The Ninth Circuit Court of Appeals today released an opinion in ARIZONA STATE BOARD FOR CHARTER SCHOOLS v. U.S. DEPARTMENT OF EDUCATION, No. 05-17349, an appeal in a civil action against the United States. The panel consisted of Michael Daly Hawkins and Sidney R. Thomas, Circuit Judges, and Jeffrey T. Miller, District Judge.

HAWKINS, Circuit Judge:
We face a question of statutory interpretation that boils down to the meaning of the word “including.” The parties offer differing interpretations of two federal statutes that define the type of school eligible to receive specific federal funds as “a nonprofit institutional day or residential school, including a public [elementary or secondary] charter school, that provides [elementary or secondary] education, as determined under State law.” The district court, in a carefully written and thoughtful opinion, construed “including” to mean, essentially, “such as.” Because this construction is consistent with the plain meaning of the language employed by Congress, the legislative history surrounding these provisions, and the reasonable interpretation given the language by the. . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. CASTILLO, No. 05-30401, a criminal appeal. The panel consisted of Robert R. Beezer, Richard C. Tallman, and Jay S. Bybee, Circuit Judges.

BEEZER, Circuit Judge:
Domingo Jacobo Castillo (”Jacobo”) pleaded guilty to one count of being an illegal alien in possession of a firearm in violation of 18 U.S.C. § 922(g)(5). He now appeals the denial of his pre-plea motion to suppress and argues that the delay between the discovery of the firearm and his indictment constitutes a violation of his Fifth Amendment due process rights. We lack jurisdiction over this appeal because Jacobo entered an unconditional guilty plea. We have previously held that “an unconditional guilty plea constitutes a waiver of the right to appeal all nonjurisdictional antecedent rulings and cures all antecedent constitutional defects.” United States v. Lopez-Armenta, 400 F.3d 1173, 1175 (9th Cir. 2005); see also United States v. Reyes-Platero, 224 F.3d 1112, 1115 (9th Cir. 2000) (”[W]e do not have jurisdiction over the merits of appeals based upon pre-waiver constitutional defects, and we must dismiss that portion of the appeal.”); United States v. Floyd, 108 F.3d 202, 204 (9th Cir. 1997) (”Unless [appellant’s] plea conformed with [Rule 11(a)(2)’s] specific requirements, we have no jurisdiction to hear her appeal.”); United States v. Carrasco, 786 F.2d 1452, 1453-54 (9th Cir. 1986) (”We do not have jurisdiction to decide [appellant’s] appeal of the denial of the suppression motion unless she entered a valid conditional plea.”). . . .

BYBEE, Circuit Judge, dissenting:
I write separately because our precedents will not support –and, indeed, they contradict–the majority’s holding. In particular, the majority’s holding clearly conflicts with our decision in United States v. Garcia-Lopez, 309 F.3d 1121, 1122 (9th Cir. 2002). I believe that we cannot dismiss this case for want of jurisdiction without seeking en banc approval. I agree that Jacobo relinquished his pretrial constitutional appeals at sentencing. See Tollett v. Henderson, 411 U.S. 258 (1973). The question is: What are the consequences? Not infrequently, a defendant who has waived his right to appeal in a plea agreement will file an appeal anyway. Ordinarily, in such cases, the government will advise us of the waiver, either by motion or in its brief, and we will dismiss the appeal, often in a memorandum disposition. But in this case, the government answered Jacobo’s contentions on the merits, never arguing that Jacobo’s appeal was barred or moving to dismiss his appeal. Nevertheless, the majority holds that Jacobo’s waiver is a jurisdictional bar, and that we must dismiss the . . .

The Ninth Circuit Court of Appeals today released an amended order in ROY LAMPERT, No. 04-35514, a habeas corpus appeal. The panel consisted of James R. Browning, Dorothy W. Nelson, and Diarmuid F. O’Scannlain, Circuit Judges.

D.W. NELSON, Senior Circuit Judge:
Albert Roy and Phillip Kephart were both convicted of crimes in Oregon state court. The federal district court dismissed both of their federal habeas petitions as untimely because they were filed after the one-year statute of limitations period created by the Antiterrorism and Effective Death Penalty Act (”AEDPA”). We consolidated their cases to answer a single question: Are Roy and Kephart entitled to an evidentiary hearing regarding their claim that the statute of limitations should be equitably tolled because they were transferred to an Arizona prison facility that, they allege, had a woefully deficient law library? Because we decide that Roy and Kephart made sufficient allegations that they pursued their claims diligently and faced extraordinary circumstances once they were transferred to the Arizona prison facility, we remand this case to the district court to hold an evidentiary hearing. . . .

