The Ninth Circuit Court of Appeals today released an opinion in NELSON v. NASA, No. 07-56424, an appeal in a civil action against the United States. The panel consisted of David R. Thompson and Kim McLane Wardlaw, Circuit Judges, and Edward C. Reed, Jr., District Judge.

WARDLAW, Circuit Judge: The named appellants in this action (”Appellants”) are scientists, engineers, and administrative support personnel at the Jet Propulsion Laboratory (”JPL”), a research laboratory run jointly by the National Aeronautics and Space Administration (”NASA”) and the California Institute of Technology (”Caltech”). Appellants sued NASA, Caltech, and the Depart. . .

Our prior opinion filed on January 11, 2008, and reported at 512 F.3d 1134 is vacated concurrent with the filing of a new opinion today. The petition for panel rehearing and the petition for rehearing en banc are denied as moot. The parties may file new petitions for rehearing and rehearing en banc in accordance with the Federal Rules of Appellate Procedure. IT IS SO ORDERED. OPINION WARDLAW, Circuit Judge: The named appellants in this action (”Appellants”) are scientists, engineers, and administrative support personnel at the Jet Propulsion Laboratory (”JPL”), a research laboratory run jointly by the National Aeronautics and Space Administration (”NASA”) and the California Institute of Technology (”Caltech”). Appellants sued NASA, Caltech, and the Depart. . .

The Ninth Circuit Court of Appeals today released an order in LEPPIND v. MUKASEY, No. 04-75903, an administrative appeal. The panel consisted of Kim McLane Wardlaw and Sandra S. Ikuta, Circuit Judges, and Jeremy D. Fogel, District Judge.

This case is referred to the Ninth Circuit Mediation Office to explore a possible resolution through mediation. Because a majority of the panel has concluded that an intervening case, Bona v. Gonzales, 425 F.3d 663 (9th Cir. 2005), is relevant to the determination of the petition, but would remand for the Board of Immigration Appeals (BIA) to have the opportunity, which it previously did not, to apply the principles of Bona to the facts presented in this petition in the first instance, the majority accedes to the government’s preference for mediation over remand. Given the parties’ agreement to alternative dispute resolution, “the strong judicial policy that favors settlements of disputes,” Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 939 (9th Cir. 2007) (internal quotation marks omitted), and that the Ninth Circuit Mediation Office has proven remarkably effective in resolving, to the satisfaction of both petitioners and the government, issues arising in immigration petitions, this mediation referral order meaningfully serves the goals of judicial economy and fairness. To fully decide the question of Bona’s applicability, as our dissenting colleague would desire, would be to substitute ourselves for the BIA as the decisionmaking body. See INS v. Ventura, 537 U.S. 12, 16-17 (2002). Submission of this matter is therefore vacated until 60 days from the date of this order. Vacatur may be extended by further order of this panel or the Chief Circuit Mediator. IT IS SO ORDERED.. . .

IKUTA, Circuit Judge, dissenting:
At oral argument, the government agreed to mediation only if the panel determined that Bona v. Gonzales, 425 F.3d 663 (9th Cir. 2005), impacted this case. The panel now submits this case to mediation without explaining why Bona is relevant. Because in my view the change in the law affected by Bona has no impact on Leppind’s case, I dissent from the order referring this case to mediation. I In Bona, an arriving alien in a removal proceeding attempted to file a new application for adjustment of status with the immigration judge (IJ). (The application filed by the petitioner before she was put in removal proceedings had been denied.) The IJ held that 8 C.F.R. § 245.1(c)(8) precluded him from considering the petitioner’s application. That regulation stated, in pertinent part:
(c) Ineligible aliens. The following categories of aliens are ineligible to apply for adjustment of status to that of a lawful permanent resident alien under section 245 of the Act:
. . . (8) Any arriving alien who is in removal proceedings . . . . 8 C.F.R. § 245.1 (2005). The petitioner challenged this regulation as conflicting with 8 U.S.C. § 1255(a), which provides that “[t]he status of an alien who was inspected and admitted or paroled into the United States . . . may be adjusted by the. . .

The Ninth Circuit Court of Appeals today released an opinion in USA v. MENDOZA, No. 06-50447, a criminal appeal. The panel consisted of Thomas G. Nelson, Richard A. Paez, and Jay S. Bybee, Circuit Judges.

