Opinion (Martini): Mayne Pharmaceuticals International Pty. Ltd. (Mayne) owned patent number 6,958,161 (’161), which described a modified release coating that controls the rate at which active pharmaceutical ingredients are released after ingestion. Warner Chilcott Laboratories Ireland Ltd. held the exclusive right to market and sell drugs using the ’161 patent, which it marketed under the name Dorxy Delayed Release Tablets. Mayne and Warner filed suit against Mylan Pharmaceuticals, Inc. (Mylan) and Impex Laboratories, Inc. (Impax), claiming their filing of Abbreviated New Drug Applications with the FDA, seeking approval to sell generic versions of Dorxy Tablets, infringed the ’161 patent. Mylan and Impex denied infringement, and asserted that the patent was invalid on grounds of anticipation and obviousness. Following a consolidated bench trial, the District Court held that neither generic formulation infringed the ’161 patent, because neither manufacturer applied the stabilizing coat required to infringe the patent in their manufacturing processes, and because Mayne and Chilcott could not establish the presence of the coating in either formulation by any of the five scientifically accepted tests. The District Court rejected Mylan and Impex’s allegations that the ’161 patent were invalid, finding that its stability, coating, and active ingredient limitations were not anticipated or obvious in light of prior art. The District Court REJECTED Mylan and Impex’s infringement claim.

Opinion (Forrest): Peggy Harley (Harley) brought suit against Ann Nesby (Nesby), alleging that Nesby’s song “I Apologize” infringed Harley’s song “It Will Never Happen Again.” In 2006, Harley met with
Vaughn Harper, and gave him a press kit containing five copies of the infringed song. Nesby did not deny that Harper then gave a copy to Nesby. Nesby wrote “I Apologize” in 2007. After listening to the songs, the Court found that the songs had substantially similar lyrics, and a strong thematic likeness. Finding both access and substantial similarity, the court GRANTED Harley’s motion for summary judgment.

The Art of Living Foundation (“AOLF”), founded by “His Holiness Sri Sri Ravi Shankar” (“Shankar”), offered fee based, educational courses. Two bloggers, using the pseudonyms “Skywalker” and “Klim,” had posted criticisms of Shankar’s methods, and included in their posts manuals only distributed to teachers of the method. AOLF claimed that the materials published were trade secrets, and that their revenue had decreased as a result of the manuals being posted. The court determined that there was an independent economic value, since even though the teachings were available to the public, the teacher training materials were not. The court further determined that AOLF had made the necessary efforts to keep the teacher training materials a secret. The free exercise clause did not cause the trade secrets to be dismissed. The second special motion to strike the trade secret claim was GRANTED as to Defendant Klim, and DENIED as to Skywalker.

Opinion (Robinson): OSI Pharmaceuticals (OSI) and Pfizer, Inc. owned patent nos. 5,747,498 (reissued as RE 41,065; “’065”) and 6,900,221 (’211), which were co-exclusively licensed to Genentech and used in the production of Tarceva, an anti-cancer drug. OSI, Pfizer, and Genentech sued Mylan Pharmaceuticals,
Inc. (Mylan) for infringement of the ’065 and ’211 patents following its submission of an Abbreviated New Drug Application to the FDA, seeking permission to sell a drug that infringed those patents. Mylan conceded infringement, but argued that the patents were invalid as either anticipated or obvious in light of prior art. Mylan claimed that the prior art, which differed from the ’065 patent by a single molecule, showed that OSI’s substitution would have been obvious to a reasonably skilled medicinal chemist. The District Court, however, credited OSI’s evidence and expert witnesses, finding that the broad number of molecules that could have been substituted for the changed molecule, and the fact that the toxicity of the molecule used in the ’065 patent “taught away” from its use, precluded Mylan from establishing either obviousness or anticipation clearly and convincingly. The Court also rejected Mylan’s argument that the ’065 patent anticipated ’211, finding that the references at issue spoke of “thousands of compounds” that could be used in the treatment of various cancers. Similarly, the District Court found that the uncertainty surrounding the ultimate success of the chemical in ’221 prevented Mylan from establishing obviousness clearly and convincingly. Thus, the District Court entered judgment for OSI.

Opinion (Koh): The Art of Living Foundation (AOLF-India) is based in India, with a chapter in the United States (AOLF-US). AOLF-US brought suit against “Skywalker” and “Klim” for blogging teaching manuals written by AOLF. Skywalker and Klim were former members of AOLF, but had since been critical of the foundation. AOLF-US had a copyright registration for the manuals, but because it was obtained more than five years after the original publication, the court looked to other evidence to corroborate the certificate. A declaration by AOLF-US said the manuals were written by AOLF for AOLF-India, showing that the copyright belonged to AOLF-India rather than AOLF-US. Absent any evidence that AOLF-US made any “non-trivial, original” contributions to the manual, the court gave the copyright registration no weight as evidence. In the alternative, AOLF-US claimed that AOLF-India transferred its rights to AOLF-US, just without the necessary written conveyance or written memorandum memorializing the transference. Because AOLF-US was unable to provide any evidence of its ownership of the copyright, the court GRANTED Skywalker and Klim’s motion for summary judgment on AOLF-US’s copyright claims.

Wife assigned error to the trial court’s spousal support award of $15,000 a month for five years, asking that either the duration or the amount of the trial court’s award be increased. Husband and Wife were married for 18 years and had acquired various debts and large amounts of property during their marriage. The Husband’s monthly income was about $42,000 a month, and there were no signs of a pending decrease. Applying the discretionary standard from Kunze and Kunze, the trial court`s award will be upheld if the findings from the record support the trial court’s decision. Additionally ORS 107.105 requires property division to be just and proper in all circumstances. On appeal, the issues concerned the spousal support awarded and the characterization of debt that was incurred from the remodel of the couple’s property. The Court of the Appeals found that the spousal support awarded by the trial court was consistent with the evidence in the record, and the trial court properly exercised its discretion because the court acted appropriately in light of the just and proper standard. Affirmed.

Mother appealed the termination of her parental rights. The Mother’s son, E, was removed from her care under ORS 419B.504 based on unfitness following the non- accidental injuries of E’s older step brothers under Father’s supervision. After pleading guilty to criminal mistreatment, Father was sentenced to 31 months imprisonment. Mother participated in parenting training, health counseling, and received a psychological evaluation, but violated a non-contact order when she communicated with Father under a pseudonym. The psychological evaluation revealed that Mother failed to recognize Father as a threat to the children. The juvenile court terminated both parents’ rights to E after a termination trial. Mother appealed claiming that E was not in a position that was seriously detrimental at the time of termination. When determining the fitness of a parent, the test is at the time of termination and focuses on the detrimental effects of the parent’s conduct on the child. The Court found that Mother’s failure to fully recognize Father’s threat to E, her unwavering allegiance to the Father, and the likeliness that she will fail to place E’s needs above her own in this matter make it unlikely E can be reintroduced into her care. Therefore, her conduct was extremely detrimental to E. Affirmed.

Mannex Corp. (Mannex) appealed trial court’s decision granting summary judgment to Bruns. Mannex brought an action against Bruns for intentional interference with economic relations (IIER) and defamation. Bruns was a purchasing manager at PCC Structurals Inc. (PCC). Bruns compiled a report of indiscretions made by Mannex during their business interactions and told other employees and the employer of her distrust of Mannex. These actions, along with subsequent policy infractions by Mannex, led to the complete termination of Mannex as a vendor for PCC. The trial court held that the plaintiff did not introduce enough evidence demonstrating Bruns was a third party and that her actions were the cause of legal injury. The Court of Appeals found that with respect to the IIER there was no evidence Bruns was a third party. For the defamation claim, there was evidence that Mannex was terminated as a vendor because of Bruns’ reports and statements and that there was legal injury. However, because her statements were made to protect the interests of her employer, the statements were qualifiedly privileged. Therefore, summary judgment on the defamation claim was appropriate. Affirmed.

Defendant petitioned for reconsideration after the Oregon Court of Appeals reversed a conviction of second-degree assault and remanded for an entry of conviction for third-degree assault, believing a conviction of fourth-degree assault was appropriate. Defendant claimed that third-degree assault was not a lesser-included charge because the required element alleging the ages of the defendant and victim were not included in that charge, though the ages were alleged in other counts. The Court of Appeals agreed, stating that an offense is a lesser-included offense only when the elements of the lesser-included is included in the greater offense, or when the elements of the lesser-included offense are expressly included in the charging instrument. The Court held that “a court cannot convict on a charge for which the defendant was not indicted unless the conviction is for an offense that is a lesser-included offense within the offense charged in the indictment.” Reconsideration allowed. Remanded for sentencing; otherwise affirmed.

Wife appealed a trial court`s distribution of property. Husband and Wife were married for 14 years at the time of dissolution. Husband was employed at a closely held corporation and had worked out an agreement with the current owners that gifted 1.25 shares in the corporation to Husband and Wife per year. This would continue until they owned 51 percent of the company. The trial court found that the value of the shares was too speculative because the shares did not have a market value independent of the corporation since they were only a minority interest in the corporation, and would not have value until liquidated. As a result, the trial court ordered each party to retain his or her shares in the corporation. On appeal, Wife argued that the Court should instead distribute Wife’s shares to Husband and Husband should pay Wife an equalizing judgment for the value of the shares. The Court reviewed for abuse of discretion and held that when adequately supported by the record, it is legally permissible for the trial court to not distribute Wife’s shares in exchange for an equalizing judgment. Given that the value of the shares was too speculative, the trial court did not abuse its discretion. Affirmed.

Krohn appealed the trial court’s grant of Hood River School District’s (HRSD) motion to dismiss. Krohn was an employee of HRSD who filed claims for unpaid wages. HRSD argued in its motion to dismiss that, under ORCP 21 A(1), Krohn did not exhaust administrative remedies before filing in the trial court, and therefore the trial court did not have jurisdiction. On appeal, Krohn argues that her claims are not covered by the collective bargaining agreement (CBA), and thus she does not have to exhaust her administrative remedies first. The Court of Appeals held that Krohn’s claims are not governed by the CBA, but rather are statutory in nature. The trial court erred in dismissing Krohn’s claims. Reversed and remanded.

Defendant appealed the trial court’s ruling allowing in evidence of a prior bad act. Defendant was accused of hitting his girlfriend, Ms. Feinstein in the mouth and burning her with a cigarette during an argument. He was subsequently charged and convicted of two counts of fourth-degree assault and two counts of harassment. After Defendant’s opening statement the State moved in limine for a ruling on the admissibility of Defendant’s prior act of hitting the Ms. Feinstein in the lip during an argument. Defendant asserts that the trial court’s ruling was in error because the evidence was proffered to prove intent, which was not in dispute because Defendant was denying that he caused the injuries to Ms. Feinstein. The Court of Appeals held that where intent is an element to a crime charged the State is permitted to offer evidence of prior misconduct to show intent even where the accused is not contesting the issue of intent. Affirmed.

Respondents Evan Braude (Braude) and Karla Braude (Karla) appealed the trial court’s entry of two stalking protective orders (SPOs). Braude and Petitioner J.L.B. divorced in 2007. On May 1, 2010, after Braude and his new wife Karla drove by, parked in front and took photographs of J.L.B.’s home on numerous occasions, J.L.B. sought and obtained temporary SPOs against Braude and Karla. In July 2010, the trial court determined that Braude’s and Karla’s actions were enough to support the two permanent SPOs that J.L.B. sought. The Court of Appeals held that the evidence on which the trial court relied was insufficient to support the issuance of the permanent SPOs under ORS 30.866(1) because Braude’s and Karla’s actions would not place a victim in reasonable apprehension concerning their personnel safety. Reversed.

Defendant appealed the trial court’s denial of his motion to suppress. Defendant was arrested on suspicion of domestic assault and searched for weapons. During the search, the officer found a closed cigarette box and, without a warrant, opened it, discovering methamphetamine. The trial court found that, though unlawfully obtained, the police would still have discovered it through their inventory policy. Defendant argued that the policy was unconstitutional. The Court of Appeals found that the police inventory policy granted too much discretion because it did not constrain the discretion of officers in searching containers that they inventoried. Reversed and remanded.

Blachana appealed for judicial review of the Bureau of Labor and Industry’s (BOLI) decision, which affirmatively concluded Blachana’s liability for wages owed to employees of the previous employer. ORS 652.310(1) includes an “employer” as “any successor to the business of any employer”. BOLI concluded that Blachana is an employer, thus liable for wages owed, due to use of a similar business name, use of the same beer vendor, use of the same location and equipment, and similar services offered. The Court of Appeals ruled that, while BOLI as an administrative agency may interpret the statutory meaning behind the clause, the meaning of a successor within the statute is a party that has assumed or conferred upon it the legal rights and obligations of the predecessor. Thus, Blachana was not liable for the wages owed or the penalty imposed by BOLI. Reversed and Remanded.

Crothers sought review of a determination by the Employment Appeals Board (Board) that Crothers was disqualified from receiving his unemployment benefits for 12 weeks under ORS 657.155(1)(c) because he was “unavailable to work” during that time. The Board determined that Crothers was a CPR instructor and was unavailable to work during the regular CPR instructor hours because he was attending evening classes to upgrade his CPR training. Crothers argued that the Board erred in this decision because his primary employment was as a construction superintendent, he was available during the regular superintendent day shift, and actively seeking employment in this area. The Court agreed with Crothers and found that teaching CPR was his avocation, and further found that the classes occurred in the evening which did not interfere with the regular superintendent day shift. Thus, Court concluded that the Board’s determination was not in accord with the evidence. Reversed and remanded.

The City of Eugene appealed the trial court’s judicial validation of the contract entered into by the Eugene Water and Electric Board (EWEB). EWEB entered into a contract under which it was to sell water to the City of Veneta. EWEB sought judicial validation of the contract and the City of Eugene intervened, arguing that under section 44(3) of the city charter, the “extension of water service” is subject to the control of, and approval by, the Eugene City Council. The trial court entered a judgment validating the contract because although the city charter gave the City Council control over “extension of water service,” the sale of water to another utility did not fit within that category. The Court of Appeals affirmed the decision of the lower court, holding that “water service” means the direct provision of water to end users, and is not so broad as to include the sale of water to another utility that then distributes water to those end users. Affirmed.

Defendant appealed the special conditions of probation that the trial court imposed in its sentencing. Defendant was charged with, and plead guilty to, third-degree sexual abuse for unlawfully and knowingly subjecting a 38-year-old woman to sexual contact without her consent. The trial court sentenced him to 36 months of supervised probation and imposed the special conditions that Defendant was prohibited from having contact with minors or frequenting places where minors assemble, despite no facts being presented at trial that Defendant had ever committed an offense involving minors. Defendant argued that these conditions were not reasonably related to his current offense or past offenses, the protection of the public, or his reformation. The Court of Appeals agreed that there is no connection between Defendant’s unlawful sexual conduct and his relationship to minors. Remanded for resentencing; otherwise affirmed.

Case appealed a judgment by the trial court that dismissed their common-law and statutory adverse possession claims against Burton. The parties own adjoining farmland property with no natural boundary between them. Case offered aerial photographs and witnesses to demonstrate the existence of a property line for the common-law and statutory time period to establish a claim for adverse possession. The trial court found that the aerial photographs and witnesses regarding the location of the property line were equivocal and the trial court could not determine that Case had adversely possessed any specific portion of Burton’s property for the time period. The Court of Appeals concluded that there was sufficient evidence in the record to support the finding of the trial court. Therefore, Case has failed to adequately identify the area that he claims to have adversely possessed under both common law and ORS 105.620. Affirmed.

Jennie Beltran is a fifty-six-year-old woman afflicted by numerous physical and mental limitations. The Commissioner of Social Security denied Beltran’s claim for Social Security Disability Insurance (“SSDI”) benefits and Social Security Income (“SSI”) benefits under Titles II and XVI of the Social Security Act (“the Act”). After finding that Beltran was not “disabled” under the Act, the administrative law judge (“ALJ”) denied her claim for SSDI benefits and partially denied her request for SSI benefits. Beltran appealed the district court’s grant of summary judgment in favor of the Commissioner. A person is “disabled” if her “impairments are of such severity that [she]…cannot, considering [her] age, education, and work experience, engage in any other kind of substantial work which exists in the national economy.” “Work which exists in the national economy” is defined as “work which exists in significant numbers either in the region where such individual lives or in several regions of the country.” A vocational expert testified that Beltran could have worked as a surveillance system monitor, and that 135 of such jobs existed regionally and 1,680 jobs existed nationally. From this the ALJ concluded that Beltran was not “disabled,” because such testimony proved that a “significant number” of jobs existed. The Court found that, when compared to other cases, 135 regional positions is a “very rare” number. Further, 1,680 jobs as a stand-alone figure seems to be a “significant number,” but is not when considering that these jobs extend across several regions. Moreover, the expert testified that surveillance monitor jobs were rare and that she was unaware of available positions in Beltran’s area of residence. Hence, such a job was also “generally unavailable” to Beltran. REVERSED and REMANDED.

Plaintiff foster children appeal the FRCP 12(b)(6) dismissal of their Due Process and statutory claims against state and county officials. The Court reviews the claims for the applicability of exceptions to the general rule that the 14th Amendment does not impose an affirmative duty on the government. Finding that the district court erred in determining that the rights plaintiffs claimed were violated were not clearly established constitutional rights, the Court reverses the district court’s finding of qualified immunity. The proper analysis applies a 2-part test to “(1) determine… the contours of a foster child’s clearly established rights at the time of the challenged conduct under the ‘special relationship’ doctrine of substantive due process, and (2) examine… whether a reasonable official would have understood that the specific conduct alleged by Plaintiffs violated those rights.” The district court also improperly disregarded the state-created danger exception because in the 9th circuit “the fact that the dangerous foster homes ‘already existed’ is irrelevant” because “the doctrine only applies in situations where the plaintiff was directly harmed by a third party.” The dismissal of statutory CWA claims was also improper because the Court finds that CWA establishes a right to case plans. CAPTA, on the other hand, does not unambiguously create an enforceable individual right, so the claims under that statute were properly dismissed. REVERSED in part, AFFIRMED in part, and REMANDED.

Jack Richard Ward, petitioner, was ordered by the court to pay $1,000 Crime Victim Fund Assessment and $27,885 in restitution to the crime victims, and the “Schedule of Payments” stated that they were due “immediately.” Unicor voluntarily employed Ward. Ward filed motions that were construed by the California district court as motion to vacate, set aside or correct sentence. The court concluded that the immediate repayment was impermissibly delegated to the Bureau of Prison (BOP) and ordered BOP to stop collecting. Government moved for reconsideration and the court dismissed because of lack of jurisdiction. First, the court considered the exhaustion requirement and the Court identified that the district court incorrectly dismissed the case because it did not wave the exhaustion requirement. The exhaustion requirement should have been waived because of the existence of BOP policy, since the exhaustion would be futile. Second, the Court addressed the merits of the petition. An earlier case foreclosed the argument of being “forced” to participate in the Inmate Financial Responsibility Program (IFRP). The question raised was “whether by ordering immediate restitution, the district court failed to set a payment schedule and delegated it’s duty to the BOP”. The district court’s responsibility to set payment schedule cannot be delegated. The Court deemed the order not valid unless a “proper” schedule is set, which led to the question of what entails a proper restitution order. The Court used the conclusion of sister circuits establishing that where defendant has no resources for immediate payment, the court may not order immediate payment because it would delegate the schedule of payments to the BOP, under the Mandatory Victim Restitution Act of 1996 (MVRA). The district court must set a schedule of payments considering the defendant’s financial resources so that the restitution order is lawful. The order by the sentencing court was not valid because it delegated the responsibility of scheduling payments to the BOP impermissibly. REVERSED and REMANDED

Nedds appealed the district court’s holding that his 28 U.S.C. § 2554 habeas corpus petition is barred by the one-year statute of limitations created by the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA). Nedds claimed he filed his petition within the statute of limitations, relying on Ninth Circuit precedent granting him statutory and equitable tolling, which was later overturned. Nedds was initially sentenced to 25 years in state prison. The conviction became final on June 22, 1999. Nedds filed habeas petitions with the California Court of Appeals and California Supreme Court, both of which were denied. On September 10, 2001, Nedds filed a habeas petition with the federal district court, which was denied for failing to meet the one-year statute of limitations under AEDPA. Nedds appealed, claiming that under Ninth Circuit precedent, he was entitled to equitable and statutory tolling. The case he relied upon was valid at the time of his petition, but later overturned by the Supreme Court. Nedds argued that he was entitled to equitable tolling while his habeas petitions were pending. The Ninth Circuit noted that the petitions were filed nine months before the precedent was overturned and therefore Nedds reliance on the precedent could be presumed. The Court held that Nedds was entitled to equitable tolling because he relied on Ninth Circuit precedent in filing his claim. District court’s order dismissing Nedds’ habeas petition is vacated, and remanded for consideration of Nedds’ petition. VACATED and REMANDED.

After the attacks on September 11, 2001, the government detained Jose Padilla, a U.S. citizen, under the material witness statute, and later charged him with unrelated crimes. Padilla alleges that during his detainment he was “held incommunicado in military detention, subjected to coercive interrogation techniques and detained under harsh conditions of confinement.” Petitioner brought suit against John Yoo, the Deputy Assistant Attorney General in the USDOJ Office of Legal Counsel from 2001 to 2003, alleging Yoo’s conduct at OLC was directly responsible for petitioner’s alleged unlawful treatment. Yoo appeals the district court’s denial of his motion to dismiss, arguing, inter alia, that he is entitled to qualified immunity. Citing Ashcroft v. al-Kidd, decided after the district court’s decision, the Court found that the law at the time Yoo acted was not “sufficiently clear that every reasonable official would have understood that what he was doing violated the plaintiff’s rights.” Padilla relied on cases involving ordinary prisoner and criminal settings, but the Court found that, as suggested in Ex parte Quirin, Padilla’s status as an “unlawful combatant” may afford “him lesser rights than ordinary prisoners or individuals in ordinary criminal settings.” Petitioner also relies on the plurality decision in Hamdi v. Rumsfeld, suggesting that a “citizen detained as an enemy combatant retains a fundamental right to be free from involuntary confinement without due process of law.” The Supreme Court, however, decided Hamdi in 2004, which did not put Yoo on clear notice of Padilla’s constitutional rights in 2001-03.” REVERSED.

Two nonprofit veterans organizations brought suit seeking declaratory judgment and injunctive relief against the Department of Veteran Affairs (VA), alleging that its management of veterans’ mental-health care services and service-related disability claims violate the Due Process Clause and statutory obligations to provide timely care. The district court denied Plaintiffs relief and they appealed. The Ninth Circuit reversed the district court on constitutional grounds but found that the VA’s management of claims did not violate due process. The Court granted the VA’s petition for a rehearing en banc. The Court, on rehearing, held that jurisdiction will be precluded by 38 U.S.C. § 511 when it requires the District Court to consider claims related to administering VA benefits. The Court held that it lacked jurisdiction to review Plaintiffs’ claims regarding delays in administering mental-health care and disability services and claims because it would require the Court to review and evaluate the VA’s procedures for dispensing veteran benefits. The Court, however, did find that the district court had jurisdiction to consider whether the non-adversarial adjudication of veterans’ service-related disability claims at the Regional Office level satisfied due process and found that the District Court properly decided that its adjudication process did satisfy due process. AFFIRMED in part, REVERSED in part, and REMANDED with instructions to DISMISS.

Mrs. Morgens and Mr. Morgens entered into the Morgens Family Living Trust Agreement, each contributing assets to a Living Trust. The Agreement provided that the remainder of a Residual Trust (that was eventually split) would be divided into shares for their offspring. The estate “elected QTIP treatment for the property passing to the Residual Trust.” Mrs. Morgens died within three years of her transfers of interests into the two Residual Trusts. But, the gift taxes for these transfers were not shown on her gross estate’s tax return. § 2035(b), the “gross-up rule,” requires that a gross estate be increased by the amount of gift taxes paid by the decedent or her estate within three years of her death. But if the marital deduction of § 2056(a) applies, the entire QTIP property is not included in the gross estate of the decedent. A transfer of the QTIP’s qualifying income interest is deemed to transfer the entire QTIP property, except the qualifying income interest. “§ 2207A gives the donor the right to recover the tax from the QTIP beneficiaries who receive the QTIP property transfer.” “Before the Tax Court, the Estate argued that the trustees paid the gift tax on the § 2519 deemed transfers.” Thus, the Estate appealed. A net gift being an arrangement where the gift is subject to the donee paying the resulting gift tax, the Court found that “the donor of a net gift uses the donee as a conduit for the payment of the tax liability.” Furthermore, “the payment of the gift taxes by the donee is taxable income to the donor.” AFFIRMED.

Courtney Crosby was convicted of failing to register as a sex offender. Because of his prior convictions of rape, forced copulation and robbery, he was convicted and sentenced to 26 years to life under California’s Three Strikes Law. The Court of Appeals affirmed the sentence. Crosby appealed on three grounds: the invalidity of his jury trial waiver; the district court’s denial of his withdrawal of the jury waiver; and the sentence imposed constitutes cruel and unusual punishment under the Eighth Amendment. The Ninth Circuit, reviewing the decision under a deferential standard required by the AEDPA, determined the decision was not an unreasonable application of established federal law. First, the jury waiver met all the necessary guidelines: Crosby understood what he was giving up, his attorney and the District Attorney agreed, and the court sanctioned it. Next, the withdrawal of the waiver was correctly denied because it was withdrawn on the morning of the trial, when several days had elapsed after the waiver and witnesses were prepared to speak. Finally, the sentence was not disproportionate because Crosby was convicted of failing to update his address. To reach this conclusion, the Court distinguished between two registration requirements. The address change requirement allows law enforcement to keep track of sex offenders, per state statute. Annual registration, on the other hand, is a back-up formality to ensure police have accurate information. The Court reasoned registering a change of address is crucial to the enforcement of the law, while a similar sentence may be excessive for the more regulatory function provided by the annual registration requirement. The Court concluded the lower courts did not unreasonably apply clearly established federal or state law, and thus the decision to deny the writ of habeas corpus was not objectively unreasonable. AFFIRMED.

Detrich was sentenced to death by an Arizona judge after a jury convicted him of murder, kidnapping, and sexual abuse. After exhausting his state remedies, Detrich filed a petition for a writ of habeas corpus in federal district court, alleging that his trial counsel was unconstitutionally ineffective by failing to investigate and present mitigating evidence, including history of abuse and expert neuropsychological testimony, during the sentencing hearing. This evidence was presented during post conviction relief. The district court denied relief and Detrich appealed. The Ninth Circuit reversed. The United States Supreme Court granted certiorari and vacated and remanded. The Ninth Circuit Court found that a petition for habeas corpus on a penalty-phase ineffective assistance of counsel claim is granted when: the Arizona post-conviction court unreasonably applied the clearly established federal law of Strickland; and the deficient performance prejudiced the defense, since there was a “reasonable probability” that the sentencing judge would have imposed a sentence less than death if sentencing-hearing council had obtained and presented expert testimony and reports of the defendant’s neuropsychological function. REVERSED AND REMANDED.

Martha Karl (“Karl”) was employed as a Confidential Administrative Assistant to Chief of Police and gave a subpoenaed testimony in a federal civil rights suit against the City, Chief of Police, and others. Assistant Chief of Police, Charles Caw (“Caw”), made statements that they would have to “get rid of her.” He informed the new Chief of Police about Karl, and Karl was involuntarily transferred to Caw’s supervision, with “unreasonable and arbitrary performance targets on Karl alone.” The Chief of Police placed her on administrative leave and then suggested her termination, which resulted, after he consulted with Caw. Karl filed “under 42 U.S.C. § 1983, alleging retaliation in violation of her First Amendment rights.” The district court denied in part Caw’s motion for summary judgment; Caw filed an “interlocutory appeal solely challenging the denial of his claim to qualified immunity.” The Court noted that Karl’s deposition testimony was speech on a matter of public concern because “it was offered in the course of a § 1983 lawsuit,” with allegations that “clearly implicated the exposure of ‘significant government misconduct . . . .’” The Court also held that Karl testified as a private citizen, not a public employee, because Karl’s testimony “was the product of a subpoena and cannot fairly be characterized as “commissioned or created” by the city.” The Ninth Circuit also upheld the districts court’s finding that the retaliation was the cause of Karl’s termination because “viewing the record in the light most favorable to Karl, [the Court] cannot say that Caw has met his burden to show that the City would have fired Karl even in the absence of her protected speech activities.” The Court held that “a reasonable official in Caw’s position would have known that it was unlawful to retaliate against an employee for providing subpoenaed deposition testimony in connection with a civil rights lawsuit alleging government misconduct.” AFFIRMED.

Petitioners filed for bankruptcy under Chapter 12 and were forced to sell their family farm to help cover the debts stemming from their bankruptcy claim. They incurred taxes of $29,000 on the capital gains from the farm sale. Petitioner claimed that the capital gains taxes were dischargeable as debts “incurred by the estate” under 11 U.S.C. § 1222(a)(2)(A). The IRS objected to petitioners’ plan to reorganize their payment plan, claiming that the Petitioners were accountable for all taxes. The U.S. Court of Appeals for the Ninth Circuit found that Petitioners owed federal income tax on the gain from the farm’s sale.

The Supreme Court affirmed and held that the taxes in question were not “incurred by the estate” because no separately taxable estate exists in Chapter 12 bankruptcy proceedings, so that even during the course of a bankruptcy, the debtor is still liable for capital gains taxes. Although the majority sympathized with Petitioners’ position, the Court interpreted the statute narrowly and said that its plain language does not favor a ruling for the Petitioner but noted that “Congress is entirely free to change the law by amending the text” if it is unhappy with the result in this case.

Watson Pharmaceuticals, Inc. (Watson), Solvay Pharmaceuticals, Inc. (Solvay), Par
Pharmaceutical Companies, Inc. (Par), and Paddock Laboratories, Inc. (Paddock), were parties to a
reverse settlement claim wherein the owner of the patent, Solvay, paid Watson and Par/Paddock to
delay entering the market until a specified date. The Federal Trade Commission (FTC) alleged that
Watson, Solvay, Par and Paddock violated antitrust laws because Solvay, knowing it was likely to lose
the underlying patent infringement suit against Watson and Par/Paddock, constructively extended a
monopoly that the patent laws did not authorize. The drug companies countered that reverse payment
settlements merely protected the lawful exclusionary rights patent protection granted them. The court
rejected the FTC’s assertion that a “likely result” equates to a “certain result,” and stated that it is impossible to predict with any certainty the outcome of a patent case. The Court of Appeals found that reverse payment settlements do not violate antitrust laws in patent cases, because patent holders have been granted a lawful right to exclude for the duration of their patent. Because a patent will always be assumed valid until a final judgment otherwise, the settlement agreement here did not unlawfully extend the patent holders right to exclude, and there remained many potential challengers to drug patents not party to this settlement, judgment for Watson was AFFIRMED.

