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

The Ninth Circuit filed an amended order granting a petition for review of the IJ's decision affirming an asylum officer's negative reasonable fear determination in expedited removal proceedings.The panel held that non-citizens subject to expedited removal under 8 U.S.C. 1228 have a statutory right to counsel in reasonable fear proceedings before an immigration judge. In this case, the panel held that petitioner had a statutory right to counsel, the colloquy at the beginning of the hearing before the IJ was inadequate to waive that right, and no showing of prejudice is required. Therefore, the panel held that the IJ violated petitioner's right to counsel in his reasonable fear review proceeding by failing to obtain a valid waiver, and petitioner was entitled to a new hearing before an IJ in which his right to counsel is honored. Accordingly, the panel reversed for further proceedings. View "Zuniga v. Barr" on Justia Law

The Ninth Circuit affirmed defendant's sentence for assault by strangling a spouse in Indian country. The panel held that the district court did not impermissibly double count when it applied a three-level sentencing enhancement for strangling a spouse under USSG 2A2.2(b)(4). The panel explained that it is possible to be sentenced under section 2A2.2(a) without having strangled one's spouse, and thus the base offense level does not necessarily "capture the full extent of the wrongfulness" of defendant's behavior. View "United States v. Harrington" on Justia Law

The Ninth Circuit affirmed the district court's denial of summary judgment based on qualified immunity to a police officer in an action brought by plaintiff, alleging 42 U.S.C. 1983 and state law claims that the officer used excessive force. The officer placed defendant in a chokehold during an encounter following a concert, and the chokehold rendered plaintiff unconscious.The panel held that its decision in Barnard v. Theobald, 721 F.3d 1069 (9th Cir. 2013), squarely addressed the constitutionality of the use of a chokehold on a non-resisting person. Barnard held that any reasonable person should have known that squeezing the breath from a compliant, prone, and handcuffed individual despite his pleas for air involves a degree of force that is greater than reasonable. In this case, plaintiff was not resisting arrest when the officer placed him in a chokehold, and there was little chance he could initiate resistance with five other officers fully restraining him and pinning him to the ground. Therefore, it was clearly established that the use of a chokehold on a non-resisting, restrained person violates the Fourth Amendment's prohibition on the use of excessive force. Furthermore, the same version of the facts precluded summary judgment on the state law claims. View "Tuuamalemalo v. Greene" on Justia Law

The Ninth Circuit filed an order withdrawing its opinion and substituting this opinion in its place, denied a petition for panel rehearing, and denied on behalf of the court a petition for rehearing en banc. The panel also amended the opinion affirming the district court's holding that the State of Nevada waived its Eleventh Amendment sovereign immunity as to plaintiffs' Fair Labor Standards Act claims when the State removed the case from state court to federal court.The panel extended the holding of Embury v. King, 361 F.3d 562 (9th Cir. 2004), and held that a State that removes a case to federal court waives its immunity from suit on all federal-law claims in the case, including those federal-law claims that Congress failed to apply to the states through unequivocal and valid abrogation of their Eleventh Amendment immunity. Therefore, Nevada waived its Eleventh Amendment immunity in this case. View "Walden v. Nevada" on Justia Law

The Ninth Circuit affirmed the district court's denial of defendant's motion to compel arbitration against plaintiff, a smartphone app user. The panel applied Washington state law and held that defendant did not provide reasonable notice, actual or constructive, of its Terms of Use and thus plaintiff did not unambiguously manifest assent to the terms and conditions or the imbedded arbitration provision. In this case, defendant did not notify users that the app had terms and conditions. Rather, a user would need to seek out or stumble upon defendant's Terms, either by scrolling through multiple screens of text before downloading the app or clicking the settings menu within the app during gameplay. View "Wilson v. Huuuge, Inc." on Justia Law

