9th Circuit Court of Appeals

Opinions Filed in October 2022

Hernandez v. Garland

Aliens convicted of “particularly serious crimes” are not eligible for withholding removal or asylum. 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii). A “particularly serious crime” is a discretionary determination made by weighing multiple factors. Arbid v. Holder, 700 F.3d 379, 383 (9th Cir. 2012).

Area(s) of Law:
  • Immigration

United States v. Richards

The finding that a provision under § 3583 is unconstitutional (1) “applies only when a defendant commits a discrete set of federal criminal offenses specified”, (2) “takes away the judge’s discretion to decide whether violation of a condition of supervised release should result in imprisonment and for how long”, and (3) “limits the judge’s discretion in a particular manner: by imposing a mandatory minimum term of imprisonment of ‘not less than 5 years.’” United States v. Haymond, 139 S. Ct. 2369, 2386 (2019). “[A] district court has discretion to impose concurrent or consecutive sentences after revocation of multiple concurrent terms of supervised release.” United States v. Xinidakis, 598 F.3d 1213, 1217 (9th Cir. 2010).

Area(s) of Law:
  • Criminal Procedure

City of Reno v. Netflix, Inc.

Under Nevada law, courts determine whether a statute creates an implied right of action by considering: "(1) whether the plaintiffs are of the class for whose [special] benefit the statute was enacted; (2) whether the legislative history indicates any intention to create or deny a private remedy; and (3) whether implying such a remedy is consistent with the underlying purposes of the legislative [sch]eme." Baldonado v. Wynn Las Vegas, LLC, 194 P.3d 96 (Nev. 2008).

Area(s) of Law:
  • Civil Procedure

GCIU Emp. Ret. Fund v. MNG Enter.

Actuaries must make “reasonable” assumptions which offer the actuary’s “best estimate” of “anticipated experience” when assessing withdrawal liability for a pension plan. § 1393(a)(1). Using a rate which does not account for expected returns under the plan is not the “best estimate.” United Mine Workers of Am. 1974 Pension Plan v. Energy W. Mining Co., 39 F.4th 730, 740 (D.C. Cir. 2022).

Area(s) of Law:
  • ERISA

Bliss Sequoia Ins. & Risk Advisors, Inc. v. Allied Prop & Casualty Ins. Co.

A broad interpretation of “because of” is not a reasonable one, and "a but-for cause is not always (in fact not often) a cause relevant to legal liability.” United States v. Hatfield, 591 F.3d 945, 948 (7th Cir. 2010).

Area(s) of Law:
  • Insurance Law

Verdun, et. al. v. City of San Diego

The administrative search exception may be reasonable where the primary purpose of a search is distinguishable from the general interest of crime control.

Area(s) of Law:
  • Civil Rights § 1983

Jane Doe v. USDC-NVL

Pursuant to 18 U.S.C. § 3663(a)(3), when a defendant agrees to pay restitution as part of a plea agreement the district court has statutory authority to award restitution. United States v. McAninch, 994 F.2d 1380, 1384 n.4 (9th Cir. 1993); United States v. Soderling, 970 F.2d 529, 534 n.9 (9th Cir. 1992) (per curiam).

Area(s) of Law:
  • Remedies

Cadena v. Customer Connexx, LLC

In determining if an activity performed outside of regular working hours is compensable, the court must consider, “if those activities are an integral and indispensable part of the principal activity for which covered workmen are employed.” Steiner v. Mitchell, 350 U.S. 247, 256 (1956).

Area(s) of Law:
  • Labor Law

Jane Does v. Reddit

“To hold a defendant criminally liable as a beneficiary of sex trafficking, the defendant must have actually engaged in some aspect of the sex trafficking.” United States v. Afyare, 632 F. App’x 272, 286 (6th Cir. 2016).

Area(s) of Law:
  • Civil Law

Mendoza-Linares v. Garland

The “Transit Bar,” which provided that, subject to certain enumerated exceptions, an alien who arrived in the U.S. across the southern border “after transiting through at least one country outside the alien’s country of citizenship, nationality, or last lawful habitual residence en route to the United States” was categorically ineligible for asylum. 8 C.F.R. § 208.13(c)(4) (2020)

Area(s) of Law:
  • Immigration

Shayler v. 1310 PCH

“In ADA cases, a prevailing plaintiff may recover a reasonable attorney’s fee. 42 U.S.C. § 12205. A reasonable attorney’s fee... can be adjusted upward or downward based on other factors. Machowski v. 333 N. Placentia Prop., LLC, 38 F.4th 837, 840-41 (9th Cir. 2022).

