Willamette Law Online

( 1474 summaries )

9th Circuit Court of Appeals Updates

Jin v. Holder

Immigration: In an adverse credibility determination, substantial evidence must reasonably show that a petitioner is not credible based on the totality of circumstances.

(Filing Date: 04-19-2014)

Gallardo v. United States

Tort Law: In pursuing a Federal Tort Claims Act (“FTCA”) action, a plaintiff’s claim accrues when she becomes aware of her injury and its cause, however, equitable tolling of the FTCA’s statute of limitations may be appropriate in some circumstances.

(Filing Date: 04-15-2014)

Jackson v. Barnes

Criminal Law: A claim brought under 42 U.S.C. § 1983 is not barred if the second conviction will not be affected, even if the damages are nominal because the prisoner was serving time for an unrelated conviction.

(Filing Date: 04-15-2014)

Meritage Homes of Nevada V. FDIC

Consumer Credit: The Federal Deposit Insurance Corporation may satisfy judgments against it with receiver's certificates as opposed to cash.

(Filing Date: 04-15-2014)

United States v. Charles

Criminal Law: The Fair Sentencing Act of 2010’s provisions only apply to offenders who are sentenced after August 3, 2010 and Amendment 750 to the United States Sentencing Guidelines does not apply to those sentenced under the career offender guideline.

(Filing Date: 04-15-2014)

Yokeno v. Sekiguchi

Civil Procedure: Organic Act of Guam granted the District Court of Guam the same privileges other courts possess regarding diversity jurisdiction that have been set forth in Article III., but because the Constitution does not confer Article III courts diversity jurisdiction involving aliens, the Organic Act must also be limited by the Constitution and diversity jurisdiction involving aliens is not permitted.

(Filing Date: 04-15-2014)

Gordon v. Deloitte & Touchie

Insurance Law: The statute of limitations period cannot be reopened after an insurance company decided to reopen a claim because doing so would discourage any future decisions by insurance companies to reopen a claim even when the decision to do so may be warranted.

(Filing Date: 04-11-2014)

United States v. Gillenwater

Criminal Law: To authorize an order for involuntary medication to attain competency of a defendant, the court must find clear and convincing evidence that there is (1) an important governmental interest; (2) involuntary medication will significantly further that interest; (3) involuntary medication is necessary; and (4) the administration is medically appropriate.

(Filing Date: 04-11-2014)

United States v. Villalobos

Criminal Law: A district court's instruction that all threats to testify are produce information are "wrongful" is erroneous if they were made with the intend to induce or take advantage of fear, however when the error is harmless it is overlooked.

(Filing Date: 04-11-2014)

Eldee-K Rental Properties v. DIRECTV

Property Law: The local action doctrine applies to “actions to recover or determine rights or interests in real property, actions to remedy injuries to real property, and actions to foreclose on liens and mortgages on real property.” As a result, other actions not falling into those categories are transitory.

(Filing Date: 04-09-2014)

United States v. Barrios-Siguenza

Criminal Law: A court cannot vacate an invalid conviction of a defendant who has been deported if the case is “unlikely to language for an indefinite period of time.”

(Filing Date: 04-09-2014)

United States v. Sheldon

Criminal Law: Under 18 U.S.C. § 2251(a) the Government does not need to prove a defendant’s knowledge concerning the interstate commerce travel of materials used in the production of child pornography.

(Filing Date: 04-09-2014)

PAMC, Ltd. v. Sebelius

Administrative Law: The failure to timely submit data on a quarterly basis to the Centers for Medicare & Medicaid Services under the Reporting Hospital Quality Data for Annual Payment Update program will result in a reduction by two percentage points to the medical center who failed to submit the data.

(Filing Date: 04-08-2014)

Courthouse News Service v. Planet

Civil Rights § 1983: It is incorrect for a district court to abstain from hearing a case where the plaintiff’s claim presents an important constitutional question and the relief sought would not excessively intrude on sensitive state interests.

(Filing Date: 04-07-2014)

United States v. Albino-Loe

Criminal Law: Notices to Appear when introduced in a removal hearing, are not testimonial and do not run afoul of constitutional concerns; and, a court is prohibited from ruling on sentence enhancements in removal cases where the state of the originating offense did not permit certain affirmative defenses.

(Filing Date: 04-07-2014)

United States v. Dominguez -Maroyoqui

Criminal Law: A violation of 18 U.S.C. § 111(a) is not a categorical crime of violence, and a felony conviction under that subsection cannot support a “crime of violence” sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A).

(Filing Date: 04-07-2014)

United States v. French

Criminal Law: A defendant’s Sixth Amendment right to self-representation is not violated when a court adequately advises the defendant of the disadvantages of foregoing counsel and the defendant affirms his or her wish to proceed pro se is voluntary; a conviction for money laundering will be reversed when the state fails to provide sufficient evidence that the defendant “knowingly” engaged in the transaction.

(Filing Date: 04-07-2014)

Messick v. Novartis Pharmaceuticals Corp.

Evidence: Under Federal Rule of Evidence 702, an expert’s testimony may only identify a substantial factor contributing to a condition and need not identify the cause of a condition to be reliable, also given the liberal thrust favoring admission the testimony is relevant if it based in knowledge with a valid connection to the condition at issue.

(Filing Date: 04-04-2014)

Samsung Electronics v. Panasonic Corp.

Tort Law: A plaintiff may allege a continuing antitrust violation that allows the plaintiff to bring a claim within four years of a later violation, if there is a new and independent act by the defendant that does more than reaffirm the previous violation, and the new act inflicts some new and accumulating injury upon the plaintiff.

(Filing Date: 04-04-2014)

Albino v. Baca

Administrative Law: If a defendant in litigation subject to the Prison Litigation Reform Act believes a plaintiff has not met the Prison Litigation Reform Act’s exhaustion requirements, the issue of “exhaustion should be decided, if feasible, before reaching the merits of a prisoner’s claim [via a motion for summary judgment]”; a courts’ decision regarding disputed factual question(s) relevant to exhaustion at the beginning of litigation does not bind the jury, if considering the same disputed fact(s) is necessary for deciding the merits of the case.

(Filing Date: 04-03-2014)

United States v. Ward

Criminal Procedure: If defendant does not expressly raise a "Fifth Amendment objection" to an amended indictment, but still objects to a substantive change in jury instructions and the court does not change the instructions to accurately reflect the conduct alleged, the court will have "constructively amended the indictment by permitting the jury to convict [the defendant] based on conduct not alleged in those counts" in violation of the defendant's Fifth Amendment rights.

(Filing Date: 04-03-2014)

S.L. v. Upland Unified Sch. Dist.

Disability Law: Under the Individuals with Disabilities Act, a child can be reimbursed for private schooling if the private schooling is shown to be appropriate; a motion for attorneys fees must be timely filed.

(Filing Date: 04-02-2014)

United States v. Lopez

Criminal Law: A “properly authenticated verification of removal is legally sufficient to support a finding of physical removal beyond a reasonable doubt”; and, the government is required to show physical removal but not to show that before removal of an alien an order of removal was issued.

(Filing Date: 04-02-2014)

Block v. eBay

Civil Procedure: In order to state a claim for violations under California’s False Advertising Law, a private plaintiff must prove actual, reasonable reliance on the misrepresentations, and those misrepresentations must be material.

(Filing Date: 04-01-2014)

Block v. eBay

Civil Procedure: In order to state a claim for violations under California’s False Advertising Law, a private plaintiff must prove actual, reasonable reliance on the misrepresentations, and those misrepresentations must be material.

(Filing Date: 04-01-2014)

Korab v. Fink

Civil Rights § 1983: A state does not commit a violation of the Equal Protection Clause of the Fourteenth Amendment by not filling the gap left “by Congress’s withdrawal of federal funding for Compact of Free Association with the United States residents.”

(Filing Date: 04-01-2014)

Peabody Coal v. OWCP

Administrative Law: The Administrative Procedure Act is not violated when an ALJ relies on the regulatory preamble to the Black Lung Benefits Act when using it to understand medical issues and his award determination is based on supporting substantial evidence.

(Filing Date: 04-01-2014)

Ceron v. Holder

Immigration: A lawful permanent resident of the United States may be removed for a crime of moral turpitude for which a sentence of one year or longer may be imposed, even if the individual in question receives a sentence of less than one year.

(Filing Date: 03-31-2014)

Goldman Sachs & Co. v. City of Reno

Arbitration: A city may be a customer under the Financial Industry Regulation Authority and therefore is entitled to arbitration, however, when a city agrees to a forum selection clause they waive their right to arbitration.

(Filing Date: 03-31-2014)

Gonzalez v. City of Anaheim

Criminal Procedure: Summary judgment for an excessive use of deadly force claim should not be granted if, based on the totality of the circumstances, a jury could reasonably rule for either party.

(Filing Date: 03-31-2014)

Lal v. California

Civil Rights § 1983: Ninth Circuit upholds qualified immunity in officer involved shooting where "suspect posed an immediate threat to the safety of the officers or others." Further, qualified immunity "does not become less if [the] assailant is motivated to commit 'suicide by cop.'"

(Filing Date: 03-31-2014)

Ortega v. Holder

Immigration: Individuals must take actual action to establish expectation of vested rights to defeat reinstatement of a deportation order.

(Filing Date: 03-31-2014)

United States v. IMM

Criminal Law: (1) The competency of a child witness is a matter within the discretion of the trial judge and not to be disturbed unless clearly erroneous. (2) Inculpatory statements made by a juvenile defendant in custody must be suppressed if the defendant was not properly read his Miranda rights.

(Filing Date: 03-31-2014)

United States v. Guillen-Cervantes

Criminal Law: A criminal forfeiture judgment for conviction for conspiracy to transport and harbor illegal aliens pursuant to 18 U.S.C. § 982 does not violate the Fifth Amendment because there is no constitutionally protected liberty or property interest being deprived because there is no implied right to contribution.

(Filing Date: 03-28-2014)

United States v. Vargem

Criminal Law: When a district court misstates Sentencing Guidelines ranges it constitutes plain error because there is probability the district court would have applied a different sentence. It is also plain error to apply an enhancement when other actions by the defendant are not “relevant conduct” in relation to the conviction.

(Filing Date: 03-28-2014)

Ventress v. Japan Airlines

Preemption: The Federal Aviation Act impliedly field preempts state whistleblower and employment law claims regarding pilot qualifications and medical standards.

(Filing Date: 03-28-2014)

Mayes v. Premo

Habeas Corpus: When determining whether to grant a writ habeas corpus based on racial discrimination, totality of the circumstances must be considered, and just a close comparative juror analysis is not sufficient to undermine the prosecutor’s credibility.

(Filing Date: 03-27-2014)

Rouse v. Wachovia Mortgage

Civil Procedure: For diversity jurisdiction purposes, national bank is a citizen only of the state where its main office is located.

(Filing Date: 03-27-2014)

Organized Village of Kake v. USDA

Administrative Law: Regardless of an existing agency rule or decision, an agency is not stopped from changing that rule or decision, nor does the agency face a higher burden to do so under the Administrative Procedure Act.

(Filing Date: 03-26-2014)

Jackson v. City & Cnty. of San Francisco

Constitutional Law: When governmental action does not create a substantial burden on Second Amendment rights, intermediate scrutiny may be applied in determining the constitutionality of regulations that limit the sale of hollow-point ammunition and requiring safe storage of firearms when not being carried on the person.

(Filing Date: 03-25-2014)

Arjmand v. DHS

Appellate Procedure: Although 49 U.S.C. § 46110 “grants exclusive jurisdiction to the federal courts of appeals to ‘review' the ‘order[s]’ of a number of agencies, including the Transportation Security Administration (TSA),” a federal court of appeals does not have original jurisdiction when a petitioner seeks the relief of being removed from the Consolidated Terrorist Screening Database, or “watchlist,” through TSA, because the watchlist is “maintained by the Terrorist Screening Center,” and § 46110 “does not grant the circuit courts the jurisdiction to review TSC orders, the statute cannot grant jurisdiction over claims seeking removal from the [watchlist].”

(Filing Date: 03-24-2014)

Davis v. Walker

Civil Rights § 1983: When a lengthy and indefinite stay effectively puts a prisoner out of court, it is an appealable final decision because the stay order fails to adequately protect the prisoner’s interests.

(Filing Date: 03-24-2014)

Tattersalls v. DeHaven

Civil Procedure: The district court's use of Rule 60(a) to correct a judgment and award monetary damages, is proper when the district court's original intent is to award monetary damages.

(Filing Date: 03-21-2014)

United States v. Hernandez-Arias

Immigration: If one’s temporary resident status is terminated, it acts as a revocation of any prior admission and he or she will return to the status of an inadmissible alien who is subject to removal.

(Filing Date: 03-21-2014)

United States v. Montes-Ruiz

Criminal Law: A federal sentencing court may not impose a consecutively running sentence to another pending federal sentence that has not been finalized.

(Filing Date: 03-21-2014)

Haskell v. Harris

Civil Rights § 1983: DNA collection from all adults arrested for or charged with any felony or attempted felony is not a violation of the constitution.

(Filing Date: 03-20-2014)

Johnson v. Consumerinfo.com

Arbitration: 28 U.S.C. §1292(b) is the sole route for an appeal of an order to stay proceedings and compel arbitration.

(Filing Date: 03-20-2014)

Oliner v. Kontrabecki

Bankruptcy Law: In order to seal all records of a civil proceeding, the party must show that there is an overriding compelling government interest in sealing the record.

(Filing Date: 03-20-2014)

Family PAC v. Ferguson

Attorney Fees: The term “costs” in Rule 39 of the Federal Rules of Appellate Procedure does not include attorney’s fees.

(Filing Date: 03-19-2014)

Narayanan v. British Airways

Civil Procedure: The Montreal Convention’s two-year statute of limitations period under Article 35(1) operates as a condition precedent to suit, and is not subject to equitable tolling.

(Filing Date: 03-19-2014)

ALASKA STOCK V. HOUGHTON MIFFLIN

Copyright: Under the Copyright Act, where photographers assign their ownership of copyrights in their images to a stock agency and the stock agency has registered the complete collection as a whole, both the collective work and the individual images are registered. This includes situations where the copyright registration application lacks the individual name of each photographer, and lacks specific titles for each photograph.

(Filing Date: 03-18-2014)

Haro v. City of Los Angeles

Labor Law: Fire department employees whose job duties do not included fire suppression are entitled to standard overtime pay pursuant to the Fair Labor Standards Act because they do not fall within the “engaged in fire protection” exemption.

(Filing Date: 03-18-2014)

ISLAMIC SHURA COUNCIL OF SO. CAL. V. FBI

Civil Procedure: Motions for sanctions under section 11(c) of the Federal Rules of Civil Procedure can't be granted if the district court had already decided the underlying dispute when the motion had been filed.

(Filing Date: 03-18-2014)

Murray v. Schriro

Habeas Corpus: A denial of a 28 U.S.C. § 2254 habeas corpus petition brought after April 24, 1996 to challenge a murder conviction and capital sentence will not be overturned where the petitioner’s claims fail to show the state court decision: “(1) was contrary to clearly established federal law as determined by the Supreme Court, (2) involved in an unreasonable application of such law, or (3) …was based on an unreasonable determination of the facts in light of the record before the state court” under the Antiterrorism and Effective Death Penalty Act.

(Filing Date: 03-17-2014)

Murray v. Schriro

Habeas Corpus: Under the AEDPA, a state court’s failure to undertake a comparative juror analysis is not “contrary to, or an unreasonable application of, clearly established federal law, or an unreasonable determination of the facts;” a court properly rejects an ineffective assistance of counsel claim when an attorney diligently pursues a number of avenues for obtaining background evidence; and a court is proper in denying a motion to amend the habeas petition when the claims are “duplicative, frivolous, and futile.”

(Filing Date: 03-17-2014)

Blake v. Baker

Habeas Corpus: A habeas petitioner's post-conviction ineffective assistance of counsel claim constitutes good cause for failure to exhaust a claim if it is reasonably supported by sufficient evidence; the district court abuses its discretion by denying a motion to stay and hold in abeyance a mixed petition if: (1) petitioner shows good cause for failure to exhaust, (2) the unexhausted claims are potentially meritorious, and (3) there is no indication that petitioner engaged in intentionally dilatory litigation tactics.

(Filing Date: 03-14-2014)

Coronado v. Holder

Immigration: California Health & Safety Code § 11377(a) is a divisible statute and convictions for possessing methamphetamine in violation of the statute are not categorical removable offenses.

(Filing Date: 03-14-2014)

Rosebrock v. Mathis, et al.

Constitutional Law: If an organization does not have an organization-wide policy to apply a policy inconsistently, and the associate director clearly communicates the organization's consistent stance on the policy, the organization is not applying the rule inconsistently.

(Filing Date: 03-14-2014)

Baumann v. Chase Investment Services

Civil Procedure: The district court does not have jurisdiction over cases brought initially under the California Labor Code Private Attorney General Act of 2004 ("PAGA") and then removed to federal district court under the Class Action Fairness Act of 2005 because the PAGA is not sufficiently similar to Federal Rule of Civil Procedure 23 class actions.

(Filing Date: 03-13-2014)

San Luis v. Jewell

Environmental Law: A biological opinion is not arbitrary and capricious when it relies on raw numbers and includes adequate support and explanations for its determination that a threatened species’ habitat is in danger; a district court oversteps its bounds when it admits additional expert testimony that the parties have selected, but have not agreed to.

(Filing Date: 03-13-2014)

United States v.Morales-Isabarras

Immigration: Delays in executing a warrant under 18 U.S.C. § 3583(i) must be "'reasonably necessary,' taking into account 'the legitimate interests of the defendant and the government."

(Filing Date: 03-13-2014)

United States v. Morris

Criminal Law: In calculating loss associated with mortgage fraud cases, courts should use the following two steps set forth under U.S.S.G. §2B1.1(b): (1) calculate the greater of actual or intended loss by using a reasonable foreseeability analysis and (2) deducting from the actual or intended loss the value of any collateral recovered or recoverable by the creditor.

(Filing Date: 03-13-2014)

Estate of Saunders v. CIR

Tax Law: A claim can be deducted from an estate tax return if the estimated value is reasonably ascertainable and not if it is vague or uncertain. Post-death events are allowed for calculation purposes of a deduction when the claim is “disputed or contingent.”

(Filing Date: 03-12-2014)

Huang v. Holder

Immigration: The Court of Appeals deferred to the adverse credibility ruling of the Immigration Judge against an asylum applicant whose testimony was determined to be not credible and who failed to provide “reasonably obtainable corroborating evidence” of her testimony.

(Filing Date: 03-12-2014)

Rivera v. County of Los Angeles

Criminal Procedure: Counties are not liable for violations of federal or state laws when arrestee was mistakenly identified as subject of arrest warrant because the counties had good faith, reasonable beliefs to make arrest, and statutory immunity.

(Filing Date: 03-12-2014)

Deutsche Bank Nat’l Trust Co. v. FDIC

Civil Procedure: Claims against a receiver are prudentially moot if there are insufficient assets to satisfy general unsecured liabilities; and, creditor's claims arising from post-receivership breach of pre-receivership agreements are subject to 12 USC § 1821(d)(11) priority distribution.

(Filing Date: 03-11-2014)

Perez-Palafox v. Holder

Immigration: When determining whether a crime is a “serious crime” for removability, the Board of Immigration Appeals can rely on the Matter of Frentescu test to determine seriousness without going beyond the record.

(Filing Date: 03-11-2014)

United States v. Chhun

Criminal Law: 18 U.S.C. § 956(a) is not ambiguous and applies to any activities, terrorist or not, involving the acts constituting conspiracy to commit murder while the person conspiring is in the United States.

(Filing Date: 03-11-2014)

Turijan v. Holder

Immigration: Felony false imprisonment under California law is not a categorical crime of moral turpitude because it does not require intent to injure someone, actual injury, or a protected class of persons and because the full range of conduct prohibited by the statute does not fall within the definition of moral turpitude.

(Filing Date: 03-10-2014)

United States v. Wilkes

Criminal Law: If Supreme Court precedent directly applies in a case, but appears to rest upon “reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls,” because the Supreme Court is entitled to overrule its own decisions, not the Court of Appeals.

(Filing Date: 03-10-2014)

Go v. Holder

Immigration: The time, number, and other procedural requirements of 8 C.F.R. § 1003.2(c) apply to claims under the Convention Against Torture.

(Filing Date: 03-07-2014)

Montoya v. Holder

Immigration: An immigrant has no vested right in a retroactivity claim if their actions have not substantially furthered their expectation of relief.

(Filing Date: 03-07-2014)

Peralta v. Dillard

Civil Rights § 1983: A prison official who is sued under § 1983 for money damages may raise a lack of available resources defense.

(Filing Date: 03-06-2014)

United States v. Bainbridge

Criminal Law: A change in the defendant's circumstances or a new method of rehabilitation is not necessary for a district court to modify a supervised release order.

(Filing Date: 03-06-2014)

Clabourne v. Ryan

Habeas Corpus: When a district court has ruled on a petitioner’s default of a claim prior to the announcement of Martinez v. Ryan, and the result of that claim would otherwise be uncertain, appellate courts should otherwise remand the case for additional review.

(Filing Date: 03-05-2014)

United States v. Perez-Valencia

Criminal Law: The panel qualified its use of the word "all" regarding the delegation of duties in the event of the District Attorney's absence to refer to “the routine standard daily functions of a prosecutor's office, which does not include administrative matters involving budgets, personnel,” or certain unique matters.

(Filing Date: 03-03-2014)

United States v. Tanke

Criminal Law: Mailings sent “to avoid detection or responsibility for a fraudulent scheme,” which were sent before the completion of a scheme, are within the mail fraud statute, and the perpetrator’s scope of the fraudulent scheme should be used to figure out when a scheme has finished.

(Filing Date: 03-03-2014)

Wells Fargo v. ABD Ins. & Financial Servs.

Trademarks: A district court abuses its discretion when it does not separately consider a false advertising claim and a trademark infringement claim because the claims have different tests.

(Filing Date: 03-03-2014)

Airs Aromatics v. Victoria's Secret

Trademarks: Under Section 37 of the Lanham Act, trademark cancellation is a remedy that may be sought in a trademark infringement suit and does not provide an “independent basis for subject matter jurisdiction standing alone;” ongoing litigation over a trademark does not constitute sufficient continuous use for purposes of a showing of non-abandonment.

(Filing Date: 02-28-2014)

Dariano v. Morgan Hill Unified Sch. Dist.

First Amendment: School officials do not violate students' right to freedom of expression, due process, and equal protection when they ask students to remove clothing bearing the American flag if it is reasonable for the officials “to proceed as though the threat of potentially violent disturbance [i]s real.”

(Filing Date: 02-27-2014)

United States v. Yazzie

Criminal Procedure: A defendant's Sixth Amendment rights are not violated when child victims of sexual abuse are permitted to testify in a closed court and without the jury if the court has first determined that it would be detrimental to the victims to testify before an open court.

(Filing Date: 02-27-2014)

Garcia v. Google, Inc.

Copyright: A trial court abuses its discretion in denying a preliminary injunction for the removal of a film available online in a copyright case when the video contains a performance that a plaintiff actress makes intentionally for a different film, and the plaintiff actress establishes: (1) a likelihood of success on the merits of her claim; (2) the likelihood of irreparable harm resulting from a denial of injunctive relief; and (3) a causal connection between the copyright infringement and the alleged harm.

(Filing Date: 02-26-2014)

Tadevosyan v. Holder

Immigration: The Board of Immigration Appeals abused its discretion in denying a motion to reopen because it failed to analyze the DHS’s opposition to the motion, apply the motion to the reopen standard, or provide a reasoned explanation for its decision.

(Filing Date: 02-26-2014)

Escriba v. Foster Poultry Farms

Labor Law: An employee can affirmatively decline to use FMLA leave, even if the underlying reason for seeking the leave would have invoked FMLA protection.

(Filing Date: 02-25-2014)

Sheehan v. City & Cnty. of San Francisco

Civil Rights § 1983: Under 42 U.S.C. § 1983, summary judgment should not be granted when a genuine issue of material fact exists in whether a state’s actors were objectively reasonable in forcing a confrontation with a known emotional and mentally ill person.

(Filing Date: 02-21-2014)

Stout v. FreeScore

Consumer Credit: If one offers a service that is represented, through advertisements or otherwise, as having the purpose to provide advice or assistance with regard to improving a consumer’s credit history, score, or record, then it will be deemed a “credit repair organization” under the Credit Repair Organizations Act, 15 U.S.C. § 1679 et seq.

(Filing Date: 02-21-2014)

Lilly v. ConAgra Foods

Preemption: When state law requirements for nutrition labeling do not "stand as an obstacle to the accomplishment and execution of [the federal law's] full purpose and objectives" the state laws cannot be preempted.

(Filing Date: 02-20-2014)

United States v. Chandler

Sentencing: Conviction of conspiracy to commit a crime of violence is a 'crime of violence' for the purposes of the Armed Career Criminal Act.

(Filing Date: 02-20-2014)

United States v. Garcia-Santana

Criminal Law: Under the Immigration and Nationality Act the definition of conspiracy requires proof of an overt act in furtherance of said conspiracy.

(Filing Date: 02-20-2014)

HonoluluTraffic.com v. FTA

Environmental Law: In considering alternatives to a proposed transportation plan, a party may rely on findings and studies that precede the proposed plan when determining that certain alternative proposals are imprudent.

(Filing Date: 02-18-2014)

Nakano v. United States

Tax Law: Under 26 U.S.C. § 6672, assets are “encumbered” only if the taxpayer has a legal obligation to use the funds for a purpose that is superior to the interests of the Internal Revenue Service, and the Air Transportation Safety and System Stabilization Act did not affect the bankrupt taxpayer’s obligation to remit the excise tax to the federal government.

(Filing Date: 02-18-2014)

Rea v. Michaels Stores

Appellate Procedure: The reviewing court should apply the clearly erroneous standard of review when reviewing the district court’s determination of whether removal jurisdiction exists.

(Filing Date: 02-18-2014)

Frudden v. Pilling

Constitutional Law: A public elementary school's uniform policy that requires displaying the school's written leadership motto and provides a content based exemption for nationally recognized youth organizations unconstitutionally compels a student's speech and is subject to strict scrutiny review.

(Filing Date: 02-14-2014)

United States v. Gonzales-Monterroso

Sentencing: Delaware’s attempted rape in the fourth degree statute does not categorically qualify as a “crime of violence” to warrant a sixteen-level sentencing enhancement because the statute’s definition of “substantial step” is broader than the generic federal analogue.

(Filing Date: 02-14-2014)

Peruta v. County of San Diego

Constitutional Law: San Diego’s “good cause” policy allowing concealed public carry of firearms, which does not allow permits for those with ordinary self-defense concerns, is an impermissible abridgment of the Second Amendment to keep and bear arms for the purpose of self-defense.

(Filing Date: 02-13-2014)

REAOC v. County of Orange

Contract Law: Without explicit legislative intent or statutory authority, longstanding practice or policy alone does not create an implied contractual right.

(Filing Date: 02-13-2014)

Reese v. Malone

Civil Procedure: A court should conduct a holistic scienter analysis to determine whether a party has pled sufficient facts in order to give rise to a strong inference of scienter.

(Filing Date: 02-13-2014)

Vosgien v. Persson

Habeas Corpus: A finding of actual innocence will excuse the untimeliness of a 28 U.S.C. § 2254 habeas corpus petition.

(Filing Date: 02-13-2014)

United States v. Popov

Criminal Law: In health care fraud cases, the amount billed to an insurer shall constitute prima facie evidence of intended loss for sentencing purposes.

(Filing Date: 02-11-2014)

Smith v. Swarthout

Habeas Corpus: The court will properly deny a habeas corpus petition on appeal if the judgment was not contrary to clearly established federal law and was not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.

(Filing Date: 02-10-2014)

United States v. Vallejos

Criminal Law: If one knowingly uses a file-sharing network to download child pornography, then he is engaging in the distribution of such materials, whether or not he knows he is allowing others to access those files.

(Filing Date: 02-10-2014)

United States v. Vasquez-Perez

Criminal Procedure: The initial appearance provisions in Fed. R. Crim. P. 32.1, and the requirements therein, do not apply to a defendant already in custody for a separate offense when revocation proceedings begin; and, the procedural safeguards guaranteed by Boykin v. Alabama are not applicable in revocation proceedings.

(Filing Date: 02-10-2014)

Brewster v. Sun Trust Mortgage

Civil Law: The attempted collection of fees incurred during a foreclosure proceeding, even if the foreclosure is rescinded, violates the Servicemembers Civil Relief Act if the collection efforts occur while the servicemember is on active duty; and a complaint alleging as much is sufficient to state a claim under the SCRA.

(Filing Date: 02-07-2014)

United States v. Carter

Criminal Law: There is no future obligation of restitution when the sentencing court orders that the restitution shall be paid by forfeiture of the assets and does not make restitution part of post release conditions in the judgment.

(Filing Date: 02-07-2014)

United States v. Hammond

Sentencing: Where Congress has, within its authority, determined an appropriate sentence for a crime, the district court has no discretion to disregard the minimum sentence mandated by the statute.

(Filing Date: 02-07-2014)

Greater L.A. Agency on Deafness v. CNN

Civil Procedure: For a defendant to successfully move for dismissal under California’s anti-SLAPP statute, the targeted conduct needs to be protected by the defendant’s free speech rights, and then the plaintiff must not have established a probability of prevailing on the merits of their claim.

(Filing Date: 02-05-2014)

United States v. Lyle

Criminal Law: Under the Federal Anti-Tampering Act, the removal of prescription drugs and re-gluing of the empty container are facts which may sufficiently allege "tampering with a consumer product."

(Filing Date: 02-05-2014)

Carolina Cas. Ins. Co. v. Team Equip., Inc.

Civil Procedure: A district court should not dismiss an original complaint without leave to amend when it does not find that an attempt to amend would be futile; when a plaintiff needs additional information to establish diversity of citizenship for federal jurisdiction diversity, the plaintiff is allowed to plead jurisdictional allegations based on information and belief.

(Filing Date: 02-04-2014)

Robins v. Spokeo, Inc.

Standing: Inaccurate consumer reporting information is sufficient injury in fact to establish Article III standing under the Fair Credit Reporting Act.

(Filing Date: 02-04-2014)

Berger v. Home Depot

Civil Procedure: Absent a settlement, a stipulated dismissal does not destroy adversity sufficient to bar appellate jurisdiction.

(Filing Date: 02-03-2014)

Carter v. Caleb Brett LLC

Attorney Fees: When a district court significantly reduces a fee award, it must explain with specificity its reasons for the reduction.

(Filing Date: 02-03-2014)

United States v. Williams

Criminal Procedure: An Alford plea to a state charge does not provide sufficient evidence “to prove commission of a state crime for purposes of a federal supervised release violation” when the state does not treat the plea as “sufficiently probative of the fact that the defendant actually committed the acts constituting the crime or crimes of conviction.”

(Filing Date: 02-03-2014)

Republic of Ecuador v. Mackay

Civil Procedure: Fed. R. Civ. Pro. Rule 26(b)(3) does not provide presumptive protection for all expert trial preparation materials.

(Filing Date: 01-31-2014)

Experience Hendrix v. Hendrixlicensing.com

Trademarks: The Washington Publicity Rights Act can grant post-mortem publicity rights even when the person was not domiciled in Washington at the time of death, provided that the action sued on is premised with sufficient relation to the state of Washington.

(Filing Date: 01-29-2014)

Mills v. United States

Standing: The Quiet Title Act permits a plaintiff to waive the federal government's right of sovereign immunity when there is a “dispute” over real property interest claimed by the federal government.

(Filing Date: 01-29-2014)

Griffin v. Gomez

Habeas Corpus: A court will be found to abuse its discretion when issuing orders if it does not take subsequent, related developments into account or fails to apply appropriate authority.

(Filing Date: 01-28-2014)

Chavez-Reyes v. Holder

Immigration: In removal proceedings under 8 U.S.C. § 1182(a)(2)(C)(i), a court may consider a voluntary guilty plea in determining whether the police had "'reason to believe' that Petitioner engaged or assisted in illicit trafficking of drugs" when the conviction is overturned for "a reason unrelated to the voluntariness of the guilty plea."

(Filing Date: 01-27-2014)

MediVas, LLC v. Marubeni Corp.

Appellate Procedure: There is a rebuttable presumption that an order compelling arbitration but that does not explicitly dismiss the underlying claims stays the action as to those claims pending the completion of the arbitration and is an unappealable interlocutory order.

(Filing Date: 01-27-2014)

Dickens v. Ryan

Habeas Corpus: When otherwise procedurally defaulted from raising a claim of ineffective assistance of counsel, a petitioner may otherwise succeed if he can show cause and prejudice by establishing that the claim is substantial, in the initial PCR hearing they were either not represented or had ineffective assistance of counsel, a state PCR hearing was their initial review proceeding, and state law required them to bring the claim in their initial review.

(Filing Date: 01-24-2014)

United States v. Shill

Criminal Law: 18 U.S.C. § 2422(b), using the internet to entice a minor, is not unconstitutionally vague, nor does a ten-year minimum sentence imposed on violators infringe upon the violator's Eighth Amendment rights.

(Filing Date: 01-24-2014)

Aguilar-Turcios v. Holder

Immigration: A conviction under the Uniform Code of Military Justice Article 92 for violating a Department of Defense Directive by using an official government computer to view pornography does not constitute an aggravated felony.

(Filing Date: 01-23-2014)

Gutierrez v. Comm’r of Soc. Sec.

Administrative Law: For purposes of determining Social Security Supplemental Benefits, it is not error for an Administrative Law Judge to define “region” as the State of California, nor is it error to find 2,500 jobs in that region to be a “significant” number of jobs.

(Filing Date: 01-23-2014)

Native Village of Point Hope v. Jewell

Environmental Law: When preparing a Final Environmental Impact statement, although it is recognized that different levels of information will be required at each stage of the development process, one cannot base their conclusions on arbitrary or ill-founded estimates that do not represent the most plausible outcome.

(Filing Date: 01-22-2014)

Big Lagoon Rancheria v. State of California

Indian Law: A tribe may compel a State to enter into negotiation under the Indian Gaming Regulatory Act if it is a federally recognized tribe with jurisdiction over “Indian lands.”

(Filing Date: 01-21-2014)

In re: Late Fee & Over-Limit Fee Litigation

Consumer Credit: Substantive due process jurisprudence placing limitations on punitive damages does not apply to contractual penalties such as credit card late payment or overlimit fees.

(Filing Date: 01-21-2014)

Negrete-Ramirez v. Holder

Immigration: The bar for seeking a waiver for inadmissibility under Immigration and Nationality Act § 212(h) “does not apply to persons who adjusted to lawful permanent resident status after having entered into the United States by inspection.”

(Filing Date: 01-21-2014)

SmithKline Beecham Corp. v. Abbott Laboratories

Constitutional Law: “Equal protection prohibits peremptory strikes based on sexual orientation.”

(Filing Date: 01-21-2014)

Obsidian Finance Group v. Cox

First Amendment: In defamation suits, the matter at issue must be of public concern and a plaintiff must show that the defendant acted negligently in publishing an assertion of fact, regardless of whether the writer is a member of the institutional media.

(Filing Date: 01-17-2014)

Grenning v. Miller-Stout

Civil Rights § 1983: In a 42 U.S.C. § 1983 action brought by a prisoner on the basis of continuous illumination of his or her cell, summary judgment is not appropriate where material issues of fact exist regarding the actual brightness of the constant illumination in the cell, the effects thereof, and whether the prison officials were deliberately indifferent to those effects.

(Filing Date: 01-16-2014)

WTFC v. SEC

Corporations: Petitioners who have violated Section 5(a) and 5(c) of the Securities Act of 1933 cannot claim the brokers’ exemption under Section 4(4) of the Act when they fail to meet their duty of reasonable inquiry.

(Filing Date: 01-16-2014)

Estate of Barabin v. AstenJohnson

Evidence: A reviewing court has the authority to make findings under Daubert v. Merrell Dow Pharm., Inc. based the district court’s record, which overrules Mukhtar v. California State University to the extent that Daubert findings always are made by the district court.

(Filing Date: 01-15-2014)

Gonzales v. CDC

Habeas Corpus: When a state habeas hearing provides a “full and fair hearing” for the issue to be heard and determined under federal standards, the district court must apply issue preclusion to a 42 U.S.C. § 1983 habeas action.

(Filing Date: 01-15-2014)

Cano v. Taylor

Criminal Law: Under the Prison Litigation Reform Act, as long as the federal claims to be added to the initial complaint were administratively exhausted and arose prior to the initial complaint’s filing, they may be added to the complaint by amendment.

(Filing Date: 01-14-2014)

Drakes Bay Oyster Co. v. Jewell

Environmental Law: Although a federal court lacks jurisdiction to review a decision fully committed to an agency's discretion, it has jurisdictional authority to review the decision for violations of constitutional, statutory, regulatory, or other legal mandates or restrictions.

(Filing Date: 01-14-2014)

United States v. Davis

Sentencing: Section 1B1.10(b) of the U.S. Sentencing Guidelines Manual does not violate the separation of powers doctrine or exceed the Commission's authority.

(Filing Date: 01-14-2014)

Martin 1999 Irrevocable Trust v. United States

Tax Law: Economic losses generated by transactions that flow through partnerships permit the IRS to apply Final Partnership Administrative Adjustments (FPAA) relating to one partnership to all partnerships whose transactions are directly related to the initial FPAA.

(Filing Date: 01-13-2014)

ASI v. IBT

Administrative Law: Section 152 First of the Railway Labor Act, requiring transportation industry employees to “engage in the Act’s labor dispute resolution procedures before ceasing to perform their work,” applies to all transportation industry employees and is not a violation of the free speech rights afforded by the First Amendment.

(Filing Date: 01-10-2014)

Inhale, Inc. v. Starbuzz Tobacco, Inc.

Copyright: Under “useful articles” doctrine of copyright law, the manufacturer of a hookah is not entitled to copyright protection where sculptural elements of design cannot exist independently, or be separately identified, from utilitarian aspects of design.

(Filing Date: 01-09-2014)

Shapiro v. Henson

Bankruptcy Law: A trustee may file a § 542(a) motion for turnover whether or not an entity has possession at the time the motion is filed.

(Filing Date: 01-09-2014)

Smith v. U.S. Customs & Border Protection

Immigration: When petitioner has been removed under the expedited removal statute, §1252(e)(2) does not apply, and when the petitioner is not in custody at the time of filing for a writ of habeas corpus, the district court does not have jurisdiction.

(Filing Date: 01-09-2014)

United States v. Dharni

Habeas Corpus: It is not a violation of a petitioner's Sixth Amendment rights to ask spectators and petitioner's family members to leave the courtroom during voir dire to allow seating for a jury pool.

(Filing Date: 01-03-2014)

Alliance v. City of Idaho Falls

Property Law: Idaho state law does not expressly or impliedly grant a municipal corporation power to exercise extraterritorial eminent domain power to acquire easements on residential property outside city boundaries for the non-essential purpose of accomplishing construction of electric transmission lines and provide power at the lowest possible cost.

(Filing Date: 12-31-2013)

Kennedy v. Colvin

Administrative Law: When applying for supplemental security income (SSI), a claimant must meet each of the qualifications listed in Listing 12.05C of the Social Security Act. A claimant many not claim that is over-qualification in some areas makes up for under-qualification in others.

(Filing Date: 12-31-2013)

Legal Voice v. Stormans, Inc.

Civil Procedure: A non-party may appeal an interlocutory order within thirty days after entry of final judgment to the same extent that a party may appeal such an order.

(Filing Date: 12-31-2013)

Li v. Holder

Immigration: When hearing a pre-REAL ID Act immigration removal proceeding, an Immigration Judge may interpret inconsistent testimony regarding one claim as adverse credibility toward other claims.

(Filing Date: 12-31-2013)

Graham-Sult v. Clainos

First Amendment: California’s anti-SLAPP statute applies to actions involving “written or oral statement[s] or writing[s] made in connection” to probate court.

(Filing Date: 12-27-2013)

Joffe v. Google, Inc.

Civil Law: A radio communication as defined under 18 U.S.C. § 2511, the Wiretap Act, does not include data transmitted over a Wi-Fi network.

(Filing Date: 12-27-2013)

Alto v. Black

Tribal Law: The Band's Constitution vested the BIA with ultimate authority over tribal membership, and so the court had jurisdiction to enjoin preliminarily the enforcement of the order upholding the Tribe's decision to disenroll descendants of a member from the Band while the Band was not a required party under FRCP 19 because its absence did not deny complete relief, and the Band's interest was adequately represented by the Bureau of Indian Affairs.

(Filing Date: 12-26-2013)

Knapp v. Hogan

Civil Rights § 1983: A dismissal after repeated violation of Rule 8(a)’s requirement, followed by leave to amend to meet the “short and plain statement” requirement, under §1915(g) constitutes a dismissal “for failure to state a claim.”

(Filing Date: 12-26-2013)

Hernandez v. Holder

Immigration: The “place-of-filing” rule is a procedural claims-processing rule and is not a jurisdictional bar to the Board of Immigration Appeals’ authority to consider a motion to reopen an application.

(Filing Date: 12-24-2013)

Hokto Kinoko Co. v. Concord Farms, Inc.

Trademarks: In a gray-market goods case, non-organic produce and certified organic produce sold under the same trademark are considered to be materially different from one another when the methods of production and labeling differ.

(Filing Date: 12-24-2013)

Patel v. City of Los Angeles

Criminal Procedure: Los Angeles Municipal Code § 41.49, which authorizes non-consensual police searches of hotel guest records, is facially invalid under the Fourth Amendment because it does not afford an opportunity to obtain prior judicial review.

(Filing Date: 12-24-2013)

United States v. Crowder

Criminal Law: 18 U.S.C. § 3583(h) allows a “subsequent lifetime term of supervised release, even when accompanied by a term of imprisonment.”

(Filing Date: 12-24-2013)

United States v. Lin

Criminal Law: 18 U.S.C. § 1546(a) does not “criminalize the mere possession of an unlawfully obtained…driver's license.”

(Filing Date: 12-24-2013)

United States v. Valdes-Vega

Criminal Procedure: Under the “totality of the circumstances” analysis for determining whether an officer had reasonable suspicion, prior decisions that held certain factors are per se probative or not do not comply with Supreme Court precedent.

(Filing Date: 12-24-2013)

United States v. Caceres-Olla

Sentencing: The crime of statutory rape is not a forcible sex offense and therefore is not a “crime of violence” as defined by the United States Sentencing Guideline 2L 1.2.

(Filing Date: 12-23-2013)

United States v. Mondragon

Criminal Procedure: When a defendant either consents to or moves for a mistrial, the applicability of the Double Jeopardy Clause hinges on whether the alleged misconduct was an attempt preclude the empaneled jury from eventually reaching a verdict.

(Filing Date: 12-23-2013)

Al-Nashiri v. MacDonald

Habeas Corpus: Section 7 of the Military Commissions Act of 2006 deprives the district court of jurisdiction of non-habeas claims.

(Filing Date: 12-20-2013)

Jones v. Nat'l Marine Fisheries

Environmental Law: The Army Corps of Engineers’ Environmental Assessment and finding of no significant impact was neither deficient nor arbitrary or capricious, and therefore the Oregon Resources Corporation did not need to submit an additional environmental impact statement in order to receive a permit to mine mineral sands.

(Filing Date: 12-20-2013)

United States v. DeJarnette

Criminal Law: The initial registration requirement under the Sex Offender Registration and Notification Act, under which an offender must register in the jurisdiction of conviction regardless of jurisdiction of residence, does not currently apply to pre-Act offenders already subject to other registration obligations.

(Filing Date: 12-20-2013)

United States v. Shorty

Criminal Procedure: Where the waiver to a jury trial is unwritten and there is evidence the defendant has a diminished mental capacity, a court must engage in an in-depth colloquy to ensure the defendant understands the importance and effect of his waiver of a jury trial.

(Filing Date: 12-20-2013)

Kalitta Air v. Cent. Texas Airborne Sys.

Remedies: 28 U.S.C. § 1920 does not allow the district court to award costs for pro hac vice fees as taxable costs, nor does it authorize costs of deposition editing and synchronizing, but the district court is allowed to award costs for graphics consultants.

(Filing Date: 12-19-2013)

United States v. Anderson

Criminal Law: When a defendant fails to timely object to a challenged jury instruction, the flawed instruction will be upheld when it does not rise to the level of plain error; a district court errs when it fails to award restitution based on the victim’s actual loss.

(Filing Date: 12-19-2013)

In Re: Wal-Mart

Arbitration: Non-appealability clauses that eliminate all potential federal court review of arbitration awards, including review under § 10 of the Federal Arbitration Act, are not enforceable.

(Filing Date: 12-17-2013)

Lee v. Intelius Inc.

Arbitration: A plaintiff has not entered into a contract to arbitrate with a third party when the third party is insufficiently identified as a contracting party; even if the plaintiff has entered into a contract to purchase, under the Federal Arbitration Act the plaintiff has not entered into a contract to arbitrate.

(Filing Date: 12-16-2013)

Smith v. JEM Group, Inc.

Arbitration: A court, rather than an arbitrator, has the authority to decide the validity of an arbitration clause in an attorney retainer agreement.

(Filing Date: 12-12-2013)

Dzakula v. McHugh

Civil Procedure: Judicial estoppel bars an action that was neither inadvertently nor mistakenly omitted from Chapter 7 bankruptcy schedules.

(Filing Date: 12-11-2013)

Omnipoint v. City of Huntington Beach

Preemption: The Telecommunications Act of 1996 preempts local land use authorities’ legislative regulations that fail to comply with requirements of 47 USC § 332(c)(7)(B)(i) and (iv) and adjudicative decisions that fail to meet the minimum process requirements of § 332(c)(7)(B)(ii) and (iii), but such requirements are inapplicable to local authorities’ non-regulatory and non-adjudicative exercise of their property rights.

(Filing Date: 12-11-2013)

United States v. Roybal

Criminal Law: Allowing a child pornography victim to access pornographic images stored on a computer and “create copies of those images” constitutes “distribution” under 18 U.S.C. § 2252A(a)(2), regardless of whether the "child victim was in-person rather than over the internet."

(Filing Date: 12-10-2013)

Cassirer v. Thyssen-Bornemisza

Preemption: California Code of Civil Procedure § 338(c)(3) does not intrude on foreign affairs and thus is not unconstitutional on field preemption grounds, and§ 338(c)(3) does not violate a museum, gallery, auctioneer, or dealer’s First Amendment rights.

(Filing Date: 12-09-2013)

Sachs v. Republic of Austria

Sovereign Immunity: The commercial activities exception of the Foreign Sovereign Immunity Act does not apply when a foreign transportation agency sells a train pass to a United States resident because the transportation carrier has created a "substantial contact" within the United States.

(Filing Date: 12-06-2013)

Evans v. Shoshone-Bannock LUPC

Indian Law: When a tribal court lacks jurisdiction, a nonmember to an Indian Tribe does not have to exhaust tribal remedies prior to filing a suit in federal court, and it is not within the Tribes’ authority to regulate land owned in fee simple by a nonmember of the Tribe unless the land’s intended use is considered to put the area of the surrounding reservation in jeopardy.

(Filing Date: 12-05-2013)

Muniz v. UPS

Attorney Fees: Disparity between a party’s damages awards and the prevailing party’s attorney fees is not a per se special circumstance triggering downward adjustment, and absent unique circumstances requiring adjustment, the figure should be awarded unaltered.

(Filing Date: 12-05-2013)

United States v. Kahre

Criminal Law: When calculating the tax responsibility for compensation in gold coins or certificates, the employer must use the fair-market value, not the face-value, of the coins.

(Filing Date: 12-05-2013)

Angov v. Holder

Immigration: An immigration judge does not violate due process or immigration laws by relying on a State Department investigation of an asylum petitioner’s claim because such reports are presumed valid, and additional requirements would not materially enhance their reliability.

(Filing Date: 12-04-2013)

Nguyen v. Curry

Habeas Corpus: A pro se habeas petitioner's amended claim under 28 U.S.C. § 2254 alleging ineffective assistance of appellate counsel for failure to raise a double jeopardy claim on direct appeal may be excused from procedural default under Martinez v. Ryan and may relate back to the timely filed original claim if there is a common core of facts supporting those grounds for relief stated therein.

(Filing Date: 12-04-2013)

Petronas v. GoDaddy.com

Trademarks: The Anticybersquatting Consumer Protection Act does not incorporate the common law of trademark and therefore does not provide a cause of action for contributory cybersquatting.

(Filing Date: 12-04-2013)

United States v. Hullaby

Criminal Procedure: The government’s use of an informant with a criminal history who chose to cooperate out of self-interest in reducing future criminal liability is not “so grossly shocking and so outrageous” as to violate a defendant’s due process rights.

(Filing Date: 12-04-2013)

Hagen v. City of Eugene

Constitutional Law: Where a public employee reports departmental-safety concerns to his or her supervisors pursuant to a duty to do so, that employee does not speak as a private citizen and is not entitled to First Amendment Protection.

(Filing Date: 12-03-2013)

Courtney v. Goltz

Constitutional Law: The Privileges and Immunities Clause of the Fourteenth Amendment does not extend to the right to operate a public ferry on intrastate navigable waters.

(Filing Date: 12-02-2013)

Hayes v. County of San Diego

Civil Rights § 1983: A plaintiff asserting a survival claim for negligent wrongful death must establish that they are the decedent’s personal representative or successor in interest, and summary judgment is improper when a reasonable juror could conclude that deadly force was not objectively reasonable.

(Filing Date: 12-02-2013)

HRE v. Florida Entertainment Mgmt.

Trademarks: When seeking preliminary injunctive relief in an infringement of trademark case, a plaintiff must make sufficient showing that a likelihood of irreparable harm exists rather than rely on the presumption of irreparable harm.

(Filing Date: 12-02-2013)

Jones v. U.S. Trustee

Bankruptcy Law: A fraud that would have served as grounds for denial of discharge of debt is also grounds for the revocation of discharge of debt if the trustee did not know of the fraud at the time of the discharge.

(Filing Date: 12-02-2013)

Long v. Johnson

Habeas Corpus: The Antiterrorism and Effective Death Penalty Act of 1996 requires federal courts to give “a double dose of deference” to state court decisions on non-direct appeal, thus limiting the federal court’s review power to whether or not the state court applied the law correctly.

(Filing Date: 12-02-2013)

Minority Television Project v. FCC

First Amendment: First Amendment challenges of 47 U.S.C. § 399b are determined by applying intermediate scrutiny. The statute is narrowly tailored to achieve the substantial government interest of maintaining quality educational programming on public broadcasting networks.

(Filing Date: 12-02-2013)

Taggar v. Holder

Immigration: An Immigration Judge does not abuse discretion when setting an extended date for relief applications for the Convention Against Torture and when deeming someone ineligible for a waiver of removability or inadmissibility when it is a crime that is not waivable.

(Filing Date: 12-02-2013)

Doe v. Holder

Immigration: In an application for asylum or withholding of removal, the applicant need not show “a direct nexus between that the government’s inability or unwillingness to control nongovernmental persecutors and a statutorily-protected ground.”

(Filing Date: 11-27-2013)

Makaeff v. Trump University

Civil Procedure: California’s Anti-SLAPP statutes, which provide criteria for pre-trial dismissal of a defamation claim, do not “collide” with Federal Rules of Civil Procedure 12 and 56; no inter-circuit split has emerged on this issue.

(Filing Date: 11-27-2013)

Mondragon v. Capital One

Civil Procedure: Under the Class Action Fairness Act, in order to support a finding that two-thirds of plaintiff class members are actually local state citizens there needs to be actual facts; however, an inference in determining citizenship of a prospective plaintiff class may be adequate so long as the definition of the class limits the class to the state in question.

(Filing Date: 11-27-2013)

Smith v. Oregon Board of Parole

Habeas Corpus: A federal habeas claim is not procedurally defaulted even when an objection is not raised during trial, if the claim is rejected without any discussion or citation.

(Filing Date: 11-26-2013)

Hana Financial v. Hana Bank

Trademarks: Tacking may be found where a properly-instructed jury makes a determination of fact regarding the narrow tacking doctrine that the reasonable consumer could have reasonably concluded that the user of a mark had a consistent, continuous commercial impression of the services defendant offered and their origin.

(Filing Date: 11-22-2013)

United States v. Arreguin

Criminal Procedure: Under the apparent authority doctrine, it is not objectively reasonable to believe a houseguest has authority to consent to the search of a house when officers know virtually nothing about the houseguest, the rooms in the residence, or the houseguest’s connection to those rooms.

(Filing Date: 11-22-2013)

Murillo-Prado v. Holder

Immigration: When determining eligibility for cancellation of removal, a conviction for racketeering under Arizona law constitutes an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(J).

(Filing Date: 11-20-2013)

United States v. Chovan

Constitutional Law: 18 U.S.C. § 922(g)(9), barring a person convicted of a domestic violence misdemeanor from possessing a firearm, does not violate the Second Amendment on its face; a defendant is not entitled to the “civil rights restored” exception if the triggering misdemeanor did not divest defendant of other fundamental rights.

