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https://www.courtlistener.com/api/rest/v3/opinions/8470480/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Johnston appeals the district court’s order denying his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm. United States v. Johnston, No. 3:00-cr-00135-GCM-1 (W.D.N.C. May 21, 2009). See United States v. Hood, 556 F.3d 226 (4th Cir. 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470482/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Mitchell appeals the district court’s order granting in part and denying in part his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Mitchell, No. 2:90-cr-00020-2, 2009 WL 1290168 (S.D.W.Va. May 8, 2009). We deny Mitchell’s motion for appointment of counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470486/ | *902Dismissed in part; affirmed in part by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Edward Sills seeks to appeal the district court’s order treating his motion to reconsider the denial of his Fed. R.Civ.P. 60(b) motion as a successive 28 U.S.C.A. § 2255 (West Supp.2009) motion, and dismissing it on that basis. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir.2004). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 836-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude Sills has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss in part the appeal.
Additionally, we construe Sills’ notice of appeal and informal brief as an application to file a second or successive motion under 28 U.S.C.A. § 2255. United States v. Winestock, 340 F.3d 200, 208 (4th Cir.2003). In order to obtain authorization to file a successive § 2255 motion, a prisoner must assert claims based on either: (1) newly discovered evidence, not previously discoverable by due diligence, that would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, previously unavailable, made retroactive by the Supreme Court to cases on collateral review. 28 U.S.C.A. § 2255(h) (West Supp.2009). Sills’ claims do not satisfy either of these criteria. Therefore, we deny authorization to file a successive § 2255 motion.
Insofar as Sills appeals the denial of his motion for recusal of a United States District Judge, we affirm. Sills failed to present any legitimate reason for seeking recu-sal.
Accordingly, we affirm in part and deny a certificate of appealability and dismiss in part. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED IN PART; AFFIRMED IN PART. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470488/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kareem Taylor appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion for reduction in sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Taylor, No. 5:06-cr-00057-F-2 (E.D.N.C. May 8, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470479/ | Dismissed by-unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wanda Scott seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and denying relief on her 28 U.S.C. § 2254 (2006) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude that Scott has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We deny Scott’s motions *897to appoint counsel and to consolidate. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470481/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Johnston appeals the district court’s order denying his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm. United States v. Johnston, No. 3:00-cr-00135-GCM-1 (W.D.N.C. May 21, 2009). See United States v. Hood, 556 F.3d 226 (4th Cir. 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470483/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Mitchell appeals the district court’s order granting in part and denying in part his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Mitchell, No. 2:90-cr-00020-2, 2009 WL 1290168 (S.D.W.Va. May 8, 2009). We deny Mitchell’s motion for appointment of counsel. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470485/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles A. Rippy, Jr., appeals the district court’s order granting summary judgment in Defendant’s favor in Rippy’s civil rights action under 42 U.S.C. § 1983 (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Rippy v. North Carolina, No. 5:08-ct-03006-H (E.D.N.C. May 15, 2009). Although we grant Rippy’s application to *899proceed in forma pauperis, we deny his motions requesting release from imprisonment, payment for constitutional violations, and a change in his nationality and race. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470487/ | *902Dismissed in part; affirmed in part by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Edward Sills seeks to appeal the district court’s order treating his motion to reconsider the denial of his Fed. R.Civ.P. 60(b) motion as a successive 28 U.S.C.A. § 2255 (West Supp.2009) motion, and dismissing it on that basis. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir.2004). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 836-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir.2001). We have independently reviewed the record and conclude Sills has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss in part the appeal.
Additionally, we construe Sills’ notice of appeal and informal brief as an application to file a second or successive motion under 28 U.S.C.A. § 2255. United States v. Winestock, 340 F.3d 200, 208 (4th Cir.2003). In order to obtain authorization to file a successive § 2255 motion, a prisoner must assert claims based on either: (1) newly discovered evidence, not previously discoverable by due diligence, that would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, previously unavailable, made retroactive by the Supreme Court to cases on collateral review. 28 U.S.C.A. § 2255(h) (West Supp.2009). Sills’ claims do not satisfy either of these criteria. Therefore, we deny authorization to file a successive § 2255 motion.
Insofar as Sills appeals the denial of his motion for recusal of a United States District Judge, we affirm. Sills failed to present any legitimate reason for seeking recu-sal.
Accordingly, we affirm in part and deny a certificate of appealability and dismiss in part. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED IN PART; AFFIRMED IN PART. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470489/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kareem Taylor appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion for reduction in sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Taylor, No. 5:06-cr-00057-F-2 (E.D.N.C. May 8, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470507/ | MEMORANDUM *
The facts of this case are known to the parties.
Spirtos argues that the bankruptcy-court could not award compensatory civil contempt sanctions to trustee Neilson because he is not a person under 11 U.S.C. § 362(h). However, 11 U.S.C. § 105(a) provides the bankruptcy court with the power to do so. See Havelock v. Taxel (In Re Pace), 67 F.3d 187, 193 (9th Cir.1995).
Nor did the bankruptcy court err in finding that the elements of civil contempt had been established. The court properly found that there was clear and convincing evidence that Spirtos willfully violated a specific and definite order of the court. See Knupfer v. Lindblade (In Re Dyer), 322 F.3d 1178, 1191 (9th Cir.2003); FTC v. Affordable Media, LLC, 179 F.3d 1228, 1239 (9th Cir.1999). The court therefore acted within its discretion by holding Spirtos in civil contempt of court. In light of the complexity and the amount of work required by the trustee’s lawyers to respond to appellants’ violation of the automatic stay, the $48,512.50 award to the trustee was also within the bankruptcy court’s discretion.
The bankruptcy court did not abuse its discretion by refusing to grant Spirtos leave to sue Neilson in district court because the bankruptcy court reasonably determined that Spirtos had failed to allege a prima facie case against Neil-son. See Kashani v. Fulton (In Re Kash-ani), 190 B.R. 875, 885 (B.A.P. 9th Cir. 1995).
Appellants’ other arguments have been considered, and we find them to be without legal merit.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470511/ | PER CURIAM: *
Jose Leandro Portillo-Orellana (Portillo) appeals the sentence imposed following his guilty plea conviction of illegal reentry, in violation of 8 U.S.C. § 1326. Portillo was sentenced within his advisory sentencing guidelines range to a 52-month term of *49imprisonment. We review a district court’s sentencing decision for reasonableness under an abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596-97, 169 L.Ed.2d 445 (2007).
On appeal, Portillo argues that the district court failed to provide adequate reasons both for its imposition of a within-guidelines sentence and its denial of his nonfrivolous arguments for a below-guidelines sentence. Because Portillo failed to raise these challenges in the district court, review is for plain error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.2009), petition for cert. filed (June 24, 2009) (No. 08-11099). To show plain error, the appellant must show a forfeited error that is clear or obvious and that affects his substantial rights. Id. If the appellant makes such a showing, this court has the discretion to correct the error but only if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.
Portillo is correct that the district court erred when it did not adequately explain its reasons for the sentence imposed. See id. at 361-65. However, Portillo has not shown that, without the error, his sentence would have been different. Thus, he has failed to show that the district court’s error affected his substantial rights. See id. at 364-65.
Portillo also argues that his within-guidelines sentence should not be accorded a presumption of reasonableness because U.S.S.G. § 2L1.2, the Guideline used to calculate his advisory sentencing guidelines range, was not promulgated according to usual Sentencing Commission procedures and did not take into account empirical data and national experience. This argument was rejected in Mondragon-Santiago. See id. at 366-67.
Portillo further argues that the Supreme Court’s decisions in Gall and Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), which were issued after his sentencing, broadened the district court’s discretion to impose a non-guidelines sentence. As in Mondragon-Santiago, nothing in the record suggests that the district court was constrained by this court’s precedent from considering all of Portillo’s arguments for a non-guidelines sentence or that the district court believed that it could not deviate from the advisory guidelines range in the absence of extraordinary circumstances. See id. at 365-66. Portillo has not shown that the district court misconstrued its authority to depart down from or to vary from the advisory sentencing guidelines range based on this court’s preGall precedent. Accordingly, as to this issue, no error has been shown, plain or otherwise.
The judgment of the district court is AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470514/ | MEMORANDUM **
Linda and Jan Koncicky appeal pro se from the district court’s June 1, 2004 order denying their motion to reinstate their appeal from the bankruptcy court’s order, which the district court had previously dismissed as untimely. We have jurisdiction pursuant to 28 U.S.C. § 158(d). We review de novo, see Delaney v. Alexander (In re Delaney), 29 F.3d 516, 517 (9th Cir.1994) (per curiam), and we affirm.
The bankruptcy court entered its order awarding attorney fees and costs to Trustee John S. Peterson on February 9, 2004. The Koncickys did not file their notice of appeal until February 22, 2004. The district court therefore dismissed their appeal as untimely. See Fed. R. Bankr.P. 8002(a) (establishing ten day period to file a notice of appeal from entry of bankruptcy court order); Anderson v. Mouradick (In re Mouradick), 13 F.3d 326, 327 (9th Cir. 1994) (“The provisions of Bankruptcy Rule 8002 are jurisdictional; the untimely filing of a notice of appeal deprives the appellate court of jurisdiction to review the bankruptcy court’s order.”).
The district court properly denied Kon-cickys’ “motion to reinstate” because they *136failed to show that the district court’s earlier ruling was in error. See School Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir.1993) (“Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.”).
The district court also properly refused to consider the arguments in the Koncick-ys’ motion to reinstate regarding their eviction and the sale of their home, because these issues are unrelated to the district court’s earlier dismissal of their appeal as untimely.
The Koncickys’ remaining contentions are without merit.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470515/ | MEMORANDUM **
Linda and Jan Koncicky appeal pro se from the Bankruptcy Appellate Panel’s (“BAP”) June 9, 2004 order denying the Koncickys’ third motion to reinstate their appeal from various bankruptcy court orders entered in favor of the Trustee, which the BAP had previously dismissed for failure to prosecute. We have jurisdiction pursuant to 28 U.S.C. § 158(d). We treat the BAP’s denial of the Koncickys’ motion as a denial of reconsideration and review for abuse of discretion. See Nat’l Bank of Long Beach v. Donovan (In re Donovan), 871 F.2d 807, 808 (9th Cir.1989) (per cu-riam) (noting that the denial of reconsideration of a dismissal for failure to prosecute “is appropriately analogized to a Rule 60(b) determination”). We affirm.
The Koncickys contended that their failure to timely prosecute their case was due to a family emergency that kept their attorney out of the office for four months; however, as the BAP noted, the Koncickys’ attorney submitted no “competent evidence” to support his assertions, and “the prolonged delay may have been well within his control.” The BAP acted within its discretion when it denied the Koncickys’ motion to reinstate their appeal because the Koncickys’ failed to satisfy their burden of proving “excusable neglect.” See Pioneer Inv. Serv. Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 395-97, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) (listing factors to consider in determining “excusable neglect” and noting that clients must be held accountable for acts and omissions of their chosen counsel.)
The Koncickys’ remaining contentions lack merit.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470806/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harry Moody petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his 28 U.S.C.A. § 2255 (West Supp.2009) motion. He seeks an order from this court directing the district court to act. Our review of the docket sheet reveals that the district court denied the § 2255 motion and dismissed the action on August 20, 2009, 2009 WL 2600519. Accordingly, because the district court has recently decided Moody’s case, we deny the mandamus petition as moot. We grant leave to proceed in forma pau-peris. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470508/ | MEMORANDUM *
The facts of this case are known to the parties.
Spirtos argues that the bankruptcy-court could not award compensatory civil contempt sanctions to trustee Neilson because he is not a person under 11 U.S.C. § 362(h). However, 11 U.S.C. § 105(a) provides the bankruptcy court with the power to do so. See Havelock v. Taxel (In Re Pace), 67 F.3d 187, 193 (9th Cir.1995).
Nor did the bankruptcy court err in finding that the elements of civil contempt had been established. The court properly found that there was clear and convincing evidence that Spirtos willfully violated a specific and definite order of the court. See Knupfer v. Lindblade (In Re Dyer), 322 F.3d 1178, 1191 (9th Cir.2003); FTC v. Affordable Media, LLC, 179 F.3d 1228, 1239 (9th Cir.1999). The court therefore acted within its discretion by holding Spirtos in civil contempt of court. In light of the complexity and the amount of work required by the trustee’s lawyers to respond to appellants’ violation of the automatic stay, the $48,512.50 award to the trustee was also within the bankruptcy court’s discretion.
The bankruptcy court did not abuse its discretion by refusing to grant Spirtos leave to sue Neilson in district court because the bankruptcy court reasonably determined that Spirtos had failed to allege a prima facie case against Neil-son. See Kashani v. Fulton (In Re Kash-ani), 190 B.R. 875, 885 (B.A.P. 9th Cir. 1995).
Appellants’ other arguments have been considered, and we find them to be without legal merit.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470510/ | MEMORANDUM *
Clinton Irving, administrator for the estate of Marie Francis Holt, appeals two distinct orders of dismissal from the Bankruptcy Appellate Panel (“BAP”) arising out of a single case. The BAP dismissed one appeal because Irving lacked standing, the other because the property had been sold and the ease thus mooted pursuant to the “bankruptcy mootness rule.”1 The BAP offered Irving a stay, but the estate failed to put up the bond required. The property was thereafter sold and the case mooted because failure to obtain a stay is fatal to the case.2 We therefore affirm the BAP’s dismissal of 04-55616 as moot.
We also affirm the BAP decision in 04-55977 that the probate estate lacked standing because it neither objected to the compromise agreement between the “Cinderella Living Trust” and the bankruptcy estate nor demonstrated that it was “adversely affected pecuniarily.”3
*16AFFIRMED. All pending motions in these cases are denied as MOOT.
. In re Onouli-Kona Land Co., 846 F.2d 1170, 1173 (9th Cir. 1988).
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
. See In re National Mass Media Telecommunication Systems, Inc., 152 F.3d 1178, 1181 (9th Cir. 1998).
. In re Fondiller, 707 F.2d 441, 442 (9th Cir. 1983). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470513/ | MEMORANDUM **
Linda and Jan Koncicky appeal pro se from the district court’s June 1, 2004 order denying their motion to reinstate their appeal from the bankruptcy court’s order, which the district court had previously dismissed as untimely. We have jurisdiction pursuant to 28 U.S.C. § 158(d). We review de novo, see Delaney v. Alexander (In re Delaney), 29 F.3d 516, 517 (9th Cir.1994) (per curiam), and we affirm.
The bankruptcy court entered its order awarding attorney fees and costs to Trustee John S. Peterson on February 9, 2004. The Koncickys did not file their notice of appeal until February 22, 2004. The district court therefore dismissed their appeal as untimely. See Fed. R. Bankr.P. 8002(a) (establishing ten day period to file a notice of appeal from entry of bankruptcy court order); Anderson v. Mouradick (In re Mouradick), 13 F.3d 326, 327 (9th Cir. 1994) (“The provisions of Bankruptcy Rule 8002 are jurisdictional; the untimely filing of a notice of appeal deprives the appellate court of jurisdiction to review the bankruptcy court’s order.”).
The district court properly denied Kon-cickys’ “motion to reinstate” because they *136failed to show that the district court’s earlier ruling was in error. See School Dist. No. 1J, Multnomah County v. ACandS, Inc., 5 F.3d 1255, 1262-63 (9th Cir.1993) (“Reconsideration is appropriate if the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.”).
The district court also properly refused to consider the arguments in the Koncick-ys’ motion to reinstate regarding their eviction and the sale of their home, because these issues are unrelated to the district court’s earlier dismissal of their appeal as untimely.
The Koncickys’ remaining contentions are without merit.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470807/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harry Moody petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his 28 U.S.C.A. § 2255 (West Supp.2009) motion. He seeks an order from this court directing the district court to act. Our review of the docket sheet reveals that the district court denied the § 2255 motion and dismissed the action on August 20, 2009, 2009 WL 2600519. Accordingly, because the district court has recently decided Moody’s case, we deny the mandamus petition as moot. We grant leave to proceed in forma pau-peris. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470517/ | MEMORANDUM ***
The parties are familiar with the facts of this case and we do not repeat them here. Jordan Hastings appeals the district court’s grant of summary judgment in favor of Tahoe Regional Planning Agency (“TRPA”) on his claims of retaliation in *239violation of the First Amendment and tor-tious discharge, arguing that temporal proximity between his allegedly protected speech and his termination gives rise to an inference of causation.
Our cases indicate that we should not consider the length of time between a protected activity and an adverse employment action “without regard to its factual setting.” Coszalter v. City of Salem, 320 F.3d 968, 978 (9th Cir.2003). Thus, “there is no set time within which acts necessarily support an inference of retaliation.” Id. Hastings has not offered any evidence other than timing to rebut what otherwise appears to be a termination resulting from his poor job performance and inter-personal skills. Indeed, Hastings has not even asserted that he believes that TRPA retaliated against him for his allegedly protected speech. Moreover, he points to no evidence that his informing his superiors of the licensing problems was unwelcome; TRPA has provided uncontroverted evidence that it was aware of problems in this area and wanted to fix them.
Under these circumstances, we refuse to make “a complaint tantamount to a ‘get out of jail free’ card” based solely on the timing of Hastings’ informing his superiors of the software licensing issues. Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir.2000).
Hastings’ tortious discharge suffers from the same infirmity; he cannot demonstrate any causal connection between his raising the software issues and his termination.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470519/ | MEMORANDUM *
Jose Noriega-Encinas, a native and citizen of Mexico, appeals his conviction for illegal re-entry into the United States after deportation, in violation of 8 U.S.C. § 1326, on the ground the district court erred by finding him competent to stand trial.
First, the district court did not commit plain error by failing sua sponte to order an additional competency hearing the week before trial, because three other competency hearings in the previous ten years, including one six months before trial, had determined Noriega-Encinas was competent to stand trial and that he might have been malingering. See Odle v. Woodford, 238 F.3d 1084, 1087 (9th Cir.2001) (holding a competency hearing is necessary only if a reasonable judge would have a “bona fide” doubt about the defendant’s competence).
Second, the district court’s query whether Noriega-Encinas wished to proffer evidence or make a statement regarding his competency did not “shift” the burden of proof. It was an inquiry as to whether Noriega-Encinas wished to present evidence. Further, even if it had done so, the Supreme Court has held the allocation of the burden of proof “will affect competency determinations only in a narrow class of cases where the evidence is in equipoise.” Cf. Medina v. California, 505 U.S. 437, 449, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992). The number of evaluations that concluded Noriega-Encinas was eom-*241petent to stand trial (compared to the absence of any finding him incompetent) rendered the evidence far from “in equipoise.”
Finally, the district court did not commit clear error by finding NoriegaEncinas competent. See United States v. Friedman, 366 F.3d 975, 980 (9th Cir.2004). Several competency evaluations concluded he was competent, he presented himself lucidly and clearly during trial, and there was no evidence that Noriega-Encinas was unable to assist his counsel in preparing for or during trial.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470521/ | MEMORANDUM *
Michael Ogden, as Special Administrator of the Estate of Charles Ogden, appeals the district court’s decision granting the defendants’ motion for summary judgment and finding that Officer Clifford Pacheco was entitled to qualified immunity. We affirm.
“Claims of excessive and deadly force are analyzed under the Fourth Amendment’s reasonableness standard.” Long v. City & County of Honolulu, 511 F.3d 901, 906 (9th Cir.2007). “Factors to consider include the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. (internal quotation marks omitted). This court views officer safety as “the most important of the three ... factors.” Miller v. Clark County, 340 F.3d 959, 964 (9th Cir.2003).
In this case, the facts before the district court established, among other things, that (1) Ogden sprayed bear deterrent at Officer Pacheco, (2) bear deterrent is capable of causing irreversible eye damage, (3) Ogden did not drop the bear deterrent or attempt to flee the scene even after temporarily incapacitating Officer Pacheco, but instead continued to spray the deterrent while advancing toward Officer Pacheco, and (4) Officer Pacheco reasonably feared that Ogden intended to kill him and/or John Lucia and reasonably believed that shooting Ogden was the only way to protect himself and Lucia. On these facts, we do not believe that Officer Pacheco’s conduct constituted a Fourth Amendment violation. In any event, Officer Pacheco is entitled to qualified immunity. It certainly would not have been clear to a reasonable officer that Officer Pacheco’s “conduct was unlawful in the situation he confronted.” Wilkins v. City of Oakland, 350 F.3d 949, 954 (9th Cir.2003) (internal quotation marks omitted).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470523/ | *246MEMORANDUM *
Dennis Hirokawa, Michael Furukawa, and Richard Okada appeal their convictions and sentences for conspiracy to commit mail fraud in violation of 18 U.S.C. § 371 and (excluding Okada) several counts of mail fraud in violation of 18 U.S.C. § 1341. Appellants were convicted along with co-defendant Wesley Uemura— who has not appealed his conviction or sentence — based on their participation in a bid-rigging scheme for the award of small purchase contracts for maintenance and repair work at the Honolulu International Airport. For the reasons stated below, we affirm the judgments of the district court.
1. The district court did not abuse its discretion in admitting the expert opinion testimony of Kenneth Goldblatt under Federal Rule of Evidence 702. With respect to qualifications, the district court was well within its discretion in finding that Goldblatt’s decades of experience in construction and estimation qualified him to give testimony on the reasonable value of nonstructural, routine or cosmetic repairs at the airport, notwithstanding the court’s concurrent determination that Goldblatt was unqualified to testify about structural repairs or other project's implicating regulations or considerations unique to airports.
The district court also did not abuse its discretion in finding Goldblatt’s estimation methods to be sufficiently reliable. Appellants’ criticisms of those estimations — e.g., his assumptions for labor, overhead and profit, and his failure to account for other costs and contingencies — go to the probative weight, rather than the admissibility, of the evidence and were properly the subjects of “[vjigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
We also reject appellants’ contention that Goldblatt’s expert testimony as to the value of the work performed was irrelevant to the fraud charges against them. Although appellants attempt to characterize Goldblatt’s testimony as pertaining to only the value of the completed work, the record reflects that Goldblatt’s estimates also accounted for a reasonable profit, costs of labor, overhead and other costs that could be factored into a contractor’s bid. Appellants themselves acknowledge as much in criticizing the assumptions underlying those estimates. Moreover, as alleged in the indictment, the bid-rigging scheme appellants perpetrated was specifically designed to eliminate yet still give the appearance of competitive bidding in order to obtain government contracts that were “falsely and fraudulently inflated above a fair and reasonable value for the work allegedly performed.” It was hardly an abuse of discretion to conclude that Goldblatt’s estimates of the value of the work performed would “logically advance! ] a material aspect of the [government’s] case,” Daubert v. Merrell Dow Pharms, Inc., 43 F.3d 1311, 1315 (9th Cir.1995), and “assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702.
2. The district court did not abuse its discretion in denying appellant Hirokawa’s request to testify in surrebuttal. “A trial court has broad discretion to admit or exclude rebuttal or surrebuttal evidence,” United States v. McCollum, 732 F.2d 1419, *2471426 (9th Cir.1984), including limiting such evidence “to new evidence.” United States v. Clark, 617 F.2d 180, 187 (9th Cir.1980); see generally Geders v. United States, 425 U.S. 80, 86-87, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976).
Hirokawa’s proffer did not include new evidence. Rather, Hirokawa requested surrebuttal to revisit his prior testimony regarding his contacts with Richard “Skinny” Sugita at the state legislature after his co-defendant, Okada, testified during the defense’s case-in-chief, and then the government’s rebuttal witness confirmed, that Sugita had retired from his post as Sergeant at Arms in 1982 and then passed away in 1995 or 1996, prior to the relevant time periods that Hirokawa claimed to have, been working with him. It was not an abuse of discretion for the district court to deny Hirokawa’s request to use surre-buttal not to impeach the government’s witness, but merely to give additional testimony regarding his contacts at the state legislature — an issue Hirokawa himself raised and had the opportunity to thoroughly address during his case-in-chief. See United States v. Gaines, 170 F.3d 72, 83 (1st Cir.1999) (no abuse of discretion in denying surrebuttal evidence that related to an issue “raised prior to the prosecution’s rebuttal, by [defendant] in his own case-in-chief’ and that would not have impeached the prosecution’s rebuttal witness).
3. The district court did not commit reversible plain error in failing to instruct the jury that it could convict on the charge of conspiracy to commit mail fraud only if it found the commission of an overt act within the applicable five-year statute of limitations, 18 U.S.C. § 3282. Under United States v. Fuchs, 218 F.3d 957, 962 (9th Cir.2000), the failure to give a statute of limitations instruction in this case was ei'ror, and the error was plain. But unlike in Fuchs, appellants here have failed to carry their burden of showing prejudice. See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
In Fuchs, it was “impossible to discern” from the jury’s general verdict on conspiracy whether it found the commission of an overt act within the statute of limitations or whether it convicted solely based on overt acts occurring outside the limitations period. 218 F.3d at 962 n. 1, 963. By contrast, although appellants assert that the jury “might have relied on the time-barred overt acts,” they fail to establish that their conspiracy convictions might have been solely based on the time-barred overt acts.
Besides convicting defendants Hirokawa, Furukawa, Uemura and Okada on the charge of conspiracy to commit mail fraud, the jury also convicted Hirokawa, Furukawa and Uemura on several counts each of substantive mail fraud based on conduct that also supported the conspiracy charge and occurred within the same five-year limitations period. Taken together, the jury’s mail fraud and conspiracy verdicts necessarily establish a finding that “one or more” co-conspirators performed at least one or more timely overt acts, providing a legally adequate basis for the conviction of “each” co-conspirator on the conspiracy charge. 18 U.S.C. § 371; see also Braverman v. United States, 317 U.S. 49, 53, 63 S.Ct. 99, 87 L.Ed. 23 (1942) (“The overt act ... may be that of only a single one of the conspirators and need not be itself a crime.”); United States v. Andreen, 628 F.2d 1236, 1248 (9th Cir.1980) (the “only function” of proof of an overt act “is to demonstrate that the conspiracy is operative”). The instructional error was therefore harmless. See United States v. DeGeorge, 380 F.3d 1203, 1215-16 (9th Cir.2004) (distinguishing Fuchs where defen*248dant’s convictions on four counts of perjury, which were not time-barred and could constitute overt acts for purposes of conspiracy, provided a legally adequate basis for his conspiracy conviction).
4. The district court did not commit plain error by omitting a jury instruction on “good faith” as a defense to mail fraud. It is undisputed that the district court gave correct jury instructions on the essential elements of mail fraud and on the definition of “intent to defraud” as “an intent to deceive or cheat.” “Inasmuch as good faith is the obverse of intent to defraud, the district court’s instruction that the jury had to find that [defendants] acted with a specific intent to defraud can be deemed an instruction on good faith. Thus, there was no ‘plain error.’ ” United States v. Cusino, 694 F.2d 185, 188 (9th Cir.1982) (citations omitted); see also United States v. Shipsey, 363 F.3d 962, 967 (9th Cir.2004) (“Our case law is well settled that a criminal defendant has ‘no right’ to any good faith instruction when the jury has been adequately instructed with regard to the intent required to be found guilty of the crime charged, notwithstanding the normal rules governing ‘theory of defense’ requests.”).
5. Sufficient evidence supports the jury’s finding that appellants caused the use of the United States mails for purposes of their mail fraud convictions. Circumstantial evidence regarding “routine custom and practice can be sufficient to support the inference that something is mailed.” United States v. Green, 745 F.2d 1205, 1208 (9th Cir.1985). “Direct proof of mailing is not required.” Id.
In this case, the government presented testimony by the accounting systems manager in the pre-audit branch of the Hawaii Department of Accounting and General Services regarding that agency’s procedures for issuing checks to pay vendors and contractors for other state agencies. She testified that under those procedures, checks issued by the department are either routed back to the requesting state agency or mailed to the payee, depending on the how the summary warrant voucher is coded. If the warrant routing indicator is blank, the check is to be mailed and is given to a courier for delivery to the post office. For the checks at issue here, the agency’s records showed that for each check that was issued the respective warrant routing indicator was blank and the processing clerk had written a slash through the word “mail,” rather than slashing “del” for delivery. Based on these records, the government’s witness testified that all the checks were mailed through the United States mail. This evidence was sufficient to enable the jury to find the checks were mailed. See Green, 745 F.2d at 1208; United States v. Miller, 676 F.2d 359, 362 (9th Cir.1982); United States v. Brackenridge, 590 F.2d 810, 811 (9th Cir.1979) (per curiam); cf. United States v. Lo, 231 F.3d 471, 476-77 (9th Cir.2000) (holding that “custom and practice evidence alone” was insufficient because of “the absence of any direct evidence of the document’s existence,” let alone its delivery into the mail system).
6. Sufficient evidence also supports appellant Hirokawa’s conviction on Count 30. Even though the district court struck the testimony of the government’s expert regarding the estimated value of the work performed on the underlying contract, we reject Hirokawa’s assertion that there was insufficient evidence the State of Hawaii was defrauded. The government submitted substantial evidence regarding the nature of the defendants’ bid-rigging scheme and that they followed the same modus operandi regarding the contract at issue in Count 30, including Hirokawa’s usual Post-it note identifying the contrac*249tor to be called (in this instance, a company owned by co-defendant Uemura) and the contractor’s submission of two forged bids along with its own lower bid, which was inevitably accepted. Furthermore, even without an expert’s opinion, the jury was independently capable of determining that the contract was fraudulently inflated based on the contract price ($8,860), the jury’s own evaluation of the nature of the project and the work performed (the repair of a plate cover of a door closure mechanism), and the deceptive manner in which the contract was obtained.
7. With respect to sentencing, the record belies appellants’ contention that the district court failed to make requisite factual findings in determining relevant conduct under U.S.S.G. § 1B1.3 (2006). A district court may satisfy its duty to make specific findings regarding relevant conduct by adopting the factual findings of the presentence report. United States v. Naranjo, 52 F.3d 245, 249 (9th Cir.1995). Besides making express findings regarding Furukawa’s and Hirokawa’s roles in the conspiracy, for purposes of § IB 1.3 specifically the district court overruled each appellant’s objections and adopted the respective PSR’s factual statements and its findings and calculations as to relevant conduct and amount of loss. Furthermore, each appellant’s PSR contained specific factual findings on his reasonably foreseeable conduct and the losses attributable to him. Cf. United States v. Whitecotton, 142 F.3d 1194, 1198-99 (9th Cir.1998) (reversing where the district court “did not explicitly adopt any part of the presentence report” and even if it had the PSR’s findings would have been insufficient to sustain the sentence).
8. The district court did not clearly err in calculating the amount of loss attributable to each appellant. “The court need only make a reasonable estimate of the loss” based on “available information,” and may include in its accounting “[t]he approximate number of victims multiplied by the average loss to each victim,” with credit for “the fair market value of ... the services rendered.” U.S.S.G. § 2B1.1 cmt. 3(C), (E)(i); United States v. Scrivener, 189 F.3d 944, 949-50 (9th Cir.1999). That is precisely the method the district court adopted here. Also, given that the contracts reviewed by the government’s expert evidenced an overbilling range of 68 to 90 percent, the district court’s application of the “much more conservative” 68 percent multiplier to the remaining contracts was not unreasonable.
With respect to appellants’ more specific objections to the court’s loss calculations, we reject their contention that the district court acted unreasonably in adopting the overbilling estimations by Goldblatt, the government’s expert, including those for contracts awarded between July 1997 and September 1998. The district court, having presided over the entire trial and hearing all the testimony, was in the best position “to assess the evidence and estimate the loss based upon that evidence.” U.S.S.G. § 2B1.1 cmt. 3(C). We also reject appellants’ assertion that the district court failed to apply an offsetting adjustment for six contracts for which Goldblatt’s estimates exceeded the contract prices. Appellants’ assertion is unsupported by any citation to the record and is contradicted by Goldblatt’s testimony at trial and the PSRs, which indicate that all contracts reviewed by Goldblatt— including the six “underbid” contracts— were accounted for in the district court’s total loss calculations.
9. The district court did not commit plain error by including in its restitution orders $689,685 that the Hawaii Department of Transportation paid to re-*250imhurse the Hawaii Attorney General’s Office for investigative costs. Under the Mandatory Victim Restitution Act, the district court was required to order — -and as the “victim” of appellants’ bid-rigging scheme, the Department of Transportation was entitled to receive — restitution for “expenses incurred during participation in the investigation or prosecution of the offense,” 18 U.S.C. § 3663A(b)(4), although not for “the costs of gathering evidence solely for a criminal investigation.” United States v. Phillips, 367 F.3d 846, 863 (9th Cir.2004) (emphasis added).
Appellants’ assertion that the investigative costs here exclusively fall into the latter category is unsupported by any evidence in the record. Appellants offer only their observation that the prosecution of criminal matters is among the various duties of the state attorney general. Furthermore, they fail to account for the Department of Transportation’s need to investigate the causes and extent of its losses and pursue relief outside the criminal arena, including the agency’s civil proceedings against the various participants in the airport bid-rigging scheme. Cf. id. (holding that the Environmental Protection Agency could recover site investigation costs that were incurred “to determine what damage the defendant’s conduct caused and to design an appropriate cleanup plan”); United States v. Cummings, 281 F.3d 1046, 1052 (9th Cir.2002) (holding that a mother’s “attorney’s fees, which were incurred in an attempt to regain custody of her children, were a direct and foreseeable result of [the defendant’s] improper removal and retention of them”). Thus, although it is their burden to do so, appellants fail to establish any clear or obvious error here. See Olano, 507 U.S. at 734, 113 S.Ct. 1770; Fuchs, 218 F.3d at 962.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470527/ | MEMORANDUM ***
The parties are familiar with the facts of this case, so we do not repeat them here.
Eric Hague appeals the district court’s grant of summary judgment in the Defendants’ favor on his claims under 42 U.S.C. § 1983. He maintains that questioning and refusing to obey orders from his superiors amounted to protected speech because it touched on a matter of public concern. The district court rejected that argument, and we affirm.
The content, form, and context of Hague’s speech is critical to the analysis of his First Amendment claim. Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir.2003). Here, those factors cut sharply *254against Hague, who spoke as a disgruntled employee rather than a concerned citizen, and whose manifest intent was to challenge his job description rather than critique policy or bring an injustice into the public’s view. Generally speaking, speech is not of public concern if it merely communicates a personnel dispute or grievance, and if it is not relevant to the public’s evaluation of government. Id. “Underlying our cases has been the premise that while the First Amendment invests public employees with certain rights, it does not empower them to constitutionalize the employee grievance.” Garcetti v. Ceballos, 547 U.S. 410, 420, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). Hague was repeatedly admonished that the bulk of his time should be spent safeguarding University students, faculty, staff, and property, not policing outside traffic. He does not have a First Amendment right to communicate his disagreement with that policy through disobedience.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470529/ | MEMORANDUM ***
Bruce Darían appeals pro se from the district court’s judgment under Federal Rule of Civil Procedure 54(b) in favor of state court-appointed receiver David Pasternak and his law firm. We lack jurisdiction and therefore must dismiss the appeal.
For purposes of determining the timeliness of a Notice of Appeal, the United States is only considered a party in a qui tam action under the False Claims Act if it formally intervenes. See United States ex rel. Eisenstein v. City of New York, — U.S. -, 129 S.Ct. 2230, 2233-35, 173 L.Ed.2d 1255 (2009). Because the United States never intervened, Darían had only thirty days, not sixty, to file his Notice of Appeal. See Fed. R.App. P. 4(a)(1)(A). He failed to do so and therefore we lack jurisdiction.
DISMISSED.
ORDER
The memorandum disposition filed on June 5, 2009, is withdrawn in light of United States ex rel. Eisenstein v. City of New York, — U.S. -, 129 S.Ct. 2230, 173 L.Ed.2d 1255 (2009). The attached memorandum disposition is filed in its stead.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470533/ | MEMORANDUM *
Roseanne Barnes (“Barnes”) appeals the summary judgment in favor of GE Security, Inc., and related defendant companies (“GE”). Barnes argues that summary judgment was inappropriate because genuine issues of material fact exist as to whether GE terminated her in retaliation for her use of the workers’ compensation system or because she was disabled, whether GE failed to grant her a reasonable accommodation for her disability, and whether GE’s justification for terminating her was pretext. We have jurisdiction under 28 U.S.C. § 1291. We review “the district court’s grant of summary judgment de novo, drawing all reasonable inferences supported by the evidence in favor of ... the nonmoving party,” Noyes v. Kelly Servs., 488 F.3d 1163, 1167 (9th Cir.2007), and we affirm.
