The Ninth Circuit Court of Appeals today released an opinion in WIDMARK v. BARNHART, No. 04-35952, an appeal in a civil action brought by the United States. The panel consisted of James R. Browning, Dorothy W. Nelson, and Diarmuid F. O’Scannlain, Circuit Judges.

BROWNING, Circuit Judge:
Sterling Widmark appeals a decision of the district court affirming the Social Security Commissioner’s (”Commissioner”) denial of benefits. An Administrative Law Judge (”ALJ”) found Widmark, though severely impaired, had the residual functional capacity (”RFC”) for the full range of light work. Widmark argues that, in reaching his decision, the ALJ rejected the medical opinion of an examining physician without offering adequate reasons. Widmark also claims the ALJ erred in using the Medical-Vocational Guidelines in making his disability determination. We have jurisdiction under 28 U.S.C. § 1291, and we hold that the ALJ improperly rejected the examining physician’s opinion regarding Widmark’s thumb. We also hold that this error made the ALJ’s use of the Medical-Vocational Guidelines in his final disability determination improper. Therefore, we reverse and remand for proceedings consistent with this opinion. I. Widmark applied for Disability Insurance Benefits and Supplemental Security Income on December 9, 1998, claiming disability with an onset date of May 1, 1997, due to back and neck pain. Both applications were denied. . . .

O’SCANNLAIN, Circuit Judge, concurring in part and dissenting in part:
I respectfully dissent from the court’s conclusion that the ALJ failed to give specific legitimate reasons based on substantial evidence to support his conclusion that the thumb abnormality Dr. Greenleaf observed did not significantly limit the range of work permitted by Widmark’s exertional limitations. Indeed, I am persuaded that substantial evidence supports denial of Widmark’s application for Disability Insurance Benefits and Supplemental Security Income. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). “Under this standard, the Commissioner’s findings are upheld if supported by inferences reasonably drawn from the record.” Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1193 (9th Cir. 2004). “[I]f evidence exists to support more than one rational interpretation, we must defer to the Commissioner’s decision.” Id. “[T]he court may not substitute its judgment for that of the Commissioner.” Edlund, 253 F.3d at 1156. In situations of conflicting medical evidence, such as this one, the ALJ, not a reviewing court, is charged with determining credibility and resolving the conflict. Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). We must defer to the ALJ’s decision to reject the opinion of a treating physician in favor of the conflicting opinion of an . . .

The Ninth Circuit Court of Appeals today released an opinion in NORTHERN ALASKA ENVIRONMENTAL CENTER v. KEMPTHORNE, No. 05-35085, an appeal in a civil action against the United States. The panel consisted of Mary M. Schroeder, Chief Judge, Arthur L. Alarcón and Andrew J. Kleinfeld, Circuit Judges.

SCHROEDER, Chief Judge:
Since the administration of President Warren G. Harding, the United States has looked to the petroleum and natural gas resources underlying the wilderness of Northern Alaska, but development has come slowly. The frigid region is far reaching and so is the range of wildlife that inhabits it. The government now proposes to lease vast reaches of the northernmost part of the state, known as the Northwest Planning Area (”NWPA”). In this litigation, a group of environ. . .

The Ninth Circuit Court of Appeals today released an opinion in STOUT v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, No. 04-36006, an appeal in a civil action against the United States. The panel consisted of James R. Browning, Dorothy W. Nelson, and Diarmuid F. O’Scannlain, Circuit Judges.

BROWNING, Circuit Judge:
Gordon Stout appeals the district court’s judgment affirming the Social Security Commissioner’s (”Commissioner”) denial of his applications for Disability Insurance Benefits (”DIB”) and Supplemental Security Income (”SSI”) under Titles II and XVI, respectively, of the Social Security Act. Stout contends the Administrative Law Judge (”ALJ”) improperly disregarded lay testimony regarding his inability to work. We have jurisdiction under 28 U.S.C. § 1291. Because the ALJ failed to discuss competent lay witness testimony favorable to Stout, we reverse the district court’s judgment and remand. I Stout filed his current claims for DIB and SSI in February 2000, alleging disability primarily due to back and mental impairments with an onset date of April 18, 1997. The Social Security Administration denied these claims initially and upon reconsideration. Stout requested a hearing. At his hearing in February 2002, Stout’s sister, Udena Stout (”Udena”), testified that Stout’s impairments negatively affect his ability to work. Additionally, the ALJ received into evidence a letter from Stout’s brother-in-law, Jay Vasquez, with whom Stout worked for approximately fifteen years. Similar to Udena’s testimony, Vasquez described Stout’s inability to work without certain accommodations. During a supplemental hearing in March 2002, a vocational expert (”VE”) testified. In response to the ALJ’s hypothetical, the VE opined that Stout could perform one of his previous jobs and other jobs in the national economy. . . .