(Filing Date: 11-18-2013)

United States v. King

Criminal Law: For charges under 18 U.S.C. § 922(a)(1)(A), unlawfully dealing in firearms, a jury instruction requiring the government to prove that a defendant was not acting as an authorized agent of a federal firearms licensee would be incorrect because it does not comport with the plain language of the statute and would undermine the purpose behind the statute.

(Filing Date: 11-15-2013)

Valenzuela v. Michel

Family Law: Habitual residence under the Hauge Convention’s Article 3 is determined by a shared intent to abandon the prior habitual residence and an actual change in location along with a period of time; when there is more than one potential habitual residence under this test, the habitual residence is the one in which the children are physically in at a given time.

(Filing Date: 11-15-2013)

Rivera v. Peri & Sons Farms, Inc.

Labor Law: Expenses incurred by foreign workers in order to obtain employment through the H-2A program are covered under the Fair Labor Standards Act and the employer is required to reimburse such expenses because they primarily benefit the employer, not the workers.

(Filing Date: 11-13-2013)

Vega v. Ryan

Habeas Corpus: Counsel's failure to familiarize himself with his client's file which contained information about the victim's recantation of the allegations of sexual abuse was a deficient performance and such failure was prejudicial because presenting testimony on the recantation would not have been cumulative and could have tipped the scales in the defendant's favor.

(Filing Date: 11-13-2013)

NRDC v. EPA

Administrative Law: The Environmental Protection Agency is not obligated by statute to conduct an aggregate risk assessment before granting conditional registration for a pesticide that is not for food use, but if it does conduct an assessment and the margin of exposure exceeds the targeted exposure, that pesticide poses a credible threat to consumers.

(Filing Date: 11-07-2013)

United States v. Horob

Sentencing: When a district court does not impose a more severe overall sentence on remand, the presumption of vindictiveness does not apply.

(Filing Date: 11-07-2013)

Seven Arts v. Content Media

Copyright: When parties are in a “close relationship,” the three-year statute of limitations under the Copyright Act, 17 U.S.C. § 507(b), will bar an untimely claim “for copyright infringement where the gravamen of the dispute is ownership."

(Filing Date: 11-06-2013)

Urooj v. Holder

Immigration: The Department of Homeland Security cannot use impeachment evidence alone to “establish the grounds” for the termination of asylum status “by a preponderance of the evidence.”

(Filing Date: 11-06-2013)

Vasques v. Rackacuckas

Civil Rights § 1983: The Procedural Due Process Clause requires some constitutionally adequate process to determine gang membership when state officials enforce a broad public nuisance abatement injunction under state law against individuals that significantly interferes with their protected liberty interests. Comity doctrine does not prohibit the district court's grant of equitable relief for non-party plaintiffs to a state-court proceeding from challenging enforcement procedures of such an injunction. However, plaintiffs are barred from bringing a state constitutional due process claim in district court against a state official effectuating a state law in his official capacity, because he is not a "local" official for purposes of § 1983.

(Filing Date: 11-05-2013)

Armstrong v. Asselin

Civil Rights § 1983: Qualified immunity, shielding police officers from liability, may be invoked when a police officer acts in good faith using a warrant subjected to approval by prosecutors and neutral judicial officials.

(Filing Date: 11-01-2013)

Stewart v. Cate

Habeas Corpus: A timely filing under 28 USC § 2244 is generally 30-60 days, and under Schlup v. Delo a defendant must show that no reasonable juror would have found him guilty in light of new evidence.

(Filing Date: 11-01-2013)

United States v. Tercero

Sentencing: Although 18 U.S.C. § 3582(c)(2) “authorizes district courts to reduce a sentence retroactively when the Commission has subsequently lowered a Sentencing range,” Congress intended that “any sentence reductions be consistent with applicable policy statements issued by the Sentencing Commission,” including U.S.S.G § 1B1.10(b)(2)(a) which prohibits courts “from reducing a defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2)…to a term that is less than the minimum of the amended guideline range.”

(Filing Date: 10-31-2013)

Amado v. Gonzalez

Habeas Corpus: For the purposes of a habeas corpus petition, the prosecution violates Brady v. Maryland by failing to disclose impeachment evidence, including a probation report, regarding its key witness whose statements prejudice the defendant.

(Filing Date: 10-30-2013)

Crowley v. Bannister

Civil Procedure: When a party is unrepresented by counsel, a court abuses its discretion when it fails to apply Fed. R. Civ. P. 15(a) liberally in favor of the pro se party.

(Filing Date: 10-30-2013)

United States v. Kyle

Criminal Procedure: When a court goes beyond providing reasons for rejecting the agreement presented and comments on the hypothetical agreements it would or would not accept, it crosses over the line established by Rule 11 and becomes involved in negotiations.

(Filing Date: 10-30-2013)

Lujan v. Garcia

Habeas Corpus: When testimony is induced by erroneous admission of confession evidence, it cannot be used to support the conviction as harmless error because it would perpetuate the initial constitutional violation.

(Filing Date: 10-29-2013)

APAC v. BPA

Administrative Law: Bonneville Power Administration has the authority to enter into settlement agreements that pay certain funds in lump sums, waive BPA's authority to purchase power through in lieu purchases, modify "rate ceiling" calculations intended to protect preference customers, and set costs; these actions do not require BPA to provide power illegitimately, do not improperly bind non-signatories to a settlement, are not adverse to Ninth Circuit precedent, and were not arbitrarily or capriciously applied in this case.

(Filing Date: 10-28-2013)

Chavarria v. Ralphs

Arbitration: The Federal Arbitration Act does not preempt a finding under California state law that an arbitration agreement is unconscionable where the allocation of arbitration costs effectively forecloses pursuit of a claim.

(Filing Date: 10-28-2013)

Ferguson v. Corinthian Colleges

Arbitration: The Federal Arbitration Act preempts the “Broughton-Cruz rule that claims for public injunctive relief cannot be arbitrated.”

(Filing Date: 10-28-2013)

In Re: Plant Insulation Co.

Bankruptcy Law: Chapter 11 reorganization of asbestos manufactures is subject to § 524(g) and provides a broad equitable power that accounts for the interests of both present and future asbestos claimants; a trust is required to serve as a fiduciary for the future claimants and that trust must be given a majority of the voting shares of the reorganized debtor.

(Filing Date: 10-28-2013)

Bondarenko v. Holder

Immigration: A credibility finding of a person seeking asylum must be supported by substantial evidence, and the person seeking asylum must be given a reasonable opportunity to investigate all evidence presented against them.

(Filing Date: 10-25-2013)

James v. Ryan

Habeas Corpus: Although Johnson v. Williams grants state courts “the benefit of the doubt” when there is unclear reasoning for its holding, federal courts are not required to disregard a state court’s clear explanation of its own decision to deny the claim based solely on state procedural grounds.

(Filing Date: 10-25-2013)

Ritchie v. United States

Tort Law: The Feres doctrine will bar third-party wrongful death claims arising out of military service activities, and the “in utero” exception does not apply when the servicewoman mother has been injured by the purported negligent acts.

(Filing Date: 10-24-2013)

State of Arizona v. ASARCO

Employment Law: In a Title VII sexual harassment suit with nominal damages and no compensatory damages, the highest punitive award supportable under due process must fall within the statutory cap and be proportional to the reprehensibility of the defendant’s conduct without exceeding a punitive damages to compensatory damages ratio of 125,000 to 1.

(Filing Date: 10-24-2013)

United States v. Steele

Criminal Law: Upon exercise of its factual cost-benefit determination, the district court does not abuse its discretion by deferring consideration of a defendant’s ineffective assistance claim to collateral review.

(Filing Date: 10-24-2013)

United States v. Black

Criminal Law: There is an extremely high standard required to demonstrate the facts underlying an arrest and prosecution are so extreme as “to violate fundamental fairness” or are “so grossly shocking as to violate the universal sense of justice” and the court will decide on a case by case basis using the following factors: (1) known criminal characteristics of the defendants; (2) individualized suspicion of the defendants; (3) the government’s role in creating the crime of conviction; (4) the government’s encouragement of the defendants to commit the offense conduct; (5) the nature of the government’s participation in the offense conduct; and (6) the nature of the crime being pursued and necessity for the actions taken in light of the nature of the criminal enterprise at issue.

(Filing Date: 10-23-2013)

United States v. Black

Criminal Law: To meet the high standard required to demonstrate outrageous government conduct, defendants must show that the facts underlying an arrest and prosecution are so extreme as “to violate fundamental fairness” or are “so grossly shocking as to violate the universal sense of justice.”

(Filing Date: 10-23-2013)

Visendi v. Bank of America

Civil Procedure: A multi-plaintiff lawsuit is subject to removal to federal court under the Class Action Fairness Act, and the federal court will retain jurisdiction even if the plaintiffs are misjoined.

(Filing Date: 10-23-2013)

Rodriguez-Castellon v. Holder

Immigration: A lawful permanent resident convicted under California Penal Code § 288(c)(1) has been convicted of an “aggravated felony” as defined in 8 U.S.C. § 1101(a)(43)(F) and is removable under 8 U.S.C. § 1227(a)(2)(A)(iii).

(Filing Date: 10-22-2013)

Jones v. Ryan

Habeas Corpus: When new claims not present in the original habeas corpus petition are asserted in a Rule 60(b) motion for relief from judgment, the motion can be construed as a second petition subject to denial for lack of authorization.

(Filing Date: 10-18-2013)

United States v. Stargell

Criminal Law: A financial institution can be "affected" under 18 U.S.C. § 1343 if the institution encounters a new or an increased risk of loss.

(Filing Date: 10-17-2013)

Wash. Envtl. Council v. Bellon

Environmental Law: While the failure to regulate greenhouse gas emissions in compliance with the Clean Air Act may create an injury in fact to meet the first test for standing, the causation and redressability prongs of the test cannot be met because a multitude of other factors may cause the injuries and cannot be appropriate redressed by the courts.

(Filing Date: 10-17-2013)

Hunton v. Sinclair

Habeas Corpus: Because there is no constitutional right to an attorney in state post-conviction relief proceedings, a defendant’s Brady claim of ineffective assistance of counsel fails unless “counsel was ineffective and the claim could not be raised earlier.”

(Filing Date: 10-11-2013)

United States v. Christensen

Sentencing: When calculating a sentence under 18 U.S.C. § 3553(a)(2), a judge is free to give more or less weight to different factors and can provide an upward variance beyond what a probation officer has already suggested; such an upward variance beyond the sentencing range is not considered impermissible double counting if the variance is reasonable based on the facts.

(Filing Date: 10-11-2013)

United States v. Ramos-Atondo

Criminal Law: A district court does not abuse its discretion when it presents the jury with deliberate ignorance instructions when the factual bases of such an instruction are present.

(Filing Date: 10-11-2013)

Prudential Locations LLC v. HUD

Administrative Law: Exemption 6 of the Freedom of Information Act allows an agency to protect the identity of someone who has complained to a federal agency about a violation of law.

(Filing Date: 10-09-2013)

United States v. Cortes

Criminal Law: A criminal defendant is entitled to present a sentencing entrapment defense to the jury when evidence shows that the result of the defense will be lowering the statutory sentencing range; the Hobbs Act makes robbery and extortion criminal even when contraband is the property at issue.

(Filing Date: 10-09-2013)

Wong v. Beebe

Tort Law: 28 U.S.C. § 2401(b) of the Federal Tort Claims Act is not a “jurisdictional” statute and is therefore entitled to presumptions of equitable tolling.

(Filing Date: 10-09-2013)

Valle del Sol V. Whiting

Constitutional Law: Arizona Revised Statutes § 13-2929 is void for vagueness and the section criminalizing the harboring and transporting of unauthorized aliens is invalid under the Supremacy Clause as it violates federal law.

(Filing Date: 10-08-2013)

Hamad v. Gates

Constitutional Law: Under United States v. Boumediene, only 28 U.S.C. § 2241(e)(1) was ruled unconstitutional, § 2241(e)(2) functioned independently and was not a bill of attainder because there was no punitive intent.

(Filing Date: 10-07-2013)

United States v. Cohen

Sentencing: A sentencing enhancement involving “a misrepresentation that the defendant was acting on behalf of a charitable organization” can be applied when the defendant does not purport work directly for a charitable organization.

(Filing Date: 10-07-2013)

United States v. Gomez

Criminal Procedure: An alien defendant's due process rights will be violated when undergoing a stipulated removal proceeding if the alien defendant’s waiver to their right of appeal is found to be invalid when that waiver is not voluntary, knowing and intelligent.

(Filing Date: 10-07-2013)

Armstrong v. Brown

Disability Law: Changes to § 3065 of the Cal. Penal Code do not absolve the state of responsibility for prisoners and parolees while they are in county facilities, including adherence to disability accommodations under the Americans with Disabilities Act and the Rehabilitation Act.

(Filing Date: 10-04-2013)

Diaz v. First American

Civil Procedure: A party’s refusal to accept a Rule 68 Offer of Judgment, that would fully satisfy the party’s claim, is not sufficient to make the claim moot.

(Filing Date: 10-04-2013)

Phoenix Trading, Inc. v. Loops LLC

Tort Law: Under Washington State law, the complainant in a defamation claim must show a likelihood of satisfying the elements of defamation: a false statement, publication, fault, and damages.

(Filing Date: 10-04-2013)

United States v. First

Indian Law: A tribal court misdemeanor conviction can serve as a predicate offense for unlawful possession of a firearm under 18 U.S.C. § 922(g)(9) when the defendant was provided the right to counsel that was required in the misdemeanor trial, even if that right as given in a tribal court does not meet the constitutional federal minimum.

(Filing Date: 10-01-2013)

United States v. Liu

Copyright: Under 17 U.S.C. § 506(a), “willfully” requires the Plaintiff to prove that the Defendant knew he was acting illegally, not just that he knew he was making copies, and under 18 U.S.C. § 2318(a)(1), “knowingly” trafficking counterfeit labels “requires knowledge that the labels were counterfeit.”

(Filing Date: 10-01-2013)

United States v. Nickerson

Criminal Law: In order to warrant the dismissal of Class B misdemeanor charges based on outrageous government conduct, there must be a nexus between the conduct and the criminal proceeding at issue; the Speedy Trial Act, 18 U.S.C. §§ 3161(d)(2) and 3162, does not apply to Class B misdemeanors.

(Filing Date: 10-01-2013)

United States v. Tosti

Criminal Procedure: The Fourth Amendment does not protect information that is voluntarily turned over to a third party and then subsequently viewed by law enforcement officers.

(Filing Date: 10-01-2013)

Dexter v. Colvin

Administrative Law: An applicant has a "colorable constitutional claim" of a violation of due process if an administrative law judge does not address all of the applicant's reasons for good cause when denying the applicant's request for a hearing about the untimely filing of a social security benefits application.

(Filing Date: 09-30-2013)

United States v. Laurienti

Criminal Law: A district court properly denies an evidentiary hearing if the defendant had ample opportunity at trial and after trial to submit evidence by an affidavit, and the court does not err by applying a sentencing enhancement under U.S.S.G. § 3B1.3 for “abuse of a position of trust” when the defendant uses his special knowledge and expertise to suggest which securities to recommend.

(Filing Date: 09-30-2013)

Abdullah v. U.S. Security Associates, Inc.

Civil Procedure: A district court properly certifies a sub-class under Fed. R. Civ. P. 23 if the sub-class has a "question of law or fact common to the class" and that question "predominate[s] over any questions affecting only individual members."

(Filing Date: 09-27-2013)

In Re: Stake Center Locating, Inc.

Criminal Law: The Mandatory Victim Restitution Act and the Crime Victims’ Rights Act provide victims with “a right to restitution, not a right to criminal forfeiture,” and under the Crime Victims’ Rights Act, the government maintains broad discretion in determining whether to “seek forfeiture of assets implicated in an offender’s wire fraud.”

(Filing Date: 09-26-2013)

Maciel v. Cate

Habeas Corpus: For the purposes of a habeas petition, a state’s imposition of parole and sex-offender registration requirements after a sentencing court fails to impose them is “neither contrary to nor an unreasonable application of clearly established federal law.”

(Filing Date: 09-25-2013)

Tobar v. United States

Sovereign Immunity: Reciprocity with another nation exists when, under similar circumstances, United States nationals are able to sue the other nation in that nation’s courts, and the discretionary function exception in the Federal Tort Claims Act applies to the Public Vessels Act.

(Filing Date: 09-25-2013)

Castle v. Eurofresh, Inc.

Disability Law: A prisoner of the state is not the “employee” of a company contracting with a state prison under Title I of the Americans with Disabilities Act, because the prisoner’s labor belongs to the state; further, where such a contracting company receives no direct or indirect federal financial assistance, the company is not subject to the requirements imposed by the Rehabilitation Act of 1973; however, a state may be held liable for disability discrimination acts that its contractors commit.

(Filing Date: 09-24-2013)

Graves v. McEwen

Habeas Corpus: Although filing an Anders brief is not constitutionally mandated in a habeas appeal when appointed counsel seeks to withdraw, appellate rules contemplate such a procedure.

(Filing Date: 09-24-2013)

Heinemann v. Satterberg

Civil Procedure: A local rule may not allow for a default grant of a motion summary judgment if the motion is unopposed; and though a lack of response may be interpreted as an undisputed fact under Fed. R. Civ. P. 56, the motion may not be granted absent an assessment by the court of the motion and supporting materials.

(Filing Date: 09-24-2013)

McMaster v. United States

Property Law: In order to withstand a motion for summary judgment when bringing a complaint under the Quiet Title Act a plaintiff needs to detail the scope of their right, title or interest the they are claiming in the real property, the circumstances of how it was obtained, and the right, title, or interest being claimed by the United States.

(Filing Date: 09-24-2013)

Liebsack v. United States

Evidence: In a medical malpractice claim brought under the Federal Tort Claims Act, a state rule regarding an expert witness’ competency will apply if the state rule is intertwined with substantive state law.

(Filing Date: 09-23-2013)

Smith v. Lopez

Habeas Corpus: A defendant initially provided sufficient notice of the charges against them, may have their constitutional right to this notice violated if a prosecutor "affirmatively" leads a defendant to believe the prosecutor won't seek to prove the defendant's guilt by some specific theory and the prosecutor subsequently does so.

(Filing Date: 09-23-2013)

United States v. Elk Shoulder

Criminal Law: The Sex Offender Registration and Notification Act's registration requirements are not punitive in nature and therefore do not violate a person’s constitutional rights.

(Filing Date: 09-23-2013)

Yakima Valley Mem'l Hosp. v. Dep't of Health

Constitutional Law: Regulations allowing hospitals without on-site cardiac surgical facilities to perform elective percutaneous coronary interventions so long as they obtained a Certificate of Need “demonstrating sufficient need in the region” does not violate the dormant commerce clause because the “impact on interstate commerce, if any, was highly attenuated, and did not outweigh the safety benefits of the regulation[].”

(Filing Date: 09-23-2013)

Pac. Shores Properties v. City of Newport Beach

Municipal Law: A facially neutral and overdiscriminate city ordinance violates state and federal housing discrimination laws when it has the purposeful and practical discriminatory effect that harms a targeted protected class by prohibiting the establishment of new and existing group homes for recovering substance abusers from obtaining living arrangements in most residential zones.

(Filing Date: 09-20-2013)

Petitt v. Sause Brothers

Workers Compensation: Under the Longshore and Harbor Workers' Compensation Act, scheduled wage increases which are not dependent upon a worker's performance are general wage increases for the purposes of determining the wage-earning capacity of an individual.

(Filing Date: 09-20-2013)

United States v. Arqueta-Ramos

Criminal Procedure: When taking pleas en masse as part of an “Operation Streamline” proceeding, a court must still confirm individually with each defendant that the defendant is aware of her rights.

(Filing Date: 09-20-2013)

Nuveen Municipal v. City of Alameda

Civil Law: Failure to establish loss causation for securities fraud is fatal for a claim alleging loss due to misrepresentations.

(Filing Date: 09-19-2013)

United States v. Sheldon

Criminal Law: Conviction under 18 U.S.C. § 2251(a) does not require proof of a defendant’s knowledge that the materials used to produce depictions of sexually explicit conduct have traveled in interstate commerce.

(Filing Date: 09-19-2013)

United States v. Zepeda

Criminal Law: Providing a certified degree of Indian blood, by itself, is not sufficient to prove beyond a reasonable doubt that a defendant is an Indian for purposes of 18 U.S.C. § 1153.

(Filing Date: 09-19-2013)

Garcia-Milian v. Holder

Immigration: The threat of physical harm unrelated to a political opinion is not a valid ground for asylum; absent a showing of corruption or other inability to investigate by local authorities the threat does not raise an inference that public officials are likely to acquiesce in future torture.

(Filing Date: 09-18-2013)

Indep. Training v. Cal. Dep't Indus. Relations

Labor Law: "Federal Purposes" under the National Apprenticeship Act mean those projects that require conformity with federal apprenticeship standards for as a conditional of financial assistance eligibility.

(Filing Date: 09-18-2013)

Kulakchyan v. Holder

Immigration: Misrepresentation concerning the date of entry in an asylum application is material; under 8 U.S.C. § 1158(d)(6), withdrawal of an application alone may suffice for the Board of Immigration Appeals to find an application frivolous.

(Filing Date: 09-18-2013)

NW Res. Inf. Ctr. v. NW Power & Conserv. Council

Administrative Law: Alternative, hypothetical power production schemes raised during regional power planning administrative meetings do not change the analysis of the weight of due consideration applied to fish and wildlife interests in the development of the Northwest Power Plan.

(Filing Date: 09-18-2013)

Rock River Commc'n v. Universal Music Group

Tort Law: A claim of intentional interference with prospective economic advantage cannot be defeated on the alleged illegality of the expectancy unless the illegality is affirmatively established.

(Filing Date: 09-18-2013)

Rocky Mountain Farmers Union v. Corey

Environmental Law: A selective comparison of important factors and relevant fuel pathways cannot support the district court's holding that the ethanol and crude oil provisions of California’s Low Carbon Fuel Standard, Cal Code Regs tit. 17, §§ 95480-90 (2011), violate the dormant Commerce Clause.

(Filing Date: 09-18-2013)

United States v. $671,160 in U.S. Currency

Civil Law: When a person has shown past extensive travel, has had opportunity to appear for proceedings, and has represented opposition to returning to the country; it amounts to a totality of circumstances showing they are deliberately avoiding criminal prosecution for the purposes of the Fugitive Disentitlement Statute.

(Filing Date: 09-18-2013)

United States v. Schesso

Criminal Law: Warrants for electronic devices and media, which describe generic categories of items are not necessarily invalid nor do they necessarily require a special search protocol, when a more precise description of the items subject to seizure is not possible.

(Filing Date: 09-18-2013)

Phillips v. Herndon

Evidence: Under some circumstances it is reasonable for a court to exclude a third-party confession where the declarant has made prior conflicting statements.

(Filing Date: 09-17-2013)

United States v. Grandberry

Criminal Procedure: Officers seeking to search the home of a parolee must first have probable cause that the parolee lives there in order to conduct a search without a warrant.

(Filing Date: 09-17-2013)

Doe v. Gangland Productions, Inc.

Civil Procedure: Under § 425.16 of the California Code of Civil Procedure, an anti-SLAPP motion will be granted if: (1) the defendant can show that the conduct was in furtherance of his right to free speech and the conduct was connected to a matter of free speech; and (2) the plaintiff then fails to “demonstrate the probability that some of his claims will succeed.”

(Filing Date: 09-16-2013)

Larsen v. Soto

Habeas Corpus: A habeas petitioner who presents new evidence of innocence that “convincingly undermine[s] the State’s case” is entitled to have his claims heard on the merits despite the fact that the petition is untimely.

(Filing Date: 09-16-2013)

McKinney v. Ryan

Habeas Corpus: There is no constitutional right to a “standard courtroom layout,” and sentencers are required only to fully consider mitigating evidence; they are not required to give it weight.

(Filing Date: 09-16-2013)

United States v. Bahr

Criminal Procedure: It is a violation of a defendant’s Fifth Amendment right against self-incrimination to consider compelled statements in determining “a sentence in a later, unrelated criminal proceeding.”

(Filing Date: 09-16-2013)

Ayala v. Wong

Habeas Corpus: Excluding defense counsel during a proceeding to determine whether a peremptory challenge is racially motivated, absent compelling reasons, violates the Constitution because the defense is unable to respond to the prosecution’s justifications and preserve any errors on the record.

(Filing Date: 09-13-2013)

Gutierrez v. Holder

Immigration: When an alien is “subject to an extant withholding of removal,” the Department of Homeland Security may file a Notice to Appear, and there does not need to be a separate hearing; the government must demonstrate the grounds for the termination of withholding of removal by a preponderance of evidence.

(Filing Date: 09-13-2013)

United States v. Bonds

Criminal Law: Under 18 U.S.C. § 1503, statements that are misleading or evasive, though nevertheless factually true, can support a conviction for obstruction of justice.

(Filing Date: 09-13-2013)

C.B. v. City of Sonora

Civil Rights § 1983: A jury verdict obtained after re-deliberation and long, unscripted, and potentially misleading or confusion discussions between the district judge and the jurors warrants a new trial.

(Filing Date: 09-12-2013)

Schurz v. Ryan

Habeas Corpus: In the absence of “new” mitigating evidence showing it was likely a jury would have reached a different verdict, a petitioner cannot show any prejudice from alleged ineffective assistance.

(Filing Date: 09-12-2013)

United States v. Lopez-Cruz

Criminal Procedure: A peace officer exceeds the scope of consent to "look in" or "search" a cellular phone when the officer answers incoming calls, and it is not an abuse of discretion for a district court to deny a motion for reconsideration to “consider an argument, raised for the first time in that motion, that exigent circumstances justified answering the calls.”

(Filing Date: 09-12-2013)

Wild Fish Conservancy v. Jewell

Administrative Law: Section 8 of the Reclamation Act of 1902 "makes clear that Congress did not intend to permit private parties who lack water rights a private right of action to compel enforcement of state law against federal agencies."

(Filing Date: 09-11-2013)

Blaisdell v. Frappiea

Constitutional Law: The act of serving a complaint filed by another prisoner on a prison official is not a constitutionally or statutorily protected activity.

(Filing Date: 09-10-2013)

In Re: Wilshire Courtyard

Bankruptcy Law: Under the “close nexus” test, a closed bankruptcy proceeding adequately supports subject matter jurisdiction if the matter affects the “’interpretation, implementation, consummation, execution, or administration of the confirmed plan.’”

(Filing Date: 09-10-2013)

Joffe v. Google, Inc.

Civil Law: Payload data transferred over unencrypted Wi-Fi networks is neither radio communication nor electronic communication that is readily accessible by the general public for the purposes of the Wiretap Act, 18 U.S.C. § 2511.

(Filing Date: 09-10-2013)

SEC v. CMKM Diamonds, Inc.

Corporations: A participant’s title, standing alone, cannot determine liability under Section 5 of the Securities Act; there is a material issue of fact as to whether a transfer agent is a necessary participant and substantial factor to satisfy the standard for liability under Section 5.

(Filing Date: 09-10-2013)

Sossa v. Diaz

Habeas Corpus: A pro se habeas petitioner is entitled to equitable tolling if he reasonably relied on a magistrate judge's order extending his filing deadline beyond AEDPA's statutory time limitation; and when a pro se habeas petitioner sufficiently alleges that precluded access to legal resources due to extraordinary circumstances beyond his control prevented timely filing and permits equitable tolling, the district court is obligated to review new evidence and rule on the merits.

(Filing Date: 09-10-2013)

United States v. Gonzalez

Sentencing: When calculating a criminal history score, because U.S.S.G. 4A1.2(a) is a bright-line rule, two sentences cannot count as one when they were imposed on separate days, regardless of their previously scheduled dates. Deportation does not automatically end a parole sentence under California state law.

(Filing Date: 09-10-2013)

Gonzalez v. City of Maywood

Attorney Fees: In a civil rights case it is not unreasonable for the prevailing party to receive attorney’s fees greater than the amount awarded to the client, and when making a reduction in attorney’s fees awards, courts must use the prevailing market rate and provide a clear explanation for any reduction greater than 10% in the amount awarded compared to what was claimed.

(Filing Date: 09-09-2013)

Pizzuto v. Blades

Habeas Corpus: Under the Antiterrorism and Effective Death Penalty Act of 1996, Idaho Supreme Court’s application of Idaho Code § 19-2515A is neither contrary to nor an unreasonable application of the clearly established federal law in Atkins v. Virginia, which prohibits the execution of individuals with mental retardation.

(Filing Date: 09-09-2013)

Sylvia Landfield Trust v. City of Los Angeles

Civil Rights § 1983: A program that authorizes the housing department to place property into an escrow program when it becomes inhabitable does not violate due process since it is rationally related to a legitimate governmental goal.

(Filing Date: 09-09-2013)

United States v. Bonilla-Guizar

Criminal Procedure: A district court does not abuse its discretion in permitting a Immigration and Customs Enforcement case agent to testify as an expert witness where the testimony has some probative value. Brandishing a firearm is insufficient to warrant the application of a sentencing enhancement under U.S.S.G. § 2A4.1(b)(3) for use of a dangerous weapon.

(Filing Date: 09-09-2013)

Abdisalan v. Holder

Immigration: A Board of Immigration Appeals order of removal may not be reviewed by the Court of Appeals if a petition for review is not filed within 30 days of the BIA decision.

(Filing Date: 09-06-2013)

Gravelet-Blondin v. Shelton

Civil Rights § 1983: The right to be free from the application of non-trivial force, such as the use of tasers, for engaging in mere passive resistance has been clearly established in the Ninth Circuit since at least 2008.

(Filing Date: 09-06-2013)

Tapley v. Locals 302 and 612

Workers Compensation: When reviewing trustees’ construction of a retirement plan term that frustrates the availability of earned retirement benefits, courts may “identify and reject any interpretation that is arbitrary, misfocused and contrary to the intent of those responsible for its terms.”

(Filing Date: 09-06-2013)

United States v. Dunn

Criminal Law: United States v. Colson is not clearly in conflict with Dillon v. United States because Dillon does not change Booker’s reasonableness standard and it was not “closely on point” to the jurisdictional question at issue.

(Filing Date: 09-06-2013)

USW Local 12-369 V. USW Int'l

Labor Law: Union officers may be disciplined under § 609 of the Labor-Management Recording and Disclosure Act for actions taken in their official capacity.

(Filing Date: 09-06-2013)

Zhao v. Holder

Immigration: The Board of Immigration Appeals abuses its discretion in deciding whether to grant or deny a motion to reopen an application for asylum when it applies an incorrect legal standard and does not adequately consider the substantial evidence submitted.

(Filing Date: 09-06-2013)

Bell v. Uribe

Habeas Corpus: Overlapping claims under federal and state law may be considered adjudicated even if one is not specifically addressed by a lower court; a juror who does independent research and shares that research to be relied upon by the other jurors in violation of the judge's order acts improperly and may be dismissed.

(Filing Date: 09-05-2013)

Dow v. Virga

Criminal Procedure: The standard to be used by state courts in reviewing prosecutorial misconduct is one of materiality, per Napue v. Illinois, not harmlessness.

(Filing Date: 09-05-2013)

United States v. Earl

Sentencing: Supervised release does not start when a person is placed in home confinement by the Bureau of Prisons as part of a federal sentence.

(Filing Date: 09-05-2013)

Demers v. Austin

Civil Rights § 1983: Garcetti does not apply to teaching and academic writing. Instead, the Pickering test should be applied which requires the employee to show that his or her speech addressed matters of public concern and that interest in voicing those concerns outweigh the State’s interest in promoting efficient public services.

(Filing Date: 09-04-2013)

Haro v. Sebelius

Administrative Law: The secondary payer provision of the Medicare statutory scheme, demanding up front reimbursement for Medicare payments and requires attorneys to withhold settlement payments until the provision is satisfied by the beneficiary, is reasonable as it is interpreted by the Secretary of Health and Human Services.

(Filing Date: 09-04-2013)

Los Coyotes Band of Cahulla & Cupeño Indians v. Jewell

Indian Law: It is proper for the Secretary of the Interior to deny a self-determination contract when no federal funds have been spent on the program; the Administrative Procedure Act is not a proper way to review an agency’s decision without a statutory constraint on the agency’s discretion; and the Equal Protection Clause of the Fifth Amendment is not violated when there is a rational basis for the difference in treatment.

(Filing Date: 09-04-2013)

Detrich v. Ryan

Habeas Corpus: Under Martinez v. Ryan, a court reviewing a Habeas Corpus petition can apply an exception to the “cause” and “prejudice” rule to excuse procedural default when a defendant makes a claim of ineffective assistance of counsel.

(Filing Date: 09-03-2013)

Drakes Bay Oyster Co. v. Jewell

Administrative Law: The Ninth Circuit has jurisdiction to review an agency decision for abuse of discretion in allowing a mariculture permit to expire, but it does not have jurisdiction over the ultimate discretionary decision; the Secretary of the Interior did not abuse its discretion by not renewing the permit.

(Filing Date: 09-03-2013)

Somers v. Apple, Inc.

Civil Procedure: A plaintiff voluntarily abandons and thus waives a claim on appeal if she fails to raise an issue in response to defendant’s motion to dismiss; a suit for antitrust is barred if the plaintiff is an indirect purchaser; there must be an “antitrust injury” for a suit alleging antitrust.

(Filing Date: 09-03-2013)

Anderson Bros. v. St. Paul Fire & Marine Ins. Co.

Insurance Law: Letters that put the recipient on notice of liability and the sender's intent to pursue compensation qualify as "suits" and can trigger an insurer's duty to defend.

(Filing Date: 08-30-2013)

Ass'n des Eleveurs de Canards v. Harris

Constitutional Law: For the purposes of § 25982 of the California Health & Safety Code, which prohibits the sale of products that are the result of force feeding birds to enlarge their livers beyond normal size, a court does not abuse its discretion by refusing to grant a preliminary injunction to enjoin the state from enforcing the statute when the plaintiff “fails to raise serious questions” about a Due Process challenge; Section 25982 does not violate the Commerce Clause.

(Filing Date: 08-30-2013)

Dandino, Inc. v. U.S. Dep’t of Transp.

Administrative Law: A party may file a petition for review under 49 U.S.C. § 521(b)(9) within 30 days of actual notice of a final order by the Federal Motor Carrier Safety Administration; when a final order is sent by mail without proof of actual receipt, a rebuttable presumption arises that the order was received within three days.

(Filing Date: 08-30-2013)

United States v. Flores

Sentencing: A “missile” under U.S.S.G. § 2K2.1(b)(3)(A) and 26 U.S.C. § 5845(f) is “a self-propelled device designed to deliver an explosive,” which does not include 40-mm cartridges.

(Filing Date: 08-30-2013)

Cavitt v. Cullen

Habeas Corpus: Under California law, the “logical nexus” requirement between the felony and the victim’s death is not unconstitutionally vague because the California Supreme Court has provided guidance as to its definition.

(Filing Date: 08-29-2013)

Flores v. Danielson

Bankruptcy Law: Under 11 U.S.C. § 1325(b)(1)(B), a bankruptcy court may confirm a Chapter 13 plan if it is at least as long as the period set forth in § 1325(b)(4); Maney v. Kagenveama’s holding that “§ 1325(b)(1)(B) does not impose a minimum duration for a Chapter 13 plan” for debtors with no projected income is overruled.

(Filing Date: 08-29-2013)

In Re: Application for Exemption

Appellate Procedure: Appellate courts lack the jurisdiction under 28 U.S.C. § 1291 to review decisions dealing with the collection of user fees for the Public Access to Court Electronic Records system because the decision is an administrative action that is issued outside of the litigative function and is not of a judicial character.

(Filing Date: 08-29-2013)

Kumar v. Holder

Immigration: When analyzing the level of “personal involvement” in granting asylum under the Immigration and Nationality Act, the Board of Immigration Appeals should consider a petitioner’s particular circumstances.

(Filing Date: 08-29-2013)

Pickup v. Brown

Constitutional Law: California’s Senate Bill 1172, which bans mental health providers from using “sexual orientation change efforts” on minors, is not unconstitutional because it is not vague or overbroad, it does not infringe on parents’ fundamental rights, and it does not violate First Amendment free speech rights.

(Filing Date: 08-29-2013)

United States v. Humphries

Environmental Law: “Disposal” of hazardous waste under the Resource Conservation and Recovery Act, 42 U.S.C. § 6928, begins with an “act of disposal,” not an individual’s “subjective decision to dispose.”

(Filing Date: 08-29-2013)

United States v. Thompson

Sentencing: Using a thermal lance tool that uses extreme heat to cut through metal does not constitute “using fire” under 18 U.S.C. § 844(h)(1) and does not warrant a penalty enhancement.

(Filing Date: 08-29-2013)

Wynar v. Douglas Cnty. Sch. Dist.

Civil Rights § 1983: hen faced with an identifiable threat of school violence, a school’s disciplinary action does not violate a student's First Amendment rights or due process so long as the off-campus messages that threaten the safety of the school and its students interfere with the rights of other students and make it reasonable for school officials to “forecast a substantial disruption” of school activities.

(Filing Date: 08-29-2013)

E.R.K. v. State of Hawaii Dep’t of Educ.

Disability Law: Under the Individuals with Disabilities Education Act, a state may not prevent disabled students aged 18 to 21 from attending public school if that state provides free public education to nondisabled students in that same age range.

(Filing Date: 08-28-2013)

Oshodi v. Holder

Immigration: An applicant’s oral testimony is “an essential aspect of the asylum adjudication process” and refusal to hear an applicant’s testimony is a violation of due process.

(Filing Date: 08-27-2013)

Rodriguez v. AT&T Mobility Services

Civil Procedure: A lead plaintiff of a putative class action may not reduce the amount-in-controversy on behalf of absent class members.

(Filing Date: 08-27-2013)

United States v. Evans

Criminal Law: A district court may not exclude a critical element of a defense based only upon Fed. R. Evid. 104, as excluding that evidence without a substantive basis violates a defendant’s right to present a defense.

(Filing Date: 08-27-2013)

United States v. King

Criminal Law: A felon's Fourth Amendment right is not violated by a suspicionless search when the felon has already agreed to a suspicionless search condition as part of their probation agreement.

(Filing Date: 08-27-2013)

United States v. Swor

Sentencing: The panel held that the district court abused its discretion in its restitution orders for defendant Shawn Swor because it included in the amount losses suffered by victims from a scheme too attenuated from the fraud that Swor conducted.

(Filing Date: 08-27-2013)

United States v. Hilger

Parole and Post-Prison Supervision: The Opper rule, which requires corroboration of confessions, does not apply to supervised release revocation proceedings.

(Filing Date: 08-26-2013)

United States v. Torlai

Sentencing: A person that uses fraud to qualify for a federal benefit is not an intended beneficiary, and the court's effort to differentiate legitimate from illegitimate claims is unnecessary because by committing fraud that person has exempted themselves from the guidelines of the federal benefit.

(Filing Date: 08-26-2013)

Hazle v. Crofoot

Civil Rights § 1983: Under a 42 U.S.C. § 1983 claim, when an injury has been indisputably proven, the plaintiff is entitled to a damage award by law, and/or a new trial if zero damages are awarded by the jury.

(Filing Date: 08-23-2013)

Mont. Shooting Sports Ass'n v. Holder

Civil Procedure: A state firearm law which allows citizens to manufacture firearms, so long as they remain within the boundaries of the state, is subject to regulation under the Commerce Clause by the federal government because Congress may rationally conclude that the law would affect interstate commerce.

(Filing Date: 08-23-2013)

United States v. Sedaghaty

Criminal Law: Under Brady, the government is obligated to disclose significant impeachment evidence relevant to a critical witness; CIPA provides the government protection of classified documents used as evidence, but requires the government provide an adequate and neutral summary of any information relevant to the defense.

(Filing Date: 08-23-2013)

Planned Parenthood v. Betlach

Civil Rights § 1983: It is a violation of Medicaid’s Free Choice of Provider requirement, to eliminate a patient’s ability to choose a physician based on the fact that the physician provides privately funded abortions in cases other than rape, incest and medical necessity.

(Filing Date: 08-22-2013)

Rusak v. Holder

Immigration: The objective element of determining whether an individual has a well-founded fear of future persecution by their native country can be proven by the showing of past persecution of groups or persons “similarly situated” and establishing that the individual is a member of the group.

(Filing Date: 08-22-2013)

United States v. Cohen

Sentencing: Adding the charitable sentencing enhancement provision of U.S. Sentencing Guidelines § 2.B1.1(b)(9)(A) to a criminal sentence is permitted when an individual misrepresents themselves to an organization in order to obtain money for charitable purposes from the organization.

(Filing Date: 08-22-2013)

United States v. Reed

Criminal Law: Assimilation of state’s drugged driving law with federal DUI regulation is proper where there is a gap in the federal law relating to drugged driving and the defendant was driving on a federal road within that state.

(Filing Date: 08-22-2013)

Bolanos v. Holder

Immigration: California Penal Code § 417.3, brandishing a firearm in the presence of an occupant of a motor vehicle, is an aggravated felony because of the threat of use of force; as such a permanent resident convicted under § 417.3 may be removed.

(Filing Date: 08-21-2013)

Dahlia v. Rodriguez

Civil Rights § 1983: Whether a police officer's speech is within the scope of his official duties is not a broadly defined matter of law but needs to be determined by a practical inquiry for purposes of First Amendment retaliation analysis; and placing an officer on administrative leave for reporting police misconduct and abuse constitutes an adverse employment action likely to deter him from engaging in protected speech and is therefore protected.

(Filing Date: 08-21-2013)

Richards v. Ernst & Young, LLP

Arbitration: Because “waiver of a contractual right to arbitration is not favored,” and, therefore, “any party arguing waiver of arbitration bears a heavy burden of proof,” including the establishment of prejudice as a result of an alleged delay in the assertion of arbitration rights.

(Filing Date: 08-21-2013)

Smith v. Clark County School District

Disability Law: Reconsideration of an order denying summary judgment is proper when a district court commits clear error as it does when it fails to apply Supreme Court precedent; when deciding if someone is a “qualified individual” under the ADA, a district court must use the standards set forth in Cleveland v. Policy Mgmt. Sys. Corp. for evaluating inconsistent statements made on benefit and disability applications; if a party offers sufficient explanations for inconsistent statements made on benefit applications that is enough for their claim to succeed past the summary judgment stage.

(Filing Date: 08-21-2013)

Carpenters Pension Trust Fund v. Moxley

Bankruptcy Law: Pension fund “withdrawal liability” owed after a collective bargaining agreement has expired is dischargeable in a bankruptcy proceeding, and withdrawal liability, as a statutory obligation, is different from any unpaid obligations that arise from obligations created by a collective bargaining agreement.

(Filing Date: 08-20-2013)

Duenas-Alvarez v. Holder

Immigration: A lawful permanent resident is removable for the offense of taking a vehicle without consent, in violation of California Vehicle Code § 10851(a), because it is considered a “theft offense” that qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43).

(Filing Date: 08-20-2013)

Hildes v. Arthur Andersen LLP

Corporations: A district court errs in denying a request for leave to amend a complaint to add claims under Section 11 of the Securities Act of 1933 when the amended complaint sufficiently alleges that material misstatements in a registration statement required for merger could have caused the plaintiff’s losses, regardless of whether the plaintiff signed a voting agreement prior to the filing of the registration statement.

(Filing Date: 08-19-2013)

Griffin v. Harrington

Habeas Corpus: A defense counsel’s failure to take an action that deprives the defendant of the sole opportunity to make inadmissible the prosecution’s only direct evidence connecting the defendant to the crime does not amount to acceptable tactical error and constitutes ineffective assistance of counsel.

(Filing Date: 08-16-2013)

Stapley v. Pestalozzi

Civil Rights § 1983: Prosecutors filing a federal civil racketeering suit are not entitled to absolute immunity when their actions were not “sufficiently analogous to those of a prosecutor” and when the suit is not “analogous to a criminal prosecution.”

(Filing Date: 08-16-2013)

Alaska Wilderness League v. EPA

Environmental Law: Where the Clean Air Act, 42 U.S.C. § 7661c(e), is ambiguous as to whether “increment” requirements are “applicable” to a temporary source, such as a drilling vessel, the Ninth Circuit will defer to the Environmental Protection Agency Environmental Appeals Board’s reasonable interpretation of the statute.

(Filing Date: 08-15-2013)

Blantz v. Cal. Dep’t of Corr. & Rehab.

Civil Rights § 1983: A performance review procedure does not create a protected property interest for a state agency’s independent contractors.

(Filing Date: 08-15-2013)

United States v. Edwards

Sentencing: When sentencing an adult convicted of a crime, the district court does not violate the Eighth Amendment by using prior juvenile convictions to increase the sentence.

(Filing Date: 08-15-2013)

United States v. Grant

Criminal Law: Probation tolls when a defendant is in “fugitive status,” and a defendant assumes fugitive status when she fails to comply with the terms of her supervised release.

(Filing Date: 08-15-2013)

A.D. v. State of Hawaii Dep’t of Educ.

Disability Law: Under the Individuals with Disabilities Education Act’s “stay-put” provision, a child shall remain in his current educational placement during the pendency of any proceedings; the injunctive qualities of the stay-put provision apply to challenges to the legality of a State’s law, “prohibiting changes to a student’s educational placement until the legal dispute is resolved.”

(Filing Date: 08-14-2013)

United States v. Acosta-Chavez

Sentencing: Illinois’s Aggravated Criminal Sexual Abuse statute does not categorically qualify as a “forcible sex offense” to warrant a sixteen-level sentencing enhancement because the statute’s definition of a minor is broader than the generic federal analogue.

(Filing Date: 08-14-2013)

United States v. Ermoian

Criminal Law: Under the federal statute criminalizing obstruction of justice, 18 U.S.C. § 1512, a Federal Bureau of Investigation criminal investigation is not an “official proceeding.”

(Filing Date: 08-14-2013)

United States v. Moschella

Sentencing: When a sentence outside the Sentencing Guidelines range is the result of a “variance” based on the application of statutory factors and not a “departure” from the provisions of the Sentencing Guidelines, notice under Fed. R. Crim. P. 32(h) is not required; 18 U.S.C. § 3664(n) does not prevent the district court from exercising its discretion in imposing a special condition of restitution during a supervised release.

(Filing Date: 08-14-2013)

Villa-Anguiano v. Holder

Immigration: The reinstatement of a prior removal order that has been invalidated on constitutional grounds cannot serve as the only reasoning for removing an alien.

(Filing Date: 08-14-2013)

Cordoba v. Holder

Immigration: The Board of Immigration Appeals must consider whether landownership qualifies as a "particular social group" for a member to be eligible for asylum and withholding under the Immigration and Nationality Act in light of in light of Henriquez-Rivas v. Holder, and also must consider whether a public official is aware of torturous activity, rather than whether he has actual knowledge of a specific incident, when reviewing a Convention Against Torture claim for relief.

(Filing Date: 08-13-2013)

Salameh v. Tarsadia Hotel

Contract Law: A securities investment contract will not be found without facts pleading the investment of money, a common enterprise, and an expectation of profits.

(Filing Date: 08-13-2013)

Urbino v. Orkin Servs. of California, Inc.

Civil Procedure: Under 28 U.S.C. § 1332(a), the amount in controversy cannot be aggregated by multiple plaintiffs who “assert separate and distinct claims” unless the claims “unite to enforce a single title or right in which they have a common and undivided interest,” and the source of that interest is “derived from rights that they hold in group status.”

(Filing Date: 08-13-2013)

Corvello v. Wells Fargo Bank

Contract Law: Under the Home Affordable Modification Program("HAMP"), when a mortgage servicer offers a Trial Pay Period ("TPP") to determine candidacy for a modified mortgage, they must notify the homeowner if they do not qualify, of if the homeowner complies with the TPP, the mortgage servicer must offer a modified mortgage.

(Filing Date: 08-08-2013)

Fort Belknap v. Office of Pub. & Indian Hous.

Appellate Procedure: For the court to have jurisdiction for review under 25 U.S.C. § 4161(d), a party must have either alleged a violation of § 4161(a), or pursued one of the remedies specifically identified in § 4161(a)(1).

(Filing Date: 08-08-2013)

NRDC v. Cnty. of Los Angeles

Environmental Law: Monitoring data that shows pollutants greater than the amount allowed by permit in federally navigable waters is conclusive proof that those discharging are liable for a violation of their National Pollution Discharge Elimination System permit.

(Filing Date: 08-08-2013)

United States v. Thomas

Criminal Procedure: Under the Speedy Trial Act, the issuance of a new indictment not required to be joined with the original charges triggers a new seventy-day period in which to bring a defendant to trial; and evidence from a trained and reliable dog handler about alert behavior of his dog can be the basis for probable cause and therefore the dog's history must be turned over to the defendant during discovery.

(Filing Date: 08-08-2013)

Ching v. Mayorkas

Immigration: An individual has a protected property interest in an I-130 visa petition and therefore "is entitled to the protections of due process."

(Filing Date: 08-07-2013)

Lemire v. Cal. Dep't of Corr.

Civil Rights § 1983: The decision to remove all guards that could respond to prevent the death of an inmate in a state prison presents a triable issue of fact of deliberate indifference that a jury must decide.

(Filing Date: 08-07-2013)

Moore v. Biter

Sentencing: The Supreme Court's decision in Graham v. Florida, which prohibits life without parole for juvenile non-homicide offenders, may be applied retroactively to similar sentences on collateral review.

(Filing Date: 08-07-2013)

Seltzer v. Green Day, Inc.

Copyright: Where an allegedly infringing work imbues some “new expressive content” or a new “message is apparent,” this work will usually be found transformative and thus covered under the Fair Use Doctrine; even when few physical changes to the original work have been made and the new work fails to comment on the original.

(Filing Date: 08-07-2013)

United States v. Lee

Criminal Law: A district court must use sentencing guidelines as a starting point rather than using a predetermined sentence and working backwards to make their desired sentence fit within the guidelines.

(Filing Date: 08-07-2013)

United States v. Livingston

Criminal Law: The location of an establishment is not an element of theft by an officer of a gaming establishment on Indian lands.

(Filing Date: 08-07-2013)

Al Ramahi v. Holder

Immigration: When seeking asylum, a delay of more than fifteen months after changed or extraordinary circumstances is not a “reasonable period” where the delay was due to being unable to file an application after being issued a Notice to Appear and the inability to retain counsel.

(Filing Date: 08-06-2013)

K.M. v. Tustin Unified Sch. Dist.

Disability Law: A school district’s compliance with its obligations under the Individuals with Disabilities Education Act regarding accommodation for a deaf or hard-of-hearing child does not necessarily foreclose an Americans with Disabilities Act Title II claim grounded in the Title II effective communications regulation.

(Filing Date: 08-06-2013)

Ketchikan Drywall Servs. v. ICE

Immigration: Employers must fully complete I-9 forms for their employees and merely copying work authorization documents without transcription to the I-9 is a violation of the Immigration and Nationality Act.

(Filing Date: 08-06-2013)

Shoemaker v. Taylor

First Amendment: An image “morphed” to depict children who appear to be engaging in sexual activity does not constitute protected speech.

(Filing Date: 08-06-2013)

Sully v. Ayers

Habeas Corpus: To obtain federal habeas relief under 28 U.S.C. § 2254, a petitioner must show that the state court unreasonably applied clearly established federal law.

(Filing Date: 08-06-2013)

United States v. Alexander

Criminal Law: A victim's true name and banking account numbers on a counterfeit paper check are a "means of identification" for purposes of aggravated identity theft under 18 U.S.C. §§ 1028A and 1028(d)(7).

(Filing Date: 08-06-2013)

United States v. Gomez

Criminal Procedure: Admitting a defendant’s post-arrest statement does not violate Miranda v. Arizona where the statement was voluntary and inconsistent with the defendant’s testimony and where the prosecution uses the statement only for impeachment purposes.

(Filing Date: 08-06-2013)

United States v. Underwood

Criminal Procedure: A court order to suppress evidence of drug trafficking obtained during the execution of a search warrant will be upheld when: (1) the warrant does not have a sufficient basis for probable cause because it lacks underlying facts; and (2) the good faith exception is not met because the executing agents could not have acted in objectively reasonable reliance on the warrant.

(Filing Date: 08-06-2013)

Lagstein v. Certain Underwriters

Attorney Fees: A plaintiff that is awarded an arbitration award including interest on contract damages is not precluded from a district court also awarding interest on the remaining portions of the arbitration award, and Nevada law allows a plaintiff to collect “post-award, pre-judgment interest on the non-contract damages portions of the arbitration award from the date of the awards through the date of payment” as well as attorney’s fees.

(Filing Date: 08-05-2013)

Saesee v. McDonald

Habeas Corpus: When the opening statement by the defense counsel only suggests hope for a witness to testify, the statement does not constitute a promise, and therefore does not establish ineffective assistance of counsel.

