OPINION O'SCANNLAIN, Circuit Judge: We must decide whether the Second Amendment prohibits a local government from banning gun shows on its property. I A Russell and Sallie Nordyke operate a business that promotes gun shows throughout California. A typical gun show involves the display and sale of thousands of firearms, generally ranging from pistols to rifles. Since 1991, the Nordykes have promoted numerous shows across the state, including one at the public fairgrounds in Alameda County....
OPINION FISHER, Circuit Judge: This appeal concerns the distinction between an applicant for asylum whose testimony lacks credibility and one who has "deliberately fabricated" material aspects of her application, and focuses on the heightened protections that condition the latter finding. "[A]n asylum application is frivolous if any of its material elements is deliberately fabricated." 8 C.F.R. 1208.20. If found to have "knowingly made a frivolous application for asylum," an applicant will...
OPINION TALLMAN, Circuit Judge: We must decide whether a district court may hear an alien's challenge to the government's denial of an application to adjust status when removal proceedings are simultaneously pending against the alien. We hold it may not. Because the alien plaintiffs here are currently in removal proceedings, we vacate the district court's order granting summary judgment to the defendants and remand with instructions to dismiss the action for lack of jurisdiction. I...
OPINION WALLACE, Senior Circuit Judge: This is John That Luong's and Mady Chan's second appeal from their convictions for the use of a firearm in the commission of a violent crime. Luong and Chan now ask us either to transmute their 18 U.S.C. 924(c) sentences into 18 U.S.C. 924(o) sentences or, for some of their section 924(c) convictions, to overturn them completely. We have jurisdiction pursuant to 28 U.S.C. 1291, and we affirm the district court's sentences. I. Luong and Chan were...
ORDER PER CURIAM: Defendant Robert Peeples ("Peeples") appeals the district court's denial of his constitutional challenge to his conditions of release imposed pursuant to the Adam Walsh Child Protection and Safety Act of 2006 ("Walsh Act"), 18 U.S.C. 3142(c)(1). We have jurisdiction pursuant to 28 U.S.C. 1291 and affirm the district court's order. I. On July 23, 2010, the government indicted Peeples on a charge of knowing receipt of child pornography. The indictment alleges that,...
OPINION M. SMITH, Circuit Judge: The Lands Council and Wild West Institute challenged the United States Forest Service's (Forest Service) decision to thin 277 acres of old-growth forest in the Mission Brush Project (Project) area, located in the Idaho Panhandle National Forest (IPNF), claiming that the Project violates the National Forest Management Act (NFMA), 16 U.S.C. 1600 et seq., the IPNF Plan, and the National Environmental Policy Act (NEPA), 42 U.S.C. 4231 et seq. On cross-...
OPINION ALARC N, Circuit Judge: John C. Rezner filed this action against Bayerische Hypo-Und Vereinsbank AG d/b/a HVB Group and HVB Structured Finance, Inc. (collectively "HVB") for violation of the Racketeer Influenced and Corrupt Organizations Act of 1970 ("RICO"), codified at 18 U.S.C. 1961 et seq., and the Unfair Business Practices Act of California ("UCL"), codified at Cal. Bus. & Prof.Code 17200 et seq. Rezner alleges that HVB engaged in a scheme to defraud the United States...
OPINION PER CURIAM: Under Oregon's split-recovery statute, OR. REV. STAT. 31.735, the State of Oregon (the "State") is entitled to 60 percent of any punitive damages awarded under Oregon law. The statute applies to cases decided under Oregon law in federal court. DeMendoza v. Huffman, 334 Or. 425 , 51 P.3d 1232 , 1235-37 (2002). In the case at bench, after the jury awarded a substantial amount of punitive damages 1 , but before judgment was entered on the verdict, plaintiff and...
OPINION RAWLINSON, Circuit Judge: Enrique Fabregas (Fabregas) is a predator who slithered into the lives of vulnerable women with young daughters. There is no question that Fabregas molested his foster daughters, one of whom he legally adopted. The more challenging question this case presents is whether the State of Washington Department of Social and Health Services (DSHS) and nine DSHS employees' involved in overseeing the foster care of Monica (Monica), Ruth Tamas (Ruth), and Estera Tamas (...
OPINION KLEINFELD, Circuit Judge: We address the viability of a takings claim arising out of a rent control ordinance affecting mobile home parks. I. Facts In 1979, Santa Barbara County, California adopted a rent control ordinance for mobile homes. 1 Mobile homes have the peculiar characteristic of separating ownership of homes that are, as a practical matter, affixed to the land, from the land itself. 2 Because the owner of the mobile home cannot readily move it to get a lower rent,...
