*1 460 correctly (cid:127)2. deter- populations

we held MI/GAU supports the a rational basis mined that “eligible for assistance under medical § 1115 Secretary’s expan- treat decision approved subchapter plan under State populations populations sion 1034 634 F.3d MI/GAU XIX.” Secretary exerts differently. That 42 U.S.C. (quoting § 1115 control over dem- 1395ww(d)(5)(F)(vi)(II)). if some amount § “Medic- and none over projects onstration Wash- indirectly money medi- aid subsidized provides a ra- ington’s programs by Washington’s cal treatment received MI/GAU treating populations still care tional populations, and MI their GAU reim- differently purposes Medicare definition of ‘medical [the] not meet in bursements. at 1035. Our decision assistance.’” Center University Washington Medical the rec- supplement motion to Plaintiffs’ "inthis case. outcome controls ord is DENIED. Uni- Contrary plaintiffs’ argument, AFFIRMED. Center is

versity Washington Medical Med- Portland Adventist

reconcilable with 1091 Thompson,

ical Center in the rele- To be included Medicare reimburse-

vant calculation, “eligi- patient must be

ment for medical assistance State ble under INC., CHLOE, California SOPHIA 42 plan approved subchapter under XIX.” Plaintiff-Appellee, corporation, 1395ww(d)(5)(F)(vi)(II). § Port- Center, held Medical we land Adventist phrase “eligible for assis- that the medical COLLECTIBLES, LLC, a BRIGHTON patients tance” covered under includes corporation, Defendant- California by the projects authorized demonstration Appellant. (“§ expansion popula- Secretary Chloe, Inc., a California F,3d

tions”). law at 1096-97. Federal corporation, Plaintiff- projects costs for such establishes that the Appellant, regarded expenditures ... be “shall plan.” State 1315(a)(2)(A)). § Collectibles, LLC, § populations deemed expansion corporation, under a medical assistance receive Defendant-Appellee. plan, they held that State 16-55681 No. regarded eligible for No. medical assistance plan. State Id. No federal under a similar of Appeals, Court United States governs patients, statute MI/GAU complete Washington control over retains patients programs. those MI/GAU Argued October and Submitted legally 1115 ex- therefore distinct from Pasadena, California share populations, pansion, they even University certain characteristics. Center,

Washington Medical & n.6. *2 (internal omitted). Thus, citations only express are the in the Buddha’s Kiss

idea contained ear- ring, appropriate then the standard is “vir- Cochran, Attorney, Michael Ken- Keith if there tually identical.” Whereas nu- Fitzgerald, Attorney, Moore Chapin neth express the merous idea the LLP, Fitzgerald CA, for Diego, Plain- earring, then appropri- tiff-Appellee “substantially ate standard is similar.” Freedman, Gary Gary Offices Law Freedman, CA, Monica, Santa Peter earring The Buddha’s not con- Ross, Wayne Esquire, Attorney, Keith J. any protectable tain individual elements. LLP, George Browne Wesley, Ross Los However, “[o]riginal selection, coordina- CA, for Angeles, Defendant-Appellant arrangement of ele- unprotectible and may protectible expression.” ments L.A. Before: RAWLINSON and N.R. SMITH, KORMAN,* Circuit Judges, and 2012), Judge. District reh’g reh’g amended on denial and en (June 13, 2012). ** banc The United States Copyright Office Sophia Chloe’s infringe 1. In an copyright for action copyright application, initial reasoning that ment, determine court must Kiss design Buddha’s did not contain to instruct authorship creative “sufficient within the “substantially or the similar” standard meaning of copyright statute and set- exacting more “virtually identical” stan Sophia tled case law.” & Chloe submitted a Mattel, Entm’t, Inc., dard. MGA request reconsideration, for arguing that 2010), Buddha’s to copy- was entitled (Oct. 21, 2010). reh’g amended denial of right protection, because it selected and may freely copy Given others common, arranged unproteetable three el- (and work’s ideas unproteetable other (1) symbol the henna for ements: the word elements), we start by kiss; image Buddha; and of the possible breadth expression shape. teardrop Based on If range those ideas. there’s a wide ment, granted Office (for expression gazil- example, there copyright & Chloe its but noted that the lions make an aliens-attack “sufficient, al- Buddha’s Kiss contained a movie), then copyright protection is though minimal, of original amount infringe and work if it’s “broad” will sculptural authorship treat- creative copyright- similar” configuration ment and of its elements.” If range there’s ed work. a narrow Thus, (emphasis original). (for expression example, idea; a single protectable contains many ways paint bouncy a red teardrop-shaped earring canvas), incorporating copyright blank ball symbol henna the word “kiss” protection “thin” and the and a work identical” to infringe. Korman, Honorable United Edward R. Judge States District for the District cation Eastern York, sitting by designation. 36-3. New ed Ninth Circuit Rule Earrings, Ama- bouncy not the case. See Women’s “a red painting Like the idea canvas,” zon.com, https://www.amazon.com/ a limited on blank ball teardrop- Womens-Earrings/b?ie=UTF8 (last incorporating the December shaped earring node=7454917011 visited 185,584 kiss symbol word selec- (offering *3 Printex, 676 at tions). F.3d seriously disagree my the Buddha. See L.A. I col- with that there are The correct 851. dissent is there leagues majority in the that were earring, design but ways to an numerous ways to depict only a number of limited question: whether misses the relevant in earrings at issue this Kiss design a or few many case. earring incorporating the teardrop-shaped trial, through presented At evidence was “kiss” symbol for the word expert testimony and actual diagrams, shape of the seeing designs. of After this pieces both earring that ways to an only few evidence, that jury determined elements, the dis incorporates those three infringed copy- on the had Collectibles instructing jury to court in trict erred design. Kiss The district righted Buddha’s similar” standard. Brighton’s court denied motion renewed oral & Chloe admitted of judgment as law. The a matter not ment that it meet could court’s majority rul- reversed Therefore, we reverse identical” standard. that, ing on the because to recon- for the district court and remand depict a limited number Brighton’s request sider its denial design, the should attorney’s Act. fees under the find that have instructed After court considered 2. virtually rather designs two were identical attorney’s fees un Brighton’s motion for substantially disagree. than similar. Act, overruled much of Lanham Indeed, majority’s is di- conclusion awarding attor our related precedent testimony of rectly to the contrary SunEarth, Act. fees ney’s under the “the designer. testified that minute She Co., Power Sun Earth Solar shape] at the [Buddha’s looked [she] 2016). 1179, 1181 (9th Thus, we vacate manipulate thought this [she] [she] order and remand so district court’s ways.” thousands different She make a decision court can that the district many differ- explained “[t]here are that legal articulated standard based things [Buddha’s ent I could do with SunEarth. three, small, multiple, shape] big, — their own costs The shall bear parties ten, explained also She whatever.” appeal. of the “can be all bracket part, VACATED REVERSED shapes” and “have all sorts different part, and REMANDED. majority’s The conclusion dimensions.” that there is limited

