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Case Summaries

Administrative Law

[08/27] Local Joint Exec. Bd. of Las Vegas v. Nat'l Labor Relations Bd.
Petition for review of an NLRB order dismissing union's complaints against hotel employers for unilaterally terminating dues-checkoff before bargaining to agreement or impasse is granted where: 1) although the NLRB was responsive to a prior mandate from the circuit court that it adopt a new rule, it did not properly apply the new rule it adopted; and 2) contrary to the NLRB's ruling, the union did not clearly and unmistakably waive any right of employees to claim dues-checkoff after the agreements expired.

[08/27] Bolante v. Mukasey
In an immigration case involving a former official of the Philippine government, petition for relief from a BIA judgment denying asylum and ordering removal is denied where petitioner did not demonstrate that he faced an objective likelihood of future persecution upon his return.

[08/26] State of Wyoming v. US
In an action seeking review of the ATF's interpretation of 18 U.S.C. section 921(a)(33)(B)(ii) and a Wyoming law, which established a procedure to expunge misdemeanor convictions "for the purposes of restoring any firearm rights lost", dismissal of Wyoming's suit is affirmed where: 1) Congress intended the terms "expunge" and "set aside" as used in section 921(a)(33)(B)(ii) to require a state procedure that completely removes the effects of the misdemeanor conviction in question; and 2) the Wyoming law at issue fell short of such standard.

[08/26] Sytsema v. Acad. Sch. Dist. No. 20
In an action for reimbursement for an autistic child's educational expenses pursuant to the Individuals with Disabilities Education Act, a ruling partially granting and partially denying reimbursement is affirmed in part and reversed in part where: 1) the district court erred in awarding relief to plaintiffs for procedural differences in a 2001 individualized education plan (IEP); 2) a remand was proper for the district court to consider whether the 2001 draft IEP substantively denied plaintiff-child a free appropriate public education (FAPE); and 3) a 2002?2003 IEP complied with the IDEA requirements.

[08/26] Wisconsin Cent., Ltd. v. Shannon
In a suit by a railroad seeking a declaratory judgment that state overtime provisions were preempted by federal law, summary judgment for plaintiff and determination that federal law preempted the state statute are affirmed where: 1) plaintiff's claim that the state labor agency's investigation and enforcement of state overtime law was preempted by the federal Railway Labor Act was not ripe for consideration; and 2) field preemption applied in light of the comprehensive federal regulation of the railways.

[08/26] Della Dial v. Healthspring of Alabama, Inc.
In an appeal presenting the question of whether a complaint about conduct regulated by the Medicare Act filed in a state court may be removed to a federal court, denial of plaintiffs' motion to remand is reversed and remanded where: 1) because the plaintiffs' action is not a "civil action of which the district courts have original jurisdiction," the action is not removable; and 2) the district court would lack subject-matter jurisdiction over their complaint because it is not against the Secretary of the Department of Health and Human Services for review of an administrative decision.

[08/25] Carpenter v. Astrue
Denial of claimant's applications for social security disability insurance and supplemental security income benefits is reversed and remanded where: 1) the ALJ erred by failing to discuss Listing 12.05C, and his findings elsewhere in his decision were inadequate to render such error harmless by unambiguously negating her claim to satisfy the elements of that listing; 2) the ALJ improperly failed to tie his conclusion that claimant did not meet or equal Listing 12.05D to the evidence; and 3) the ALJ's step five analysis where he determined that claimant had the capability of performing other available work was undercut by the prior errors.

[08/25] SKF USA, Inc. v. US
In an antidumping investigation, a judgment affirming the Department of Commerce's revision of its model-match methodology and its ongoing zeroing methodology in calculating antidumping margins for ball bearings and related parts is affirmed where the department's interpretation of the governing statute was both reasonable and supported by substantial evidence.

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Civil Procedure

[08/27] Mendez v. County of San Bernardino
In a suit against a city, county, sheriff's department and various individual defendants under 42 U.S.C. section 1983 arising from the aftermath of an officer-involved shooting that resulted in the death of plaintiff's deaf-mute son, various rulings against plaintiff before and after she prevailed in a jury trial are affirmed in part and reversed in part where: 1) there was no error as to jury instruction on plaintiff's emotional damages; 2) reduction of the punitive damages award was proper as it was excessive as a matter of due process; 3) summary judgment on a state law negligent training claim was proper; 4) an order denying plaintiff all fees and costs required vacatur and a remand for a determination of a reasonable award; 5) a sanctions order had to be vacated where the district court did not make a requisite bad faith finding; and 6) reassignment to a different judge was not warranted.

[08/27] Khorrami v. Rolince
In a suit alleging violations of due-process rights by government agents who detained plaintiff while investigating the September 11, 2001 terrorist attacks, an interlocutory appeal of the denial of a grant of qualified immunity to defendants is dismissed for lack of appellate jurisdiction where the district court's deferral of a ruling on the government's qualified immunity motion was not equivalent to a denial of the motion.