(Filing Date: 08-05-2013)

In re: Perle

Bankruptcy Law: A creditor does not have notice or actual knowledge of its debtor's bankruptcy sufficient to meet the filing exception under 11 U.S.C. §§ 523(a)(3) and (a)(6) if the creditor's lawyer, who no longer represents the creditor in the matter, is made aware of the bankruptcy after his representation of a different creditor.

(Filing Date: 08-02-2013)

United States v. Flores

Criminal Law: Courts shall “exercise caution” when estimating the amount of drugs distributed by a defendant, and when imposing a sentencing enhancement, courts must support conclusions with evidence and have the ability to adequately explain its decision.

(Filing Date: 08-02-2013)

United States v. Lira

Sentencing: In accordance with Alleyne v. United States, facts that increase mandatory minimum sentences must be submitted to the jury and established beyond a reasonable doubt; a finding by the preponderance of the evidence by the district court that a firearm had been discharged during and in relation to or in furtherance of a drug trafficking offense is not sufficient, and the sentence must be reexamined.

(Filing Date: 08-02-2013)

United States v. Stargell

Criminal Law: Under 18 U.S.C. § 1343, a “new or increased risk of loss” is sufficient to establish that wire fraud “affects” a financial institution within the meaning of the statute, regardless of whether the financial institution ultimately suffers actual loss.

(Filing Date: 08-02-2013)

United States v. Valenzuela-Arisqueta

Criminal Procedure: A judge may enhance a sentence under 8 U.S.C. § 1326(b)(2) for a prior conviction, even if it is not cited on the indictment; it is improper to accept a plea under Fed. R. Crim. P. 11 if the defendant is not aware of the maximum sentence at the time of the plea, and double jeopardy does not apply if a plea is rejected.

(Filing Date: 08-01-2013)

Brown v. Electronic Arts, Inc.

Trademarks: Video games are expressive works "entitled to the same First Amendment protection as great literature, plays, or books," and, as a result, claims asserted against video game manufactures under the Lanham Act are subject to the Rogers test.

(Filing Date: 07-31-2013)

Dennis v. Hart

Civil Procedure: A suit is improperly removed from state court where a plaintiff asserts a state-law cause of action and when a plaintiff’s allegations, under the well-pleaded complaint rule, are insufficient to support federal jurisdiction.

(Filing Date: 07-31-2013)

In re: NCAA Licensing Litig.

First Amendment: Under the California Supreme Court’s “transformative use” test, a video game creator does not have a First Amendment right to use a college football player's realistic likeness in a video game when it recreates the player in the very setting where he achieved his celebrity status.

(Filing Date: 07-31-2013)

Islamic Shura Council of So. Cal. v. FBI

Civil Procedure: A party’s motion for sanctions under Fed. R. Civ. Pro 11(c) should not be granted when the challenged pleadings have been “corrected” in an in camera proceeding and the district court has already ruled on the merits of the case.

(Filing Date: 07-31-2013)

Montana Wilderness Ass'n v. Connell

Administrative Law: A Bureau of Land Management (“BLM”) Resource Management Plan does not violate the Federal Land Policy and Management Act or the National Environmental Policy Act as degrading wilderness values absent a showing of evidence that its mapping and designation are fundamentally different from existing methods, but the BLM may violate the National Historic Preservation Act if it is not conducting its required Class III surveys.

(Filing Date: 07-31-2013)

Thornton v. Brown

Civil Rights § 1983: A parolee is not barred from bringing an action under 42 U.S.C. § 1983 that challenges the conditions of parole as long as a successful claim would not result in being released from parole more quickly or imply that the parolee’s underlying conviction or sentence was invalid.

(Filing Date: 07-31-2013)

Chehalis Tribes v. Thurston Cnty.

Indian Law: Permanent improvements built on non-reservation land owned by the United States and held in trust for an Indian tribe pursuant to 25 U.S.C. § 465 are exempted from state and local government taxation.

(Filing Date: 07-30-2013)

Galindo v. Holder

Immigration: The seven-year continuous presence requirement under 8 U.S.C. § 1229b does not require continuous status of any particular kind, and an advanced parole trip outside the country does not change an individual’s residence or affect continuous presence in the United States.

(Filing Date: 07-30-2013)

George v. Morris

Qualified Immunity: In cases where objective provocation cannot be shown, police officers may not be entitled to qualified immunity for claims of excessive force.

(Filing Date: 07-30-2013)

Johnson v. BART

Qualified Immunity: When resolving qualified immunity questions, the appellate court will not attempt to weigh facts and resolve issues in favor of one party, but will instead construe the facts most favorable to the plaintiffs to allow the defendants to stand trial for their alleged constitutional violations.

(Filing Date: 07-30-2013)

Murphy v. DirecTV, Inc.

Arbitration: The Federal Arbitration Act preempts California’s rule that renders class arbitration waivers unenforceable, and Best Buy, as a non-signatory to a contract, cannot be compelled to arbitrate because no relevant California law allows it.

(Filing Date: 07-30-2013)

Pyramid Lake Paiute Tribe v. Nevada

Water Rights: Diversion of water to wetlands to support growth of plants used by wildlife in a waterfowl habitat is not “irrigation” for purposes of compliance with the federal court decree concerning water rights in the Newlands Project area in Nevada.

(Filing Date: 07-30-2013)

Aguilar v. Woodford

Habeas Corpus: Under Brady v. Maryland, the prosecution impermissibly withholds evidence and violates due process when (1) the evidence is favorable to the defendant; (2) the government had knowledge of the evidence because it had previously stipulated to it in another case; and (3) absent the evidence in question, there was nothing tying the defendant to the scene of the crime.

(Filing Date: 07-29-2013)

United States v. Spencer

Sentencing: A conviction for criminal property damage in the first degree under § 708-820(1)(a) of the Hawaii Revised Statutes is categorically a crime of violence under the residual clause of § 4B1.2(a)(2) of the Sentencing Guidelines because it presents a “serious potential risk of physical injury to another,” and a defendant is therefore subject to the “career offender” sentencing enhancement under U.S.S.G. § 4B1.1.

(Filing Date: 07-29-2013)

Murdaugh v. Ryan

Habeas Corpus: Under the Sixth Amendment, a jury must weigh aggravating versus mitigating factors in applying an aggravating sentencing bonus.

(Filing Date: 07-26-2013)

Oracle America, Inc. v. Myriad Group A.G.

Arbitration: Incorporating the United Nations Commission on International Trade Law arbitration rules into the arbitration provision of a commercial contract constitutes “clear and unmistakable evidence” that the parties intended to delegate questions of arbitrability to the arbitrator.

(Filing Date: 07-26-2013)

Schwirse v. Director, OWCP

Employment Law: Under the Longshore and Harbor Workers’ Compensation Act, an injury that is ”occasioned solely by” intoxication means that the legal cause of the injury was the intoxication, regardless of where the intoxicated person fell.

(Filing Date: 07-26-2013)

United States v. Gonzalez-Villalobos

Immigration: To satisfy 8 U.S.C. § 1326(d)(2), the defendant must show actual or constructive inability to seek judicial review, and the inability must be related to an alleged error in the deportation proceedings; denial of an evidentiary hearing does not satisfy this requirement.

(Filing Date: 07-26-2013)

United States v. Grasso

Criminal Law: A district court can charge a defendant with multiple charges by imposing Pinkerton liability, but must ensure that the multiple charges does not create a merger issue by certifying that the statutes do not penalize the same type of behavior; referral fees may be viewed as “proceeds” of loan and bank fraud.

(Filing Date: 07-26-2013)

Voggenthaler v. Maryland Square

Environmental Law: Nevada statute does not provide exceptions or limitations to cost-of-cleanup obligations regardless of ownership status when environmental contaminants are released into the ground or, once discovered, not dealt with properly. Soil and groundwater are articles of commerce and are properly regulated by the federal government under the Commerce Clause.

(Filing Date: 07-26-2013)

Krechman v. County of Riverside

Civil Rights § 1983: A district court judge improperly weighs evidence and misapplies the standard of Fed. R. Civ. P. 50(a) when he uses personal experience rather than testimony viewed in the light most favorable to the plaintiff to conclude that defendants did not use excessive force and were not a substantial factor in a death.

(Filing Date: 07-25-2013)

Sumolang v. Holder

Immigration: For the purposes of withholding of removal, harm to a child can amount to past persecution of a parent when the harm is directed against the parent on the basis of the parent's race, religion, nationality, membership in particular social group, or political opinion.

(Filing Date: 07-25-2013)

United States v. Ahmadzai

Criminal Law: A term of supervised release is "automatically tolled during a period of state custody without a judicial tolling order."

(Filing Date: 07-25-2013)

United States v. Flores-Cordero

Sentencing: In Arizona, a conviction for resisting arrest does not authorize a sixteen-level sentencing increase because it is not categorically a crime of violence, and it is only appropriate to apply a modified categorical approach when a prior conviction is divisible.

(Filing Date: 07-25-2013)

Willms v. Sanderson

Bankruptcy Law: A bankruptcy court may not sua sponte extend the filing time of a nondischargeability complaint after the deadline has passed and without either a showing or finding of cause.

(Filing Date: 07-25-2013)

Fox Broadcasting Co. v. Dish Network

Copyright: Because the consumer, not Dish Network as the programmer, is the most significant cause of copying and storing live television, the district court did not abuse its discretion by denying a motion for preliminary injunction.

(Filing Date: 07-24-2013)

Quin v. County of Kauai Dep't of Transp.

Bankruptcy Law: When an omission on a bankruptcy schedule of a pending claim is “mistaken” or “inadvertent,” using the common meaning of those terms, that omission shall not be grounds for applying judicial estoppel to the pending claim.

(Filing Date: 07-24-2013)

Vitug v. Holder

Immigration: The Board of Immigration Appeals shall not engage in its own factfinding or ignore the immigration judge’s factual findings that were key to the holding.

(Filing Date: 07-24-2013)

Bassene v. Holder

Immigration: An immigration judge may not rely on speculation based on the lack detailed information related to an asylum claim that was provided in a non-asylum proceeding to support an adverse credibility finding especially where the applicant has acted without counsel.

(Filing Date: 07-23-2013)

Meier v. Colvin

Administrative Law: Where a party moves under the Equal Access to Justice Act, 28 U.S.C. § 2412(d), for an award of attorney’s fees and costs, the United States government holds the burden of proving its position – including both its litigation position and the underlying agency action giving rise to the civil action – was substantially justified. Further, in the context of social security, the courts treat a decision of an administrative law judge as the underlying agency action.

(Filing Date: 07-23-2013)

State of Alaska v. Lubchenco

Environmental Law: Using sub-regions to determine if continued fishing in those regions will adversely modify the critical habitat and jeopardize the continued existence of the entire population of a particular species does not violate the Endangered Species Act.

(Filing Date: 07-23-2013)

Cal. Sportfishing v. Chico Scrap Metal

Environmental Law: In order to bar an action under 33 U.S.C. § 1365(b)(1)(B), the prior state claim must have been brought against the defendant to “require compliance” with the Clean Water Act, being comparable is not sufficient; additionally, criminal and civil proceedings are not administrative penalty actions so as to bar a claim under 33 U.S.C. § 1319(g)(6)(A)(ii).

(Filing Date: 07-22-2013)

Strong v. Valdez Fine Foods

Evidence: Expert testimony is unnecessary when no specialized or technical knowledge is required to understand common observations such as height or width or the absence of a required element. These observations meet the requirement of personal knowledge and are not hearsay when the witness was present during the gathering of measurements.

(Filing Date: 07-22-2013)

United States v. Board of Directors

Water Rights: A court mandate may be corrected in extraordinary circumstances where the panel erred in an earlier decision to the detriment of a body of water, and failure to correct the mandate would result in a decision contrary to the purpose of the enacted irrigation limitations.

(Filing Date: 07-22-2013)

United States v. Clement

Sentencing: In accordance with United States v. Augustine, mandatory minimums in the Fair Sentencing Act of 2010 ("FSA") do not apply to defendants sentenced before the FSA was enacted; however, since Augustine was decided, an inter-circuit split has emerged.

(Filing Date: 07-22-2013)

Gorlick Distrib. Ctrs. v. Car Sound Exhaust Sys.

Corporations: In order to be found in violation of the Robinson-Patman Act, the buyer must have knowledge of the discriminatory prices; if a competitor has no reason to know its lower prices were anything other than a well-deserved reward a claim cannot stand.

(Filing Date: 07-19-2013)

United States v. Garcia

Criminal Law: A jury instruction for involuntary manslaughter is improper where it fails to require the jury to find that the defendant acted with gross negligence and that omission is harmful to the defendant.

(Filing Date: 07-19-2013)

United States v. Teague

Criminal Law: Separate convictions of receipt and possession of child pornography must be based on some assurance that the convictions were based on separate conduct.

(Filing Date: 07-18-2013)

US v. Marcelino Aguilar-Reyes

Criminal Procedure: Barring circumstances expressly excepted by law, a defendant must be present at a resentencing hearing regardless of whether it is the defendant or the government who is entitled to the resentencing.

(Filing Date: 07-18-2013)

Woods v. Carey

Attorney Fees: Provision of the Prison Litigation Reform Act, 42 USC 1997e(d)(2), capping attorney fees to 150% of the monetary judgment "does not apply to fees incurred on appeal by a prisoner who successfully defends the verdict he obtained in the district court."

(Filing Date: 07-17-2013)

Kimble v. Marvel Enter., Inc.

Patents: A “hybrid” license agreement with inseparable patent and non-patent rights that includes royalty payments beyond the patent’s expiration is unenforceable after expiration unless the agreement includes a discount rate for the non-patent rights.

(Filing Date: 07-16-2013)

Logan v. U.S. Bank

Civil Procedure: Under the Protecting Tenants at Foreclosure Act of 2009, there is no private right of action, and the regulation of eviction proceedings “does not implicate an important state interest.”

(Filing Date: 07-16-2013)

Pride v. Correa

Civil Rights § 1983: A California prisoner's claim for injunctive relief is not barred by a pending class action if he brings the claim for relief solely on his own behalf.

(Filing Date: 07-16-2013)

United States v. Perez-Valencia

Criminal Procedure: Under 18 U.S.C. § 2516(2), the principal prosecuting attorney of a political subdivision can designate an attorney to have the authority to apply for a wiretap in his or her absence, as long as the applicable state wiretap statute is also adhered to.

(Filing Date: 07-16-2013)

Mortensen v. Bresnan Communications, LLC

Arbitration: AT&T Mobility LLC v. Concepcion further limits the Federal Arbitration Act savings clause and therefore preempts Montana reasonable expectations/fundamental rights rules.

(Filing Date: 07-15-2013)

United States v. Botello-Rosales

Criminal Procedure: A detective does not reasonably convey Miranda warnings in Spanish when the detective incorrectly uses certain Spanish words.

(Filing Date: 07-15-2013)

American President Lines v. ILWU

Labor Law: Section 303 of the Labor Management Relations Act does not preclude an employer from bringing a claim against a union for “unfair labor practices,” even if the employer fails to file a petition to vacate an arbitration award.

(Filing Date: 07-12-2013)

United States v. Green

Remedies: Apprendi v. New Jersey, which imposes a maximum sentence based on a jury verdict, does not apply to restitution.

(Filing Date: 07-11-2013)

Elim Church of God v. Harris

Immigration: The Department of Labor’s regulation creating an expiration date for labor certifications does not impermissibly apply a new rule retroactively, and publication of the proposed and final rule in the Federal Register is sufficient notice for all, including current certificate holders.

(Filing Date: 07-10-2013)

Townley v. Miller

Standing: Plaintiffs lack standing when they do not have a concrete intent to cast a particular vote, when the relief they seek would worsen the position of those intending to vote instead of redressing the injury, or when the alleged injury is not traceable to the challenged conduct.

(Filing Date: 07-10-2013)

Action Recycling, Inc. v. United States

Tax Law: Previous possession of a record by the IRS does not prohibit a future summons of the same information necessary to a legitimate investigation, so long as the IRS no longer has possession of the record.

(Filing Date: 07-09-2013)

Tritz v. United States Postal Service

Civil Procedure: Under the "Postal Reorganization Act" 39 U.S.C. §§ 401 and 409, and the "The Tucker Act" 28 U.S.C. § 1491(a)(1), district courts and the Court of Federal Claims have concurrent jurisdiction over claims against the United States Postal Service in which more than $10,000 is in controversy.

(Filing Date: 07-09-2013)

Tista v. Holder

Immigration: Based on the plain language of the statute, the Child Status Protection Act does not apply to Nicaraguan Adjustment and Central American Relief Act applicants; such a distinction between different classification of aliens is reviewed for rational basis, and therefore must be “wholly irrational” to violate Due Process and Equal Protection.

(Filing Date: 07-08-2013)

Ahearn v. Int'l Longshore & Warehouse Union

Labor Law: Section 303 of the Labor Management Relations Act is not a charging party's sole remedy to collect damages from a union's unlawful labor activities.

(Filing Date: 07-05-2013)

Cal. Ass'n of Rural Health Clinics v. Douglas

Administrative Law: A private right of action exists to enforce an individual's rights created under 42 U.S.C. § 1396a(bb).

(Filing Date: 07-05-2013)

John v. Alaska Fish & Wildlife Conservation Fund

Administrative Law: The Secretaries of the Interior and of Agriculture were reasonable in their methods of notice and comment rulemaking to determine which of Alaska's navigable waters constituted "public lands" for the purposes of compliance with ANILCA.

(Filing Date: 07-05-2013)

United States v. White Eagle

Criminal Law: A "misapplication theory" by the government, predicated at best on an employer directive and a civil regulation, cannot support a conviction for conspiracy; and a defendant must have controlled or had custody of the funds that she later borrowed in order to meet the standard for embezzlement and conversion.

(Filing Date: 07-05-2013)

Chamness v. Bowen

Election Law: There is not a significant distinction between a candidate being referenced as part of the "Independent" party verses being labeled as "No Party Preference" on a ballot to establish a severe burden of the candidate's First Amendment Rights since it is a reasonable, nondiscriminatory restriction that only imposes a slight burden and is supported by the state's important regulatory interests.

(Filing Date: 07-03-2013)

Schlegel v. Wells Fargo Bank

Civil Law: A complaint alleging a violation of the Fair Debt Collection Practices Act must specifically allege that defendant was a debt collector; and prior to taking an adverse action, which includes a notice of default, a lender must give proper notice.

(Filing Date: 07-03-2013)

Anwar v. Johnson

Bankruptcy Law: Under Federal Rules of Bankruptcy Procedure 4007(c), the bankruptcy court does not have the equitable power necessary to retroactively grant a party relief from deadlines, and a party may obtain an extension only if the party files a motion for extension prior to the deadline.

(Filing Date: 07-02-2013)

Ohno v. Yasuma

Constitutional Law: Domestic enforcement of a foreign money damages award under California law does not violate constitutional principles of free exercise of religion if the domestic court does not retry the case on its merits and the foreign judgment does not meet the high bar of the “repugnant to public policy" exception.

(Filing Date: 07-02-2013)

United States v. Huizar-Velazquez

Sentencing: A court should apply Sentencing Guideline § 2T3.1 regulating smuggling rather than Sentencing Guideline § 2C1.1 regulating bribery when a defendant is guilty of conspiring to evade import duties.

(Filing Date: 07-02-2013)

United States v. Morales

Evidence: United States Border Patrol Field 826 forms are public records of government agencies for the purpose of Federal Rule of Evidence 803, but since they contain statements of third parties who are not governmental employees, they may not be admitted under the public records hearsay exception.

(Filing Date: 07-02-2013)

Watkins v. Vital Pharmaceuticals

Civil Procedure: An undisputed declaration showing that the total amount of sales exceeds $5 million is sufficient to prove, by a preponderance of the evidence, that the Class Action Fairness Act’s amount in controversy requirement has been met.

(Filing Date: 07-02-2013)

Barnard v. Theobald

Civil Rights § 1983: Police Officers are not entitled to qualified immunity in excessive force cases when a jury finds the amount of force used was unreasonable, even when the Officers believe the victim is resisting.

(Filing Date: 07-01-2013)

M.J. v. United States

Tort Law: An injured party will fail to hold a city vicariously liable for an immune independent contractors' negligent conduct if the party seeks relief under the "non-delegable duty" theory of vicarious liability.

(Filing Date: 07-01-2013)

Tehama-Colusa Canal Auth. v. U.S. Dep’t of Interior

Water Rights: California Water Code § 11460 does not require providing priority water rights if contracts contain provisions specifically addressing allocation of water during shortage periods and if the parties to the contracts have received validation judgments foreclosing either party from challenging the validity of the contract terms.

(Filing Date: 07-01-2013)

Air Control Tech. v. Pre Con Indus.

Civil Procedure: The Miller Act’s one year statute of limitations is a claim-processing rule, not a jurisdictional requirement as previously decided in United States ex rel. Celanese Coatings Co. v. Gullard.

(Filing Date: 06-28-2013)

In the Matter of: Marshall

Bankruptcy Law: When assigned for the interest of efficiency, a bankruptcy court judge presiding over a Chapter 11 case acts within his discretion when denying a motion for recusal after having presided over a case with a similar factual background and same principal parties.

(Filing Date: 06-28-2013)

United States v. Kriesel

Criminal Procedure: Under Fed. R. Crim. P. 41(g), the government’s retention of a criminal defendant’s DNA sample is “reasonable under all circumstances” in that the government has a legitimate interest in maintaining an accurate and trustworthy searchable DNA database that links undefined DNA samples to known offenders.

(Filing Date: 06-28-2013)

Zadrozny v. Bank of New York Mellon

Consumer Credit: Non-judicial foreclosures do not need to comport with the Uniform Commercial Code or do they require the production of the promissory note before a sale, and successor trustees are not unauthorized to initiate foreclosure proceedings.

(Filing Date: 06-28-2013)

Roth v. CHA Hollywood Medical Center

Civil Procedure: As long as a defendant has not lost its right to remove due to a failure to timely file a notice of removal, 28 U.S.C. § 1446(b)(1) or (b)(3) does not bar a defendant from removal to federal court when it discovers, after its own investigation, that the case is removable.

(Filing Date: 06-27-2013)

Sola v. Holder

Immigration: When the Immigration Judge or Board of Immigration Appeals could have addressed a claim, the claim does not fall within the exhaustion exception for constitutional challenges to immigration laws and procedures, and the Ninth Circuit will dismiss the claim for lack of jurisdiction.

(Filing Date: 06-27-2013)

United States v. Stoltz

Criminal Procedure: The Double Jeopardy Clause of the Fifth Amendment is not implicated when a servicemember is given a nonjudicial punishment without a waiver of the servicemember’s right to demand a court-martial instead.

(Filing Date: 06-27-2013)

Cardenas-Delgado v. Holder

Immigration: Immigration Nationality Act § 212(c) does not apply retroactively to waiver applications for convictions prior to the statute’s repeal.

(Filing Date: 06-26-2013)

City of San Buenaventura v. The Ins. Co. of Pa.

Insurance Law: "Continuous exposure" and "continuous damage" language in an insurance policy will not provide a remedy for an occurrence arising prior to coverage.

(Filing Date: 06-26-2013)

In re: Griffin

Bankruptcy Law: Providing a duplicate of a duplicate of a promissory note along with a declaration confirming possession of the original note is sufficient for a bank to establish prudential standing to file a motion for relief from an automatic stay.

(Filing Date: 06-26-2013)

United States v. Smith

Sentencing: When applying enhancements to a sentence, it is permissible to double count for the same occurrence of conduct if the enhancements are to address separate concerns.

(Filing Date: 06-26-2013)

Varghese v. Uribe

Habeas Corpus: When a state court has no specific legal rule to apply, its decision is not an unreasonable application of clearly established federal law under the Antiterrorism and Effective Death Penalty Act of 1996.

(Filing Date: 06-26-2013)

Sanders Cnty. Republican Cent. Comm. v. Fox

Appellate Procedure: A panel must follow published decision findings unless there is a competent body to overrule it, and if the published decision does not reach all issues, the unreached issues shall be remanded for further revision.

(Filing Date: 06-21-2013)

United States v. Hernandez-Meza

Criminal Law: Brief continuance proceedings are not automatically excluded from Speedy Trial Act time limitations; it is an abuse of discretion to reopen a case based on surprise when no surprise exists and to not hear well-made objections to admission of evidence.

(Filing Date: 06-21-2013)

Dubrin v. State of California

Habeas Corpus: When a defendant is faultless in obtaining timely constitutional review of an expired prior conviction, they may challenge a later sentence which is enhanced by a conviction obtained on an unconstitutional basis.

(Filing Date: 06-20-2013)

Henry v. Ryan

Habeas Corpus: The elements of a Brady claim that establish 'suppression and materiality' may also show ‘cause and prejudice’ as required by the exception in Coleman', only when the state’s suppression is the reason for the defendant’s procedural default at trial.

(Filing Date: 06-19-2013)

In re: Stake Center Locating, Inc.

Criminal Law: The right to restitution provided under the Crime Victims’ Rights Act and the Mandatory Victim Restitution Act attaches at, but not before, the defendant’s sentencing hearing.

(Filing Date: 06-19-2013)

Lemke v. Ryan

Criminal Procedure: Original jeopardy has not terminated when the jury fails to reach a verdict. A defendant does not waive the Double Jeopardy claim by entering a guilty plea or by the broad waiver in the plea agreement. If the record does not establish that the jury necessarily decided guilt or innocence when it failed to return a verdict retrial is not barred by collateral estoppel.

(Filing Date: 06-19-2013)

United States v. Sanchez-Aguilar

Criminal Law: Proof of defendant’s second departure from the United States was not an element of the § 1326 offense since the first departure was undisputed, but was necessary to avoid double jeopardy concerns; additionally, aliens are not entitled to be informed of potentially available avenues of relief in expedited removal proceedings.

(Filing Date: 06-19-2013)

Veltmann-Barragan v. Holder

Immigration: Aliens who are removable, but not yet subject to a removal order, are no longer “in custody” for the purposes of 28 U.S.C. § 2241 and therefore lack jurisdiction for a habeas corpus petition.

(Filing Date: 06-19-2013)

Lopez-Valenzuela v. County of Maricopa

Constitutional Law: Arizona’s Proposition 100 law serves to further the State’s legitimate and compelling interest of assuring that illegal immigrants accused of serious crimes are present to stand trial and is not a punishment that would violate the due process guarantees of the Constitution.

(Filing Date: 06-18-2013)

United States v. Avery

Habeas Corpus: When seeking habeas corpus relief, actual innocence overcomes the procedural default of a claim challenging the conviction, and a defendant cannot be considered to have been convicted or sentenced based on a broader charge that was not part of the plea agreement.

(Filing Date: 06-18-2013)

United States v. Gonzalez Vazquez

Sentencing: To order government compliance with a plea agreement, the record must support evidence that either an agreement occurred or defendant detrimentally relied on a promise made during plea-bargaining, and a defendant's prior conviction cannot be counted as a criminal history point under U.S.S.G. § 4A1.2(c)(1)(A) where the prior conviction is dissimilar to the federal conviction and did not amount to probation.

(Filing Date: 06-18-2013)

United States v. Gillenwater

Criminal Procedure: At a pretrial competency hearing, a defendant’s right to testify “is of a constitutional magnitude,” and only the defendant can waive this constitutional right to testify on his own behalf.

(Filing Date: 06-17-2013)

Aleman v. Uribe

Civil Procedure: A defendant’s constitutional rights are not violated when a state court denies a Batson motion based on a prosecutor’s credible explanation that he made an “honest mistake” in exercising a peremptory challenge.

(Filing Date: 06-14-2013)

United States v. Needham

Criminal Procedure: The “good faith” exception to the exclusionary rule from United States v. Leon applies when officers searched in reasonable reliance on a search warrant, even when the warrant is based solely on the inference that individuals who molest children likely possess child pornography.

(Filing Date: 06-14-2013)

Conservation Congress v. U.S. Forest Serv.

Environmental Law: Under section 7(a)(2) of the Endangered Species Act, there is no duty to consider cumulative effects, and “cumulative effects” means “within the action area,” not “incremental effects” or “environmental baseline.”

(Filing Date: 06-13-2013)

Doug C. v. Hawaii Dep’t of Educ.

Disability Law: A school violates the Individuals with Disabilities Education Act’s explicit parental participation requirements when it holds an individualized education program meeting without the participation of the disabled child’s parent.

(Filing Date: 06-13-2013)

Fourth Investment LP v. United States

Tax Law: When determining the enforceability of a nominee lien as a matter of federal law, questions of nominee status first require an evaluation of state law as applied to the specific facts of the case.

(Filing Date: 06-13-2013)

United States v. Gonzalez-Aguilar

Sentencing: The defendant bears the burden of showing that there is a “reasonable probability” that an imposed sentence would have been less had the government not breached the plea agreement.

(Filing Date: 06-13-2013)

Corro-Barragan v. Holder

Immigration: The “physical presence” requirements under 8 U.S.C. §§ 1229c(b)(1)(A) and 1229b(d)(2) are different, in that § 1229c(b)(1)(A) has no exceptions for departures during the one-year period of physical presence required for voluntary departure while § 1229b(d)(2) allows for brief departures from the United States that do not interrupt the ten-year period of continuous physical presence required for cancellation of removal.

(Filing Date: 06-10-2013)

Jones v. McDaniel

Appellate Procedure: If a party enters into a settlement agreement which was executed "in full satisfaction of the final judgment" it “resolves all facets of their dispute,” that party cannot later appeal one of the claims resolved in the agreement, as the settlement agreement renders the claim moot.

(Filing Date: 06-10-2013)

United States v. Muniz-Jaquez

Criminal Procedure: When a defendant requests production of Border Patrol dispatch Tapes to present a defense of official restraint and to potentially impeach a witness, it is an abuse of discretion by the district court to deny the production of those tapes under Fed. R. Crim. P. 16, given this rule’s broad definition of discoverable materials.

(Filing Date: 06-10-2013)

Western Watersheds Project v. Abbey

Environmental Law: To comply with the National Environmental Policy Act, the Bureau of Land Management must not only take a “hard look” at environmental impacts from the programmatic stage of its planning and management, but it must also consider and assess a reasonable range of alternatives, including some that provide more protection for public lands, at the site-specific stage.

(Filing Date: 06-07-2013)

Regalado-Escobar v. Holder

Immigration: Opposition to a political party's violence constitutes a "political opinion that is a protected ground for asylum purposes."

(Filing Date: 06-05-2013)

United States v. Watters

Criminal Procedure: For the purposes of 18 U.S.C. § 1512(c), which penalizes a person for “corruptly” does not have a “knowingly” mens rea component.

(Filing Date: 06-05-2013)

Harris v. Amgen

Corporations: The fiduciary duty of care and loyalty under the Employee Retirement Income Security Act ("ERISA") is breached when a fiduciary continues to offer company stock as an investment alternative when it knew or should have known the stock's artificially inflated value; appointment of a trustee is not a clear delegation of exclusive authority by the fiduciary for purposes of defeating ERISA fiduciary status.

(Filing Date: 06-04-2013)

Deere v. Cullen

Sentencing: In a penalty hearing, a prisoner is competent to plead guilty if, first, he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding, and second, has a rational and factual understanding of the proceedings against him; in appealing a trial court findings regarding competency to plead guilty, mental illness must be shown to substantially affect the prisoner's 'capacity to appreciate' her 'options and make a rational choice' by clear and convincing evidence.

(Filing Date: 06-03-2013)

Higher Taste, Inc. v. City of Tacoma

Attorney Fees: For the purposes of 42 U.S.C. § 1988, a party may be considered the prevailing party if a preliminary injunction is granted, based on a finding that the party was likely to succeed on the merits, even if a settlement was reached before final adjudication.

(Filing Date: 06-03-2013)

United States v. Ajoku

Criminal Law: In the context of 18 U.S.C. § 1035, false statements willfully made to non-federal authorities, but that “concern matters of interest to the federal government,” may fall within federal oversight for the purposes of § 1035; willfulness, for the purpose of § 1035 simply means “deliberately and with knowledge,” and does not require knowledge of unlawfulness.

(Filing Date: 06-03-2013)

United States v. Cabrera-Gutierrez

Criminal Law: Congress has the authority under the Commerce Clause to require convicted sex offenders to register under SORPA and a defendant's guilty plea statement can be used to determine the offender's sentencing level.

(Filing Date: 06-03-2013)

United States v. Morgan

Criminal Law: When an agent re-advises a suspect of their Miranda rights and does not question her or seek a waiver of her rights then these actions are not the functional equivalent of “interrogation” in violation of Miranda even if a picture is taken with the defendant and the contraband.

(Filing Date: 06-03-2013)

Fournier v. Sebelius

Administrative Law: Denial of dental coverage for Medicare beneficiaries does not constitute a violation of beneficiaries’ right to equal protection under the Fifth Amendment when denial is based on reasonable interpretation by the Secretary of Health and Human Services of an ambiguous statute.

(Filing Date: 05-31-2013)

Gantt v. City of Los Angeles

Civil Rights § 1983: Jury instructions on the level of culpability for deliberate fabrication of evidence which are confusing and misleading may cause reversible error because a reasonable juror conclude that the techniques employed on a witness were so coercive and abusive that they would likely lead to false information.

(Filing Date: 05-31-2013)

Classic Concepts, Inc. v. Linen Sources, Inc.

Appellate Procedure: When the court considers extensive briefs before judgment, a motion to alter or amend under Fed. R. Civ. P. 60(b) is not filed within ten days after entry of judgment and Rule 60(b) is not addressed in the filing party’s brief, then the judgment is final and not appealable.

(Filing Date: 05-30-2013)

Jesse Engebretson v. Mike Mahoney

Civil Rights § 1983: Prison officials are immune from liability under 42 U.S.C. § 1983 for executing conduct prescribed by facially valid court orders.

(Filing Date: 05-30-2013)

Macias-Carreon v. Holder

Immigration: Possession of marijuana in violation of Cal. Health & Safety Code § 11359 is categorically a crime "relating to a controlled substance" for immigration purposes.

(Filing Date: 05-30-2013)

Biggs v. Sec'y of Cal. Dep't of Corr. & Rehab.

Habeas Corpus: Application of state Supreme Court precedent over United States Supreme Court precedent is not an unreasonable application of clearly established Federal law when there is no United States Supreme Court holding clearly establishing a requirement of as-applied analysis.

(Filing Date: 05-29-2013)

United States v. Joseph

Criminal Law: 18 U.S.C. § 1791 requires consecutive sentences only when multiple convictions result from one item of controlled substance.

(Filing Date: 05-29-2013)

Leyva v. Medline Industries, Inc.

Civil Procedure: Individualized damage calculations alone do not defeat class certification under Fed. R. Civ. Pro. 23(b)(3).

(Filing Date: 05-28-2013)

United States v. Rojas-Pedroza

Immigration: An immigration judge's failure to inform a defendant of the available forms of relief is not an abuse of discretion if the error was harmless, and documents from an immigration file are not testimonial because of the mere possibility they may be used in later criminal proceedings.

(Filing Date: 05-28-2013)

Managed Pharmacy Care v. Sebelius

Administrative Law: The Department of Health and Human Services’ interpretation of 42 U.S.C. § 1396a(a)(30)(A), allowing individualized state procedures for Medicaid rate reimbursement reductions resulting from a State Plan Amendment review, is due deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.

(Filing Date: 05-24-2013)

Din v. Kerry

Immigration: The Government’s denial of a visa application filed by an American citizen on behalf of her alien spouse must be “facially legitimate and bona fide” with proof that the Government official who denied the application “knows or has reason to believe” the applicant had done something to violate the applicable statute.

(Filing Date: 05-23-2013)

Hedlund v. Educational Resources Inst.

Bankruptcy Law: When reviewing the third prong of the test from Brunner v. New York Higher Education Services Corp. to determine whether a debtor has shown undue hardship, a finding of good faith is to be reviewed for clear error.

(Filing Date: 05-22-2013)

Hinojos v. Kohl’s Corp.

Standing: Under California law, a plaintiff has standing to sue under the Unfair Competition Law and Fair Advertising Law if he purchased merchandise in reliance on the false price and if he would not have purchased the product but for the misrepresentation.

(Filing Date: 05-21-2013)

Isaacson v. Horne

Constitutional Law: A law prohibiting abortion at twenty weeks gestation, which is earlier than fetal viability, is unconstitutional because Supreme Court precedent affords women the constitutional right to choose to terminate a pregnancy before fetal viability.

(Filing Date: 05-21-2013)

Lawrence v. Holder

Immigration: The term "admissions" in Immigration and Nationality Act § 212(c) refers to the date of the application for relief; thus an aggravated felon who served over five years in prison and filed a petition for relief after November 29, 1990, is barred from relief, “regardless of the date the alien was initially admitted to the United States.”

(Filing Date: 05-21-2013)

Rajagopalan v. NoteWorld, LLC

Contract Law: A non-signatory third party to a contract may not invoke the arbitration clause of the original contract under a theory of equitable estoppel or when it is not a third-party beneficiary to the contract.

(Filing Date: 05-20-2013)

Center for Food Safety v. Vilsack

Administrative Law: The United States Department of Agriculture’s deregulation of Roundup Ready Alfalfa (“RRA”) was proper because the agency was correct in determining that RRA was not a “plant pest” under the Plant Protection Act, and therefore was not required to consult the Fish and Wildlife Service regarding RRA’s effects on endangered and threatened species.

(Filing Date: 05-17-2013)

Olivas-Motta v. Holder

Immigration: “Involving moral turpitude” is an element of a “crime involving moral turpitude,” and an Immigration Judge's determination of whether a conviction qualifies as such a crime should be confined to the formal record of the conviction.

(Filing Date: 05-17-2013)

Cahto Tribe v. Dutschke

Tribal Law: A Tribe’s governing documents must provide for an appeal of its disenrollment action to the Bureau of Indian Affairs (“BIA”) in order for the BIA to review the Tribe’s action under the Administrative Procedure Act.

(Filing Date: 05-15-2013)

Ciolino v. Frank

Attorney Fees: When calculating attorneys' fees in class-action lawsuits, fees must be based on the redeemable value of any coupons awarded to class members, and the lodestar method of attorneys' fees calculation may be used for the portion of a settlement agreement that awards equitable relief.

(Filing Date: 05-15-2013)

Tapia Madrigal v. Holder

Immigration: For purposes of granting asylum under the Convention Against the Torture, the Board of Immigration Appeals should view the events leading to the past and present “fear of persecution” under the “totality of the circumstances.”

(Filing Date: 05-15-2013)

Fox Ins. Co. v. Centers for Medicare/Medicaid

Insurance Law: When a Medicare Part D insurance provider’s malfeasance is found to create a serious risk of health to Medicare enrollees, governing regulations authorize (1) the immediate termination of the services contract without a pre-termination hearing and (2) the immediate recovery of advanced capitation payments not utilized by the provider after the termination, even as final results of the reconciliation process are pending.

(Filing Date: 05-14-2013)

Gonzalez v. City of Anaheim

Civil Rights § 1983: Under the totality of the circumstances, an officer trapped within a moving vehicle with a suspect attempting to flee the scene of a lawful stop is reasonable in his use of deadly force if the threat is severe, immediate, and the suspect is actively resisting arrest.

(Filing Date: 05-13-2013)

McCullough v. Graber

Criminal Procedure: A habeas corpus petition under 28 U.S.C. § 2241 asking the Bureau of Prisons to reconsider a rejected application to the Second Chance Act’s now defunct elderly offender pilot program is moot because the relief requested is no longer available.

(Filing Date: 05-10-2013)

Righthaven LLC v. Hoehn

Copyright: The transfer of the base right to sue for copyright infringement without the transfer of exclusive property rights, is not sufficient for standing to sue for copyright infringement.

(Filing Date: 05-09-2013)

United States v. Sandoval-Orellana

Criminal Law: Sexual penetration by a foreign object, in violation of Cal. Penal Code § 289(a)(1), "involves a substantial risk of the use of force against another and therefore qualifies as an aggravated felony crime" as defined in 8 U.S.C. § 1101(a)(43)(F).

(Filing Date: 05-09-2013)

Goldstein v. City of Long Beach

Civil Rights § 1983: When a district attorney implements procedures related to inmate informants they are acting as a final policy maker for the county and can therefore be held liable to 42 U.S.C.§ 1983.

(Filing Date: 05-08-2013)

United States v. Sivilla

Criminal Law: Government destruction of evidence requires bad faith for dismissal as a constitutional violation, but bad faith is not required for a remedial jury instruction.

(Filing Date: 05-07-2013)

Acosta v. City of Costa Mesa

Constitutional Law: A California city ordinance prohibiting disruptive public behavior at city council meetings is constitutionally overbroad and not severable when it fails to “limit proscribed activity to only actual disturbances” and instead includes a significant amount of “non-disruptive, protected speech.”

(Filing Date: 05-03-2013)

In re: Amy & Vicky

Criminal Law: Because there is no binding precedent for calculating restitution under 18 U.S.C. § 2259, it is not an abuse of discretion when a court declines to impose joint and several liability.

(Filing Date: 05-03-2013)

Mendoza-Alvarez v. Holder

Immigration: Insulin-dependent persons, including those who suffer from mental illness, do not qualify as a protected social group because the group does not contain sufficient particularity.

(Filing Date: 05-03-2013)

Labatad v. Corrections Corp. of America

Civil Rights § 1983: Summary judgment is properly granted for prison officials when a prisoner fails to show deliberate indifference to the substantial risk of attack stemming from temporarily housing him with an inmate belonging to a rival prison gang.

(Filing Date: 05-01-2013)

United States v. Mancuso

Criminal Law: A single count alleging distribution of a controlled substance over a period of years in a variety of locations does not meet the nexus a continuing offense and must be charged in separate counts.

(Filing Date: 05-01-2013)

Friend v. Holder

Immigration: The controlling law governing transmittal of citizenship is generally the statute in place at the time of the child’s birth unless the child is born out of wedlock to a mother who was a U.S. citizen at the time of the child’s birth and previously resided in the U.S. or one of its territories, if so, the Nationality Act of 1940 may be applied retroactively.

(Filing Date: 04-30-2013)

In the Matter of: Fitness Holdings Int'l

Bankruptcy Law: Bankruptcy courts may recharacterize loans as an equity investment for the purpose of § 548 and must apply state bankruptcy law to determine if a creditor has a "right to payment."

(Filing Date: 04-30-2013)

United States v. Stanfill El

Constitutional Law: The Sixth Amendment right to a jury trial is not triggered by any amount of potential restitution; and the Seventh Amendment right to a civil jury trial is not implicated by the potential award of restitution as a result of a criminal prosecution.

(Filing Date: 04-30-2013)

United States v. Ramirez

Criminal Procedure: A judge may not preclude jurors from drawing legitimate inferences with the use of instructions that effectively put such inferences off-limits; additionally, prior convictions as sentencing enhancements under 21 U.S.C. § 841(b) are evaluated by a judge under the preponderance of the evidence standard.

(Filing Date: 04-29-2013)

Clevo Co. v. Hecny Transp., Inc.

Admiralty: Guarantees with no express statute of limitations can place a seller and freight forwarder in direct contractual privity however, a statute of limitations in the bills of lading may bar recovery.

(Filing Date: 04-26-2013)

Grand Canyon Skywalk Dev. v. 'Sa' Nyu Wa Inc.

Indian Law: A tribal court may assert jurisdiction over non-Indian corporations on tribal land where the corporation has entered into a consensual agreement with an Indian corporation and the bad faith and futility exceptions to the exhaustion of tribal remedies requirement are not met when the bad faith actor is merely a party and not the tribal court itself and there are still adequate opportunities to challenge the tribal court’s jurisdiction.

(Filing Date: 04-26-2013)

Conservation Northwest v. Sherman

Administrative Law: A district court abuses its discretion when it enters a consent decree that amends an agency rule which is permanent, substantial, and would have otherwise been subject to statutory rulemaking procedures

(Filing Date: 04-25-2013)

Mondaca-Vega v. Holder

Immigration: Findings of fact related to questions of citizenship are reviewed for clear error.

(Filing Date: 04-25-2013)

Jamerson v. Runnels

Habeas Corpus: In order to overrule the trial court's determination on the credibility of racially discriminatory preemptory challenges, there must be sufficient evidence that the trial court erred.

(Filing Date: 04-24-2013)

Schwab v. CIR

Tax Law: The term "amount actually distributed" in a life insurance policy, for purposes of calculating what is taxable, means the fair market value of the what was distributed under the policy, and "surrender charges associated with a variable universal life insurance policy may be considered as part of the general inquiry into a policy's fair market value."

(Filing Date: 04-24-2013)

Radcliffe_v._Experian Info. Solutions

Civil Law: An incentive award for class representatives conditioned on support of settlement makes the class representatives inadequate and creates a conflict of interest for class counsel between the class representatives and the class.

(Filing Date: 04-22-2013)

Parra v. PacifiCare Arizona

Insurance Law: The Medicare Advantage Organization Statute does not grant a private right of action to recover payments made on behalf of a plan participant, and a Medicare Advantage Organization plan cannot sue the survivors of a plan participant for reimbursement for “medical expenses out of the proceeds of an automobile insurance policy.”

(Filing Date: 04-19-2013)

United States_v._McClendon

Criminal Procedure: A defendant who walks away, refuses to comply with police officers’ commands, and reaches into his waistband is not considered “seized” under the Fourth Amendment until he submits to the authority of the police.

(Filing Date: 04-19-2013)

United States v. Anguiano-Morfin

Criminal Procedure: Although the “willfulness” requirement in 18 U.S.C. § 911 necessitates knowledge on the part of the defendant, jury instructions are adequate under circumstances where a “misrepresentation...[is] deliberately made” because this “suggests a knowing falsehood.”

(Filing Date: 04-18-2013)

United States v. Barnes

Criminal Procedure: An officer engages in prohibited “two-step interrogation” when the officer, in a custodial setting, deliberately delays giving Miranda warnings to induce cooperation in an ongoing investigation.

(Filing Date: 04-18-2013)

Makaeff v. Trump University

First Amendment: Pursuant to California’s Anti-SLAPP (Strategic Lawsuits Against Public Participation) statute, a public figure is held to a higher standard in proving that a person committing the crime of defamation against them acted with "actual malice."

(Filing Date: 04-17-2013)

MHC Financing LP_v_City of San Rafael

Property Law: Diminution in value is not sufficient to establish a private or public taking, and when an ordinance is in effect prior to acquisition of property, the proper analysis of the economic impact under Penn Central is a comparison of the economic impact at the time when the property was acquired and the economic effect after the property was acquired.

(Filing Date: 04-17-2013)

Assoc. Gen. Contractors v. Cal. Dep’t of Transp.

Constitutional Law: An affirmative action program which gives bidding preference in construction to specifically identified minorities based on a strong evidentiary showing of discrimination is constitutional under the Equal Protection Clause so long as it is narrowly tailored to benefit the limited groups identified to have actually suffered pervasive and ongoing discrimination.

(Filing Date: 04-16-2013)

Cameron v. Craig

Criminal Procedure: When executing a lawful search warrant and arrest, an officer is not required to obtain further evidence, or interview the subject of the search warrant, once probable cause is established; whether excessive force was used in the execution of that warrant is generally a question of fact for the jury.

(Filing Date: 04-16-2013)

Donald Wige v. City of Los Angeles

Civil Procedure: Where an officer’s testimony presented at a preliminary hearing is “materially different” from the statement used to obtain probable cause and the state court does not make a factual determination as to the “genuine dispute” of the credibility of that testimony, issue preclusion does not attach to bar later litigation.

(Filing Date: 04-16-2013)

Petersen v. Boeing Co.

Civil Procedure: In order to determine whether a forum selection clause should be enforced and a case dismissed for improper venue, an evidentiary hearing should be held to determine if the clause was the product of fraud or overreach and if its enforcement would deprive the party wishing to repudiate his day in court.

(Filing Date: 04-16-2013)

Rodriguez v. Robbins

Immigration: District court’s grant of a preliminary injunction, which required “the government to identify all class members, detained pursuant to 8 U.S.C. §§ 1226(c) and 1225(b) … and ‘provide each of them with a bond hearing before an Immigration Judge with power to grant their release’” was upheld.

(Filing Date: 04-16-2013)

U.S. v. Trujillo

Criminal Procedure: District courts are not jurisdictionally barred from hearing 18 U.S.C. 3582(c)(2) motions; however in denying such a motion under § 3553(a) the court must give sufficient explanation; and the Ex Post Facto Clause does not prohibit an upward departure in sentencing so long as the original sentence is not exceeded.

(Filing Date: 04-16-2013)

Sams v. Yahoo! Inc.

Civil Law: The good faith reliance defense available under the Stored Communications Act, 18 U.S.C. § 2703(e), is satisfied when "the defendant complies with a subpoena that appears valid on its face, in the absence of any indication of irregularity sufficient to put the defendant on notice that the subpoena may be invalid or contrary to applicable law."

(Filing Date: 04-15-2013)

United States v. Garrido

Criminal Law: Following the Supreme Court’s decision in Skilling v. United States, 18 U.S.C. § 1346 applies only to honest services fraud cases involving bribery or kickbacks, failure to disclose material conflict of interest does not apply; additionally bribery convictions under 18 U.S.C. § 666 do not require an official act.

(Filing Date: 04-15-2013)

Busk v. Integrity Staffing Solutions, Inc.

Labor Law: The Fed. R. Civ. P. 23 class action opt-out mechanism does not conflict with the Fair Labor Standards Act opt-in mechanism and therefore state law claims must not be dismissed; additionally anti-theft security checks are “integral and indispensable” to the warehouse employees’ duties and must be compensated.

(Filing Date: 04-12-2013)

Sexton v. NDEX West, LLC

Civil Procedure: After a matter has been removed to federal court, the doctrine of prior exclusive jurisdiction in inapplicable when a state court does not retain jurisdiction over the appellants’ property and the Colorado River abstention doctrine is inapplicable when appellants do not have concurrently proceeding actions relating to their property in both state and federal court.

(Filing Date: 04-12-2013)

Blum v. Merrill Lynch Pierce Fenner & Smith

Civil Procedure: A motion to intervene in a long-concluded case is not untimely when the purpose of the motion is to seek modification of a protective order; the order can be modified to prevent the destruction of documents relevant to pending litigation.

(Filing Date: 04-11-2013)

Kilgore v. Keybank, Nat’l Ass’n

Arbitration: Under California state law, an arbitration clause that also prohibits claims from being brought as a class action may be overcome only if it is both procedurally and substantively unconscionable.

(Filing Date: 04-11-2013)

Blandino-Medina v. Holder

Immigration: The Immigration and Nationality Act requires that crimes not listed as a “‘particularly serious crime’ per se,” be analyzed by the Board of Immigration Appeals on a case-by-case analysis in accordance with the factors established in Matter of Frentescu.

(Filing Date: 04-10-2013)

Cui v. Holder

Immigration: Inconsistencies that “go to the heart” of an alien’s asylum claim will provide sufficient evidence to deny a petition based on adverse credibility.

(Filing Date: 04-10-2013)

Edgerly v. City & County of San Francisco

Civil Rights § 1983: Consistent with California Court of Appeal's decisions and the statute's plain language, California Penal Code § 853.5 provides the exclusive grounds for the custodial arrest of a person arrested for an infraction.

(Filing Date: 04-10-2013)

In re Western States Antitrust Litig.

Preemption: State antitrust claims arising outside of the Federal Energy Regulatory Commission’s jurisdiction are not preempted by the Natural Gas Act; denying leave to amend is proper when the party seeking the amendment has known the facts and theory since the case began; and denying dismissal of defendants is proper if the defendants fail to make a “compelling case” for why the exercise of personal jurisdiction would be unreasonable.

(Filing Date: 04-10-2013)

Romero-Ochoa v. Holder

Immigration: The presumption of a lack of “good moral character” for an alien who has been incarcerated for more than six months is a reasonable restriction which Congress may impose and does not violate Equal Protection principles.

(Filing Date: 04-10-2013)

Kealoha v. Office of Workers Comp. Programs

Workers Compensation: A suicide or suicide attempt, even when planned, may be compensable under the Longshore Workers’ Compensation Act using the proper test, which requires a “direct and unbroken chain of causation between a work-related injury and the suicide attempt.”

(Filing Date: 04-09-2013)

McDaniel v. Wells Fargo Investments

Preemption: The federal Securities Exchange Act and related “self-regulatory organizations” rules preempt the enforcement of California Labor Code § 450(a) against brokerage houses that forbid their employees from opening outside trading accounts where the state restriction imposed is a significant federal regulatory objective.

(Filing Date: 04-09-2013)

Alliance of Nonprofits v. Kipper

Preemption: Under the Liability Risk Retention Act, which preempts state laws that prohibit a risk retention group from operating in the state, the risk retention group is not entitled to attorney's fees because the preemption is not a "right" enforceable under 42 U.S.C. § 1983.

(Filing Date: 04-08-2013)

United States of America v. Yuman-Hernandez

Sentencing: In the context of a “fictitious stash house robbery,” in order to establish sentencing entrapment a defendant only needs to show either a lack of intent or a lack of capability.

