The Ninth Circuit Court of Appeals today released an opinion in APPLIED INFROMATION v. EBAY INC, No. 05-56123, a federal appeal. The panel consisted of Raymond C. Fisher and Richard R. Clifton, Circuit Judges, and Jeremy D. Fogel, District Judge..

FISHER, Circuit Judge:
This appeal requires us to clarify what an owner of a federally registered trademark needs to establish in order to mount an infringement action against a user of the trademarked name on goods or services that are not the same as those specified in the owner’s trademark registration. Applied Information Sciences Corp. (AIS) owns the trademark “SmartSearch” for certain computer related search functions, and claims that eBay, Inc. (eBay) uses the name “Smart Search” for its Internet auction website, which AIS contends will be confused with its “SmartSearch” product. The district court rejected the claim, granting summary judgment to eBay, and AIS now appeals. eBay cross-appeals the district court’s order denying attorney’s fees to eBay as the prevailing party. We affirm both the district court’s grant of summary judgment and the denial of attorney’s fees. I. Background AIS is a vendor of specialized software. In 1994, AIS applied to register a trademark, “SmartSearch,” and in 1998, . . .

The Ninth Circuit Court of Appeals today released an opinion in LEVINA v. SAN LUIS COASTAL, No. 06-55179, a federal appeal. The panel consisted of Diarmuid F. O’Scannlain and Milan D. Smith, Jr., Circuit Judges, and Michael W. Mosman, District Judge.

MOSMAN, District Judge:
Defendant-Appellee San Luis Coastal Unified School District (”School District”) filed an administrative complaint under the Individuals with Disabilities Education Act of 2004 (”IDEA”) against Plaintiff-Appellant Tatyana Levina when she refused to consent to an Individualized Education Plan (”IEP”) for her minor son. After the administrative Hearing Officer dismissed the School District’s administrative complaint without prejudice, Ms. Levina filed a complaint in district court under 20 U.S.C. § 1415(i)(2)(A). Ms. Levina appeals the district court’s grant of summary judgment in the School District’s favor. We dismiss for lack of jurisdiction. I. Background and Prior Proceedings In 2005, the School District developed an IEP for Ms. Levina’s minor, disabled son. She would not consent to the . . .

The Ninth Circuit Court of Appeals today released an opinion in BATES v. UPS, No. 04-17295, a federal appeal. The panel consisted of Alex Kozinski, Chief Judge, Mary M. Schroeder, Stephen Reinhardt, Pamela Ann Rymer, Michael Daly Hawkins, Sidney R. Thomas, Barry G. Silverman, M. Margaret McKeown, Raymond C. Fisher, Ronald M. Gould, Richard A. Paez, Marsha S. Berzon, Richard R. Clifton, Milan D. Smith, Jr., and Sandra S. Ikuta, Circuit Judges.

McKEOWN, Circuit Judge:
This appeal under the Americans with Disabilities Act (ADA) requires us to consider the intersection of a safetybased qualification standard and the “business necessity” defense. United Parcel Service (UPS) imposes a Department of Transportation (DOT) hearing standard on all package-car drivers, even though the DOT standard is federally mandated only for higher-weight vehicles. A class of hearing-impaired UPS employees and applicants who cannot meet the DOT hearing requirement challenges UPS’s policy under Title I of the ADA, 42 U.S.C. §§ 12101-12213, the California Fair Employment and Housing Act (FEHA), Cal. Gov’t Code §§ 12900-12996, and the Unruh Civil Rights Act (Unruh Act), Cal. Civ. Code § 51. Bates accepts, as he must, that UPS may lawfully exclude individuals who fail the DOT test from positions that would require them to drive DOT-regulated vehicles, i.e., vehicles exceeding a gross vehicle weight rating (GVWR) of 10,000 pounds. See Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 570 (1999). Bates contends, however, that UPS may not lawfully exclude hearing-impaired individuals from consideration for positions that involve vehicles whose GVWR is less than 10,001 pounds. After a bench trial on liability, the district court found UPS liable on all of Bates’s claims, enjoined UPS from using the blanket qualification standard, and required individualized assessment of candidates for the package-car driver positions. The court founded its analysis on the pattern-or-practice burden-shifting framework of International Brotherhood of. . .

