                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 02 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



ERIC W. OLSEN; KEVIN SWARTZ;                     No. 07-35616
JASON McBRIDE,
                                                 D.C. No. CV-05-06365-MRH
              Plaintiffs - Appellees,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,
in his official capacity as Attorney General
of the United States of America,

              Defendant - Appellant.



ERIC W. OLSEN; KEVIN SWARTZ;                     No. 07-35762
JASON McBRIDE,
                                                 D.C. No. CV-05-06365-MRH
              Plaintiffs - Appellants,

  v.

ERIC H. HOLDER, Jr., Attorney General,
in his official capacity as Attorney General
of the United States of America,

              Defendant - Appellee.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael R. Hogan, District Judge, Presiding

                        Argued and Submitted July 14, 2010
                                Portland, Oregon

Before: PREGERSON, WARDLAW and RAWLINSON, Circuit Judges.




      Eric Olsen, Kevin Swartz and Jason McBride (together Appellees)

challenged the constitutionality of 11 U.S.C. yy 526-528.




      1.     Subsequent to the district court's ruling that 11 U.S.C. y 526(a)(4)

violated the First Amendment, the United States Supreme Court decided that 11

U.S.C. y 526(a)(4) is constitutional. See Milavetz, Gallop & Milavetz, P.A. v.

United States, 130 S. Ct. 1324, 1339 (2010). Milavetz requires reversal of the

district court's decision to the contrary. Although the Supreme Court only

addressed the Fifth Amendment challenge, its reasoning applies equally to the First

Amendment challenge.




      2.     As observed in Milavetz, 11 U.S.C. y 528 permits debt relief agencies

to customize the required disclosure statement so long as it is 'substantially



                                     Page 2 of 3
similar' to the statement in the statute. Milavetz, 130 S. Ct. at 1341. Hence,

McBride is not compelled to engage in false speech. Therefore, the district court's

decision to dismiss this claim is affirmed.




      3.      Because 11 U.S.C. yy 526-528 caused Appellees to censor their

advertisements, they had standing to bring a Fifth Amendment Due Process claim.

See California Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1094 (9th Cir.

2003). However, Appellees' vagueness argument under the Fifth Amendment is

unpersuasive. As the parties acµnowledged during oral argument, the challenged

terms were widely used prior to the passage of 11 U.S.C. yy 526-528.

Additionally, 'due process does not require 'impossible standards of clarity.''

Information Providers' Coalition for Defense of the First Amendment v. FCC, 928

F.2d 866, 874 (9th Cir. 1991) (citation and internal quotation marµs omitted).

Therefore, the district court's dismissal of this claim is also affirmed.




      REVERSED in part and AFFIRMED in part. Each party is to bear its

own costs on appeal.




                                      Page 3 of 3
                                                                              FILED
Olsen v. Holder, No. 07-35616; Pregerson, J., Special Concurrence:            NOV 02 2010

                                                                          MOLLY C. DWYER, CLERK
      I concur and add these words: Our banµruptcy laws are rooted in our CO U RT OF AP PE A LS
                                                                      U.S .




Constitution. Article I, Section 8, Clause 4, gives Congress the power to establish

'uniform laws on the subject of banµruptcies throughout the United States.' In

1978, Congress passed the Banµruptcy Reform Act (11 U.S.C.A. y 101 et seq.),

which, along with major amendments passed in 1984, 1986, and 1994, is µnown as

the Banµruptcy Code.

      I wish to emphasize the important worµ done by banµruptcy attorneys who

represent distressed debtors seeµing a fresh start under the Banµruptcy Code. Such

a fresh start is one of the µey purposes of our banµruptcy laws. Banµruptcy

attorneys, in many cases, represent vulnerable low-income debtors who are saddled

by credit card and mortgage debt during these hard economic times. Many

banµruptcy attorneys worµ day in and day out to see to it that low-income

vulnerable debtors stand a chance for a fresh start against lending organizations

who exact unconscionable interest rates and unfair conditions in their required

paperworµ. It is important to remember that these sµilled banµruptcy attorneys act

with integrity, diligence, and heart.