(Filing Date: 04-08-2013)

Castro v. Terhune

Evidence: Because the “some evidence” analysis is an “evidentiary standard,” procedural due process guarantees a California inmate’s administrative "validation" as a gang "associate" be reviewed under the “some evidence” standard.

(Filing Date: 04-05-2013)

Firebaugh Canal Water Dist. v. United States

Administrative Law: The United States Department of the Interior’s broad discretion precludes claims for inadequate drainage under the San Luis Act, and a failure to provide adequate drainage does not constitute “agency action unlawfully withheld or unreasonably delayed” under the Administrative Procedure Act.

(Filing Date: 04-05-2013)

Knappe v. United States

Tax Law: An executor of an estate has a duty to ascertain filing deadlines and will not be excused for reasonable cause by relying on erroneous advice about nonsubstantive tax issues, such as extended filing deadlines.

(Filing Date: 04-04-2013)

North East Med. Svcs. v. Cal. DHCS

Constitutional Law: The Eleventh Amendment of the United States Constitution bars claims for retroactive monetary relief, but prospective relief may be granted if "the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective."

(Filing Date: 04-04-2013)

Ecological Rights Foundation v. PG&E

Environmental Law: Under the Clean Water Act, a complaint must allege that the source of pollution stems from a point source or industrial activity, and under the Resource Conservation and Recovery Act, a complaint must allege that the pollutant is statutorily defined hazardous or solid waste.

(Filing Date: 04-03-2013)

United States v. Augustine

Sentencing: Defendants sentenced prior to the enactment of the Fair Sentencing Act of 2010 are not eligible for a reduced sentence under 18 U.S.C. § 3582(c)(2) because the Act does not apply retroactively.

(Filing Date: 04-03-2013)

United States v. Jennings

Sentencing: Simple tax fraud involving “sophisticated means” warrants a two-level sentencing enhancement upon conviction.

(Filing Date: 04-03-2013)

Ceron v. Holder

Immigration: Under Gonzales v. Barber, the Board of Immigration Appeals has jurisdiction over an alien convicted of a crime where he could have been sentenced to at least one year’s imprisonment, even if the actual sentence was for less amount of time, suspended, or imposed through probation; additionally, the designation of a felony by a trial court on the minute order will be given deference in determining a “wobbler.”

(Filing Date: 04-02-2013)

United States v. Juvenile Male

Juvenile Law: The proper commitment proceeding for a juvenile in federal detention is under the Federal Juvenile Delinquency Act, as opposed to 18 U.S.C. § 4241(d); jurisdiction for such decision is determined at the time of the information.

(Filing Date: 04-02-2013)

United States v. Reyes-Ceja

Immigration: A deportee “found in” the United States by the Bureau of Immigration and Customs Enforcement, while serving a sentence on an unrelated crime, may have his sentence enhanced pursuant to the Sentencing Guidelines for being under a criminal justice sentence.

(Filing Date: 04-01-2013)

Westendorf v. West Coast Contractors

Labor Law: A prima facie case of employment discrimination requires a showing that the conduct is so severe or pervasive that a reasonable person would find it hostile or abusive; a claim for retaliation, however, only requires a showing the plaintiff engaged in a protected activity and was treated adversely for it.

(Filing Date: 04-01-2013)

Gonzales v. U.S. Department of Homeland Security

Immigration: In deciding whether to retroactively apply law in determination of I-212 waiver applications, the court must evaluate according to the five factors set forth through the <em>Montgomery Ward</em> test and decide on a case-by-case basis whether retroactive application is appropriate.

(Filing Date: 03-29-2013)

In re: The Morning Star Packing, Co.

Remedies: Under the Mandatory Victim Restitution Act (“MVRA”), crime victims may file for restitution regardless of the civil remedies available to the victim or the defendant’s economic circumstances, unless determining restitution would “complicate or prolong the sentencing process” using a balancing test that the “need to provide restitution…is outweighed by the burden on the sentencing process.”

(Filing Date: 03-29-2013)

Tanedo v. East Baton Rouge Parish Sch. Bd.

Appellate Procedure: Under the Noerr-Pennington doctrine a denial of a motion for immunity from liability cannot be instantly appealed.

(Filing Date: 03-27-2013)

Lim v. Holder

Immigration: The “continuous presence exception” available to aliens who served in active duty in the United States Armed Forces is a limited exception to cancellation of removal and does not extend to another country’s military.

(Filing Date: 03-26-2013)

Rubin v. City of Lancaster

First Amendment: The City of Lancaster's practice and policy of allowing city council meetings to begin with a citizen-led invocation open to any local congregation who volunteers does not constitute a violation of the First Amendment's Establishment Clause as long as the prayer does not “proselytize, advance, or disparage” a faith or “affiliate the government with a particular faith.”

(Filing Date: 03-26-2013)

SEIU v. NUHW

Labor Law: Section 501 of the Labor Management Reporting and Disclosure Act creates a fiduciary duty to the union as an organization, not just to the union’s rank-and-file members, and union officials who divert union resources for the purposes of establishing a new competing local union violate their fiduciary duties to the organization itself.

(Filing Date: 03-26-2013)

United States v. Jinian

Criminal Law: Interstate wire transfer of money under 18 U.S.C. § 1343 “furthers a fraudulent scheme” where the interstate wiring allows the fraud to continue over time and is essential to making the transferred funds permanently available to the perpetrator of the fraud.

(Filing Date: 03-26-2013)

United States v. Ruiz

Criminal Law: A unanimity instruction is not required when a conviction is based on a single, continuous act, and a prosecutor’s improper vouching during closing arguments may be harmless error when the evidence of guilt is substantial.

(Filing Date: 03-26-2013)

In re: Welsh

Bankruptcy Law: The 2005 Bankruptcy Abuse Prevention and Consumer Protection Act specifically prohibits the inclusion or evaluation of a debtor’s social security benefits when reviewing the debtor’s proposed Chapter 13 plan according to §1325(a)’s requirement for good faith, and bad faith is not present merely because the debtor’s properly calculated disposal income is seriously reduced by payments to secured creditors, leaving relatively little chance that unsecured creditors would be substantially repaid.

(Filing Date: 03-25-2013)

Luvdarts v. AT &amp; T Mobility

Copyright: Mobile carriers are not vicariously liable for copyright infringement occurring on their networks when the plaintiff fails to allege the carriers had a “necessary right and ability to supervise the infringing conduct,” and the carriers are not contributorily liable for copyright infringement when the carriers did not have the “requisite specific knowledge of infringement.”

(Filing Date: 03-25-2013)

Perez v. Nidek Co., LTD.

Preemption: In order for a state-law claim to escape preemption by the Federal Food, Drug, and Cosmetic Act (“FDCA”), the plaintiff must be suing for conduct that violates the FDCA, not suing because the conduct violates the FDCA.

(Filing Date: 03-25-2013)

Amponsah v. Holder

Administrative Law: Nunc pro tunc adoption decrees must be considered on a case-by-case basis in determining whether an adopted child qualifies as a "child" under 8 U.S.C. § 1101(b)(1), and the Board of Immigration Appeals’ blanket rule against recognizing states’ nunc pro tunc adoption decrees was an “unreasonable and impermissible construction” of the statute.

(Filing Date: 03-22-2013)

Ellins v. City of Sierra Madre

Civil Rights § 1983: Leading a vote of no-confidence against the Chief of Police involved a matter of public concern, and the delay in pay increase constituted an adverse employment action.

(Filing Date: 03-22-2013)

Poyson v. Ryan

Sentencing: Habeas corpus relief will not be granted when, during sentencing, the court utilizes a causal nexus test to mitigating factors in order to determine the weight of the evidence and the record does not show whether the court considered the absence of a causal nexus as a “permissible weighing mechanism” or as an “unconstitutional screening mechanism.”

(Filing Date: 03-22-2013)

Columbia Pictures Industries v. Fung

Copyright: The Grokster test for copyright infringement extends to websites even though the wording of the test’s first element applies to “devices” and “products.”

(Filing Date: 03-21-2013)

Tibble v. Edison International

Administrative Law: Under the Employee Retirement Income Security Act (“ERISA”), the six-year statute of limitations is measured from the time the decision to include the investment plan is initially made; a safe harbor under ERISA § 404(c) applies only to a pension plan that “provides for individual accounts and permits a participant or beneficiary to exercise control over the assets in his account.”

(Filing Date: 03-21-2013)

Li v. Kerry

Administrative Law: The district court properly dismissed the plaintiffs’ claims when there was no “live case or controversy” about visa cut-off dates and allocation of visa numbers, and when the plaintiffs did not allege that the “defendants failed to take discrete actions they were legally required to take.”

(Filing Date: 03-20-2013)

United States v. $11,500.00 in U.S. Currency

Civil Law: Dismissal of civil forfeiture action under 21. U.S.C. § 881 for failure to identify the bailor was an abuse of discretion, predominantly because the omission did not appear to be calculated, did not delay or extend the proceedings, and did not prejudice the government.

(Filing Date: 03-20-2013)

County of Sonoma v. FHFA

Administrative Law: A directive issued by the Federal Housing Finance Agency (“FHFA”) to Fannie Mae and Freddie Mac prohibiting the enterprises from purchasing assets FHFA deems risky is an unreviewable action by FHFA as a conservator and not as a regulator, thus formal rulemaking proceedings, including notice-and-comment are not required.

(Filing Date: 03-19-2013)

In re: Motor Fuel Temperature Sales Practice Litig.

Appellate Procedure: To meet the Chief Justice’s Guidelines for an Inter-district Assignment of an Article III Judge, there must be more than an over-burdening to warrant bringing in a visiting judge, and even in the case of severe or unexpected over-burdening; the first remedy is to bring in a visiting judge from another court within the circuit.

(Filing Date: 03-19-2013)

Gulbrandson v. Ryan

Habeas Corpus: Defense counsel was not unreasonably ineffective by failing to have the defendant testify as a guilt stage witness if it is reasonable it would harm the defense, or by failing to have a psychiatric expert testify as to the state of mind at the sentencing hearing because it would have been cumulative of evidence already before the court.

(Filing Date: 03-18-2013)

In re: Amy &amp; Vicky

Criminal Law: Circuit precedent remains binding “in the absence of ‘intervening higher authority’ that is ‘clearly irreconcilable,’” and a court abuses its discretion when it denies restitution based on a presentence report indicating there is insufficient evidence to establish a causal connection between defendant’s offense and petitions’ losses when, in fact, the record contains sufficient evidence to establish such a causal connection.

(Filing Date: 03-18-2013)

Allen v. FDIC

Civil Procedure: In order to remove a case to federal court under 12 U.S.C. § 1819(b)(2), the FDIC must be a real party in interest, and not merely an intervenor; however such restriction may be overcome if the FDIC can show a “threat to federal interests.”

(Filing Date: 03-15-2013)

Chubb Custom Ins. v. Space Systems/Loral

Environmental Law: An insurer cannot make a subrogation claim under §107(a) of CERCLA, and must allege the insured is a “claimant” in order to make a claim under §112(c) of CERCLA.

(Filing Date: 03-15-2013)

Mamigonian v. Biggs

Immigration: District courts do not have jurisdiction over petitions for habeas relief on orders of removal, over complaints regarding pending applications, or over mandamus claims regarding decisions already made by agencies; however, the REAL ID Act does provide for review of final, non-discretionary determinations by USCIS.

(Filing Date: 03-14-2013)

Mashiri v. Department of Education

Immigration: The decision by the Department of Education to deny a Stafford loan to an alien awaiting a grant of asylum was proper since the alien could not provide evidence from the Immigration and Naturalization Service that he was not in the United States temporarily.

(Filing Date: 03-14-2013)

Milke v. Ryan

Habeas Corpus: Under Brady and Giglio , exculpatory evidence of a key witness’ past misconduct and disciplinary actions must be produced by the state in order ensure a fair trial.

(Filing Date: 03-14-2013)

UMG Recordings v. Shelter Capital Partners

Copyright: For the purposes of the “safe harbor” affirmative defense under the Digital Millennium Copyright Act §512(c) website owners are “service providers” and the defense encompasses certain “access-facilitating automatic functions;” additionally, the “red flag” knowledge test was adopted; and Napster liability does not invalidate a §512(c) defense unless the “service provider” has the “right and ability to control” users infringing activity via an exertion of “substantial influence.”

(Filing Date: 03-14-2013)

United States v. Alvirez

Indian Law: Under the Fed. R. Evid. §§ 902(1) and 902(2), Indian tribes are not political subdivisions capable of issuing self-authenticating documents and, therefore, tribes and tribal officers cannot authenticate a Certificate of Indian Blood.

(Filing Date: 03-14-2013)

Knight v. Ahlin

Habeas Corpus: The Younger doctrine, of preventing a court from interfering with a state proceeding, does not apply where the proceedings have been postponed pending a decision by the federal court, since it does not constitute an "ongoing proceeding."

(Filing Date: 03-13-2013)

United Transp. Union v. BNSF Railway Company

Labor Law: An order, and not just an award, stemming from a Railway Labor Act arbitration panel is reviewable by a District Court and an allegation of corruption within an arbitration panel is a proper complaint pursuant to the National Railroad Adjustment Board 45 U.S.C. § 153.

(Filing Date: 03-13-2013)

Gilstrap v. United Air Lines

Tort Law: The Air Carrier Access Act does not preempt state law personal injury tort claims but, instead, can describe the duty element of a negligence claim. Title III of the Americans with Disabilities Act does not include terminals for transportation by aircraft within the definition of "places of public accommodation."

(Filing Date: 03-12-2013)

Shell Offshore v. Greenpeace

Admiralty: A preliminary injunction to prevent an organization from engaging in a “direct action” campaign of illegal activities against another entity during a specified yearly period may be considered ripe, even though the order expired if it was capable of repetition, yet evading review; additionally, the district court had proper jurisdiction on a dispute arising out of drilling in the Arctic Outer Continental Shelf.

(Filing Date: 03-12-2013)

United States v. Hayat

Criminal Law: Exclusion of hearsay statements which may help establish the bias of a witness does not violate the confrontation clause if the facts already on the record were "adequate to develop the issues of bias."

(Filing Date: 03-12-2013)

SOFA Entertainment v. Dodger Productions

Copyright: The “fair use” doctrine of 17 U.S.C. § 17 protects the use of a short television clip in an autobiographical production when use of the clip is for historical significance and its use does not usurp the demand for the original clip.

(Filing Date: 03-11-2013)

Libertarian Party v. Bowen

Standing: In order to enjoin state election laws and meet constitutional standing in a pre-enforcement action, the plaintiffs must allege both a concrete plan to violate that statute and defendant's specific threat of enforcement.

(Filing Date: 03-09-2013)

Gonzalez-Cervantes v. Holder

Immigration: There is no “realistic probability” that California courts would apply Cal. Penal Code § 243.4(e) to conduct that does not meet the generic federal definition of “moral turpitude.”

(Filing Date: 03-08-2013)

United States v. Cotterman

Criminal Procedure: Evidence obtained from a laptop computer after a full forensic examination conducted 170 miles away from where the laptop was seized by border control agents is constitutional where the agents had reasonable suspicion to conduct the search.

(Filing Date: 03-08-2013)

United States v. King

Criminal Law: The Fourth Amendment permits a suspicionless search of a probationer’s residence when, as part of a probation agreement, the probationer has accepted a suspicionless-search condition.

(Filing Date: 03-08-2013)

Bell v. City of Boise

Civil Rights § 1983: Under the Rooker-Feldman doctrine, a party cannot seek review of an adverse state court judgment in federal court if the action “contains a forbidden de facto appeal of a state court decision and it alleges a legal error by the state court.”

(Filing Date: 03-07-2013)

Corns v. Laborers Int'l Union

Labor Law: Under the Labor Management Reporting Disclosure Act, an international labor organization that represents a group of local unions is not permitted to pass a dues increase by a vote of local union members because the local union individuals are not members of the international labor organization.

(Filing Date: 03-07-2013)

Walker v. Martel

Habeas Corpus: Under Strickland v. Washington , it was not “objectively unreasonable” for the California Supreme Court to conclude that a defendant’s conviction or sentence would have been different had counsel objected to the use of limp-causing leg restraints.

(Filing Date: 03-07-2013)

Alaska Rent-a-Car v. Avis Budget Group

Contract Law: A promisee who joins a settlement agreement after most other promissees is still a proper party to a breach of that agreement.

(Filing Date: 03-06-2013)

In re: Garcia

Bankruptcy Law: Even a luxury motor vehicle may be exempted under California’s wildcard exemption, and 11 U.S.C. § 522(f)(1)(B) allows the avoidance of a lien on an exempt vehicle that is a “tool of the debtor’s trade” as long as the lien is a non-possessory and non-purchase-money encumbrance.

(Filing Date: 03-05-2013)

United States v. Brizan

Criminal Procedure: Criminal Procedure: A waiver of appeal in a plea agreement will be upheld as long the district court conducts a thorough Fed. R. Crim. P. 11 colloquy and the sentence does not contradict any plea agreement or exceed a statutory limit.

(Filing Date: 03-05-2013)

Great Old Broads for Wilderness v. Kimbell

Administrative Law: A plaintiff has adequately exhausted administrative remedies when claims made at the administrative appeals level are so similar to those brought at the federal level that the agency was put on notice.

(Filing Date: 03-04-2013)

Valle del Sol V. Whiting

First Amendment: The day labor provisions of Senate Bill 1070 impermissibly restrict commercial speech because under Central Hudson , they are more extensive than necessary to advance Arizona's stated government interest in traffic safety.

(Filing Date: 03-04-2013)

Wang v. Chinese Daily News

Labor Law: Following the United States Supreme Court's decision in Wal-Mart Stores, Inc. v. Dukes , the Court of Appeals determined that Plaintiffs' class certification must be reconsidered by the district court.

(Filing Date: 03-04-2013)

A.D. v. California Highway Patrol

Constitutional Law: A police officer violates the liberty interest afforded by the Fourteenth Amendment’s due process clause when he shoots and kills a person with “the purpose to harm, unrelated to a legitimate law enforcement objective.”

(Filing Date: 03-03-2013)

San Luis Unit Food Producers v. United States

Administrative Law: Administrative Procedure Act § 706(1) claims can proceed “only where a plaintiff asserts that an agency failed to take a discrete agency action that it is required to take” since “broad programmatic attacks on an agency’s administration of a program” are prohibited.

(Filing Date: 03-01-2013)

Tamayo-Tamayo v. Holder

Immigration: When the history of a statute does not suggest procedural interpretation, substantive interpretation applies as long as it does not render the statute superfluous or lead to absurd results. A removal order under 8 U.S.C. § 1231(a)(5) can be reinstated from its original date and is not “superseded” or invalidated because a later removal order exists.

(Filing Date: 02-28-2013)

In re: Marciano

Bankruptcy Law: Unstayed non-default state judgments on appeal are “not contingent as to liability or the subject of a bona fide dispute as to liability or amount” for purposes of involuntary petitions pursuant to § 303(b)(1) of the Bankruptcy Code.

(Filing Date: 02-27-2013)

Inst. of Cetacean Research v. Sea Shepherd

Admiralty: A piracy claim requires acts "committed for private ends... [which] include those pursued on personal, moral or philosophical grounds." Belief that your actions serve the public does not insulate them from piracy claims.

(Filing Date: 02-25-2013)

Inst. of Cetacean Research v. Sea Shepherd

Admiralty: A piracy claim requires acts "committed for private ends... [which] include those pursued on personal, moral or philosophical grounds." Belief that your actions serve the public does not insulate them from piracy claims.

(Filing Date: 02-25-2013)

Kuxhausen v. BMW Financial Services

Civil Procedure: Under 28 U.S.C. § 1446, the time limits for removal are not triggered where (1) the removability of the initial complaint cannot be determined without valuation information from the defendant and (2) no subsequent document filed with the court provides a basis for removal.

(Filing Date: 02-25-2013)

Kuxhausen v. BMW Financial Services

Civil Procedure: Under 28 U.S.C. § 1446, the time limits for removal are not triggered where (1) the removability of the initial complaint cannot be determined without valuation information from the defendant and (2) no subsequent document filed with the court provides a basis for removal.

(Filing Date: 02-25-2013)

Sonoma Cnty. Ass'n of Retired Emp. v. Sonoma Cnty.

Contract Law: “[U]nder California law, a vested right to health benefits for retired county employees can be implied under certain circumstances from a county ordinance or resolution.”

(Filing Date: 02-25-2013)

Sonoma Cnty. Ass'n of Retired Emp. v. Sonoma Cnty.

Contract Law: “[U]nder California law, a vested right to health benefits for retired county employees can be implied under certain circumstances from a county ordinance or resolution.”

(Filing Date: 02-25-2013)

Gasparyan v. Holder

Immigration: When considering the "extraordinary circumstances" exception of an immigration appeal denial of asylum based on a one-year timeline expiration, the immigration law judge must determine that an extraordinary circumstance existed. Only then must the immigration judge use the three-factor test laid out in 8 C.F.R. § 1208.4(a)(5) that determines "whether extraordinary circumstances may excuse an untimely asylum application."

(Filing Date: 02-20-2013)

Gasparyan v. Holder

Immigration: When considering the "extraordinary circumstances" exception of an immigration appeal denial of asylum based on a one-year timeline expiration, the immigration law judge must determine that an extraordinary circumstance existed. Only then must the immigration judge use the three-factor test laid out in 8 C.F.R. § 1208.4(a)(5) that determines "whether extraordinary circumstances may excuse an untimely asylum application."

(Filing Date: 02-20-2013)

Hartmann v. California Dep't of Corrections

Civil Rights § 1983: To establish a violation of the Free Exercise Clause of the First Amendment, a plaintiff-inmate who practices a non-traditional religion must plead sufficient facts showing that prison officials denied her a “reasonable opportunity” to freely exercise her faith comparable to inmates “adhering to conventional religious precepts.”

(Filing Date: 02-19-2013)

AT&T Mobility LLC v. AU Optronics Corp.

Constitutional Law: “To the extent a defendant’s conspiratorial conduct is sufficiently connected to California, and is not ‘slight and casual,’ the application of California [antitrust] law to that conduct is ‘neither arbitrary nor fundamentally unfair,’ and the application of California law does not violate that defendant’s rights under the Due Process Clause.”

(Filing Date: 02-14-2013)

Maxwell v. County of San Diego

Constitutional Law: Where a police officer impedes a gunshot victim’s access to medical care and, thus, places the victim in a worse position than she was in, the police officer is liable for a due process violation because, under the “danger creation” exception, the officer is not entitled to qualified immunity.

(Filing Date: 02-14-2013)

Henriquez-Rivas v. Holder

Immigration: For purposes of seeking asylum, the "social visibility" requirement of “membership in a social group” refers to "perception" and does not require "on-sight" visibility, and those who have publicly testified against gang members in court meet the social visibility requirement.

(Filing Date: 02-13-2013)

Bylsma v. Burger King Corp.

Tort Law: The plaintiff is entitled to amend his complaint in light of a Washington Supreme Court decision issued in response to the certified question of whether “the Washington Product Liability Act permit[s] relief for emotional distress damages, in the absence of physical injury, caused to the direct purchaser by being served and touching, but not consuming, a contaminated product.”

(Filing Date: 02-12-2013)

Dichter-Mad Family Partners v. United States

Civil Procedure: Plaintiffs must overcome a strong presumption that the United States is immune from prosecution for the actions of its agents under the ’discretionary function’ exception to the United States’ waiver of sovereign immunity in the Federal Tort Claims Act. 28 U.S.C. § 2680(a).

(Filing Date: 02-12-2013)

United States v. May

Sentencing: Under the U.S. Sentencing Guidelines, a court may consider damages that arise as a result of prevention measures directed at an ongoing crime spree. Under the Mandatory Victim's Restitution Act, where a convicted act occurred after damages arose, the convicted act cannot be the basis for restitution of the damages.

(Filing Date: 02-12-2013)

Padgett v. Loventhal

Attorney Fees: Remand is necessary where, for a reduced attorney fee and cost award, the district court fails to explain how it determined the appropriateness of the award amount.

(Filing Date: 02-11-2013)

Ford v. City of Yakima

Civil Rights § 1983: A police officer who arrests an individual due to retaliatory animus, even if there is probable cause, violates a clearly established right for the purpose of § 1983.

(Filing Date: 02-08-2013)

Reed v. Town of Gilbert, Arizona

First Amendment: A city ordinance that categorizes noncommercial speech based on objective factors, like size and duration, serves a significant government interest and leaves open ample alternative channels of communication, is not a content based restriction and is a constitutional time, place and manner restriction.

(Filing Date: 02-08-2013)

United States v. Petri

Sentencing: Federal Rules of Criminal Procedure Rule 32(i)(3)(B) requires a district court to address only unresolved factual objections to the presentence report. When explaining a sentence, the district court does not need to address every assertion made within each argument presented during sentencing.

(Filing Date: 02-08-2013)

Cannedy v. Adams

Habeas Corpus: A defendant is denied effective assistance of counsel in a lewd acts case where defense counsel fails to interview witnesses who can corroborate the defendant's claim that the victim had motive to make false accusations.

(Filing Date: 02-07-2013)

Multistar Industries, Inc. vs. USDOT

Administrative Law: Under the Hobbs Act and the Administrative Procedure Act, where the basis of an appeal from an administrative decision and order was not a factor in the agency's final decision, the Court of Appeals can not review the decision or order. A petitioner is not denied due process when an agency declines to review findings that were not the basis of the agency's final action.

(Filing Date: 02-07-2013)

Recinto v. U.S. Dep't of Veterans Affairs

Administrative Law: The Veteran’s Administration’s (“VA”) exclusive use of the National Personnel Records Center (“NPRC”) to determine eligibility for benefits under the Filipino Veterans Equity Compensation Fund (“FVEC”) does not violate due process under the Fifth Amendment.

(Filing Date: 02-07-2013)

United States v. Stone

Criminal Law: The Supreme Court’s holding in Flores-Figueroa v. United States does not change the Ninth Circuit’s holding “that the government need not prove that a defendant knew the firearm or ammunition had traveled in interstate commerce in order to obtain” a conviction under 18 U.S.C. § 922(g)(1) because the interstate commerce portion is merely jurisdictional.

(Filing Date: 02-07-2013)

Correa-Rivera v. Holder

Immigration: In an ineffective assistance of counsel claim, an alien meets the third Lozada requirement, that "the motion should reflect whether a complaint has been filed" with proper authorities, by including a copy of a complaint to the state bar.

(Filing Date: 02-06-2013)

Dyer v. Hornbeck

Habeas Corpus: The Court affirmed the "district court’s denial of a 28 U.S.C. § 2254 habeas corpus petition challenging the admission of statements Dyer made to police" and "concluded that fairminded jurists could disagree as to whether Dyer was “in custody” when she made certain disputed statements," therefore the "state court’s decision . . . was not an unreasonable application of the Supreme Court’s decision in Miranda v. Arizona, 384 U.S. 436 (1966), and its progeny."

(Filing Date: 02-06-2013)

Smith v. Hedgpeth

Habeas Corpus: For purposes of the Double Jeopardy Clause, “[c]learly established federal law does not require the consideration of sentencing enhancements when determining if one offense is a lesser-included offense of another under the ‘same elements’ test.”

(Filing Date: 02-05-2013)

United States v. Preston

Sentencing: A lifetime term of supervised release for the offense of abusive sexual contact was proper when the sentencing judge provided ample reasons for imposing the term and accounted for the defendant’s age and mental capacity.

(Filing Date: 02-05-2013)

Center for Biological Diversity v. Salazar

Environmental Law: The Bureau of Land Management can allow the continuation of a mining plan, despite a hiatus in the mining operations. That continuation can occur without additional review under the National Environmental Policy Act, as long at there is not a new "major Federal action."

(Filing Date: 02-04-2013)

Lopez-Vasquez v. Holder

Immigration: A drug conviction renders an alien ineligible for adjustment of status where the trial court record is inconclusive, and, therefore, the alien is unable to prove “clearly and beyond doubt” that he was convicted of simple possession of a controlled substance.

(Filing Date: 02-01-2013)

United States v. Davis

Remedies: Forfeiture and restitution ordered payable to the government is not double recovery, even if awarded to the same government entity.

(Filing Date: 02-01-2013)

Chappell v. Mandeville

Civil Rights § 1983: When the law is not clearly established on whether a contraband watch violates the Eighth Amendment, such that it fails to provide adequate notice to prison officials regarding the constitutionality of their actions, the prison officials are entitled to qualified immunity.

(Filing Date: 01-31-2013)

United States v. Doe

Criminal Law: When asserting the affirmative defense of public authority, the defendant bears the burden of proof by a preponderance of the evidence where the crime requires that the defendant acted “knowingly.”

(Filing Date: 01-31-2013)

Kramer v. Toyota Motor Corp.

Arbitration: Signatory and nonsignatory entities in a contract are presumptively not in agreement to arbitrate arbitrability if the contract does not specifically include nonsignatory entities in the signatories’ agreement to arbitrate arbitrability.

(Filing Date: 01-30-2013)

United States v. Jesus-Casteneda

Evidence: “A confidential informant’s testimony at trial in a wig-and-mustache disguise did not violate the Confrontation Clause, where the disguise was necessary to further the witness’s safety and the reliability of his testimony was otherwise assured.”

(Filing Date: 01-30-2013)

Barragan-Lopez v. Holder

Immigration: Using a hostage to shield oneself from arrest is considered a violent crime, and thus is a deportable offense under 8 U.S.C. § 1227(a)(2)(A)(iii).

(Filing Date: 01-29-2013)

Carrillo de Palacios v. Holder

Immigration: "Aliens who are inadmissible under 8 U.S.C. § 1182(a)(9)(C)(i)(I)-(II) are ineligible for adjustment of status under 8 U.S.C. § 1255(i)."

(Filing Date: 01-28-2013)

Dichter-Mad Family Partners v. United States

Sovereign Immunity: “[D]ecisions of whether and how to conduct investigations and enforcement actions are firmly lodged in the Securities and Exchange Commission’s discretion,” and are exempted from judicial review under the "discretionary function exception" (28 U.S.C. § 2680(a)) to the Federal Tort Claims Act.

(Filing Date: 01-28-2013)

Mattel v. MGA Entertainment

Civil Procedure: Where a counterclaim is based on chicanery by the opposing party’s employees, who were not involved with the facts of the original claim, the counterclaim is not compulsory.

(Filing Date: 01-24-2013)

Thompson v. Runnels

Habeas Corpus: For habeas petitions under 28 U.S.C. § 2254, the correct law to be applied is the “clearly established Federal law” at the time of the final state adjudication, and not law created after the state decision.

(Filing Date: 01-24-2013)

Alaska Survival v. Surface Transp. Bd.

Environmental Law: The Surface Transportation Board's ("STB") grant of an exemption under the Interstate Commerce Commission Termination Act ("ICCTA") to the Alaska Railroad Corporation ("ARRC") to build a rail line did not violate the National Environmental Protection Act of 1969 ("NEPA") or the Administrative Procedure Act ("APA") because STB "thought hard" when it adopted the purpose and need statement which addressed ARRC's goals; STB considered "reasonable" alternatives to the project; and STB engaged in "thoughtful discussion" when it assessed the mitigation measures that ARRC must employ in order to build the rail line.

(Filing Date: 01-23-2013)

Alphonsus v. Holder

Immigration: The Board of Immigration Appeals (BIA) must explain its basis for using the “orderly pursuit of justice” and “meaningful risk of harm” rationales in determining that an individual committed a particularly serious crime before the BIA’s determination can be evaluated for its legal adequacy.

(Filing Date: 01-18-2013)

Hurles v. Ryan

Habeas Corpus: A petitioner is entitled to an evidentiary hearing in a state court post-conviction relief (PCR) claim of judicial bias when the judge who presided over the trial, sentencing, and PCR hearing "makes factual findings [in the PCR case] without an evidentiary hearing or other opportunity for the petitioner to present evidence."

(Filing Date: 01-18-2013)

United States v. Zepeda

Indian Law: Stipulation of a Tribal Enrollment Certificate was insufficient evidence to establish the defendant’s Indian status for purposes of the defendant’s conviction under the Major Crimes Act, 18 U.S.C. § 1153, which grants federal jurisdiction over enumerated crimes committed by Indians in Indian country.

(Filing Date: 01-18-2013)

Faulkner v. ADT Security Services, Inc.

Civil Procedure: Stipulation of a Tribal Enrollment Certificate was insufficient evidence to establish the defendant’s Indian status for purposes of the defendant’s conviction under the Major Crimes Act, 18 U.S.C. § 1153, which grants federal jurisdiction over enumerated crimes committed by Indians in Indian country.

(Filing Date: 01-17-2013)

Furnace v. Sullivan

Civil Rights § 1983: At summary judgment, all inferences must be drawn in favor of the plaintiff when determining qualified immunity for purposes of an Eighth Amendment analysis in a § 1983 claim.

(Filing Date: 01-17-2013)

United States v. Gallegos-Galindo

Sentencing: The 2008 Revised Code of Washington § 9A.44.060(1)(a) includes any sex offense involving the absence of the victim’s consent as a “forcible sex offense.” A third-degree rape conviction is considered a “forcible sex offense” and can be considered during sentencing of a future crime, even if the rape occurred before Amendment 722 was enacted.

(Filing Date: 01-17-2013)

United States v. Vidal-Mendoza

Immigration: Under 8 U.S.C. § 1326(d), where an alien lacks “apparent eligibility for relief [] at the time of his removal hearing and potentially [becomes] eligible for such relief only through [a] post-removal change law,” the alien may not collaterally attack the removal order on the basis that the IJ failed to inform him of eligibility for such relief.

(Filing Date: 01-15-2013)

Wilson v. CIR

Tax Law: Under 26 U.S.C. § 6015, the Tax Court is permitted to review Innocent Spouse Relief cases de novo and to consider new evidence in making its determination.

(Filing Date: 01-15-2013)

United States v. Hardeman

Criminal Law: The application of 18 U.S.C. § 2260A, which criminalizes committing certain federal offenses while under a legal duty to register as a sex offender, does not violate the Ex Post Facto Clause, even if the defendant’s registration duty arose retroactively.

(Filing Date: 01-14-2013)

United States v. Jensen

Sentencing: The maximum sentence for a violation of 18 U.S.C. § 3146, failing to appear, is determined by looking to the maximum sentence imposed by the underlying offense and applying that in § 3146 framework.

(Filing Date: 01-14-2013)

Babb v. Lozowsky

Habeas Corpus: In a petition for habeas corpus, where a court determines with reasonable certainty that a jury reached a general verdict of guilt upon a valid theory, an erroneous instruction relating to separate theory of guilt is a harmless error.

(Filing Date: 01-11-2013)

Lawler v. Montblanc North America, LLC

Employment Law: Under the California Fair Employment and Housing Act, an employee whose disability precludes her presence at the workplace when her presence is an essential job function does not make out a prima facie claim for disability discrimination.

(Filing Date: 01-11-2013)

United States v. El Dorado County

Appellate Procedure: An order suspending a consent decree will not be subject to an interlocutory appeal unless the appealing party can show that it will suffer “serious, perhaps irreparable consequences.”

(Filing Date: 01-11-2013)

DC Comics v. Pacific Pictures

Civil Procedure: An order denying a defendant’s motion to strike state law claims under California’s anti-SLAPP statute is immediately appealable because the statute grants immunity from suit, not merely a defense to liability.

(Filing Date: 01-10-2013)

Stengel v. Medtronic, Inc.

Preemption: A federal-law duty imposed by the Medical Device Amendments to the Food, Drug, and Cosmetic Act does not preempt a parallel state-law duty of care.

(Filing Date: 01-10-2013)

Castrijon-Garcia v. Holder

Immigration: The court held that simple kidnapping does not involve moral turpitude because under CPC §207(a) it “does not require an intent to injure, actual injury, or a special class of victims.”

(Filing Date: 01-09-2013)

Castrijon-Garcia v. Holder

Immigration: The court held that simple kidnapping does not involve moral turpitude because under CPC §207(a) it “does not require an intent to injure, actual injury, or a special class of victims.”

(Filing Date: 01-09-2013)

United States v. Juvenile Male

Criminal Procedure: The Ninth Circuit joined its sister circuits in not requiring a psychological evaluation for determining whether transfer from juvenile proceedings to adult prosecution is "in the interest of justice." Presuming guilt for the purposes of a transfer decision is not a violation of due process rights.

(Filing Date: 01-09-2013)

United States v. Juvenile Male

Criminal Procedure: The Ninth Circuit joined its sister circuits in not requiring a psychological evaluation for determining whether transfer from juvenile proceedings to adult prosecution is "in the interest of justice." Presuming guilt for the purposes of a transfer decision is not a violation of due process rights.

(Filing Date: 01-09-2013)

Cunningham v. Wong

Habeas Corpus: It does not amount to interrogation in violation of Miranda for a detective to ask a suspect in custody, “Do you want to talk to an attorney or do you want to talk to me without an attorney?” after a suspect invokes but adds "I will talk to you now until I think I need [an attorney]. I don’t need one present at this time."

(Filing Date: 01-08-2013)

United States v. Olsen

Habeas Corpus: In a trial for the possession of biological toxins, undisclosed evidence refuting an expert witness’s credibility did not fundamentally change the result of the trial, because other “overwhelming” evidence, including extensive internet research concerning biological weapons and terrorism, supported the conviction.

(Filing Date: 01-08-2013)

United States v. Sideman &amp; Bancroft, LLP

Tax Law: A taxpayer's Fifth Amendment right against self-incrimination is not violated where it is established that, before issuing an administrative summons relating to a criminal investigation of that taxpayer, the IRS had independent knowledge of the summonsed documents’ existence and authenticity, and of the respondent’s possession of the documents.

(Filing Date: 01-08-2013)

Jayne v. Sherman

Environmental Law: In preparing an Environmental Impact Statement, the Forest Service did not act in an arbitrary or capricious manner when considering commitments by a forest supervisor to protect endangered species after the adoption of a new regulation affecting wilderness management.

(Filing Date: 01-07-2013)

Peralta v. Dillard

Civil Rights § 1983: The court may instruct the jury to consider the “duties, discretion and means available” to prison employees in determining whether the employee acted with deliberate indifference to a prisoner's medical needs.

(Filing Date: 01-07-2013)

United States v. Juan

Civil Procedure: For a defendant to show a violation of due process under the Fifth Amendment for prosecutorial intimidation of a witness, defendant must show a causal link between the statements and the witness's decision to change her decision.

(Filing Date: 01-07-2013)

Henderson v. Johnson

Habeas Corpus: Where a habeas petition contains both exhausted and unexhausted state habeas claims, a district court should dismiss the petition with leave to amend. If requested, a district court should also consider the petitioner’s eligibility for a stay of the whole petition or unexhausted claims.

(Filing Date: 01-03-2013)

United States v. Xu

Criminal Law: “When a statute gives no clear indication of an extraterritorial application, it has none.” However, there is "express legislative intent to punish patterns of organized criminal activity in the United States" and under RICO, conspiracy convictions are not the result of "improper extraterritorial application" when the pattern of defendants’ criminal enterprise involved both the foreign country and the United States.

(Filing Date: 01-03-2013)

Freeman Investments v. Pacific Life

Civil Law: "[C]lass claims for breach of contract and breach of the duty of good faith and fair dealing [are] not precluded by SLUSA, even if such claims related to the purchase or sale of a covered security, because these contract claims did not rest on misrepresentation or fraudulent omission."

(Filing Date: 01-02-2013)

In Re: Century Aluminum Co.

Civil Law: Under § 11 of the Securities Act of 1933, 15 U.S.C. § 77k, a plaintiff has a cause of action if she proves that her purchased shares were fraudulently issued under a “materially false or misleading registration statement.”

(Filing Date: 01-02-2013)

United States v. Pleasant

Sentencing: A defendant’s “agreed sentencing range” is not necessarily his “applicable sentencing range.” “The applicable guideline range is determined before consideration of any departure provision in the Guidelines Manual or any variance.”

(Filing Date: 01-02-2013)

United States v. Yi

Criminal Law: A “deliberate ignorance” instruction is appropriate where the evidence establishes “(1) a subjective belief that there is a high probability a fact exists; and (2) deliberate actions taken to avoid learning the truth.”

(Filing Date: 01-02-2013)

Alocozy v. USCIS

Immigration: A waiver of deportation under former INA section 212(c) does not foreclose the government's ability to use a person's conviction when it considers the "unrelated question of fitness for naturalization." Additionally, when determining whether a "new immigration consequence" was created by the retroactive application of the definition of aggravated felony, the Court will look at a person's "settled expectations."

(Filing Date: 12-28-2012)

Rojas v. Holder

Immigration: In determining whether to grant or deny a request for voluntary departure, the Immigration Judge may consider “evidence of bad character or undesirability” in making that discretionary determination.

(Filing Date: 12-28-2012)

Rojas v. Holder

Immigration: In determining whether to grant or deny a request for voluntary departure, the Immigration Judge may consider “evidence of bad character or undesirability” in making that discretionary determination.

(Filing Date: 12-28-2012)

United States v. Lee

Criminal Law: When a defendant pleads guilty to violating a broad statute with 2 or more offenses, the court must be specific, for the purposes of determining career offender status or other enhanced sentencing designations, which offense was committed.

(Filing Date: 12-28-2012)

Cooper v. Ramos

Post-Conviction Relief: Under the Rooker-Feldman doctrine, 28 U.S.C. § 1257 vests the power to hear direct appeals from state court judgments to the United States Supreme Court, not to federal district courts. Although the doctrine does not preclude a plaintiff from bringing an “independent claim” that was not the subject of a previous state court judgment, if subsequent claims are “inextricabl[y] intertwined” with a claim the court does not have jurisdiction to hear, the court will also be barred from hearing those subsequent claims.

(Filing Date: 12-27-2012)

Arteaga-De Alvarez v. Holder

Immigration: The Ninth Circuit does not have jurisdiction over a plaintiff’s claim that she did not receive due process because her request for cancellation of removal was denied even though her husband’s cancellation of removal request had been granted based on similar circumstances. The Board of Immigration Appeal (BIA) “committed an error of law” when it relied on a categorical rule that the “availability of alternative relief necessarily undercuts a cancellation of removal claim of hardship to the applicant’s qualifying relative.”

(Filing Date: 12-26-2012)

Gutierrez v. Wells Fargo

Civil Law: Wells Fargo Bank is not entitled to demand arbitration on appeal for a customer class action suit challenging the bank’s high-to-low debit card posting scheme under California’s Unfair Competition Law as “unfair” and “fraudulent.” National banking laws preempt California state law regarding the unfairness of a bank's posting scheme, but not any fraudulent misrepresentations made about it to customers.

(Filing Date: 12-26-2012)

Redoil v. EPA

Environmental Law: The Clean Air Act is ambiguous regarding whether best available control technology applies to support vessels; as a result, an Environmental Appeals Board interpretation of the statute deserves deference under Chevron U.S.A., Inc. v. NRDC, Inc.

(Filing Date: 12-26-2012)

Sanchez v. Holder

Immigration: Since the Federal Rules of Evidence do not apply to immigration hearings, the proper standard for admitting evidence is "whether the evidence is probative and its admission is fundamentally fair." Where an appellant claims a translation of her statements is inaccurate, but does not offer a corrected translation of the statements, the statements are admissible.

(Filing Date: 12-26-2012)

United States v. Phillips

Parole and Post-Prison Supervision: The prohibition on “frequent[ing] places” utilized in the trade or use of illegal drugs prohibits a person from “knowingly going to a specific place where drugs are illegally used or sold,” but not incidental contact with a “neighborhood simply because a person is selling drugs somewhere within that neighborhood.”

(Filing Date: 12-26-2012)

In Re: VeriFone Holdings

Civil Law: Under the Securities and Exchange Act of 1934, pleadings are adequate if, viewed holistically, the inference that a company was deliberately reckless in the manipulation of its financial statements is "at least as compelling as any opposing inference."

(Filing Date: 12-21-2012)

Barnes-Wallace v. Boy Scouts of America

Constitutional Law: A city’s lease of land for one dollar per year to the Boy Scouts of America does not violate the California Constitution, because the leases are “indirect or incidental” aid by the city for a religious purpose, and the city’s lack of involvement does not amount to entanglement such that the leases would violate the California No Preference Clause or state or federal Establishment Clauses.

(Filing Date: 12-20-2012)

United States v. Valdavinos-Torres

Criminal Law: Possession of a controlled substance for sale under state law is a deportable offense under federal law where the conviction record, including the indictment, the plea agreement, the transcript of the plea proceeding, minute entry, or the judgment, indicates the substance is a controlled substance under federal law.

(Filing Date: 12-20-2012)

United States v. Yepez

Criminal Law: A defendant whose state criminal sentence was retroactively terminated is not eligible for safety valve sentencing relief.

(Filing Date: 12-20-2012)

Metro One v. CIR

Tax Law: § 56’s Relief Rule does not allow a taxpayer subject to the Alternative Minimum Tax to offset upwards of 100% of a taxpayer’s income with net operating losses, because the term “carryovers” as used in § 56(d)(1) refers only to “carryforwards.” Thus, taxpayers are not able to use net operating losses carried back to 2001 or 2002 from later tax years under the Relief Rule.

(Filing Date: 12-19-2012)

United States v. Bustos-Ochoa

Immigration: An alien cannot challenge his initial removal order as fundamentally unfair based on the fact that the immigration judge did not advise him on relief for which he was not eligible.

(Filing Date: 12-18-2012)

Washington Shoe v. A-Z Sporting Goods

Civil Procedure: Under the Calder test, personal jurisdiction is established against a non-resident defendant where the defendant knowingly engaged in copyright infringement knowing that the harm would impact a plaintiff in Washington State.

(Filing Date: 12-17-2012)

Managed Pharmacy Care v. Sebelius

Administrative Law: Congress expressly granted the Secretary of Health and Human Services the authority to reasonably decide under federal law the reimbursement rate that states may set in managing their Medicaid programs.

(Filing Date: 12-13-2012)

Loftis v. Almager

Habeas Corpus: Under 28 U.S.C. § 2254, if a defendant pleads no contest, making reference to People v. West during the plea colloquy does not trigger the factual basis requirements of North Carolina v. Alford .

(Filing Date: 12-11-2012)

Medrano v. Flagstar Bank

Civil Law: A mortgage-loan servicer's duty to respond under the Real Estate Settlement Procedures Act, 12 U.S.C. § 2605, is not triggered unless the borrower includes her name and account information, the reasons the borrower believes the account is in error, and a request for information regarding the service of the loan.

(Filing Date: 12-11-2012)

United States v. Simard

Constitutional Law: In granting a motion to strike a claim in a civil forfeiture proceeding, the district court errs when it applies the standard of proof for a possessory interest, rather than an ownership interest; therefore, an “unequivocal assertion of an ownership interest in the property is sufficient to establish standing.”

(Filing Date: 12-10-2012)

Ortiz v. Yates

Evidence: The trial court's ruling that denied the petitioner the opportunity to cross-examine his wife regarding what she perceived to be a threat from the prosecutor violated the Confrontation Clause of the Sixth Amendment.

(Filing Date: 12-06-2012)

United States v. Keyser

Criminal Law: The mailing of sugar packets labeled “Anthrax” constitutes a true threat and, therefore, is not protected by the First Amendment; likewise, hoax speech is not entitled to First Amendment protection, because “false and misleading information indicating an act of terrorism tends to incite a tangible negative response by law enforcement, emergency workers, and citizens.”

(Filing Date: 12-06-2012)

Coles v. Eagle

Criminal Procedure: Claims of excessive force are reviewed using the reasonableness standard under the Fourth Amendment. In determining whether the force was reasonable, the court balances the "nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake."

(Filing Date: 12-05-2012)

United States v. Harris

Criminal Law: 49 U.S.C. § 46505’s prohibition of “dangerous weapons” on an aircraft is “sufficiently clear to provide guidance to citizens concerning how they can avoid violating it” and to place a defendant on notice that his conduct was criminal to survive an as-applied vagueness challenge.

(Filing Date: 12-05-2012)

United States v. Hernandez-Estrada

Criminal Law: To successfully plead violations of the Jury Selection Service Act of 1968, a plaintiff must show a substantial interference with the "Act's key goals of randomness and objectivity."

(Filing Date: 12-05-2012)

In Re: Bellingham Ins. Agency, Inc.

Bankruptcy Law: Under 28 U.S.C. § 157, a non-Article III bankruptcy judge has constitutional authority to hear and enter proposed findings of fact and conclusions of law in a fraudulent conveyance proceeding asserted by a bankruptcy trustee against a noncreditor, but entering a final judgment is left to the federal district court.

(Filing Date: 12-04-2012)

Martinez v. Napolitano

Immigration: 8 U.S.C. § 1252(a)(5) prohibits Administrative Procedure Act claims that indirectly challenge the removal of an alien since the petition for review process is the exclusive means to challenge an order of removal.

(Filing Date: 12-03-2012)

Pechenkov v. Holder

Immigration: 8 C.F.R. § 208.24(a)(2) is constitutional because it simply implements Congress's intent as expressed under 8 U.S.C. § 1158(c)(2) that an alien who has been granted asylum may have that status revoked after committing a serious crime, regardless of an application for withholding of removal.

(Filing Date: 12-03-2012)

Sims v. Stanton

Civil Rights § 1983: To have a qualified immunity in depriving someone of their 4th amendment rights against unreasonable search and seizure within the curtilage of their home, the officer must either be chasing someone who is suspected of a felony violation or is presently a violent threat to the community or the officer.

(Filing Date: 12-03-2012)

United States v. Arias-Espinosa

Criminal Procedure: A court's ambiguous statement that a defendant "may have a right to appeal" does not invalidate the defendant's prior written waiver of appeal.

(Filing Date: 11-30-2012)

United States v. I.E.V

Criminal Procedure: A Terry frisk is not justified at its inception and therefore unconstitutional when it is a general exploratory search for evidence and when it is based on the nervous behavior of someone other than the defendant. Furthermore, a search unconstitutionally exceeds the scope of a Terry frisk when the "incriminating character of the object [is] not immediately apparent."

(Filing Date: 11-28-2012)

United States v. Munguia

Criminal Procedure: A trial court’s jury instruction to use a hypothetical reasonable person standard to evaluate “reasonable cause to believe,” when a subjective standard from the defendant’s perspective is proper, is not harmless error and, therefore, warrants reversal of a conviction.

(Filing Date: 11-27-2012)

United States v. Wahchumwah

Criminal Procedure: When an undercover agent is invited into the home by a suspect, the warrantless use of a concealed audio-video recording device does not violate the Fourth Amendment.

(Filing Date: 11-27-2012)

Mount Hope Church v. Bash Back!

Civil Procedure: Federal Rule of Civil Procedure 45(c)(1) “cannot properly support a sanction where the cost of complying with the subpoena is minimal and there is no showing that the subpoena was facially defective or issued in bad faith.”

(Filing Date: 11-26-2012)

United States v. Scott

Appellate Procedure: Despite the lack of a timely written response to a motion to suppress, the government’s oral argument and written response to the magistrate judge’s recommendation preserve its automobile exception argument for appeal.

(Filing Date: 11-26-2012)

Pouncil v. Tilton

Civil Law: A plaintiff’s 2008 claims under the Religious Land Use and Institutionalized Persons Act and the First Amendment, founded upon the denial of his requests for a conjugal visit with his wife, were based on an independent act, and therefore were not time-barred and “pursuant to the same regulation” of his previously denied request for a conjugal visit in 2002.

(Filing Date: 11-21-2012)

Stephens v. U.S. Railroad Retirement Board

Disability Law: The Railroad Retirement Board erred when it denied the petitioner disability benefits based on his history of employment, because short-lived, unsuccessful attempts at employment after the age of 22 only create a presumption that the child of a railroad worker under the Railroad Retirement Act is not eligible for disability benefits.

(Filing Date: 11-21-2012)

United States v. Manning

Sentencing: “Attempting” to obstruct justice through false statements, which “if believed would influence or affect the investigation,” amounts to obstruction of justice for purposes of U.S. Sentencing Guideline § 3C1.1, even if the defendant later rescinds those statements.

(Filing Date: 11-21-2012)

United States v. Wiggan

Evidence: A Grand Juror may testify to the materiality of a defendant's testimony and to the physical arrangement of the Grand Jury room. However, if the testimony addresses the Grand Jury's opinion on the defendant's credibility, its probative value is outweighed by its prejudicial effect and it must not be admitted under Federal Rule of Evidence 403 analysis.

(Filing Date: 11-20-2012)

Slater v. Clarke

Sovereign Immunity: Government officials are entitled to absolute immunity for their participation in extradition decisions as these decisions are, “intimately associated with the judicial phase of the criminal process.”

(Filing Date: 11-19-2012)

United States v. Catalan

Sentencing: "The Sentencing Commission recently clarified that a probation revocation sentence served after deportation should not be used to calculate the “sentence imposed” under section 2L1.2(b)(1)" of the US Sentencing Guidelines, so the Court retroactively applied the amendment and vacated Catalan's sentence that had been determined by including the probation revocation sentence served after his deportation.