O’SCANNLAIN, Circuit Judge, dissenting:
I respectfully dissent from the majority’s conclusion that the ALJ’s failure to comment properly on the lay witness testimony of Stout’s sister and brother-in-law was not harmless error. I am persuaded, as was the District Court, that even if the lay witness testimony is credited, all the evidence taken as a whole overwhelmingly supports denial of Stout’s application for Disability Insurance Benefits and Supplemental Security Income. “A decision of the ALJ will not be reversed for errors that are harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Here, the lay testimony, when viewed in conjunction with the evidence the ALJ properly considered, does not undermine the ALJ’s finding that Stout can engage in his prior work as a vine pruner. The thrust of the lay testimony was that, in his past work as a roofer, Stout had difficulty working with other people without supervision. Although the letter from Stout’s brotherin-law, Jay Vasquez, used the term “constant supervision” to describe the assistance Stout requires, the remainder of Vasquez’s letter indicates that Vasquez did not provide Stout literal, constant supervision during the ten years Stout worked in his construction company. It also indicates that after Vasquez closed his construction company, Stout worked as a roofer for another company without supervision and support from a family member. Similarly, the testimony of Stout’s sister, Udena Stout, does not stand for the proposition that Stout . . .

The Ninth Circuit Court of Appeals today released an opinion in KEPILINO v. GONZALES, No. 04-71926, an administrative appeal. The panel consisted of Betty B. Fletcher, Harry Pregerson, and Cynthia Holcomb Hall, Circuit Judges.

PREGERSON, Circuit Judge:
Petitioner Young Ok Kepilino appeals the Board of Immigration Appeals’s (”BIA”) summary affirmance of the Immigration Judge’s (”IJ”) decision finding Kepilino inadmissible under section 212(a)(2)(D)(i) of the Immigration and Nationality Act (”INA”) (codified at 8 U.S.C. § 1182(a)(2)(D)(i)). The IJ held that Kepilino’s 1999 prostitution conviction under Hawaii Revised Statute (”H.R.S.”) section 712-1200 rendered her inadmissible under section 212(a)(2)(D)(i) of the INA, which renders inadmissible any alien who “is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status.” 8 U.S.C. § 1182(a)(2)(D)(i). Kepilino contends that her Hawaii prostitution conviction does not trigger section 212(a)(2)(D)(i) because Hawaii’s definition of prostitution is overly broad and “has gone far beyond the well-accepted and understood meaning of prostitution.” This issue is one of first impression in the Ninth Circuit. We have jurisdiction under 8 U.S.C. § 1252. Because we agree with Kepilino that Hawaii’s definition of prostitution encompasses acts outside the scope of section 212(a)(2)(D)(i), we grant Kepilino’s petition. I. Factual and Procedural Background Kepilino is a native and citizen of South Korea. She first entered the United States as a visitor for pleasure on or about November 4, 1996. Kepilino married a U.S. citizen and adjusted her status on July 8, 1998. She received a temporary Form I-551 resident alien card valid from July 8, 1998, through January 31, 2004. On January 7, 1999, Kepilino was arrested and charged with practicing massage without a license under H.R.S. section 425-0015 and prostitution under . . .

The Ninth Circuit Court of Appeals today released an opinion in CHUCK v. HEWLETT PACKARD, No. 04-36094, a federal appeal. The panel consisted of Dorothy W. Nelson and Diarmuid F. O’Scannlain, Circuit Judges, and Larry A. Burns, District Judge.