[08/27] Sicar v. Chertoff
In a class action claim for declaratory and injunctive relief, alleging the government has systematically misclassified plaintiffs' parole status during the course of status adjustment determinations under the Haitian Refugees Immigration Fairness Act of 1998, dismissal of class action complaint is affirmed where the court lacks subject matter jurisdiction.

[08/26] State of Wyoming v. US
In an action seeking review of the ATF's interpretation of 18 U.S.C. section 921(a)(33)(B)(ii) and a Wyoming law, which established a procedure to expunge misdemeanor convictions "for the purposes of restoring any firearm rights lost", dismissal of Wyoming's suit is affirmed where: 1) Congress intended the terms "expunge" and "set aside" as used in section 921(a)(33)(B)(ii) to require a state procedure that completely removes the effects of the misdemeanor conviction in question; and 2) the Wyoming law at issue fell short of such standard.

[08/26] Grynberg v. Total S.A.
In two suits against oil companies raising tort claims for breach of fiduciary duty and equitable claims for unjust enrichment involving potential oil and gas reserves in Kazakhstan, summary judgment for defendants is affirmed where the claims were barred by the applicable statute of limitations and laches.

[08/26] Duncan v. Workers' Comp. Appeals Bd.
Workers' Compensation Appeals Board (WCAB) decision granting reconsideration is annulled where the WCAB erred in holding that a sanction can be imposed against the Uninsured Employers Benefits Trust Fund (UEBTF), if its "failure to comply with the award of attorney's fees resulted from willful or bad faith actions".

[08/26] Della Dial v. Healthspring of Alabama, Inc.
In an appeal presenting the question of whether a complaint about conduct regulated by the Medicare Act filed in a state court may be removed to a federal court, denial of plaintiffs' motion to remand is reversed and remanded where: 1) because the plaintiffs' action is not a "civil action of which the district courts have original jurisdiction," the action is not removable; and 2) the district court would lack subject-matter jurisdiction over their complaint because it is not against the Secretary of the Department of Health and Human Services for review of an administrative decision.

[08/26] Carpenter v. Mohawk Industries, Inc.
In an employment matter, appeal of judgment for plaintiff-former employee is dismissed for lack of jurisdiction and petition for writ of mandamus is denied where: 1) court declines to extend the "collateral order" doctrine established in past precedent to exercise court's jurisdiction over an interlocutory appeal of a discovery order implicating the attorney-client privilege; 2) mandamus is appropriate only when there has been a clear usurpation of power or abuse of discretion; and 3) defendant-employer has not shown its right to the issuance of the writ is clear and indisputable.

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Commercial Law

[08/27] Gander Mountain Co. v. Cabela's, Inc.
In a case arising from a contract dispute involving a 1996 transaction between the parties, summary judgment for plaintiff on a counterclaim, finding that a provision at issue was unenforceable because it was merely an agreement to agree, is affirmed over claims that the district court violated the law-of-the-case doctrine and erred in granting summary judgment.

[08/27] 216 Jamaica Ave., LLC v. S & R Playhouse Realty Co.
In a case involving the enforceability of a "gold clause" contained in a 1912 lease agreement, which required payment of rents to be in gold coins, a judgment against plaintiff-owner who tried to enforce the clause is reversed and remanded where: 1) contrary to the ruling below, the clause is enforceable; and 2) a remand was necessary for the district court to interpret the clause, to determine the obligation it imposes on the lessee, and to address any other defenses in the first instance, including lessee's estoppel-by-deed and waiver defenses.

[08/27] 216 Jamaica Ave., LLC v. S & R Playhouse Realty Co.
In a case involving the enforceability of a "gold clause" contained in a 1912 lease agreement, which required payment of rents to be in gold coins, a judgment against plaintiff-owner who tried to enforce the clause is reversed and remanded where: 1) contrary to the ruling below, the clause is enforceable; and 2) a remand was necessary for the district court to interpret the clause, to determine the obligation it imposes on the lessee, and to address any other defenses in the first instance, including lessee's estoppel-by-deed and waiver defenses.

[08/26] Grynberg v. Total S.A.
In two suits against oil companies raising tort claims for breach of fiduciary duty and equitable claims for unjust enrichment involving potential oil and gas reserves in Kazakhstan, summary judgment for defendants is affirmed where the claims were barred by the applicable statute of limitations and laches.

[08/26] JCB, Inc. v. Union Planters Bank, N.A.
In an action against defendant-bank seeking a declaratory judgment and damages for trespass and conversion for unilateral removal and sale of equipment which had been purchased by their debtor-defendant and was subject to their competing security interests, partial summary judgment and awards for plaintiff are affirmed in all respects except for a punitive damage award for trespass which must be remitted to $108,750 on due process grounds.