The State appealed the trial court’s exclusion of expert testimony that Defendant’s BAC was over the legal limit of .08 when he was stopped for driving erratically, even though Defendant’s BAC was .064 – under the legal limit – at the time of the breath test, an hour and a half later. Based on the expert’s calculation, called retrograde extrapolation, the expert testified that Defendant’s BAC while driving was between .08 and .10, and therefore, above the legal limit. The Court of Appeals reversed the trial court’s exclusion, holding that the expert’s testimony was admissible because it was “derived, using scientific principles, from a chemical analysis of defendant’s breath.” Defendant appealed, and the Supreme Court affirmed, holding that the State is permitted to offer the expert’s testimony explaining retrograde extrapolation to make the “necessary connection” that Defendant’s BAC was over the legal limit at the time he was driving. Affirmed.

Petitioner appealed a judgment by the Department of Land Conservation and Development (DLCD) that dismissed his petition for review of a final order and a home site authorization that authorized for him three existing parcels on his property. Petitioner argued that the order should have allowed him to receive “one additional lot, parcel or dwelling” beyond the three specified because the language of section (2) of Ballot Measure 49 and section (3) are cumulative remedies, and that 6(3) was meant to allow certain claimants an additional lot, for a total of four. The Court of Appeals rejected this result and reasoning, and instead found that section 6(2) and section 6(3) offer alternative options, but are mutually exclusive and thus do not afford the cumulative remedy that Petitioner asserted. Vacated and remanded with instructions to enter a judgment affirming DLDC’s order.

DK Entertainment (Licensee) was charged with a violation of the Oregon Liquor Control Commission (OLCC) when a patron paid an employee for sexual contact. One of Licensee’s managers witnessed the acts and did not take reasonable preventative action until after the transaction was complete. OLCC concluded that the employee’s failure to prevent her own unlawful activity was properly imputed to Licensee, leading to the cancellation of Licensee’s license to serve alcohol. Licensee argues that OLCC’s analysis is inconsistent with prior decisions. The Court of Appeals concluded that the OLCC’s interpretation of “permit” in OAR 845-006-0347(3)(a) was not inconsistent with previous decisions where the unlawful acts of an employee are imputed to a licensee. Affirmed.

U.S. Market (Market) appealed the suspension of its liquor license by the Oregon Liquor Control Commission (OLCC). The OLCC required all Market employees use age verification equipment if a purchaser looked under 30. An employee relied on the machine’s verification when an undercover purchaser attempted and succeeded in buying alcohol. The store was thereafter cited for the sale because the employee failed to visually check the accuracy of the machine’s approval against the minor’s actual license. In response to this citation, OLCC suspended Market’s liquor license. On appeal, Market argued that, under OAR 845-005-0335(5), the wording of the restriction only stated that Market “require their employees to use the equipment,” not that the employee was required to verify the age of the alcohol purchaser. The Court of Appeals held that the restriction only mandated Market employees use the equipment, and not visually verify the purchaser’s age. Reversed and remanded.

Petitioner sought judicial review of a final order in which the director of the Department of Consumer and Business Services (DCBS) concluded that DCBS properly applied ORS 742.005 in approving a health insurance premium rate increase by Regence BlueCross BlueShield of Oregon (Regence) in 2008. On review, petitioner argued that the Court should reverse the order on the grounds that the director’s conclusions that DCBS properly applied ORS 742.005(3), (4), and (6) lacked substantial reason. Dismissing petitioners argument, the Court applied the standard from Armstrong v. Asten-Hill Co., holding that the approval of Regence’s rate increase was consistent with ORS 742.005(3), (4), and (6), and was supported by substantial reason. Armstrongstated, “the Court will overturn an agency order only if the credible evidence apparently weighs overwhelmingly in favor of one finding and the board ‘found’ the other without providing substantial reason.” Affirmed.

Defendant appealed the trial court’s order of restitution payable to the victim’s insurance companies pursuant to ORS 137.106. At the restitution hearing, the State presented a payment ledger indicating that the victim’s insurance companies had advanced payments totaling $59,392.23 for the victim’s medical care and the trial court ordered restitution in that amount. On appeal, Defendant argued that the trial court erred by imposing restitution because the State did not provide enough evidence of the actual damages. Defendant also argued that the court erred by not continuing the restitution hearing until after the negotiations between the insurance companies were complete. Defendant’s attorney did not argue at trial that the restitution due was merely speculative until the negotiations were complete. Thus, the Court of Appeals held that Defendant’s appellate arguments were unpreserved. Affirmed.

Petitioner appealed from a post-conviction judgment awarding specific performance. Petitioner claimed specific performance was an inadequate remedy for the Prosecutor’s breach of his agreement to recommend parole after Petitioner served 20 years of his life sentence. Petitioner claimed an adequate remedy for the breach would be to vacate his conviction for aggravated murder or, alternatively, release him on parole. At the post-conviction trial, the court concluded Petitioner was entitled to post-conviction relief, but not the relief he requested. The Court of Appeals held that if the State breaches an agreement by failing to make an agreed-upon recommendation, the breach can be adequately remedied by specific performance if the remedy would provide Petitioner the benefit of the agreement that led to the plea. Affirmed.

Defendant appealed a conviction for driving under the influence of intoxicants (DUII), arguing that the trial court erroneously relied on its jury instruction. The court used a jury instruction from State v. Miles, 8 Or App 189, 492 P2d 497, rev den (1972), which states that, even if the jury finds that the Defendant was more susceptible to intoxicants because of a physical condition than he normally would be, he is still under the influence of intoxicants. The Court of Appeals found that there is insufficient evidence to show that on the day Defendant was charged with DUII, his physical condition made him more susceptible to alcohol than normal. Thus, the trial court erred in relying on the Miles jury instruction. Reversed and remanded.

As part of long-running litigation between members of a small planned community, Goodsell appealed from dismissal of its action seeking judicial removal of the defendant directors of Eagle-Air Estates Homeowners Association (EEHA), and EEHA cross appealed from the trial court’s denial of their request for attorney fees. In moving to dismiss, EEHA had argued, and the trial court agreed, that Goodsell’s legal contention conflicted with EEHA’s bylaw provision pertaining to removal of directors, as well as with provisions of Oregon law. The Court of Appeals concluded that the trial court erred; the bylaw and statutory removal provisions to which EEHA and the trial court referred were nonexclusive and Oregon law supplemented, without contradiction, those provisions. Reversed and remanded. Cross-appeal dismissed as moot.

Defendant appealed a judgment convicting him of four counts of encouraging child sexual abuse in the first degree and four counts of encouraging child sexual abuse in the second degree. Defendant argued the trial court erred in admitting evidence of videos seized from his computer, despite his offer to stipulate the videos showed sexually explicit conduct with a child and that its creation involved child abuse. The state refused to stipulate to the offer and the trial court admitted the videos as evidence. Defendant appealed arguing his stipulation would have made the evidence irrelevant under OEC 401, 402, and OEC 403 which required evidence to be excluded if the danger of unfair prejudice to defendant substantially outweighed the probative value of the evidence to the state. The Court affirmed the judgment, holding that despite the proffered stipulation, evidence may be admissible if it is relevant to prove a fact that is at issue, notwithstanding the stipulation (here the elements of defendant’s knowledge of the content and defendant’s purpose in possessing them, neither of which were addressed in the proffered stipulation). Finally, the Court held evidence was not unfairly prejudicial against a defendant simply because it was graphic in nature. Affirmed.

Apel was convicted of three counts of trespassing on Vandenberg Air Force base. The Ninth Circuit noted in dicta that it questioned the correctness of United States v. Parker. Nonetheless, the Ninth Circuit noted that under Parker, “a stretch of highway running through Vandenberg AFB is subject to an easement “granted to the State of California” and therefore “the federal government lacks the exclusive right of possession of the area on which the trespass allegedly occurred.” Therefore, the Ninth Circuit held that the “conviction under 18 U.S.C. § 1382 cannot stand, regardless of an order barring a defendant from the base.” REVERSED.

Rivas applied for an immigrant visa pursuant to an approved I-130 petition filed by his daughter. The U.S. Consulate in Mexico denied Rivas’s application. Rivas then (1) reapplied using Form I-601 and (2) requested reconsideration of the application denial. The district court dismissed the case on the grounds that it lacked subject matter jurisdiction. With respect to the I-601 Reapplication, the Ninth Circuit noted, “Federal courts are generally without power to review the actions of consular officials” and “neither of exceptions to the doctrine of consular nonreviewability appl[ied] to Rivas’s Form I-601.” The Court also noted that consulate had a “facially legitimate and bona fide reason” to reject the application because Rivas purportedly admitted to violating certain provisions of the Immigration and Nationality Act. With regard to the request for reconsideration, the Court noted that 22 C.F.R. § 42.81(e) “imposes a nondiscretionary, ministerial duty to reconsider the denial of a visa application when the applicant adduces further evidence tending to overcome the ground of ineligibility.” The Court reasoned that this created subject matter jurisdiction for federal courts under the Mandamus Act and that the reconsideration may be compelled under the Administrative Procedure Act. Finally, the Court noted that Rivas’s request for reconsideration was accompanied by evidence that he had been arrested for violations of the INA but not convicted. The Ninth Circuit held that district court had subject matter jurisdiction to determine if Rivas’s admission was only to an arrest and, if so, to require the consulate to reconsider its denial of Rivas’s application. AFFIRMED in part, VACATED in part, and REMANDED.

The Government appealed an award of attorneys’ fees to the Western Watershed Project (“WWP”), a conservation group in a lengthy dispute over federal grazing permits in Idaho. In 1997, WWP successfully sought an injunction in its suit challenging the Bureau of Land Management’s (“BLM”) issuance of grazing permits. To comply with the injunction, the BLM produced its 2003 Final Decision. WWP filed an administrative appeal challenging the Final Decision, and a fifteen-day evidentiary hearing followed. The Interior Board of Land Appeals (“IBLA”) reversed the administrative law judge’s decision in favor of WWP. The district court reversed the IBLA’s decision, and WWP moved for an award of attorneys’ fees and expenses incurred during the fifteen-day evidentiary hearing under 5 U.S.C. § 504, 28 U.S.C. § 2412(d), and the Equal Access to Justice Act. The district court awarded $183,160 to WWP as the prevailing party under § 2412(d)(1)(A) for the administrative proceedings, but denied fees under § 504. Section 2412(d)(1)(A) provides that a “civil action” is not an administrative court proceeding for the purposes of the statute. A narrow exception under Sullivan v. Hudson allows a fee award if the administrative proceeding is “intimately tied to the resolution of the judicial case” and “necessary to the attainment of the results Congress sought to promote by providing for fees.” Further, such fees may be awarded “only when the proceedings have been ordered in a district court action that remains pending until the conclusion of the administrative proceeding.” Because WWP filed the district court action after the administrative proceeding had concluded, the district court erred in awarding attorneys’ fees for the administrative proceeding under § 2412(d)(1)(A) and Hudson. VACATED and REMANDED.

Michael Backlund and David Everist (collectively, “defendants”) were convicted of violating 36 C.F.R. § 261.10(b) for their occupancy of National Forest System lands without prior approval. Defendants contended they were engaged in bona fide mining operations, justifying full-time residency on their mining claim sites. The Forest Service determined that neither residencies were reasonably incident to the mining operations, and that neither defendant possessed an approved plan of operations or special-use authorization. Defendants appealed on three grounds: the Forest Service lacks authority to regulate residency on mining claims; § 261.10(b) is unconstitutionally vague; and the district court denied them due process when it precluded a challenge to the administrative decision that their residences were not reasonably incident to mining. The Court determined that residential occupancy on a valid mining claim is not automatically reasonably incident to mining; thus, the Forest Service acted within its authority. Next, the Court found that § 261.10(b) is not unconstitutionally vague, because Congress intended that the Department of Agriculture regulate the use and occupancy of national forest lands. Lastly, because Everist did not appeal the Forest Service’s decision, he did not exhaust his administrative remedies and thus waived his right to judicial review. Backlund, however, did exhaust his administrative remedies, and, since he is within the Administrative Procedure Act’s (“APA”) six-year statute of limitations, he is entitled to seek direct judicial review. The Court determined that a person can obtain judicial review of a final agency action by either filing suit in a federal district court under the APA, or challenging the decision in a subsequent criminal proceeding. Judgment in No. 10-30264 VACATED and case REMANDED. Judgment in No. 10-30289 AFFIRMED.

Devaughn Dorsey pleaded guilty to several counts involving motor vehicle theft, including conspiracy to traffic in motor vehicles and operation of a chop shop. Additionally, he was convicted of one count of witness tampering and one count of discharging a firearm in relation to a crime of violence. Dorsey appealed on all counts. The Court held that the witness testimony about observing Dorsey with a similar firearm was admissible and was not evidence involving “prior bad acts,” because the evidence established that Dorsey had the means to commit the crime. Dorsey next argued that the district court erred in allowing the government to vouch improperly for the credibility of a witness. The Court rejected the argument, reasoning that the prosecutor’s line of questioning was not improper because it merely emphasized that the witness must not lie and did not suggest that the government was able to monitor the witness’s truthfulness. The Court also upheld the district court’s dismissal of Dorsey’s motion for mistrial, holding that when a judge immediately rebukes a witness for making an improper statement and tells the jury to disregard the statement, the propensity for the comment to materially affect the verdict, and thereby prejudice the defendant, is low. AFFIRMED.

Martin Crowley lost the 2006 general election for Justice of the Peace in Churchill County, Nevada, by twenty-six votes. Crowley alleged that the State of Nevada and the Clerk of Churchill County (collectively, “defendants”) violated § 301 of the Help America Vote Act (“HAVA”) when the election results were confirmed by manual recount instead of the Voter Verified Paper Audit Trail (“VVPAT”). The district court dismissed Crowley’s declaratory judgment claims, and granted cross-motion for summary judgment in favor of defendants on Crowley’s § 1983 claims. On appeal, the Ninth Circuit reviewed de novo and affirmed. The Court summarized that “even if HAVA § 301 confers a federal right in a contested federal election, Crowley would not be a member of the class intended to benefit from the right because the recount provision of HAVA § 301 was not intended to benefit voters or candidates in local elections,” even if the ballot contained elections for federal office (emphasis added). Thus, Crowley was not entitled to enforcement under § 1983. AFFIRMED.

Kevin Buckwalter is a licensed physician practicing in Nevada since 1997. In November 2008, after a formal complaint was filed accusing Buckwalter of overprescribing narcotic analgesics, the State of Nevada Board of Medical Examiners (“the Board”) determined Buckwalter posed an “imminent threat to the health and safety of his patients and the public in general,” and used its summary power to suspend Buckwalter’s ability to prescribe controlled substances. The Board notified Buckwalter of his suspension, effective immediately, and scheduled a full administrative hearing four months out. Buckwalter filed suit against the Board and its members under 42 U.S.C. § 1983, alleging the Board deprived him of his constitutional due process rights when it summarily suspended his privileges, and when it failed to provide a prompt post-deprivation hearing. The district court determined that the Board was entitled to absolute immunity and dismissed Buckwalter’s claims, and further determined that Younger abstention barred Buckwalter from bringing a case in federal court. The Ninth Circuit applied the “Butz factors” for determining absolute immunity. The Court held that under Butz, the Board’s exercise of its “summary suspension authority is comparable to a judicial act” and thus protected by absolute immunity. Further, the Court held that when the board members set Buckwalter’s hearing they were “acting within the scope of their judicial function” and were immune from any liability. Lastly, because the Board had not concluded its administrative process, Younger abstention applied and the district court was correct when it refused to hear claims for equitable relief. AFFIRMED.

The State of Oregon through the Department of Land Conversation and Development (DLCD) appealed a judgment reversing a vested right. Eugene and Viola Glender owned land in Linn County. In 2005, developers optioned to purchase the Glenders’ property. The Glenders sought and obtained Measure 37 waivers. Following the county’s recording of the Glenders’ plat, the county’s Planning and Building denied the vested right. The Linn County Board of Commissioners, using the Clackamas Co. v. Holmes standard granted the vested right. DLCD requested a write of review from the county circuit court. The circuit court reversed and remanded under an asserted deficiencies analysis. Both parties appealed. The Court of Appeals based its analysis on Friends II, which stated the expenditure ratio is one of many factors when determining a common law vested right. Friends II also stated the “county needed to find the ultimate cost of construction” and the ratio between project costs and landowner costs. Hence, the writ of review court erred when it used a hypothetical cost and the county erred when it failed in determining the total project cost. Additionally, expenditures to the county, such as dedications must be included in the ratio. Affirmed on appeal; on cross-appeal, reversed and remanded with instructions to enter judgment reversing the county’s decision and remanding for consideration in light of Friends of Yamhill County v. Board of Commissioners, 351 Or 219, 264 P3d 1265 (2011).

Respondent Emmy Roach (Roach) appealed a permanent stalking protective order (SPO) entered against her. Roach and the Petitioner, S.A.B. are neighbors that have had several confrontations, both physical and verbal, regarding the property line between their houses. Roach argued there was insufficient evidence to meet the standards of ORS 30.866, under which the SPO was issued. ORS 30.866 requires two or more instances of unwanted contact. If the defendant’s conduct is verbal, then the plaintiff must prove it is a threat under the standard laid out in State v. Rangel. The plaintiff must also show that she was actually and objectively reasonably alarmed or coerced by the contact. The Court of Appeals found that Roach’s first and second actions did not meet the statutory requirements for “contact,” and therefore did not meet the minimum of two “unwanted contacts” necessary to uphold the SPO. Reversed.

Youth appealed the juvenile court’s judgment that if she was an adult, her conduct constituted harassment and was therefore under the juvenile court’s jurisdiction. Youth pushed her Mother after she felt threatened. At trial, Youth stated she did not intend to harm or annoy Mother but the trial court held that Youth’s conduct was harassment under ORS 166.065 because a parent has the right to use reasonable force when controlling a child. On appeal, Youth challenged the juvenile court’s determination of harassment and subsequent jurisdiction by contending the juvenile court made a factual finding. Per ORS 166.065, harassment constitutes annoying or harassing another person by offensively touching that person. The Court held that the evidence presented supported the juvenile court’s determination that Youth intended to harass or annoy Mother. Affirmed.

The Department of Consumer and Business Services (DCBS) petitioned for reconsideration of the Appeals Court decision in DCBS v. Zurich American. An employee had filed a compensation claim with On-Time, which had a contract with Northwest Staffing Services (NW Staffing), a work leasing company. Because On-Time lacked insurance, the DCBS declared On-Time to be a noncomplying employer. An Administrative Law Judge concurred, holding Zurich American Insurance (ZMI), NW Staffing’s insurance company, responsible for compensation payment. On appeal, the board held that On-Time was not a non-complying employer, and that ZMI was responsible for the payment. The board further ruled that DCBS did not have authority to compel reimbursement from ZMI to Segwick Claims Management Services (SCMS). The Appeals Court affirmed the board’s ruling. On reconsideration, the Appeals Court modified its holding, ruling that the DCBS did not possess alternative authority under ORS 656.307(3) to order ZMI to reimburse SCMS. Reconsideration allowed; former opinion modified.

The Department of Land Conservation (DLCD) appealed the Circuit Court’s ruling allowing the Carlsons to complete the development of their property. Prior to the passing of Measure 49, the Carlsons sought to develop and divide their 75.65-acre plot. After Measure 49 passed, the Carlsons applied for land-use waivers that would allow them to continue to develop their property so long as their rights had vested per a vested right expenditure ratio. The deciding director, by including the cost of building homes on the property into the vested right expenditure ratio, denied the waivers. The Carlsons appealed to the Board of Commissioners (Board). The Board did not include the cost of homes into the ratio and granted the waivers. The DLCD sought review by the Circuit Court, which affirmed the Board’s decision. DLCD appealed and the Court of Appeals reversed. The Supreme Court vacated the judgment and remanded for reconsideration. The Court of Appeals reversed and remanded the Circuit Court’s ruling, holding that when calculating the vested right expenditure ratio, a court must include the total project cost including the cost of building homes on the property. Reversed and remanded.

Oregon Shores Conservation Coalition appealed a decision from the writ of review court that sustained the Board of County Commissioners of Clatsop County’s determination that Gary and Beverly Aspmo have a common law vested right to complete a residential subdivision. On June 1, 2011 the Oregon Court of Appeals remanded the decision to the county to determine the total project cost so as to apply the “expenditure ratio.” The “expenditure ratio” is used to determine whether a landowner has incurred enough development costs to establish a vested right to continue the land project. The Oregon Supreme Court remanded for reconsideration in light of Friends of Yamhill County v. Board of Commissioners. The Court of Appeals held that the county and the reviewing court did not fully assess the total cost of development, which is necessary for determining the denominator in the expenditure ratio. Reversed and remanded.

The State appeals the merger of Defendant’s convictions. Defendant was convicted of 21 counts of a felon in possession of a firearm (ORS 166.270). At his sentencing hearing, the trial court merged all offenses into a single conviction under ORS 161.067(3), allowing for merger where the “episode violates only one statutory provision and involves only one victim.” The State objected on the grounds that the victim of Defendant’s crime was not a person, and that the merger statute did not apply where the victim is not a person. On appeal the Court of Appeals held that the underlying felon in possession statute was created to protect the public at large, and the public was therefore the victim for the purposes of that statute as well as for the purposes of merger. Affirmed.

Defendant appealed trial court’s denial of its ORCP 71B motion. The plaintiff attempted to serve the defendant by providing copies of the complaint and the accompanying exhibits, but did not include a summons within the documents. When the defendant failed to provide a response, the plaintiff moved for, and was granted a default judgment. Defendant filed a motion to set aside the verdict, arguing among other things, that the default judgment was void due to lack of personal jurisdiction because the defendant had never received a summons. The lower court denied the motion, despite the lack of any evidence showing that a summons was served. The Court of Appeals held that because there was no evidence of a summons having been served, the lower court did not have personal jurisdiction and therefore the judgment was void. Reversed and remanded.

Petitioner appealed the trial court’s termination of a stalking protective order. In 2006, Petitioner obtained an SPO under ORS 30.866. The respondent moved to terminate the SPO in 2009 and following a hearing, the trial court agreed. Petitioner appealed arguing the trial court failed to consider internet evidence which supported maintaining the SPO. Respondent argued under Edwards v. Biehler that an SPO can be terminated “on a respondent’s motion when the criteria for issuing the order are no longer present.” Additionally, the Respondent argued that the internet postings were speech, and that conduct involving speech must be a “threat” under State v. Rangel. The Court of Appeals determined the proper inquiry when terminating an SPO involves considering all of the circumstances and evaluating whether the conduct that gave rise to the SPO continues to cause the petitioner “subjective apprehension” of a threat to their personal safety that is objectively reasonable. The Court of Appeals held the trial court erred in concluding the internet postings were not a threat under the Rangel standard and by not considering the internet postings in their decision. Reversed and Remanded.

Defendant appealed seven criminal cases, five of which are for excessive and indeterminate post-prison supervision (PPS) terms ordered at trial. Defendant plead guilty to numerous Class C felonies. Under ORS 161.605, Class C felonies have a statutory maximum indeterminate sentence of five years. Defendant stipulated to a crime seriousness classification of either 8 or 9. OAR 213-005-0002(2) requires the duration of PPS for crimes classified in the range of 7-10 is not to exceed three years. The trial court imposed prison terms of either 36 or 60 months, and the PPS terms were five years, “minus the period of incarceration.” The Court held that an indefinite period of PPS cannot be imposed and cannot make the length of PPS terms dependent upon the amount of prison time the Defendant actually serves. If the sum of the prison and PPS terms exceeds the statutory maximum indeterminate sentence, then the duration of the PPS shall be reduced so that the total length of sentencing conforms to the statutory maximum. Reversed and remanded in part, otherwise affirmed.

The district court dismissed all charges by the federal grand jury for a mail and wire fraud indictment, holding existence of a formal fiduciary duty to the State and resulting economic harm were required. The government alleged that defendants, independent contractors Brano Milovanovic and Tony Lamb, with co-defendants who obtained the fraudulent commercial drivers’ licenses (“CDLs”), accepted bribes to help unqualified, non-resident applicants obtain CDLs using materially false and fraudulent omissions/ misrepresentations on CDL applications attained by: cheating on the exams, false skills certifications (when no such tests were successfully performed,) and by use of false in-state addresses in Spokane, Washington. The Court addressed “(1) whether breach of a fiduciary duty is an element of honest services mail fraud under 18 U.S.C. §§ 1341 and 1346; (2) whether the superseding indictment, charging the defendants with a bribery-based scheme to defraud that breached a material relationship of trust, states an offense for honest services fraud in violation of 18 U.S.C. §§ 2, 1341, 1346, and 1349; and (3) whether, as the district court ruled, economic harm is required to establish a cognizable offense.” After an historical analysis of the statute, the Court held “a fiduciary relationship is an element of honest services fraud under [§§1341 and 1346],” but the relationship “need not be formal, or classic.” Rather, the statute requires “a comparable duty of loyalty, trust, and confidence, the material breach of which, with the intent to defraud, deprives the victim of the intangible right to honest services.” The Court also held in evaluation of whether a party breached a fiduciary duty, thereby violating this statute; foreseeable risk of economic harm is not a necessary element. The Court “adopt[ed], instead, the materiality test and [held] that the Mail Fraud Statute requires fraudulent intent and a showing of materiality.” REVERSED and REMANDED.

Idado state prisoners at the Idaho State Correctional Institution (ISCI) brought a class action regarding pain and suffering due to inadequate care and facilities in 1984. The court ordered an injunction against the over-crowding in the prison. In 2007 when the state tired to terminate the injunction, the court re-appointed Stoel Rives LLP, a law firm in Portland, who had represented the prisoners in 1984. Although the State withdrew the termination of injunction, it violated the injunctions provisions by brining back Idaho prisoners who had been housed in Texas in late 2008. This resulted in overcrowding of the Idaho prisons. Stoel Rives tried to get the State to comply with the original injunction and filed a motion to hold the State in contempt. The motion was denied because the State eventually complied with the injunction and Stoel Roves moved for attorneys fees for monitoring the case from 2007 to 2009. The lower court awarded attorney fees holding that the Stoel Rives “played a key role in monitoring and working the IDOC to resolve the overcrowding issue. The State appealed the award. The Ninth Circuit held that precedent states that attorney’ fees can be awarded for monitoring a case, even if a motion filed was denied. The court reasoned that lawyers play an important role in ensuring that injunctions work effectively and monitoring injunctions helps deter violations. Under the Prisoner Litigation Reform Act, once a violation as been proved attorney fees can be awarded for monitoring if it is “directly and reasonably incurred in enforcing the relief ordered”. The Ninth Circuit further held that fees could be awarded even when the attorney’s work was for a motion that was denied. Stoel Rives was able to obtain compliance and was working in the best interest of the client. AFFIRMED.

Marco Antonio Robles-Urrea was a lawful permanent resident of the United States. In 2002, Robles-Urrea pleaded guilty to misprision of a felony, for allegedly concealing a conspiracy to distribute marijuana and cocaine. In 2005 the Department of Homeland Security detained Robles-Urrea as he was returning to the United States from Mexico. Robles-Urrea was served with notice, charging him with removability under 8 U.S.C. § 1182(a)(2)(C) as a drug trafficker and subsequently charged under 8 U.S.C. § 1182(a)(2)(A)(i)(I), having been convicted of a crime involving moral turpitude. The Board of Immigration Appeals (“BIA”) did not rule on the drug trafficking charge, but found that Robles-Urrea was removable for committing a crime involving moral turpitude. On appeal the Ninth Circuit held that misprision of a felony is not categorically a crime involving moral turpitude. Crimes of moral turpitude are generally defined as “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” The BIA failed to explain why misprision of a felony could fit within the moral turpitude definition, and their analysis was deemed impermissible. On remand the BIA is instructed to apply a modified categorical approach and may also consider whether Robles-Urrea is removable under 8 U.S.C. § 1182(a)(2)(C)(i) as an alien who has been an illicit trafficker of any controlled substance. REMANDED.

Facing an indictment for cocaine and firearm possession, Austin entered a written plea agreement with the government that stipulated that he would plead guilty to two of three charges and that both sides would recommend a seventeen-year sentence. Austin later filed a motion to reduce his sentence under 18 U.S.C. § 3582(c)(2), which allows sentence reduction for plea agreements that were “based on” sentencing ranges that have subsequently been lowered. The district court granted the motion. The Ninth Circuit found that Austin’s (C) agreement did not qualify for either of two exceptions from Justice Sotomayor’s concurrence in Freeman. The Court found that the first exception didn’t apply because Austin’s agreement was for a specific term and did not mention a sentencing range. The second exception allows for reduction were it is “evident from the agreement itself” that sentencing ranges were used to calculate a specific term. Austin argued that his was actually a (B) agreement because his sentence was “recommended,” rather than mandatory, but the Court rejected that argument because the plea agreement was conditioned on acceptance of the seventeen-year sentence. The Court found that Austin’s agreement did not meet the second exception because application of a sentencing range must be clearly stated in the agreement itself to qualify according to Freeman. REVERSED and VACATED.

Terrell Cross (“Cross”) was convicted of second-degree murder and sentenced to 54 years to life in prison. Cross appealed to the California Court of Appeal and the California Supreme Court, both appeals were denied. Cross filed two rounds of unsuccessful petitions for habeas corpus with the Alameda County Superior Court, California Court of Appeal, and California Supreme Court. Cross filed a petition for habeas corpus with the district court and it was denied on the ground that it was untimely and was therefore not considered “properly filed” for the purposes of statutory tolling. The district court misapplied California law when it determined whether the petition had been properly filed. A citation to Swain should not be viewed as an “automatic untimeliness bar” but as a grant of a demurrer, which makes a habeas corpus petition procedurally deficient but properly filed under California law. Thus Cross’s first round habeas corpus petition to California Supreme Court was properly filed and the statute of limitations was tolled while it was pending. Cross’s habeas petition to the federal district court is timely when statutory tolling is correctly applied. Cross’s habeas petition was entitled to statutory tolling for each separate round of state petitions because he filed his federal petition within the one year statute of limitations, excluding the tolled time. Statutory tolling also applied during the time between filings as Cross filed petitions in a higher court because of the tolling Cross’s federal habeas petition was timely the district court wrongly denied it. VACATED and REMANDED.

