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

Nevada enacted Senate Bill 248 (“S.B. 248”), Act of June 2, 2021, ch. 291, 2021 Nev. Stat. 1668, in response to the COVID-19 pandemic. S.B. 248 requires debt collectors to provide written notification to debtors 60 days before taking any action to collect a medical debt. Plaintiffs are entities engaged in consumer debt collection. They filed suit in district court against Defendant, Commissioner of the Financial Institutions Division of Nevada’s Department of Business and Industry, bringing a facial challenge to the law. They moved for a temporary restraining order and a preliminary injunction, contending that S.B. 248 is unconstitutionally vague, violates the First Amendment and is preempted by both the federal Fair Credit Reporting Act (“FCRA”) and the Fair Debt Collection Practices Act (“FDCPA”). The district court denied Plaintiffs’ motion for a temporary restraining order and a preliminary injunction. Plaintiffs timely appealed the denial of the preliminary injunction.   The Ninth Circuit affirmed on the grounds that Plaintiffs failed to show a likelihood of success on the merits of their claims. The panel first rejected Plaintiffs’ claim that the term “action to collect a medical debt” in S.B. 248 was unconstitutionally vague, noting that the implementing regulations set forth examples of actions that do, and do not, constitute actions to collect a medical debt. The panel held that: S.B. 248 regulates commercial speech and therefore is not subject to strict scrutiny; communications to collect a medical debt “concerned lawful activity” and were not “inherently misleading.” The panel next rejected Plaintiffs’ argument that the FCRA expressly preempts S.B. 248 under 15 U.S.C. Section 1681t(b)(1)(F). View "AARGON AGENCY, INC., ET AL V. SANDY O'LAUGHLIN" on Justia Law

Claimant appealed the district court’s judgment upholding the denial of social security benefits by an administrative law judge (“ALJ”). Reviewing de novo the district court’s decision, Farlow v. Kijakazi, 53 F.4th 485, 487 (9th Cir. 2022), the Ninth Circuit reversed The ALJ materially mischaracterized Claimant’s functional capacity when posing a question to a vocational expert, so the vocational expert’s testimony lacked evidentiary value with respect to jobs that Claimant could perform. Here, Claimant argued that the ALJ’s question posed to the vocational expert inaccurately described her actual limitations. First, the hypothetical posed to the expert did not provide that claimant was limited to jobs with “little or no judgment.” The panel concluded that the error was harmless because the vocational expert identified only jobs with that limitation. Second, the hypothetical did not provide that Claimant could “follow short, simple instructions” only. Third, in the question posed to the vocational expert, the ALJ described a hypothetical person who “can work in an environment with occasional changes to the work setting.” The panel concluded that the ALJ materially mischaracterized Claimant’s functional capacity when posing a question to a vocational expert, so the vocational expert’s testimony lacked evidentiary value with respect to jobs that Claimant could perform. View "CAROLINE LEACH V. KILOLO KIJAKAZI" on Justia Law

Defendant pleaded guilty to unlawful possession of a firearm. Defendant appealed the district court’s sentencing order, which imposed a heightened base offense level under United States Sentencing Guidelines Section 2K2.1(a)(4)(B).   The Ninth Circuit reversed the district court’s sentencing order and remanded for resentencing on an open record. The court explained Section 2K2.1(a)(4)(B) applies if the offense involved a “semiautomatic firearm that is capable of accepting a large capacity magazine.” Application Note 2 to Section 2K2.1 defines such a firearm as one: that has the ability to fire many rounds without reloading because, at the time of the offense (A), the firearm had attached to it a magazine or similar device that could accept more than 15 rounds of ammunition; or (B) a magazine or similar device that could accept more than 15 rounds of ammunition was in close proximity to the firearm. Because the parties assumed that Application Note 2 applies, the panel deemed waived any arguments concerning whether Application Note 2 is inconsistent with the Guideline or whether Section 2K2.1(a)(4)(B) is ambiguous so as to defeat resort to Application Note 2. Because these issues were waived, the panel applied Application Note 2 for the purposes of this appeal.   The panel held that the district court clearly erred in finding, by clear and convincing evidence, that Defendant’s magazine could accept more than 15 rounds, where the government did not physically produce or inspect the firearm or the magazine, and, without physical evidence, the government largely relied on its expert agent, who was, at most, equivocal. View "USA V. FRANCISCO LUCAS, JR." on Justia Law

