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

The Ninth Circuit joined the First, Third, Fifth, Eighth, and Tenth Circuits in holding that a victim may not directly appeal the restitution component of a criminal defendant's sentence under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. 3663A. In this case, defendants were convicted of charges related to their involvement in a scheme to receive kickbacks based on overpayments made by the Twenty-Nine Palms Band of Mission Indians. The district court ordered defendants to pay restitution to the Tribe. The Tribe subsequently challenged the "direct loss" and the "other fees" amount of the restitution order. The panel held that the Tribe had Article III standing to appeal an award under the MVRA, but that neither the MVRA nor the Due Process Clause confers a right on the Tribe to challenge restitution awards except as provided in 18 U.S.C. 3771(d)(3). Accordingly, the panel dismissed the appeal. View "United States v. Kovall" on Justia Law

Plaintiff filed suit against defendant in state court alleging breach of contract and legal malpractice. Defendant removed to federal court eleven months later and plaintiff did not object nor did he file a motion to remand. More than three months after removal, the district court sua sponte found the removal to be untimely and remanded the case back to state court. The Ninth Circuit held that it had jurisdiction to hear this appeal because this was one of the rare cases in which the court must decide the merits to decide jurisdiction; the district court exceeded its authority under 28 U.S.C. 1447(c) by remanding sua sponte based on a non-jurisdictional defect; and thus the panel vacated and remanded for further proceedings. View "Corona-Contreras v. Gruel" on Justia Law

Although 28 U.S.C. 1448 and Fed. R. Civ. P. 4(m) give plaintiffs additional time to effect service of process, these rules do not extend or revive a state statute of limitations that expired before removal. If the period of time for bringing an action expired under state law before the action was removed to federal court, a defendant can raise the state statute of limitations as an affirmative defense in federal court. Plaintiff filed suit against defendants, alleging federal civil rights and negligence claims after plaintiff was injured by a flash-bang grenade a deputy threw during the execution of a warrant at plaintiff's house. The Ninth Circuit affirmed the district court's dismissal of plaintiff's suit based on statute of limitations grounds. In this case, although section 1448 and Rule 4(m) allowed plaintiff to serve process on defendants after removal, these laws did not change the period of time for commencing an action under the state statute of limitations. The panel explained that, because the time for commencing the action expired before the case was removed to federal court, defendants were entitled to raise the state statute of limitations as an affirmative defense. View "Whidbee v. Pierce County" on Justia Law

The Ninth Circuit certified the following question to the Oregon Supreme Court: Oregon's statute of repose for products liability actions, Or. Rev. Stat. 30.905(2), provides that a civil action "must be commenced before the later of . . . ten years . . . or . . . the expiration of any statute of repose for an equivalent civil action in the state in which the product was manufactured . . . ." If the state of manufacture has no relevant statute of repose, is a plaintiff entitled to an unlimited period (subject to the statute of limitations) in which to bring suit in Oregon court? View "Miller v. Ford Motor Co." on Justia Law

After the BIA determined that petitioner was an aggravated felon because of his conviction for attempted sexual abuse under Oregon law, Oregon Revised Statutes 163.427, the agency determined that he was deportable, terminated his asylee status, denied his request for adjustment of status to lawful permanent resident, and denied waiver of admissibility. The Ninth Circuit held that it lacked jurisdiction to consider any discretionary aspect of the BIA's decision to deny petitioner's application for adjustment of status and waiver of inadmissibility under 8 U.S.C. 1159(b) and (c), as the Attorney General's discretion is specified in the statute. Applying the three-step process articulated from Descamps v. United States, the panel held that the Oregon statute does not categorically match the generic federal offense; the statute is divisible; and, under the categorical approach, a conviction under subparagraph 163.427(1)(a)(A) is sexual abuse of a minor within the generic federal definition and therefore an aggravated felony for purposes of 8 U.S.C. 1101(a)(43). Therefore, the BIA did not err in concluding that petitioner had been convicted of a particularly serious crime. The panel dismissed the petition in part and denied it in part. View "Diego de Diego v. Sessions" on Justia Law

