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

The Ninth Circuit dismissed, based on lack of jurisdiction under 8 U.S.C. 1252, petitions for review of the IJ's decisions concluding that petitioners lacked jurisdiction to reopen credible fear proceedings under 8 C.F.R. 1208.30(g)(2)(iv)(A). The panel first observed that judicial review of an expedited removal order, including the merits of a credible fear determination, is expressly prohibited by section 1252(a)(2)(A)(iii). The panel then recognized that it has routinely exercised jurisdiction under section 1252 to review IJ denials of motions to reopen certain removal proceedings. However, the panel concluded that the language of section 1252 clearly and convincingly demonstrates that Congress intended to circumscribe judicial review of motions to reopen credible fear determinations.In this case, petitioners repeatedly stress that they are not asking the panel to review the merits of the IJs' credible fear determinations. Instead, petitioners ask the panel to exercise jurisdiction to review the IJs' denials of motions to reopen on the grounds that the IJs misconstrued their authority to do so under section 1208.30(g)(2)(iv)(A). This the panel cannot do. The panel has held that where Congress explicitly withdraws its jurisdiction to review a final order of deportation, its authority to review motions to reconsider or to reopen deportation proceedings is thereby likewise withdrawn. Read together, sections 1252(a)(2)(A), (D) and 1252(e) provide clear and convincing evidence that Congress intended to deprive circuit courts of appeals of jurisdiction to review expedited removal orders and related matters affecting those orders, including underlying negative credible fear determinations and rulings on the regulations implementing the expedited removal statute. The panel was without jurisdiction to review the petitions for review and rejected petitioners' remaining arguments to the contrary. View "Singh v. Barr" on Justia Law

Plaintiffs, 134 men and women registered as sex offenders in Idaho, filed suit claiming that the retroactive application of Idaho's Sexual Offender Registration Notification and Community Right-to-Know Act (SORA) is unconstitutional. The district court granted defendants' motions to dismiss.The Ninth Circuit reversed in part, holding that the district court erred in dismissing the ex post facto claim on the basis that SORA was civil in intent and not punitive in effect. The panel explained that the district court erred by applying plaintiffs' ex post facto claim as an as-applied challenge; erred by applying the "clearest proof" standard at the motion to dismiss stage; and erred in finding the outcome of the Smith factors analysis controlled by precedent. Because the district court predicated its dismissal of the Eighth Amendment and double jeopardy claims on its dismissal of the ex post facto claim, the panel held that those judgments were also in error. The panel also held that the district court erred in dismissing plaintiffs' free exercise claim because the district court erred in finding that plaintiffs failed to allege sufficient facts to plead a plausible claim under Idaho's Free Exercise of Religion Protected Act (FERPA). In this case, plaintiffs have alleged facts showing that the challenged policy substantially burdens the exercise of their religious beliefs. The panel found no error in the district court's analysis of plaintiffs' vagueness, Free Association, Equal Protection, Contracts Clause, Takings, Separation of Powers, and state Police Power challenges. Therefore, the panel affirmed the dismissal of those claims. The panel remanded for further proceedings. View "Does v. Wasden" on Justia Law

A husband's unauthorized access into his wife's work emails—undoubtedly an invasion of her privacy—could also constitute a violation of the Stored Communications Act.After wife and her law firm employer filed suit against husband and his divorce lawyer, the other parties resolved their claims and wife filed a second amended complaint alleging one cause of action against husband under the Act. The district court granted summary judgment for husband because wife failed to show that the e-mails husband allegedly accessed were in "back up storage" as defined by the Act.The Ninth Circuit reversed the district court's exclusion of a declaration submitted by plaintiff, concluding that the district court abused its discretion in disregarding the declarant's personal knowledge about wife's e-mail storage. The panel explained that the evidence does not require expert qualification where the declarant was employed with the IT company that services wife's law firm and the information he provides is far from technical.The panel held that the Act provides a private cause of action against one who intentionally accesses without authorization a facility through which an electronic communication service is provided and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage. Electronic storage includes storage for purposes of backup protection, which requires that there be a second, backup copy of a message. In this case, the declaration submitted by plaintiff created a genuine dispute of material fact with respect to whether the e-mails defendant accessed were entitled to protection under the Act. Finally, the panel agreed with the Fourth Circuit's recent rejection of any distinction between the protection afforded to "service copies," meaning those less conveniently accessible. The panel reversed the district court's grant of summary judgment and remanded for further proceedings. View "Clare v. Clare" on Justia Law

The Ninth Circuit vacated defendants' sentences imposed after they pleaded guilty to multiple offenses, including conspiracy to possess unauthorized access devices, access device fraud, and aggravated identity theft. Defendants' convictions arose from their installation of cameras and skimmers at ATM machines to film fingers as PINS were entered and to record the information of inserted cards.The panel held that the record does not support the conclusion that defendants obtained 852 and 754 account numbers respectively. The panel explained that, while there is evidence that defendant hoped to obtain account information for each ATM customer, there is insufficient evidence that they succeeded in doing so. Therefore, the district court clearly erred by applying a twelve-level increase to defendants' base level under USSG 2B1.1(b)(1) based on its conclusion that defendants obtained account information for each person who visited the ATMs while the cameras and skimmers were installed. In this case, while the government showed how many people used the ATMs while the skimmers were installed, it did not provide any evidence of the skimmer success rate, either for these transactions or even for hypothetical transactions. View "United States v. Ruiz Gainza" on Justia Law

