Garten Trucking LC v. NLRB

NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ V.O.S. SELECTIONS, INC., PLASTIC SERVICES AND PRODUCTS, LLC, dba Genova Pipe, MICROKITS, LLC, FISHUSA INC., TERRY PRECISION CYCLING LLC, Plaintiffs-Appellees v. DONALD J. TRUMP, in his official capacity as Pres- ident of the United States, EXECUTIVE OFFICE OF THE PRESIDENT, UNITED STATES, PETE R. FLORES, Acting Commissioner for United States Customs and Border Protection, in his official ca- pacity as Acting Commissioner of the United States Customs and Border Protection, JAMIESON GREER, in his official capacity as United States Trade Representative, OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE, HOWARD LUTNICK, in his official capacity as Secretary of Commerce, UNITED STATES CUSTOMS AND BORDER PROTECTION, Defendants-Appellants ______________________ 2025-1812 ______________________ Appeal from the United States Court of International Trade in No. 1:25-cv-00066-GSK-TMR-JAR, Judge Gary S. 2 V.O.S. SELECTIONS, INC. v. TRUMP Katzmann, Judge Timothy M. Reif, and Senior Judge Jane A. Restani. ------------------------------------------------- STATE OF OREGON, STATE OF ARIZONA, STATE OF COLORADO, STATE OF CONNECTICUT, STATE OF DELAWARE, STATE OF ILLINOIS, STATE OF MAINE, STATE OF MINNESOTA, STATE OF NEVADA, STATE OF NEW MEXICO, STATE OF NEW YORK, STATE OF VERMONT, Plaintiffs-Appellees v. PRESIDENT DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, KRISTI NOEM, Secretary of Homeland Security, in her official capacity as Secretary of the Department of Homeland Security, UNITED STATES CUSTOMS AND BORDER PROTECTION, PETE R. FLORES, Acting Commissioner for United States Customs and Border Protection, in his official capacity as Acting Commissioner for U.S. Customs and Border Protection, UNITED STATES, Defendants-Appellants ______________________ 2025-1813 ______________________ Appeal from the United States Court of International Trade in No. 1:25-cv-00077-GSK-TMR-JAR, Judge Gary S. Katzmann, Judge Timothy M. Reif, and Senior Judge Jane A. Restani. ______________________ ON MOTION ______________________ V.O.S. SELECTIONS, INC. v. TRUMP 3 Before MOORE, Chief Judge, LOURIE, DYK, PROST, REYNA, TARANTO, CHEN, HUGHES, STOLL, CUNNINGHAM, and STARK, Circuit Judges. 1 PER CURIAM. ORDER The United States’s motions for a stay of the United States Court of International Trade’s rulings enjoining cer- tain Executive Orders imposing tariffs, the Plaintiffs-Ap- pellees’ oppositions, and the United States’s reply were presented to all circuit judges of this court in regular active service who are not recused or disqualified. Both sides have made substantial arguments on the merits. Having considered the traditional stay factors, see Fed. R. App. P. 8; Nken v. Holder, 556 U.S. 418, 426 (2009), the court con- cludes a stay is warranted under the circumstances. See also Trump v. Wilcox, 605 U.S. ___, 145 S. Ct. 1415, 1415 (2025) (per curiam) (“The purpose of . . . interim equitable relief is not to conclusively determine the rights of the par- ties, but to balance the equities as the litigation moves for- ward.” (quoting Trump v. Int’l Refugee Assistance Project, 582 U.S. 571, 580 (2017)). The court also concludes that these cases present issues of exceptional importance war- ranting expedited en banc consideration of the merits in the first instance. Accordingly, IT IS ORDERED THAT: (1) The motions for a stay pending appeal are granted. (2) All motions for leave to file briefs amicus curiae re- garding the stay motions are granted. (3) These consolidated cases will be heard en banc un- der 28 U.S.C. § 46 and Federal Rule of Appellate Procedure 1 Circuit Judge Newman did not participate. 4 V.O.S. SELECTIONS, INC. v. TRUMP 40(g). The court en banc shall consist of all circuit judges in regular active service who are not recused or disqualified in accordance with the provisions of 28 U.S.C. § 46(c). (4) Within two business days from the issuance of this order, the parties are directed to jointly file a proposed ex- pedited briefing schedule. The proposed briefing schedule should allow for this court to hold oral argument on July 31, 2025 at 10:00 A.M. in Courtroom 201. If the parties cannot agree upon a schedule, the joint submission should include the parties’ alternative proposals.

