|
IMMIGRATION
Bona v. Gonzalez, September 30
A Philippine woman,
whose husband has served for 19 years in the US Navy and is a naturalized
US citizen, fled the Philippines to the US with her three children as
"endangered family members of a serviceman when Mt. Pinatubo erupted."
J. Hug finds that the immigration judge invalidly denied application for
adjustment of status under an INS regulation after she was paroled into
the US at the time of her arrival. The regulation is in conflict with
the governing statute and is thus invalid.
----------------------------------
SANCTIONS
Levinson v. Baldwin, September 30
J. D. W. Nelson
finds that the lower court properly sanctioned attorney Levinson for filing
a baseless RICO complaint because his client's second counsel recommended
that they request voluntary dismissal of the complaint, which suggests
that Levinson did not conduct a reasonable inquiry before filing the complaint.
However, Community Bank failed to satisfy the safe harbor provision of
Rule 11.
----------------------------------
SENTENCING
USA v. Cortez-Arias, September 30
USA v. Cortez-Arias, April 18
[Amended opinion.]
J. Gould finds that defendant's conviction for shooting into an inhabited
dwelling is a crime of violence for sentencing enhancement purposes.
----------------------------------
JUDICIARY
In re Judicial Misconduct, September 30
In a complaint against
a judge charged with exchanging judicial action for sexual favors, the
circuit finds that the Judicial Council has thoroughly investigated the
action and taken appropriate corrective measures to ensure the integrity
of the judicial system. Affirmed.
-------------------------------
VETERANS, CONSTITUTION
Santiago v. Rumsfeld, September 18
Santiago v. Rumsfeld, May 13
[Amended opinion,
petition for rehearing denied.] Santiago, a sergeant in the Army National
Guard facing immediate deployment to Afghanistan, had his 8 year enlistment
extended under the military's stop-loss program extended for the war on
terror. J. Canby finds that the stop-loss program neither violated his
enlistment agreement or due process. Affirmed.
---------------------------------
IMMIGRATION
Jiang v. Gonzalez, September 23
Joining the First
and District of Columbia Circuits, J. Callahan rejects Jiang's argument
that he was not an arriving alien because he was inspected and admitted
when he entered the US on "transit-without-visa" status in 1989.
----------------------------------
SENTENCING
USA v. Dare, September 23
J. Leavy finds that
Dare's mandatory minimum sentence, for discharging a firearm during the
commission of a drug offense and imposed through judicial factfinding
utilizing a preponderance of the evidence standard, does not violate the
Sixth Amendment.
----------------------------------
HABEAS
Jackson v. Roe, September 23
J. Berzon finds
that the district court must allow Jackson to stay his exhausted habeas
claims while Jackson pursues his unexhausted habeas claims below. The
district court failed to apply the standards regarding staying a mixed
habeas petition enunciated in Rhines, "quite understandably, as Jackson's
petition was dismissed almost three years prior to the decision in Rhines."
----------------------------------
ROBBERY
USA v. Lynch, September 23
USA v. Lynch, May 13
[Order. Rehearing
en banc granted.] Per curiam, the circuit finds that defendants' actions
had a direct effect on interstate commerce to support their Hobbs Act
convictions for the robbery/murder of their co-conspirator in a drug distribution
ring.
----------------------------------
LICENSING
Alaska Trojan Project v. Gutierrez, September
22
J. Brunetti finds
that National Fisheries Service improperly denied Alaska Trojan's application
for an Aleutian Islands brown king crab endorsement under the license
limitation program for the Bering Sea and Aleutian Islands groundfish
and crab fisheries. Defendants' interpretation of the term "documented
harvest" is inconsistent with the plain meaning of that term as defined
in the regulations implementing the license limitation program, and defendants'
interpretation of documented harvest is inconsistent with the intent of
the license limitation program.