(Filing Date: 11-19-2012)

United States v. Oseguera-Madrigal

Immigration: An immigration judge violates an alien’s due process rights when he fails to advise the alien of apparent eligibility for relief through a waiver of inadmissibility when the failure to advised is accompanied with prejudice; however, there is no prejudice where the alien is not eligible for the waiver.

(Filing Date: 11-19-2012)

Barabin v. AstenJohnson, Inc.

Evidence: A litigant is entitled to a new trial when a district court fails to hold a Daubert hearing or otherwise determine the reliability of expert testimony before allowing that testimony over an objection.

(Filing Date: 11-16-2012)

Wagner v. Maricopa County

Evidence: Expert witness testimony that is an opinion based on the propriety of a defendant’s action is a question for the jury to determine, not for the court acting as gatekeeper.

(Filing Date: 11-16-2012)

Aloe Vera of America, Inc. v. United States

Tax Law: The two-year statute of limitations for a taxpayer’s §7431(a) claim only begins to run when the taxpayer is on inquiry notice from “actual or constructive knowledge” of each disclosure of return information. Additionally, the §7431(b) immunity afforded for good faith mistakes of disclosure does not protect the government from knowingly false releases of information.

(Filing Date: 11-15-2012)

In re: Scholz

Bankruptcy Law: The use of “anticipated” in the Railroad Retirement Act of 1974 has a trust law meaning, and annuities under such act are included in calculating projected disposable income for purposes of Chapter 13 bankruptcy plans.

(Filing Date: 11-15-2012)

United States v. Maloney

Criminal Procedure: Deference is given to trial courts in determining a juror's impartiality and the jury instructions, and a high level of deference is given to a court's decision whether or not closing arguments are proper.

(Filing Date: 11-14-2012)

Miller v. Wright

Indian Law: Entering into and complying with the legal requirements of a state contract does not amount to waiver of an Indian Tribe's sovereign immunity.

(Filing Date: 11-13-2012)

Carrera v. Ayers

Habeas Corpus: A claim for ineffective assistance of counsel for failure to make a Wheeler objection, in 1990, can only be met if the defendant shows that there was a prima facie case for unlawful discrimination and shows that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

(Filing Date: 11-06-2012)

United States v. Zamorano-Ponce

Sentencing: Federally defined "statutory rape" is a "crime of violence" for the purposes of sentencing and "16-Level Enhancement" under U.S.S.G.§ 2L1.2(b)(1)(A)(ii). To determine whether a specific State crime qualifies as "statutory rape" for these purposes, the Court compares the State and Federal definitions, examining in particular the "full scope of the conduct" the State law prohibits.

(Filing Date: 11-06-2012)

Akhtar v. Mesa

Civil Rights § 1983: In a civil rights case, a prisoner's pro se status requires courts to explain deficiencies in the prisoner's complaint and allow leave to amend before dismissal with prejudice.

(Filing Date: 11-05-2012)

Parrish v. Commissioner SSA

Attorney Fees: For the purposes of the Equal Access to Justice Act savings provision (“EAJA”), 28 U.S.C. § 2412, a court properly offsets all EAJA attorney's fee awards, against all Social Security Act, 42 U.S.C. § 406(b) awards, because an attorney who represents, at all stages, a claimant for past-due Social Security benefits has “receive[d] fees for the same work.”

(Filing Date: 11-05-2012)

United States v. Johnson

Parole and Post-Prison Supervision: A court may impose a condition on supervised release for convictions that include similar factors or aspects from a defendant’s prior convictions if such a condition would protect the public and help to rehabilitate the defendant.

(Filing Date: 10-30-2012)

Laurel Park Community v. City of Tumwater

Constitutional Law: A zoning ordinance limiting the uses of manufactured home parks that has a negligible effect on property values and provides owners with reasonable alternative uses does not constitute a taking, nor does it violate substantive due process.

(Filing Date: 10-29-2012)

Stankewitz v. Wong

Habeas Corpus: The district court does not err in granting a petition for writ of habeas corpus where the state fails to rebut the petitioner’s allegations that his counsel failed to investigate and present readily available mitigation evidence that, if true, would establish that he received ineffective assistance of counsel.

(Filing Date: 10-29-2012)

United States v. Aguilar-Vera

Criminal Procedure: The sentencing process violates Federal Rule of Criminal Procedure 11(b)(2) if the presiding judicial officer does not address the defendant individually to determine whether the plea is being entered voluntarily. However, if that violation does not substantially affect the defendant's rights, the error is harmless.

(Filing Date: 10-29-2012)

In re Amy & Vicky

Remedies: The Ninth Circuit will not reconsider its prior interpretation of the Crime Victims Rights Act, denying restitution to child pornography victims where no causal connection between the defendant’s offense and the victim’s specific losses exists, absent higher authority from the Ninth Circuit en banc or the U.S. Supreme Court.

(Filing Date: 10-24-2012)

Doe #1 v. Reed

Constitutional Law: When no effective relief can be granted and it could reasonably be determined that the controversy could be fully litigated before becoming moot, the case is dismissed as moot.

(Filing Date: 10-23-2012)

OSU Student Alliance v. Ray

Civil Rights § 1983: Under 42 U.S.C. §1983, a plaintiff adequately alleges First and Fourteenth Amendment violations by claiming that a supervisor knowingly acquiesced to violations of students' free speech rights by an immediate subordinate.

(Filing Date: 10-23-2012)

Tsao v. Desert Palace, Inc.

Civil Rights § 1983: Under 42 U.S.C. § 1983, a claim against a private casino is not frivolous where the casino acted under color of state law by arresting the plaintiff for trespass, because the casino could be considered a state actor.

(Filing Date: 10-23-2012)

United States v. Wolf Child

Sentencing: When a sentencing condition implicates a recognized fundamental liberty interest the court must apply enhanced procedures involving an individualized assessment to ensure that the condition applied is reasonable in its deterrent value and is not overly broad. Furthermore, this enhanced procedure must be made part of the record.

(Filing Date: 10-23-2012)

Center for Biological Diversity v. BLM

Administrative Law: The court held that the Biological Opinion was arbitrary and capricious because it relied on the beneficial effects of the Conservation Action Plan which was not incorporated as part of the proposed project and because the Fish and Wildlife Services acted unreasonably when it failed to examine the impact from groundwater withdrawals which is a “relevant factor” in the jeopardy determination of endangered species.

(Filing Date: 10-22-2012)

Garfias-Rodriguez v. Holder

Immigration: If a prior ruling of the Ninth Circuit conflicts with a reasonable interpretation of the Immigration and Nationality Act (INA) by the Board of Immigration Appeals’ (BIA), the Ninth Circuit will defer to the BIA’s interpretation, which can be retroactively applied.

(Filing Date: 10-19-2012)

Chesbro v. Best Buy Stores

Civil Law: An automated phone call from a consumer products company urging the listener to redeem customer rewards points that require future purchases falls within the scope of “unsolicited advertisement,” prohibited by the Telephone Consumer Protection Act and Washington Automatic Dialing and Announcing Device Act.

(Filing Date: 10-17-2012)

Evergreen Safety Council v. RSA Network

Copyright: In a copyright action, when a defendant operates under color of title and a reasonable belief in free use, a willful infringement copyright claim may be barred by laches.

(Filing Date: 10-17-2012)

Lambright v. Ryan

Evidence: The district court abused its discretion by finding that a protective order in a federal habeas proceeding for ineffective counsel should not apply retroactively and that petitioner waived attorney client privilege to materials produced at an evidentiary hearing because he did not ask them to be sealed; the district court did not abuse its discretion by modifying the protective order to allow for disclosure for non-privileged material at resentencing.

(Filing Date: 10-17-2012)

United States v. Peppers

Criminal Law: If jury instructions fairly and adequately covers the issues presented, the district court is given substantial latitude in tailoring jury instructions.

(Filing Date: 10-17-2012)

Alcoa, Inc. v. BPA

Administrative Law: Bonneville Power Administration (BPA)’s decision to set the rate at which it sold power to Alcoa Inc., to create an Equivalent Benefits standard that it applied to the Alcoa contract, and not to prepare an Environmental Impact Statement (EIS), was not arbitrary and capricious, because BPA "considered the relevant factors and articulated a rational connection between the facts found and the choices made."

(Filing Date: 10-16-2012)

Lair v. Bullock

Civil Procedure: A stay of a district court order is appropriate under the four Nken factors when an appellate court has previously ruled on a “virtually indistinguishable” challenge to the constitutionality of a state statute, and the only intervening circumstance is a Supreme Court opinion that lacks both a majority opinion and concurring opinions decided under a consistent rationale.

(Filing Date: 10-16-2012)

Charles v. City of Los Angeles

First Amendment: A billboard advertising a particular product and proposing a commercial transaction is commercial speech, and the fact that the billboard advertises protected expressive speech does not change its commercial-speech status.

(Filing Date: 10-15-2012)

Dex Media West, Inc. v. Seattle

First Amendment: Mixed-content publications like phone books are entitled to the full protection of the First Amendment; the commercial aspect and underlying financial motive of the publishers is not enough to classify such publications as strictly commercial speech and subject them to a lesser level of protection.

(Filing Date: 10-15-2012)

Meyers v. Portfolio Recovery

Civil Law: Consumers who provide creditors with cellular telephone numbers subsequent to the original transaction that resulted in the debt at issue have not consented to be contacted at those numbers by creditors per the requirements of the Telephone Consumer Protection Act, 47 U.S.C. § 227.

(Filing Date: 10-12-2012)

United States v. James Jackson

Sentencing: A district court does not plainly err in applying the plain language of U.S.S.G. § 2G1.3(b)(3)(B), which provides for a use-of-computer enhancement, because a district court could reasonably find that the plain language of the Guideline is inconsistent with the Application Note that follows it.

(Filing Date: 10-11-2012)

United States v. Valencia-Riascos

Evidence: When a defendant has made an FRE 615 request to exclude an investigative official who is both a witness and victim in the prosecution's case, the court may deny the defendant's request by finding that the investigative official is either a case agent permitted to be present according to FRE 615(b), or the individual is authorized under FRE 615(d) by the Crime Victims' Rights Act to be present in the courtroom despite an FRE 615 objection.

(Filing Date: 10-11-2012)

Delgado-Hernandez v. Holder

Immigration: Ordinary kidnapping under California Penal Code § 207(a) “is a crime of violence because it results in a substantial risk of force.”

(Filing Date: 10-09-2012)

Western Watersheds Project v. Ellis

Attorney Fees: Denial of attorney fees is not an abuse of discretion if the court considered both the reasonableness of the administrative decision and the reasonableness of the litigation.

(Filing Date: 10-09-2012)

Ruiz-Diaz v. U.S.

Immigration: The restriction on non-citizens filing an adjustment of status application concurrently with an employer’s petition for a religious worker visa does not violate the Religious Freedom Restoration Act (RFRA), nor is it unconstitutional under Equal Protection or Due Process.

(Filing Date: 10-05-2012)

United States v. Budziak

Criminal Law: Allowing other users of a peer-to-peer network to access a shared file that contains child pornography is sufficient evidence to constitute distribution of child pornography under 18 U.S.C § 2252(a)(2).

(Filing Date: 10-05-2012)

United States v. Elk Shoulder

Constitutional Law: Congress acted within its enumerated powers, derived from its authority to ensure public safety under the Necessary and Proper Clause, when it enacted the Sex Offender Registration and Notification Act.

(Filing Date: 10-05-2012)

United States v. Jones

Sentencing: State recidivism enhancements may be considered under federal sentencing guidelines when determining felony convictions in supervised release revocation proceedings, even if the violation would be considered a misdemeanor without the recidivism enhancements.

(Filing Date: 10-05-2012)

United States v. Mendez-Gonzalez

Sentencing: When a plea agreement includes a waiver to appeal a sentence under 18 U.S.C. § 3742, a defendant may not appeal a supervised release condition because the word "sentence" includes supervised release as well as prison time.

(Filing Date: 10-05-2012)

United States v. Nungaray

Sentencing: At a sentencing hearing, a district court may find, by a preponderance of the evidence, that an individual had constructive possession of firearms when that individual organized, facilitated, and was present at the sale of those firearms. Such a finding will result in an increased sentencing level per U.S.S.G. § 2K2.1(b)(1)(A).

(Filing Date: 10-05-2012)

Ridore v. Holder

Immigration: The Board of Immigration Appeals cannot disregard an Immigration Judge’s factual findings and substitute its own view of the facts. The BIA must either find clear error in the IJ’s factfinding, with an explanation of why; or, if critical facts are missing, it may remand to the IJ.

(Filing Date: 10-03-2012)

United States Aviation Underwriters v. Nabtesco

Civil Law: The eighteen-year statue of ultimate repose under § 2(a)(1)(A) of the General Aviation Revitalization Act "commences with the delivery date of the used part to its first purchaser."

(Filing Date: 10-02-2012)

Cudjo v. Ayers

Criminal Procedure: Chambers v. Mississippi “clearly establishe[s] that the exclusion of trustworthy and necessary exculpatory testimony at trial violates a defendant’s due process right to present a defense.”

(Filing Date: 09-28-2012)

Microsoft Corp. v. Motorola, Inc.

Civil Procedure: A federal district court has the power to enjoin the parties from proceeding with an action in the courts of a foreign country, and evaluating the propriety of the foreign anti-suit injunction involves a three-part inquiry.

(Filing Date: 09-28-2012)

Miles v. Martel

Criminal Procedure: Under 28 U.S.C. § 2254(d), a federal court can remand a claim of a person in state custody for an evidentiary hearing for the purpose of reviewing that claim.

(Filing Date: 09-28-2012)

United States v. HOS

Juvenile Law: Upon remand from the appeal of a transfer to adult criminal court, a district court may re-litigate the issue of a defendant's age.

(Filing Date: 09-28-2012)

De Osorio v. Mayorkas

Immigration: The Child Status Protection Act grants automatic conversion and priority date retention to all “aged-out” derivative beneficiaries, regardless of whether a change in petitioner occurs.

(Filing Date: 09-26-2012)

Public Lands for the People v. USDA

Administrative Law: Pursuant to the Organic Administration Act of 1987, the U.S. Forest Service is within its authority in redefining public roads to limit the use of motor vehicle traffic on forest land.

(Filing Date: 09-26-2012)

Sachs v. Republic of Austria

Sovereign Immunity: To overcome the presumption that a foreign state is entitled to separate juridical status under the Foreign Sovereign Immunities Act, 28 U.S.C. § 1602, a claimant must show that the foreign state had a “day-to-day, routine involvement” over the affairs of the individual or corporation.

(Filing Date: 09-26-2012)

Holmes v. Merck & Co., Inc.

Tort Law: Under Section 22 of the National Childhood Vaccine Injury Act, parents of children injured by a vaccine cannot sue for design defect or failure to warn.

(Filing Date: 09-25-2012)

Melendres v. Arpaio

Constitutional Law: Plaintiffs had standing to pursue equitable relief against defendants, the Sheriff and Sheriff’s Office of Maricopa County, based on Fourth Amendment violations and the district court did not err when it granted plaintiffs’ partial injunctive relief, enjoining defendants from detaining individuals based solely on a knowledge or a reasonable belief that they are unlawfully present in the country.

(Filing Date: 09-25-2012)

Hall v. City of Los Angeles

Civil Rights § 1983: Where a plaintiff is convicted of a murder he did not commit, solely on the basis of a coerced confession, and serves nineteen years in prison, but fails to include an explicit Fifth Amendment claim despite alleging sufficient facts to support such a claim, it is manifestly unjust to deny leave to amend the complaint.

(Filing Date: 09-24-2012)

Albino v. Baca

Administrative Law: In order for an inmate to claim unawareness of a grievance procedure, which would render the procedure effectively unavailable, the inmate must make an objective showing the procedure was unknown or could not be known with reasonable effort.

(Filing Date: 09-21-2012)

Native Ecosystems Council v. Weldon

Environmental Law: The United States Forest Service took the "hard look" required by the National Environmental Policy Act and considered the "relevant factors" required by the National Forest Management Act when it used photo interpretation methodology to analyze the effects of the Ettien Ridge Fuels Reduction Project on the elk hiding cover and goshawk population.

(Filing Date: 09-21-2012)

Native Village of Kivalina v. ExxonMobil

Civil Procedure: Where Congress has displaced a cause of action under the federal common law, displacement extends to all potential remedies. The Clean Air Act displaces the federal common law cause of action for nuisance caused by the emission of green house gases.

(Filing Date: 09-21-2012)

Earth Island Institute v. USFS

Environmental Law: The “1982 Rule,” requiring monitoring of species viability, was not incorporated into the Lake Tahoe Basin Management Unit Forest Plan (“LTBMU”) at the project level; therefore, the Forest Service is not required to conduct a project level analysis of the “quantity and quality of habitat necessary” to support specific species in the LTBMU, as this analysis is habitat monitoring.

(Filing Date: 09-20-2012)

Keller Foundation v. Tracy

Workers Compensation: The Court held that when a worker is injured overseas, he is not eligible for workers' compensation under the Longshore and Harbor Workers' Compensation Act, because work overseas does not satisfy the status and situs tests, which include that the injury must take place in the navigable waters of the United States.

(Filing Date: 09-20-2012)

McCall v. Facebook, Inc.

Civil Procedure: Under FRCP 23(e), a cy pres class action settlement is fair where individual recovery would be de minimus , and the funds go to create an advocacy group whose articles of incorporation demonstrate an adequate nexus to the plaintiffs’ interests, even if an employee of the defendant is a member of the advocacy group’s board of directors.

(Filing Date: 09-20-2012)

United States v. Anekwu

Criminal Procedure: Under the Confrontation Clause, it is not plain error to allow certificates of authentication for foreign public and business records by affidavit.

(Filing Date: 09-20-2012)

Stratton v. Buck

Civil Procedure: Pro se prisoner plaintiffs have a substantial right to notice on a motion to dismiss for failure to exhaust administrative remedies when the district court is considering matters outside the pleadings; a plaintiff is entitled to notice similar to that required by Rand on motions for summary judgment.

(Filing Date: 09-19-2012)

Montes-Lopez v. Holder

Immigration: An alien denied his statutory right to counsel during an immigration proceeding does not need to show "he was prejudiced by the absence of the attorney."

(Filing Date: 09-18-2012)

Rogovich v. Ryan

Habeas Corpus: “No clearly established federal law requir[es] the defendant to consent on the record to an insanity defense.”

(Filing Date: 09-18-2012)

Terenkian v. Republic of Iraq

Civil Procedure: Under the Foreign Sovereign Immunities Act, for a “commercial activity” immunity exception to thrive, it must be based on a legally significant commercial act that occurred in the United States or an act that had a direct and legally significant effect in the U.S.

(Filing Date: 09-18-2012)

United States v. Lukashov

Criminal Procedure: When the jury receives a proper instruction on venue but only reaches a verdict on the substantive aspects of the case, the trial court may decide venue as a matter of law if the jury could not have reached its verdict without concluding that venue exists by a preponderance of the evidence.

(Filing Date: 09-18-2012)

Bates v. Mortgage Electronic Registration

Civil Procedure: Under the California False Claims Act, the “public disclosure” exception will bar a claim if the party’s allegations are substantially similar to information already in the public domain. To be an “original source,” the party must show that it was his information that provided the basis or catalyst for the investigation, hearing, audit, or report that led to the public disclosure.

(Filing Date: 09-17-2012)

Sanders Cnty. Republican Cent. Comm. v. Bullock

First Amendment: Under the strict scrutiny standard, preventing political parties from endorsing a judicial candidate is not a necessary prerequisite to the compelling interest of maintaining a fair and independent judiciary.

(Filing Date: 09-17-2012)

United States v. Mattix

Criminal Law: Under United States v. Valverde , 18 U.S.C. § 2250(a) applies retroactively to a sex offender who fails to register after August 1, 2008.

(Filing Date: 09-17-2012)

Young v. Holder

Immigration: Under the modified categorical approach, a guilty plea to a conjunctive count that alleges several theories of a crime establishes a conviction under at least one theory, but not necessarily all, of those theories. Further, “[a]n alien cannot carry the burden of demonstrating eligibility for cancellation of removal by merely establishing that the relevant record of conviction is inconclusive as to whether the conviction is for an aggravated felony.”

(Filing Date: 09-17-2012)

Gonzaga-Ortega v. Holder

Immigration: A final administrative determination that a lawful permanent resident (“LPR”) “engaged in illegal activity” while outside the United States is not required for Border officers to treat the LPR as an “applicant for admission,” and thus as not entitled to counsel during primary or secondary inspection.

(Filing Date: 09-14-2012)

United States v. Leal-Del Carmen

Criminal Procedure: The government may not unilaterally deport an illegal alien who it knows can provide exculpatory evidence for a defendant before counsel has been appointed for that defendant.

(Filing Date: 09-14-2012)

Maxwell v. County of San Diego

Constitutional Law: Law enforcement officials can be held liable for constitutional violations if they leave a victim in a more dangerous situation than that in which they found her and if the detention of witnesses is more than minimally intrusive.

(Filing Date: 09-13-2012)

United States v. Burke

Criminal Law: Supervised release in a residential reentry center is not sufficient to satisfy the meaning of "custody" for purposes of charging a defendant with escaping from custody under 18 U.S.C. § 751(a).

(Filing Date: 09-13-2012)

Sheppard v. Evans and Assoc.

Civil Procedure: The Federal Civil Procedure Rule 8(a)(2)’s pleading standard can be satisfied for a complaint of wrongful discharge under Oregon law and age discrimination based on circumstantial evidence if the complaint establishes a prima facie case of age discrimination and alleges that the plaintiff was fired after requesting Family Medical Leave.

(Filing Date: 09-12-2012)

Stephan v. Unum Life Insurance

Appellate Procedure: An abuse of discretion standard is proper if its use was predetermined in a settlement agreement and the disputed policy was in effect at the time of the settlement.

(Filing Date: 09-12-2012)

United States v. Nielsen

Sentencing: A juvenile adjudication for sexual assault does not constitute a “conviction” for purposes of applying the “repeat and dangerous sex offender against minors” enhancement under U.S.S.G. § 4B1.5(a).

(Filing Date: 09-12-2012)

United States v. USDC– Northern Mariana Is.

Civil Procedure: Where the district court fails to make a factual finding showing the case’s unique circumstances, the court abuses its discretion in ordering the attendance of a government representative with full settlement authority at an initial settlement conference.

(Filing Date: 09-12-2012)

Eche v. Holder

Immigration: A lawful permanent resident’s time residing in the Commonwealth of the Northern Mariana Islands before 2009, when federal immigration law became effective, does not count toward the five-year residency requirement for naturalization.

(Filing Date: 09-11-2012)

Glendale v. United States

Indian Law: The Gila Bend Indian Reservation Lands Replacement Act acreage cap applies only to land held in trust, not on total land acquisition by the tribe. Second, the phrase "within the corporate limits" is based on the jurisdictional nature of fee land and makes property eligible under the Act if it is on the unincorporated side of the city’s boundary line.

(Filing Date: 09-11-2012)

Marquez v. City of Phoenix

Criminal Procedure: Police do not violate the Fourth Amendment by repeatedly using a taser on a suspect when the suspect has his granddaughter in a chokehold, is combative with police, and there are other victims present. Under Arizona law, there is no claim for wrongful death where police acted reasonably in the use of force, which they did here.

(Filing Date: 09-11-2012)

McCormack v. Hiedeman

Civil Procedure: The Court affirms the district court's decision that McCormack will likely succeed on the merits of her case, in which she argues that that Idaho Code § 18-606 violates various provisions of the United States Constitution, but reverses its decision to limit the scope of the preliminary injuction issued to Hiedeman, preventing his enforcement of Idaho Code §§ 18-606 and 18-608(1), to just McCormack. The Court holds that McCormack did have standing to enjoin enforcement of Idaho Code § 18-608(2) in conjunction with § 18-606 but does not having standing to seek pre-enforcement relief against the enforcement of Pain-Capable Unborn Child Protection Act.

(Filing Date: 09-11-2012)

Palomar Medical Center v. Sebelius

Appellate Procedure: Under the congressionally mandated Recovery Audit Contractor program, a decision regarding whether or not to reopen a case for overpayments to Medicare providers are final. They cannot be challenged after an audit and revised determination.

(Filing Date: 09-11-2012)

Hibbler v. Benedetti

Habeas Corpus: When reviewing a decision denying an evidentiary hearing, the Court must determine whether the decision was supported by the record. Furthermore, counsel will not be deemed ineffective if the Court determines that counsel acted objectively reasonable given the circumstances. Both conditions are satisfied, as to the competence of a defendant, when a psychiatric evaluator has found the defendant competent to stand trial.

(Filing Date: 09-10-2012)

Mueller v. City of Boise

Family Law: A police officer may remove a child from parental care without a court order in situations where the child is in “imminent danger,” and that danger is determined from an objectively reasonable standpoint, which may be based on the opinion of a physician.

(Filing Date: 09-10-2012)

Pacific Coast Federation v. Blank

Administrative Law: The National Marine Fisheries Services complied with the Magnuson-Stevens Fishery Conservation and Management Act provisions because those provisions did not require it to develop criteria for allocating fishing privileges or to restrict privileges to only those who substantially participate. The National Marine Fisheries Services also complied with the National Environmental Policy Act by adopting flexible mitigation measures in accordance with separate studies conducted to lessen the potential adverse effect on fishing communities.

(Filing Date: 09-10-2012)

Schmidt v. Contra Costa County

Civil Rights § 1983: Judges receive legislative immunity for setting subordinate judicial officer qualifications when the qualifications apply to a broad group, are formally adopted, and bear other traditional hallmarks of legislation.

(Filing Date: 09-10-2012)

Wood v. Ryan

Habeas Corpus: To obtain relief under 28 U.S.C. § 2254(d), the Antiterrorism and Effective Death Penalty Act (“AEDPA”), a party must show that the state court’s decision 1) “was contrary to clearly established federal law as determined by the Supreme Court,” 2) “involved an unreasonable application of such law,” or 3) “was based on an unreasonable determination of the facts in light of the record before the state court.”

(Filing Date: 09-10-2012)

Yeager v. Bowlin

Civil Law: Under California law, a statement is not "republished" on a website unless "the statement itself is substantively altered or added to" or "the website is directed to a new audience."

(Filing Date: 09-10-2012)

United States v. Williams

Sentencing: At sentencing, charges may be grouped under § 3D1.2 if they involve substantially the same harm directed at the same victim. "Indirect or secondary victims are not meant to be included in the term 'victim.'"

(Filing Date: 09-07-2012)

Cheema v. Holder

Immigration: The written advisals on the I-589 asylum application form gives applicants adequate notice of the repercussions of “knowingly filing a frivolous asylum application” and, as required by 8 U.S.C. § 1158(d)(4)(A), of the privilege of having representation by counsel.

(Filing Date: 09-06-2012)

Frankl v. HTH Corporation

Labor Law: A party to labor negotiations must bargain in good faith, and cannot be allowed to profit from its own wasteful and unlawful activities that hinder the bargaining process.

(Filing Date: 09-06-2012)

In Re: Rigel Pharmaceuticals

Civil Law: District court did not err by granting defendants’ motion to dismiss because plaintiffs failed to sufficiently plead securities violations for misleading and fraudulent statements issued by a drug development company in relation to their 2008 stock offering.

(Filing Date: 09-06-2012)

Acosta v. City of Costa Mesa

First Amendment: A city ordinance is an unconstitutional restriction on expressive nonverbal conduct on grounds of overbreadth, where it prohibits “personal, impertinent, profane, insolent, or slanderous remarks” in a limited public forum, without requiring actual disruption.

(Filing Date: 09-05-2012)

Lavan v. City of Los Angeles

Civil Rights § 1983: The Fourth Amendment does not require a party have a "legitimate expectation of privacy" in their property to protect that property from governmental seizure.

(Filing Date: 09-05-2012)

Autotel v. Nevada Bell Telephone Company

Civil Law: Interim digital interconnection and symmetrical pricing is only required to be provided during negotiations between telecommunications companies that lack a prior interconnectivity agreement, because 47 C.F.R. § 20.11(e) fully incorporates 47 C.F.R. § 51.715.

(Filing Date: 09-04-2012)

Dennis v. Kellogg Company

Civil Law: Failing to identify recipients, using vague language in a settlement, and failing to delineate specifically how a cash sum or award is to be disbursed can be fatal to cy pres product settlement awards.

(Filing Date: 09-04-2012)

Price v. Stevedoring Services

Workers Compensation: The litigating position of the Director of the Office of Workers’ Compensation Programs, which interprets the Longshore and Harbor Workers’ Compensation Act, is not entitled to Chevron deference.

(Filing Date: 09-04-2012)

Sanchez-Avalos v. Holder

Immigration: For purposes of assessing eligibility for waiver of inadmissibility, the “modified” categorical approach allows courts to consider only those facts upon which a defendant’s conviction “necessarily rested.”

(Filing Date: 09-04-2012)

Wood v. Beauclair

Constitutional Law: In a prisoner's claim against a prison for violation of constitutional rights flowing from sexual harassment by a prison official, the inmate is entitled to the presumption that the conduct was not consensual.

(Filing Date: 09-04-2012)

Corpuz v. Holder

Immigration: For purposes of determining removability, where a defendant receives credit against a criminal sentence for time spent in civil confinement, the percentage of good time credit the defendant received while in prison should be applied to his pre-trial civil confinement period in calculating the entire term of imprisonment.

(Filing Date: 08-31-2012)

Davis v. HSBC Bank Nevada, N.A.

Civil Procedure: The district court properly incorporates extrinsic evidence in a 12(b)(6) motion when the evidence is referenced in the complaint and the party opposing incorporation fails to challenge its authenticity by arguing that he lacked access to the evidence.

(Filing Date: 08-31-2012)

In re Flores

Bankruptcy Law: In a Chapter 13 plan, the reorganization period for an above-median-income debtor may be less than five years when projected disposable income is zero or negative. The Supreme Court's decision in Lanning did not overrule Ninth Circuit precedent in Kagenveama as it pertains to determining the applicable commitment period in Chapter 13 plans.

(Filing Date: 08-31-2012)

U.S. Auto Parts Network v. Parts Geek

Copyright: In determining whether work by an employee is “work for hire,” the employer must prove that (1) it is the kind of work the employee is employed to perform (2) it occurred substantially within the authorized time and space limits, and (3) it was actuated, at least in part, by a purpose to serve the employer.

(Filing Date: 08-31-2012)

United States v. Guerrero

Appellate Procedure: The Court of Appeals does not have jurisdiction to review non-final judgments, unless the Collateral Order Doctrine or a Writ of Mandamus applies.

(Filing Date: 08-31-2012)

Greene Archives v. Marilyn Monroe

Civil Procedure: Judicial estoppel precludes a party from asserting California’s posthumous right of publicity where that party “consistently represented during probate proceedings and elsewhere that [the celebrity] was domiciled in New York to avoid payment of California estate taxes.”

(Filing Date: 08-30-2012)

United States v. Vasquez-Cruz

Sentencing: In reviewing a district court’s denial of a departure, the court of appeals will review the denial only for substantive reasonableness, not procedural correctness.

(Filing Date: 08-30-2012)

Ayala v. Wong

Habeas Corpus: During preemptory jury challenges, the defense counsel may not be excluded from Batson steps two and three, except when confidential or strategic reasons justify the challenge.

(Filing Date: 08-29-2012)

Jefferson & Co. v. Board of Assessment

Civil Rights § 1983: In an administrative hearing where statutory provisions allow separate county counsel attorneys to represent both the challenged government agency and the administrative panel adjudicating the appeal, the presumption that the adjudicator is unbiased remains as long as screening procedures exist to maintain an ethical wall between the two attorneys’ activities.

(Filing Date: 08-29-2012)

Lacey v. Maricopa County

Civil Law: A claim against a party "dismissed with prejudice, and without leave to amend" is considered preserved for appeal, regardless of whether the dismissed party is included in a repled complaint.

(Filing Date: 08-29-2012)

Petrella v. Metro-Goldwyn-Mayer

Copyright: The equitable defense of laches bars recovery of copyright claims where the plaintiff delays for 18 years, the reasons for delay are only inconveniences, and defendant expends considerable resources in the copyrighted work, even when the defendant receives profit during the plaintiff's delay.

(Filing Date: 08-29-2012)

FTC v. EDebitPay

Contract Law: A party who stipulated to terms in a contract may not later attack those terms as overly broad or vague.

(Filing Date: 08-28-2012)

Gentry v. Sinclair

Habeas Corpus: First, when a claim has been presented to a state court and not remedied it becomes exhausted. Second, when a claim has been tried on substantive ground, even though it has not been tried on procedural grounds, it is deemed to have been adjudicated on the merits. Third, when there is proof that counsel seeks additional resources for further evidence, even if the evidence is not used; it is reasonable to resolve that there was not deficient performance by counsel.

(Filing Date: 08-28-2012)

Perfectly Fresh Farms v. USDA

Civil Law: Violations of the Perishable Agricultural Commodities Act (“PACA”), 7 U.S.C. §499, can result in employment and licensing bans in the perishable produce industry if the person or subsidiary is found to be "responsibly connected."

(Filing Date: 08-28-2012)

Reynoso v. United States

Tax Law: "A taxpayer's claim for credit of an overpayment is limited to the amount of the overpayment made within of the applicable look-back period in § 6511(b)(2)(A) of the Internal Revenue Code." "Any claim for refund based on an amount claimed as a credit but paid outside of the § 6511(b)(2)(A) look-back period is time barred and uncollectible."

(Filing Date: 08-28-2012)

Stancle v. Clay

Habeas Corpus: The district court properly denied appellant’s writ of habeas petition because it was time-barred by the AEDPA one-year statute of limitations and petitioner was unable to show why his petition was entitled to tolling, either for gap tolling because his first two filings with the state superior court constituted a “new round,” or equitable tolling due to mental incompetence.

(Filing Date: 08-28-2012)

California Tow Truck v. City of San Francisco

Administrative Law: When preemption is claimed to a comprehensive law, the court must look at each individual provision and not at the law as a whole.

(Filing Date: 08-27-2012)

City of Redding v. FERC

Administrative Law: Under § 206 of the Federal Power Act, the Federal Energy Regulatory Commission does not have broad retroactive ratesetting authority over non-jurisdictional sellers. FERC’s refund authority under the provision is limited to being prospective only, and it extends only to those entities under its jurisdiction.

(Filing Date: 08-27-2012)

Miles v. Ryan

Habeas Corpus: Petitioner's claims that his counsel performed ineffectively in his sentencing trial fail because counsel's reasonable strategy of presenting him as a normal person require deference and he suffered no prejudice as a result.

(Filing Date: 08-27-2012)

Ortiz-Alfaro v. Holder

Immigration: A reinstated removal order is not final, and the Ninth Circuit cannot consider a challenge to reinstatement regulations, while a petitioner’s “reasonable fear screening is still ongoing.”

(Filing Date: 08-27-2012)

United States v. Bailey

Evidence: Under Rule 404(b), proof of guilt cannot be demonstrated by the fact that defendant settled because a defendant might settle for any number of reasons, and a complaint only proves that plaintiff alleges conduct, not that defendant was guilty of that conduct.

(Filing Date: 08-27-2012)

United States v. Pineda-Doval

Criminal Law: Reckless driving that results in an fatal accident does not amount to acting with malice aforethought, if the driver did not comprehend the risk involved.

(Filing Date: 08-27-2012)

Costa v. Commissioner SSA

Attorney Fees: A judge is required to give specific justifications for reducing lawyer fee awards when such reductions are a sizable amount of the final award, contrary to informal policies stating otherwise and regardless of the routine nature of the case.

(Filing Date: 08-24-2012)

Cabantac v. Holder

Evidence: Evidence that a defendant pleaded guilty to a count of possession of methamphetamine is sufficient to prove that the defendant was convicted of a controlled substance offense under 21 U.S.C. § 802, and not a general state offense.

(Filing Date: 08-23-2012)

Frost v. Van Boening

Habeas Corpus: In a habeas corpus petition, a trial court’s restriction of the defense’s closing argument, disallowing the simultaneous use of the affirmative defense of duress and accomplice liability, does not amount to a structural error where it does not have a “substantial and injurious effect or influence in determining the jury’s verdict.”

(Filing Date: 08-22-2012)

Peter-Palican v. Northern Mariana Islands

Civil Rights § 1983: The Special Assistant to the Governor of Women’s Affairs possesses a protected property interest in continued employment only during the term of the appointing governor under Article III, section 2 of the Commonwealth of the Northern Mariana Islands Constitution. Thus, the Special Assistant has no due process claim against the Commonwealth when she is terminated without cause under a new governor.

(Filing Date: 08-22-2012)

United States v. H.B., Juvenile Male

Indian Law: For a Juvenile adjudication sentence to be reasonable the least restrictive placement for the youth must be considered, the order for detention must be no longer than necessary for treatment, and due consideration should be given for the “unique concerns and needs of [Native American youth], as they are ‘disproportionately subject to federal court jurisdiction for their delinquency offenses’ on account of the structure of the FJDA.”

(Filing Date: 08-22-2012)

Center for Biological Diversity v. Salazar

Environmental Law: The Fish and Wildlife Service's determination that oil and gas regulation would take only “relatively small numbers” of polar bears and Pacific walruses in relation to population size is consistent with and permissible under the MMPA and other environmental statutes.

(Filing Date: 08-21-2012)

United States v. Dreyer

Criminal Procedure: A district judge has a statutory duty to order a competency hearing sua sponte if evidence of incompetency causes a reasonable judge to experience a genuine doubt regarding the defendant’s competence.

(Filing Date: 08-21-2012)

Cook Inlet Region v. Rude

Indian Law: Under 28 U.S.C. § 1331, federal district court courts have federal question jurisdiction over non-frivolous claims arising under the Alaska Native Claims Settlement Act ("ANCSA"), even where the ANCSA incorporates state law.

(Filing Date: 08-20-2012)

United States v. McTiernan

Criminal Procedure: To merit suppression of a recording under 18 U.S.C. §§ 2511(2)(d) and 2515, a defendant must prove by a preponderance of the evidence that a recording was made for criminal or tortious purposes, and not merely for recordkeeping or other non-criminal reasons.

(Filing Date: 08-20-2012)

Jones v. Ryan

Habeas Corpus: A claim for prosecutorial misconduct will not succeed when the evidence is not material to the case, no prejudice results from inconsistencies of that evidence, and the evidence is just one piece of the mosaic of evidence against the petitioner.

(Filing Date: 08-16-2012)

Meruelo v. CIR

Tax Law: The IRS has authority to issue a valid Notice of Deficiency on a partner of an LLC if there are no pending partnership-level proceedings. The mere consideration of future partnership-level proceedings does not invalidate a Notice of Deficiency.

(Filing Date: 08-16-2012)

Sessoms v. Runnels

Habeas Corpus: Where a suspect has not waived his Miranda rights, a suspect invokes his right to counsel by making a statement “that can reasonably be construed to be an expression of a desire for the assistance of an attorney.”

(Filing Date: 08-16-2012)

Sollberger v. CIR

Tax Law: The determination of “whether a sale occurs for tax purposes is based on a flexible case-by-case analysis of whether the burdens and benefits of ownership have been transferred.”

(Filing Date: 08-16-2012)

United States v. Duenas

Criminal Procedure: Evidence developed during a police search tainted by media presence need not be excluded so long as the media did not “discover or develop any evidence later used at trial.”

(Filing Date: 08-16-2012)

Aguilar-Turcios v. Holder

Immigration: A conviction under Article 92 of the Uniform Code of Military Justice is “not an aggravated felony under the modified categorical approach” for purposes of determining whether a legal permanent resident is removable.

(Filing Date: 08-15-2012)

United States v. Acosta-Sierra

Criminal Law: The proper standard to apply for a “criminal assault charge based on causing the apprehension of imminent bodily injury, under 18 U.S.C. § 111, is that of a “reasonable person who observes what the official observes.”

(Filing Date: 08-15-2012)

Monge v. Maya Magazines, Inc.

Copyright: In a Copyright issue, the fair use doctrine does not protect unauthorized use of copyrighted material when that use was: commercial and non-transformative; the first instance of that material being published; total; and the use destroys the potential market for the material.

(Filing Date: 08-14-2012)

Grand Canyon Trust v. U.S. Bureau of Reclamation

Environmental Law: The Bureau of Reclamation's annual operating plan for a dam is not a discretionary act or a "major Federal action" and does not require consultation with the United States Fish and Wildlife Service under the Endangered Species Act, nor an environmental impact statement or an environmental analysis under the National Environmental Policy Act.

(Filing Date: 08-13-2012)

Chaudhry v. Astrue

Disability Law: In a Social Security disability hearing, an ALJ is not required to obtain the disability determination from the Department of Veterans Affairs (DVA) where the applicant is represented by counsel and the record contains evidence of the applicant's DVA disability rating.

(Filing Date: 08-10-2012)

In re Tober

Bankruptcy Law: Arizona law allows a debtor to exempt “the cash surrender value of [certain] life insurance policies” and annuity contracts from execution, attachment or sale when the beneficiary is a “surviving spouse, child, parent, brother or sister,” despite the beneficiary not being a dependent of the debtor.

(Filing Date: 08-10-2012)

Mojica v. Holder

Immigration: The years of residency of a petitioner’s relative will not be imputed to the petitioner for purposes of satisfying the five-year lawful permanent residence requirement of 8 U.S.C. § 1229b(a)(1).

(Filing Date: 08-10-2012)

Rodriguez v. Disner

Attorney Fees: Under long standing equitable principles, a district court has broad discretion to deny fees to an attorney who commits an ethical violation, such as representing clients with conflicting interests, regardless of whether or not the clients are harmed by the ethical violation.

(Filing Date: 08-10-2012)

Scotts Company v. Seeds, Inc.

Civil Procedure: When a federal court evaluates realigning the parties in a case, it may not consider claims made in a different case for purposes of dismissing or staying the proceeding.

(Filing Date: 08-10-2012)

Hiler v. Astrue

Disability Law: In a Social Security Disability hearing, an ALJ errs by relying solely on an interim Veterans Affairs (VA) disability decision, where a later VA decision rejects the interim decision.

(Filing Date: 08-09-2012)

Native Village of Kivalina v. EPA

Administrative Law: A petitioner has not shown that an agency’s responses to comments are clearly erroneous, irrelevant, insufficient, or an abuse of discretion, as required for review of permitting decisions under 40 C.F.R.§ 124.19, where the petitioner reiterates previously submitted comments but does not engage the agency’s responses to those comments.

(Filing Date: 08-09-2012)

United States v. Flores-Mejia

Sentencing: A conviction of robbery under California Penal Code § 211 is a categorical crime of violence under U.S.S.G. § 2L1.2.

(Filing Date: 08-09-2012)

United States v. Henry

Constitutional Law: Second Amendment rights do not extend to machine guns and Congress has the power to regulate possession and modification of “dangerous and unusual” weapons.

(Filing Date: 08-09-2012)

United States v. Huang

Sentencing: The district court sentencing of defendant for drug offenses was not in error because the defendant failed to show that he was subject to sentencing entrapment, the sentencing enhancement for importation pursuant to U.S.S.G. 2D1.1(b)(5) was proper because the government need only show that the drugs were imported, and the sentence received was reasonable because defendant did not cooperate.

(Filing Date: 08-08-2012)

Al-Haramain Islamic v. Obama

Constitutional Law: The use of the word "person" under the Foreign Intelligence Surveillance Act's civil liability provision, 50 U.S.C. § 1810, while referring to federal employees without including the United States, does not explicitly waive sovereign immunity.

(Filing Date: 08-07-2012)

Carlin v. DairyAmerica, Inc.

Civil Law: The USDA possesses sufficient regulatory authority over "agency-set minimum prices for raw milk" to make applicable the filed rate doctrine. The USDA’s expression of disapproval of prices set, while not necessarily an explicit rejection, may preclude application of the doctrine.

(Filing Date: 08-07-2012)

Dahlia v. Rodriguez

First Amendment: A police officer’s speech alleging the use of abusive interrogation techniques is not protected as private speech under the First Amendment.

(Filing Date: 08-07-2012)

Drew v. Equifax

Civil Law: A credit reporting agency’s notification of a fraudulent account triggers the creditor’s duty under the Fair Credit Reporting Act to investigate and react to the fraudulent account, even if the notification does not specifically state that the creditor is required to act.

(Filing Date: 08-07-2012)

Hill v. Astrue

Disability Law: At the fifth step of the five-step sequential analysis required under 20 C.F.R. § 404.1520(a)(4)(i)-(v), “[i]f a vocational expert’s hypothetical does not reflect all the claimant’s limitations, then the expert’s testimony has no evidentiary value to support a finding that the claimant can perform jobs in the national economy.”

(Filing Date: 08-07-2012)

United States v. Bustamante

Evidence: For purposes of admissibility, a transcript of a birth certificate constitutes an “affidavit testifying to the contents of the birth records.” Admission of such evidence without the opportunity for cross-examination violates the Confrontation Clause.

(Filing Date: 08-07-2012)

United States v. Golden Valley Electric

Administrative Law: Compliance with a subpoena issued by an administrative agency does not render an appeal of the subpoena moot. However, the subpoena is valid if it is relevant to a current investigation, is not overly broad, is procedurally proper and does not violate the Fourth Amendment's reasonableness requirement.

(Filing Date: 08-07-2012)

United States v. Turner

Parole and Post-Prison Supervision: A civil detention under the Adam Walsh Child Protection and Safety Act does not amount to a term of “imprisonment” so as to preclude and toll the commencement of a sex offender’s supervised release term.

(Filing Date: 08-07-2012)

Jackson v. State of Nevada

Evidence: A trial court’s denial of relevant police witness testimony regarding an alleged victim’s past false accusations of rape violates a defendant’s constitutional right to present a defense and confront witnesses.

(Filing Date: 08-06-2012)

Matthews v. NFL Management Council

Workers Compensation: A claimant fails to establish that an arbitration award violates the public policy of one state where the claimant fails to allege that he suffered a specific injury in that state.

(Filing Date: 08-06-2012)

United States v. Pineda-Moreno

Criminal Procedure: Evidence is not subject to the exclusionary rule when government agents act in objectively reasonable reliance on then-binding precedent regarding the method used to obtain the evidence.

(Filing Date: 08-06-2012)

Dickens v. Ryan

Habeas Corpus: A claim under Martinez v. Ryan for ineffective assistance of post-conviction relief counsel may not need to be exhausted as previously suggested, because the claim is an equitable claim and not a constitutional claim.

(Filing Date: 08-03-2012)

Hooper v. Lockheed Martin

Civil Law: A transferee court must apply the state statute of limitations that a transferor court would have applied in cases arising under federal question jurisdiction. Further, a fraudulent estimate made for a bid on a contract can carry liability under the FCA.

(Filing Date: 08-02-2012)

Evon v. Law Offices of Mickell

Civil Law: A debt collector’s practice of sending collection letters addressed to the debtor and in “care of” the debtor’s employer without obtaining the debtor’s prior consent constitutes a per se violation of the Fair Debt Collection Practices Act.

(Filing Date: 08-01-2012)

Nijjar v. Holder

Immigration: Congress authorized both the Department of Homeland Security and the Department of Justice to grant asylum, but conferred the authority to terminate asylum only upon the Department of Justice.

(Filing Date: 08-01-2012)

Scott v. Ryan

Habeas Corpus: A claim for ineffective assistance of counsel will not be upheld if an attorney fails to present evidence that does not support a theory of defense, the legal outcome is unlikely to be different, and there is no prejudice to the defendant.

(Filing Date: 08-01-2012)

Lee v. West Coast Life Insurance

Civil Procedure: Consistent with Supreme Court and other circuit courts’ reasoning, the Ninth Circuit found that the federal interpleader remedy was not created to protect negligent stakeholders from tort liability for their creation of a conflict over entitlement to interpleaded funds. Claimants are thus entitled to recover all damages that flow directly and proximately from a negligent stakeholder’s actions.

(Filing Date: 07-31-2012)

Native Village of Eyak v. Blank

Indian Law: To properly claim aboriginal fishing rights, a group of Native Americans must show by a preponderance of the evidence that for the area claimed, the group maintained exclusive use of the territory and successfully prevented other individuals or groups from exploiting the benefits of the exclusive territory. Failure to demonstrate a population size reasonably necessary to enforce the exclusivity, in the absence of other evidence of dominion and control of the claimed area, will prevent the court from finding that the Native Americans had the necessary exclusive control of the claimed area.

(Filing Date: 07-31-2012)

Bullock v. Berrien

Civil Procedure: A federal employee exhausts administrative remedies when asserting discrimination claims under the Rehabilitation Act by (1) first filing an informal complaint, (2) filing a formal complaint for a decision by an ALJ if an informal solution is not achieved, and (3) filing an optional civil action in “federal district court within 90 days of receiving notice of final agency action on the employee’s formal complaint by the ALJ” or after 180 days “from the filing of the complaint if no final action has been taken by that time”.

(Filing Date: 07-30-2012)

International Rehabilitative Sciences v. Sebelius

Insurance Law: Deference is given to the highest level of agency adjudication in regards to whether a new device is considered “reasonable and necessary” as to be covered under Medicare, if the adjudication is not arbitrary or capricious.

(Filing Date: 07-30-2012)

League of Wilderness Defenders v. USFS

Administrative Law: Where the U.S. Forestry Service proposes a forest management research project in an experimental forest specifically set aside for such study, the agency's EIS satisfies NEPA if it (1) considers a reasonable range of alternatives that would fulfill the Project’s goals and research objectives; (2) is adequately supported by scientific data; and (3) takes a hard look at the significant impacts of the Project.

(Filing Date: 07-30-2012)

Cook v. Ryan

Habeas Corpus: When a state requires a petitioner to raise a trial ineffective assistance of counsel claim in collateral proceedings, a petitioner may establish cause for procedural default of this claim by demonstrating two things: “(1) ‘counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington,’ and (2) ‘the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the petitioner must demonstrate that the claim has some merit.’”

(Filing Date: 07-27-2012)

California Communities Against Toxics v. EPA

Administrative Law: Vacatur of an invalid EPA rule during the pendency of remand is not appropriate where the vacatur would defeat the purpose of the Act under which the rule was made and the economic outcome would be disastrous.

(Filing Date: 07-26-2012)

Latif v. Holder

Administrative Law: Individuals placed on the "No-Fly List" by the Terrorist Screening Center can have their claims handled by the district court, which has jurisdiction to offer a broader range of remedies that the Court of Appeals.

(Filing Date: 07-26-2012)

In re Midland National Life Insurance Co

Evidence: A Daubert motion filed in connection with a pending summary judgment motion may be dispositive and require continuing compelling reasons be shown to maintain a sealed record. The Ninth Circuit exception for records attached to a non-dispositive motion, requiring only "good cause" to maintain a sealed record, is not automatically applied to Daubert motions.

(Filing Date: 07-25-2012)

United States v. Valdes-Vega

Criminal Procedure: Under the totality of the circumstances, reasonable suspicion of illegal immigration or drug activity must be based on a more particularized profile than geographical proximity to a border and driving erratically.

(Filing Date: 07-25-2012)

Headley v. Church of Scientology

Criminal Law: Under the Trafficking Victims Protection Act, no genuine issue of material fact exists in a psychologically coerced labor claim where the claimant fails to show that the defendant-employer obtained the claimant’s labor “‘by means of’ serious harm, threats, or other improper methods.”

(Filing Date: 07-24-2012)

Pacific Ship Repair v. OWCP

Workers Compensation: “[A]n employee who has a permanent partial disability may be reclassified as temporarily totally disabled during a recovery period following surgery.”

(Filing Date: 07-24-2012)

United States v. Oliva

Criminal Procedure: An electronic surveillance order authorizing interception of background conversations while the telephone is "off the hook or otherwise in use" satisfies the requirements of § 2518 of Title III of the Omnibus Crime Control and Safe Streets Act of 1968 as a "standard" intercept and does not constitute a "roving" intercept.

(Filing Date: 07-20-2012)

United States v. Rangel

Sentencing: A district court may vary, but not depart from, a sentence under the advisory Sentencing Guidelines without notice, and may consider a defendant's inability to pay restitution as a factor to vary the sentence.

(Filing Date: 07-20-2012)

Anchorage School District v. M.P.

Education Law: Under the Individuals with Disabilities Education Act, a “stay put” order does not excuse an educational agency’s failure to provide an updated Individualized Educational Program for an eligible student on a yearly basis.

(Filing Date: 07-19-2012)

Alderson v. United States

Tax Law: In a qui tam action, a relator’s share is considered ordinary income for income tax purposes.

(Filing Date: 07-18-2012)

Baughman v. Walt Disney World Co.

Disability Law: Without proof that Segways cannot be operated safely within its theme parks, Disney might be required under the ADA to allow disabled persons to use Segways.

(Filing Date: 07-18-2012)

Hester v. Vision Airlines, Inc.

Civil Procedure: In determining whether a district court erred in ordering a default judgment, the reviewing court will consider whether the district court: (1) “explicitly discussed the alternative of lesser sanctions and explained why it would be inappropriate;” (2) “implemented lesser sanctions before ordering the case dismissed;” and (3) “warned the offending party of the possibility of dismissal.”