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT HELICOPTER ASSOCIATION No. 24-1008 INTERNATIONAL; SAFARI AVIATION, Agency No. Federal Aviation INC. DBA SAFARI HELICOPTERS Administration HAWAI‘I, MEMORANDUM* Petitioners, v. FEDERAL AVIATION ADMINISTRATION, Respondent. On Petition for Review of an Order of the Federal Aviation Administration Submitted June 5, 2025** Honolulu, Hawaii Before: W. FLETCHER, CHRISTEN, and DESAI, Circuit Judges. Helicopter Association International and Safari Aviation dba Safari Helicopters Hawai‘i (Petitioners) petition for review of the final decision * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). implementing an Air Tour Management Plan for Hawai‘i Volcanoes National Park (the Volcanoes ATMP) pursuant to 49 U.S.C. § 40128 (the Act). The Federal Aviation Administration (FAA) and the National Park Service (NPS) (collectively, the Agencies) issued the Volcanoes ATMP. The ATMP reduces the number of air tours authorized over the Park to 1,548 tours annually and restricts the routes, days, and hours that air tour operators may fly. The decision issuing the ATMP is a final order of the FAA, and Safari Aviation has its principal place of business in Hawai‘i, so we have jurisdiction pursuant to 49 U.S.C. § 46110(a). See also 49 U.S.C. § 40128(b)(5) (“An [ATMP] developed under this subsection shall be subject to judicial review.”). We review the final order pursuant to the Administrative Procedure Act’s (APA) arbitrary and capricious standard, 5 U.S.C. § 706(2)(A), Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). We deny the petition. The Act obligates the Agencies to satisfy the APA’s notice and comment provisions, 5 U.S.C. § 553. See 49 U.S.C. § 40128(b)(4)(B). And the APA requires the Agencies to “consider and respond to significant comments received during the period for public comment.” Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 96 (2015). Petitioners argue that the Agencies violated the APA by failing to respond to certain public comments. Specifically, Petitioners contend that the Agencies did 2 24-1008 not address two significant issues raised in public comments: (1) safety concerns regarding the route, time, and altitude restrictions; and (2) concerns that the reduction in the number of annual air tours will limit Park access for the elderly, persons with disabilities, and persons with mobility impairments. Petitioners cite several public comments located in Appendix J of the final Environmental Assessment (EA)1 and submitted during the public scoping process. Petitioners overlook a key portion of the administrative record: the Comment Summary Report located at Appendix L of the final EA and incorporated into the final decision. The Comment Summary Report responds to the specific categories of comments on which Petitioners base their petition. See Bldg. Indus. Ass’n of the Bay Area v. U.S. Dep’t of Com., 792 F.3d 1027, 1034 (9th Cir. 2015) (rejecting argument that agency did not consider economic impacts as “belied by the administrative record”). The Agencies’ FONSI/ROD also explains that the FAA reviewed all safety-related comments and details how the Agencies modified the draft ATMP to address safety concerns. The Agencies’ decision 1 The Act requires the Agencies to conduct an environmental review pursuant to the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332, when developing an ATMP. 49 U.S.C. § 40128(b)(2). As a result, the record of the Agencies’ final action resembles the type of record in most NEPA cases: an EA, a Finding of No Significant Impact (FONSI), and several EA appendices incorporated into the Record of Decision (ROD). This case, however, does not involve NEPA claims. Petitioners challenge only the Agencies’ compliance with the APA’s notice and comment procedures. 3 24-1008 “both acknowledged the comments identified by [Petitioners] and provided a reasoned response which de

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ALEJANDRO ROSAS MORLET, No. 24-1735 Agency No. Petitioner, A215-881-567 v. MEMORANDUM* PAMELA BONDI, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 5, 2025** San Francisco, California Before: CALLAHAN, BADE, and KOH, Circuit Judges. Alejandro Rosas Morlet, a citizen of Mexico, petitions for review of a decision by the Board of Immigration Appeals (“BIA”) dismissing an appeal from an order by an immigration judge (“IJ”) denying his application for cancellation of removal. We have jurisdiction under 8 U.S.C. § 1252. Where, as here, the BIA * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel previously granted the parties’ joint motion to submit this matter without oral argument. See Fed. R. App. P. 34(a)(2)(f). adopts and affirms the decision of the IJ and provides additional reasoning, we review both decisions. See Husyev v. Mukasey, 528 F.3d 1172, 1177 (9th Cir. 2008). We deny the petition. The agency determined that Rosas Morlet was not eligible for cancellation of removal because he did not establish that his removal “would result in exceptional and extremely unusual hardship” to his U.S. citizen children under 8 U.S.C. § 1229b(b)(1)(D). We have jurisdiction to review this determination as a mixed