AI-measured from their own opinions — each lever cites its cases
Deference to government powerSkepticism of government power
In Levin [3], Tallman held that the Gonzalez Act does not waive sovereign immunity for common-law battery claims against military medical personnel, protecting the government from suit. Levin v. United States ↗
Richard C. Tallman
Judge, Court of Appeals for the Ninth Circuit · Born 1953 · Oakland, CA
The case concerned whether the Hawaii Department of Education provided K.D., a child diagnosed with moderate to severe autism, a free appropriate public education (FAPE) under the Individuals with Disabilities Education Act (IDEA) by offering placement at Pearl Harbor Kai Elementary School for the 2007-08 and 2008-09 school years, rather than continuing his private placement at Loveland Academy. K.D.’s mother challenged the DOE’s individualized education programs (IEPs), sought tuition reimbursement, and argued that Loveland should be his “stay put” placement during proceedings. The Ninth Circuit affirmed the district court’s ruling upholding the hearing officer’s decision that the IEPs complied with the IDEA. The court reasoned that Pearl Harbor Kai offered appropriate special education services in a less restrictive environment, with opportunities for interaction with non-disabled peers, supported by testimony from school staff familiar with K.D.’s needs and the available programs, whereas Loveland provided no such integration.
In Alston v. Read, Hawaii prisoners sued state prison officials Read and Simmons, claiming that their sentences had been wrongly recalculated as consecutive rather than concurrent, extending their release dates by over four years and violating the Eighth and Fourteenth Amendments. The Ninth Circuit held that the officials were entitled to qualified immunity. The court reasoned that no clearly established law required officials to obtain original court records beyond those already in an inmate’s institutional file when the inmate offered no supporting evidence, the recalculation followed unambiguous state law (Haw. Rev. Stat. § 706-668.5), and officials had reasonably relied on the judgment and documents in their possession. Precedents such as Haygood and Alexander were distinguished because they involved officials who ignored evidence or refused to investigate at all.
Steven Levin sued the United States and a Navy surgeon for battery after undergoing cataract surgery, claiming he orally withdrew his prior written consent just before the procedure. The government substituted itself for the doctor under the Gonzalez Act and moved to dismiss the battery claim, arguing that the Federal Tort Claims Act preserves sovereign immunity for intentional torts like battery. The Ninth Circuit affirmed the district court’s dismissal for lack of subject-matter jurisdiction, holding that Gonzalez Act § 1089(e) does not waive the government’s sovereign immunity for common-law battery claims. The court reasoned that waivers of sovereign immunity must be unequivocally expressed in the statute and rejected the argument that individual immunity for military medical personnel must be offset by corresponding government liability, following Supreme Court precedent that such immunities can apply even when the FTCA bars recovery against the United States.
The case concerned whether Kaiser Foundation Health Plan, a Medicare Advantage insurer, was required to reimburse nearly $150,000 for out-of-network liver resection surgery that beneficiary Gaye Glaser obtained after Kaiser’s Tumor Board recommended chemoembolization instead and denied coverage for the procedure. An administrative law judge had ruled in Glaser’s favor, but the Medicare Appeals Council reversed, and the district court affirmed; the Ninth Circuit upheld that result. The court held that the regulations requiring Medicare Advantage plans to cover “urgently needed services” when network care is unavailable or inaccessible (42 C.F.R. §§ 422.112(a)(3), (a)(9), 422.113(b)(iii)) apply only in unusual or extraordinary circumstances, such as earthquakes or strikes, and not when a plan simply denies a requested treatment. It further reasoned that beneficiaries have separate appeal rights for coverage denials, and adopting a broader reading would effectively force plans to pay for any out-of-network care they refuse, contrary to the agency’s reasonable interpretation of the rules.
This case involved a federal prisoner who was expelled from the Bureau of Prisons' Residential Drug Abuse Program (RDAP) after exhibiting disruptive behavior and filed a habeas petition under 28 U.S.C. § 2241 seeking readmission and a sentence reduction. The district court reviewed the expulsion on the merits and found it was not an abuse of discretion, but the government challenged jurisdiction on appeal. The Ninth Circuit held that 18 U.S.C. § 3625 precludes judicial review under the Administrative Procedure Act of the BOP's individualized RDAP determinations made pursuant to 18 U.S.C. § 3621. It reasoned that Congress delegated broad discretion to the BOP over such matters and intended to bar APA challenges to case-specific decisions, though review remains available for claims that agency action violates the Constitution or exceeds statutory authority. The court therefore vacated the district court's judgment and remanded with instructions to dismiss for lack of jurisdiction.
The case involved John Michael Fox, who in 1996 pleaded guilty to a crack cocaine distribution charge and received a 360-month sentence based on then-mandatory Sentencing Guidelines. In 2008, Fox moved to reduce his sentence under retroactive Guidelines amendments that lowered crack cocaine offense levels, and the district court granted a substantial reduction to time served, treating the Guidelines as advisory and departing below the amended range based on factors like prison conduct. The Ninth Circuit, applying the Supreme Court's intervening decision in Dillon v. United States, reversed and remanded. The court held that sentence modification proceedings under 18 U.S.C. § 3582(c)(2) are not governed by Booker and that district courts must adhere to Policy Statement § 1B1.10, which prohibits reductions below the amended Guidelines range. The opinion reasoned that the Policy Statement is a binding interpretive rule that limits the scope of such proceedings without raising separation-of-powers concerns.