In Associates Commercial Corp. v. Rash, 520 U.S. 953, 956 (1997), the Supreme Court adopted a replacement-value standard for 11 U.S.C. 506(a)(1) cram-down valuations, holding that replacement value, rather than a foreclosure sale that will not take place, is the proper guide under a prescription hinged to the property's disposition or use. In this case, the en banc court held that, because foreclosure would vitiate covenants requiring that the secured property—an apartment complex—be used for low-income housing, foreclosure value in this case exceeds replacement value, which is tied to debtor’s actual use of the property in the proposed reorganization. The en banc court held, as Rash teaches, that section 506(a)(1) requires the use of replacement value rather than a hypothetical value derived from the very foreclosure that the reorganization was designed to avoid. The bankruptcy court did not err here by approving debtor's plan of reorganization and valuing the collateral assuming its continued use after reorganization as low-income housing. Accordingly, the en banc court affirmed the district court's judgment affirming the bankruptcy court's affirmance of debtor's Chapter 11 plan of reorganization. View "First Southern National Bank v. Sunnyslope Housing Ltd. Partnership" on Justia Law

On remand from the United States Supreme Court, the Ninth Circuit vacated the district court's order denying enforcement of an administrative subpoena issued by the EEOC to McLane that was issued as part of an investigation of a sex discrimination claim filed by a former employee. The subpoena requested "pedigree information" for employees or prospective employees who took a physical capability strength test. The Ninth Circuit held that the district court abused its discretion by denying enforcement of the subpoena because the pedigree information was relevant to the investigation. Therefore, the panel vacated the district court's judgment and remanded for further proceedings. On remand, McLane is free to renew its argument that the EEOC's request for pedigree information is unduly burdensome, and the district court should also resolve whether producing a second category of evidence—the reasons test takers were terminated—would be unduly burdensome to McLane. View "EEOC V. McLane Co." on Justia Law

Plaintiff is a street performer. She and her friend were arrested and charged with conducting business without a license, because they were dressed in "sexy cop" outfits on the Las Vegas strip and posed for photos with the officers in exchange for a tip. After the charges were dropped, plaintiff filed suit against the officers, alleging eleven federal and state causes of action. The Ninth Circuit held that the district court erred in granting summary judgment for the officers because the district court misconceived the scope of the applicable First Amendment protections. The record indicated the officers had no evidence before them when they decided to arrest plaintiff that suggested that the "sexy cops" association had any purpose that could have fallen outside the protection of the First Amendment under Berger v. City of Seattle. To infer from plaintiff and her friend's shared costumes and joint performance, alone, an agreement to engage in a regulable transaction impermissibly burdens the right to engage in purely expressive activity and association. The panel held that something more than that constitutionally protected activity is required to justify plaintiff's arrest. Viewing plaintiff's activities separately from her friend's, the panel held that summary judgment for the officers was improper because plaintiff's actions were entirely protected speech. The panel reversed in part and remanded in part. View "Santopietro v. Howell" on Justia Law

The Ninth Circuit certified the following question to the Montana Supreme Court: Whether, under Montana law, the public duty doctrine shields a law enforcement officer from liability for negligence where the officer is the direct and sole cause of the harm suffered by the plaintiff? View "Bassett v. Lamantia" on Justia Law

Plaintiffs filed a would-be class-action against China Agritech and others, alleging violations of the Securities Exchange Act of 1934 (Resh Action). Plaintiffs in this case were unnamed plaintiffs in two earlier would-be class actions against many of the same defendants based on the same underlying events (Dean and Smyth Actions). Class action certification was denied in both cases. Determining that appellate jurisdiction was proper, the Ninth Circuit held that the would-be class action brought by the Resh plaintiffs was not time-barred. In this case, plaintiffs' individual claims were tolled under American Pipe & Construction Co v. Utah, 414 U.S. 538 (1974), and Crown, Cork & Seal Co. v. Parker, 462 U.S. 345 (1983), during the pendency of the Dean and Smyth Actions. The panel explained that so long as they can satisfy the criteria of FRCP 23, and can persuade the district court that comity or preclusion principles do not bar their action, they were entitled to bring their timely individual claims as named plaintiffs in a would-be class action. The panel held that permitting future class action named plaintiffs, who were unnamed class members in previously uncertified classes, to avail themselves of American Pipe tolling would advance the policy objectives that led the Supreme Court to permit tolling in the first place View "Resh v. China Agritech" on Justia Law