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Renee v. Duncan (Ninth Circuit;No. 08-16661)
The Ninth Circuit reversed the district court’s grant of summary judgment in favor of the defendant, the Department of Education. The plaintiff’s challenged a federal regulation under No Child Left Behind Act (NCLB) which permitted teachers who participated in alternative route teacher training programs, but have not yet obtained full State certification, to be characterized as “highly qualified teachers” under NCLB. (Alternative routes to certification refers to non-traditional programs that are typically designed for people who already hold at least a bachelor’s degree in a field other than education).
The “highly qualified teachers” designation is important for State compliance with NCLB. NCBLA provides funds to states and schools under several sections – on appeal was Title I funds, which supplement the educational needs of disadvantaged students (Slip Opinion pg. 5; see also 20 U.S.C. §§6301 et seq.). A central premise of NCLB is good teachers – defined by Congress as “highly qualified” teachers; the goal by the end of 2005-2006 school years was to have only “highly qualified” teachers instruct core academic classes in school districts receiving Title I funds (Id. § 6319(a)(2)). NCLB contains a lengthy definition of “highly qualified teacher” (see 20 U.S.C. § 7801(23)(A)(i) and 34 C.F.R. § 200.56).
Plaintiffs challenged language in CFR § 200.56. Specifically they objected to characterizing as “highly qualified teacher” an alternative route teacher who has not yet obtained full state certification, but who merely “demonstrates satisfactory progress toward full certification[.]” (pg. 9, quoting § 200.56(a)(2)(ii)(A)(4) (emphasis in original). The California regulations on the issue “mimic[ed] the federal regulation challenged[.]” (pg. 12).
The reason for the challenge of the CFR was it allowed teachers without full certification to teach. Plaintiffs contend that the CFR (upon which the 2004 California regulations were based) allowed a “disproportionate number of interns to teach in minority and low-income schools in California” in violation of NCLB (pg. 12).
The court applied the Chevron framework to analyze the CFR (see Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)). The first question under the Chevron framework is to ask “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” (Id. at 842-843). The court determined that the intent of Congress was clear leaving the analysis at the first question (pg. 14).
The court found the CFR inconsistent with the intent of Congress in NCLB. The court stated the “precise question at issue” is the difference between the meaning of “has obtained” full State certification in the statute, 20 U.S.C. § 7801(23), and the meaning of “demonstrates satisfactory progress toward” full State certification in the regulation, 34 C.F.R. § 200.56(a)(2)(ii) (pg. 16). The analysis pitted language in the NCLB against language in the CFR interpreting NCLB.
Focused on this language the court held that by including in the definition an alternative route teacher who merely “demonstrates satisfactory progress toward” the requisite of “full state certification” the education secretary’s regulation impermissibly expanded the definition of “highly qualified teacher.”
Discussed above was only the majority opinion (look later for an analysis of the dissent). The opinion opens a new area of law at a timely moment in our nation. It also raises a thorny question for California on how to comply with NCLB and how to fill the teacher shortage without expanding the budget.
The “highly qualified teachers” designation is important for State compliance with NCLB. NCBLA provides funds to states and schools under several sections – on appeal was Title I funds, which supplement the educational needs of disadvantaged students (Slip Opinion pg. 5; see also 20 U.S.C. §§6301 et seq.). A central premise of NCLB is good teachers – defined by Congress as “highly qualified” teachers; the goal by the end of 2005-2006 school years was to have only “highly qualified” teachers instruct core academic classes in school districts receiving Title I funds (Id. § 6319(a)(2)). NCLB contains a lengthy definition of “highly qualified teacher” (see 20 U.S.C. § 7801(23)(A)(i) and 34 C.F.R. § 200.56).
Plaintiffs challenged language in CFR § 200.56. Specifically they objected to characterizing as “highly qualified teacher” an alternative route teacher who has not yet obtained full state certification, but who merely “demonstrates satisfactory progress toward full certification[.]” (pg. 9, quoting § 200.56(a)(2)(ii)(A)(4) (emphasis in original). The California regulations on the issue “mimic[ed] the federal regulation challenged[.]” (pg. 12).
The reason for the challenge of the CFR was it allowed teachers without full certification to teach. Plaintiffs contend that the CFR (upon which the 2004 California regulations were based) allowed a “disproportionate number of interns to teach in minority and low-income schools in California” in violation of NCLB (pg. 12).
The court applied the Chevron framework to analyze the CFR (see Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)). The first question under the Chevron framework is to ask “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” (Id. at 842-843). The court determined that the intent of Congress was clear leaving the analysis at the first question (pg. 14).
The court found the CFR inconsistent with the intent of Congress in NCLB. The court stated the “precise question at issue” is the difference between the meaning of “has obtained” full State certification in the statute, 20 U.S.C. § 7801(23), and the meaning of “demonstrates satisfactory progress toward” full State certification in the regulation, 34 C.F.R. § 200.56(a)(2)(ii) (pg. 16). The analysis pitted language in the NCLB against language in the CFR interpreting NCLB.
Focused on this language the court held that by including in the definition an alternative route teacher who merely “demonstrates satisfactory progress toward” the requisite of “full state certification” the education secretary’s regulation impermissibly expanded the definition of “highly qualified teacher.”
Discussed above was only the majority opinion (look later for an analysis of the dissent). The opinion opens a new area of law at a timely moment in our nation. It also raises a thorny question for California on how to comply with NCLB and how to fill the teacher shortage without expanding the budget.
Berry v. Asture (Ninth Circuit; No. 09-35421)
The Ninth Circuit reversed a Tacoma district court’s affirmation of an ALJ’s dismissal of a veteran’s disability claim. Daniel Berry, a military veteran, filed a claim for disability insurance benefits under 42 U.S.C. § 423 and supplemental security income benefits under 42 U.S.C. § 1382. His claim was denied by the ALJ who concluded that whether Berry could pass a drug test was irrelevant to the determination of disability under sections 423 and 1382.