I. Barnes’s workers’ compensation claim
Barnes alleged that GE unlawfully terminated her because she invoked the workers’ compensation system. See Or. Rev.Stat. § 659A.040. Although the evidence indicates that Barnes invoked the workers’ compensation system and suffered an adverse employment action, she cannot establish that GE terminated her because of her workers’ compensation claim. See Stanich v. Precision Body & Paint, Inc., 151 Or.App. 446, 457, 950 P.2d 328 (Or.Ct.App.1997), abrogated on another ground by Barackman v. Anderson, 214 Or.App. 660, 167 P.3d 994 (Or.Ct.App.2007). GE put forth evidence establishing that Barnes was in violation of its attendance policy, that it informed her of the violations, and that it warned her that continued absences would result in termination. GE also submitted comparative evidence showing that of the 67 employees terminated between January 1, 2004 and April 2007, only one had filed a workers’ compensation claim in the year prior to termination, and that fourteen were terminated because of attendance policy violations. Barnes has attempted to show that GE’s asserted reason was pretext because her termination occurred after she began pursuing a workers’ compensation claim. She also asserts that a statement by GE in her termination letter acknowledged her health concerns. She also makes an unsupported allegation that GE did not follow its attendance policy when it made the decision to terminate her employment. In light of the evidence that GE presented, however, we conclude that Barnes has failed to raise a genuine issue of material fact as to pretext through either direct *262evidence of discriminatory motive or indirect evidence that would undermine GE’s articulated reason for her termination. See Noyes, 488 F.3d at 1170-71. She was fired for failing to report to work.
II. Barnes’s disability discrimination claim
Barnes also alleged that GE terminated her employment because she was disabled or regarded as disabled, and had a record of disability. Although Barnes sued under the Oregon anti-discrimination laws, those laws are, as the district court pointed out, “similar in nearly all significant ways.” See Or.Rev.Stat. § 659A.139. Because Barnes filed suit prior to the effective date of the Americans with Disabilities Act Amendments of 2008, the standards from Toyota Motor Manufacturing., Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002), and Sutton v. United Air Lines Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), govern the determination of whether she is disabled. See Rivers v. Roadway Express, 511 U.S. 298, 311, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994) (holding that “clear evidence of intent to impose the restorative statute ‘retroactively ” is required to overcome the presumption against retroactive amendments).
Barnes testified during deposition that she had experienced two or three significant panic attacks after being diagnosed with her anxiety condition in 2000, and that she was “pretty much” able to control her condition with medication. Furthermore, Barnes received at least one promotion, a favorable performance review, and a pay increase during her employment with GE. This evidence establishes that her anxiety is largely controllable with medication and does not prevent or severely restrict her from working, or doing any other daily activities of central importance to her life. Therefore, Barnes has failed to raise a genuine issue of material fact that this impairment is substantially limiting. See Williams, 534 U.S. at 198, 122 S.Ct. 681; Sutton, 527 U.S. at 475, 119 S.Ct. 2139; Washburn v. Columbia Forest Prods., Inc., 340 Or. 469, 474, 134 P.3d 161 (Or.2006).
Barnes’s arguments that GE regarded her as disabled and that she had a record of disability fail for similar reasons. None of the evidence that Barnes submitted indicated that GE believed that her anxiety substantially limited her in a major life activity such as her ability to work. See Walton v. United States Marshals Serv., 492 F.3d 998, 1006 (9th Cir.2007). Although the documents related to the period of short-term disability leave that Barnes took from December 2000 through January 2001 indicate that GE may have been aware of her anxiety, Barnes’s failure to raise a genuine issue of material fact of whether her anxiety is a substantially limiting impairment necessarily means that any record of it “would not meet the requirements of’ the ADA. Id. at 1011.
III. Barnes’s reasonable accommodation claim
Because Barnes has failed to raise a genuine issue of material fact as to whether she was disabled within the meaning of Oregon law, she cannot establish that she was entitled to a reasonable accommodation. See 42 U.S.C. § 12112(b)(5)(A) (making it unlawful to refuse a reasonable accommodation to “an otherwise qualified individual with a disability ”) (emphasis added); Or. Rev. Stat § 659A.112(2)(e).
Therefore, the district court’s grant of summary judgment is
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470535/ | MEMORANDUM **
Vickie Dykman appeals her conviction for misappropriation of postal funds in violation of 18 U.S.C. § 1711. She challenges the district court’s denial of her Federal Rule of Criminal Procedure 29 motion for a judgment of acquittal. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*264We review de novo Dykman’s challenge to the sufficiency of the evidence. United States v. Williams, 547 F.3d 1187, 1195 n. 6 (9th Cir.2008). Examining the evidence in the light most favorable to the government, we must determine whether a rational jury “could have found the essential elements of the crime beyond a reasonable doubt.” Id. At issue in this appeal is the element of conversion.1 Dykman asserts that the evidence was insufficient to show actual loss, and that in any event, an accounting discrepancy, without more, is insufficient to show conversion. After a careful review of the evidence presented to the jury, we disagree. We conclude that a rational jury could have found that the element of conversion was satisfied.
We first address Dykman’s contention that the government failed to present sufficient evidence of loss because it did not conduct an independent audit of the post office or otherwise verify the existence of the stock shortage indicated by the post office’s own financial records. We disagree. The records, kept by Dykman herself, both alerted the government to the existence of the shortage and informed it of the amount of that shortage. Indeed, Dykman testified that she kept the records accurately, always accounting for stock when it arrived from the Stamp Distribution Office. We conclude that a rational jury could have inferred from this evidence that a shortage of the amount indicated by Dykman’s records, over $7,000, actually existed. See Williams, 547 F.3d at 1195 n. 6.
Second, as to the evidence of conversion, Dykman argues that a “mere accounting discrepancy,” absent evidence that a particular amount of money or a specific stamp was actually taken, is insufficient to support the jury’s finding of conversion. Again, we disagree. Dykman, as the sole full-time employee of the post office, was the only person with access to her own personal stock drawer. Moreover, both Dykman and the only other person with access to any of the stock in the office testified that they had nothing to do with the shortage. A rational jury could have disbelieved Dykman and concluded that she, as head postmaster, was responsible for the substantial shortage. See Williams, 547 F.3d at 1195 n. 6; accord United States v. Powell, 413 F.2d 1037, 1038 (4th Cir.1969).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. 18 U.S.C. § 1711 provides, in relevant part, that
Whoever, being a Postal Service officer or employee, loans, uses, pledges, hypothe-cates, or converts to his own use, or deposits in any bank, or exchanges for other funds or property, except as authorized by law, any money or property coming into his hands or under his control in any manner ... shall be fined under this title ... or imprisoned not more than ten years....
The district court instructed the jury that it was required to find that Dykman “knowingly and unlawfully converted to her own use money or property coming into her control as a postal employee.” | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470537/ | MEMORANDUM **
Patrick A.T. Jones (“Jones”) appeals the district court’s grant of summary judgment in favor of the Washington Interscholastic Activities Association (“WIAA”). We review the district court’s grant of summary judgment de novo, Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950, 956 (9th Cir.2009), and we affirm.
Jones has not shown that a contractual right to coach football at a public high school is a “fundamental right” protected by the equal protection clause of the Fourteenth Amendment. See Dittman v. California, 191 F.3d 1020, 1031 n. 5 (9th Cir.1999) (“The [Supreme] Court has never held that the ‘right’ to pursue a profession is a fundamental right, such that any state-sponsored barriers to entry would be subject to strict scrutiny”). Jones also has not shown that football coaches are deserving of suspect classification as a protected class under the Fourteenth Amendment. See City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976). Accordingly, because Jones has not asserted discrimination on the basis of a suspect class or denial of a fundamental right, the rational basis test applies to his equal protection claim. See id; McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961) (where the classification involved is not suspect and does not infringe upon fundamental rights, a statutory determination will not be set aside if any set of facts reasonably may be conceived to justify it).
The WIAA’s Out-of-Season Rule passes rational basis review because it is rationally related to the WIAA’s legitimate state interest of creating safe and equitable competition for student athletes. Any resulting incongruity between the treatment of public and private school coaches under the WIAA Out-of-Season Rule resulting from geographic school boundaries also passes rational basis review, as parallel regulatory schemes need not be perfectly identical, as long as they are rationally related to legitimate state interests. Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976).
The denial of Jones’ request for a waiver is within the WIAA’s discretionary decision-making authority and does not constitute arbitrary or capricious agency action because Jones was treated no differently from any other public school coach governed by the WTAA’s Out-of-Season Rule. See Chapman v. Pub. Util. Dist. No. 1 of Douglas Co., Wash., 367 F.2d 163, 168 (9th Cir.1966) (recognizing that when an action is “exercised honestly, fairly, and upon due consideration^ it] is not arbitrary and capricious, even though there may be room for a difference of opinion upon the course to follow”).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9lh Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477800/ | ORDER
Petitioner having filed the required Statement Concerning Discrimination, it is,
ORDERED that the order of dismissal and the mandate be, and the same hereby are, VACATED and RECALLED, and the petition for review is REINSTATED.
Petitioner’s brief is due within 60 days from the date of filing of this order. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470518/ | MEMORANDUM ***
The parties are familiar with the facts of this case and we do not repeat them here. Jordan Hastings appeals the district court’s grant of summary judgment in favor of Tahoe Regional Planning Agency (“TRPA”) on his claims of retaliation in *239violation of the First Amendment and tor-tious discharge, arguing that temporal proximity between his allegedly protected speech and his termination gives rise to an inference of causation.
Our cases indicate that we should not consider the length of time between a protected activity and an adverse employment action “without regard to its factual setting.” Coszalter v. City of Salem, 320 F.3d 968, 978 (9th Cir.2003). Thus, “there is no set time within which acts necessarily support an inference of retaliation.” Id. Hastings has not offered any evidence other than timing to rebut what otherwise appears to be a termination resulting from his poor job performance and inter-personal skills. Indeed, Hastings has not even asserted that he believes that TRPA retaliated against him for his allegedly protected speech. Moreover, he points to no evidence that his informing his superiors of the licensing problems was unwelcome; TRPA has provided uncontroverted evidence that it was aware of problems in this area and wanted to fix them.
Under these circumstances, we refuse to make “a complaint tantamount to a ‘get out of jail free’ card” based solely on the timing of Hastings’ informing his superiors of the software licensing issues. Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir.2000).
Hastings’ tortious discharge suffers from the same infirmity; he cannot demonstrate any causal connection between his raising the software issues and his termination.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470520/ | MEMORANDUM *
Jose Noriega-Encinas, a native and citizen of Mexico, appeals his conviction for illegal re-entry into the United States after deportation, in violation of 8 U.S.C. § 1326, on the ground the district court erred by finding him competent to stand trial.
First, the district court did not commit plain error by failing sua sponte to order an additional competency hearing the week before trial, because three other competency hearings in the previous ten years, including one six months before trial, had determined Noriega-Encinas was competent to stand trial and that he might have been malingering. See Odle v. Woodford, 238 F.3d 1084, 1087 (9th Cir.2001) (holding a competency hearing is necessary only if a reasonable judge would have a “bona fide” doubt about the defendant’s competence).
Second, the district court’s query whether Noriega-Encinas wished to proffer evidence or make a statement regarding his competency did not “shift” the burden of proof. It was an inquiry as to whether Noriega-Encinas wished to present evidence. Further, even if it had done so, the Supreme Court has held the allocation of the burden of proof “will affect competency determinations only in a narrow class of cases where the evidence is in equipoise.” Cf. Medina v. California, 505 U.S. 437, 449, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992). The number of evaluations that concluded Noriega-Encinas was eom-*241petent to stand trial (compared to the absence of any finding him incompetent) rendered the evidence far from “in equipoise.”
Finally, the district court did not commit clear error by finding NoriegaEncinas competent. See United States v. Friedman, 366 F.3d 975, 980 (9th Cir.2004). Several competency evaluations concluded he was competent, he presented himself lucidly and clearly during trial, and there was no evidence that Noriega-Encinas was unable to assist his counsel in preparing for or during trial.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470524/ | *246MEMORANDUM *
Dennis Hirokawa, Michael Furukawa, and Richard Okada appeal their convictions and sentences for conspiracy to commit mail fraud in violation of 18 U.S.C. § 371 and (excluding Okada) several counts of mail fraud in violation of 18 U.S.C. § 1341. Appellants were convicted along with co-defendant Wesley Uemura— who has not appealed his conviction or sentence — based on their participation in a bid-rigging scheme for the award of small purchase contracts for maintenance and repair work at the Honolulu International Airport. For the reasons stated below, we affirm the judgments of the district court.
1. The district court did not abuse its discretion in admitting the expert opinion testimony of Kenneth Goldblatt under Federal Rule of Evidence 702. With respect to qualifications, the district court was well within its discretion in finding that Goldblatt’s decades of experience in construction and estimation qualified him to give testimony on the reasonable value of nonstructural, routine or cosmetic repairs at the airport, notwithstanding the court’s concurrent determination that Goldblatt was unqualified to testify about structural repairs or other project's implicating regulations or considerations unique to airports.
The district court also did not abuse its discretion in finding Goldblatt’s estimation methods to be sufficiently reliable. Appellants’ criticisms of those estimations — e.g., his assumptions for labor, overhead and profit, and his failure to account for other costs and contingencies — go to the probative weight, rather than the admissibility, of the evidence and were properly the subjects of “[vjigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.” Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).
We also reject appellants’ contention that Goldblatt’s expert testimony as to the value of the work performed was irrelevant to the fraud charges against them. Although appellants attempt to characterize Goldblatt’s testimony as pertaining to only the value of the completed work, the record reflects that Goldblatt’s estimates also accounted for a reasonable profit, costs of labor, overhead and other costs that could be factored into a contractor’s bid. Appellants themselves acknowledge as much in criticizing the assumptions underlying those estimates. Moreover, as alleged in the indictment, the bid-rigging scheme appellants perpetrated was specifically designed to eliminate yet still give the appearance of competitive bidding in order to obtain government contracts that were “falsely and fraudulently inflated above a fair and reasonable value for the work allegedly performed.” It was hardly an abuse of discretion to conclude that Goldblatt’s estimates of the value of the work performed would “logically advance! ] a material aspect of the [government’s] case,” Daubert v. Merrell Dow Pharms, Inc., 43 F.3d 1311, 1315 (9th Cir.1995), and “assist the trier of fact to understand the evidence or to determine a fact in issue.” Fed.R.Evid. 702.
2. The district court did not abuse its discretion in denying appellant Hirokawa’s request to testify in surrebuttal. “A trial court has broad discretion to admit or exclude rebuttal or surrebuttal evidence,” United States v. McCollum, 732 F.2d 1419, *2471426 (9th Cir.1984), including limiting such evidence “to new evidence.” United States v. Clark, 617 F.2d 180, 187 (9th Cir.1980); see generally Geders v. United States, 425 U.S. 80, 86-87, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976).
Hirokawa’s proffer did not include new evidence. Rather, Hirokawa requested surrebuttal to revisit his prior testimony regarding his contacts with Richard “Skinny” Sugita at the state legislature after his co-defendant, Okada, testified during the defense’s case-in-chief, and then the government’s rebuttal witness confirmed, that Sugita had retired from his post as Sergeant at Arms in 1982 and then passed away in 1995 or 1996, prior to the relevant time periods that Hirokawa claimed to have, been working with him. It was not an abuse of discretion for the district court to deny Hirokawa’s request to use surre-buttal not to impeach the government’s witness, but merely to give additional testimony regarding his contacts at the state legislature — an issue Hirokawa himself raised and had the opportunity to thoroughly address during his case-in-chief. See United States v. Gaines, 170 F.3d 72, 83 (1st Cir.1999) (no abuse of discretion in denying surrebuttal evidence that related to an issue “raised prior to the prosecution’s rebuttal, by [defendant] in his own case-in-chief’ and that would not have impeached the prosecution’s rebuttal witness).
3. The district court did not commit reversible plain error in failing to instruct the jury that it could convict on the charge of conspiracy to commit mail fraud only if it found the commission of an overt act within the applicable five-year statute of limitations, 18 U.S.C. § 3282. Under United States v. Fuchs, 218 F.3d 957, 962 (9th Cir.2000), the failure to give a statute of limitations instruction in this case was ei'ror, and the error was plain. But unlike in Fuchs, appellants here have failed to carry their burden of showing prejudice. See United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
In Fuchs, it was “impossible to discern” from the jury’s general verdict on conspiracy whether it found the commission of an overt act within the statute of limitations or whether it convicted solely based on overt acts occurring outside the limitations period. 218 F.3d at 962 n. 1, 963. By contrast, although appellants assert that the jury “might have relied on the time-barred overt acts,” they fail to establish that their conspiracy convictions might have been solely based on the time-barred overt acts.
Besides convicting defendants Hirokawa, Furukawa, Uemura and Okada on the charge of conspiracy to commit mail fraud, the jury also convicted Hirokawa, Furukawa and Uemura on several counts each of substantive mail fraud based on conduct that also supported the conspiracy charge and occurred within the same five-year limitations period. Taken together, the jury’s mail fraud and conspiracy verdicts necessarily establish a finding that “one or more” co-conspirators performed at least one or more timely overt acts, providing a legally adequate basis for the conviction of “each” co-conspirator on the conspiracy charge. 18 U.S.C. § 371; see also Braverman v. United States, 317 U.S. 49, 53, 63 S.Ct. 99, 87 L.Ed. 23 (1942) (“The overt act ... may be that of only a single one of the conspirators and need not be itself a crime.”); United States v. Andreen, 628 F.2d 1236, 1248 (9th Cir.1980) (the “only function” of proof of an overt act “is to demonstrate that the conspiracy is operative”). The instructional error was therefore harmless. See United States v. DeGeorge, 380 F.3d 1203, 1215-16 (9th Cir.2004) (distinguishing Fuchs where defen*248dant’s convictions on four counts of perjury, which were not time-barred and could constitute overt acts for purposes of conspiracy, provided a legally adequate basis for his conspiracy conviction).
4. The district court did not commit plain error by omitting a jury instruction on “good faith” as a defense to mail fraud. It is undisputed that the district court gave correct jury instructions on the essential elements of mail fraud and on the definition of “intent to defraud” as “an intent to deceive or cheat.” “Inasmuch as good faith is the obverse of intent to defraud, the district court’s instruction that the jury had to find that [defendants] acted with a specific intent to defraud can be deemed an instruction on good faith. Thus, there was no ‘plain error.’ ” United States v. Cusino, 694 F.2d 185, 188 (9th Cir.1982) (citations omitted); see also United States v. Shipsey, 363 F.3d 962, 967 (9th Cir.2004) (“Our case law is well settled that a criminal defendant has ‘no right’ to any good faith instruction when the jury has been adequately instructed with regard to the intent required to be found guilty of the crime charged, notwithstanding the normal rules governing ‘theory of defense’ requests.”).
5. Sufficient evidence supports the jury’s finding that appellants caused the use of the United States mails for purposes of their mail fraud convictions. Circumstantial evidence regarding “routine custom and practice can be sufficient to support the inference that something is mailed.” United States v. Green, 745 F.2d 1205, 1208 (9th Cir.1985). “Direct proof of mailing is not required.” Id.
In this case, the government presented testimony by the accounting systems manager in the pre-audit branch of the Hawaii Department of Accounting and General Services regarding that agency’s procedures for issuing checks to pay vendors and contractors for other state agencies. She testified that under those procedures, checks issued by the department are either routed back to the requesting state agency or mailed to the payee, depending on the how the summary warrant voucher is coded. If the warrant routing indicator is blank, the check is to be mailed and is given to a courier for delivery to the post office. For the checks at issue here, the agency’s records showed that for each check that was issued the respective warrant routing indicator was blank and the processing clerk had written a slash through the word “mail,” rather than slashing “del” for delivery. Based on these records, the government’s witness testified that all the checks were mailed through the United States mail. This evidence was sufficient to enable the jury to find the checks were mailed. See Green, 745 F.2d at 1208; United States v. Miller, 676 F.2d 359, 362 (9th Cir.1982); United States v. Brackenridge, 590 F.2d 810, 811 (9th Cir.1979) (per curiam); cf. United States v. Lo, 231 F.3d 471, 476-77 (9th Cir.2000) (holding that “custom and practice evidence alone” was insufficient because of “the absence of any direct evidence of the document’s existence,” let alone its delivery into the mail system).
6. Sufficient evidence also supports appellant Hirokawa’s conviction on Count 30. Even though the district court struck the testimony of the government’s expert regarding the estimated value of the work performed on the underlying contract, we reject Hirokawa’s assertion that there was insufficient evidence the State of Hawaii was defrauded. The government submitted substantial evidence regarding the nature of the defendants’ bid-rigging scheme and that they followed the same modus operandi regarding the contract at issue in Count 30, including Hirokawa’s usual Post-it note identifying the contrac*249tor to be called (in this instance, a company owned by co-defendant Uemura) and the contractor’s submission of two forged bids along with its own lower bid, which was inevitably accepted. Furthermore, even without an expert’s opinion, the jury was independently capable of determining that the contract was fraudulently inflated based on the contract price ($8,860), the jury’s own evaluation of the nature of the project and the work performed (the repair of a plate cover of a door closure mechanism), and the deceptive manner in which the contract was obtained.
7. With respect to sentencing, the record belies appellants’ contention that the district court failed to make requisite factual findings in determining relevant conduct under U.S.S.G. § 1B1.3 (2006). A district court may satisfy its duty to make specific findings regarding relevant conduct by adopting the factual findings of the presentence report. United States v. Naranjo, 52 F.3d 245, 249 (9th Cir.1995). Besides making express findings regarding Furukawa’s and Hirokawa’s roles in the conspiracy, for purposes of § IB 1.3 specifically the district court overruled each appellant’s objections and adopted the respective PSR’s factual statements and its findings and calculations as to relevant conduct and amount of loss. Furthermore, each appellant’s PSR contained specific factual findings on his reasonably foreseeable conduct and the losses attributable to him. Cf. United States v. Whitecotton, 142 F.3d 1194, 1198-99 (9th Cir.1998) (reversing where the district court “did not explicitly adopt any part of the presentence report” and even if it had the PSR’s findings would have been insufficient to sustain the sentence).
8. The district court did not clearly err in calculating the amount of loss attributable to each appellant. “The court need only make a reasonable estimate of the loss” based on “available information,” and may include in its accounting “[t]he approximate number of victims multiplied by the average loss to each victim,” with credit for “the fair market value of ... the services rendered.” U.S.S.G. § 2B1.1 cmt. 3(C), (E)(i); United States v. Scrivener, 189 F.3d 944, 949-50 (9th Cir.1999). That is precisely the method the district court adopted here. Also, given that the contracts reviewed by the government’s expert evidenced an overbilling range of 68 to 90 percent, the district court’s application of the “much more conservative” 68 percent multiplier to the remaining contracts was not unreasonable.
With respect to appellants’ more specific objections to the court’s loss calculations, we reject their contention that the district court acted unreasonably in adopting the overbilling estimations by Goldblatt, the government’s expert, including those for contracts awarded between July 1997 and September 1998. The district court, having presided over the entire trial and hearing all the testimony, was in the best position “to assess the evidence and estimate the loss based upon that evidence.” U.S.S.G. § 2B1.1 cmt. 3(C). We also reject appellants’ assertion that the district court failed to apply an offsetting adjustment for six contracts for which Goldblatt’s estimates exceeded the contract prices. Appellants’ assertion is unsupported by any citation to the record and is contradicted by Goldblatt’s testimony at trial and the PSRs, which indicate that all contracts reviewed by Goldblatt— including the six “underbid” contracts— were accounted for in the district court’s total loss calculations.
9. The district court did not commit plain error by including in its restitution orders $689,685 that the Hawaii Department of Transportation paid to re-*250imhurse the Hawaii Attorney General’s Office for investigative costs. Under the Mandatory Victim Restitution Act, the district court was required to order — -and as the “victim” of appellants’ bid-rigging scheme, the Department of Transportation was entitled to receive — restitution for “expenses incurred during participation in the investigation or prosecution of the offense,” 18 U.S.C. § 3663A(b)(4), although not for “the costs of gathering evidence solely for a criminal investigation.” United States v. Phillips, 367 F.3d 846, 863 (9th Cir.2004) (emphasis added).
Appellants’ assertion that the investigative costs here exclusively fall into the latter category is unsupported by any evidence in the record. Appellants offer only their observation that the prosecution of criminal matters is among the various duties of the state attorney general. Furthermore, they fail to account for the Department of Transportation’s need to investigate the causes and extent of its losses and pursue relief outside the criminal arena, including the agency’s civil proceedings against the various participants in the airport bid-rigging scheme. Cf. id. (holding that the Environmental Protection Agency could recover site investigation costs that were incurred “to determine what damage the defendant’s conduct caused and to design an appropriate cleanup plan”); United States v. Cummings, 281 F.3d 1046, 1052 (9th Cir.2002) (holding that a mother’s “attorney’s fees, which were incurred in an attempt to regain custody of her children, were a direct and foreseeable result of [the defendant’s] improper removal and retention of them”). Thus, although it is their burden to do so, appellants fail to establish any clear or obvious error here. See Olano, 507 U.S. at 734, 113 S.Ct. 1770; Fuchs, 218 F.3d at 962.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470528/ | MEMORANDUM ***
The parties are familiar with the facts of this case, so we do not repeat them here.
Eric Hague appeals the district court’s grant of summary judgment in the Defendants’ favor on his claims under 42 U.S.C. § 1983. He maintains that questioning and refusing to obey orders from his superiors amounted to protected speech because it touched on a matter of public concern. The district court rejected that argument, and we affirm.
The content, form, and context of Hague’s speech is critical to the analysis of his First Amendment claim. Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir.2003). Here, those factors cut sharply *254against Hague, who spoke as a disgruntled employee rather than a concerned citizen, and whose manifest intent was to challenge his job description rather than critique policy or bring an injustice into the public’s view. Generally speaking, speech is not of public concern if it merely communicates a personnel dispute or grievance, and if it is not relevant to the public’s evaluation of government. Id. “Underlying our cases has been the premise that while the First Amendment invests public employees with certain rights, it does not empower them to constitutionalize the employee grievance.” Garcetti v. Ceballos, 547 U.S. 410, 420, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). Hague was repeatedly admonished that the bulk of his time should be spent safeguarding University students, faculty, staff, and property, not policing outside traffic. He does not have a First Amendment right to communicate his disagreement with that policy through disobedience.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470530/ | MEMORANDUM ***
Bruce Darían appeals pro se from the district court’s judgment under Federal Rule of Civil Procedure 54(b) in favor of state court-appointed receiver David Pasternak and his law firm. We lack jurisdiction and therefore must dismiss the appeal.
For purposes of determining the timeliness of a Notice of Appeal, the United States is only considered a party in a qui tam action under the False Claims Act if it formally intervenes. See United States ex rel. Eisenstein v. City of New York, — U.S. -, 129 S.Ct. 2230, 2233-35, 173 L.Ed.2d 1255 (2009). Because the United States never intervened, Darían had only thirty days, not sixty, to file his Notice of Appeal. See Fed. R.App. P. 4(a)(1)(A). He failed to do so and therefore we lack jurisdiction.
DISMISSED.
ORDER
The memorandum disposition filed on June 5, 2009, is withdrawn in light of United States ex rel. Eisenstein v. City of New York, — U.S. -, 129 S.Ct. 2230, 173 L.Ed.2d 1255 (2009). The attached memorandum disposition is filed in its stead.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470532/ | MEMORANDUM *
Plaintiff Paula Anderson (“Anderson”) appeals the grant of summary judgment to the County of Fresno (“the County”) on her Title VII claims of racial discrimination, racial harassment, and retaliation. Anderson claims to have suffered a discriminatory demotion in 2003, a discriminatory or retaliatory termination in 2005, racial harassment, and several discriminatory or retaliatory terms and conditions of employment, including reprimands, performance evaluations, a relocation of her desk, and a failure to provide adequate training. We affirm.
After completing a probationary year as a Health Education Assistant (“HEA”) with the County, Anderson was promoted to a Health Education Specialist (“HES”) position, but then was demoted back to an HEA position approximately one year later due to “poor work performance.” Anderson was subsequently terminated for job abandonment on January 6, 2005, when, after a medical leave, she failed to return to work or to apply for additional leave.
Anderson filed two formal charges of discrimination with the California Department of Fair Employment and Housing (“DFEH”) and, constructively, with the U.S. Equal Employment Opportunity Commission (“EEOC”). See E.E.O.C. v. Dinuba Medical Clinic, 222 F.3d 580, 585 (9th Cir.2000). The first charge claimed she was “denied permanent status as a Health Education Specialist because of [her] race (African-American).” The EEOC issued Anderson a right to sue letter based on that charge and she filed the instant lawsuit on November 10, 2004.
Anderson filed a second pre-complaint questionnaire and charge with the DFEH and EEOC on October 31, 2005 and December 5, 2005, noting her termination and alleging that she was “discriminated against because of [her] race ... and in *258retaliation for engaging in protected activities.” In addition to the two formal charges, Anderson also filed correspondence and two other pre-complaint questionnaires with the DFEH at various times throughout her employment and after her termination.
Anderson has introduced no direct evidence of discriminatory intent in relation to any of her claims. Therefore, Anderson’s Title VII demotion claim can only survive summary judgment if she can establish a prima facie case, which requires her to show “(1) that [she] is African-American, a protected class under Title VII; (2) that [she] performed [her] job adequately; (3) that [she] was demoted, an adverse employment action; and (4) that [she] was treated differently than similarly situated [non-African-American] employees who were not demoted.” Cornwell v. Electro, Cent. Credit Union, 439 F.3d 1018, 1031 (9th Cir.2006).
Anderson cannot meet the fourth prong of a prima facie case for her demotion claim because she introduced no evidence that similarly situated non-African-American employees were treated more favorably. Although Anderson claims the County held her to a higher standard than non-African-American co-workers by making her serve a second year of probation, Anderson introduced no evidence regarding whether her co-workers were also members of Anderson’s protected class, whether they were similarly situated in all material respects, and whether she alone was required to serve a second year of probation. The district court therefore did not err by granting summary judgment on Anderson’s demotion claim.
Anderson’s termination claims also fail because she never amended her complaint to allege a discriminatory or retaliatory termination and never gave notice to the County during discovery that she intended to litigate any termination-related claims. See Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir.2000). Although Anderson’s second administrative charge did mention the termination, that alone is not sufficient to have put the County on notice that it would need to defend against claims pertaining to Anderson’s termination.
Further, Anderson failed to exhaust her racial harassment claim because her administrative charges alleged no specific instances of harassment of a racial nature. A plaintiffs civil action is limited to those acts of discrimination or new acts occurring during the pendency of the charge before the administrative body that are “like or reasonably related to” the allegations in the administrative charge. Oubichon v. North Am. Rockwell Corp., 482 F.2d 569, 571 (9th Cir.1973); see also Fed. Express Corp. v. Holowecki, 552 U.S. 389, 128 S.Ct. 1147, 170 L.Ed.2d 10 (2008) (explaining, in closely-related ADEA context, the circumstances in which intake questionnaires may be construed as charges). Although Anderson alleged “verbal expressions of discrimination,” including being told she “should not have been hired,” and being subjected to a “stressful environment,” neither verbal expressions of this type nor a generally “stressful environment” constitute racial harassment actionable under Title VII. See Vasquez v. County of Los Angeles, 349 F.3d 634, 642 (9th Cir.2003) (racial harassment involves a plaintiff being “subjected to verbal or physical conduct of a racial ... nature”).
Although Anderson’s first administrative charge failed to allege specific incidents of discriminatory terms and conditions of employment, it did reference examples on file with the DFEH and state generally that Anderson was “held to a *259higher level of performance than [her] non-African American co-workers,” was forced, in one instance, to work eight days when her non-African-American co-workers were not, and was set up to fail. Administrative charges are to be construed “with utmost liberality since they are made by those unschooled in the technicalities of formal pleading.” B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir.2002) (citation omitted). Therefore, Anderson’s administrative charge, liberally construed, may have exhausted some of Anderson’s discriminatory “terms and conditions” claims.
Even were we to assume without deciding that these claims were exhausted, however, summary judgment was nevertheless properly granted because Anderson failed to introduce sufficient evidence that similarly-situated non-African-American coworkers were treated differently in the relevant terms or conditions of their employment. Taken alone, a party’s bare allegations are not sufficient to survive summary judgment when, as here, the party cannot claim firsthand knowledge regarding whether others in similar positions received similar treatment with regard to the challenged conduct (i.e., performance standards, training, or disciplinary actions).
Even were we to assume that Anderson exhausted her retaliation claims because the claims were “reasonably related” to her first administrative charge, see Bowman v. Block, 940 F.2d 1211, 1229 (9th Cir.1991), Anderson failed to establish a prima facie case to support the retaliation claims because she introduced insufficient evidence that a “causal link” between her decision to file the charge and the adverse employment actions existed. Porter v. Cal. Dep’t of Corn, 419 F.3d 885, 894 (9th Cir.2005).
For these reasons, the grant of summary judgment to the County on all of Anderson’s claims is affirmed.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470534/ | MEMORANDUM *
Roseanne Barnes (“Barnes”) appeals the summary judgment in favor of GE Security, Inc., and related defendant companies (“GE”). Barnes argues that summary judgment was inappropriate because genuine issues of material fact exist as to whether GE terminated her in retaliation for her use of the workers’ compensation system or because she was disabled, whether GE failed to grant her a reasonable accommodation for her disability, and whether GE’s justification for terminating her was pretext. We have jurisdiction under 28 U.S.C. § 1291. We review “the district court’s grant of summary judgment de novo, drawing all reasonable inferences supported by the evidence in favor of ... the nonmoving party,” Noyes v. Kelly Servs., 488 F.3d 1163, 1167 (9th Cir.2007), and we affirm.
I. Barnes’s workers’ compensation claim
Barnes alleged that GE unlawfully terminated her because she invoked the workers’ compensation system. See Or. Rev.Stat. § 659A.040. Although the evidence indicates that Barnes invoked the workers’ compensation system and suffered an adverse employment action, she cannot establish that GE terminated her because of her workers’ compensation claim. See Stanich v. Precision Body & Paint, Inc., 151 Or.App. 446, 457, 950 P.2d 328 (Or.Ct.App.1997), abrogated on another ground by Barackman v. Anderson, 214 Or.App. 660, 167 P.3d 994 (Or.Ct.App.2007). GE put forth evidence establishing that Barnes was in violation of its attendance policy, that it informed her of the violations, and that it warned her that continued absences would result in termination. GE also submitted comparative evidence showing that of the 67 employees terminated between January 1, 2004 and April 2007, only one had filed a workers’ compensation claim in the year prior to termination, and that fourteen were terminated because of attendance policy violations. Barnes has attempted to show that GE’s asserted reason was pretext because her termination occurred after she began pursuing a workers’ compensation claim. She also asserts that a statement by GE in her termination letter acknowledged her health concerns. She also makes an unsupported allegation that GE did not follow its attendance policy when it made the decision to terminate her employment. In light of the evidence that GE presented, however, we conclude that Barnes has failed to raise a genuine issue of material fact as to pretext through either direct *262evidence of discriminatory motive or indirect evidence that would undermine GE’s articulated reason for her termination. See Noyes, 488 F.3d at 1170-71. She was fired for failing to report to work.
II. Barnes’s disability discrimination claim
Barnes also alleged that GE terminated her employment because she was disabled or regarded as disabled, and had a record of disability. Although Barnes sued under the Oregon anti-discrimination laws, those laws are, as the district court pointed out, “similar in nearly all significant ways.” See Or.Rev.Stat. § 659A.139. Because Barnes filed suit prior to the effective date of the Americans with Disabilities Act Amendments of 2008, the standards from Toyota Motor Manufacturing., Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002), and Sutton v. United Air Lines Inc., 527 U.S. 471, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999), govern the determination of whether she is disabled. See Rivers v. Roadway Express, 511 U.S. 298, 311, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994) (holding that “clear evidence of intent to impose the restorative statute ‘retroactively ” is required to overcome the presumption against retroactive amendments).
