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.
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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