The Ninth Circuit Court of Appeals today released an opinion in EAST BAY AUTOMATIVE v. NLRB, No. 04-74997, an administrative appeal. The panel consisted of Robert R. Beezer, Diarmuid F. O’Scannlain, and Stephen S. Trott, Circuit Judges.

O’SCANNLAIN, Circuit Judge:
We must decide whether to enforce an affirmative bargaining order issued by the National Labor Relations Board after nearly eight years of litigation involving an automotive dealer and a union in Oakland, California. I East Bay Automotive Council and its affiliated local unions (”the Union”), and M&M Automotive Group, Inc., d/b/a Broadway Volkswagen (”the Employer”), appeal the National Labor Relations Board’s (”the Board”) decision to issue an affirmative bargaining order pursuant to a labor dispute between the Union and the Employer. The Board seeks enforcement of its order. The Employer is an automotive dealer in Oakland, California. On December 15, 1997, the Union was certified as the exclusive collective bargaining representative of approximately 16 service and parts department employees at the dealer. On January 20, 1998, the parties began collective bargaining for their first contract. During the year 1998, the parties met on approximately 12 occasions. The Union was represented at the bargaining table by business representatives Don Crosatto, Craig Andrews, Ron Paredes, and by employee representatives Tim Finnerty and Gunnar Peterson. The Employer was represented by its owners, Mike Murphy and Bill Martin. The final meeting between the parties was November 19, 1998. By that time, Martin had died, and Murphy attended the session alone. At the conclusion of the negotiations, the parties had come to tentative agreements but had not reached a contract. During the negotiations, the Employer unilaterally and without informing the Union gave wage increases and promotions to . . .

The Ninth Circuit Court of Appeals today released an en banc opinion in SANCHEZ v. COUNTY OF SAN DIEGO, No. 04-55122, a civil rights appeal. The panel consisted of Andrew J. Kleinfeld, A. Wallace Tashima, and Raymond C. Fisher, Circuit Judges.

Judge Kleinfeld voted to deny the petition for rehearing en banc, and Judge Tashima so recommended. Judge Fisher voted to grant the petition for rehearing en banc. The full court was advised of the petition for rehearing en banc. A judge of the court called for a vote on whether to rehear the matter en banc. On such a vote, a majority of the active judges failed to vote in favor of en banc rehearing. The petition for rehearing en banc is DENIED. PREGERSON, Circuit Judge, dissenting, joined by REINHARDT, WARDLAW, W. FLETCHER, FISHER, PAEZ, and BERZON, Circuit Judges:
I dissent from the denial of the petition for rehearing en banc. I disagree with the majority’s decision and strongly believe that this case requires en banc review. This case strikes an unprecedented blow at the core of Fourth Amendment protections. The majority opinion clings to Wyman v. James, 400 U.S. 309 (1971), asserting that it directly controls this case. This is unsupportable for three reasons. First, as clearly outlined in Judge Fisher’s dissent, the program upheld in Wyman was significantly different in scope and goal from San Diego’s program. Second, allowing Wyman to constrict the bounds of our Fourth Amendment jurisprudence ignores over thirty-five years of intervening law. Third, allowing this opinion to stand is an assault on our country’s poor as we require them to give up their rights of privacy in exchange for essential public assistance. I. Wyman v. James Does Not Control This Case “Project 100%” is a mandatory part of San Diego’s public assistance program. The San Diego District Attorney’s Public . . .

PREGERSON, Circuit Judge, dissenting, joined by REINHARDT, WARDLAW, W. FLETCHER, FISHER, PAEZ, and BERZON, Circuit Judges:
I dissent from the denial of the petition for rehearing en banc. I disagree with the majority’s decision and strongly believe that this case requires en banc review. This case strikes an unprecedented blow at the core of Fourth Amendment protections. The majority opinion clings to Wyman v. James, 400 U.S. 309 (1971), asserting that it directly controls this case. This is unsupportable for three reasons. First, as clearly outlined in Judge Fisher’s dissent, the program upheld in Wyman was significantly different in scope and goal from San Diego’s program. Second, allowing Wyman to constrict the bounds of our Fourth Amendment jurisprudence ignores over thirty-five years of intervening law. Third, allowing this opinion to stand is an assault on our country’s poor as we require them to give up their rights of privacy in exchange for essential public assistance. I. Wyman v. James Does Not Control This Case “Project 100%” is a mandatory part of San Diego’s public assistance program. The San Diego District Attorney’s Public . . .