Berry worked for about 14 years as a military communications and computer supervisor and 6 years as a courier driver (Slip Opinion pg. 3). He left his job in 2000 and sough treatment for low back pain and an abnormal gait. The VA determined that Berry was entitled to “individual unemployability” based on his inability to pass a drug test due to his pain medications. Berry applied for social security disability in 2005; the SSA denied his claim. Berry sought review and at a 2007 hearing the ALJ concluded that the Dictionary of Occupational Titles didn’t mention drug testing as a requirement for his previous work as a courier. The ALJ therefore found that because Berry could return to his past relevant work as a courier he was not disabled. The district court affirmed the ALJ’s findings and conclusion.
The SSA’s regulations (a sequential evaluation for assessing disability claims described in 20 C.F.R. 404.1520) explain that “if you can still do your past relevant work, we will find that you are not disabled” 20 C.F.R. § 404.1520(a)(4)(iv). To make this determination the SSA compares its “assessment of your residual functional capacity with the physical and mental demands of your past relevant work.” Id. § 404.1560(b); see also id. § 404.1520(f) (same). Applying this standard the ALJ and district court found the drug screening merely a hiring practice relevant to whether Berry could obtain his past work but not relevant to whether he could perform it (pg. 5).
The Ninth Circuit rejected what it described as a “restricted readings of the law” (Id.). The court held that a “mandatory requirement that employers cannot hire people with a certain level of pain medication in their blood is in essence a physical demand of the job” (Id.). The court further focused on language under § 423(d)(2)(A), which states that an individual is disabled “only if his physical or mental impairment [is] of such severity that he is . . . unable to do his previous work [or] engage in any other kind of substantial gainful work . . . regardless of . . . whether he would be hired if he applied for work.” (pg. 6) The court concluded that the “language excluding consideration of whether a claimant who sought work would in fact be hired cannot be construed to include a hiring practice that is directly tied to the claimant’s disability.” (pg. 6). Any other reading the court cautioned would defeat the entire statutory scheme.
The main issue of disability hearings is often the extent of physical impairment. The court on these facts equates pain medication in the blood stream as an impairment to performing the job, which makes sense, why else would employers screen for drugs? This reading of the law appears more common sense then novel. It’s also nice to find a case that comes after a final determination of the merits and not on summary judgment.
Berry worked for about 14 years as a military communications and computer supervisor and 6 years as a courier driver (Slip Opinion pg. 3). He left his job in 2000 and sough treatment for low back pain and an abnormal gait. The VA determined that Berry was entitled to “individual unemployability” based on his inability to pass a drug test due to his pain medications. Berry applied for social security disability in 2005; the SSA denied his claim. Berry sought review and at a 2007 hearing the ALJ concluded that the Dictionary of Occupational Titles didn’t mention drug testing as a requirement for his previous work as a courier. The ALJ therefore found that because Berry could return to his past relevant work as a courier he was not disabled. The district court affirmed the ALJ’s findings and conclusion.
The SSA’s regulations (a sequential evaluation for assessing disability claims described in 20 C.F.R. 404.1520) explain that “if you can still do your past relevant work, we will find that you are not disabled” 20 C.F.R. § 404.1520(a)(4)(iv). To make this determination the SSA compares its “assessment of your residual functional capacity with the physical and mental demands of your past relevant work.” Id. § 404.1560(b); see also id. § 404.1520(f) (same). Applying this standard the ALJ and district court found the drug screening merely a hiring practice relevant to whether Berry could obtain his past work but not relevant to whether he could perform it (pg. 5).
The Ninth Circuit rejected what it described as a “restricted readings of the law” (Id.). The court held that a “mandatory requirement that employers cannot hire people with a certain level of pain medication in their blood is in essence a physical demand of the job” (Id.). The court further focused on language under § 423(d)(2)(A), which states that an individual is disabled “only if his physical or mental impairment [is] of such severity that he is . . . unable to do his previous work [or] engage in any other kind of substantial gainful work . . . regardless of . . . whether he would be hired if he applied for work.” (pg. 6) The court concluded that the “language excluding consideration of whether a claimant who sought work would in fact be hired cannot be construed to include a hiring practice that is directly tied to the claimant’s disability.” (pg. 6). Any other reading the court cautioned would defeat the entire statutory scheme.
The main issue of disability hearings is often the extent of physical impairment. The court on these facts equates pain medication in the blood stream as an impairment to performing the job, which makes sense, why else would employers screen for drugs? This reading of the law appears more common sense then novel. It’s also nice to find a case that comes after a final determination of the merits and not on summary judgment.
Timely Topic - Video Taping Police
Found this blog entry from Wise Law Blog after reading a local news story about a witness recording an accident.
It's an interesting question, one that seems to pit freedom of speech and state police powers against one another.
It's an interesting question, one that seems to pit freedom of speech and state police powers against one another.
Powell’s Books v. Kroger – (Ninth Circuit; No. 09-35153)
The Ninth Circuit issued its opinion in Powell’s Books et al. v Kroger et al. The court held that a pair of Oregon statutes intended to stop child sexual abuse in its early stages were facially overbroad and criminalized a substantial amount of constitutionally protected speech (slip opinion pg. 11). The statutes in question were the “furnishing” statute (ORS § 167.054), which criminalized providing children under the age of 13 with sexually explicit material, and the “luring” statute (ORS § 167.057) which criminalized providing minors under the age of 18 with visual, verbal, or narrative descriptions of sexual conduct for the purpose of sexually arousing the minor or the furnisher, or inducing the minor to engage in sexual conduct. The state argued that sections 054 and 057 were aimed at the sharing of “hardcore pornography or material that is obscene to minors alone” (pg. 12).
The court decided the case on the basis of the statute’s overbreadth and applied a three part test. The first prong focused on the scope of the statute (United States v. Williams, 553 U.S. 285, 293 (2008)), the second focused on whether the statutes criminalized a “substantial amount” of expressive activity (Williams at 297). Finally the court considered whether the statute was “readily susceptible” to a limiting construction that would render it constitutional. Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 397 (1988).
