Willamette Law Online

(53 summaries)

Nicole Morrow

9th Circuit Court of Appeals

TitleExcerptFilling Date
Eminence Investors v. BNYMCivil Procedure: The Class Action Fairness Act (“CAFA”) securities exception under 28 U.S.C. § 1453(d)(3) applies where all of the claims in the class action relate to certain rights, duties, or obligations created by, or pursuant to a security.(04-02-2015)
Jordan v. Nationstar MortgageCivil Procedure: A case becomes “removable” for purposes of 28 U.S.C. § 1446 when the Class Action Fairness Act ground for removal is first disclosed.(04-01-2015)
Seattle Mideast Awareness Campaign v. King CountyCivil Rights § 1983: Decisions to reject ads that threaten the transportation system’s mission to provide safe and reliable transportation for its customers, must be both reasonable and viewpoint neutral in order to comply with the First Amendment rights of those seeking to run the ad.(03-18-2015)
Fairfield-Suisun USD v. Dep’t of Educ.Alternative Dispute Resolution: A school district lacks statutory right of action to seek declaratory and injunctive relief regarding alleged violations of certain procedural requirements of the Individuals with Disabilities Education Act and its implementing regulations regarding complaint resolution proceedings.(03-16-2015)
Munoz Santos v. ThomasEvidence: Where torture allegations are inextricably intertwined with the witnesses’ recantations, the evidence is properly excluded where its consideration would have required a mini-trial on whether the witnesses’ initial statements were procured by torture.(03-09-2015)
Martinez-Hernandez v. HolderImmigration: Counsel is not ineffective where a petitioner fails to make the necessary threshold showing that his claim for cancellation, in an immigration appeal, was plausible.(02-24-2015)
Black Mesa Water Coalition v. JewellAttorney Fees: An agency’s “eligibility” determination in reference to fees and costs is reviewed de novo, and review of an “entitlement” determination is reviewed for substantial evidence.(01-26-2015)
City of San Jose v. Comm’r of BaseballCivil Law: Major League Baseball is exempt from the federal antitrust laws.(01-15-2015)
United States v. RevesHabeas Corpus: A district court does not have jurisdiction to hear a defendant’s 28 U.S.C. § 2255 motion to vacate their sentence where the motion is filed one day after their probation ends due to the statute’s requirement that the defendant be “in custody.”(12-15-2014)
Curley v. City of North Las VegasEmployment Law: The correlation between an employee’s termination from work and his discrimination complaint against his employer does not necessarily create a prima facie case of retaliation by an employer where the employee’s disciplinary record at work was extensive, and an additional altercation with another employee occurred around the same time as his termination.(12-02-2014)
JT USA v. CIRTax Law: The meaning of 26 U.S.C. § 622(e)(3)(B) is clear and unambiguous, and states that a unless a partner elects to have all of their partnership items treated as non-partnership items, the partner may not elect out of a proceeding under the Tax Equity & Fiscal Responsibility Act.(11-14-2014)
State of California v. IntelligenderSovereign Immunity: A sovereign cannot litigate an already settled issue in a class action however, where the state action is brought on behalf of the people, it implicates the public’s interest as well as private interests, and therefore the remedial provisions sweep much more deeply and do not trigger the relitigation exception.(11-07-2014)
Hughes v. United StatesHabeas Corpus: The Supreme Court has not made the Alleyne decision, which held that any fact that increases the mandatory minimum is an element must be submitted to the jury, retroactive to cases on collateral review.(10-23-2014)
Deck v. JenkinsHabeas Corpus: Where a trial prosecutor in closing argument negated an essential element of intent under California law by “pushing defendant’s intent to commit a lewd act on a child under the age of 14 to potentially, ‘next week,’ or in ‘two weekends’ or to ‘just some point in the future’ it amounts to a constitutional trial error providing the basis for grave doubt as to whether the error had a substantial and injurious effect or influence on the jury’s verdict.(09-29-2014)
Gibbs v. LeGrandHabeas Corpus: Attorney misconduct, including not informing the client that their habeas corpus petition has already been denied, rises to the level of an extraordinary circumstance allowing for filing timeframe to be equitably tolled.(09-17-2014)
Hawkins v. FTBBankruptcy Law: Specific intent is required for a showing of willful attempt to evade or defeat taxes when assessing in bankruptcy whether tax debt is dischargeable.(09-15-2014)
Roman-Suaste v. HolderImmigration: A conviction for the possession of marijuana for sale, violating California Health & Safety Code § 11359, is a categorical aggravated felony and thus constitutes illicit trafficking of a controlled substance, and is an aggravated felony under Federal Law constituting a sufficient crime for removal from the United States.(09-04-2014)
Rosenbloom v. PyottCorporations: Demand on the board of a corporation by their shareholders to bring a derivative claim in the corporation’s own name is excused where the shareholders can show why the demand would be futile.(09-02-2014)
In the Matter of MwangiBankruptcy Law: Property of the bankruptcy estate remains estate property from the filing of the petition until the 30-day objection deadline from the section 341(a) meeting of creditors has run; and, during this time the debtor has no right to possess or control that property.(08-26-2014)
Arrendondo v. NevenCriminal Law: Supreme Court precedent, “does not require a defendant waiving his right to counsel to understand the potential application of recidivist sentencing enhancements that had not yet been charged, and were not required to have been charged at the time of the waiver.”(08-18-2014)
United States v. MagenoCriminal Law: A prosecution’s misstatement of fact in closing argument is a sufficient argument to consider a reversal, even though the defendant did not object to the misstatement at trial, did not raise this argument in their opening brief, and did not adopt it as a ground for reversal until oral argument, because it encouraged the jury to convict the defendant on evidence not presented at trial, and there was a reasonable probability that the misstatements affected the outcome.(08-11-2014)