ORDER The opinion filed on September 22, 2010, slip op. 16067, and appearing at 622 F.3d 1237 , is AMENDED and the amended opinion is filed concurrently with this Order. With these amendments, the panel has voted to deny Appellant's petition for rehearing and petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35. Appellant's petition for panel...
OPINION GRABER, Circuit Judge: The Kofa National Wildlife Refuge and Wilderness in southwest Arizona contains a desert ecosystem that is home to, among other species, bighorn sheep. After an unexpected decline in the population of the sheep, the United States Fish and Wildlife Service ("Service") built two water structures (the Yaqui and McPherson tanks) within the wilderness area. Plaintiffs Wilderness Watch, Inc., Arizona Wilderness Coalition, Grand Canyon Wildlands Council, Western...
OPINION O'SCANNLAIN, Circuit Judge: We must decide whether erroneous jury instructions in a state murder trial were prejudicial as a matter of federal Constitutional law. I A During the predawn hours of May 24, 1992, Ramon Flores, an attendant at a Shell gas station convenience store in San Mateo, California, was shot in the face with a .45-caliber bullet. 1 He died almost instantaneously. There were no witnesses to the crime, but a neighbor heard a loud bang coming from near the station...
OPINION O'SCANNLAIN, Circuit Judge: We must decide whether the National Education Association established or maintained an employee pension benefit plan under the Employee Retirement Income Security Act of 1974 by endorsing and aggressively marketing certain tax-sheltered annuities. I A Both Jerre Daniels-Hall and David Hamblen (collectively, "Plaintiffs") are members of the National Education Association ("NEA") and employees of local public school districts. Daniels-Hall is an employee...
OPINION KENNELLY, District Judge: Two local ordinances, the Arcata Youth Protection Act and the Eureka Youth Protection Act, prohibit agents or employees of the federal government from engaging in military recruitment activities targeting minors. The United States sued to bar enforcement of the ordinances. The district court granted the government's motion for judgment on the pleadings and permanently enjoined the cities of Arcata and Eureka from enforcing the ordinances. For the reasons...
OPINION BYBEE, Circuit Judge: Plaintiff-Appellant Beacon Healthcare Services, Inc., ("Beacon") appeals the district court's judgment affirming the Provider Reimbursement Review Board's ("PRRB") determination that it did not have jurisdiction to hear Beacon's appeal of a fiscal intermediary's decision; concluding on the merits that the Secretary of the U.S. Department of Health and Human Services ("Secretary") is not required by law to adjust Beacon's target TEFRA costs; and dismissing Beacon'...
ORDER The opinion filed September 17, 2010, is amended as follows: At Op. 793, line 17: Before "Because Lopez fails to establish ..." insert: No future petitions for rehearing or petitions for rehearing en banc will be entertained. IKUTA, Circuit Judge: OPINION Today we consider a student's First Amendment challenge to a community college sexual harassment policy. First Amendment cases raise "unique standing considerations," Ariz. Right to Life Political Action Comm. v. Bayless, 320 F....
OPINION KLEINFELD, Circuit Judge: We address harmless error in the context of Social Security disability. I. Facts Gene R. McLeod applied at age 51 for supplemental security income based on disability. The Administrative Law Judge (ALJ) found that he had three severe impairments—degenerative changes of the lumbar spine, history of coronary artery disease, and sleep apnea—but none so severe as to rise to the level of "listed" impairments. He lacked significant protrusion or herniation of the...
OPINION KLEINFELD, Circuit Judge: We address rereading a witness's testimony to a jury during deliberations, and a sentencing issue. I. Facts This case went to a jury trial, and accounts varied. Newhoff was convicted in this case of being a felon in possession of a firearm 1 and for possession of a stolen firearm, 2 and, in a separate state proceeding, of the burglary in which the firearm was stolen. The burglary was the night of July 4, and the police contact leading to the felon in...
OPINION McKEOWN, Circuit Judge: There is no simple remedy for the vast number of unsolicited emails, popularly known as "spam," that fill our electronic inboxes daily. Even though federal and state legislatures have adopted various laws to combat this problem, "spammers" continue to find new ways to advertise. Daniel Balsam, a victim of spam, seeks an alternative method of enforcement by bringing claims against the registrar of a domain site that bombarded him with more than 1,000 unwanted...