-------------------------------------
PROPERTY, ENVIRONMENT
Glenbrook Preservation v. Tahoe Regional Planning
Agency, September 21
J. Duffy finds that
there is no basis to apply federal environmental laws to a state agency's
determination that no environmental reports were necessary for a pier
construction project on Lake Tahoe. An easement that a homeowners' association
has on the beach where the pier is to be built is limited by the express
reservation of the property owner's right to develop the property for
recreational uses, and thus any such development cannot infringe on the
association's easement. Finally, the new pier owners do not have a right
to access the homeowners' association's community pier once the new pier
is built.
-------------------------------------
SENTENCING, JURY
USA v. Kortgard, September 21
J. Brunetti finds
that a jury should have determined whether defendant's marijuana cultivation
sentence should have been increased based on a finding that the applicable
guideline range inadequately represented the seriousness of Kortgaard's
criminal history and his likelihood of recidivism. Remanded in light of
Booker.
--------------------------------------
DEATH PENALTY, JURY
Sims v. Brown, September 21
J. Rymer finds that
defendant was properly sentenced to die after he murdered a Domino's Pizza
employee to payback his boss at another Domino's that had fired him a
few months before. Sims's rights under Miranda were not violated by the
admission of confessions obtained in a custodial setting after he invoked
his rights to counsel and silence; the prosecutor's peremptory challenges
to two Hispanic prospective jurors did not violate Batson; and his right
to an impartial jury was not violated when a member of his jury met with
a member of Padgett's jury and discussed writing a book about their experiences.
--------------------------------------
IMMIGRATION
Gabril v. Gonzalez, September 19
J. O'Scannlain accepts
Jibril's testimony as credible and, based on the Country Reports about
the status of the Yibir in Somalia and retaliation against those suspected
of collaborating with the Barre regime, vacates the immigration judge's
adverse credibility determination.
--------------------------------
CIVIL PROCEDURE
DHX v. Allianz AGF MAT, September 19
[Order.] The circuit
finds that the parties arrived at a complete financial settlement but
agreed to continue to litigate. Remanded for a determination of whether
the lower court improperly refused to dismiss for improper venue.
--------------------------------
CIVIL RIGHTS
Burrell v. McIlroy, September 19
J. Callahan finds
that, assuming without deciding that the encounter was an arrest and the
police lacked probable cause to arrest Burrell, a reasonable officer in
Detective Rector's position would have believed that he had probable cause
to arrest Burrell and to use force in doing so. Dismissal affirmed.
--------------------------------
VEHICLE
Tillison v. Locke, September 19
J. Pregerson finds
no merit to a towing service's challenge to Washington's towing regulations,
which require a property owner or public official to be present when towing
from private or public property, respectively. Also, the challenged statute
forbids the towing service from acting as an agent for the private property
owner or the public official.
--------------------------------
EMPLOYMENT
Hogya v. United Parcel Service, September 15
[Correction:
The summary title posted yesterday inaccurately listed the US Postal Service
rather than United Parcel Service.] J. Graber holds that a group of vision
impaired employees are sufficiently limited in the major life activities
of seeing and working under the Fair Employment and Housing Act's broad
definition of disability. Thus the district court correctly granted partial
summary judgment on "disability" in favor of those employees. However,
UPS has demonstrated that another group of employees, who likewise are
disabled, would "endanger the health or safety of others to a greater
extent than if an individual without a disability performed the job" and,
thus, has satisfied the safety-of-others defense. Affirmed in part.
------------------------------------
MARITIME
Ventura Packers v. Ingman, September 16
Ventura Packers v. F/V Jeanine Kathleen, August
11
[Amended opinion.]
J. Pregerson finds that the district court continued to have in rem jurisdiction
over seized fishing vessels that were subject to Ventura Packers' liens.
Further, the district court has the authority to order the Owners to reinstate
the security pursuant to the stipulation for value.
------------------------------------
TORT, RICO
Southern Union v. Southwest Gas, September 16
Southern Union v. Irvin, July 13
[Amended opinion.]
