The Ninth Circuit Court of Appeals today released an opinion in USA v. SULLIVAN, No. 06-30546, a criminal appeal. The panel consisted of Alex Kozinski and Raymond C. Fisher, Circuit Judges, and Andrew J. Guilford, District Judge.

GUILFORD, District Judge:
We consider whether Defendant-Appellant Dennis Edward Sullivan (”Sullivan”) was under federal supervised release when he failed a drug test, thus violating his supervised release terms. This determination turns on whether Sullivan’s detention in a Montana community pre-release center (”PreRelease Center”) was an “imprisonment” under 18 U.S.C. § 3624(e) (”§ 3624(e)”). We conclude that it was not an imprisonment, and the district court therefore lacked jurisdiction because Sullivan’s supervised release had expired. Facts Sullivan failed a drug test by testing positive for marijuana on August 24, 2006. The United States District Court for the District of Montana ruled this was a violation of Sullivan’s supervised release, finding that it had not expired. This supervised release arose from a 1998 federal conviction for posses. . .

The Ninth Circuit Court of Appeals today released an order in RAMADAN v. KEISLER, No. 03-74351, an administrative appeal. The panel consisted of Harry Pregerson, Michael Daly Hawkins, and Sidney R. Thomas, Circuit Judges.

The panel has voted to deny the petition for rehearing and the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc. A judge of the court requested a vote on whether to rehear the case en banc. However, the en banc call failed to receive a majority of votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35. *Peter D. Keisler is substituted for his predecessor, Alberto R. Gonzales, as Acting Attorney General of the United States, pursuant to Fed. R. App. P. 43(c)(2). 13329 . . .

O’SCANNLAIN, Circuit Judge, joined by KOZINSKI, KLEINFELD, TALLMAN, BYBEE, BEA, CALLAHAN, M. SMITH, JR., and IKUTA Circuit Judges, dissenting from the denial of rehearing en banc:
In a feat of interpretive creativity, the Court in this case has transformed a discretionary determination of an Immigration Judge (”IJ”) into a question of law, thereby claiming jurisdiction over a swath of immigration cases hitherto beyond our purview. Were such jurisdiction in fact given to us by Congress, we would be obligated to accept the task. But Congress has expressly withdrawn our power to review such discretionary determinations, and by reviewing the merits of the IJ’s ruling, the panel has transgressed the clear limits of our constitutional jurisdiction. For this reason, and because the panel’s opinion conflicts with the decisions of the seven other circuits that have considered this issue, I must dissent from our order declining to rehear this very significant case en banc. I Here, the panel addressed whether asylum claims based on changed circumstances raise “questions of law” giving rise to appellate jurisdiction under the REAL ID Act. . . .

The Ninth Circuit Court of Appeals today released an opinion in USA VBUSSELL, No. 06-50088, a criminal appeal. The panel consisted of Diarmuid F. O’Scannlain, Edward Leavy, and Consuelo M. Callahan, Circuit Judges.

O’SCANNLAIN, Circuit Judge:
We are asked to decide whether the district court properly determined the amount of intended loss for purposes of sentencing, and the amount of actual loss for purposes of restitution, resulting from convictions for bankruptcy fraud. . . .

The Ninth Circuit Court of Appeals today released an order in LI v. KEISLER, No. 04-73258, an administrative appeal. The panel consisted of Alex Kozinski, Ronald M. Gould and Consuelo M. Callahan, Circuit Judges.