KOZINSKI, Circuit Judge, dissenting from the order denying the petition for rehearing en banc:
I dissent for the reasons expressed in Judge Fisher’s trenchant panel dissent. . . .

The Ninth Circuit Court of Appeals today released an opinion in DETABALI v. ST. LUKES HOSPITAL, No. 05-15591, a federal appeal. The panel consisted of Ronald M. Gould and Milan D. Smith, Jr., Circuit Judges, and Alfred V. Covello, District Judge.

MILAN D. SMITH, JR., Circuit Judge:
Plaintiff-Appellant Lorraine Detabali (Detabali) appeals the district court’s (1) ruling that her California Fair Employment . . .

The Ninth Circuit Court of Appeals today released an opinion in SEA HAWK v. EXXON CORP., No. 05-35468, a federal appeal. The panel consisted of Susan P. Graber, Richard A. Paez, and Carlos T. Bea, Circuit Judges.

GRABER, Circuit Judge:
Plaintiff Sea Hawk Seafoods, Inc., operates a seafood processing business on Prince William Sound in Valdez, Alaska. Plaintiff sued Defendants, Exxon/Mobil Corp. and Exxon Shipping Co., under Alaska state law for business losses resulting from the Exxon Valdez oil spill. The district court dismissed Plaintiff’s claims as preempted by federal admiralty law. We reversed the dismissal of Plaintiff’s state law claims. Baker v. Hazelwood (In re Exxon Valdez), 270 F.3d 1215, 1253 (9th Cir. 2001). On remand, the parties settled all remaining issues except for one: a prejudgment interest rate. The district court determined prejudgment interest rates under federal law. On de novo review, McCalla v. Royal MacCabees Life Ins. Co., 369 F.3d 1128, 1129 (9th Cir. 2004), we reverse. As we explain below, state law supplies the rate of prejudgment interest. This case arises out of the Exxon Valdez oil spill. On March 24, 1989, Defendants’ oil tanker ran into Bligh Reef off Valdez, Alaska, and discharged 11 million gallons of oil . . .

The Ninth Circuit Court of Appeals today released an opinion in RUDOLPH INTERNATIONAL v. REALY’S,INC., No. 05-55605, a federal appeal. The panel consisted of Robert R. Beezer and Stephen Reinhardt, Circuit Judges, and Thelton E. Henderson, District Judge.

BEEZER, Circuit Judge:
In this trademark infringement case, Plaintiff Rudolph International, Inc. (”Rudolph”) appeals the district court’s grant of summary judgment to Defendant Realys, Inc. (”Realys”). The district court held that the mark “disinfectable” is generic in the parties’ line of business and cannot be the subject of trademark protection. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. I Rudolph and Realys manufacture and sell abrasive nail files and related products. California regulations required nail technicians to disinfect all instruments used on multiple customers. See Cal. Code Regs. tit. 16, § 979 (”Disinfecting NonElectrical Instruments and Equipment”), § 981(a) (”All instruments and supplies which come into direct contact with a . . .

The Ninth Circuit Court of Appeals today released an opinion in BRAZZEL v. STATE OF WASHINGTON, No. 05-36145, a habeas corpus appeal. The panel consisted of Betty B. Fletcher and M. Margaret McKeown, Circuit Judges, and William W Schwarzer, District Judge.

McKEOWN, Circuit Judge:
In this 28 U.S.C. § 2254 habeas appeal, Ernest Lee Brazzel challenges, as a violation of the Double Jeopardy Clause, his retrial on an attempted murder charge, after his first jury remained silent on that charge, and convicted him of a lesser alternative offense. Two different juries have now convicted Brazzel of the lesser offense, first degree assault. Both juries failed to reach the alternate and more serious charge of attempted murder. The framework for our analysis of this double jeopardy challenge is found in two Supreme Court cases–Green v. United States, 355 U.S. 184 (1957), and Price v. Georgia, 398 U.S. 323 (1970). In Green, the Supreme Court explained the doctrine of implied acquittal: when a jury convicts on a lesser alternate charge and fails to reach a verdict on the greater charge-without announcing any splits or divisions and having had a full and fair opportunity to do so–the jury’s silence on the second charge is an implied acquittal. 355 U.S. at 191. A verdict of implied acquittal is final and bars a subsequent prose. . .

