits,” was ambiguous. The Department of the Interior’s interpretation of the Act, in which sunk costs are not considered when determining whether a mine is profitable, was permissible and not manifestly contrary to the Act; it was consistent with the prudent person and marketability tests. It is a basic principle of economics that sunk costs should be ignored when making a rational decision about whether to make further expenditures. It was not arbitrary for the Forest Service to rely on the Department's interpretation. View "Grand Canyon Trust v. Provencio" on Justia Law

The "borrower defense" cancellation of federal student loans is allowed in certain cases of school misconduct, 20 U.S.C. 1087e(h). After DeVos became the Secretary of the Department of Education, the Department used a new methodology to decide borrower defense claims. The Department was preliminarily enjoined from using that methodology. From June 2018-December 2019, the Department issued no borrower defense decisions. Individuals with pending applications sued. The parties negotiated a proposed settlement that included an 18-month deadline to resolve outstanding claims. Before the class fairness hearing, the Department sent out form letters denying borrower defense applications at a rate of 89.8%. The district court denied final approval of the settlement and ordered updated written discovery. Plaintiffs took four depositions of Department officials and received about 2,500 documents. In 2021, after DeVos resigned as secretary, the district court authorized class counsel to take her deposition. Plaintiffs then served a subpoena for a nonparty deposition on DeVos under FRCP 45.The Ninth Circuit quashed the subpoena. Compelling the testimony of a cabinet secretary about the actions she took as a leader in the executive branch is allowable only in extraordinary circumstances. The party seeking the deposition must demonstrate agency bad faith and that the information sought from the secretary is essential to the case and cannot be obtained in any other way. There was no indication that DeVos held information that was essential to the case or that it was otherwise unobtainable. View "In re: United States Department of Education" on Justia Law

The U.S. Forest Service proposed “thinning” overcrowded areas in Cuddy Valley within Los Padres National Forest. If some trees are not removed, the forest will face increased risks of wildfires, and insects and diseases may ravage the trees, according to the Forest Service.The Ninth Circuit rejected a challenge by environmental groups. The “CE-6” exemption, 36 C.F.R. 220.6(e)(6) to the National Environmental Policy Act, 42 U.S.C. 4321, unambiguously allows the Forest Service to thin trees, including larger commercially viable ones, to reduce fire hazards without having to conduct an environmental impact statement or an environmental assessment. Its plain language does not limit thinning by tree age, size, or type. Nor is thinning defined to exclude commercial thinning. If the thinning project reduces fire hazards and meets certain other conditions, CE-6 greenlights the project, even if it means felling commercially viable trees. The Forest Service did not act arbitrarily in invoking the CE-6 exemption and did not violate the National Forest Management Act, 16 U.S.C. 1600, which sets certain aesthetic management standards. The Service did not have to explain how the project would meet such standards but did explain how the project area would retain sufficient scenic integrity. View "Mountain Communities for Fire Safety v. Elliott" on Justia Law

Tecuya Ridge, within the Los Padres National Forest, is home to densely populated forest stands that the Forest Service determined to be at risk of destruction by wildfire. The Tecuya Ridge Shaded Fuelbreak Project authorized thinning 1,626 acres of forest, including approximately 1,100 acres within the protected Antimony Inventoried Roadless Area. The Roadless Area Conservation Rule generally prohibits timber cutting, sale, or removal in areas like Antimony, with some exceptions.The Ninth Circuit vacated the approval. The Service’s conclusion that the Project was consistent with the Rule was arbitrary and capricious as was its determination that 21-inch diameter trees were “generally small timber.” The Service’s determination that the Project will “maintain or improve” Antimony’s characteristics was not arbitrary; the Service articulated a satisfactory explanation. The decision to “categorically exclude” the Project from review in an environmental assessment or environmental impact statement, under the National Environmental Policy Act was not arbitrary and capricious. The court agreed that Categorical Exclusion 6 (CE-6) applied and that no extraordinary circumstances prevented CE-6's application to the Project. Consistent with 36 C.F.R. 220.6, the Service analyzed each resource condition that should be considered in determining whether there were extraordinary circumstances related to the proposed action and determined that the Project would have “no significant impact” on each. The decision to locate the Project in the “wildland zone” instead of the “threat zone” was not arbitrary. View "Los Padres ForestWatch v. United States Forest Service" on Justia Law

The district court dismissed a suit alleging that a price plan adopted by Salt River Project Agricultural Improvement and Power District (SRP) unlawfully discriminated against customers with solar-energy systems and was designed to stifle competition in the electricity market.The Ninth Circuit affirmed in part, applying Arizona’s notice-of-claim statute, which provides that persons who have claims against a public entity, such as SRP, must file with the entity a claim containing a specific amount for which the claim can be settled.The district court erred in dismissing plaintiffs’ equal protection claim as barred by Arizona’s two-year statute of limitations. The claim did not accrue when SRP approved the price plan, but rather when plaintiffs received a bill under the new rate structure. The plaintiffs alleged a series of violations, each of which gave rise to a new claim and began a new limitations period.Monopolization and attempted monopolization claims under the Sherman Act were not barred by the filed-rate doctrine, which bars individuals from asserting civil antitrust challenges to an entity’s agency-approved rates. SRP was not entitled to state-action immunity because Arizona had not articulated a policy to displace competition.The Local Government Antitrust Act shielded SRP from federal antitrust damages because SRP is a special functioning governmental unit but the Act does not bar declaratory or injunctive relief. The district court erred in concluding that plaintiffs failed to adequately allege antitrust injury based on the court’s finding that the price plan actually encouraged competition in alternative energy investment. View "Ellis v. Salt River Project Agricultural Improvement and Power District" on Justia Law

An attorney sought guidance on how a physician could administer psilocybin to a terminally ill patient without incurring liability under the Controlled Substances Act (CSA), specifically asking the Drug Enforcement Administration (DEA) how the CSA would accommodate the Right to Try Act (amending the Food, Drug, and Cosmetic Act) to give patients the possibility of access to new investigational drugs under certain circumstances. The DEA responded by identifying the available exemptions in the CSA and indicating that the Right to Try Act did not create any additional exemptions.The Ninth Circuit dismissed a petition for review for lack of jurisdiction, reasoning that DEA’s response was not a final decision of the Attorney General under 21 U.S.C. 877. To be considered final, the agency action must mark the consummation of the agency’s decision-making process and must be one where rights or obligations have been determined, or from which legal consequences flow. The DEA’s response was the sort of advice letter that agencies prepare multiple times a year. There was no indication that the letter represented the consummation of a decision-making process. The letter did not lead to legal consequences for the prescribing physician but only provided guidance about the interaction of the Right to Try Act and the CSA. View "Advanced Integrative Medical Science Institute v. United States Drug Enforcement Administration" on Justia Law