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

After Sanmina claimed a worthless stock deduction on its federal tax return, the IRS issued a summons for the memoranda authored by Sanmina in-house counsel. Sanmina objected on the basis that they were protected both by attorney-client privilege and the attorney work-product doctrine. On subsequent remand, the district court determined that the memoranda were covered by both attorney-client privilege and work-product protection, but that those privileges had been waived.The Ninth Circuit held that Sanmina waived the attorney-client privilege when it disclosed the Attorney Memos to DLA Piper. However, the panel held that such disclosure did not automatically waive work-product protection over the Attorney Memos and, rather, waiver of work-product immunity requires either disclosure to an adversary or conduct that is inconsistent with the maintenance of secrecy against its adversary. In this case, the panel held that Sanmina did not expressly waive work-product immunity merely by providing the Attorney Memos to DLA Piper, but its subsequent use of the DLA Piper Report to support its tax deduction in an audit by the IRS was inconsistent with the maintenance of secrecy against its adversary. Therefore, the panel explained that Sanmina's implied waiver of the work-product protection only extends to the factual portions of the Attorney Memos. The panel granted in part and denied in part the IRS's petition to enforce its summons. View "United States v. Sanmina Corp." on Justia Law

The Ninth Circuit affirmed in part and reversed in part the district court's dismissal of a third amended complaint (TAC) brought by plaintiffs, a putative class of former NFL players, alleging that the NFL negligently facilitated the hand-out of controlled substances to dull players' pain and to return them to the game in order to maximize profits. The NFL allegedly conducted studies and promulgated rules regarding how Clubs should handle distribution of the medications at issue, but failed to ensure compliance with them, with medical ethics, or with federal laws such as the Controlled Substances Act and the Food, Drug, and Cosmetic Act.The panel agreed with the district court that two of plaintiffs' theories of negligence, negligence per se and special relationship, were insufficiently pled. However, the panel held that plaintiff's voluntary undertaking theory survives dismissal, given sufficient allegations in the TAC of the NFL's failure to "use its authority to provide routine and important safety measures" regarding distribution of medications and returning athletes to play after injury. Furthermore, if proven, a voluntary undertaking theory could establish a duty owed by the NFL to protect player safety after injury, breach of that duty by incentivizing premature return to play, and liability for resulting damages. View "Dent v. National Football League" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's decision affirming the IJ's denial of petitioner's application for withholding of removal and protection under the Convention Against Torture (CAT). Petitioner seeks withholding of removal based on her fear that she would be persecuted in Guatemala on account of her membership in the particular social group of "indigenous women in Guatemala who are unable to leave their relationship."The panel declined to hold that the Attorney General's decision in Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), was arbitrary or capricious and held that the Attorney General did not announce a new categorical exception for victims of domestic violence or other private criminal activity. Rather, the BIA must conduct the proper particular social group analysis on a case-by-case basis. The panel explained that the BIA seems to have erroneously understood Matter of A-B- to forbid any mention of feared harm within a proposed social group. In this case, the BIA's determination was plainly contrary to the Attorney General's requirement that claims must be carefully analyzed under the framework established by the BIA's precedents. Therefore, because the BIA avoided the case-specific inquiry demanded by Matter of A-B- and the BIA's precedents, the panel granted the petition and remanded petitioner's withholding claim. The panel also remanded petitioner's CAT claim for further consideration. View "Diaz-Reynoso v. Barr" on Justia Law

The Ninth Circuit granted the petition for review of the BIA's decision affirming the IJ's denial of petitioner's applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Petitioner alleged that she suffered frequent and severe abuse at the hands of her domestic partner in Nicaragua and that Nicaraguan police officers accepted a bribe from her domestic partner and failed to protect her from him.The panel held that substantial evidence did not support the BIA's determination that petitioner had not shown that the Nicaraguan government was unable or unwilling to protect her from persecution. In this case, the BIA erred by faulting petitioner for failing to contact the police again and for failing to report the bribe, and by disregarding petitioner's credible testimony about why she did not report subsequent abuse. Furthermore, the BIA did not address whether petitioner belonged to a cognizable particular social group, was persecuted on account of her membership in that social group, or had a well-founded fear of future persecution. The panel also held that substantial evidence did not support the BIA's determination that petitioner had failed to show that the Nicaraguan government consented to or acquiesced in her torture for the purpose of CAT relief. Accordingly, the panel remanded for further proceedings. View "Davila v. Barr" on Justia Law

The Ninth Circuit vacated defendant's conviction for obstruction of justice and interstate travel in aid of extortion. Defendant's conviction stemmed from his involvement in an armed standoff between agents of the BLM and a group of private militia members that rallied behind Nevadan Cliven Bundy. On appeal, defendant argued that the district court violated the Sixth Amendment during his trial when it terminated his right to represent himself and appointed standby counsel to represent him instead.The panel held that defendant's conduct was not sufficiently disruptive to justify termination of his right to self-representation. In this case, defendant was not defiant and did not engage in blatantly outrageous conduct, such as threatening a juror or taunting the district judge. To the contrary, defendant merely asked a question prejudicial to the government. Furthermore, he remained calm and ultimately acquiesced in the district court's decision to revoke his right to self-representation. The panel also held that a violation of a defendant's Sixth Amendment right to self-representation is structural error. Therefore, the panel must vacate the conviction and remand for a new trial. View "United States v. Engel" on Justia Law