A constructive submission will be found where a state has failed over a long period of time to submit a "total maximum daily loads" (TMDL), and clearly and unambiguously decided not to submit any TMDL. Where a state has failed to develop and issue a particular TMDL for a prolonged period of time, and has failed to develop a schedule and credible plan for producing that TMDL, it has no longer simply failed to prioritize this obligation. Instead, there has been a constructive submission of no TMDL, which triggers the EPA's mandatory duty to act.The Ninth Circuit affirmed the district court's judgment for environmental groups in a citizen suit brought under the Clean Water Act, seeking to compel the EPA to develop and issue a long-overdue temperature TMDL for the Columbia and Snake Rivers. The panel held that Washington and Oregon have clearly and unambiguously decided not to produce and issue a temperature TMDL for the Columbia and Snake Rivers. Therefore, the EPA was obligated to act under section 1313(d)(2) of the Act. View "Columbia Riverkeeper v. Wheeler" on Justia Law

The Ninth Circuit affirmed the district court's grant of summary judgment for defendant, a nonprofit guaranty agency, on claims under the Fair Debt Collection Practices Act (FDCPA) and the Due Process Clause. In this case, defendant caused an offset against plaintiff's Social Security benefits, in order to recover on a judgment obtained after plaintiff defaulted on his student loans.The panel held that defendant fulfilled the criteria of the fiduciary exception for the definition of a debt collector under the FDCPA. The panel explained that, although defendant regularly collects or attempts to collect debts asserted to be owed or due another, defendant's collection activities were incidental to a bona fide fiduciary obligation. The panel also held that, assuming without deciding that defendant is a state actor, defendant did not violate plaintiff's due process rights because plaintiff was provided with notice of the debt, defendant's intention to seek an offset, and the means by which plaintiff could respond. View "Lima v. Educational Credit Management Corp." on Justia Law

The Ninth Circuit affirmed the district court's dismissal of a subproceeding brought by the Muckleshoot seeking to expand their usual and accustomed fishing grounds and stations (U&As) to certain areas of Puget Sound beyond Elliott Bay.The panel held that the district court did not err in holding that it lacked jurisdiction to entertain this subproceeding. In this case, the district court properly held that Muckleshoot's saltwater U&As in Puget Sound had already been "specifically determined" in their entirety by Judge Boldt in Final Decision #1, and accordingly, there was no continuing jurisdiction under Paragraph 25(a)(6) to entertain the present subproceeding. View "Muckleshoot Indian Tribe v. Tulalip Tribes" on Justia Law

A debt collector is entitled to collect a lawful, outstanding debt even if the statute of limitations has run, so long as the debt collector does not use means that are deceptive or misleading and otherwise complies with legal requirements. The Ninth Circuit affirmed the district court's grant of summary judgment for defendant in an action under the Fair Credit Reporting Act (FCRA), alleging that a debt collector's letter was deceptive or misleading under 15 U.S.C. 1692e because it attempted to persuade him to pay time-barred debt.The panel held that Midland's disclosure would not mislead or deceive the least sophisticated debtor into thinking that Midland could use legal means to collect the debt; Midland's letter was not deceptive or misleading for not warning about the potential for revival of the statute of limitations; the panel rejected plaintiff's argument that a letter is deceptive or misleading if a debt collector tries to persuade debtors to pay what they owe; and thus plaintiff has not identified anything false, deceptive, or misleading in Midland's letter. View "Stimpson v. Midland Credit Management, Inc." on Justia Law

The Ninth Circuit reversed defendant's sentences imposed in two cases that the district court sentenced in the same hearing. In the first case, defendant pleaded guilty to mail fraud, visa fraud, money laundering, and willful failure to pay over tax. In the second case, defendant pleaded guilty to conspiracy to commit visa fraud.The panel held that the district court erred by applying USSG 2B1.1 to calculate the offense level for defendant's mail fraud count of conviction. The panel explained that the allegations underlying this count established an immigration visa fraud offense expressly covered by USSG 2L2.1, and thus the district court should have followed the USSG 2B1.1(c)(3) cross-reference and applied section 2L2.1. The panel further held that the error was plain and substantially affected the sentencing guidelines range the district court used to sentence defendant. Therefore, the panel remanded for resentencing in accordance with USSG 5G1.2. View "United States v. Wang" on Justia Law