People of the State of Cal. v. U.S. D.O.I.Environmental Law: In an amended opinion the panel affirmed that the Secretary of the Interior does not violate the National Environmental Policy Act when determining that a supplemental environmental impact statement is unnecessary. (08-01-2014)
United States v. HurtadoSentencing: When determining whether a defendant qualifies for a minor role sentence reduction, the comparison is between average participants, not above-average participants for the “substantially less culpable than the average participant” test. (07-29-2014)
Merritt v. Countrywide Financial Corp.Consumer Credit: Pursuant to the Truth in Lending Act a court may only order the statutory sequence altered and require tender before rescission at the summary judgment stage and then only on a case-by-case basis, once the creditor has established a potentially viable defense; additionally pursuant to the Real Estate Settlement Practices Act the doctrine of equitable tolling a borrower, in appropriate circumstances, may suspend the limitations period until the borrower discovers or had a reasonable opportunity to discover the violation.(07-16-2014)
United States v. Lopez-ChavezCriminal Law: Ineffective assistance of counsel exists where an attorney concedes removability based on a prior conviction and for failing to appeal the decision of the court, which if properly appealed the court would have been bound by precedent to render a favorable holding in favor of the client.(07-03-2014)
Johnmohammadi v. Bloomingdale’sEmployment Law: An arbitration clause in an employment contract that disallows class action arbitration is valid where the employee has the opportunity to opt-out of the clause.(06-23-2014)
Jiang v. HolderImmigration: Inconsistencies between an individual’s asylum declaration recounting physical abuse suffered and the failure to testify about the same during a removal hearing until prompted by the attorney to do so is a sufficient basis to support an Immigration Judge’s adverse credibility determination. (06-12-2014)
Wood v. YordyCivil Rights § 1983: The Religious Land Use and Institutionalized Persons Act does not authorize suits against a person in anything other than an official or governmental capacity.(06-03-2014)
Vega v. RyanHabeas Corpus: When applying Strickland v. Washington, a petitioner is required to prove (1) that counsel’s efforts fell below the standard prevailing in the community, and (2) that those failings prejudiced him; and, the petition must demonstrate that the likelihood of a different result is substantial not just conceivable.(05-19-2014)
City of Pomona v. SQMEvidence: Facts that cast doubt as to the credibility of an expert witness and contested facts as to the strength of a scientific method are questions reserved for the fact finder.(05-02-2014)
Wolfe v. BNSFEmployment Law: An employee’s state law claim alleging injury caused by misconduct in employee disciplinary proceedings under a collective bargaining agreement is preempted by the federal Railway Labor Act while an employee’s state law claim concerning alleged negligent mismanagement resulting in a head-on collision is not preempted by the ACT because it is independent of a collective bargaining agreement and therefore did not require interpretation of the collective bargaining agreement. (04-23-2014)
United States v. OdachyanSentencing: Judicial statements which respond to arguments made by the defendant in the manner of a “general frustration” that do not represent their own personal bias are not unconstitutional and not enough to make a fair judgment impossible; and, a defendant may waive his right to appeal by a knowing and voluntary waiver.(04-17-2014)
PAMC, Ltd. v. SebeliusAdministrative 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.(04-08-2014)
Davis v. WalkerCivil 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.(03-24-2014)
Peralta v. DillardCivil Rights § 1983: A prison official who is sued under § 1983 for money damages may raise a lack of available resources defense. (03-06-2014)
United States v. ChandlerSentencing: Conviction of conspiracy to commit a crime of violence is a 'crime of violence' for the purposes of the Armed Career Criminal Act.(02-20-2014)
United States v. PopovCriminal Law: In health care fraud cases, the amount billed to an insurer shall constitute prima facie evidence of intended loss for sentencing purposes. (02-11-2014)
In re: Late Fee & Over-Limit Fee LitigationConsumer 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.(01-21-2014)
Al-Nashiri v. MacDonaldHabeas Corpus: Section 7 of the Military Commissions Act of 2006 deprives the district court of jurisdiction of non-habeas claims.(12-20-2013)
Hana Financial v. Hana BankTrademarks: 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.(11-22-2013)
Bondarenko v. HolderImmigration: 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.(10-25-2013)
United States v. LiuCopyright: 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.”(10-01-2013)
United States v. GrandberryCriminal 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.(09-17-2013)
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.(09-10-2013)
Rusak v. HolderImmigration: 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.(08-22-2013)
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.(08-15-2013)
Thornton v. BrownCivil 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.(07-31-2013)
State of Alaska v. LubchencoEnvironmental 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.(07-23-2013)
Chamness v. BowenElection 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.(07-03-2013)
Corro-Barragan v. HolderImmigration: 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.(06-10-2013)
Gonzalez v. City of AnaheimCivil 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.(05-13-2013)
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." (04-17-2013)
United States v. Juvenile MaleJuvenile 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.(04-02-2013)