Defendant, two of his sons, and sixteen other persons were charged in an indictment with obstructing federal law enforcement officials carrying out lawful court orders. In this case, defendant and hundreds of armed supporters forced federal officials to abandon the BLM's impoundment plan of defendant's cattle for a failure to pay federal grazing fees.The Ninth Circuit affirmed the district court's dismissal with prejudice of the indictment based on violations of Brady v. Maryland, 373 U.S. 83 (1963). The panel held that a district court is imbued with discretion in the supervision of proceedings before it and may dismiss an action when, in its judgment, "the defendant suffers substantial prejudice and where no lesser remedial action is available." The panel held that the withheld evidence -- the surveillance-camera evidence, the FBI 302s Regarding Snipers, the TOC Log, and the Threat Assessments -- substantially prejudiced the defense; the district court's findings of substantial prejudice and flagrant misconduct in relevant part were not clear error; and the district court did not abuse its discretion in dismissing with prejudice. View "United States v. Bundy" on Justia Law

The Ninth Circuit granted a petition for review of the BIA's determination that petitioner's California conviction was "categorically one for an aggravated felony offense relating to obstruction of justice," and dismissal of his appeal. Because the panel in Valenzuela Gallardo I applied the Chevron framework to the BIA's construction of the aggravated felony of an offense relating to obstruction of justice, and the panel does not believe any exceptions to the law of the case doctrine apply here, the panel must proceed to Chevron Step One. The panel explained that both a de novo interpretation of the obstruction of justice provision utilizing traditional tools of statutory interpretation and a Chevron Step One analysis lead to the same conclusion.The panel held that "obstruction of justice" under 8 U.S.C. 1101(a)(43)(S) is unambiguous in requiring an ongoing or pending criminal proceeding, and the Board's most recent interpretation is at odds with that unambiguous meaning. Furthermore, because "obstruction of justice" under section 1101(a)(43)(S) unambiguously requires a nexus to ongoing or pending proceedings, and California Penal Code section 32 does not, petitioner's state criminal conviction is not a categorical match with the aggravated felony offense charged in his Notice to Appear. Therefore, the panel vacated the removal order. View "Valenzuela Gallardo v. Barr" on Justia Law

The Ninth Circuit dismissed, based on lack of appellate jurisdiction, defendants' appeal of the district court's denial of summary judgment, which resulted in a denial of qualified immunity, and the district court's denial to reconsider the summary judgment order. In this case, defendants grounded their motion for reconsideration in the district court ostensibly on both Federal Rules of Civil Procedure 59(e) and 60(b). At oral argument, defendants acknowledged that their motion for reconsideration was brought under Rule 59(e) to alter or amend the judgment.The panel held that it lacked jurisdiction over the appeal of the summary judgment order in this case, because it is untimely where there is no dispute that the appeal was filed nearly a year after the underlying summary judgment order. Furthermore, the filing of an untimely motion will not toll the running of the appeal period. The panel also held that it lacked jurisdiction over the order denying the Rule 59(e) motion for reconsideration of a denial of qualified immunity, where it did not have jurisdiction over the appeal of the underlying order. Finally, the panel declined to exercise its discretion to award plaintiff attorney's fees for this appeal. View "Hanson v. Shubert" on Justia Law

A district court order denying a government motion to dismiss a False Claims Act case under 31 U.S.C. 3730(c)(2)(A) is not an immediately appealable collateral order.In this case, the Ninth Circuit dismissed, based on lack of jurisdiction, the government's appeal from the district court's order denying a government motion to dismiss a FCA case. The panel noted that this issue was not before the Supreme Court in United States ex rel. Eisenstein v. City of New York, 556 U.S. 928 (2009). The panel held that the collateral order doctrine did not apply because the district court's order did not resolve important questions separate from the merits. Because the interests implicated by an erroneous denial of a government motion to dismiss a FCA case in which it has not intervened are insufficiently important to justify an immediate appeal, the panel held that they fall outside of the collateral order doctrine's scope. View "United States v. United States ex rel. Thrower" on Justia Law

A request for judicial relief under Nevada's Foreclosure Mediation Rules is the exclusive remedy under Nevada law for challenging a lender's conduct in the foreclosure mediation process.Plaintiffs filed suit alleging contractual and tortious breaches of the implied covenant of good faith and fair dealing against BNYM and its agents, Sables and Bayview. The Ninth Circuit affirmed the district court's dismissal of the complaint for failure to state a claim, holding that plaintiffs' claims rest on defendants' asserted failure to comply with the various requirements of the foreclosure mediation program, and these claims could have been raised in a timely request for review under the Foreclosure Mediation Rules. The panel explained that plaintiffs' exclusive remedy under Nevada law for addressing these deficiencies was a timely request for judicial review filed within the applicable 10-day period set forth in Nevada F.M.R. 20(2). Therefore, the district court correctly held that plaintiffs' state common-law claims and related requests for declaratory and injunctive relief failed to state a claim upon which relief could be granted. View "Tobler v. Sables, LLC" on Justia Law