D.W. NELSON, Senior Circuit Judge:
Kenneth Chuck appeals the district court’s grant of the summary judgment motion put forward by several Hewlett Packard Company defendants (collectively, “HP”). Chuck’s principal claim is that the Hewlett Packard Company Deferred Profit-Sharing Retirement Plan (the “Plan”), which is governed by the Employee Retirement Income Security Act of 1974 (”ERISA”), 29 U.S.C. § 1001 et seq., owes him additional retirement benefits arising from his employment at HP until 1980. He also seeks relief for the Plan’s alleged breach of its fiduciary duties and for its failure to provide him with Plan-related documents as required by 29 U.S.C. §§ 10211024. At the heart of this case, we are faced with an issue of first impression in this circuit: whether ERISA’s statute of limitations may bar a claim for benefits notwithstanding a plan’s failure to fulfill its disclosure and review obligations under ERISA § 503, 29 U.S.C. § 1133. We hold that a plan’s material violation of § 1133 is a factor that militates strongly against a finding that the statute of limitations has begun to run against a claimant, but that a compelling showing of circumstances in this case nevertheless indicates that Chuck’s benefits claim is time-barred. Furthermore, because Chuck’s benefits claim is time-barred on account of his own actions, we hold that Chuck lacks statutory standing to bring his claims under ERISA. I Chuck worked for HP from 1968 to 1972, and then again from 1974 to 1980. In 1978 and 1979, HP appears to have calculated Chuck’s pension credit and provided him with annual benefit statements as though there had been no break in his service with HP. Shortly before Chuck’s resignation from HP . . .

The Ninth Circuit Court of Appeals today released an order in USA v. SALAZAR, No. 04-50392, a criminal appeal. The panel consisted of Susan P. Graber, Kim McLane Wardlaw, and Johnnie B. Rawlinson, Circuit Judges.

WARDLAW, Circuit Judge:
Leonel Salazar was convicted under 18 U.S.C. §§ 2(b) and 2071(a) on Counts 3 and 6 of an indictment charging him with destroying and causing others to destroy documents filed and deposited with the Immigration and Naturalization Service (”INS”) at the California Service Center (”CSC”) in Laguna Niguel, California. The CSC receives and processes applications and petitions for immigration from California, Arizona, Nevada, Hawaii, and Guam. Count 3 of the indictment charged Salazar with having willfully and unlawfully caused the destruction of foreign passports, marriage and birth certificates, and INS applications on March 14 and 15, 2002; and Count 6 of the indictment charged him with having willfully and unlawfully caused the destruction of INS forms-797, INS receipt notices, INS rejection notices, and return mail on April 3 and 4, 2002. Salazar was employed at the CSC as a senior file room supervisor for the Service Center Operations Team (”SCOT”), an administrative unit made up of employees from three private companies under contract with the INS. As part of an effort to reduce the filing backlog at the CSC, Salazar and other members of SCOT from January to April 2002 shredded an estimated 90,000 INS documents, many of which were official public records required to be placed in . . .

The ORDER published on April 10, 2006 and appearing at United States v. Salazar, 443 F.3d 1153 (9th Cir. 2006), is hereby WITHDRAWN. The clerk shall file the attached opinion, along with Judge Rawlinson’s concurrence. The panel has voted unanimously to deny the petition for panel rehearing and rehearing en banc. . . .

RAWLINSON, Circuit Judge, concurring:
I concur in the result. . . .

The Ninth Circuit Court of Appeals today released an opinion in GARCIA-QUINTERO v. GONZALES, No. 03-73930, an administrative appeal. The panel consisted of Michael Daly Hawkins, Susan P. Graber, and Richard A. Paez, Circuit Judges.

PAEZ, Circuit Judge:
Petitioner Pedro Garcia-Quintero petitions for review of the Board of Immigration Appeals’s (”BIA” or “Board”) order that found him removable for alien smuggling, and ineligible for cancellation of removal due to his failure to accrue seven years of continuous residence in the United States after being “admitted in any status.” At the removal hearing, GarciaQuintero’s counsel attempted to assert the Fifth Amendment’s right against self-incrimination on behalf of Garcia-Quintero. The immigration judge (”IJ”), however, required GarciaQuintero to assert his Fifth Amendment right himself, but allowed his attorney to advise him about when to exercise this right. After invoking the Fifth Amendment several times, Garcia-Quintero admitted that he tried to help his goddaughter unlawfully enter the United States. On the basis of this testimony, the IJ ordered Garcia-Quintero removed for having engaged in alien smuggling. Garcia-Quintero appealed the IJ’s ruling to the BIA. In addition to challenging the IJ’s procedure for invoking the Fifth Amendment, Garcia-Quintero moved to remand his case so the IJ could consider his application for cancellation of removal. In an unpublished order, the BIA rejected his appeal, and also denied his motion because it determined that he . . .

