5/15/25
Parker v. BNSF Railway Co., 22-35695
Appeal from: W.D. Wash. (Jones, J.)
Argued & Submitted En Banc: 3/19/25
En Banc Court: Murguia Graber (author) Wardlaw Owens Forrest Sung
H.A. Thomas Mendoza Desai Johnstone de Alba
Subject Matter: Federal Railroad Safety Act
The en banc court affirmed the district court’s judgment after a bench trial in favor of BNSF Railway Co., the defendant in a retaliation action under the Federal Railroad Safety Act.
Conductor Curtis Rookaird alleged that BNSF fired him in retaliation for engaging in protected activity by testing the air brakes on railcars. After a bench trial on remand from this court, the district court concluded that Rookaird met his burden of proving, by a preponderance of the evidence, that the air-brake test was a contributing factor to the firing. The district court further found, however, that BNSF met its burden of proving that it would have fired Rookaird anyway.
The en banc court held that the district court applied the correct burden of proof from the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, or “AIR21,” and permissibly determined that the air-brake test played a small role in BNSF’s firing decision. Because even a small contribution suffices under the applicable lenient standard, Rookaird properly prevailed at this step of the analysis.
The en banc court held that under the AIR21 standard, if the plaintiff meets their initial burden, then the defendant faces a steep burden in proving, by clear and convincing evidence, the affirmative defense that it would have taken the same unfavorable personnel action in the absence of the protected behavior. The en banc court concluded that the district court correctly applied this legal standard. Reviewing for clear error, the en banc court affirmed the district court’s finding that BNSF met the AIR21 standard’s high bar and established the affirmative defense.
United States v. Yafa, 23-4108+
Appeal from: S.D. Cal. (Hayes, J.)
Argued & Submitted: 3/4/25
Panel: Murguia (author) Sanchez H.A. Thomas
Subject Matter: Criminal Law
In codefendant brothers Joshua and Jamie Yafa’s appeals from their convictions and sentences for securities fraud and conspiracy to commit securities fraud for their involvement in a “pump-and-dump” stock manipulation scheme, the panel affirmed the district court’s reliance on Application Note 3(B) in the commentary to United States Sentencing Guidelines § 2B1.1, which, at the time the Yafas were sentenced, instructed courts to use the gain that resulted from the defendant’s offense as an alternative measure for calculating loss where loss cannot reasonably be determined.
Applying the analysis set forth in Kisor v. Wilkie, 588 U.S. 558 (2019), to determine whether deference to the commentary’s interpretation of a Guideline is appropriate, the panel held (1) the term “loss” is genuinely ambiguous, (2) Application Note 3(B)’s instruction to use gain is a reasonable interpretation of “loss,” and (3) the character and context of Application Note 3(B) entitles it to controlling weight.
The panel concluded accordingly that Application Note 3(B)’s interpretation of “loss” warrants deference, and that the district court did not err when it used the gain that resulted from the Yafas’s offenses as an alternative measure for loss.
In a concurrently filed memorandum disposition, the panel resolved the Yafas’s additional challenges to their convictions and sentences.
Yelp Inc., v. Paxton, 24-581
Appeal from: N.D. Cal. (Thompson, J.)
Argued & Submitted: 12/4/24
Panel: Bennett Bress (author) Forrest
Subject Matter: Younger Abstention
The panel affirmed the district court’s dismissal pursuant to Younger v. Harris, 401 U.S. 37 (1971), of an action brought by Yelp, a company that publishes consumer reviews of businesses, seeking to enjoin the Texas Attorney General’s civil enforcement action against it in Texas state court concerning Yelp’s since-withdrawn consumer notice for crisis pregnancy centers (CPCs).
In 2022, Yelp introduced a new notification on Yelp business pages for CPCs that informed consumers that the businesses typically offer limited medical services. After objections from a number of state Attorney Generals that the notification was misleadingly overbroad and discriminatory, Yelp replaced this notice with a second notice that stated that CPCs did not offer abortions or abortion referrals. Two months later, Texas Attorney General Paxton initiated an investigation of Yelp pertaining to the first notice and subsequently sent Yelp a notice of intent to file suit on the grounds that the first notice violated the Texas Deceptive Trade Practices – Consumer Protection Act (DTPA). Yelp then filed the instant lawsuit pursuant to 42 U.S.C. § 1983 against Paxton, alleging First Amendment retaliation. The next day Paxton filed a state court action against Yelp for violations of the DTPA. Yelp moved for a preliminary injunction in the federal litigation to enjoin Paxton from further action, while Paxton sought to dismiss the federal case. The district court dismissed the federal case based on the Younger abstention doctrine, which reflects a national policy forbidding federal courts from interfering with pending state judicial proceedings.