Barnes testified during deposition that she had experienced two or three significant panic attacks after being diagnosed with her anxiety condition in 2000, and that she was “pretty much” able to control her condition with medication. Furthermore, Barnes received at least one promotion, a favorable performance review, and a pay increase during her employment with GE. This evidence establishes that her anxiety is largely controllable with medication and does not prevent or severely restrict her from working, or doing any other daily activities of central importance to her life. Therefore, Barnes has failed to raise a genuine issue of material fact that this impairment is substantially limiting. See Williams, 534 U.S. at 198, 122 S.Ct. 681; Sutton, 527 U.S. at 475, 119 S.Ct. 2139; Washburn v. Columbia Forest Prods., Inc., 340 Or. 469, 474, 134 P.3d 161 (Or.2006).
Barnes’s arguments that GE regarded her as disabled and that she had a record of disability fail for similar reasons. None of the evidence that Barnes submitted indicated that GE believed that her anxiety substantially limited her in a major life activity such as her ability to work. See Walton v. United States Marshals Serv., 492 F.3d 998, 1006 (9th Cir.2007). Although the documents related to the period of short-term disability leave that Barnes took from December 2000 through January 2001 indicate that GE may have been aware of her anxiety, Barnes’s failure to raise a genuine issue of material fact of whether her anxiety is a substantially limiting impairment necessarily means that any record of it “would not meet the requirements of’ the ADA. Id. at 1011.
III. Barnes’s reasonable accommodation claim
Because Barnes has failed to raise a genuine issue of material fact as to whether she was disabled within the meaning of Oregon law, she cannot establish that she was entitled to a reasonable accommodation. See 42 U.S.C. § 12112(b)(5)(A) (making it unlawful to refuse a reasonable accommodation to “an otherwise qualified individual with a disability ”) (emphasis added); Or. Rev. Stat § 659A.112(2)(e).
Therefore, the district court’s grant of summary judgment is
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470536/ | MEMORANDUM **
Vickie Dykman appeals her conviction for misappropriation of postal funds in violation of 18 U.S.C. § 1711. She challenges the district court’s denial of her Federal Rule of Criminal Procedure 29 motion for a judgment of acquittal. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*264We review de novo Dykman’s challenge to the sufficiency of the evidence. United States v. Williams, 547 F.3d 1187, 1195 n. 6 (9th Cir.2008). Examining the evidence in the light most favorable to the government, we must determine whether a rational jury “could have found the essential elements of the crime beyond a reasonable doubt.” Id. At issue in this appeal is the element of conversion.1 Dykman asserts that the evidence was insufficient to show actual loss, and that in any event, an accounting discrepancy, without more, is insufficient to show conversion. After a careful review of the evidence presented to the jury, we disagree. We conclude that a rational jury could have found that the element of conversion was satisfied.
We first address Dykman’s contention that the government failed to present sufficient evidence of loss because it did not conduct an independent audit of the post office or otherwise verify the existence of the stock shortage indicated by the post office’s own financial records. We disagree. The records, kept by Dykman herself, both alerted the government to the existence of the shortage and informed it of the amount of that shortage. Indeed, Dykman testified that she kept the records accurately, always accounting for stock when it arrived from the Stamp Distribution Office. We conclude that a rational jury could have inferred from this evidence that a shortage of the amount indicated by Dykman’s records, over $7,000, actually existed. See Williams, 547 F.3d at 1195 n. 6.
Second, as to the evidence of conversion, Dykman argues that a “mere accounting discrepancy,” absent evidence that a particular amount of money or a specific stamp was actually taken, is insufficient to support the jury’s finding of conversion. Again, we disagree. Dykman, as the sole full-time employee of the post office, was the only person with access to her own personal stock drawer. Moreover, both Dykman and the only other person with access to any of the stock in the office testified that they had nothing to do with the shortage. A rational jury could have disbelieved Dykman and concluded that she, as head postmaster, was responsible for the substantial shortage. See Williams, 547 F.3d at 1195 n. 6; accord United States v. Powell, 413 F.2d 1037, 1038 (4th Cir.1969).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. 18 U.S.C. § 1711 provides, in relevant part, that
Whoever, being a Postal Service officer or employee, loans, uses, pledges, hypothe-cates, or converts to his own use, or deposits in any bank, or exchanges for other funds or property, except as authorized by law, any money or property coming into his hands or under his control in any manner ... shall be fined under this title ... or imprisoned not more than ten years....
The district court instructed the jury that it was required to find that Dykman “knowingly and unlawfully converted to her own use money or property coming into her control as a postal employee.” | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470540/ | MEMORANDUM *
Robert Kahre appeals the district court’s dismissal of his private Racketeer Influenced and Corrupt Organizations Act (“RICO”) suit for failure to state a claim. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.
Kahre claims that various officers of the Internal Revenue Service, the United States Attorney’s Office, and the North Las Vegas Police Department engaged in a pattern of racketeering activity intended to injure his business or property. Kahre seeks to turn a legitimate law enforcement activity into a RICO enterprise with mere allegations, but he has failed to state a claim for either a state or federal RICO violation.1
The essential elements of a federal RICO cause of action are: “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity (5) causing injury to plaintiffs’ ‘business or property.’ ” Ove v. Gwinn, 264 F.3d 817, 825 (9th Cir.2001) (quoting 18 U.S.C. § 1964(c)). Kahre has failed to allege the conduct element, since the conduct he complains of is legitimate law enforcement activity carried out in the course of the officers’ employment. In conducting the raid on Kahre’s home and business, the officers acted pursuant to valid search and arrest warrants. In prosecuting Kahre for tax and wire fraud, the officers acted pursuant to grand jury indictments and in accordance with their duties under the law. See Sinclair v. Hawke, 314 F.3d 934, 943 (8th Cir.2003) (“[Plaintiff] has cited no authority for the proposition that federal employees who take regulatory action consistent with their statutory powers engage in a ‘pattern of racketeering activity’ if those actions are adverse to a particular industry or business activity. In our view, the proposition is ludicrous on its face.”).
Kahre has also failed to allege a RICO enterprise, as the cooperation between two federal agencies and local police in a tax fraud investigation is not a criminal enterprise. See Wilkie v. Robbins, 551 U.S. 537, 127 S.Ct. 2588, 2607, 168 L.Ed.2d 389 (2007) (“[I]t is not reasonable to assume that the Hobbs Act (let alone RICO) was intended to expose all federal employees ... to extortion charges whenever they stretch in trying to enforce Government property claims.”)
Kahre’s complaints are more appropriate for a Bivens suit. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Indeed, Kahre first filed a Bivens suit, but, unhappy with the results,2 he brought this RICO suit containing almost entirely duplicative claims.3 This duplicity is another reason *269for affirming the case’s dismissal. See Adams v. Cal. Dep’t of Health Servs., 487 F.3d 684, 688 (9th Cir.2007) (“Plaintiffs generally have no right to maintain two separate actions involving the same subject matter at the same time in the same court and against the same defendant.” (internal quotations and citation omitted)), cert. denied, 552 U.S. 1076, 128 S.Ct. 807, 169 L.Ed.2d 607 (2007).
The judgment of the district court is AFFIRMED.
All pending motions are DENIED as moot.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
.Kahre alleged that defendants violated Nevada's RICO statute, Nev.Rev.Stat. §§ 207.350 et seq. This claim fails for the same reasons as the federal RICO claim and does not merit separate analysis.
. This case is stayed pending the outcome of Kahre’s criminal trial.
. Kahre argues that his witness tampering allegations could not have been included in *269the original Bivens suit because that conduct extended beyond the filing of the complaint. However, Kahre could have amended his complaint to include these claims; in fact, he has already requested leave from the district court to file a third amended complaint. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470542/ | MEMORANDUM *
Motorola, Inc., appeals from the district court’s judgment granting Metropolitan Transportation Commission’s (“MTC”) joint motion to dismiss and for judgment on the pleadings in a dispute arising out of a contract (“Contract”) in which Motorola agreed to design, build, operate, and maintain MTC’s TransLink Fare Payment System. We affirm in part, reverse in part, and remand. Because the parties are familiar with the history of this case, we need not recount it here.
We review the district court’s order de novo. See Westlands Water Dist. v. Firebaugh Canal, 10 F.3d 667, 670 (9th Cir.1993) (stating standard of review for orders granting Rule 12(b) and 12(c) motions); Principal Life Ins. Co. v. Robinson, 394 F.3d 665, 669 (9th Cir.2005) (stating standard of review for decisions on ripeness and jurisdiction).
I
The district court properly held that it had subject matter jurisdiction. In order for a case to be justiciable, it must be ripe for review. “The basic rationale of the ripeness doctrine is to prevent courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Scott v. Pasadena Unified Sch. Dist., 306 F.3d 646, 662 (9th Cir.2002) (internal quotation marks omitted). The current dispute is not abstract or hypothetical. MTC alleges that Motorola has breached the Contract by failing to provide a Letter of Credit worth $3 million. Motorola argues that any injury *271is hypothetical because MTC has not alleged that it needs recourse to the Letter of Credit. However, MTC has alleged a present breach of a contractual obligation and that it has suffered present damage as a result of the alleged failure to provide a Letter of Credit in the amount specified in the Contract. This claim is ripe for adjudication.
The case is not mooted by MTC’s 2003 change order, which included mutual release language. Article 3.1 of the Contract requires Motorola to provide a Letter of Credit that “shall be continuously renewed, extended or replaced so that it remains in effect, as required herein.” The amount of the Letter of Credit was reduced in 2004. MTC alleges that it had no reason to reject the Letter of Credit in 2001 or at the time of the change order in 2001. MTC has stated a justiciable controversy as to Motorola’s present obligations that was not rendered moot by the release language contained in the 2003 change order.
II
The district court properly dismissed Motorola’s contract novation counterclaim. Under California law, the party attempting to prove novation must satisfy “four essential requisites: (1) a previous valid obligation; (2) the agreement of all the parties to the new contract; (3) the extinguishment of the old contract; and (4) the validity of the new one.” Young v. Benton, 21 Cal.App. 382, 131 P. 1051, 1052 (Cal.Dist.Ct.App.1913). Motorola did not allege that the proposed new party, ERG Transit Systems, Inc. (“ERG”), had agreed to be bound by the new contract. Even if Motorola could make a reasonable argument that MTC did agree to novate the Contract and release Motorola from liability, Motorola failed to plead sufficient facts to show that all parties agreed to the new contract. The district court did not err in dismissing the novation counterclaim.
III
The district court improperly held that, as a matter of law, the Contract was not assigned or delegated to ERG. “Under California law, the interpretation of an assignment clause ... is a question of the intent of the parties and is typically a question of fact for the jury.” Orion Tire Corp. v. Goodyear Tire & Rubber Co., 268 F.3d 1133, 1138 (9th Cir.2001). Here, the contractual language is ambiguous and the evidence of the parties’ intent is equivocal. The district court examined Article 17.6 and concluded that Motorola may assign or delegate work only “if it complies with the provisions of Chapter 12 of the Contract.” However, the text of Article 17.6 never mentions Chapter 12.
The district court also held that Motorola was required to satisfy Articles 17.9 (which relates to modifications or amendments) and 1.4.3 (which relates to waivers) in order to allege that there was an assignment or delegation. However, Motorola does not allege that the assignment was perfected through a modification, amendment, or waiver. Rather, Motorola contends that MTC exercised its right to “approve” the assignment or delegation to ERG under Article 17.6.
Given these plausible differences in contract interpretation, the district court erred in dismissing Motorola’s counterclaim.
IV
The district court also erred in dismissing Motorola’s counterclaim that MTC breached its duty of good faith and fair dealing. In California Lettuce Growers, Inc. v. Union Sugar Co., 45 Cal.2d 474, 289 P.2d 785, 791 (1955), the California *272Supreme Court held that “where a contract confers on one party a discretionary power affecting the rights of the other, a duty is imposed to exei*cise that discretion in good faith and in accordance with fair dealing.”
Article 17.6 gives MTC sole discretion to approve an assignment or delegation, and whether MTC grants approval certainly affects Motorola’s rights. Therefore, when Motorola pled that MTC breached its duty of good faith and fair dealing regarding the assignment, it pleaded sufficient facts to defeat MTC’s motion to dismiss.
V
To the extent that Motorola’s fourth claim for relief encompasses this theory of breach of the covenant of good faith and fair dealing, it also should not have been dismissed by the district court.
However, the district court properly dismissed the second portion of Motorola’s fourth counterclaim, namely, that the security bonds should be reduced based on the course of performance of the parties. First, Motorola’s claim is directly contradicted by the Contract. Article 3.2 dictates a specific value at which the bonds be set until the completion of Phase II, not a percentage of the total work remaining. Article 3.2 is not open to different interpretations, and the fact that the parties reduced the value of the bonds one time after Phase I does not mean that the clear language of the provision should be disregarded.
Second, Motorola cannot make a valid claim that MTC accepted the automatic reduction clause in the Letter of Credit when it accepted the Letter of Credit in 1999 and again in 2001. Article 3.1 requires Motorola to continuously renew, extend, or replace the Letter of Credit to ensure that it remains in effect. Motorola’s claims do not refute the plain language of the Contract.
VI
The district court improperly granted judgment on the pleadings to MTC. Judgment on the pleadings is proper when “the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir.1990). In its complaint, Motorola has alleged sufficient facts to survive a motion to dismiss with respect to its counterclaims for declarations that (1) MTC approved the assignment of the contract to ERG, and (2) MTC breached its duty of good faith and good dealing with respect to reviewing Motorola’s request for assignment of the contract. MTC therefore is not entitled to judgment as a matter of law on its complaint. Because judgment on the pleadings is improper for the reasons set forth above, we need not address the district court rulings on the Motorola’s other affirmative defenses.
VII
In sum, we affirm the district court’s dismissal of all of Motorola’s counterclaims, except the counterclaims asserting that the Contract had been validly assigned to ERG and that MTC has violated the covenant of good faith and fair dealing, respectively. On those counterclaims we reverse the district court. We also reverse the district court’s judgment on the pleadings in favor of MTC.
Each party shall bear its own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477801/ | ORDER
Petitioner having filed the required Statement Concerning Discrimination, it is,
ORDERED that the order of dismissal and the mandate be, and the same hereby are, VACATED and RECALLED, and the petition for review is REINSTATED.
Respondent’s brief is due within 21 days from the date of filing of this order. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470543/ | MEMORANDUM **
John (Jack) Angello appeals pro se from the district court’s judgment on partial findings under Federal Rule of Civil Procedure 52(c) in his action claiming that his employer, Northern Marianas College (“NMC”), and others, discriminated and retaliated against him. We have jurisdiction under 28 U.S.C. § 1291 and 48 U.S.C. § 1821(a). We review for clear error the district court’s findings of fact and review de novo its legal conclusions. Dubner v. *274City and County of S.F., 266 F.3d 959, 964 (9th Cir.2001). We affirm.
The district court properly concluded that Angello offered insufficient evidence to show that sex was a motivating factor for termination of his employment as required to show a discrimination claim under 42 U.S.C. § 2000e-2(m). Angello also did not offer sufficient evidence of a causal link between the complaints and grievances he lodged and the adverse action taken against him as required for a retaliation claim under 42 U.S.C. § 2000e-3(a). Therefore the district court properly entered judgment. See Fed.R.Civ.P. 52(c) (“[T]he court may enter judgment against the party on a claim ... that, under the controlling law, can be maintained ... only with a favorable finding on that issue.”).
Contrary to Angello’s contentions, the record shows that the district court did consider his harassment and hostile work environment claims and did note that Moir was not in a position to evaluate him. Also contrary to Angello’s contention, there was trial testimony that the NMC President told a Pacific Rim Academy representative that NMC lacked funding for the Pacific Rim Academy program.
Also contrary to Angello’s contention, as an employee of NMC he did not enjoy civil service protections. See N. Marianas Coll. v. Civil Serv. Comm’n., No. 06-0021, 2007 WL 949763, at *4 (N. Mar. I, Mar. 28, 2007) (“We hold that NMC is ... exempted from the civil service system. [The Civil Service Commission] does not have the authority to consider administrative appeals from NMC’s employees, including Angello’s administrative appeal.”).
We need not reach Angello’s contention that the district court misconstrued and mishandled certain evidence because that evidence was not material to the grounds upon which the district court entered judgment.
Angello’s remaining contentions, including those regarding the Lieutenant-Governor’s apparent support for the Pacific Rim program and the role of NMC’s Academic Council in approving pilot programs, are not persuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470545/ | *276MEMORANDUM *
The City of Long Beach seeks coverage under insurance policies issued by the Insurance Company of the State of Pennsylvania and Lexington Insurance Company (“the Insurers”) for payments that the City made to settle a suit brought under the Fair Housing Act, 42 U.S.C. §§ 3601-3619 (“the FHA action”). The policies provided that the Insurers would indemnify the City, within certain limits, for loss the City was obligated to pay “as damages.” The City appeals the district court’s decision that attorney’s fees are not damages, and thus are not covered by the policies. The City also appeals the court’s use of the last, rather than an earlier, judgment entered in the FHA action to determine the percentage of post-judgment costs and interest that the Insurers were required to cover. The Insurers have cross-appealed the district court’s decision that the Insurers were liable under the policies. We affirm in part and reverse in part.
I. Coverage Under the Policies
The policies cover a portion of the City’s liability for loss that is caused by an “occurrence,” which is defined as “an accident or event ... which results in personal injury, property damage, or public officials errors and omissions neither expected nor intended from the standpoint of the insured.” The policies, by including the term “events” within an occurrence, cover intentional acts which cause harm unintended by the insured. United Pac. Ins. Co. v. McGuire Co., 229 Cal.App.3d 1560, 1566, 281 Cal.Rptr. 375 (Cal.Ct.App.1991) (When a policy “occurrence” includes an accident or event, “coverage [exists] for intentional actions (subject to the statutory limitations of Ins.Code, § 533) that result in [damages] but excludes coverage for those elements of damages that were expected or intended by the insured.”). The district court held that coverage existed because the City had not intentionally caused the harm suffered in the underlying FHA action-its employees had. We review its findings of fact for clear error, and we affirm this ruling. Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837, 843 (9th Cir.2004).
The court did not clearly err when it found that the individual defendants who were held to have intentionally harmed the FHA plaintiffs were not authorized to act or make policy on behalf of the City. The district court found that the two Councilmen were not authorized to act on behalf of the City outside of their legislative capacity. The district court further found that the Building Superintendent was not a final policy-maker because the City Charter provided that the City Manager was ultimately responsible for the building department. Id. The record contains sufficient evidence to support both of these findings; they are not clearly erroneous. Contrary to the thrust of the Insurers’ argument, the fact that City officials or employees may have inflicted intentional harm is not sufficient to impute that intent to the City to defeat coverage under the policies’ “occurrence” clause.
The court also correctly found that there was no evidence that the City had directly intended to harm the FHA plaintiffs. Pri- or to trial in the FHA action, the trial court had granted summary judgment holding that the City was not directly liable under 42 U.S.C. § 1983. In so holding, that court necessarily ruled that the City *277had not acted pursuant to formal policy, that any persons who acted unconstitutionally were not officials with final policy-making authority, and that no final policy-making official had ratified the unconstitutional action. See Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir.1992). Moreover, during the district court’s bench trial in the present case there was substantial testimony indicating that the City officers had lawful reasons to take all of their actions that gave rise to the FHA action. The district court’s factual findings negating direct liability of the City were not clearly erroneous.1
Because the district court properly found that the City was only vicariously, not directly, liable for the harm caused to the FHA plaintiffs, and that the City did not harm intentionally, the harm for which the City was required to pay was “neither expected nor intended from the standpoint of the insured,” the City. The district court accordingly was correct in determining that the loss was the result of an “occurrence” within the meaning of the Policies. We affirm this ruling of the district court.
II. The Insurers’ Liability for Attorney’s fees
The policies provide coverage for the City’s “ultimate net loss,” which is the amount that the City must pay “as damages by reason of a judgment or a settlement.” On de novo review, we hold that the attorney’s fees awarded in the underlying FHA action constitute “damages” under the Policies, and thus reverse the district court on this point. Clausen v. M/V New Carissa, 339 F.3d 1049, 1062 (9th Cir.2003).
California construes language in an insurance contract that is not “clear and explicit” against the drafter — usually the insurer — and reads the contract expansively, in favor of coverage. AIU Ins. Co. v. Superior Court, 51 Cal.3d 807, 822, 274 Cal.Rptr. 820, 799 P.2d 1253 (Cal.1990) (holding that an insurance policy covered “as damages” the costs associated with complying with an injunction and/or a reimbursement order for environmental clean-up expenses). The district court did not follow this approach to contract interpretation, relying instead on Cutler-Orosi Unified Sch. Dist. v. Tulare Co. Sch. Dists. Liability, 31 Cal.App.4th 617, 37 Cal.Rptr.2d 106 (Cal.Ct.App.1994), to hold that as a matter of California law, attorney’s fees are not damages. Cutler-Orosi, however, relied in part on the fact that the federal statute under which fees were awarded explicitly referred to attorney’s fees as “costs.” 42 U.S.C. § 1973i(e). In the present case, however, the applicable statute authorized the court to award “a reasonable attorney’s fee and costs.” 42 U.S.C. § 3613(c)(2) (emphasis added). Cutler-Orosi, in distinguishing a case that viewed attorney’s fees as damages, stated that such language “obviously distinguished attorney fees from costs.” Ciitler-Orosi, 31 Cal.App.4th at 633, 37 Cal.Rptr.2d 106.
We conclude, therefore, that Cutler-Or-osi does not control our case. We rely instead on an analogous decision holding that attorney’s fees were “damages” within *278the meaning of a contractual indemnity-clause, Golden Eagle Ins. Co. v. Ins. Co. of the West, 99 Cal.App.4th 837, 842, 121 Cal.Rptr.2d 682 (Cal.Ct.App.2002). And more generally, we rely on the principle announced by the California Supreme Court in AIU Ins. Co. that, when language in a policy remains ambiguous even after the expectations of the parties have been considered, the ambiguity is generally resolved in favor of coverage. AIU Ins. Co., 51 Cal.3d at 822, 274 CaLRptr. 820, 799 P.2d 1253. Here, because the word “damages” is not defined in these policies, and cases nationwide have differed on whether it may include attorney’s fees, see Cutler-Orosi, 31 Cal.App.4th at 631, 37 Cal. Rptr.2d 106, the term in context is not clear and explicit. Therefore, we interpret the policies in favor of coverage for the attorney’s fees as damages.2
III. The Insurers’ Liability for Post-Judgment Costs and Interest
The policies require that, where a judgment exceeds the specified limit, “the [Insurers] shall pay defense costs and interest accruing on [that] judgment after its entry ... in a ratio which its proportion of the liability for the judgment rendered ... bears to the entire amount of [that] judgment.” Here, there was one judgment that was entered in the amount of $22.5 million, and later, after the parties had negotiated a settlement, a different judgment was entered in the amount of $20 million. The district court concluded that this last judgment should be used to determine the Insurers’ proportion of post-judgment costs and interests. On de novo review of this contractual interpretation question, we affirm. Starrag v. Maersk, Inc., 486 F.3d 607, 611 (9th Cir.2007).
The first judgment, once vacated, could not be regarded as the “judgment rendered” within the meaning of the policies’ provision. See Ditto v. McCurdy, 510 F.3d 1070, 1077 (9th Cir.2007) (“When a judgment has been set aside ..., the case stands as if that judgment had never occurred in the first place.”). Therefore, the district court could not have used the $22.5 million figure once it had been vacated, and the amount of post-judgment costs and expenses were only determined after that event. The judgment that the City was obligated to pay was the $20 million judgment finally entered. The district court did not err in apportioning the Insurers’ liability for defense costs and interest on the basis of that judgment.
For these reasons, we AFFIRM the court’s ruling (the subject of the cross-appeal) that coverage existed under the Policies; we REVERSE the ruling that coverage for damages did not include attorney’s fees; and we AFFIRM the use of the ultimate settlement figure paid by the City to determine the Insurers’ liability for post-judgment costs and interest. The Insurers shall pay the City’s costs on appeal.
AFFIRMED in part; REVERSED in part; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. This conclusion renders moot the Insurers’ argument that Cal. Ins.Code § 533 bars coverage. Section 533 provides that ”[a]n insurer is not liable for a loss caused by the wilful act of the insured; but he is not exonerated by the negligence of the insured, or of the insured’s agents or others.” But this bar to coverage does not apply when the insured is only vicariously liable for the intentional harm of others. Lisa M. v. Henry Mayo Newhall Mem'l Hosp., 12 Cal.4th 291, 305 n. 9, 48 Cal.Rptr.2d 510, 907 P.2d 358 (1995). Because the district court properly found that the City was only vicariously liable under the FHA for the discrimination against the FHA plaintiffs, § 533 does not bar coverage.
. This conclusion renders moot the Insurers' argument on cross-appeal that coverage under the Policies was improper because the City had not exhausted its own insurance policy of $12 million. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470546/ | RAWLINSON, Circuit Judge,
concurring:
I concur in the result. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470549/ | MEMORANDUM *
The City of Desert Hot Springs (the “City”) and the City’s former interim police chief, Walter McKinney, appeal from a jury verdict in a 42 U.S.C. § 1983 action decided in favor of former City police officer Michael Duffy. Duffy cross-appeals the district court’s decision to reduce his attorneys’ fees award. We have jurisdiction under 28 U.S.C. § 1291. We affirm the jury verdict but reverse and remand as to the reduction of attorneys’ fees.
I.
Duffy alleged that the City terminated him without due process because his probationary period was extended in violation of his union contract. He also claimed he was terminated because of his union activity, a violation of his First Amendment rights. The jury found that Duffy had been terminated in violation of his due process rights, but that he had not been terminated because of his union activity. They awarded Duffy $53,000 for his past economic loss, $418,845 for his future economic loss, and $5000 in non-economic loss, for a total award of $476,845, approximately half of what Duffy sought. Duffy subsequently moved for attorneys’ fees and costs. The district court granted attorneys’ fees but reduced them by about one-third.
On appeal, the defendants challenge the district court’s rulings that (1) the City violated the memorandum of understanding (MOU) it had with the police officers’ union by extending Duffy’s probation period, (2) the City could be liable under Mo-nell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), (3) McKinney was not entitled to qualified immunity, and (4) the jury’s damages award was justified. Duffy appeals the district court’s decision to reduce his attorneys’ fees award.
II.
A.
The City’s MOU with the police officers’ union specifies that lateral hires have a twelve-month probationary period. The MOU does not provide for an exten*281sion of the probationary period. The City’s Personnel Rules and Regulations do not permit the City to extend the probationary period another six months, because allowing such an extension would conflict with the clear intent of the MOU. Thus, the district court correctly ruled that Duffy was subject only to a twelve-month probationary period. It follows that the City violated the MOU when it extended Duffys probationary period, and that, as a permanent employee, Duffy was entitled to the due process protections provided by the MOU before he could be terminated. See McGraw v. City of Huntington Beach, 882 F.2d 384, 389 (9th Cir.1989); Dorr v. Butte County, 795 F.2d 875, 876 (9th Cir.1986).
B.
Generally, appellate courts will not review a district court’s denial of a motion for judgment as a matter of law unless the appellant both made a motion for judgment as a matter of law at the close of evidence, under Federal Rule of Civil Procedure 50(a), and then renewed the motion after the verdict, under Rule 50(b), or made a motion for a new trial. Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 400-02, 126 S.Ct. 980, 163 L.Ed.2d 974 (2006); Nitco Holding Corp. v. Boujikian, 491 F.3d 1086, 1089 (9th Cir.2007). The defendants did not renew their claim that the City could not be liable under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), in any of their post-judgment motions. They have therefore waived this claim. The defendants similarly did not raise the issue of McKinney’s qualified immunity in any of their post-judgment motions and have waived that defense.
C.
Courts grant substantial deference to a jury’s finding of the appropriate amount of damages. Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422, 1435 (9th Cir.1996). The award here was not grossly excessive or speculative in light of the expert testimony as to what Duffys future earnings would have been had he remained employed with the City. See id. Nor did the jury find that Duffy’s termination was justified, so that Duffy is entitled only to nominal damages. Cf. Carey v. Piphus, 435 U.S. 247, 266-67, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978); Raditch v. United States, 929 F.2d 478, 482 n. 5 (9th Cir.1991).
The jury also had sufficient evidence before it to support the award of emotional distress damages. See Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 513 (9th Cir.2000) (holding that the Ninth Circuit does not require “objective” evidence of emotional damages); Chalmers v. City of Los Angeles, 762 F.2d 753, 761 (9th Cir.1985) (upholding emotional damages based solely on testimonial evidence). We therefore affirm the damages award in all respects.
D.
Finally, Duffy challenges the one-third reduction of the lodestar for attorneys’ fees and “fees-on-fees.” Under Hensley v. Eckerhart, if the plaintiff is successful on only some claims in a federal civil rights action, the court must decide two questions: “First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award?” 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). If the claims are unrelated, no fee may be awarded for *282work on the unsuccessful claim. Id. at 435, 103 S.Ct. 1933. If the claims are related, the district court should evaluate “the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation” to deteimine what fee award is appropriate. Id.
In this case, the district court erred in finding the claims unrelated. Although the First Amendment and due process claims advanced different legal theories, the theories were related and both involved a common core of facts, namely, the circumstances surrounding the City’s termination of Duffy. See Thorne v. City of El Segundo, 802 F.2d 1131, 1141 (9th Cir.1986) (“[Cjourts evaluating relatedness have considered whether the unsuccessful claims were presented separately, whether testimony on the successful and unsuccessful claims overlapped, and whether the evidence concerning one issue was material and relevant to the other issues.”); of Durant v. Indep. Sch. Dist. No. 16, 990 F.2d 560, 562, 567 (10th Cir.1993) (holding that school employee’s First Amendment and due process claims “arose out of a common core of facts and involved related legal theories” where employee was fired for participating in campaign against school board member). We therefore reverse the attorneys’ fee reduction and remand for the district court to evaluate the significance of the overall relief obtained and to determine the appropriate fee award. We award costs to plaintiff-appellee Duffy.
AFFIRMED IN PART, REVERSED IN PART.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470553/ | MEMORANDUM **
Plaintiff/Appellant Vickey Kraus sued Defendant/Appellee Presidio Trust Facilities Division for employment discrimination under Title VII of the Civil Rights Act of 1964 and the Rehabilitation Act of 1973. She appeals the district court’s oz-der granting summary judgment to the Presi-dio Trust. In a sepai-ate opinion filed concurrently with this memorandum, we reverse and remand as to those of Kraus’s claims the district court held unexhausted. In this memorandum, we affirm the district court’s order as to Kraus’s remaining claims.
A. Claims contained in the first EEO complaint
The district court granted summary judgment for Presidio Trust as to the three claims Kraus first raised in her first EEO complaint: (1) that Potts unjustifiably rated her communication skills as a “3” rather than a “4” on her pei-formance appi-aisal for the year 2002; (2) that Zipp denied her2 the EEO counselor of her choice; and (3) that Zipp accused her of sexually hai-assing a female co-employee. We affirm.
An employee alleging employment discrimination under Title VII must show that “(1) he is a member of a protected class; (2) he was qualified for his position; (3) he expei-ienced an adverse employment action; and (4) similarly situated individuals outside his protected class were treated *287more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination.” Berry v. Dep’t of Soc. Servs., 447 F.3d 642, 656 (9th Cir.2006) (internal quotation marks omitted). Similarly, to show employment retaliation under Title VII, an employee must show that “(1) she was engaging in protected activity, (2) the employer subjected her to an adverse employment decision, and (3) there was a causal link between the protected activity and the employer’s action.” Bergene v. Salt River-Project Agric. Improvement & Power Dist., 272 F.3d 1136, 1140-41 (9th Cir.2001).
1. Kraus’s first claim, regarding the 2002 performance appraisal, fails because she has not shown the existence of any material facts which, if proven, would render this action an “adverse employment action.” Although undeserved performance ratings may constitute adverse employment actions, see Ray v. Henderson, 217 F.3d 1234, 1241 (9th Cir.2000), the raw scores of which Kraus complains are 3s— “fully successful” — and even if they had been 4s, her overall score would not have changed. Kraus has thus failed to show an issue of material fact regarding whether her raw scores had any adverse employment impact. Cf. Lyons v. England, 307 F.3d 1092, 1118 (9th Cir.2002) (holding that plaintiff failed to make out a prima facie showing of retaliation where he “d[id] not allege that NADNI management ha[d] ... relied upon the ‘fully successful’ evaluations in making a further employment decision adverse to [him]....”).
Kraus argues that she should have been given the opportunity to conduct discovery into whether raw scores, as opposed to the overall score, are used to determine “promotions, layoffis], and other matters.” We disagree. Under Federal Rule of Civil Procedure 56(f), a party opposing a summary judgment motion may seek a continuance for additional discovery if she “shows by affidavit that, for specified reasons, [she] cannot present facts essential to justify [her] opposition.” Kraus never filed such an affidavit or otherwise indicated with sufficient specificity what information she would seek if discovery were allowed. Vague assertions about the need for discovery are not sufficient for purposes of Rule 56(f). See Weinberg v. Whatcom County, 241 F.3d 746, 751 (9th Cir.2001); United States v. $5,611,510.00 in U.S. Currency, 799 F.2d 1357, 1363 (9th Cir.1986). The district court therefore did not abuse its discretion in refusing to permit additional discovery. See Surfvivor Media, Inc. v. Sunivor Prods., 406 F.3d 625, 630 (9th Cir.2005).
2. Kraus’s second claim fails because Kraus has never offered any explanation for how her assignment to a contract EEO counselor, rather than to a permanent counselor, produced any actual employment injury. Nor has she alleged that other similarly situated employees were treated differently.
3. Kraus’s last claim also fails. Zipp conveyed the information to Kraus about her co-worker’s sexual harassment complaint in a private meeting. Kraus has not alleged that Zipp made the information public or took any action to discipline Kraus on account of the suspected harassment. Kraus has thus failed to allege any facts that, if proven, would constitute an adverse employment action.
B. Claims contained in the second EEO complaint and not deemed unexhausted
As to the claims contained in Kraus’s second EEO complaint and not covered in the accompanying separate opinion, we af*288firm the district court’s grant of summary judgment.
1. Kraus waived her claim that she was discriminatorily denied access to the all-male van pool. The 2003 report of EEO counselor Linda Semi states that “Kraus told the counselor that her concerns regarding the van pool were resolved and that the van pool was not at issue in this [2003] complaint.” Kraus has not denied this account of her conversation with Semi. Because Kraus waived her claim before the agency, she is barred from reviving it before the district court. See Stache v. Int'l Union of Bricklayers & Allied Craftsmen, 852 F.2d 1231, 1233-34 (9th Cir.1988).
2. There is no triable issue of fact as to whether Kraus’s poor rating in her 2004 performance appraisal was discriminatory. The Presidio Trust proffered a nondiscriminatory reason for Kraus’s poor rating: Blean stated that Kraus’s work product was markedly poorer than her colleagues’, that she was slower than the others to finish her assignments, and that he had to correct her calculations “90 percent of the time.” Kraus has not disputed Blean’s characterization of her work as below average or shown Blean’s reasons to be false or pretextual.
For similar reasons, there is no triable issue of fact as to whether Kraus’s 2004 performance rating was retaliatory: Kraus has not “produced sufficient evidence to raise a triable issue of fact as to whether the reason proffered by [Blean for the 2004 performance rating] ... was a pretext for unlawful retaliation.” Bergene, 272 F.3d at 1141. We therefore affirm the district court’s grant of summary judgment as to this claim.
C. New claims of sex discrimination and disability discrimination
Title VII and the Rehabilitation Act require that claims of discrimination first be presented to the agency. Lyons, 307 F.3d at 1104; Boyd v. U.S. Postal Serv., 132. F.2d 410, 412-13 (9th Cir.1985).