The Ninth Circuit Court of Appeals today released an order and opinion in SAREI v. RIO TINTO, PLC, No. 02-56256, a federal appeal. The panel consisted of Raymond C. Fisher and Jay S. Bybee, Circuit Judges, and James C. Mahan, District Judge.

FISHER, Circuit Judge:
This appeal presents questions of justiciability and exhaustion in the context of the Alien Tort Claims Act, 28 U.S.C. § 1350 (”ATCA”). Plaintiffs are current or former residents of Bougainville, Papua New Guinea (”PNG”), who allege that they or their family members were the victims of numerous violations of international law as a result of defendant mining corporation Rio Tinto, PLC’s (”Rio Tinto”) Bougainville mining operations and the 10-year civil conflict that followed an uprising at the Rio Tinto mine. The plaintiffs appeal the district court’s dismissal of their lawsuit seeking redress under the ATCA, which provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. § 1350. Although several different doctrines of justiciability are at issue here — the political question doctrine, the act of state doctrine and the doctrine of international comity — all in effect provide different ways of asking one central question: are United States courts the appropriate forum for resolving the plaintiffs’ claims? The answer to this question turns in part on the weight to be given to a statement of interest submitted by the United States Department of State (”State Department”) asserting that continuation of the lawsuit “would risk a potentially serious adverse impact . . . on the conduct of [United States] foreign relations.” Rio Tinto’s cross-appeal also argues that the ATCA requires exhaustion of local remedies — yet another way of questioning whether there is a different and more appropriate forum to develop and try these claims. . . .

Rio Tinto’s petition for rehearing and for rehearing en banc is granted in part. The majority opinion and dissent filed August 7, 2006, see Sarei v. Rio Tinto, PLC, 456 F.3d 1069 (9th Cir. 2006), are hereby withdrawn. A superseding opinion and dissent will be filed concurrently with this order. Further petitions for rehearing or rehearing en banc may be filed. . . .

BYBEE, Circuit Judge, dissenting:
In Sosa v. Alvarez-Machain, the Supreme Court addressed arguments that “international law requires that before asserting a claim in a foreign forum, the claimant must have exhausted any remedies available in the domestic legal system.” 542 U.S. 692, 733 n.21 (2004). Although declining to do so in Sosa, the Court declared that it “would certainly consider this requirement in an appropriate case.” Id. This is such a case. Plaintiffs-Bougainvilleans alleged that Rio Tinto, a multinational British corporation, violated various jus cogens, including war crimes, crimes against humanity, racial discrimination, and environmental despoliation. They also allege that Rio Tinto directed these actions through the government of Papua New Guinea (”PNG”). These actions took place beginning in the early 1960s, culminating in a 10-year civil war from 1990 to 2000. See Sarei v. Rio Tinto PLC, 221 F. Supp. 2d 1116, 1121-27 (C.D. Cal. 2002). In 2001, the U.S. Department of State warned that adjudication of the BougainThis is a case of first impression in this circuit. We have not addressed the application of Sosa to exhaustion. The only issue before us in Alperin v. Vatican Bank, 410 F.3d 532 (9th Cir. 2005), cited by the majority at 4155, was whether that case should be dismissed under the political question doctrine. See id. at 538, 541 n.4 (”by agreement of the parties the district court limited its discussion to the issue of whether the Holocaust Survivors’ claims should be dismissed under the political question doctrine,” and the “viability of the Holocaust Survivors’ claims apart from the issue of the political question doctrine is not before us”). We left open the possibility of other grounds for dismissal, and opined that “[g]iven . . . a myriad of other procedural and jurisdictional hurdles, the Holocaust Survivors may indeed face an uphill battle in pursuing their claims.” Id. at 539. . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. GAMBA, No. 06-35021, a habeas corpus appeal. The panel consisted of Alfred T. Goodwin, Raymond C. Fisher, and Milan D. Smith, Jr., Circuit Judges.