The United States Forest Service oversees livestock grazing in the Colville National Forest in Eastern Washington, but it does not regulate or participate in the killing of wolves by the Department. Environmental organizations concerned about the wolves sued the Forest Service, challenging its grazing decisions. They alleged that those decisions will lead to an increase in the number of wolf attacks on livestock, which in turn will cause the Department to kill more wolves. The district court dismissed the lawsuit for lack of standing.   The Ninth Circuit affirmed. The panel explained to establish Article III standing, a plaintiff must show it has suffered an injury in fact, the injury is fairly traceable to the challenged action of the defendant, and it is likely that the injury will be redressed by a favorable decision. The Service did not dispute that Plaintiffs had a concrete interest in the welfare of gray wolves in the Colville National Forest. The key issues were whether any injury to the wolves would be caused by the allegedly unlawful conduct of the Service and whether a change in that conduct would redress that injury. Here, the claimed injury arose from the actions of a third party that is two steps removed from the Service. The Service does not kill wolves, nor does it regulate those that do. Rather, Plaintiffs object to grazing because it may lead to depredations, which may, in turn, lead the Department to consider and, in some cases, exercise its discretion to lethally remove wolves. Accordingly, the panel held that Plaintiffs lacked standing to assert their claims against the Service. View "WILDEARTH GUARDIANS, ET AL V. USFS, ET AL" on Justia Law

Plaintiffs, a group of Federal contractor employees and Federal employees working for the Department of Energy, challenged two Executive Orders, Executive Orders 14,042 and 14,043 (EOs), issued in September 2021. 1 Those EOs mandated COVID-19 vaccination for Federal contractor employees and Federal employees, respectively. They also provided for legally required medical or religious exemptions. Plaintiffs challenged the EOs as ultra vires exercises of presidential power in violation of the Federal Property and Administrative Services Act (Procurement Act), the Office of Federal Procurement Policy Act (Procurement Policy Act), the Administrative Procedure Act (APA), the Religious Freedom and Restoration Act (RFRA), the major questions doctrine, and general constitutional federalism constraints. Plaintiffs sought injunctive and declaratory relief to address their allegedly “imminent and wrongful terminations” for failure to comply with the vaccination requirements. The district court held that Plaintiffs who had submitted religious and medical exemptions but who had not yet completed the exemption request process did not have claims ripe for adjudication. The district court then dismissed the operative Second Amended Complaint with prejudice for failure to state a claim and without leave to amend.   The Ninth Circuit affirmed in part and dismissed as moot in part. The panel concluded that the case was moot as to all non-RFRA claims. The vaccine mandate exemption processes that the Plaintiffs challenged were premised on the revoked EOs. The panel held that it could not provide relief from EOs and exemption processes that no longer exist. Accordingly, no live controversy remained between the parties. The panel further concluded that Plaintiffs’ claims for damages under RFRA were precluded by sovereign immunity. View "DAVID DONOVAN, ET AL V. BRIAN VANCE" on Justia Law

Defendant and his attorney created publicly-traded shell corporations and sold them to privately-held companies. The Securities and Exchange Commission (SEC) filed suit against Defendants for violations of the Securities Act of 1933 (Securities Act), the Securities Exchange Act of 1934 (Exchange Act), and SEC Rule 10b5. On cross-motions for summary judgment, the district court held that Defendant had violated the securities laws and imposed equitable statutory remedies, including a civil penalty of $1,757,000. The district court found that, as a matter of undisputed fact, Defendant had received $1,757,000 in gross pecuniary gain from his violations and used that amount for the civil penalty. On appeal, Defendant challenged the amount of that penalty.   The Ninth Circuit reversed the district court’s imposition of the civil penalty. The panel held that Defendant’s declaration that legal fees of $287,500 were paid from the proceeds from the sale of five shell companies established a genuine issue of material fact whether such proceeds should be attributed to his—rather than his attorney’s—gross pecuniary gain. Because Defendant established a genuine issue of material fact whether he received or controlled the entire amount of the proceeds, the district court erred in finding on summary judgment that his gross pecuniary gain was $1,757,000. The panel further held that Defendant identified genuine issues of material fact on two additional factors that the district court considered in imposing the civil penalty: the degree of Defendant’s scienter and his recognition of the wrongful nature of his conduct. View "USSEC V. IMRAN HUSAIN, ET AL" on Justia Law

The United States (“the Government”) initiated a civil forfeiture suit in federal district court against a $380 million arbitration award fund, the majority of which is held in the United Kingdom. The fund belongs to PetroSaudi Oil Services (Venezuela) Ltd. (“PetroSaudi”), a private oil company incorporated in Barbados. PetroSaudi won the award in an arbitration proceeding against Petróleos de Venezuela, S.A. (“PDVSA”), a Venezuelan state energy company. The portion of the fund held in the United Kingdom (“the fund”) is held in an account controlled by the High Court of England and Wales (“the High Court”). The Government seeks forfeiture of the fund on the ground that it derives from proceeds of an illegal scheme to steal one billion dollars from the Malaysian sovereign wealth fund 1Malaysia Development Berhad (“1MDB”). PetroSaudi challenged two orders entered by the district court.   The Ninth Circuit affirmed the district court’s interlocutory orders. The panel held that PetroSaudi’s appeal from the district court’s protective order under 18 U.S.C. Section 983 fell within this exception. Accordingly, the court had jurisdiction to consider the appeals of the two orders. The panel concluded that the sovereign immunity of the United Kingdom, as codified in the FSIA, did not protect the arbitration award fund from the two orders issued by the district court. The panel held that because the district court had in rem jurisdiction over the fund, it did not need in personam jurisdiction over PetroSaudi to issue an order preserving the fund. View "USA V. PETROSAUDI OIL SERV. (VENEZUELA) LTD., ET AL" on Justia Law