1. Kraus’s allegations that various co-workers and supervisors urinated or talked about their genitalia in front of her, or told sexually explicit stories about a woman pictured in a poster were all raised for the first time in her district court complaint and are not related to any of the claims in her prior EEO complaints. We therefore affirm the district court’s holding that they were unexhausted and cannot now be considered as part of her federal lawsuit. See Stache, 852 F.2d at 1233-34.
2. Similarly, Kraus’s claim that from August 2004 until January 2005, while she was out of work on workers’ compensation for a back injury, the human resources specialist spoke to her in a rude manner appeared for the first time in her district court complaint. It is not related to any of her previous claims before the agency, and so cannot be considered now.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment as to all of Kraus’s claims, except those covered in the opinion filed simultaneously with this memorandum.
This disposition is not appropriate for publication and is not precedent except as provided by 9lh Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470555/ | *290MEMORANDUM *
Ed Richards appeals the district court’s order granting summary judgment in favor of the City of Seattle and Jorge Car-rasco. We affirm.
The district court properly found that Richards failed to establish a prima facie case of disparate treatment based on sexual orientation. The evidence that Carrasco acted with unlawful motive is “no more than speculation or unfounded accusation,” which is insufficient to preclude summary judgment, and in any event is not evidence of causation for the suspension years later. See Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1028-29 (9th Cir.2001). The anecdotal evidence about other disciplinary actions does not show Richards was treated “less favorably.” Those disciplined employees were not shown to be “similarly situated” because they did not commit commensurately serious violations. See Davis v. W. One Auto. Group, 140 Wash.App. 449, 166 P.3d 807, 812 (2007).
Richards has also failed to make out a prima facie case of retaliation. Richards has not offered admissible evidence that there is the requisite “causal link” between his five-day suspension and the filing of his case or his serving as a witness for Wanda Davis. Defendants began investigating Richards’ misconduct and notified him of the proposed disciplinary action months before he filed this action. Richards’ belief that he was retaliated against for serving as a witness, based on inadmissible hearsay that he was viewed as “collateral damage,” is not sufficient to avoid summary judgment. See Carmen, 237 F.3d at 1028-29.
Richards has not established a prima facie case of hostile work environment because he has offered no evidence of any actions rising to the level of “harassment” that could be imputed to the defendants. See Domingo v. Boeing Employees’ Credit Union, 124 Wash.App. 71, 98 P.3d 1222, 1228-29 (2004).
For the same reasons Richards has not made out claims of disparate treatment or retaliation, he has not shown a violation of 42 U.S.C. § 1983. As explained above, the disciplinary actions against other employees do not show “discrimination,” much less intent on the part of defendants, because none of the employees are similarly situated. See Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1112 (9th Cir.1991); see also Peters v. Lieuallen, 746 F.2d 1390, 1393 (9th Cir.1984).
The district court’s rulings on the various evidentiary issues were not an abuse of discretion. Cf. Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir.1997).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470557/ | MEMORANDUM **
Astarte Davis-Rice appeals pro se from an order of the Bankruptcy Appellate Panel (“BAP”) affirming the bankruptcy court’s summary judgment on an adversary complaint based on the finding that Kathleen Clements’s state court judgment debt against Davis-Rice is non-dischargea-ble under 11 U.S.C. § 523. We have jurisdiction pursuant to 28 U.S.C. § 158(d). We review de novo the BAP’s decision, Leavitt v. Soto (In re Leavitt), 171 F.3d 1219, 1222-23 (9th Cir.1999), and we affirm.
After a careful review of the record and briefs, we affirm for the reasons stated in the BAP opinion filed March 11, 2008.
Because Clements’s request for sanctions for a frivolous appeal was not separately filed, we deny the request without prejudice to refiling a separate motion. See Fed. R.App. P. 38 (“[I]f a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.”); see also Higgins v. Vortex Fishing Sys., Inc., 379 F.3d 701, 709 (9th Cir.2004) (“A request made in an appellate *292brief does not satisfy Rule 38, and thus the motion [should be] denied without prejudice.”) (internal quotation marks and citation omitted).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470559/ | MEMORANDUM **
Alberto Yanez-Cardenas and Gregoria Cardenas-Conejo, husband and wife and natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s (“IJ”) decision denying their applications for cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo claims of due process violations, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000), and we dismiss in part and deny in part the petition for review.
We lack jurisdiction to review the agency’s discretionary determination that petitioners failed to establish exceptional and extremely unusual hardship. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005).
Petitioners contend that they were denied due process because the transcript of their removal proceedings was incomplete. We agree with the BIA that petitioners’ contention is unavailing because they failed to demonstrate how a full transcript would have affected the outcome of the proceedings. See Colmenar, 210 F.3d at 971 (requiring prejudice to prevail on a due process challenge).
Petitioners’ contention that the IJ erred by failing to certify on the record that he had reviewed the tapes and familiarized himself with the record pursuant to 8 C.F.R. § 1240.1(b) is not supported by the record.
Petitioners’ remaining contentions are unpersuasive.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470595/ | MEMORANDUM **
Esteban Rodriguez-Nava, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his motion to continue and ordering him removed. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to continue. Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir.2008) (per curiam). We deny in part and dismiss in part the petition for review.
The IJ did not abuse her discretion in denying Rodriguez-Nava’s motion to continue where she had granted numerous previous continuances, and properly deemed Rodriguez-Nava’s cancellation of removal application abandoned after he failed to file it by the deadline. See Baires v. INS, 856 F.2d 89, 91 (9th Cir.1988) (“[Djenial of a continuance ... must be resolved on a case by case basis according to the facts and circumstances of each *327case.”); 8 C.F.R. § 1003.81(c) (authorizing the IJ to set filing deadlines and to deem waived any application not filed by the deadline).
We lack jurisdiction to consider Rodriguez-Nava’s contention that the agency incorrectly categorized his convictions for battery against a spouse and violating a protective order as removable offenses because he did not exhaust these claims before the BIA. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470544/ | MEMORANDUM **
John (Jack) Angello appeals pro se from the district court’s judgment on partial findings under Federal Rule of Civil Procedure 52(c) in his action claiming that his employer, Northern Marianas College (“NMC”), and others, discriminated and retaliated against him. We have jurisdiction under 28 U.S.C. § 1291 and 48 U.S.C. § 1821(a). We review for clear error the district court’s findings of fact and review de novo its legal conclusions. Dubner v. *274City and County of S.F., 266 F.3d 959, 964 (9th Cir.2001). We affirm.
The district court properly concluded that Angello offered insufficient evidence to show that sex was a motivating factor for termination of his employment as required to show a discrimination claim under 42 U.S.C. § 2000e-2(m). Angello also did not offer sufficient evidence of a causal link between the complaints and grievances he lodged and the adverse action taken against him as required for a retaliation claim under 42 U.S.C. § 2000e-3(a). Therefore the district court properly entered judgment. See Fed.R.Civ.P. 52(c) (“[T]he court may enter judgment against the party on a claim ... that, under the controlling law, can be maintained ... only with a favorable finding on that issue.”).
Contrary to Angello’s contentions, the record shows that the district court did consider his harassment and hostile work environment claims and did note that Moir was not in a position to evaluate him. Also contrary to Angello’s contention, there was trial testimony that the NMC President told a Pacific Rim Academy representative that NMC lacked funding for the Pacific Rim Academy program.
Also contrary to Angello’s contention, as an employee of NMC he did not enjoy civil service protections. See N. Marianas Coll. v. Civil Serv. Comm’n., No. 06-0021, 2007 WL 949763, at *4 (N. Mar. I, Mar. 28, 2007) (“We hold that NMC is ... exempted from the civil service system. [The Civil Service Commission] does not have the authority to consider administrative appeals from NMC’s employees, including Angello’s administrative appeal.”).
We need not reach Angello’s contention that the district court misconstrued and mishandled certain evidence because that evidence was not material to the grounds upon which the district court entered judgment.
Angello’s remaining contentions, including those regarding the Lieutenant-Governor’s apparent support for the Pacific Rim program and the role of NMC’s Academic Council in approving pilot programs, are not persuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470547/ | *276MEMORANDUM *
The City of Long Beach seeks coverage under insurance policies issued by the Insurance Company of the State of Pennsylvania and Lexington Insurance Company (“the Insurers”) for payments that the City made to settle a suit brought under the Fair Housing Act, 42 U.S.C. §§ 3601-3619 (“the FHA action”). The policies provided that the Insurers would indemnify the City, within certain limits, for loss the City was obligated to pay “as damages.” The City appeals the district court’s decision that attorney’s fees are not damages, and thus are not covered by the policies. The City also appeals the court’s use of the last, rather than an earlier, judgment entered in the FHA action to determine the percentage of post-judgment costs and interest that the Insurers were required to cover. The Insurers have cross-appealed the district court’s decision that the Insurers were liable under the policies. We affirm in part and reverse in part.
I. Coverage Under the Policies
The policies cover a portion of the City’s liability for loss that is caused by an “occurrence,” which is defined as “an accident or event ... which results in personal injury, property damage, or public officials errors and omissions neither expected nor intended from the standpoint of the insured.” The policies, by including the term “events” within an occurrence, cover intentional acts which cause harm unintended by the insured. United Pac. Ins. Co. v. McGuire Co., 229 Cal.App.3d 1560, 1566, 281 Cal.Rptr. 375 (Cal.Ct.App.1991) (When a policy “occurrence” includes an accident or event, “coverage [exists] for intentional actions (subject to the statutory limitations of Ins.Code, § 533) that result in [damages] but excludes coverage for those elements of damages that were expected or intended by the insured.”). The district court held that coverage existed because the City had not intentionally caused the harm suffered in the underlying FHA action-its employees had. We review its findings of fact for clear error, and we affirm this ruling. Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837, 843 (9th Cir.2004).
The court did not clearly err when it found that the individual defendants who were held to have intentionally harmed the FHA plaintiffs were not authorized to act or make policy on behalf of the City. The district court found that the two Councilmen were not authorized to act on behalf of the City outside of their legislative capacity. The district court further found that the Building Superintendent was not a final policy-maker because the City Charter provided that the City Manager was ultimately responsible for the building department. Id. The record contains sufficient evidence to support both of these findings; they are not clearly erroneous. Contrary to the thrust of the Insurers’ argument, the fact that City officials or employees may have inflicted intentional harm is not sufficient to impute that intent to the City to defeat coverage under the policies’ “occurrence” clause.
The court also correctly found that there was no evidence that the City had directly intended to harm the FHA plaintiffs. Pri- or to trial in the FHA action, the trial court had granted summary judgment holding that the City was not directly liable under 42 U.S.C. § 1983. In so holding, that court necessarily ruled that the City *277had not acted pursuant to formal policy, that any persons who acted unconstitutionally were not officials with final policy-making authority, and that no final policy-making official had ratified the unconstitutional action. See Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir.1992). Moreover, during the district court’s bench trial in the present case there was substantial testimony indicating that the City officers had lawful reasons to take all of their actions that gave rise to the FHA action. The district court’s factual findings negating direct liability of the City were not clearly erroneous.1
Because the district court properly found that the City was only vicariously, not directly, liable for the harm caused to the FHA plaintiffs, and that the City did not harm intentionally, the harm for which the City was required to pay was “neither expected nor intended from the standpoint of the insured,” the City. The district court accordingly was correct in determining that the loss was the result of an “occurrence” within the meaning of the Policies. We affirm this ruling of the district court.
II. The Insurers’ Liability for Attorney’s fees
The policies provide coverage for the City’s “ultimate net loss,” which is the amount that the City must pay “as damages by reason of a judgment or a settlement.” On de novo review, we hold that the attorney’s fees awarded in the underlying FHA action constitute “damages” under the Policies, and thus reverse the district court on this point. Clausen v. M/V New Carissa, 339 F.3d 1049, 1062 (9th Cir.2003).
California construes language in an insurance contract that is not “clear and explicit” against the drafter — usually the insurer — and reads the contract expansively, in favor of coverage. AIU Ins. Co. v. Superior Court, 51 Cal.3d 807, 822, 274 Cal.Rptr. 820, 799 P.2d 1253 (Cal.1990) (holding that an insurance policy covered “as damages” the costs associated with complying with an injunction and/or a reimbursement order for environmental clean-up expenses). The district court did not follow this approach to contract interpretation, relying instead on Cutler-Orosi Unified Sch. Dist. v. Tulare Co. Sch. Dists. Liability, 31 Cal.App.4th 617, 37 Cal.Rptr.2d 106 (Cal.Ct.App.1994), to hold that as a matter of California law, attorney’s fees are not damages. Cutler-Orosi, however, relied in part on the fact that the federal statute under which fees were awarded explicitly referred to attorney’s fees as “costs.” 42 U.S.C. § 1973i(e). In the present case, however, the applicable statute authorized the court to award “a reasonable attorney’s fee and costs.” 42 U.S.C. § 3613(c)(2) (emphasis added). Cutler-Orosi, in distinguishing a case that viewed attorney’s fees as damages, stated that such language “obviously distinguished attorney fees from costs.” Ciitler-Orosi, 31 Cal.App.4th at 633, 37 Cal.Rptr.2d 106.
We conclude, therefore, that Cutler-Or-osi does not control our case. We rely instead on an analogous decision holding that attorney’s fees were “damages” within *278the meaning of a contractual indemnity-clause, Golden Eagle Ins. Co. v. Ins. Co. of the West, 99 Cal.App.4th 837, 842, 121 Cal.Rptr.2d 682 (Cal.Ct.App.2002). And more generally, we rely on the principle announced by the California Supreme Court in AIU Ins. Co. that, when language in a policy remains ambiguous even after the expectations of the parties have been considered, the ambiguity is generally resolved in favor of coverage. AIU Ins. Co., 51 Cal.3d at 822, 274 CaLRptr. 820, 799 P.2d 1253. Here, because the word “damages” is not defined in these policies, and cases nationwide have differed on whether it may include attorney’s fees, see Cutler-Orosi, 31 Cal.App.4th at 631, 37 Cal. Rptr.2d 106, the term in context is not clear and explicit. Therefore, we interpret the policies in favor of coverage for the attorney’s fees as damages.2
III. The Insurers’ Liability for Post-Judgment Costs and Interest
The policies require that, where a judgment exceeds the specified limit, “the [Insurers] shall pay defense costs and interest accruing on [that] judgment after its entry ... in a ratio which its proportion of the liability for the judgment rendered ... bears to the entire amount of [that] judgment.” Here, there was one judgment that was entered in the amount of $22.5 million, and later, after the parties had negotiated a settlement, a different judgment was entered in the amount of $20 million. The district court concluded that this last judgment should be used to determine the Insurers’ proportion of post-judgment costs and interests. On de novo review of this contractual interpretation question, we affirm. Starrag v. Maersk, Inc., 486 F.3d 607, 611 (9th Cir.2007).
The first judgment, once vacated, could not be regarded as the “judgment rendered” within the meaning of the policies’ provision. See Ditto v. McCurdy, 510 F.3d 1070, 1077 (9th Cir.2007) (“When a judgment has been set aside ..., the case stands as if that judgment had never occurred in the first place.”). Therefore, the district court could not have used the $22.5 million figure once it had been vacated, and the amount of post-judgment costs and expenses were only determined after that event. The judgment that the City was obligated to pay was the $20 million judgment finally entered. The district court did not err in apportioning the Insurers’ liability for defense costs and interest on the basis of that judgment.
For these reasons, we AFFIRM the court’s ruling (the subject of the cross-appeal) that coverage existed under the Policies; we REVERSE the ruling that coverage for damages did not include attorney’s fees; and we AFFIRM the use of the ultimate settlement figure paid by the City to determine the Insurers’ liability for post-judgment costs and interest. The Insurers shall pay the City’s costs on appeal.
AFFIRMED in part; REVERSED in part; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. This conclusion renders moot the Insurers’ argument that Cal. Ins.Code § 533 bars coverage. Section 533 provides that ”[a]n insurer is not liable for a loss caused by the wilful act of the insured; but he is not exonerated by the negligence of the insured, or of the insured’s agents or others.” But this bar to coverage does not apply when the insured is only vicariously liable for the intentional harm of others. Lisa M. v. Henry Mayo Newhall Mem'l Hosp., 12 Cal.4th 291, 305 n. 9, 48 Cal.Rptr.2d 510, 907 P.2d 358 (1995). Because the district court properly found that the City was only vicariously liable under the FHA for the discrimination against the FHA plaintiffs, § 533 does not bar coverage.
. This conclusion renders moot the Insurers' argument on cross-appeal that coverage under the Policies was improper because the City had not exhausted its own insurance policy of $12 million. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470548/ | RAWLINSON, Circuit Judge,
concurring:
I concur in the result. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470552/ | MEMORANDUM **
Plaintiff Mary Ann Huff appeals the district court’s grant of summary judgment to the City of Portland (“City”) and her supervisor, Zari Santner (“Santner”), on Huffs claims of (1) retaliation under the Oregon Whistleblower Statute, Or.Rev. Stat. § 659A.203, (2) wrongful discharge, and (3) a First Amendment violation pursuant to 42 U.S.C. § 1983. We review the district court’s grant of summary judgment de novo, Gorman v. Wolpoff & Abramson, LLP, 552 F.3d 1008, 1013 (9th Cir.2009), and we affirm.
1. Under Or.Rev.Stat. § 659A.203(l)(b), a public employer may not take disciplinary action against an employee who discloses any information that the employee reasonably believes is evidence of (A) a violation of any federal or state law, rule or regulation, or (B) mismanagement, gross waste of funds, or abuse of authority. Nor may the employer discourage an employee from making such a disclosure. Or.Rev.Stat. § 659A.203(l)(d). Here, regardless of whether Huff made any protected disclosures, she has failed to show that her potentially protected disclosures were in *284any way connected to later decisions not to rehire or redeploy her.
2. Under Oregon law, “an at-will employee may be discharged at any time for any reason by an employer.” Estes v. Lewis & Clark Coll., 152 Or.App. 372, 954 P.2d 792, 796 (1998). The tort of wrongful discharge is an exception to that rule. Id. “The elements of a wrongful discharge claim are simple: there must be a discharge, and that discharge must be ‘wrongful.’ ” Moustachetti v. State of Oregon, 319 Or. 319, 877 P.2d 66, 69 (1994). Huff failed to show that she was discharged, because she never reapplied for her former position after the City’s Parks and Recreation Bureau was reorganized, and the City had no obligation to redeploy her. Furthercnore, Huff failed to show that the alleged discharge was wrongful because she did not provide evidence that her “protected activity [was] a ‘substantial factor’ in the motivation to discharge” her. Estes, 954 P.2d at 796-97 (citation omitted).
3. To survive a summary judgment motion on her remaining First Amendment claim, Huff must show (A) that she engaged in protected speech, (B) that she suffered from an “adverse employment action,” and (C) that the protected speech was a “substantial or motivating factor for the adverse action.” Marable v. Nitchman, 511 F.3d 924, 929 (9th Cir.2007) (internal citations and quotations omitted). Here, regardless of whether Huff can show that she engaged in protected speech, she failed to show that her speech was a “substantial or motivating factor” in any decision on Santnex'’s part not to rehire or redeploy Huff.
Accordingly, the district court’s order granting summary judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470554/ | MEMORANDUM **
Plaintiff/Appellant Vickey Kraus sued Defendant/Appellee Presidio Trust Facilities Division for employment discrimination under Title VII of the Civil Rights Act of 1964 and the Rehabilitation Act of 1973. She appeals the district court’s oz-der granting summary judgment to the Presi-dio Trust. In a sepai-ate opinion filed concurrently with this memorandum, we reverse and remand as to those of Kraus’s claims the district court held unexhausted. In this memorandum, we affirm the district court’s order as to Kraus’s remaining claims.
A. Claims contained in the first EEO complaint
The district court granted summary judgment for Presidio Trust as to the three claims Kraus first raised in her first EEO complaint: (1) that Potts unjustifiably rated her communication skills as a “3” rather than a “4” on her pei-formance appi-aisal for the year 2002; (2) that Zipp denied her2 the EEO counselor of her choice; and (3) that Zipp accused her of sexually hai-assing a female co-employee. We affirm.
An employee alleging employment discrimination under Title VII must show that “(1) he is a member of a protected class; (2) he was qualified for his position; (3) he expei-ienced an adverse employment action; and (4) similarly situated individuals outside his protected class were treated *287more favorably, or other circumstances surrounding the adverse employment action give rise to an inference of discrimination.” Berry v. Dep’t of Soc. Servs., 447 F.3d 642, 656 (9th Cir.2006) (internal quotation marks omitted). Similarly, to show employment retaliation under Title VII, an employee must show that “(1) she was engaging in protected activity, (2) the employer subjected her to an adverse employment decision, and (3) there was a causal link between the protected activity and the employer’s action.” Bergene v. Salt River-Project Agric. Improvement & Power Dist., 272 F.3d 1136, 1140-41 (9th Cir.2001).
1. Kraus’s first claim, regarding the 2002 performance appraisal, fails because she has not shown the existence of any material facts which, if proven, would render this action an “adverse employment action.” Although undeserved performance ratings may constitute adverse employment actions, see Ray v. Henderson, 217 F.3d 1234, 1241 (9th Cir.2000), the raw scores of which Kraus complains are 3s— “fully successful” — and even if they had been 4s, her overall score would not have changed. Kraus has thus failed to show an issue of material fact regarding whether her raw scores had any adverse employment impact. Cf. Lyons v. England, 307 F.3d 1092, 1118 (9th Cir.2002) (holding that plaintiff failed to make out a prima facie showing of retaliation where he “d[id] not allege that NADNI management ha[d] ... relied upon the ‘fully successful’ evaluations in making a further employment decision adverse to [him]....”).
Kraus argues that she should have been given the opportunity to conduct discovery into whether raw scores, as opposed to the overall score, are used to determine “promotions, layoffis], and other matters.” We disagree. Under Federal Rule of Civil Procedure 56(f), a party opposing a summary judgment motion may seek a continuance for additional discovery if she “shows by affidavit that, for specified reasons, [she] cannot present facts essential to justify [her] opposition.” Kraus never filed such an affidavit or otherwise indicated with sufficient specificity what information she would seek if discovery were allowed. Vague assertions about the need for discovery are not sufficient for purposes of Rule 56(f). See Weinberg v. Whatcom County, 241 F.3d 746, 751 (9th Cir.2001); United States v. $5,611,510.00 in U.S. Currency, 799 F.2d 1357, 1363 (9th Cir.1986). The district court therefore did not abuse its discretion in refusing to permit additional discovery. See Surfvivor Media, Inc. v. Sunivor Prods., 406 F.3d 625, 630 (9th Cir.2005).
2. Kraus’s second claim fails because Kraus has never offered any explanation for how her assignment to a contract EEO counselor, rather than to a permanent counselor, produced any actual employment injury. Nor has she alleged that other similarly situated employees were treated differently.
3. Kraus’s last claim also fails. Zipp conveyed the information to Kraus about her co-worker’s sexual harassment complaint in a private meeting. Kraus has not alleged that Zipp made the information public or took any action to discipline Kraus on account of the suspected harassment. Kraus has thus failed to allege any facts that, if proven, would constitute an adverse employment action.
B. Claims contained in the second EEO complaint and not deemed unexhausted
As to the claims contained in Kraus’s second EEO complaint and not covered in the accompanying separate opinion, we af*288firm the district court’s grant of summary judgment.
1. Kraus waived her claim that she was discriminatorily denied access to the all-male van pool. The 2003 report of EEO counselor Linda Semi states that “Kraus told the counselor that her concerns regarding the van pool were resolved and that the van pool was not at issue in this [2003] complaint.” Kraus has not denied this account of her conversation with Semi. Because Kraus waived her claim before the agency, she is barred from reviving it before the district court. See Stache v. Int'l Union of Bricklayers & Allied Craftsmen, 852 F.2d 1231, 1233-34 (9th Cir.1988).
2. There is no triable issue of fact as to whether Kraus’s poor rating in her 2004 performance appraisal was discriminatory. The Presidio Trust proffered a nondiscriminatory reason for Kraus’s poor rating: Blean stated that Kraus’s work product was markedly poorer than her colleagues’, that she was slower than the others to finish her assignments, and that he had to correct her calculations “90 percent of the time.” Kraus has not disputed Blean’s characterization of her work as below average or shown Blean’s reasons to be false or pretextual.
For similar reasons, there is no triable issue of fact as to whether Kraus’s 2004 performance rating was retaliatory: Kraus has not “produced sufficient evidence to raise a triable issue of fact as to whether the reason proffered by [Blean for the 2004 performance rating] ... was a pretext for unlawful retaliation.” Bergene, 272 F.3d at 1141. We therefore affirm the district court’s grant of summary judgment as to this claim.
C. New claims of sex discrimination and disability discrimination
Title VII and the Rehabilitation Act require that claims of discrimination first be presented to the agency. Lyons, 307 F.3d at 1104; Boyd v. U.S. Postal Serv., 132. F.2d 410, 412-13 (9th Cir.1985).
1. Kraus’s allegations that various co-workers and supervisors urinated or talked about their genitalia in front of her, or told sexually explicit stories about a woman pictured in a poster were all raised for the first time in her district court complaint and are not related to any of the claims in her prior EEO complaints. We therefore affirm the district court’s holding that they were unexhausted and cannot now be considered as part of her federal lawsuit. See Stache, 852 F.2d at 1233-34.
2. Similarly, Kraus’s claim that from August 2004 until January 2005, while she was out of work on workers’ compensation for a back injury, the human resources specialist spoke to her in a rude manner appeared for the first time in her district court complaint. It is not related to any of her previous claims before the agency, and so cannot be considered now.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment as to all of Kraus’s claims, except those covered in the opinion filed simultaneously with this memorandum.
This disposition is not appropriate for publication and is not precedent except as provided by 9lh Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470556/ | *290MEMORANDUM *
Ed Richards appeals the district court’s order granting summary judgment in favor of the City of Seattle and Jorge Car-rasco. We affirm.
The district court properly found that Richards failed to establish a prima facie case of disparate treatment based on sexual orientation. The evidence that Carrasco acted with unlawful motive is “no more than speculation or unfounded accusation,” which is insufficient to preclude summary judgment, and in any event is not evidence of causation for the suspension years later. See Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1028-29 (9th Cir.2001). The anecdotal evidence about other disciplinary actions does not show Richards was treated “less favorably.” Those disciplined employees were not shown to be “similarly situated” because they did not commit commensurately serious violations. See Davis v. W. One Auto. Group, 140 Wash.App. 449, 166 P.3d 807, 812 (2007).
Richards has also failed to make out a prima facie case of retaliation. Richards has not offered admissible evidence that there is the requisite “causal link” between his five-day suspension and the filing of his case or his serving as a witness for Wanda Davis. Defendants began investigating Richards’ misconduct and notified him of the proposed disciplinary action months before he filed this action. Richards’ belief that he was retaliated against for serving as a witness, based on inadmissible hearsay that he was viewed as “collateral damage,” is not sufficient to avoid summary judgment. See Carmen, 237 F.3d at 1028-29.
Richards has not established a prima facie case of hostile work environment because he has offered no evidence of any actions rising to the level of “harassment” that could be imputed to the defendants. See Domingo v. Boeing Employees’ Credit Union, 124 Wash.App. 71, 98 P.3d 1222, 1228-29 (2004).
For the same reasons Richards has not made out claims of disparate treatment or retaliation, he has not shown a violation of 42 U.S.C. § 1983. As explained above, the disciplinary actions against other employees do not show “discrimination,” much less intent on the part of defendants, because none of the employees are similarly situated. See Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1112 (9th Cir.1991); see also Peters v. Lieuallen, 746 F.2d 1390, 1393 (9th Cir.1984).
The district court’s rulings on the various evidentiary issues were not an abuse of discretion. Cf. Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir.1997).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470558/ | MEMORANDUM **
Astarte Davis-Rice appeals pro se from an order of the Bankruptcy Appellate Panel (“BAP”) affirming the bankruptcy court’s summary judgment on an adversary complaint based on the finding that Kathleen Clements’s state court judgment debt against Davis-Rice is non-dischargea-ble under 11 U.S.C. § 523. We have jurisdiction pursuant to 28 U.S.C. § 158(d). We review de novo the BAP’s decision, Leavitt v. Soto (In re Leavitt), 171 F.3d 1219, 1222-23 (9th Cir.1999), and we affirm.
After a careful review of the record and briefs, we affirm for the reasons stated in the BAP opinion filed March 11, 2008.
Because Clements’s request for sanctions for a frivolous appeal was not separately filed, we deny the request without prejudice to refiling a separate motion. See Fed. R.App. P. 38 (“[I]f a court of appeals determines that an appeal is frivolous, it may, after a separately filed motion or notice from the court and reasonable opportunity to respond, award just damages and single or double costs to the appellee.”); see also Higgins v. Vortex Fishing Sys., Inc., 379 F.3d 701, 709 (9th Cir.2004) (“A request made in an appellate *292brief does not satisfy Rule 38, and thus the motion [should be] denied without prejudice.”) (internal quotation marks and citation omitted).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470596/ | MEMORANDUM **
Esteban Rodriguez-Nava, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his motion to continue and ordering him removed. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to continue. Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir.2008) (per curiam). We deny in part and dismiss in part the petition for review.
The IJ did not abuse her discretion in denying Rodriguez-Nava’s motion to continue where she had granted numerous previous continuances, and properly deemed Rodriguez-Nava’s cancellation of removal application abandoned after he failed to file it by the deadline. See Baires v. INS, 856 F.2d 89, 91 (9th Cir.1988) (“[Djenial of a continuance ... must be resolved on a case by case basis according to the facts and circumstances of each *327case.”); 8 C.F.R. § 1003.81(c) (authorizing the IJ to set filing deadlines and to deem waived any application not filed by the deadline).
We lack jurisdiction to consider Rodriguez-Nava’s contention that the agency incorrectly categorized his convictions for battery against a spouse and violating a protective order as removable offenses because he did not exhaust these claims before the BIA. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470561/ | MEMORANDUM **
A 1 Electronics, Inc., appeals the judgment, after a three-day bench trial before a magistrate judge,1 in A l’s action for infringement of A l’s packaging design under federal copyright law and related California state law. We have jurisdiction under 28 U.S.C. § 1291. We review conclusions of law de novo and findings of fact for clear error. See Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1067 (9th Cir.2008). We affirm.
Any revenue from the sale of power supply products sold by GPB Enterprises, Inc., had an attenuated nexus to the infringement, and A 1 was thus entitled only to ascertainable indirect profits generated from the infringement. See Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 712-14 (9th Cir.2004); Mackie v. Rieser, 296 F.3d 909, 914-16 (9th Cir.2002).
*295A 1 had the initial burden of demonstrating that the “infringement at least partially caused the profits that the in-fringer generated as the result of the infringement.” Mackie, 296 F.3d at 911; see Polar Bear, 384 F.3d at 711 (rejecting argument that a copyright plaintiff need only provide the defendant’s gross revenue, without regard to the infringement). The magistrate judge’s finding that A 1 failed to sufficiently establish a causal connection was not clearly erroneous.
Even assuming that A 1 raised a “palming off’ claim under California’s unfair competition law, such a claim is preempted by federal copyright law. See Norse v. Henry Holt and Co., 991 F.2d 563, 568 (9th Cir.1993).
A 1 failed to establish misappropriation. A l’s package design and forms were disclosed to the public and were not confidential. See Cal. Civ.Code § 3426.1(b), (d). A l’s customer list was not entitled to legal protection because Al’s customers and their information were readily ascertainable through public sources. See Morlife, Inc. v. Perry, 56 Cal.App.4th 1514, 66 Cal.Rptr.2d 731, 735 (Cal.Ct.App.1997).
Based on the magistrate judge’s finding that it was GPB that copied and used the graphic packaging design to package the power supply products, there was no legal basis for finding Great Energy Co. liable to A 1 for copyright infringement.
We have considered and reject all other arguments raised on appeal.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. The parlies consented to the magistrate judge’s jurisdiction to conduct the trial. See 28 U.S.C. § 636(c)(1). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470563/ | MEMORANDUM **
Fang-Yuh Hsieh appeals pro se from the district court’s summary judgment in his action alleging discrimination, retalia*297tion, and harassment in violation of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (“ADEA”). We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s grant of summary judgment and determination that certain claims are time-barred, Payan v. Aramark Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119, 1121 (9th Cir.2007), and we affirm.
The district court properly determined that Hsieh’s discrimination and retaliation claims based on his 2002 termination, and his harassment claim, were time-barred because he did not file this action within 90 days of receiving the right-to-sue letter. See 42 U.S.C. § 2000e-6ffl(l); 29 U.S.C. § 626(e). The district court did not abuse its discretion by declining to apply equitable tolling or equitable estoppel because Hsieh failed to establish grounds warranting such relief from the 90-day time limit. See Santa Maria v. Pac. Bell, 202 F.3d 1170, 1175-79 (9th Cir.2000) (setting forth standard of review and discussing equitable tolling and equitable estoppel).
The district court properly granted summary judgment on Hsieh’s discrimination and retaliation claims based on the Department of Veterans Affairs’ (“VA”) decisions to promote Surai ThaneemitChen to a mathematical statistician position, and not to interview Hsieh for a statistical programmer position, because Hsieh failed to raise a triable issue as to whether the VA’s proffered reasons for those actions were pretexts. See Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1105-08 (9th Cir.2008) (affirming summary judgment for employer on claims of disparate treatment and retaliation where plaintiff failed to raise a triable issue that employer’s explanation for its conduct was pretextual).
Regarding Hsieh’s claim alleging that the VA failed to pay him for work he allegedly performed following his termination, to the extent this is a claim under Title VII or the ADEA, it is time-barred because Hsieh failed to contact an Equal Employment Opportunity counselor within 45 days of the adverse action. See 29 C.F.R. § 1614.105(a)(1). To the extent it is a claim under another statute or based on common law principles, summary judgment was proper because Hsieh failed to raise a triable issue as to whether he had performed work for which the VA had a duty to pay him. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (setting forth summary judgment standard for a nonmoving party).
The district court did not abuse its discretion by denying Hsieh’s request for a continuance under Federal Rule of Civil Procedure 56(f) because he failed to make the required showing. See Baker v. Adventist Health, Inc., 260 F.3d 987, 996 (9th Cir.2001) (“To merit a continuance for additional discovery under Rule 56(f), the party opposing summary judgment must file an affidavit specifying the facts that would be developed through further discovery.”).
The district court did not abuse its discretion by denying Hsieh’s request for sanctions on the ground that the request did not comply with local rules. See Avery Dennison Corp. v. Allendale Mwt. Ins. Co., 310 F.3d 1114, 1117 (9th Cir.2002) (per curiam) (stating standard of review); Delange v. Dutra Constr. Co., Inc., 183 F.3d 916, 919 n. 2 (9th Cir.1999) (per curiam) (“District courts have broad discretion in interpreting and applying their local rules.”).
Hsieh’s remaining contentions are unpersuasive.
*298Hsieh’s motion to supplement the record on appeal is granted. The Clerk shall file the deposition transcript received on July 10, 2009.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470571/ | MEMORANDUM *
First Federal Bank of California (“First Federal”) appeals from a decision of the United States Bankruptcy Appellate Panel of the Ninth Circuit (“BAP”), which affirmed in part and reversed in part a judgment of the bankruptcy court. The bankruptcy court and the BAP established the priority of competing interests in proceeds from the sale of the property at 6372 Gondola Way in San Jose, California (“the property”). First Federal argues that the BAP erred by (1) finding that Sentinel Trust’s deed of trust had priority over First Federal’s judgment lien and (2) concluding that Chevy Chase Bank, F.S.B. (“Chevy Chase”) is entitled to equitable subrogation. With regard to equitable subrogation, First Federal specifically argues that the BAP should have concluded (a) that First American Title Insurance Company (“Fúst American”) (Chevy Chase’s title insurance company) is the real party in interest in this action, (b) that Chevy Chase (through the real party in interest, First American) engaged in inexcusable and culpable neglect, and (c) that injustice would occur by applying equitable subrogation.