(Filing Date: 07-18-2012)

Runningeagle v. Ryan

Habeas Corpus: A district court does not err in denying a habeas corpus claim when the petitioner fails to show that withheld evidence is material and favorable; mere speculation is not enough.

(Filing Date: 07-18-2012)

NRDC v. Salazar

Environmental Law: District court properly granted defendants’ summary judgment motion because plaintiffs lacked standing to challenge the U.S. Bureau of Reclamation’s renewal of historical water service contracts for senior water rights holders based on violations of §7(a)(2) of the Endangered Species Act violations, which does not apply to the settlement contracts.

(Filing Date: 07-17-2012)

Patel v. City of Los Angeles

Constitutional Law: A municipal code requiring hotel operators to retain and make available certain guest information is not facially unconstitutional under the 4th Amendment.

(Filing Date: 07-17-2012)

United States v. Pope

Constitutional Law: “A formal arrest is not always necessary to conduct a search without a warrant.” When there is probable cause to make an arrest, high risk evidence will be destroyed, and the search is “commensurate with the circumstances necessitating the intrusion,” a warrantless search is justified. A command can effectuate a search when followed, but noncompliance with the command maintains one’s reasonable expectation of privacy and does not constitute a search.

(Filing Date: 07-17-2012)

Terenkian v. Republic of Iraq

Civil Procedure: When asserting jurisdiction over a foreign country under the commercial activity exception of the Foreign Sovereign Immunities Act, 28 U.S.C. §1602, et seq., a plaintiff must assert more than the mere execution of a contract within the boarders of the United States and/or prove the action constituted a "legally significant act" which had a "direct effect on the United States."

(Filing Date: 07-16-2012)

Ginsberg v. Northwest, Inc.

Contract Law: A claim against an airline for breach of contract of implied covenant of good faith and fair dealing in not preempted by the Airline Deregulation Act.

(Filing Date: 07-15-2012)

Dennis v. Kellogg Company

Civil Law: A district court abuses its discretion when cy pres distributions in a pre-certified class settlement for false advertisement claims are not upheld when the award is not related to the plaintiffs class’s underlying assertions, does not clearly identify the beneficiaries of the cy pres award, and is not “guided by the objectives of the underlying statute”.

(Filing Date: 07-13-2012)

Sateriale v. R.J. Reynolds Tobacco Co.

Contract Law: The existence of an offer to enter into a unilateral contract exists where a company promises to provide rewards to customers who purchase the company’s product, save Cash certificates, and redeem their certificates in accordance with the catalog’s terms, and an alleged breach of this unilateral contract is readily discernible when the company refuses to redeem leftover reward points for merchandise in accordance to terms provided. Consumers seeking to recover damages under the Unfair Competition Law and Consumer Legal Remedies Act based on a fraud theory must prove there was actual reliance on the misrepresentation and harm.

(Filing Date: 07-13-2012)

Gale v. First Franklin Loan Services

Civil Law: The Truth in Lending Act 15 U.S.C. § 1641(f)(2) applies a duty to provide notice only upon a servicer-assignee. Servicers, that are not assignees, have no duty to respond to an obligor's written request for information regarding the obligor's obligation under 15 U.S.C. § 1641(f)(2).

(Filing Date: 07-12-2012)

In Re ATM Fee Antitrust Litigation

Standing: Plaintiffs alleging price fixing of ATM fees may not bring an antitrust lawsuit when they are not direct payers of the fee.

(Filing Date: 07-12-2012)

Michelman v. Lincoln National Life

Insurance Law: Interpleader is appropriate, even if competing stakeholders' claims are frivolous, as long as the interpleader has a good faith belief that its claims are colorable.

(Filing Date: 07-12-2012)

Nelson v. City of Davis

Constitutional Law: Pepperball projectiles, which combine pepper spray and concussive force, "merely combine two types of force that we have already recognized as unreasonable when aimed at individuals who pose no threat and have committed, at most, minor offenses."

(Filing Date: 07-11-2012)

Rosa v. TASER International

Tort Law: A manufacturer does not have a duty to warn of “every report of a possible risk, no matter how speculative, conjectural or tentative," because it would dilute the warning of danger.

(Filing Date: 07-10-2012)

Flores-Lopez v. Holder

Immigration: Because California Penal Code § 69 does not require proof of the requisite level of intent of force, it is not a categorical crime of violence.

(Filing Date: 07-09-2012)

In the Matter of Eber

Bankruptcy Law: A district court does not abuse its discretion when it affirms a bankruptcy court’s denial of a motion to compel arbitration where the bankruptcy court implicitly concludes that “allowing an arbitrator to decide issues that are so closely intertwined with dischargeability would ‘conflict with the underlying purposes of the Bankruptcy Code.’”

(Filing Date: 07-09-2012)

Woods v. Carey

Civil Procedure: “ Rand and Wyatt notices must be served concurrently with motions to dismiss and motions for summary judgment so that pro se prisoner plaintiffs will have fair, timely and adequate notice of what is required of them in order to oppose those motions."

(Filing Date: 07-06-2012)

Back v. Sebelius

Administrative Law: A case must be dismissed as moot when no controversy exists because the agency already has in place the administrative appeals process that the plaintiff seeks.

(Filing Date: 07-05-2012)

Annachamy v. Holder

Immigration: The material support bar does not include a "political offense exception," nor does it include an exception for duress and involuntary action.

(Filing Date: 07-03-2012)

Day v. AT &amp; T Disability Income Plan

Administrative Law: When an ERISA plan beneficiary and long-term disability recipient elects to roll over his pension benefits into an IRA, that action is considered under Blankenship as the beneficiary having "received" his benefits. Thus, the employer can reduce the beneficiary's long-term disability payments by the amount of the rollover, provided that the employer does not violate the notice requirement of ERISA and the ADEA.

(Filing Date: 07-03-2012)

United States v. Castillo-Marin

Sentencing: Courts may not simply rely on a Presentence Investigation Report in determining the sentencing level under U.S.S.G. § 2L1.2 for an individual with a prior conviction. Such reliance results in clear and obvious error.

(Filing Date: 07-03-2012)

Ford v. Gonzalez

Criminal Procedure: When the factual predicate and speculative inferences of a claim have been present since the trial and could have been discovered through reasonable due diligence in the circumstances, a plaintiff is not entitled to equitable tolling.

(Filing Date: 07-02-2012)

United States v. Yepiz

Criminal Procedure: Acceptance of a jury panel as constituted cannot be used as a waiver of either party’s allotted peremptory challenges under Rule 24 of the Federal Rules of Criminal Procedure. Denial of a peremptory challenge does not affect the party’s substantial rights, if the challenged juror is not shown to be biased.

(Filing Date: 07-02-2012)

Rivera-Peraza v. Holder

Immigration: An alien seeking permanent resident status through a waiver of inadmissibility under §1182(h)(1)(B), and who is also subject to §1212.7(d) due to a conviction of a “violent or dangerous crime,” must first meet the threshold discretionary demonstration of hardship as defined by §1182(h)(1)(B), followed by the additional discretionary requirement that the alien and family members face “exceptional and extremely unusual hardship.”

(Filing Date: 06-29-2012)

Sawyers v. Holder

Immigration: The years of residency of a petitioner’s relative will not be imputed to the petitioner for purposes of satisfying the seven-year continuous residence requirement under 8 U.S.C. § 1229b(a)(2).

(Filing Date: 06-29-2012)

United States v. CB &amp; I Constructors, Inc.

Tort Law: Intangible environmental damages caused by a negligently set wildfire are included in property damage under California law.

(Filing Date: 06-29-2012)

United States v. Thoms

Appellate Procedure: Where a magistrate judge makes credibility findings that favor the government, but the district court reverses, to the detriment of the government, the government is entitled to a de novo determination unless, as a matter of law, no reasonable factfinder could have found the particular government testimony credible.

(Filing Date: 06-29-2012)

Nian v. Holder

Immigration: Denial of an alien crewmember’s petition in “asylum-only” proceedings is the "functional equivalent" of a final order of removal giving a reviewing court jurisdiction.

(Filing Date: 06-28-2012)

Braunstein v. Arizona DOT

Constitutional Law: A prospective subcontractor can challenge a government program that “gives general contractors a financial incentive to hire minority-owned subcontractors” under the equal protection clause when he satisfies the elements of Article III standing, (1) he has suffered an “injury in fact” that is particular and concrete (2) the injury is traceable to the defendants actions (3) the injury can be remedied by a favorable decision, and proves that the program affected him personally. A subcontractor fails to meet this standard where he does not submit a bid and would be unable to compete with other subcontractors.

(Filing Date: 06-27-2012)

Rearden LLC v. Rearden Commerce, Inc.

Trademarks: Summary judgment is generally disfavored due to the fact-intensive nature of trademark cases, and many such cases must be evaluated according to multiple-prong tests that require full development of the record.

(Filing Date: 06-27-2012)

Rodriguez v. Holder

Immigration: The BIA may never engage in de novo review of an IJ’s factual findings or credibility determinations. It may only review these for clear error, and it is legal error for the BIA to make its own factual determinations. If an IJ has not determined a fact necessary to the resolution of the case, the BIA is required to remand the case to the IJ.

(Filing Date: 06-27-2012)

United States v. Gonzalez

Criminal Procedure: Venue is proper in any location where acts or communications take place that further a conspiracy, regardless of the knowledge by the co-conspirators of the locations of their co-conspirators.

(Filing Date: 06-27-2012)

Snoqualmie Valley Preservation v. USACE

Administrative Law: “Although NWP 17 [72 Fed. Reg. at 11,184] is the only general permit specifically referencing hydropower projects, no language contained therein prevents the [U.S. Army Corps of Engineers] from applying other permits to hydropower projects that meet those other permits’ standards.”

(Filing Date: 06-26-2012)

United States v. Meredith

Criminal Law: Evidence supporting convictions for conspiracy and fraud is sufficient where the defendant’s speech underlying the crime was “integral to [the] criminal conduct,” and therefore unprotected under the First Amendment.

(Filing Date: 06-26-2012)

Building Industry v. Washington State

Preemption: The Energy Policy and Conservation Act of 1975 does not preempt the Washington Building Code, because the Code “satisfies the conditions Congress established for enforcement of state and local building codes consistent with federal energy law.”

(Filing Date: 06-25-2012)

Mackey v. Hoffman

Civil Procedure: If a district court finds that an attorney effectively abandoned an incarcerated habeas petitioner, rendering him unable to file a timely appeal, the district court has discretion to grant relief from judgment pursuant to Federal Rule of Civil Procedure 60(b).

(Filing Date: 06-25-2012)

Haynes v. City and County of San Francisco

Civil Procedure: A district court may, in its discretion, reduce a sanctions award under 28 U.S.C. § 1927 if an attorney is unable to pay the total costs of excess costs, expenses, and fees.

(Filing Date: 06-23-2012)

Johnson v. Uribe

Habeas Corpus: Vacating a defendant’s conviction and granting him a new trial is an adequate remedy for a constitutional violation of ineffective assistance of counsel when the violation occurred during the plea negotiation stage.

(Filing Date: 06-22-2012)

United States v. Collins

Parole and Post-Prison Supervision: To impose a lifetime term of supervised release, the government must prove that the “condition of supervised release involves no greater deprivation of liberty than is reasonably necessary to serve the goals of supervised release." The heightened burden of clear and convincing evidence does not apply.

(Filing Date: 06-22-2012)

United States v. Rivera

Constitutional Law: When a district court excludes a criminal defendant's family members from the sentencing proceeding, the defendant's Sixth Amendment right to a public trial is violated because (1) the right to a "public trial" applies to sentencing proceedings, and (2) the district court’s belief that the family members’ presence is "manipulative" is not a "substantial reason" warranting their exclusion.

(Filing Date: 06-22-2012)

United States v. Suarez

Sentencing: Mandatory minimum sentencing under 21 U.S.C. § 841(b)(1)(A) does not apply when the prior conviction did not result from a final judgment or a legally cognizable sentence resulting in a final judgment. A guilty plea with entry in a deferral program requiring treatment, but without a probation or imprisonment, does not qualify as a final judgment or a legally cognizable sentence.

(Filing Date: 06-22-2012)

In re Blixseth

Bankruptcy Law: "11 U.S.C. § 362(h) combined with § 521(a)(2) lifts an automatic stay and removes personal property from the estate without a timely filing of a statement of intention and a motion to determine value or benefit of property by the trustee."

(Filing Date: 06-21-2012)

United States v. Mak

Criminal Law: A defendant’s conviction under the Arms Export Control Act did not constitute reversible error where the district court properly instructed the jury that any information in the public domain cannot be “technical data.”

(Filing Date: 06-21-2012)

United States v. Ramos-Medina

Sentencing: A sentencing court “may consider acceptance of responsibility separately in imposing a sentence, even if the court determined that the defendant did not qualify for a formal adjustment on those grounds” under the Sentencing Guidelines.

(Filing Date: 06-21-2012)

United States v. Wing

Parole and Post-Prison Supervision: “[A] district court lacks jurisdiction under 18 U.S.C. § 3583(e)(3) to revoke a term of supervised release based on newly discovered violations of a previously revoked term of supervised release.”

(Filing Date: 06-21-2012)

Bilyeu v. Morgan Stanley

Administrative Law: Administrative Law: Under ERISA, a district court abuses its discretion in dismissing a claim for failure to exhaust administrative remedies where the claimant “acted reasonably in light of [a plan fiduciary’s] ambiguous communications and failure to engage in a meaningful dialogue.”

(Filing Date: 06-20-2012)

CGI Technologies and Solutions v. Rose

Civil Law: Courts cannot be limited by contract terms in their ability to act as a court of equity, and may consider traditional equitable defenses under § 502(a)(3) of the Employee Retirement Income Security Act of 1974.

(Filing Date: 06-20-2012)

Chavez v. United States

Civil Procedure: To state a claim against a supervisor for a subordinate's alleged violation of the Fourth Amendment, the plaintiff must plausibly allege facts tending to show that a reasonable supervisor would find that the defendant's conduct was clearly "unlawful in the situation he confronted."

(Filing Date: 06-20-2012)

Pacific Rivers Council v. USFS

Environmental Law: An Environmental Impact Statement related to proposed changes of a forest regulated by the National Forest Management Act must, where "reasonably possible," take a "hard look" at the environmental consequences on wildlife likely to be affected by changes to the land.

(Filing Date: 06-20-2012)

Garamendi v. Henin

Civil Procedure: Federal Rules of Civil Procedure Rule 60(a) allows a court to clarify and explain a judgment consistent with the intent of the original judgment, even if there is no ambiguity. A party waives his arguments as to setoff, release, and the nature and amount of his liability if he fails to challenge the original default judgments.

(Filing Date: 06-19-2012)

Marrero v. Ives

Habeas Corpus: For purposes of applying the “escape hatch” under 28 U.S.C. § 2255, “[a] petitioner cannot be actually innocent of a noncapital sentence under the escape hatch.”

(Filing Date: 06-19-2012)

Peck v. Thomas

Administrative Law: Under the Administrative Procedure Act (“APA”), agency decisions excluding inmates from early release carry a presumption of validity, and will be upheld if there is a reasonable basis for the decision.

(Filing Date: 06-19-2012)

United States v. Becker

Criminal Law: For purposes of ordering a defendant to register as a sex offender, knowingly taking or receiving obscene matters from an interactive computer service, a crime that does not amount to a categorical “sex offense” under SORNA, constitutes a “sex offense” where the defendant pleads guilty to the offense.

(Filing Date: 06-19-2012)

United States v. Marquez-Lobos

Sentencing: The generic definition of kidnapping implies a nefarious purpose that constitutes a “crime of violence.”

(Filing Date: 06-19-2012)

Vilchez v. Holder

Constitutional Law: Whether a particular video-conference hearing "violates due process must be determined on a case-by-case basis, depending on the degree of interference with the full and fair presentation of petitioner's case caused by the video conference and on the degree of prejudice suffered by the petitioner."

(Filing Date: 06-19-2012)

Metabolic Research v. Ferrell

Appellate Procedure: “A pretrial special motion to dismiss under Nevada’s anti-SLAPP statute” is not an immediately appealable collateral order because the order is not “effectively unreviewable on appeal from a final judgment” and does not jeopardize a substantial public interest.

(Filing Date: 06-18-2012)

Renfro v. The Funky Door

Administrative Law: A disability insurance plan administrator does not abuse its discretion when (1) it does not have a conflict of interest and (2) the plain language of the plan supports its decision.

(Filing Date: 06-18-2012)

Briggs v. Grounds

Civil Procedure: The prosecution's use of preemptory challenges to strike three African American prospective jurors was explained by race-neutral reasoning. As such, the denial of Brigg's habeas petition was properly denied by the trial court and California Court of Appeals.

(Filing Date: 06-15-2012)

Samson v. City of Bainbridge Island

Constitutional Law: A City Council’s rolling moratorium on shoreline development, enacted without a public hearing, does not violate a citizen’s substantive due process rights when the city has legitimate interest in protecting wildlife and preserving the shoreline, and when the actions do not amount of egregious conduct. The moratorium does not violate procedural due process if done as a lawful legislative act.

(Filing Date: 06-15-2012)

Brewers v. Commissioner SSA

Administrative Law: Materials reviewed by the appeals council for the first time are accepted into the administrative record even if the appeals council denied a review of the administrative law judges' opinion.

(Filing Date: 06-14-2012)

United States v. California State Lands

Constitutional Law: So long as the federal government is within its constitutional right to take land, just compensation having been paid, “neither the equal-footing doctrine nor the public trust doctrine prevents the federal government from taking a [fee simple] interest in the land unencumbered;” be it from a person, or a state.

(Filing Date: 06-14-2012)

United States v. Elkins

Criminal Law: Sex offender registration requirements based on an offense committed by a juvenile before the passage of the Sex Offender Registration and Notification Act (SORNA) do not violate the Ex Post Facto Clause when state registration requirements at the time of the conviction require substantially similar disclosures.

(Filing Date: 06-14-2012)

Harris v. Rand

Civil Procedure: Hertz does not raise the pleading standard, it simply establishes that the "nerve center" is a corporation's principal place of business and sufficient allegations, not proof, are required to meet the minimum pleading requirements under Twombly and Iqbal .

(Filing Date: 06-13-2012)

National Association of Optometrists v. Harris

Constitutional Law: A non-discriminatory regulation does not impose a “significant burden on interstate commerce,” in violation of the dormant Commerce Clause, merely because it causes an incidental shift in profits to in-state entities from out-of-state entities operating in the state. In addition, absent a “significant burden,” courts need not determine whether statutory benefits are illusory, or whether less restrictive alternatives exist.

(Filing Date: 06-13-2012)

Avina v. United States

Tort Law: A genuine issue of material fact exists as to whether the conduct of DEA agents against two minors was excessive, given their ages and the threat that they posed, where the agents forced the handcuffed minors to lie face down on the floor and pointed guns at the head of one minor.

(Filing Date: 06-12-2012)

Okwu v. McKim

Civil Rights § 1983: “Congress’s inclusion of a comprehensive remedial scheme in Title I of the ADA precludes § 1983 claims predicated on alleged violations of ADA Title I substantive rights.”

(Filing Date: 06-12-2012)

United States v. Berry

Criminal Law: The district court does not err in denying a motion for acquittal or a new trial where prosecutorial misconduct and an improper jury instruction on the term "willfully" did not constitute grounds for reversal of the defendant’s conviction for social security fraud.

(Filing Date: 06-12-2012)

United States v. Ferro

Constitutional Law: In an in rem forfeiture proceeding under 18 U.S.C. § 924(d), the determination of whether a forfeiture violates the Excessive Fines Clause of the Eighth Amendment should be based solely on the actions of the actual property owner, and the actions of the person that caused the forfeiture to occur.

(Filing Date: 06-12-2012)

Du v. Allstate Insurance Co.

Insurance Law: Under the implied covenant of good faith and fair dealing, an insurer’s duty to settle includes the duty to effectuate settlement even in the absence of a demand.

(Filing Date: 06-11-2012)

United States v. Grant

Criminal Procedure: The good faith reliance doctrine under United States v. Leon is inapplicable to an affidavit that does not “establish at least a colorable argument for probable cause.”

(Filing Date: 06-11-2012)

Garcia v. Thomas

Habeas Corpus: Under the Convention Against Torture and the Due Process Clause, an extraditee has the right to a determination by the Secretary of State that it is “not more likely than not that the extraditee will face torture.” In a habeas corpus proceeding, a court must find that right fully vindicated if the court receives a properly executed declaration from the Secretary of State “that she has complied with her obligations.”

(Filing Date: 06-08-2012)

Harris v. County of Orange

Administrative Law: Under the California Fair Employment and Housing Act, the rule requiring a plaintiff to exhaust all administrative remedies before filing a lawsuit may be met where an individual class member files a complaint with the administrative agency; the filing need not be on behalf of the class as a whole.

(Filing Date: 06-08-2012)

Leavitt v. Arave

Civil Procedure: Under Federal Rule of Civil Procedure 60(b), a defendant is not entitled to (1) relief for ineffective assistance of counsel, where counsel made a strategic choice to not call an expert witness, or (2) an order to compel a law enforcement agency to conduct forensic testing on evidence, where the defendant has not explained how the testing would support his claim of ineffective assistance of counsel.

(Filing Date: 06-08-2012)

Riggs v. Prober &amp; Raphael

Civil Law: A validation notice expressly requiring a consumer to dispute her debt in writing violates § 1692g(a)(3) of the FDCPA.

(Filing Date: 06-08-2012)

The Associated Press v. Otter

First Amendment: Under California First Amendment Coalition v. Woodford , the public enjoys a First Amendment right to view an entire execution, including the "initial procedures." Any limitation on this right must be "reasonably related to legitimate penological objectives."

(Filing Date: 06-08-2012)

United States v. Jingles

Criminal Procedure: An indictment found to be constructively amended does not require automatic reversal of a defendant's conviction under plain error review. A defendant's conviction only requires reversal if the constructive amendment seriously affects "the fairness, integrity, or public reputation of judicial proceedings."

(Filing Date: 06-08-2012)

Thompson v. Lea

Habeas Corpus: Under the Antiterrorism and Effective Death Penalty Act, where a state supreme court reopens direct review such that a prisoner’s conviction is “again capable of modification through direct appeal,” the statute of limitations for the prisoner to file a habeas corpus petition does not begin to run until 90 days after termination of the state supreme court review.

(Filing Date: 06-07-2012)

Kaahumanu v. State of Hawaii

First Amendment: Where a permit to conduct commercial activities on a public forum imposes a condition allowing an official to revoke the permit at his or her sole discretion, such a condition violates the First Amendment because no adequate standards exist to guide the official’s decision and to render that decision subject to judicial review.

(Filing Date: 06-06-2012)

M.M. v. Lafayette School District

Administrative Law: In challenging an administrative proceeding under 20 U.S.C. § 1400 et seq ., the Individuals with Disabilities Education Act, a party may not seek review in district court until the ALJ makes a final decision as to all claims.

(Filing Date: 06-06-2012)

Xiong v. Felker

Habeas Corpus: Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a denial of a writ of habeas corpus challenging a state court conviction will only be reversed if the decision is contrary to, or an unreasonable application of, federal law; or if the decision was based on an unreasonable determination of the facts.

(Filing Date: 06-05-2012)

Hexcel Corp. v. Ineos Polymers

Civil Law: Although the statute of limitations in antitrust actions may be tolled if the defendant fraudulently concealed the cause of action in such a way that the plaintiff was unable to know it existed, Hexcel had constructive, if not actual notice, of its claims against BP Amoco long before the earliest possible date Hexcel’s claims could have accrued. Therefore, the doctrine of fraudulent concealment does not apply, and Hexcel’s claims against BP Amoco are time-barred under the applicable four-year statute of limitations.

(Filing Date: 06-01-2012)

Karuk Tribe of California v. USFS

Environmental Law: Under Section 7 of the Endangered Species Act, the Forest Service has a duty to consult a designated agency before approving a Notice of Intent for mining activity that could potentially affect a listed species.

(Filing Date: 06-01-2012)

Ludwig v. Astrue

Civil Procedure: Decisions must be made entirely on the basis of evidence adduced at the hearing, not, even in part, on private chats. “Receipt of ex parte communication [that goes to the heart of the case], assignment of some weight to it, and denial of a supplementary hearing to address it,” is error, requiring an evaluation of whether prejudice exists.

(Filing Date: 06-01-2012)

Nordyke v. King

Constitutional Law: With respect to a gun show on county property, an ordinance may impose a restriction requiring firearms to be affixed to a table without violating the Second Amendment.

(Filing Date: 06-01-2012)

United States v. Gomez-Hernandez

Sentencing: Under the two-prongs of Taylor, an attempt offense is a violent crime for the purposes of enhancement under USSG § 2L1.2(b)(1)(A)(ii), when the attempt offense is a categorical match with the generic offense, even if the offense underlying the attempt is not.

(Filing Date: 05-31-2012)

United States v. Perea-Rey

Constitutional Law: Under the Fourth Amendment's protections, agents do not need a warrant to observe inside the curtilage of the home but do need a warrant to enter into it. The "knock and talk" exception's constitutionality of curtilage entries is determined on whether “the officer’s actions are consistent with an attempt to initiate consensual contact with the occupants of the home" and not the "officer's subjective intent."

(Filing Date: 05-31-2012)

Flournoy v. Small

Constitutional Law: Federal law does not clearly establish a Confrontation Clause violation where the trial court allows a forensic expert to testify based on reports prepared by other analysts.

(Filing Date: 05-30-2012)

Lewis v. Ayers

Appellate Procedure: An interlocutory appeal for a competency determination in a habeas corpus case is not “an immediately appealable collateral order” because it is not conclusive, does not “resolve an important question separate from the merits” and is re-reviewable on appeal. A district court’s decision regarding a competency order is not clearly erroneous when “there are two permissible views of the evidence.”

(Filing Date: 05-30-2012)

United States v. Leal-Vega

Sentencing: Sentencing enhancements for illegal reentry by deported aliens can only be applied where the prior convictions are a specific violation written in the language of a state or federal statute.

(Filing Date: 05-30-2012)

Marsh v. County of San Diego

Constitutional Law: "The Constitution protects a parent's rights to control the physical remains, memory and images of a deceased child against unwarranted public exploitation by the government."

(Filing Date: 05-29-2012)

Ordonez v. United States

Criminal Procedure: Sovereign immunity bars a criminal defendant’s equitable claim for monetary damages under Federal Rule of Criminal Procedure 41(g).

(Filing Date: 05-29-2012)

Schechner v. KPIX-TV

Employment Law: A plaintiff’s statistical evidence of age discrimination need not factor in legitimate non-discriminatory reasons for termination to meet the minimal burden of proof at step one of the McDonnell Douglas framework.

(Filing Date: 05-29-2012)

United States v. Johnson

Criminal Law: To obtain a conviction for knowingly making a false statement with respect to information required to be kept by a federally licensed firearms dealer under 18 U.S.C. § 924(a)(1)(A), the government need not prove that “the falsehood pertains to the lawfulness of the sale to the ultimate recipient.”

(Filing Date: 05-29-2012)

Native Village of Point Hope v. Salazar

Environmental Law: Where the Bureau of Ocean Energy Management does not act “arbitrarily or capriciously” in concluding that the description of an exploratory oil drilling plan satisfied the informational requirements of 30 C.F.R. § 550.213(d), the court will defer to the agency’s interpretation of its own regulations.

(Filing Date: 05-25-2012)

Snow v. McDaniel

Civil Rights § 1983: The district court incorrectly grants a defendant’s summary judgment motion where material issues of fact remain as to whether the denial of hip replacement surgery for a death-row inmate amounted to "deliberate indifference," in violation of his Eighth Amendment rights.

(Filing Date: 05-25-2012)

United States v. Harris

Criminal Procedure: A judge who did not preside over a trial abuses her discretion to proceed with sentencing when that judge is only familiar with the Presentence Investigation Report, and the trial judge’s absence is due to turmoil arising from the shooting of another judge.

(Filing Date: 05-25-2012)

Wilhelm v. Rotman

Civil Procedure: A party’s written consent to the jurisdiction of a magistrate judge continues when a new magistrate is substituted for the initial magistrate assigned to the case.

(Filing Date: 05-25-2012)

Fenenbock v. Director of Corrections

Habeas Corpus: A defendant is not denied sufficient pretrial access to the prosecution’s primary witness where the witness is a minor, and an agency unrelated to the prosecution acts in the minor’s best interest and restricts the defendant’s access to the minor.

(Filing Date: 05-24-2012)

Nitschke v. Belleque

Habeas Corpus: A petitioner's Apprendi claim is procedurally defaulted when the petitioner fails to preserve the error at trial and the claim does not meet the "plain error" exception. Further, if a state appellate court’s analysis to determine plain error does not reach a petitioner's federal claim, the state court's judgment is not sufficiently interwoven with federal law and, therefore, a federal court is barred from reviewing the petitioner’s habeas petition.

(Filing Date: 05-24-2012)

United States v. Romo-Chavez

Evidence: The Confrontation Clause of the Sixth Amendment does not prohibit the introduction of a defendant's translated admissions to a police officer even if the translator would not qualify as a court interpreter.

(Filing Date: 05-23-2012)

Jimenez v. Franklin

Civil Procedure: Where a defendant is held jointly and severally liable for the whole amount of a judgment, the defendant may not be granted satisfaction of judgment for a payment made in accordance with 42 U.S.C. § 1997e(d)(2), a statute limiting liability of prisoners, when the defendant failed to raise the issue on appeal.

(Filing Date: 05-22-2012)

United States v. Carpenter

Criminal Law: 18 U.S.C. § 3509(a) defines "sexual abuse" for purposes of 18 U.S.C. § 3282's extended statute of limitations. A defendant must make his desire for self-representation known in a timely and unequivocal manner.

(Filing Date: 05-22-2012)

Alday v. Raytheon Company

Contract Law: When a collective bargaining agreement clearly establishes rights for eligible retired employees, their rights cannot be abrogated by clauses contained in an ERISA plan that is not incorporated into the collective bargaining agreement.

(Filing Date: 05-21-2012)

James v. City of Costa Mesa

Disability Law: Medical marijuana use is not protected by the Americans with Disabilities Act.

(Filing Date: 05-21-2012)

Pom Wonderful v. Coca-Cola Co.

Administrative Law: Juice producers/bottlers may not state a false-advertising claim under the Lanham Act because the FDA and FDCA regulate how manufacturers may name and label its juices.

(Filing Date: 05-17-2012)

Rodgers v. Marshall

Criminal Procedure: A criminal defendant’s request for representation to file a post-verdict new trial motion is a “critical stage” under the Sixth Amendment and thus allows for a right to counsel, and that denying such representation because a defendant waived his right to counsel previously is a violation of established federal law.

(Filing Date: 05-17-2012)

United States v. Cervantes

Constitutional Law: Under the Fourth Amendment, the automobile and the community care exceptions to the warrant requirement for a search only apply if there is: (1) probable cause not based on conclusory observations and (2) the government sustains the heavy burden of demonstrating a valid caretaking reason for a vehicle to be impounded and searched.

(Filing Date: 05-16-2012)

Lopez v. Brewer

Constitutional Law: Under Arizona’s lethal injection protocol, difficulties in inserting the peripheral line in a prisoner’s hand, the femoral central line, and repeated abortive IV line placement efforts do not constitute an “objectively intolerable risk of pain,” and therefore do not violate the Eighth Amendment.

(Filing Date: 05-15-2012)

Lopez v. Ryan

Habeas Corpus: “Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective assistance at trial” where the prisoner establishes that “the underlying ineffective assistance claim is a substantial one.”

(Filing Date: 05-15-2012)

SEC v. Jasper

Evidence: A trial court may properly exclude hearsay statements that are admissible under Federal Rule of Evidence 804(b)(1) where the “trial court simply considered it unfair to present a version of an unavailable witness’s testimony without an opportunity to cross-examine directly.”

(Filing Date: 05-15-2012)

Oman v. Portland Public Schools

Education Law: The Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq., does not provide a cause of action for nominal damages.

(Filing Date: 05-14-2012)

Sexton v. Cozner

Habeas Corpus: Where a petitioner fails to prove that his trial counsel’s performance was constitutionally deficient, the petitioner’s post-conviction relief counsel is not ineffective for failing to raise an ineffective-assistance-of-trial-counsel claim in state court. Thus, the petitioner does not meet the requirements under Martinez to excuse his procedurally defaulted claims of ineffective assistance of counsel not raised in state court.

(Filing Date: 05-13-2012)

United States v. Hieng

Evidence: A defendant’s failure to object to the admission of statements made during a proffer meeting “may be reasonably interpreted as indicating that the defendant previously waived his rights under Federal Rule of Criminal Procedure 11(f) and Federal Rule of Evidence 410,” and a defendant has no right to confront an interpreter where the interpreted statement “may be fairly attributed directly to the [original] speaker.”

(Filing Date: 05-11-2012)

Renee v. Duncan

Education Law: Before Congress amended the Continuing Appropriations Act by adding Section 163, which temporarily expands the definition of “highly qualified teacher” under the No Child Left Behind Act (NCLB), the challenged federal regulation characterizing an alternative-route teacher who has not obtained full state certification as a “highly qualified teacher" violates the NCLB. However, so long as Section 163 is in effect, the challenged regulation is consistent with the NCLB.

(Filing Date: 05-10-2012)

Thomas v. Chappell

Habeas Corpus: When a defense attorney unreasonably fails to investigate and locate witnesses to corroborate a witness’s critical testimony and support the primary defense strategy of third-party culpability in a difficult-to-decide case, such performance prejudices the defendant.

(Filing Date: 05-10-2012)

United States v. Vallee

Criminal Procedure: A summons to revoke a defendant's supervised release is valid to extend the court's jurisdiction to conduct a delayed revocation hearing under 18 U.S.C. § 3583(i) when the summons is signed and issued by a clerk at the direction of a judge.

(Filing Date: 05-10-2012)

United States v. Zhou

Criminal Law: 42 U.S.C. § 1320d-6(a)(2) contains two separate elements necessary for a violation: a person must (1) knowingly obtain individually identifiable health information relating to an individual and (2) use that information in a manner inconsistent with the Health Insurance Portability and Accountability Act.

(Filing Date: 05-10-2012)

Wood v. San Diego

Constitutional Law: A pension plan that has a disparate impact with respect to sex does not violate Title VII of the Civil Rights Act of 1964, so long as the pension plan is facially neutral.

(Filing Date: 05-09-2012)

Karl v. City of Mountain Terrace

Civil Law: Under 42 U.S.C. § 1983, where a public employee gives subpoenaed deposition testimony in the course of a § 1983 lawsuit, a supervisor whose subsequent retaliatory conduct causes the termination of the employee does not have qualified immunity, even if the supervisor did not have final authority to terminate the employee.

(Filing Date: 05-08-2012)

Ward v. Chavez

Civil Procedure: First, when exhaustion is futile, the exhaustion requirement should be waived. Second, under the MVRA, where a defendant is unable to pay restitution immediately, a court may not order immediate repayment because such an order impermissibly delegates the setting a repayment schedule to the Bureau of Prisons or Probation.

(Filing Date: 05-08-2012)

Veterans for Common Sense v. Shinseki

Administrative Law: The district court lacked jurisdiction to hear whether the procedures for veterans’ mental health services and service-related disability claims with the Department of Veteran’s Affairs violates due process and a statutory duty to provide timely care. The district court did have jurisdiction to consider if the Regional Office’s non-adversarial adjudication of disability claims satisfied due process and properly held that it did.

(Filing Date: 05-07-2012)

Crosby v. Schwartz

Habeas Corpus: Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a denial of a writ of habeas corpus is reviewed under an extremely deferential standard and the denial will only be reversed if: the decision is contrary to, or an unreasonable application of, federal law; or if the decision was based on an unreasonable determination of the facts.

(Filing Date: 05-04-2012)

Henry A. v. Willden

Juvenile Law: The 2 exceptions--"special relationship" and "state-created danger"--to the general rule that Due Process does not impose affirmative duties on the government should not be read too narrowly when evaluating claims that a state failed to provide basic rights of safety and proper medical care to foster children.

(Filing Date: 05-04-2012)

Nedds v. Calderon

Habeas Corpus: Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a petitioner is entitled to equitable tolling of the statute of limitations for a habeas corpus claim when the petitioner relies on circuit court precedent, even if that precedent is later overturned by the U.S. Supreme Court.

(Filing Date: 05-04-2012)

Estate of Morgens v. CIR

Trusts and Estates: “Gift taxes paid by the donee trustees of a Qualifying Terminable Interest in Property (QTIP) trust, based on a 26 U.S.C. § 2519 deemed inter vivos transfer of the QTIP property within three years of the donor’s death, must be included in the transferor’s gross estate under the so-called “gross-up rule” of § 2035(b).”

(Filing Date: 05-03-2012)

Beltran v. Astrue

Disability Law: For purposes of determining whether a claimant is “disabled” and thus qualified for benefits under Titles II and XVI of the Social Security Act, “a significant number” of jobs does not exist “where the jobs were ‘very rare’ or generally unavailable to the claimant due to [her] limitations.”

(Filing Date: 05-02-2012)

Detrich v. Ryan

Habeas Corpus: A petition for habeas corpus on a penalty-phase ineffective assistance of counsel claim is granted when: the state post-conviction court unreasonably applied federal law and the deficient performance prejudiced the defense.

(Filing Date: 05-02-2012)

Padilla v. Yoo

Civil Law: A government official is entitled to qualified immunity unless, at the time of their actions, the law is "sufficiently clear that every reasonable government official would have understood that what he was doing violated the plaintiff's rights."

(Filing Date: 05-02-2012)

United States v. Dorsey

Evidence: Witness testimony tending to prove that the defendant had the means to commit a crime is not within the scope of inadmissible evidence involving “prior bad acts.”

(Filing Date: 04-30-2012)

Buckwalter v. Nevada Board of Medical Examiners

Civil Rights § 1983: When exercising its summary suspension powers, the Nevada Board of Medical Examiners is performing a function "comparable to a judicial act" and is afforded absolute immunity from liability.

(Filing Date: 04-26-2012)

Crowley v. State of Nevada

Civil Rights § 1983: An enforcement action under 42 USC § 1983 is not available where § 301 of the Help America Vote Act provides no cause of action to challenge recount procedures in elections for local office.

(Filing Date: 04-26-2012)

United States v. Backlund

Administrative Law: A defendant in a criminal proceeding based on the Forest Service’s administrative decision may obtain judicial review of a final agency action by filing suit in a federal district court under the Administrative Procedure Act (APA), or challenging the decision in a subsequent criminal proceeding, so long as either action is filed within the APA’s six-year statute of limitations.

(Filing Date: 04-26-2012)

Rivas v. Napolitano

Appellate Procedure: Under the Mandamus Act and 22 C.F.R. § 42.81(e), a federal court has subject matter jurisdiction to review a consular refusal to reconsider an application for an immigrant visa when the request was properly submitted and included evidence that tended to disprove the grounds for refusal.

(Filing Date: 04-25-2012)

United States v. Apel

Criminal Law: Under 18 U.S.C. § 1382, a defendant cannot be convicted of trespass to an area where the federal government has granted an easement for a public roadway such that the federal government no longer has an exclusive right of possession over the area.

(Filing Date: 04-25-2012)

Western Watersheds v. U.S. Dep't of the Interior

Administrative Law: Under 28 U.S.C. § 2412(d)(1)(A) and Hudson , a prevailing party is not entitled to an award of attorneys’ fees incurred in administrative proceedings that concluded before the commencement of the district court action.

(Filing Date: 04-25-2012)

United States v. Milovanovic

Criminal Law: Under 18 U.S.C. §§1341 and 1346, a fiduciary duty “need not be formal, or classic.” Rather, a material breach of “a comparable duty of loyalty, trust, and confidence, … with the intent to defraud, deprives the victim of the intangible right to honest services.” Foreseeable risk of economic harm is not a necessary element of the Mail Fraud Statute; instead a materiality test is required to evaluate fraudulent intent and a showing of materiality.

(Filing Date: 04-24-2012)

In Re Jacobson

Bankruptcy Law: The homestead exemption requirement of reinvestment of proceeds applies to homestead sales that occur after a bankruptcy judgment has already been entered.

(Filing Date: 04-23-2012)

Meras v. Sisto

Habeas Corpus: A state court’s admission of a non-testifying expert’s lab report into evidence on the basis that it is not “testimonial” under Crawford is not “an unreasonable application of Federal law,” and therefore does not trigger a defendant’s right to confrontation under the Sixth Amendment.

(Filing Date: 04-23-2012)

Robles-Urrea v. Holder

Immigration: Misprision of a felony is not categorically a crime involving moral turpitude which would qualify a resident alien for removability under 8 U.S.C. § 1182(a)(2)(A)(i)(I).

(Filing Date: 04-23-2012)

Noble v. Adams

Habeas Corpus: For purposes of tolling the statute of limitations, a district court must determine what is a reasonable time to appeal a petition for writ of habeas corpus or whether a delay is excusable, under applicable state law.

(Filing Date: 04-19-2012)

Cross v. Sisto

Habeas Corpus: A federal habeas corpus claim should not be found untimely when it is properly filed under California law and statutory tolling is correctly applied.

(Filing Date: 04-18-2012)

United States v. Austin

Sentencing: To qualify for sentence reduction under 18 U.S.C. § 3582(c)(2), the (C) agreement must either explicitly allow the court to apply sentencing guideline ranges or clearly show that the specific term of the agreement was based on sentencing ranges.

(Filing Date: 04-18-2012)

Balla v. State of Idaho

Attorney Fees: Under the Prisoner Litigation Reform Act, fees can be awarded to an attorney for his efforts in monitoring relief after a party has won a judgment, as long as “the fee was directly and reasonably incurred in enforcing the relief ordered for the violation”.

(Filing Date: 04-17-2012)

Gonzalez v. Arizona

Constitutional Law: The National Voter Registration Act of 1993 preempts a state law requirement that proof of citizenship be presented for voter registration. Under the U.S. Constitution and Section 2 of the Voting Rights Act, a state law may require voters provide identification at the polls in order to vote.

(Filing Date: 04-17-2012)

In re Pacific Pictures

Civil Procedure: A party cannot assert "selective waiver" of attorney-client privilege when the party discloses privileged documents to the government because it is inconsistent with serving societal interests and it is not a new privilege that Congress is willing to adopt.

(Filing Date: 04-17-2012)

Stengel v. Medtronic Inc.

Preemption: A claim under state law challenging the safety of medical equipment given premarket approval by the Food and Drug Administration (FDA) is preempted by the Food, Drug and Cosmetic Act (FDCA) if the state law provides a requirement “different from” FDCA requirements. Further, a plaintiff’s claim of injury based on a medical equipment manufacturer’s failure to report information to the FDA is invalid, because the FDCA does not provide a private right of action.

(Filing Date: 04-16-2012)

United States v. Swank

Sentencing: A two-level enhancement in sentencing is appropriate when the defendant is convicted of Abusive Sexual Contact under 18 U.S.C. §§ 2244(a)(5), 1153(a), and was in a care-taking, parent-like relationship with the victim.

(Filing Date: 04-16-2012)

United States v. Goodbear

Sentencing: For purposes of applying a two-level enhancement under USSG § 3B1.4, the use of a minor by another person can be attributed to a defendant who knew or should have known that the person would use the minor to lie to authorities.

(Filing Date: 04-13-2012)

United States v. Kelly

Criminal Law: Peace and disarmament activists cannot trespass and destroy government property and claim protection from an international treaty, because when an international treaty conflicts with another federal law, the more recent of the two controls. Under 18 U.S.C. § 1363, “malicious” is defined under common law as having (1) intent to commit the prohibited act, and (2) no justification or excuse.

(Filing Date: 04-13-2012)

Brown v. Ahern

Habeas Corpus: A federal district court shall abstain from exercising jurisdiction over a pre-conviction habeas petition asserting a Speedy Trial claim as an affirmative defense to state prosecution, except in “cases of extraordinary circumstances.”

(Filing Date: 04-12-2012)

Minority Television Project v. FCC

First Amendment: The ban on public broadcasters’ transmission of public issue and political advertisements under 47 U.S.C. § 399b fails intermediate scrutiny and thus violates the First Amendment, because the government failed to prove that its fear of harm to the substantial interest of ensuring high-quality educational public broadcasting is “real, not merely conjectural.”

(Filing Date: 04-12-2012)

Samper v. Providence St. Vincent

Disability Law: Where a job requires an employee’s on-site presence to maintain other essential functions, like teamwork or face-to-face interactions with patients, regular attendance is an essential function of employment, and therefore cannot be exempted by a disability accommodation.

(Filing Date: 04-11-2012)

United States v. Nosal

Civil Law: The Court held that “exceeds authorized access” in the Computer Fraud and Abuse Act 18 U.S.C. § 1030 “is limited to violations of restrictions on access to information, and not restrictions on its use.”

(Filing Date: 04-10-2012)

L.A. Printex Industries, Inc. v. Aeropostale, Inc.

Copyright: A genuine issue of material fact exists (1) as to whether Defendants had access to a fabric design when 50,000 yards of the fabric were sold in the area and (2) as to substantial similarity where the two designs had similar arrangements of floral elements.

(Filing Date: 04-09-2012)

Moss v. U.S. Secret Service

Constitutional Law: Under the First Amendment, officers or agents are not entitled to qualified immunity when there is facial viewpoint discrimination or prevention of demonstration of opposing views. Under the Fourth Amendment, the plaintiff must establish a plausible claim specifically against an individual in order for the claim to move forward.

(Filing Date: 04-09-2012)

Oklevueha Native American v. Holder

Constitutional Law: When asserting a claim for prospective relief, a plaintiff has a justiciable case and controversy for constitutional and statutory entitlement to use marijuana in religious practice if enforcement or prosecution has already occurred, regardless of whether criminal charges resulted from that enforcement action.

(Filing Date: 04-09-2012)

United States v. Wilbur

Indian Law: In a Cigarette Tax Contract (“CTC”), the state’s retrocession of taxes applies only to the sale of cigarettes by licensed “Indian retailers”, as defined in the CTC. The sale of untaxed, unstamped, “contraband” cigarettes on tribal land is a violation of the Contraband Cigarette Trafficking Act (“CCTA”).

(Filing Date: 04-06-2012)

United States v. Manzo

Criminal Procedure: The failure of counsel to advise a defendant to withdraw from a plea bargain is deemed ineffective counsel if there is still time to withdraw and it becomes clear that the sentence will be significantly greater than expected because there was a mutual mistake in predicting the sentence.

(Filing Date: 04-05-2012)

Schneider v. McDaniel

Habeas Corpus: Claims in amended habeas petitions must "arise out of a common core of operative facts" from the original petition's claims.

(Filing Date: 04-04-2012)

United States v. Onyesoh

Criminal Law: The government must show some proof of the usability of an unauthorized access device, such as expired credit card numbers, when its use is not readily apparent.

(Filing Date: 04-04-2012)

Arbid v. Holder

Immigration: Where an immigration judge finds that an alien committed a “particularly serious crime” based on the Frentescu factors, that alien will be ineligible for asylum or withholding of removal pursuant to 8 U.S.C. § 1231(b)(3)(B)(ii). Further, where there has been a favorable change in the foreign country’s political regime, the alien will be ineligible for deferral of removal under the Convention Against Torture, 8 C.F.R. § 1208.17(a).

(Filing Date: 04-03-2012)

Ben-Sholom v. Ayers

Habeas Corpus: A defendant who fails to show prejudice by counsel’s failure to present a state of mind defense does not establish a right to habeas relief, and therefore is not entitled to an evidentiary hearing on a claim of ineffective assistance of counsel during the guilt-phase of trial.

(Filing Date: 04-02-2012)

Coalition To Defend v. Brown

Constitutional Law: Prohibiting preferential treatment on the basis of race or ethnicity in the public education system does not violate the Equal Protection Clause of the Fourteenth Amendment.

(Filing Date: 04-02-2012)

Molina v. Astrue

Disability Law: Where adverse credibility of a claimant’s testimony is established in determining whether the claimant is “disabled” under the Social Security Act, the same "specific, clear, and convincing reasons" for rejecting the claimant’s testimony apply with equal force to lay witness testimony conveying similar evidence. Failure to comment on such lay testimony is harmless error.

(Filing Date: 04-02-2012)

Wentzell v. Neven

Habeas Corpus: Under § 2244(b) of the Antiterrorism and Effective Death Penalty Act, when a defendant files two petitions for writ of habeas corpus, the latter petition is not “second or successive” where an amended judgment intervenes between the filing of the two habeas petitions.

(Filing Date: 04-02-2012)

Brantley v. NBC Universal, Inc.

Civil Law: To state a valid claim under the Sherman Act, 15 U.S.C. § 1, a plaintiff must plead facts that show actual injury to competition. It is not enough to allege a reduction of consumer choice or increased prices without demonstrating actual anticompetitive effects.

(Filing Date: 03-30-2012)

United States v. Major

Sentencing: Under 18 U.S.C. § 924(c), “when [a] district court does not have sufficient information to determine the order in which the jury made determinations of guilt during jury deliberations on multiple counts, it must order the convictions so that the mandatory minimum sentence is minimized.”

(Filing Date: 03-27-2012)

United States v. Rodrigues

Post-Conviction Relief: A conviction for theft of honest services, based on a jury instruction lacking a kickback element, prior to the Supreme Court case Skilling v. United States is not in error if the record contains no evidence that could rationally lead to a contrary finding with regard to the new element.

(Filing Date: 03-27-2012)

Bagdasarian Productions v. Twentieth Century Fox

Alternative Dispute Resolution: An appellate court does not have jurisdiction where a district court has “entered a stay, pending [a California Code of Civil Procedure §] 638 reference,” so long as (1) the opposing party will not be “put out of court” and (2) the “collateral order doctrine” does not apply.

(Filing Date: 03-26-2012)

In re: Kekauoha-Alisa

Civil Law: Under Hawaii state law, strict compliance with foreclosure procedure is required to not void foreclosure sale. Even where a violation of strict compliance establishes unfair business practices, a claimant must establish a causal connection between the procedural violations and her injuries.

(Filing Date: 03-26-2012)

United States v. Nguyen

Criminal Procedure: A search warrant is validly issued if there is a “‘fair probability’ that a crime has been committed.”

(Filing Date: 03-23-2012)

Peng v. Holder

Immigration: Irrespective of whether an alien pleaded guilty or proceeded to trial, an alien convicted of a crime involving moral turpitude before the enactment of the Illegal Immigration Reform and Immigrant Responsibility Act is eligible for waiver of deportation under § 212 of the Immigration and Naturalization Act.

(Filing Date: 03-22-2012)

R & R Sails, Inc. v. Insurance Co. of Pennsylvania

Civil Procedure: Where a court precludes evidence as a sanction for discovery requirement violations and such preclusion amounts to the dismissal of the party’s claim, a court must consider whether the failure to comply involved willfulness, fault, or bad faith, and also the availability of lesser sanctions.

(Filing Date: 03-21-2012)

Taproot Administrative Services v. CIR

Tax Law: A taxpayer is ineligible for S corporation status where the sole shareholder of the S corporation is a custodial Roth IRA, because a Roth IRA does not qualify as an individual and the IRA's tax deferral scheme would allow a taxpayer to avoid all taxation on S corporation profits.

(Filing Date: 03-21-2012)

Benson v. JPMorgan Chase Bank

Civil Law: The Financial Institutions Reform, Recovery, and Enforcement Act of 1989 bars claims asserted against a purchasing bank when the claim is based on the conduct of the failed institution, but does not bar claims based on the purchasing bank’s own acts.

(Filing Date: 03-20-2012)

Coneff v. AT & T Corp.

Preemption: The Federal Arbitration Act preempts the Washington State law that invalidates a class-action waiver in arbitration agreements.

(Filing Date: 03-16-2012)

Phillips v. Ornoski

Habeas Corpus: A prosecutor violates his or her duty to correct false testimony under Napue when he or she makes a deal with the attorney of a key witness, asks the attorney not to disclose the deal to the witness, then use the witness’s testimony and lack of direct knowledge of the deal as evidence that the prosecution made no promise in exchange for their testimony.

(Filing Date: 03-16-2012)

Skinner v. Northrop Grumman Retirement

Civil Law: There are no equitable remedies of reformation or surcharge available when an administrative committee provides retirement summary plan descriptions that are inconsistent with the plan master documents unless there is evidence of fraud, mistake, unjust enrichment, or actual harm.

(Filing Date: 03-16-2012)

Salt River Project v. Lee

Civil Procedure: Under Federal Rule of Civil Procedure 19, an Indian Tribe protected by sovereign immunity is not considered a necessary or indispensable party, when a tribal official adequately represents the group’s interest in the action and complete relief could be accorded “among the existing parties without the tribe.”

(Filing Date: 03-15-2012)

Western Radio Services v. Qwest Corp.

Administrative Law: Based on a new report and order from the Federal Communications Commission, when a call is originated and terminated in the same Major Trading Area it is considered local, and the involvement of an interexchange carrier does not affect the obligation of reciprocal compensation.

