The Ninth Circuit Court of Appeals today released an amended order in O’DONNELL v. VENCOR, INC., No. 05-15587, a federal appeal. The panel consisted of William C. Canby, Jr., David R. Thompson, and Michael Daly Hawkins, Circuit Judges.

PER CURIAM:
Pro se plaintiff-appellant Alice Faye O’Donnell (”O’Donnell”) appeals the district court’s dismissal of her employment discrimination claims as time-barred. O’Donnell asserts that the district court should have applied the doctrines . . .

The panel of judges named above amends, in the following manner, the per curiam opinion filed October 10, 2006:
A. At slip opinion page 17370, delete the paragraph that begins at the top of the page with the words “O’Donnell originally timely filed her first complaint . . .” and ends with the words “proceedings on O’Donnell’s EPA claims.” Replace that deleted paragraph with the following:
O’Donnell originally timely filed her first complaint asserting a claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., (”Title VII”), and a claim under the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq., (”ADEA”). She filed that complaint within ninety days after the issuance of her right-to-sue letter by the EEOC. See 42 U.S.C. § 2000e-5(f)(1); 29 U.S.C. § 626(e). The defendants thereafter filed for bankruptcy and an automatic stay was issued. The magistrate judge placed O’Donnell’s case on inactive status and gave her 180 days to move to lift the stay, . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. MENDEZ, No. 05-10205, a criminal appeal. The panel consisted of Stephen Reinhardt, Richard A. Paez, and Richard C. Tallman, Circuit Judges.

REINHARDT, Circuit Judge:
On a December evening in 2003, appellant Lionel Mendez was pulled over by two police officers for failure to display a visible license plate or registration tag. He was asked to exit the vehicle, patted down for weapons and, although there were three small children in the car, told to sit on the curb behind the vehicle while a records check was conducted. In response to questioning about matters unrelated to the purpose of the traffic stop, Mendez ultimately told the officers that there was a gun in the car, at which point they arrested him, searched the car and found the gun. After the district court denied his motion to suppress the evidence, Mendez entered a conditional plea of guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The only issue on appeal is whether the district court erred when it denied his motion to suppress. We conclude that it did, vacate Mendez’s conviction and remand. . . .

TALLMAN, Circuit Judge, dissenting:
Here we go again. The Supreme Court has told us repeatedly that the Fourth Amendment protects against unreasonable searches and seizures. United States v. Arvizu, 534 U.S. . . .

The Ninth Circuit Court of Appeals today released an amended order in PINARD v. CLATSKANIE SCHOOL DISTRICT 6J, No. 04-35574, a civil rights appeal. The panel consisted of Raymond C. Fisher, Ronald M. Gould and Carlos T. Bea, Circuit Judges.

FISHER, Circuit Judge:
This student speech case arises from a school district’s suspension of student athletes from its high school varsity basketball team. The students allege that the school district and various school officials violated their First Amendment free speech rights by suspending them in retaliation for speaking out against their coach. The district court granted summary judgment against the students, concluding that they were not engaged in a constitutionally protected activity because their speech did not involve a matter of public concern. In the alternative, the court concluded that the school district could constitutionally punish the students because their decision not to board a team bus and play in a regularly scheduled out-oftown game substantially and materially interfered with a school activity. We hold that the district court erred in adopting from the government employment context the public concern standard for determining whether the First Amendment protects student speech. Under the proper standard articulated in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 514 (1969), the students’ petition and complaints against the coach were protected speech because they could not reasonably have led school officials to forecast substantial disruption of or material interference with a school activity. However, we agree with the district court that the students’ refusal to board the bus was not protected by the First Amendment because, even if expressive conduct, it substantially disrupted and materially interfered with the operation of the varsity boys basketball program. The district court did not, however, consider the plaintiffs’ retaliation claims. We therefore reverse and remand for further proceedings consistent with this opinion. . . .

The court sua sponte has amended the opinion filed at 446 F.3d 964 (2006). The amended opinion is filed concurrently with this order. The parties may file petitions for rehearing based on the amended opinion. . . .