The parties are familiar with the facts of this case, and we do not repeat them here. As discussed below, we affirm in part, reverse in part, and remand to the bankruptcy court with instructions to reinstate its original judgment.1
1. Priority of Sentinel Trust’s Interest2
We agree with the bankruptcy court that the attempted transmutation of the property was a fraudulent transfer and that Mark Tiffany received a community property interest on March 15, 2001. Accordingly, First Federal’s judgment lien attached to the property on March 15 and has priority over the Sentinel Trust deed of trust.
We reject Chevy Chase’s argument that it was a bona fide purchaser of the property and should therefore obtain priority over First Federal’s judgment lien. “Every conveyance of real property ... from the time it is filed with the recorder is constructive notice of the contents thereof to subsequent purchasers and mortgagees .... ” Cal. Civ.Code § 1213. First Federal’s judgment lien was duly recorded, and Mark’s grant deed, conveying his interest in the property to Melodye, was contained in the “grantor” and “grantee” index. This was sufficient to provide constructive notice of the existence of First Federal’s lien and that it would attach to Mark’s interest in the property.
2. Equitable Subrogation3
The bankruptcy court and the BAP correctly concluded that Chevy Chase was *305entitled to equitable subrogation to the interest of World Savings Bank, F.S.B. (“World Savings”).
a. Real Party in Interest
As we previously held in Mart, we will only consider the title insurance company’s involvement for purposes of equitable sub-rogation when “the title insurance company itself [is] seeking equitable subrogation.” Mort v. United States, 86 F.3d 890, 895 (9th Cir.1996). Here, Chevy Chase is the named party seeking equitable subro-gation, and our analysis does not change merely because First American is fulfilling its contractual obligation to pay for the defense of its insured.
b. Inexcusable and Culpable Neglect
Chevy Chase did not engage in inexcusable and culpable neglect by failing to uncover the existence of First Federal’s judgment lien. As the California courts have noted, “[although equitable subrogation will be denied to a new lender who has actual knowledge of the junior encumbrance, it has long been the rule in California that the fact the junior encumbrance was recorded will not by itself bar equitable subrogation.” Smith v. State Sav. & Loan Ass’n, 175 Cal.App.3d 1092, 223 Cal.Rptr. 298, 301 (Cal.Ct.App.1985).
c. Injustice
Applying equitable subrogation will not result in injustice because all of the lien-holders, including First Federal, will remain in the same position that they held prior to the refinancing. Moreover, if the court does not apply equitable subrogation, First Federal will receive a windfall by moving into a better position with respect to the property than it originally had when its judgment lien attached. Essentially, Chevy Chase would be paying more than $500,000 to First Federal to satisfy Mark’s debt, even though Chevy Chase paid off a deed of trust that had priority over First Federal’s judgment lien, Chevy Chase did not have actual knowledge of First Federal’s judgment lien, and Chevy Chase had a legitimate expectation that it would have first priority. “One cannot fail to see this case as an attempt by [First Federal] to require [Chevy Chase] to pay a portion of [Mark’s debt]. [First Federal’s] claim that equitable subrogation would make it the victim of ‘injustice’ is thoroughly unconvincing.” Han v. United States, 944 F.2d 526, 530 n. 3 (9th Cir.1991).
Accordingly, we conclude that the bankruptcy court correctly disposed of this case. We remand to the bankruptcy court with instructions to reinstate its original judgment. The parties shall bear their own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. We conduct an independent review of the BAP's decision; we review the bankruptcy court's findings of fact for clear error and its legal conclusions de novo. In re Palau Corp., 18 F.3d 746, 749 (9th Cir.1994).
. At oral argument, both parties conceded that they did not object to the procedures used by the bankruptcy court and that they were not prejudiced by the lack of formal adversary proceedings. See In re Copper King Inn, Inc., 918 ,F.2d 1404, 1406-07 (9th Cir.1990). Accordingly, we will analyze the priority of liens without considering any procedural error.
. Because First Federal's judgment lien has priority over Sentinel Trust's deed of trust, we need not decide if Chevy Chase is also equitably subrogated to Sentinel Trust’s deed of trust. This determination would have no effect on the priority of interests between the parties before the court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470572/ | WALLACE, Senior Circuit Judge,
concurring:
I agree that the bankruptcy court’s original judgment should be reinstated. However, I write separately because I believe we can affirm the bankruptcy court’s priority determination without addressing whether Mark Tiffany’s conveyance of his interest in the property to his wife, Melo-dye, was a fraudulent transfer.
Under California law, until a judgment lien is satisfied or extinguished, it remains enforceable against the judgment debtor’s real property interests regardless of whether the property is transferred to a third party. Dieden v. Schmidt, 104 Cal. App.4th 645, 128 Cal.Rptr.2d 365, 369 (Cal.Ct.App.2002); see also CahCode of Civ. P. § 697.390(a) (“[A] subsequent conveyance of an interest in real property subject to a judgment lien does not affect the lien”). Thus, where a judgment debtor transfers his real property interest, and that interest *306is subject to an unsatisfied judgment lien, the lien may be enforced against the transferred property in the same manner and to the same extent as if there has been no transfer. Weeks v. Pederson (In re Peder-son), 230 B.R. 158, 163 (9th Cir.BAP1999); Cal.Code of Civ. P. § 695.070.
In this case, the bankruptcy court found that Mark acquired an interest in the property as of March 15, 2001, when his community assets were used to purchase the property. This factual finding is not clearly erroneous. In re Marriage of Rives, 130 Cal.App.3d 138, 181 Cal.Rptr. 572, 586 (Cal.App.1982) (upholding trial court’s finding that a residence purchased with community funds was a community asset despite the grant deed to the purchaser’s wife as separate property). Therefore, it does not matter whether or not Mark’s grant deed to Melodye constituted a fraudulent conveyance. First Federal’s judgment lien attached to the property by virtue of Mark’s community interest in the property as of March 15, 2001. When Mark subsequently transferred the property to Melodye, First Federal’s judgment lien remained enforceable against the property, and retained its priority relative to the subsequently recorded lien of Sentinel.
I would therefore affirm the bankruptcy court’s priority determination without reaching the fraudulent transfer issue. In all other respects, I concur in the memorandum disposition. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470577/ | MEMORANDUM **
Michael Newsom appeals two district court orders granting (1) the defendants’ Rule 12(b)(6) motion to dismiss Newsom’s state law claims for wrongful discharge in contravention of public policy, negligent hiring and retention, and intentional infliction of emotional distress; and (2) the defendants’ Rule 56(b) motion for summary judgment with respect to Newsom’s 42 U.S.C. § 1983 claims, which allege the defendants violated Newsom’s procedural and substantive due process rights. We affirm.
Newsom’s § 1983 claims lack merit. Even if Newsom had a property interest in his job, Newsom was afforded ample due process. See Heath v. Redbud Hosp. Dist., 620 F.2d 207, 210 (9th Cir.1980). Further, his termination for a “performance deficiency” did not impose a “stigma” upon Newsom. See Stretten v. Wadsworth Veterans Hospital, 537 F.2d 361, 366 (9th Cir.1976).
*310Newsom’s state law claims lack merit. Newsom failed to serve first upon the defendants a verified claim for damages in accordance with RCW 4.96.020. See Schoonover v. State, 116 Wash.App. 171, 184, 64 P.3d 677 (2003). Substantial compliance does not satisfy the statute. Medina v. Public Util. Dist. No. 1, 147 Wash.2d 303, 316, 53 P.3d 993 (2002).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470579/ | MEMORANDUM **
An administrative law judge (“ALJ”) denied the disability insurance benefits that Jose Hernandez sought, and that denial was upheld by the district court. Because substantial evidence supports the ALJ’s decision, and that decision was free from legal error, we affirm. See Bayliss v. Barnhart, 427 F.3d 1211, 1214 n. 1 (9th Cir.2005) (“We may reverse the ALJ’s decision to deny benefits only if it is based upon legal error or is not supported by substantial evidence.”).
Substantial evidence supports the ALJ’s determination that Hernandez’s last insured date to qualify for benefits was June 30, 1997, a date prior to his alleged onset of disability. Hernandez was inconsistent in describing his employment with Subcontractors of Mexico,1 and the ALJ gave Hernandez ample opportunity to explain those inconsistencies and clarify his relationship with Subcontractors. The ALJ was not required to credit a prior inconsistent statement instead, or to further develop the record, as Hernandez argues. The ALJ resolved Hernandez’s conflicting statements at the second hearing by carefully inquiring into the nature of Hernandez’s work for Subcontractors, and even allowed Hernandez time off the record to consult with his attorney before testifying further. After that consultation, Hernandez again testified that his 1996 and 1997 reported earnings were not actu*312ally his; throughout the second hearing Hernandez was unambiguous and adamant that he had nothing to do with the company. This was all the development of the record that was required. See Tonape-tyan v. Halter, 242 F.3d 1144, 1147-48, 1150-51 (9th Cir.2001) (ALJ not required to give complainant opportunity to explain inconsistencies where unambiguous evidence supports credibility determination). The ALJ reasonably believed Hernandez’s last statement, made under oath, that he earned no wages in 1996 or 1997. There was no error, therefore, in determining that the last date that Hernandez was insured occurred before he allegedly became disabled. See Morgan v. Sullivan, 945 F.2d 1079, 1080 (9th Cir.1991) (claimant must establish disability prior to his last insured date for benefits).
Contrary to Hernandez’s other assertion, the ALJ was not biased against him. The ALJ cited specific, convincing reasons in support of his findings that Hernandez was “a totally unreliable witness,” and that Hernandez’s testimony at the second hearing, made under oath, in accordance with his wife’s letter, and against his own interests, was accurate. The ALJ’s statement at that hearing that Hernandez had committed a fraud was merely a reaction to the admission of filing false tax returns. The final denial of insurance benefits was premised only on the fact that Hernandez earned no wages of his own in 1996 or 1997, establishing his last insured date as June 30,1997.
For these reasons, the judgment of the district court is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. The Work History Report in Hernandez's application for benefits stated that he was a "quality control advisor” for Subcontractors from 1995 to 1998, working sixty hours per week, supervising six to eight people, checking the assembly line, unloading inventory, and packaging shipments. Then, in the first hearing before the ALJ, Hernandez stated that he supervised the assembly line until the middle of 1997, and that his reported income in 1996 and 1997 consisted of wages from Subcontractors. At the second hearing before the ALJ, Hernandez submitted a letter from his wife, stating that Hernandez was "president of [Subcontractors] in name only, and on the condition that he would make no decisions or perform any work in the company.” The letter also stated that Hernandez "loan[ed] his name and social security number in order to open" the company. At that hearing, Hernandez testified that he did not work for the company, did not receive wages or any other kind of payment, was not involved in the company’s business, and was president in name only. When asked to explain where the money came from that was reported as income for 1996 and 1997, Hernandez stated that it was actually his wife's income, but that he reported it as his. He stated that he had no wages of his own for those two years. Finally, after the second hearing, Hernandez wrote a letter to the ALJ contradicting his testimony at the second hearing and asking that the ALJ disregard his statements that he had nothing to do with Subcontractors. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470754/ | OPINION
AMBRO, Circuit Judge.
Jamie C. Bisker, who suffers from multiple sclerosis (“MS”), brought an action against her employer, GGS Information Systems, Inc. (“GGS”), in the Western District of Pennsylvania, alleging a failure to accommodate her disability in violation of both the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 1201 et seq., and the Pennsylvania Human Relations Act (“PHRA”), 43 P.S. § 951, et seq. The District Court granted summary judgment to GGS, holding that, due to the representations Bisker had made about her condition in her multiple applications for disability benefits, she was “barred by judicial estoppel from pursuing her ADA and PHRA claims.” Bisker v. GGS Info. Servs., Inc., No. 1-CV-07-1465, 2008 WL 4372927, at *3 (M.D.Pa. Sept. 22, 2008). Because we do not believe that judicial estoppel applies in this case, we vacate the District Court’s order and remand so that the merits of Bisker’s failure-to-accommodate claims may be squarely addressed.
I.
Since we write solely for the parties, we recite only those facts necessary to our disposition. In 1999, Bisker began working at GGS, a York, Pennsylvania company that specializes in making parts catalogues. As of 2006, she was working as a “Parts Lister,” a job that involved reviewing “engineering information,” and, with the aid of a computer, producing technical illustrations of the various parts. In April of that year, Bisker requested and received leave from work under the Family Medical Leave Act. Bisker’s application for leave included a certification from her physician, Dr. Aex Rae-Grant, which described her as “currently unable to work due to multiple sclerosis symptoms[,] including weakness, fatigue, pain [and] stiffness.” That same month, Bisker applied for and received private short-term disability benefits through GGS.
In May 2006, Bisker met with some of her supervisors to discuss being allowed to work from home to accommodate her disability.*7931 No final decision was made at that meeting, although (according to Bisker’s deposition) she was repeatedly encouraged to apply for Social Security Disability Insurance (“SSDI”) in lieu of attempting to resume work in some capacity.2 While Bisker waited on a final answer about working from home, she made additional requests for private disability benefits. In July 2006, she submitted an application to extend her short-term disability benefits. In Dr. Rae-Grant’s accompanying certification, he noted that, while Bisker was hopeful that she would eventually be able to return to work, she “continues to complain of multiple symptoms[,] including overwhelming fatigue, weakness and stiffness in the legs, difficulty concentrating, pain and paresthesias of legs.” That same month, Bisker successfully applied for private long-term disability benefits. In her application, Bisker contended that her condition “[v]aries [from] day to day,” that she had not attempted to resume any work since leaving her job, and that she does not “know” whether she will return to her “last occupation.”
On July 21, 2006, Mark Oberdick, GGS’ Human Resources Director, wrote to Dr. Rae-Grant, inquiring whether, “[biased on [Bisker’s] condition, ... she can perform the essential functions of her job at home as described in her job description and Physical Demands Analysis Worksheet.” In addition, Oberdick’s letter claimed that Bisker’s “job has changed since April,” and that, “[a]s a result, the daily demands to meet certain deadlines in [Bisker’s] Parts Lister position with the 8-hour workday have significantly increased.” On August 8, 2006, Dr. Rae-Grant responded, contending that Bisker “is physically unable to perform the essential function of her job as described in her physical demands analysis worksheet,” but that she would likely be able to do her job if allowed to work from home and given seven days to complete 40 hours of work. Ober-dick then sent a letter to Bisker (dated August 15, 2006) formally denying her request for an accommodation. In the letter, Oberdick contended that changes in the Parts Lister position — in particular, the shifting of its focus away from performing the technical illustrations on site and toward overseeing illustration work being done in India — made it impossible to perform the job offsite and outside the confines of the normal five-day workweek.
Shortly after receiving Oberdick’s letter rejecting her accommodation request, Bisker put in an application with the Social Security Administration (“SSA”) for SSDI benefits. In her application, she stated that she “became unable to work because of [her] disabling condition on April 18, 2006,” and described herself as “still disabled.” In response to the question, “How do your illnesses, injuries, or conditions limit your ability to work?,” she wrote:
I’m required to sit at a computer 8 hours a day. I requested accommodation to work at home, was denied. I need to be able to move around when my legs/arms go numb/stiff. If I have a muscle spasm, I need to be able to take *794muscle relaxers/pain pills and use a mas-sager. When I [take] pills at work and try to keep working, they affect my performance. I get fatigued to the point that I need to lay down and take a nap.
In September 2006, Bisker supplemented her SSDI application. In response to a question about whether pain affects her “ability to think and concentrate,” she wrote that “I can’t concentrate while having a spasm and dealing with the pain it causes.” In response to a question about whether her medication was causing her any side effects, she wrote that it “[p]uts me in la-la land.” In October 2006, the SSA rejected Bisker’s claim for benefits. On November 13, 2006, Bisker appealed the denial. In her appeal submission, she wrote that “because I am not sure day to day how bad my disability is ... [,] I am unable to work,” and indicated that she had “no additional evidence to submit.” In July 2007, her SSDI benefits request was granted.
In August 2007, Bisker brought the action that is the subject of this appeal. Following extensive discovery, both parties moved for summary judgment. In September 2008, the District Court granted summary judgment to GGS based on judicial estoppel. Bisker, 2008 WL 4372927, at *3. Bisker timely appealed.3
II.
To prevail on her ADA claim, Bisker must show, inter alia, that “[s]he is ... qualified to perform the essential functions of the job, with or without reasonable accommodations.”4 Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir.1999). The District Court concluded that, having obtained SSDI benefits on the basis of her assertion that she was “unable to work because of [her] disabling condition,” Bisker could not then turn around and claim to be able to work for ADA purposes. Bisker, 2008 WL 4372927, at *3. More specifically, the Court, applying Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 119 S.Ct. 1597, 143 L.Ed.2d 966 (1999), held that Bisker’s failure “to offer sufficient explanations for the inconsistencies” between what she asserted in her disability benefits applications and what she must assert in order to prevail in her ADA suit barred her from pursuing her ADA claim. Bisker, 2008 WL 4372927, at *3.
We disagree. It is true that, under Cleveland, an ADA plaintiff must account for any inconsistencies between representations made in an SSDI application and the elements necessary to prevail on the ADA claim or else face judicial estoppel. See Cleveland, 526 U.S. at 807, 119 S.Ct. 1597. Here, however, there was no contradiction that needed to be explained away in the first place. Cleveland makes clear that there is no necessary inconsistency in simultaneously representing oneself as unable to work for SSDI purposes yet able to work for ADA purposes. See id. at 797-98, 802-03, 119 S.Ct. 1597. That is because “when the SSA determines whether an individual is disabled for SSDI purposes it does not take *795the possibility of ‘reasonable accommodation’ into account, nor need an applicant refer to the possibility of reasonable accommodation when she applies for SSDI.” Id. at 808, 119 S.Ct. 1597 (emphasis in original).
Thus, Bisker’s general assertion (in her SSDI submissions) that she is unable to work due to her disability did not commit her to any position as to whether she could work if reasonably accommodated. See Turner v. Hershey Chocolate USA, 440 F.3d 604, 609-10 (3d Cir.2006). In fact, Bisker specifically qualified her assertion of disability by mentioning (in her initial SSDI submission, at least) that she had been denied a prior request to work from home. The District Court was therefore incorrect to treat Bisker’s general claims about being too disabled to work as affecting her subsequent ability to bring an ADA claim.
The proper focus of the judicial estoppel analysis is not on Bisker’s general contention that she is unable to work, but rather on the specific factual representations she made in support of that contention. See Opsteen v. Keller Structures, Inc., 408 F.3d 390, 392 (7th Cir.2005) (“[A] person who applied for disability benefits must live with the factual representations made to obtain them, and if these show inability to do the job[,] then an ADA claim may be rejected without further inquiry.”); Motley v. New Jersey State Police, 196 F.3d 160, 167 (3d Cir.1999) (same). But the picture Bisker painted of her condition in her SSDI submissions is not any different from the one she painted in her accommodation request. In those SSDI submissions, Bisker stated that she is not “sure day to day how bad [her] disability is,” and that, when she is having bad days, she finds herself too fatigued or too affected by her pain medication to concentrate on her work. That is consistent with how she depicted her condition for accommodation purposes — namely, as one that prevents her from working on a regular schedule, but would allow her to put in 40 hours a week if she were given seven days to do so. Nothing changes if the focus is shifted from her SSDI submissions to her applications for private disability benefits,5 as, in those applications, Bisker similarly stated that her condition “Maries [from] day to day,” and that it often causes her weakness, fatigue and pain.
In sum, because Bisker did not assert anything in her disability benefits applications that is inconsistent with what she asserted in her ADA accommodation request, judicial estoppel does not come into play. Her case turns simply on whether that accommodation request, which GGS denied, was reasonable. The District Court did not reach that issue and we decline to do so in the first instance on appeal. Accordingly, we vacate the District Court’s grant of summary judgment based on judicial estoppel and remand for further proceedings consistent with this opinion.
. Prior to her first accommodation request, one of Bisker’s supervisors, Patrick Carlton, had conducted a "feasibility test” to determine whether Bisker’s work could be completed from a remote location. Carlton concluded that it would neither be difficult nor costly to set up a computer in Bisker's home in such a way that it would replicate her computer at work.
. The parties dispute how seriously GGS took Bisker’s request for an accommodation. As we are not reaching the merits of Bisker's failure-to-accommodate claim, we do not recite all the facts relevant to that dispute.
. The District Court had jurisdiction over Bisker’s ADA claim under 28 U.S.C. § 1331 and jurisdiction over her PHRA claim under 28 U.S.C. § 1367. We have jurisdiction over the District Court’s grant of summary judgment on both claims under 28 U.S.C. § 1291. Our review of the District Court's grant of summary judgment is plenary. See Elsmere Park Club, L.P. v. Town of Elsmere, 542 F.3d 412, 416 (3d Cir.2008).
. Bisker’s PHRA claim is analyzed under the same framework as her ADA claim. See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir.1999). For ease of reference, we hereafter refer exclusively to her ADA claim.
. Although Cleveland dealt specifically with the effect of an ADA plaintiff's prior representations in an application for SSDI benefits, courts have generally held that the Cleveland analysis applies to submissions for private disability benefits as well. See Turner, 440 F.3d at 607; Opsteen, 408 F.3d at 390; Holtzclaw v. DSC Commc'ns Corp., 255 F.3d 254, 258-59 (5th Cir.2001). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470562/ | MEMORANDUM **
A 1 Electronics, Inc., appeals the judgment, after a three-day bench trial before a magistrate judge,1 in A l’s action for infringement of A l’s packaging design under federal copyright law and related California state law. We have jurisdiction under 28 U.S.C. § 1291. We review conclusions of law de novo and findings of fact for clear error. See Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1067 (9th Cir.2008). We affirm.
Any revenue from the sale of power supply products sold by GPB Enterprises, Inc., had an attenuated nexus to the infringement, and A 1 was thus entitled only to ascertainable indirect profits generated from the infringement. See Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 712-14 (9th Cir.2004); Mackie v. Rieser, 296 F.3d 909, 914-16 (9th Cir.2002).
*295A 1 had the initial burden of demonstrating that the “infringement at least partially caused the profits that the in-fringer generated as the result of the infringement.” Mackie, 296 F.3d at 911; see Polar Bear, 384 F.3d at 711 (rejecting argument that a copyright plaintiff need only provide the defendant’s gross revenue, without regard to the infringement). The magistrate judge’s finding that A 1 failed to sufficiently establish a causal connection was not clearly erroneous.
Even assuming that A 1 raised a “palming off’ claim under California’s unfair competition law, such a claim is preempted by federal copyright law. See Norse v. Henry Holt and Co., 991 F.2d 563, 568 (9th Cir.1993).
A 1 failed to establish misappropriation. A l’s package design and forms were disclosed to the public and were not confidential. See Cal. Civ.Code § 3426.1(b), (d). A l’s customer list was not entitled to legal protection because Al’s customers and their information were readily ascertainable through public sources. See Morlife, Inc. v. Perry, 56 Cal.App.4th 1514, 66 Cal.Rptr.2d 731, 735 (Cal.Ct.App.1997).
Based on the magistrate judge’s finding that it was GPB that copied and used the graphic packaging design to package the power supply products, there was no legal basis for finding Great Energy Co. liable to A 1 for copyright infringement.
We have considered and reject all other arguments raised on appeal.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. The parlies consented to the magistrate judge’s jurisdiction to conduct the trial. See 28 U.S.C. § 636(c)(1). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470564/ | MEMORANDUM **
Fang-Yuh Hsieh appeals pro se from the district court’s summary judgment in his action alleging discrimination, retalia*297tion, and harassment in violation of Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (“ADEA”). We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s grant of summary judgment and determination that certain claims are time-barred, Payan v. Aramark Mgmt. Servs. Ltd. P’ship, 495 F.3d 1119, 1121 (9th Cir.2007), and we affirm.
The district court properly determined that Hsieh’s discrimination and retaliation claims based on his 2002 termination, and his harassment claim, were time-barred because he did not file this action within 90 days of receiving the right-to-sue letter. See 42 U.S.C. § 2000e-6ffl(l); 29 U.S.C. § 626(e). The district court did not abuse its discretion by declining to apply equitable tolling or equitable estoppel because Hsieh failed to establish grounds warranting such relief from the 90-day time limit. See Santa Maria v. Pac. Bell, 202 F.3d 1170, 1175-79 (9th Cir.2000) (setting forth standard of review and discussing equitable tolling and equitable estoppel).
The district court properly granted summary judgment on Hsieh’s discrimination and retaliation claims based on the Department of Veterans Affairs’ (“VA”) decisions to promote Surai ThaneemitChen to a mathematical statistician position, and not to interview Hsieh for a statistical programmer position, because Hsieh failed to raise a triable issue as to whether the VA’s proffered reasons for those actions were pretexts. See Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1105-08 (9th Cir.2008) (affirming summary judgment for employer on claims of disparate treatment and retaliation where plaintiff failed to raise a triable issue that employer’s explanation for its conduct was pretextual).
Regarding Hsieh’s claim alleging that the VA failed to pay him for work he allegedly performed following his termination, to the extent this is a claim under Title VII or the ADEA, it is time-barred because Hsieh failed to contact an Equal Employment Opportunity counselor within 45 days of the adverse action. See 29 C.F.R. § 1614.105(a)(1). To the extent it is a claim under another statute or based on common law principles, summary judgment was proper because Hsieh failed to raise a triable issue as to whether he had performed work for which the VA had a duty to pay him. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (setting forth summary judgment standard for a nonmoving party).
The district court did not abuse its discretion by denying Hsieh’s request for a continuance under Federal Rule of Civil Procedure 56(f) because he failed to make the required showing. See Baker v. Adventist Health, Inc., 260 F.3d 987, 996 (9th Cir.2001) (“To merit a continuance for additional discovery under Rule 56(f), the party opposing summary judgment must file an affidavit specifying the facts that would be developed through further discovery.”).
The district court did not abuse its discretion by denying Hsieh’s request for sanctions on the ground that the request did not comply with local rules. See Avery Dennison Corp. v. Allendale Mwt. Ins. Co., 310 F.3d 1114, 1117 (9th Cir.2002) (per curiam) (stating standard of review); Delange v. Dutra Constr. Co., Inc., 183 F.3d 916, 919 n. 2 (9th Cir.1999) (per curiam) (“District courts have broad discretion in interpreting and applying their local rules.”).
Hsieh’s remaining contentions are unpersuasive.
*298Hsieh’s motion to supplement the record on appeal is granted. The Clerk shall file the deposition transcript received on July 10, 2009.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470573/ | MEMORANDUM *
First Federal Bank of California (“First Federal”) appeals from a decision of the United States Bankruptcy Appellate Panel of the Ninth Circuit (“BAP”), which affirmed in part and reversed in part a judgment of the bankruptcy court. The bankruptcy court and the BAP established the priority of competing interests in proceeds from the sale of the property at 6372 Gondola Way in San Jose, California (“the property”). First Federal argues that the BAP erred by (1) finding that Sentinel Trust’s deed of trust had priority over First Federal’s judgment lien and (2) concluding that Chevy Chase Bank, F.S.B. (“Chevy Chase”) is entitled to equitable subrogation. With regard to equitable subrogation, First Federal specifically argues that the BAP should have concluded (a) that First American Title Insurance Company (“Fúst American”) (Chevy Chase’s title insurance company) is the real party in interest in this action, (b) that Chevy Chase (through the real party in interest, First American) engaged in inexcusable and culpable neglect, and (c) that injustice would occur by applying equitable subrogation.
The parties are familiar with the facts of this case, and we do not repeat them here. As discussed below, we affirm in part, reverse in part, and remand to the bankruptcy court with instructions to reinstate its original judgment.1
1. Priority of Sentinel Trust’s Interest2
We agree with the bankruptcy court that the attempted transmutation of the property was a fraudulent transfer and that Mark Tiffany received a community property interest on March 15, 2001. Accordingly, First Federal’s judgment lien attached to the property on March 15 and has priority over the Sentinel Trust deed of trust.
We reject Chevy Chase’s argument that it was a bona fide purchaser of the property and should therefore obtain priority over First Federal’s judgment lien. “Every conveyance of real property ... from the time it is filed with the recorder is constructive notice of the contents thereof to subsequent purchasers and mortgagees .... ” Cal. Civ.Code § 1213. First Federal’s judgment lien was duly recorded, and Mark’s grant deed, conveying his interest in the property to Melodye, was contained in the “grantor” and “grantee” index. This was sufficient to provide constructive notice of the existence of First Federal’s lien and that it would attach to Mark’s interest in the property.
2. Equitable Subrogation3
The bankruptcy court and the BAP correctly concluded that Chevy Chase was *305entitled to equitable subrogation to the interest of World Savings Bank, F.S.B. (“World Savings”).
a. Real Party in Interest
As we previously held in Mart, we will only consider the title insurance company’s involvement for purposes of equitable sub-rogation when “the title insurance company itself [is] seeking equitable subrogation.” Mort v. United States, 86 F.3d 890, 895 (9th Cir.1996). Here, Chevy Chase is the named party seeking equitable subro-gation, and our analysis does not change merely because First American is fulfilling its contractual obligation to pay for the defense of its insured.
b. Inexcusable and Culpable Neglect
Chevy Chase did not engage in inexcusable and culpable neglect by failing to uncover the existence of First Federal’s judgment lien. As the California courts have noted, “[although equitable subrogation will be denied to a new lender who has actual knowledge of the junior encumbrance, it has long been the rule in California that the fact the junior encumbrance was recorded will not by itself bar equitable subrogation.” Smith v. State Sav. & Loan Ass’n, 175 Cal.App.3d 1092, 223 Cal.Rptr. 298, 301 (Cal.Ct.App.1985).
c. Injustice
Applying equitable subrogation will not result in injustice because all of the lien-holders, including First Federal, will remain in the same position that they held prior to the refinancing. Moreover, if the court does not apply equitable subrogation, First Federal will receive a windfall by moving into a better position with respect to the property than it originally had when its judgment lien attached. Essentially, Chevy Chase would be paying more than $500,000 to First Federal to satisfy Mark’s debt, even though Chevy Chase paid off a deed of trust that had priority over First Federal’s judgment lien, Chevy Chase did not have actual knowledge of First Federal’s judgment lien, and Chevy Chase had a legitimate expectation that it would have first priority. “One cannot fail to see this case as an attempt by [First Federal] to require [Chevy Chase] to pay a portion of [Mark’s debt]. [First Federal’s] claim that equitable subrogation would make it the victim of ‘injustice’ is thoroughly unconvincing.” Han v. United States, 944 F.2d 526, 530 n. 3 (9th Cir.1991).
Accordingly, we conclude that the bankruptcy court correctly disposed of this case. We remand to the bankruptcy court with instructions to reinstate its original judgment. The parties shall bear their own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. We conduct an independent review of the BAP's decision; we review the bankruptcy court's findings of fact for clear error and its legal conclusions de novo. In re Palau Corp., 18 F.3d 746, 749 (9th Cir.1994).
. At oral argument, both parties conceded that they did not object to the procedures used by the bankruptcy court and that they were not prejudiced by the lack of formal adversary proceedings. See In re Copper King Inn, Inc., 918 ,F.2d 1404, 1406-07 (9th Cir.1990). Accordingly, we will analyze the priority of liens without considering any procedural error.
. Because First Federal's judgment lien has priority over Sentinel Trust's deed of trust, we need not decide if Chevy Chase is also equitably subrogated to Sentinel Trust’s deed of trust. This determination would have no effect on the priority of interests between the parties before the court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470574/ | WALLACE, Senior Circuit Judge,
concurring:
I agree that the bankruptcy court’s original judgment should be reinstated. However, I write separately because I believe we can affirm the bankruptcy court’s priority determination without addressing whether Mark Tiffany’s conveyance of his interest in the property to his wife, Melo-dye, was a fraudulent transfer.
Under California law, until a judgment lien is satisfied or extinguished, it remains enforceable against the judgment debtor’s real property interests regardless of whether the property is transferred to a third party. Dieden v. Schmidt, 104 Cal. App.4th 645, 128 Cal.Rptr.2d 365, 369 (Cal.Ct.App.2002); see also CahCode of Civ. P. § 697.390(a) (“[A] subsequent conveyance of an interest in real property subject to a judgment lien does not affect the lien”). Thus, where a judgment debtor transfers his real property interest, and that interest *306is subject to an unsatisfied judgment lien, the lien may be enforced against the transferred property in the same manner and to the same extent as if there has been no transfer. Weeks v. Pederson (In re Peder-son), 230 B.R. 158, 163 (9th Cir.BAP1999); Cal.Code of Civ. P. § 695.070.
In this case, the bankruptcy court found that Mark acquired an interest in the property as of March 15, 2001, when his community assets were used to purchase the property. This factual finding is not clearly erroneous. In re Marriage of Rives, 130 Cal.App.3d 138, 181 Cal.Rptr. 572, 586 (Cal.App.1982) (upholding trial court’s finding that a residence purchased with community funds was a community asset despite the grant deed to the purchaser’s wife as separate property). Therefore, it does not matter whether or not Mark’s grant deed to Melodye constituted a fraudulent conveyance. First Federal’s judgment lien attached to the property by virtue of Mark’s community interest in the property as of March 15, 2001. When Mark subsequently transferred the property to Melodye, First Federal’s judgment lien remained enforceable against the property, and retained its priority relative to the subsequently recorded lien of Sentinel.
I would therefore affirm the bankruptcy court’s priority determination without reaching the fraudulent transfer issue. In all other respects, I concur in the memorandum disposition. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470580/ | MEMORANDUM **
An administrative law judge (“ALJ”) denied the disability insurance benefits that Jose Hernandez sought, and that denial was upheld by the district court. Because substantial evidence supports the ALJ’s decision, and that decision was free from legal error, we affirm. See Bayliss v. Barnhart, 427 F.3d 1211, 1214 n. 1 (9th Cir.2005) (“We may reverse the ALJ’s decision to deny benefits only if it is based upon legal error or is not supported by substantial evidence.”).
Substantial evidence supports the ALJ’s determination that Hernandez’s last insured date to qualify for benefits was June 30, 1997, a date prior to his alleged onset of disability. Hernandez was inconsistent in describing his employment with Subcontractors of Mexico,1 and the ALJ gave Hernandez ample opportunity to explain those inconsistencies and clarify his relationship with Subcontractors. The ALJ was not required to credit a prior inconsistent statement instead, or to further develop the record, as Hernandez argues. The ALJ resolved Hernandez’s conflicting statements at the second hearing by carefully inquiring into the nature of Hernandez’s work for Subcontractors, and even allowed Hernandez time off the record to consult with his attorney before testifying further. After that consultation, Hernandez again testified that his 1996 and 1997 reported earnings were not actu*312ally his; throughout the second hearing Hernandez was unambiguous and adamant that he had nothing to do with the company. This was all the development of the record that was required. See Tonape-tyan v. Halter, 242 F.3d 1144, 1147-48, 1150-51 (9th Cir.2001) (ALJ not required to give complainant opportunity to explain inconsistencies where unambiguous evidence supports credibility determination). The ALJ reasonably believed Hernandez’s last statement, made under oath, that he earned no wages in 1996 or 1997. There was no error, therefore, in determining that the last date that Hernandez was insured occurred before he allegedly became disabled. See Morgan v. Sullivan, 945 F.2d 1079, 1080 (9th Cir.1991) (claimant must establish disability prior to his last insured date for benefits).
Contrary to Hernandez’s other assertion, the ALJ was not biased against him. The ALJ cited specific, convincing reasons in support of his findings that Hernandez was “a totally unreliable witness,” and that Hernandez’s testimony at the second hearing, made under oath, in accordance with his wife’s letter, and against his own interests, was accurate. The ALJ’s statement at that hearing that Hernandez had committed a fraud was merely a reaction to the admission of filing false tax returns. The final denial of insurance benefits was premised only on the fact that Hernandez earned no wages of his own in 1996 or 1997, establishing his last insured date as June 30,1997.