GRABER, Circuit Judge, concurring in part and dissenting in part:
Although I concur in the majority’s analysis of the Fifth Amendment issue and agree that the deference we owe to the Board of Immigration Appeals (”BIA”) is defined by Skidmore v. Swift & Co., 323 U.S. 134 (1944), rather than by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), I respectfully dissent from the majority’s conclusion that the BIA misinterpreted 8 U.S.C. § 1229b(a)(2). Title 8 U.S.C. § 1229b(a)(2) provides that cancellation of removal is available, at the Attorney General’s discretion, for a legal permanent resident alien (”LPR”) who is inadmissible or deportable if (among other criteria) he “has resided in the United States continuously for 7 years after having been admitted in any status.” (Emphasis added.) There is no dispute that Petitioner’s period of continuous residence ended on June 8, 2001, when he attempted to smuggle an alien into the United States. 8 U.S.C. § 1229b(d)(1). There also is no dis. . .

The Ninth Circuit Court of Appeals today released an opinion in DEVERATURDA v. GLOBE AVIATION SECURITY SERVICES, No. 04-16633, a federal appeal. The panel consisted of Pamela Ann Rymer and Thomas G. Nelson, Circuit Judges, and Samuel P. King, District Judge.

RYMER, Circuit Judge:
This appeal presents the novel question whether the Worker Adjustment and Retraining Notification Act (WARN Act), 29 U.S.C. § 2101 et seq., which prohibits an employer from ordering a mass layoff without giving 60 days’ notice, applies to a mass layoff of employees who worked for a private employer as airport security screeners until the United States government federalized airport security services and took over operations at their airport. Virgil Deveraturda, Bernard Sapitalo, Shirley Sampayan, and Maria Lillibeth Edano (collectively, Deveraturda) were employed by Globe Airport Security Services, Inc. to provide screening services at San Jose International Airport (SJC). However, they and others were let go as a result of the Aviation and Transportation Security Act (ATSA) of 2001. Pub. L. No. 107-71, 115 Stat. 597 (Nov. 19, 2001). Believing that Globe should have given 60 days’ notice under the WARN Act, which it did not do, Deveraturda brought a class action for relief under the Act. The district court granted Globe’s motion for judgment on the pleadings, holding that it was the federal government that took over control of airport security without any ability on Globe’s part to dictate the nature, scope, or timing of the takeover. As it was the government that ordered the layoff and ousted Globe from providing security personnel at SJC, the court concluded that the WARN Act does not apply. We agree that the Act does not apply, and affirm. . . .

The Ninth Circuit Court of Appeals today released an opinion in WESTERN WATERSHEDS v. MATEJKO, No. 05-35178, an appeal in a civil action against the United States. The panel consisted of Betty B. Fletcher and M. Margaret McKeown, Circuit Judges, and Samuel P. King, District Judge.

KING, District Judge:
Section 7(a)(2) of the Endangered Species Act (ESA), codified at 16 U.S.C. § 1536(a)(2), requires consultation with the Secretary of the Interior or Secretary of Commerce if there is “any action authorized, funded, or carried out by” a federal agency (here, the Bureau of Land Management (BLM)) that could jeopardize any endangered or threatened species, or destroy or adversely modify habitat of such species. This appeal presents the question of whether the BLM’s failure to regulate certain vested rights-of-way held by private landowners to divert water for irrigation uses constitutes “action authorized, funded, or carried out” by the BLM so as to require consultation. The district court required the BLM to . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. CORTEZ-RIVERA, No. 05-50207, a criminal appeal. The panel consisted of Stephen Reinhardt, Stephen S. Trott, and Kim McLane Wardlaw, Circuit Judges.

TROTT, Circuit Judge:
Enrique Cortez-Rivera appeals from his conviction following a conditional guilty plea for importation of marijuana in violation of 21 U.S.C. §§ 952 and 960. He asserts that the district court should have dismissed his indictment because the model instructions given to the grand jurors unconstitutionally invaded the province of the grand jury. He asserts also that the district court erred in denying his motion to suppress the marijuana found during a border search because the search damaged his vehicle, thereby requiring that the customs officers have reasonable suspicion prior to commencing the search. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. The model charge given to the grand jury did not violate Cortez-Rivera’s Fifth Amendment right to indictment by a grand jury. The model instruction did not infringe upon the grand jury’s independence because it used the term “should” rather than “shall,” giving the grand jury leeway to depart from the instruction. This leeway, albeit slight, is sufficient to immunize the instruction from constitutional infirmity. Addi. . .