Marc Toberoff (Toberoff) was a business advisor and attorney for the creators and heirs of Superman, who had ceded their rights to D.C. Comics. Toberoff’s employee David Michaels (Michaels) sent documents to D.C. Comics detailing Toberoff’s “alleged master plan to capture Superman for himself.” Toberoff resisted discovery by D.C. Comics, claiming that the documents were privileged. However, Toberoff then asked the U.S. Attorney to investigate Michaels, and provided unredacted copies of the documents in response to their subpoena. D.C. Comics requested all documents disclosed to the U.S. Attorney, claiming that the disclosure waived any remaining privilege. The magistrate judge agreed, reasoning that a party may not selectively waive attorney-client privilege, regardless of whether the third party is the government, because “it is inconsistent with the theory behind the privilege.” Toberoff appealed through a writ of mandamus. The Ninth Circuit applied a “clearly erroneous” standard of review. The Court noted that the general rule is that voluntary disclosure of privileged documents to third parties will destroy attorney-client privilege. Toberoff urged the Ninth Circuit to adopt the Eighth Circuit’s rule that disclosure of documents to the government, as opposed to a civil litigant, constitutes “selective waiver.” The Ninth Circuit did not adopt the Eighth Circuit’s rule because it is a controversial rule which no other circuit has followed, it does not serve the public good of encouraging full disclosure to one’s attorney, and Congress has refused to adopt such a new privilege. Additionally, Toberoff’s argument that he produced the documents in response to a subpoena failed because he “solicited the subpoena and chose not to assert the privilege when it was appropriate to do so.” The Ninth Circuit did not find any grounds on which to grant the petition for mandamus. DENIED.

This claim was brought by the bankruptcy trustee claiming that certain property and money be placed in the trust. The Jacobson’s filed bankruptcy and claimed the homestead exemption under California law that placed a stay on the sale of their house. Later the Jacobson’s house was sold after a judge lifted the stay. The proceeds covered the liens against the property and gave the Jacobson’s the statutorily proscribed amount under the homestead exemption. However, under California law in order for the exemption to apply the proceeds must be reinvested in a new homestead within six months. The Jacobson’s failed to follow this requirement and the bankruptcy trustee requested that these proceeds be turned over into the trust. The Court agreed that this was a statutory requirement and required compliance. The Court held that it did not matter if a bankruptcy judgment was placed before the sale of the proceeds, the Jacobson’s still received their exemption, in the amount of 150,000 dollars, and failed to follow the terms of maintaining their exemption. The Court, however, did not agree with the trustee that a property held solely in the husband’s name and purchased with non-marital property was subject to transfer into the bankruptcy trust because the trustee failed to prove that the property belonged in the trust and did not have standing to raise the claim that the property belonged in a prior bankruptcy trust. REVERSED in part, AFFIRMED in part and REMANDED.

Arizona enacted Proposition 200 to require new voters to produce proof of United States citizenship to register, and require registered voters to show identification to vote at the polls. The Court agreed, by a majority vote of active Ninth Circuit judges, to rehear this case en banc. The Court found the previous judicial panel had accepted an appeal erroneously. The Court overruled prior cases to the extent they held exceptions to the law of the case rule applied to the law of the circuit rule. The Court then considered whether the National Voter Registration Act of 1993 (NVRA) superseded Proposition 200’s proof of citizenship voter registration requirement. The Court declared that, “states have no reserved authority over the domain of federal elections.” The Court derived an approach for analyzing federal enactments which displace state procedures for federal elections. Under this framework, the Court considered Proposition 200 and the NVRA, “as if they comprise[d] a single system of federal election procedures.” The Court, “based on a natural reading of the two laws determined the two statutes […] do not operate harmoniously in a single procedural scheme.” The Court found the NVRA which requires states to, “accept and use” the Federal Form for voter registration, could not operate harmoniously with Proposition 200’s requirement that a Federal Form be rejected if the applicant failed to include proof of United States citizenship. The Court held that the NVRA preempted Proposition 200’s registration provision, “under Congress’s expansive Elections Clause power.” The Court went on to hold that the poll identification requirement of Proposition 200 was not prohibited under section 2 of the Voting Rights Act of 1965, was not an unconstitutional poll tax under the Twenty-fourth Amendment, nor was it a violation of the Fourteenth Amendment’s Equal Protection Clause. AFFIRMED in part, REVERSED in part.

Wilbert Noble, a prisoner in the California State Penitentiary, filed multiple writs for habeas corpus to the California state courts and eventually with the United States District Court for the District of Northern California. All the writs in state court were denied and the final writ was dismissed by the District Court as untimely. The District Court determined that the petitioner was not entitled to tolling of time between the filing of the petitions to the state court. The District Court must determine whether the petition was still pending at the time the appeal was filed. California law has a unique system for appealing petitions of habeas corpus that does not indicate a time-frame for appeal. Therefore, the decision of the District Court is vacated and remanded for proceedings to determine whether the petitioner’s four and a half month delay in appealing was within a reasonable time or if the delay would be excusable, under California law. VACATED and REMANDED.

In 2004, Petitioner, a lawful permanent resident, pled guilty to fraud and was sentenced to probation. In 2009 Petitioner unsuccessfully applied for citizenship and the government started deportation proceedings. In an effort to avoid deportation, Petitioner claimed her attorney erroneously advised her of her options by not telling her that a guilty plea would lead to her deportation, and filed a motion for a writ of coram nobis to overturn her conviction. While Petitioner’s case was on review, the Supreme Court decided Padilla v. Kentucky which held that an attorney does not provide sufficient counsel under the Sixth Amendment when he fails to inform a client that a guilty plea carries a risk of deportation. The district court turned to Teague v. Lane, which held that new rules may be applied to all cases, both future and retroactive. The court held that under Teague, Padilla was not a new rule but was an extension of the traditional rule under the Sixth Amendment and vacated Petitioner’s conviction. The Court of Appeals for the Seventh Circuit reversed, concluding that because Padilla was not dictated solely by precedent and extended the reasoning of prior cases, that it was a new rule and could not be applied retroactively. Petitioner argues that the rule announced in Padilla should apply retroactively, and the Court granted the writ of certiorari to resolve a circuit split on the issue.

California state prisoner, Edward Meras, was convicted of robbery, burglary and assault with a deadly weapon in state court. Jennai Lawson, a forensic expert, produced a lab report confirming that blood found on clothing in Meras’s apartment was that of the victim. Lawson testified at Meras’s first trial, but was unavailable to testify at his second trial. Instead, Jill Spriggs, Lawson’s supervisor, testified to the contents of the lab report. Meras unsuccessfully objected to Spriggs’s testimony, arguing that the report was hearsay and its admission violated Meras’s Sixth Amendment right to confrontation. The California Court of Appeal affirmed the Confrontation Clause ruling, finding that the lab report was not “testimonial” under Crawford v. Washington. Meras appealed the district court’s denial of his federal habeas petition. As required by the Antiterrorism and Effective Death Penalty Act, the Ninth Circuit considered whether the state court’s ruling produced a decision that “was contrary to, or involved an unreasonable application of, clearly established Federal law.” Although Meras relied on Crawford, Melendez-Diaz v. Washington, and Bullcoming v. New Mexico, only Crawford constituted “clearly established Federal law” as it was the only case decided before the Court of Appeal affirmed Meras’s conviction. The Court found that Meras failed to show that “‘there is no possibility fairminded jurists could disagree that the state court’s decision conflicts’ with Crawford.” This is so because the Supreme Court in Crawford expressly refused to define “testimonial” statements. Given the extensive disagreement between lower courts and among the Supreme Court Justices in considering whether forensic lab reports are “testimonial,” it cannot be said “that the state court unreasonably applied clearly established Federal law.” Thus, the district court did not err in denying Meras’s habeas petition. AFFIRMED.

Michael Obradovich owned American Calcar, Inc. (“Calcar”), and was in the business of creating summaries of vehicle owner manuals, called “Quick Tip” manuals, for various vehicles, including the Acura RL. As part of its business, Calcar was required to use and summarize various vehicle features, including the GPS systems. Sometime in the mid-90s, Calcar pursued a patent for a particular navigation system layout based on the Acura design. In many instances, Calcar simply used drawings and photos of the Acura system with the word “Acura” replaced with “Car” or “Cars.” Honda accused Calcar of inequitable conduct for not disclosing their prior art when pursuing its patent of the visual layout. While this claim was on appeal, the Federal Circuit decided Therasense, Inc. v. Becton, Dickinson and Co., which readdressed the standard for inequitable conduct. Previously, claiming inequitable conduct required both the intent to deceive and materiality, and was based on a gross negligence standard. The Federal Circuit tightened the intent and materiality standard in Therasense, requiring that the accused infringer prove that the patentee acted with the specific intent to deceive the PTO, and that undisclosed prior art was but-for material if the PTO would not have allowed a claim had it been aware of the undisclosed prior art. Thus, as a result of Calcar’s failure to disclose the prior art as the basis of their own patent applications, they had committed inequitable conduct, and Calcar’s patents were UNENFORCEABLE.

Trident Products and Services, LLC (“Trident”) accused Canadian Soiless Wholesale, d/b/a Advanced Nutrients (“Advanced Nutrients”), of reselling their nutrient enriching product for plants. Trident’s product, EPG, was first repackaged and resold by Advanced Nutrients as VooDoo Juice in 2000 with the full consent of Trident. Advanced Nutrients learned of the EPG formula during this period in order to ensure that sales would comply with local environmental regulations. Trident did not offer this information until 2005, when it was shared along with a nondisclosure agreement to ensure confidentiality. This information was then shared with a competitor of Trident, Research Organization and Manufacture of Bioproducts (“ROMB”), and posted partly on the labeling of VooDoo Juice. ROMB later brought a product to market that was very similar to Trident’s EPG formula. Advanced Nutrients purchased this new formulation from ROMB to make the new and improved VooDoo Juice. Trident declined to get an expert witness, stating that it was common sense that two formulas sharing the same 5 microbes and same preservative could not be developed independently. The court disagreed, ruling that a reasonable juror was not equipped to make this kind of determination. Without this testimony, Trident had failed to provide a complaint that a reasonable juror could use to determine whether the trade secret was “not known or readily ascertainable by proper means.” The court GRANTED summary judgment to Trident.

Opinion (Duncan): A jury convicted Chong Lam and Siu Yung Chan (“Lam”) of conspiracy to traffic counterfeit goods bearing the trademark of British fashioner designer, Burberry Ltd. (“Burberry”), a signature plaid pattern (“Check mark”) and an equestrian knight symbol (“Equestrian mark”). The alleged counterfeit symbol used by Lam was a combination of both the Check mark and the Equestrian mark. Lam appealed, arguing that the counterfeit trafficking statute, 18 U.S.C. § 2320 (“§ 2320”), was constitutionally overbroad, that the evidence was insufficient for the jury to convict Lam, and that comments made by the prosecutor created were improper. At trial, the prosecutors suggested that the jury’s analysis should be from the hypothetical viewpoint of a “reasonable consumer of ordinary intelligence.” Also, the jury submitted a question as to how the interpolation of the Equestrian mark over the Check mark figured into their analysis, which the district court answered that it depended on the jury’s finding of facts. The Court found that there was no plain error in the district court’s jury instructions; that § 2320 provided adequate notice to an ordinary person as to not be constitutionally vague; that whatever improper comments the prosecutor made were cured by the district court’s jury instructions; and that the court could not say that no rational jury member could conclude that Lam’s mark was a counterfeit. Judgment was AFFIRMED.

Dr. Borman (Borman) performed spinal surgery on Eads that resulted in Eads’s permanent and disabling injuries. Borman leased office space from Willamette Spinal Center (WSC) and Eads sued WSC for vicarious liability on the basis of apparent authority. The Court of Appeals affirmed the trial court’s grant of summary judgment for WSC. In order to succeed on an apparent agency theory, Eads would have had to reasonably believe that WSC was in the business of delivering medical services, rather than merely a building that housed independent medical providers. The WSC sign on the building and the WSC logo on Borman’s business card only created the appearance of an affiliation. They were insufficient to create the appearance that WSC had any oversight or control over Borman. Furthermore, Borman had his own contact information, letterhead, billing, staff, and performed the surgery at a local hospital. The Supreme Court held the record was inadequate to permit a jury to hold WSC liable for Borman’s negligent surgery on an apparent agency theory. Affirmed.

State appeals and Defendant cross-appeals from a pretrial order in a murder case suppressing evidence. Defendant was watching his girlfriend’s 8 month old daughter when she appeared to be having a seizure; she was taken to the hospital and found to have severe injuries. Detectives asked Defendant to come to the police station to explain the sequence of events of the day and recorded the interview, assuring Defendant he was not under arrest; no Miranda rights were read. The next day, the police recorded a reenactment of the events as Defendant described them. Later that day, before being polygraphed, Defendant signed a consent form that contained his Miranda rights. The polygraph results showed that he had lied about not intentionally hurting the infant, to which he then admitted. The Supreme Court found that the statements taken at the police station were unconstitutional and that, because the reenactment was based exclusively on information from those statements, it was inadmissible. The pre-polygraph statements were valid because of the consent form, and there was nothing to interrupt the validity of the consent form’s Miranda rights to warrant excluding the post-polygraph statements. Affirmed in part and reversed in part.

Defendants Miskell and Sinibaldi appealed their convictions of charges of theft and burglary. The police, in an effort to gather information about these crimes, used surveillance to record a conversation, without an ex parte order, whereby an informant discussed the crimes with Defendants. Defendants argued that the surveillance, without an ex parte order, violated ORS 133.726 and should have been suppressed at trial. The prosecution argued that the exigency exception under ORS 133.726(7)(b) should apply, or in the alternative, that allowing of the surveillance evidence at trial was harmless error. The Supreme Court held that the circumstances of this case did not allow for the exigency exception because there was not sufficient evidence that the informant’s meeting could not have been postponed until an ex parte order was obtained and that allowing the surveillance at trial was not harmless error. Reversed and remanded.

Respondent overestimated the value of sold property on its tax return which led to an understatement of its gross income in violation of the Internal Revenue Code. The ordinary period for detecting such deficiencies of the tax return is three years, but may be extended to six years if the taxpayer, “omits from gross income an amount properly includible therein.” The Commissioner failed to detect the deficiency within the 3-year period but detected the error within the 6-year period. The Court of Appeals for the Fourth Circuit concluded that the extension did not apply to a basis overstatement which caused a smaller gross income on the tax return.

On appeal, the Supreme Court agreed with the Fourth Circuit that the extension does not apply. The Court relied heavily on its decision in Colony, Inc. v. Commissioner in regards to the word “omits” within 26 U.S.C. § 6501(e)(1)(A). The court interpreted the word “omits” like it did a similar provision in Colony, to not apply to understatements or reductions, but only when income is left out of the tax return. Because the statute is unambiguous the court does not need to gap fill.

Defendant was convicted of aggravated theft in the first degree, and appealed a compensatory fine of $102,413.04. Defendant pled guilty to stealing over 1,500 pairs of new shoes that were stored in Savoy’s warehouse. Defendant sold the shoes to secondhand retail stores, and many of the stolen shoes were not recovered or could not be sold as new. The trial court established that the shoes were worth their market value when Defendant stole them, which is what Savoy had paid for them. The market value can be determined through the owner’s testimony, as long as he reasonably has such knowledge. The Court of Appeals held that there was sufficient evidence on the record to establish the amount of economic harm that Savoy suffered, and to impose the compensatory fine on Defendant in that amount. Affirmed.

Page appealed a general judgment dismissing all of his claims and a supplemental judgment awarding Parsons attorney fees. Parsons filed a special motion to strike under ORS 31.150 in response to Page’s complaint. After a hearing on the motion, the trial court determined that Parsons had met his burden of proving that the claim falls within ORS 31.150(2), and instructed Page to request with particularity any discovery necessary to show Page’s likelihood of prevailing on his claim. The trial court denied Page’s discovery requests for lack of particularity and entered the general judgment. On appeal, Page argued that the trial court erred in denying his motion for discovery. The Court rejected this argument because Page failed to comply with the trial court’s instruction for specificity in his discovery request. The Court denied Page’s second assignment of error and held that ORS 31.150 does not support multiple hearings on the motion, as this would be contrary to the legislative intent. Finally, the Court rejected Page’s argument that the trial court’s award of attorney fees was in error because Parsons sufficiently alleged in his motion an entitlement to the fees. Affirmed.

Petitioner Wagner sought judicial review of a Worker’s Compensation Board (Board) decision that he failed to meet his burden of proof in showing a causal connection between a work incident and his pursuit of medical service. ORS 656.005(7)(a) requires that for a compensable injury demanding medical services to qualify, it must originate out of an event occurring during employment. Wagner asserted that the Board had erred because the workplace incident materially contributed to his pursuit of medical services. The Court of Appeals determined that because Wagner’s pursuit of medical services were a result of pain occurring two days after the workplace incident and were established by a medical expert to have not been caused by the workplace incident, Wagner failed to establish his burden of proof. Subsequently, the Board had not erred. Affirmed.

Defendant appeals his conviction of attempted assault in the first degree with a firearm. After conviction, but before sentencing in Oregon, Defendant was sent to Washington and sentenced on separate crimes he had committed. After finishing his nearly 20-year sentence in Washington, Defendant was sentenced in Oregon. Defendant moved the trial court to reverse his Oregon conviction based on the State’s violation of (1) the Interstate Agreement on Detainers (IAD) by failing to sentence him within 120 days, (2) his due process and speedy trial rights for taking almost two decades to sentence him, and (3) because his trial transcript was destroyed. The trial court denied his motion, and Defendant appealed. The Court held that (1) the 120-day time limit does not start running until Defendant returned to Oregon after serving his sentence in Washington, (2) his speedy trial rights were not violated because Defendant actively resisted extradition to Oregon and never asserted his speedy trial right, and (3) Defendant had ample time to obtain a copy of his Oregon transcript after the trial court instructed him. Affirmed.

This case is remanded from the Oregon Supreme Court. A police officer stopped Defendant outside of a casino after a casino employee reported Defendant for stealing casino property. After asking for consent to search Defendant’s rental van, consent was refused. Upon arresting Defendant for disorderly conduct, Defendant gave the keys to his girlfriend, Campbell, and instructed her to keep it locked. An officer persuaded Campbell to allow a search of the vehicle, where various controlled substances were found. The Oregon Supreme Court reversed the holding of the Court of Appeals that the automobile exception rule did not apply because the van wasn’t mobile when first encountered in connection with a crime. The case was remanded to address the issue of whether Campbell’s authorization of the warrantless search was valid. The Court of Appeals held that Campbell did not have authority to consent to the search, making the evidence seized unlawfully obtained. Affirmed.

Western Radio Services, Inc. (“Western”) appealed a judgment in favor of Awbrey Towers, LLC (“Awbrey”). Awbrey owns property on which it operates and maintains communication towers, and Western is one of its seven members. Pursuant to its operating agreement, Awbrey makes capital calls on each of its members for 1/7 of the towers’ maintenance costs. Awbrey brought this claim against Western, to collect its share of the contributions. On appeal, Western made four assignments of error, only two of which the Court of Appeals addresses. First, Western argued that the trial court erred in finding that the capital calls were legitimate, alleging that the expenditures benefitted only the other six LLC members. The Court found sufficient evidence that the capital contributions benefited all members. Second, Western argued that the lower court erred in awarding attorney fees. The Court rejected this error because pursuant to ORS 20.096(1), attorney fees are available to the prevailing party under the agreement. Affirmed.

The action commenced in 1993 due to yard debris accumulated in violation of the city code, and the Court affirmed in part and reversed in part 13 assignments of error on appeal, and 4 assignments of error on cross-appeal. First, the Court reversed the lower court in permitting Hunt to revive a writ of review action after six and one-half years of failing to prosecute. ORCP 54(B)(3) provides that a court shall notify when action has not been taken in one year. Because Hunt was litigating other actions related to the underlying cause of action and attempted to revive the writ proceeding only after receiving adverse ruling in three other actions, the lower court abused its discretion by allowing Hunt to revive. Second, in the declaratory judgment action, Hunt was prevented from collaterally attacking judgments under the doctrine of issue preclusion. The five factors for issue preclusion as set out in Nelson v. Emerald were all met in the present proceedings. Third, the Court affirmed the lower court’s decision in the quiet title action for the same reasons as the declaratory action. Hunt prevailed in his claim that the city was not entitled to an award of attorney fees in either the declaratory judgment or quiet title actions under ORS 20.105 because he had an objectively reasonable claim. Affirmed in part, reversed in part.

Petitioner filed a habeas corpus petition alleging that his felony murder and second-degree murder convictions violated the Sixth Amendment privilege against double jeopardy, and challenged the validity of his jury trial waiver. The respondent State responded that it would “not challenge, but [was] not conceding, the timeliness of [petitioner’s] habeas petition.” The district court denied relief. The Court of Appeals for the Tenth Circuit granted petitioner a certificate of appealability on the merits of his habeas appeal and requested that the parties address the timeliness of the habeas petition. The Tenth Circuit determined that petitioner’s appeal was untimely under the Antiterrorism and Effective Death Penalty Act (AEDPA) and affirmed the denial.

The Supreme Court reversed, holding that courts of appeals, like district courts, have authority to raise a forfeited timeliness defense sua sponte in exceptional cases. The Court considered the fact that in civil litigation a statutory time limitation is forfeited if not raised in a defendant’s answer and is barred from being asserted on appeal. The Court cited Day v. McDonough, which held that federal appellate courts have discretion to consider a timeliness argument inadvertently overlooked by the State in the district court when extraordinary circumstances so warrant. However, the Court distinguished a State’s deliberate waiver of a limitations defense from one which was the result of an inadvertent error. The Court declined to adopt an absolute rule that would bar a court of appeals from raising a forfeited timeliness defense but noted that in this case, the Tenth Circuit abused its discretion when it dismissed the petition as untimely since in the district court the State was well aware of the statute of limitations defense available to it, yet informed the court that it would not “challenge” the timeliness of the petition, thus deliberately waiving the statute of limitations defense.

Marcia Ann Goodbear was sentenced to thirty-seven months in custody, three years of probation, and $12,763.66 in restitution after pleading guilty to assault resulting in substantial bodily injury and misprision of felony. Goodbear failed to act after hearing her husband, Adrian Goodbear, beat his daughter, Lyrik, for an extended period of time. The couple waited another thirty minutes before seeking medical attention. Goodbear, Adrian Goodbear, and K.H., Adrian Goodbear’s minor son, lied to medical staff, saying Lyrik had fallen from a tree. Doctors declared Lyrik brain dead, and Adrian Goodbear was convicted of second-degree murder. Goodbear later admitted to striking S.G., her stepdaughter, to prevent her from entering the room where Adrian Goodbear was beating Lyrik. Goodbear appealed the district court’s imposition of a four-level sentencing enhancement based on the finding that the belt Adrian Goodbear used to beat Lyrik constituted a dangerous weapon. Goodbear also appealed a two-level increase imposed for use of a minor, and her thirty-seven-month sentence. The Ninth Circuit found that the belt was a dangerous weapon because it was “an instrument capable of inflicting death or serious bodily injury” under USSG § 2A2.2(b)(2)(B). The Court further concluded that the district court did not err in finding that Goodbear knew or should have known that Adrian Goodbear told K.H. to lie about the cause of Lyrik’s death. Hence, the two-level enhancement under USSG § 3B1.4 was appropriate. Finally, the Court found that the thirty-seven-month sentence was not reasonable, because it exceeds the maximum sentence of three years under 18 U.S.C. § 4. AFFIRMED in part, VACATED in part, and REMANDED.

Robert Swank pled guilty to Abusive Sexual Contact of his minor niece, who was staying with Swank and his wife at the time. Swank appealed the district court’s sentence, imposing a two-level Guidelines enhancement because the victim was in Swank’s “custody, care or supervision.” Swank claimed that this was not warranted, as he was not entrusted with the care of the child. The Ninth Circuit examined past cases where this relationship was found, including cases with crimes involving sex trafficking. In these cases, courts focused on whether the defendant fulfilled a “parent-like” role by providing care to the child, and thereby assuming a position of authority. The Court found that it is this position of authority over a minor that gives rise to the imposition of a higher sentence; abuse of this level of authority warrants a tougher sentence. Swank’s relationship with the victim was sufficient to constitute a caretaker position, as he was the victim’s uncle, was living in the home with his family while the victim was staying in the home, and helped care for the victim. Given this relationship, the district court’s application of the two-level enhancement in sentencing was appropriate. AFFIRMED.

In 2000, Richard Stengel had a medicine pump surgically implanted. In 2005, Stengel suffered from ascending paralysis due to an inflammation in his spine at the end of the pump catheter, which rendered Stengel permanently paraplegic. The pump, manufactured by Medtronic Incorporated (“Medtronic”), received Class III premarket approval from the FDA in 1988, and supplemental approval in 1999. Stengel brought state law claims for negligence, breaches of express and implied warranties, and strict liability against Medtronic in Arizona state court. Medtronic removed to federal district court. The district court granted Medtronic’s motion to dismiss on the grounds that Stengel’s claim was preempted by federal law. Stengel filed a motion for leave to amend the complaint, alleging that Medtronic failed to provide required information to the FDA. The district court denied the motion to amend, finding that the revised claim was also preempted. In affirming the district court’s decision, the Ninth Circuit cited the FDCA, which preempts any claims brought under state laws that are “different from, or in addition to,” FDCA requirements. The Court relied on the Supreme Court’s decision in Riegel v. Medtronic, Inc., which held that the Class III approval process was a federal requirement under the FDCA preemption clause, and preempted “common law tort duties.” The Court also cited Buckman Co. v. Plaintiff’s Legal Committee for the principle that a claim alleging failure to report to the FDA is invalid because it interferes with the congressional scheme empowering the FDA to enforce its own rules. Thus, the Court held that Stengel’s claims were expressly or impliedly preempted. AFFIRMED.

The State of California charged Nerrah Brown with robbery in March of 2007, and since that time has filed additional charges against him. Brown appeared at several preliminary hearings and the State has commenced initial trial proceedings, but the trial has yet to take place. Brown filed a habeas petition in state court and then in federal district court, seeking dismissal of the charges against him and claiming that the State violated his right to a speedy trial. Both the state court and the district court dismissed the petitions. In affirming the district court’s dismissal, the Ninth Circuit reinforced its “well-established and constitutionally sound rule” that the doctrine of abstention, when asserted by a state as a defense to federal habeas jurisdiction, requires the federal district court to dismiss “a habeas petition that prematurely raises a Speedy Trial defense to state prosecution” except under “extraordinary circumstances.” The Court defined “extraordinary circumstance” as “cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction, or in other extraordinary circumstances where irreparable injury can be shown.” Because none of these circumstances apply in Brown’s case, the district court properly abstained from exercising habeas jurisdiction. AFFIRMED.

KMTP-TV, operated by Minority Television Project (“Minority”), is one of the few public broadcasting stations in the United States that does not receive funding from the Corporation for Public Broadcasting. However, because of its status as a public broadcast station, Minority is subject to 47 U.S.C. § 399b, which prohibits public broadcast stations from transmitting three types of “advertisements,” as defined under the statute. After determining it was appropriate to analyze each section of the statute separately, the Court found that subsection 399b(a)(1), which prohibits advertising by for-profit entities for their goods and services, passes intermediate scrutiny under the First Amendment. However, subsections 399b(a)(2) and (a)(3), which prohibit public issue and political advertising, fail intermediate scrutiny. The Court agreed that the government has a substantial interest in maintaining high-quality educational programming on public stations, which it fears would be undercut if public broadcast stations were allowed to transmit paid commercial, public issue, and political advertisements. As opposed to subsection 399b(a)(1), however, the Court found no evidence to connect the ban on speech under subsections 399b(a)(2) and (a)(3) to the government’s interest in maintaining certain types of programming. AFFIRMED in part, REVERSED in part, and REMANDED.

Monika Samper appealed the district court’s summary judgment in favor of her employer, Providence St. Vincent (“Providence”), on her reasonable accommodations claim under the Americans with Disabilities Act, wherein she requested an undetermined number of unplanned absences due to a debilitating health condition. The Ninth Circuit affirmed, finding that some jobs, like a nurse in a neo-natal intensive care unit, require the presence of the employee, and that the employee’s regular attendance is an essential function of employment. Even though Samper proved that she was disabled, that she suffered an adverse employment action because of her disability, and that she was qualified to perform the other essential functions of the job, her reasonable accommodations claim failed to prove that regular attendance is not an essential function of her job. Providence had listed attendance as an essential function in the written job description. Even beyond this written form, the Court recognized the necessity of requiring the presence of trained personnel in certain fields of employment. Samper’s reasonable accommodations claim also failed because it did not quantify the unplanned absences she sought, which would have allowed her to work or not work whenever she wanted. Such an accommodation would be unreasonable as a matter of law, because it would exempt her from an essential function of her employment, thereby defeating the reasonable accommodations claim. AFFIRMED.

Two Catholic priests, an eighty-year-old nun, and two grandmothers, all longtime peace and disarmament activists, were convicted of conspiracy to trespass, destruction of property within the special territorial jurisdiction of the United States, and for injuring U.S. property valued at more than $1,000. The group cut through two fences to gain access to a secure area of the U.S. Naval Base Kitsap-Bangor. After entering the base, the group “spread ‘simulated blood’ on base fences and unfurled a banner reading, ‘Plowshares—Trident Illegal and Immoral.’” The group appealed their conviction on the grounds that (1) the Hague Convention treaty preempts 18 U.S.C. §§ 1361, 1363, and 1382, and (2) the group’s actions were not “malicious” under § 1363. Where a treaty conflicts with another federal law, the more recent of the two controls. The Hague Convention was ratified in the U.S. in 1909 and 18 U.S.C. §§ 1361, 1363, and 1382 were modified in 1996, 2001, and 1994, respectively. Therefore, the modified statutes supersede the treaty. Even if the treaty controlled, the Hague Convention prohibits using certain weapons in “armed conflicts between nations,” but does not prohibit possessing such weapons. Section 1363 fails to define “maliciously.” When a statute does not define a term, the court will infer that Congress intended to incorporate the common law meaning of the term if it had “accumulated settled meaning under . . . the common law.” Under common law, “[i]t was sufficient that the defendant (1) had the intent to do the prohibited act and (2) had no justification or excuse.” A jury reasonably could have found that the group’s actions were wrongful and without legal justification or excuse. AFFIRMED.

Opinion (Kozinski): David Nosal worked for an executive search firm called Korn/Ferry. After leaving Korn/Ferry, he recruited some of his associates still working at Korn/Ferry to help him start a competing business. These employees accessed Korn/Ferry’s source lists, names, and contact information from a confidential database. They then transferred the information to Nosal. Nosal was indicted for violations of the Computer Fraud and Abuse Act (CFAA) under 18 U.S.C. § 1030(a)(4) for “aiding and abetting the Korn/Ferry employees in ‘exceed[ing their] authorized access’ with intent to defraud,” and for trade secret theft, among other charges. The district court dismissed most of the counts for failure to state an offense, which the United States then appealed. The Court of Appeals found the CFAA to be concerned with preventing hacking, and not with the misappropriation of trade secrets. Under the Appellate Court’s statutory analysis, the phrase “exceeds authorized access” was to be interpreted narrowly, and should be limited to violations of “access” to information, not the “use” of information. Here, the employees of Korn/Ferry only accessed information they were authorized to access and therefore were not in violation of the CFAA. The district court’s ruling was AFFIRMED.

