Richard C. Tallman

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.

civil rightsfederal power

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.

criminal lawcivil rightsprocedure

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.

torts & liabilityprocedurefederal power

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.

healthcarebusiness & regulatory

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.

criminal lawprocedurefederal power

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.

criminal lawprocedure

In United States v. Mayweather, the defendant appealed his guilty plea and 60-month sentence for possessing a firearm in furtherance of drug trafficking after police entered his apartment, discovered drugs and guns, and obtained a warrant. Mayweather sought to withdraw the plea under Federal Rule of Criminal Procedure 11(d)(2)(B), arguing his counsel failed to file a suppression motion regarding an allegedly unlawful search and gave incorrect advice about sentencing exposure. The Ninth Circuit affirmed the district court's judgment, holding that Mayweather could not withdraw the plea because he was aware of the suppression issue before entering it and had the opportunity to raise it, and that his sentencing claim was contradicted by the record. The court declined to address the ineffective assistance of counsel claim on direct appeal due to an undeveloped record, preserving it for collateral review under 28 U.S.C. § 2255.

criminal lawprocedure

The case involved Global NAPs California challenging a California Public Utilities Commission (CPUC) order that interpreted an interconnection agreement between Global and another competitive local exchange carrier to set compensation rates for handling Voice-over-Internet-Protocol (VoIP) calls. The district court upheld the CPUC's decision, and Global appealed, arguing that the CPUC had exceeded its authority by effectively regulating VoIP traffic through contract interpretation. The Ninth Circuit affirmed, holding that the CPUC properly exercised its power to resolve disputes by interpreting the specific terms of the agreement at issue rather than issuing a broad rulemaking order. The court reasoned that the Telecommunications Act of 1996 requires such interconnection agreements to include reciprocal compensation arrangements, and the CPUC's case-specific interpretation did not violate limits on its authority as established in prior precedent.

business & regulatoryfederal power

The case involved consumers who alleged they were unknowingly enrolled in a discount membership program through telemarketing upsells after purchasing products, resulting in unauthorized credit card charges, and who brought a putative class action asserting claims under the federal Unordered Merchandise Statute, the Electronic Fund Transfer Act (EFTA), and state laws for fraud, conversion, and unjust enrichment. The Ninth Circuit affirmed the district court's dismissal of all federal claims, holding that the named plaintiffs failed to state a cognizable EFTA claim and thus could not represent a class. The court further ruled that intervention by alternative plaintiffs was not required because the original named plaintiffs lacked valid claims from the outset. Finally, the appeals court upheld the declination of supplemental jurisdiction over the state-law claims once the federal claims were eliminated.

business & regulatoryprocedure

The case concerned a challenge by students and advocacy groups to a Department of Education regulation under the No Child Left Behind Act that treated teachers enrolled in alternative certification programs but lacking full state certification as 'highly qualified.' The district court granted summary judgment to the Secretary of Education upholding the regulation. The Ninth Circuit reversed, holding that the regulation was inconsistent with the statute's requirement that highly qualified teachers possess full state certification. The court reasoned that the plain language of NCLB distinguishes between full certification and alternative routes, and that the regulation impermissibly expanded the statutory definition.

civil rightsfederal power

In United States v. Mayweather, the defendant appealed his guilty plea and 60-month sentence for possessing firearms in furtherance of drug trafficking under 18 U.S.C. § 924(c), arguing the district court should have allowed withdrawal of the plea due to an unfiled suppression motion and that his counsel provided ineffective assistance. The Ninth Circuit affirmed the judgment, holding that Mayweather could not show a fair and just reason for withdrawal because he knew of the potential suppression issue at the time of his plea but failed to disclose it during the Rule 11 colloquy. The court also found his claim of misunderstanding sentencing exposure contradicted by the plea agreement and colloquy, which correctly stated the five-year minimum and life maximum. On the ineffective assistance claim, the record was insufficient for direct review, leaving it for potential collateral proceedings under 28 U.S.C. § 2255.

criminal lawguns

The case involved environmental groups challenging the Bureau of Land Management's approval of a proposed land exchange with Asarco LLC that would transfer federal land in Arizona to private ownership, allowing the mining company to expand operations without submitting a Mining Plan of Operations under the Mining Law of 1872. The Ninth Circuit held that the BLM violated NEPA by failing to take a hard look at environmental consequences, as its Final Environmental Impact Statement assumed without analysis that mining activities and impacts would be identical whether or not the exchange occurred and thus did not compare the effects of the exchange against the no-exchange alternative. The court also held that the approval violated FLPMA and was arbitrary and capricious, reversing the district court's decision upholding the BLM action.

environmentbusiness & regulatoryproperty

This case involved a claim under Section 12(a)(2) of the Securities Act of 1933 by Reliant shareholders against Thane International and its officers, alleging that a prospectus falsely stated Thane stock would trade on the NASDAQ National Market System after the companies merged, when it instead traded on the OTC Bulletin Board. The Ninth Circuit affirmed the district court's judgment for the defendants, holding that they established the affirmative defense of lack of loss causation. The court reasoned that the stock price remained above the imputed merger price of $7 in the weeks after the merger and the non-listing became public, with subsequent declines attributable to earnings reports rather than the misrepresentation about the exchange listing.