On remand from the Supreme Court, the Ninth Circuit affirmed defendant's convictions on two counts of encouraging and inducing an alien to remain in the United States for the purposes of financial gain in violation of 8 U.S.C. 1324(a)(1)(A)(iv) and 1324(a)(1)(B)(i)). Defendant, who operated an immigration consulting business, continued to sign retainer agreements and inform clients that they could obtain green cards via a labor certification program under Section 245i of the Immigration and Nationality Act, which defendant knew had expired.The panel rejected defendant's contention that the conduct charged is beyond the scope of Subsection (A)(iv) and held that the fact that engaging in the underlying section 245i process may have yielded some legitimate benefit to defendant's clients does not detract from her culpability under Subsection (A)(iv). The panel also held that defendant did not lack fair notice that her conduct violated the law and her prosecution did not violate due process; the Subsection (A)(iv) charges against defendant were not impermissibly vague, and the district court did not err by refusing to dismiss them; and, because defendant's conduct was not protected by the First Amendment, the district court did not err by denying her motion to dismiss the charges on First Amendment grounds. Finally, the panel held that the evidence was sufficient to establish that defendant encouraged or induced her clients to remain in the United States. View "United States v. Sineneng-Smith" on Justia Law

The Ninth Circuit certified the following question to the Supreme Court of California: Does the evidentiary standard set forth in section 1102.6 of the California Labor Code replace the McDonnell Douglas test as the relevant evidentiary standard for retaliation claims brought pursuant to section 1102.5 of California’s Labor Code? View "Lawson v. PPG Architectural Finishes, Inc." on Justia Law

CBD filed suit challenging the legality of BOEM's and FWS's actions, arguing that the agencies failed to comply adequately with the procedural requirements imposed by the National Environment Policy Act (NEPA), the Endangered Species Act (ESA), and the National Marine Fisheries Services (MMPA). Relying on a biological opinion prepared by FWS and BOEM's own environmental impact statement (EIS), BOEM's Regional Supervisor of Leasing and Plans signed a record of decision approving the Liberty project, an offshore drilling and production facility. The site of the Liberty project is governed by the Outer Continental Shelf Lands Act (OCSLA).After determining that it had jurisdiction over CBD's claims, the Ninth Circuit vacated BOEM's approval of the Liberty project, concluding that BOEM acted arbitrarily and capriciously by failing to quantify the emissions resulting from foreign oil consumption in its EIS as required by NEPA, or, at least, explaining thoroughly why it cannot do so and summarizing the research upon which it relied. The panel also held that FWS violated the ESA by (1) relying upon uncertain, nonbinding mitigation measures in reaching its no-adverse-effect conclusion in its biological opinion, and (2) failing to estimate the Liberty project's amount of nonlethal take of polar bears. Because FWS's biological opinion is flawed and unlawful, the panel concluded that BOEM's reliance on FWS's opinion is arbitrary and capricious. The panel granted in part and denied in part the petition for review, remanding for further proceedings. View "Center for Biological Diversity v. Bernhardt" on Justia Law

The Ninth Circuit affirmed the district court's dismissal of plaintiffs' 42 U.S.C. 1983 action alleging that certain provisions of the City of San Jose's 2017 Ordinance and implementing regulations, pertaining to the City's Apartment Rent Ordinance, violated plaintiffs' Fourth, Fifth, and Fourteenth Amendment rights, as well as the Contracts Clause. The challenged provisions of the Ordinance and Regulations require landlords to disclose information about rent stabilized units to the City and condition landlords' ability to increase rents on providing that information.The panel held that plaintiffs have not plausibly alleged that the challenged provisions effect a search and thus their Fourth Amendment claim fails. In this case, plaintiffs offered no factual allegations plausibly suggesting that they maintain a reasonable expectation of privacy in information that, generally speaking, they already disclose to the City in other contexts. The panel also held that plaintiffs failed to raise a colorable Fifth Amendment takings claim, a Contracts Clause claim, an equal protection claim, and substantive and procedural due process claims. Finally, the Ordinance does not violate the "unconstitutional conditions" doctrine as enunciated in Koontz v. St. Johns River Water Management District, 570 U.S. 595 (2013). View "Hotop v. City of San Jose" on Justia Law

The Ninth Circuit affirmed the district court's dismissal for lack of constitutional Article III standing of a putative class action brought by a plaintiff, a consumer of Pop Secret popcorn. Plaintiff contends that Diamond engaged in unfair practices, created a nuisance, and breached the warranty of merchantability by including partially hydrogenated oils (PHOs) as an ingredient in Pop Secret. Plaintiff also alleges that PHOs, the primary dietary source of industrially produced trans fatty acids (also known as artificial trans fat), are an unsafe food additive that causes heart disease, diabetes, cancer, and other ailments. The panel held that plaintiff has not plausibly alleged that, as a result of her purchase and consumption of Pop Secret, she suffered economic or immediate physical injury, or that she was placed at substantial risk of adverse health consequences. Therefore, the district court properly dismissed the action based on lack of standing. View "McGee v. S-L Snacks National" on Justia Law

CIR filed suit under the Freedom of Information Act (FOIA), requesting that ATF provide records concerning weapon ownership. CIR specifically wants to report on the use in crimes of guns that had at one time been owned by law enforcement agencies. ATF argues that Congress has forbidden the release of that information by approving the Tiahrt Rider to the Consolidated Appropriations Acts of 2005, 2008, 2010, and 2012. ATF also argues that FOIA did not require ATF to run this search in the FTS database because such a query would require it to create a new agency record.The Ninth Circuit held that the Tiahrt Rider does not exempt the data sought by CIR from disclosure under FOIA, nor does it deprive ATF of the funding it needs to turn over this data; the use of a query to search for and extract a particular arrangement or subset of existing data from the FTS database does not require the creation of a "new" agency record under FOIA; and the panel cannot answer whether the FTS database is currently capable of producing the information CIR seeks in response to a search query. Accordingly, the panel reversed and remanded for further factual development. View "Center for Investigative Reporting v. United States Department of Justice" on Justia Law