Irvin and another Arizona Corporations Commissioner used their positions
to obtain a commission on the merger of two companies, but the deal fell
apart when their self-dealing came to the surface. J. Noonan finds that,
"In Alice in Wonderland, the rule is 'Sentence first - Verdict afterwards.'
We could read our rule to mean Appeal first, Judgment afterwards. But
we are not in Wonderland. The parties' appeals were timely." The evidence
supported the jury's $390,000 compensatory damages award but the $60,000,000
punitive damages award was grossly disproportionate. Affirmed in part.
------------------------------------
SENTENCING
USA v. Cruz, September 16
Per curiam, the
circuit finds that that Booker does not apply retroactively to convictions
that became final prior to its publication.
------------------------------------
EMPLOYMENT
Hogya v. US Postal Service, September 15
J. Graber holds
that a group of vision impaired employees are sufficiently limited in
the major life activities of seeing and working under the Fair Employment
and Housing Act's broad definition of disability. Thus the district court
correctly granted partial summary judgment on "disability" in favor of
those employees. However, UPS has demonstrated that another group of employees,
who likewise are disabled, would "endanger the health or safety of others
to a greater extent than if an individual without a disability performed
the job" and, thus, has satisfied the safety-of-others defense. Affirmed
in part.
---------------------------------
COPYRIGHT, CONTRACT
Altera v. Clear Logic, September 15
Clear Logic creates
task specific semi-conductor chips for use in products with computers,
by taking "bitstream" from Altera's more general programmable semi-conductor
chips and applying it to a specific customer's needs. J. Hug upholds a
jury's award of $30.6 million on Altera's claims that Clear Logic violated
the Semi-Conductor Chip Act and finds that the lower court correctly ruled
that the state law interference with contract claims were not preempted
by federal copyright laws.
---------------------------------
BANKRUPTCY, ATTORNEY FEES
Ybarra v. Boeing North America, September 14
After filing for
bankruptcy protection, Ybarra convinced a state court to vacate the dismissal
of her employment claims against Rockwell. The bankruptcy court held that
despite Ybarra's discharge in bankruptcy, Rockwell's successful defense
of the employment suit meant that it could collect a portion of the fees
and costs incurred after Ybarra filed for bankruptcy. The bankruptcy appellate
panel's decision to the contrary is reversed.
-------------------------------------
EMPLOYMENT
Dominguez Curry v. Nevada Department of Transportation,
September 14
Plaintiff's supervisor
had a longstanding belief that women were ill-suited for the construction
industry. J. Paez finds that Dominguez presented ample evidence from which
a reasonable trier of fact could conclude that she was subjected to a
hostile work environment and that the decision not to promote her was
motivated at least in part by her gender.
|
SEARCH
USA v. Hernandez, September 14
Hernandez claimed
that border agents conducted an unreasonable search of his car when the
agents dismantled the interior panels of the doors, revealing packages
of marijuana. J. B. Fletcher concludes that the initial search of the
vehicle, which involved merely pulling back the interior panels of the
doors on the car in such a manner that they could be replaced without
damage, was not especially destructive or otherwise carried out in an
offensive manner. Affirmed.
-------------------------------------
SEARCH
USA v. Flores-Montano, September 14
Per curiam, the
circuit finds that the search of defendant's car, which revealed 38 pounds
of marijuana in the gas tank, was not subject to a suspicion requirement
because the search occurred while he crossed the border into the US. Affirmed.
-------------------------------------
SEARCH
USA v. Chaudry, September 14
Chaudhry contends
that border agents conducted an unreasonable search when the agents drilled
a 5/16-inch hole in the bed of her pickup truck, revealing a blue plastic
material inside the bed of her truck. J. B. Fletcher concludes that a
single hole with a diameter of 5/16 of an inch does not constitute a property
search that is "so destructive as to require a different result" than
denial of defendant's suppression motion.