The court found the scope of the statutes went beyond hardcore pornography. It held that the
Under the second prong the court used a rational basis test. It stated the framework under rational basis allows a prohibition on speech where the legislature finds “that exposure to material condemned by the statute is harmful to minors” (Ginsberg v. New York, 390 U.S. 629, 641 (1968)) even if the material is not obscene to adults (Am. Booksellers Found. v. Dean, 342 F.3d 96, 101 (2d Cir. 2003)). Otherwise speech that is neither obscene to youth nor subject to “some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” Erznoznik v. Jacksonville, 422 U.S. 205, 213-14 (1975). Under this framework the court held that sections 054 and 057 swept up material that “taken as a whole” had serious “literary, artistic, political, or scientific value for minors” (pg. 23).
The court found no reasonable limiting construction. Limited by the prohibition on “insert[ing] missing terms into the statute” (Foti v. City of Menlo Park, 146 F.3d 629, 639 (9th Cir. 1998); see also Frink, 653 P.2d at 557-58) and against “rewrite[ing] a state law to conform it to constitutional requirements” (Am. Booksellers, 484 U.S. at 397) the court held it couldn’t save the statute. The court addressed the argument by the state that it wouldn’t bring prosecutions against individual business like Powell’s Books (pg. 26). The court held that it “may not uphold the statutes merely because the state promises to treat them as properly limited.” (pg. 26).
The case relies on a well established framework for First Amendment overbreadth analysis. The case best stands as an example for legislative clarity in crafting restrictions on speech.
The court decided the case on the basis of the statute’s overbreadth and applied a three part test. The first prong focused on the scope of the statute (United States v. Williams, 553 U.S. 285, 293 (2008)), the second focused on whether the statutes criminalized a “substantial amount” of expressive activity (Williams at 297). Finally the court considered whether the statute was “readily susceptible” to a limiting construction that would render it constitutional. Virginia v. Am. Booksellers Ass’n, 484 U.S. 383, 397 (1988).
The court found the scope of the statutes went beyond hardcore pornography. It held that the
“text and context show that the statutes cover far more than what might qualify as hardcore pornography. The statutory text makes no mention of “hardcore pornography,” but rather refers to “sexually explicit material” and a “visual representation or explicit verbal description or narrative account of sexual conduct.” (pg. 17).
Under the second prong the court used a rational basis test. It stated the framework under rational basis allows a prohibition on speech where the legislature finds “that exposure to material condemned by the statute is harmful to minors” (Ginsberg v. New York, 390 U.S. 629, 641 (1968)) even if the material is not obscene to adults (Am. Booksellers Found. v. Dean, 342 F.3d 96, 101 (2d Cir. 2003)). Otherwise speech that is neither obscene to youth nor subject to “some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” Erznoznik v. Jacksonville, 422 U.S. 205, 213-14 (1975). Under this framework the court held that sections 054 and 057 swept up material that “taken as a whole” had serious “literary, artistic, political, or scientific value for minors” (pg. 23).
The court found no reasonable limiting construction. Limited by the prohibition on “insert[ing] missing terms into the statute” (Foti v. City of Menlo Park, 146 F.3d 629, 639 (9th Cir. 1998); see also Frink, 653 P.2d at 557-58) and against “rewrite[ing] a state law to conform it to constitutional requirements” (Am. Booksellers, 484 U.S. at 397) the court held it couldn’t save the statute. The court addressed the argument by the state that it wouldn’t bring prosecutions against individual business like Powell’s Books (pg. 26). The court held that it “may not uphold the statutes merely because the state promises to treat them as properly limited.” (pg. 26).
The case relies on a well established framework for First Amendment overbreadth analysis. The case best stands as an example for legislative clarity in crafting restrictions on speech.
Alday v. Raytheon Company (Ninth Circuit; No. 08-16984)
The Ninth Circuit yesterday in Alday v. Raytheon affirmed a summary judgment order in favor of a class of retirees from Raytheon which required Raytheon to continue to pay insurance premiums. Since 1972 Raytheon and its predecessor Hughes Missile Systems paid insurance premium of healthcare coverage for early retirees and their dependents until age 65. This was done according to a series of collective bargaining agreements (CBAs). In 2004 Raytheon changed its policies and limits its contributions to premiums for this class of retirees and began charging the plaintiffs monthly payments for their healthcare. Naturally the retirees sued for breach of the CBAs and also alleged violations of the Labor Management Relations Act (29
U.S.C. § 185) and Employee Retirement Income Security (ERISA, 29 U.S.C. § 1132).
The district court granted the plaintiffs motion for summary judgment. The district court concluded that the CBAs obligated Raytheon to continue to pay the premiums. The appeals court described the dispute as a matter of contract interpretation.” The CBAs contained an express duration. In subsequent ERISA plans Raytheon reserved rights to itself to terminate the payments. The court however found repeated statements where “Raytheon expressly agreed to continue to pay premiums for medical insurance for the plaintiffs until retirees and their spouses became 65 years of age” (Slip Opinion pg. 15). The court held that Raytheon’s agreements therefore survived the expiration of the CBAs and couldn’t be unilaterally terminated by Raytheon using the rights it had reserved.
In a separate order Raytheon moved for judgment on the pleadings. The plaintiffs sought punitive and extra contractual damages, which the district court found them not entitled to. The Ninth Circuit stated that it didn’t need to determine whether the exceptions for such damages existed because the plaintiffs failed to alleged sufficient facts supporting their claim (pg. 15).
The court is rather run of the mill contracts interpretation opinion. It presents no new law.
U.S.C. § 185) and Employee Retirement Income Security (ERISA, 29 U.S.C. § 1132).
