June 26th, 2008
The Ninth Circuit Court of Appeals today released an opinion in RAM v. MUKASEY, No. 05-71190, an administrative appeal. The panel consisted of Stephen S. Trott and Sidney R. Thomas, Circuit Judges, and Michael R. Hogan, District Judge.
TROTT, Circuit Judge:
Joel Jonathan Ram petitions for review of the Board of Immigration Appeals’ (”BIA”) decision that he is removable because he was convicted of (1) an aggravated felony and (2) a controlled substance violation. The BIA determined also that Ram’s hearing before an Immigration Judge (”IJ”) afforded him adequate due process. We have jurisdiction pursuant to 8 U.S.C. Â§ 1252(a)(2)(D) and conclude that Ram was denied due process and his statutory right to counsel. Because we conclude also that Ram was prejudiced by the denial, we grant his petition for review and remand to the BIA with instructions to order a new hearing before an IJ. We need not reach the remainder of Ram’s claims. I. BACKGROUND In the original Notice To Appear (”NTA”), the Department of Homeland Security (”DHS”) charged Ram with being deportable under 8 U.S.C. Â§ 1227(a)(2)(B)(i) for having been convicted of a controlled substance violation. At his first hearing on July 12, 2004, Ram was informed by a pre-recorded statement of his rights, including the right to be represented by an attorney during the removal proceedings as well as the right to deny the charges against him. The IJ then granted Ram’s request for a continuance in order for him to meet with an attorney. Ram’s second hearing was held August 12, 2004. It began: Q. Your hearing was set over until today in order for you to obtain the services of an attorney. Have you done that? A. No. No. . . .
June 26th, 2008
The Ninth Circuit Court of Appeals today released an opinion in GUIDIVILLE BAND v. NGV GAMING LIT, No. 05-17066, a federal appeal. The panel consisted of Stephen S. Trott and N. Randy Smith, Circuit Judges, and Milton I. Shadur, Senior District Judge.
SHADUR, Senior District Judge:
This appeal presents the single, seemingly straightforward question whether the word “is” really means “is,” at least as that word is employed in 25 U.S.C. Â§ 81. At the core of the present dispute, that statute requires the Secretary of the Department of the Interior (”Secretary”) to approve any “contract with an Indian tribe that encumbers Indian lands for a period of 7 or more years” before such a contract can be considered valid. Section 81(a) defines the term “Indian lands” in part as “lands the title to which is held by the United States in trust for an Indian tribe” (emphasis added). Appellant NGV Gaming Ltd. (”NGV”) asks us to read Section 81 literally– as pertaining solely to contracts that implicate lands already held in trust by the federal government. Appellees Harrah’s Operating Company (”Harrah’s”) and Guidiville Band of Pomo Indians (”the Tribe”), on the other hand, urge a nonliteral reading of the statute–one that would treat Section 81 as also covering contracts in which the parties reach agreement, not with respect to already-held lands, but to acquire lands in the future that might eventually be held in. . .
N.R. SMITH, Circuit Judge, dissenting: I respectfully dissent for the following reasons. First, the majority rejects the clear and unambiguous will of Congress in its application of 25 U.S.C. Â§ 81. Second, because of its error in the application of 25 U.S.C. Â§ 81, the majority is thereafter forced to reverse the district court by (1) interpreting contracts that the district court did not review; (2) making its own determination that the contracts were unambiguous; (3) using parol evidence to interpret the contract even though it finds that the contracts were unambiguous; and (4) picking and choosing which parol evidence on which to rely, even though the district court had not addressed the issues of whether to admit parol evidence and, if so, what evidence to admit. I would instead affirm the district court’s summary judgment decision dismissing NGV’s tortious interference complaint against Harrah’s and dismiss the appeal for declaratory relief filed by the Tribe as moot. I. “The doctrine that the federal government stands in a fiduciary relationship to Native Americans has been a part of our common law since the early days of the Republic.” Eric v. Sec’y of HUD, 464 F. Supp. 44, 46 (D. Alaska 1978) (citing Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L.Ed. 25 (1831)). “Over the years courts at all levels have sustained the doctrine that in its relations with Native peoples the government owes a special duty analogous to those of a trustee.” Id. (citing Heckman v. United States, 224 U.S. 413 (1912); Seminole Nation v. United States, 316 U.S. 286 (1942); Redfox v. Redfox, 564 F.2d 361, 365 (9th Cir. 1977); Manchester Band of Pomo Indians, Inc. v. United States, 363 F. Supp. 1238 . . .