The Ninth Circuit Court of Appeals today released an opinion in ROBBINS v. SOCIAL SECURITY ADMINISTRATION, No. 04-35890, 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:
Leroy J. Robbins appeals an affirmance of the Commissioner of Social Security’s partial denial of benefits. We have jurisdiction to review under 28 U.S.C. § 1291. We reverse and remand because the Commissioner’s decision is not supported by substantial evidence. I. Background In October 1996, Robbins filed applications for supplemental security income and disability insurance benefits. He alleged he has been disabled since August 1993 by depression and severe impairments to his neck, left shoulder, back and knees. After his applications were denied initially and upon reconsideration, Robbins requested and was granted a hearing in March 1999 before Administrative Law Judge (”ALJ”) Eileen Burlison during which the August 1998 testimony of Robbins and his son Rodney were accepted into the record. Judge Burlison denied Robbins’s claims and, in August, 2000, the Social Security Appeals Council denied his request for review. Robbins then filed a complaint for review with the district court. . . .

O’SCANNLAIN, Circuit Judge, dissenting:
I respectfully dissent from the court’s holding that reversal and remand are required in this case. The administrative law judge’s (”ALJ”) analysis is thorough and cogent, and it should be affirmed. I First, the majority overturns the ALJ’s adverse credibility determination. Maj. Op. at 17969-73. I disagree with its analysis, and I would instead hold that the ALJ satisfied the requirement of providing “clear and convincing” reasons for its finding, which is supported by substantial evidence in the record as a whole. See Reddick v. Chater, 157 F.3d 715, 722 . . .

The Ninth Circuit Court of Appeals today released an amended order in BOYD v. NEWLAND, No. 03-17098, a habeas corpus appeal. The panel consisted of Richard D. Cudahy, Susan P. Graber, and Raymond C. Fisher, Circuit Judges.

GRABER, Circuit Judge:
The California courts denied a Batson motion made by Petitioner Mobassa Boyd and denied his request for a free transcript of the entire voir dire for use on appeal. We must ask whether those rulings were contrary to, or unreasonably applied, clearly established federal law as determined by the Supreme Court. In an earlier decision in this case, we answered “no.” Boyd v. Newland, 393 F.3d 1008 (9th Cir. 2004). In response to a petition for rehearing and in light of recent Supreme Court cases clarifying Batson v. Kentucky, 476 U.S. 79 (1986), we conclude that our earlier analysis was flawed. We now hold that the California appellate courts violated clearly established federal law by denying Petitioner’s habeas petition because, without an entire voir dire transcript, those courts could not evaluate the relevant circumstances surrounding the contested strike, as Batson requires. In that respect we reverse and remand with instructions to grant the petition for a writ of habeas corpus. Petitioner also argues that the California courts erred by enhancing his sentence because of a nonjury juvenile adjudication. As in our earlier decision, we disagree and, in this respect, affirm. FACTUAL AND PROCEDURAL HISTORY Petitioner Mobassa Boyd is African-American. He was charged in California with unlawfully possessing a firearm after having previously suffered a juvenile adjudication for a felony, Cal. Penal Code § 12021(e), and with unlawfully possessing a sawed-off shotgun, id. § 12020(a)(1). . . .

The Amended Opinion filed on June 26, 2006, slip op. at 7011, and published at 455 F.3d 897 (9th Cir. 2006), is amended as follows:
On slip opinion page 7032, line 20, after the sentence ending “entire voir dire transcript” add:
A transcript of the complete voir dire, as distinct from a partial transcript up to the time of the Batson motion, is proper because comparative juror analysis is appropriate both at the time of the Batson motion and in light of all subsequent voir dire testimony. See . . .

The Ninth Circuit Court of Appeals today released an opinion in MILLER v. FARMERS INSURANCE, No. 05-35080, a federal appeal. The panel consisted of Barry G. Silverman and Ronald M. Gould, Circuit Judges, and John S. Rhoades, Sr., District Judge.

SILVERMAN, Circuit Judge:
For more than 50 years, the Department of Labor has considered claims adjusters exempt from the Fair Labor Standard Act’s overtime requirement. In 2004, the DOL promulgated 29 C.F.R. § 541.203, which it viewed as “consistent with” existing law. Section 541.203 exempts claims adjusters if they perform activities such as interviewing witnesses, making recommendations regarding coverage and value of claims, determining fault and negotiating settlements. In this case, the plaintiffs are nearly 2,000 former and current claims adjusters who handle, respectively, automobile damage claims, non-automobile property damage claims, personal injury claims and various combinations of these. They assert that their employer improperly classified them as exempt from the FLSA. The district court ruled that some of them are exempt, and some of them are not. In doing so, the district court promulgated a “$3,000 in claims paid per month” rule, a rule that all parties to this appeal agree is neither workable nor supported by the evidence. . . .