question of fact and law, but because “this mixed question is primarily factual,” our “review is deferential.” Wilkinson v. Garland, 601 U.S. 209, 225 (2024).1 The agency’s findings of fact underlying this determination—“[f]or instance, an IJ’s factfinding on credibility, the seriousness of a family member’s medical condition, or the level of financial support a noncitizen currently provides”—are unreviewable. Id. To establish an “exceptional and extremely unusual hardship,” a petitioner “must prove that his citizen relatives would suffer hardship substantially beyond that which would ordinarily be expected to result from” his removal. Chete Juarez v. Ashcroft, 376 F.3d 944, 949 n.3 (9th Cir. 2004) (internal quotation marks and 1 While Wilkinson did not define the “deferential” review required for review of “exceptional and extremely unusual hardship” determinations, 601 U.S. at 225, we recently held that “substantial evidence” review applies, see Gonzalez-Juarez v. Bondi, No. 21-927, slip op. at 11 (9th Cir.). No matter what “deferential” review applies, we would deny the petition. 2 24-1735 citation omitted). Rosas Morlet argues that the agency failed to consider the possible future progression of his daughter’s hypothyroidism and improperly weighed the evidence as to Rosas Morlet’s financial and emotional support for his children. We disagree. The agency acknowledged that Rosas Morlet’s daughter suffers from hypothyroidism, that Rosas Morlet’s children rely upon him financially, and that Rosas Morlet’s removal to Mexico would cause his children emotional hardship. See Ramirez-Perez v. Ashcroft, 336 F.3d 1001, 1006 (9th Cir. 2003) (explaining the agency must consider “the ages, health, and circumstances of qualifying relatives” (internal quotation marks and footnote omitted)). The agency also found that Rosas Morlet’s daughter would continue to receive medical treatment in Arizona if Rosas Morlet were removed to Mexico, so did indeed consider the possible future progression of the daughter’s medical condition. The agency ultimately determined that although Rosas Morlet’s removal would impact his children financially and emotionally, those impacts were not “beyond that which would ordinarily be expected to result from” his removal. Chete Juarez, 376 F.3d at 949 n.3 (citation omitted).2 Given the “deferential” standard of review, 2 In a single sentence, Rosas Morlet also argues that “exceptional and extremely unusual hardship . . . is unconstitutionally vague and is extremely subjective.” Because Rosas Morlet does not develop this argument further, we need not address this bare assertion. See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We 3 24-1735 Wil

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT EUGENE FRANCIS MENGUITO No. 24-2450 MONTERDE, Agency No. A087-171-123 Petitioner, v. MEMORANDUM* PAMELA BONDI, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submission Deferred March 19, 2025** Submitted June 6, 2025 Before: BOGGS,*** FRIEDLAND, and BRESS, Circuit Judges. Eugene Francis Menguito Monterde, a native and citizen of the Philippines, petitions for review of a Board of Immigration Appeals (BIA) decision dismissing * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Danny J. Boggs, United States Circuit Judge for the Court of Appeals, 6th Circuit, sitting by designation. his appeal from an Immigration Judge (IJ) order denying his application for cancellation of removal. “Where, as here, the BIA cites Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994) and also provides its own review of the evidence and law, we review both the IJ’s and the BIA’s decisions.” Cordoba v. Barr, 962 F.3d 479, 481 (9th Cir. 2020) (internal quotation marks and alterations omitted). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition. 1. Substantial evidence supports the agency’s conclusion that Monterde’s qualifying relatives, his two United States citizen children, would not experience “exceptional and extremely unusual hardship” upon Monterde’s removal from the United States, and that Monterde is therefore ineligible for cancellation of removal. 8 U.S.C. § 1229b(b)(1)(D). Although we lack jurisdiction to review the agency’s ultimate discretionary decision whether to grant cancellation of removal or any underlying findings of fact, we have jurisdiction to review the agency’s hardship determination as a mixed question of law and fact under 8 U.S.C. § 1252(a)(2)(D). See Wilkinson v. Garland, 601 U.S. 209, 212, 225 & n.4 (2024); Gonzalez-Juarez v. Bondi, ---F.4th---, 2025 WL 1440220, at *3 & n.2 (9th Cir. May 20, 2025). To demonstrate the required hardship, an alien must show hardship “that is substantially different from, or beyond, that which would normally be expected from the deportation of an alien with close family members [in the United States].” Gonzalez-Juarez, ---F.4th---, 2025 WL 1440220, at *8 (quoting In re Monreal- 2 24-2450 Aguinaga, 23 I. & N. Dec. 56, 65 (B.I.A. 2001)). In making this determination, the agency “evaluates ‘the ages, health, and circumstances’ of qualifying relatives.” Id. (quoting Monreal-Aguinaga, 23 I. & N. Dec. at 63). We review the agency’s hardship determination for substantial evidence. See id. at *7. “Under this standard, we must uphold the agency determination unless the evidence compels a contrary conclusion.