MILAN D. SMITH, JR., Circuit Judge:
Justin Metuchen Gamba was convicted and sentenced for witness tampering in violation of 18 U.S.C. § 1512(b). Gamba appeals the district court’s denial of his petition for relief filed under 28 U.S.C. § 2255. Specifically, Gamba argues that the district court erred in denying his § 2255 motion because it did not find Gamba’s appellate counsel ineffective when he failed to challenge on appeal the magistrate judge’s jurisdiction to preside over closing argument without Gamba’s personal consent. We affirm because the magistrate judge had proper jurisdiction over closing argument at Gamba’s trial. Defense counsel may waive a defendant’s right to have an Article III judge conduct closing argument where the decision is one of trial tactics or strategy. FACTS AND PROCEDURAL HISTORY Gamba was charged with two counts of making false statements in violation of 18 U.S.C. § 1001, two counts of witness tampering in violation of 18 U.S.C. § 1812(b), and one count of being an accessory after the fact in violation of 18 U.S.C. § 3. All of Gamba’s charges arose from his attempts to foil the prosecution of his girlfriend on drug and gun charges. He pleaded not guilty to all charges and the case was set for jury trial. Gamba retained attorney Ed Sheehy to represent him at trial. . . .

FISHER, Circuit Judge, dissenting:
I do not quarrel with the majority’s conclusion that the district court had the authority to delegate to the magistrate judge the responsibility for presiding over the closing argument. Nor do I fault the district court for proposing to utilize the services of the magistrate judge under the circumstances here. But I do disagree that such a delegation of jurisdiction at this critical stage of the proceedings was proper without obtaining the knowing and informed consent (or acquiescence) of the defendant himself, not simply by way of a unilateral “tactical” decision by his attorney. See United States v. Maragh, 174 F.3d 1202, 1206 (11th Cir. 1999). In that respect, I respectfully dissent. I. In Gomez v. United States, 490 U.S. 858 (1989), the Supreme Court held that where the defendant had timely objected to the magistrate judge conducting voir dire, the “additional duties” a federal judge may assign to a magistrate judge under the Federal Magistrates Act (FMA) do not include the selection of a jury in a felony trial. Id. at 860, 87172. In Peretz v. United States, 501 U.S. 923 (1991), the Court reaffirmed Gomez but held that “the defendant’s consent warrants a different result.” Id. at 925. The question now before us is what constitutes the crucial “defendant’s consent.” The majority and I agree that presiding over closing arguments at a felony trial is a critical stage of the proceedings. See Peretz, 501 U.S. at 923 (stating that “those specified duties [in the Federal Magistrate Act] that were comparable to jury selection in a felony trial could be performed only with the consent of the litigants”); see also United States v. GomezLepe, 207 F.3d 623, 629 (9th Cir. 2000) (holding that conducting a jury poll that calls into question the jury’s unanimity is a critical stage of a criminal proceeding due to the possibility the presiding judge will need to exercise discretion). . . .

The Ninth Circuit Court of Appeals today released an opinion in STILWELL v. SMITH & NEPHEW INC, No. 05-15000, a diversity appeal. The panel consisted of Myron H. Bright, Dorothy W. Nelson, and Marsha S. Berzon, Circuit Judges.

BRIGHT, Circuit Judge:
Plaintiff and appellant Lisa Stilwell (”Stilwell”) sustained two broken legs in a 1995 automobile accident. During her surgical treatment and recovery, doctors twice implanted a Russell-Taylor metal reconstruction nail (”RT nail”) to stabilize a compound subtrochanteric fracture of her right femur.1 These two nails failed during the healing process, causing Stilwell pain, suffering, and disability. She brought this action against the defendant and appellee Smith & Nephew, Inc., manufacturer of the devices. Stilwell asserted claims based on strict liability, negligence, and breach of warranty. The district court rejected her claims for lack of proof of causation and ordered summary judgment in favor of Smith & Nephew. . . .

The Ninth Circuit Court of Appeals today released an order in ROSS-SIMMONS HARDWD v. WEYERHAIUSER, No. 03-35669, a federal appeal. The panel consisted of Thomas G. Nelson and Johnnie B. Rawlinson, Circuit Judges, and William W Schwarzer, Senior District Judge.

The judgment of the district court is vacated and the case is remanded to the district court for further proceedings consistent with the decision of the Supreme Court of the United States in Weyerhaeuser Co. v. Ross-Simmons, 127 S.Ct. 1069 (2007). In fulfilling this mandate, the district court may hold such hearings and enter such orders as it deems appropriate. IT IS SO ORDERED. . . .