[08/26] McKesson Corp. v. Islamic Republic of Iran
In a suit alleging that Iran unlawfully expropriated plaintiff's investment in an Iranian dairy company, judgment for plaintiffs is reversed where: 1) the Treaty of Amity between the US and Iran did not provide plaintiff a private cause of action for expropriation; and 2) a remand was necessary for determination of whether plaintiff had a cause of action under Iranian law or customary international law, and whether the act of state doctrine precluded American courts from inquiring into the public acts of a recognized foreign sovereign power in its own territory.

[08/25] SKF USA, Inc. v. US
In an antidumping investigation, a judgment affirming the Department of Commerce's revision of its model-match methodology and its ongoing zeroing methodology in calculating antidumping margins for ball bearings and related parts is affirmed where the department's interpretation of the governing statute was both reasonable and supported by substantial evidence.

[08/25] RWB Servs., LLC v. Hartford Computer Group, Inc.
In a suit alleging civil RICO violations in a commercial lending agreement, judgment of dismissal is reversed where plaintiff properly pleaded that defendants' actions were a proximate cause of its injuries and therefore had standing to bring a RICO claim.

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Consumer Protection

[08/22] In the Matter of: Ferrell
Statutory damages are not available for violations of 15 U.S.C. sections 1632(a) and 1638(b)(1), provisions of the Truth in Lending Act (TILA).

[08/22] Clemmer v. Key Bank Nat'l Ass'n
In a case raising the issue of whether the Electronic Funds Transfer Act (EFTA) permits an automated teller machine's (ATM) on-screen notice to read that a fee "may" be charged when a fee "will" be charged, summary judgment for bank is affirmed where the use of the less definite "may", coupled with the more definite requirement that a user press "yes" to accept the fee to continue the transaction, put the user on sufficient notice that a fee would be incurred.

[08/22] Barany-Snyder v. Weiner
In a case arising out of a state court debt collection action brought by defendants against plaintiff, alleging that defendants engaged in improper debt collection in violation of the Fair Debt Collection Practices Act (FDCPA), judgment on the pleadings for defendants is affirmed where plaintiff failed to state a claim under the FDCPA.

[08/20] Boschetto v. Hansing
The sale of one automobile via the eBay website, without more, does not provide sufficient "minimum contacts" to establish jurisdiction over a nonresident defendant in the forum state.

[08/20] Rosenau v. Unifund Corp.
In a class action under the Fair Debt Collection Practices Act (FDCPA) alleging that defendant sent deceptive debt-collection letters, judgment for defendant on the pleadings is reversed and remanded where the "least sophisticated debtor" reading defendant's letter might reasonably interpret it as being from an attorney when in fact it was not.

[08/19] Owner-Operator Indep. Drivers Ass'n, Inc. v. USIS Commercial Servs., Inc.
In truck drivers' action alleging defendant violated the Fair Credit Reporting Act (FCRA) in its procurement and dissemination of plaintiffs' employment histories, judgment for defendant is affirmed over challenges to: 1) a ruling finding that disputed reports are not "consumer reports" procured for employment purposes; 2) an evidentiary ruling admitting evidence regarding employer trucking companies' use of the reports they obtained from defendant; and 3) a denial of class certification.

[08/18] Yabsley v. Cingular Wireless, LLC
In a claim that defendant-Cingular engaged in unfair competition in violation of Business and Professions Code section 17200 and misleading advertising by failing to inform consumer that a tax would be imposed on the full price of the cellular phone, judgment in favor of defendant is affirmed where: 1) when specific legislation provides a safe harbor, plaintiffs may not use the general unfair competition law to assault that harbor; 2) a sales invoice Cingular gave to plaintiff stated the amount of the sales tax imposed on the sale and gave plaintiff notice of the amount of sales tax that would imposed; and 3) plaintiff had the right to refuse to enter into the contract for the price stated.

[08/18] Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA
The Fair Debt Collection Practices Act's (FDCPA) bona fide error defense applies to mistakes of law, and is not limited to procedural or clerical errors. In an action claiming law firm and one of its attorneys violated the FDCPA when they used allegedly deceptive forms to notify her of a foreclosure on her home, summary judgment for defendants is affirmed where: 1) although defendants violated the FDCPA by instructing plaintiff that she had to dispute the debt in writing; nevertheless, 2) defendants qualified for the FDCPA bona fide error defense.

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Contracts

[08/27] County of Santa Clara v. Astra USA, Inc.
In a lawsuit brought by certain federally funded medical clinics claiming that they have been overcharged for certain prescription drugs in violation of pharmaceutical pricing agreements between the Secretary of Health and Human Services and drug manufacturer defendants, dismissal of the complaint for failure to state a claim is reversed where plaintiffs are intended direct beneficiaries of those agreements and thus had the right to enforce the agreements' discount provisions against the manufacturers and sue them for reimbursement of excess payments.

