OPINION BEA , Circuit Judge : Richard Shirrod was awarded benefits under the Longshore and Harbor Workers' Compensation Act ("Longshore Act") for injuries he sustained while working on a barge-refitting project for Respondent Pacific Rim Environmental Resources, LLC ("Pacific Rim"). 1 During the workers'-compensation proceedings, an administrative law judge ("ALJ") awarded Shirrod $33,581.17 in attorney's fees for work Shirrod's attorney, Charles Robinowitz, performed before the ALJ, as...
ORDER THOMAS , 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. Judges MURGUIA and HURWITZ did not participate in the deliberations or vote in this case.
OPINION IKUTA , Circuit Judge : DM Residential Fund II, LLC, (DM) appeals the district court's grant of summary judgment in favor of First Tennessee Bank National Association (FTB). We have jurisdiction under 28 U.S.C. 1291, and we affirm. FTB initiated a nonjudicial foreclosure on residential real property and sold the property at a foreclosure sale to DM. The property lacked a utilities easement needed to provide electrical service to the new home that had been constructed on the...
OPINION McKEOWN , Circuit Judge : This appeal, which arises in the context of software licenses, requires us to address the burden of proof applicable to the first sale defense to a copyright infringement claim. Although a copyright holder enjoys broad privileges protecting the exclusive right to distribute a work, the first sale doctrine serves as an important exception to that right. Under this doctrine, once a copy of a work is lawfully sold or transferred, the new owner has the right "...
OPINION BEA , Circuit Judge : We must determine whether a state court's constitutional error in failing to consider certain evidence offered in mitigation of a death sentence can be corrected by the court that committed the error, rather than require the convicted murderer to be sentenced anew, but before a jury. James Lynn Styers, an Arizona prisoner, was convicted of first degree murder and other charges and sentenced to death. Styers's first degree murder conviction and his sentence...
OPINION W. FLETCHER , Circuit Judge : Petitioner James McKinney was sentenced to death, and his sentence was affirmed by the Arizona Supreme Court on de novo review in 1996. State v. McKinney, 185 Ariz. 567 , 917 P.2d 1214 (1996). A three-judge panel of this court denied McKinney's petition for a writ of habeas corpus. McKinney v. Ryan, 730 F.3d 903 (9th Cir.2013). We granted rehearing en banc and withdrew our three-judge panel opinion. McKinney v. Ryan, 745 F.3d 963 (9th...
OPINION PER CURIAM : Nonprofit organizations Americans for Prosperity Foundation and Thomas More Law Center challenge the Attorney General of California's collection of Internal Revenue Service (IRS) Form 990 Schedule B, which contains identifying information for their major donors. They argue the nonpublic disclosure requirement is unconstitutional as applied to them because it impermissibly burdens First Amendment rights to free speech and association by deterring individuals from...
OPINION SCHROEDER , Circuit Judge : Lloyd Taylor appeals his conviction of seven counts of making false statements to a bank in violation of 18 U.S.C. 1014, and six counts of aggravated identity theft in violation of 18 U.S.C. 1028(a). These convictions arose out of a tax evasion scheme in which Taylor used multiple false identities to open bank accounts in order to obtain cashier's checks to buy gold. The bank discovered the scheme and reported it to federal authorities. The...
Dissent by Judge GOULD . ORDER Judges Farris and Nguyen voted to deny the petition for rehearing. Judge Nelson voted to grant the petition for rehearing. Judge Nguyen voted to deny the petition for rehearing en banc, and Judge Farris so recommended. Judge Nelson recommended granting the petition for rehearing en banc. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc, and the matter failed to receive a...
OPINION WARDLAW , Circuit Judge : The University of Hawaii denied secondary education candidate Mark L. Oyama's application to become a student teacher, a prerequisite for recommendation to the State of Hawaii's teacher certification board. This appeal from the district court's grant of summary judgment to the University implicates the constitutional balance between two prerogatives of a public university's professional certification program: promoting open discourse among its students and...