We consider applications for attorney’s fees pursuant to the Equal Access to Justice Act (”EAJA”), 28 U.S.C. § 2412(d), in three immigration petitions for review. Because the applications present similar issues, we consider them together. Li v. Keisler Petitioner Li, an asylum applicant from China, filed a motion to reopen following the Immigration Judge’s (”IJ”) in absentia order of removal in his case. Petitioner asserted that he failed to appear for the hearing due to “exceptional circumstances,” consisting of a high fever, drainage from his ear, loss of balance, headache and dizziness. In the alternative, petitioner claimed that, pursuant to the Board of Immigration Appeals’ (”BIA”) decision in Matter of M-S, 22 I & N Dec. 349 (BIA 1998), he was not required to demonstrate exceptional circumstances where he did not challenge removability, but rather sought to reopen in order to apply for the discretionary relief of asylum. The IJ found that petitioner had not established exceptional circumstances and denied the motion to reopen without addressing Matter of M-S. On appeal to the BIA, petitioner argued that the IJ’s failure to address Matter of M-S denied him a full and fair hearing and violated due process. The BIA affirmed the IJ’s decision, finding that petitioner had not established exceptional circumstances and that the due process claim was groundless. After petitioner filed his opening brief, respondent moved to remand to the BIA to permit the BIA to consider petitioner’s Matter of M-S claim and other arguments petitioner raised on appeal. Our Circuit Mediator granted respondent’s . . .

The Ninth Circuit Court of Appeals today released an opinion in BOCKTING v. BAYER, No. 02-15866, a habeas corpus appeal. The panel consisted of J. Clifford Wallace, John T. Noonan, and M. Margaret McKeown, Circuit Judges.

WALLACE, Senior Circuit Judge:
Bockting appeals from the district court’s order denying his petition for a writ of habeas corpus. Bockting challenges his state convictions on charges associated with the alleged sexual abuse of his then-six-year-old step daughter. We have jurisdiction under 28 U.S.C. § 2253(a). Bockting has not demonstrated the state court’s adjudication on the merits: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings,” 28 U.S.C. § 2254(d). Therefore, we affirm the district court’s order denying his petition for writ of habeas corpus. I. Prior to his arrest, Bockting lived with his wife, Laura Bockting (Laura), his six-year-old step daughter, Autumn . . .

NOONAN, Circuit Judge, dissenting:
This appeal, as Judge Wallace accurately puts it, turns on whether the Supreme Court of Nevada unreasonably applied Idaho v. Wright, 497 U.S. 805 (1990) to the facts of this case. In its first remand of the case, the United States Supreme Court had asked the Nevada Supreme Court to consider its affirmance of Bockting’s conviction in the light of Wright. Bockting v. Nevada, 497 U.S. 1021 (1990). Our court must . . .

The Ninth Circuit Court of Appeals today released an opinion in JOHN v. YOUNGQUIST, No. 05-56125, a civil rights appeal. The panel consisted of Daniel M. Friedman, Alex Kozinski, and Ronald M. Gould, Circuit Judges.

FRIEDMAN, Circuit Judge:
This appeal challenges a district court’s denial of summary judgment dismissing a damage suit by a female school teacher against a police officer for improperly arresting her for allegedly sexually molesting a ten-year-old female student. The district court held that the officer did not have probable cause for the arrest and was not entitled to qualified immunity for his conduct. We hold, however, that the officer had probable cause for the arrest and therefore reverse the denial of summary judgment. I The basic facts, undisputed unless otherwise indicated, may be summarized as follows:
The appellee, Margaret John, a fifth-grade public school teacher, intercepted notes written by her ten-year-old student Ashley to Ashley’s friend. In the notes Ashley stated that she “hop[ed] Ms. John dies today like poisoning her or something,” and that John was “a fucken [sic] perv” and a “lesbian bitch.” Five days later, after John had shown those notes to the school principal, the latter requested a police investigation. The appellant, Eric Youngquist, a police officer with ten years experience on the city policy force, conducted the inves. . .

The Ninth Circuit Court of Appeals today released an opinion in METOYER v. SCREEN ACTORS GUILD, No. 04-56179, a federal appeal. The panel consisted of Dorothy W. Nelson, Johnnie B. Rawlinson, and Carlos T. Bea, Circuit Judges.