The district court granted the plaintiffs motion for summary judgment. The district court concluded that the CBAs obligated Raytheon to continue to pay the premiums. The appeals court described the dispute as a matter of contract interpretation.” The CBAs contained an express duration. In subsequent ERISA plans Raytheon reserved rights to itself to terminate the payments. The court however found repeated statements where “Raytheon expressly agreed to continue to pay premiums for medical insurance for the plaintiffs until retirees and their spouses became 65 years of age” (Slip Opinion pg. 15). The court held that Raytheon’s agreements therefore survived the expiration of the CBAs and couldn’t be unilaterally terminated by Raytheon using the rights it had reserved.
In a separate order Raytheon moved for judgment on the pleadings. The plaintiffs sought punitive and extra contractual damages, which the district court found them not entitled to. The Ninth Circuit stated that it didn’t need to determine whether the exceptions for such damages existed because the plaintiffs failed to alleged sufficient facts supporting their claim (pg. 15).
The court is rather run of the mill contracts interpretation opinion. It presents no new law.
U.S. v. Pineda-Moreno - Appealing to the Supreme Court
I was delighted to hear on the radio this Friday that Pineda-Moreno will appeal the Ninth Circuit's ruling handed down a couple of weeks ago. As outlined in my earlier blog post - the majority affirmed the district court's ruling, which held the Fourth Amendment allowed police to enter Pineda-Moreno's driveway and install a GPS tracking unit under his SUV without a warrant. His attorney plans to rely on the dissenting opinion in his appeal.
This case is likely to be heard by the Supremes because it presents a novel question of how the Fourth Amendment grows with technology. The use of GPS presents a new question of privacy not unlike the thermal imaging technology presented in Kyllo v. US (533 U.S. 27 (2001)). How the case will come out of the Supreme Court is out of my realm of guessing. I do know that the dissenting opinion is well reasoned and quite compelling. If enough justices are persuaded by it then Pineda-Moreno stands a good chance of a favorable result.
This case is likely to be heard by the Supremes because it presents a novel question of how the Fourth Amendment grows with technology. The use of GPS presents a new question of privacy not unlike the thermal imaging technology presented in Kyllo v. US (533 U.S. 27 (2001)). How the case will come out of the Supreme Court is out of my realm of guessing. I do know that the dissenting opinion is well reasoned and quite compelling. If enough justices are persuaded by it then Pineda-Moreno stands a good chance of a favorable result.
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Mt. Hawley Ins. – Remand or Remain?
The Ninth Circuit issued its opinion in Atlantic National Trust v. Mt. Hawley Ins. The court held that it lacked appellate jurisdiction to review a federal district court order remanding a case to state court based on a ground colorably characterized as a “defect” for purposes of 28 U.S.C. § 1447(c).
In October 2008 a fire caused $10million in damage to buildings owned by Lebanon Hardboard LLC. Atlantic National Trust and Tritalent Funding Group loaned Lebanon money and retained a security interest in the buildings. The secured parties required that Lebanon maintain fire insurance on the property and assign all insurance proceeds to the respective secured parties. At the time of the fire Lebanon had submitted an application for fire insurance to agents of Mt. Hawley Insurance, which had issued an insurance binder but not the actual policy before the fire. The binder failed to assign or mention Atlantic and Tritalent as payees.
In the suit that followed Atlantic filed a complaint against Mt. Hawley, its agents, Lebanon and Tritalent in Oregon state court. Atlantic gave Mt. Hawley and Lebanon courtesy copies of the complaint but didn’t serve them. Mt. Hawley filed a motion to remove to federal court, which Lebanon and Tritalent along with Atlantic later moved to remand back to state court.
In deciding whether the court could exercise appellate review the court used a two part test. The first part asks whether the remand order is based on grounds enumerated in § 1447(c). Next the court, under Supreme Court precedent in Powerex v. Reliant Energy Servs., Inc., 551 U.S. 224
(2007), determines whether the grounds that form the basis of the remand order are “colorable.” Only if a trial judge “exceeded his statutorily defined power” by remanding “a properly removed case on grounds that he had no authority to consider” can an appellate court exercise jurisdiction over the appeal (Slip Opinion pg. 7, citing Thermtron Prods. Inc. v. Hermansdorfer, 423 U.S. 336, 351 (1976)). The court found the district court based its order on a violation of the unanimity rule and this ground was both enumerated under § 1447(c) and colorable (i.e. wasn’t based on as docket congestion or abstention) (pg. 13,14).
The court’s opinion doesn’t create any new law. In fact it goes out of its way in the final pargarphs to make clear that some of Mt. Hawley’s arguments present unsettled law that the court doesn’t need to reach to decide whether it had jurisdiction (pg. 16). The opinion does serve as a great model for the framework to analyze a remand order under § 1447(c).
In October 2008 a fire caused $10million in damage to buildings owned by Lebanon Hardboard LLC. Atlantic National Trust and Tritalent Funding Group loaned Lebanon money and retained a security interest in the buildings. The secured parties required that Lebanon maintain fire insurance on the property and assign all insurance proceeds to the respective secured parties. At the time of the fire Lebanon had submitted an application for fire insurance to agents of Mt. Hawley Insurance, which had issued an insurance binder but not the actual policy before the fire. The binder failed to assign or mention Atlantic and Tritalent as payees.
In the suit that followed Atlantic filed a complaint against Mt. Hawley, its agents, Lebanon and Tritalent in Oregon state court. Atlantic gave Mt. Hawley and Lebanon courtesy copies of the complaint but didn’t serve them. Mt. Hawley filed a motion to remove to federal court, which Lebanon and Tritalent along with Atlantic later moved to remand back to state court.
In deciding whether the court could exercise appellate review the court used a two part test. The first part asks whether the remand order is based on grounds enumerated in § 1447(c). Next the court, under Supreme Court precedent in Powerex v. Reliant Energy Servs., Inc., 551 U.S. 224
(2007), determines whether the grounds that form the basis of the remand order are “colorable.” Only if a trial judge “exceeded his statutorily defined power” by remanding “a properly removed case on grounds that he had no authority to consider” can an appellate court exercise jurisdiction over the appeal (Slip Opinion pg. 7, citing Thermtron Prods. Inc. v. Hermansdorfer, 423 U.S. 336, 351 (1976)). The court found the district court based its order on a violation of the unanimity rule and this ground was both enumerated under § 1447(c) and colorable (i.e. wasn’t based on as docket congestion or abstention) (pg. 13,14).
