Willamette Law Online

(22 summaries)

Mae Lee Browning

9th Circuit Court of Appeals

TitleExcerptFilling Date
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.”(06-13-2013)
Isaacson v. HorneConstitutional 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.(05-21-2013)
Alliance of Nonprofits v. KipperPreemption: 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.(04-08-2013)
Shell Offshore v. GreenpeaceAdmiralty: 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.(03-12-2013)
Valle del Sol V. WhitingFirst Amendment: The day labor provisions of Senate Bill 1070 impermissibly restrict commercial speech because under [italics]Central Hudson[/italics] , they are more extensive than necessary to advance Arizona's stated government interest in traffic safety.(03-04-2013)
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.(01-23-2013)
Alocozy v. USCISImmigration: 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."(12-28-2012)
United States v. I.E.VCriminal Procedure: A [italics]Terry[/italics] 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 [italics]Terry[/italics] frisk when the "incriminating character of the object [is] not immediately apparent."(11-28-2012)
Alcoa, Inc. v. BPAAdministrative 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."(10-16-2012)
Native Ecosystems Council v. WeldonEnvironmental 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.(09-21-2012)
Glendale v. United StatesIndian 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.(09-11-2012)
Corpuz v. HolderImmigration: 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.(08-31-2012)
Sessoms v. RunnelsHabeas Corpus: Where a suspect has not waived his [italics]Miranda[/italics] 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.”(08-16-2012)
Al-Haramain Islamic v. ObamaConstitutional 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.(08-07-2012)
United States v. OlivaCriminal 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.(07-20-2012)
Day v. AT & T Disability Income PlanAdministrative 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 [italics]Blankenship[/italics] 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.(07-03-2012)
United States v. RiveraConstitutional 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.(06-22-2012)
The Associated Press v. OtterFirst Amendment: Under [italics]California First Amendment Coalition v. Woodford[/italics] , 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."(06-08-2012)
Nitschke v. BellequeHabeas Corpus: A petitioner's [italics]Apprendi[/italics] 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.(05-24-2012)
United States v. ValleeCriminal 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.(05-10-2012)
In re Pacific PicturesCivil 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.(04-17-2012)
Taproot Administrative Services v. CIRTax 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.(03-21-2012)