(Filing Date: 03-15-2012)

Alliance For The Wild Rockies v. Salazar

Constitutional Law: Congress does not violate the separation of powers doctrine when it changes the particular law applicable to pending litigation, as long as the amendment does not direct the court to make particular findings of fact or to order certain outcomes.

(Filing Date: 03-14-2012)

Angle v. Miller

Civil Law: Ballot initiative legislation that requires initiative proponents to obtain signatures equal to 10 percent of the registered voters in the prior general election from each of a states congressional districts, does not violate the Fourteenth Amendment's Equal Protection Clause or the First Amendment.

(Filing Date: 03-14-2012)

Otay Land Co. v. United Enterprises

Civil Procedure: Under 28 U.S.C. § 1919, when a case is dismissed for lack of jurisdiction, a court may award “just costs,” which are to be determined by an analysis of what is fair and equitable under the totality of the circumstances.

(Filing Date: 03-14-2012)

Sharrock v. United States

Tort Law: A naval officer is not acting within the line of duty when traveling between work and a recreational activity encouraged by the Navy. As such, respondeat superior does not apply in this situation.

(Filing Date: 03-14-2012)

Turtle Island Restoration v. Hawaii Longline

Administrative Law: The district court does not abuse its discretion by approving a consent decree when (1) it does not make substantive changes to regulations, (2) there is no clearly erroneous fact finding and (3) the decree is “fair, reasonable and adequate and does not violate public policy.”

(Filing Date: 03-14-2012)

United States v. Del Toro-Barboza

Sentencing: Under U.S.S.G. § 2S1.3(a)(2), no showing of “loss to the public” is necessary to justify a sentencing enhancement when the underlying offense is a violation of 31 U.S.C. §§ 5332 or 5324.

(Filing Date: 03-14-2012)

Shannahan v. Internal Revenue Service

Civil Law: The IRS properly denied a Freedom of Information Act request from an attorney, representing fugitives, who was seeking information related to his client's civil case because disclosure would seriously undermine the Federal Tax Administration and would interfere with law enforcement purposes.

(Filing Date: 03-13-2012)

United States v. King

Criminal Procedure: Where a condition of a defendant’s probation allows for a warrantless search at “any time of the day or night, with or without probable cause,” police may lawfully execute a warrantless search even if they do not have “reasonable suspicion.”

(Filing Date: 03-13-2012)

Anderson v. Holder

Immigration: For the purposes of naturalization, the laws of the state in which a child was domiciled prior to reaching twenty-one years of age determine paternity.

(Filing Date: 03-12-2012)

Skydive Arizona v. Quattrocchi

Civil Law: A district court, in its discretion, can enter judgment for any sum above the amount found as actual damages, not exceeding three times such amount, however, such sum shall constitute compensation and not a penalty.

(Filing Date: 03-12-2012)

United States v. Ressam

Sentencing: The decrease in sentencing of convicted terrorist, Ahmed Ressam, by the district court was "substantially unreasonable" taking into account his recantation of testimony, public safety, and deterrence. The district court failed to justify the variance from the Sentencing Guidelines calculation.

(Filing Date: 03-12-2012)

Conner v. Heiman

Civil Procedure: When the material facts are undisputed by the parties and the dispute is only what inferences may properly be drawn from the facts, a court must decide the question of qualified immunity as a matter of law; a jury's possible finding that more reasonable inferences may have been drawn from the facts is irrelevant if the court finds that defendants acted on reasonable conclusions based upon the circumstances and settled law.

(Filing Date: 03-09-2012)

Cruz v. International Collection Corp.

Civil Law: A debt collection agency violates the FDCPA when it (1) uses false, deceptive, or misleading representation when attempting to collect a debt, or (2) contacts a debtor who has notified the creditor, in writing, of refusal to pay the debt. An individual may personally violate the FDCPA if he qualifies as a debt collector and took action that violated the FDCPA.

(Filing Date: 03-08-2012)

Pizzuto v. Blades

Habeas Corpus: Under 28 U.S.C. § 2244(b)(2), a second or successive habeas petition, including petitioners sentenced to death, the petitioner must show by clear and convincing evidence that, but for constitutional error, no reasonable factfinder could have found the applicant guilty of the underlying offense.

(Filing Date: 03-08-2012)

Kilgore v. KeyBank, Nat'l Ass'n

Preemption: The Federal Arbitration Act preempts state law when enforcing arbitration agreements in contracts; unless there is some reason to revoke the contract.

(Filing Date: 03-07-2012)

United States v. Whitney

Sentencing: A breach of a plea agreement by the government occurs when, as part of the plea bargain the government promises (1) not to divulge information disclosed during cooperation with the government and (2) to urge a sentence at the low-end of the guidelines, and then at sentencing the prosecution divulges the admissions and provides arguments for the sentencing judge regarding the seriousness of the defendant's criminal history.

(Filing Date: 03-07-2012)

Wagner v. County of Maricopa

Evidence: The Court reviews evidentiary rulings and allows out of court statements where they are introduced to show the declarant's state of mind.

(Filing Date: 03-07-2012)

Klestadt & Winters v. Cangelosi

Bankruptcy Law: A "sanctions order issued by the district court sitting in bankruptcy, whether supported by the district court's inherent powers or Rule 9011 [of the Federal Rules of Bankruptcy Procedure], [is] not an appealable collateral order."

(Filing Date: 03-06-2012)

Oyeniran v. Holder

Immigration: The Board of Immigration Appeals is bound to its prior determinations of past incidents of government-sponsored violence under collateral estoppel, and it abuses its discretion when it fails to reopen a proceeding when the petitioner presents new evidence that is sufficient, dramatic, and compelling.

(Filing Date: 03-06-2012)

United States v. Lequire

Criminal Law: Under Arizona law, a contract between an insurance agency and insurance company that “permitted agency commingling, required monthly agency payments whether premiums were collected or not, and created a right to interest on late payments” results in a creditor-debtor relationship, not a trust. Thus, if no trust property exists, there can be no crime of embezzlement since the alleged victim did not own the funds allegedly embezzled.

(Filing Date: 03-05-2012)

United States v. Loughner

Criminal Procedure: A pre-trial detainee, while under commitment to try and render him competent to stand trial, may be forcibly medicated under Harper because he is dangerous to himself or others.

(Filing Date: 03-05-2012)

Emeldi v. University of Oregon

Civil Law: To establish a prima facie case of retaliation under Title IX of the Education Amendments of 1972, a plaintiff who does not have direct evidence of retaliation must show that (1) the plaintiff engaged in protected activity, (2) the plaintiff suffered an adverse action, and (3) there was a causal link between the protected activity and the adverse action.

(Filing Date: 03-02-2012)

San Luis v. U.S. Dep't of the Interior

Administrative Law: In failing to apply certain releases against the 800,000 acre feet of water specifically designated for fish, wildlife, and habitat restoration within California's Central Valley Project, the Department of the Interior did not abuse its discretion so as to invalidate its actions under the Administrative Procedure Act.

(Filing Date: 03-02-2012)

State of Nevada v. Bank of America Corp.

Civil Procedure: For purposes of the minimal diversity requirement under the Class Action Fairness Act, the court will examine “the essential nature and effect of the proceeding as it appears from the entire record” in determining whether the state is the real party in interest in a state Attorney General parens patriae action.

(Filing Date: 03-02-2012)

James v. Ryan

Habeas Corpus: Where the defendant was sentenced to death, capital defense counsel’s assistance was ineffective during sentencing where counsel failed to introduce mitigating evidence of the defendant’s extensive childhood exposure to violence, drug abuse, poverty, and sexually predatory adults, and of his history of drug abuse, suicide attempts, and mental illness.

(Filing Date: 02-29-2012)

Pimentel v. Dreyfus

Constitutional Law: The district court abused its discretion in granting a preliminary injunction enjoining the State of Washington from terminating a state-funded food assistance program for legal immigrants not qualifying for the federal food assistance program, because plaintiffs failed to show they were likely to succeed on the merits of their due process and equal protection claims.

(Filing Date: 02-29-2012)

Rohit v. Holder

Immigration: For purposes of determining whether an alien is deportable under 8 U.S.C. § 1227(a)(2)(A)(ii), disorderly conduct involving prostitution under § 647(b) of the California Penal Code is a crime involving moral turpitude.

(Filing Date: 02-29-2012)

United States v. Bolivar

Criminal Procedure: Motley v. Parks did not overrule United States v. Davis , which requires reasonable suspicion, not probable cause, that property is “owned, controlled, or possessed by probationer, in order for the item to fall within the permissible bounds of a probation search.”

(Filing Date: 02-29-2012)

United States v. White

Criminal Procedure: A district court’s failure to hold a second or subsequent competency hearing sua sponte is reviewed for abuse of discretion, and a defendant is competent to stand trial if he understands the nature of the charges and consequences of the proceedings against him, and has the ability to assist in his defense.

(Filing Date: 02-29-2012)

Bowers v. Whitman

Constitutional Law: The State of Oregon did not commit a taking, when the Oregon voters enacted Measure 49, because owner’s property had not vested. Further Measure 49 did not violate procedural due process or equal protection rights because the measure did not implicate fundamental rights and was not based on a suspect class.

(Filing Date: 02-28-2012)

Moormann v. Schriro

Habeas Corpus: A death row inmate is not entitled to a stay of execution under Atkins when they allege that they have become mentally retarded after the offense, because there is no "clearly established law" that a person who was not mentally retarded at the time of the crime or trial may be immune from capital punishment under Atkins, "because of subsequent mental deterioration."

(Filing Date: 02-27-2012)

Towery v. Brewer

Criminal Procedure: For an injunction halting an execution to be granted based on Eighth and Fourteenth Amendment violations, a plaintiff must show that the execution protocol was likely to subject the plaintiff to cruel and unusual punishment, and that the protocol would result in disparate treatment in which the plaintiff was treated differently and detrimentally.

(Filing Date: 02-27-2012)

Towery v. Ryan

Habeas Corpus: An attorney did not abandon his client by failing to raise a colorable claim on a habeas corpus petition when considering all the circumstances the attorney's behavior did not breach the duty of loyalty.

(Filing Date: 02-27-2012)

Haskell v. Harris

Constitutional Law: California Penal Code statute requiring DNA samples to be taken from all felony arrestees does not violate the 4th Amendment to the United States Constitution given the diminished expectation of privacy in a felony arrestee and the compelling governmental interests in identification, solving crimes, preventing crimes, and exoneration.

(Filing Date: 02-23-2012)

Movesesian v. Victoria Versicherung AG

Preemption: Section 354.4 of the California Code of Civil Procedure, which grants state courts jurisdiction over insurance claims by Armenian Genocide Victims, is preempted under the foreign affairs doctrine.

(Filing Date: 02-23-2012)

Mardesich v. Cate

Habeas Corpus: The statute of limitations on claims under the Antiterrorism and Effective Death Penalty Act (AEDPA) is calculated on a claim-by-claim basis, and the AEDPA statute of limitations on a challenge to an administrative decision begins when the administrative decision is final.

(Filing Date: 02-21-2012)

United States v. Louis

Civil Law: A defendant, in a civil forfeiture suit, cannot use the Fifth Amendment "as both a sword and shield" by refusing to answer interrogatory discovery requests containing necessary elements to establish the defendant's Article III standing.

(Filing Date: 02-21-2012)

Latter-Singh v. Holder

Immigration: California Penal Code § 422 is “categorically a crime of moral turpitude” and aliens convicted of such a crime are therefore subject to removal pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I).

(Filing Date: 02-17-2012)

Putnam Family Partnership v. Yucaipa

Municipal Law: The requisite intent to provide housing for seniors under the “senior exemption” exception to prohibitions on discriminatory housing policies in the Fair Housing Amendments Act and Housing for Older Persons Act can be that of a city in passing a zoning ordinance, and is not limited to the intent of a housing provider.

(Filing Date: 02-17-2012)

Turtle Island Restoration Network v. US Dep't of State

Civil Procedure: A certification process that gives rise to an allegation on an annual basis does not defeat claim preclusion each year when a party has already had an opportunity to litigate the issue.

(Filing Date: 02-17-2012)

Range Road Music v. East Coast Foods

Copyright: Observation of public performance of copyrighted songs is within the acceptable purview of lay opinion and will alone suffice as evidence of copyright infringement because there need not be a showing of "'substantial similarity; between the publicly performed compositions and the copyrighted works" where such evidence is available to show "that the public performances entailed direct copying."

(Filing Date: 02-16-2012)

Wilson v. Hewlett-Packard

Civil Procedure: To state a claim for relief under the California Consumer Legal Remedies Act and the Unfair Competition Act, a plaintiff must show that a causal connection exists between the alleged design defect and the alleged safety hazard, and that the manufacturer had knowledge of the safety hazard at the time of sale.

(Filing Date: 02-16-2012)

Naify Revocable Trust v. United States

Tax Law: The value of a California income tax claim becomes certain when the parties settle the claim and the amount of the settlement is the value of the claim against the estate of a decedent.

(Filing Date: 02-15-2012)

Leigh v. Salazar

First Amendment: The Press-Enterprise II qualified right of access balancing test applies to media access to a government run horse roundup because the test balances the media’s ability to monitor all government activities not just criminal proceedings.

(Filing Date: 02-14-2012)

United States v. Polar Star

Contract Law: A federal government action for a taking, concurrent with a notice to renew a lease upon that same property, may be dismissed if the government's lease is renewed and there is a possessory right in the property. Other terms to that lease renewal, such as the price of the lease are within the sole jurisdiction of the Court of Federal Claims.

(Filing Date: 02-14-2012)

Hunt v. County of Orange

First Amendment: Demotion and placing an inferior officer on administrative leave, because the officer campaigned against and alleged corruption against the superior officer is not constitutional. However, the superior officer may have qualified immunity if they reasonably but mistakenly believe political loyalty was required by the inferior officer.

(Filing Date: 02-13-2012)

United States v. Yeung

Sentencing: It is insufficient to rely upon the outstanding principal balance as the basis for restitution in calculating a restitution award under the Mandatory Victims Restitution of Act of 1996, when the victim is a loan purchaser and not the loan originator. In addition, the proper valuation for returned collateral is the market value at time the victim takes possession, not the amount the victim is able to sell the property for at a later date.

(Filing Date: 02-13-2012)

Watison v. Carter

Constitutional Law: To claim violation of the “First Amendment right to file a grievance against prison officials and to be free from retaliation for doing so,” a prisoner must allege that (a) filing a grievance is protected conduct; (b) defendant took adverse actions; (c) the grievance precipitated those actions; (d) the actions “would chill or silence a person of ordinary firmness from future First Amendment activities”; and (e) the actions “did not advance legitimate goals of the correctional institution,” because they were arbitrary and capricious or “unnecessary to the maintenance of order in the institution.”

(Filing Date: 02-13-2012)

ACLU v. Masto

Constitutional Law: Sex offender regulation schemes expanding the scope of notice and registration and applying retroactively, do not necessarily offend the Double Jeopardy or Ex Post Facto clauses of the Constitution.

(Filing Date: 02-10-2012)

Beets v. County of Los Angeles

Civil Law: Under Heck v. Humphrey , 512 U.S. 477 (1994), a 42 U.S.C. § 1983 claim is barred where the issue has already been considered and decided in another proceeding with a sufficient community of interest to the current proceeding.

(Filing Date: 02-10-2012)

Adams v. USFS

Administrative Law: The Federal Lands Recreation Enhancement Act unambiguously prohibits the Unites States Forest Service from charging recreational park users an amenity fee solely for parking or using the undeveloped areas of a Park.

(Filing Date: 02-09-2012)

Gomez Zarate v. Holder

Immigration: Removal from the United States after a criminal proceeding, even if not in front of a Immigration Judge, is enough to break the continuous and uninterrupted presence requirement on an application for cancellation of removal.

(Filing Date: 02-09-2012)

In the Matter of SK Foods

Bankruptcy Law: A bankruptcy court's order denying the removal of a trustee and return of records is not a final order, and the Court lacks jurisdiction to hear issues on appeal involving interlocutory orders.

(Filing Date: 02-09-2012)

Metabolic Research v. Ferrell

Civil Procedure: A motion to dismiss under anti-SLAPP statutes must meet the criteria applicable to the collateral order doctrine in order to be immediately reviewable as an interlocutory appeal.

(Filing Date: 02-09-2012)

Save The Peaks Coalition v. USFS

Civil Procedure: A gross abuse of the judicial process occurs and laches apply when "new" plaintiffs appear four years later after litigation had already been commenced by other plaintiffs, however laches does not apply when defendants cannot demonstrate that they have suffered prejudice.

(Filing Date: 02-09-2012)

Skilstaf v. CVS Caremark Corp.

Civil Procedure: A class member is precluded from filing a second class action suit when the member was (1) a party to a prior settlement agreement containing an applicable covenant not sue, and (2) the class member had full notice and an opportunity to object or withdraw from the prior settlement agreement.

(Filing Date: 02-09-2012)

Ibrahim v. DHS

Constitutional Law: Although the plaintiff was a citizen of Malaysia, and not a U.S. citizen, she has established a significant voluntary connection with the United States as a Ph.D. student, which would allow for her to bring constitutional claims in United States courts.

(Filing Date: 02-08-2012)

McOmie-Gray v. Bank of America

Civil Procedure: Under U.S.C. § 1635(f), regardless of whether the parties have notice or agreed otherwise, suits for rescission must be filed within three years of signing the loan agreement.

(Filing Date: 02-08-2012)

Ruiz v. Affinity Logistics

Civil Procedure: Under California's choice of law framework, parties' choice of Georgia law to govern an employment agreement is unenforceable because Georgia law is contrary to a fundamental policy of California and California has a materially greater interest in the case.

(Filing Date: 02-08-2012)

United States v. Kimsey

Criminal Procedure: Title 18 U.S.C. § 402 creates a statutory right to a jury trial in a criminal contempt proceeding, and a violation of local court rules, “cannot serve as a predicate for criminal convictions under that statute.”

(Filing Date: 02-08-2012)

Farmer v. McDaniel

Criminal Procedure: Where an initial capital sentence imposes the death penalty and the basis for the initial sentence is later invalidated, the state can seek to reimpose the death penalty on different grounds without violating the Double Jeopardy Clause of the Fifth Amendment.

(Filing Date: 02-07-2012)

Mendoza-Pablo v. Holder

Immigration: "Where a pregnant mother is persecuted in a manner that materially impedes her ability to provide for the basic needs of her child, where that child's family has undisputedly suffered severe persecution, and where the newborn child suffers serious deprivations directly attributable not only to those facts, but also to the material ongoing threat of continued persecution of the child and the child's family, that child may be said to have suffered persecution and therefore be eligible for asylum under the INA."

(Filing Date: 02-07-2012)

Perry v. Brown

Constitutional Law: Proposition 8, which defines marriage in California as between a man and a woman, is an unconstitutional violation of Equal Protection.

(Filing Date: 02-07-2012)

Secalt S.A. v. Wuxi Shenxi Construction Machinery Co.

Patents: A companies external design elements are not entitled to trade dress protection unless they can prove that the design does not serve any functional purpose and used only to set their design apart.

(Filing Date: 02-07-2012)

Tri-Valley CARE v. United State Department of Energy

Administrative Law: Under the National Environmental Policy Act analysis, analogizing triggering events, comparing critical distinctions, and considering uniquely different circumstances satisfy the requisite "hard look" the Department of Energy must make at the environmental consequences of their actions.

(Filing Date: 02-07-2012)

United States v. Willis Reyes-Bonilla

Immigration: An alien may challenge removal under the due process clause by when (1) they have exhausted all administrative remedies; (2) they have been deprived of the opportunity for judicial review; and (3) the proceeding was fundamentally unfair. To show fundamental unfairness, the alien must prove that his due process rights were violated, and that he would have had a plausible claim for relief had he not been prejudiced.

(Filing Date: 02-06-2012)

Biller v. Toyota Motor Corp., et al

Alternative Dispute Resolution: Review of arbitration awards under arbitration agreements governed by the Federal Arbitration Act is limited to the standards specified in the Act, and awards may be vacation only on grounds listed in Section 10 of the Act; an arbitrator's written explanation of the rulings need only be sufficient enough to allow for this limited review. Furthermore, an arbitrator's recognition of applicable law in a written explanation is enough to overcome the allegation that the award should be vacated for manifest disregard of the law.

(Filing Date: 02-03-2012)

Pacific Rivers Council v. USFS

Administrative Law: The United States Forest Service failed to take the requisite “hard look” at environmental consequences in an Environmental Impact Statement because they failed to show why it was not reasonably possible to perform any analysis of those consequences.

(Filing Date: 02-03-2012)

Sauer v. U.S. Department of Education

Administrative Law: Under the Randolph-Sheppard Act, a state licensing agency has no duty to bring an enforcement action against a federal agency to enforce an arbitration award issued pursuant to 20 U.S.C. § 107d-1(b).

(Filing Date: 02-03-2012)

Fair Housing Council v. Roommate.com, LLC

Civil Law: Roommate selection based on sex, sexual orientation, and familial status does not violate the federal Fair Housing Act or California’s Fair Employment and Housing Act.

(Filing Date: 02-02-2012)

Kristin Perry v. Edmund G. Brown, Jr.

Civil Law: Protection of judicial integrity in a proceeding is a compelling interest to be protected in not releasing a recording under seal of trial proceedings.

(Filing Date: 02-02-2012)

GECCMC 2005-C1 Plummer Street v. JP Morgan Chase Bank

Landlord Tenant: A landlord is not an intended third-party beneficiary to a Purchase &amp; Assumption Agreement (P&A), which otherwise, would allow them to sue for breach of contract on an agreement between the Federal Deposit Insurance Corporations (FDIC) and a new mortgage purchaser.

(Filing Date: 02-01-2012)

United States v. Noriega-Perez

Evidence: Whenever alienage is an element of a crime, the alleged alien who was the subject of the offense does not need to testify, and a jury can make an inference that the alleged alien was not allowed to enter the country legally based upon the non-availability of the non-testifying witness.

(Filing Date: 02-01-2012)

In Matter of Thorpe Insulation Co.

Bankruptcy Law: When a bankruptcy court finds a contract dispute to be a “core proceeding” in a bankruptcy case, the bankruptcy court may use its discretion to find an arbitration agreement in that contract unenforceable.

(Filing Date: 01-30-2012)

United States v. Casasola

Immigration: The statute 8 U.S.C. § 1432(a), in effect prior to February 27, 2001, does not violate the equal protection clause by denying derivative citizenship to foreign-born children when only one married parent is a naturalized citizen.

(Filing Date: 01-30-2012)

AE v. County of Tulare

Tort Law: A plaintiff alleging viable state negligence claims and a § 1983 claim must be given the opportunity for leave to amend to meet pleading requirements when the first amended complaint "did not put forth additional facts" regarding "alleged policy, custom, or practice" of a government entity.

(Filing Date: 01-27-2012)

Hutcherson v. Arizona Health Care Cost

Civil Law: Under 42 U.S.C. § 1396p(1)(F)(i), the State is entitled to recover medical costs stemming from the institutionalization of an individual receiving Medicaid assistance out of an annuity purchased by the spouse. The recovery is not limited to only medical care costs incurred after the spouse’s death.

(Filing Date: 01-27-2012)

In Matter of Meruelo Maddux Properties, Inc.

Bankruptcy Law: There is no basis in the plain language of the single asset real estate provisions of the Bankruptcy Code § 101(51)(b) for a “whole business enterprise” exception.

(Filing Date: 01-27-2012)

Tyson v. Holder

Immigration: The repeal of § 212(c) of the Immigration and Nationality Act imposes an impermissible retroactive effect on a lawful permanent resident, who was “convicted pursuant to a stipulated facts agreement based on a reasonable expectation that it would not negatively affect her immigration status.”

(Filing Date: 01-27-2012)

Oshodi v. Holder

Immigration: The BIA sufficiently complies with a Court mandate when its analysis does not "run counter to 'the spirit' of [the] mandate." An immigration judge's adverse credibility determination will be affirmed where "the IJ considered the totality of the circumstances," and not merely "rank speculation and conjecture and inconsequential factors." Lastly, a petitioner carries the burden of proving due process violations and Convention Against Torture claims.

(Filing Date: 01-26-2012)

United States v. Gonzalez

Criminal Procedure: Communications under an implied joint defense agreement are protected by attorney client privilege but the agreement may be terminated by the conduct of the parties.

(Filing Date: 01-25-2012)

United States v. Juvenile Male

Juvenile Law: Both the statutory text and legislative history of the Sex Offender Registration and Notification ACT ("SORNA") show that the registration requirements for juveniles convicted of aggravated sex offenses do not violate the confidentiality provisions of the Federal Juvenile Delinquency Act ("FJDA").

(Filing Date: 01-25-2012)

Thorpe Insulation Co. v. Motor Vehicle Causality Co.

Bankruptcy Law: Non-Settling insurance carriers have standing to appeal § 543(g) bankruptcy reorganization plans when the Court is able to order modification or reversal of the plan and the plan has potentially adverse effects on insurance providers.

(Filing Date: 01-24-2012)

Leeson v. Transamerica Disability

Civil Procedure: ERISA plan participant status under § 1132(a)(1)(B) is an element of a claim, not an issue of subject matter jurisdiction.

(Filing Date: 01-23-2012)

Alvarez v. Hill

Civil Procedure: The United States v. Howard exception to the mootness doctrine, which allows an otherwise moot claim to proceed on the premise that it challenges an ongoing policy which would evade review, does not apply to claims against prison policies that deal with post-conviction incarceration conditions.

(Filing Date: 01-20-2012)

CRM Collateral II v. TriCounty Metropolitan Trans.

Contract Law: TriMet's draw on a Letter of Credit was proper and did not violate the statutory warranty of ORS section 75.1100(1)(b), therefore Collateral II cannot be characterized as a surety and is not entitled discharge.

(Filing Date: 01-20-2012)

Sierra Club v. EPA

Environmental Law: The Environmental Protection Agency acts arbitrarily and capriciously when approving a State Implementation Plan for National Ambient Air Quality Standards, based on data that is significantly different than more current data.

(Filing Date: 01-20-2012)

Strategic Diversity, Inc. v. Alchemix Corporation

Contract Law: To rescind a contract on the basis of § 10(b) of the Securities and Exchange Act of 1934, common law fraud and negligent misrepresentation, plaintiff must demonstrate economic damages. To rescind a contract based on a state securities law claim in Arizona, economic damages need not be shown.

(Filing Date: 01-20-2012)

United States v. Juvenile Male

Indian Law: Under the Bruce framework, a bench trial court can find beyond a reasonable doubt that a juvenile is “Indian” under 18 U.S.C. § 1153, despite not being socially recognized by the tribe, when he has a sufficient amount of Indian blood, is enrolled as a tribal member, receives governmental assistance for Indians, and benefits from tribal association.

(Filing Date: 01-20-2012)

Farris v. Seabrook

Constitutional Law: Washington campaign contribution restrictions to committees in recall elections are an impermissible restriction on Free Speech.

(Filing Date: 01-19-2012)

Montana Sulpher & Chemical Co. v. EPA

Environmental Law: The EPA may rely on modeling to predict SO2 violation under the Clean Air Act when existing sampling data is limited or insufficient.

(Filing Date: 01-19-2012)

United States v. Solorio

Evidence: Under FRE 604, a party must show inaccuracy or illegal conduct from a nonsworn interpreter’s interpretation during trial in order to have a claim of prejudice and get a reversal.

(Filing Date: 01-19-2012)

Washington State Republican Party v. Washington State Grange

First Amendment: Washington State's top two primary system did not violate political parties' First Amendment association rights because no actual voter confusion was found where, in accordance with U.S. Supreme Court suggestions, the form of the ballot included a prominent disclaimer that party preference is only a self-designation and not a party endorsement.

(Filing Date: 01-19-2012)

United States v. Melendez-Castro

Immigration: A collateral attack on a deportation order must show a violation of the defendant’s due process right and prejudice.

(Filing Date: 01-18-2012)

Chettiar v. Holder

Immigration: Under the Marriage Fraud Amendments of 1986, the Citizenship and Immigration Services does not lose jurisdiction of a petition to remove conditions placed on residence pursuant to 8 U.S.C. § 1186a(c)(3)(A) if it fails adjudicate the petition within ninety days.

(Filing Date: 01-17-2012)

United States v. Kuok

Criminal Law: The Arms Export Control Act does not violate the nondelegation principle; "attempting to cause an export of a defense article is not a federal crime"; 18 U.S.C. § 1956 convictions will be vacated where the government fails to satisfy the amount-in controversy requirement of § 1956(f)(2); and district courts must allow a defendant to present a duress defense to a jury where "he has alleged facts sufficient" to support such defense.

(Filing Date: 01-17-2012)

White v. City of Pasadena

Civil Procedure: State court decisions and reviewed administrative decisions in federal discrimination claims are entitled to the same preclusive effect that any other decision would be given in the courts of that state.

(Filing Date: 01-17-2012)

Bowers v. Whitman

Constitutional Law: Legislation which replaced and modified former legislation regarding the processes in which landowners receive compensation for government land use regulations, does not amount to a "constitutional taking" of property interests under the former legislation, when property interests have not yet vested.

(Filing Date: 01-12-2012)

Hydrick v. Hunter

Civil Law: In order to seek monetary damages under a § 1983 claim, a plaintiff must overcome qualified immunity by alleging factual allegations that are sufficient to establish a plausible claim against a defendant.

(Filing Date: 01-12-2012)

Mazza v. American Honda

Civil Procedure: Under Federal Rule of Civil Procedure 23(b)(3), no common issue of law exists in a consumer protection class action stemming from automobile sales in 44 different jurisdictions, because the foreign states’ interest in applying its own consumer protection laws to achieve an optimal balance between protecting consumers and fostering commerce, outweighs one state’s interest in regulating those who do business and commit wrongdoing within its borders.

(Filing Date: 01-12-2012)

Shelley v. Geren

Employment Law: The district court’s grant of summary judgment was improper because plaintiff timely pursued administrative remedies and established a prima facie case of age discrimination for two job promotions in violation of the Age Discrimination in Employment Act.

(Filing Date: 01-12-2012)

United States v. Arango

Immigration: For purposes of venue under 8 U.S.C. § 1451, there is “a rebuttable presumption that an incarcerated individual retains residence in the judicial district where he lived prior to incarceration.”

(Filing Date: 01-12-2012)

United States v. Lopez-Avila

Criminal Procedure: Double Jeopardy does not bar a retrial where prosecutorial misconduct that led to a mistrial was not the result of a strategic decision to retry to case at a more advantageous date.

(Filing Date: 01-12-2012)

Bonneau v. Centennial School District

Tort Law: Under Wilson v. Garcia the Supreme Court stated that state's residual personal injury statute of limitations should be applied to § 1983 claims in order to prevent "unnecessary litigation and preserve the efficacy of the 1983 remedy." Plaintiff's § 1983 child abuse claim was found to be governed by the state's general personal injury statute of limitations, and since the state's tolling statute was not closely related to the two-year residual statute of limitations, federal law governed the accrual of plaintiff's § 1983 claim.

(Filing Date: 01-11-2012)

United States v. Alcala-Sanchez

Sentencing: When a prosecutor agrees to a stipulated plea agreement, then subsequently changes the recommended sentence to a greater sentence than agreed, it is a breach of the plea agreement and the case must be remanded for resentencing before a different judge.

(Filing Date: 01-10-2012)

United States v. McGowan

Post-Conviction Relief: Since a defendant did not move to get a new trial if a judgment of acquittal was reversed, the district court did not err in failing to conditionally rule that defendant get a new trial if his judgment of acquittal was reversed. Further, a defendant’s inadequate assistance of counsel claim is not reviewed on appeal since the trial record was not developed to permit determination on the issue and since the representation was not so inadequate that the defendant was denied his 6th amendment right to counsel.

(Filing Date: 01-10-2012)

United States v. Havelock

Criminal Law: Under 18 USC § 867(c), a mailed communication containing a threat must be directed to a natural person; a court may look beyond the outside of the parcel to the contents of the letter or package to determine to whom, if anybody, such a threat is addressed.

(Filing Date: 01-06-2012)

Vegas Diamond Properties, LLC v. La Jolla Bank, FSB

Civil Procedure: An appeal in federal court is moot if the conduct to be enjoined has already occurred, regardless of whether the case raises issues of substantial public interest.

(Filing Date: 01-06-2012)

United States v. Keith Russell

Criminal Procedure: An officer can assume that the scope of a general consent search of the person, in a drug investigation, includes a pat-down of the groin area.

(Filing Date: 01-05-2012)

United States v. Rodriguez-Ocampo

Immigration: “An order of removal that provided the alien with no opportunity for judicial review and cannot support a prosecution under 8 U.S.C. § 1326, or a reinstatement of such an order, cannot support a sentencing enhancement under U.S.S.G. § 2L1.2(b).”

(Filing Date: 12-30-2011)

Balderas v. Countrywide Bank

Civil Procedure: Since a family was able to plead allegations in their complaint that would present a winning case if proven, the district court erred by granting the defendant’s 12(b)(6) motion for dismissal, because such a complaint was not subject to dismissal under 12(b)(6), no matter how unlikely the winning outcome may be perceived by the district court.

(Filing Date: 12-29-2011)

Estrella v. Ollison

Sentencing: Sentencing errors under Apprendi v. New Jersey , 530 U.S. 466 (2000), are harmless if the reviewing court can ascertain that the sentencing judge was presented with sufficient evidence to conclude that a jury would have found the aggravating factors beyond a reasonable doubt.

(Filing Date: 12-29-2011)

Family PAC v. McKenna

Constitutional Law: Ballot measure disclosure requirements do not violate the first amendment when they are substantially related to important government interests.

(Filing Date: 12-29-2011)

Hepting v. AT &amp; T Corp.

Constitutional Law: Section 802 of the Foreign Intelligence Surveillance Act, which provides that private parties assisting the government with intelligence gathering shall not be subject to civil liability, is constitutional.

(Filing Date: 12-29-2011)

Jewel v. National Security Agency

Standing: “Concrete injury” was found--in the context of statutory and constitutional claims of unlawful government surveillance and warrantless eavesdropping--where allegations specified a single telecommunications company and the equipment used at the particular facility were where claimant’s personal communications were intercepted. Also, no heightened standing requirement existed simply because the case involved government officials in the national security context.

(Filing Date: 12-29-2011)

McMurray v. Verizon Communications

Constitutional Law: For takings claims related to action that has already taken place, plaintiffs must follow the procedure set out in the Tucker Act prior to filing suit for takings.

(Filing Date: 12-29-2011)

Northern Plains Resource v. Tongue River RR

Administrative Law: By not providing adequate baseline data regarding wildlife and sensitive plants to assess the impacts of a proposed railroad in application documents, violates the National Environmental Policy Act's procedural requirement on federal agencies to "take a 'hard look' at the potential environmental consequences of the proposed action."

(Filing Date: 12-29-2011)

Orange County v. California Dept. of Education

Administrative Law: The California agency that is responsible for the an eligible minor under the Individuals with Disabilities Act is the school district in which the individuals parents resides, or the California Department of Education if no parent is defined or identified by statute.

(Filing Date: 12-28-2011)

United States v. Shetler

Criminal Procedure: Exculpatory confessions obtained by an illegal search and seizure can not be used as evidence unless the government can prove that the confession was obtained by legal means.

(Filing Date: 12-28-2011)

United States v. Valenzuela-Espinoza

Criminal Procedure: The McNabb-Mallory Rule is an important procedural safeguard and necessary to provide a remedy for violations of Fed. R. Crim. Pro. 5(a). Any delay in presentment to a magistrate must be reasonable and necessary.

(Filing Date: 12-28-2011)

K.D. v. Department of Education, State of Hawaii

Disability Law: For purposes of the “stay put” provision under the Individual with Disabilities Education Act (20 U.S.C. § 1415(j)), a settlement agreement that merely requires tuition reimbursement and fails to call for “placement” lacks “the same legal effect as an affirmative agency decision to define a student’s ‘current educational placement.’”

(Filing Date: 12-27-2011)

Parker v. Small

Criminal Procedure: It does not violate a persons right to a trial by jury when a judge advises a holdout jury to try alternative methods of deliberation in accordance with California's Moore Charge.

(Filing Date: 12-27-2011)

Wright v. Incline Village General Improvement

Constitutional Law: Privately-owned beach property, with access restricted to owners based on boundaries established in 1968, does not violate the First Amendment or the Equal Protection Clause.

(Filing Date: 12-27-2011)

Guatay Christian Fellowship v. County of San Diego

Land Use: Claims brought under the Religious Land Use and Institutionalized Persons Act of 2000 are not ripe for review unless the government entity implementing land use regulations has reached a final decision regarding the property at issue.

(Filing Date: 12-23-2011)

Drake v. Obama

Civil Procedure: In order for candidates to have competitive standing (standing based on the "inclusion of a disqualified rival"), they must file a claim for relief before the election is over and the elected official is sworn in.

(Filing Date: 12-22-2011)

UMG Recordings v. Shelter Capital Partners

Copyright: Under the Digital Millennium Copyright Act “safe harbor” provision, a website provider is not liable for copyright infringement if the provider is not aware of infringement or removes access to copyrighted material once the provider becomes aware of infringement, and actual knowledge of infringement is required for a provider to be liable.

(Filing Date: 12-20-2011)

Plaza Auto Center v. NLRB

Employment Law: In evaluating "the nature of the employee's outburst" as a factor of whether an employee has forfeited protection under National Labor Relations Act § 8(a)(1), a Court need not find evidence of physical conduct or threat in order to find this factor weighing against protection. In fact, language alone indicating that the nature of the outburst weighs against protection may be enough to counterbalance the other three factors even when those other factors favor continuing protection.

(Filing Date: 12-19-2011)

Romero-Mendoza v. Holder

Immigration: The 1983 Salvadoran constitutional amendment "eliminating legitimacy distinctions served to legitimate any child born out of wedlock."

(Filing Date: 12-19-2011)

Crockett & Myers v. Napier, Fitzgerald & Kirby

Appellate Procedure: Since the district court, on remand from a previous Ninth Circuit decision, failed to follow instructions to recalculate an award given to a party for a client’s referral value, the re-entering by the district court of their previous award was clearly erroneous.

(Filing Date: 12-16-2011)

M.R., et al v. Dreyfus

Disability Law: Recipients of “personal care services” under Washington’s state Medicaid plan made a sufficient showing that a reduction in these services would threaten them with institutionalization in violation of the Americans with Disabilities Act and Rehabilitation Act in order to grant them a preliminary injunction.

(Filing Date: 12-16-2011)

Ministry of Defense of Iran v. Cubic Defense

Alternative Dispute Resolution: The United States has a strong public policy toward the confirmation of foreign arbitration awards that outweighs current restrictive trade policies with Iran. Also, prejudgment interest and legal fees are available in an arbitration confirmation award under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards.

(Filing Date: 12-15-2011)

Alston v. Read

Sentencing: State prison officials are entitled to qualified immunity, as there was no clearly established duty for these officials "to seek out original court records in response to a prisoner's unsupported assertion that he was being over-detained."

(Filing Date: 12-14-2011)

Sullivan v. Oracle Corporation

Labor Law: The California Labor Code and California Unfair Competition Law apply to overtime work performed in California by nonresidents.

(Filing Date: 12-13-2011)

Merolillo v. Yates

Habeas Corpus: Under Brecht v. Abrahamson, habeas relief is warranted only if the error has a “substantial and injurious effect” in determining the jury’s verdict and that determination is guided by five non-exclusive factors articulated in Delaware v. Van Arsdall.

(Filing Date: 12-12-2011)

Bravo v. City of Santa Maria

Civil Law: An officer's omission that a person of interest was incarcerated is sufficient to raise the issue of judicial deception in relation to a 1983 claim challenging the validity of a search warrant authorizing a search of the person of interest's home.

(Filing Date: 12-09-2011)

Johnson v. Board of Trustees of the Boundary County School District 101

Disability Law: Where an expired teaching certificate fails to satisfy a job prerequisite the holder is not a “qualified individual with a disability” for the purposes of reasonable accommodation under the Americans with Disabilities Act, 42 U.S.C. § 12101.

(Filing Date: 12-08-2011)

Johnson v. Finn

Constitutional Law: Due Process Clause requires the district court to hold a separate evidentiary hearing when rejecting a magistrate judge's ruling that the prosecution had racial motivation for excluding jurors.

(Filing Date: 12-08-2011)

Pagayon v. Holder

Immigration: A pleading stage admission of an allegation supporting removal in an immigration removal proceeding, can be relied on by the IJ for determining removal, but removal is not supported if the admission is made in an evidentiary stage of the proceeding; a court could not sustain removal if there is insufficient proof of a conviction or allegation in the documentary evidence coupled with an evidentiary stage admission.

(Filing Date: 12-08-2011)

United States v. Tapia

Sentencing: A sentencing court errs when considering a drug treatment program in determination of the length of a sentence for transporting undocumented illegal aliens without presentation and for financial gain.

(Filing Date: 12-08-2011)

Gonzalez v. Wong

Habeas Corpus: When considering new evidence in the habeas corpus claim of a state prisoner under the Antiterrorism and Effective Death Penalty Act, a district court may stay proceedings to allow the defendant to present that evidence to the state court.

(Filing Date: 12-07-2011)

Kwong v. Holder

Immigration: A state court’s abstract of judgment is sufficient to establish the crime for which a defendant was convicted for purposes of finding a lawful permanent resident removable.

(Filing Date: 12-07-2011)

Red Lion Hotels Franchising Inc. v. MAK, LLC

Civil Law: The “Bill of Rights” contained in Washington’s Franchise Investment Protection Act is applicable as to a franchisor in Washington State and a Franchisee outside Washington State.

(Filing Date: 12-07-2011)

United States v. Grant

Sentencing: Rehabilitation is not an appropriate consideration for determining the length of imprisonment upon revocation of supervised release.

(Filing Date: 12-05-2011)

Andrich v. United States

Civil Procedure: Writs of mandamus brought to enforce the Crime Victims Rights Acts are reviewed for a district court's clear error and abuse of discretion.

(Filing Date: 12-02-2011)

Strategic Diversity v. Alchemix Corp.

Contract Law: A party wishing to rescind a contract, and claim negligent misrepresentation and fraud, must show economic damages.

(Filing Date: 12-02-2011)

Citizens for Balanced Use v. McAllister

Administrative Law: Since the Study Act requires the Forest Service to maintain areas designated as “study areas” in their 1977 wilderness character, the Service’s travel plan, which ignored the impact of increased volume from the use of motorized and mechanical vehicles on the current users’ ability to have solitude in an area designated as a “study area” under the Study Act, such a decision was arbitrary and capricious.

(Filing Date: 12-01-2011)

Flynn v. Holder

Criminal Law: Compensation for “hematopoietic stems cells” is not a violation of the National Organ Transplant Act.

(Filing Date: 12-01-2011)

Developmental Services Network v. Douglas

Disability Law: The State must gain federal approval for State Plan Amendments. However, injunctions against enforcement of unapproved plans may not be granted where plaintiffs fail to assert an unambiguous federal right under § 1983.

(Filing Date: 11-30-2011)

Lezama-Garcia v. Holder

Immigration: An unintentional departure does not constitute abandonment of an alien's NACARA § 202 application to adjust status and that alien cannot be removed until that application is decided.

(Filing Date: 11-30-2011)

United States v. Leal-Felix

Criminal Procedure: Traffic citations are not arrests under the traditional definition and therefore should not be included in calculating a sentence based on the Sentencing Guidelines.

(Filing Date: 11-30-2011)

Sacks v. Dietrich

Alternative Dispute Resolution: The federal district court has jurisdiction over state law claims against arbitrators when the central question of the case is the violation of regulatory authorities arbitration rules.

(Filing Date: 11-23-2011)

Steven Levin v. United States

Tort Law: Section 1089(e) of the Gonzalez Act does not waive the government’s sovereign immunity for common law battery claims.

(Filing Date: 11-23-2011)

United States v. Rudd

Sentencing: A sentencing judge commits procedural error when she imposes a 2000 foot residency condition, not otherwise found in the plea agreement, when the reason is not apparent from the record or the judge fails to articulate why the condition is appropriate.

(Filing Date: 11-23-2011)

Greater Yellowstone Coalition v. Wyoming

Wildlife Law: The U.S. Fish and Wildlife Service created adequate “regulatory mechanisms” to protect the Yellowstone grizzly bear as a recovered species but did not provide sufficient reasons as to why the reduction of a major food source would not negatively impact the grizzly population in order to uphold the ruling removing them from the threatened species list.

(Filing Date: 11-22-2011)

Albano v. Shea Holmes

Civil Procedure: Certified questions of state law ruled upon by the Arizona Supreme Court are applied both retroactively and prospectively.

(Filing Date: 11-21-2011)

Nachshin v. AOL

Civil Procedure: The principle of cy pres distributions in a class action lawsuit requires a relationship between the recipient of cy pres distribution and the underlying causes of action or the interests of the class; cy pres distributions to a Legal Aid Foundation and local chapters of the Boys and Girls Club of America do not necessarily meet the standards, and geographic representation of the class is part of the interests of the class.

(Filing Date: 11-21-2011)

NLRB v. Legacy Health System

Labor Law: The expeditious filing for enforcement of an order that does not affect the twenty-eight day window to file for reconsideration, does not constitute “extraordinary circumstance” sufficient to review an unpreserved issue pursuant to section 10(e) of the National Labor Relations Act, 29 U.S.C. § 160(e).

(Filing Date: 11-21-2011)

United States v. Beltran Valdez

Criminal Procedure: An order denying a request for replacement counsel is barred by the collateral order doctrine and therefore not immediately appealable.

(Filing Date: 11-21-2011)

United States v. Tadio

Sentencing: A Circuit Court has no jurisdiction to review the district court’s exercise of discretion in a sentencing reduction when the district court properly considers a defendant’s relative culpability, capacity for abiding by the law, and threat to society along with cooperation with authorities.

(Filing Date: 11-21-2011)

Lopez-Cardona v. Holder

Immigration: A conviction for residential burglary under California Penal Code § 459 constitutes a crime of violence because it is a felony "that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense," making it a "particularly serious crime" for the purposes of denying withholding of removal.

(Filing Date: 11-18-2011)

Ortiz v. Uribe

Habeas Corpus: During the administration of a polygraph examination, if an examiner uses an appeal to tell the truth for his family and children to appeal to emotionalism, and does not declare that the examiner is a law enforcement officer, this does not demonstrate that the defendant's will was overborne and the confession involuntary.

(Filing Date: 11-18-2011)

Stein v. Ryan

Post-Conviction Relief: It is the province of the courts, and not of state agencies, to determine the legality of prison sentences. An interim judicial decision may give a convict a right to have his sentence vacated, but it is the court hearing his case that gives him the right to be released.

(Filing Date: 11-18-2011)

Durand v. U.S. Department of Labor

Labor Law: A FECA beneficiary must deduct litigation costs from the gross recovery of a judgment received under 5 U.S.C. § 8132.

(Filing Date: 11-17-2011)

Rhodes v. Blades

Habeas Corpus: Motion for stay of execution based on a pending Supreme Court case is not granted if the petitioner waits until the deadline and is unable to demonstrate why the pending case would change the outcome for the petitioner.

(Filing Date: 11-17-2011)

Rhoades v. Reinke

Constitutional Law: In order to succeed in a motion for stay of execution based on the constitutionality of an execution protocol, the defendant must show that he is likely to succeed in his challenge in order to be entitled to a stay.

(Filing Date: 11-16-2011)

Rock Creek Alliance v. USF & W

Administrative Law: Reviewing a challenge to biological opinions issued by the U.S. Fish and Wildlife Services, the opinions will be upheld so long as they are not arbitrary, capricious, or in violation of the Endangered Species Act.

(Filing Date: 11-16-2011)

Connecticut Retirement Plans v. Amgen

Civil Procedure: In a securities fraud class action suit, a plaintiff using the fraud-on-the-market presumption to show reliance does not need to prove that the alleged misrepresentations were material in order to certify the class.

(Filing Date: 11-08-2011)

Campbell v. State of Washington

Constitutional Law: A government caretaker is not liable under § 1983 when there is not special relationship between the patient and the state, and when the state actors did not take an affirmative act to create a dangerous situation.

(Filing Date: 11-07-2011)

Ditullio v. Boehm

Civil Law: Under the civil remedy provision of the Trafficking Victims Protection Act, 18 U.S.C. § 1595, a victim may recover punitive damages since the provision “creates a cause of action that sounds in tort and punitive damages are available in tort actions under common law.” However, § 1595 does not apply retroactively to a perpetrator's conduct that occurs before § 1595's effective date.

(Filing Date: 11-07-2011)

Gutierrez v. Holder

Immigration: In deportation hearings, an IJ can look into a person’s past record for a reasonable period of time to determine their good moral character. In deportation hearings, IJ’s can make adverse inferences based on a person’s silence without violating Fifth Amendment rights.

(Filing Date: 11-07-2011)

Roberts v. McAfee

Tort Law: In malicious prosecution cases, the plaintiff carries a burden of showing that undisputed facts underlying criminal charges do not amount to probable cause. Also, California Civil Code § 3425.3 precludes claims that a failure to remove a defamatory post constitutes a republication of the defamatory statement.

(Filing Date: 11-07-2011)

United States v. Ceballos

Sentencing: Since it is up to the discretion of the Bureau of Prisons as to where the confinement of an inmate is to take place, the denial of a recommendation for a specific housing designation is not a final order that is appealable under 28 U.S.C. § 1291 or 18 U.S.C. § 3742.

(Filing Date: 11-07-2011)

Glenn v. Washington County

Civil Procedure: Summary judgment is appropriate only when there is no genuine issue of material fact. In the case of qualified immunity for police officers the actions of the officer should be objectively reasonable in light of the facts and circumstances.

(Filing Date: 11-04-2011)

Kairy v. SuperShuttle Int’l

Administrative Law: The district court’s employee status determination would not interfere or frustrate the regulatory authority of the California Public Utilities Commission over passenger stage corporations because policy determinations regarding employment status made by the PUC are not synonymous with California state law.

(Filing Date: 11-03-2011)

Mirmehdi v. United States

Immigration: Illegal immigrants having used alternative remedies are not entitled to money damages for constitutional violations.

(Filing Date: 11-03-2011)

United States v. Harvey

Parole and Post-Prison Supervision: In an order finding defendant in violation of his supervised release conditions based upon his use of marijuana, the Circuit Court held that "[w]hatever else 'order' might mean under § 844(a) of the Controlled Substances Act, it does not include a mere recommendation from a physician pursuant to the Compassionate Use Act."

(Filing Date: 11-03-2011)

Garcia v. Holder

Immigration: Immigrants paroled into the United States as a "Special Immigrant Juvenile, under 8 U.S.C. § 1255(h), qualif[y] as [admitted] ‘in any status’ for the purposes of 8 U.S.C. § 1229(a)(2)."

(Filing Date: 11-02-2011)

Conahan v. Sebelius

Insurance Law: Medicare Advantage Plans are not required to reimburse a patient when she unilateraly seeks the surgical removal of a tumor, after chemotherapy was found to be “available, accessible, and adequate” by the healthcare provider.

(Filing Date: 11-01-2011)

United States v. Sanchez

Criminal Procedure: A closing argument which asks the jury to consider the social ramifications of a nonguilty verdict may create an overly prejudicial effect and result in reversal, if there are not proper steps taken to mitigate the effect.

(Filing Date: 11-01-2011)

Small v. Avanti Health Systems, LLC

Labor Law: A successor employer's failure to negotiate with a union is at least as harmful as an employer who negotiates in bad faith and is grounds for an injunctive relief.

(Filing Date: 10-31-2011)

Boyer v. Belleque

Habeas Corpus: In reviewing the petition for a writ of habeas corpus, the court looks first to state law to determine the elements of the crime and then to the federal question of whether the state court was objectively unreasonable in concluding the evidence was sufficient to support its decision.

(Filing Date: 10-28-2011)

United States v. Newman

Criminal Law: Under 18 U.S.C. § 982(a)(2) and 28 U.S.C. § 2461(c), where the government proves the elements required for a judgment of criminal forfeiture, the district court must enter a judgment for criminal forfeiture in the amount of the proceeds of the crime; the district court does not have discretion to reduce or eliminate the judgment.

(Filing Date: 10-28-2011)

United States v. Wilson

Standing: Under U.S.C. § 853(n)(2) any person may petition the court for the property seized as a result of a fraudulent investment investigation, with the exception of the defendant, based on Congressional negation of the zone of interests test.

(Filing Date: 10-28-2011)

Miller v. City of Los Angeles

Civil Procedure: (1) Where conduct was not violative, a defendant-counsel's mistaken concession or apology for a violation does not create a basis for sanctions. (2) Counsel does not violate an in limine order precluding statements that a decedent was armed, when counsel argues that an officer reasonably believed a decedent was dangerous because the decedent had just shot someone.