[08/27] Gander Mountain Co. v. Cabela's, Inc.
In a case arising from a contract dispute involving a 1996 transaction between the parties, summary judgment for plaintiff on a counterclaim, finding that a provision at issue was unenforceable because it was merely an agreement to agree, is affirmed over claims that the district court violated the law-of-the-case doctrine and erred in granting summary judgment.

[08/27] Fidelity and Guaranty Ins. Co. v. Star Equip. Corp.
In a dispute arising over a construction contract, enforcement of a settlement agreement and grant of summary judgment are affirmed where: 1) a hand-written agreement contemplated execution of a more formal agreement does not preclude enforcement of the hand-written agreement; 2) the terms of this settlement were clear and unambiguous; 3) there was no error in the district court's order enforcing the Settlement Memorandum of Agreement as a settlement agreement that disposed of all the claims in the case except the indemnification dispute; and 4) Fidelity is entitled to indemnification because defendants failed to present any material facts which would give rise to a factual dispute as to a 'want of good faith' on the part of Fidelity.

[08/27] 216 Jamaica Ave., LLC v. S & R Playhouse Realty Co.
In a case involving the enforceability of a "gold clause" contained in a 1912 lease agreement, which required payment of rents to be in gold coins, a judgment against plaintiff-owner who tried to enforce the clause is reversed and remanded where: 1) contrary to the ruling below, the clause is enforceable; and 2) a remand was necessary for the district court to interpret the clause, to determine the obligation it imposes on the lessee, and to address any other defenses in the first instance, including lessee's estoppel-by-deed and waiver defenses.

[08/27] 216 Jamaica Ave., LLC v. S & R Playhouse Realty Co.
In a case involving the enforceability of a "gold clause" contained in a 1912 lease agreement, which required payment of rents to be in gold coins, a judgment against plaintiff-owner who tried to enforce the clause is reversed and remanded where: 1) contrary to the ruling below, the clause is enforceable; and 2) a remand was necessary for the district court to interpret the clause, to determine the obligation it imposes on the lessee, and to address any other defenses in the first instance, including lessee's estoppel-by-deed and waiver defenses.

[08/26] Cannon v. Gates
In an action claiming violations of the Solid Waste Disposal Act and the Administrative Procedures Act, dismissal of the case for lack of subject matter jurisdiction is affirmed where the district court properly applied the jurisdiction-stripping provision at 42 U.S.C. section 9613(h) because plaintiffs' suit constitutes a challenge to the government's selected removal action.

[08/26] Grynberg v. Total S.A.
In two suits against oil companies raising tort claims for breach of fiduciary duty and equitable claims for unjust enrichment involving potential oil and gas reserves in Kazakhstan, summary judgment for defendants is affirmed where the claims were barred by the applicable statute of limitations and laches.

[08/26] "R" Best Produce, Inc. v. DiSapio
In a contract dispute brought under the Perishable Agricultural Commodities Act of 1930 (PACA) regarding the sale of fruits and vegetables, order denying reconsideration is vacated and remanded where the appellant's claim that the default judgment should have been vacated for lack of personal jurisdiction raises unresolved factual errors.

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Corporation & Enterprise Law

[08/26] Brady v. UBS Fin. Servs., Inc.
In a suit brought against one company and another which plaintiff contended was its alter ego for payment on certain bonds issued by defendant, dismissal of the claims is reversed where: 1) plaintiff acquired a right to sue on the Stated Maturity of his bond and that remedy was not time barred; and 2) furthermore, plaintiff's claims are not barred by res judicata.

[08/26] Grynberg v. Total S.A.
In two suits against oil companies raising tort claims for breach of fiduciary duty and equitable claims for unjust enrichment involving potential oil and gas reserves in Kazakhstan, summary judgment for defendants is affirmed where the claims were barred by the applicable statute of limitations and laches.

[08/26] Mamot Feed Lot & Trucking v. Hobson
In a class action raising federal usury and antitying claims against a bank, its holding company, and various shareholders, officers, and employees of the bank, following the criminal indictment of the bank's president for defrauding the bank of nearly one million dollars, dismissal of the claim is affirmed where: 1) as sections 85 and 86 do not apply to state-chartered banks, the district court properly dismissed those claims brought under the National Bank Act for want of jurisdiction; 2) the district court properly dismissed a claim under 12 U.S.C. section 1831d for failure to state a claim; and 3) the complaint provided absolutely no facts to support an illegal tying claim.

[08/26] Ley v. Visteon Corp.
In a class action securities violation case, dismissal of the action is affirmed where: 1) plaintiffs failed to allege a misrepresentation or omission of material fact regarding claims arising from a spin-off; 2) plaintiffs failed to allege a strong inference of scienter regarding claims arising from a Restatement filed with the SEC; 3) plaintiffs failed to allege a strong inference of scienter on the part of defendant-CPA firm, and thus dismissal of a section 10(b) claim was appropriate; and 4) dismissal of plaintiffs' section 20(a) claim was proper as there was no predicate violation of the securities laws.