BERZON, Circuit Judge, with whom Circuit Judge REINHARDT joins, concurring in part, dissenting in part, and concurring in the judgment:
I would approach the “qualified individual” and Department of Transportation (DOT) hearing standard inquiries differently than does the majority, but do agree that this case must be remanded for re-examination under the majority’s statement of the business necessity framework. I therefore concur only in Parts I, II, III(A)-(C)(1), III(D), III(E), IV(B), and V of the majority opinion, and in the judgment. nia. Now that the decision in Green has been issued, if the California Supreme Court reaches a different conclusion in Williams than we did in Bass, our holding here will not be the law of the case. See Dimidowich v. Bell & Howell, 803 F.2d 1473, 1482 (9th Cir. 1986) (writing that a federal appellate court “will follow a state supreme court’s interpretation of its own statute in the absence of extraordinary circumstances”); Ingle v. Circuit City, 408 F.3d 592, 594 (9th Cir. 2005) (holding that a district court abuses its discretion in applying the law of the case doctrine if “an intervening change in the law [has] occurred”). Instead, the California Supreme Court decision will be binding on any later proceedings as they relate to Bates’s Unruh Act claim. . . .

The Ninth Circuit Court of Appeals today released an opinion in ESTRADA-RODRIGUEZ v. MUKASEY, No. 06-75064, an administrative appeal. The panel consisted of Dorothy W. Nelson and Carlos T. Bea, Circuit Judges, and Louis F. Oberdorfer, Senior Judge.

D.W. NELSON, Senior Circuit Judge:
Oscar Alejandro Estrada-Rodriguez seeks review of the Board of Immigration Appeals’ (”BIA”) determination that he . . .

The Ninth Circuit Court of Appeals today released an order in WILLIAMS v. ALAMEDIA, No. 05-55604, a prisoner appeal. The panel consisted of Kim McLane Wardlaw, Carlos T. Bea, and N. Randy Smith, Circuit Judges.

Keith Lee Williams appeals the district court’s order granting Edward Alameida’s Rule 12(b)(6) motion to dismiss for failure to state a claim. Williams sued Alameida, the Director of the California Department of Corrections (”CDC”), under 42 U.S.C. § 1983, alleging he was held in CDC custody past the date of his sentence for failure to submit a DNA sample in violation of the Fourth Amendment, the Ex Post Facto Clause, and the Due Process Clause of the United States Constitution. On November 5, 2007, Alameida moved to dismiss this appeal under the fugitive disentitlement doctrine. In support of this motion, Williams’s parole agent declared that Williams was released from prison and placed on parole on June 2, 2005, but failed to report to his parole agent. An arrest war16867 . . .

The Ninth Circuit Court of Appeals today released an opinion in CENTER FOR BIOLOGICAL DIVERSITY v. LOHN, No. 05-35638, an appeal in a civil action against the United States. The panel consisted of Alfred T. Goodwin, Diarmuid F. O’Scannlain, and Raymond C. Fisher, Circuit Judges.

O’SCANNLAIN, Circuit Judge:
We are asked to decide whether the federal government’s policy for listing killer whales under the Endangered Species Act is invalid. I The Center for Biological Diversity (”Center”), along with eleven co-petitioners not parties to this appeal, petitioned the National Marine Fisheries Service (”Service”) to list the Southern Resident killer whale (”Southern Resident”) as an endangered species under the Endangered Species Act (”ESA”), 16 U.S.C. §§ 1531-1544. Applying its Distinct Population Segment Policy (”DPS Policy”) for listing endangered species under the ESA, the Service issued a proposed ruling that concluded listing the Southern Resident was “not warranted” because the Southern Resident was not “significant” to its taxon. See 67 Fed. Reg. 44,133 (July 1, 2002). . . .