The Ninth Circuit Court of Appeals today released an opinion in PAN PACIFIC RETAIL v. GULF INSURANCE, No. 04-56394, a diversity appeal. The panel consisted of Alex Kozinski and Ronald M. Gould, Circuit Judges, and Ricardo S. Martinez, District Judge.

GOULD, Circuit Judge:
Appellants Pan Pacific Retail Properties, Inc. (”Pan Pacific”) and Western Properties Trust (”Western”) challenge their insurers’ denial of coverage for an underlying shareholder class action. Pan Pacific and Western were each insured under a Directors’ and Officers’ Liability and Company Indemnification Policy (”D&O Policy”). Pan Pacific was insured by Appellee Gulf Insurance Company (”Gulf”). Western was insured by Appellee Twin City Fire Insurance Company (”Twin City”). Gulf and Twin City assert that all costs and expenses arising out of the underlying shareholder lawsuit were uninsurable as a matter of public policy because, according to the insurers, the suit only sought and recovered the dis. . .

The Ninth Circuit Court of Appeals today released an en banc opinion in FERNANDEZ-RUIZ v. GONZALES, No. 03-74533, an administrative appeal. The panel consisted of Mary M. Schroeder, Chief Judge, Stephen Reinhardt, Alex Kozinski, John T. Noonan, Diarmuid F. O’Scannlain, Michael Daly Hawkins, Kim McLane Wardlaw, Richard R. Clifton, Jay S. Bybee, Consuelo M. Callahan, and Carlos T. Bea, Circuit Judges.

BEA, Circuit Judge, joined by Chief Judge SCHROEDER, Judges REINHARDT, NOONAN, HAWKINS, CLIFTON:
This case calls upon us to decide whether the petitioner’s 2003 Arizona conviction for domestic violence was a “crime of domestic violence” under a federal statute that triggers removal of a legally admitted resident alien from this country. The federal statute, as interpreted by the Supreme Court in Leocal v. Ashcroft, 543 U.S. 1 (2004), covers only those crimes involving intentional conduct. Because the relevant Arizona statute permits conviction when a defendant recklessly but unintentionally causes physical injury to another, and because the petitioner’s documents of conviction do not prove he intentionally used force against another, we conclude the federal statute does not apply. Accordingly, the petitioner is not removable for his 2003 Arizona conviction and we return the case to the original three-judge panel to decide whether he is removable on other grounds. I. Factual and Procedural Background Jose Roberto Fernandez-Ruiz, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (BIA’s) order affirming an immigration judge’s (IJ’s) decision to rescind his lawful permanent resident status, remove him from the United States, and deny him any relief from removal. Fernandez-Ruiz was admitted into the United States as a lawful permanent resident on October 26, 1990. Thereafter, he committed several crimes, three of which are relevant to his petition for review. In 1992, Fernandez-Ruiz was convicted of “theft by control of property” in violation of Arizona Revised Statutes § 131802(A)(1) & (C). For this offense, his initial sentence was . . .

BEA, Circuit Judge, joined by Chief Judge SCHROEDER, Judges REINHARDT, NOONAN, HAWKINS, CLIFTON:
This case calls upon us to decide whether the petitioner’s 2003 Arizona conviction for domestic violence was a “crime of domestic violence” under a federal statute that triggers removal of a legally admitted resident alien from this country. The federal statute, as interpreted by the Supreme Court in Leocal v. Ashcroft, 543 U.S. 1 (2004), covers only those crimes involving intentional conduct. Because the relevant Arizona statute permits conviction when a defendant recklessly but unintentionally causes physical injury to another, and because the petitioner’s documents of conviction do not prove he intentionally used force against another, we conclude the federal statute does not apply. Accordingly, the petitioner is not removable for his 2003 Arizona conviction and we return the case to the original three-judge panel to decide whether he is removable on other grounds. I. Factual and Procedural Background Jose Roberto Fernandez-Ruiz, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (BIA’s) order affirming an immigration judge’s (IJ’s) decision to rescind his lawful permanent resident status, remove him from the United States, and deny him any relief from removal. Fernandez-Ruiz was admitted into the United States as a lawful permanent resident on October 26, 1990. Thereafter, he committed several crimes, three of which are relevant to his petition for review. In 1992, Fernandez-Ruiz was convicted of “theft by control of property” in violation of Arizona Revised Statutes § 131802(A)(1) & (C). For this offense, his initial sentence was . . .