T.G. NELSON, Circuit Judge:
Paul Mendoza appeals his convictions on two counts of subscribing to a false income tax return in violation of 26 U.S.C. § 7201. Mendoza contends that the eight-year delay between his indictment and his arrest violated his Sixth Amendment right to a speedy trial. He further contends that the district court plainly erred when it ordered restitution during sentencing. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse. I. Background Mendoza’s conviction was based on two income-tax returns that underreported his income. Mendoza worked for a management company in Los Angeles, California called Nobel Marketing Company where he was in charge of administering Nobel Medical Clinic. As the administrator, Mendoza was authorized to deposit clients’ checks into the clinic’s bank accounts, but he was not a signatory on the accounts. During 1989 and 1990, Mendoza embezzled approximately $285,000 from the clinic by personally collecting some of the clinic’s checks and depositing them into his own bank accounts or cashing the checks at a check-cashing company. The money from these transactions was not reported on his 1989 or 1990 tax returns. During the Internal Revenue Service’s (”IRS”) investigation of Mendoza’s failure to report the money on his income . . .

The opinion and concurrence filed May 8, 2008, slip op. 5135, are amended as follows:
1. At slip op. 5144, lines 7-12, delete the following sentences:
However, the government in that case took additional steps beyond simply entering the defendant’s arrest warrant into the law enforcement system. The government contacted Unsolved Mysteries and America’s Most Wanted, which aired segments on the case over twenty times in the United States and at least once in Mexico. Id. at 1115. Replace with the following sentence:
However, the government in that case took additional steps beyond simply entering the defendant’s arrest warrant into the law enforcement database system and the district court specifically found that the . . .

BYBEE, Circuit Judge, concurring:
Appellant Paul Mendoza was found guilty by a jury of his peers of filing false tax returns for failing to report over $285,000 in funds he embezzled from his employer. Today we are forced to overturn his conviction. I join the majority opinion because I believe we dutifully applied Doggett v. United States, 505 U.S. 674 (1992); I write separately because the facts before us demonstrate how Doggett requires a presumption unsupported by the record. Because the government did not make even a single effort to notify Mendoza of his indictment, we must find the government responsible for the constitutionally impermissible eight-and-a-half-year delay between Mendoza’s indictment and arrest. Nevertheless, we might not have been required to set aside Mendoza’s jury verdict but for Doggett’s requirement that we presume that the delay prejudiced Mendoza. In this case, it appears Mendoza suffered no prejudice. Mendoza was a manager at a medical clinic in Los Angeles, where his duties included depositing clients’ checks to the clinic’s bank account. Instead, Mendoza kept the money for himself. Over a two year period, Mendoza managed to embezzle $285,135.26, none of which he chose to report to the IRS. After being served, through his attorney, with a subpoena to provide handwriting and fingerprint exemplars for. . .

The Ninth Circuit Court of Appeals today released an opinion in CLEMENS v. DAIMLERCHRYSLER, No. 06-56410, a diversity appeal. The panel consisted of William C. Canby, Jr. and Jay S. Bybee, Circuit Judges, and Roger L. Hunt, District Judge.

CANBY, Circuit Judge:
Keith Clemens brought this class action against DaimlerChrysler Corporation alleging that DaimlerChrysler breached express and implied warranties and committed fraud in the sale of Dodge Neon cars containing defective head gaskets from 1995 to 1998. The district court granted DaimlerChrysler’s Rule 12(b)(6) motion to dismiss the warranty claims. It also granted DaimlerChrysler’s motion for summary judgment on the fraud claims, holding that one claim was barred by the statute of limitations and the other failed on the merits. Clemens appealed all of these rulings, and we affirm. FACTS Clemens bought a new 1998 Dodge Neon from an independent Dodge dealership. After driving the car for approximately 50,000 miles, Clemens noticed that the engine had begun to leak oil. The oil leak worsened, and when the odometer reached 60,000 miles, Clemens performed some research on the internet and learned that head gasket failure (and resulting oil leaks) were a common problem on this model automobile. In September 2002, a Chrysler-authorized service center referred Clemens to a customer service hotline, which denied his request for a repair discount. Rather than pay for the repair, Clemens replaced the head gasket himself at a cost of $70, videotaping the repair process. He claims that, had he known the head gasket was likely to fail, he would not have purchased a Dodge Neon. . . .