Opinion (Stengel): Steak Umm, a national purveyor of frozen meat products, alleged that Steak ‘Em-Up, a Philadelphia pizza shop and corner grocery, infringed on its trademark, and sought injunctive relief to prevent trademark infringement. The court used a ten-factor test – known as the Lapp factors in the Third Circuit – to determine that no likelihood of confusion existed. First, the marks were not similar. Second, the phrase “Steak Umm” was suggestive of the product, but did not actually identify it. Third, the prices points were similar, but the products were different. Fourth, they were both using their trademarks for six years without evidence of actual confusion. Fifth, Steak ‘Em Up adopted its name independently, without influence from Steak Umm. Sixth, there was no evidence of actual confusion. Seventh, the goods were not marketed through the same channels, but did use some of the same advertisers. Eighth, there was little geographical overlap in some of their campaigns. Ninth, consumers would not expect either company to expand into the other’s market. Tenth, in the totality of the circumstances, confusion is not likely. Accordingly, the court DENIED injunctive relief for the plaintiff.

Opinion (O’Malley): Noah Systems, Inc. sued Intuit, Inc., claiming Intuit’s Quicken and QuickBooks programs infringed its patent, No. 5,875,435 (’435), which covered an automated system that allowed customers to connect to, and exchange financial information with, other entities’ computer systems. The district court granted Inuit’s motion for summary judgment, holding that the “’access means’ limitation” contained in the disputed claims of the ’435 patent required disclosure of the algorithm used by the system, lest the claims be found indefinite and invalid. Noah appealed, arguing the district court erred in determining that no algorithm was present. The Court of Appeals agreed that an algorithm was disclosed, but upheld the district court’s grant of summary judgment because the algorithm disclosed only applied to some, but not all, of the identifiable functions recited in the claims. Noting that the purpose of requiring disclosure of the algorithm was “to prevent purely functional claiming,” the Court rejected Noah’s argument that it was sufficient if a person skilled in the art would have been able to devise the algorithm necessary for performing those functions for which no algorithm was disclosed. Because the patent only disclosed an algorithm for one of the functions related to the ‘means access’ limitation, the limitation was indefinite; and since all of the claims at issue included that limitation, they were also invalid as indefinite. Thus, the Court of Appeals AFFIRMED Intuit’s motion for summary judgment.

Opinion (Prost): Aventis Pharmaceutical and Sanofi-Aventis (collectively “Sanofi”) sued Hospira, Inc., Apotex Inc. and Apotex Corp for infringing patents 5,750,561 (’561) and 5,714,512 (’512). The district court invalidated claim 5 of the ’561 patent and claim 7 of the ’512 patent, finding both claims obvious in light of prior art; and both patents unenforceable due to inequitable conduct because material information about the prior art was intentionally withheld from the Patent and Trademark Office (PTO). Sanofi appealed, arguing the district court erred in its construction of the claims, and in its determination that the information not disclosed to the PTO was material and intentionally withheld. The Court of Appeals agreed with the district court’s conclusion that claim 7 of the ’512 patent was obvious because Sanofi waived its argument against the district court’s construction by not addressing the issue in its opening brief. The Court of Appeals also agreed with the district court’s construction of claim 5 of the ’561 patent concerning the term “perfusion.” Lastly, accepting the district court’s determination that Sanofi’s witness did not have the credibility to overcome the fact that he withheld prior art that described the solution the patents implemented, the Court of Appeals AFFIRMED the district court’s judgment.

Defendant was convicted under ORS 475.894 and ORS 163.684 for possession of methamphetamine and encouraging child sexual abuse in the first degree. Defendant was lawfully stopped for violating a TriMet smoking regulation. An officer asked defendant if he had anything that “might poke or stick me.” Defendant responded that he had a syringe. The officer then asked whether Defendant had any drugs on his person. The Defendant replied that he had two baggies. Following the admission, the officer searched the Defendant and discovered methamphetamine and child pornography. At trial, Defendant requested that the trial court suppress the evidence because it was unlawfully seized. The trial court denied his request and subsequently convicted him. On appeal, Defendant renewed his argument. The Court held that since the question regarding weapons was asked during the course of a lawful stop, it did not constitute an unlawful seizure and the trial court correctly denied the motion to suppress. Affirmed.

Defendant appealed from an upward departure sentence of 50 months imprisonment and 12 months post-prison supervision for a second-degree escape conviction. After escaping but before he was caught, Defendant committed a burglary. Defendant pled guilty to both the burglary and escape charges. The Defendant’s sentence would have been 25-30 months imprisonment for escape, but the trial court imposed an upward departure sentence because the burglary conviction was considered an aggravating factor. OAR 213-008-0001 allows a court to depart from a presumptive sentence when there are “substantial and compelling reasons” to do so. Although OAR 213-008-002(1) contains a list of aggravating and mitigating factors which do not contain the factor relied on by the trial court, the list is not exclusive and does not prohibit the court from considering the Defendant’s conduct after the offense. The Court held that a court may consider the Defendant’s conduct after the crime for which the Defendant is being sentenced in imposing a departure sentence. Affirmed.

Defendant appealed his aggravated murder conviction and restitution in the amount of $1,171,994.47 to be paid to the state. Defendant was charged with causing the death of his daughter and pled guilty to aggravated murder. The plea petition provided that the parties agreed and stipulated to the 1989 version of ORS 163.105. The parties also agreed that Defendant would pay restitution for the victim’s care and treatment. After the sentencing hearing, Defendant objected to the $1,168,494.47 restitution payable to Department of Human Services. The court, however, imposed the restitution. On appeal, Defendant contended the trial court erred because the parties had agreed that the 1991 restitution statutes would control the court’s decision concerning the state’s request for restitution. The trial court did not address whether the parties stipulated to the application of the 1991 version of the restitution statutes as part of the plea negotiations, or state what version of the restitution statutes they applied. The trial court should be the forum to address these issues. Vacated and remanded.

Plaintiff Landlord appealed a post-judgment order from the lower court. Landlord and Tenant stipulated to an agreement requiring removal of a metal storage shed and the installation of a new shed. Landlord attempted a forcible entry and detainer action to evict the Tenant after the shed was not installed in a timely manner. The Landlord’s first argument was that the trial court improperly considered an argument the tenant did not raise, and secondly, the trial court erred in requiring the Landlord to have “good cause” for evicting the Tenant. The Landlord cited ORS 105.149(2)(b) in arguing the trial court could only hear the defense of “good cause” if the tenant argued it in their hearing request. The Court of Appeals found no such limitation in the text of ORS 105.149(2)(b). To the contrary, the Court held ORS 105.149(2) allowed the trial court to consider any issue outside the tenant’s hearing request where the Residential Landlord Tenant Act applied (RLTA). The “good cause” requirement qualified for consideration under the RLTA. The Landlord’s second argument was that there was no contract or law that required “good cause.” However, that argument was not preserved for appeal. Affirmed.

Amerititle appealed from the denial of its motions for directed verdicts on Peterson’s negligence claims and Peterson cross-appealed the dismissal of his claims for misrepresentation, breach of contract and breach of fiduciary duty. Peterson purchased a piece of property under the pretense it was Lot 8, Phase 1. However, the property was conveyed as Lot 8, 1st addition by Amerititle. The Court determined the lower court erred in granting summary judgment on Peterson’s misrepresentation claim. To prevail on a fraud claim a plaintiff must show a representation; its falsity; its materiality; the speaker’s knowledge of its falsity or ignorance of its truth; his intent that it will be acted on by the listener; the listener’s ignorance of its falsity; his reliance on its truth; his right to rely thereon; and his consequent and proximate injury. Plaintiff may prevail if he can show a reasonable inference of reliance based upon the evidence. Additionally, Amerititle owed a duty of due care when preparing property documents. Affimed on Amerititle’s appeal. Reversed and remanded on the misrepresentation claim. Otherwise affirmed.

Appellant Andrew Dries appealed his conviction for first-degree theft by receiving. Appellant contended the trial court erred in providing jury instructions that included the phrase “knowing or having good reason to know.” Appellant argued State v. Thomas held that a conviction of first-degree theft by receiving requires a finding of defendant’s actual knowledge or belief that the property was stolen. However, at the trial level, Appellant objected that the indictment only alleged the defendant “knowingly commit[ted] theft by receiving,” and the trial court should not instruct the jury using a different intent. The Court affirmed the conviction, holding appellant failed to state his objections with sufficient particularity at the trial court level. The Court relied on ORCP 59 H, which sets forth the means by which a party must preserve an appellate challenge to an alleged instructional error, holding that the exception appellant stated failed to alert the trial court to the alleged error. Affirmed.

Defendant appealed a conviction of third-degree rape. Defendant argued that the trial court erred in failing to exclude the investigating detective’s testimony commenting on defendant’s credibility. Defendant did not preserve the error for appeal, but claimed that it constituted plain error. The Court found that the error was plain because the detective’s statements were a direct comment on credibility and the Court did not have to select among competing inferences to explain their inclusion. Specifically, it held that defendant’s failure to object to the testimony at trial was not a plausible strategic decision. The Court found that the gravity of the error required them to correct it since the trial hinged on the relative credibility of defendant and complainant and the impact of a conviction for a sex crime would be severe and long-lasting. Reversed and remanded.

While visiting the West Bank in 1995, Azzam Rahim, a United States citizen, was arrested by Palestinian Authority intelligence officers. Rahim was imprisoned, tortured and eventually killed. Petitioners filed a suit under the Tortured Victims Protection Act, 28 U.S.C. § 1350, (“TVPA”) against the Palestinian Authority and the Palestinian Liberation Organization. The district court dismissed the case, interpreting the TVPA’s authorization of a suit against an “individual” to apply only to natural persons. The Court of Appeals for the District of Columbia Circuit affirmed.

The Supreme Court affirmed, holding that Congress intended for the TVPA to only extend liability to natural persons, and not, as Petitioners argued, to non-sovereign organizations. The Court reasoned that the word “individual” ordinarily refers to a natural person when used by Congress, the Court, and in everyday parlance. The use of “individual” in the text of the TVPA indicated that Congress intended to give the word its ordinary meaning. In addition, the Court noted that the legislative history of the TVPA demonstrated that Congress intended to extend liability under the TVPA only to natural persons.

Respondent submitted 117 patent claims to the PTO which were all rejected following his initial submission. He appealed to the Board of Patent Appeals (the Board) under 35 U.S.C. § 134 which approved some but not all of his claims. He then opted to file a civil action under § 145 to determine if he was entitled to receive patents for the remainder of his claims pending submission of new evidence. The trial court sustained the Board’s decision that evidence which was not submitted in the original appeal to the Board was inadmissible and limited its review to the administrative record giving deference to the PTO’s factual findings. The Court of Appeals for the Federal Circuit determined that review under § 145 was not strictly confined to the agency record, and that new evidence introduced would be subject only to the limitations of the FRE and the FRCP and would be reviewed entirely de novo. The Court of Appeals re-heard the case en banc and vacated the judgment of the Board.

The Supreme Court affirmed the Court of Appeals and held that Respondent’s ability to introduce new evidence in a § 145 claim was only limited by the FRE and the FRCP, and that if new evidence was presented, the district court must review the new evidence as well as the administrative record of the PTO de novo. The Court reasoned that § 145 did not impose unique evidentiary requirements in district court nor did it establish a heightened standard of review. The Court rejected the argument that principles of administrative law impose a deferential review of evidence in such cases, and determined that where new evidence is submitted the district court acts as a fact finder and should review de novo. The Court noted that Butterworth v. U.S. ex rel. Hoe guided their determination that a district court is not limited to considering only new evidence that could have been presented to the PTO and may instead consider all competent evidence.

SAIF Corporation (SAIF) appealed the Worker’s Compensation Board’s order to increase a claimant’s whole person impairment award. The claimant (Miguez) injured his shoulder. After an independent examination, SAIF rated the independent medical examiner’s (IME) range-of motion findings at 25 percent whole person impairment. However, based on the inconsistent opinion of the attending physician and the IME regarding the validity of the IME’s range-of-motion findings, SAIF immediately requested reconsideration. A medical arbiter panel reviewed the record, examined Miguez, and rated his impairment, but found this rating invalid. The Appellate Review Unit (ARU), consequently reduced Miguez’s award to 15 percent. Miguez requested a hearing. The ALJ agreed with Miguez’s argument that the ARU erred. Pursuant to OAR 436-035-0007(12), the ALJ held the arbiter’s panel did not adequately explain its conclusion that the panel’s findings were invalid. The ALJ increased Miguez’s award to 26 percent. SAIF appealed to the Court of Appeals, which affirmed the ALJ’s decision, holding that an arbiter panel must explain what observations led to its finding of invalidity, how these observations contradict the validity of the findings, and why the observations are medically significant. Affirmed.

In 2005, Petitioner filed an abbreviated new drug application (ANDA) for a generic form of the drug Prandin manufactured and patented by Respondent. Respondent brought suit, claiming that Petitioner’s ANDA infringed on its patent. The FDA initially signaled it would approve Petitioner’s application, given that it planned to market the drug under two FDA-approved methods of use not covered by Respondent’s patent. In 2009, Respondent submitted an amendment to its use code for Prandin to include the other two methods of use, and the FDA subsequently denied Petitioner’s application as infringing upon the Respondent’s patent. Petitioner filed suit, asserting that Respondent misrepresented the scope of use in its patent amendment. The trial court found that the use code was overbroad and entered an injunction requiring Respondent to amend its patent. The Court of Appeals for the Federal Circuit reversed, finding that the counterclaim provision in the Hatch-Waxman Act permits deletion of improperly listed patents but does not require a patent holder to correct information that a generic drug manufacturer asserts is a misrepresentation of the scope of approved use.

The Supreme Court reversed, holding that the counterclaim provision in the Hatch-Waxman Act permits generic drug manufacturers to force patent holders to correct use codes that inaccurately include methods of use not actually covered by the patent, and to force correction when the patent use description was either overbroad or completely baseless. The Court rejected Respondent’s assertion that the counterclaim provision is only available when a drug patent claims no approved method of use, and found that Congress intended to permit applications for unpatented uses in order to get generic drugs to market quickly.

The City of Rialto hired Petitioner to interview Respondent as part of the city’s investigation of Respondent’s claim of illness necessitating prolonged absence from work. Petitioner asked Respondent to allow city officials into his home to view evidence of his activities while on leave, and after Respondent refused, Petitioner ordered him to bring the evidence out of his home so it could be viewed by officials. Respondent brought suit under 42 USC § 1983 against the city, Petitioner, and others. The District Court granted summary judgment to all individual defendants on the grounds of qualified immunity, and the Court of Appeals for the Ninth Circuit affirmed with respect to all individual defendants except Petitioner.

In a unanimous opinion, the Supreme Court held that a private individual temporarily retained by the government is entitled to seek qualified immunity from a § 1983 suit. The Court reasoned that historically the common law did not distinguish between full-time public servants and private individuals engaged in public service, and since common law principles of immunity were incorporated into § 1983, that those principles should be maintained in the absence of legislative intent to override them. Additionally, including private actors engaged in public service serves the policy goals of avoiding “unwarranted timidity” by these actors, ensuring the government can retain capable individuals, avoiding distraction of litigation to the temporary public servants, and creating a bright-line rule that allows actors to anticipate when their conduct may give rise to liability.

In May 2009, federal agents searched Defendant-Appellant Onyseoh’s home and found spreadsheets containing five hundred expired credit card numbers. Onyseoh pled guilty to access device fraud, including the knowing possession of “fifteen or more…unauthorized access devices” with intent to defraud. 19 U.S.C. §1029(a)(3). The pre-sentence report recommended an enhancement based on the amount of money potentially lost from the use of the expired credit card numbers. During the sentencing hearing Onyseoh objected to the loss calculation. She argued that the expired credit cards could only be characterized as unauthorized access devices if their usability was proven. The Government argued usability need not be proven if evident and contended that the numbers could be used to find credit history and establish new accounts. The district court, accepting the Government’s argument, applied the enhancement. Onyseah appealed. The Ninth Circuit disagreed. The Court held an unauthorized access device with usability is not readily apparent, such as an expired credit card number, requires some proof of usability by the government. Especially when the defendant does not concede the fact or challenges its usability. VACATED and REMANDED.

Schneider appeals his habeas corpus petition pursuant to a certificate of appealability by the district court. The Court refuses to expand the certificate, only considering the grounds at issue therein. Firstly, Schneider contests “the trial court’s denial of the motion for a mistrial based on [his co-defendant]‘s Aryan Brotherhood testimony,” which he claims violated his First and Fourteenth Amendment rights. The Court affirms the State Supreme Court’s rulings that this testimony was admissible when not offered by the State and that even if its admission was in error, such error was harmless. Secondly, Schneider contests the district court’s “holding that [4 Grounds] of the First Amended Petition do not relate back to the original petition.” The Court reviews whether the amended claims “assert a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.” Ruling that even where “both theories share one fact: that [co-defendant] testified at Schneider’s trail, that is not sufficient to conclude that they arise out of a common core of operative facts,” the Court affirms the district court’s holding regarding all amended claims. Finally, the Court affirms the lower holding that Schneider’s mental illness should not excuse him from the procedural defaults of his 2 remaining claims. AFFIRMED.

A group of anti-Bush protestors were forcibly moved to a comparable distance than a group of pro-Bush demonstrators while the President was in Jacksonville, Oregon. The protestors sued the United States Secret Service on the base of violating their First Amendment rights, claiming that they were forcibly moved to a farther distance than a pro-bush group, therefore discriminating them based on their viewpoint. They also claim that even if it was not a viewpoint discriminatory action, they were moved far enough from the President so that he could not hear the anti-Bush ideas. The second claim is against Superintended Ruecker and Captain Rodriguez for excessive forced used. The U.S. Secret Service, Ruecker and Rodriguez filed a motion to dismiss based on qualified immunity. In regards to the First Amendment, the Court held that the U.S. Secret Service agents were not entitled to dismissal based on qualified immunity because the protestors had presented a plausible claim that they had their freedom of speech had been restricted by discriminating them based on their viewpoint and by suppressing them from expressing their particular viewpoint. The Court further explained that because the protestors were moved two blocks farther than the pro-Bush demonstrators, they were being discriminating based on their viewpoint. Also, that they were being preventing from expressing their ideas by being moved far enough for the President not to be able to hear them. The U.S. Secret Service contended that they were protecting the President from people coming within handgun and explosive range. The protestors responded by showing that the pro-Bush demonstrators were allowed to gather around the place where the President was staying. Under the Fourth Amendment, the Court held that the protestors had not established a plausible claim because they did not have sufficient facts supporting that Ruecker and Rodriguez were responsible for the excessive force used. They were not present at the moment the incident happened. The court held that they were entitled to dismissal based on qualified immunity. AFFIRMED IN PART, REVERSE IN PART AND REMANDED.

The government charged David Nosal with violating the Computer Fraud and Abuse Act (CFAA) under 18 U.S.C. § 1030(a)(4), “for aiding and abetting the Korn/Ferry employees in “exceed[ing their] authorized access” with intent to defraud,” when he left the firm and convinced some of its employees to log in to the company’s computers and send him confidential information. “Nosal filed a motion to dismiss the CFAA counts, arguing that the statute targets only hackers, not individuals who access a computer with authorization but then misuse information they obtain by means of such access.” When the district court rejected his argument, “Nosal filed a motion for reconsideration and a second motion to dismiss.” The district court reversed and “dismissed counts 2 and 4-7 for failure to state an offense. The government appeal[ed].” Nosal’s narrow interpretation of “without authorization” and “exceeds authorized access” “maintains the CFAA’s focus on hacking rather than turning it into a sweeping Internet-policing mandate.” The Court considered that “Congress obviously meant “exceeds authorized access” to have the same meaning throughout section 1030.” The Court reasoned that “the government’s proposed interpretation of the CFAA allows private parties to manipulate their computer-use and personnel policies so as to turn these relationships into ones policed by the criminal law” and “basing criminal liability on violations of private computer use polices can transform whole categories of otherwise innocuous behavior into federal crimes simply because a computer is involved.” The Court held that “exceeds authorized access” “is limited to violations of restrictions on access to information, and not restrictions on its use” and “[b]ecause Nosal’s accomplices had permission to access . . ., the government’s charges fail to meet the element [of the statute] . . .” AFFIRMED.

Defendants Martin Wilbur, Joan Wilbur, April Wilbur and Brenda Wilbur are members of the Swinomish Indian Tribe and own a cigarette store located on tribal lands. Defendants were in indicted on several charges, including an eight-year conspiracy, from 1999 to 2007, to sell “contraband” cigarettes and violating the CCTA. The district court denied defendant’s motion to dismiss. In exchange for the right to appeal their motion, defendants pled guilty to the conspiracy charges. Defendants began selling untaxed and unstamped cigarettes in 1999. The Swinomish tribe entered into a standard CTC in 2003, in which the state retroceded all applicable state taxes upon cigarettes sold by licensed “Indian retailers.” Defendants obtained a cigarette retail license in 2005, which was revoked in 2007. The Court found that during the time periods that the defendant’s were unlicensed, the Swinomish CTC did not apply, and therefore defendant’s sale of untaxed, unstamped cigarettes was a violation of CCTA. However, from 2005 to 2007, when the defendants possessed an “Indian retailer” license the CCTA did not apply. The charges of conspiracy prior to 2005 were barred by the statute of limitations and therefore set aside. The Court affirmed the conspiracy charges after 2007, finding that two separate conspiracies occurred, interrupted by the two years the defendants held a license, which made their alleged conspirative activities legal. AFFIRMED in part; REVERSED in part; and REMANDED.

Jose Luis Manzo (“Manzo”) appeals the denial of his motion to vacate after he received a conviction for conspiracy to possess with intent to manufacture a controlled substance and appeals his guilty plea to distribute a controlled substance. Manzo accepted a plea agreement for the distribution charge in which he agreed to plead guilty and waived his right to direct or collateral appeal for both the manufacturing and distribution cases unless he wished to assert an appeal for ineffective counsel or incorrect guidelines calculation because of a mistake. In this agreement, the Government agreed to file no more charges and agreed to recommend a downward adjustment of three levels from the agreed upon level 34 offense. Manzo’s manufacturing and distribution cases were grouped together which led to an offense level of 38 and placed Manzo in a Criminal History Category III. These combined yielded a Guideline range of 292-365 months for the distribution case. Manzo was expecting 135-168 months due to the plea bargain. Manzo was sentenced to 292 months for distribution, 240 months for manufacturing, and 16 months for a supervised release violation. All of which were to run concurrently. Manzo argues he received ineffective counsel because of the failure to advise him to withdraw from the plea bargain once it was clear the sentences would be grouped. The Court found that this failure had a major impact on the calculation for sentencing and was constitutionally deficient. The Court also found there to be a mutual mistake between the Government and Manzo as to the applicability of the grouping procedures and that the Government expressly breached the terms of the plea agreement by not recommending a three level downward adjustment. The court remanded the case to the district court to find if Manzo has been prejudiced by his ineffective counsel. REVERSED and REMANDED.

Oklevueha, the Hawaii chapter of the Native American Church, initiated this action against government officials for violations of constitutional and statutory guarantees of religious freedom when one pound of marijuana intended for religious use was seized and destroyed by the Drug Enforcement Agency (DEA). No criminal charges were asserted against any of the members. The district court dismissed Oklevueha’s claims as not ripe and lacking in standing. Additional claims for money damages or recovery of the marijuana were also dismissed. On appeal, the Ninth Circuit reversed the district court’s determination that the claims were not ripe, finding Oklevueha met all the elements to bring a “preenforcement claim,” which requires a genuine threat of prosecution. In this case, the members intended to continue to use marijuana and the previous seizure of the marijuana constituted enforcement that threatened to continue. In addition, Oklevueha’s claims were fit for review because there had been past enforcement, and it is not a requirement for a plaintiff to expressly plead the need for injunctive relief or to first seek a exemption from the DEA. The Court determined Oklevueha also had standing to bring the suit because the members would individually have standing, the interest in the suit was germane because use of marijuana is the “sole purpose” of Oklevueha, and a remedy would benefit all members. On the claim for damages or return of the marijuana, the Court affirmed the district court and stated the government cannot return what has already been destroyed, and the applicable statute does not waive sovereign immunity to money damages. AFFIRMED IN PART, REVERSED and REMANDED IN PART.

L.A. Printex Industries, Inc. (“L.A. Printex”), a fabric printing company, brought suit against clothing retailer Aeropostale, Inc. and apparel wholesaler Ms. Bubbles, Inc. (collectively “Defendants”) for copyright infringement. L.A. Printex alleged Defendants used a similar floral design for shirts sold in 2006, which Plaintiffs had developed and copyrighted as C30020. The district court granted summary judgment for Defendants, ruling that there was no genuine issue of material fact supporting Defendants’ access to C30020 and that Defendants’ marketed design was not similar enough to C30020. Plaintiff appealed. To determine if Defendants had access to C30020, the Ninth Circuit considered whether the design had been “widely disseminated” and found that a genuine issue of material fact as to this question had been raised because 50,000 yards of fabric bearing the design had been sold in the area before the alleged infringement. As to the similarity between Defendants’ design and C30020, the Court noted that the two designs did not have to be exactly the same and that there existed enough similarities between the designs to lead a reasonable jury to find a copyright violation. Lastly, the Court held that an error in L.A. Printex’s original copyright registration of C30020 does not preclude the present infringement action. Summary judgment REVERSED, VACATED and REMANDED for further proceedings.

Petitioner purchased foreign manufactured textbooks abroad, imported them to the U.S. and resold them at a profit without the copyright holder’s permission. The textbook publisher brought suit against Petitioner for copyright infringement of the exclusive right to distribute under 17 U.S.C. § 602(a)(1). The court determined that § 109(a) of the Copyright Act’s first sale doctrine does not refer to foreign works manufactured abroad and cannot be used by appellant as a defense to the copyright infringement claim.

The Court of Appeals for the Second Circuit affirmed the lower court’s holding that the first sale doctrine does not apply to copies manufactured outside of the U.S. The court’s statutory interpretation turned on whether the phrase of § 109(a), “lawfully made under this Title” refers to any work made in the U.S. or “any work that is subjected to the protection under this title.” In reliance on the Supreme Court’s dicta in Quality King v. L’Anza Research International, Inc., the court determined that “lawfully made” under the laws of a foreign country is not necessarily the same as what was meant by § 109(a) and instead refers specifically to domestic works.

On appeal Petitioner argues that the Second Circuit misinterprets the language, structure and historical application of the first-sale doctrine. Petitioner argues that the Second Circuit’s interpretation is inconsistent with both the Ninth and the Third Circuits’ interpretations and that the United States Supreme Court needs to resolve the split.

Opinion (Lourie): Advanced Fiber Technologies Trust (“AFT”) sued J&L Fiber Services, Inc. (“J&L”), claiming willful infringement under their original and reissued patent for a screening device that removed contaminants from “stock” mixtures of paper and water for the pulp and paper industry. Because the claimed terms changed significantly during AFT’s reissue prosecution, and reissue came after AFT filed its complaint, the District Court granted J&L’s motion for summary judgment on the issues of willfulness and noninfringement. AFT appealed, claiming error in the courts interpretation of “perforated” in its construction of the patent claim term “screening medium.” Rejecting the district court’s definition of “perforated,” the Court of Appeals held that AFT’s use of the words “may be punched or drilled” did not limit the screening invention to being made only by piercing or puncturing. Addressing the willfulness issue, the court found many factors showing J&L did not act willfully, including patent language leaving significant doubt to its validity, the PTO’s prior rejection of a reissue application due to it being “structurally indistinguishable” from a prior art patent, and the notion that AFT’s claim terms only became clear through their arguments during reissue litigation. Thus, the Court of Appeals AFFIRMED the summary judgment on willfulness, but REVERSED summary judgment on noninfringement because of incorrect claim construction, and remanded for further determination.

Defendants were arrested on the steps of the state capitol while conducting a protest of the deployment of Oregon National Guard in Iraq and Afghanistan. They were in violation of a rule that forbade being on the capitol steps between 11:00 p.m. and 7:00 a.m., and were subsequently convicted of second-degree criminal trespass. The Defendants appealed their conviction, arguing that the rule was not properly promulgated and that, if it was, it violated their rights of free expression and assembly under the Oregon Constitution. The Court explained that Article IV, sec. 17 of the Constitution gives the legislature the authority to choose how to determine the rules governing access to the capitol, and were properly promulgated within the scope of that article. Next, the Court explained that the rule might be invalid as applied if the intent of enforcing it was to infringe Defendants’ free expression right, but that the trial court erred in excluding testimony relevant to that determination. Specifically, the Court construed, for the first time, Article IV, section 9 of the Oregon Constitution and found that, because the legislators were not in debate, they could be questioned. Reversed and remanded.

The youth appealed the juvenile court’s denial of youth’s motion to empanel a jury on the issue of restitution, which followed from its judgment that youth pay restitution of $114,071.13 for the damage youth did to a warehouse property. Youth challenged that Article I, section 17 of the Oregon Constitution afforded youth the right to a jury trial because recent changes to ORS 419C.450 changed the penal nature of the statute to a quasi-civil one. The Court analyzed the purpose of restitution and distinguished it from a civil judgment because it is meant to compensate only for economic damages and not all damages that the victim endured. Further, the Court found that restitution had other penological characteristics oriented toward rehabilitative and deterrent purposes, not specifically for a single victim’s recovery as in a civil judgment. Thus, Article I, section 17 right to a jury trial does not apply. Affirmed.

Petitioner Rudell sought judicial review of the Land Use Board of Appeals (LUBA) decision to affirm the City of Bandon’s (City) denial of a permit to build a home. Rudell applied for a permit in the City’s “shore land overlay” zone, which the City denied under Bandon Municipal Code (BMC) 17.24.040(D), forbidding structures to be on identified foredunes. The City’s definition of “foredune” did not clarify certain terms in the clause, thus the City relied on Webster’s Third New Int’l Dictionary for clarification. From this definition, the City denied Rudell’s application. The Court of Appeals held that despite a lack of ambiguity in the word “foredune”, the City correctly relied on Webster’s to specify the scope of “foredune”. Thus, the City’s interpretation was not inconsistent with the BMC. Additionally, the Court held that for purposes of ORS 197.307(6) (2009) and ORS 227.173(1), the interpretation was sufficiently clear and objective. Affirmed.