Rawlinson, Judge, dissenting: Circuit design com- depict the Buddha’s testimony and the real- ignores this pletely infinite number There are an accuses earring design. majority ity configured capture earrings can be question, Otherwise, the relevant but me no particular image. ignoring woman majority ignores the relevant answer more than own would motivated designer: that the Buddha’s Kiss that is from But we pair earrings. know manipulated could be Angove, “thousands Heather M. FPDCA —Federal Office, ways.” Public different Defenders Northern District California, Jose, CA, for Petitioner- a similar situation addressed in L.A. Appellant Swanson, Michele AGCA—Office of the L.A. Printex General, California Attorney San Francis- print design. involved a floral fabric See id. co, CA, for Respondent-Appellee at 850. though pattern the floral protectible, itself was the “original se THOMAS, Before: Judge, Chief and W. lection, coordination, PAEZ, FLETCHER and Judges. Circuit pattern protectible. floral Id. The same true the Buddha’s Kiss ear *4 rings. designer testified, theAs her “selec (“Zamudio- Zamudio-Reyes Socorro coordination and of the Reyes”) appeals the dismissal peti of his original elements protecti- tion corpus for a writ of habeas under 28 ble. Id. § 2254. jurisdiction have §§ 1291 and 2253. We review de dissent. respectfully novo a district court’s decision dismiss petition

federal habeas un time-barred 2244(d)(1). Roy 28 U.S.C. v. 964, Lampert, 465 F.3d We vacate and remand. Florida,

In Holland Supreme petitioner equi Court held a entitled ‘(1) tolling “only table if he shows he has his pursuing rights diligently, been ZAMUDIO-REYES, Socorro extraordinary that some circum Petitioner-Appellant, way’ prevented stance stood his 631, 649, timely filing.” 560 U.S. 130 S.Ct. 2549, 177 L.Ed.2d 130 Pace *, Attorney General, Xavier BECERRA 408, DiGuglielmo, 418, U.S. Respondent-Appellee. 1807, (2005)). S.Ct. L.Ed.2d No. 15-15518 petitioner is enti to equitable tolling, tled the Court Appeals, United States Court of overly rigid approach.” “an se per 653, Instead, 130 S.Ct. 2549. the Court Argued and November Submitted flexibility emphasized the to evalu needed Francisco, 2017 San ate equitable tolling claims. Id. at equitable tolling inqui 130 S.Ct. 2549. The ry must be undertaken a case-by-case circumstances, “specific basis because of predict advance, ten hard war special rant treatment an appropriate post- case.” Id. 130 S.Ct. 2549. Our Becerra predeces- Xavier substituted his sor, Harris, Attorney Kamala D. General. Fed cation and is not 43(c)(2). App, R. P. Ninth ed Circuit Rule 36-3.