ORDER The opinion, filed on September 12, 2011, is withdrawn and replaced by the amended opinion attached to this order. With this amendment, the majority of the panel has voted to deny appellee's petition for rehearing. Judge Berzon has voted to deny the petition for rehearing en banc and Judge Goodwin so recommends. Judge Ikuta has voted to grant the petition for rehearing and petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc. A judge of...
OPINION KOBAYASHI, District Judge: Plaintiff-Appellant Donald Lyle Stratton ("Stratton") appeals from the judgment in favor of Defendant-Appellee Dale Brown ("Brown") entered pursuant to the order granting Brown's motion to dismiss for failure to exhaust administrative remedies. 1 Stratton argues that the district court erred in considering matters outside of the pleadings and in dismissing his case because the district court failed to provide him with notice of the requirements for a...
ORDER The opinion filed on October 12, 2012, and appearing at 696 F.3d 943 , is amended as follows: On page 12258 of the slip opinion, replace the final two sentences of the third paragraph with the following language: Pursuant to the FCC ruling, prior express consent is consent to call a particular telephone number in connection with a particular debt that is given before the call in question is placed. Id. at 564-65. PRA did not show a single instance where express consent was given...
OPINION FISHER, Circuit Judge: We consider whether the district court erred by sentencing Jason Lee as a career offender under U.S. Sentencing Guidelines Manual 4B1.1 based on his two prior convictions under California Health and Safety Code 11352(a). We hold that the government has not satisfied its burden of showing that one of these two convictions qualifies as a predicate offense and remand for the district court to reconsider Lee's career offender status. I. Jason Lee was...
OPINION McKEOWN, Circuit Judge. Kevin Cooper was convicted of four counts of first-degree murder and sentenced to death in 1985. Since then his case has traveled up, down and around the federal and state judiciaries. Most recently, Cooper filed suit in federal district court in California challenging a state court's denial of his request to obtain additional DNA testing pursuant to a state statute. In the complaint, Cooper alleges that he is the target of a long-running conspiracy, involving...
ORDER The opinion filed on October 17, 2012 [ 697 F.3d 1230 ] is amended as follows: Slip op. at 12572, 2nd full , lines 1-4: Replace with Slip op. at 12572, 2nd full , lines 5-6: Delete Slip op. at 12573, 2nd full , lines 6-8: Replace with Slip op. at 12573, last , lines 3-5: Replace with OPINION NOONAN, Circuit Judge: Michael Chesbro, on behalf of himself and a class of similarly situated plaintiffs, argues that a series of automated telephone calls placed to his home by...
OPINION BERZON, Circuit Judge: Our case concerns a decision by the Bureau of Land Management ("BLM") to authorize the Ruby Pipeline Project ("Project"). The Project involves the construction, operation, and maintenance of a 42-inch-diameter natural gas pipeline extending from Wyoming to Oregon, over 678 miles. The right-of-way for the pipeline encompasses approximately 2,291 acres of federal lands and crosses 209 rivers and streams that support federally endangered and threatened fish...
OPINION McKEOWN, Circuit Judge: Since 1990, the Environmental Protection Agency ("EPA") has been responsible for regulating air pollution from offshore sources on the Outer Continental Shelf ("OCS") under the Clean Air Act ("the Act"). 42 U.S.C. 7627. We consider here whether the EPA's Environmental Appeals Board ("EAB") properly upheld two air permits authorizing exploratory drilling operations in the Arctic Ocean by a drillship and its associated fleet of support vessels. The petition for...
OPINION McKEOWN, Circuit Judge: Bank fees, like taxes, are ubiquitous. And, like taxes, bank fees are unlikely to go away any time soon. The question we consider here is the extent to which overdraft fees imposed by a national bank are subject to state regulation. At issue is a bookkeeping device, known as "high-to-low" posting, which has the potential to multiply overdraft fees, turning a single overdraft into many such overdrafts. The revenue from overdraft fees is massive. Between 2005...
OPINION McKEOWN, Circuit Judge: This case invokes the old adage that the sum is greater than the parts. National Elevator Industry Pension Fund ("National Elevator"), lead plaintiff on behalf of investors who purchased VeriFone Holdings, Inc. ("VeriFone") stock between August 31, 2006 and April 1, 2008, appeals the dismissal of its securities fraud class action. National Elevator alleged that VeriFone, Douglas Bergeron (the company's Chief Executive Officer and former Chairman of the Board of...