-------------------------------------
TRIBAL LAW
Lewis v. Norton, September 13
Siblings claimed
that they are entitled to recognition as members of the Table Mountain
Rancheria, a federally-recognized Indian tribe, and thus to share in the
revenue of that tribe's very successful casino near Fresno, California.
Although their claim to membership appears to be a strong one, as their
father is a recognized member of the tribe, J. Schroeder finds that the
siblings' claim cannot survive "the double jurisdictional whammy" of sovereign
immunity and lack of federal court jurisdiction to intervene in tribal
membership disputes. Dismissal affirmed.
-------------------------------------
BANKRUPTCY
Weinstein Eisen v. Gill, September 13
J. O'Scannlain finds
that a lender to a bankrupt condominium development can effectively specify
that post-petition loans it makes may be used only for certain purposes.
-------------------------------------
LABOR
Recon Refactory v. NLRB, September 13
To decrease its
labor costs, Recon reassigned work previously performed by Bricklayers
members to employees from the Industrial, Professional and Technical Workers
International Union. J. Paez finds that the dispute is fundamentally a
work-preservation dispute between Recon and the Bricklayers, not an inter-union
jurisdictional dispute between the Bricklayers and the IPTW and because
Recon itself precipitated the dispute to avoid its obligations to the
Bricklayers, the NLRB's decision to quash notice of hearing is affirmed.
-------------------------------------
FAMILY LAW
ASW v. Oregon, September 13
J. Clifton finds
that parents of adopted children with special needs have an enforceable
right of action under Section 1983 to challenge procedural and substantive
violations of the Adoption Assistance and Child Welfare Act. Dismissal
reversed.
-------------------------------------
BANKRUPTCY
Sasson v. Sokoloff, September 13
In re Sasson, August 25
[Amended opinion.]
J. Thomas finds that a bankruptcy court has subject matter jurisdiction
to enter a money judgment in a nondischargeability adversary proceeding
where the underlying debt has been reduced to judgment in state court.
--------------------------------------
USA v. Smith, September 13
J. Hawkins finds that
Smith and Bates were properly convicted for multiple counts of tax fraud,
mail and wire fraud, money laundering, and conspiracy. Remanded in light
of Ameline.
-------------------------------------
MEDICARE, ADMINISTRATIVE LAW
Alaska Health and Human Services v. Center for
Medicare Services, September 12
The Administrator
of the Centers for Medicare and Medicaid Services disapproved a proposed
Medicaid state plan amendment that would alter the rate at which the federal
government reimburses state expenditures on behalf of patients at Indian
tribal health facilities. J. Brunetti finds that the Administrator was
not arbitrary or capricious when it ruled that the state plan was inconsistent
with the statutory requirement of efficiency, economy, and quality of
care and when it ruled that the plan failed to comply with a regulation
governing payment ceilings.
--------------------------------------
GOVERNMENT, TORT
Autrey v. USA, September 12
Plaintiffs claimed
that the federal government negligently maintained firebreaks near State
Route 24 along the Fitzner-Eberhardt Arid Lands Ecology Reserve and that
negligence caused fire to spread from highway onto the Reserve and ultimately
to plaintiffs' properties. J. King finds that because the federal government
included firebreak maintenance in its maintenance contracts and subcontracts,
the government is entitled to immunity from plaintiffs Federal Tort Claims
Act suit under the independent contractor exception.
-------------------------------------
IMMIGRATION
Morales-Izquierdo v. Gonzalez, September 12
Morales-Izquierdo v. Ashcroft, November 18
[Rehearing granted.]
J. Thomas finds that an immigration judge must conduct all proceedings
for deciding the inadmissibility or deportability of an alien. Thus the
Attorney General's regulation that vests that authority in immigration
officers is in conflict with the Immigration and Nationality Act. Petition
granted.
------------------------------------
CIVIL RIGHTS
Kennedy v. Ridgefield, September 12
Kennedy v. Ridgefield, June 23
[Amended opinion.]
