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

A public employer generally may not subject all employee speech regarding a particular government program—whether fact or opinion, and whether liable to disrupt the workplace or not—to a blanket ban. The Ninth Circuit held that the sweeping policy imposed by Defendant Major Kevin Tice's email regarding the Nevada Highway Patrol K9 program violated the troopers' clearly established First Amendment rights. The panel affirmed the district court's denial of qualified immunity, holding that the policy covered speech outside the troopers' official duties, whether or not some speech within those duties was also covered; the policy reached speech on matters of public concern; and the prospective speech restriction imposed by defendant's email violated the First Amendment. The panel also held that a "robust consensus" of prior cases made clear at the time defendant issued his edict that an employer ordinarily may not prohibit its employees from all public discussion relating to a particular department or government program. View "Moonin v. Tice" on Justia Law

The Ninth Circuit reversed the district court's order denying an award of attorney's fees to plaintiff in a 42 U.S.C. 1983 action. After plaintiff filed suit against Portland, it made a Rule 68 Offer of Judgment for $1,000, plus reasonable attorney's fees to be determined by the district court. Plaintiff accepted the offer, but when she moved for fees, the district court denied the motion on the ground that the award was a de minimis judgment under 42 U.S.C. 1988. The panel held that Portland's offer – and plaintiff's acceptance – which the panel interpreted as a contract, provided that plaintiff would receive her reasonable attorney's fees, without referencing section 1988 or otherwise reserving to the district court the antecedent question of whether plaintiff was entitled to a fee award. Accordingly, the panel remanded for a determination and award of a reasonable fee. View "Miller v. Portland" on Justia Law

The Ninth Circuit affirmed the district court's order approving the cy pres-only settlement arising from class action claims that Google violated users' privacy by disclosing their Internet search terms to owners of third-party websites. The panel held that the district court did not abuse its discretion in approving a cy pres- only settlement where the settlement funds were non-distributable; the district court did not abuse its discretion in finding the superiority requirement was met because the litigation would otherwise be economically infeasible; the district court did not abuse its discretion in approving the six cy pres recipients; the district court appropriately found that the cy pres distribution addressed the objectives of the Stored Communications Act and furthered the interests of the class members; a prior relationship or connection between the cy pres recipient and the parties or their counsel, without more, was not an absolute disqualifier; and the district court did not abuse its discretion by approving $2.125 million in fees and $21,643.16 in costs. View "In re Google Referrer Header Privacy Litigation" on Justia Law

The Ninth Circuit filed an amended opinion vacating the restitution order, denied defendant's petition for panel rehearing, and on behalf of the court denied his petition for rehearing en banc.The panel held that the government's decision not to appeal the district court's evidentiary hearing did not bar the panel's review of its appeal from the district court's restitution order under 18 U.S.C. 3742(b)(1). Therefore, in this case, the government was not foreclosed from challenging the district court's limitation on the restitution order and the panel had jurisdiction to review the order. The panel held that, under 18 U.S.C. 3663A and Ninth Circuit precedent, the district court could properly order restitution for all victims harmed by defendant's scheme, including those harmed by conduct beyond the count of conviction. The panel remanded for the district court to make factual findings to determine whether defendant's activities beyond the BBBS event were sufficiently related to be included for restitution purposes in his overall scheme to defraud. View "United States v. Johnson" on Justia Law

The Ninth Circuit denied petitioner's application for permission to file a second or successive petition as unnecessary and transferred the matter to the district court with instructions to treat petitioner's habeas petition as a first petition. The panel held that the current habeas petition did not attempt to challenge petitioner's underlying conviction. Rather, petitioner sought only to challenge a new and intervening judgment denying him relief with respect to his sentence. The panel also held that cognizability plays no role in the panel's adjudication of such an application, and that it was the province of the district court to consider cognizability of a habeas petition. View "Clayton v. Biter" on Justia Law

The Ninth Circuit reversed defendant's conviction for attempted illegal reentry, holding that the supplemental instruction the district court provided the jury was erroneous and prejudicial. In this case, the jury was confused with respect to the meaning of specific intent to enter free from official restraint, and asked the district court for clarification. The panel held that the district court's confusing and legally inaccurate supplemental instruction failed to remove the jury's confusion. Consequently, it was not clear beyond a reasonable doubt that a rational jury would have convicted defendant on this record. The panel remanded for a new trial. View "United States v. Castillo-Mendez" on Justia Law

Plaintiffs challenged the Government's approval of the location, construction, and specifications for a military base in Okinawa, Japan. Plaintiffs sought claims for declaratory and injunctive relief based on the Government's alleged violations of Section 402 of the National Historic Preservation Act (NHPA), 54 U.S.C. 307101(e), and the Administrative Procedure Act (APA), 5 U.S.C. 701 et seq. The Ninth Circuit held that plaintiffs have standing to bring declaratory relief claims limited to whether the Government's evaluation, information gathering, and consultation process discharged the Government's obligations under the NHPA and otherwise satisfied the requirements of the APA. The panel also held that plaintiffs' injunctive relief claim did not present a political question. Accordingly, the panel affirmed the district court's conclusion that plaintiffs' claims for declaratory and injunctive relief did not present a political question; reversed the district court's conclusion that plaintiffs lacked standing to seek declaratory relief; and reversed the district court's conclusion that plaintiffs' claim for injunctive relief presented a political question. The panel remanded for further proceedings. View "Center for Biological Diversity v. Mattis" on Justia Law

Anaya Law Group, a debt collector, filed suit in state court to collect an unpaid credit card debt, but the complaint overstated both debtor's principal due and the applicable interest rate. Debtor then filed suit against Anaya in federal court for violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 1692 et seq., and of California's Rosenthal Fair Debt Collection Practices Act. The district court granted summary judgment to Anaya. The Ninth Circuit held, however, that the false statements made by Anaya were material because they could have disadvantaged a hypothetical debtor in deciding how to respond to the complaint. Accordingly, the panel vacated summary judgment as to the FDCPA claim and remanded. In regard to the Rosenthal Act claim, the panel affirmed summary judgment on an alternative ground. The panel held that Anaya corrected the misstatements within fifteen days of discovering the violation and thus satisfied the requirements necessary to avail itself of a defense under the Rosenthal Act. View "Afewerki v. Anaya Law Group" on Justia Law

The Ninth Circuit denied a petition for review of the BIA's decision, holding that petitioner's California conviction for second degree murder on an aiding and abetting theory qualified as an aggravated felony. The panel explained that the Supreme Court, in 2007, reviewed California's law on aiding and abetting, which like that of many jurisdictions looks to the natural and probable consequences of an act the defendant intended. Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 191–93 (2007). The Supreme Court concluded that absent a showing that the law has been applied in some "special" way, a conviction in California for aiding and abetting a removable offense was also a removable offense. The panel held that California law has not materially changed since Duenas-Alvarez was decided and was not applied in any "special" way in petitioner's case. View "Sales Jr. v. Sessions" on Justia Law

The Ninth Circuit reversed the district court's decision affirming the Commissioner's denial of plaintiff's application for disability insurance benefits and supplemental security income benefits. The panel held that the ALJ committed legal error when she failed to provide legally sufficient reasons to discount the opinions of examining psychologist Dr. Hart, and when she failed to provide germane reasons to discount the opinions of treating nurse practitioner Dr. Sorrell; the ALJ's error in discounting these opinions permeated her hypothetical to the vocational expert regarding the availability of a significant number of jobs in the national economy that plaintiff could perform; and therefore the panel remanded for an award of benefits. View "Popa v. Berryhill" on Justia Law