For these reasons, the judgment of the district court is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. The Work History Report in Hernandez's application for benefits stated that he was a "quality control advisor” for Subcontractors from 1995 to 1998, working sixty hours per week, supervising six to eight people, checking the assembly line, unloading inventory, and packaging shipments. Then, in the first hearing before the ALJ, Hernandez stated that he supervised the assembly line until the middle of 1997, and that his reported income in 1996 and 1997 consisted of wages from Subcontractors. At the second hearing before the ALJ, Hernandez submitted a letter from his wife, stating that Hernandez was "president of [Subcontractors] in name only, and on the condition that he would make no decisions or perform any work in the company.” The letter also stated that Hernandez "loan[ed] his name and social security number in order to open" the company. At that hearing, Hernandez testified that he did not work for the company, did not receive wages or any other kind of payment, was not involved in the company’s business, and was president in name only. When asked to explain where the money came from that was reported as income for 1996 and 1997, Hernandez stated that it was actually his wife's income, but that he reported it as his. He stated that he had no wages of his own for those two years. Finally, after the second hearing, Hernandez wrote a letter to the ALJ contradicting his testimony at the second hearing and asking that the ALJ disregard his statements that he had nothing to do with Subcontractors. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470583/ | MEMORANDUM ***
Orlando Duarte-Celestino appeals the district court’s denial of his request to compel discovery, hold an evidentiary hearing, and impose sanctions against the United States for bringing charges against Duarte-Celestino that were eventually dismissed without prejudice. Because there is no a case or controversy pending, we lack jurisdiction to hear this appeal under Article III of the Constitution. See Neb. Press Ass’n v. Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) (noting that federal courts’ authority under Article III is limited to actual cases and controversies).
In order to have standing pursuant to Article III, a party must show (1) injury in fact, (2) a causal connection between the injury and the conduct complained of, and (3) that the injury is redressable. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Duarte-Celestino cannot meet these criteria. The district court’s dismissal without prejudice of the criminal information against Duarte-Celestino has the legal effect of the information never having been filed. See United States v. California, 932 F.2d 1346, 1351 (9th Cir.1991); see also Mitchell v. Bd. of Governors of Wash. State Bar Ass’n, 145 F.2d 827, 828 (9th Cir.1944) (per curiam) (“A proceeding is none the less terminated because it is dismissed without prejudice”). Thus, it is *315questionable whether Duarte-Celestino has suffered a cognizable injury. Furthermore, any injury Duarte-Celestino suffered would appear to have been a result of the criminal charge and his detention, and not the denial of discovery or an evi-dentiary hearing. Finally, any alleged injury to Duarte-Celestino from his detention would not be redressed by discovery or an evidentiary hearing, which were directed toward having the district court impose sanctions on government counsel, rather than the entry of any order benefitting Duarte-Celestino. As the district court dismissed this criminal action and Duarte-Celestino has not alleged any redressable injury in this action, he lacks standing to appeal the district court’s denial of his motion. The appeal is DISMISSED.
disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470585/ | MEMORANDUM *
Defendant-appellant Mario Riley appeals his conviction and sentence for one count of possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). He contends that the district court committed reversible error in denying his motions to suppress and exclude evidence, imposed an unreasonable 46-month prison sentence, and improperly imposed several special conditions as a part of a three-year term of supervised release. In an opinion filed concurrently with this memorandum disposition, we vacate one of the supervised release conditions. Here, for the reasons stated below, we affirm Riley’s conviction and sentence and uphold all but one of the remaining supervised release conditions.
1. The government had to prove at trial that Riley knew the CD he had ordered and received contained images of child pornography. Given that the CD was found in Riley’s computer when agents arrived to search the apartment, evidence of Riley’s sexually aroused physical condition at the time he answered the door was relevant to the knowledge ele*318ment. The district court did not abuse its discretion in concluding that the probative value of this evidence was not substantially-outweighed by its prejudicial effect. See Fed.R.Evid. 403.
2. Nor did the district court abuse its discretion in admitting eleven uncharged images of child pornography retrieved from Riley’s hard drive. The images are relevant to establishing Riley’s knowledge of the contents of the CD and to demonstrating the absence of mistake. See Fed.R.Evid. 404(b). The district court gave the jury a limiting instruction permitting it to consider the images only as relevant to Riley’s knowledge or absence of mistake or accident.
The admission of additional images of child pornography was also not unfairly prejudicial under Rule 403. Because the jury already had before it several of the images of child pornography from the CD, the additional images could not have improperly inflamed the jury based on their content. See United States v. Schene, 543 F.3d 627, 643 (10th Cir.2008).
3. The district court properly denied Riley’s motion to suppress his statement to Inspector Higa, “I did something stupid. I just want to repair it.” Riley made the statement after he was advised he was free to leave and signed a statement so stating. The statement was not, therefore, the result of a custodial interrogation.
Riley’s reliance on United States v. Craighead, 539 F.3d 1073 (9th Cir.2008), is misplaced. The atmosphere surrounding Riley’s questioning was far less police-dominated than that in Craighead, see id. at 1084-85, and, unlike the defendant in that case, Riley was read his Miranda rights. The statement to Inspector Higa was therefore properly admitted.
4. Riley contends, for three reasons, that the district court abused its discretion in imposing a high-end but within-Guidelines sentence of 46 months. We disagree.
(a) To the extent that the district court misstated facts relating to Riley’s failure to obtain psychological counseling and his failure to supply the district court with financial information, these facts did not weigh significantly in the district court’s sentencing decision. The district court failed to apply a downward adjustment for acceptance of responsibility in part because Riley did not take positive steps to seek counseling, not because he declined offers of counseling made to him. Moreover, the court did not impose a fine despite Riley’s failure to provide financial information.
(b) The district court also recited several of Riley’s relevant personal characteristics in its sentencing memorandum. Moreover, the range of personal information available to the district court was limited by Riley’s failure to agree to an interview with a probation officer.
The district court did not impermissibly “double count” in imposing enhancements to the base level offense for material: (1) involving young children; (2) obtained by using the Internet; and (3) containing more than ten separate images. Each of these enhancements serves a unique purpose and accounts for a different aspect of the harms caused by Riley’s actions. See United States v. Stoterau, 524 F.3d 988, 1001 (9th Cir.2008).
(c) The district court’s decision to impose a high-end Guidelines sentence was reasonable despite the court’s reference to recent amendments to the Sentencing Guidelines. The district court did not calculate the applicable Guideline range based on the amended Guidelines. Instead, the district court referred to recent *319changes to the Guidelines as confirming its own assessment of the seriousness of offenses involving the exploitation of children.
5. The district court did not abuse its discretion in imposing condition 7, which prohibits Riley from possessing any material depicting or describing “sexually explicit conduct.” The term “sexually explicit conduct” as defined in 18 U.S.C. § 2256(2) is not impermissibly vague or overbroad for the purposes of defining the scope of prescribed material as part of a special condition of supervised release. See United States v. Cope, 527 F.3d 944, 958 (9th Cir.2008). Given the offense conduct of possession of child pornography, the condition is also reasonably related to the goals of rehabilitation and to the protection of the public. See United States v. Daniels, 541 F.3d 915, 928 (9th Cir.2008); United States v. Rearden, 349 F.3d 608, 620 (9th Cir.2003). Moreover, unlike the lifetime limitations on sexually explicit material imposed in Daniels, which we upheld, the supervised release conditions imposed on Riley last only three years.
6. The district court did not abuse its discretion in imposing conditions 11 and 12, restricting Riley’s employment in occupations that cause him to regularly contact minors and that involve the production or selling of materials depicting sexually explicit conduct. The heightened protections of U.S.S.G. § 5F1.5 do not apply here, as Riley’s previous occupations — employment as a technician and engineer — did not involve regular contact with minors or the production of sexually explicit material. See Stoterau, 524 F.3d at 1009-10. The restrictions are reasonably related to the goal of promoting the protection of the public and deterrence, particularly in light of Riley’s demonstrated sexual interest in minors. See Daniels, 541 F.3d at 929. Moreover, because the conditions do not prohibit Riley from returning to his prior work, the restrictions are no greater deprivations of liberty than necessary to further the goals of deterrence and protection of the public. See id.) Stoterau, 524 F.3d at 1010.
7. For similar reasons, the district court did not abuse its discretion in imposing conditions 14 and 15, prohibiting Riley from residing or loitering in areas adjacent to schools, parks, swimming pools, playgrounds, youth centers, video arcades, or other areas primarily used by minors. These conditions are reasonably related to the goals of protection of the public and deterrence. Riley’s general sexual interest in children is sufficient to support a condition that restricts his ability to live in or loiter around areas where children likely are present. See Daniels, 541 F.3d at 928. Moreover, because the conditions apply only during the three-year term of supervised release, they do not impose a greater deprivation of liberty than necessary.
8. With the exception of condition 19, which we vacate in the accompanying opinion, the district court did not abuse its discretion in imposing restrictions on Riley’s use of computers. Condition 16, requiring probation officer approval for Riley’s use of any computer or computer-related device1 and for access to email and Internet accounts, is consistent with conditions we have previously upheld in similar circumstances. See United States v. Goddard, 537 F.3d 1087, 1090 (9th Cir.2008); *320United States v. Antelope, 395 F.3d 1128, 1142 (9th Cir.2005); Rearden, 349 F.3d at 620-22. Similarly, condition 20, requiring probation officer approval for possession or use of a computer with Internet access is, given Riley’s prior use of computers to access child pornography, reasonably related to the goals of protecting the public and providing adequate deterrence.
We have also upheld, subject to narrowing constructions, limitations similar to those of condition 17, which permits the use of computers “only within the scope of [Riley’s] employment” and not “for any other purpose” and condition 18, which requires prior approval for any updates or modifications to approved computers. See Goddard, 537 F.3d at 1089-91. We adopt the same limiting constructions here. We construe condition 17 to mean that at work, Riley shall use computers and computer-related devices only within the scope of his employment. See id. at 1091. And we construe condition 18 not to require prior approval of “routine or automatic software additions, deletions, upgrades, updates, installations, repairs, or other modifications.” Id. at 1090-91. So construed, the conditions are valid.
9. Finally, Riley’s contention that the Abel testing requirement of condition 6 violates his due process rights is foreclosed by Stoterau, 524 F.3d at 1006-07. We therefore uphold this aspect of the condition.
As to the requirement that Riley take all prescribed medication, a limited remand is necessary because, as the government recognizes, the requirement is overbroad in the absence of specific findings justifying it. See Cope, 527 F.3d at 954, 956. We therefore vacate the aspect of condition 6 requiring Riley to take all prescribed medications, and remand to the district court for the limited purpose of making more specific findings as to medications “reasonably related to [Riley’s] treatment as a sex offender.” Id. at 956.
AFFIRMED in part; VACATED in part; and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Riley argues that the term "computer-related device” is overly broad because it includes devices, like PDAs, that can access the Internet, relying on United States v. Sales, 476 F.3d 732, 736 (9th Cir.2007). Unlike in Sales, there is a direct connection between Riley's use of the Internet and the commission of his offense. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470587/ | MEMORANDUM **
Eliseo Prieto Santos, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen. Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.2005). We deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Prieto Santos’ motion to reopen on the ground that his fingerprints were not new or previously unavailable evidence. See 8 C.F.R. § 1003.2(c)(1). It follows that Santos has not established a due process violation. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error to succeed on a due process claim).
To the extent Santos challenges the agency’s underlying decision denying his application for cancellation of removal, and to the extent he raises due process claims related to that decision, we lack jurisdiction because this petition is not timely as to that decision. See Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470589/ | MEMORANDUM **
Miguel Sosa Sanchez and Blanca Estela Sosa, spouses and natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reconsider. Our jurisdiction is governed by 8 U.S.C. § 1252. Reviewing for abuse of discretion the denial of a motion to reconsider, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), we dismiss in part and deny in part the petition for review.
We lack jurisdiction to review petitioners’ challenge to the agency’s discretionary determination that they were ineligible for cancellation of removal. See Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th Cir.2003).
The BIA did not abuse its discretion in denying petitioners’ motion to reconsider because the motion failed to identify any errors of fact or law in the BIA’s April 11, 2006, order denying their previous motion to reopen. See 8 C.F.R. § 1003.2(b)(1).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470591/ | MEMORANDUM **
Fuad Naser Khoury, a citizen of Jordan, petitions pro se for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his motion to reopen removal proceedings conducted in absentia. We have jurisdiction under 8 U.S.C § 1252. We review for abuse of discretion the denial of a motion to reopen proceedings. See Celis-Castellano v. Ashcroft, 298 F.3d 888, 890 (9th Cir.2002). We deny the petition for review.
The agency did not abuse its discretion in denying Khoury’s motion to reopen because he failed to demonstrate that exceptional circumstances excused his failure to appear. See Valencia-Fragoso v. INS, 321 F.3d 1204, 1204-06 (9th Cir.2003) (an alien’s mistaken belief regarding the time *324of her hearing did not constitute exceptional circumstances); see also 8 U.S.C. § 1229a(e)(l) (defining exceptional circumstances as “circumstances beyond the control of the alien”).
Khoury’s remaining contention is not persuasive.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470584/ | MEMORANDUM ***
Orlando Duarte-Celestino appeals the district court’s denial of his request to compel discovery, hold an evidentiary hearing, and impose sanctions against the United States for bringing charges against Duarte-Celestino that were eventually dismissed without prejudice. Because there is no a case or controversy pending, we lack jurisdiction to hear this appeal under Article III of the Constitution. See Neb. Press Ass’n v. Stuart, 427 U.S. 539, 546, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976) (noting that federal courts’ authority under Article III is limited to actual cases and controversies).
In order to have standing pursuant to Article III, a party must show (1) injury in fact, (2) a causal connection between the injury and the conduct complained of, and (3) that the injury is redressable. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). Duarte-Celestino cannot meet these criteria. The district court’s dismissal without prejudice of the criminal information against Duarte-Celestino has the legal effect of the information never having been filed. See United States v. California, 932 F.2d 1346, 1351 (9th Cir.1991); see also Mitchell v. Bd. of Governors of Wash. State Bar Ass’n, 145 F.2d 827, 828 (9th Cir.1944) (per curiam) (“A proceeding is none the less terminated because it is dismissed without prejudice”). Thus, it is *315questionable whether Duarte-Celestino has suffered a cognizable injury. Furthermore, any injury Duarte-Celestino suffered would appear to have been a result of the criminal charge and his detention, and not the denial of discovery or an evi-dentiary hearing. Finally, any alleged injury to Duarte-Celestino from his detention would not be redressed by discovery or an evidentiary hearing, which were directed toward having the district court impose sanctions on government counsel, rather than the entry of any order benefitting Duarte-Celestino. As the district court dismissed this criminal action and Duarte-Celestino has not alleged any redressable injury in this action, he lacks standing to appeal the district court’s denial of his motion. The appeal is DISMISSED.
disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470590/ | MEMORANDUM **
Miguel Sosa Sanchez and Blanca Estela Sosa, spouses and natives and citizens of Mexico, petition pro se for review of the Board of Immigration Appeals’ (“BIA”) order denying their motion to reconsider. Our jurisdiction is governed by 8 U.S.C. § 1252. Reviewing for abuse of discretion the denial of a motion to reconsider, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), we dismiss in part and deny in part the petition for review.
We lack jurisdiction to review petitioners’ challenge to the agency’s discretionary determination that they were ineligible for cancellation of removal. See Romero-Torres v. Ashcroft, 327 F.3d 887, 890 (9th Cir.2003).
The BIA did not abuse its discretion in denying petitioners’ motion to reconsider because the motion failed to identify any errors of fact or law in the BIA’s April 11, 2006, order denying their previous motion to reopen. See 8 C.F.R. § 1003.2(b)(1).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470592/ | MEMORANDUM **
Fuad Naser Khoury, a citizen of Jordan, petitions pro se for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his motion to reopen removal proceedings conducted in absentia. We have jurisdiction under 8 U.S.C § 1252. We review for abuse of discretion the denial of a motion to reopen proceedings. See Celis-Castellano v. Ashcroft, 298 F.3d 888, 890 (9th Cir.2002). We deny the petition for review.
The agency did not abuse its discretion in denying Khoury’s motion to reopen because he failed to demonstrate that exceptional circumstances excused his failure to appear. See Valencia-Fragoso v. INS, 321 F.3d 1204, 1204-06 (9th Cir.2003) (an alien’s mistaken belief regarding the time *324of her hearing did not constitute exceptional circumstances); see also 8 U.S.C. § 1229a(e)(l) (defining exceptional circumstances as “circumstances beyond the control of the alien”).
Khoury’s remaining contention is not persuasive.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470594/ | MEMORANDUM **
Jose de Jesus Valenzuela Alvarez, a native and citizen of Mexico, petitions for review of the order of the Board of Immigration Appeals dismissing his appeal from an immigration judge’s decision denying his request for administrative closure and denying his application for cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo claims of constitutional violations. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002). We dismiss in part and deny in part the petition for review.
We lack jurisdiction to review the agency’s discretionary determination that Valenzuela failed to show exceptional and extremely unusual hardship to a qualifying relative. See Romero-Torres v. Ashcroft, 327 F.3d 887, 892 (9th Cir.2003). The REAL ID Act of 2005 did not alter the court’s jurisdiction in this regard. Martinez-Rosas v. Gonzales, 424 F.3d 926, 929 (9th Cir.2005).
We also lack jurisdiction to review the agency’s denial of Valenzuela Alvarez’s request for administrative closure. See Diaz-Covarrubias v. Mukasey, 551 F.3d 1114, 1120 (9th Cir.2009).
To the extent Valenzuela Alvarez contends that the agency deprived him of due process by misapplying the law to the facts of his case, he does not state a color-able due process claim. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005) (“[Tjraditional abuse of discretion challenges recast as alleged due process violations do not constitute colorable constitutional claims that would invoke our jurisdiction.”).
Valenzuela Alvarez’s contention that 8 U.S.C. § 1252(a)(2)(B) forecloses all judicial review over a hardship determination and is therefore unconstitutional is not persuasive. Cf. Kalaw v. INS, 133 F.3d 1147, 1152 (9th Cir.1997) (discussing a similar provision); cf. Ramadan v. Gonzales, 479 F.3d 646, 653-54 (9th Cir.2007) (per curiam), reh’g denied, 504 F.3d 973 (9th Cir.2007).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470597/ | *328MEMORANDUM **
Jorge Carlos Palma-Maldonado, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s order denying his application for adjustment of status. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law in removal proceedings, Molina v. INS, 293 F.3d 1089, 1093 (9th Cir.2002), and we deny the petition for review.
The agency properly concluded that Pal-ma-Maldonado was statutorily ineligible for adjustment of status under 8 U.S.C. § 1255 by virtue of overstaying his 1999 voluntary departure order. See 8 U.S.C. § 1229e(d); Granados-Oseguera v. Mukasey, 546 F.3d 1011, 1016 (9th Cir.2008) (per curiam) (explaining that petitioner could no longer rely on “exceptional circumstances” to excuse failure to voluntarily depart). The agency also properly concluded that Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir.2004), did not waive the bar to adjustment of status for overstaying a voluntary departure order.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470599/ | MEMORANDUM **
Marco Antonio Lopez Chavez, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order affirming an immigration judge’s (“IJ”) decision denying as abandoned his application for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). We deny in part and dismiss in part the petition for review.
The agency properly determined that Lopez Chavez’s application for cancellation of removal was abandoned, where the IJ instructed Lopez Chavez to submit fingerprints and his criminal history record and informed him of the consequences of his failure to do so, yet nearly two years later Lopez Chavez did not establish diligence in complying with this requirement. See 8 C.F.R. § 1003.31(c) (permitting IJ to set filing deadlines and to deem applications abandoned when deadlines not met); cf. Cui v. Mukasey, 538 F.3d 1289, 1293-95 (9th Cir.2008).
The BIA did not err by failing to consider the new evidence Lopez Chavez submitted on appeal. See 8 C.F.R. § 1003.1(d)(3)(iv) (2006) (prohibiting the BIA from conducting fact-finding on appeal).
We lack jurisdiction to consider Lopez Chavez’s contention that the IJ erred by failing to grant a continuance, because he did not exhaust that issue before the agency. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470601/ | MEMORANDUM **
Wahyu Tarigan, a native and citizen of Indonesia, petitions for review of the *331Board of Immigration Appeals’ order affirming an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence factual findings, Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009), and we deny the petition for review.
Substantial evidence supports the IJ’s finding of no past persecution because Tarigan testified that neither he nor his family were harmed in Indonesia. See id. at 1059-60. Furthermore, substantial evidence supports the IJ’s finding that Tarigan has not established a well-founded fear of future persecution. See Lolong v. Gonzales, 484 F.3d 1173, 1179-81 (9th Cir.2007) (en banc). Lastly, the record does not compel the conclusion that Tarigan demonstrated a pattern or practice of persecution against Christians in Indonesia. See Wakkary, 558 F.3d at 1060-62. Accordingly, Tarigan’s asylum claim fails.
Because Tarigan has failed to demonstrate eligibility for asylum, he necessarily failed to meet the more stringent standard for withholding of removal. See Mansour v. Ashcroft, 390 F.3d 667, 673 (9th Cir.2004).
Finally, substantial evidence also supports the IJ’s denial of CAT relief because Tarigan has not established it is more likely than not that he will be tortured if he returns to Indonesia. See Singh v. Gonzales, 439 F.3d 1100, 1113 (9th Cir.2006).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470603/ | MEMORANDUM **
Petitioner James Darrell Shortt appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his jury conviction of murder and robbery. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and remand with instructions to grant the writ, conditioned upon the state’s decision within 90 days to retry Shortt.
The state violated Shortt’s due process rights when it failed to disclose favorable material evidence regarding prosecution witness Cisneros, and when it failed to correct Cisneros’ false testimony. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, the state failed to disclose that Cisneros had been given sentencing consideration in exchange for his testimony against Shortt and then failed to correct or disclose Cisneros’ perjurious testimony regarding consideration received for his cooperation and testimony. The state also failed to disclose impeaching psychiatric opinions and reports, and probation reports from prior cases involving Cisneros. The Los Angeles County Superior Court’s rejection of those claims was an objectively unreasonable application of clearly established federal law for purposes of the Antiterrorism and Effective Death Penalty Act of 1996. See Brady, 373 U.S. at 87, 83 S.Ct. 1194 (holding that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution”); Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (holding that the “principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witnesses”).
REVERSED and REMANDED with instructions to grant the writ, conditioned on the state’s decision to retry Shortt. The state has 90 days to make a decision as to retrial.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470758/ | OPINION OF THE COURT
FUENTES, Circuit Judge:
Sean Reed appeals from the judgment of conviction and sentence entered by the United States District Court for the Western District of Pennsylvania. Reed, charged with and convicted of being a felon in possession of a firearm pursuant to 18 U.S.C. §§ 922(g)(1) and 924(e), alleges that there was insufficient evidence to support the jury’s finding that he possessed a firearm; that a jury instruction concerning the interstate commerce element of § 922(g) was unconstitutional; and that his sentence was substantively unreasonable. For the reasons stated below, we will affirm.1
I.
Because we write exclusively for the parties, we discuss the facts only to the extent necessary for the resolution of the issues on appeal. On a rainy April 2, 2005 in the Pittsburgh neighborhood of Penn Hills, police officers Ryan Walters, Joseph Blaze, and David Wilkinson responded to a report of a suspicious man in a blue coat playing with a handgun near 8180 Chaske Street, a notoriously high crime area. Officer Walters was first to approach the man in the blue coat, later identified as Sean Reed. Walters, exiting his patrol car and approaching Reed, asked Reed to put his hands up. Instead, Reed turned away from Walters and began to run. Walters gave chase.
Running between houses and towards the woods, Reed slipped on a heap of trash and fell head first into a pile of logs, cutting his forehead. Walters, now ten feet behind Reed, ordered Reed to stay down but, dazed from his fall, Reed began to stand up, his back to Walters. Walters noticed that Reed’s right hand was not visible, as if reaching into his pocket. Walters then heard a single gunshot come from where Reed was standing on the trash heap. Blaze also testified to hearing the gunshot from his position farther down the street. Drawing his service weapon, Walters again ordered Reed to stop, but again Reed fled.
Walters radioed to Blaze and Wilkinson to set up a perimeter to block Reed’s escape onto nearby Lincoln Road. Reed did not get far, and after refusing to comply with orders to get on his knees, he was tackled by Walters and Wilkinson, handcuffed, and placed under arrest. By this time, other police officers had arrived on scene and after a pat-down which revealed no weapons or other paraphernalia, Reed was taken to the police station.
Within five minutes, Officers Walters, Blaze, and Wilkinson returned to the trash heap where they had heard the gunshot and found a dry gun lying on top of the wet trash in plain sight. The area still smelled like gunpowder, and the gun had one round chambered and seven more in the magazine. There was no rust on the gun. The officers could not find the bullet case in the debris, and laboratory results *802produced no latent fingerprints for identification. The gun was later identified as one manufactured in Austria in or after 1990.
Reed was charged with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Following a trial, a jury returned a verdict of guilty. The District Court, after reviewing Reed’s presentence report, found that Reed’s total offense level was 33 based on the Armed Career Criminal Guidelines. Moreover, the Court found that Reed fell under Criminal History Category VI. Hence, Reed was subject to an advisory Guidelines range of 235 to 293 months’ imprisonment. Arguing that his previous criminal record was double counted against him under U.S.S.G. § 4B1.4, and questioning the policy behind the Armed Career Criminal Guidelines, Reed was permitted to file additional briefing by the District Court, in addition to having multiple sentencing hearings. However, the District Court found the Guidelines range reasonable and sentenced Reed to 235 months imprisonment, arguing that “[i]f the Court were to sentence this defendant below the applicable guideline range, sentencing disparities would result.” App. 367.
On appeal, Reed argues that: (1) the evidence was insufficient to support the possession element of § 922(g)(1) such that his conviction ought to be vacated; (2) jury instructions on the interstate commerce element of § 922(g)(1) were unconstitutional; and (3) the District Court’s sentence was substantively unreasonable.
II.
A.
We first address Reed’s conviction under § 922(g)(1). Conviction under this section requires that the government prove beyond a reasonable doubt: (1) that the defendant had previously been convicted of a crime punishable by a term exceeding one year, (2) that the defendant knowingly possessed a firearm, and (3) that the firearm had passed in interstate commerce. United States v. Dodd, 225 F.3d 340, 344 (3d Cir.2000). Here, the parties stipulated before trial that Reed had the requisite felonious past.
Reed did not move for a judgment of acquittal as to the possession element at trial, so we review the sufficiency of the evidence for plain error. United States v. Mornan, 413 F.3d 372, 381 (3d Cir.2005) (holding that, “[Wjhere, as here, a defendant does not preserve the issue of sufficiency of the evidence by making a timely motion for judgment of acquittal at the close of the evidence, this Court reviews the sufficiency of the evidence for plain error.”). The plain error standard mandates that a reviewing court may reverse the district court “only if it finds that (1) an error was committed; (2) the error was plain, that is, clear and obvious; and (3) the error affected the defendant’s substantial rights.” United States v. Syme, 276 F.3d 131, 143 (3d Cir.2002) (citations, and internal quotation marks and alterations omitted). The burden is on the defendant to demonstrate that “plain error” occurred, and it is a “very heavy” one. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Additionally, “we ‘view the evidence in the light most favorable to the government and must sustain a jury’s verdict if a reasonable jury believing the government’s evidence could find beyond a reasonable doubt that the government proved all elements of the offenses.’ ” Mornan, 413 F.3d at 382 (quoting United States v. Rosario, 118 F.3d 160, 167 (3d Cir.1997)).
Here, no error was committed, let alone a plain error. Among the evidence the Government presented to the jury *803were: Reed’s resemblance to the description provided in the call to the police; Officer Walters’ testimony that he saw Reed reach into or around his pants, followed immediately by the sound of a gunshot; Officer Blaze’s testimony that he heard the gunshot from an adjacent street; the officers’ testimony that they smelled gunpowder near the trash heap where Reed fell; the officers’ recovery of a dry, rust-free gun on a wet day five minutes after Reed fell; and finally evidence that the gun had one bullet chambered and seven more in the magazine. Circumstantial evidence such as this has long been held by this Court to be sufficient for a conviction. See, e.g., United States v. Iglesias, 535 F.3d 150, 156 (3d Cir.2008) (“[T]he government may defeat a sufficiency-of-the-evidence challenge on circumstantial evidence alone.”). The Government presented evidence providing ample support for an inference that Reed was in possession of a firearm.
B.
Next, Reed argues that his conviction should be reversed and remanded for a new trial because the District Court’s jury instructions concerning the interstate commerce element of 18 U.S.C. § 922(g) were unconstitutional in light of United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), each refining the permissible use of Congress’s power under the Commerce Clause of the United States Constitution.2 We disagree. Reed’s argument has been consistently rejected by this Court. See, e.g., United States v. Singletary, 268 F.3d 196, 205 (3d Cir.2001) (holding that “proof ... that the gun had traveled in interstate commerce, at some time in the past, [is] sufficient to satisfy the interstate commerce element.”).
C.
Finally, Reed argues that his 235 months’ sentence pursuant to U.S.S.G. §§ 2K2.1 and 4B1.4 was substantively unreasonable. Reed contends that the Armed Career Criminal Guidelines are not based on empirical data and national experience and that the District Court thus abused its discretion in sentencing Reed within that range.
We review Reed’s claims of sentencing errors for abuse of discretion. See United States v. Russell, 564 F.3d 200, 203 (3d Cir.2009) (citing United States v. Lloyd, 469 F.3d 319, 320 (3d Cir.2006)). This is a twofold process, first requiring this Court to “ensure that the district court committed no significant procedural error in arriving at its decision.” Id. Then, “if we determine that the district court has committed no significant procedural error, we ... review the substantive reasonableness of the sentence.” Id. Here, Reed contends only that the sentence imposed was substantively unreasonable.
Assessing the reasonableness of a sentence requires this Court to consider whether the sentencing judge was faithful to 18 U.S.C. § 3553(a), which “tells the sentencing judge to consider (1) offense and offender characteristics; (2) the need for a sentence to reflect the basic aims of sentencing ...; (3) the sentences legally available; (4) the Sentencing Guidelines; (5) Sentencing Commission policy statements; (6) the need to avoid unwarranted *804disparities; and (7) the need for restitution.” Rita v. United States, 551 U.S. 338, 347-48, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). In Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), the Supreme Court held that “closer review may be in order when the sentencing judge varies from the Guidelines based solely on the judge’s view that the Guidelines range ‘fails properly to reflect § 3553(a) considerations’ even in a mine-run case.” 128 S.Ct. at 575 (quoting Rita, 551 U.S. at 351). However, the Supreme Court found such close scrutiny unwarranted where the Guidelines do not exemplify the Commission’s exercise of its characteristic role.
Reed argues that the Commission was not exercising its characteristic role in formulating the Armed Career Criminal Guidelines. In particular, Reed contends that the Guidelines cannot be based on national experience since Pennsylvania’s sentence for an equivalent offense would be lower.3 Reed thus maintains that the District Court should have given him a downward variance from those Guidelines. This logic is tenuous at best.
Reed’s single example was by no means sufficient to require the District Court to conclude that the Armed Career Criminal Guidelines do not adequately reflect all of the § 3553(a) considerations. The District Court considered Reed’s argument to the contrary by allowing him multiple briefing opportunities and sentencing hearings, but found that the Armed Career Criminal Guidelines did in fact reflect § 3553(a) factors. The District Court further found that there was nothing unique about Reed’s case, and thus concluded that a Guidelines range sentence was necessary to meet those factors. We find there was no abuse of discretion by the District Court in imposing a sentence within the Guidelines.
Finally, Reed argues that even if the Armed Career Criminal Guidelines are an appropriate sentencing reference, his previous criminal record has been twice counted against him: once in determining his offense level, and again in determining his criminal history score. However, “only when the Guidelines explicitly prohibit double counting will it be impermissible to raise a defendant’s offense level under one provision when another offense Guideline already takes into account the same conduct.” United States v. Fisher, 502 F.3d 293, 309 (3d Cir.2007) (citation, quotation marks and alteration omitted). We agree with the District Court that “[t]he emphasis on these prior convictions in both the calculation of the base offense level and a criminal history category addresses different public policy concerns.” App. 366.
III.
For the foregoing reasons, we will affirm the judgment of the District Court as to Reed’s conviction and sentence.
. The District Court had subject matter jurisdiction pursuant to 18 U.S.C.§ 3231,and this Court has jurisdiction over Reed's appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
. Reed concedes he only advances this argument in an effort to preserve it for en banc or Supreme Court review.
. Reed cites 18 Pa. Cons.Stat. § 6105 (2000), the Pennsylvania state equivalent of § 922(g), as evidence that the Congressional statute proscribes greater than necessary sentences. The Government contends that even if the District Court were to apply Pennsylvania's sentencing guidelines to Reed's case, his sentence would in fact be longer than the 235 month sentence he received. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470760/ | OPINION OF THE COURT
FUENTES, Circuit Judge:
Appellant David Noe appeals his judgment of conviction, claiming that the District Court erroneously denied his motions to dismiss the indictment and to suppress evidence and statements. For the reasons discussed below, we will affirm.1
I.
Because we write only for the parties, a brief recitation of the facts will suffice. This case originated in a Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) investigation of Noe’s live-in girlfriend, Kimberly Williams. In April 2006, the ATF learned that Williams had pur*806chased eight firearms within a short period of time. The ATF further determined that Noe, who had a prior felony conviction for unlawful possession of a handgun, was residing at the same address as Williams. Concerned that something unseemly was afoot, the ATF assigned agents Curry and Zubaty to investigate further.
The agents went to the Exxon station where Williams worked as an assistant manager. They explained to Williams that they were investigating her purchase of multiple firearms and requested permission to enter her home to see the firearms and verify that she was still in possession of them. Williams told the agents that she would not consent to them entering her home because it was “too messy,” but instead offered to enter her home on her own, get the firearms, and bring them outside so the agents could perform their check. The agents agreed to Williams’s proposal and allowed her to enter the home unescorted. Williams obtained the weapons, but unexpectedly presented the officers with eleven firearms, not eight. She acknowledged that three of the firearms belonged to Noe, and she permitted the agents to seize the firearms.
Both parties agree with the narrative presented above. The dispute in this case focuses on one comment that may or may not have been made by the agents prior to the seizure. At some point while at the gas station, Williams asked the agents if they had a warrant and Agent Zubaty replied that they did not. Williams testified that Agent Zubaty followed that comment by saying “but we can get one.” Agent Curry, on the other hand, testified that he was “pretty positive” that they did not say they could get a warrant. Zubaty did not testify, and there were no other witnesses to the exchange.
Following the seizure of the firearms, Noe contacted the ATF and attempted to explain the origin of the three extra weapons. Soon thereafter, Noe was charged in the Eastern District of Pennsylvania in an indictment alleging one count of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). Noe moved to dismiss the indictment, arguing that § 922(g)(1) exceeds Congress’s authority under the Commerce Clause, and to suppress evidence and statements, arguing that Williams had not voluntarily consented to the search. The District Court denied both motions.
Noe conditionally pled guilty to the indictment, reserving the right to appeal the District Court’s denial of his pretrial motions. As part of the plea, the Government conceded that Noe only had the guns for “collection” purposes and had not unlawfully used them. On August 1, 2008, the District Court sentenced Noe to five years supervised release and a special assessment of $100. Noe timely appealed.2
II.
As an initial matter, Noe challenges the constitutionality of the felon-in-possession statute. 18 U.S.C. § 922(g)(1). He argues that the intrastate possession of a firearm does not have a substantial effect upon interstate commerce and, thus, does not constitute the basis for a valid exercise of congressional authority under the Commerce Clause. We specifically addressed this issue in United States v. Singletary, 268 F.3d 196 (3d Cir.2001), and held that § 922(g)(1) was an appropriate exercise of Congress’s authority under the Commerce *807Clause. Id. at 205. As we have already decided this issue, we need not revisit it here.