[08/25] W. Filter Corp. v. Argan, Inc.
In a contract and tort action arising from the parties' execution of a Stock Purchase Agreement (SPA), summary judgment for defendant on limitations grounds is reversed where a provision within the SPA permitting the representations and warranties of the parties to survive closing did not unambiguously state the parties' intent to contractually reduce the applicable California statute of limitation to one year.

[08/25] Swiger v. Allegheny Energy, Inc.
In a tort suit asserting numerous state-law claims, dismissal for lack of federal diversity jurisdiction is affirmed where a federal district court lacks diversity jurisdiction over a lawsuit involving a partnership where one of its partners is a dual American-British citizen domiciled in a foreign state.

[08/22] Gong v. RFG Oil, Inc.
Denial of motion to disqualify counsel for defendants is reversed and remanded where: 1) an actual conflict of interest existed between defendants; and thus, 2) counsel must be disqualified from representing one defendant; but 3) counsel could still represent co-defendant.

[08/21] Ritter & Ritter, Inc. v. Churchill Condominium Ass'n
In an action against defendant-condominium housing association for breach of fiduciary duty and negligence, judgment in favor of plaintiff-homeowners is affirmed over claims of error that: 1) the general verdict and special findings were inconsistent and irreconcilable and the special findings controlled; 2) the CC&R's alone determine the rights and obligations between the parties; 3) the trial court erred in applying the rules set forth in Lamden v. La Jolla Shores Clubdominium Homeowners Assn., 21 Cal.4th 249 (1999); 4) the trial court erred in instructions submitted to jury; 5) it erred in ordering the injunction; and 6) it erred in determining the plaintiffs were the prevailing parties.

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Elder Law

[05/13] Cao v. Commonwealth of Puerto Rico
In an action wherein plaintiff sought recovery under 42 U.S.C. section 1983 for alleged constitutional violations along with several state law causes of action after she was removed from her home, made to undergo a psychological evaluation, and placed in a state institution for the elderly, dismissal of plaintiff's complaint is affirmed where: 1) the district court properly dismissed plaintiff's section 1983 claim as untimely; and 2) with no federal cause of action remaining, the district court acted within its discretion in declining to exercise supplemental jurisdiction over remaining state law claims.

[05/05] Miller v. Am. Airlines, Inc.
In a suit against American Airlines under the Age Discrimination in Employment Act (ADEA), summary judgment for defendants is affirmed where: 1) a collective bargaining agreement did not require that plaintiffs be offered positions of comparable pay past the retirement age; 2) a claim, that a supplement to the collective bargaining agreement governing the retirement of flight engineers was facially discriminatory, was not properly raised before the EEOC.

[03/11] Budnick v. Town of Carefree
In an action raising, inter alia, a claim that defendant-town violated the Fair Housing Amendments Act of 1988 (FHAA) by denying plaintiffs a Special Use Permit (SUP) to build a multi-level continuing-care retirement community in the town, summary judgment against plaintiffs on the FHAA claim is affirmed where plaintiff failed to establish a discrimination claim under any of the theories of disparate treatment, disparate impact, or a failure to make reasonable accommodations. Potential residents of a retirement community do not presently qualify as disabled under the FHAA simply because some of them will become disabled as they age.

[03/10] Med. Liab. Mut. Ins. Co. v. Alan Curtis LLC
In an action brought by an insurer seeking a declaratory judgment regarding its duties to defend and indemnify defendants against claims in an Arkansas state court action, summary judgment determining such duties is affirmed where the district court did not err by deciding that: 1) the only claim in the underlying lawsuit covered under insurer's policy was an estate's breach of contract claim against nursing home facility owner; 2) insurer had a duty to defend and indemnify owner on that claim and therefore also a duty to defend it on all of the estate's claims against it; and 3) insurer had no duty to defend or indemnify appellant-employee of the nursing home's management company.

[02/15] Nat'l Union Fire Ins. Co. v. Crocker
Under Texas law, an insurer has no extra-contractual duty to notify an additional insured of available liability coverage and provide an unsought, uninvited, unrequested, unsolicited defense. Further, an insurer's actual knowledge that an additional insured has been served with process does not establish as a matter of law that the insurer has not been prejudiced by the additional insured's failure to notify the insurer of the receipt of process.

[02/08] Imwalle v. Reliance Med. Prods., Inc.
In an action claiming, inter alia, unlawful retaliation when 62-year-old plaintiff was fired three months after he filed a charge with the EEOC that alleged both age and national-origin discrimination, a judgment and an award of attorney's fees, costs, and interest for plaintiff are affirmed over claims that: 1) plaintiff failed to establish a prima facie case of retaliation or prove that defendant's proffered reason for terminating him was a pretext to hide retaliation; 2) a paralegal's fees and expenses to attend certain depositions were unnecessary and unreasonable; 3) billing descriptions were insufficient; and 4) plaintiff had only limited success on his various claims.

