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

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The Ninth Circuit affirmed defendant's sentence for illegal re-entry under 8 U.S.C. 1326(a). The panel concluded that the district court correctly applied USSG 4A1.1(d), which assigns two criminal history points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status. In this case, defendant was granted early conditional release under Ariz. Rev. Stat. 41-1604.14 (repealed Aug. 6, 2016), known as the "half-term to deport" program. Defendant argues that he did not commit his illegal re-entry offense while under any criminal justice sentence.The panel rejected defendant's contentions and held that defendant was under "any criminal justice sentence" when he illegally reentered the United States within the meaning of section 4A1.1(d); Arizona's general savings statutes require that, for aliens like defendant who were convicted when section 41-1604.14 was in force, that provision continues to govern their sentences, and ADOC maintained the authority to revoke defendant's release in 2016 and 2017 because of his illegal re-entry; even if the district court erred in assuming that defendant had received formal notice of the condition that he not return illegally from the state court during sentencing, defendant did not demonstrate that this alleged error affected his substantial rights; and the district court did not err in making its factual findings. View "Madrid-Becerra" on Justia Law

Posted in: Criminal Law
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The Ninth Circuit reversed the district court's order remanding a removed action to state court, vacated the district court's award of attorneys' fees to plaintiff under 28 U.S.C. 1447(c); and remanded for further proceedings. This appeal stemmed from plaintiff's suit against Boeing and others in state court, alleging causes of action based on her exposure to asbestos that her family members brought home from work.The panel held that it had jurisdiction over the remand order under 28 U.S.C. 1447(d), explaining that even though the district court remanded pursuant to section 1446(b), under BP P.L.C. v. Mayor and City Council of Baltimore, 141 S. Ct. 1532 (2021), the panel had jurisdiction to review the remand order because the case was removed under section 1442.The panel explained that 28 U.S.C. 1446(b) lays out two pathways for removal. Because plaintiff's initial complaint does not set forth a ground for removal, the first pathway does not apply. Applying the "unequivocally clear and certain" standard, the panel concluded that an amended pleading, motion, order, or other paper must make a ground for removal unequivocally clear and certain before the removal clock begins under the second pathway of section 1446(b)(3). In this case, Boeing's removal was timely because no ground for removal was unequivocally clear and certain until service of plaintiff's amended discovery requests. View "Dietrich v. The Boeing Company" on Justia Law

Posted in: Civil Procedure
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The Ninth Circuit withdrew a per curiam opinion filed August 4, 2021; filed an amended per curiam opinion affirming the district court's dismissal of the 28 U.S.C. 2241 petition; denied a petition for panel rehearing; and denied on behalf of the court a petition for rehearing en banc where petitioner challenged two sentencing enhancements—under 18 U.S.C. 2251(e) and 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 he relies on Mathis v. United States, 136 S. Ct. 2243 (2016), and United States v. Dahl, 833 F.3d 345 (3d Cir. 2016), to challenge his sentencing enhancement under 18 U.S.C. 3559(e)(1), yet he concedes that both of those decisions came down before he had exhausted his original section 2255 motion. The panel concluded that the legal basis for petitioner's claim arose before he had exhausted his section 2255 motion, and thus 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 claim for an extension of Martinez v. Ryan, 566 U.S. 1 (2012), in the context of a section 2241 petition as foreclosed under Buenrostro v. United States, 697 F.3d 1137, 1140 (9th Cir. 2012). Finally, because petitioner cannot show 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. The panel granted respondent's motion for judicial notice. View "Pavulak v. von Blanckensee" on Justia Law