We review the District Court’s denial of a motion to suppress for “clear error as to the underlying facts,” but we exercise “plenary review as to its legality in light of the court’s properly found facts.” United States v. Givan, 320 F.3d 452, 458 (3d Cir.2003) (internal quotation marks omitted). Noe disputes the District Court’s finding that Williams gave voluntary consent to retrieve firearms from her house in order to give them to the ATF agents. “[Wlhether a consent to a search is in fact ‘voluntary’ or is the product of duress or coercion, express or implied, is a question of fact to be determined from the totality of all the circumstances.” Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). In making this determination, courts assess both the characteristics of the individual and the details of the encounter, including factors such as the age, intelligence, and educational background of the individual; the length of the encounter; the repeated and prolonged nature of the questioning; the use of, or lack of, threats or physical punishment; and whether the individual was advised of his or her constitutional rights, including the right to refuse to consent. Id. at 226, 93 S.Ct. 2041 (citations omitted); see also United States v. Kim, 27 F.3d 947, 955 (3d Cir.1994). Also relevant are “the setting in which the consent was obtained [and] the parties’ verbal and nonverbal actions.” Givan, 320 F.3d at 459. No one factor is dispositive. Schneckloth, 412 U.S. at 226, 93 S.Ct. 2041. The ultimate question is whether, under all the circumstances, the consent was the free and unconstrained choice of its maker. Id. It is the government’s burden to establish voluntariness by a preponderance of the evidence. United States v. Sebetich, 776 F.2d 412, 424 (3d Cir.1985).
Noe bases his argument primarily on the claim that the ATF agents threatened Williams that they would obtain a search warrant if she refused to consent to the search and seizure of the firearms. As Noe correctly points out, it is well-established that when evidence shows that a person believes she must consent to a search, this “weighs heavily against a finding that consent was voluntarily given.” United States v. Molt, 589 F.2d 1247, 1251 (3d Cir.1978); see Schneckloth, 412 U.S. at 233-34, 93 S.Ct. 2041 (citing Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968)). “And when that belief stems directly from misrepresentations made by government agents, however innocently made, we deem the consent even more questionable.” Molt, 589 F.2d at 1251-52 (finding consent involuntary where agents misrepresented their statutory authority). In United States v. Sebetich we expressed concern that statements by law enforcement officers suggesting that acquiring a warrant would be a foregone conclusion might convey an impression that the individual has no choice but to consent.3 776 F.2d at 425. Under such circumstances, consent might be vitiated where probable cause to support the issuance of a warrant is, in fact, lacking.4 See id. at 424.
*808Noe contends that the District Court failed to make specific findings or even address Williams’s testimony that the ATF agents threatened to secure a warrant if she refused consent and that she believed she had no choice but to go back to the house and get the weapons. Accordingly, he argues that the District Court clearly erred in asserting that there was “nothing in the record of this case to suggest that the consent given by Miss Williams was the product of any coercion, duress or improper tactics by law enforcement.” United States v. Noe, No. 07-CR-11, 2008 WL 4211672, at *6 (E.D.Pa. Sept. 12, 2008). We disagree. We find support in the record that the District Court considered and weighed the contradictory testimony before determining that Williams had voluntarily consented to the seizure. Although we agree with Noe that the District Court might well have been more explicit in its findings of fact, there are no critical unresolved factual issues that prevent us from properly reviewing the District Court’s findings.
The record before us indicates that the District Court acknowledged the testimony of Williams on several occasions. During the argument at the suppression hearing, the District Court expressly stated that it understood Noe’s central argument to concern the voluntariness of Williams’s decision to consent. Similarly, in its Memorandum Opinion, the District Court noted that Noe “alleges that Miss Williams was coerced into retrieving the guns by the ATF agents who told her that they were going to come in the house to verify what she was saying.” Id. at *3. More specifically to the claim raised by Noe, the District Court said, “I must examine the testimony of the witnesses to determine whether valid consent for the seizure of the weapons was given by Miss Williams.” Id. at *5 (emphasis added). The District Court then explained, in detail, its determination that there was “no coercion involved in obtaining this consent.” Id. Importantly, the District Court had noted early in its Memorandum Opinion that, in making factual findings, it considered “the pleadings, the testimony of the witnesses and defense exhibit presented at the hearing” and made “credibility determinations.” Id. at *1. Thus, we can plainly infer that the judge evaluated the testimony of both Williams and Zubaty — the only two witnesses in this case — and then based his decision about Agent Curry’s alleged statement on the credibility of those two witnesses.
Having established that the District Court did, in fact, take William’s testimony into consideration, the core issue in this appeal then becomes whether there is any evidence to support the District Court’s conclusion that Williams’s consent was voluntary. Under the clear error standard, we will uphold the District Court’s factual findings unless they are “completely devoid of minimum evidentiary support displaying some hue of credibility,” or “bear[ ] no rational relationship to the supportive evidentiary data.” United States v. Antoon, 938 F.2d 200, 204 (3d Cir.1991). A trial judge’s factual findings which are based on the credibility of witnesses are entitled to great deference. As the Supreme Court has explained, “when a trial judge’s finding is based on his decision to credit the testimony of one of two or more witnesses, each of whom has told a coherent and facially plausible story that is not contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear error.” Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). See also United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir.1997) (applying the rule in a criminal case). Thus, “[w]here there are *809two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson, 470 U.S. at 574, 105 S.Ct. 1504 (1985).
We find sufficient support in the record for the District Court’s determination that consent was voluntarily given. Williams was contacted by telephone and informed by a coworker that there were two agents waiting to speak with her in the parking lot at her place of employment. Williams went to meet with the agents on her own accord. When she arrived, the agents were in plain clothes, were properly identified as agents, and had no visible weapons. In an exchange of limited words and duration, Williams declined to allow the agents entry into her home but volunteered to bring the firearms outside for their inspection. She said she needed half an hour to retrieve the firearms and the agents acquiesced, despite concerns for their own safety. At no time did the agents enter the residence.
At the hearing, Williams testified inconsistently about whether she believed she had a choice in retrieving the firearms. In addition, Williams stated affirmatively that she turned over the firearms because she wanted to “cooperate” with the agents, (App.133), and that she told the agents: “[i]f it would make it easier, just take them all,” further indicating the voluntary nature of her consent, (App.130).
Based on our overall review of the record, we cannot say that the District Court committed clear error in finding that Williams gave voluntary consent to the seizure. Accordingly, we will defer to the judgment of the District Court.
III.
For the foregoing reasons, we affirm.
. The District Court had jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction under 28 U.S.C. § 1291.
. Noe subsequently violated the terms of his supervised release while this appeal was pending and was sentenced to jail time.
. We clarified, however, that a statement by an officer that he would merely attempt to obtain a warrant would not weigh against a finding of voluntary consent. Sebetich, 776 F.2d at 425 (citations omitted).
. We have, however, expressly declined to "establish a blanket rule that, whenever police ... falsely claim they can obtain [a search warrant], voluntariness is necessarily vitiated; indeed Schneckloth mandates consideration of all the surrounding circumstances." Sebetich, 776 F.2d at 424. Thus, even if the agents had, indeed, threatened to obtain a warrant, that would constitute but one factor *808in the overall determination of voluntariness of the consent. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470762/ | OPINION OF THE COURT
DIAMOND, District Judge.
In these six putative class actions, Appellants — who have sought reimbursements under insurance policies issued by several of the Appellee companies — charge that Appellees breached the policies by using a computer auditing system to evaluate those reimbursements. The District Court dismissed all six actions on various grounds. We conclude that Appellants have not stated a cognizable breach of contract claim and will affirm on this alternative ground.
I.
Because we write primarily for the benefit of the Parties, we will summarize the complex history of these cases.
Appellees (Defendants below) are: (1) insurance companies that issue Personal Injury Protection (“PIP”) automobile insurance policies; and (2) entities that adjust PIP claims on behalf of insurers. Appellants (Plaintiffs below) are medical providers in Minnesota, Texas, Kansas, Arkansas, Florida, and California who *812treated persons insured by Appellees and then, after receiving assignments from their patients, sought payment for those services from Appellees.
In each of the actions below, Appellants asked the District Court to certify a Rule 23(b)(3) class of medical providers and insureds bringing the same claim: that Ap-pellees breached the underlying insurance contracts by using “computerized auditing system[s]” to determine the amount to be paid for each PIP claimed reimbursement. Appellants’ Supp. Br. at 1; App. at 156-57, 185-86, 211-12, 237-38, 271-72, 305-06; Fed.R.Civ.P. 23(b)(3). Each auditing system includes a database compiled by a third party used to calculate the prevailing billing rates for medical services within a given area. According to Appellants, these databases are “flawed and corrupt,” thus reducing or automatically applying undisclosed “cap[s]” on some reimbursements. (Appellants’ Supp. Br. at 1, 4.)
The first of these actions was filed in the District of New Jersey on July 3, 2007. St. Louis Park Chiropractic, P.A. v. Fed. Ins. Co., No. 08-3808 (“Chubb”). On September 10, 2007, the Chubb Defendants moved to dismiss for failure to state a claim and lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(6), (b)(1). While this Motion was pending, additional class actions were filed in the same Court against other insurers. App. at 30-31; see Innovative Physical Therapy, Inc. v. Metlife Auto & Home, No. 08-3809 (“Metlife ”); Allied Med., P.A. v. Am. Int'l Ins. Co., No. 08-3821 (“AIG”); Advanced Acupucture Clinic, Inc. v. Allstate Ins. Co., No. 08-3822 (“Allstate ”); Advanced Acupuncture Clinic, Inc. v. Farmers Ins. Exch., No. 08-3823 (“Farmers ”); Casey Oie, D.C. v. Travelers Indem. Co., No. 08-3824 (“Travelers ”). On November 16, 2007, the District Court denied the Chubb Defendants’ Motion to Dismiss without prejudice to their right to re-file pursuant to a coordinated briefing schedule in all six cases. (App. at 30-31.) On March 18, 2008, Defendants moved to dismiss each of the named Plaintiffs’ actions on myriad grounds. In addition, the Allstate, Metlife, and Chubb Defendants moved to strike the class allegations arguing, inter alia, that Plaintiffs could never meet Rule 23’s class certification requirements because individual issues of law and fact predominated. Fed.R.Civ.P. 23(b)(3).
On August 26, 2008, the District Court granted Defendants’ Motions and dismissed all six actions. In Allstate, Metlife, and Chubb, the Court dismissed the Minnesota named Plaintiffs’ breach of contract claims, ruling that under state law they were subject to mandatory arbitration. (App. at 33-36, 58-60, 95-98.) The Court dismissed the claims of certain of the named Plaintiffs in AIG and Farmers because the Defendants in those cases were not parties to the underlying insurance policies. (App. at 86, 122-23.) The Court sua sponte dismissed: (1) the claims of certain named Plaintiffs in Metlife and AIG because those Plaintiffs “ma[d]e no allegations against” Defendants in their Complaints; and (2) the claims of certain named Plaintiffs in Allstate on forum non conveniens grounds. (App. at 60 n. 6, 86 n. 5, 98-101.) Finally, the District Court granted summary judgment against the named Plaintiff in Travelers because the insured patient had entered into a settlement and release. (App. at 129-30.)
The District Court also granted Defendants’ Motions to Strike the class allegations in Chubb, Metlife, and Allstate. The Court determined that Plaintiffs could not meet the requirements for a Rule 23(b)(3) class because: (1) the Minnesota named Plaintiffs were inadequate class representatives as they were required to arbitrate their claims (Fed.R.Civ.P. 23(a)(4)); (2) in*813dividual issues of law and fact predominated over common issues (Fed.R.Civ.P. 23(b)(3)); and (3) a class action was not the superior form of action (Fed.R.Civ.P. 23(b)(3)). (App. at 37-50, 60-73, 101-14.) The Defendants in Farmers and Travelers “chose[] to await the Court’s decision [in Allstate ] before addressing the class allegations.” (App. at 120 n. 1, 127 n. 1.) The District Court nonetheless stated that because it had decided to “deny class certification” in Allstate, “the issue, as it pertains to [Travelers and Farmers ], is moot.” (Id.) The AIG Defendants had not moved to strike the class allegations. In its Order dismissing the named Plaintiffs’ claims, however, the District Court noted that “[h]ad [the AIG ] Defendants made such a motion,” it would have “denied class certification because Plaintiffs do not meet the requirements under Fed.R.Civ.P. 23.” (App. at 80 n. 3.)
Plaintiffs timely appealed the District Court’s Orders. (App. at 1-18.) With the exception of the claims against certain Chubb Defendants that were dismissed for lack of personal jurisdiction, Appellants challenge every ground on which the District Court dismissed the named Plaintiffs’ claims and struck the class allegations. Appellees urge us to affirm both for the reasons addressed by the District Court and on additional grounds that the District Court did not reach.
During oral argument, we sought to determine whether Plaintiffs had stated a cognizable breach of contract claim below (an issue that neither the Parties nor the District Court had addressed). At our request, the Parties subsequently submitted supplemental briefs on this question.
II.
The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1332(d)(2)(A). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
III.
Appellants are unable to identify any contractual provision that: (1) prohibits Appellees from using a computerized auditing system; or (2) requires Appellees to consider — or prohibits them from considering — any particular criterion in determining whether an expense is “reasonable.” Accordingly, we do not believe Appellees’ use of computerized auditing systems breached the underlying insurance contracts. See, e.g., Ware v. Rodale Press, Inc., 322 F.3d 218, 225 (3d Cir.2003) (“[A] plaintiff seeking to proceed with a breach of contract action must establish (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract, and (3) resultant damages.”) (internal quotation marks and alterations omitted); 23 Richard A. Lord, Williston on Contracts § 63:1 (4th ed. 2002) (“[A] breach of contract is a failure, without legal excuse, to perform any promise that forms the whole or part of a contract.”).
Appellants suggest that we have not properly construed their breach of contract claim. They argue that Appellees’ use of computerized auditing breached the policy provision requiring them to pay “reasonable” medical expenses. (Appellants’ Supp. Br. at 2 & Ex. 1.) It is apparent, however, that the gravamen of Appellants’ claim is that Appellees’ use of computerized auditing itself violated the insurance contracts. Appellants confirm this in asking us to reverse the District Court’s decision to strike their class allegations. In making that decision, the District Court construed Appellants’ claim below exactly the way Appellants now ask us to construe it: that Appellees below breached the policy provision requiring *814them to pay “reasonable” medical expenses. The District Court reasoned that this claim would necessarily require a determination of “reasonableness” expense by expense. Because individual factual and legal issues would thus predominate, the Court ruled that Appellants could not meet the certification requirements of Rule 23(b)(3). (E.g., App. at 111.)
In challenging that determination, Appellants have argued to us that the District Court misconstrued their breach of contract claim, which is unrelated to the reasonableness of the reimbursements paid:
Plaintiffs are not challenging individual determinations of reasonableness for the claims of individual class members because the Insurers never made any. Rather, Plaintiffs are challenging the uniform process that the Insurers apply to all claims.
Appellants’ Br. at 22 (emphasis supplied); see also id. at 23 n. 8 (“The District Court was viewing Plaintiffs’ claims through the wrong end of the telescope. The District Court believed that the issue was whether the amount the Insurers paid was reasonable. That is not the issue.”) (citation omitted). Appellants acknowledge that Appellees did not reduce all reimbursements. (Tr. at 8, June 1, 2009.) Thus, the “uniform process that the Insurers apply to all claims” is computerized auditing.
In these circumstances, our construction of the claim below is the same as Appellants’: that the use of computerized auditing itself breached the underlying contracts. As we have discussed, however, because those insurance policies do not require or bar the use of any means of expense evaluation, Appellees’ use of computerized auditing did not breach the policies.
Even if we adopt Appellants’ directly contradictory construction of their claim— that the use of computerized auditing breached the provision requiring Appellees to pay “reasonable” expenses — that claim remains non-cognizable. All the underlying policies, with “slight variation[s] in the[ir] language,” require the payment of “reasonable” medical expenses. (Appellants’ Supp. Br. at 2.) Appellants offer no authority suggesting that this provision may be construed as requiring or prohibiting a particular manner of expense review. Rather, the authority Appellants offer is inapposite, involving: (1) policies that required insurance companies to consider specific criteria when determining “reasonableness”; or (2) state law that required insurers to evaluate claims in a particular manner. See Brooks v. Educators Mut. Life Ins. Co., 206 F.R.D. 96, 105 (E.D.Pa.2002) (underlying insurance policies required the insurer to determine the “reasonable and customary charge” for medical expenses in relation to “the usual charge ... provided in the same geographical area”); Stratun v. Farmers Ins. Co. of Or., 228 Or.App. 454, 209 P.3d 357, 365-66 (2009) (computerized auditing might contravene the Oregon statute that prohibits insurers from “[rjefusing to pay claims without conducting a reasonable investigation based on all available information” (quoting Or.Rev.Stat. § 746.230(1)(d))). Indeed, in the single apposite decision we have found, the court rejected a breach of contract claim identical to that advanced by Plaintiffs. See State Farm Mut. Auto. Ins. Co. v. Sestile, 821 So.2d 1244, 1245-46 (Fla.Dist.Ct.App.2002) (insurer’s use of a “computer-generated database to determine the reasonableness of medical bills” did not violate Florida’s PIP statute and did not breach the underlying insurance policy because “neither the policy nor the statute declares how an insurer is to make [a] determination [of reasonableness]”).
In these circumstances, Appellees’ use of computerized auditing — whether taken by *815itself or as a means to reduce some reimbursements — does not violate any provision of the underlying insurance policies. Accordingly, we conclude that Appellants have failed to state a legally cognizable breach of contract claim.
Finally, Appellants protest our consideration of the cognizability issue because it was not raised by the Parties and was not considered below. Appellants ignore, however, that we may “affirm a result reached by the District Court on different reasons, as long as the record supports the judgment.” United States v. Sanchez, 562 F.3d 275, 279 (3d Cir.2009) (quoting Guthrie v. Lady Jane Collieries, Inc., 722 F.2d 1141, 1145 n. 1 (3d Cir.1983)); see also Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 82 L.Ed. 224 (1937). It is apparent from the record that Appellants have failed to state a viable breach of contract claim. Accordingly, we may affirm the District Court on this alternative ground.
IV.
For the reasons stated, we will affirm the August 26, 2008, 2008 WL 4056225, Orders of the District Court. In light of our decision, we do not address the grounds on which the District Court based its decisions or the alternative grounds raised by Appellees. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470598/ | *328MEMORANDUM **
Jorge Carlos Palma-Maldonado, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s order denying his application for adjustment of status. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law in removal proceedings, Molina v. INS, 293 F.3d 1089, 1093 (9th Cir.2002), and we deny the petition for review.
The agency properly concluded that Pal-ma-Maldonado was statutorily ineligible for adjustment of status under 8 U.S.C. § 1255 by virtue of overstaying his 1999 voluntary departure order. See 8 U.S.C. § 1229e(d); Granados-Oseguera v. Mukasey, 546 F.3d 1011, 1016 (9th Cir.2008) (per curiam) (explaining that petitioner could no longer rely on “exceptional circumstances” to excuse failure to voluntarily depart). The agency also properly concluded that Perez-Gonzalez v. Ashcroft, 379 F.3d 783 (9th Cir.2004), did not waive the bar to adjustment of status for overstaying a voluntary departure order.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470600/ | MEMORANDUM **
Marco Antonio Lopez Chavez, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order affirming an immigration judge’s (“IJ”) decision denying as abandoned his application for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). We deny in part and dismiss in part the petition for review.
The agency properly determined that Lopez Chavez’s application for cancellation of removal was abandoned, where the IJ instructed Lopez Chavez to submit fingerprints and his criminal history record and informed him of the consequences of his failure to do so, yet nearly two years later Lopez Chavez did not establish diligence in complying with this requirement. See 8 C.F.R. § 1003.31(c) (permitting IJ to set filing deadlines and to deem applications abandoned when deadlines not met); cf. Cui v. Mukasey, 538 F.3d 1289, 1293-95 (9th Cir.2008).
The BIA did not err by failing to consider the new evidence Lopez Chavez submitted on appeal. See 8 C.F.R. § 1003.1(d)(3)(iv) (2006) (prohibiting the BIA from conducting fact-finding on appeal).
We lack jurisdiction to consider Lopez Chavez’s contention that the IJ erred by failing to grant a continuance, because he did not exhaust that issue before the agency. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470602/ | MEMORANDUM **
Wahyu Tarigan, a native and citizen of Indonesia, petitions for review of the *331Board of Immigration Appeals’ order affirming an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence factual findings, Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009), and we deny the petition for review.
Substantial evidence supports the IJ’s finding of no past persecution because Tarigan testified that neither he nor his family were harmed in Indonesia. See id. at 1059-60. Furthermore, substantial evidence supports the IJ’s finding that Tarigan has not established a well-founded fear of future persecution. See Lolong v. Gonzales, 484 F.3d 1173, 1179-81 (9th Cir.2007) (en banc). Lastly, the record does not compel the conclusion that Tarigan demonstrated a pattern or practice of persecution against Christians in Indonesia. See Wakkary, 558 F.3d at 1060-62. Accordingly, Tarigan’s asylum claim fails.
Because Tarigan has failed to demonstrate eligibility for asylum, he necessarily failed to meet the more stringent standard for withholding of removal. See Mansour v. Ashcroft, 390 F.3d 667, 673 (9th Cir.2004).
Finally, substantial evidence also supports the IJ’s denial of CAT relief because Tarigan has not established it is more likely than not that he will be tortured if he returns to Indonesia. See Singh v. Gonzales, 439 F.3d 1100, 1113 (9th Cir.2006).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470604/ | MEMORANDUM **
Petitioner James Darrell Shortt appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his jury conviction of murder and robbery. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and remand with instructions to grant the writ, conditioned upon the state’s decision within 90 days to retry Shortt.
The state violated Shortt’s due process rights when it failed to disclose favorable material evidence regarding prosecution witness Cisneros, and when it failed to correct Cisneros’ false testimony. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, the state failed to disclose that Cisneros had been given sentencing consideration in exchange for his testimony against Shortt and then failed to correct or disclose Cisneros’ perjurious testimony regarding consideration received for his cooperation and testimony. The state also failed to disclose impeaching psychiatric opinions and reports, and probation reports from prior cases involving Cisneros. The Los Angeles County Superior Court’s rejection of those claims was an objectively unreasonable application of clearly established federal law for purposes of the Antiterrorism and Effective Death Penalty Act of 1996. See Brady, 373 U.S. at 87, 83 S.Ct. 1194 (holding that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution”); Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) (holding that the “principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witnesses”).
REVERSED and REMANDED with instructions to grant the writ, conditioned on the state’s decision to retry Shortt. The state has 90 days to make a decision as to retrial.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470757/ | OPINION
PER CURIAM.
Batsaihan Purveegiin, a native and citizen of Mongolia, entered the United States in 1991 on a student visa to attend art school. He quit school in 1992, for reasons that are not clear from the record. He was convicted by New York authorities of petty larceny, criminal impersonation, and sexual abuse in 1995 and 1996. In 1997, the Government charged Purveegiin as removable for failure to maintain the conditions of admission, 8 U.S.C. § 1227(a)(1)(C)(i), and for convictions of crimes involving moral turpitude, 8 U.S.C. § 1227(a)(2)(A)(i), (ii). Purveegiin conceded removability, but sought (in relevant part1) withholding of removal under the Convention Against Torture (“CAT”).
*797The Immigration Judge (“IJ”) granted Purveegiin’s CAT claim in 1999. The IJ found that Purveegiin was a credible witness and accepted the following as fact. The Mongolian government had given Purveegiin, an artist, a grant of approximately $20,000 to attend school in New York City. After a change in power in the Mongolian government, the grant was converted to a loan that Purveegiin became obligated to repay. He requested assistance from the Mongolian consulate, but the chief consular official not only denied his request for additional funds but also threatened that, if Purveegiin did not pay back the money, he would be imprisoned. Purveegiin responded by criticizing the Communist Party and certain government officials in Mongolia, which further angered the consular official. The IJ concluded that Pur-veegiin would be detained upon his return to Mongolia. In addition, the IJ found that Purveegiin had a serious case of diabetes and required daily medication. The IJ noted that without his medication, Pur-veegiin would face severe or fatal repercussions. Considering Purveegiin’s health problem and what the IJ characterized as harsh, unsanitary, and life-threatening conditions in Mongolian prisons, the IJ concluded that the pain and suffering Pur-veegiin would face on his detention would be anticipated by government officials and constitute torture as it is defined in the CAT.
The Government appealed, and the Board of Immigration Appeals (“BIA”) overruled the IJ’s decision in 2003. The BIA held that Purveegiin had failed to present credible evidence that he would be imprisoned and tortured if returned to Mongolia. The BIA specifically noted that there was no convincing evidence that Pur-veegiin would be even briefly detained for failing to pay back his loans or that he would not be provided with medication if imprisoned.
Purveegiin filed a petition for review. Shortly thereafter, the Government filed a motion to remand Purveegiin’s case to the BIA in light of Zubeda v. Ashcroft, 333 F.3d 463 (3d Cir.2003). We granted the motion in a summary order.
On remand, the BIA, after admitting the 2003 country reports into the record, acted through a single member to reaffirm its reversal of the IJ’s decision. Again, the BIA held that Purveegiin had provided insufficient evidence that he would be imprisoned on his return to Mongolia. The BIA also stated that even if Purveegiin were detained on his return, he would not be tortured in light of evidence that prison conditions were improving and that prisons “provided tuberculosis treatment to a large number of prisoners and took steps to limit infection in prisons.” Purveegiin filed a motion for reconsideration with the BIA and a petition for review with this Court. When the BIA denied his motion for reconsideration, he filed another petition for review.
We consolidated the matters and granted the consolidated petition, holding that the BIA erred in failing to refer Purveegiin’s case to a three-member panel for review. See Purveegiin v. Gonzales, 448 F.3d 684, 693 (3d Cir.2006). We concluded that the failure may have affected the BIA’s resolution of factual disputes underlying Purveegiin’s claims and remanded to the agency to allow a panel of the BIA to pass upon the issues in the first instance. See id.
On remand, a three-member panel of the BIA vacated the earlier rulings and considered Purveegiin’s CAT claim in light of Zubeda and Auguste v. Ridge, 395 F.3d *798123 (3d Cir.2005). After reviewing the IJ’s conclusions and country reports from 2003 and 2005, the BIA again concluded that Purveegiin had not established that it was more likely than not that he would be tortured on his return to Mongolia.
Specifically, the BIA held that Purveegiin did not establish a likelihood of being detained, noting that although he testified about threats of detention, he did not “present evidence that the Mongolian government typically detains persons at the request of high officials who wish to seek retaliation,” or that persons with unpaid student loans are detained. The BIA noted also that Purveegiin had not been charged in Mongolia with a crime and that no warrant existed for his arrest. Assuming Purveegiin would be detained, the BIA .further concluded that he had not established that he would be tortured because prison and pre-trial detention conditions had improved. The BIA conceded that insufficient medical care remained a problem, although programs had been instituted to stop the spread of tuberculosis. However, the BIA concluded that even atrocious prison conditions, without more, did not merit a grant of CAT relief. The BIA held that the IJ erred in ruling that “officials’ knowledge of the prison conditions in Mongolia, coupled with detaining the respondent so that he would be subjected to those conditions, was sufficient to show intent to inflict severe pain and suffering.”
Purveegiin then filed a pro se petition for review and a motion for a stay of removal. While the motion was pending and without notifying us in advance (as is the usual practice), the Government removed Purveegiin from the United States. We subsequently converted his motion for a stay of removal into a motion to compel the Government to return him to the United States and granted it. We also appointed counsel for Purveegiin, who remains in Mongolia because he and the Government are at an impasse relating to the terms and conditions of his return to the United States.
Purveegiin, through his counsel, raises four issues in his petition for review: (1) whether the BIA applied the correct legal standard in reviewing his CAT claim; (2) whether the BIA failed to appropriately review his case on remand; (3) whether the BIA properly applied applicable law on specific intent in deciding the CAT claim; and (4) whether we should remand his case to the BIA for further fact-finding in light of changes in circumstances since his return to Mongolia. In short, Purveegiin asks us to vacate the BIA’s decision and affirm the IJ’s initial decision to grant him CAT relief (he requests further fact-finding as an alternative).
The Government counters that we lack jurisdiction to review Purveegiin’s petition under 8 U.S.C. § 1252(a)(2)(C) because Purveegiin is a criminal alien who raises “merely a factual claim that the Board failed to adequately weigh the evidence.” Government’s Brief 9. Among other things, the Government also argues that Pierre v. Attorney General of the United States, 528 F.3d 180 (3d Cir.2008) (en banc), precludes success on any claim Purveegiin advances.
We have jurisdiction over Purveegiin’s petition for review—which presents legal questions—pursuant to 8 U.S.C. § 1252(a)(1) & (a)(2)(D). Our jurisdiction includes review of the BIA’s application of law to undisputed facts. See Toussaint v. Attorney Gen. of the United States, 455 F.3d 409, 412 n. 3 (3d Cir.2006). We review questions of law de novo. See Gerbier v. Holmes, 280 F.3d 297, 302 n. 2 (3d Cir.2002).
The first question is whether the BIA applied the correct standard of review. *799Purveegiin argues that although the IJ found him credible and the BIA is presumed to have found him credible, see Kayembe v. Ashcroft, 334 F.3d 231, 235 (3d Cir.2003), the BIA inexplicably found that he would not be detained or tortured if returned to Mongolia. The BIA, considering Purveegiin’s appeal, originally filed before September 25, 2002, permissibly exercised de novo review of the IJ’s factual findings and made its own independent findings of fact relating to whether Pur-veegiin would be detained. See Matter of S-H-, 23 I. & N. Dec. 462, 463-65 (BIA 2002) (explaining the change in the regulations governing review by the BIA). Specifically, the BIA ultimately found that Purveegiin would not be detained on return to Mongolia, see supra.2 In considering this petition from a criminal alien, we do not have jurisdiction to review this fact found by the BIA. See 8 U.S.C. § 1252(a)(2)(C).
Furthermore, although we are not privy to everything that the BIA may have considered in making this and other factual findings, we see no reason to upset it for lack of analysis. See Toussaint v. Attorney Gen. of the United States, 455 F.3d 409, 415 (3d Cir.2006). The BIA set forth enough of its reasoning, namely the absence of an arrest warrant, the lack of evidence that such a detention is typical, and a review of the country reports, to allow us to be confident that it had reasons for its decision. Cf. id.
Accordingly, we are left with the question of whether the BIA, in applying the facts, including the fact that Purveegiin would not be detained on his return to Mongolia, applied the right standard, including applicable law on specific intent, when it considered Purveegiin’s CAT claim. We have elsewhere summarized the proper standard for withholding under the CAT:
Under the Convention’s implementing regulations “the burden of proof is on the applicant to establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). The torture must be inflicted “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1).
Tarrawally v. Ashcroft, 338 F.3d 180, 187-88 (3d Cir.2003).
We have further explained, in relation to detention, inhuman prison conditions, and police mistreatment, the requirement of specific intent in the CAT. See Pierre, 528 F.3d at 189-90. Namely, a petitioner cannot obtain CAT relief “unless he can show that his prospective torturer will have the goal or purpose of inflicting severe pain or suffering.” Id. at 190. In light of its factual finding that Purveegiin would not be detained on his return to Mongolia, a finding that we cannot disturb, the BIA did not err in concluding that Purveegiin would not be tortured in Mongolia. The basis for the torture claim fell away. We need not reach those conclusions the BIA drew in considering whether Purveegiin would face torture after it assumed, arguendo, that he would be detained.
We are left with the last question posed by Purveegiin’s able appointed counsel— should we remand this matter to the BIA for fact-finding about whether a problem that Purveegiin appears to have in obtaining insulin is related to a deliberate cam*800paign to punish him for failing to pay back the loan or for his criticism of government officials. We answer that we should not remand, as there is no basis to do so on the complete and closed record before us. See 8 U.S.C. § 1252(b)(4) (directing courts of appeals to decide a petition for review “only on the administrative record on which the order of removal is based”; see also Berishaj v. Ashcroft, 378 F.3d 314, 328 (3d Cir.2004)) (“It is a salutary principle of administrative law review that the reviewing court act upon a closed record.”).
In conclusion, because the BIA properly reviewed the IJ’s decision and applied applicable CAT standards to the unreviewable facts it found, we deny Purveegiin’s petition for review.
. Purveegiin had previously sought, and been denied, asylum and withholding of removal *797based on allegations that he would suffer persecution if returned to Mongolia.
. Although it does not affect our decision, we note that Purveegiin has not, in fact, been detained in Mongolia. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470759/ | OPINION OF THE COURT
FUENTES, Circuit Judge:
Sean Reed appeals from the judgment of conviction and sentence entered by the United States District Court for the Western District of Pennsylvania. Reed, charged with and convicted of being a felon in possession of a firearm pursuant to 18 U.S.C. §§ 922(g)(1) and 924(e), alleges that there was insufficient evidence to support the jury’s finding that he possessed a firearm; that a jury instruction concerning the interstate commerce element of § 922(g) was unconstitutional; and that his sentence was substantively unreasonable. For the reasons stated below, we will affirm.1
I.
Because we write exclusively for the parties, we discuss the facts only to the extent necessary for the resolution of the issues on appeal. On a rainy April 2, 2005 in the Pittsburgh neighborhood of Penn Hills, police officers Ryan Walters, Joseph Blaze, and David Wilkinson responded to a report of a suspicious man in a blue coat playing with a handgun near 8180 Chaske Street, a notoriously high crime area. Officer Walters was first to approach the man in the blue coat, later identified as Sean Reed. Walters, exiting his patrol car and approaching Reed, asked Reed to put his hands up. Instead, Reed turned away from Walters and began to run. Walters gave chase.
Running between houses and towards the woods, Reed slipped on a heap of trash and fell head first into a pile of logs, cutting his forehead. Walters, now ten feet behind Reed, ordered Reed to stay down but, dazed from his fall, Reed began to stand up, his back to Walters. Walters noticed that Reed’s right hand was not visible, as if reaching into his pocket. Walters then heard a single gunshot come from where Reed was standing on the trash heap. Blaze also testified to hearing the gunshot from his position farther down the street. Drawing his service weapon, Walters again ordered Reed to stop, but again Reed fled.
Walters radioed to Blaze and Wilkinson to set up a perimeter to block Reed’s escape onto nearby Lincoln Road. Reed did not get far, and after refusing to comply with orders to get on his knees, he was tackled by Walters and Wilkinson, handcuffed, and placed under arrest. By this time, other police officers had arrived on scene and after a pat-down which revealed no weapons or other paraphernalia, Reed was taken to the police station.
Within five minutes, Officers Walters, Blaze, and Wilkinson returned to the trash heap where they had heard the gunshot and found a dry gun lying on top of the wet trash in plain sight. The area still smelled like gunpowder, and the gun had one round chambered and seven more in the magazine. There was no rust on the gun. The officers could not find the bullet case in the debris, and laboratory results *802produced no latent fingerprints for identification. The gun was later identified as one manufactured in Austria in or after 1990.
Reed was charged with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Following a trial, a jury returned a verdict of guilty. The District Court, after reviewing Reed’s presentence report, found that Reed’s total offense level was 33 based on the Armed Career Criminal Guidelines. Moreover, the Court found that Reed fell under Criminal History Category VI. Hence, Reed was subject to an advisory Guidelines range of 235 to 293 months’ imprisonment. Arguing that his previous criminal record was double counted against him under U.S.S.G. § 4B1.4, and questioning the policy behind the Armed Career Criminal Guidelines, Reed was permitted to file additional briefing by the District Court, in addition to having multiple sentencing hearings. However, the District Court found the Guidelines range reasonable and sentenced Reed to 235 months imprisonment, arguing that “[i]f the Court were to sentence this defendant below the applicable guideline range, sentencing disparities would result.” App. 367.
On appeal, Reed argues that: (1) the evidence was insufficient to support the possession element of § 922(g)(1) such that his conviction ought to be vacated; (2) jury instructions on the interstate commerce element of § 922(g)(1) were unconstitutional; and (3) the District Court’s sentence was substantively unreasonable.
II.
A.
We first address Reed’s conviction under § 922(g)(1). Conviction under this section requires that the government prove beyond a reasonable doubt: (1) that the defendant had previously been convicted of a crime punishable by a term exceeding one year, (2) that the defendant knowingly possessed a firearm, and (3) that the firearm had passed in interstate commerce. United States v. Dodd, 225 F.3d 340, 344 (3d Cir.2000). Here, the parties stipulated before trial that Reed had the requisite felonious past.