Defendant appealed convictions for first-degree encouraging child sex abuse and compelling prostitution, among other convictions based on forensic evidence of child pornography seized from his computer. Defendant contended that the trial court erred by failing to acquit him on the charges of first-degree encouraging child sex abuse, failed to do the same on the charge of compelling prostitution, and that it did not merge the verdicts for encouraging child sexual abuse into a single conviction. The Court affirmed the convictions for encouraging child sex abuse, concluding that Defendant knowingly duplicated the materials when he downloaded them from an online peer-to-peer network, and that whether the “victim” was the State or the child in the image/video was a matter “reasonably in dispute.” The Court reversed the conviction for compelling prostitution because it was not sufficiently supported by evidence in the record. Affirmed in part, reversed in part.

Defendant appealed a conviction for burglary in the second degree, for the theft of a lockbox containing checks, receipts and cash from a storage room at the back of a toy store. Under ORS 164.215(1), burglary in the second degree is defined as entering or remaining unlawfully in a building with intent to commit a crime therein. Defendant argued that his motion for acquittal in the trial court should have been sustained because the storage room was not a separate unit from the store, he had license to be in the store generally, and this license was not revoked by his criminal intent. The Court of Appeals held that, under ORS 164.215(1), the storage room was a separate unit under the burglary statute and Defendant did not have license to be in that separate unit. Affirmed.

The Coalition to Defend Affirmative Action (the “Coalition”) initiated a class action under 42 U.S.C. § 1983 against political and state officials, arguing that article I, section 31 of the California Constitution unfairly excludes minorities from higher education, which as applied violates the Equal Protection Clause of the Fourteenth Amendment. Section 31 provides: “the state shall not discriminate against or grant preferential treatment to, any individual or group on the basis of race…in the operation of public education.” The Coalition sought to enjoin Mark Yudof, President of the University of California (“U.C. Regents”) and Governor Schwarzenegger from enforcing section 31. Yudof asserted immunity under the Eleventh Amendment, claiming that he lacked the power to enforce section 31. The district court dismissed the Coalition’s claims with prejudice, holding that section 31 was constitutional under Coalition for Economic Equity v. Wilson (Wilson II), which upheld the constitutionality of section 31 under both the conventional and political-structure equal protection analyses. The district court also held that Yudof, as head of the U.C. Regents, was sufficiently connected to the enforcement of section 31 and not immune from suit. The Coalition appealed the district court’s dismissal of its complaint and Yudof cross-appealed the district court’s denial of state immunity. The Ninth Circuit affirmed that Yudof was not immune from the Coalition’s suit. As president of the U.C. Regents, Yudof “has a fairly direct connection to the enforcement of section 31” and is “duty-bound to ensure his employees follow it.” The Court further affirmed the district court’s dismissal of the Coalition’s complaint with prejudice. In so doing, the Court noted that Wilson II is binding precedent of the Ninth Circuit in determining “whether race-based affirmative action programs can be prohibited” and the “district court faithfully applied it.” AFFIRMED.

Michael Brantley, joined by a class of cable and satellite television subscribers, sued NBC Universal, Inc. (“NBC”) and various other television programmers and distributors, alleging violations of 15 U.S.C. § 1, the Sherman Act. Brantley alleged that a vertical agreement between NBC and the other defendants creates a restraint referred to as “tying,” a practice where a seller conditions the sale of one product on the purchase of a different product. Specifically, Brantley asserted that by requiring consumers to purchase multi-channel packages rather than allowing for a la carte programming options, distributors and programmers are limiting competition between one another, “which results in reducing consumer choice, and increasing prices.” The district court granted NBC’s motion to dismiss on the grounds that Brantley failed to allege a recognizable injury to competition, as required by 15 U.S.C. § 1. The Ninth Circuit noted that while tying arrangements may in certain situations harm competitors or preclude entry to the market, they are regularly used to compete in the marketplace and thus are often “consistent with pro-competitive behavior.” Therefore, a successful complaint must allege the tying arrangement caused an “actual adverse effect on competition.” The Court held that NBC’s failure to offer a la carte programming does not state a recognizable injury to competition. Further, an agreement that “has the effect of reducing consumer’s choices or increasing prices to consumers does not sufficiently allege an injury to competition.” Thus, Brantley’s complaint failed to state facts showing an identifiable injury to competition as required by the Sherman Act. AFFIRMED.

Ben-Sholom was sentenced to death after being convicted of burglary, robbery, and felony murder. The district court granted habeas relief for his sentence based on ineffective assistance of counsel, however, his appeal stemmed from the district court’s denial of an evidentiary hearing to determine whether he received ineffective assistance of counsel during the guilt-phase of his trial. As the Government did not dispute that Ben-Sholom received ineffective assistance of counsel, the Court only focused on whether Ben-Shalom established prejudice as a result of counsel’s deficient performance. In arguing he was prejudiced, Ben-Sholom based his claim on psychiatric testimony that he was unable to form the requisite intent to commit these crimes and his defense counsel’s failure to present a state of mind defense. The Court found that this evidence was not sufficient to counter his two taped confessions detailing the crimes. The Court also noted that the testimony from the doctors did not explain why Ben-Sholom gave the confessions, including his admission that he helped to plan the robbery. The Court found, based on the confessions and Ben-Sholom’s inability to provide any other evidence in addition to the psychiatric testimony, the district court did not err in denying the evidentiary hearing. AFFIRMED.

The Administrative Law Judge (“ALJ”) determined Edilia Molina did not meet the Social Security Act’s definition of “disabled” and denied her application for disability insurance benefits and supplemental security income. Molina appealed, arguing the ALJ “erred by giving inadequate weight to the opinions of her primary care provider [Molly Wheelwright], by improperly determining she was not credible, and by rejecting her family members’ testimony.” The Ninth Circuit found the ALJ did not err, and properly discounted Wheelwright’s opinion. As a physician’s assistant working without close supervision of a physician, Wheelwright was considered an “other source” receiving a lower level of deference than what qualified practitioners and specialists would receive as “medically acceptable sources.” As is required to discount testimony from “other sources,” the ALJ gave “several germane reasons for discounting Wheelwright’s opinion.” Second, the Court found the ALJ did not err in her credibility assessment of Molina’s testimony. The ALJ used “ordinary techniques of credibility evaluation” to determine whether objective medical evidence of impairment existed that could reasonably cause the alleged symptoms. Without evidence of “malingering,” an ALJ needs “specific, clear and convincing reasons” to reject a claimant’s testimony about the severity of her symptoms. The Court determined that Molina’s claimed inability was inconsistent with medical evidence, her daily activities, her demeanor, and her refusal of treatment, and the ALJ’s reliance upon such evidence in making the adverse credibility determination was appropriate. Third, the Court found the ALJ erred in failing to give “germane reasons” for rejecting the family’s testimony. However, this was “harmless error,” given that Molina’s and the family’s testimony described the same limitations, “and the ALJ’s reasons for rejecting Molina’s testimony apply with equal force to the lay testimony.” AFFIRMED.

Khalil-Salim Arbid, a Lebanese national, illegally entered the United States in 2000. The immigration judge (“IJ”) granted Arbid asylum based on a well-founded fear of prosecution for his political beliefs. In 2008, Arbid pled guilty to mail fraud and was sentenced to sixteen months in prison and ordered to pay $650,000 in restitution. Following Arbid’s release, the Department of Homeland Security moved to reopen removal proceedings based on Arbid having committed a particularly serious crime. At hearing, to determine the seriousness of the crime the IJ reviewed the Frentescu factors: the underlying facts and nature of the conviction, the sentence imposed, and whether the alien will be a danger to the community. After considering the sentence and the underlying facts of the conviction, coupled with Arbid’s lack of remorse or responsibility, the IJ found Arbid to be a danger to the community and thus found his crime to be particularly serious, rendering him ineligible for asylum or withholding of removal. Following a subsequent hearing on current political conditions in Lebanon, the IJ found Arbid ineligible for deferral of removal under the Convention Against Torture. The Board of Immigration Appeals (“BIA”) considered the nature and scope of Arbid’s complex scheme to defraud and affirmed. On appeal, the Ninth Circuit found no abuse of discretion by either the IJ or the BIA in concluding that Arbid’s crime was particularly serious, and found substantial evidence to support that it was “[n]o longer more likely than not that Arbid would be tortured upon his return [to Lebanon],” where the Syrian military had withdrawn, an anti-Hezbollah majority now controlled the legislature, and the exiled leader that Arbid supported had returned to govern. PETITION DENIED.

Nevada state prisoner, Christopher Wentzell, was convicted of solicitation to commit murder, principal to the crime of attempted murder, and principal to the crime of theft. The district court dismissed Wentzell’s petition for writ of habeas corpus as time-barred under the one-year statute of limitations under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). After both the district court and the Ninth Circuit denied Wentzell’s application for a certificate of appealability, Wentzell filed a state petition for writ of habeas corpus. The Nevada state court granted the petition in part and entered an amended judgment of conviction dismissing the count of solicitation to commit murder and leaving the other counts unchanged. Wentzell then filed a pro se habeas petition, which the district court sua sponte dismissed as beyond the AEDPA statute of limitations period and, alternatively, as a “second or successive” petition filed without leave from the Court of Appeals as required by § 2244(b) of the AEDPA. On appeal, the Ninth Circuit found that the district court erred in its sua sponte dismissal of the petition, because before doing so it failed to provide Wentzell “with adequate notice and an opportunity to respond.” Further, the Court concluded that the habeas petition at issue is not “second or successive” under the AEDPA, because Wentzell’s first habeas petition challenged the original judgment of conviction, not the amended judgment of conviction. In so finding, the Court relied on the Supreme Court’s decision in Magwood v. Patterson and held that “the latter of two petitions is not ‘second or successive’ if there is a ‘new judgment intervening between the two habeas petitions.’” REVERSED and REMANDED.

Opinion (Cudahy): Fail Safe, LLC (“FS”) and A.O. Smith Corporation (“AOS”), both manufacturers of pool pump motors and other pool devices, collaborated together to develop a pump motor for pool suction entrapment protection technology. FS repeatedly shared descriptions of the project, along with test results from previous designs without discussing confidentiality with AOS. No formal relationship was established between FS and AOS, and correspondence ceased by October 2006. AOS introduced two pump motors FS claimed incorporated its trade secrets in 2006, and FS sued in May 2008 for misappropriation of trade secrets. AOS motioned for summary judgment, which the district court granted, finding FS’s claim time-barred, and that FS failed to take reasonable steps to protect the secrecy of its claimed trade secrets. FS appealed, arguing that it reasonably believed it had entered into a joint venture with AOS, creating a duty of confidentiality. The Court of Appeals held the parties’ collaborations insufficiently evidenced a reciprocally confidential relationship. Furthermore, by effectively volunteering the information without broaching the topic of confidentiality with AOS, FS’s actions were unreasonable, and AOS had no duty of confidentiality. The Court of Appeals AFFIRMED summary judgment.

Ergo Licensing, LLC (“Ergo”) accused Carefusion 303, Inc. (“Carefusion”) of infringing its patent claims related to an infusion device. The claims described a system utilizing a control device to individually meter and simultaneously deliver multiple fluids from different sources at different rates to a patient. The District Court held that the device’s patent terms “control means” and “programmable control means” were indefinite, which Ergo appealed. Means-plus-function terms are required to point out the particular structure used to perform the function, lest it be deemed “indefinite.” Ergo argued that its disclosure of a “control device” was known to those skilled in the art as synonymous with a “general computer.” Ergo claimed that the specification described an additional structure of the “control device,” particularly that the device had processing capabilities, generated control commands, had memory, and had “programmable means… constituting control and monitoring functions.” The Court of Appeals found none of these specifications to be structural, noting that all Ergo did was replace “means” with “device.” Even if the Court of Appeals accepted “control device” as synonymous with computer, Ergo failed to disclose the algorithm required when a specification includes a general computer or microprocessor. The specification provided only functional language with no sequential process for control and adjustment. The Court of Appeals AFFIRMED the district court.

Opinion (McNamee): Merit Homes was a member of Arboleda Ranch, LLC (“Arboleda”), the developer of a residential real estate project in Phoenix, AZ. To finance the development, Arboleda singed a loan agreement with National Bank of Arizona (“NBA”) that required Arboleda to give NBA its rights in the construction plans and specifications, as well as the right to take over and complete construction, as collateral. After obtaining financing, Merit contracted with the Felten Group (“Felten”) to design the plans and specifications for the development. Arboleda defaulted on the loan, and NBA auctioned the collateral with the bank being the highest bidder. Thereafter, Joseph Carl Homes (“Holmes”) entered into an agreement to finish the project. Ten months later, Merit filed and obtained a registered copyright on the plans, and sued Holmes for infringing that copyright. Recognizing that, unlike an exclusive license, a nonexclusive license can be granted without a writing if the owner’s conduct manifests an intent to grant the license, the district court applied a three part test to determine if a nonexclusive license had been granted by Merit to Arboleda. Finding that Merit contracted with Felten for the plans on behalf of Arboleda, and intended that Felten copy and distribute the work without the Arboleda’s further involvement, the court found that Arboleda had an implied, nonexclusive license to use the plans, which could be seized by the bank and transferred to Holmes following Arboleda’s default. It, therefore, GRANTED Holmes motion for summary judgment.

Opinion (Swain): Robert Poindexter (“Poindexter”) sued EMI Record Group, Inc. (“EMI”), claiming that a song in EMI’s catalogue, “Washed Away,” infringed his copyrighted sound recording, “Thin Line Between Love and Hate” (“Thin Line”), which he co-produced, and its underlying composition, which he co-wrote. In 1998, Poindexter signed an agreement with Atlantic Recording Corp., granting it the exclusive right to the worldwide copyright for the “Thin Line” recording, and naming Atlantic as the owner and author. In 2011, Poindexter executed a buyout/release agreement with Warner/Chappell Music, Inc., selling his undivided interest in the underlying composition of “Thin Line” in exchange for royalties, but not the sound recording. Poindexter believed the agreement also granted him the right to sue for infringement. In the early 1990s, an EMI rap group, Arrested Development, sampled the recording and composition of “Thin Line” in its song “Washed Away,” using a single, two-second note from “Thin Line” looped throughout the song. EMI moved to dismiss the infringement claims, claiming Poindexter lacked standing to sue and had failed to assert a claim upon which relief could be granted. Because Poindexter had transferred his ownership interests in the composition to other parties, the district court DISMISSED Poindexter’s infringement claim of the sound recording, and held that because any infringement of the composition was de minimis he could not assert a valid infringement claim of the underlying composition, assuming he retained some ownership interest therein.

Father appealed the trial court’s supplemental judgment changing the child support provisions of the stipulated general judgment of dissolution, which was issued in 2008. The supplemental judgment was based upon Mother’s filing of a motion to modify child support in 2009. After a May 2010 hearing, the trial court: increased Father’s child-support obligation from $500 to $1,192 per month; vacated Father’s reception of two of the three child dependency exemptions; and increased Father’s medical support obligation from 80% to 100% of health care costs. The trial court based its finding on Father’s 4% income increase over 17 months. The Court of Appeals held that the 4% income increase was not an unanticipated or substantial change in economic circumstances that would justify a modification of a child support order. Reversed.

The State appealed pretrial motions suppressing evidence and returning Defendant’s seized property that were granted by the trial court. Defendant was charged with various drug related charges. During the execution of an unrelated search warrant, a police officer found a large amount of marijuana and cash in Defendant’s home. The officer subsequently sent a “Notice to Seize Bank Accounts” to Defendant’s bank for his accounts. Along with his financial records, the contents of Defendant’s safe deposit box were seized as well. The trial court determined that Defendant’s financial records and safe deposit box were obtained in violation of Oregon’s banking privacy laws. The Court of Appeals interpreted former ORS 192.555(2)(a) (2007) to read that a bank may only disclose financial records if it has an independent suspicion that there has been a violation of the law; a suspicion relayed by law enforcement through an intent to seize is not sufficient. Therefore, the trial court correctly suppressed the evidence. Affirmed.

Wallace seeks review of a final order of the Public Employees Retirement Board (Board) that granted summary determination in favor of the Public Employees Retirement System (PERS). Wallace participated in the Oregon Savings Growth Plan and was subject to restrictions on his trade activity at the discretion of the compensation manager. Upon Wallace’s request, the director reviewed and then affirmed the manager’s imposition of restrictions. While a contested case hearing to review of the director’s determination was pending, the Board imposed trade restrictions on all participants, removing individual restrictions. The Board granted PERS’ motion and dismissed Wallace’s request, finding it moot because a determination regarding the individual restrictions would have no practical effect since such restrictions no longer existed. Wallace appealed and the Court of Appeals also dismissed as moot, making the same finding as the Board. Petition for judicial review dismissed as moot.

Defendant was convicted of third degree theft and harassment due to his attempt to steal from a grocery store, and trying to place an employee in a headlock. The lower court imposed a compensatory fine on the Defendant under ORS 137.101, to which he did not object, due to his actions against the employee, despite a lack of evidence in the record of the employee requiring any form of compensation. Defendant appealed, arguing that the lower court committed plain error due the lack of evidence in the record. The Court of Appeals disagreed, reasoning that because Defendant had stated during sentencing that he faced a $3,000 fine in another unrelated matter, that created a plausible inference that the Defendant did not preserve the error for tactical reasons. Therefore, the lower court did not commit plain error. Affirmed.

Protect Grand Island Farms (PGIF) sought judicial review of a final order of the Land Use Board of Appeals (LUBA) affirming a Yamhill County ordinance adding 224.5 acres to its inventory of mineral and aggregate resources under Statewide Planning Goal 5. PGIF argued that the site should not have been included because the “average thickness of the aggregate layer within the mining area” did not exceed 25 feet as required by OAR 660-023-0180(3)(d)(B)(ii). PGIF contended that the county and LUBA improperly applied the rule by treating two distinct aggregate layers that were separated by a layer of clay as a single layer. The Court found that because the rule permits the destruction of farmland for mining where the depth of the aggregate is substantial, it made no sense to prevent mining of a deep deposit of aggregate merely because it also contained areas of non-aggregate. Affirmed.

Defendant appealed his consecutive sentences. The Defendant was charged and pled guilty to second-degree burglary and first-degree criminal mischief. The trial court, using an upward departure, sentenced Defendant to 26 months’ imprisonment for each offense under ORS 137.717(3)(b). The trial court rejected Defendant’s argument that Defendant’s original 13 month sentences under ORS 137.717(3)(b) were “presumptive,” and, therefore, subject to the “shift-to-I” rule pursuant to the Oregon Sentencing Guidelines. Defendant appealed and the Court affirmed, holding that since ORS 137.717(3)(b) allowed the trial court to authorize a departure sentence, it is a “statutorily mandated” sentence and a “presumptive sentence.” Thus, ORS 137.717(3)(b) is outside the scope of OAR 213-012-0020, and the court did not err when it chose not to apply the “shift-to-I rule” to “statutorily mandated” sentences. Affirmed.

Plaintiff Gest (Gest) appealed the trial court’s summary judgment ruling for defendants, Oregon AFL-CIO (AFL-CIO) and Thomas Chamberlain (Chamberlain). Chamberlain fired Gest from the AFL-CIO one day after Gest organized an informal grievance meeting to discuss concerns about Chamberlain’s leadership. Gest alleged that she was subsequently denied a job interview because of Chamberlain’s negative comments to her potential employer. Gest sued the Oregon AFL-CIO and Chamberlain alleging “intentional interference with economic relations.” The trial court granted summary judgment to the AFL-CIO and Chamberlain holding that Gest’s claim was preempted by the National Labor Relations Act (NLRA). Gest appealed and the Court affirmed holding that Gest’s grievance meeting involved “concerted activity” that was regulated by the NLRA. Under Garmon, the state must allow the National Labor Relations Board to determine disputes that the NLRA was designed to protect or prohibit. Accordingly, Gest’s claim was preempted. Affirmed.

Defendant appealed his jury conviction for several counts, including four counts of identity theft. The Defendant stole five credit cards, two checks, and a PDA after rummaging through a desk in a private office. Defendant was apprehended almost immediately and admitted to the theft. At trial, Defendant moved for a judgment of acquittal, arguing that the evidence that he stole and possessed the credit cards was insufficient to prove intent to deceive or defraud as required by the statute. The trial court denied Defendant’s motion and a jury convicted him. Defendant appealed. In McAtee, the Court held that it is up to a jury to decide whether a reasonable inference flows from a particular set of facts. Based on its ruling in McAtee, the Court affirmed, holding that there was a reasonable probability that Defendant intended to deceive or defraud because he chose to keep only those items that could easily be used to steal another’s identity. Affirmed.

Bagdasarian Productions (“Bagdasarian”) sued Twentieth Century Fox (“Fox”) in connection with a movie agreement (“Agreement”). “Fox moved to stay the case and to refer the dispute to a referee as the Agreement provided. The district court granted the motion, whereupon [Bagdasarian] brought [an] interlocutory appeal.” The Ninth Circuit noted that the stay of proceedings and reference order were not “a traditional ‘final decision’ or judgment.” The Court reasoned that Bagdasarian would not be “put out of court,” such that “there [would] be no further proceedings in the federal forum,” because (1) the Agreement did not provide that the referee’s decision would be final and (2) “the referring court would still have the authority to set the judgment aside and correct errors of law.” The Court also noted that the “collateral order doctrine” did not apply because “if the referral pursuant to Section 638 [was] improper for any reason, the error could be remedied by setting aside the decision and remanding to the district court for full proceedings.” The Ninth Circuit held that the appeal was premature and therefore the Court lacked jurisdiction. DISMISSED.

After Debtor, Ms. Kekauoha-Alisa, defaulted several times on mortgage payments, Lenders, Ameriquest Mortgage and JPMC Mortgage, initiated foreclosure sale. Ms. Kekauoha-Alisa filed for chapter 13, which automatically stayed foreclosure proceedings. Lenders properly postponed foreclosure sale three times by public announcement, but not the fourth. Shortly thereafter, Lenders sold the property, displacing Ms. Kekauoha-Alisa. Ms. Kekauoha-Alisa filed a suit in bankruptcy court and received a money judgment plus attorney’s fees against Lenders for failure to properly announce postponement of sale of the property. The Bankruptcy Appellate Panel (“BAP”) reversed the bankruptcy court’s findings. The Ninth Circuit concluded that according to the plain language of HRS § 667-5, Lenders failed to publicly announce postponement, rejecting the BAP’s conclusion that any reasonable means of communication constitutes “public announcement.” The Court affirmed the bankruptcy court’s finding that the appropriate remedy for a procedural violation is to void the foreclosure sale. The Court remanded to the bankruptcy court to recalculate damages because there was no finding of a causal link between Lenders’ failure to announce postponement and Ms. Kekauoha-Alisa’s damages. The Court refused to construe the bankruptcy court’s list of Ms. Kekauoha-Alisa’s damages as an implicit factual finding of a causal connection. Lastly, the Court vacated attorney’s fees “in light of [their] remand of the damages-causation issue.” AFFIRMED in part, VACATED and REMANDED in part.

Gary Wayne Rodrigues was convicted by a jury of several counts of “theft of honest services,” as well as counts of “conspiracy, embezzlement, money laundering, and health care fraud.” The verdict was previously appealed to the Ninth Circuit and affirmed. Rodrigues, the State Director for United Public Workers (UPW), negotiated health insurance contracts that included consultant’s fees. These fees were paid by the insurance providers, but caused them to charge UPW members higher premiums. The consultants were designated by Rodrigues; the first consultant was his girlfriend’s stepfather, the second was his daughter. Neither consultant did any consulting work. Additionally, some of the consultant’s fees were put towards Rodrigues’s personal use. Rodrigues appealed from the District of Hawaii, which denied his § 2255 Motion of January 31, 2011. On appeal, Rodrigues argued that the lack of a kickback element in his jury instruction on mail fraud created a substantial trial error. First, the Court reasoned that, in the original trial, Rodrigues had notice that the charges he was facing contained allegations of kickbacks. Second, the Court found that the Government’s case was ironclad; the Government’s evidence was so thorough that the Ninth Circuit reasoned that the omitted element of a kickback had been satisfactorily demonstrated. The Ninth Circuit held that the lack of a kickback element in the jury instruction did not cause a substantial error in the jury’s verdict. AFFIRMED.

Major and Huff were convicted of numerous offenses, in violation of 18 U.S.C. §§ 1951 and 924, and sentenced under 924(c). Major and Huff appealed, claiming that the district court denied them a fair trial by admitting evidence of the their affiliation with the criminal street gang “High Roller Boyz” and evidence of crimes they had committed with said group. They also argued violation of their Sixth Amendment right to prepare for trial because they were not allowed to contact anyone other than their attorneys during trial. Furthermore, Defendants claimed that 924(c) violated separation of powers and his Eighth Amendment right to be free from cruel and unusual punishment. Finally, Defendant claimed the district court erred in permitting a discharging offense, rather than a brandishing offense, to be the first listed conviction, resulting in a longer sentence due to the minimum sentencing requirements, 924(c). The Court affirmed all of the district court’s evidentiary rulings. The Court also held that the defendants were not deprived of an opportunity to prepare for trial, because they presented no evidence of harm to their cases and had not requested contact to prepare for trial. The Court held that 924(c) does not violate separation of powers or the Eighth Amendment. Finally, the Court noted that § 924(c) was ambiguous where a court did not have information regarding the order in which findings of guilt are made and that, therefore, the lenity doctrine should apply. The Ninth Circuit held that “when the district court does not have sufficient information to determine the order in which the jury made determinations of guilt during jury deliberations on multiple counts under section 924(c), it must order the convictions so that the mandatory minimum sentence is minimized.” AFFIRMED IN PART, VACATED and REMANDED IN PART.

Petitioner brought a 42 U.S.C § 1983 claim for presentation of false testimony after Respondent, a district attorney’s office investigator, testified against Petitioner at three different grand jury hearings in which the indictments were dismissed. Respondent moved to dismiss based on claim of absolute immunity, and Petitioner argued that because Respondent was a “complaining witness” he was not entitled to immunity. The District Court denied the motion to dismiss, but the Court of Appeals for the Eleventh Circuit reversed holding that Respondent had absolute immunity.

The Supreme Court affirmed holding that a grand jury witness is entitled to the same immunity as a trial witness. The Court reasoned that without immunity, grand jury witnesses might refuse to testify or modify their testimony for fear of being sued, thus impairing the truth-seeking function of the process, and that civil penalties for perjury are sufficient to deter false testimony. The Court also clarified that a “complaining witness” is one who initiates a criminal proceeding—typically a prosecutor—as opposed to a witness providing testimony. Because Respondent’s role in the indictment was limited to grand jury testimony, he was not a complaining witness, and therefore is entitled to the same absolute immunity afforded a trial witness.

When it constructs a dam the U.S. Army Corps of Engineers is required to implement a water control plan that details safety features, release rates and other operating instructions as outlined in a Water Control Manual. The Manual for the Clearwater Dam established “normal regulation releases” and also allowed for deviations for emergencies, “unplanned minor deviations” or planned deviations approved by the Corps.

Between 1993 and 2000, the Corps approved several temporary deviation plans that caused temporary flooding and destroyed nearly 18 million board feet of timber on Petitioner’s land. Petitioner alleged that temporary release rate deviations constituted a taking and brought a 28 U.S.C. § 1491 action against the United States seeking just compensation.
The United States Court of Federal Claims held that the deviations were reoccurring and constituted a temporary taking and awarded Petitioner damages. The Court of Appeals for the Federal Circuit found the deviations to be temporary, and, relying on Supreme Court precedent that takings must be permanent and predictable, reversed.

Petitioner argues that government regulations imposing physical invasions are not exempt from the Takings Clause solely for lack of permanency.

Petitioner, a Jamaican immigrant, pled guilty to a state drug possession charge and was sentenced to five years probation. As a result, the Department of Homeland Security (DHS) charged Petitioner under 8 U.S.C. § 1227 as being a deportable alien convicted of an aggregated felony because the crime involved drug trafficking, and the Immigration Judge (IJ) agreed and found Petitioner removable as an aggravated felon. The Board of Immigration Appeals (BIA) affirmed the IJ’s decision and dismissed Petitioner’s appeal.

Recognizing a circuit split, the Court of Appeals for the Fifth Circuit used a categorical approach to determine whether the state conviction qualified as a felony, and agreed with the First and Sixth Circuits that the default sentence for a marijuana distribution offense is a felony unless the Petitioner proves he was convicted only of misdemeanor conduct.

Petitioner argues that the Fifth Circuit’s holding is contrary to the Supreme Court’s “categorical approach” which places the burden on the government to show the defendant was actually “convicted of conduct that would constitute a federal felony” when the record is unclear.

Link to Grant of Certiorari

After Petitioner was pulled over for speeding and arrested on a bench warrant issued two years prior for failure to pay a monthly installment on a fine, he was forced to go through a standard delousing process and strip search at two detention locations. Petitioner filed a suit under 42 U.S.C § 1983 for a violation of his Fourth and Fourteenth Amendment rights, arguing that officials could not conduct strip searches without particularized reasonable suspicion. The district court granted Petitioner’s summary judgment motion and the Court of Appeals for the Third Circuit reversed.

The Supreme Court affirmed the Third Circuit’s decision. The Supreme Court stated that corrections officials must be given “substantial discretion” to maintain safety at a correctional facility and that the impingement on the detainee’s right must be upheld if it is “reasonably related to legitimate penological interests.” The Court held that the definition of reasonableness will be left to the officials unless there is substantial evidence of an “exaggerated response” to a legitimate security interest. The Court also held that Petitioner’s proposal that new detainees not arrested for serious or dangerous crimes be exempt from invasive searches, is unworkable and is not required by the Fourth or Fourteenth Amendment.

Monica Emeldi, a former Ph.D. student at the University of Oregon (the “University”), sued the University for retaliation after she complained about gender-based bias in the Ph.D. program and gender discrimination by her dissertation chair, Robert Horner. Emeldi appealed the district court’s grant of summary judgment in favor of the University. The Ninth Circuit held that Emeldi established a prima facie case of retaliation. First, Emeldi’s complaint to administrators about institutional bias against women and about Horner’s favoring of male students over female students constituted protected activity under Title IX. Second, Horner’s resignation after being informed of Emeldi’s complaints satisfied the adverse action requirement, because Emeldi was unable to complete her Ph.D. without a dissertation chair. Third, the short period of time between Emeldi’s complaints and Horner’s resignation established a causal link between the protected activity and adverse action. Emeldi discussed her problems regarding Horner with University administrators, who then informed Horner of their conversation with Emeldi. A few weeks later, Horner resigned. There was also evidence that Horner showed signs of discrimination by giving males more attention and avoiding eye contact with Emeldi. The Court held that a jury could find that Emeldi produced non-speculative evidence of a causal link between her protected activity and Horner’s resignation. Though the University did show non-retaliatory reasons for Horner’s resignation, Emeldi proffered evidence that such reasons were pretextual, as shown by proof of unequal opportunities between male and female students, and Horner’s failure to help Emeldi find a replacement chair. REVERSED and REMANDED.