[01/25] Living Ctrs. of Texas, Inc. v. Penalver
In a wrongful death suit, a court of appeals judgment affirming a ruling in favor of plaintiff is reversed where a jury argument that compared defendant's lawyer's attempts to minimize damages to a World War II Nazi program, in which elderly and infirm persons were used for medical experimentation and killed, was improper and incurable.

[12/24] Warfield v. Summerville Senior Living, Inc.
In action for elder abuse and other claims, denial of petition to compel arbitration, based on an arbitration agreement plaintiff's husband had signed is affirmed over claims that: 1) even though plaintiff's husband did not hold a power of attorney when he signed the arbitration agreement, he nonetheless had the authority, either as her ostensible agent or as her spouse, to bind her to the agreement; and 2) plaintiff is estopped to deny the enforceability of the arbitration agreement.

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Elections

[08/22] Price v. New York State Bd. of Elections
In a challenge to state law prohibiting the use of absentee ballots in elections for county committee members brought under the First Amendment, grant of summary judgment for defendant state board of elections is reversed where: 1) the arguments proffered by the State are so extraordinarily weak that they cannot justify the burdens imposed by Election Law section 7-122; and 2) the district court therefore erred in granting defendants' motion to dismiss and in denying plaintiffs' motion for summary judgment.

[08/14] Lemons v. Bradbury
In an action brought by voters who signed a referendum, which sought a statewide vote on a legislative act establishing same-sex domestic partnerships, challenging the Oregon Secretary of State's procedures for verifying referendum petition signatures, denial of permanent injunctive relief for plaintiffs is affirmed where the Secretary's procedures for verifying sampled referendum petition signatures did not violate plaintiffs' equal protection and due process rights.

[08/08] Preminger v. Peake
In a First Amendment challenge to the Department of Veterans Affairs' (VA) denial of entry to one of their facilities for the purpose of registering voters, rulings against plaintiffs are affirmed where: 1) contrary to the ruling below, plaintiffs have standing; but 2) nevertheless, plaintiffs failed to demonstrate that the VA's application of a regulation to them violated the First Amendment.

[08/06] Zessar v. Keith
In a class-action suit alleging due-process violations in the rejection of absentee ballots without notice or a hearing, partial summary judgment for plaintiff and award of attorney's fees are vacated where: 1) the state legislature's subsequent amendment of the election code to change the procedure for handling absentee ballots mooted plaintiff's challenge; and 2) plaintiff did not qualify as a "prevailing party" entitled to attorney's fees under 42 U.S.C. section 1988.

[08/04] Melbostad v. Fisher
In a matter involving plaintiff's filing of complaint alleging violations of San Francisco's campaign finance laws by defendant and defendant's subsequent filing of a special motion to strike pursuant to state anti-SLAPP statute, award of attorney's fees to defendants and grant of protective order which precluded plaintiff from taking discovery related to the fees motion are affirmed where there was no jurisdiction to consider the appeal since the notice of appeal was not timely field.

[07/29] US v. Missouri
In a suit brought by the government alleging Missouri was in violation of its obligations under the National Voter Registration Act of 1993 (NVRA), summary judgment for Missouri is reversed and remanded where: 1) the district court misunderstood the relevance of local election agencies' (LEAs) actions or inactions regarding Missouri's compliance with the NVRA; 2) although Missouri cannot be required to enforce the NVRA against LEAs, any lack of LEA compliance remains relevant to determining whether or not Missouri is reasonably "conduct[ing] a general program"; and 3) a remand was required to consider any lack of LEA compliance and to determine whether any such noncompliance rendered Missouri's effort to "conduct a general program" unreasonable in removing the names of ineligible voters. Evidentiary rulings regarding the indamissibility of survey statements are affirmed.

[07/29] Vann v. Kempthorne
In a suit by descendants of Cherokee-owned slaves alleging that the Secretary of the Interior violated numerous laws and constitutional provisions by certifying the results of a tribal election in which plaintiffs were disenfranchised, the circuit court rules that the officers of the Cherokee tribe may be named as defendants as sovereign immunity protects a federally-recognized Indian tribe, but not its officers, from suit.

[07/14] James v. Collin County Texas
In a suit by a former county employee alleging First Amendment violations arising from the termination of his employment, summary judgment for defendant-county is affirmed where: 1) plaintiff produced no evidence that defendants-county commissioners or defendant-supervisor had been involved in the decision to terminate him; 2) with respect to his retaliatory-discharge claim against defendant-county, plaintiff produced no evidence that his political campaigning or his letter alleging misconduct by his supervisor were substantial factors in his termination; and 3) county policies prohibiting campaigning on county property were properly balanced against plaintiff's interest in commenting upon matters of public concern. (Revised opinion)

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Environmental Law

[08/26] Cannon v. Gates
In an action claiming violations of the Solid Waste Disposal Act and the Administrative Procedures Act, dismissal of the case for lack of subject matter jurisdiction is affirmed where the district court properly applied the jurisdiction-stripping provision at 42 U.S.C. section 9613(h) because plaintiffs' suit constitutes a challenge to the government's selected removal action.