Plaintiff sued the
city after she and her now-deceased husband were shot while they slept
by a neighbor they had accused of molesting their daughter. J. Browning
concludes that the circuit has jurisdiction to determine whether the trial
court erred when it held that Officer Shields was not entitled to qualified
immunity for unreasonably creating a false sense of security in plaintiffs
by agreeing to give plaintiffs advanced notice of advising the molester's
family of the allegation that he sexually molested the daughter, and assuring
plaintiffs of a neighborhood patrol. On the merits, Officer Shields violated
plaintiff's constitutional rights.
------------------------------------
IMMIGRATION
Martinez-Rosas v. Gonzalez, September 12
J. Wardlaw finds
that habeas appeals challenging final removal orders that were pending
on the date the REAL ID Act of 2005 became effective shall be treated
as petitions for review. Although the circuit has jurisdiction to review
constitutional claims and questions of law presented in petitions for
review of final removal orders, it lacks jurisdiction to review the subjective,
discretionary determination that an alien failed to satisfy the "exceptional
and extremely unusual hardship" requirement for cancellation of removal.
-------------------------------------
IMMIGRATION
USA v. Smith-Balzthier, September 11
The district attorney
refused to hand over a copy of a birth certificate from defendant's mother,
so that defense counsel could challenge his illegal reentry conviction
based on derivative citizenship, because the government felt the certificate
was fraudulently obtained. J. Reinhardt finds that defendant is not collaterally
estopped from challenging his status as an alien and that he is entitled
to present evidence of his reasonable belief that he did not need permission
to reenter. Vacated.
--------------------------------
CIVIL PROCEDURE, TRIBAL LAW, TAX
Wilbur v. Locke, September 11
Plaintiffs challenged
an anticipated contract between Washington and the Swinomish Indian Tribe
regarding taxation of cigarette sales by Indian retailers. The district
court held that the Tax Injunction Act barred the action and dismissed.
J. Wallace finds that the lower court should have dismissed for failure
to join an indispensable party, the tribe.
--------------------------------
CONSTITUTION
RJ Reynolds v. Shewry, September 11
RJ Reynolds v. Shewry, September 28
[Amended opinion.]
Three tobacco companies claimed that California violated their First Amendment
rights by imposing a surtax on cigarettes and then using some of the proceeds
of that surtax to pay for advertisements that criticize the tobacco industry.
J. Fisher finds that the tobacco companies have not stated a First Amendment
violation.
--------------------------------
SEARCH
USA v. Scott, September 11
On first impression,
J. Kozinski finds that police may not conduct a search based on less than
probable cause of an individual released while awaiting trial.
--------------------------------
SENTENCING
USA v. Murrillo, September 11
J. Thompson finds that,
notwithstanding the Supreme Court's decision in Blakely v. Washington,
in determining whether a Washington state conviction is of a crime punishable
by a term exceeding one year for purposes of the felon in possession of
a firearm statute, the maximum sentence for the prior conviction is defined
by the state criminal statute, not the maximum sentence in the particular
case set by Washington's sentencing guidelines.
--------------------------------
IMMIGRATION
Carrera Alvarez v. Gonzalez, September 8
Petitioner claimed
the immigration judge's denial of his cancellation of removal petition
based on the extreme hardship it would cause his two young children, who
are US citizens, violated international law. Even assuming that the unratified
Convention on the Rights of the Child has attained the status of customary
international law, J. Graber finds that petitioner fails to show that
the agency's interpretation or application of the statute is inconsistent
with the Convention.
--------------------------------
ENVIRONMENT
Fairhurst v. Hagener, September 8
Per curiam, the
circuit holds that a pesticide applied to a river pursuant to an intentional
scheme aimed at eliminating pestilent fish species is not a "pollutant"
for the purposes of the Clean Water Act and thus not subject to the Act's
permit requirements.
--------------------------------------
CIVIL RIGHTS
McSherry v. Long Beach, September 8
McSherry served
14 years of a 48 year sentence he received for the kidnapping/rape of
a four year old girl, but for which he was later exonerated with DNA evidence.