The Ninth Circuit Court of Appeals today released an amended order in USA v. CARUTO, No. 07-50041, a criminal appeal. The panel consisted of Susan P. Graber and Marsha S. Berzon, Circuit Judges, and Claudia Wilken, District Judge.

WILKEN, District Judge:
Elide Caruto was convicted of one count of importation of cocaine in violation of 21 U.S.C. §§ 952 and 960 and one count of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841. She argues that her trial was fundamentally unfair because the district court allowed the prosecution to emphasize in its closing argument omissions in the brief post-arrest statement she gave before invoking her Miranda rights. This closing argument, she contends, improperly penalized her for cutting the interview short by exercising her Miranda rights. We hold that the prosecutor’s argument, emphasizing omissions from Caruto’s post-arrest statement that exist only because she invoked her right to counsel under Miranda, constitutes a violation of Caruto’s right to due process. I. On the evening of February 6, 2006, Caruto was arrested at the Calexico, California port of entry when Customs and Border Protection officers discovered, in the gas tank of her truck, thirty-two packages containing a total of seventy-five pounds of cocaine. Late that night or early the next morning, Immigration and Customs Enforcement Special Agents Matthew Kelley and Tim Ballard interviewed Caruto. After the agents read Caruto her Miranda rights, she signed a waiver and agreed to make a statement. Five to seven minutes later, Caruto invoked her right to counsel, and the interview ended. The only record of the interview is a set of . . .

The opinion filed on May 12, 2008, is amended as follows: On slip opinion page 5230, delete footnote 2. On slip opinion page 5241, lines 1-2, replace the sentence, “In fact, Caruto entered a continuing objection and was instructed by the court to stop objecting.” with “In fact, Caruto entered four objections, all of which were overruled, to the prosecutor’s discussion of Caruto’s omissions, and those objections were not limited to `discrete comments.’ ” . . .

The Ninth Circuit Court of Appeals today released an opinion in BARONA BAND OF MISSION INDIANS v. YEE, No. 06-55918, a federal appeal. The panel consisted of Harry Pregerson, Glenn L. Archer, Jr., and Kim McLane Wardlaw, Circuit Judges.

WARDLAW, Circuit Judge:
We must decide whether a non-Indian contractor who purchases construction materials from non-Indian vendors, which are later delivered to a construction site on Indian land, is exempt from state sales taxes. The California State Board of Equalization (the “Board”) appeals the grant of summary judgment in favor of the Barona Band of Mission Indians (the “Tribe”) in which the district court determined that the balancing test set forth in White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980), preempted a state sales tax lev. . .

The Ninth Circuit Court of Appeals today released an opinion in RYAN v. COMMISSIONER OF SOCIAL SECURITY, No. 06-15291, an appeal in a civil action against the United States. The panel consisted of Betty B. Fletcher, William C. Canby, Jr., and Johnnie B. Rawlinson, Circuit Judges.

B. FLETCHER, Circuit Judge:
Plaintiff-Appellant Karen L. Ryan appeals the district court’s order granting summary judgment in favor of the Defendant-Appellee, upholding the Commissioner of Social Security’s decision denying her application for Title II disability benefits. The Administrative Law Judge (”ALJ”) did not give full weight to the opinions of two examining psychologists, characterizing their opinions as too heavily based on Ryan’s “subjective complaints,” and as being inconsistent with the records of Ryan’s treating physician, a family practitioner. There was no inconsistency. The records of Ryan’s treating physician, if anything, supported the examining psychologist’s assessment that Ryan was incapable of maintaining a regular work schedule. Because substantial evidence does not support the ALJ’s denial of disability benefits, we reverse. . . .

