FindLaw Opinion Summaries - 9th Circuit COA

In re: Cohen, No. 09-70378

2009-11-06T00:10:54Z

In mandamus proceedings seeking to overturn the district court's appointment of a law firm as lead counsel in a securities fraud action, the petition is granted in part where the Private Securities Litigation Reform Act made clear that it was the lead plaintiff who selected lead counsel, not the district court. However, the petition is denied in part where the district court was still entitled to approve or disapprove the lead plaintiff's choice of counsel.

Read In re: Cohen, No. 09-70378

Appellate Information

Argued and Submitted September 1, 2009

Filed November 5, 2009

Judges

Opinion by Judge B. Fletcher

Counsel

For Petitioner:

Michael F. Ram, Levy, Ram & Ollson LLP, San Francisco, CA

For Real Party in Interest:

Jonathan K. Levine and Aaron M. Sheanin, Girard Gibbs LLP, San Francisco, CA

In re: Bender, No. 08-15027

2009-11-06T00:04:11Z

In a bankruptcy adversary action seeking avoidance of the transfer of a parcel of real property from the debtor to defendant, defendant's appeal from the Bankruptcy Appellate Panel's (BAP) affirmance of the bankruptcy court's ruling that the doctrine of equitable tolling applied to the trustee's filing of the proceeding is dismissed where the BAP's order was nonfinal.

Read In re: Bender, No. 08-15027

Appellate Information

Argued and Submitted September 3, 2009

Filed November 5, 2009

Judges

Opinion by Judge Wallace

Counsel

For Appellant:

Christopher A. LaVoy, Phoenix, AZ

For Appellee:

David W. Engelman, Phoenix, AZ

US v. Hinkson, No. 05-30303

2009-11-05T23:58:01Z

The Ninth Circuit re-states its "abuse of discretion" standard of review, which now requires it to: 1) consider whether the district court identified the correct legal standard for decision of the issue before it; and 2) determine whether the district court's findings of fact, and its application of those findings of fact to the correct legal standard, were illogical, implausible, or without support in inferences that could be drawn from facts in the record. Defendant's murder for hire conviction is affirmed where, applying the re-stated standard, the district court did not abuse its discretion in denying defendant's motion for a new trial.

Read US v. Hinkson, No. 05-30303

Appellate Information

Argued and Submitted December 16, 2008\

Filed November 5, 2009

Judges

Opinion by Judge Bea

Dissent by Judge B. Fletcher

Counsel

For Appellant:

Dennis P. Riordan and Donald M. Horgan, San Francisco, CA

For Appellee:

John F. De Pue and Michael D. Taxay, Department of Justice, Washington, DC

Crawford v. Astrue, No. 06-55822

2009-11-05T00:06:37Z

In consolidated appeals from fee awards to attorneys who successfully represented Social Security Disability Insurance claimants in federal court under contingent-fee contracts, the awards are vacated where the district court failed to follow the mandate of Gisbrecht v. Barnhart, 535 U.S. 789 (2002), in determining the fee awards.

Read Crawford v. Astrue, No. 06-55822

Appellate Information

Argued and Submitted June 22, 2009

Filed November 4, 2009

Judges

Opinion by Judge B. Fletcher

Partial Concurrence and Partial Dissent by Judge Clifton

Dissent by Judge Bea

Counsel

For Appellants:

Lawrence D. Rohlfing, Santa Fe Springs, CA

For Appellee:

Michael E. Robinson, Department of Justice, Washington, DC

US v. Liera, No. 07-50546

2009-11-04T23:58:55Z

Defendant's alien smuggling conviction is vacated where police unreasonably delayed defendant's arraignment before a magistrate judge to conduct a second interrogation in violation of 18 U.S.C. section 3501(c).

Read US v. Liera, No. 07-50546

Appellate Information

Argued December 10, 2008

Submitted May 5, 2009

Judges

Opinion by Judge Pregerson

Counsel

For Appellant:

Steven F. Hubacheck, Federal Defenders of San Diego, San Diego, CA

For Appellee:

Mark R. Rehe and Bruce R. Castetter, Assistant U.S. Attorneys, San Diego, CA

Vivendi SA v. T-Mobile USA Inc., No. 08-35561

2009-11-04T23:46:56Z

In an action alleging RICO violations in connection with defendants' acquisition of a Polish telecommunications company, the dismissal of the action on forum non conveniens grounds is affirmed where the relevant evidence and witnesses were located in Poland and plaintiff was engaging in forum-shopping.