[08/25] US v. MV Sanctuary
Warrant authorizing the Environmental Protection Agency (EPA) to inspect the M/V Sanctuary for polychlorinated biphenyls (PCBs) is affirmed where the EPA has authority to obtain an administrative warrant to carry out its authority under the Toxic Substances Control Act (TSCA).

[08/20] El Comite para el Bienestar de Earlimart v. Warmerdam
In a challenge under section 304 of the Clean Air Act (CAA) brought by a coalition of community organizations against California state officials responsible for designing and implementing a state air quality plan, challenging the process by which EPA approval of the plan was obtained and the final outcome of the approval process, summary judgment for plaintiff and a remedies order are reversed and vacated where, because section 304 of the CAA provides jurisdiction only to enforce an "emission standard or limitation," and because the challenged conduct did not implicate such a standard or limitation, the court was without jurisdiction to order a remedy.

[08/20] James River Ins. Co. v. Ground Down Engineering, Inc.
In plaintiff-insurer's claim seeking a declaratory judgment that it is not obligated to provide a legal defense to defendant-insured, dismissal of claim is vacated where: 1) district court erred in holding that the pollution exclusion does not apply; and 2) the pollution exclusion clearly covers the claims asserted against defendant.

[08/19] Sierra Club v. Envtl. Prot. Agency
In an action challenging an EPA rule preventing state and local authorities from supplementing emissions-monitoring requirements under the Clean Air Act (CAA), petition for review is granted in part and denied in part where: 1) the rule preventing supplementing of requirements was unambiguously precluded by Title V of the CAA; but 2) the monitoring requirements enumerated in 40 C.F.R. section 70 were consistent with the mandate of the CAA.

[08/18] Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin.
States' and public interest organizations' petition for review of a rule issued by the NHTSA setting corporate average fuel economy tandards for light trucks, including many SUVs and other vehicles, is granted where: 1) the rule is arbitrary and capricious, contrary to the Energy Policy and Conservation Act (EPCA) in its failure to monetize the value of carbon emissions, failure to set a backstop, failure to close an SUV loophole, and failure to set fuel economy standards for all vehicles in a particular weight class; and 2) an Environmental Assessment was inadequate under NEPA and petitioners raised a substantial question as to whether the rule may have a significant impact on the environment. (Substituted opinion)

[08/14] The Fund for Animals v. Kempthorne
In a matter raised by animal rights organizations challenging defendants' Depredation Order, which they alleged violates certain treaties and statutes by "authoriz[ing] state fish and wildlife agencies, Indian Tribes, and U.S. Department of Agriculture...employees to kill an unlimited of federally protected double-crested cormorants in New York and twenty-four other states", judgment for defendants is affirmed where: 1) discretion granted to these third parties is limited and subject to adequate oversight by the Fish and Wildlife Services and therefore the order did not contravene the Migratory Bird Treaty Act; 2) deference was warranted as to FWS's reasonable view that the Mexico Convention requires a close season only for game birds, which the parties agree do not include the cormorant; 3) the order was a reasonable response to evidence that in a large number of states, cormorants were responsible for localized, site-specific harm to public resources; and 4) the FWS did not violate NEPA in adopting the Depredation Order.

[08/12] US v. Tankersley
An environmental activist group member's sentence for conspiracy to commit arson and destruction of an energy facility, aiding and abetting attempted arson, and aiding and abetting arson is affirmed where: 1) a sentence outside the applicable advisory guidelines range was not per se unreasonable in being based on the district court's efforts to achieve sentencing parity between defendants who engaged in similar conduct, with some targeting government property and who were properly subject to a terrorism enhancement, and others targeting only private property who were not; 2) the district court did not clearly err by declining to apply a downward adjustment for a minimal role in the offense; and 3) the sentence was reasonable.

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Family Law

[08/22] In re A.C.
Order terminating parental rights is affirmed where: 1) the dependency court's noncompliance with section 372 standing alone does not violate the parent's due process rights; and 2) the error is subject to a harmless error standard.

[08/22] Iglesias v. Mukasey
Petition for review of BIA's denial of motion to reopen the case is denied where: 1) petitioner's allegation that BIA had ignored evidence put forth by petitioner regarding his marriage to an American citizen was an allegation of legal error subject to appellate review; but 2) petitioner did not provide clear and convincing evidence that his marriage was bona fide.

[08/21] Combs v. Homer-Center Sch. Dist.
In a suit by parents who home-school their children seeking declaratory relief and a permanent injunction to prohibit the Commonwealth of Pennsylvania from requiring plaintiffs to comply with reporting and review requirements, summary judgment for defendants is affirmed where: 1) the challenged statute was a neutral law of general applicability, subject to rational basis review, and was constitutional as it rationally furthered legitimate state interests; 2) plaintiffs did not assert a valid "hybrid-rights" claim under which, as a potential violation of both free-exercise rights and the parental right to direct a child's education, the law might be subject to greater scrutiny; 3) plaintiffs' claims did not fall under the narrow exception of Wisconsin v. Yoder, 406 U.S. 205 (1972), requiring heightened scrutiny when parents challenge compulsory-education laws on religious grounds; and 4) having disposed of all federal claims, the court declined to exercise supplemental jurisdiction over state-law claims under the Religious Freedom Protection Act.