KOZINSKI, Circuit Judge, concurring in part, dissenting in part:
I agree that the government hasn’t shown Fernandez-Ruiz committed a crime of domestic violence under 18 U.S.C. § 16(a) on this record. I reach this conclusion substantially for the reasons stated in the majority opinion, and because I would not lightly disregard the view of five other circuits that have considered the issue. See Tran v. Gonzales, 414 F.3d 464, 471-72 (3d Cir. 2005); Bejarano-Urrutia v. Gonzales, 413 F.3d 444, 447 (4th Cir. 2005); Jobson v. Ashcroft, 326 F.3d 367, 372-73 (2d Cir. 2003); Bazan-Reyes v. INS, 256 F.3d 600, 609-10 (7th Cir. 2001); United States v. ChapaGarza, 243 F.3d 921, 925-27 (5th Cir. 2001). I find the dissent’s effort to carve out a special rule for domestic violence cases unpersuasive. . . .

WARDLAW, Circuit Judge, with whom Circuit Judges O’SCANNLAIN, BYBEE, and CALLAHAN join dissenting: Men do not beat their wives by accident. Blind to this truth, the majority ignores the realities of domestic violence and disregards congressional intent to hold that an Arizona domestic . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. BLACK, No. 05-10640, a criminal appeal. The panel consisted of Betty B. Fletcher and Marsha S. Berzon, Circuit Judges, and David G. Trager, District Judge.

B. FLETCHER, Circuit Judge:
On appeal, Jasper Black challenges his conviction as a felon in possession, arguing that the district court erred when it denied his motion to suppress the gun. We affirm. I. The police justify their entry into Black’s apartment, not as one looking for evidence of a crime but as a welfare search occasioned by a 911 domestic violence call. Police were dispatched to the apartment after Black’s ex-girlfriend, Tyroshia Walker, called 911 and reported that Black had beaten her up that morning in the apartment and that he had a gun. Toward the end of her 911 call, Walker told the dispatcher that she intended to return to the apartment with her mother in order to retrieve her clothing and that the two women would wait outside the apartment, in a white Ford pickup truck, for police to arrive. Officer Rodriguez was dispatched to the scene to meet the women. When he arrived at the apartment a few minutes later there were no signs of Walker, her mother, or the truck. Rodriguez contacted Officer Kikkert, who was already on his way to the apartment, and directed him to stop by the grocery store from which Walker had made her phone call. Kikkert checked the store for signs of Walker but, finding none, he continued to the apartment. . . .

BERZON, Circuit Judge, dissenting:
I dissent. Because I believe the officer’s warrantless search of the apartment cannot be justified under the Fourth Amendment’s “exigent circumstances” exception to the warrant . . .

The Ninth Circuit Court of Appeals today released an amended order in USA v. LENCE, No. 05-30236, a criminal appeal. The panel consisted of Diarmuid F. O’Scannlain, Susan P. Graber, and Carlos T. Bea, Circuit Judges.

O’SCANNLAIN, Circuit Judge:
We must decide whether a criminal defendant has a right to be resentenced by his original sentencing judge on remand following Booker error. I In June 2002, a jury convicted John Lence, an attorney and certified public accountant, of fourteen counts of bank fraud and one count of conspiracy to commit bank fraud. Chief Judge Donald W. Molloy presided at Lence’s trial and sentencing and calculated a base offense level of 6 with enhancements for amount of loss, more than minimal planning, and abuse of trust, resulting in an adjusted offense level of 20 and a sentencing range of 33-41 months. Chief Judge Molloy granted a downward departure because he termed Lence’s offense “outside of the heartland.” He also considered Lence’s relationship with his children and the loss of Lence’s law and certified public accountant licenses. He imposed a sentence of 24 months, the bottom of the sentencing range after the downward departure, a $7,500 fine, and three years of supervised release, stating at the time:
[I]t’s probably not the sentence I would give you, if I didn’t have the guidelines; I would give a different sentence. But under the circumstances, I’m going to give you a sentence at the lowest end of the guidelines that I can, based upon the counts of conviction and the determinations that I have made over the objections of the government and over your objec. . .

The opinion filed July 27, 2006, is hereby ordered amended as follows:
Slip Op. at 8422: Delete the old Section II.B, which comprises ¶¶ 3-4 and note 2 (from “That being said” to “original sentencing judge.”) Slip Op. at 8422: Insert a new Section II.B, which reads as follows:
“That being said, we have not yet decided who should preside at a full resentencing hearing on remand following Booker error. We believe the proper course is for the original sentencing judge to conduct the resentencing, particularly . . .