The opinion filed on July 12, 2006, slip opinion at 7625 and published at 455 F.3d 945 (9th Cir. 2006) is amended as follows: Page 7641 of the slip opinion, last words:
replace “[other things]” with “[circumstances other than petitioner’s lack of diligence]” Page 7643 of the slip opinion, last two sentences of the first full paragraph:
replace: “Kephart was in fact told by his attorney that the statute of limitations did not expire until December of 1997, eight months after the actual expiration date. Kephart’s attorney told him of the date he believed to be the expiration date for filing his habeas claim after Kephart was already in Arizona, and therefore after the point at which he could have confirmed or disproved what his attorney informed him about AEDPA.” with “Likewise, Kephart asserted that he had had “no . . . notice of the AEDPA” either from the prison library or from any other source, and that he “was not able to gain knowledge of the one year limitation period for filing under [AEDPA]” until after he had filed his state post-conviction petition and had been returned to Oregon.” . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. DURHAM, No. 05-30403, a criminal appeal. The panel consisted of A. Wallace Tashima and William A. Fletcher, Circuit Judges, and Louis H. Pollak, District Judge.

POLLAK, District Judge:
On January 11, 2005, following a bench trial, the District Court found that defendant-appellant Jessica Durham (”Ms. Durham”) knowingly distributed a small quantity of marijuana to her eighteen-month-old daughter, Michala Durham (”Michala”). Accordingly, Ms. Durham was convicted of knowingly and unlawfully distributing marijuana to a person under the age of twenty-one, in violation of 21 U.S.C. §§ 841(a)(1), 859(a). She was sentenced to a five-year term of imprisonment. On appeal, Ms. Durham argues that testimony against her was improperly admitted and that the prosecution’s evidence was insufficient to support her conviction. We find these arguments lacking in merit and affirm Ms. Durham’s conviction. She also argues that her five-year sentence should be vacated because the applicable statutory maximum is two. . .

The Ninth Circuit Court of Appeals today released an opinion in FAITH CENTER CHURCH v. GLOVER, No. 05-16132, a civil rights appeal. The panel consisted of Richard A. Paez and Richard C. Tallman, Circuit Judges, and Lawrence K. Karlton, Senior District Judge.

PAEZ, Circuit Judge:
This appeal from the grant of a preliminary injunction involves an evangelical Christian church seeking access to a public library meeting room to conduct, among other activities, religious worship services. We are called upon to navigate between two equally important interests: the church’s right to access a government building that is open to other groups, and the government’s right to preserve its property for its intended uses. We conclude that the district court erred when it found that the church was likely to succeed on the merits of its First Amendment claim and therefore abused its discretion in granting preliminary injunctive relief. We have . . .

TALLMAN, Circuit Judge, dissenting:
The “Religious Use” exclusion is impermissible viewpoint discrimination because Contra Costa County (the “County”) opened its public meeting room at the Antioch Library to the community in order “to encourage [its use] for educational, cultural and community related meetings, programs and activities.” Notwithstanding the broad and inclusive policy it approved, the County has unlawfully excluded certain members of the community from engaging in activities that fall. . .

The Ninth Circuit Court of Appeals today released an amended order in BURRELL v. MCILROY, No. 02-15114, a prisoner appeal. The panel consisted of James L. Oakes, Andrew J. Kleinfeld, and Consuelo M. Callahan, Circuit Judges.

CALLAHAN, Circuit Judge:
Stephen Burrell (Burrell) appeals the district court’s grant of summary judgment on behalf of various detectives of the . . .

The opinion and dissent filed on September 19, 2005, and published at 423 F.3d 1121 (9th Cir. 2005) are hereby amended. An amended opinion and dissent are to be filed concurrently with this order. With the filing of the amended opinion and dissent, Judges Kleinfeld and Callahan have voted to deny the petition for rehearing and suggestion for rehearing en banc. Judge Oakes voted to grant the petition for rehearing. The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for rehearing is DENIED and the suggestion for rehearing en banc is DENIED. No subsequent petitions for rehearing or petitions for rehearing en banc may be filed. OPINION CALLAHAN, Circuit Judge:
Stephen Burrell (Burrell) appeals the district court’s grant of summary judgment on behalf of various detectives of the . . .

OAKES, Circuit Judge, dissenting:
I respectfully dissent from the majority’s holding that “a reasonable officer in Detective Rector’s position would have believed that he had probable cause to arrest Burrell and to use force in doing so.” Majority Op. at 11619. My dissent is based on the following reasoning. . . .

The Ninth Circuit Court of Appeals today released an opinion in LEON v. IDX SYSTEMS CORPORATION, No. 04-35983, a federal appeal. The panel consisted of David R. Thompson, A. Wallace Tashima, and Consuelo M. Callahan, Circuit Judges.