OPINION ZOUHARY, District Judge: INTRODUCTION Jorge Valdavinos-Torres ("Valdavinos") was ordered removed in 2008 after immigration court proceedings. Sometime after his removal, Valdavinos returned to the United States without permission, and in 2010 was arrested and convicted for possession of methamphetamine in violation of California law. After serving a short jail sentence, Valdavinos was turned over to immigration officials and eventually indicted for illegal re-entry in violation of...
OPINION CANBY, Circuit Judge: This appeal presents the primary question whether two leases of land by the City of San Diego to the Desert Pacific Council, a nonprofit corporation chartered by the Boy Scouts of America, violate provisions of the California or federal Constitutions relating to the Establishment of Religion or the denial of Equal Protection of the Laws. Additional issues concern claims that the Council's actions as lessee violate the San Diego Human Dignity Ordinance and that...
ORDER Defendants Sea Shepherd Conservation Society and Paul Watson, and any party acting in concert with them (collectively "defendants"), are enjoined from physically attacking any vessel engaged by Plaintiffs the Institute of Cetacean Research, Kyodo Senpaku Kaisha, Ltd., Tomoyuki Ogawa or Toshiyuki Miura in the Southern Ocean or any person on any such vessel (collectively "plaintiffs"), or from navigating in a manner that is likely to endanger the safe navigation of any such vessel. In no...
OPINION BYBEE, Circuit Judge: In this copyright infringement action, we address whether an Arkansas retailer is subject to personal jurisdiction in Washington when its only relevant contact with the state is a claim that it willfully violated a copyright held by a Washington corporation. The district court for the Western District of Washington dismissed Washington Shoe Company's ("Washington Shoe") action against A-Z Sporting Goods, Inc. ("A-Z") for lack of personal jurisdiction. We reverse....
OPINION TROTT, Circuit Judge: In the four cases giving rise to these eleven consolidated appeals, Kathleen Sebelius, Secretary of the Department of Health and Human Services ("HHS"), and Toby Douglas, Director of the California Department of Health Care Services ("DHCS"), appeal the district court's grant of preliminary injunctions in favor of various providers and beneficiaries of Medi-Cal, California's Medicaid program ("Plaintiffs"). The injunctions prohibit the Director and DHCS from...
OPINION GRABER, Circuit Judge: The Real Estate Settlement Procedures Act ("RESPA") provides an action for damages against mortgage-loan servicers who fail to respond to certain types of inquiries from borrowers. Plaintiffs Jaime and Maribel Medrano allege that Defendant Flagstar Bank, FSB, the servicer of their home loan, violated 12 U.S.C. 2605 because it did not respond adequately to three letters in which they challenged the monthly payment due on their loan. The district court granted...
ORDER Pursuant to Rule 8.548 of the California Rules of Court, we request the California Supreme Court to decide the question of California law set forth in Part II of this order. This case is withdrawn from submission until further order of this court, and all further proceedings in this court are stayed pending final action by the California Supreme Court. There is no controlling precedent resolving the question we set forth below. The answer will determine the outcome of the present appeal....
ORDER KOZINSKI, Chief Judge: Upon the vote of a majority of nonrecused active judges, it is ordered that this case be reheard en banc pursuant to Federal Rule of Appellate Procedure 35(a) and Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.
OPINION PER CURIAM: Michael Simard appeals the district court's order striking his claim to $999,830 in this civil forfeiture proceeding and the district court's denial of his motion for reconsideration of that order. The district court concluded that Simard lacked Article III standing, struck his claim and entered judgment in favor of the government. The district court also denied his motion for reconsideration. We have jurisdiction under 28 U.S.C. 1291, and we reverse. The district court...
OPINION BERZON, Circuit Judge: Petitioner Adilao Juan Ortiz ("Ortiz") was convicted by a jury of willful infliction of corporal injury to his spouse in violation of California Penal Code 273.5. At trial, Ortiz's wife, Miriam Ortiz ("Miriam") testified on behalf of the prosecution. Ortiz maintains that he was denied his Sixth Amendment right to confront adverse witnesses when the trial judge precluded his trial counsel from asking Miriam whether she was afraid to deviate from her initial...