June 25th, 2008
The Ninth Circuit Court of Appeals today released an opinion in THE LANDS COUNCIL v. MARTIN, No. 07-35804, an appeal in a civil action against the United States. The panel consisted of Susan P. Graber, Richard A. Paez, and Carlos T. Bea, Circuit Judges.
GRABER, Circuit Judge:
A forest fire burned thousands of acres of national forest in southeastern Washington, the United States Forest Service initiated a salvage logging operation, and we are called upon to determine whether the Forest Service took the requisite “hard look” under the National Environmental Policy Act of . . .
June 24th, 2008
The Ninth Circuit Court of Appeals today released an opinion in USA v. CAMPION, No. 06-15410, an appeal in a civil action against the United States. The panel consisted of William C. Canby, Jr. and Milan D. Smith, Jr., Circuit Judges, and Stephen G. Larson, District Judge.
CANBY, Circuit Judge:
In this case, we review a district judge’s discretion to exclude expert testimony regarding electromagnetic fields (”EMFs”) in a condemnation action. The United States condemned an easement on land belonging to Donn Campion for the construction of power transmission lines. At trial, both sides offered expert testimony regarding diminution of value of the remaining land resulting from the power lines within the easement. While some of this testimony was allowed, the judge refused to let Campion’s expert, an environmental planner, testify about specific EMF levels on the land and the types of questions developers typically ask her about EMFs. A jury found that Campion was entitled to just compensation in the amount of $2,023,715. The district court entered judgment, and Campion appeals the exclusion of expert testimony. We affirm. FACTUAL BACKGROUND Campion owns 3,220 acres of land in Merced County, California. Acting on behalf of the Department of Energy and the Western Area Power Administration, the United States filed an eminent domain action to acquire a right of way easement . . .
June 24th, 2008
The Ninth Circuit Court of Appeals today released an opinion in USA v. SAWYER, No. 05-17347, an appeal in a civil action against the United States. The panel consisted of William C. Canby, Jr. and Milan D. Smith, Jr., Circuit Judges, and Stephen G. Larson, District Judge.
CANBY, Circuit Judge:
Pursuant to a 2001 order of the Secretary of Energy, the Western Area Power Administration (”WAPA”) selected certain land estates in the western portion of the San Joaquin Valley in California, where it planned to construct a highvoltage transmission line. The United States began condemnation proceedings in the district court on behalf of WAPA, seeking transmission easements on the lands selected by WAPA. Sawyer and a few other individual owners of condemned property (collectively “Sawyer”) challenged the government’s exercise of its power of eminent domain, claiming that the taking lacked proper congressional authorization, was not for a “public use” as required by the Takings Clause, and violated California law. The district court dismissed Sawyer’s objections and, when the parties reached an agreement on the compensation amount, entered summary judgment sua sponte. Sawyer filed this appeal. We affirm. BACKGROUND In 2001, in an effort to mitigate California’s electric power transmission constraints, the Secretary of Energy directed WAPA to prepare plans to construct the Los Banos-Gates Transmission Project, or Path 15 Upgrade. The project consists of an additional 84-mile, 500-kilovolt transmission line along Path 15, which is located in the western portion of the San Joaquin Valley and connects its northern terminus near Los Banos, California with its southern terminus at the Gates Substation near Coalinga, California. See Department of . . .