D.W. NELSON, Senior Circuit Judge:
In May, 2001 the Screen Actors Guild (”the Guild”) fired Dr. Patricia Heisser Metoyer (”Metoyer”), an AfricanAmerican, after PricewaterhouseCoopers (”PwC”) concluded Metoyer authorized payment in excess of $30,000 of funds available for Guild use to friends, business partners, and her husband’s production company. Metoyer responded by bringing multiple claims against the Guild, including federal race discrimination and retaliation claims under 42 U.S.C. § 1981 and state law discrimination claims under the California Fair Employment and Housing Act (”FEHA”). The district court granted summary judgment in favor of the Guild on all claims. We reverse in part and find that Metoyer has raised a triable issue of fact on all but one of the federal and state race discrimination and retaliation claims. I. FACTUAL AND PROCEDURAL BACKGROUND2 A. The Hiring Process In March 1998, Metoyer applied for employment with the Guild listing the position she desired as “Affirmative Action. . .

BEA, Circuit Judge, concurring in part and dissenting in part: Metoyer sued the Screen Actors Guild (”the Guild”) for race discrimination and retaliation after the Guild fired her.. . .

The Ninth Circuit Court of Appeals today released an opinion in THE FREECYCLE NETWORK, INC. v. OEY, No. 06-16219, a federal appeal. The panel consisted of Diarmuid F. O’Scannlain, Michael Daly Hawkins, and Kim McLane Wardlaw, Circuit Judges.

HAWKINS, Circuit Judge:
Tim Oey (”Oey”) appeals a preliminary injunction preventing him “from making any comments that could be construed as to disparage upon [The Freecycle Network]’s possible trademark and logo” and requiring that he “remove all postings from the [I]nternet and any other public forums that he has previously made that disparage [The Freecycle Network]’s possible trademark and logo.” The Freecycle Network, Inc. v. Oey, No. CV 06-173, Order at 5 (May 11, 2006) (emphasis added). We have jurisdiction under 28 U.S.C. § 1291 and, for the following reasons, vacate the injunction and remand. I. The Freecycle Network (”TFN”) is a nonprofit Arizona corporation “dedicated to encouraging and coordinating the reusing, recycling, and gifting of goods.” Through its website, http://www.freecycle.org, TFN coordinates the efforts of over 3,700 Freecycle groups worldwide. Via the local groups’ webpages, individuals can post goods they no longer want. If another member wants the item offered, an exchange is arranged between the parties and the item thus avoids the landfill. . . .

The Ninth Circuit Court of Appeals today released an opinion in SANDERS v. LOCKYERS, No. 05-15676, a federal appeal. The panel consisted of Betty B. Fletcher, Richard R. Clifton, and Sandra S. Ikuta, Circuit Judges.

CLIFTON, Circuit Judge:
This case involves an indirect legal challenge to the massive settlement agreement between the nation’s largest tobacco companies and the attorneys general of 46 states and several territories. The 1998 settlement known as the Master Settlement Agreement, or “MSA,” resolved all of these states’ and territories’ claims against those tobacco companies, which the states had sued for billions of dollars in damages related to the harmful effects of smoking. Plaintiff Steve Sanders, a smoker, alleges that cigarette prices have skyrocketed in the nine years since the MSA, and that the price increases are the result of an illegal price-fixing scheme that the MSA enabled. On behalf of a putative class of cigarette smokers, Sanders sued the Attorney General of the State of California and the four largest tobacco companies: Philip Morris USA Inc., R.J. Reynolds Tobacco Co., Brown & Williamson Tobacco Corp., and Lorillard Tobacco Co. Sanders does not allege that the MSA itself is illegal, but rather alleges that the MSA, the post-MSA price increases, and the state statutes implementing the MSA’s terms (the “implementing statutes”) are evidence of a cigarette pricefixing cartel that violates the Sherman Act, 15 U.S.C. § 1 et seq.; the Cartwright Act, Cal. Bus. & Prof. Code §§ 16720 et. . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. DEARING, No. 06-30606, a criminal appeal. The panel consisted of William C. Canby, Jr., Cynthia Holcomb Hall, and Consuelo M. Callahan, Circuit Judges.

HALL, Senior Circuit Judge:
Arthur Herbert Dearing III appeals his conviction on thirtytwo counts of aiding and abetting health care fraud, in violation of 18 U.S.C. § 1347, arising from a scheme to defraud Idaho Medicaid by submitting false billings from a mental . . .