Area(s) of Law:
  • Disability Law

United States v. Kabir

USSG § 3B1.1(c) provides that a defendant’s offense level will be adjusted two levels upward if he “was an organizer, leader, manager, or supervisor” in a non-extensive criminal activity involving fewer than five participants. “Plain error is (1) error, (2) that is plain, and (3) that affects substantial rights.” United States v. Waknine, 543 F.3d 546, 551 (9th Cir. 2008).

Area(s) of Law:
  • Sentencing

Lopez v. Garland

The Convention Against Torture prohibits the U.S. from returning anyone to a country where it is more than likely they would be tortured.

Area(s) of Law:
  • Immigration

Planned Parenthood Federation of America, Inc. v. Newman

Under Cohen v. Cowles Media Co., 501 US. 663 (1981), journalists are not immune from generally applicable laws when engaging in newsgathering. Furthering a RICO scheme is not a sufficient independent criminal or tortious purpose to support violations of the Federal Wiretap Act, where the purpose of the RICO scheme and the wiretapping are the same.

Area(s) of Law:
  • First Amendment

Killgore v. Specpro Pro. Servs.

An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation. California Whistleblower Protection Act, section 1102.5(c).

Area(s) of Law:
  • Employment Law

Wakefield v. ViSalus

In determining whether a Plaintiff has established a concrete injury in fact in order to have standing to sue under Article III, “an intangible injury is sufficiently concrete when Congress created a statutory cause of action for the injury.” TransUnion LLC v. Ramirez 141 S. Ct. at 2204–07.

Area(s) of Law:
  • Standing

Dong v. Garland

A credibility determination for an asylum application may be based on the “the demeanor, candor, or responsiveness of the applicant or witness.” See 8 U.S.C. §1158(b)(1)(B)(iii).

Area(s) of Law:
  • Immigration

Bax v. Doctors Med. Ctr. of Modesto Inc.

To avoid discriminating against persons with disabilities, covered entities must ensure meaningful access to their services. The touchstone of the accessibility analysis is whether the entity provided auxiliary aids sufficient to ensure “effective communication” with deaf patients.

Area(s) of Law:
  • Disability Law

Michaels v. Davis

(1) If a suspect “indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent,” officers must cease the interrogation. Miranda v. Arizona, 384 U.S. 436, 473-74 (1966). The Miranda rights invocation must be “unambiguous.” Davis v. United States, 512 U.S. 452, 459 (1994). (2) Ineffective assistance of counsel claims require that “counsel’s performance was deficient,” and that the “deficient performance prejudiced [defendant’s] defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). (3) The dispositive question when defendants complain of conflicts with their attorneys that are conflicts of their own making is whether counsel provided adequate counsel according to standards established in Strickland. See Plumlee v. Masto, 512 F.3d 1204, 1211 (9th Cir. 2008) (en banc). (4) To be competent to stand trial, a defendant must have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . [and] a rational and factual understanding of the proceedings against him.” Cooper v. Oklahoma, 517 U.S. 348, 354 (1996) (alterations in original).

Area(s) of Law:
  • Post-Conviction Relief

Peck v. Montoya

“In evaluating a Fourth Amendment claim of excessive force, we ask whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them.” Rice v. Morehouse, 989 F.3d 1112.

Area(s) of Law:
  • Civil Rights § 1983

Riley v. Volkswagen Group of America

Under BMW v. Gore, three guidelines establish “whether punitive damage awards comply with due process: (1) the reprehensibility of defendant’s conduct; (2) the disparity between . . . harm suffered . . . [and] punitive damages; and (3) the difference between the punitive damages and . . . civil penalties . . . in comparable cases.” BMW v. Gore, 517 U.S. 559, 575 (1996).

Area(s) of Law:
  • Remedies

Hoyos v. Davis

To establish a prima facie case at Step One of a Batson analysis, Defendant bares the burden to show: (1) they are a member of a cognizable group; (2) the prosecutor removed members of that group; and (3) the totality of the circumstances gives rise to an inference that the prosecutor excluded jurors based on race. United States v. Esparza-Gonzalez, 422 F.3d 897, 904 (9th Cir. 2005).