Tan Nguyen (“Nguyen”) was convicted in federal court of obstruction of justice under 18 U.S.C. § 1512(b)(3). A California magistrate issued a search warrant to gather evidence from Nguyen’s home and campaign headquarters. The evidence connected Nguyen, a Republican candidate for Congress, to an intimidating letter mailed to Hispanic voters registered as Democrats. The letter warned voters that their personal information might be shared with anti-immigrant organizations if they turned out to vote. The probable cause affidavit alleged three state election law crimes; however, Nguyen was only charged for his failure to disclose his full knowledge of the letter to state investigators. Following his conviction Nguyen challenged the constitutionality of the search warrant used to obtain evidence, and he sought a motion to suppress claiming that there was insufficient probable cause to support the state’s investigation. The district court denied Nguyen’s motion. The Ninth Circuit held that a warrant is constitutional if there is a fair probability that a violation occurred. The Court found that “the contents of the letter and the circumstances of its distribution were sufficient to allow the magistrate to conclude that there was a fair probability that the mailing constituted a violation of California Election Code Section 18540.” Additionally the Court rejected Nguyen’s argument that the letter was political speech protected by the First Amendment. In so doing, the Court cited Supreme Court precedent that states that voter intimidation is a “true threat,” not speech protected by the First Amendment. AFFIRMED.

Taxpayer Paul Di Mundo incorporated Taproot Administrative Services (“Taproot”) as an S corporation. After incorporation, Di Mundo issued all shares of Taproot’s stock to a custodial Roth IRA, which was Taproot’s sole shareholder in 2003. The Commissioner of the Internal Revenue Service (“I.R.S.”) notified Taproot that Roth IRAs do not qualify as an eligible shareholder of an S corporation and deemed Taproot a taxable C corporation. In 2003, two of the types of shareholders qualifying for S corporation status were domestic individuals and certain trusts. Taproot appealed the Tax Court’s grant of summary judgment, arguing that a Roth IRA should be treated as a qualifying individual and alternatively, as a grantor trust. Revenue Ruling 92-73 states that “traditional IRAs are not eligible S corporation shareholders because the beneficiary is not taxed currently on the IRA’s share of the S corporation’s income.” The key feature that renders IRAs ineligible as an S corporation shareholder is the deferred income tax scheme, where an IRA beneficiary does not pay taxes on income until distributions are made, in contrast to the beneficiary of an S corporation who is taxed currently on its income. Under Taproot’s argument, Di Mundo would avoid all taxation of his S corporation profits if the Roth IRA were the corporation’s sole shareholder. The Ninth Circuit concluded that Congress did not intend for IRAs to be S corporation shareholders because of this deferred taxation scheme. Implicit in Revenue Ruling 92-73 is that the I.R.S. treated IRAs as trusts rather than individuals. Additionally, Roth IRAs are distinguishable from custodial accounts involving minors or disabled individuals because of the deferred taxation scheme. AFFIRMED.

R & R Sails, Inc. (“R&R”) sued The Insurance Company of Pennsylvania (“AIG”), alleging breach of contract and tortious bad faith following AIG’s refusal to cover fire damage to a facility owned by R&R. AIG fully satisfied R&R’s breach of contract claim prior to trial. AIG moved to preclude introduction of evidence supporting R&R’s tort claim, on the basis that R&R failed to provide this evidence in a timely fashion. The district court found that R&R violated Federal Rule of Civil Procedure 26, and sanctioned R&R by excluding evidence in support of its tort claim, pursuant to Federal Rule of Civil Procedure 37(c)(1). The court found, due to the preclusion sanction, that R&R could not support its bad faith tort claim with any evidence and granted AIG judgment as a matter of law (“JMOL”). R&R appealed from the district court’s grant of JMOL against its tort claim. The Ninth Circuit found the district court did not abuse its discretion in finding R&R violated Rule 26. However, the Court held the district court failed to support its preclusion of R&R’s evidence with sufficient findings. The Court reasoned that the preclusion of R&R’s evidence amounted to a dismissal of a claim. Therefore, the district court was required to consider whether R&R’s failure to disclose information in a timely fashion “involved willfulness, fault, or bad faith,” and also was required to consider “the availability of lesser sanctions.” Because the district court failed to conduct this inquiry, it erred by excluding R&R’s evidence. REVERSED and REMANDED.

An Na Peng, a citizen of China and legal permanent resident of the United States, pleaded not guilty to an indictment of one count of conspiracy to defraud the Immigration and Naturalization Service (“INS”). At the time of the indictment, a conviction would not have precluded Peng from applying for waiver of deportation under Immigration and Naturalization Act (“INA”) § 212(c). Peng was found guilty and received probation. While Peng awaited sentencing, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), repealing § 212(c). IIRIRA § 304(b) added a seven-year residency requirement to INA § 212(h), and allowed a legal permanent resident to apply for a waiver of inadmissibility. The Board of Immigration Appeals (“BIA”) affirmed the Immigration Judge’s denial of Peng’s request for a waiver of inadmissibility under § 212(h) and her request for a continuance to apply for waiver of removal under former § 212(c). On appeal, Peng argued that, because she was eligible for § 212(c) relief when she proceeded to trial, applying § 304(b)’s repeal of § 212(c) relief would lead to an impermissible retroactive effect. The Court agreed, finding that § 212(c) is available to aliens who pleaded guilty and proceeded to trial, “if they can plausibly argue that they relied on the availability of relief.” The Court rejected Peng’s argument that § 212(h)’s seven-year residency requirement was “impermissibly applied retroactively to her case,” since her removal proceeding commenced nearly one year after Congress amended § 212(h). Further, in finding a rational basis for § 212(h)’s seven-year residency requirement, the Court denied Peng’s equal protection claim. GRANTED and REMANDED in part; DENIED in part.

This case is on automatic and direct review of a judgment that imposed a sentence of death for aggravated murder. As an assignment of error, Defendant submitted that the trial court erred by requiring him to proceed pro se without first securing a valid waiver of his right to counsel. Having gone through seven different attorneys, the trial court determined that Defendant had demonstrated an “undeniable pattern of manipulation” in order to seek continuance of his trial. After denying his counsel’s motion to withdraw, the trial court gave the Defendant the choice of continuing with his current representation or representing himself pro se. The trial court determined the Defendant’s refusal to choose an option as an election to proceed pro se. Because the circuit court did not secure a valid waiver of Defendant’s right to counsel, the Supreme Court held that the Defendant did not knowingly and intentionally waive the right to counsel and the Defendant’s actions did not create an implied waiver of the right to counsel. Subsequently, the Court vacated his death sentence. The judgment is reversed and remanded for further proceedings.

Opinion (Woodlock): Timothy McGee (“McGee”) pitched a treatment for a Cartoon Network show in 1997 for an animated sing-a-long series targeted at children, guest starring established musicians to be called “Music Factory.” Cartoon Network declined to run the show. McGee brought suit against Cartoon Network and Benjamin André (“André”), of noted Atlanta, GA, rap group, Outkast, for later airing André’s show, “Class of 3000,” which included similar themes. The court considered probative similarity and substantial similarity in its determination as to whether there was actual copying. In considering the probative prong, the court determined that the script and the sketches of the characters in “Music Factory” were original, but they were not the contested elements. The elements contested by McGee – idea for the show and common, unoriginal elements – were unoriginal. For example, both shows were set in Atlanta, Georgia, and were animated shows about music. The court concluded that a reasonable person would not find a protectable expression of “Music Factory” in “Class of 3000,” thus there was no substantial similarity. Accordingly, the court GRANTED the Defendant’s motion to dismiss.

Opinion (Breyer): Prometheus Laboratories, Inc. (“Prometheus”) owned two patented processes that helped doctors determine whether a given dosage level of thiopurine drugs was too low or too high. When ingested, thiopurine metabolized inside the patient’s body, and the doctor could then measure the metabolite levels using the three steps in Prometheus’ patented process. Mayo Collaborative Services (“Mayo”) announced its own, somewhat different, diagnostic test, based in part on Prometheus’ process patent, prompting Prometheus to sue Mayo for infringement. The district court granted a motion for summary judgment in favor of Mayo, finding Prometheus’ process patent invalid under 35 U.S.C. § 101, because the test merely applied laws of nature. After applying a “machine or transformation test” to determine that Respondent had “transformed” the natural law via the three-step process, the Court of Appeals for the Federal Circuit reversed. The Supreme Court found the three added steps claimed by Prometheus to transform laws of nature unconvincing. The three steps simply told the doctor to perform a routine and well-known activity by scientists. The Court held that simply altering conventional steps to the laws of nature in a highly general manner could not make those steps patentable, thus judgment for Prometheus was REVERSED.

Petitioner is a citizen of Greece and a lawful permanent resident of the United States. In 1997 Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), including INA § 1101(a)(13)(C)(v), which bars admission to lawful permanent residents upon their return from a trip to a foreign country if they commit an offense in violation of INA § 212(a)(2). In 1994, prior to the passage of IIRRIRA, Petitioner pleaded guilty to a felony and in 2003, Petitioner was denied admission to the United States upon his return from a trip to Greece. The Second Circuit found that the crime to which Petitioner pleaded guilty was an offense included within INA § 212(a)(2), and determined that application of INA § 1101(a)(13)(C)(v) to pre-IIRRIRA guilty pleas is not impermissibly retroactive.

The Supreme Court reversed, and held that application of IIRIRA § 1101(a)(13)(C)(v) to convictions entered prior to the passage of IIRIRA imposes a new disability in respect to past events, and violates the presumption against the retroactive application of laws in the absence of clear Congressional intent. The Court found that the legal regime in place under immigration law at the time of the conviction is the regime that governs the impact of the conviction.

Respondent, who was HIV positive, applied to renew his private pilot’s medical certificate, but did not disclose his condition. Respondent subsequently applied for SSA disability benefits based on his HIV diagnosis. Several years later, the DOT and the SSA initiated a joint investigation to identify pilots who were unfit to fly. Respondent’s name was flagged and he was criminally charged with making false statements to a Government agency. Respondent pled guilty and was fined, placed on probation and had his license revoked.

Respondent filed suit alleging that the FAA, DOT, and SSA “willfully or intentionally” violated the Privacy Act of 1974 by sharing his records with one another causing him emotional and mental distress. Under the Act, Plaintiff is entitled to “an amount equal to the sum of actual damages sustained by the individual”. Because Plaintiff only claimed emotional damages, the district court ruled against Plaintiff finding that he had suffered no actual damages under the Act. The Court of Appeals for the Ninth Circuit reversed and held that for purposes of the Privacy Act, the term “actual damages” included emotional and mental distress.

The Supreme Court reversed the Ninth Circuit and held that the Privacy Act does not “authorize an award of damages for mental or emotional distress” nor does it “waive the Federal Government’s sovereign immunity from liability for such harms” because the term “actual damages” is ambiguous and any ambiguity in the wording of a statute must be found in favor of immunity. In Doe v. Chao the Court found that the Privacy Act provisions paralleled the torts of libel and slander in which the plaintiff must prove “special damages” which are limited to actual pecuniary loss, thus “Privacy Act victims, like victims of libel per quod or slander, are barred from any recovery unless they can first show actual—that is, pecuniary or material—harm.”

Petitioner was arrested and indicted for drug possession and the state revoked his probation for an earlier drug conviction. Petitioner also pled guilty to federal drug crimes and the District Court sentenced Petitioner to 151 months, to run consecutive to any state sentence for probation violation and concurrent to any state sentence for possession charges. The state court sentenced Petitioner to concurrent terms of 5 years for the probation violation and 10 years for the drug charge.

Petitioner argued that the District Court did not have authority to order consecutive sentences and that the federal sentence was unreasonable and impossible to implement in light of the concurrent state sentences. Petitioner further argued that because the Bureau of Prisons (BOP) has statutory authority to order a federal prisoner to serve time in a state prison when also convicted of a state crime, that it should also be the BOP that determines whether he would serve concurrent or consecutive sentences.

The Supreme Court noted that common law has long recognized the discretion of the judiciary to select whether sentences will run concurrently or consecutively when dealing with additional sentences imposed against defendants. The Court held that this discretion includes making determinations where the district court judge anticipates a state court sentence yet to be imposed against the defendant. The language of 18 U.S.C. 3584 assumes that such authority of the courts already exists and does not confer such authority to the BOP to make such sentencing decisions. The Court found Petitioner’s argument regarding the unreasonable and impossible nature of concurrent state sentences unpersuasive because district courts would face the same unknown future if such authority to determine concurrent versus consecutive sentences was placed with the BOP. While the Court found that the state and federal sentences are problematic they are not an abuse of discretion by the district court, and since determinations of concurrent or consecutive sentences have historically belonged to the judiciary, the district courts are the correct forum.

Mother appealed a supplemental judgment modifying custody of the parties’ minor child. Father had previously petitioned for the minor child three separate times. After Father filed the current issue on appeal, the trial court found that there was a substantial change in circumstances and awarded Father custody. Mother appealed, arguing that the lower court applied an erroneous legal standard to the first prong of the two-part test for custody-modifications. The standard for custody-modification requires that a parent seeking a custody change must: 1) show that circumstances related to the child have changed since the last order affecting custody; and 2) it is in the child’s best interests. The Court reversed holding the trial court erroneously determined “the last custody order” was the November 2001 order granting father temporary parenting time. The correct custody order was the April 2004 order. Accordingly, Father failed to prove there was a substantial change in circumstances following the April 2004 order. Reversed.

Father appealed a juvenile court order that he undergo a psychological evaluation before a reunification plan and appropriate services were determined. The child has been in protective custody since birth and is under the jurisdiction of the juvenile court based on (1) the father’s lack of relationship with the child and (2) his unavailability due to incarceration. Father appealed the order arguing that the juvenile court erred in requiring a psychological evaluation under ORS 419B.337(2) and ORS 419B.343 which requires that court orders for services are rationally related to the jurisdictional findings that brought the child into custody. The Court of Appeals found the juvenile court did not err in finding that a psychological evaluation to determine the services needed for reunification was rationally related to the bases for jurisdiction. The rational relationship requirement is only a minimal threshold for the court to consider alongside other items when determining the validity of an order. Affirmed.

Defendant appealed from a judgment sentencing him to 70 months of incarceration and five years of post-prison supervision. Defendant argued that this sentence exceeded the statutory maximum of 120 months for a class B felony. The state countered that the sentence was unreviewable under ORS 138.222(2)(d), which precludes review of stipulated sentencing agreements. The Court disagreed that the decision was unreviewable, because the plea agreement was not a stipulated sentencing agreement since neither the state nor the Defendant stipulated to the specific terms of the sentence. The Court then determined that the error met the test for plain error because it was (1) a legal issue, (2) obvious and not subject to dispute, and (3) apparent on the face of the record. Although the Court determined that the error was reviewable, it chose not to exercise its discretion because it found that the Defendant encouraged the judge to consider imposing the sentence, and that the defendant may have made a strategic choice not to object to it. The Court noted that a Ballot Measure 11 count was dismissed pursuant to the agreement, along with three misdemeanors, thereby giving the Defendant a substantial benefit by accepting it. Affirmed.

Defendant Snodgrass appealed a circuit court judgment holding him in contempt of court. He argued that his agreement to pay his Oregon Pubic Employees Retirement System (PERS) benefit to Plaintiff was unenforceable because PERS benefits are unassignable. He also argued that Plaintiff had to be present at the contempt hearing. The Court of Appeals affirmed the circuit court’s judgment, which held Defendant in contempt for not complying with the court’s order, based on his confession of judgment to instruct PERS to send payments to the Plaintiff’s trust. Defendant did not challenge the validity of that judgment and the Court of Appeals found that he could not attack the validity of the judgment in a later contempt proceeding. Defendant next argued that Plaintiff’s absence at the contempt hearing did not give him the opportunity to confront her. The Court found no authority that required Plaintiff to be present at the contempt hearing. Affirmed.

Defendant appealed numerous convictions and assigned error to the trial court’s jury instruction. Defendant was charged and convicted for numerous crimes. During trial, the court instructed the jury regarding aiding and abetting a crime. Defendant appealed the trial court’s jury instruction claiming that it was an incorrect statement of law and therefore plain error, which is reviewable under ORAP 5.45(1). However, the Court held the Defendant failed to preserve the error for review because the Defendant did not comply with ORCP 59 H(1). Under ORCP 59 H(1), there are two situations that bar appellate review if the party does not preserve its objection: (1) An erroneous instruction from the trial court; and (2) Refusing to deliver a parties’ requested instruction. The Court found that the defendant did not object to the trial court’s erroneous jury instruction and therefore it was unreviewable. Affirmed.

Plaintiff Unifund CCR Partners (Unifund) appealed the dismissal of its suit. Unifund brought action to recover amounts due on a credit card account. The lower court granted summary judgment for Deboer, holding that Delaware’s three-year statute of limitation excluded Unifund’s suit. In Delaware, the tolling statute tolls the statute of limitation until a defendant is answerable to suit in Delaware. Unifund appealed the judgment, claiming that Oregon’s six-year statute of limitation applies. The Court of Appeals applied CACV of Colorado v. Stevens and found that applying ORS 12.440, which required the application of Delaware’s statute of limitations, prejudices the defendant by essentially denying him a statute of limitation defense. Therefore, the Court held that pursuant to ORS 12.450, Oregon’s six-year statute of limitation applies, and because Unifund’s suit was filed within six-years, the suit was timely. The award of attorney fees is also reversed. Reversed and remanded.

Opinion (Stewart): Brigham Young University (“BYU”) shared research, knowledge, and biological material with Monsanto, a subsidiary of Pfizer, Inc. (“Pfizer”). With BYU’s research, BYU alleged, Pfizer learned of COX-2, and the ability to develop a testing system for COX-2 selective NSAIDs, resulting in “billions of dollars” in profits for Pfizer. BYU claimed that Pfizer used fraud and misrepresentation to deny BYU its rightful economic gain, and was unjustly enriched. Pfizer moved for summary judgment, arguing that under Utah precedent, the Uniform Trade Secrets Act (“USTA”) preempted claims based on the unauthorized use of information, regardless of whether that information met the statutory definition of a trade secret. The court then had to consider whether the facts underlying BYU’s claims of unjust enrichment and fraud would support a claim of misappropriation of trade secrets. BYU argued that since not all of their claims were based on the “unauthorized use of information,” the UTSA should not preempt their causes of action. The Court found that because each of BYU’s claims were premised on Pfizer’s wrongful acquisition and use of BYU’s research, the UTSA should preempt BYU’s action. The court GRANTED Pfizer’s motion for partial summary judgment on the question of UTSA preemption.

Defendant appealed a supplemental judgment for restitution damages entered against him. He pled guilty to DUII and second-degree assault, and the trial court ordered him to pay restitution damages to the victim under ORS 137.106. The restitution must be in the form of “economic damages,” as defined in ORS 31.710(2). On appeal, Defendant contends that the restitution did not meet the requirements of “economic damages”. The Court of Appeals found that Defendant’s arguments to the trial court were not preserved on appeal. The only issue that Defendant preserved for appeal was a timing issue of when the victim’s impairment becomes a future impairment. The Court determined that the appropriate cut-off date for restitution is the date imposed by the sentencing court and that the trial court did not err in awarding restitution for income lost up to the date of the hearing; the amount imposed was reasonable. Affirmed.

Following hearing, a juvenile court took jurisdiction over infant K under ORS 419B.100(1)(c) on the grounds that Mother’s developmental disability and Father’s mental health concerns and anger issues prevented the parents from meeting K’s basic needs, endangering the child’s welfare. Mother alone appealed, arguing the evidence against both Mother and Father was insufficient. The Court of Appeals, considering the capacity of Mother and Father in combination, agreed with Mother. The Court held that the record did not support the juvenile court’s finding that Father was unable to provide necessary care. Additionally, the Court held, as a matter of law, that the record lacked evidence of the effects of Mother’s disability, therefore the juvenile court’s finding that Mother was unable to provide necessary care was error and K’s welfare was not endangered when the circumstances were taken as a whole. Reversed and Remanded.

Defendant appealed a conviction for multiple counts of solicitation. Defendant claimed that his conviction should be overturned because the trial court erred: (1) in denying his motion for judgment of acquittal and (2) in refusing to strike testimony of one of the State’s witnesses who invoked his Fifth Amendment right. While in jail awaiting trial, Defendant attempted to solicit an inmate to deliver a DVD to gang members regarding a former inmate who had testified against Defendant. The inmate notified the police of the solicitation. The Court of Appeals found that the denial of acquittal was proper because, as a matter of law, a reasonable jury could find Defendant guilty of solicitation. Under ORS 161.435(1), “a person solicits an intermediary to procure a third party to commit the intended crime so long as the intermediary is aware of that intended crime.” The Court also found that the trial court did not abuse its discretion in declining to strike the State’s witness’ testimony because the witness had been available for cross-examination. Affirmed.

This case is remanded from the Oregon Supreme Court. A police officer ran a license plate of a car he was following and discovered that the vehicle’s owner had an outstanding warrant for a drug offense. By the time of the discovery, the automobile had turned and the officer found it parked on the street. Defendant admitted to being the driver of the vehicle and that drugs would likely be found inside, at which point the officer searched the vehicle without a warrant. The Court of Appeals initially held that based on Kurokawa-Lasciak, the search was valid because a parked car can be searched if it was moving when police first encountered it, even though probable cause did not exist until the vehicle was stopped. The Supreme Court overturned Kurokawa-Lasciak, holding that the automobile exception applies only when the vehicle is moving when the police first encounter it in connection with a crime. Therefore, the Court of Appeals held that a warrant was necessary to search Defendant’s vehicle. Reversed and remanded.

Dry Cleaning To-Your-Door, Inc.(DCTYD) appealed from the trial court’s decision to award $115,980.50 in attorney fees to Anderson in a remedial contempt proceeding. ORCP 68 C(2) requires a party to seek an award for attorney fees by pleading or motion and provide a basis for an entitlement to attorney fees. In a proposed form of judgment, Anderson asserted, for the first time, a right to attorney fees that did not cite any basis for entitlement. The trial court adopted Anderson’s proposed form of judgment and granted Anderson an award of attorney fees. Because Anderson did not assert in a pleading or a motion, nor provide a basis for an entitlement to attorney fees as directed by ORCP 68 C(2), the Court of Appeals found the lower court lacked authority to award attorney fees. Award of attorney fees reversed; otherwise affirmed.

Respondent Deschutes County (Deschutes) appealed the judgment of a writ of review proceeding that vacated a hearings officer’s determination. Petitioner John Johnson (Johnson) received Measure 37 waivers allowing the development of 40 residential lots in four phases. Johnson incurred development costs and received final approval for one phase prior to Measure 49 taking effect. Johnson applied for a determination from Deschutes that he had a common law vested right to develop the remaining phases in accordance with section 5(3) of Measure 49. The hearings officer determined Johnson did not have a common law vested right after applying an analysis from Friends of Yamhill County v. Board of Commissioners (Friends I). Johnson sought review of this determination in circuit court; wherein the writ of review court based their order to vacate the prior determination on their own detailed findings. Deschutes appealed and the Court of Appeals vacated the writ of review court’s judgment. The Court held that while the hearings officer erred in applying the Friends I analysis, when a Friends II analysis is proper, the writ of review court cannot render its own factual findings nor require reconsideration consistent with such findings. Vacated and remanded for reconsideration in light of Friends II.

Petitioner Pearl Spillane (wife) appealed the termination of an indefinite maintenance spousal support award. At dissolution, this award was based on wife’s age and limited income which prevented her from enjoying the same standard of living she had during the marriage. Three years later, the trial court granted Maurice Spillane’s (husband) motion to terminate his spousal support obligation pursuant to ORS 107.135(3)(a), asserting changes in his economic circumstances from the time of dissolution as a result of his failing health and the current economic times. On appeal, wife contended that husband failed to meet his burden of proof of a current, substantial, and unanticipated change in circumstances. The Court concluded that the husband failed to demonstrate a current inability to earn wages and that his inability to work due to health reasons was speculative. Furthermore, husband failed to prove his declining health was unanticipated. Finally, he also failed to offer testimony regarding the economic downturn and the decreased market value of his real property. The Court concluded that husband enjoys a standard of living substantially similar to the time of dissolution and held that the trial court erred in terminating husband’s spousal support obligation. Reversed.

Defendant appealed his convictions raising a sentencing error. At sentencing, the trial court adopted the prosecutor’s recommendations and sentenced the defendant to 140 months, for a total of 208 months between the two cases. On appeal, the Defendant contended the sentence violated the 400-percent rule. The “400 percent rule” is applied to the sum of consecutive sentences and limits the total prison term to 400 percent of the maximum for the primary offense in the case. Here, the 140-month sentence was four months greater than 400 percent of the maximum 34-month sentence, which the Court found to be a clear error. Even though the defendant did not file a motion to correct the sentence, the Court decided to use its discretion to correct the sentence given the gravity of the error. Reversed and remanded for resentencing; otherwise affirmed.

Plaintiffs, a group of investors defrauded by the “Millennium Ponzi scheme,” argued that JPMorgan, as successor in interest of Washington Mutual (“WaMu”), is liable because it purchased most of WaMu’s assets and liabilities from the Federal Deposit Insurance Corporation (“FDIC”) and continued WaMu’s practices. The district court dismissed the complaint for failure to exhaust the administrative remedies under the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”) before filing a claim. After reviewing decisions from other circuits, the Court rejected the class’s argument that FIRREA’s jurisdictional bar against claims not first presented to the FDIC is limited to claims against a failed bank or the FDIC and therefore does not apply to claims against a purchasing bank. The Ninth Circuit concluded that the bar applies to claims asserted against a purchasing bank when the claim is based on the conduct of the failed institution. However, FIRREA does not bar claims based on the purchasing bank’s own acts. The Court held that a claim based on JPMorgan’s independent, post-purchase conduct would not be subject to FIRREA’s jurisdictional bar, but the class did not adequately plead a complaint. Therefore, the district court was correct in dismissing the complaint. AFFIRMED.

Western Radio Services Company (“Western”), a commercial mobile radio service provider, disputed its interconnection agreement with Qwest Corporation (“Qwest”), a local exchange carrier. Western appealed the district court’s dismissal of its claim that Qwest violated the statutory duty to negotiate in good faith and the decision affirming that the approved interconnection agreement did not violate the Telecommunications Act of 1996. The Oregon Public Utility Commission (“PUC”) approved the interconnection agreement after arbitration. The PUC must address a good faith claim before such a claim is brought in a district court. Western’s first request for arbitration with the PUC failed to mention a good faith claim, and its second request was denied because the interconnection agreement from the first arbitration had been recently approved, which prevented the PUC from making decisions on subsequent petitions. Therefore, the Ninth Circuit affirmed the district court’s decision that Western was precluded from raising a good faith claim because it was never properly offered to the PUC first. Further, Western objected to eleven out of twelve issues in the interconnection agreement. The Ninth Circuit determined that only two of the issues did not comply with the Telecommunications Act, both of which involved the definition of “non-local traffic.” The Ninth Circuit held, based on a new report and order from the Federal Communications Commission, that when a call is originated and terminated in the same Major Trading Area it is considered local, and the mere involvement of an interexchange carrier does not affect the obligation of reciprocal compensation. AFFIRMED in part, REVERSED in part, and REMANDED.

A group of nonprofit environmental organizations and corporations (collectively, “Turtle Island”) sued the United States Department of Commerce, National Marine Fisheries Service (“NMFS”), and Gary Locke in his official capacity as Secretary of the Department of Commerce (collectively, the “Federal Agencies”), challenging the Final Rule, an amendment to the Fishery Management Plan for the Western Pacific Region, and the 2008 Biological Opinion. Hawaii Longline Association (“Longliners”) intervened as a defendant. The Final Rule, based on a 2008 Biological Opinion, increased the number of incidental take limits of loggerhead and leatherback turtles. Turtle Island and the Federal Agencies entered into a settlement by filing a “Joint Motion to Enter Stipulated Injunction as an Order of the Court” (the “Consent Decree”). The district court approved it, reinstating previous, lower take limits and ordering NMFS to produce a new biological opinion to change the current one. On appeal, Longliners argued that the district court abused its discretion because the Consent Decree violated the Magnuson Act and the Administrative Procedure Act (APA). The Ninth Circuit found that the Consent Decree did not violate the Magnuson Act because it did not make substantial changes to the regulation; it mandated a result from existing law. The Consent Decree did not violate APA’s notice and comment requirement because the concerns were the same during the initial rulemaking and the negotiation of the Consent Decree. 50 C.F.R. § 402.16 allows for voluntary reconsideration of regulations; thus, the district court did not err in finding the Consent Decree “fair, reasonable and adequate” despite the absence of new information necessitating reconsideration of the take limits. The fact-finding was not clearly erroneous because reducing the incidental take limits was based on a logical explanation to protect turtles. AFFIRMED.

Otay Land Company and Flat Rock Company, LLC (collectively, “Otay”) filed a federal action against a number of shooting range owners and operators (collectively, “United Enterprises”), alleging that United Enterprises was responsible for the removal of pollutants on property purchased by Otay. The district court granted United Enterprises’ motions for summary judgment and awarded costs. Otay then filed an identical action in California state court. On appeal, the Ninth Circuit vacated the judgment and remanded, noting the case was not yet ripe and directing the district court to determine if costs were appropriate under 28 U.S.C. § 1919. The district court awarded costs to United Enterprises as “necessarily incurred in defending the action,” using 28 U.S.C. § 1920 as a guide. On the second appeal, the Court distinguished § 1919 from Federal Rule of Civil Procedure 54(d), which awards costs to the prevailing party, and found § 1919 is based on an 1875 congressional act intended to grant courts the power to award costs in suits that fail for lack of jurisdiction. Congress was silent as to the definition of “just costs,” but the Supreme Court later characterized the congressional act as balancing the objectives of deterring removals unnecessarily prolonging litigation with that of affording the general right to remove. The Court noted the “just costs” determination is wholly discretionary, but provided several factors to consider, including exigent circumstances, reasonableness of the jurisdictional claim, and parallel litigation in state court. The Court held the district court abused its discretion by using § 1920 to define “just costs” as necessary costs. Rather, it held proper determination of “just costs” under § 1919 focuses on a case-by-case analysis of what is fair and equitable under the circumstances. VACATED and REMANDED.