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The district court certified a nationwide indirect purchaser class in antitrust multidistrict litigation seeking injunctive and monetary relief under sections 1 and 2 of the Sherman Act and California law against Qualcomm. The suit alleged that Qualcomm maintained a monopoly in electronic chips by engaging in a “no-license-no-chips” policy and sold chips only at above-FRAND (fair, reasonable, and non-discriminatory) royalty rates; refusing to license its standard-essential patents to rival chip suppliers; and entering into exclusive dealing arrangements with Apple. The plaintiffs, consumers who bought cellphones, alleged that Qualcomm’s monopoly harmed consumers because the amount attributable to an allegedly excessive royalty was passed through the distribution chain to consumers.The Ninth Circuit vacated. The court noted its 2020 holding, FTC v. Qualcomm, that Qualcomm’s modem chip licensing practices did not violate the Sherman Act and that its exclusive dealing agreements with Apple did not substantially foreclose competition. The class was erroneously certified under a faulty choice of law analysis because differences in relevant state laws swamped predominance. California’s choice of law rules precluded the district court’s certification of the nationwide Rule 23(b)(3) class because other states’ laws, beyond California’s Cartwright Act, should apply. As a result, common issues of law did not predominate in the class as certified. View "Stromberg v. Qualcomm, Inc." on Justia Law

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River Watch sued the City of Vacaville under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6902(b), claiming that Vacaville’s water wells were contaminated by a carcinogen (hexavalent chromium), which was transported to Vacaville residents through its water distribution system, thereby contributing to the transportation of a solid waste in violation of RCRA. The district court concluded that the hexavalent chromium was not a “solid waste” under RCRA because it was not a “discarded material” and granted Vacaville summary judgment.The Ninth Circuit vacated. River Watch sufficiently raised an argument that the hexavalent chromium was “discarded material” that allegedly had migrated through groundwater from the “Wickes site,” where it had been dumped by operators of wood treatment facilities by presenting evidence that when the hexavalent chromium was discharged into the environment after the wood treatment process, it was not serving its intended use as a preservative, and it was not the result of natural wear and tear. Instead, the hexavalent chromium was leftover waste, abandoned and cast aside by the facilities’ operators. There also was a triable issue whether Vacaville was a “past or present transporter” of solid waste. RCRA does not require that the “transporter” of solid waste must also play some role in “discarding” the waste. View "California River Watch v. City of Vacaville" on Justia Law

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Ballou filed suit, 42 U.S.C. 1983, asserting that Police Chief McElvain discriminated against her because of her gender by intentionally subjecting her to internal affairs investigations to preclude her eligibility for promotion and then declining to promote her to sergeant even though she was the most qualified candidate.The Ninth Circuit affirmed the denial of McElvain’s qualified immunity summary judgment motion. Ballou sufficiently alleged unconstitutional sex discrimination in violation of the Equal Protection Clause and established a prima facie claim for disparate treatment. McElvain’s articulated reasons for not promoting Ballou were pretextual. The court rejected, as “profoundly mistaken,” McElvain’s argument that to state an equal protection claim, proof of discriminatory animus alone was insufficient. The existence of a comparator is not a prerequisite to stating a disparate treatment claim under the Fourteenth Amendment. Based on Circuit precedent, any reasonable officer would recognize that discriminatorily conducting an investigation to stall a promotion is unconstitutional. The court held that it lacked jurisdiction to consider whether McElvain was entitled to qualified immunity on the Equal Protection claim that she suffered retaliation for opposing sex discrimination. The court affirmed the denial of qualified immunity on Ballou’s First Amendment retaliation claim. Ballou’s speech opposing sex discrimination in the workplace was inherently speech on a matter of public concern, protected by the First Amendment. View "Ballou v. McElvain" on Justia Law

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Hawkins, a Navy veteran, suffered a mental breakdown at work. She was escorted from her workplace in handcuffs and hospitalized for observation. She sought follow-up psychiatric care at a VA hospital. According to Hawkins, the VA doctors who treated her negligently failed to prescribe medication to address severe insomnia and anxiety, despite her complaints that the antidepressant she had been prescribed was not helping. Hawkins suffered another psychotic break during which she attacked and seriously wounded her mother. Hawkins spent a year in jail, lost her job as an RN, and has been unable to return to work.Hawkins sued under the Federal Tort Claims Act (FTCA), alleging medical malpractice. Hawkins claimed that her mental breakdown, which prompted her to seek medical care, was caused by years of workplace bullying and harassment by her supervisor. The Ninth Circuit reversed the dismissal of the suit. The Federal Employees’ Compensation Act, 5 U.S.C. 8101(1), bars a suit against the government for damages under any other law, including the FTCA. Before filing this action, Hawkins pursued a claim under FECA; the Office of Workers’ Compensation Programs determined that the alleged workplace bullying and harassment did not occur. If the OWCP had determined that the injury for which Hawkins sought medical care was sustained during the course of her employment, her FTCA action would have been barred. View "Hawkins v. United States" on Justia Law