(Filing Date: 10-27-2011)

Schultz v. Tilton

Habeas Corpus: A jury instruction which allows a jury to consider a defendant’s prior bad acts if found by a preponderance of the evidence, does not misstate the prosecutor’s burden of proof.

(Filing Date: 10-27-2011)

Seeboth v. Mayberg

Civil Commitment: Despite changes to California’s Sexually Violent Predators Act (“SVPA”) brought about by Proposition 83, a properly filed renewal petition and the final resolution to a jury proceeding to commit a sexually violent predator under the SVPA renders moot an appeal from a denial of a federal habeas petition seeking release from custody.

(Filing Date: 10-27-2011)

Taylor v. Comm. of Soc. Sec. Admin.

Administrative Law: Further proceedings to determine the award of disability insurance benefits are in order when the Administrative Law Judge and Appeals Council do not fully consider all submitted, relevant medical evidence and testimony favorable to the claimant’s alleged disability.

(Filing Date: 10-27-2011)

United States v. Williams

Criminal Law: The plain language of 18 U.S.C. Sec. 2251(d)(1)(A) does not contain any personal production element, nor does any tense of the wording show any congressional intent to include such an element to convict a defendant under this statute. .

(Filing Date: 10-27-2011)

Carrillo-Yeras v. Astrue

Administrative Law: When the Social Security Administration ("SSA") needlessly delays for over a year in reopening a claim without a showing that it “diligently pursued” investigation, it can not reverse any decision that was beneficial to applicant.

(Filing Date: 10-25-2011)

Gonzales v. U.S. Department of Homeland Security

Immigration: The Ninth Circuit's opinion Duran Gonzales II , finds that the Plaintiffs are ineligible for adjustment of status as the case is applied retroactively to those who applied for adjustment prior to the opinion.

(Filing Date: 10-25-2011)

Sarei v. Rio Tinto

Tort Law: Since plaintiff’s claims of genocide and crimes against humanity are claims for violation of internationally accepted norms that are “specific, universal and obligatory,” those claims, under Sosa , fall in the limited category of Alien Tort Statute claims that receive federal jurisdiction.

(Filing Date: 10-25-2011)

Arsdi v. Holder

Immigration: When an alien fails to raise an issue to the BIA, nor claim that the IJ's decision "contains a factually invalid statement of law or fact," the appellate court has no jurisdiction to consider the claim as the alien did not exhaust the issue in the proper administrative forum.

(Filing Date: 10-24-2011)

Doe v. Busby

Habeas Corpus: A jury instruction that “impermissibly lowers the burden of proof” requires structural error review.

(Filing Date: 10-24-2011)

United States v. Reveles

Criminal Procedure: It is not a violation of double jeopardy rights for a defendant to be punished in a non-judicial punishment proceeding and a federal prosecution proceeding.

(Filing Date: 10-24-2011)

United States v. Rizk

Criminal Procedure: Where an indictment alleges a conspiracy, summary evidence under Federal Rule of Evidence 1006 that includes acts not specified in the indictment, does not constitute “other acts” evidence under Rule 404(b), as such evidence is offered to show the full scope of that conspiracy.

(Filing Date: 10-19-2011)

United States v. Wilkes

Criminal Procedure: An honest services fraud conviction supported by a separate bribery count, is not insufficient for reliance on theories other than bribery or kickbacks. In addition, there is no merger in a money laundering conviction involving concealment because the crime concerns the gross receipts and not merely the profits of the underlying crime.

(Filing Date: 10-19-2011)

Fossen v. Blue Cross and Blue Shield

Insurance Law: ERISA preempts state HIPPA laws for the purpose of subject matter jurisdiction and state law causes of action on the merits. Federal ERISA does not preempt state law claims for relief under separate state unfair insurance practice laws that prohibits charging different policy premiums to similarly situated individuals.

(Filing Date: 10-18-2011)

Smallwood v. Allied Van Lines

Alternative Dispute Resolution: The Carmack Amendment does not necessarily fail for foreign arbitration clauses, and a shipper may agree to arbitrate the claim after the dispute arises with an interstate motor carrier but may not be forced to at the time of contracting; Congress intended Carmack to be a minor exception to the Federal Arbitration Act (“FAA”) by enacting provisions of the Amendment after the passage of the FAA.

(Filing Date: 10-18-2011)

Mattos v. Agarano

Criminal Procedure: Police are entitled to qualified immunity for claims of use of excessive force involving tasers, when not all reasonable police officials would find the particular set of circumstances a use of excessive force.

(Filing Date: 10-17-2011)

United States v. Carper

Criminal Procedure: In order to qualify for the base offence level of fourteen, items illegally exported that appear on the United States Munitions List, 22 C.F.R § 121.1 must meet the definition of “firearm.” Also, district courts are not required to depart from the U.S. Sentencing Guideline Manual § 2M5.2 on policy grounds if they have no disagreement with the Manual’s recommendations.

(Filing Date: 10-14-2011)

Montana Consumer Counsel v. FERC

Administrative Law: FERC's Order 697, which establishes a market-based regulatory policy, does not exceed its authority under the FPA because FERC has enhanced its upfront tests for market power and oversight of market-based rates.

(Filing Date: 10-13-2011)

United States v. Gregory Reyes

Criminal Law: When a defendant signs off on granting stock options to himself, evidence of fraud presented to the jury was not false because the jury was informed that the defendant was not the one who ultimately approved granting stock options.

(Filing Date: 10-13-2011)

United States v. McEnry

Criminal Law: § 2B1.1 of the Sentencing Guidelines, not § 2A5.2, is most analogous to the crime of serving as an airman without an airman's certificate.

(Filing Date: 10-13-2011)

United States v. Urena

Criminal Law: It is not an abuse of discretion to deny a self-defense jury instruction to an inmate who attacks another inmate after being called a derogatory term. The elimination of "recency points" does not apply retroactively .

(Filing Date: 10-13-2011)

James v. Schriro

Habeas Corpus: The Court reviews petitioner's claims for habeas corpus relief, finding ineffective assistance of counsel to exist where a defendant's counsel fails to investigate and present clear mitigating factors at a penalty phase trial when there is a "reasonable probability" that effective presentation of those factors could have overcome the aggravating factors that instead resulted in the imposition of a death sentence.

(Filing Date: 10-12-2011)

Russell Country Sportsmen v. USFS

Environmental Law: The Montana Wilderness Study Act of 1977 provides for a minimum standard for maintaining wilderness character. A final environmental impact statement will not violate the National Environmental Policy Act if the adopted plan falls within a range of alternatives and does not make any substantial changes.

(Filing Date: 10-12-2011)

Meza-Vallejos v. Holder

Immigration: When an alien’s sixty-day voluntary departure period falls on a day in which an immigrant would be unable to “file a motion for affirmative relief with the BIA, that day does not count in the voluntary departure period if . . . the immigrant files on the first available day a motion that would either have tolled, automatically withdrawn, or otherwise affected his request for voluntary departure.”

(Filing Date: 10-11-2011)

Carrera v. Ayers

Civil Procedure: An appellant fails Strickland (which requires "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance") when defense counsel does not bring a Wheeler objection to challenge a prosecutor's preemptory challenge.

(Filing Date: 10-04-2011)

Suzlon Energy v. Microsoft Corporation

Evidence: A foreign citizen is a “person” whose emails are protected by the statutory framework of §§ 2702(a)(1), 2510(15), § 2510(13) of the Electronic Communications Privacy Act, therefore an email service provider is not compelled to produce documents under a § 1782 order (an order to obtain evidence for use in a foreign or international tribunal).

(Filing Date: 10-03-2011)

United States v. Gilchrist

Sentencing: To qualify for a sentencing guidelines enhancement under U.S.S.G. § 3C1.1 a defendant need only willfully engage in conduct to obstruct a potential investigation and need not know that an investigation is pending.

(Filing Date: 10-03-2011)

United States v. King

Civil Law: False statements made to a state agent while investigating violations of the Safe Drinking Water Act may fall within 18 USC 1001(a)(2) “making materially false statements in a matter within the jurisdiction of the United States”.

(Filing Date: 10-03-2011)

Washington State v. Chimei Innolux Corp.

Civil Procedure: Parens Patriae suits filed by state Attorneys General may not be removed to federal court because the suits are not "class actions" within the plain meaning of the Class Action Fairness Act of 2005.

(Filing Date: 10-03-2011)

United States v. Kortlander

Constitutional Law: There is a qualified common law right of access to warrant materials after a criminal investigation has been terminated.

(Filing Date: 09-30-2011)

United States v. Krupa

Criminal Procedure: A reviewing court should give a magistrate’s determination of probable cause great deference when determining whether, under the totality of the circumstances, the information provided to the magistrates created a fair probability that contraband or evidence would be found.

(Filing Date: 09-30-2011)

Log Cabin Republicans v. United States

Constitutional Law: Where a statute is repealed while an appeal challenging the constitutionality of that statute is pending, the suit is moot on appeal because “there is no longer a present, live controversy of the kind that must exist” for a reviewing federal court to reach the merits.

(Filing Date: 09-29-2011)

Apple Inc. v. Psystar Corp.

Copyright: A copyright misuse defense is invalid when a licensing agreement restricts the use of its own software and not the development of competing software.

(Filing Date: 09-28-2011)

Degelmann v. Advanced Medical Optics

Standing: Injury in fact under Cal. Bus. &amp; Prof. Code § 17204 is satisfied when “the consumer has purchased a product that he or she paid more for that he or she otherwise might have been willing to pay if the product had been labeled accurately.”

(Filing Date: 09-28-2011)

United States v. Barraza-Lopez

Criminal Procedure: The Speedy Trial Act’s thirty-day window to file charges after an arrest does not bar charges that have been dropped without prejudice from later being refiled.

(Filing Date: 09-28-2011)

United States v. Stonehill

Civil Procedure: In order to commit fraud on the court, government misrepresentations in civil trials must be so substantial that they undermine the judicial process.

(Filing Date: 09-28-2011)

American Trucking Associations v. Los Angeles

Civil Law: Federal law preempts the employment provision of the Port of Los Angeles concessions agreements with drayage truck carriers because the law interferes with third party employment relationships.

(Filing Date: 09-26-2011)

Earl v. Nielsen Media Research

Employment Law: When analyzing whether someone is similarly situated in an age discrimination case, the proper inquiry is not whether he or she are outside the protected class, but whether the comparable employees are significantly younger then the claimant.

(Filing Date: 09-26-2011)

Haile v. Holder

Immigration: In denying a Convention Against Torture deferral, the Board of Immigration Appeals must base its decisions on substantial evidence, not factual inaccuracies or hypothesized assumptions not grounded in the record.

(Filing Date: 09-26-2011)

Jiang v. Holder

Immigration: The IJ erred in not allowing the petitioner to authenticate documents through his own testimony, when such documents would be substantial evidence in demonstrating his eligibility for adjustment of status. The IJ and BIA also erred in denying a reasonable short continuance when petitioner was not given adequate notice that documents would require authentication through a United States consulate in China.

(Filing Date: 09-26-2011)

Silva v. Di Vittorio

Constitutional Law: A prisoner’s right to access the court under the First and Fourteenth Amendments includes a right “to litigate claims challenging their sentences or the conditions of their confinement to conclusion without active interferences by prison officials.”

(Filing Date: 09-26-2011)

Stokley v. Ryan

Habeas Corpus: Under 28 U.S.C. § 2254, where a criminal defendant has failed to make a colorable claim of ineffectiveness of counsel, the defendant is not entitled to a new evidentiary hearing in federal court regardless of whether the defendant has exhausted state court appeals.

(Filing Date: 09-26-2011)

United States v. Chung

Evidence: The government’s failure to turn over exculpatory information does not violate its duty under Brady v. Maryland, when the evidence against the defendant is so overwhelming that the exculpatory information would not reasonably have resulted in a different trial outcome.

(Filing Date: 09-26-2011)

United States v. Perelman

Constitutional Law: The statute 18 U.S.C. § 704(a) applies to the “unauthorized wearing of medals only where the wearer intends to deceive.” By only outlawing “legitimately criminal conduct,” the statute is not overbroad, nor does it infringe on the constitutionally protected “pure speech” ways in which such medals may be worn.

(Filing Date: 09-26-2011)

United States v. Sykes

Criminal Procedure: Since a mandatory statutory minimum sentence applied to a defendant and was included in the amended Sentencing Guidelines, the district court’s refusal to lower the defendant’s sentence was proper and did not constitute a new sentence, therefore it neither violated the defendant’s Sixth Amendment rights nor invoked the Double Jeopardy Clause, and since the Fair Sentencing Act is not retroactive, the defendant’s due process rights were not violated.

(Filing Date: 09-26-2011)

Al Haramain Islamic v. U.S. Dept of Treasury

Constitutional Law: The use of confidential information does not violate due process, however the government must attempt to mitigate the impact caused by using confidential information.

(Filing Date: 09-23-2011)

Confederated Tribes v. Gregoire

Indian Law: Indian tax immunity is not violated by the State of Washington’s cigarette excise tax RCW § 82.24, when tribal retailers are required to tax non-Indian purchasers of cigarettes, because “legal incidence,” the obligation to pay the tax, is intended to fall on the consumer. An absence of a statutory pass through provision is not outcome determinative to the inquiry.

(Filing Date: 09-23-2011)

Gonzales v. Arrow Financial Services

Civil Law: Debt collection practice will be judged by the least sophisticated debtor standard, which protects those of below average intelligence but presumes a basic level of understanding. Unfair collection practices may also be compensated under both federal and state law.

(Filing Date: 09-23-2011)

United State v. Rivera

Sentencing: Defendant’s judicially-noticeable documents clearly and unequivocally established that his petty theft conviction “was based upon his plea of guilty to conduct that constitutes a generic theft offense.” As the term of imprisonment was at least one year for the theft offense conviction, the defendant’s “offense level was correctly increased by eight levels, under U.S.S.G. § 2L1.2(b)(1)(C).”

(Filing Date: 09-23-2011)

Cole v. Holder

Immigration: To establish a Convention Against Torture claim, one must show that it is more likely than not he or she will be tortured. Such a claim should review the overall risk of being tortured, rather than only the individual potential sources of torture.

(Filing Date: 09-22-2011)

GoPets Ltd v. Hise

Civil Law: Re-registration by a new registrant of an internet domain name is not a “registration” under § 1125(d)(1) of the Anticybersquatting Consumer Protection Act (“ACPA”).

(Filing Date: 09-22-2011)

Prellwitz v. Sisto

Habeas Corpus: A district court did not reach a final decision when it adopted a magistrate’s recommendation on a habeas corpus petition that failed to stipulate a specified time of release for a prisoner.

(Filing Date: 09-22-2011)

In the Matter of Roman Catholic Archbishop

Civil Procedure: Public safety concerns can mandate that private information of a priest, not party to the lawsuit, may be released to the public, but “scandalous” portions must be redacted.

(Filing Date: 09-21-2011)

Maya v. Centex Corporation

Standing: Plaintiff should be given the opportunity to amend a complaint in order to establish a “causal connection” between Defendant’s actions and the alleged injury before the court dismisses for lack of constitutional standing.

(Filing Date: 09-21-2011)

Kolev v. Porsche Cars North America

Administrative Law: The FTC’s interpretation of the MMWA’s bar of mandatory pre-dispute binding arbitration is a reasonable interpretation and construction of the statute.

(Filing Date: 09-20-2011)

Maronyan v. Toyota Motor Sales

Civil Procedure: The Magnuson-Moss Warranty Act’s exhaustion requirement does not use sweeping and direct language demonstrating clear congressional intent to mandate loss of subject matter jurisdiction.

(Filing Date: 09-20-2011)

United States v. Baker

Criminal Procedure: 42 U.S.C. § 14135a(a)(1) applies to “individuals in custody” and § 14135a(a)(2) applies to “individuals on release, parole, or probation” therefore, subsection (a)(1) does not authorize the collection of a probationer’s DNA.

(Filing Date: 09-20-2011)

United States v. Cristopher Ibarra-Pino

Criminal Law: When asserting a duress defense, a defendant’s failure to offer evidence that he or she could not have safely contacted law enforcement authorities goes to the third element of the defense, a reasonable opportunity to escape the threatened harm, and a lack of a prima facie showing precludes the defense and the jury instruction.

(Filing Date: 09-20-2011)

United States v. Dugan

Constitutional Law: 18 U.S.C. § 922(g)(3), which prohibits controlled substance users or addicts from shipping or possessing firearms and ammunition, does not violate the Second Amendment.

(Filing Date: 09-20-2011)

Intermountain Fair Housing Council v. Boise Rescue Mission Ministries

Civil Law: Faith-based homeless shelters and rehabilitation facilities are permitted to demonstrate preference based on religion because of the religious exemption 42 U.S.C. § 3607(a) provides to §3604's anti-discrimination provisions.

(Filing Date: 09-19-2011)

Luna v. Holder

Administrative Law: The Federal register provides sufficient notice to an alien seeking relief from a removal order; an alien’s due process rights are not infringed when a judge fails to advise the alien of his or her right to seek relief.

(Filing Date: 09-19-2011)

Sherman v. Securities and Exchange Commission

Bankruptcy Law: “11 U.S.C. § 523(a)(19) prevents the discharge of debts for securities-related wrongdoings only in cases where the debtor is responsible for that wrongdoing. Debtors who may have received funds derived from a securities violation remain entitled to a complete discharge of any resulting disgorgement order.”

(Filing Date: 09-19-2011)

Comite De Jornaleros v. City of Redondo

Constitutional Law: A city ordinance that prevents a person from soliciting cars on the sidewalk is facially unconstitutional if it is not narrowly tailored to restrict the types of solicitation sought to be discouraged.

(Filing Date: 09-16-2011)

Ellis v. Costco Wholesale

Civil Procedure: 28 U.S.C. § 1453(b), created by The Class Action Fairness Act of 2005 (The Act), allows only original defendants to remove an action to federal court.

(Filing Date: 09-16-2011)

Nichols v. Dancer

Constitutional Law: When a school district fails to produce evidence that their former employee was disloyal, disrupted the office, or was reasonably likely to disrupt the office in the future, and sanctioned her for showing up at a public meeting and sitting next to another former employer, the sanctioned employee’s First Amendment protection outweighs the district’s interest in workplace efficiency.

(Filing Date: 09-15-2011)

Samueli v. CIR

Tax Law: A securities loan with a fixed term entered for the purposes of avoiding taxable income does not qualify for non-recognition treatment.

(Filing Date: 09-15-2011)

Habibi v. Holder

Immigration: Regarding cancellation of removal under 8 U.S.C. § 1229b(b)(3), (1) when defining “aggravated felony” under 8 U.S.C. § 1101(a)(43), one year equals 365-days regardless that a sentence is served during a 366-day leap year; (2) whether a state conviction is a “misdemeanor” is irrelevant to determining an “aggravated felony” under federal sentencing law; and (3) neither due process nor equal protection are offended by (a) a circuit split on an issue; or (b) where 8 U.S.C. § 1182(h) denies § 212(h) waivers to lawful permanent residents (LPR) convicted of aggravated felonies, though not necessarily to similar non-LPR’s.

(Filing Date: 09-14-2011)

In re: Brenda Marie Jones

Bankruptcy Law: The statutory suspension provision under 11 U.S.C. § 507(a)(8) does not apply to a tax debt, which would otherwise be discharged in a Chapter 7 bankruptcy proceeding, where the debtor’s estate property re-vested after a prior bankruptcy proceeding and before the tax debt came due.

(Filing Date: 09-14-2011)

Trigueros v. Adams

Habeas Corpus: Compelling factual circumstances can indicate that a court denied a petition on the merits instead of as untimely when the court is silent on the issue.

(Filing Date: 09-14-2011)

United States v. Ayala-Nicanor

Criminal Procedure: A categorical crime of violence warrants an increased offense level during the sentencing phase if the statutory definition complies with the federal definition and no state cases have applied the statute more broadly than the federal definition.

(Filing Date: 09-14-2011)

United States v. Ruiz-Apolonio

Criminal Law: A sentencing court did not err when it denied variances requested by a defendant “to compensate for the inclusion of ‘recency’ points and the supposed differences between the Sentencing Commission’s and the Bureau of Prison’s methods for calculation good time credits.

(Filing Date: 09-14-2011)

United States v. Tafoya-Montelongo

Sentencing: A prior conviction for attempted sexual abuse of a child in state court may constitute a crime of violence for sentencing purposes under federal guidelines.

(Filing Date: 09-14-2011)

E.T. v. Cantil-Sakauye

Constitutional Law: The abstention doctrine does not allow the Court to adjudicate complaints were the relief sought would require the Federal Court to investigate into the administration and operation of the state’s juvenile court system.

(Filing Date: 09-13-2011)

Johnson v. Poway Unified School District

Constitutional Law: Restrictions by a public school on a teacher’s classroom speech in his or her role as a teacher before a captive audience of students, is subject to the “sequential five-step” inquiry under Pickering, not a forum-based analysis.

(Filing Date: 09-13-2011)

Local Joint Executive Board v. NLRB

Employment Law: In right-to-work states the unilateral termination of a dues-checkoff is a violation of the NLRA for refusing to bargain to agreement or impasse.

(Filing Date: 09-13-2011)

Moore v. Maricopa County Sheriff’s Office

Criminal Procedure: Under 28 U.S.C. § 1915(g), the dismissal of an inmate’s suit based on lack of subject matter jurisdiction does not qualify as a “strike” against acquiring forma pauperis status.

(Filing Date: 09-13-2011)

Portrero Hills Landfill v. County of Solano

Constitutional Law: Private interest groups bringing a suit concerning enforcement of a ballot measure does not implicate comity or federalism issues under the Younger doctrine.

(Filing Date: 09-13-2011)

United States v. Alvarez-Moreno

Constitutional Law: An issue of double jeopardy arises when, after a guilty verdict in a bench trial, a judge orders a new trial after recognition that the defendant did not properly waive his right to a trial by jury.

(Filing Date: 09-13-2011)

Chevron U.S.A. v. M & M Petroleum Services

Civil Law: Under 15 U.S.C. § 2805(d), a franchisee can open itself up to liability for attorney’s fees by filing a frivolous counterclaim.

(Filing Date: 09-12-2011)

Fiore v. Walden

Civil Procedure: Personal jurisdiction in Nevada was found over a Georgia state DEA agent using the three-part Schwarzenegger test and the Calder-effects test, after he knowingly seized plaintiffs funds through falsified probable cause, claiming their legitimate gambling winnings was money used in the drug trade.

(Filing Date: 09-12-2011)

Louis Vuitton Malletier v. Akanoc Solutions

Civil Procedure: When determining statutory damages under 17 U.S.C. § 504(c) and 15 U.S.C. § 1117(c) against defendants found joint and severally liable, the court may only award once for each contributory infringement, such that the plaintiff's damages for each infringement will not be multiplied by the number of defendants.

(Filing Date: 09-09-2011)

Santiago-Rodriguez v. Holder

Immigration: In a deportation proceeding, a client is permitted to withdraw an admission of allegations made by client’s attorney where the admission is the product of ineffective assistance of counsel.

(Filing Date: 09-09-2011)

Solis v. State of Washington DSHS

Employment Law: Social workers do not come within the Fair Labor Standards Act “learned professional” exemption for overtime pay because the position requires course work in any of several fields broadly related to the position and does not require a prolonged course of “specialized intellectual instruction.”

(Filing Date: 09-09-2011)

Adams v. United States

Civil Law: Under the Federal Tort Claims Act, a plaintiff has six months to file a lawsuit after receiving a denial letter via certified or registered mail. Failure to comply with this filing requirement forever bars the claim from federal court.

(Filing Date: 09-08-2011)

Michael P. v. Department of Education

Civil Law: By relying solely on a “severe discrepancy” model and not allowing for other factors to be considered, Hawaii DOE procedurally violated the Individuals with Disabilities Education Act.

(Filing Date: 09-08-2011)

Singh v. Holder

Immigration: “Extraordinary circumstances” in an untimely asylum application apply to the reason the application was delayed rather than the reason why the application was filed.

(Filing Date: 09-08-2011)

United States v. Santini

Evidence: A psychological expert witness cannot form an opinion on data that requires interpretation by an expert in law enforcement record keeping if no interpretation was previously performed.

(Filing Date: 09-08-2011)

Cervantes v. Countrywide Home Loans

Contract Law: In order to state a claim for the use of MERS under the Truth in Lending Act 15 U.S.C. § 1601, a plaintiff must allege that detrimental reliance upon misrepresentations about the Mortgage Electronic Registration System (“MERS”) caused damages to the plaintiff.

(Filing Date: 09-07-2011)

Sivak v. Hardison

Criminal Procedure: Prosecutors, that knew or should have known that given material information was false or material information was withheld, violate a defendant’s due process rights according to the Brady and Napue standards.

(Filing Date: 09-07-2011)

United States v. Rodgers

Criminal Procedure: Although a stop made by a police officer was of a longer duration, it was justified since there continued to arise new grounds for suspicion of illegal or criminal activity, however, since there were no objective facts leading the officer to believe that a passenger’s identification may be inside of the car he had stopped, his search of the passenger compartment was improper and violative of the Fourth Amendment.

(Filing Date: 09-07-2011)

Carrico v. City of San Francisco

Constitutional Law: In order to establish standing for a claim of violation of the First Amendment based upon free speech, there must be some description of the restricted speech or conduct.

(Filing Date: 09-06-2011)

Diaz v. Brewer

Constitutional Law: A statute limiting public employee benefits to spouses of heterosexual couples and eliminating coverage for domestic partners violates equal protection.

(Filing Date: 09-06-2011)

United States v. Cisneros-Resendiz

Immigration: An Immigration Judge (IJ) has not prejudiced a defendant by not warning them of the effects of a withdrawal of an application for admission when it was unlikely the judge would have granted application for admission. Without a showing of prejudice, the defendant is precluded from a collateral attack on any removal orders.

(Filing Date: 09-06-2011)

Ybarra v. McDaniel

Habeas Corpus: The Court reviews and affirms the denials of multiple habeas corpus petitions by a man sentenced to death for a “1979 kidnapping, rape and murder.”

(Filing Date: 09-06-2011)

De Osorio v. Mayorkas

Immigration: Under Chevron, 8 U.S.C. § 1153(5)(3) “is ambiguous as to whether derivative beneficiaries of F3 and F4 family preference petitions are entitled to automatic conversion or priority date retention,” therefore, “aged-out aliens” of lawful permanent residents are not entitled to automatic conversion or priority date retention.

(Filing Date: 09-02-2011)

Payton v. Cullen

Criminal Law: A death sentence for rape, murder, and two attempted murders will not be overturned when a challenge to California’s lethal injection protocol fails, claims counsel rendered ineffective assistance fail, there was no Brady violation, and the cumulative effect of any errors does not render the trial unfair.

(Filing Date: 09-02-2011)

R.R. Street & Co. Inc. v. Transport Insurance Co.

Civil Procedure: Having discretion under Wilton/Brillhart, the district court properly granted a party’s motion for remand; since the district court was concerned with piecemeal litigation and impeding the progress of a prior action, the district court properly granted a motion to dismiss.

(Filing Date: 09-02-2011)

Samuels v. Holland American Line-USA Inc.

Tort Law: A cruise line does not owe a duty to warn passengers about the dangers of a local beach because wading or swimming in the ocean are not actions uniquely associated with maritime travel.

(Filing Date: 09-02-2011)

Alvarez v. Chevron Corporation

Civil Law: When a retailer’s gasoline pump conforms to relevant California consumer protection laws, the company is entitled to safe harbor from liability under the same laws.

(Filing Date: 09-01-2011)

Jackson v. Ryan

Civil Procedure: Jury instructions that read “homicide need not have been committed to perpetuate the felony…It is enough if the felony and the killing were part of the same series of events,” are unconstitutional because a reasonable jury would interpret them as negating the need to find the required element of felony murder that the killing was committed in furtherance of a felony.

(Filing Date: 09-01-2011)

Li v. Holder

Immigration: Where the BIA denies relief and remands pursuant to 8 C.F.R. § 1003.1(d)(6) for background checks required for alternative relief, the Ninth Circuit has jurisdiction to consider an appeal of the final order denying relief.

(Filing Date: 09-01-2011)

United States v. Hunt

Sentencing: To sustain an increased penalty beyond the statutory maximum for intent to distribute cocaine, either the defendant must admit his or her intent to possess cocaine or the government must prove the intent to possess cocaine to a jury beyond a reasonable doubt.

(Filing Date: 09-01-2011)

United States v. Lafley

Constitutional Law: A supervised release condition that prohibits the use of a controlled substance by a convicted drug felon does not violate the Religious Freedom Reformation Act because it serves a compelling government interest using the least restrictive means.

(Filing Date: 09-01-2011)

Lockett v. Erickson

Constitutional Law: Heck v. Humphrey does not bar a 42 U.S.C. § 1983 claim when a defendant pled nolo contendere after the superior court denied his suppression motion and no evidence was introduced against him, therefore his conviction “derive[d] from [his] plea, not from [a] verdict obtained with supposedly illegal evidence.”

(Filing Date: 08-31-2011)

Lyon v. Chase Bank USA

Civil Law: The mistaken collection of a previously paid debt in violation of the Fair Credit Billing Act (“FCBA”) may allow recovery under Oregon’s Unlawful Debt Collection Practices Act (“UDCPA”) regardless of whether or not there was an actual debt or not.

(Filing Date: 08-30-2011)

United States v. Crowder

Criminal Procedure: Under the “knowingly” provision of the Sex Offender Registration and Notification Act (“SORNA”), the government need only prove that a convicted sex offender, who subsequently failed to register or update his or her registration with the state, knew he or she was required to so register and knowingly failed to do so. The government does not need to prove that the offender also knew failure to so register would also violate the provisions of SORNA.

(Filing Date: 08-30-2011)

International Union v. J & R Flooring

Employment Law: The district court has jurisdiction to compel arbitration pursuant to an arbitration clause, to decide whether a union has established majority representation through a card check procedure stipulated by the collective bargaining agreement.

(Filing Date: 08-29-2011)

Estate of Amaro v. City of Oakland

Tort Law: A statute of limitation defense will succumb to equitable estoppel when defendants misrepresent and withhold facts material to the cause of action.

(Filing Date: 08-28-2011)

Harlick v. Blue Shield of California

Insurance Law: California’s Mental Health Parity Act requires that a plan within the scope of the Act cover medically necessary residential treatment for mental disorders including anorexia nervosa.

(Filing Date: 08-26-2011)

Manufactured Home v. San Diego County

Civil Law: A California state-law claim of trade libel must contain a prima facie case that the “substance” of the statement(s) is false.

(Filing Date: 08-26-2011)

SEC V. Gewerter

Civil Procedure: On an issue of first impression the Ninth Circuit held that “on the basis of the clear language of Rule 45, we must hold that the court the issued the subpoena, and not the court where the underlying action is pending, can entertain a motion to quash or modify a subpoena.”

(Filing Date: 08-26-2011)

Valadez-Lopez v. United States

Civil Law: Under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2675, failure by an agency to make a final disposition on a claim within six months may be deemed a final denial. Therefore exhausted, a plaintiff may amend an existing complaint that asserts non-FTCA claims and to name the United States in an FTCA cause of action.

(Filing Date: 08-26-2011)

Young v. County of Los Angeles

Criminal Procedure: Under the Fourth Amendment unreasonable seizure clause, use of pepper spray and baton blows constitutes excessive force when the severity of the crime is low, there is no threat of violence, there is no resistance to arrest, and there are other less invasive means to accomplish police interests.

(Filing Date: 08-26-2011)

Barnes v. USDOT

Environmental Law: The addition of an airport runway raises "substantial questions [ ] as to whether a project [ ] may cause significant degradation of some human environmental factor," including indirect effects from increased demand.

(Filing Date: 08-25-2011)

Chism v. Washington State

Civil Law: Qualified immunity is not available to government employees in a § 1983 claim based on judicial deception when the plaintiff can substantially prove, that but for the dishonesty of the officers, the warrant would not have been issued.

(Filing Date: 08-25-2011)

Khoshfahm v. Holder

Immigration: The government has the burden to demonstrate by clear, unequivocal and convincing evidence that Legal Permanent Resident parents lacked the intent to return to the United States in order to impute such intention to their children.

(Filing Date: 08-25-2011)

McCants v. Betlach

Administrative Law: In order to be protected by cost-sharing restrictions of the Medicaid Act, plaintiffs must be both eligible for Medicaid coverage and part of the State’s plan.

(Filing Date: 08-24-2011)

United States v. Barajas-Alvarado

Immigration: An expedited removal proceeding order is valid as a predicate element under 8 U.S.C. § 1326 so long as the proceeding was fundamentally fair.

(Filing Date: 08-24-2011)

United States v. Matus-Zayas

Criminal Procedure: The statute 18 U.S.C. § 3144 does not abrogate the constitutional requirement of establishing a material witness unavailable prior to allowing preserved video-taped testimony at trial, when material witnesses have been released to their country of origin and a subpoena for their presence would be impracticable.

(Filing Date: 08-24-2011)

Napoliello v. Commissioner of Internal Revenue

Tax Law: When deficiency requires a partner-level determination, an affected item notice of deficiency will be sufficient. And, “determination as to a partnership's validity...falls within the definition of a partnership item” as it pertains to the Tax Court's jurisdiction to review FPAA determinations.

(Filing Date: 08-23-2011)

Withrow v. Bache Halsey Stuart Shield

Insurance Law: A person does not have reason to know that their claim has been denied when the provider fails to tell the client that accepting further payments will bar future action, continues to encourage the client to provide information to aid an internal review of the claim, and never directly communicates that the provider will deny future findings.

(Filing Date: 08-23-2011)

WPP Luxembourg Gamma Three Sarl v. Spot Runner, Inc.

Corporations: Sufficiently plead facts demonstrating a misrepresentation or omission in violation of Section 10b -5(b) of the Securities and Exchange Act cannot be extended to a Section 10b-5(a) or (c) fraudulent scheme claim.

(Filing Date: 08-23-2011)

Flexible Lifeline Systems v. Precision Lift

Copyright: In a copyright infringement case, the plaintiff must prove a likelihood of irreparable harm to obtain injunctive relief; the long-standing presumption of irreparable harm upon a showing of likelihood of success on the merits in a copyright infringement case is now impermissible.

(Filing Date: 08-22-2011)

Hershel Rosenbaum v. Washoe County

Criminal Law: The crime for which there is probable cause need not be related to the crime for which an individual is arrested without a warrant. However, the crime which does provide probable cause must be reasonably within the arsenal of crimes that officers enforce in the state. (Modifying Davenport)

(Filing Date: 08-22-2011)

Stearns v. Ticketmaster Corp.

Civil Procedure: When money is withdrawn from a person’s account every month without ever getting notice, they have suffered an injury in fact and may be certified as a class. To be a class representative, you must have actually suffered an actual injury by the unlawful practice.

(Filing Date: 08-22-2011)

Torres v. City of Madera

Civil Law: The standard for judging the objective reasonableness of an officer’s conduct when she mistakenly using her firearm rather than Taser on an individual already arrested, handcuffed, and in the back seat of a patrol car, still remains the “totality of the circumstances.”

(Filing Date: 08-22-2011)

United States v. Clements

Criminal Law: For persons convicted of sex offenses prior to the Sex Offender Registration Notification Act, the registration requirements were not effective until August 1, 2008.

(Filing Date: 08-22-2011)

United States v. Parker

Criminal Law: The State may not prosecute an individual under 18 U.S.C. § 1382 unless that person violates the rule on land which is either owned or under the exclusive right of possession of the military.

(Filing Date: 08-22-2011)

C.F. v. Capistrano Unified School District

Constitutional Law: The law regarding violations of the Establishment Clause by a teacher’s comments is not clearly established and broad claims that such comments were hostile to religion are not particularized enough to deny qualified immunity to teachers.

(Filing Date: 08-19-2011)

Center for Environmental Law and Policy v. U.S. Bureau of Reclamation

Environmental Law: An agency satisfies NEPA “hard look” requirement, when it demonstrates that the foreseeable future impacts have been examined and past and present projects considered.

(Filing Date: 08-19-2011)

Delgado v. Holder

Immigration: The Board of Immigration Appeals has the authority to consider DUI convictions as a “particularly serious crime” for the purposes of withholding removal and asylum.

(Filing Date: 08-19-2011)

Fleischer Studios v. A.V.E.L.A., Inc.

Copyright: In an agreement regarding the purchase agreement of Betty Boop cartoons, the chain of title regarding copyright of the character was carved out. As such, the transfers of copyright made after the agreement did not pass copyright to the plaintiff.

(Filing Date: 08-19-2011)

In re Bluetooth Headset Products Liability Litigation

Civil Law: When parties in a class action agree to settle, the district court has an independent duty to review the settlement agreement to ensure the reasonableness of the settlement and to guard against collusion amongst parties from seeking their own benefit at the expense of the class.

(Filing Date: 08-19-2011)

M.H. V. USA

Criminal Procedure: Under the Required Records Doctrine, the Fifth Amendment right not to incriminate oneself does not apply to a subpoena to bring forward documents relating to the ownership of foreign bank accounts.

(Filing Date: 08-19-2011)

Ren v. Holder

Immigration: Under the Real ID Act of 2005, an immigration judge’s adverse credibility determination must be supported by substantial evidence in light of the totality of the circumstances. Additionally, when corroborative evidence is required by an immigration judge under the Real ID Act the “applicant must be given notice of the corroboration required, and an opportunity to either provide that corroboration or explain why he cannot do so.”

(Filing Date: 08-19-2011)

Rickley v. County of Los Angeles

Civil Law: Under the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, “a plaintiff who is represented by her attorney-spouse in a successful civil rights action may be awarded ‘a reasonable attorney’s fee as part of the costs.'"

(Filing Date: 08-19-2011)

United States v. Waters

Criminal Law: When considering a sentence modification pursuant to Rule 706, a district court may apply a career offender enhancement during modification proceedings so long as the original sentencing court found that the defendant was eligible for that enhancement.

(Filing Date: 08-19-2011)

Yakima Valley Memorial Hospital v. Washington State Dept. of Health

Civil Procedure: A regulatory statute that creates market power to a private entity but does not delegate regulatory power does not violate the Sherman Act. A regulatory statute that restrains interstate commerce must have specific authorization from Congress to avoid violating the dormant Commerce Clause.

(Filing Date: 08-19-2011)

Ammons v. State of Washington Department of Social and Health Services

Civil Law: In a 42 U.S.C. § 1983 lawsuit involving the “Fourteenth Amendment substantive due process right to safe conditions while involuntarily committed” to a state-run hospital, a state actor is not entitled to qualified immunity when he or she “demonstrate a substantial departure from reasonable professional judgment.”

(Filing Date: 08-17-2011)

Miranda v. Braatz

Indian Law: Since the Indian Civil Rights Act only has a one-year sentencing cap for “any one offense” and not a one-year sentencing cap for crimes stemming from a single transaction, the tribal member’s 910 day sentence was proper since the member had eight separate offenses with which she was charged.

(Filing Date: 08-17-2011)

Oliver v. Ralphs Grocery Company

Civil Procedure: Pursuant to Federal Rule of Civil Procedure 8, a claim filed under the Americans with Disabilities Act, each barrier that contributes to the discrimination must be listed in the original complaint. A court will not consider an expert report amendment to a complaint unless it has been filed on time and proper notice has been given to the parties.

(Filing Date: 08-17-2011)

Ronald Yonemoto v. Dept. of Veterans Affairs

Civil Law: An agency does not fulfill its obligation under the Freedom of Information Act, 5 U.S.C. § 552, when it offers to supply documents to a requester only to their capacity as an employee of that agency. Also, where details in a Vaughn index are entirely inadequate to determine whether a substantial privacy interest is at stake, the Court cannot perform de novo review and must remand.

(Filing Date: 08-17-2011)

Dougherty v. City of Covina

Criminal Procedure: A search warrant lacks probable cause when “the only evidence linking the suspect’s attempted child molestation to possession of child pornography is the experience of the requesting police officer, with no further explanation.” Because the Ninth Circuit “ha[d] not previously addressed this question” the officers are entitled to qualified immunity.

(Filing Date: 08-16-2011)

Howard v. Criminal Information Services

Civil Law: Bulk purchase of personal information from Department of Motor Vehicle records is not, in and of itself, a violation of the Driver’s Privacy Protection Act (“DPPA”), 18. U.S.C. §§ 2721-2725.

(Filing Date: 08-15-2011)

In Defense of Animals v. U.S. Dept. of the Interior

Civil Law: An interlocutory appeal from the denial of a preliminary injunction is moot when the event the injunction was filed to stop has already occurred.

(Filing Date: 08-15-2011)

Nevada Department of Corrections v. Cohen

Constitutional Law: The Nevada Department of Corrections does not violate 14th Amendment Due Process of inmates when it provides notice of and opportunity to comply with a typewriter ban that reasonably advances a legitimate security goal.

(Filing Date: 08-15-2011)

United States v. Vasquez

Criminal Procedure: A search warrant which incorrectly lists a defendant’s rank and position in a criminal organization is still valid if, despite the error, the issuing magistrate would still have a substantial basis in believing that there was a “fair probability” evidence of criminal activity would be found.

(Filing Date: 08-15-2011)

ALADS v. County of Los Angeles

Constitutional Law: A constitutionally protected property interest requiring due process does not change or halt when felony charges are alleged against law enforcement officers.

(Filing Date: 08-12-2011)

Baldwin v. Sebelius

Constitutional Law: A generalized grievance, without a genuine threat of prosecution, fails to show an injury in fact and is not sufficient to give plaintiffs standing.

(Filing Date: 08-12-2011)

Lee v. Corinthian Colleges

Civil Procedure: Reliance on a safe harbor provision is not sufficient to negate the requisite scienter of the Federal False Claims Act.

(Filing Date: 08-12-2011)

Pinto v. Holder

Immigration: When the Bureau of Immigration Affairs remands an Immigration Judge’s grant of asylum back for consideration of a grant of voluntary departure, the decision is considered a final order or removal and the Ninth Circuit has jurisdiction to hear the appeal.

(Filing Date: 08-12-2011)

United States v. Marguet-Pillado

Immigration: The “law of the case doctrine” does not apply in a criminal trial where the instruction was intended enforce the government’s burden to prove alienage as an element of a § 1326 violation, regardless that defendant’s theory of derivative citizenship was rejected on a previous appeal.

(Filing Date: 08-12-2011)

Blue Lake Rancheria v. United States

Tax Law: Under 26 U.S.C. § 3306(c)(7), employee services are exempt from the Federal Unemployment Tax Act tax liability when they are performed for an Indian tribe acting as a common-law employer.

(Filing Date: 08-11-2011)

United States v. Aguila-Montes de Oca

Criminal Procedure: The “modified categorical approach” to determine if the government can “use prior state conviction to enhance certain federal sentences” is applicable to both “divisible” statutes and to statutes “missing” an element of the generic crime.

(Filing Date: 08-11-2011)

Brandt v. American Bankers Insurance

Civil Procedure: Where the court finds that a defendant acted culpably when the defendant failed to respond to the complaint, the court is not precluded, as a matter of law, from setting aside the default judgment for excusable neglect under Federal Rule of Procedure 60(b)(1).

(Filing Date: 08-10-2011)

Soriano-Vino v. Holder

Immigration: When an Immigration and Naturalization Service officer obtains information from an individual’s own statements and residency card, it is not violating the confidentiality provision of the Special Agricultural Workers program.

(Filing Date: 08-10-2011)

Viewtech Inc. v. United States

Civil Procedure: The IRS was not required to give notice of their summonsing a taxpayer and a company’s bank records, as the summons was issued to help the IRS collect the taxpayer’s debt.

(Filing Date: 08-10-2011)

Wood v. Sinclair

Habeas Corpus: Under Faretta v. California, 422 U.S. 806 (1975), the statement, “[he] will be prepared to proceed without counsel,” is not “an expression of an unequivocal desire to represent himself” and does not entitle appellants to relief under an ineffective assistance of counsel claim.

(Filing Date: 08-10-2011)

Pitts v. Terrible Herbst, Inc.

Civil Procedure: A Rule 68 offer of judgment to the class representative does not render a class action suit moot when the representative may still timely file for class certification. Such filing will relate back to the date the claim was filed.

(Filing Date: 08-09-2011)

CollegeSource v. AcademyOne

Civil Procedure: Misappropriation of material by an agent, not in the forum, on behalf of a defendant, also not in the forum, may still provide sufficient grounds for a court to find specific personal jurisdiction in the forum.

(Filing Date: 08-08-2011)

Mavrix Photo v. Brand Technologies

Civil Procedure: A corporation that deliberately and continuously exploits a market in the forum state, is subject to specific personal jurisdiction when it satisfies purposeful direction of activities within the forum state and purposefully avails itself to the privilege of conducting activities within the forum.

(Filing Date: 08-08-2011)

United States v. Aguilar-Reyes

Civil Procedure: FRCP 35(a), which allows a district court to modify a sentence of imprisonment within fourteen days after sentencing, is jurisdictional and not merely a time-related directive. Thus, the district court lacked jurisdiction when it resentenced the defendant fourteen days after the original sentence ruling.

(Filing Date: 08-08-2011)

United States v. Della Porta

Criminal Procedure: A judge does not abuse his discretion or unduly influence a jury when he allows supplemental closing arguments without identifying specific issues that have deadlocked a jury.

(Filing Date: 08-08-2011)

United States v. Washington

Criminal Procedure: The use of Federal Rule of Civil Procedure 60(b) may not be used like 28 U.S.C. § 2255 to reopen appellate cases without the § 2255 requirement for a certificate of appealability.

(Filing Date: 08-08-2011)

Ginsberg v. Northwest, Inc.

Civil Procedure: The Airline Deregulation Act (“ADA”) does not preempt a claim for breach of the implied covenant of good faith and fair dealing, because state enforcement of the covenant does not “force the Airlines to adopt or change their prices, routes or services – the prerequisite for ADA preemption.”

(Filing Date: 08-05-2011)

K2 America Corp. v. Roland Oil & Gas

Civil Procedure: Federal courts lack subject matter jurisdiction over cases involving lands held in trust by the United States for Indian allottees where the Indian allottees are not party to the case and the precise dispute at issue does not arise under federal law.

(Filing Date: 08-05-2011)

United States v. Stinson

Criminal Procedure: Defendant’s convictions of RICO conspiracy under 18 U.S.C. § 3237 and defendant Stinson’s conviction of a VICAR crime under 18 U.S.C. § 1959(a)(1) were confirmed after appealing thirteen procedural decisions.

(Filing Date: 08-05-2011)

Estate of Petter v. CIR

Tax Law: An audit of a person’s taxes is not a condition precedent to make a transfer effective for the purpose of a charitable gift.

(Filing Date: 08-04-2011)

Johnson v. Lucent Technologies

Disability Law: Since a § 1981 retaliation claim was subject to the federal four-year statute of limitations and not the state law’s two-year statute of limitations, the claim was timely. Furthermore, in an IIED claim, since the two possibly harmful events occurred less than two years before a complaint was filed, the court could not determine if the claim was time barred. Finally, since the defendant failed to alert the court to what new facts could have been alleged in his later claims, the claims were properly dismissed.

(Filing Date: 08-04-2011)

United States v. Bingham

Criminal Procedure: A defendant’s leadership involvement in prison gang operations to promote and orchestrate acts of murder, racketeering and conspiracy, is sufficient for supporting convictions of violating the Racketeer Influenced and Corrupt Organizations ACT (“RICO”) and for committing violent crimes in aid of racketeering (“VICAR”).

(Filing Date: 08-04-2011)

United States v. Espinoza-Baza

Immigration: The defense of derivative citizenship is not appropriate where the theory is not supported in the record by a factual foundation and the proffered evidence is no more than a mere “scintilla of evidence.”

(Filing Date: 08-04-2011)

Close v. Thomas

Habeas Corpus: The Court denied Close and nine other prisoners habeas corpus petitions, holding that the plain language of the statute does not allow BOP to determine RDAP waitlist positions based on a potential early release date after successful completion of the program.

(Filing Date: 08-03-2011)

In re: Palmdale Hills Property

Bankruptcy Law: In chapter 11 bankruptcies, equitable subordination violates an automatic stay when it “has the effect of taking a valid, enforceable claim and its accompanying lien from the debtor’s estate.”

(Filing Date: 08-03-2011)

Perfect 10 v. Google

Copyright: In a case for preliminary injunction relief, a plaintiff’s likelihood of success on the merits does not create a presumption that there will be a likelihood of irreparable harm if an injunction is not granted.

(Filing Date: 08-03-2011)

United States v. Houston

Criminal Procedure: The offering of new, potentially exculpating evidence by the prosecution to the defense during the cross-examination of a witness does not constitute a Brady violation when the value of that evidence was first learned by the parties during the testimony of the witness.

(Filing Date: 08-03-2011)

United States v. McCarty

Criminal Procedure: A TSA screener’s search of checked luggage occurs “within the scope of the ongoing lawful administrative search” when the discovery of contraband coincides with the search for explosives and safety hazards.

(Filing Date: 08-03-2011)

Walls v. Central Contra Costa Transit Auth.

Administrative Law: After the signing of a Last Chance Agreement, an employee may not be considered an at-will employee and thus requires notice prior to dismissal.

(Filing Date: 08-03-2011)

Alpha Delta v. Reed

Constitutional Law: A student group denied status at a public university does not violate freedom of speech or association if the reason is viewpoint-neutral. A triable issue of fact exists under the free exercise clause and equal protection clause when a public university does not comply with its own nondiscrimination policy.

(Filing Date: 08-02-2011)

Getz v. The Boeing Company

Civil Procedure: Defendants were entitled to a contractor defense when the United States approved reasonably precise specification of the defendants’ product, the defendant’s equipment conformed to those specifications, and the supplier warned the U.S. about known dangers of the product.

(Filing Date: 08-02-2011)

Lee v. Lampert

Criminal Law: A credible claim of actual innocence constitutes an equitable exception to the Antiterrorism and Effective Death Penalty Act’s (1996) limitations period, and a petitioner who makes such a showing may pass through to Schlup gateway.

(Filing Date: 08-02-2011)

United States v. Stanley

Criminal Procedure: Consent to search a computer by an individual thought to be a co-owner will survive Fourth Amendment scrutiny when the searching officer believed, based on the totality of the circumstances, that the consenting individual had authority.

(Filing Date: 08-02-2011)

Jachetta v. United States

Civil Procedure: Although 25 U.S.C. § 345 waives sovereign immunity of the federal government in condemnation proceedings, it does not do so for inverse-condemnation actions; 25 U.S.C. § 345 does not extend waiver of immunity against states.

(Filing Date: 08-01-2011)

Payne v. Peninsula School District

Civil Procedure: The Individuals with Disabilities Education Act (IDEA) requires remedy exhaustion under 20 U.S.C. § 1415(l) when (1) there is an IDEA claim or a functional equivalent, (2) if plaintiff seeks prospective injunctive relief to alter their Individual Education Program, or (3) if plaintiff is seeking to enforce rights that arise as a result of a denial of public education. In addition the exhaustion requirement is a claims processing provision and not a jurisdictional requirement.

(Filing Date: 07-29-2011)

Greenway v. Schriro

Criminal Procedure: Under AEDPA, a federal habeas petitioner must exhaust their claims in state court before petitioning a federal court by “fully and fairly presenting” the factual and legal basis for the claim to the state court. It is enough to satisfy the fair presentation requirement when the petitioner includes the operative facts and legal basis for the claim in an amended post-conviction relief petition.

(Filing Date: 07-28-2011)

Hoye v. City of Oakland

Constitutional Law: Laws requiring consent to speak to patients approaching abortion clinics are valid if they do not discriminate based on speech content; discriminatory enforcement of such laws is not constitutional and must be remedied by the district court.

(Filing Date: 07-28-2011)

TrafficSchool.com, Inc. v. Edriver, Inc.

Corporations: In a claim under the Lanham Act, “when the plaintiff competes directly with defendant, a misrepresentation will give rise to a presumed commercial injury that is sufficient to establish standing.”

(Filing Date: 07-28-2011)

United States v. Spentz

Criminal Procedure: A defendant is not entitled to a jury instruction unless he offers minimal evidence which satisfies all elements of the defense; a multi-million dollar payoff for stealing cocaine from a drug cartel does not satisfy the inducement prong of entrapment.

(Filing Date: 07-28-2011)

Ingrim v. Oroudjian

Attorney Fees: It is not an abuse of discretion when a district judge awards attorney fees based on settlement discussions, superfluous work, and the judges own experience of what constitutes reasonable compensation.

(Filing Date: 07-27-2011)

Pickard v. Department of Justice

Civil Procedure: Under FOIA, the government cannot refuse to admit or deny the existence of records pertaining to a confidential informant when the government officially confirmed the informant’s identity and status in an open court proceeding.

(Filing Date: 07-27-2011)

Van Dusen v. USDC-AZP

Alternative Dispute Resolution: Whether § 1 of the Federal Arbitration Act (FAA) applies to truck drivers raises a jurisdictional question of first impression and does not warrant a writ of mandamus.

(Filing Date: 07-27-2011)

???

:

(Filing Date: )