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

The district court certified two nationwide classes in an action under the Telephone Consumer Protection Act. Moser, a resident of California, sued the successor of HII, alleging that HII was responsible for unwanted sales calls that violated the TCPA. HII was incorporated in Delaware and represented that its principal place of business was Florida. The district court had specific personal jurisdiction over Moser’s own claims against HII but HII argued that it lacked personal jurisdiction over the claims of non-California plaintiffs under the Supreme Court’s 2017 “Bristol-Myers” decision. The district court concluded that HII had waived its personal jurisdiction defense by not raising it at the motion to dismiss stage.The Ninth Circuit vacated, first holding that it had jurisdiction under Rule 23(f) to review the personal jurisdiction and waiver issues. Agreeing with the Fifth and D.C. Circuits, the court held that HII had not waived its personal jurisdiction objection to class certification by failing to assert the defense at the Rule 12 motion to dismiss stage. At the motion to dismiss stage, lack of personal jurisdiction over unnamed, non-resident putative class members was not an ”available” Rule 12(b) defense. View "Moser v. Benfytt, Inc." on Justia Law

The Snoqualmie Indian Tribe and the Samish Indian Nation have been disputing the Treaty of Point Elliott for decades. The Snoqualmie sought a declaration that it is a signatory to the Treaty and that its reserved off-reservation hunting and gathering rights under the Treaty continue. Prior litigation has involved fishing rights. The Ninth Circuit affirmed the dismissal of the suit on issue preclusion grounds. Prior appeals, 40 years ago, resolved that the Snoqualmie is not a treaty tribe under the Treaty. Treaty-tribe status is established when a group of Indians is “descended from a treaty signatory” and has “maintained an organized tribal structure.” The Snoqualmie Tribe, though descended from a treaty-signatory tribe, has not maintained an organized tribal structure and is not entitled to exercise rights under the Treaty because it lacks treaty-tribe status. View "Snoqualmie Indian Tribe v. Washingtonx" on Justia Law

The Army Corps of Engineers proposed the dredging of San Francisco Bay’s 11 navigational channels during and after 2017. The San Francisco Bay Conservation and Development Commission and the San Francisco Regional Water Control Board both approved the proposals subject to certain conditions. The Commission alleged that the Corps’ failure to comply with certain conditions violated the Coastal Zone Management Act (CZMA), 16 U.S.C. 1452(1). An environmental nonprofit organization intervened, contending that the Corps also violated the Clean Water Act, 33 U.S.C. 1311(a), 1341(a)(1). The Commission sought a commitment from the Corps regarding what to do with the dredged material; in order to protect imperiled native fish, the Commission and Board sought to limit the Corps’ use of a certain dredging method (hydraulic dredging) in two specific Bay Channels.The Ninth Circuit affirmed the district court in favor of the Corps. The condition about where to dispose of dredged material was not itself an enforceable policy under the CZMA and its implementing regulations, nor was it tied to any enforceable policy as contemplated by those regulations. The Corps was therefore not obligated to comply with that regulation. The Corps’ final 2017 plan complied with the express terms of the condition limiting the Corps’ hydraulic dredging in two particular channels. View "San Francisco Bay Conservation and Development Commission v. United States Army Corps of Engineers" on Justia Law

L.B. lived within the Northern Cheyenne Reservation. L.B. and her mother went to a bar and had alcoholic drinks. After they returned home, L.B.’s mother went for a drive. L.B. called the police and reported that her mother was driving while intoxicated. Bureau of Indian Affairs (BIA) Officer Bullcoming determined that L.B.’s mother was safe and then went to L.B.’s residence, where her children were asleep in the other room. L.B. admitted to consuming alcoholic drinks. Bullcoming threatened to arrest L.B. for child endangerment because she was intoxicated while in the presence of her children. L.B. pleaded with Bullcoming not to arrest her because she would lose her job as a school bus driver. Bullcoming took L.B. outside for a breathalyzer test. L.B. believed that her choices were to go to jail or have sex with Bullcoming. L.B. and Bullcoming had unprotected sexual intercourse. L.B. became pregnant as a result of the encounter and gave birth.L.B. brought a Federal Tort Claims Act suit, seeking to hold the government liable for Bullcoming’s misconduct. The government asserted that Bullcoming was not acting within the scope of his employment when he sexually assaulted L.B so his actions fell outside the scope of the FTCA’s limited waiver of sovereign immunity. The Ninth Circuit certified the question to the Montana Supreme Court: whether, under Montana law, OBullcoming’s sexual assault of L.B. was within the scope of his employment as a law enforcement officer. View "L. B. v. United States" on Justia Law

The Ninth Circuit granted the petition for review of the denial of petitioner's application for withholding of removal and protection under the Convention Against Torture (CAT).The panel agreed with the agency's determination that petitioner did not establish eligibility for withholding of removal on account of his political opinion. Although petitioner did not present his social group claim to the agency, the panel concluded that it may consider it now because presenting it to the agency would have been futile. The panel also concluded that the agency failed to consider certain evidence in the record showing that it is more likely than not that petitioner would be tortured if removed to El Salvador. In this case, the exhaustion requirement contains an exception for cases in which exhaustion would be futile, the futility exception is satisfied here, and the agency's treatment of claims of persecution based on imputed gang membership is legally flawed. The panel remanded for the BIA to consider in the first instance petitioner's social group claim based on his perceived gang membership, and to reconsider petitioner's CAT claim. View "Vasquez-Rodriguez v. Garland" on Justia Law