June 24th, 2008
The Ninth Circuit Court of Appeals today released an opinion in LE v. BARNHART, No. 06-56804, an appeal in a civil action against the United States. The panel consisted of William A. Fletcher and Ronald M. Gould, Circuit Judges, and Louis H. Pollak, Senior District Judge..
GOULD, Circuit Judge:
Appellant Minh Le (”Le”) first applied for Supplemental Social Security (”SSI”) benefits in September 1994, claiming an onset of disability of February 1994. His application was denied by an administrative law judge in October 1997, but that judgment was reversed by the district court and Le’s application was remanded to the Commissioner for additional proceedings. Le then moved in the district court for attorney’s fees under the Equal Access to Justice Act (”EAJA”), 28 U.S.C. Â§ 2412(d). The district court denied the EAJA motion, concluding that the government’s position was “substantially justified.” Le timely appealed the denial of EAJA fees, and we now affirm.  We review the district court’s denial of EAJA fees under an abuse of discretion standard. Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002). Under EAJA, a prevailing party in a suit against the government is entitled to fees in. . .
June 24th, 2008
The Ninth Circuit Court of Appeals today released an opinion in ESPINOSA v. UNITED STUDENT FUNDS, No. 06-16421, a bankruptcy appeal. The panel consisted of Alex Kozinski, Chief Judge, A. Wallace Tashima and N. Randy Smith, Circuit Judges.
Espinosa obtained $13,250.00 in student loans from United Student Aid Funds, Inc. (Funds). He later filed a Chapter 13 bankruptcy petition and plan. The plan provided that he repay the $13,250.00 principal, and that accrued capitalized interest, penalties, and fees be discharged. The clerk of the bankruptcy court mailed a notice of commencement and a copy of the proposed plan to Funds, which gave Funds the usual notice of the date and time of the plan confirmation hearing and the deadline for filing objections to the plan. Funds then filed a proof of claim for $17,832.15, which presumably included unpaid accrued capitalized interest, penalties, and fees. But Funds filed no objections to the plan, and as there were no other creditors, the bankruptcy court confirmed the plan as proposed. Espinosa subsequently paid Funds $13,250.00 over the course of four years, at which point the plan was completed and the bankruptcy court issued a discharge order, filed May 30, 1997. Curiously, the discharge order provided that Espinosa was “discharged from all debts provided for by the plan . . . except any debt . . . for a student loan,” which contradicted the terms of the plan and pretty much rendered the whole exercise pointless from Espinosa’s point of view. Curiouser still, Espinosa did not seek reconsideration of the discharge order, nor did he appeal. Three years after the discharge order was filed, Funds began “offsetting” or “intercept[ing]” Espinosa’s income tax refunds to satisfy the unpaid portion of the student loan. (The parties don’t explain what they mean by “offsetting” and “intercept[ing],” but we assume they mean that Funds somehow . . .
June 24th, 2008
The Ninth Circuit Court of Appeals today released an opinion in DUNCAN v. ORNOSKI, No. 05-99010, a habeas corpus appeal. The panel consisted of Stephen Reinhardt, Ronald M. Gould, and Richard A. Paez, Circuit Judges.
REINHARDT, Circuit Judge:
Once again, we consider whether a capital defendant’s appointed lawyer’s performance was so deficient and prejudicial that it violated his Sixth Amendment right to counsel. Appellant Henry Earl Duncan was convicted of robbery and first-degree murder on March 3, 1986. The jury found the special circumstance allegation to be true and, after a brief penalty phase hearing, sentenced Duncan to death. The California Supreme Court affirmed the judgment on direct appeal and subsequently denied Duncan’s petition for writ of habeas corpus on the merits. Duncan filed a federal habeas petition in the Central District of California. The district court denied most of his claims and then held a four-day evidentiary hearing, after which it rejected the rest. Duncan appeals. We conclude that Duncan’s lawyer’s performance was deficient during the guilt phase of his trial because he failed to investigate and present evidence that the blood samples from the crime scene that did not belong to the victim also did not belong to Duncan. This evidence would have tended to establish that Duncan had an accomplice who was in the murder room on the night of the murder, shed blood, and used the first aid kit on the wall to treat his wounds. Indeed, the evidence would have been sufficient to support an inference that. . .
