Latest 6 Cases: Nutrition Distribution LLC v. IronMag Labs, LLC (Civil Procedure), Ho Sang Yim v. Barr (Criminal Law), United States v. Lusby ...

Drafted and Shafted: Who Should Complain About Male-Only Registration?

SHERRY F. COLB

Cornell law professor comments on a recent opinion by the U.S. Court of Appeals for the Fifth Circuit holding that requiring men but not women to register for the draft is constitutional under mandatory U.S. Supreme Court precedents. Specifically, Colb considers what the U.S. Supreme Court should do if it agrees to hear the case and more narrowly, whether the motives of the plaintiffs in that case bear on how the case should come out.

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Nutrition Distribution LLC v. IronMag Labs, LLC

Docket: 19-55251

Opinion Date: August 25, 2020

Judge: Daniel A. Bress

Areas of Law: Civil Procedure, Legal Ethics

Nutrition Distribution filed suit against IronMags, alleging that the company violated the Lanham Act by falsely advertising IronMag's nutritional supplements. After the district court entered judgment, Nutrition Distribution did not file a notice of appeal but, instead, filed a post-judgment motion for attorneys' fees under Federal Rule of Civil Procedure 54(d) and then filed a notice of appeal 30 days after the district court denied that fees motion. The Ninth Circuit held that, because Nutrition Distribution did not file a notice of appeal within 30 days of the district court's judgment or obtain a Rule 58(e) order extending the time to appeal, the notice of appeal was untimely as to the district court's underlying judgment. The notice of appeal was timely as to the district court's later order denying attorneys' fees. The panel explained that the Federal Rules are clear that ordinarily, the entry of judgment may not be delayed, nor the time for appeal extended, in order to tax costs or award fees. Furthermore, a motion for attorneys' fees does not extend the time to appeal the underlying judgment unless the district court so orders under Rule 58(e). In this case, Nutrition Distribution did not seek such an order, nor did the district court enter one. The panel also held that Nutrition Distribution's attempt to now save its untimely appeal of the underlying judgment by recasting its fees motion as a Rule 59 motion to alter or amend the judgment likewise fails. The panel stated that the 1993 amendments to the Federal Rules and the Supreme Court precedent that gave rise to them make clear that attorneys' fees motions cannot be recharacterized as Rule 59 motions to extend the time to appeal an underlying judgment. Accordingly, the panel affirmed the denial of fees, and otherwise dismissed the appeal for lack of jurisdiction.

Ho Sang Yim v. Barr

Dockets: 17-70624, 17-70670, 17-70742

Opinion Date: August 25, 2020

Judge: Sandra Segal Ikuta

Areas of Law: Criminal Law, Immigration Law

The Ninth Circuit held that the BIA reasonably interpreted "perjury," as used in 8 U.S.C. 1101(a)(43)(S), to mean an offense where "an offender make[s] a material false statement knowingly or willfully while under oath or affirmation [or penalty of perjury] where an oath is authorized or required by law." Given this definition, the panel held that perjury under section 118(a) of the California Penal Code is an "aggravated felony" because it is "an offense relating to . . . perjury." Petitioners, in three separate petitions for review, were convicted of perjury under section 118(a) and then suffered adverse immigration consequences on the ground that each had committed an "aggravated felony," namely, an "an offense relating to . . . perjury" under section 1101(a)(43)(S). The panel applied the categorical approach and held that section 118(a) is a categorical match with the BIA's generic definition of perjury, meaning that they cover the same amount of conduct. The panel rejected petitioners' claims to the contrary and held that section 118(a) is an "offense" relating to . . . perjury" under section 1101(a)(43)(S). The panel disposed of the petitions and any remaining arguments in concurrently filed memorandum dispositions.