The court’s opinion doesn’t create any new law. In fact it goes out of its way in the final pargarphs to make clear that some of Mt. Hawley’s arguments present unsettled law that the court doesn’t need to reach to decide whether it had jurisdiction (pg. 16). The opinion does serve as a great model for the framework to analyze a remand order under § 1447(c).
Nader and Ballot Access in Hawaii
The Ninth Circuit today affirmed a Hawaii district court’s grant of summary judgment in favor of the Elections Commissioner who denied Independent Candidates for President Ralph Nader and Michael Peroutka access to Hawaii’s ballot for the 2004 presidential election. Nader and Peroutka appealed the ruling arguing that Hawaii’s ballot access laws violated the Equal Protection Clause and/or the First and Fourteenth Amendments. The Hawaiian framework requires either a certain number of signatures or filing a petition 170 days before a primary to form a “qualified party” in order to be on the ballot.
The court quickly rejected the appeal. Under its first amendment analysis the court found that “[t]he Constitution (U.S. Const. Art. I, § 4, cl. 1) provides that States may prescribe‘[t]he Times, Places and Manner of holding Elections for Senators and Representatives,’” and the Supreme Court has recognized that States retain the “power to regulate their own elections.” Burdick v. Takushi, 504 U.S. 428, 433 (1992) (slip opinion pg. 5). The court found that under this authority states can apply some restrictions to ballot access but will only apply strict scrutiny where the “magnitude of the asserted injury” warranted such review. It held that strict scrutiny did not apply to the plaintiff’s because the burden placed was de minimis.
The court also summarily dismissed the equal protection argument, calling it “unpersuasive” under existing authority. The opinion doesn’t make much new law. It largely relies on Supreme Court authority and its own factual analysis in determining how onerous the Hawaiian framework is. Third party candidates aren’t barred from the ballot, but in the future are reminded to follow the framework and not rely on the courts.
The court quickly rejected the appeal. Under its first amendment analysis the court found that “[t]he Constitution (U.S. Const. Art. I, § 4, cl. 1) provides that States may prescribe‘[t]he Times, Places and Manner of holding Elections for Senators and Representatives,’” and the Supreme Court has recognized that States retain the “power to regulate their own elections.” Burdick v. Takushi, 504 U.S. 428, 433 (1992) (slip opinion pg. 5). The court found that under this authority states can apply some restrictions to ballot access but will only apply strict scrutiny where the “magnitude of the asserted injury” warranted such review. It held that strict scrutiny did not apply to the plaintiff’s because the burden placed was de minimis.
The court also summarily dismissed the equal protection argument, calling it “unpersuasive” under existing authority. The opinion doesn’t make much new law. It largely relies on Supreme Court authority and its own factual analysis in determining how onerous the Hawaiian framework is. Third party candidates aren’t barred from the ballot, but in the future are reminded to follow the framework and not rely on the courts.
New Rights under §1983, New Worries for CA
A New Right
Yesterday the Ninth Circuit issued its opinion in CA State Foster Parent v. Wagner. The court affirmed the district court’s denial of the state’s motion that the Children Welfare Act (42 U.S.C. § 670 et seq.) did not create a federal cause of action under §1983. For the first time the Ninth Circuit held that the CWA “grants foster care providers a federal statutory right to payments that cover certain enumerated costs, a right redressable under § 1983[.]” (Slip Opinion at pg. 6).
A right the court the court states (and carefully outlines) “flows from” controlling Supreme Court and Ninth Circuit authority governing “when federal statutes create federal rights…” (pg.6) (explaining later in the opinion the question is one of Congressional intent and under Supreme Court authority “a federal statute can create an enforceable right under § 1983 when it explicitly confers a specific monetary entitlement on an identified beneficiary.” See Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 110 S. Ct. 2510, 110 L. Ed. 2d 455 (1990) (recognizing health care providers’ right to reasonable reimbursement rates under the Medicaid Act); Wright v. Roanoke Redev. & Hous. Auth., 479 U.S. 418, 107 S. Ct. 766, 93 L. Ed. 2d 781 (1987) (recognizing public housing tenants’ right to reimbursement for utilities charges in excess of rental costs permitted by the Public Housing Act); see also Gonzaga, 536 U.S. at 280 (reaffirming Wilder and Wright).
A New Worry
The suit was brought by three associations representing individual foster parents in CA. Under the CWA Congress provided money to state governments to pay for children’s foster care and adoption assistance programs. The statute “spells out the specific foster care provider expenses that states’ payments are supposed to cover.” (pg. 5) see also 42U.S.C. §§ 672(a) and 675(4)(A). The last adjustment to these costs was made by California in 1990. The suit was the result of those parents becoming concerned that the state’s payments were falling short of the costs enumerated in the CWA.
The suit follows Allenby where the court assumed, but never decided, there was a federal right created by the CWA. See California Alliance of Child and Family Services v. Allenby, 589 F.3d 1017 (9th Cir. 2009) (“Allenby II”). The court also issue its opinion despite the parties in Wagner have resolved the merits through mediation. The decision presented not only an unusual procedural posture, but what was likely becoming an increasing question in light of the state’s budget problem. The decision places pressure on a financially strapped state to increase payments to comply with the CWA. How the state will manage this new costs will be interesting to watch unfold.
Yesterday the Ninth Circuit issued its opinion in CA State Foster Parent v. Wagner. The court affirmed the district court’s denial of the state’s motion that the Children Welfare Act (42 U.S.C. § 670 et seq.) did not create a federal cause of action under §1983. For the first time the Ninth Circuit held that the CWA “grants foster care providers a federal statutory right to payments that cover certain enumerated costs, a right redressable under § 1983[.]” (Slip Opinion at pg. 6).
