Taking Stock: A Review of Justice Stevens’s Last Book and an Appreciation of His Extraordinary Service on the Supreme Court

RODGER CITRON

Rodger D. Citron, the Associate Dean for Research and Scholarship and a Professor of Law at Touro College, Jacob D. Fuchsberg Law Center, comments on the late Justice John Paul Stevens’s last book, The Making of a Justice: Reflections on My First 94 Years. Citron laments that, in his view, the memoir is too long yet does not say enough, but he lauds the justice for his outstanding service on the Supreme Court.

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Shaw v. Bank of America Corp.

Docket: 17-56706

Opinion Date: December 27, 2019

Judge: R. Nelson

Areas of Law: Banking, Consumer Law, Real Estate & Property Law

The Ninth Circuit affirmed the district court's dismissal of a Truth in Lending Act (TILA) claim for lack of subject matter jurisdiction based on the jurisdiction-stripping provisions of the Financial Institutions Reform, Recovery, and Enforcement Act (FIRREA). In this case, plaintiff sought rescission of a mortgage loan under TILA, claiming that the lender provided him with defective notice of the right to cancel when the loan was signed. The panel held that FIRREA's administrative exhaustion requirement applied, and plaintiff had a claim under FIRREA because his cause of action gave right to an equitable remedy of rescission and was susceptible of resolution by FIRREA's claims process. The panel agreed with the Fourth Circuit and concluded that there was no requirement that the loan have passed through an FDIC receivership. The panel also held that plaintiff's claim related to an act or omission, the lender failed to comply with TILA, and the FDIC was appointed as receiver. However, the panel held that plaintiff failed to exhaust his administrative remedies with the FDIC because his complaint included no allegations that he presented his TILA claim to the FDIC before filing suit. Furthermore, because subject matter jurisdiction was lacking when this action was filed, plaintiff's later communications with the FDIC did not prevent dismissal of his TILA claim. Finally, the district court did not abuse its discretion in denying plaintiff’s request for further discovery.

Great Minds v. Office Depot, Inc.

Docket: 18-55331

Opinion Date: December 27, 2019

Judge: Joseph Jerome Farris

Areas of Law: Copyright, Intellectual Property

The Ninth Circuit affirmed the district court's dismissal, for failure to state a claim, of an action brought by Great Minds, publisher of math curriculum Eureka Math. The complaint alleged a claim of copyright infringement against Office Depot. The panel held that Office Depot did not itself become a licensee of the "Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Public License" or otherwise infringe Great Minds' copyright by making copies of Eureka Math materials for a profit on behalf of school and school district licensees. In this case, there was no dispute that, if Office Depot were itself a licensee, commercial copying of Great Minds' material would fall outside the scope of the license and infringe Great Minds' copyright; under California law, the school and school district licensees' exercise of their rights under the license through the services provided by Office Depot did not result in Office Depot becoming a licensee; and the district court not abuse its discretion in denying leave to amend the complaint.

United States v. Rodriguez-Gamboa

Docket: 19-50014

Opinion Date: December 27, 2019

Judge: Andrew David Hurwitz

Areas of Law: Criminal Law

The Ninth Circuit affirmed the district court's order allowing defendant to withdraw her guilty plea to illegal reentry under 8 U.S.C. 1326, vacated the dismissal of the information, and remanded for the district court to resolve the factual issue of whether geometric isomers of methamphetamine exist. In Lorenzo v. Sessions, 902 F.3d 930 (9th Cir. 2018)(Lorenzo I), the panel held that the definition of methamphetamine applicable to convictions under 8 U.S.C. 11378 is broader than the definition of methamphetamine under the federal Controlled Substances Act. In this case, the panel held that the district court did not abuse its discretion in allowing defendant to withdraw her guilty plea after Lorenzo I, because that decision effectively invalidated defendant's underlying removal. Lorenzo I was subsequently withdrawn and replaced with a non-precedential memorandum disposition, Lorenzo v. Whitaker, 752 F. App'x 482 (9th Cir. 2019) (Lorenzo II). Lorenzo II stated that the government is not foreclosed from raising in other cases the argument that any difference between California and federal law about the definition of methamphetamine is illusory. The government contended that both California law and federal law prohibit the possession for sale of methamphetamine and its isomers, and thus they are identical. The panel declined the government's invitation to rewrite California law and noted that the government's argument required the panel to look beyond the statutory language to matters of organic chemistry. Rather, the panel reasoned that resolution of the factual issue of whether geometric isomers of methamphetamine exist has the potential to inform its disposition in this appeal and future cases.

Lopez-Angel v. Barr

Docket: 16-72246

Opinion Date: December 27, 2019

Judge: Andrew David Hurwitz

Areas of Law: Immigration Law

An alien does not withdraw his appeal of a final removal order, including the appeal of the denial of a motion to reopen or reconsider, simply because he was involuntarily removed before the appeal was decided. The Ninth Circuit held that petitioner's removal from the country while his appeal was pending before the BIA did not withdraw his appeal under 8 C.F.R. 1003.4. The panel explained that the withdrawal sanction in section 1003.4 is triggered by an alien's departure from this country; section 1003.1 does not distinguish between volitional and non-volitional departures; but the BIA has already recognized that the regulation does not apply every time a petitioner leaves this country. For example, an unlawful removal does not constitute a section 1003.4 departure. The panel agreed with the Sixth Circuit's holding in Madrigal v. Holder, 572 F.3d 239 (6th Cir. 2009), that section 1003.4 applies only when the right to appeal is relinquished by the alien's own volitional conduct, not solely that of the government. The panel held that the Sixth Circuit's holding in Madrigal was consistent with its interpretation of a similar regulation. Finally, the panel held that petitioner did not otherwise waive his right to appeal. Accordingly, the panel granted the petition for review and remanded.

V.V.V. & Sons Edible Oils v. Meenakshi Overseas

Docket: 18-16071

Opinion Date: December 27, 2019

Judge: R. Nelson

Areas of Law: Intellectual Property, Trademark

VVV appealed the district court's dismiss of its trademark claims based on three marks and the denial of leave to amend its complaint. The Ninth Circuit assumed, without deciding, that the district court correctly applied the elements of claim preclusion to this case, but found that an exception to claim preclusion applied. The panel explained that an interparty proceeding before the TTAB is a limited proceeding involving registration of a trademark, and the TTAB has no authority to determine the right to use, or the broader questions of infringement, unfair competition, damages or injunctive relief. In this case, TTAB had no power to decide VVV's claims of infringement, dilution, and unfair competition or to grant either injunctive relief or damages. Therefore, the panel held that it would be unfair to preclude VVV from litigating these claims and seeking relief when barriers existed that prevented it from doing so in the first action. The panel reversed and remanded for the district court to consider, in the first instance, whether issue preclusion applied. The panel also reversed the denial of leave to amend the complaint, and affirmed the dismissal of plaintiff's claims as to the second and third marks.