Reed did not move for a judgment of acquittal as to the possession element at trial, so we review the sufficiency of the evidence for plain error. United States v. Mornan, 413 F.3d 372, 381 (3d Cir.2005) (holding that, “[Wjhere, as here, a defendant does not preserve the issue of sufficiency of the evidence by making a timely motion for judgment of acquittal at the close of the evidence, this Court reviews the sufficiency of the evidence for plain error.”). The plain error standard mandates that a reviewing court may reverse the district court “only if it finds that (1) an error was committed; (2) the error was plain, that is, clear and obvious; and (3) the error affected the defendant’s substantial rights.” United States v. Syme, 276 F.3d 131, 143 (3d Cir.2002) (citations, and internal quotation marks and alterations omitted). The burden is on the defendant to demonstrate that “plain error” occurred, and it is a “very heavy” one. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Additionally, “we ‘view the evidence in the light most favorable to the government and must sustain a jury’s verdict if a reasonable jury believing the government’s evidence could find beyond a reasonable doubt that the government proved all elements of the offenses.’ ” Mornan, 413 F.3d at 382 (quoting United States v. Rosario, 118 F.3d 160, 167 (3d Cir.1997)).
Here, no error was committed, let alone a plain error. Among the evidence the Government presented to the jury *803were: Reed’s resemblance to the description provided in the call to the police; Officer Walters’ testimony that he saw Reed reach into or around his pants, followed immediately by the sound of a gunshot; Officer Blaze’s testimony that he heard the gunshot from an adjacent street; the officers’ testimony that they smelled gunpowder near the trash heap where Reed fell; the officers’ recovery of a dry, rust-free gun on a wet day five minutes after Reed fell; and finally evidence that the gun had one bullet chambered and seven more in the magazine. Circumstantial evidence such as this has long been held by this Court to be sufficient for a conviction. See, e.g., United States v. Iglesias, 535 F.3d 150, 156 (3d Cir.2008) (“[T]he government may defeat a sufficiency-of-the-evidence challenge on circumstantial evidence alone.”). The Government presented evidence providing ample support for an inference that Reed was in possession of a firearm.
B.
Next, Reed argues that his conviction should be reversed and remanded for a new trial because the District Court’s jury instructions concerning the interstate commerce element of 18 U.S.C. § 922(g) were unconstitutional in light of United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), and United States v. Morrison, 529 U.S. 598, 120 S.Ct. 1740, 146 L.Ed.2d 658 (2000), each refining the permissible use of Congress’s power under the Commerce Clause of the United States Constitution.2 We disagree. Reed’s argument has been consistently rejected by this Court. See, e.g., United States v. Singletary, 268 F.3d 196, 205 (3d Cir.2001) (holding that “proof ... that the gun had traveled in interstate commerce, at some time in the past, [is] sufficient to satisfy the interstate commerce element.”).
C.
Finally, Reed argues that his 235 months’ sentence pursuant to U.S.S.G. §§ 2K2.1 and 4B1.4 was substantively unreasonable. Reed contends that the Armed Career Criminal Guidelines are not based on empirical data and national experience and that the District Court thus abused its discretion in sentencing Reed within that range.
We review Reed’s claims of sentencing errors for abuse of discretion. See United States v. Russell, 564 F.3d 200, 203 (3d Cir.2009) (citing United States v. Lloyd, 469 F.3d 319, 320 (3d Cir.2006)). This is a twofold process, first requiring this Court to “ensure that the district court committed no significant procedural error in arriving at its decision.” Id. Then, “if we determine that the district court has committed no significant procedural error, we ... review the substantive reasonableness of the sentence.” Id. Here, Reed contends only that the sentence imposed was substantively unreasonable.
Assessing the reasonableness of a sentence requires this Court to consider whether the sentencing judge was faithful to 18 U.S.C. § 3553(a), which “tells the sentencing judge to consider (1) offense and offender characteristics; (2) the need for a sentence to reflect the basic aims of sentencing ...; (3) the sentences legally available; (4) the Sentencing Guidelines; (5) Sentencing Commission policy statements; (6) the need to avoid unwarranted *804disparities; and (7) the need for restitution.” Rita v. United States, 551 U.S. 338, 347-48, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). In Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), the Supreme Court held that “closer review may be in order when the sentencing judge varies from the Guidelines based solely on the judge’s view that the Guidelines range ‘fails properly to reflect § 3553(a) considerations’ even in a mine-run case.” 128 S.Ct. at 575 (quoting Rita, 551 U.S. at 351). However, the Supreme Court found such close scrutiny unwarranted where the Guidelines do not exemplify the Commission’s exercise of its characteristic role.
Reed argues that the Commission was not exercising its characteristic role in formulating the Armed Career Criminal Guidelines. In particular, Reed contends that the Guidelines cannot be based on national experience since Pennsylvania’s sentence for an equivalent offense would be lower.3 Reed thus maintains that the District Court should have given him a downward variance from those Guidelines. This logic is tenuous at best.
Reed’s single example was by no means sufficient to require the District Court to conclude that the Armed Career Criminal Guidelines do not adequately reflect all of the § 3553(a) considerations. The District Court considered Reed’s argument to the contrary by allowing him multiple briefing opportunities and sentencing hearings, but found that the Armed Career Criminal Guidelines did in fact reflect § 3553(a) factors. The District Court further found that there was nothing unique about Reed’s case, and thus concluded that a Guidelines range sentence was necessary to meet those factors. We find there was no abuse of discretion by the District Court in imposing a sentence within the Guidelines.
Finally, Reed argues that even if the Armed Career Criminal Guidelines are an appropriate sentencing reference, his previous criminal record has been twice counted against him: once in determining his offense level, and again in determining his criminal history score. However, “only when the Guidelines explicitly prohibit double counting will it be impermissible to raise a defendant’s offense level under one provision when another offense Guideline already takes into account the same conduct.” United States v. Fisher, 502 F.3d 293, 309 (3d Cir.2007) (citation, quotation marks and alteration omitted). We agree with the District Court that “[t]he emphasis on these prior convictions in both the calculation of the base offense level and a criminal history category addresses different public policy concerns.” App. 366.
III.
For the foregoing reasons, we will affirm the judgment of the District Court as to Reed’s conviction and sentence.
. The District Court had subject matter jurisdiction pursuant to 18 U.S.C.§ 3231,and this Court has jurisdiction over Reed's appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
. Reed concedes he only advances this argument in an effort to preserve it for en banc or Supreme Court review.
. Reed cites 18 Pa. Cons.Stat. § 6105 (2000), the Pennsylvania state equivalent of § 922(g), as evidence that the Congressional statute proscribes greater than necessary sentences. The Government contends that even if the District Court were to apply Pennsylvania's sentencing guidelines to Reed's case, his sentence would in fact be longer than the 235 month sentence he received. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470763/ | OPINION OF THE COURT
DIAMOND, District Judge.
In these six putative class actions, Appellants — who have sought reimbursements under insurance policies issued by several of the Appellee companies — charge that Appellees breached the policies by using a computer auditing system to evaluate those reimbursements. The District Court dismissed all six actions on various grounds. We conclude that Appellants have not stated a cognizable breach of contract claim and will affirm on this alternative ground.
I.
Because we write primarily for the benefit of the Parties, we will summarize the complex history of these cases.
Appellees (Defendants below) are: (1) insurance companies that issue Personal Injury Protection (“PIP”) automobile insurance policies; and (2) entities that adjust PIP claims on behalf of insurers. Appellants (Plaintiffs below) are medical providers in Minnesota, Texas, Kansas, Arkansas, Florida, and California who *812treated persons insured by Appellees and then, after receiving assignments from their patients, sought payment for those services from Appellees.
In each of the actions below, Appellants asked the District Court to certify a Rule 23(b)(3) class of medical providers and insureds bringing the same claim: that Ap-pellees breached the underlying insurance contracts by using “computerized auditing system[s]” to determine the amount to be paid for each PIP claimed reimbursement. Appellants’ Supp. Br. at 1; App. at 156-57, 185-86, 211-12, 237-38, 271-72, 305-06; Fed.R.Civ.P. 23(b)(3). Each auditing system includes a database compiled by a third party used to calculate the prevailing billing rates for medical services within a given area. According to Appellants, these databases are “flawed and corrupt,” thus reducing or automatically applying undisclosed “cap[s]” on some reimbursements. (Appellants’ Supp. Br. at 1, 4.)
The first of these actions was filed in the District of New Jersey on July 3, 2007. St. Louis Park Chiropractic, P.A. v. Fed. Ins. Co., No. 08-3808 (“Chubb”). On September 10, 2007, the Chubb Defendants moved to dismiss for failure to state a claim and lack of subject matter jurisdiction. Fed.R.Civ.P. 12(b)(6), (b)(1). While this Motion was pending, additional class actions were filed in the same Court against other insurers. App. at 30-31; see Innovative Physical Therapy, Inc. v. Metlife Auto & Home, No. 08-3809 (“Metlife ”); Allied Med., P.A. v. Am. Int'l Ins. Co., No. 08-3821 (“AIG”); Advanced Acupucture Clinic, Inc. v. Allstate Ins. Co., No. 08-3822 (“Allstate ”); Advanced Acupuncture Clinic, Inc. v. Farmers Ins. Exch., No. 08-3823 (“Farmers ”); Casey Oie, D.C. v. Travelers Indem. Co., No. 08-3824 (“Travelers ”). On November 16, 2007, the District Court denied the Chubb Defendants’ Motion to Dismiss without prejudice to their right to re-file pursuant to a coordinated briefing schedule in all six cases. (App. at 30-31.) On March 18, 2008, Defendants moved to dismiss each of the named Plaintiffs’ actions on myriad grounds. In addition, the Allstate, Metlife, and Chubb Defendants moved to strike the class allegations arguing, inter alia, that Plaintiffs could never meet Rule 23’s class certification requirements because individual issues of law and fact predominated. Fed.R.Civ.P. 23(b)(3).
On August 26, 2008, the District Court granted Defendants’ Motions and dismissed all six actions. In Allstate, Metlife, and Chubb, the Court dismissed the Minnesota named Plaintiffs’ breach of contract claims, ruling that under state law they were subject to mandatory arbitration. (App. at 33-36, 58-60, 95-98.) The Court dismissed the claims of certain of the named Plaintiffs in AIG and Farmers because the Defendants in those cases were not parties to the underlying insurance policies. (App. at 86, 122-23.) The Court sua sponte dismissed: (1) the claims of certain named Plaintiffs in Metlife and AIG because those Plaintiffs “ma[d]e no allegations against” Defendants in their Complaints; and (2) the claims of certain named Plaintiffs in Allstate on forum non conveniens grounds. (App. at 60 n. 6, 86 n. 5, 98-101.) Finally, the District Court granted summary judgment against the named Plaintiff in Travelers because the insured patient had entered into a settlement and release. (App. at 129-30.)
The District Court also granted Defendants’ Motions to Strike the class allegations in Chubb, Metlife, and Allstate. The Court determined that Plaintiffs could not meet the requirements for a Rule 23(b)(3) class because: (1) the Minnesota named Plaintiffs were inadequate class representatives as they were required to arbitrate their claims (Fed.R.Civ.P. 23(a)(4)); (2) in*813dividual issues of law and fact predominated over common issues (Fed.R.Civ.P. 23(b)(3)); and (3) a class action was not the superior form of action (Fed.R.Civ.P. 23(b)(3)). (App. at 37-50, 60-73, 101-14.) The Defendants in Farmers and Travelers “chose[] to await the Court’s decision [in Allstate ] before addressing the class allegations.” (App. at 120 n. 1, 127 n. 1.) The District Court nonetheless stated that because it had decided to “deny class certification” in Allstate, “the issue, as it pertains to [Travelers and Farmers ], is moot.” (Id.) The AIG Defendants had not moved to strike the class allegations. In its Order dismissing the named Plaintiffs’ claims, however, the District Court noted that “[h]ad [the AIG ] Defendants made such a motion,” it would have “denied class certification because Plaintiffs do not meet the requirements under Fed.R.Civ.P. 23.” (App. at 80 n. 3.)
Plaintiffs timely appealed the District Court’s Orders. (App. at 1-18.) With the exception of the claims against certain Chubb Defendants that were dismissed for lack of personal jurisdiction, Appellants challenge every ground on which the District Court dismissed the named Plaintiffs’ claims and struck the class allegations. Appellees urge us to affirm both for the reasons addressed by the District Court and on additional grounds that the District Court did not reach.
During oral argument, we sought to determine whether Plaintiffs had stated a cognizable breach of contract claim below (an issue that neither the Parties nor the District Court had addressed). At our request, the Parties subsequently submitted supplemental briefs on this question.
II.
The District Court had subject matter jurisdiction pursuant to 28 U.S.C. § 1332(d)(2)(A). We have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
III.
Appellants are unable to identify any contractual provision that: (1) prohibits Appellees from using a computerized auditing system; or (2) requires Appellees to consider — or prohibits them from considering — any particular criterion in determining whether an expense is “reasonable.” Accordingly, we do not believe Appellees’ use of computerized auditing systems breached the underlying insurance contracts. See, e.g., Ware v. Rodale Press, Inc., 322 F.3d 218, 225 (3d Cir.2003) (“[A] plaintiff seeking to proceed with a breach of contract action must establish (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract, and (3) resultant damages.”) (internal quotation marks and alterations omitted); 23 Richard A. Lord, Williston on Contracts § 63:1 (4th ed. 2002) (“[A] breach of contract is a failure, without legal excuse, to perform any promise that forms the whole or part of a contract.”).
Appellants suggest that we have not properly construed their breach of contract claim. They argue that Appellees’ use of computerized auditing breached the policy provision requiring them to pay “reasonable” medical expenses. (Appellants’ Supp. Br. at 2 & Ex. 1.) It is apparent, however, that the gravamen of Appellants’ claim is that Appellees’ use of computerized auditing itself violated the insurance contracts. Appellants confirm this in asking us to reverse the District Court’s decision to strike their class allegations. In making that decision, the District Court construed Appellants’ claim below exactly the way Appellants now ask us to construe it: that Appellees below breached the policy provision requiring *814them to pay “reasonable” medical expenses. The District Court reasoned that this claim would necessarily require a determination of “reasonableness” expense by expense. Because individual factual and legal issues would thus predominate, the Court ruled that Appellants could not meet the certification requirements of Rule 23(b)(3). (E.g., App. at 111.)
In challenging that determination, Appellants have argued to us that the District Court misconstrued their breach of contract claim, which is unrelated to the reasonableness of the reimbursements paid:
Plaintiffs are not challenging individual determinations of reasonableness for the claims of individual class members because the Insurers never made any. Rather, Plaintiffs are challenging the uniform process that the Insurers apply to all claims.
Appellants’ Br. at 22 (emphasis supplied); see also id. at 23 n. 8 (“The District Court was viewing Plaintiffs’ claims through the wrong end of the telescope. The District Court believed that the issue was whether the amount the Insurers paid was reasonable. That is not the issue.”) (citation omitted). Appellants acknowledge that Appellees did not reduce all reimbursements. (Tr. at 8, June 1, 2009.) Thus, the “uniform process that the Insurers apply to all claims” is computerized auditing.
In these circumstances, our construction of the claim below is the same as Appellants’: that the use of computerized auditing itself breached the underlying contracts. As we have discussed, however, because those insurance policies do not require or bar the use of any means of expense evaluation, Appellees’ use of computerized auditing did not breach the policies.
Even if we adopt Appellants’ directly contradictory construction of their claim— that the use of computerized auditing breached the provision requiring Appellees to pay “reasonable” expenses — that claim remains non-cognizable. All the underlying policies, with “slight variation[s] in the[ir] language,” require the payment of “reasonable” medical expenses. (Appellants’ Supp. Br. at 2.) Appellants offer no authority suggesting that this provision may be construed as requiring or prohibiting a particular manner of expense review. Rather, the authority Appellants offer is inapposite, involving: (1) policies that required insurance companies to consider specific criteria when determining “reasonableness”; or (2) state law that required insurers to evaluate claims in a particular manner. See Brooks v. Educators Mut. Life Ins. Co., 206 F.R.D. 96, 105 (E.D.Pa.2002) (underlying insurance policies required the insurer to determine the “reasonable and customary charge” for medical expenses in relation to “the usual charge ... provided in the same geographical area”); Stratun v. Farmers Ins. Co. of Or., 228 Or.App. 454, 209 P.3d 357, 365-66 (2009) (computerized auditing might contravene the Oregon statute that prohibits insurers from “[rjefusing to pay claims without conducting a reasonable investigation based on all available information” (quoting Or.Rev.Stat. § 746.230(1)(d))). Indeed, in the single apposite decision we have found, the court rejected a breach of contract claim identical to that advanced by Plaintiffs. See State Farm Mut. Auto. Ins. Co. v. Sestile, 821 So.2d 1244, 1245-46 (Fla.Dist.Ct.App.2002) (insurer’s use of a “computer-generated database to determine the reasonableness of medical bills” did not violate Florida’s PIP statute and did not breach the underlying insurance policy because “neither the policy nor the statute declares how an insurer is to make [a] determination [of reasonableness]”).
In these circumstances, Appellees’ use of computerized auditing — whether taken by *815itself or as a means to reduce some reimbursements — does not violate any provision of the underlying insurance policies. Accordingly, we conclude that Appellants have failed to state a legally cognizable breach of contract claim.
Finally, Appellants protest our consideration of the cognizability issue because it was not raised by the Parties and was not considered below. Appellants ignore, however, that we may “affirm a result reached by the District Court on different reasons, as long as the record supports the judgment.” United States v. Sanchez, 562 F.3d 275, 279 (3d Cir.2009) (quoting Guthrie v. Lady Jane Collieries, Inc., 722 F.2d 1141, 1145 n. 1 (3d Cir.1983)); see also Helvering v. Gowran, 302 U.S. 238, 245, 58 S.Ct. 154, 82 L.Ed. 224 (1937). It is apparent from the record that Appellants have failed to state a viable breach of contract claim. Accordingly, we may affirm the District Court on this alternative ground.
IV.
For the reasons stated, we will affirm the August 26, 2008, 2008 WL 4056225, Orders of the District Court. In light of our decision, we do not address the grounds on which the District Court based its decisions or the alternative grounds raised by Appellees. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8475542/ | ON MOTION
ORDER
Counsel of record for the firm Hunton & Williams LLP representing plaintiff-appellant Parkdale International Ltd. (“Park-dale”) move to withdraw as their client has instructed them to “cease and terminate all further work on behalf of Parkdale.” Scarfone Hawkins LLP, a Canadian firm, representing Parkdale and its secured creditors, has advised the court that Park-dale is abandoning its appeal.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion to withdraw counsel for Hunton & Williams is granted.
(2) The appeal is dismissed. Each party will bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470605/ | MEMORANDUM **
Sufia Parveen, a native and citizen of Bangladesh, and her two minor children petition for review of the Board of Immigration Appeals’ (“BIA”) order affirming an immigration judge’s decision denying their application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence factual findings, INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), and de novo claims of due process violations, Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir.2004). We deny in part and dismiss in part the petition for review.
Parveen contends she and her family were harmed after her husband, who worked as a customs official, refused to release an illegal shipment of goods to a political official. Substantial evidence supports the BIA’s finding that the harm Par-veen and her family suffered in the past, and the harm they fear in the future is not on account of a protected ground. See Elias-Zacarias, 502 U.S. at 481-84, 112 S.Ct. 812; see also Molina-Morales v. INS, 237 F.3d 1048, 1052 (9th Cir.2001) (purely personal retribution is not persecution on account of a political opinion); see also Grava v. INS, 205 F.3d 1177, 1181 (9th Cir.2000) (“salient question is whether [petitioner’s] actions were directed ... only against individuals whose corruption was aberrational”). Accordingly, Parveen failed to carry her burden of proof for asylum and withholding of removal. See Molina-Morales, 237 F.3d at 1052.
Substantial evidence also supports the BIA’s denial of CAT relief because Par-veen failed to establish it is more likely than not that she will be tortured if she returns to Bangladesh. See Singh v. Gonzales, 439 F.3d 1100, 1113 (9th Cir.2006).
Lastly, we lack jurisdiction to review petitioners’ due process contention because *334they failed to raise it to the BIA. See Barron, 358 F.3d at 677-78.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470609/ | MEMORANDUM **
Mark A. Orantez appeals from the 68-month sentence imposed upon resentenc-ing for his jury-conviction of conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(l)(B)(vii) and 846. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Orantez contends that the district court’s imposition of a higher sentence upon resentencing must be considered “vindictive” and therefore violative of his due process rights. The record plainly reveals that on remand, the district court imposed a higher sentence because, among other things, Orantez was subject to a two-level sentencing enhancement for possession of a firearm under U.S.S.G. § 2D1.1(b)(1). Because the district court’s reasons for imposing a higher sentence “affirmatively appear” in the record, Oran-tez failed to establish that the greater sentence was vindictive. See Alabama v. Smith, 490 U.S. 794, 798, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989); see also United States v. Garcia-Guizar, 234 F.3d 483, 489-90 (9th Cir.2000).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470612/ | BERZON, Circuit Judge,
concurring in part and dissenting in part:
I agree with the government that the National Oceanic and Atmospheric Administration’s National Marine Fisheries Service’s (“NMFS”) “current conditions” methodology was reasonable and is entitled to deference. I therefore concur in the majority disposition with the following exception:
I agree with the petitioners that NMFS acted arbitrarily and capriciously when it approved the planned exploitation rates for the Georgia Strait Region. In approving the Georgia Strait Region exploitation rate, the agency ignored the results of the methodology it otherwise vigorously defends and approved a harvesting rate inconsistent with its own analysis. Moreover, the reasons the agency provided for departing from its chosen analytic framework are speculative and not supported by evidence in the record or by a quantitative analysis. For these reasons, I would hold the agency’s conclusion with respect to the Georgia Strait region arbitrary and capricious.
More specifically, the agency approved an exploitation rate for Nooksack salmon that is not only not “at or below” the benchmark rebuilding exploitation rate (“RER”), but is, in fact, more than twice as high than its derived rate. Further, when discussing the Nooksack River salmon population, the agency noted that, “Trends in escapement of natural-origin Nooksack early chinook salmon populations are increasing.” By the agency’s *340own reasoning, then, Nooksack River salmon production and viability are not primarily constrained by habitat conditions and do benefit from reduced harvesting. Yet, the agency reached the opposite conclusion, stating that “natural-origin recruitment [for Nooksack River salmon] will not increase much beyond [current] level[s] unless constraints limiting marine, freshwater, and estuary survival are alleviated.”
The NMFS attempted to justify its departure from its own methodology by arguing that other factors will “adequately protect chinook salmon populations in the Georgia Straight Region.” Contrary to the majority’s conclusion, the justifications offered are not reasonable.
First, even if contributions from hatchery-origin spawners will “buffer” the adverse effects of the high exploitation rates, this justification cannot be squared with NMFS’s repeated emphasis on maintaining the viability of the natural salmon population in each region. Second, the agency’s argument that increasing natural-origin escapement trends justified a departure from its chosen methodology is at odds with its previous conclusion that the absence of increasing natural-origin escapement among other populations justified higher exploitation rates. The agency cannot rationally argue that both the absence and the presence of increasing natural-origin escapement justify higher harvesting rates. Third, the agency’s suggestion that the Indian “tribes’ expertise regarding the conservation of trust resources” will adequately protect the No-oksack River salmon is vague and could be used to justify a departure from the agency’s chosen methodology across-the-board.
Fourth, and perhaps most importantly, the agency provides no quantitative support for the proposition that these other factors will compensate for the dangers posed by the high exploitation rates. This absence of quantitative analysis is particularly striking in light of the fact that the agency used complex data analysis techniques to derive the RERs and did not rely simply on speculation.
In sum, the reasons provided by NMFS for departing from its chosen methodology when it approved the proposed exploitation rates for the Georgia Strait region are both speculative and inconsistent with other aspects of the agency’s approach to evaluating the harvest management plan. They do not justify the agency’s decision to ignore the results of its own analysis. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (stating that an agency acts arbitrarily and capriciously when it “offer[s] an explanation for its decision that runs counter to the evidence before the agency.”).
The majority suggests that the agency could reasonably approve exploitation rates for the Georgia Strait region that endangered the Nooksack River population so long as the heightened risk to the Nooksack River population did not threaten the viability of the Puget Sound chinook ESU as a whole. But the agency did not rely on this rationale when it approved the proposed Georgia Strait exploitation rates. Rather, under the agency’s guidelines, the viability of the Nooksack River population is integral to an ESU-wide recovery. A reviewing court “must judge the propriety of [an agency] action solely by the grounds invoked by the agency” at the time the action was taken. See SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947).
Finally, the agency’s consideration of federal trust responsibilities to treaty tribes does not support, as the majority maintains, the agency’s decision to depart *341from its chosen methodology and thereby endanger the Nooksack River Salmon population. To the contrary, the agency was required to consider its trust responsibilities when developing the methodology in the first instance. If NMFS’s chosen methodology had failed to account for its trust responsibilities, the methodology itself would have been fatally flawed.
For all of the above reasons, I would hold that the agency acted arbitrarily and capriciously when it approved the Georgia Strait exploitation rate. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470615/ | MEMORANDUM *
Douglas Kent appeals the district court’s decisions (1) rejecting his original applica*342tion for an award of attorneys’ fees and other expenses pursuant to the Equal Access to Justice Act (“EAJA”), -28 U.S.C. § 2412(d)(1)(A), because it was filed in violation of the Southern District of California’s Local Rules (“Local Rules”) and (2) denying Kent’s second application as untimely. Kent also appeals the district court’s findings that (1) his petition for certification was an action sounding in tort, and therefore was not entitled to attorneys’ fees and expenses, and (2) the Government’s opposition to Kent’s certification was substantially justified. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm the district court.
The EAJA requires an application for attorneys’ fees and costs to be filed within thirty days of final judgment. 28 U.S.C. § 2412(d)(1)(B). If no petition for certio-rari is filed, the application is due 120 days after the appellate decision. See Zheng v. Ashcroft, 383 F.3d 919, 921-22 (9th Cir.2004). Kent filed his application for an award of attorneys’ fees pursuant to the EAJA on December 5, 2006, which was 117 days after the appellate decision. Kent, however, failed to comply with the Local Rules by not obtaining a hearing date and including the date and time of hearing on the cover page of his application. On December 21, 2006 (seven days after Kent was notified that his application was denied due to its deficiencies and 133 days after the appellate decision) Kent filed another application requesting that it be filed nunc pro tunc to December 5, 2006.
An application for attorneys’ fees under the EAJA or any other filing that does not comply with Local Rules may properly be rejected. See CivLR 83.1(a). Because this application was properly rejected, the application filed on December 21, 2006 was untimely and therefore properly denied. The district court therefore did not abuse its discretion in denying Kent’s application. Accordingly, we need not address the other issues raised by Kent on appeal.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided *342by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470617/ | MEMORANDUM *
Plaintiffs Dream Palace and several of its employees appeal the amount of the district court’s attorney’s fees award to Dream Palace as a prevailing party pursuant to 42 U.S.C. § 1988. We affirm in part, vacate in part, and remand.
We review the district court’s fee award, including its determination regarding Dream Palace’s degree of success in the underlying civil rights litigation, for abuse of discretion. See Harris v. Marhoefer, 24 F.3d 16, 18-19 (9th Cir.1994). Dream Palace prevailed on just four of its original sixteen claims. Given the sheer volume of losses as compared with wins, the district court did not abuse its discretion in concluding that Dream Palace’s success was limited. The district court watched this case “unfold before [it]” and was thus in the best position to determine the significance of these wins “in comparison to the scope of the litigation as a whole.” Harris, 24 F.3d at 18-19; see Romberg v. Nichols, 970 F.2d 512, 523-24 (9th Cir.1992), vacated on other grounds by Nichols v. Romberg, 506 U.S. 1075, 113 S.Ct. 1038, 122 L.Ed.2d 348 (1993).
Dream Palace challenges various aspects of the district court’s lodestar calculation. With respect to the rates component, the district court sufficiently and concisely explained the basis by which it calculated reasonable hourly rates for Dream Palace’s various attorneys, and its calculation is supported by the record. See Moreno v. City of Sacramento, 534 F.3d 1106, 1116 *344(9th Cir.2008); Carson v. Billings Police Dep’t, 470 F.3d 889, 892-93 (9th Cir.2006).
Dream Palace also challenges the hours component of the lodestar on numerous grounds. We largely affirm the district court’s discretionary calibration of compensable hours in accordance with its determination regarding the degree of Dream Palace’s success. See Hensley v. Eckerhart, 461 U.S. 424, 434-40, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Caudle v. Bristow Optical Co., Inc., 224 F.3d 1014, 1029 (9th Cir.2000). However, the district court’s decision not to award fees for work performed in the district court on issues that Dream Palace lost in district court but won on appeal was improper. See Cabrales v. County of Los Angeles, 935 F.2d 1050, 1052-53 (9th Cir.1991). Although Dream Palace’s success was limited, it was at minimum entitled to attorney’s fees for all work reasonably expended on those claims on which it ultimately prevailed, during all phases of the litigation. See id. We recognize that, in denying Dream Palace’s Motion to Alter or Amend Judgment on Attorney Fees, the district court indicated that it did take this work into account, but in this one sense we conclude that the district court has undervalued Dream Palace’s level of success. Accordingly, we conclude that Dream Palace is entitled to an additional $13,905.40 in fees for work performed at the district court level on its challenges to provisions of the ordinance banning “specific sexual activities” and requiring public disclosure of performers’ identities.1
We reject Dream Palace’s remaining challenges to the district court’s calculation of compensable hours, as it was within the district court’s discretion to reduce the reasonable hours component so as to incorporate Dream Palace’s limited success into the lodestar itself. See Hensley, 461 U.S. at 436-37, 103 S.Ct. 1933; Webb v. Ada County, Idaho, 195 F.3d 524, 526 & n. 1 (9th Cir.1999); U.S. v. $12,248 U.S. Currency, 957 F.2d 1513, 1520 (9th Cir.1991). Likewise, it was within the district court’s discretion to reduce the overall fee award to reflect a relative lack of success by excluding reimbursement for Dream Palace’s costs. See Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1199-1200 (9th Cir.2002); Schwarz v. Secretary of Health & Human Servs., 73 F.3d 895, 906 (9th Cir.1995).
Finally, it was within the district court’s discretion to manage its docket by establishing a firm deadline for any further filings in this protracted litigation and thereafter excluding from consideration Dream Palace’s “First Supplemental Fees Application” as untimely. See S. Cal. Edison Co. v. Lynch, 307 F.3d 794, 807-08 (9th Cir.2002); see also United States v. Real Prop. Known as 22249 Dolorosa Street, Woodland Hills, Cal., 190 F.3d 977, 985 (9th Cir.1999).
Accordingly, we vacate the court’s final order awarding Dream Palace $25,473.45 in fees and remand with directions to enter a modified fee award of $39,378.85, in accordance with this disposition. Under the circumstances, no further adjustment appears appropriate to us, nor should any further fees be awarded for time spent pursuing the fee application itself or this appeal. Each side is to bear its own *345costs.2
AFFIRMED in part; VACATED in part and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. This figure encompasses 2.6 hours of work by John H. Weston at a rate of $350/hour, 38.7 hours of work by G. Randall Garrou at a rate of $275/hour, and 21.39 hours of work by assorted other attorneys at a rate of $110/ hour. Since the district court accepted as reasonable the hours Dream Palace alleges its attorneys spent on the various claims in this litigation, we do as well.
. Dream Palace filed a motion with this court for leave to file an oversized brief, and this court granted the motion in part, permitting Dream Palace to file a brief not exceeding 21,000 words. Dream Palace's subsequent motion for reconsideration from this court's order directing the elimination of 7,275 words from its oversized brief was denied. Thereafter, Dream Palace filed a brief containing a certificate of compliance signed by Dream Palace’s attorney indicating the brief contained 20,998 words. At oral argument, Dream Palace acknowledged that this figure does not include approximately twenty additional pages in "addenda” and "exhibits" included in the brief. These pages are essentially additional argumentation that by any measure should have been included in the main body — and confined to the word limitations — of the brief. The court strongly disapproves of this flagrant attempt to circumvent both our court orders and F.R.A.P. 32(a)(7)(B)(I), and admonishes Dream Palace's counsel to desist from engaging in such practices in the future. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470606/ | MEMORANDUM **
Sufia Parveen, a native and citizen of Bangladesh, and her two minor children petition for review of the Board of Immigration Appeals’ (“BIA”) order affirming an immigration judge’s decision denying their application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence factual findings, INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), and de novo claims of due process violations, Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir.2004). We deny in part and dismiss in part the petition for review.
Parveen contends she and her family were harmed after her husband, who worked as a customs official, refused to release an illegal shipment of goods to a political official. Substantial evidence supports the BIA’s finding that the harm Par-veen and her family suffered in the past, and the harm they fear in the future is not on account of a protected ground. See Elias-Zacarias, 502 U.S. at 481-84, 112 S.Ct. 812; see also Molina-Morales v. INS, 237 F.3d 1048, 1052 (9th Cir.2001) (purely personal retribution is not persecution on account of a political opinion); see also Grava v. INS, 205 F.3d 1177, 1181 (9th Cir.2000) (“salient question is whether [petitioner’s] actions were directed ... only against individuals whose corruption was aberrational”). Accordingly, Parveen failed to carry her burden of proof for asylum and withholding of removal. See Molina-Morales, 237 F.3d at 1052.
Substantial evidence also supports the BIA’s denial of CAT relief because Par-veen failed to establish it is more likely than not that she will be tortured if she returns to Bangladesh. See Singh v. Gonzales, 439 F.3d 1100, 1113 (9th Cir.2006).
Lastly, we lack jurisdiction to review petitioners’ due process contention because *334they failed to raise it to the BIA. See Barron, 358 F.3d at 677-78.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8470608/ | MEMORANDUM **
California state prisoner Wendell Harrison appeals the district court judgment in favor of Sheriff Carl Sparks, Kern County, Kern County Sheriff’s Department (collectively “Supervisory Defendants”) and Deputy Sheriff Brenda Waidelich on his claims under 42 U.S.C. § 1983. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
*335The facts of the case are known to the parties, and we do not repeat them below.
Harrison argues that the district court erred in granting summary judgment in favor of the Supervisory Defendants.1 We review the district court’s grant of summary judgment de novo and may affirm on any basis supported by the record. See Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d 802, 811 (9th Cir.2004).
Harrison’s theories of liability for the Supervisory Defendants’ official policies are unpersuasive. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The R.E.A.C.T. belt activation protocol taught to deputies was condoned by the R.E.A.C.T. belts’ manufacturer. Training deputies to use that protocol did not amount to deliberate indifference. See City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). Evidence in the record indicates that the Supervisory Defendants adequately trained and supervised Deputy Waidelich in using the R.E.A.C.T. belt. See id. at 390-91, 109 S.Ct. 1197. Lastly, Harrison’s due process rights were not violated when he wore the R.E.A.C.T. belt on the way to the court hearing outside the jury’s presence in which the trial judge ordered that Harrison continue to wear the belt. The district court correctly granted summary judgment in favor of the Supervisory Defendants.
Harrison’s Notice of Appeal addresses only the 2002 grant of summary judgment against the Supervisory Defendants. We lack jurisdiction over Harrison’s appeal of the 2007 judgment in favor of Deputy Waidelich. Harrison’s intent to appeal that judgment cannot be fairly inferred from his Notice of Appeal. See Pope v. Savings Bank of Puget Sound, 850 F.2d 1345, 1347 (9th Cir.1988)
Harrison’s motion for clarification or modification of the record is denied.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. Harrison filed objections to the magistrate judge's findings and recommendations more than thirty days after they were served (i.e. mailed, see Fed.R.Civ.P. 5(b)(2)(C)). His untimely filing does not affect his ability to appeal the district court’s legal conclusions. See Robbins v. Carey, 481 F.3d 1143, 1147 (9th Cir.2007). | 01-04-2023 | 11-05-2022 |
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