A right the court the court states (and carefully outlines) “flows from” controlling Supreme Court and Ninth Circuit authority governing “when federal statutes create federal rights…” (pg.6) (explaining later in the opinion the question is one of Congressional intent and under Supreme Court authority “a federal statute can create an enforceable right under § 1983 when it explicitly confers a specific monetary entitlement on an identified beneficiary.” See Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 110 S. Ct. 2510, 110 L. Ed. 2d 455 (1990) (recognizing health care providers’ right to reasonable reimbursement rates under the Medicaid Act); Wright v. Roanoke Redev. & Hous. Auth., 479 U.S. 418, 107 S. Ct. 766, 93 L. Ed. 2d 781 (1987) (recognizing public housing tenants’ right to reimbursement for utilities charges in excess of rental costs permitted by the Public Housing Act); see also Gonzaga, 536 U.S. at 280 (reaffirming Wilder and Wright).
A New Worry
The suit was brought by three associations representing individual foster parents in CA. Under the CWA Congress provided money to state governments to pay for children’s foster care and adoption assistance programs. The statute “spells out the specific foster care provider expenses that states’ payments are supposed to cover.” (pg. 5) see also 42U.S.C. §§ 672(a) and 675(4)(A). The last adjustment to these costs was made by California in 1990. The suit was the result of those parents becoming concerned that the state’s payments were falling short of the costs enumerated in the CWA.
The suit follows Allenby where the court assumed, but never decided, there was a federal right created by the CWA. See California Alliance of Child and Family Services v. Allenby, 589 F.3d 1017 (9th Cir. 2009) (“Allenby II”). The court also issue its opinion despite the parties in Wagner have resolved the merits through mediation. The decision presented not only an unusual procedural posture, but what was likely becoming an increasing question in light of the state’s budget problem. The decision places pressure on a financially strapped state to increase payments to comply with the CWA. How the state will manage this new costs will be interesting to watch unfold.
Ninth Circuit Manual of Model Criminal Jury Instructions, 2010 Ed. Available
The Ninth Circuit Jury Instructions Committee has completed an extensive revision of the Ninth Circuit Manual of Model Criminal Jury Instructions. The 2010 edition of the Manual contains a number of new instructions and is updated with cases and statutes through July 2010.
The 2010 edition includes renumbered instructions from the 2003 edition; a conversion table is posted online and provides equivalent jury instruction numbers in the 2003 edition.
The instructions are available at: http://207.41.19.15/web/sdocuments.nsf/crim
The 2010 edition includes renumbered instructions from the 2003 edition; a conversion table is posted online and provides equivalent jury instruction numbers in the 2003 edition.
The instructions are available at: http://207.41.19.15/web/sdocuments.nsf/crim
Seattle
No posts today, Im in Seattle networking, job hunting and enjoying the sunshine! Check back tomorrow for a new post.
Summary Judgment and the Americans with Disabilities Act
The Ninth Circuit issued an opinion today in EEOC v. UPS (http://www.ca9.uscourts.gov/datastore/opinions/2010/08/27/08-56874.pdf).
The court reversed the district court's grant of summary judgment in favor of UPS. Notably the court held that summary judgment is not appropriate where "there is a disputed issue of fact" concerning the effectiveness of modifications made by the employer" where the "employer was aware or should have been aware that" the modifications made were not effective(pg. 17).
Under the ADA employers must make "reasonable accommodations" to qualified individuals unless the employer can show that such accommodations would impose an undue hardship. The court carefully outlined what makes a reasonable accommodation:
EEOC regulations define the term reasonable accommodation:
The court's summary judgment analysis circumscribes a new limit in the circuit on the application of summary judgment in ADA cases. A limit that may creep into other areas of employment discrimination.
The court reversed the district court's grant of summary judgment in favor of UPS. Notably the court held that summary judgment is not appropriate where "there is a disputed issue of fact" concerning the effectiveness of modifications made by the employer" where the "employer was aware or should have been aware that" the modifications made were not effective(pg. 17).
Under the ADA employers must make "reasonable accommodations" to qualified individuals unless the employer can show that such accommodations would impose an undue hardship. The court carefully outlined what makes a reasonable accommodation:
EEOC regulations define the term reasonable accommodation:
“[m]odifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed
by its other similarly situated employees without disabilities.” 29 C.F.R. § 1630.2(o)(1)(iii).
“An ineffective ‘modification’or ‘adjustment’ will not accommodate a disabled individual’s limitations.” Barnett, 535 U.S. at 400. Ineffective modifications
therefore are not accommodations. Cf. Humphrey v. Mem’l Hosps. Ass’n, 239 F.3d 1128, 1137 (9th Cir. 2001)(“An appropriate reasonable accommodation must be effective,
in enabling the employee to perform the duties of the position.” (internal quotation marks omitted)).
“The reasonablenessof an accommodation is ordinarily a question of
fact.” Lujan v. Pac. Mar. Ass’n, 165 F.3d 738, 743 (9th Cir.
1999)."
The court's summary judgment analysis circumscribes a new limit in the circuit on the application of summary judgment in ADA cases. A limit that may creep into other areas of employment discrimination.
Out of Touch - U.S. v. Pineda-Moreno
While enjoying breakfast this morning and skimming the news headlines I came across a story on CNN. The headline read "Police can secretly tack GPS on your car" (http://www.cnn.com/2010/CRIME/08/27/oregon.gps.surveillance/index.html?hpt=T1). The story piqued my interest and lead me to read the Ninth Circuit's latest denial of Pineda-Moreno's appeal of the warrantless entry on his drive way to install and later use a GPS tracking device on his car. After a decision by a three judge panel the full court wouldn't reconsider the appeal and affirmed the district court.
Out of Touch with Society
The dissent rips into the panel's decision. It begins by analyzing why the court refused to recognize the curtilage (a "quaint word" that describes in modern law mean "those portions of a homeowner’s property so closely associated with
the home as to be considered part of it") as a place where Pineda-Moreno, and any person really, enjoyed a reasonable expectation of privacy. Supreme Court precedent, neatly laid out in the dissent, supports a reasonable expectation of privacy in the curtilage.