After a grand jury indicted Defendant, he pleaded guilty, without a plea agreement, to three counts of cocaine distribution and one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. Section 841(a)(1) and (b)(1)(C). At sentencing, the district court concluded that the two-level Section 2D1.1(b)(1) enhancement applied but found—albeit deeming it a “close call”—that Defendant was entitled to safety valve relief under Section 2D1.1(b)(18). It also found that Section 2D1.1(b)(1) was well-supported by a historical tradition of Second Amendment regulation and rejected Defendant’s constitutional objection. Calculating a total offense level of 15, the court sentenced Defendant to a below-Guidelines term of 15 months in prison. On appeal, Defendant challenged only the constitutionality of U.S.S.G. Section 2D1.1(b)(1) under Bruen.   The Ninth Circuit affirmed the sentence. Applying the two-part test adopted by Bruen, the panel assumed, without deciding, that step one is met—when the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. At step two, however, the panel found Section 2D1.1(b)(1) constitutional because it clearly comports with a history and tradition of regulating the possession of firearms during the commission of felonies involving a risk of violence. View "USA V. MIGUEL ALANIZ" on Justia Law

Plaintiff alleged that when he was a first-year student-athlete at the University of Arizona, his teammates subjected him to frequent “sexual and homophobic bullying” because they perceived him to be gay. He claims that the Arizona Board of Regents and the University of Arizona (“University Defendants”) were deliberately indifferent to his claims of sexual harassment and that they retaliated against him in violation of Title IX. He also brings claims under 42 U.S.C. Section 1983 against two of his coaches (collectively, “Defendant Coaches”). Finally, he sought punitive damages against the Defendant Coaches. The district court dismissed the action.   The Ninth Circuit affirmed in part, vacated in part, and reversed in part the district court’s dismissal of Plaintiff’s action. The panel held that Title IX bars sexual harassment on the basis of perceived sexual orientation. The panel held that discrimination on the basis of sexual orientation is a form of sex-based discrimination under Title IX. The panel held that Plaintiff sufficiently alleged the first, third, and fourth elements of his Title IX harassment claim, but the operative complaint failed to allege a deprivation of educational opportunity. The panel affirmed the dismissal of the harassment claim, vacated the portion of the district court’s order denying leave to amend, and remanded for the district court to consider Plaintiff’s request to amend the complaint again, should he renew that request before the district court. The panel held that the operative complaint sufficiently alleged that Plaintiff suffered harassment on the basis of perceived sexual orientation and that Defendants retaliated against him when they failed to investigate his accusations adequately. View "MICHAEL GRABOWSKI V. ARIZONA BOARD OF REGENTS, ET AL" on Justia Law

The Ninth Circuit reversed the district court’s judgment reversing the bankruptcy court’s order requiring a standing Chapter 13 trustee to return her percentage fee when the case was dismissed prior to confirmation. Joining the Tenth Circuit, the panel held that the trustee was not entitled to a percentage fee of plan payments as compensation for her work in the Chapter 13 case. 28 U.S.C. Section 586(e)(2) provides that the trustee shall “collect” the percentage fee from “payments . . . under plans” that she receives. 11 U.S.C. Section 1326(a)(1) provides for the debtor to make payments in the amount “proposed by the plan to the trustee.” Section 1326(a)(2) provides that the trustee shall retain these payments “until confirmation or denial of confirmation.” This section further provides that if a plan is not confirmed, the trustee shall return to the debtor any payments not previously paid to creditors and not yet due and owing to them. Section 1326(b) provides that, before or at the time of each payment to creditors under the plan, the trustee shall be paid the percentage fee under Section 586(e)(2).   The panel held that, reading these statutes together, “payments . . . under plans” in § 586 refers only to payments under confirmed plans. Prior to confirmation a trustee does not “collect” or “collect and hold” fees under Section 586 but instead “retains” payments “proposed by the plan” pursuant to Section 1326(a)(2). If a plan is not confirmed, then Section 1326(a)(2) requires a return to the debtor of payments “proposed by the plan.” View "IN RE: ROGER EVANS, ET AL V. KATHLEEN MCCALLISTER" on Justia Law