McSherry then sued Long Beach and the officers who arrested investigated
the crime and eventually arrested him. J. D. W. Nelson finds that the
district court inappropriately granted the City of Long Beach's motion
for judgment as a matter of law before any evidence had been presented.
Reversed.
--------------------------------------
COMMUNICATIONS
Metrophones Telecommunications v. Global Crossings,
September 8
J. Graber, reversing
an earlier circuit decision to the contrary, finds that Metrophones, a
provider of payphone services, may sue a long distance carrier to recover
compensation that federal regulations obligate the carrier to pay.
-------------------------------------
TRANSPORTATION
Rivas v. Rail Delivery Service, September 8
After the district
court found that motor carriers had entered into past contracts with plaintiffs
that did not comply with one of the Truth-in-Leasing regulations under
the Motor Carrier Act, plaintiffs claimed they were entitled to further
relief. J. Tashima finds that plaintiffs lacked standing because the regulatory
violations for which they sought injunctive relief caused them no injury,
and the Interstate Commerce Commission Termination Act would have an impermissible
retroactive effect if it conferred standing to bring claims for damages
on the basis of contracts executed before its effective date.
|
PROSECUTORIAL MISCONDUCT, INEFFECTIVE ASSISTANCE
Earp v. Brown, September 8
J. Tallman finds
that Earp, convicted of the rape murder of an 18 month old girl, was entitled
to a hearing on his claims of prosecutorial misconduct and ineffective
assistance.
--------------------------------------
HABEAS, CIVIL RIGHTS
Osborne v. District Attorney for the Third Judicial
District, September 8
Osborn sought biological
evidence used to convict him in 1994 so that he could submit it for the
more stringent DNA testing methods of today. J. Brunetti finds that success
on the merits of his § 1983 claim would not "necessarily imply" the invalidity
of his state court conviction such that he should have brought the claim
as a habeas petition. Reversed.
-------------------------------------
PROSECUTORIAL MISCONDUCT
Barker v. Fleming, September 8
J. McKeown finds
that even though the Washington Supreme Court failed to consider the cumulative
effect of the prosecution's undisclosed evidence and that its decision
was contrary to clearly established Supreme Court precedent, the witness
who would have been impeached by the suppressed evidence was so severely
discredited and not so critical to the prosecution's case that there is
no reasonable probability that the withheld evidence would have affected
the outcome.
--------------------------------------
IMMIGRATION
Smolniakova v. Gonzalez, September 7
J. D. W. Nelson
finds that the immigration judge erroneously denied Smolniakova's request
to review the termination of her conditional resident status because Smolniakova
had not proven that her marriage in 1993 to a US citizen was genuine,
and found her deportable. Smolniakova is entitled to a new hearing in
which she has a full and fair opportunity to establish her credibility
in the qualifying marriage context. The immigration judge shall also determine
whether the government established that Smolniakova did not intend to
establish a life together with her husband at the time of their marriage,
even though she separated from him only four years later.
-------------------------------------
BANKRUPTCY, ATTORNEYS
Neary v. Keravision, September 7
[Order.] The circuit
finds that the district court correctly approved the appointment of a
law firm. The trustee failed to raise the rules of professional responsibility
in its challenge to the law firm's appointment before the district court.
-------------------------------------
MURDER
Menendez v. Terhune, September 7
The infamous Menendez
brothers, who claimed to have killed their parents after years of physical
and sexual abuse, received life without the possibility of parole despite
their claim to an imperfect self defense. J. Trott finds that the trial
court properly admitted evidence of Lyle's therapy session with his doctor
and properly refused to give an imperfect self defense instruction to
the jury based on the brothers lack of evidence. Affirmed.
