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

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

In 2018, the FCC stopped treating broadband internet services as “telecommunications services” subject to relatively comprehensive, common-carrier regulation under Title II of the Communications Act, and classified them under Title I as lightly regulated “information services,” with the result of terminating federal net neutrality rules. Trade associations sought an injunction to prevent the California Attorney General from enforcing SB-822, which essentially codified the rescinded federal net neutrality rules, limited to broadband internet services provided to California customers.The district court concluded there was no federal preemption. The Ninth Circuit affirmed the denial of a preliminary injunction against enforcement of the California law. The court cited a 2019 D.C. Circuit decision, upholding the FCC’s 2018 reclassification but striking an order preempting state net neutrality rules. The court rejected arguments that SB-822 nevertheless was preempted because it conflicted with the policy underlying the reclassification and with the Communications Act or because federal law occupies the field of interstate services. Only the invocation of federal regulatory authority can preempt state regulatory authority; by classifying broadband internet services as information services, the FCC no longer had the authority to regulate in the same manner that it did when these services were classified as telecommunications services. The FCC, therefore, could not preempt state action, like SB-822, that protects net neutrality. SB-822 did not conflict with the Communications Act, which only limits the FCC’s regulatory authority. The field preemption argument was foreclosed by case law. View "ACA Connects v. Bonta" on Justia Law

Childs leased military family housing at Naval Amphibious Base Coronado, which was owned by SDFH, a public-private venture created by statute, in which the U.S. Navy is a minority LLC member. Lincoln managed the property. Childs reported water and mold problems to SDFH and Lincoln. The problems were not resolved. SDFH and Lincoln moved to dismiss Childs's subsequent lawsuit for lack of subject-matter jurisdiction, arguing they were government contractors acting at the direction of the federal government, and therefore had derivative sovereign immunity. The district court denied their motion.The Ninth Circuit dismissed an appeal for lack of appellate jurisdiction. The district court’s order was not immediately appealable under the collateral order doctrine, under which an order that does not terminate the litigation is nonetheless treated as final if it conclusively determines the disputed question, resolves an important issue completely separate from the merits of the action, and is effectively unreviewable on appeal from a final judgment. While the first two prongs were satisfied, the denial of derivative sovereign immunity was not effectively unreviewable on appeal from a final judgment because denying an immediate appeal would not imperil a substantial public interest. The public interest underlying derivative sovereign immunity is extending the federal government’s immunity from liability, in narrow circumstances, to government agents carrying out the federal government’s directions. That interest could be vindicated after trial. View "Childs v. San Diego Family Housing LLC" on Justia Law

Bird and other blind vendors filed a formal complaint with Oregon Commission for the Blind (OCB) seeking arbitration, prospective relief, and attorney’s fees as a consequence of OCB’s alleged mishandling of vending contracts and representation of blind vendors’ interests. The arbitration panel denied relief. The district court held that sovereign immunity did not apply to an arbitration panel’s decision under the Randolph-Sheppard Act (RSA), which creates a cooperative federal-state program that gives preference to blind applicants for vending licenses at federal facilities, 20 U.S.C. 107, and that the Eleventh Amendment did not protect OCB from liability for damages. The Ninth Circuit reversed. Neither the RSA nor the parties’ operating agreements unequivocally waived a state’s sovereign immunity from liability for monetary damages, attorney’s fees, or costs. Citing the Supreme Court’s 2011 "Sossamon" decision, the court rejected a “constructive waiver” argument, reasoning that a waiver of sovereign immunity must be explicit. An agreement to arbitrate all disputes simply did not unequivocally waive sovereign immunity from liability for monetary damages. The operating agreements incorporated the text of the RSA and contained no express waiver of immunity from money damages. Because no provision of the RSA or the operating agreements provided for attorney’s fees, Bird was not entitled to attorney’s fees. View "Bird v. Oregon Commission for the Blind" on Justia Law

The Ninth Circuit reversed the district court's denial, as untimely, Volkswagen's motion to intervene in a Freedom of Information Act (FOIA) suit regarding millions of VW's documents. This case stems from the so-called "Dieselgate" emissions scandal.The panel considered whether VW's motion to intervene as of right was timely and applied the timeliness factors, concluding that the short delay and reasons for the delay weigh in favor of timeliness, rather than against it. Furthermore, the court identified no prejudice stemming from the timing of VW's motion and the district court failed to adequately explain why a motion to intervene filed at this stage was unreasonably late. Therefore, the panel held that VW's motion to intervene was timely. The panel also concluded that VW has also met all the requirements to intervene as of right under Federal Rule of Civil Procedure 24(a). Accordingly, the court ordered the district court on remand to grant the motion and permit the immediate intervention of VW into these proceedings. View "Kalbers v. United States Department of Justice" on Justia Law

The Ninth Circuit affirmed the district court's dismissal based on lack of subject matter jurisdiction of a Federal Tort Claims Act (FTCA) case brought by landowners, seeking damages when their property was intentionally burned by a Type 2 Incident Management Team, convened by the U.S. Forest Service, during a controlled burnout performed as part of the fire suppression effort to combat the 2015 North Star Fire in Washington.The panel concluded that the government has met its burden of establishing that plaintiffs' claims fall within the scope of the discretionary function exception. Accepting as true the factual allegations contained in the complaint, the panel concluded as a matter of law that a land management employee's communication with Plaintiff Willard was based upon the exercise or performance of choosing how to organize and conduct fire suppression operations, which undisputedly requires the exercise of judgment grounded in social, economic, or political policy. Furthermore, these claims regarding the employee's communication with Willard are independently barred by the FTCA's misrepresentation exception. The court also held that the district court did not make improper factual findings in resolving the Federal Rule of Civil Procedure 12(b)(1) motion and did not abuse its discretion by denying additional jurisdictional discovery. View "Cruz Esquivel v. United States" on Justia Law