TASHIMA, Circuit Judge:
Dr. Mauricio Leon (”Leon”) worked as the director of medical informatics at IDX Systems Corporation (”IDX”). After he was placed on unpaid leave, Leon sued IDX, alleging violations of the anti-retaliation provision of the False Claims Act, Title VII, the Americans with Disabilities Act (”ADA”), and Washington state law. He also filed a complaint with the United States Department of Labor (”DOL”), claiming that IDX violated the whistleblower-protection provision of the Sarbanes-Oxley Act (”SOX”). The district court dismissed all of Leon’s claims with prejudice after determining that Leon despoiled evidence by deleting 2,200 files from his IDXissued laptop computer during the pendency of the litigation. The court also imposed a $65,000 monetary spoliation sanction. Leon appeals the sanctions and IDX cross-appeals the district court’s decision not to enjoin, on res judicata grounds, the DOL’s proceedings against IDX. We affirm the district court’s spoliation sanctions, reverse its res judicata determina. . .

The Ninth Circuit Court of Appeals today released an opinion in GREGER v. BARNHART, No. 04-35891, an appeal in a civil action against the United States. The panel consisted of Warren J. Ferguson and Consuelo M. Callahan, Circuit Judges, and Susan R. Bolton, District Judge.

BOLTON, District Judge:
Leonard R. Greger appeals the district court’s order affirming the Commissioner of Social Security’s (”Commissioner”) denial of social security disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-33. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. FACTS AND PROCEDURAL HISTORY Greger applied for social security disability insurance benefits on January 30, 2001. He alleged that he became disabled . . .

FERGUSON, Circuit Judge, dissenting:
Leonard Greger suffers from Post-Traumatic Stress Disorder (”PTSD”) arising out of his experiences during his military service in Vietnam. In 1998, the Veterans Administration (”VA”) rated Greger as 30% disabled due to his PTSD diagnosis. According to Greger, his PTSD makes it difficult for him to get along with authority, causes him to be irritable, and contributes to his anger control problems. Greger also testified that he has had trouble sleeping due to nightmares. Since 1998, Greger has been on anti-anxiety and anti-depressant medication to control his psychological problems, and previously saw a psychiatrist. In 2000, Greger told a VA examiner that, in addition to his other symptoms, his memory and concentration are poor. That same examiner noted that Greger suffers from “some vague, paranoid thoughts.” And during . . .

The Ninth Circuit Court of Appeals today released an opinion in UNIVERSAL SERVICE v. POST-CONFIRMATION, No. 03-56736, a bankruptcy appeal. The panel consisted of James R. Browning, Raymond C. Fisher, and Jay S. Bybee, Circuit Judges.

BYBEE, Circuit Judge:
In this case we are asked to review the decision of the bankruptcy appellate panel (”BAP”), which held that the Universal Service Administrative Company (”USAC”) was a transferee under 11 U.S.C. §§ 547 and 550. We hold that USAC is a transferee under the “dominion” test and affirm the judgment of the BAP. I. FACTS AND PROCEEDINGS Congress passed the “1996 Telecommunications Act . . . to encourage universal telecommunications service.” City of Springfield v. Ostrander(In re LAN Tamers, Inc.), 329 F.3d . . .

The Ninth Circuit Court of Appeals today released an opinion in LOUNSBURRY v. BARNHART, No. 04-15690, an appeal in a civil action against the United States. The panel consisted of Procter Hug, Jr., Arthur L. Alarcón, and M. Margaret McKeown, Circuit Judges.

HUG, Circuit Judge:
Beatriz V. Lounsburry (”Lounsburry”) appeals the district court’s judgment affirming the Commissioner of Social Security’s decision to deny her disability benefits under Title II of the Social Security Act. Lounsburry’s application for benefits was denied initially and on reconsideration, and Lounsburry requested a hearing before an administrative law judge (”ALJ”). The ALJ found that although Lounsburry had severe exertional and non-exertional impairments that precluded her performing her previous work, these impairments were not disabling because they did not preclude Lounsburry from performing a single occupation that existed in significant numbers in the economy. Lounsburry contends that the ALJ committed legal error because Rule 202.00(c) of the MedicalVocational Guidelines, as applied to the ALJ’s uncontested findings of fact, directs as a matter of law a determination that Lounsburry is disabled. We agree, and hereby REVERSE and REMAND WITH INSTRUCTIONS for the payment of benefits. I. Factual And Procedural Background On February 24, 2000, Lounsburry filed a claim for Social Security Disability Insurance (”SSDI”) under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. Lounsburry alleged that her disability arose on August 16, 1999, when she was sixty-two years of age. As the basis of her disability, Lounsburry alleged “easy fatigue, pains & discomforts on [the] upper and lower extremities, severe pain in both hips, joints, back & shoulder, not feeling well at times, [and] bunionous . . . toes.” A series of medical evaluations between May 1999 and December 2000 resulted in diagnoses of (1) degenerative joint disease, resulting in chronic bilateral lower extremity, knee, ankle, heel, and foot pain, and pain in the lumbar spine, (2) adult-onset diabetes mellitus, (3) hyperten. . .