------------------------------------
DOUBLE JEOPARDY
Williams v. Bodo, September 7
Defendant, after
partying all night on ecstasy and marijuana, fell asleep at the wheel
and crossed the center median, killing six juvenile camp workers who were
cleaning the freeway. J. D. W. Nelson finds that the Nevada Supreme Court
specifically held that the two subsections of the DUI statute under which
defendant was convicted do not create separate offenses, and thus do not
violate double jeopardy. Affirmed.
------------------------------------
EVIDENCE, COMPETENCE
Boyde v. Brown, September 7
Boyde v. Woodford, April 21
J. Kozinski finds
that defendant incorrectly claimed that the prosecutor and a co-defendant
had reached a secret agreement whereby the co-defendant would be spared
the death penalty in exchange for testimony that defendant was with shooter
in a murder, robbery kidnapping. The prosecutor's words and actions can
be explained by circumstances other than the existence of an agreement.
Given the abundant evidence that Boyde was competent at trial, Dr. Woods's
retrospective assertion to the contrary does not provide a substantial
basis for questioning Boyde's competence.
--------------------------------------
ENVIRONMENT
Association of Irradiated Residents v. EPA, September
6
J. Schroeder finds
that the EPA has properly approved of the San Joaquin Valley's PM-10 attainment
plan, despite the extension of the attainment deadline to 2010. The approval
came after extensive public comments, and comports with the overall structure
and purpose of the Clean Air Act.
-------------------------------------
CONSTITUTION, DAMAGES
Planned Parenthood v. American Coalition of Life
Activists, September 6
J. Rymer finds that
the district court improperly held that the $108.5 million in punitive
damages awarded by a jury in 1999 against defendants for violations of
the Freedom of Access to Clinic Entrances Act comports with due process.
Remanded for a redetermination of damages.
-------------------------------------
LABOR
AFL-CIO v. Chamber of Commerce, September 6
J. Beezer finds
that a California statute, which bars employers from spending "state funds"
on union-related speech, is preempted by the National Labor Relations
Act because it chills employers from exercising their free speech rights
that are explicitly protected by Congress under Act.
------------------------------------
EMPLOYMENT, CIVIL PROCEDURE
Wood v. GCC Bend, September 6
J. Rymer finds that
the lower court prematurely granted Wood's certification to appeal the
denial of her constructive discharge-based claims when her claims based
on adverse employment actions were still pending. Dismissed for lack of
jurisdiction.
------------------------------------
ELECTIONS
Caruso v. Oregon, September 6
Oregon requires
that ballots for initiatives proposing local option taxes include a statement:
"This measure may cause property taxes to increase more than three percent."
J. Clifton finds that the lower court erred when it ruled that that inclusion
of the three percent warning violated Caruso's First Amendment rights
as a petition circulator and his due process rights as a voter. Reversed.
------------------------------------
CONSTITUTION
Thornton v. City of St. Helens, September 6
The owner of the
only automobile wrecking yard in St. Helens claimed that the certificate
renewal procedures employed by the city had resulted in delays which deprived
them of property without due process of law. J. Clifton finds that an
adverse judgment in a prior state court action brought by Mr. Thornton
bars relitigation of the issue of whether the city has discretion to condition
approval of renewal applications on compliance with local regulations.
The Thorntons do not have a property interest in the timely renewal of
their wrecker certificate.
------------------------------------
ENERGY
Bonneville Power Administration v. EPA, September
6
J. McKeown finds
that the Federal Regulatory Energy Commission does not have refund authority
over wholesale electric energy sales made by governmental entities and
non-public utilities. "We are not unmindful of the impact our decision
may have on the overall refunds claimed by California ratepayers. But
it is not our task to second guess Congress's judgment as to the breadth
of FERC's refund authority."
------------------------------------
IMMIGRATION
USA v. Hovesepian, September 6
USA v. Hovesepian, March 2
[En banc.] Hovsepian
and Yacoubian planned to bomb the offices of the Honorary Turkish Consul
General in Philadelphia, Pennsylvania but were thwarted in their attempts.