The parties do not dispute that the requirements for Younger abstention were met in this case: the state proceedings were ongoing, involved quasi-criminal enforcement, implicated an important state interest, and permitted federal constitutional defenses, and the federal action would have the effect of the enjoining the proceedings. Rather, Yelp alleges that abstention was not warranted because the bad faith exception to Younger applied.
The panel held that Younger’s narrow bad faith exception did not apply. Yelp had not sufficiently established that the Texas civil enforcement action was brought without a reasonable expectation of obtaining a valid judgment or was facially meritless. Nor was it clear or obvious that applying the DTPA to Yelp’s first notice would violate Yelp’s First Amendment rights.
Yelp also failed to show that Paxton’s enforcement action was motivated by a desire to harass Yelp or was pursued in retaliation for Yelp’s support of abortion rights. Given the obligation of the federal courts to respect the domain of the state courts, any retaliatory motive or harassment must be sufficiently severe or pervasive to legitimize the halt of state court proceedings in which these same constitutional objections could be raised. Here, Yelp did not allege any bias by the tribunal, nor did it identify a serial pattern of litigation against it or a history of personal conflict or animus that would raise an inference of vindictive retaliation. Although Paxton’s enforcement action may implicate a sensitive matter on which people disagree, that does not mean his pursuit of Yelp is retaliatory within the meaning of Younger’s bad faith exception, especially when the enforcement action itself was not facially meritless.
Because Yelp was unable to make the high showing that Younger’s bad faith exception applied, the district court did not err by denying Yelp’s request for discovery and an evidentiary hearing.
Community Legal Services in East Palo Alto v. U.S. Dep’t of Health and Human Services, 25-2808
Appeal from: N.D. Cal. (Martinez-Olguin, J.)
Order Filed: 5/14/25 [sent for immediate filing]
Motions Panel: W. Fletcher Callahan (dissenting) Koh (author)
Subject Matter: Immigration/Injunctions
The panel denied the Government’s motion for a stay pending appeal of the district court’s order preliminarily enjoining the Government from terminating all funding for counsel to represent unaccompanied children in immigration proceedings.
The panel concluded the Government had not shown a likelihood of success on the merits. Plaintiffs bring Administrative Procedure Act claims based on the Government’s alleged statutory and regulatory violations. The relevant statutes and regulations state that the Government “shall ensure” legal representation for unaccompanied children “to the greatest extent practicable.” Congress has appropriated funds for this statutorily mandated purpose for over a decade and as recently as 2025. The Government’s decision to terminate all funding in violation of the statutory mandate was not committed to agency discretion and is subject to judicially manageable review. “To the greatest extent practicable” does not mean “to no extent at all.” Moreover, plaintiffs have no contract with the Government. Thus, the Tucker Act, which governs contract claims against the government and requires that such claims be brought in the Court of Federal Claims, does not apply. Even the Government concedes that plaintiffs could not have brought their claims in the Court of Federal Claims.
The panel also concluded that the Government had not shown it would suffer irreparable injury absent a stay. Unlawfully refusing to disperse congressionally appropriated funds for statutorily mandated purposes cannot constitute irreparable injury. Nor does the effect of the injunction on separation of powers constitute an irreparable injury that justifies a stay.
Judge Callahan dissented for the reasons provided in the dissent from rehearing en banc that she joined in the prior appeal in this case. See Cmty. Legal Servs. in E. Palo Alto v. United States Dep’t of Health & Hum. Servs., No. 25-2358, --- F.4th ----, ---, 2025 WL 1203167, at *3-4 (9th Cir. Apr. 25, 2025) (Bumatay, J., and VanDyke, J., dissenting from the denial of rehearing en banc). Judge Callahan wrote that, even if the district court had jurisdiction under the Administrative Procedure Act, the decision to terminate funding—or the decision of who to fund—is committed to agency discretion by law under 5 U.S.C. § 701(a)(2). She would therefore grant the Government’s stay motion.
The United States Supreme Court decided the following case today:
Barnes v. Felix, 23-1239
Link: 23-1239 Barnes v. Felix (05/15/2025)
Subject Matter: Excessive Force
Vacating a judgment of the Fifth Circuit, 91 F.4th 393 (5th Cir. 2024), the Supreme Court held that when evaluating a Fourth Amendment claim alleging that law enforcement officials used excessive force, courts should consider the totality of the circumstances, including the facts and events leading up to the climactic moment, rather than applying the moment of the threat doctrine, which evaluates the reasonableness of an officer's actions only in the narrow window when the officer's safety was threatened and not based on events that preceded the moment of the threat.
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