The Ninth Circuit affirmed the district court's dismissal of an action brought by SCAP challenging nonbinding guidance that the EPA issued to recommend a statistical method for assessing water toxicity. Plaintiffs alleged that the EPA had violated the Administrative Procedure Act (APA) by issuing the Test of Significant Toxicity (TST) guidance without following notice-and-comment rulemaking procedures, and that the EPA had violated its own regulations by requiring and using the TST in discharge permits.After determining that it can consider both of the district court's dismissal orders, the panel explained that the APA allows a plaintiff to challenge only final agency action, and an agency's action is final only if it imposes legal consequences. In this case, the guidance at issue imposes no such consequences, and thus the APA does not permit this challenge. View "Southern California Alliance of Publicly Owned Treatment Works v. Environmental Protection Agency" on Justia Law

The Ninth Circuit affirmed the district court's preliminary injunction in favor of BNSF in an action brought by BNSF, alleging that several California counties are taxing railroad property at a higher rate than the rate applicable to commercial and industrial property in the same assessment jurisdiction, in violation of the Railroad Revitalization and Regulatory Reform Act of 1976, 49 U.S.C. 11501(b)(3).As a preliminary matter, the panel held that the district court had jurisdiction over the action under section 11501(c), and the panel has jurisdiction under 28 U.S.C. 1292(a). The panel concluded that the district court applied the correct preliminary injunction standard under section 11501, which does not require courts to consider traditional equitable factors. Rather, binding circuit precedent establishes that a railroad is entitled to a preliminary injunction if its evidence demonstrates reasonable cause to believe that a violation of section 11501 has been, or is about to be committed. The panel also concluded that the district court properly analyzed BNSF's tax rate under the Trailer Train framework, and concluded that the counties were overtaxing BNSF's property in violation of section 11501(b)(3). The court suggested, as proceedings continue, that the district court consider in the first instance whether the State or the county is the proper assessment jurisdiction. View "BNSF Railway Co. v. County of Alameda" on Justia Law

The Ninth Circuit affirmed the district court's dismissal of a Federal Tort Claims Act (FTCA) case brought by plaintiffs, alleging negligence by an emergency room physician. The physician treated Tyrone Sisto at the San Carlos Apache Healthcare Corporation hospital and failed to diagnose Rocky Mountain Spotted Fever. Plaintiffs claimed that the physician was an "employee of the United States" under the FTCA and the Indian Self-Determination and Education Assistance Act (ISDEAA), 25 U.S.C. 5301 et seq., and that he negligently failed to diagnose the disease that led to Sisto's death.The panel agreed with the district court that the FTCA and section 5321(d) do not waive the United States' sovereign immunity with respect to claims based on the negligence of employees of independent contractors providing health care pursuant to a self-determination contract under the ISDEAA. Therefore, the panel concluded that the physician was an employee of T-EM rather than the hospital, and that the FTCA and section 5321(d) do not authorize a suit against the United States based on his alleged negligence. In this case, the physician had only a contract with T-EM and he was not an individual who provided health care services pursuant to a personal services contract with a tribal organization and was therefore not an employee of the Public Health Service under section 5321(d); because hospital privileges were not issued to the physician on the condition that he provide services covered by the FTCA, neither 25 U.S.C. 1680c(e)(1) nor 25 C.F.R. 900.199 confers FTCA coverage; and the hospital did not control the physician's actions in administering care to a degree or in a manner that rendered him an employee of the government when he treated Sisto. View "Sisto v. United States" on Justia Law

The Ninth Circuit affirmed the district court's dismissal of a 28 U.S.C. 2241 petition in which petitioner challenged two sentencing enhancements—one under 18 U.S.C. 2251(e), another under 18 U.S.C. 3559(e)(1)—applied after his conviction on multiple counts of federal sex offenses.The panel held that petitioner's claim is foreclosed because the legal basis for his claim arose before he had exhausted his section 2255 motion, so he cannot show that he did not have an unobstructed procedural shot at presenting his challenge to the section 3559(e)(1) sentencing enhancement. The panel rejected petitioner's request for an extension of Martinez v. Ryan, 566 U.S. 1 (2012), concluding that an extension of Martinez would make little sense. The panel explained that it would open the door for every unsuccessful pro se petitioner under section 2255 to argue that his lack of counsel in his original section 2255 petition meant that he did not have an unobstructed procedural shot at presenting his claim and is therefore entitled to bring an escape hatch petition under section 2241. The panel noted that other circuits have similarly held that prisoners may not utilize Martinez to bring a section 2241 petition. Because petitioner cannot show that he lacked an unobstructed procedural shot with respect to the section 3559(e)(1) mandatory life sentencing enhancement, the panel did not need to reach the actual innocence prong for that enhancement or either prong for the section 2251(e) enhancement. View "Pavulak v. von Blanckensee" on Justia Law

The Ninth Circuit previously affirmed the district court's dismissal of plaintiffs' claim for failure to state a claim under either the Fifth or Fourth Amendments. After plaintiffs petitioned for certiorari, the Supreme Court held that the access regulation, California Code of Regulations, Title 8, 20900(e), appropriates a right to invade the growers' property and therefore constitutes a per se physical taking, and that plaintiffs' complaint thus states a claim for an uncompensated taking in violation of the Fifth and Fourteenth Amendments.In light of the Supreme Court's decision, the panel reversed the district court's judgment relating to the Fifth Amendment claim. For the reasons stated in Cedar Point Nursery v. Shiroma, 923 F.3d at 534–36, the judgment of the district court dismissing the Fourth Amendment claim under Federal Rule of Civil Procedure 12(b)(6) is affirmed. The panel remanded for further proceedings. View "Cedar Point Nursery v. Hassid" on Justia Law