J. Graber previously found that the lower court committed legal errors
that caused it to analyze appellants' subsequent naturalization applications
incompletely. J. Graber now finds that, on remand, the lower court correctly
administered the oath of citizenship to petitioners.
------------------------------------
PRISONER RIGHTS
Brown v. Valhoff, September 6
J. Berzon finds
that the application of the Prisoner Litigation Reform Act's exhaustion
requirement to two inmates that filed grievances with a prison grievance
system and, who received some relief before the final level of review
but did not pursue his grievance further, leads to the conclusion that
Prisoner Brown adequately exhausted the available grievance process but
prisoner Hall did not.
------------------------------------
SENTENCING
USA v. Kelly, September 6
J. W. Fletcher finds
that the district court correctly held that Kelly's Washington state conviction
for attempting to elude a police vehicle was not a "crime of violence"
under the sentencing guidelines and thus not a predicate conviction for
the career offender.
------------------------------------
JURY
USA v. Esperaza-Gonzalez, September 6
J. D. W. Nelson
finds that, for purposes of determining whether a prima facie case of
a Batson violation has been established, waivers of peremptory strikes
in a struck jury system should be treated the same as exercises of peremptory
strikes in an alternate system. Reversed in part.
------------------------------------
INEFFECTIVE ASSISTANCE
Washington v. Lambert, September 6
J. Tashima reject's
Washington's claim that his counsel was ineffective in the negotiation
and execution of his sentencing stipulation, which waived his right to
appeal in exchange for a stipulated sentence of life imprisonment with
the possibility of parole. Washington's waiver of his right to file a
federal habeas petition is enforceable with respect to an ineffective
assistance claim that challenged the validity of the waiver itself. Affirmed.
------------------------------------
EMPLOYMENT
Christopher v. National Education Association,
September 2
Plaintiffs' supervisor
created an employment atmosphere that placed women in a "general state
of fear" based on the supervisor's in-your-face management style. J. Goodwin
holds that offensive conduct that is not facially sex-specific nonetheless
may violate Title VII if there is sufficient circumstantial evidence of
qualitative and quantitative differences in the harassment suffered by
female and male employees.
------------------------------------
PROBATION
USA v. Stephens, September 2
J. Weiner finds
that the requirement that Stephens participate in substance abuse treatment,
including in-treatment drug testing, was an order of the district court
and not an improper delegation of Article III judicial authority to the
probation department. Also, as part of a court ordered treatment program,
defendant may be required to undergo regular drug testing, in addition
to the number of tests that are ordered as part of his supervised release.
However, the testing condition here was an improper delegation of the
district court's duty to set the maximum number of non-treatment drug
tests to which Stephens would be subjected during the course of his supervised
release. Vacated in part.
--------------------------------------
IMMIGRATION
Bhasin, September 1
A 63 year old Indian
woman claimed two family members disappeared after threats from Islamic
fundamentalist looking for her eldest son, who worked for the border security
force on the
Kashmir border. J. B. Fletcher concludes that the woman is eligible
for withholding of removal based on evidence not available at the time
of the original hearing, namely that three more members of her family
are now missing. The Board of immigration appeals should have allowed
her to reopen.
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ENVIRONMENT
National Wildlife Federation v. National Marine
Fisheries, September 1
The lower court required
the United States to pass a specified amount of water through the spillgates
of four dams on the Snake River, and one dam on the Columbia River during
the summer months of 2005, rather than passing the water through turbines
for power generation, in order to help salmon populations. Per curiam,
the circuit finds that the district court properly ordered preliminary
injunctive relief in the face of the government's refusal to change its
summer dam procedures but that the lower court must now take into consideration
issues raised by the parties' arguments on appeal related to the scope
of the injunction.
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LABOR
Thorman v. American Seafoods, September 1
J. McKeown finds that
an on-board fish processor for American Seafoods failed to meet the six-month
contractual deadline for challenging the fishing company's calculation
of his wages. Affirmed.
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