The EEOC concluded, under the Age Discrimination in Employment Act (ADEA), that the Army had unlawfully discriminated against Plaskett when it failed to rehire him for a civilian position, awarded Plaskett reinstatement and backpay, and ordered the Army to pay him sanctions based on the Army’s failure to comply with discovery obligations during administrative proceedings. The Army refused to pay the sanctions award, citing sovereign immunity. Although the Army agreed to hire Plaskett and paid him backpay, Plaskett claimed that the Army owed him additional backpay and filed suit, arguing that the Army’s nondiscretionary duty to pay these sums was enforceable under the Mandamus Act, 28 U.S.C. 1361, and the Administrative Procedure Act (APA), 5 U.S.C. 706(1).The Ninth Circuit affirmed the dismissal of the action for lack of jurisdiction. Regardless of whether the claim was viewed under the Mandamus Act or under the APA, Plaskett was required to plead that the Army had a clear, certain, and mandatory duty. The claim to additional backpay rested on an EEOC decision that, on its face. expressed uncertainty as to what amount of additional backpay might be due. The complaint failed to plead sufficient facts to show that a certain amount of additional backpay was now clearly owed. The ADEA did not include a sufficient waiver of the government’s immunity against monetary litigation sanctions with respect to the sanctions award. View "Plaskett v. Wormuth" on Justia Law

Tan operates businesses that import agricultural merchandise. The director of a U.S. Customs and Border Protection section that specializes in agricultural imports served Tan with an administrative summons to compel him to provide testimony. Tan refused to appear. The government filed an enforcement petition in the district court, 19 U.S.C. 1510. Tan argued that the statute's requirement that the government must provide “reasonable notice” when issuing an administrative summons for testimony required the government to provide a notice that described with “reasonable probability” the subjects about which it intended to question the summoned person.The Ninth Circuit affirmed the enforcement order. The statute's requirement that records be described “with reasonable specificity” only applies when the summons required the production of records. The court distinguished Fed. R. Civ. P. 30(b)(6), which allows a party to notice the deposition of a corporation and to list proposed areas of inquiry with “reasonable particularity.” Customs supported its position with a sworn declaration, on personal knowledge, from the director of the Customs section that covers agricultural imports and complied with all statutory criteria, including personal service, and details concerning the date, time, and location of the interview. The court rejected Tan’s argument that the declaration contained too little detail to permit the district court to assess compliance. View "United States v. Tan" on Justia Law

In 1993, the County and the Orange County Employee Retirement System (OCERS) entered into a Memorandum of Understanding (MOU), allowing the County to access surplus investment earnings controlled by OCERS and depositing a portion of the surplus into an account to pay for county retirees' health insurance. The county adopted the Retiree Medical Plan, funded by those investment earnings and mandatory employee deductions. The Plan explicitly provided that it did not create any vested rights. The labor unions then entered into MOUs, requiring the county to administer the Plan and that retirees receive a Medical Insurance Grant. In 1993-2007, retired employees received a monthly grant benefit to defray the cost of health insurance. In 2004, the county negotiated with its unions to restructure the underfunded program, reducing benefits for retirees.Plaintiffs filed suit. The Ninth Circuit affirmed summary judgment in favor of the county. The 1993 Plan explicitly provided that it did not create any vested right to benefits. The Plan was adopted by resolution and became law with respect to Grant Benefits, part of the MOUs. The MOUs expired on their own terms by a specific date. Absent express language providing that the Grant Benefits vested, the right to the benefits expired when the MOUs expired. The Plan was not unilaterally imposed on the unions and their employees without collective bargaining; the unions executed MOUs adopting the Plan. The court rejected an assertion that the Grant Benefit was deferred compensation and vested upon retirement, similar to pension benefits. View "Harris v. County of Orange" on Justia Law

The district court dismissed a putative class action challenge to ConAgra’s poultry labels and its website advertising, alleging that ConAgra falsely advertised its frozen chicken products as natural and preservative-free, when in fact they contain synthetic ingredients. The court found the claims preempted by the federal Poultry Products Inspection Act (PPIA), 21 U.S.C. 467e, under which the U.S. Department of Agriculture’s Food Safety and Inspection Service’s (FSIS) had approved ConAgra’s poultry labels.The Ninth Circuit reversed in part; the mere existence of the label was insufficient to establish that it was reviewed and approved by FSIS. Preemption is an affirmative defense, and when the parties dispute whether review occurred at all, the defendant must produce evidence that the label was reviewed and approved by FSIS. If the evidence on remand shows that ConAgra’s label was approved by FSIS, then the claims are preempted. The plaintiff may not assert that FSIS’s approval decision was wrong. ConAgra’s website representations were not reviewed by FSIS. The label and the website were not materially identical. A challenge to that part of the website’s representation that was materially different from the representations on the label is not preempted. The court rejected an argument under the primary jurisdiction doctrine, a prudential doctrine under which courts may determine that the initial decision-making responsibility should be performed by the relevant agency rather than the courts. View "Cohen v. ConAgra Brands, Inc." on Justia Law