Willamette Law Online

(34 summaries)

Kimberley Mansfield

9th Circuit Court of Appeals

TitleExcerptFilling Date
United States v. AlvirezIndian 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.(03-14-2013)
Recinto v. U.S. Dep't of Veterans AffairsAdministrative 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.(02-07-2013)
Furnace v. SullivanCivil 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. (01-17-2013)
Cunningham v. WongHabeas Corpus: It does not amount to interrogation in violation of [italics]Miranda[/italics] 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."(01-08-2013)
Loftis v. AlmagerHabeas Corpus: Under 28 U.S.C. § 2254, if a defendant pleads no contest, making reference to [italics]People v. West[/italics] during the plea colloquy does not trigger the factual basis requirements of [italics]North Carolina v. Alford[/italics] .(12-11-2012)
Parrish v. Commissioner SSAAttorney 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.”(11-05-2012)
United States v. Mendez-GonzalezSentencing: 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.(10-05-2012)
Gonzaga-Ortega v. HolderImmigration: 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.(09-14-2012)
Acosta v. City of Costa MesaFirst 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.(09-05-2012)
Ortiz-Alfaro v. HolderImmigration: 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.”(08-27-2012)
Native Village of Kivalina v. EPAAdministrative 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.(08-09-2012)
League of Wilderness Defenders v. USFSAdministrative 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.(07-30-2012)
United States v. ThomsAppellate 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.(06-29-2012)
National Association of Optometrists v. HarrisConstitutional 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.(06-13-2012)
United States v. Gomez-HernandezSentencing: 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.(05-31-2012)
Oman v. Portland Public SchoolsEducation 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.(05-14-2012)
Crowley v. State of NevadaCivil 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.(04-26-2012)
Arbid v. HolderImmigration: Where an immigration judge finds that an alien committed a “particularly serious crime” based on the [italics]Frentescu[/italics] 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).(04-03-2012)
James v. RyanHabeas 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.(02-29-2012)
Watison v. CarterConstitutional 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.”(02-13-2012)
Sauer v. U.S. Department of EducationAdministrative 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).(02-03-2012)
Washington State Republican Party v. Washington State GrangeFirst 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.(01-19-2012)
Jewel v. National Security AgencyStanding: “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.(12-29-2011)
Johnson v. Board of Trustees of the Boundary County School District 101Disability 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.(12-08-2011)
NLRB v. Legacy Health SystemLabor 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).(11-21-2011)
Miller v. City of Los AngelesCivil 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.(10-27-2011)
Confederated Tribes v. GregoireIndian 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.(09-23-2011)
Habibi v. HolderImmigration: 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.(09-14-2011)
Santiago-Rodriguez v. HolderImmigration: 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.(09-09-2011)
Valadez-Lopez v. United StatesCivil 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.(08-26-2011)
Ronald Yonemoto v. Dept. of Veterans AffairsCivil 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.(08-17-2011)
United States v. Marguet-PilladoImmigration: 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.(08-12-2011)
United States v. StinsonCriminal 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.(08-05-2011)

Oregon Court of Appeals

TitleExcerptFilling Date
State v. SullivanEvidence: Alternative evidence of a single factual occurrence may be offered to prove an element of a crime.(10-24-2012)