Read Vivendi SA v. T-Mobile USA Inc., No. 08-35561

Appellate Information

Argued and Submitted August 3, 2009

Filed November 2, 2009

Judges

Opinion by Judge Bea

Counsel

For Appellants:

Lanny J. Davis, Garret G. Rasmussen, Adam W. Goldberg, Orrick, Herrington & Sutcliffe LLP, Washington, DC

For Appellees:

Samuel A. Keesal, Jr., Ben Suter, Robert J. Bocko, Keesal, Young & Logan, San Francisco, CA

Robinson v. US, No. 07-17052

2009-11-04T23:43:47Z

In an action against the U.S. for encroachment onto plaintiffs' easement, the dismissal of the action for lack of subject matter jurisdiction under the Quiet Title Act is vacated where the district court needed to determine whether plaintiffs could assert jurisdiction under the Federal Tort Claims Act.

Read Robinson v. US, No. 07-17052

Appellate Information

Argued and Submitted April 17, 2009

Filed November 2, 2009

Judges

Opinion by Judge Nelson

Counsel

For Appellants:

Joseph P. Mascovich, Randolph Cregger & Chalfant LLP, Sacramento, CA

For Appellee:

Tamara N. Rountree, Environment & Natural Resources Division, U.S. Department of Justice, Washington, DC

US v. Garcia-Villalba, No. 05-30506

2009-11-04T23:34:52Z

In a drug conspiracy prosecution, the denial of defendant's motions to suppress is affirmed where: 1) the government's application to wiretap defendant's residence contained a full and complete statement as to whether or not other investigative procedures would be successful; 2) the issuing judge did not abuse his discretion in finding that the wiretap was necessary; and 3) the district court erred in finding a lack of probable cause to search defendant's residence.

Read US v. Garcia-Villalba, No. 05-30506

Appellate Information

Argued and Submitted July 6, 2009

Filed November 2, 2009

Judges

Opinion by Judge O'Scannlain

Counsel

For Appellant:

Brooks Holland, Gonzaga University School of Law, Spokane, WA

For Appellee:

Michael S. Morgan, Assistant United States Attorney, Seattle, WA

Applied Med. Dist. Corp. v. Surgical Co. BV, No. 09-55155

2009-11-03T16:04:07Z

In an appeal from the district court's denial of an injunction barring defendant from pursuing an action against plaintiff in Belgium, the order is reversed where: 1) the district court applied the wrong legal standard by requiring that the claims in the domestic and foreign action be identical, instead of engaging in the required functional inquiry concerning dispositiveness; and 2) the district court relied on the clearly erroneous factual determination that defendant's Belgian claims, other than goodwill indemnities, were available apart from termination.

Read Applied Med. Dist. Corp. v. Surgical Co. BV, No. 09-55155

Appellate Information

Argued and Submitted September 4, 2009

Filed November 3, 2009

Judges

Opinion by Judge Gould

Counsel

For Appellants:

Richard J. Grabowski, Brian M. Hoffstadt and Edward S. Chang, Jones Day, Irvine, CA

For Appellee:

Bruce H. Jackson and Jerry Salcido, Baker & McKenzie LLP, San Francisco, CA

Ulrich v. Comm'r. of Int'l. Rev., No. 08-70718

2009-11-03T15:56:34Z

In an appeal from the tax court's decision denying taxpayers' appeal from an IRS collection due process hearing, the order is affirmed where the taxpayers' waiver of their right to receive a notice of deficiency did not require acceptance by the IRS to become effective, and the taxpayers had waived their pre-collection right to contest liability.

Read Ulrich v. Comm'r. of Int'l. Rev., No. 08-70718

Appellate Information

Argued and Submitted September 17, 2009

Filed November 3, 2009

Judges

Per Curiam

Counsel

For Petitioners:

Joe Alfred Izen, Jr., Bellaire, TX

For Respondent:

Nathan J. Hochman and Steven W. Parks, Attorneys, Tax Division, Department
of Justice, Washington, DC

Norse v. City of Santa Cruz, No. 07-15814

2009-11-03T15:51:33Z

In a First Amendment action based on plaintiff's ejection from city council meetings, judgment for defendants is affirmed where the ejection was not on account of any permissible expression of a point of view, and plaintiff was protesting the good faith efforts of the chairperson to enforce the council's rules.