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During 2005 removal proceedings, Amaya returned to Honduras after her mother fell ill. An IJ issued an in absentia removal order. After Amaya reentered the U.S. in 2019, the government reinstated its removal order, 8 U.S.C. 1231(a)(5), rendering Amaya ineligible for asylum. An IJ denied Amaya’s applications for withholding of removal and protection under the Convention Against Torture (CAT). He assumed that Amaya testified credibly and concluded that Amaya had demonstrated past persecution on account of a protected ground.The Ninth Circuit remanded. Given her pro se status, Amaya’s Notice of Appeal was sufficiently specific to inform the Board of the issues; the Board violated her due process rights by summarily dismissing her appeal. The Board “may not ignore a pro se petitioner’s inartful legal arguments.” Given the limited relief to which she was entitled, Amaya’s Notice was sufficient. Her statement that "the police from my government of Honduras didn’t do nothing to help me" put the Board on notice that she challenged the finding that she did not establish that the police would be unable or unwilling to protect her. Her statement that "[t]he gangs MS-13 [are] there in all the places in Honduras" notified the Board that she disputed the IJ’s conclusion that she could relocate safely within Honduras. Amaya’s failure to discuss past torture or the likelihood of future torture did not mean that her entire appeal was automatically subject to summary dismissal. View "Nolasco-Amaya v. Garland" on Justia Law

Posted in: Immigration Law
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Miller, an assistant city attorney, advised the City of Eugene not to renew contracts with DePaul, a qualified nonprofit agency for individuals with disabilities (QRF) under an Oregon law that requires cities to contract with QRFs in certain circumstances. DePaul sued under 42 U.S.C. 1983, alleging that it held a clearly established constitutionally protected property interest in two 12-month security-service contracts. In 2016, Eugene had decided to modify its security services by requiring that the security service employees be armed and decided not to renew the contracts.The Ninth Circuit reversed the district court and held that Miller was entitled to qualified immunity. No court has considered DePaul’s novel argument that the Oregon QRF statute created a protected property interest in city contracts. Nor does the QRF statute on its face definitively resolve that question. DePaul did not provide any precedent addressing Oregon’s QRF statute or anything closely related. There was no precedent clear enough that every reasonable official would interpret the QRF statute as creating a protected property interest in DePaul’s annual contracts. There was also no precedent considering whether the QRF statute allows the city to end a contract if it seeks new services, such as armed security. View "DePaul Industries v. Miller" on Justia Law

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The City of Oakland sued under the Fair Housing Act, claiming that Wells Fargo’s discriminatory lending practices caused higher default rates, which triggered higher foreclosure rates that drove down the assessed value of properties, ultimately resulting in lost property tax revenue and increased municipal expenditures. In 2020, the Ninth Circuit affirmed the denial of Wells Fargo's motion to dismiss claims for lost property-tax revenues and affirmed the dismissal of Oakland's claims for increased municipal expenses.On rehearing, en banc, the Ninth Circuit concluded that all of the claims should be dismissed. Under the Supreme Court’s 2017 holding, Bank of America Corp. v. City of Miami, foreseeability alone is not sufficient to establish proximate cause under the Act; there must be “some direct relation between the injury asserted and the injurious conduct alleged.” The downstream “ripples of harm” from the alleged lending practices were too attenuated and traveled too far beyond the alleged misconduct to establish proximate cause. The Fair Housing Act is not a statute that supports proximate cause for injuries further downstream from the injured borrowers; the extension of proximate cause beyond that first step was not administratively possible and convenient. Oakland also failed sufficiently to plead proximate cause for its increased municipal expenses claim. View "City of Oakland v. Wells Fargo & Co." on Justia Law