OPINION PAEZ , Circuit Judge : Samuel Navarrette-Aguilar ("Navarrette") appeals his conviction and sentence. A jury found him guilty of conspiracy to distribute heroin, distribution of heroin, possession of heroin with intent to distribute, and made a special finding that the quantity of heroin was at least one kilogram. Navarrette argues that substantial evidence did not support the jury's quantity finding. The evidence of historical transactions adduced did not amount to one kilogram....
ORDER THOMAS , 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 N.R. SMITH , Circuit Judge , joined by THOMAS, Chief Judge, and GOULD, TALLMAN, RAWLINSON, BYBEE, CALLAHAN, IKUTA, NGUYEN, and OWENS, Circuit Judges: California Vehicle Code 10851(a) is an indivisible statute, criminalizing both conduct that would and would not constitute a crime involving moral turpitude. Therefore, section 10851(a) cannot be a categorical match to a crime involving moral turpitude under 8 U.S.C. 1227(a)(2)(A)(i). Thus, we grant the petitions and remand for...
OPINION FRIEDLAND , Circuit Judge : After a jury in California Superior Court convicted them each of murder, Robert McDaniels and Keelon Jenkins challenged their convictions in the California Court of Appeal. McDaniels and Jenkins argued that the prosecution had made racially motivated peremptory strikes during pre-trial jury selection. They did not, however, move to place the entire record of voir dire before the California Court of Appeal, nor did they ask that court to perform a...
OPINION RAWLINSON , Circuit Judge : This case presents two appeals, one from the government and one from Defendant-Appellant James Mazzo (Mazzo). In Appeal No. 15-50033, the government appeals the district court's pretrial order granting motions in limine to exclude certain pieces of evidence in a case in which Douglas DeCinces (DeCinces), Mazzo, and others were charged with insider-trading offenses relating to the stock of Advanced Medical Optics, Inc. Appeal No. 15-50058 is Mazzo's...
OPINION TALLMAN , Circuit Judge : A court's equitable power lies only over the merits of the case or controversy before it. When a plaintiff seeks injunctive relief based on claims not pled in the complaint, the court does not have the authority to issue an injunction. During discovery of its unfair trade practices case, Appellant Pacific Radiation Oncology, LLC (PRO) sought injunctive relief against Appellee The Queen's Medical Center (QMC) arguing that QMC's review and use of patient...
OPINION BYBEE , Circuit Judge : Francisco Alaniz Garcia was brought into the police station for questioning about allegations that he had sexually molested his granddaughter. After reading Garcia his Miranda rights and confirming that Garcia understood those rights, the interrogating officer asked, "now having [those rights] in mind, do you wish to talk to me " Garcia responded with a simple "no." The Supreme Court in Miranda v. Arizona said that when a suspect "indicates in any manner...
OPINION McKEOWN , Circuit Judge : This appeal is the second trip to our court for a group of plaintiffs in their long-running statutory and constitutional challenges to government surveillance programs. In the last appeal, we reversed the district court's dismissal of all claims on standing grounds and remanded for further proceedings, including determination of whether the "claims are foreclosed by the state secrets privilege." Jewel v. Nat'l Sec. Agency, 673 F.3d 902 , 905 (9th Cir....
OPINION McKEOWN , Circuit Judge : These appeals are the latest in a series of petitions that stem from the energy crisis in California and other western states in 2000 and 2001. The key issue we consider is the applicability of the Mobile-Sierra doctrine, which requires the Federal Energy Regulatory Commission ("FERC") to "presume that the rate set out in a freely negotiated wholesale-energy contract meets the `just and reasonable' requirement" imposed by law. Morgan Stanley Capital Grp....
OPINION M. SMITH , Circuit Judge : Prisoner Curtis Lee Morrison made two unsuccessful motions in California State court for post-conviction DNA testing under California Penal Code 1405. He then brought this action, seeking relief under 42 U.S.C. 1983. The district court dismissed the action on the merits. On appeal, the court appointed pro bono counsel, who provided valuable assistance to Morrison and the court. Morrison pursues a facial challenge to two provisions of the statute, and...