Yet the majority, after the government conceded the driveway was curtilage, reasons that it isn't protected because the "driveway was open to the public in that strangers wishing to reach the door of his trailer to deliver the newspaper or to visit someone would have to go through the driveway to get to the house.” Pineda-Moreno,591 F.3d 1212, 1215. Ignoring the protection provided when the mail is delivered or the electric meter read, the court finds that because the police can do what an "uninvited child" can do, crawl under a fence or under a car, there is no reasonable expectation of privacy.
As the dissent notes the majority is out of touch with the "vast majority" of citizens in the Circuit (and truly across the nation) who:
"...will see their privacy materially diminished by the panel’s ruling.
Open driveways, unenclosed porches, basement doors left
unlocked, back doors left ajar, yard gates left unlatched,
garage doors that don’t quite close, ladders propped up under
an open window will all be considered invitations for police
to sneak in on the theory that a neighborhood child might, in
which case, the homeowner “would have no grounds to complain.”
The court more than affirming a bad district court decision, affirmed that many of the judges live in a bubble.
Out of Touch with Technology
More than leaving unenclosed areas unprotected the Ninth Circuit, like many courts, doesn't appear to understand technology. The majority compares the GPS used in Pineda-Moreno, to a beeper used in another case in 1983!(United States v. Knotts, 460 U.S. 276 (1983)). In Knotts the police attached a beeper, a radio transmitter that emitted only periodic signals, and which merely indicated when police were getting closer. GPS technology by contrast provides a pinpoint location at any time and virtually all the time.
The majority doesn't reason that there is a diminished expectation of privacy given advances in technology (a colorable argument in an age of Twitter, Smartphones, and Facebook). It closes its eyes to the leaps made in technology. Instead, it reasons the "government can obtain this information without implicating the Fourth Amendment" because "movements through public spaces" may be "observed by an actual or hypothetical observer" destroying any expectation of privacy. The dissent quickly highlights the flaw in this reasoning:
"You can preserve your anonymity from prying eyes, even in public, by traveling at night, through heavy traffic, in crowds, by using a circuitous route, disguising your appearance, passing in and out of buildings and being careful not to be followed. But there’s no hiding from the all-seeing network of GPS satellites that hover overhead, which never sleep, never blink, never get confused and never lose attention."
The court doesn't understand the technology and doesn't seem interested in taking time to ask questions. Instead it hobbles together an opinion based on flawed reasoning and out of date assumptions. The D.C. Circuit took a different approach, leading no doubt to a decision ultimately by the U.S. Supreme Court. It's unlikely the reasoning and the poor attention to precedent will survive review by the high court.
Out of Touch with Society
The dissent rips into the panel's decision. It begins by analyzing why the court refused to recognize the curtilage (a "quaint word" that describes in modern law mean "those portions of a homeowner’s property so closely associated with
the home as to be considered part of it") as a place where Pineda-Moreno, and any person really, enjoyed a reasonable expectation of privacy. Supreme Court precedent, neatly laid out in the dissent, supports a reasonable expectation of privacy in the curtilage.
Yet the majority, after the government conceded the driveway was curtilage, reasons that it isn't protected because the "driveway was open to the public in that strangers wishing to reach the door of his trailer to deliver the newspaper or to visit someone would have to go through the driveway to get to the house.” Pineda-Moreno,591 F.3d 1212, 1215. Ignoring the protection provided when the mail is delivered or the electric meter read, the court finds that because the police can do what an "uninvited child" can do, crawl under a fence or under a car, there is no reasonable expectation of privacy.
As the dissent notes the majority is out of touch with the "vast majority" of citizens in the Circuit (and truly across the nation) who:
"...will see their privacy materially diminished by the panel’s ruling.
Open driveways, unenclosed porches, basement doors left
unlocked, back doors left ajar, yard gates left unlatched,
garage doors that don’t quite close, ladders propped up under
an open window will all be considered invitations for police
to sneak in on the theory that a neighborhood child might, in
which case, the homeowner “would have no grounds to complain.”
The court more than affirming a bad district court decision, affirmed that many of the judges live in a bubble.
Out of Touch with Technology
More than leaving unenclosed areas unprotected the Ninth Circuit, like many courts, doesn't appear to understand technology. The majority compares the GPS used in Pineda-Moreno, to a beeper used in another case in 1983!(United States v. Knotts, 460 U.S. 276 (1983)). In Knotts the police attached a beeper, a radio transmitter that emitted only periodic signals, and which merely indicated when police were getting closer. GPS technology by contrast provides a pinpoint location at any time and virtually all the time.
The majority doesn't reason that there is a diminished expectation of privacy given advances in technology (a colorable argument in an age of Twitter, Smartphones, and Facebook). It closes its eyes to the leaps made in technology. Instead, it reasons the "government can obtain this information without implicating the Fourth Amendment" because "movements through public spaces" may be "observed by an actual or hypothetical observer" destroying any expectation of privacy. The dissent quickly highlights the flaw in this reasoning:
"You can preserve your anonymity from prying eyes, even in public, by traveling at night, through heavy traffic, in crowds, by using a circuitous route, disguising your appearance, passing in and out of buildings and being careful not to be followed. But there’s no hiding from the all-seeing network of GPS satellites that hover overhead, which never sleep, never blink, never get confused and never lose attention."
The court doesn't understand the technology and doesn't seem interested in taking time to ask questions. Instead it hobbles together an opinion based on flawed reasoning and out of date assumptions. The D.C. Circuit took a different approach, leading no doubt to a decision ultimately by the U.S. Supreme Court. It's unlikely the reasoning and the poor attention to precedent will survive review by the high court.
The PR Lawyer: Will your Digital Dirt Come Back to Haunt you?
The PR Lawyer: Will your Digital Dirt Come Back to Haunt you?: "In a recent Wall Street Journal online piece, 'Google and The Search for the Future' editors had the opportunity to sit down and talk with Google CEO, Eric Schmidt about his thoughts on the future of the company and Internet search as a whole.