United States v. Lusby

Docket: 18-10368

Opinion Date: August 25, 2020

Judge: J. Clifford Wallace

Areas of Law: Criminal Law

The Ninth Circuit reversed the district court's order dismissing an indictment charging defendant with failing to register as a sex offender in violation of the Sex Offender Registration and Notification Act (SORNA), 18 U.S.C. 2250(a). The panel rejected defendant's contention that the Double Jeopardy Clause precludes jurisdiction over this appeal, and held that jeopardy did not attach in this case because the district court never heard evidence for the purpose of deciding the issue of guilt or innocence that could subject the defendant to the risk that he would be found guilty. The panel held that, in light of the plain language and purpose behind the statute, a conviction under section 2250(a) does not require that a defendant's interstate travel not be legally compelled. Because the district court erred in holding to the contrary, the panel remanded with instructions to apply the elements of section 2250 as written.

Guenther v. Lockheed Martin Corp.

Docket: 17-16984

Opinion Date: August 25, 2020

Judge: Ryan D. Nelson

Areas of Law: ERISA

The Ninth Circuit affirmed the district court's order granting summary judgment in favor of defendants in an action under the Employee Retirement Income Security Act (ERISA), alleging that a fiduciary breached its duty to make accurate representations to a beneficiary. The panel first held that defendants did not waive their statute of limitations affirmative defense. The panel applied Intel Corp. Inv. Policy Committee v. Sulyma, 140 S. Ct. 768 (2020), which held that "actual knowledge" requires more than merely a possible inference from ambiguous circumstances, but rather knowledge that is actual. The panel held that the record establishes that the beneficiary had actual knowledge of the alleged breach and failed to bring suit within the three-year statute of limitations prescribed under ERISA. In this case, the district court correctly determined that the beneficiary had actual knowledge of the alleged misrepresentation when he received a letter from defendants regarding the bridging of service under the retirement plan. Therefore, the beneficiary's claim is time-barred. Furthermore, there is no exception for fraudulent concealment that triggers the six-year statute of limitations here. Finally, the panel held that the district court did not abuse its discretion in denying the beneficiary's post-judgment motion for reconsideration.

Abcarian v. Levine

Docket: 19-55129

Opinion Date: August 25, 2020

Judge: Daniel P. Collins

Areas of Law: Government & Administrative Law, Tax Law, Utilities Law

The Ninth Circuit affirmed the district court's dismissal of an action brought by plaintiffs, customers of the DWP, claiming that DWP overcharged for electric power and then transferred the surplus funds to the City, thereby allowing the City to receive what amounts to an unlawful tax under California law. Plaintiffs alleged claims under the Hobbs Act, the Racketeer Influenced and Corrupt Organizations Act (RICO), and 42 U.S.C. 1983, as well as claims under state law. The panel agreed with its sister circuits that the Hobbs Act does not support a private civil right of action; held that municipal entities are not subject to liability under RICO when sued in their official capacities, but the RICO claims in this case were asserted against the defendant City and DWP officials in their personal capacities; held that the RICO claim was nonetheless properly dismissed because it failed as a matter of law because it did not adequately allege a predicate act in extortion under California law or the Hobbs Act, mail and wire fraud, or obstruction of justice; and held that, under the Johnson Act, the district court lacked jurisdiction over the the section 1983 claims. Because plaintiffs have provided no basis for concluding that any of these deficiencies could be cured by an amendment of the complaint, and based upon the panel's own thorough review of the record, the panel held that amendment would be futile.

Iman v. Barr

Docket: 17-72318

Opinion Date: August 25, 2020

Judge: Bobby R. Baldock

Areas of Law: Immigration Law

The Ninth Circuit granted a petition for review of the BIA's denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT) to petitioner. Petitioner claims that he is a member of a minority Somali clan who fled Somalia after members of a majority clan forced him to work as a slave for over two years, beat him, and killed his brother. The panel held that the BIA's adverse credibility determination is not supported by substantial evidence. In light of the totality of the circumstances and in the context of the administrative record presented to the panel, the panel held that the evidence in this case compels the conclusion that petitioner's testimony was credible. The panel stated that neither of the two grounds that the BIA relied on supported its adverse credibility determination: first, that petitioner's testimony was nonresponsive or lacking detail, which indicated a lack of candor; and second, petitioner omitted from his asylum application information regarding his sisters' rapes. Rather, the panel explained that the record showed that petitioner gave responsive and detailed answers, and that the omission about his sisters' rapes was not probative of petitioner's credibility and was not inconsistent with petitioner's statements. Accordingly, the panel remanded for further proceedings.