Area(s) of Law:
  • Habeas Corpus

350 Montana v. Haaland

The arbitrary and capricious standard under the APA requires the court 'to determine whether the agency has taken a 'hard look' at the consequences of its actions, 'based [its decision] on a consideration of the relevant factors,' and provided a 'convincing statement of reasons to explain why a project's impacts are insignificant.' Barnes v. U.S. Dep't of Transp., 655 F.3d 1124, 1132 (9th Cir. 2011).

Area(s) of Law:
  • Environmental Law

U.S. v. Holguin

It is within the court's "broad latitude" to deny a Daubert hearing. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 142 (1999).

Area(s) of Law:
  • Criminal Law

Eaton v. Blewett

Under the Prison Litigation Reform Act, prisoners must exhaust “such administrative remedies as are available” before bringing a claim to federal court. 42 U.S.C. § 1997e(a). However, if a claim is not barred if a remedy is effectively unavailable. McBride v. Lopez, 807 F.3d 982, 986 (9th Cir. 2015).

Area(s) of Law:
  • Administrative Law

Mendoza v. Strickler

The State is “free to choose” a variety of measures less intrusive than incarceration, and does not have to accept a defendant escaping punishment for lack of ability to pay a fine. See Williams v. Illinois, 399 U.S. 235, 244–45 (1970); Bearden v. Georgia, 461 U.S. 660, 672 (1983).

Area(s) of Law:
  • Constitutional Law

Mobilize the Message, LLC. v. Bonta

“[T]he First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.” Sorrell v. IMS Health Inc., 564 U.S. 552 (2011).

Area(s) of Law:
  • Constitutional Law

United States v. Saelee

To establish that evidence originally acquired unlawfully has been independently attained, the State must show that, “no information gained from the Fourth Amendment violations “affected either [1] the law enforcement officers’ decision to seek a warrant or [2] the magistrate’s decision to grant it.” Murray, 487 U.S. at 539–40.

Area(s) of Law:
  • Criminal Law

Muñoz v. U.S. Dep't of State

In the case of a visa denial, if the government fails to provide "a facially legitimate and bona fide reason for denying the visa” Kleindienst v. Mandel, 408 U.S. 753, 770 (1972). Or, if despite a "bona fide reason" the petitioner makes an "affirmative showing" of bad faith, judicial review is permitted. Kerry v. Din, 576 U.S. 86, 105 (2015).

Area(s) of Law:
  • Immigration

Ochoa v. Davis

(1) A juror in a capital case is properly excluded for cause where the juror’s views on capital punishment would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” Wainwright v. Witt, 469 U.S. 412, 424 (1985) (cleaned up). (2) Ineffective assistance of counsel claims require that “counsel’s performance was deficient,” and that the “deficient performance prejudiced [defendant’s] defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). In the penalty phase of a capital case, a defendant must show “a reasonable probability that at least one juror” would have voted for a life sentence. Wiggins v. Smith, 539 U.S. 510, 537 (2003). (3) Intellectual disability is defined according to 3 factors: “significantly subaverage intellectual functioning”; “deficits in adaptive functioning”; and “onset of these deficits during the developmental period.” Hall v. Florida, 572 U.S. 701, 710 (2014).

Area(s) of Law:
  • Post-Conviction Relief

Save Our Skies LA v. FAA

Agencies must prepare an environmental impact statement for “major Federal actions significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C). However, the FAA has a “categorical exclusion” for editorial changes which have no effect on the flight path of an airplane, bypassing the typical NEPA impact statement requirement. FAA Order 1050.1F 5-6.5.k; see 40 C.F.R. § 1507.3(e)(2)(ii).

Area(s) of Law:
  • Administrative Law

Chennette v. Porch.com, Inc.

Plaintiff's standing under TCPA 47 U.S.C. § 227(c), stating that businesses cannot use telephone solicitations if “[a] residential telephone subscriber [] has registered his or her telephone number on the national do-not-call registry,” was permitted based on statutory presumption favoring protection.

Area(s) of Law:
  • Standing

USSEC v. Murphy

"When someone places another’s capital at risk by trading securities as his or her agent, he or she is trading securities “for the account of others,” and is a “broker” subject to § 15(a)’s registration requirements. 15 U.S.C. § 78c(a)(4)(A)."

Area(s) of Law:
  • Administrative Law

U.S. v. Rosenow

The Fourth Amendment encompasses a private party’s search if the private party is acting “as an agent of the Government or with the participation of knowledge of any governmental official.” United States v. Jacobsen, 466 U.S. 109, 113 (1984).

Area(s) of Law:
  • Criminal Law

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