Among many interesting points in the article, one that particularly stood out was Schmidt’s views of privacy and a prediction “that every young person one day will be entitled automatically to change his or her name on reaching adulthood in order to disown youthful hijinks stored on their friends' social media sites.”"
Among many interesting points in the article, one that particularly stood out was Schmidt’s views of privacy and a prediction “that every young person one day will be entitled automatically to change his or her name on reaching adulthood in order to disown youthful hijinks stored on their friends' social media sites.”"
Hamamoto - New Law or Same Ol' Summary Judgment?
A Ninth Circuit panel issued an opinion reversing a Hawaiian district court's grant of summary judgment in a Rehabilitation Act § 504 action. The Hamamoto Family alleged that because of their disabilities, their two daughters couldn’t enjoy meaningful access to the benefits of a public education, provided by the Hawaii public school system, without autism-specific services.
The opinion follows the court's previous ruling that § 504 did provide a private cause of action (see Mark H. v. Haw. Dep’t of Educ., 513 F.3d 922 (9th Cir. 2008)). (Rehabilitation Act § 504 “forbids organizations that receive federal funding, including public schools, from discriminating against people with disabilities.” (Pg 11 of Slip Opinion, citing 29 U.S.C. § 794(b)(2)(B); Mark H., 513 F.3d at 929; Bird v. Lewis & Clark Coll., 303 F.3d 1015, 1020 (9th Cir. 2002))). The slip opinion can be found at the following link (http://www.ca9.uscourts.gov/datastore/opinions/2010/08/26/09-15754.pdf).
Summary Judgment?
The opinion can be taken as an ordinary summary judgment case where the court would conduct a de novo review to determine whether genuine issues of material fact were present on the record. There are plenty of clues that make this opinion just that. For example, the court takes time to enumerate "disputed facts" and "undisputed facts" (see page 3 of the slip opinion). The court under both prongs of the § 504 claim and under a separate claim under Regulation § 104.33 ( this regulations required the Hawaii department of education to “provide a free appropriate public education to each qualified handicapped person who is in the recipient’s jurisdiction, regardless of the nature or severity of the person’s handicap” (see pg 18 of the slip opinion)) searches the record to determine if the plaintiff's allegations are supported by the evidence. In each case the court finds that the plaintiff's raised a genuine issue of material fact to survive summary judgment. In this sense, the opinion is par for the course and doesn’t create new law by modifying the summary judgment standard.
New Law?
The opinion takes turns away from the traditional analysis of determining whether there were material facts to analyze legal arguments raised by the defendant (perhaps an inquiry into the second prong of summary judgment, i.e. whether the moving party is entitle to judgment as a matter of law). The court carefully analyzes the defendant’s arguments to the § 504 claim.
Under § 504 the court finds that “meaningful access” is part of a “broader rule” (pg. 16). The court dismisses the defendant’s attempts to narrow the definition of meaningful access to a particular context by seeking to limit relevant cases to the elementary school context or by pegging it to the letter of the law in Regulation § 104.33 (merely requiring adequate parity between a disabled and non-disabled child).
The 9th Circuit is leading the way with its reading of § 504 and the manner it provides coverage where the Individual with Disabilities Education Act doesn’t. For an extended discussion on the differences between IDEA and § 504 please read Mark Weber’s article (http://works.bepress.com/cgi/viewcontent.cgi?article=1006&context=mark_weber)
The opinion follows the court's previous ruling that § 504 did provide a private cause of action (see Mark H. v. Haw. Dep’t of Educ., 513 F.3d 922 (9th Cir. 2008)). (Rehabilitation Act § 504 “forbids organizations that receive federal funding, including public schools, from discriminating against people with disabilities.” (Pg 11 of Slip Opinion, citing 29 U.S.C. § 794(b)(2)(B); Mark H., 513 F.3d at 929; Bird v. Lewis & Clark Coll., 303 F.3d 1015, 1020 (9th Cir. 2002))). The slip opinion can be found at the following link (http://www.ca9.uscourts.gov/datastore/opinions/2010/08/26/09-15754.pdf).
Summary Judgment?
The opinion can be taken as an ordinary summary judgment case where the court would conduct a de novo review to determine whether genuine issues of material fact were present on the record. There are plenty of clues that make this opinion just that. For example, the court takes time to enumerate "disputed facts" and "undisputed facts" (see page 3 of the slip opinion). The court under both prongs of the § 504 claim and under a separate claim under Regulation § 104.33 ( this regulations required the Hawaii department of education to “provide a free appropriate public education to each qualified handicapped person who is in the recipient’s jurisdiction, regardless of the nature or severity of the person’s handicap” (see pg 18 of the slip opinion)) searches the record to determine if the plaintiff's allegations are supported by the evidence. In each case the court finds that the plaintiff's raised a genuine issue of material fact to survive summary judgment. In this sense, the opinion is par for the course and doesn’t create new law by modifying the summary judgment standard.
New Law?
The opinion takes turns away from the traditional analysis of determining whether there were material facts to analyze legal arguments raised by the defendant (perhaps an inquiry into the second prong of summary judgment, i.e. whether the moving party is entitle to judgment as a matter of law). The court carefully analyzes the defendant’s arguments to the § 504 claim.
Under § 504 the court finds that “meaningful access” is part of a “broader rule” (pg. 16). The court dismisses the defendant’s attempts to narrow the definition of meaningful access to a particular context by seeking to limit relevant cases to the elementary school context or by pegging it to the letter of the law in Regulation § 104.33 (merely requiring adequate parity between a disabled and non-disabled child).
The 9th Circuit is leading the way with its reading of § 504 and the manner it provides coverage where the Individual with Disabilities Education Act doesn’t. For an extended discussion on the differences between IDEA and § 504 please read Mark Weber’s article (http://works.bepress.com/cgi/viewcontent.cgi?article=1006&context=mark_weber)
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