business & regulatory

The case involved Cynthia Chavez appealing her 15-month prison sentence for importing over 30 kilograms of marijuana and possessing it with intent to distribute after pleading guilty to two federal narcotics charges. Chavez contended that the parsimony clause of 18 U.S.C. § 3553(a) established the effective statutory maximum of probation for Apprendi purposes, making any term of incarceration a Sixth Amendment violation, and that the sentence was also procedurally and substantively unreasonable. The Ninth Circuit affirmed the district court's sentence, ruling that the relevant statutory maximum under Apprendi is set by the criminal statute of conviction authorizing up to five years per count, not by the parsimony clause or advisory guidelines. The court found no plain error in the sentencing process, noted that the district court adequately considered the § 3553(a) factors, and held the within-guidelines sentence reasonable under an abuse-of-discretion standard.

criminal lawprocedure

United States v. Graf involved James L. Graf's role in operating Employers Mutual LLC and related entities, which sold fraudulent health care benefit plans to over 20,000 people as part of a scheme to defraud individuals and small businesses. Graf was indicted on charges including conspiracy, mail fraud, misappropriation from a health care benefit program, unlawful monetary transactions, and obstruction of justice; after a jury trial, he was convicted on all counts and sentenced to 300 months in prison plus restitution. On appeal, Graf challenged the admission of testimony from attorneys who had represented Employers Mutual, arguing it violated his personal attorney-client privilege, along with other evidentiary and procedural rulings. The Ninth Circuit affirmed the convictions, holding that the district court correctly found no individual attorney-client relationship existed between Graf and the company's counsel, that sufficient evidence supported the verdict, and that the district court did not abuse its discretion in managing the trial or sealing certain documents.

criminal lawbusiness & regulatory

The case involved Cong Xian Lin, a Chinese citizen and Daoist cleric, who assisted a Falun Gong practitioner in fleeing authorities by helping arrange a boat to Taiwan, after which Chinese police searched for him and closed his temple, prompting him to leave China and enter the United States illegally. Lin applied for asylum, withholding of removal, and CAT protection, but an Immigration Judge found the asylum application untimely due to inconsistent evidence about his arrival date and denied the other claims for lack of demonstrated persecution or torture risk tied to protected grounds; the BIA affirmed. On petition for review, the Ninth Circuit addressed its jurisdiction under the REAL ID Act and INA to review the one-year filing deadline determination, applying circuit precedent treating such timeliness questions as reviewable mixed questions of law and fact, while also examining whether substantial evidence supported the BIA's findings on the remaining claims. The court exercised jurisdiction but upheld the denial of relief based on the record of factual inconsistencies and the nature of the assistance provided.

immigration

The case concerned Aleck Simonia's appeal of a district court order denying his motion for attorney's fees under ERISA section 1132(g) after he lost his underlying challenge to the termination of long-term disability benefits by his employer's plan and insurer. The Ninth Circuit affirmed the denial. Following the Supreme Court's Hardt decision, the court ruled that a fee claimant must first show some degree of success on the merits, after which district courts must apply the traditional five Hummell factors; even assuming Simonia met the first step, the factors—including the insurer's good faith, lack of deterrence concerns, and the counterclaim's initial merit—supported denying fees.

labor & employmenthealthcareprocedure

Del Banjo, a California prisoner convicted of kidnapping with intent to commit rape and sodomy, appealed the dismissal of his federal habeas corpus petition as untimely under 28 U.S.C. § 2244(d). The Ninth Circuit affirmed the district court's ruling, determining that Banjo's successive state habeas petition filed nearly five months after the denial of his first petition was not timely under California law and thus did not toll the federal one-year statute of limitations. The court reasoned that the new witness declarations could and should have been discovered earlier through due diligence, making the delay between petitions unreasonable and leaving Banjo's federal filing after the limitations period had expired.

criminal lawprocedure

The case involved plaintiffs Larry Montz and Daena Smoller who alleged they pitched screenplays and materials for a reality TV show about paranormal investigators to NBC and the Sci-Fi Channel, only for defendants including Pilgrim Films to later produce the similar series Ghost Hunters. After the district court allowed their federal copyright claim to proceed but dismissed state-law claims for breach of implied contract and breach of confidence, the plaintiffs voluntarily dismissed the copyright claim, leading to final judgment for the defendants. The Ninth Circuit affirmed, holding that federal copyright law under 17 U.S.C. § 301 preempts the state claims because they assert rights equivalent to copyright protection without an extra element such as an offer to sell. The court also upheld denial of leave to amend, as any amendment would require facts inconsistent with the complaint.

federal powerprocedure

The case involved Rogelio Avalos Segura, a Mexican national who entered the U.S. without inspection in 1980, obtained temporary resident status in 1988, pleaded guilty to a felony controlled substance offense in 1989, and then received lawful permanent resident status in 1992 without immigration authorities knowing of the conviction. After attempting re-entry in 2003, he faced removal proceedings and sought relief under former § 212(c) of the Immigration and Nationality Act, but an immigration judge and the Board of Immigration Appeals found him ineligible because he had not been lawfully admitted for permanent residence due to his prior conviction. The Ninth Circuit dismissed in part and denied in part his petition for review, holding that an alien must actually satisfy the substantive requirements for permanent residency at the time of adjustment, regardless of whether officials knew of disqualifying facts or whether fraud occurred. The court reasoned that Avalos's felony conviction made him inadmissible under the statute governing adjustment of status, so his permanent resident status was not lawful for purposes of § 212(c) eligibility.

immigration