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019). Substantial evidence supports the agency’s determination that Monterde did not demonstrate the required hardship for purposes of cancellation of removal. Monterde testified that his family would accompany him to the Philippines in the event of his removal. The agency found that Monterde could find housing and work in the Philippines, that his children could adapt, and that the evidence did not show that his older child would face greater risk in the Philippines due to his peanut allergy. The agency also found that Monterde did not show that any of his children’s medical or schooling needs could not be met in the Philippines. Given these findings, the record does not compel the conclusion that Monterde’s children would experience exceptional and extremely unusual hardship in the event of his removal. See Gonzalez-Juarez, ---F.4th---, 2025 WL 1440220, at *9 (“[T]he hardship determination requires hardship that deviates, in the extreme, from the hardship that ordinarily occurs in removal cases.”). 2. Monterde argues that the agency violated his due-process rights by not 3 24-2450 expressly discussing his fear of retur

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MICHAEL DEUSCHEL, No. 24-3129 D.C. No. Plaintiff - Appellant, 3:23-cv-03458-MMC v. MEMORANDUM* CALIFORNIA HEALTH AND HUMAN SERVICES AGENCY; Doctor MARK GHALY, Defendants - Appellees. Appeal from the United States District Court for the Northern District of California Maxine M. Chesney, District Judge, Presiding Submitted May 23, 2025 ** Pasadena, California Before: WARDLAW and OWENS, Circuit Judges, and HINDERAKER, District Judge.*** * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable John Charles Hinderaker, United States District Judge for the District of Arizona, sitting by designation.  Michael Deuschel appeals from the district court’s dismissal of his First Amended Complaint (FAC). The district court dismissed the FAC, with prejudice, for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) because the FAC did not comply with Federal Rule of Civil Procedure 8. We have jurisdiction under 28 U.S.C. § 1291. We reverse and remand. We review de novo the district court’s dismissal of the FAC pursuant to 28 U.S.C. § 1915(e) and dismissal under Rule 8. Hebrard v. Nofziger, 90 F.4th 1000, 1006 (9th Cir. 2024) (dismissal under 28 U.S.C. § 1915(e)(2)); In re Dominguez, 51 F.3d 1502, 1508 n.5 (9th Cir. 1995) (dismissal under Rule 8). We review for an abuse of discretion the district court’s dismissal of a complaint without leave to amend. United States v. United Healthcare Ins. Co., 848 F.3d 1161, 1172 (9th Cir. 2016). The district court did not err in dismissing the FAC pursuant to 28 U.S.C. § 1915(e)(2)(B) because the FAC did not comply with Rule 8. See Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1058–59 (9th Cir. 2011) (collecting cases affirming dismissal without leave to amend under Rule 8(a) where the complaint is unnecessarily long, repetitive, or confusing). The FAC fails to specify what actions taken by each defendant caused injury in violation of which laws. With respect to dismissal without leave to amend, “court[s] consider[] five 2 24-3129 factors in assessing the propriety of leave to amend—bad faith, undue delay, prejudice to the opposing party, futility of amendment, and whether the plaintiff has previously amended the complaint.” United States v. Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011) (citation omitted). As to the fourth factor, futility of amendment, we have explained that “[l]eave to amend is warranted if the deficiencies can be cured with additional allegations that are ‘consistent with the challenged pleading’ and that do not contradict the allegations in the original complaint.” Id. (quoting Reddy v. Litton Indus., Inc., 912 F.2d 291, 296–97 (9th Cir. 1990)). In dismissing the FAC without leave to amend, the district court failed to explicitly consider all the factors for dismissal without leave to amend. With respect to futility, the district court cited the standard set forth in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000)—that leave to amend should be granted unless a pleading “could not possibly be cured by the allegation of other facts”— but failed to identify any reasons for concluding that the FAC could not be cured with additional allegations. See DCD Programs v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987) (“If a district court believes the plaintiff is not able to state a claim, it should provide written findings explaining this. . . . [I]n the absence of written findings or a record which clearly indicates reasons for the district court’s denial, this court will reverse a denial of leave to amend.”). The district court’s 3 24-3129 observation that it was “unable to discern any attempt in the FAC to revise the complaint in such a way as to cure or even address the deficiencies identified in the Court’s prior screening order” does not suffice as consideration of futility becau