The petition for panel rehearing is GRANTED. The opinion filed on April 26, 2007, and appearing at 483 F.3d 984 (9th Cir. 2007) is withdrawn. The superseding opinion will be filed concurrently with this order. No further petitions for rehearing or rehearing en banc may be filed. OPINION O’SCANNLAIN, Circuit Judge:
We are asked to decide whether the federal government’s policy for listing killer whales under the Endangered Species Act is invalid. I The Center for Biological Diversity (”Center”), along with eleven co-petitioners not parties to this appeal, petitioned the National Marine Fisheries Service (”Service”) to list the Southern Resident killer whale (”Southern Resident”) as an endangered species under the Endangered Species Act (”ESA”), 16 U.S.C. §§ 1531-1544. Applying its Distinct Population Segment Policy (”DPS Policy”) for listing endangered species under the ESA, the Service issued a proposed ruling that concluded listing the Southern Resident was “not warranted” because the Southern Resident was not “significant” to its taxon. See 67 Fed. Reg. 44,133 (July 1, 2002). . . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. LOCOCO, No. 05-50550, a criminal appeal. The panel consisted of Alex Kozinski, Chief Judge, A. Wallace Tashima and M. Margaret McKeown, Circuit Judges.

PER CURIAM:
Defendants pled guilty to conspiring to possess and distribute cocaine. We consider the government’s application for the wiretap on which its case was built, an allegation of prosecutorial misconduct and the constitutionality of defendants’ sentences. [1] 1. The wiretap application describes the investigative techniques the police tried and explains how they failed: Confidential informants were either incarcerated, unwilling to testify or else distrusted by the targets; efforts to recruit other informants failed; and attempts to gather evidence by other means–including direct and hidden surveillance, trash searches and searches of paroled gang members’ homes-yielded nothing. Defendants haven’t shown any basis to doubt the application’s representations. “Law enforcement officials need not exhaust every conceivable investigative technique . . .

The Ninth Circuit Court of Appeals today released an opinion in ARTEAGA v. MUKASEY, No. 05-70368, an administrative appeal. The panel consisted of Stephen S. Trott and Johnnie B. Rawlinson, Circuit Judges, and Samuel P. King, Senior Judge.

TROTT, Circuit Judge:
Abraham Lincoln, one of our nation’s wisest presidents and most able lawyers, had an incisive way of illustrating a point about the meaning of language as used in the law. He would ask, “If you call a dog’s tail a leg, how many legs does a dog have?” He would then reject the usual answer “five” with the statement that calling a tail a leg doesn’t make it a leg, “the answer is still four.” We find useful in Part IV A. of this opinion President Lincoln’s admonition not to become misled by . . .

The Ninth Circuit Court of Appeals today released an opinion in TAHARA v. MATSON TERMINALS, No. 05-17306, a federal appeal. The panel consisted of Diarmuid F. O’Scannlain, A. Wallace Tashima, and Milan D. Smith, Jr., Circuit Judges.

MILAN D. SMITH, JR., Circuit Judge:
Plaintiff-appellant Quentin Tahara appeals the amount of attorney’s fees awarded to him by the district court under the . . .

The Ninth Circuit Court of Appeals today released an opinion in GADDA v. THE STATE BAR OF CALIFORNIA, No. 06-15344. The panel consisted of Jerome Farris, Robert R. Beezer, and Sidney R. Thomas, Circuit Judges.

BEEZER, Circuit Judge:
Miguel Gadda (”Gadda”) appeals, pro se, the district court’s order granting defendants’ motions to dismiss and for judgment on the pleadings. Because the retroactive application of the 2003 amendment to section 6080.10 of the Califor. . .