June 23rd, 2008
The Ninth Circuit Court of Appeals today released an opinion in MANEY v. KAGENVEAMA, No. 06-17038, a bankruptcy appeal. The panel consisted of Harry Pregerson, Eugene E. Siler, Jr., and Carlos T. Bea, Circuit Judges.
SILER, Circuit Judge: Edward Maney, as Chapter 13 Trustee, appeals the bankruptcy court’s order confirming the plan of the debtor, Laura Kagenveama. He argues that the bankruptcy court erred by (1) calculating Kagenveama’s “projected disposable income” by multiplying her “disposable income” over the “applicable commitment period” and (2) finding the five-year “applicable commitment period” inapplicable because Kagenveama’s resulting “projected disposable income” was a negative number. We affirm. I. Background In 2005, Kagenveama filed a petition for Chapter 13 protection in the bankruptcy court. In her filing she included the required Schedules A through J, a Statement of Financial Affairs, a Master Mailing List, and a Form B22C Statement of Current Monthly Income and Calculation of Commitment Period and Disposable Income. Schedules I and J listed Kagenveama’s projected monthly income and expenses. Her Schedule I listed a monthly gross income of $6,168.21, with a monthly net income of $4,096.26. Her Schedule J listed monthly expenses of $2,572.37. Subtracting total monthly expenses from total monthly net income left Kagenveama with $1,523.89 in monthly income available to pay creditors. Kagenveama filed an amended Form B22C listing an average monthly gross income of $6,168.21 for the six months prior to her bankruptcy petition, yielding an annual income of . . .
The opinion in Maney v. Kagenveama, filed June 5, 2008, is amended as follows: insert <In re Pak, 378 B.R. 257, 267 . . .
BEA, Circuit Judge, concurring in part and dissenting in part: This case deals with how long a Chapter 13, “wage-earner” debtor in bankruptcy proceedings will have to worry about whether his unpaid creditors can bring up any good changes in his fortunes, to get paid his debts to them. The majority lays down a rule: So long as the debtor can calculate no “disposable income” at the time his creditor plan is confirmed, he can rest easy. The debtor can propose as short a time period as he wants: a day, a week or a month. I dissent because Congress pretty clearly stated his creditors should have up to five years to keep an eye on the debtor to perhaps share in any of his new good times. Respectfully to the majority, I think the rule they adopt creates an incentive for the picaresque, by encouraging a debtor to fiddle with his expenses and income just before he presents his creditor plan for confirmation. So long as he can push up his expenses and delay receipt of income so as to show no “disposable income” at the time of plan confirmation, he can propose such a short period of time that he can save any postponed income from the creditors’ clutches. The majority’s result is not required by a close reading of the Bankruptcy Code; indeed, quite the opposite is the correct reading. For this reason, I partially dissent from the majority opinion. I concur in the majority opinion’s holding as to the calculation of “projected disposable income.” I agree projected disposable income in 11 U.S.C. Â§ 1325(b)(1)(B) is calculated according to Â§ 1325(b)(2)’s statutory definition of “disposable income”, using Form B22C–regardless the debtor’s actual disposable income on the date of plan confirmation–and then . . .
June 23rd, 2008
The Ninth Circuit Court of Appeals today released an opinion in USA v. CHAPMAN, No. 07-50000, a criminal appeal. The panel consisted of David R. Thompson and Kim McLane Wardlaw, Circuit Judges, and Edward C. Reed, Jr., District Judge.
WARDLAW, Circuit Judge:
Lee Chapman appeals his misdemeanor conviction under 18 U.S.C. Â§ 111(a) for forcibly resisting, opposing, impeding, and interfering with a federal officer engaged in official duties. Because Â§ 111(a) allows misdemeanor convictions only where the acts constitute simple assault, and because Chapman’s nonviolent civil disobedience did not constitute a . . .