Read Norse v. City of Santa Cruz, No. 07-15814

Appellate Information

Argued and Submitted August 3, 2009

Filed November 2, 2009

Judges

Opinion by Judge Bea

Counsel

For Appellants:

Lanny J. Davis, Garret G. Rasmussen, Adam W. Goldberg, Orrick, Herrington & Sutcliffe LLP, Washington, DC

For Appellees:

Samuel A. Keesal, Jr., Ben Suter, Robert J. Bocko, Keesal, Young & Logan, San Francisco, CA

Medical Dev. Int'l. v. Cal. Dept. of Corr., No. 08-15759

2009-10-30T11:46:55Z

In an action to recover payment for medical care provided to prisoners, the removal of the action to the district court is affirmed where the suit was against a federally-appointed receiver and the district court thus had clear jurisdiction over the matter. However, the order dismissing the action is vacated where: 1) plaintiff was not required to obtain permission from the district court to sue defendant-receiver because the action fit within the statutory exception to the general rule requiring an appointing court's permission before suing a receiver in another jurisdiction; and 2) the receiver was not absolutely immune from suit.

Read Medical Dev. Int'l. v. Cal. Dept. of Corr., No. 08-15759

Appellate Information

Argued and Submitted July 16, 2009

Filed October 30, 2009

Judges

Opinion by Judge Clifton

Counsel

For Appellant:

Bennett J. Lee and Garrett E. Dillon, Watt, Tieder, Hoffar & Fitzgerald, LLP, San Francisco, CA

For Appellee:

Michelle M. Mitchell, Deputy Attorney General, Sacramento, CA

Martin H. Dodd, Futterman & Dupree LLP, San Francisco, CA

Gonzalez v. Brown, No. 07-56107

2009-10-30T11:39:45Z

In a drug possession prosecution, denial of petitioner's habeas petition is affirmed where, in view of the relatively low number of peremptory challenges that the prosecutor exercised against African-American jurors, the prosecutor's ability to justify her other peremptory challenges with specificity and to the state court trial judge's satisfaction, as well as the fact that two African-American jurors remained on the jury and a third was a prospective juror, the state court of appeal's denial of petitioner's Batson claim was not contrary to Supreme Court precedent or an objectively unreasonable application of such precedent.

Read Gonzalez v. Brown, No. 07-56107

Appellate Information

Argued and Submitted August 31, 2009

Filed October 30, 2009

Judges

Opinion by Judge Gould

Counsel

For Appellant:

Shawn R. Perez, Law Offices of Shawn R. Perez, Las Vegas, NV

For Appellees:

David F. Glassman, Office of the Attorney General of California, Los Angeles, CA

US v. Moriel-Luna, No. 08-50124

2009-10-29T18:53:14Z

In defendant's appeal from a denial of his motion to dismiss his indictment for illegal reentry into the U.S. by a deported alien, the district court's order is affirmed where: 1) an Immigration Judge (IJ) is not required to act creatively to advise an immigrant of ways in which his legal prospects at forestalling deportation might improve with fundamental changes in his status; 2) the IJ's failure to inform defendant of his section 212(c) options did not prejudice him because he was not entitled to a section 212(c) waiver due to his commission of an aggravated felony; and 3) the IJ was not obligated to grant indefinite continuances if defendant did not produce counsel but refused to waive his right to counsel.

Read US v. Moriel-Luna, No. 08-50124

Appellate Information

Argued and Submitted August 31, 2009

Filed October 29, 2009

Judges

Opinion by Judge Gould

Counsel

For Appellant:

Douglas F. McCormick, Michael J. Raphael, Office of the U.S. Attorney, Santa Ana, CA

For Appellee:

Jonathan D. Libby, Federal Public Defender's Office, Los Angeles, CA

Standard Ins. Co. v. Morrison, No. 08-35246

2009-10-29T18:39:59Z

In an action claiming that a state's practice of disapproving insurance policies with clauses vesting discretion in insurers violated the Employee Retirement Income Security Act (ERISA), summary judgment for defendant-state insurance commissioner is affirmed where: 1) the state's bar on discretionary clauses addresses an insurance-specific problem, because discretionary clauses generally do not exist outside of insurance plans; and 2) the commissioner's practice merely alters the terms by which the presence or absence of the insured contingency is determined; and 3) thus, the state regulatory scheme was saved from preemption under 29 U.S.C. section 1144(a) by the savings clause in section 1144(b).

Read Standard Ins. Co. v. Morrison, No. 08-35246

Appellate Information

Argued and Submitted June 3, 2009

Filed October 27, 2009

Judges

Opinion by Judge O'Scannlain

Counsel

For Appellant:

Meir Feder, Phineas E. Leahey, Shawn Hanson, Katherine Ritchey, Jones Day, LLP, New York, NY

For Appellee:

James G. Hunt, Hunt Law Firm, Helena, MT