Plaintiff environmental groups (collectively, “the Alliance”) sought an injunction to prevent the Secretary of the Interior from delisting certain gray wolf populations from Endangered Species Act (“ESA”) safeguards. Authorizing this governmental action was § 1713 of the 2011 Appropriations Act, which the Alliance claimed violated separation of powers. The Alliance appealed the district court’s grant of summary judgment in favor of the government. Previously, the United States Fish and Wildlife Service tried to remove certain gray wolf populations from ESA protections. These attempts were invalidated and led to the “2009 Rule,” which was also struck down as violating the ESA’s prohibition on partial delistings. Congress then codified § 1713 to order the Secretary to “reissue the 2009 rule without regard to the ESA and without judicial review.” The Ninth Circuit observed that Congress had changed the law applicable to the particular action being challenged in the pending suit. Thus, the Court was left to apply the new applicable law to the facts, and was not directed by Congress to ascertain a particular outcome. Such a change constitutes an amendment of the law, changing the substantive law that governs. The Alliance’s argument that § 1713 was a repeal, not an amendment, failed because the meaning and effect of the enactment were clear, especially as to removing administrative proceedings and judicial review. AFFIRMED. Motion for injunction pending appeal DENIED.

AT&T appealed the district court’s denial of a motion to compel arbitration. Coneff filed a class action against AT&T for breach of contract, unjust enrichment, violation of the Federal Communications Act, and several state consumer protection laws. Coneff alleged that the arbitration agreement in the service agreement “was unenforceable due to both substantive and procedural unconscionability.” The district court refused to enforce the arbitration agreement, finding that, under Washington State law, the arbitration agreement was substantively unconscionable, and therefore void. The Ninth Circuit concluded that the Federal Arbitration Act preempts Washington State law and the Supreme Court decision in AT&T Mobility LLC v. Concepcion governs. Therefore, the Court reversed the district court’s findings regarding the procedural and substantive unconscionability of the arbitration agreement. Additionally, because the plaintiffs reside in different states, the Court held that the district court must apply Washington choice-of-law rules to the plaintiffs’ procedural unconscionability claims. REVERSED and REMANDED.

Adin and Israel Del Toro-Barboza were convicted of “bulk cash smuggling under 31 U.S.C. § 5332 and failure to file reports on exporting monetary instruments under 31 U.S.C. § 5324.” They appealed their convictions and sentences on several grounds. The Ninth Circuit held that (1) there was sufficient evidence of intent because the amount of money was very large, the defendant’s concealed the money and the defendant’s attempted to cross the border late at night; (2) the additional jury instructions were not needed because those given “reasonably covered” the defense’s theories; (3) conviction under both statutes did not violate double jeopardy because both charges were brought in the same trial and Congress intended to “provide for two separate punishments for the same conduct;” and (4) there was no due process violation for destruction of evidence because the evidence destroyed was neither exculpatory nor destroyed in bad faith. Additionally, with regard to sentencing, the Court noted, “[a] sentence for convictions under § 5332 is determined under U.S.S.G. § 2S1.3,” which incorporates “the table in § 2B1.1.” The Ninth Circuit held that a showing of “loss to the public” was not required for the 14-level sentencing enhancement. Finally, the Court held that a “minor role adjustment” was not appropriate for Adin Del Toro-Barboza’s sentence because he did not raise the issue in his defense and because he was the owner of the van, “picked up some of the merchandise on his own”, and received inculpatory phone calls after the border stop. AFFRIMED.

After stopping Respondent for driving with expired tags, the officer asked Respondent for permission to search his vehicle. After Respondent refused, the officer retrieved Aldo, a highly trained and certified narcotics detection dog, who sniffed the driver’s door handle and alerted the officer to the presence of narcotics. A search revealed all of the materials necessary to make methamphetamine but no actual narcotics.

The trial court denied a motion to suppress evidence due to an illegal search and found that there was probable cause to support a search of the vehicle. The court of appeals affirmed per curiam. The Supreme Court of Florida reversed, holding that evidence that a dog has been trained and certified to detect narcotics is insufficient on its own to establish the dog’s reliability for purposes of determining probable cause. The Supreme Court granted certiorari to address whether a canine sniff is sufficient to establish probable cause on a showing that a dog is properly trained and certified to detect drugs, or whether additional evidence of the dog’s proficiency is required.

Petitioner argues that the Florida Supreme Court’s decision violates United States Supreme Court precedent that a sniff alert provides probable cause to search a vehicle. Petitioner argues that training and certification is enough evidence to establish probable cause, and an alert on a residual odor does not undermine that certification. Finally Petitioner argues that the Florida Supreme Court improperly expanded the Supreme Court’s definition of “well trained drug dog”.

Petitioner is a minor child born in Jerusalem to U.S. citizens. Petitioner’s mother applied for a U.S. passport on his behalf, and requested that his birthplace be recorded as “Jerusalem, Israel” pursuant to § 214 of the Foreign Relations Authorization Act, which directs the Secretary of State, upon a citizen’s request, to identify a U.S. citizen born in Jerusalem as born in “Israel” on a passport. Upon signing the Act, however, President George W. Bush stated that § 214 was merely advisory because it interfered with the Executive’s sole constitutional authority to recognize foreign governments. The State Department refused Petitioner’s request, and issued a passport that identified only Jerusalem as his place of birth. Petitioner filed suit requesting injunctive relief ordering the State Department to comply with § 214(d) of the Act. The District Court dismissed Petitioner’s claim for lack of subject matter jurisdiction, holding that the issue was not justiciable because it raised a political question dealing with the Executive’s power and the Court of Appeals for the District of Columbia affirmed.

The Supreme Court vacated the judgment of the lower court and remanded the case, finding Petitioner’s claim did not raise a political question, thereby permitting judicial review. Reaffirming that the political question doctrine implicates only those issues constitutionally committed to a coordinate political department, the Court held that Petitioner’s claim did not force the Judicial Branch to determine whether Jerusalem was the capital of Israel. Instead, the Court found the only issue was the constitutionality of § 214, and whether Congress had impermissibly interfered with the Executive’s authority, an issue squarely within the province of the judiciary. Because the Supreme Court is the court of “final review and not first view”, the Court remanded the case for a lower court’s determination of the merits.

Section 16(b) of the Securities Exchange Act of 1934 provides that securities holders of a corporation may sue officers, directors or certain beneficial owners of a corporation if these individuals buy and sell, or sell and buy, the corporation’s securities within six months. Section 16(b) also contains a two-year statute of limitations from the date the profit from these sales was realized. Respondent filed numerous complaints under §16(b) based on transactions in the late 1990s and early 2000s. The district court dismissed these claims, and the Court of Appeals for the Ninth Circuit reversed holding that the statute of limitations could be tolled until the corporate insider disclosed the transactions in a § 16(a) filing.

The Supreme Court held that the statute of limitations does not toll until the corporate insider makes a § 16(a) filing. The Court held that neither the text of § 16(b) nor the principles of equitable tolling support the Ninth Circuit’s decision. Tolling is only equitable until the plaintiff should have been aware of the facts underlying the claim. The Court further reasoned that the § 16(b) liability for underwriters theory is so new that such defendants may not have been aware of an obligation to file a 16(a) statement. Remanded to the District Court to determine if other equitable tolling principles may apply.

Congress passed the Patient Protection and Affordable Care Act (the Act) in an effort to address rising health care costs and to provide affordable insurance coverage for uninsured Americans. Since its enactment, the Act has been widely challenged by twenty-six states, individuals, and private businesses (Respondents) who assert that § 1601, which requires individuals to obtain federally approved health insurance by 2014 or pay a penalty, is outside the scope of Congress’s power granted by the Commerce Clause and the Necessary and Proper Clause. Respondents also claim that the penalty imposed on individuals who fail to maintain minimum health insurance is not a tax, therefore, it is not authorized under the Taxing and Spending Clause. Whether or not the penalty is a tax is relevant to whether the suit could be barred by the Anti-Injunction Act (26 U.S.C. §7421), which prohibits suits restraining the collection of a tax.

The District Court granted summary judgment for Respondents, and held that the Act was unconstitutional as a whole since § 1601 was non-severable and outside the boundaries of Congress’s Commerce Power. The District court further held that the penalty imposed was not a tax. On a motion for clarification by the government, the District Court entered a stay pending appeal. The Court of Appeals for the Eleventh Circuit affirmed in part holding that § 1601 was outside the scope of Congress’s power under the Commerce Clause. It also held that the individual mandate operated as a regulatory penalty, and not as a tax pursuant to the Taxing and Spending Clause, because the goal of the individual mandate was not to raise revenue, but to reduce the number of uninsured Americans and to make health insurance more widely available.

On review, Petitioners argue that the Anti-Injunction Act is not jurisdictional and so does not serve as a barrier to review of the first issue. If the court found the Act jurisdictional, the Court could not rule on the second issue until the Act had been actually enforced against a person. On the first issue, Petitioners renew their arguments from the court below. Petitioners argue that § 1601 is valid under both the Commerce Clause and the Necessary and Proper Clause because healthcare has to do with the regulation of commerce. In the alternative, Petitioners argue that the Act is constitutional as a tax under the General Welfare Clause.

(Question two is consolidated with Florida National Federation of Independent Business v. Sebelius (11-393) for ninety minutes of argument.)

Congress passed the Patient Protection and Affordable Care Act (the Act) in an effort to achieve near universal health insurance coverage for Americans. Twenty-six states along with a group of private individuals (Petitioners) challenged two aspects of the Act. The first was the individual mandate provision (mandate) that required nearly all Americans to purchase health insurance. The second was the Act’s expansion of Medicaid to require States seeking federal reimbursement to cover everyone under age 65 with an income up to 133% of the poverty level.

The District Court rejected the Petitioners’ challenge to the Medicaid expansion and the Court of Appeals for the Eleventh Circuit affirmed, holding that Petitioners had failed to establish coercion. As to severability, the District Court held that the individual mandate could not be severed from the Act and the Eleventh Circuit held that the mandate was entirely severable.

Petitioners argue that the Act would not function as congress intended if the individual mandate were to be severed since the Act’s insurance regulations are part of an intricate scheme that cannot operate independently of the mandate, and warn of separation-of-powers issues that arise when the Court severs parts of an act Congress intended to be whole. Petitioners also argue that the Act’s amendments to Medicaid are unconstitutional since Congress is prohibited from using its spending power to coerce States under New York v. United States’ coercion doctrine.

(Consolidated with question two in Florida v. Department of Health and Human Services (11-400) for ninety minutes of argument on this question.)

Congress passed the Patient Protection and Affordable Care Act (Act), which comprehensively restructured and reformed the health care system. The Act contains a mandate that virtually every American must maintain minimum health insurance or face a financial penalty. The National Federation of Independent Business, two private citizens, and 26 states (Petitioners) filed suit in federal court claiming that the Act exceeded Congress’ power under Article I of the Constitution. The district court struck down the entire Act, holding that the individual mandate was non-severable because it represented an essential part of Congress’s reform efforts and because the remainder of the Act could not survive independently. The district court entered a declaratory judgment that the entire Act was void, but stayed its judgment pending appeal. The Court of Appeals for the Eleventh Circuit reversed the district court’s decision regarding severability, holding that although the individual mandate is facially unconstitutional, it is severable from the remainder of the Act because the Act contains numerous stand-alone provisions which lack connection to the individual mandate.

Petitioners argue that the question of severability turns on Congressional intent. Because Congress considered the individual mandate essential to achieving the overall purpose of the Act, it is clear that Congress did not intend the Act to survive without it. Furthermore, the individual mandate was essential to the passage of the Act; without the individual mandate, the Act would not have passed because the Act’s stated purpose of insuring the uninsured would have been impossible to achieve. Finally, Petitioners argue that because the Act’s core provisions cannot survive without the individual mandate, and because the remainder of Act cannot survive without its core provisions, the entire Act must be invalidated.

Charles D. Skinner (“Skinner”) and Gregory A. Stratton (“Stratton”) participated in their employer’s Litton Industries, Inc. Retirement Plan B, replaced by Northrop Grumman Retirement Plan B. Before retirement, Skinner received a pension calculation packet (“PCP”) in June 2004, December 2004, and April 2005, each with “annuity equivalent offset” formulas. Before his retirement, Stratton received his first PCP in February 2005, followed by a “summary of material modifications” in December 2005, and another PCP in May 2006; each contained the annuity equivalent offset. Both testified that they understood the pension calculations with the offset. The original claim was under Employee Retirement Income Security Act of 1974 (ERISA) § 502(a)(1)(B) “to enforce their understanding of their rights . . .” The Court concluded that, because of ambiguity between summary plan descriptions (“SPDs”) and enforced plan master documents, there was a genuine issue of material fact and reversed and remanded the district court’s summary judgment for Northrop. The district court again granted summary judgment, so Skinner and Stratton appealed and focused on equitable remedies under ERISA § 502(a)(3). Skinner and Stratton sought “reformation and surcharge.” The Court provided no reformation because it found no evidence “that Northrop Plan B contains terms that fail to reflect that drafter’s true intent” or “that Northrop Plan B contains terms that were induced by fraud, duress, or undue influence.” The Court provided no surcharge remedy because it found no fiduciary duty breached “by failing to enforce the terms of the 2003 SPD instead of the terms of the plan master document” and “no evidence that the committee gained a benefit by failing to ensure that participants received an accurate SPD.” The Court held that Plaintiffs were not entitled to compensatory relief because they did not establish harm or reliance on the inaccurate SPD. AFFIRMED.

Salt River Project Agricultural Improvement and Power District, and Headwaters Resources, Inc. (“Salt River Project”) filed an action for declaratory and injunctive relief against the Director of Office of Navajo Labor Relations, the members of the Navajo Nation Labor Commission, and the justices of the Navajo Nation Supreme Court (“Navajo Officials”) after the Navajo Nation Supreme Court held the Navajo Preference in Employment Act (Act) applied to Salt River Project. Salt River Project appeals the district court’s decision to dismiss for not joining Navajo Nation pursuant to Federal Rule of Civil Procedure (Rule) 12(b)(7) “failure to join a party required by Rule 19.” The district court held under Rule (19)(a)(1)(A) without Navajo Nation, complete relief could not be accorded, and 19(a)(1)(B)(i), Navajo Nation’s general interests would be impaired. The Ninth Circuit found that the district court erred on both accounts. First, the Court determined complete relief could be awarded because an injunction will prevent against future violations, applying to successors in office under Rule 65(d); also, because Salt River Project can bring future actions against non-named officials in violation of federal law. Second, the Court addressed three factors to determine if the interests of an absent party were adequately represented. “(1) Whether the interests of a present party to the suit are such that it will undoubtedly make all of the absent party’s arguments; (2) whether the party is capable of and willing to make such arguments; and (3) whether the absent party would offer any necessary element to the proceedings that the present parties would neglect.” The Ninth Circuit held that the tribe’s interests were adequately represented and Navajo Nation was not a necessary party under Rule 19. REVERSED and REMANDED.

Sharron Angle, joined by four individuals and two organizations, filed suit against Ross Miller, Nevada Secretary of State, seeking to declare Nevada’s All District Rule as unconstitutional. The All District Rule required ballot initiative proponents to obtain signatures equal to 10 percent of the registered voters in the prior general election from each of Nevada’s three congressional districts. Both parties filed summary judgment motions and the district court rejected Angle’s claims. On appeal, Angle first contended that the All District Rule violated the Fourteenth Amendment’s Equal Protection Clause by valuing the votes of some citizens over others and allowing a minority of voters to veto the majority with respect to ballot initiatives. Second, Angle contended that the All District Rule violated the First Amendment by creating an increased burden on individuals trying to place initiatives on the statewide ballot. The Ninth Circuit held that because Nevada’s congressional districts represented equal populations, and the All District Rule served the states interest in ensuring support for ballot initiatives, that it did not violate equal protection. Further, the Court was unable to discern an identifiable class of discriminated against individuals. While the “relatively rural” Second District is able to veto initiatives, the “First and Third Districts are not a discrete or insular minority.” With regard to the First Amendment, the Ninth Circuit held that Plaintiff’s had not shown sufficient evidence that the geographic distribution requirement created a severe burden on initiative proponents seeking signatures. Further, the Ninth Circuit held that because states are permitted “considerable leeway in regulating the electoral process,” Nevada’s decision to require signatures from all three congressional districts was justified and, therefore, not in violation of the First Amendment. AFFIRMED.

The Sharrocks were injured on a naval base in Guam in an automobile accident caused by the negligence of naval officer McCoy. McCoy was traveling to a basketball practice encouraged by Navy. In determining whether McCoy was functioning within the scope of his employment for the purpose of respondeat superior, the Court determined that he was not acting within “the line of duty,” as the Federal Tort Claim Act requires. The Court applied California law on this issue, given the similarity between the California and Guam codes. While California law tends to construe respondeat superior broadly, it has not found liability in similar situations to the one in this case. The Court looked to determine whether the environment created by the Navy made this incident reasonably foreseeable. Despite the Navy’s support of the basketball program, it was not reasonably foreseeable that this program would result in this accident. The Sharrocks argued that McCoy’s travel to the basketball practice should be considered under the special errand exception to the “going and coming rule.” But finding liability for this incident would impermissibly broaden the exception. The Court found that McCoy was not acting in the line of duty while travelling to the practice. AFFIRMED.

A jury sentenced Richard Phillips to death after finding him guilty of robbery, attempted murder, first-degree murder, and found the special circumstance of murder during the commission of a robbery. Phillips appealed the denial of his habeus corpus petition claiming, inter alia, that prosecutors violated his due process rights when they failed to reveal a key witness received significant benefits in exchange for her testimony and that the prosecutor falsely represented to the jury that no agreement existed. Under Napue the “government is obligated to correct any evidence introduced at trial that it knows to be false.” Before trial, the prosecutor made a deal with the attorney of the key witness whereby the witness would avoid prosecution in exchange for testifying against Phillips, and indicated that the lawyer should not communicate the deal to her client. At trial, the witness testified that the prosecution did not promise anything in exchange for testifying, nor did she expect anything in return. The witness later stated she relied on her attorney’s advice to testify. The prosecutor also argued in closing and rebuttal that no promises had been made with the witness. The Court found the witness’s testimony to be false, and that the government had an obligation to correct that false testimony, and not use it to buttress its argument. The Court determined the error did not prejudice the first three convictions, but did prejudice the finding in the special circumstance that Phillips committed the murder in furtherance of a robbery, and not vice versa. AFFIRMED in part, REVERSED in part, REMANDED.

Opinion (Skretny): Djiang Haibo (“Haibo”) of Haibo Inc., and proprietor of Yings Wings Things, was sued for copyright infringement by Broadcast Music Inc. (“BMI”) for 8 songs played on two different nights at Yings Wings Things. The court easily found valid copyrights, and the intentional infringement of their use. The court then assessed the amount of statutory damages warranted for each, an analysis for which the Court is granted wide discretion. The court looked at the infringer’s state of mind, expenses saved and profits earned by the infringer, revenue lost by the copyright holder, the deterrent effect on infringer and third parties, the infringers cooperation in providing evidence concerning value of the infringing materials, and the conduct of the parties attitude. The court asserted that it could charge up to $150,000 per intentional infringement; however, BMI only requested $3,000 for each infringement and Haibo requested $2,000. The court split the difference of the requested amounts, reaching a total of $20,000. Mr. Haibo and Haibo inc. were joint and severally liable for the $20,000 as, “All persons and corporations who participate in, exercise control over, or benefit from the infringement are jointly and severally liable as copyright infringers.” Thus, summary judgment was GRANTED in favor of BMI.

Opinion (Simon): Lars Erickson (“Erickson”) created a symphony called “Pi Symphony” using the numeral digits of pi as the tune in 1992. He continues to promote the work through a website devoted to the symphony. Michael John Blake (“Blake”), a Portland, OR musician, similarly assigned the numerals in pi to notes for a youtube.com music video, titled “What Pi Sounds Like”. The way the notes were assigned, the tempo, and arrangement were unique in Blake’s video. Erickson sued Blake for a violation of his copyright of “Pi Symphony,” as both songs were derived from pi, and Blake filed a motion to dismiss. The ownership of the copyright was not disputed, leaving only in question the originality of the work. Since Blake had access to the work as it has been made available online, the court only had to consider the similarity between the works. The idea of translating pi into music is not copyrightable, since pi is both an idea and a fact. If there is primarily only one way to express an idea, then it cannot be copyrighted under the merger doctrine. The court rejected the idea that having another song based off of pi is an infringement on “Pi Symphony’s” copyright. The similarities that did exist were scattered throughout the piece, and were not substantially similar. The court GRANTED Blake’s motion to dismiss.

Opinion (Lourie): HemCon Inc. (“HemCon”) appealed the judgment of the U.S. District Court of New Hampshire holding the HemCon infringed a patent assigned to Marine Polymer Technologies, Inc. (“Marine”). The patent at issue claims preparations of poly-acetylglucosamine, which has utility in various industrial, pharmaceutical, and biomedical applications. HemCon argued that specific claims of the patent changed in scope during reexamination, and that HemCon thereby acquired intervening rights in those claims. Thusly, HemCon argued the district court’s finding of infringement should be reversed. Although intervening rights originated as a defense against patents modified through reissue procedures, the doctrine had since been extended to the context of reexamination. The court held that after a patent emerges from reexamination, the Patent Act makes available absolute and equitable intervening rights to the same extent provided for reissued patents, but only with respect to amended or new claims in the reexamined patent. Although Marine’s arguments to examiner and cancellation of claims on reexamination may have affected the scope of claims for the patent at issue, the claims were not “amended or new,” within the meaning of the Patent Act provisions governing intervening rights. Because there were no formal changes to the actual language of the claim on reexamination, the claim was not amended or new, and the decision of the district court was AFFIRMED.

Respondent was convicted of multiple felonies after he rejected a plea deal on the advice of counsel. Both parties agree that the advice to reject the plea was below the Sixth Amendment’s standard for effective assistance of counsel. The appeals court upheld the conviction, and the Supreme Court of Michigan declined to hear the case. The district court granted Respondent’s petition for federal habeas corpus relief and required the state to either offer Respondent the sentencing terms of the rejected plea or to release him from custody. The Court of Appeals for the Sixth Circuit affirmed. The State of Michigan appealed.

The Supreme Court held that for a defendant to show he was prejudiced by ineffective assistance of counsel during plea bargaining after later being convicted in a jury trial, the defendant must show that: (1) but for the ineffective assistance of counsel there is a reasonable probability that the defendant would have accepted the plea offer and that the prosecutor would not have withdrawn the offer after the acceptance, (2) that the court would have accepted the terms of the plea, and (3) and that the conviction or sentence, or both, would have been more favorable to the defendant than those that were in fact imposed.

The court found that Respondent met his burden, vacated the Sixth Circuit’s judgment and remanded with instructions that the proper remedy is for the district court judge to order the State to re-offer the plea agreement. If respondent accepts the plea, the state trial court can then exercise its discretion to either: (1) vacate the convictions and resentence respondent pursuant to the plea agreement, (2) vacate some of the convictions and resentence respondent with respect to those convictions, or (3) to leave undisturbed the convictions and sentence from trial.

After Petitioners filled in half-an-acre of their property with dirt and rock in order to build a house, the EPA issued a compliance order against them for discharging pollutants into wetlands in violation of the Clean Water Act. The order required Petitioners to remove the fill material and restore the property to its original condition. Petitioners sought and were denied a hearing with the EPA, and subsequently filed for injunctive and declaratory relief in district court claiming that the compliance order was arbitrary and capricious and violated Petitioners’ due process rights. The district court dismissed for lack of subject-matter jurisdiction. The Court of Appeals for the Ninth Circuit affirmed the dismissal, concluding that pre-enforcement judicial review of EPA-issued compliance orders is not permitted under the Clean Water Act and that this preclusion did not violate Petitioners’ due process rights.

The Supreme Court reversed and remanded, holding that the Clean Water Act does not expressly preclude judicial review of the compliance order, and the overall statutory intent does not overcome the APA’s presumption favoring judicial review of final agency actions. The Court also held that the compliance order was a final agency action because it determines rights or obligations, creates legal obligation and consequences, and marks the consummation of the EPA’s decision making process.

After charging Respondent with a class D felony, the prosecutor offered two separate plea bargains, neither of which was passed on to Respondent. Respondent subsequently plead guilty and was sentenced to three years in prison. Respondent filed for postconviction relief alleging ineffective assistance of counsel. The state court denied the petition, but the Missouri Court of Appeals reversed based on Strickland v. Washington.

The Supreme Court held that defense counsel have a duty to inform their clients of formal plea offers which may be favorable to their clients, and that by failing to do this, Respondent’s counsel violated the first prong of the Strickland test. The Court further held that under the second prong of Strickland a defendant alleging prejudice from ineffective counsel due to a lapsed plea bargain must show (1) a reasonable probability that he would have accepted the plea if counsel had been effective, (2) a reasonable probability that the plea would have been entered without the prosecution cancelling it, and (3) a reasonable probability that the end result would have been more favorable to the defendant.

The Supreme Court stated that the Missouri Court of Appeals correctly held that Respondent had ineffective assistance of counsel, but did not apply the correct standard when deciding that the ineffective counsel was prejudicial to the Respondent. Consequently the Court vacated and remanded.

Defendant appealed the trial court’s denial of a demurrer and motion to dismiss. Defendant’s sole assignment of error, after his subsequent conviction under Portland City Code 14A.060.010(A), was that the ordinance was unconstitutional on its face under Article I § 27 of the Oregon Constitution and the Second Amendment of the U.S. Constitution. The Portland City Code mandated against carrying a loaded firearm in a public place. The Court found the ordinance was narrowly drawn to punish a person who recklessly failed to unload their weapon knowing they will carry or have carried their weapon in a public place and that it may cause substantial harm. The Court also held the Portland ordinance was constitutional under the Oregon Constitution because it was not overbroad and did not prohibit constitutionally protected activities in a significant number of circumstances. Finally, the ordinance was constitutional under the stricter federal standards for Second Amendment challenges because it was not unconstitutional under every conceivable application. Affirmed.

Respondent owned a patented process under 35 U.S.C. § 101 that helped doctors determine whether a given dosage level of thiopurine drugs was too low or too high. Petitioner also developed a diagnostic test that measured the dosage level of thiopurine drugs and Respondent sued for infringement of its two patents. The district court granted a motion for summary judgment in favor of Petitioner, finding Respondent’s process patent invalid because the test merely applied laws of nature. After applying a “machine or transformation test” to determine that Respondent had “transformed” the natural law by utilizing a three-step process, the Court of Appeals for the Federal Circuit reversed.

The Supreme Court reversed the Federal Circuit Court and held that Respondent’s process is not patentable subject matter under § 101 because the additional steps added nothing specific to the laws of nature other than what was well-understood, routine, conventional activity, already known by those engaged in this field. The claimed processes of correlating metabolites with drug efficacy are not patentable without adding features to assure the processes were genuine applications of natural laws rather than an effort to monopolize correlative laws of nature. Simply altering conventional steps to the laws of nature in a highly general manner could not make those steps patentable.

Petitioner filed suit against his former employer under Title VII and the FMLA. The district court dismissed Petitioner’s claim pursuant to Fed. R. Civ. Pro. 12(b)(6) and the Court of Appeals for the Fourth Circuit affirmed. Both courts held that although Congress “unequivocally declare[d] its intent to abrogate” the states’ immunity, it did so unlawfully, because abrogation must be done “pursuant to a valid exercise of its power.”

The United States Supreme Court affirmed. In reaching its conclusion, the Court affirmed its holding in Nevada v. Hibbs that Congress enacted the FMLA pursuant to its power under § 5 of the 14th Amendment with a clear intent to abrogate state sovereign immunity and that other FMLA provisions were constitutional inasmuch as they were “congruent and proportional” to remedying a pattern of state-level gender discrimination. However, contrary to the gender discrimination in Hibbs, the Court found that Congress failed to produce any evidence that the “self-care” provisions of FMLA were necessary to the family-care provisions or that they reduced employer discrimination against women and that “although disparate impact may be relevant evidence of discrimination, such evidence is insufficient to prove a constitutional violation even where the Fourteenth Amendment subjects state action to strict scrutiny.”

In Arizona, a prisoner may only bring a claim for ineffective assistance of counsel in an initial-review collateral proceeding, not on direct review. Petitioner, an Arizona state prisoner, sought post-conviction relief in state court, but his post-conviction counsel failed to raise an ineffective-assistance claim during the first collateral proceeding which resulted in a procedural default barring federal habeas review. After obtaining new counsel, Petitioner filed a petition for a writ of habeas corpus in federal court arguing ineffective assistance of counsel at trial and during the first phase of his state collateral proceedings. Petitioner also argued that he had a constitutional right to effective counsel at the first stage of a collateral proceedings. The district court denied his petition and the Court of Appeals for the Ninth Circuit affirmed, citing Coleman v. Thompson, 501 U.S. 722 (1991) that there is no constitutional right to counsel in collateral proceedings.

On review, the Supreme Court declined to address the issue on constitutional grounds. Instead it created a narrow exception to Coleman that a procedural default does not bar federal habeas review in an initial-review collateral proceeding since the state trial court decides the claim’s merits before another court has addressed the claim, and that if undertaken with ineffective counsel, the proceeding “may not be sufficient to ensure that proper consideration was given to the substantive claim.”

After his employer discontinued voluntary workers compensation payments in 2005 for an injury he received in 2002, Petitioner filed a claim with the Department of Labor’s Office of Workers’ Compensation Programs and an ALJ awarded the 2002 statutory maximum under the Longshore and Harbor Workers’ Compensation Act (LHWCA).

Petitioner filed a motion for reconsideration with the ALJ arguing that the “newly awarded compensation” should be based on the date of the ALJ’s order and not the date of the injury. The ALJ denied the motion for reconsideration and the Department of Labor Benefits Review Board and the Court of Appeals for the Ninth Circuit affirmed.

The Supreme Court affirmed due to the potential negative repercussions of basing the compensation amount on the order date, such as: making it more difficult for an employer to calculate benefit costs; granting disparate awards to similarly situated employees; rewarding employees who initiate unnecessary administrative proceedings in order to secure higher rates; and because it would frustrate the LHWCA’s purpose in compensating employees for the wages the employee was receiving at the time of injury. The Court held that “an employee is ‘newly awarded compensation’ when he first becomes disabled and thereby becomes statutorily entitled to benefits, no matter whether, or when, a compensation order issues on his behalf.”

King was convicted of being “a felon in possession of a firearm” under 18 U.S.C. § 922(g)(1). During King’s trial the district court denied King’s motion to suppress evidence from a warrantless search of his room. The Ninth Circuit noted that the evidentiary basis for the search was insufficient to establish “reasonable suspicion.” However, the Ninth Circuit also noted that a condition of King’s probation was that he was subject to search at “any time of the day or night, with or without probable cause.” The Ninth circuit held that under the probation condition King “was subject to suspicionless searche[s]” and that reasonable suspicion was not required for police to lawfully conduct the search. AFFIRMED.