RAWLINSON, Circuit Judge, dissenting:
I respectfully dissent because, in my view, substantial evidence supports the decision of the Administrative Law Judge (ALJ). Unlike the majority, I am persuaded that the ALJ gave proper weight to the opinions of all medical providers. For purpose of this appeal, Social Security claimant Karen Ryan (Ryan) began visiting her treating physician, Dr. Monigatti-Lake regarding “her situation at work” on October 18, 1999. Ryan informed Dr. Monigatti-Lake that Ryan was on administrative leave following a random drug test during which she tested “positive for THC and apparently some amphetamines.” Dr. Monigatti-Lake diagnosed Ryan as experiencing a “stressful situation due to Ryan’s work difficulties,” which occurred “a couple of months” before “her 5 yr. retirement contract.” Although Ryan expressed optimism about continuing with her employment, it was not to be. Ryan was terminated, and visited Dr. Monigatti-Lake on December 14, 1999, complaining of feelings of immobility, panic attacks, [and] crying spells.” Ryan reported that Effexor she was taking was not. . .

The Ninth Circuit Court of Appeals today released an opinion in BUTLER v. CURRY, No. 07-56204, a habeas corpus appeal. The panel consisted of Cynthia Holcomb Hall, Susan P. Graber, Marsha S. Berzon, Circuit Judges.

BERZON, Circuit Judge:
Frank Butler alleged in his petition for writ of habeas corpus that his Sixth Amendment rights were violated when the California state trial court imposed an “upper term” sentence based on two aggravating factors not proved to a jury beyond a reasonable doubt. The district court, relying on Cunningham v. California, 127 S. Ct. 856 (2007), agreed, and granted the writ. The State contends that Cunningham, which struck down California’s determinate sentencing law (”DSL”), announced a “new rule” that cannot be applied on collateral review. In the alternative, the State maintains that the requirements for habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996 (”AEDPA”) have not been met, and that, even if they were, there was no constitutional violation. We conclude that the result in Cunningham was clearly dictated by the Supreme Court’s Sixth Amendment case law, in particular by Blakely v. Washington, 542 U.S. 296 (2004), decided before Butler’s conviction became final. The state court decision in Butler’s case was contrary to this clearly established law. Further, Butler’s constitutional rights were violated when the statutory maximum for his crime was increased on the basis of facts found by a judge by a preponderance of the evidence, rather than admitted or found by a jury beyond a reasonable doubt. We cannot, however, determine whether this violation was harmless in the absence of further factfinding about what evidence was presented to the state trial court judge in support of the allegation that Butler was on probation at the time of his crime. For that reason, we remand to the district court for an evidentiary hearing. . . .

The Ninth Circuit Court of Appeals today released an opinion in CARVER v. LEHMAN, No. 06-35176, a prisoner appeal. The panel consisted of Warren J. Ferguson, Stephen Reinhardt, and Milan D. Smith, Jr., Circuit Judges.

REINHARDT, Circuit Judge:
This case presents the question whether Washington state law creates a liberty interest in an inmate’s early release into community custody that is protected under the Due Process Clause of the Fourteenth Amendment. We hold that it does. We conclude, however, that this right was not clearly established at the time of the facts giving rise to this case. We therefore affirm the district court’s grant of qualified immunity. I. Factual and Procedural Background In August 1999, Joseph Dale Carver pled guilty to child molestation in the third degree. He was sentenced to fifty-four months of confinement in the custody of the Washington State Department of Corrections (”DOC” or “Department”). Because he was a sex offender, state law also required that Carver be sentenced to a term of community custody to begin “either upon completion of the term of confinement or at such time as [he] is transferred to community custody in lieu of earned release[.]” See WASH. REV. CODE § 9.94A.710(1) (2006). He was sentenced to a thirty-six-month period of community custody. . . .

MILAN D. SMITH, JR., Circuit Judge, concurring in the judgment:
I respectfully part ways with the majority. I do not believe that Washington State law creates a Fourteenth Amendment . . .

The Ninth Circuit Court of Appeals today released an order in INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS SO. v. CITY OF LOS ANGELES, No. 01-56579, a civil rights appeal. The panel consisted of Harry Pregerson, Stephen S. Trott, and Richard A. Paez, Circuit Judges.

We certify the question set forth in Part II of this order to the California Supreme Court. The answer to the certified question depends upon California law. The California Supreme Court’s answer will be determinative of the appeal presently before us. We find no clear controlling precedent in the decisions of the California Supreme Court. We therefore respectfully request that the California Supreme Court answer 6475 . . .