[08/21] US v. Carson
Sentence for conspiring to transport a minor across state lines for the purpose of unlawful sexual activity and interstate travel to engage in illicit sexual conduct is affirmed where, for purposes of applying a sentencing enhancement, the minor victim was properly determined to be in defendant's custody, care, or supervisorial control, despite argument that the victim's mother's presence gave her sole custody and control.

[08/20] In re Adrianna P.
Order granting reunification services to presumed father is remanded with orders to vacate where: 1) the record made clear that providing reunification services to father would be detrimental to the child; and 2) the court abused its discretion when it ordered agency to provide reunification services to father. Order directing agency to provide reunification services to other presumed father is affirmed where: 1) despite court's erroneous legal conclusion regarding section 361.5, the court did not abuse its discretion with this order; and 2) there was sufficient evidence to support the court's implied finding that reunification was in the children's best interests.

[08/19] In re Aaron D.
Termination of mother's parental rights to her two children is affirmed over claims of error that: 1) the juvenile court lacked jurisdiction over this case under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) because Texas had jurisdiction over custody determinations involving the children and the California juvenile court did not contact the Texas court to resolve jurisdiction; 2) mother did not receive proper notice of the Welfare and Institutions Code section 366.261 selection and implementation hearing; and 3) the court erred in finding the children adoptable because of their special developmental needs, physical ailments, and psychosocial issues.

[08/19] In re David H.
Minor's removal from his mother's home is affirmed where there was substantial evidence that, at the time of a July 2007 hearing, the child faced a substantial risk of serious physical harm from mother because there was a substantial risk that mother would resort to physical violence in disciplining him.

[08/14] Lemons v. Bradbury
In an action brought by voters who signed a referendum, which sought a statewide vote on a legislative act establishing same-sex domestic partnerships, challenging the Oregon Secretary of State's procedures for verifying referendum petition signatures, denial of permanent injunctive relief for plaintiffs is affirmed where the Secretary's procedures for verifying sampled referendum petition signatures did not violate plaintiffs' equal protection and due process rights.

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Government Benefits

[08/27] County of Santa Clara v. Astra USA, Inc.
In a lawsuit brought by certain federally funded medical clinics claiming that they have been overcharged for certain prescription drugs in violation of pharmaceutical pricing agreements between the Secretary of Health and Human Services and drug manufacturer defendants, dismissal of the complaint for failure to state a claim is reversed where plaintiffs are intended direct beneficiaries of those agreements and thus had the right to enforce the agreements' discount provisions against the manufacturers and sue them for reimbursement of excess payments.

[08/25] Carpenter v. Astrue
Denial of claimant's applications for social security disability insurance and supplemental security income benefits is reversed and remanded where: 1) the ALJ erred by failing to discuss Listing 12.05C, and his findings elsewhere in his decision were inadequate to render such error harmless by unambiguously negating her claim to satisfy the elements of that listing; 2) the ALJ improperly failed to tie his conclusion that claimant did not meet or equal Listing 12.05D to the evidence; and 3) the ALJ's step five analysis where he determined that claimant had the capability of performing other available work was undercut by the prior errors.

[08/25] Uhm v. Humana Inc.
In a contract, tort, and consumer protection law action brought by Medicare beneficiaries against a Medicare drug benefit program provider and its parent company, dismissal of the complaint and denial of reconsideration are affirmed where plaintiffs' claims are preempted by the express preemption provision of the Medicare Prescription Drug Improvement and Modernization Act of 2003.

[08/22] Stubbs-Danielson v. Astrue
Denial of an application for disability insurance benefits under the Social Security Act is affirmed over claims that the ALJ: 1) failed to give any res judicata effect to her prior disability finding; 2) improperly rejected the opinions of her treating doctors and improperly found claimant's testimony was not credible; and 3) failed to meet his burden of identifying specific jobs, available in significant numbers, which claimant could perform despite her impairments.

[08/22] Craft v. Astrue
Denial of a motion to alter or amend a judgment that plaintiff did not qualify for Disability Insurance or Supplemental Security Income benefits is reversed and remanded where: 1) there was not an "accurate and logical bridge" between the ALJ's recitation of the mental medical evidence and a decision to account for plaintiff's mental impairments by limiting him to unskilled work; and 2) the stated reasons of the ALJ for finding that plaintiff lacked credibility were contradicted by the objective evidence.

[08/22] Bowie v. Comm'r of Soc. Sec.
In an appeal from a denial of an application for social sec