Skyride, an Internet and telephone-based advertising service, making skydiving arrangements for customers, and issuing certificates that can be redeemed at various drop zones around the country, was sued by Skydive Arizona, owner of a large skydiving center, for false advertising, trademark infringement and cybersquatting. A jury awarded Skydive Arizona $1 million in actual damages for false advertising, $2.5 million in actual damages for trademark infringement, $2,500,004 in profit resulting from the trademark infringement, and $600,000 for statutory cybersquatting damages. In denying Skyride’s motions to reduce the damages award, the district court doubled Skydive Arizona’s $1 million actual damages award for false advertising and $2.5 million award for trademark infringement, plus attorney fees and a permanent injunction against Skyride’s operations in Arizona. Skyride appealed the decision of the district court, and Skydive Arizona cross-appeals the injunction, seeking a nationwide injunction against Skyride. Under 15 U.S.C. § 1117(a), a judge or jury may award damages up to triple the amount of lost profits, actual damages and costs to compensate a mark holder, however, such cannot be an award of damages to punish an infringer. The Ninth Circuit held that the district court abused its discretion in enhancing Skydive Arizona’s actual damages to punish Skyride. The Ninth Circuit reversed with regard to the district court’s doubling of actual damages, and reinstated the jury’s original actual damages of $1 million for false advertising, and $2.5 million for trademark infringement. Additionally, the Ninth Circuit affirmed the district court on all other claims. AFFIRMED IN PART and MODIFIED IN PART.

Conner was a patron of Harrah’s Operating Company who was investigated and arrested for theft by Nevada Gaming Control Board agents after he refused to return an overpayment received as a result of betting at Harrah’s. Conner brought suit against the agents under 42 U.S.C. § 1983 for violation of his Fourth Amendment rights. The District Court denied summary judgment for defendants, ruling that the defendants were not entitled to qualified immunity because a jury could find that the plaintiff lacked the mens rea necessary for theft. The Ninth Circuit held that, so long as the defendants’ actions were reasonable under the totality of circumstances and under settled law, it is irrelevant that a jury could have found a more reasonable course of action. Because there was no dispute as to material facts of the arrest and the only disputes involved what inferences could be drawn from those facts, the District Court should have decided the question of immunity as a matter of law. Finding that the defendants’ conclusion that they had probable cause to arrest plaintiff for theft was reasonable under the circumstances, the Court ruled that they were entitled to qualified immunity. REVERSED and all claims against defendants DISMISSED.

Police stopped Vogel and arrested him. Vogel, suffering from disorientation, paranoia, and psychosis, was placed under a psychiatric hold and was forced to change into prison attire, including pink underwear. When Vogel refused, police forcibly restrained him and changed his clothing. During this encounter, Vogel “shouted that he was being raped.” Shortly after he was released on bail, Vogel “was told that there was a warrant for his arrest for spitting on an officer during the dress-out, so he might be returned to jail.” Vogel reacted by running “four or five miles.” He died of acute cardiac arrhythmia and his estate brought suit. The trial court excluded, as hearsay, testimony by Vogel’s sister and mother about several of Vogel’s statements and denied the plaintiff rebuttal at the close of trial. Plaintiff here appeals from a jury verdict in favor of the defense. The testimony at issue consists of Vogel’s statements to his family describing his experiences during the dress-out. The Ninth Circuit declares those statements admissible because they were offered not to prove the truth–parties agree no rape actually occurred–but to show Vogel’s state of mind. The Court also finds that expert opinion supporting plaintiff’s causation assertions was improperly excluded, as was reference to the pink underwear. Further, the denial of rebuttal opportunity was improper because parties were not “advised prior to the argument.” REVERSED AND REMANDED for new trial.

In April 2001, Ahmed Ressam, also known as the “Millennium Bomber”, was convicted on nine counts, including conspiracy to commit an act of terrorism, for his planned bombing of the Los Angles International Airport. A few months after the jury verdict Ressam offered to help the government in it’s investigation in exchanged for a reduction in sentencing. The government accepted and filed a continuance of Ressam’s sentencing. He continued to assist the government until 2004 when he became unwilling to continue. At the hearing Ressam argued that the previously agreed to reduction should be further reduced due to the quality and usefulness of his cooperation. The government refused to reduce its sentencing recommendations and in response Ressam recanted some of his previous testimony used to charge other terrorist detainees. The District Court, taking into account the Ressam’s cooperation and the controversy surrounding the poor treatment of terrorist detainees including Ressam, reduced his sentence to 22 years compared the Sentencing Guidelines calculation of 65 years to life. The government appealed the sentence. The Ninth Circuit found that the district court did not sufficiently justify the degree of variance. The Court held that the reduction of 43 years was “substantively unreasonable”, under the abuse of discretion standard, taking into account Ressam’s recantation, protection of the public, and deterrence. SENTENCE VACATED and REMANDED FOR RESENTENCING.

Anderson was born in England to an English mother and U.S. citizen father, Henry Gitelman. His natural parents did not marry and his father returned to the U.S. Anderson was later adopted by his mother’s husband and moved with them to the U.S., becoming a lawful permanent resident. He had little contact with his biological, but his father never denied paternity. In 1996, Anderson was charged with removability by the Immigration and Naturalization Service (“INS”) as an alien convicted of drug-related felonies. The Immigration Judge dismissed the case, finding that Anderson was a citizen through his biological father, but the INS won a subsequent appeal and Anderson was deported. On appeal, the Ninth Circuit was required to consider the applicable law of transmitting citizenship that was in place at the time Anderson was born. That law stated that a child born out of wedlock is only naturalized if “the paternity of such child is established while such child is under the age of twenty-one years by legitimation.” Finding that paternity is established under the laws of the state in which the child was domiciled prior to age twenty-one, the court determined that Arizona law would be used to establish whether or not legitimation had occurred. Arizona law states that “every child is the legitimate child of its natural parents.” There was never any dispute that Gitelman was Anderson’s natural father. The Court therefore found that Anderson’s paternity was established by the Arizona statute and this amounted to the necessary legitimation as required by federal law at the time of his birth. REMANDED with instructions for the agency to vacate the removal order.

Herminia Cruz filed suit under the Fair Debt Collections Act (FDCPA) against International Collections Corporation (ICC) and Charles Hendrickson, the sole owner, officer, and director of ICC. Cruz wrote two checks, totaling $500, to Harrah’s Casino in Nevada. Both checks bounced. Harrah’s assigned the claim to ICC, which commenced collection action against Cruz. ICC sought payment of $2,042.59, which included interest, fees, and treble damages. Cruz sent ICC written notice disputing the debt and refusing to pay. Thereafter, ICC sent seven more collection letters. The district court granted summary judgment in favor of Cruz. The district court also granted three post-summary judgment motions awarding damages, attorney’s fees, and substitution of Leonides Cruz for Herminia Cruz as plaintiff. ICC and Hendrickson appealed. The Ninth Circuit found that ICC violated the FDCPA when it claimed it could collect interest and fees even though Nevada does not allow such recovery. In Nevada, a debt collector cannot collect interest or fees unless added before the debt collector received the debt. Harrah’s did not add any interest or fees to its $500 claim before assignment. The Court also found that ICC’s claim for treble damages was excessive ($1500) because it could only collect up to $500 for each bad check. The Court ruled that Hendrickson was a debt collector and personally liable because he signed to receive Cruz’s certified letter refusing to pay the debt and because he signed the fourth collection letter sent to Cruz, even though he used the name of another employee. The Court denied the appeal of the post-petition summary judgment motions because notice of appeal was not timely. AFFIRMED in part, DISMISSED in part.

KeyBank appeals from the district courts denial of a motion to compel arbitration. The district court denied the motion on the basis of California’s Broughton-Cruz rule, which prohibits arbitration for claims of public injunctive relief. The Court held that in light of the recent Supreme Court case, AT&T Mobility LLC v. Concepcion, the Broughton-Cruz rule is no longer good law. 131 S. Ct. 1740 (2011). Concepcion reemphasized that the Federal Arbitration Act (FAA) preempts state law and that the savings clause only prevents arbitration in cases that would have a claim for contract revocation, such as fraud, duress, or unconscionability. The court held that since the contract was clear and did not provide any procedural unconscionability, the FAA required that the arbitration clause be enforced. REVERSED, VACATED and REMANDED.

William Shannahan filed a Freedom of Information Act (“FOIA”) request with the IRS seeking all information pertaining to his clients who were fugitives living in China as a result of their failure to appear in a conspiracy case. The IRS denied the request and Shannahan filed suit in district court. The IRS moved for summary judgment and the district court denied the motion and ordered a Vaughn index be prepared. After the index was prepared and additional declarations were filed by the IRS, the district court granted summary judgment in favor of the IRS on all counts. Shannahan appealed. The Ninth Circuit noted that the exemptions relied upon in this case required that there be evidence that disclosure of the requested material would seriously undermine the Federal Tax Administration and interfere with law enforcement proceedings. The Ninth Circuit held that the district court correctly found exemption 3 to be applicable based upon the finding that many of the documents were return information under 26 USC 6103 and as such were confidential. The Ninth Circuit further held that exemption 7(A) was applicable due to declarations of the IRS stating that confidential informants contributed to the substance of the documents and their disclosure might harm a criminal investigation. AFFIRMED.

Whitney entered a guilty plea to the charge of “conspiracy to defraud the government by filing false claims,” under 28 U.S.C. § 286. In exchange for guilty plea, the government promised to “recommend to the court that Whitney be sentenced to the low end of the applicable guideline range for his offense, and that in its effort to establish the applicable sentencing guideline range it would not use any incriminating information divulged by Whitney during the course of his cooperation.” However, the presentence report determined Whitney should receive a “two-level upward role adjustment” due to his criminal history, his leadership role in the completion of the fraudulent tax forms for him and other inmates, and offense level. The probation officer recommended an upward departure sentence of 87 months and the Assistant U.S. Attorney (“AUSA”) recommended the low end of the guidelines as promised. The sentencing judge, noting the presentence report and Whitney’s “impressive” criminal history, and the offense level, “departed upward from the guidelines to impose a sentence of 87 months.” The defendant appeals claiming the government breached its plea agreement. The Ninth Circuit held that the government breached its agreement in two respects. First, the AUSA told the sentencing court that the defendant supplied information during cooperation that supported the allegation he had a supervisory role in the offense. Secondly, the AUSA argued for a sentence “greater than the terms of the plea agreement.” The Ninth Circuit reasoned that the AUSA’s arguments “could only have been intended as an argument for a sentence greater than the within-guideline sentence requested by the defense.” Further, the Ninth Circuit also held that the government’s conduct affected Whitney’s “substantial rights and the integrity, fairness, [and] public reputation of the judicial proceedings” reasoning that (1) the government’s disclosure that Whitney had a supervisory role in the crime led to the court to impose a leadership enhancement factor and (2) the government’s breach of the plea agreement is a “serious violation of the integrity of the plea bargain process and the judicial system.” Sentence VACATED and REMANDED for resentencing.

Pizzuto was convicted of, among other things, aggravated and felony murder. Pizzuto was sentenced to death for the murder of two people. Pizzuto’s appealed and his convictions were upheld. Pizzuto filed state post-convictions and federal habeas petitions that were denied. In the current case, Pizzuto filed a second motion for federal habeas petition under 28 USC 2244(b)(2) claiming prosecutorial misconduct, judicial bias, actual innocence, cumulative error, and inadequate state post-conviction relief based on evidence previously unavailable. The Ninth Circuit held that the judicial bias claim was procedurally barred for failure to make the claim in his state post-conviction proceeding. The Court, in addressing the other claims, held that in order to meet the stringent standard of § 2244(b)(2)(B) Pizzuto must show that he is actually innocent, which he failed to do. The Court found that if all of Pizzuto’s allegations were true, in light of the evidence as a whole, Pizzuto failed to show that no reasonable factfinder could have found him guilty. The Court found that the prosecution relied on other testimony that Pizzuto did not claim was tarnished. Finally, the Court held that § 2242(b)(2) applies to the imposition of death, and that the trial court judge found multiple aggravating factors. The Court found that Pizzuto was unable to prove actual innocence with regard to the first aggravating factor, the murder of two persons. MOTION DENIED.

Respondent was convicted of murder and sentenced to death. Respondent exhausted his state-court post-conviction relief opportunities and initiated a federal habeas corpus proceeding. By this time respondent’s mental health had deteriorated to the point that he had lost the ability to rationally communicate with his counsel and was unable to assist them and respondent’s counsel filed a motion for a stay pending a competency determination under Rohan ex rel. Gates v. Woodford. The district court concluded that respondent’s claims were record-based and involved purely legal issues that would not be impacted by respondent’s inability to communicate with counsel and denied his motion. The Court of Appeals for the Ninth Circuit reversed and granted the stay of the lower court proceedings.

Petitioner argues that the Constitution does not provide a right to counsel on federal habeas review so there is no basis for the Ninth Circuit’s holding. Additionally, petitioner argues that the Supreme Court has never found a federal right to be competent to assist habeas counsel, and that since 18 U.S.C. § 3599(a)(2) does not address a defendant’s competence, there is no reasoned basis for concluding that Congress intended that death penalty habeas proceedings should be stayed or that enforcement of a presumptively valid state court judgment should be suspended indefinitely based on a death row inmate’s alleged inability to assist counsel.

Respondent was convicted of aggravated murder and sentenced to death. After Respondent exhausted his state reviews and stopped communicating with counsel, his attorneys filed a habeas petition along with a motion for a competency hearing.

The district court held a competency hearing and found Respondent incompetent. Applying the Ninth Circuit’s decision in Rohan ex rel. Gates v. Woodford the district court found a statutory “right to competence” in habeas proceedings, dismissed the habeas petition without prejudice, and tolled the statute of limitations until Respondent was competent. The Court of Appeals for the Sixth Circuit affirmed but used different reasoning. Rather than using Rohan, the Sixth Circuit found a statutory “right to competence” under Rees v. Peyton, 384 U.S. 312 (1966). The Sixth Circuit stated that the district court should have followed the remedy in Rohan and stayed the petition until Respondent was found competent instead of dismissing the petition without prejudice.

Petitioner argues that the Sixth Circuit applied Rees too broadly because Rees only applies when a prisoner on death row abandons legal proceedings and has never been used to establish a “right to competence”. Additionally, Petitioner argues that the court’s decision will permit prisoners to obtain an indefinite stay easily and consequently will obstruct justice in the Sixth Circuit.

When Miller was fourteen-years-old, he robbed a man and beat him with a baseball bat. Miller then left the immobilized man on the floor of a trailer and set it on fire. The man died and Miller was convicted in state court of capital murder and sentenced to life in prison without the possibility of parole. Miller appealed, claiming the sentence violated his Eighth Amendment rights. The Alabama Court of Appeals affirmed the conviction, holding that Miller did not meet his burden of establishing that his sentence was cruel and unusual. In its analysis, the court of appeals determined that there was no national consensus against sentencing minors; evaluated the severity of the sentence in light of Miller’s individual culpability and the nature of the crime; considered the penological goals Miller’s sentence served, and determined that his sentence did not violate the Eighth Amendment. The Alabama Supreme Court denied Miller’s petition for a writ of certiorari.

On appeal to the United States Supreme Court, Miller argues that the mandatory sentencing scheme under which he was sentenced precludes consideration of his age or any other mitigating circumstances and is therefore in violation of both the Eighth and Fourteenth Amendments. Further, Miller argues that in Roper v. Simmons and Graham v. Florida, the Supreme Court recognized that age is a critical feature in determining a defendant’s culpability, and that by ignoring his age in sentencing the trial court violated the Constitution’s prohibition on cruel and unusual punishment.

Petitioners serve as Secret Service Agents and provided coverage during a vice presidential event. Petitioners overheard Respondent say into his cellphone that he was going to stand in line to meet the Vice President (VP), ask the VP how many kids he killed today, say he thought VP’s policies in Iraq were terrible and touch VP on the arm. Petitioners determined they had probable cause to arrest Respondent based on this information and because Respondent was carrying an opaque bag in an area that did not require metal detectors and Respondent lied to the officers claiming he did not touch VP. Local charges were later dismissed and no federal cause of action was pursued.

Respondent filed a 1983 action, or in the alternative a Bivens action, against the agents involved in his arrest, claiming the agents violated his First and Fourth Amendment rights. The Court of Appeals found the agents had probable cause to arrest Petitioner and did not violate the Fourth Amendment due to qualified immunity. The court upheld Respondent’s First Amendment claim as to two of the agents, finding that those agents relied on Respondent’s protected speech as a cause to suspect Respondent and that probable cause does not allow immunity if the motivation for arrested arises from protected speech.

Petitioner argues that probable cause should allow qualified immunity to attach to claims for retaliatory arrest. Petitioner states that the absence of a probable cause bar to such claims causes agents to second-guess decisions made in the course of duty for fear of liability. Petitioner further argues that qualified immunity is necessary to allow agents to make split-second decisions to further the protection of our national officers. The absence of such immunity will endanger those the agents protect. Respondent argues that the lack of probable cause should not become an element of a First Amendment retaliatory arrest claim when the motivation behind the officer’s arrest is a personal bias towards protected speech.

Petitioner was convicted of storing hazardous waste without a permit, in violation of the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq) which has a maximum fine of $50,000 per day of violation. The jury was not instructed to find how many days Petitioner had been in violation of the statute. The District Court imposed a $6 million fine and $12 million “community service obligation” which the Court of Appeals for the First Circuit affirmed.

Petitioner argues that there is no distinction between fines and incarceration for Fifth and Sixth Amendment purposes, and that the sentence violates the United States Constitution since the jury did not find the facts upon which the sentence is based. In Apprendi, the court held that any fact other than a previous incarceration that could increase a penalty beyond the statutory maximum must be submitted to a jury and determined beyond a reasonable doubt. Historically, there has been no distinction between sentencing factors and elements of a crime. The Appellants argue that the historical reasoning in Apprendi requires that it be extended to criminal fines. Appellants further argue that the Court of Appeals’ historical analysis based on Oregon v. Ice was fundamentally flawed, and that the Court of Appeals’ assertion that criminal fines do not merit the same constitutional protections as incarceration is unsound and would have widespread practical consequences.

Respondent gave birth to twins 18 months after the death of the biological father through in vitro fertilization. Claiming that the agency must apply state intestacy law, first the Social Security Administration then an administrative law judge denied the application for surviving child’s insurance benefits reasoning that because the applicable state law would not confer intestacy rights in that context the children were not entitled to survivor benefits under the Act. The District Court affirmed the ALJ’s findings and interpretation of the Social Security Act. The Court of Appeals for the Third Circuit vacated the District Court’s interpretation, holding that the biological children of the deceased wage earner were within the Social Security Act’s insurance benefits provision.

Under the Act a child is simply defined as “the child or legally adopted child of an individual; and a person qualifies as a child of the deceased wage earner if they can earn intestate rights in the wage earner’s state of domicile at time of death.

On appeal, the petitioner argues the court of appeals erred in failing to defer to SSA’s 70-year-old interpretation that a child born after the death of the wage earner who is ineligible to inherit under state intestacy law is also ineligible for survivor benefits and that the SSA’s interpretation is entitled to deference under Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984).

Petitioner was convicted of murder and sentenced to life imprisonment without parole. At the time of the murder Petitioner was fourteen. After exhausting his immediate remedies, Petitioner filed a habeas corpus petition in circuit court. The court granted the State’s motion to dismiss because the court found that Petitioner failed to demonstrate his commitment was facially invalid or that the court lacked jurisdiction to sentence him to life imprisonment without the possibility of parole. The Arkansas Supreme Court affirmed and held that because Petitioner’s sentence conformed to Arkansas statutory requirements, his detention was not illegal. Further, the Arkansas Supreme Court held that a sentence of life imprisonment without parole does not violate the Eighth Amendment’s prohibition against cruel or unusual punishment when that sentence is within statutory bounds.

On appeal, Petitioner argues that because children lack the physical and psychological development of an average adult, the court should use a different analysis than the court’s traditional “excessiveness” test in determining “cruel and unusual punishment.” Respondent argues, however, that there is no “societal consensus” against imprisoning 14-year-old convicted murderers to life in prison without the possibility of parole.

A jury convicted petitioner Vasquez of conspiring to possess more than 500 grams of cocaine with intent to distribute. The Court of Appeals for the Seventh Circuit affirmed. The United States Supreme Court granted certiorari to address whether the trial court committed reversible error when it improperly admitted for the truth recordings of telephone conversations between a defense witness and a co-defendant that referred to defense counsel’s advice that the defendant accept a plea because he would lose at trial.

On appeal, Petitioner argues that the Seventh Circuit applied an improper harmless error standard focused on whether other evidence on the record would have caused the jury to arrive at the same verdict rather than on the potential effect of the evidence on the jury. Petitioner further argues that the Court of Appeals usurped the role of the jury and violated his Sixth Amendment right to a trial by jury.

Opinion (O’Malley): Viterra Inc. (“Viterra”) wished to register “EXCEED” as a trademark for their brand of “agricultural seed,” but was denied by the examining attorney, because of the likely confusion to be made with a previously-registered word and design mark for an “agricultural seed,” called “X-Seed.” The Trademark Trial and Appeal Board affirmed the examining attorney’s finding, prompting Viterra to appeal. The Federal Circuit stated that the “degree of similarity necessary to support a conclusion of likely confusion declines” when the marks are identical. After applying the “substantial evidence” test and finding that Vittera’s mark was insufficiently different, the Federal Circuit AFFIRMED the Board’s decision.

Opinion (Boyle): Bedford Auto Dealers Assoc. (“BADA”) was around since the 1950′s and limited membership to the association geographically by only allowing those auto dealers located within about a one mile radius on a stretch of road located in Bedford, Ohio to be members. This stretch of road soon came to be known as “automile”. In 1987 BADA registered the trade name “automile”. In 2008 Mercedes Benz of North Olmsted (“MBNO”), located in North Olmsted, Ohio began using the term “automile” in its advertising. BADA demanded that MBNO stop using the trademark “automile” as soon as it learned of MBNO using it. MBNO refused and kept on using “automile”. BADA then proceeded to sue MBNO for trademark infringment of “automile”, alleging there would be consumer confusion over the trademark being used by MBNO. MBNO moved for summary judgement, claiming that “automile” was a generic term and was used by many other auto dealers around the country. The district court granted summary judgement to MBNO and BADA appealed. The Court found that the district court rightly held that the term “automile” was a generic term and therefore not worthy of trademark protection. AFFIRMED.

Opinion (Crotty): Own Your Power Communications, Inc. (“OWN”) alleged that Ophra Winfrey (“Oprah”) had infringed on OWN’s trademark phrase “Own Your Power” by using the phrase on the cover of Oprah’s magazine and in an event related to promoting Oprah’s magazine. Oprah moved to dismiss claiming that the use was fair use, that there was no trademark use of the phrase and that OWN did not state a claim for trademark counterfeiting. The court found that Oprah clearly used the phrase in a non-trademark descriptive sense and not in a way to indicate a source of the goods, the magazine. The court found that Oprah’s magazine and event clearly indicated the source of the magazine and event by using Oprah’s trademark “O” and that the phrase “Own Your Power” was not used as a trademark. The court found that OWN and Oprah each used the phrase in a distinctly different way, noting the different fonts and colors, and the use or disuse of the trademark symbol. The court DISMISSED OWN’s claims.

Opinion (Davis): Ray Communications Inc. (“Ray”) alleged that Clear Channel Communications Inc. (“Clear”) infringed on Ray’s trademark “AGRINET”. Clear began using the term “AGRINET” to describe some of its radio programs, without Ray’s permission. Ray had allowed some of Clear’s predecessors to use the term “AGRINET”. As a result, the district court granted summary judgment to Clear because of its affirmative defense of laches and Ray appealed. On appeal, Ray only claims infringement to the continued use of the term “AGRINET” by Clear, not the past use. The Court agrees that laches may bar relief but it is not automatic and Ray correctly pointed out that the district court did do not do the analysis that would show why laches should give relief to Clear. VACATED and REMANDED.

Opinion (Dyk): Erik P. Staats and Robin D. Lash (collectively “Staats”) appealed the decision of the Board of Patent Appeals (“BPAI”) and Interferences to reject claims of Staats’s reissue application due to broadening the scope of the original patent outside the two-year time limit imposed by 35 U.S.C. § 251. The reissue application in question is the third reissue application related to the U.S. Patent Number 5,940,600, filed almost seven years after the original patent issued, and attempts to broaden claims that are unrelated to the earlier broadening reissue applications. The Court of Appeals for the Federal Circuit noted that the first reissue application was filed within the two-year time limit and broadened the claims of the original patent. The Court held that two-year time limit of § 251 only applied to the first broadening reissue application and requiring “new claims [to] be related to the previously submitted claims, or be directed to the same embodiment, would be difficult to administer in a consistent and predictable way.” The Court REVERSED BPAI’s rejection of the claims due to the two-year statutory limitation and remanded for further proceedings.

Opinion (Rader): Digital-Vending Services International, LLC (“Digital”) appealed from the District Court’s grant of summary judgment of non-infringement of U.S. Patent Nos. 6,170,014, 6,282,573 (“the ‘573 patent”), and 6,606,664 by The University of Phoenix, Inc. and Apollo Group, Inc. (collectively, “Phoenix”). The Court of Appeals for the Federal Circuit vacated-in-part due to incorrect claim construction of a term, affirmed-in-part, and remanded to the district to perform term construction for an alternative non-infringement argument. The Court of Appeals found that the District Court had incorrectly interpreted the term “registration server” to require the server to be free of managed content. The court noted that “the context in which a term is used in the asserted claim can be highly instructive,” and the context of “registration server” strongly suggested against the server having the requirement of being free of managed content. The court noted that claims 1-22 of the ‘573 patent, unlike other claims, did not state that the registration server needed to be free of managed content, and that this limitation should not be made “based on statements made during prosecution absent a clear disavowal or contrary definition.” The court AFFIRMED on the claims that included the being free of managed content limitation. Phoenix presented another defense against infringement during trial, but the Court of Appeals REMANDED to the District Court to determine the construction of “server” as the general rule is that “a federal appellate court does not consider an issue not passed upon below.”

Petitioners (Green) challenged the language in Initiative Petition 28 (IP 28) that would alter an aspect of Measure 67. Measure 67 modified the rate that corporations pay on their taxable income. The language in IP 28 referred to “corporate income,” rather than specifically “taxable income.” Green claimed this variation in the language is misleading because it does not specify that the tax would only be applied to corporate profits. Kroger, the Attorney General, argued Green did not challenge the term “corporate income” until after the comment period had ended. However, Kroger did not remove the word “taxable” until after the certified ballot was issued. The Supreme Court found that, under ORS 250.085, the Court may review language that was specifically altered after the comment period. Further, the Court held that the language “corporate income” is misleading. Ballot title referred to the Attorney General for modification.

In consolidated appeals, both Emmert and Kazlauskas appealed judgments in favor of the other party. In the first case, Emmert alleged that Kazlauskas had committed fraud concerning a property loan given by Emmert. The jury found that Kazlauskas had committed fraud and the Court of Appeals affirmed without discussion. In the second case, Kazlauskas alleged fraud and contract claims against Emmert. The jury found that Emmert breached the contracts and Kazlauskas elected for specific performance of the contract rather than money damages. Emmert appealed, arguing that the trial court should have granted his motion for a directed verdict, and also that the court erred in granting specific performance. Kazlauskas cross-appealed, arguing erroneous evidentiary rulings, and that the trial court erred when it resubmitted both cases to the jury after an erroneous verdict. The Court dismissed Kazlauskas’ evidentiary arguments and his second argument, holding that Kazlauskas waived his rights by failing to request that the trial court accept the jury’s verdict in the second case and that he failed to preserve the argument on appeal. As to Emmert’s appeal, the Court found that the denial of his motion for directed verdict was properly denied because there was a sufficient factual question; but the Court also found that the trial court erred in awarding specific performance, because specific performance should only be available when other remedies would be inadequate to compensate the non-breaching party. In this case, monetary damages would be sufficient to compensate Kazlauskas. Reversed and remanded.

Father and Mother appealed the juvenile court’s judgment taking jurisdiction of their children contending there was insufficient evidence to support the court’s finding that the parents endangered the children. Father had served a prison sentence for physically and sexually abusing children in the past and underwent a post-prison supervision plan that required he complete a sexual offender treatment program. In 1999, the family moved to Ohio, where the record indicated Ohio authorities were aware of Father’s history, but found no reason for further action. Upon the family’s return to Oregon in 2010, DHS petitioned for the juvenile court to take jurisdiction. The juvenile court took jurisdiction, finding that Father had a history of sexual abuse and had failed to complete a treatment program. The Court of Appeals found there was no evidence of a current risk to the children and there were no allegations or evidence of any further abuse since 1999. Additionally, the Court held the testimony presented at the juvenile court was insufficient to support the findings that Father’s earlier offenses presented a current risk to his children. Reversed.

Stevens appealed general and supplemental judgments against her in a contract action. CACV of Colorado (CACV) filed a breach of contract claim against Stevens, an Oregon resident, four years after Stevens defaulted on her credit card payments. Stevens raised a statute of limitation defense. The contract had a choice of law provision stipulating that Delaware law governed the contract. In Delaware, the statute of limitation for contract claims is three years, however, the statute is tolled if the defendant resides outside of Delaware. Thus, the statute of limitation could be tolled indefinitely. Under Oregon law, when another state’s otherwise applicable statute of limitation period is substantially different than Oregon’s and would impose an unfair burden in defending against the claim, a court may apply the appropriate Oregon statute of limitations. Therefore, the Court of Appeals determined that Oregon’s statute of limitations applied. Secondly, the Court found that the trial court erred in granting attorney fees to CACV under Oregon law because there was no fundamental policy in Oregon against the imposition of a specific monetary limit on attorney fee awards and Delaware law governed the contract. Therefore, CACV was subject to the cap on attorney fees under Delaware law. General judgment affirmed; supplemental judgment reversed and remanded.

Defendant appeals a conviction of felon with a firearm. In 2004, Defendant was convicted of a felony. In March 2006, after completing probation successfully, Defendant requested misdemeanor treatment of his conviction, which was granted. In 2008, he was charged with felon in possession. At trial, Defendant argued that he was a misdemeanant, not a felon, for purposes of the statute. The trial court denied the argument and convicted Defendant. On appeal, Defendant argued that his 2004 conviction was a misdemeanor and due to a statutory exception, was deemed as such – as opposed to a felony. The State responded that this exception only applies where the sentencing court declared the conviction to be a misdemeanor and a felony conviction later reduced to a misdemeanor is irrelevant. On review, the Court of Appeals found that, under ORS 166.270(3)(a), the phrase “at the time of judgment” refers to the time when the original felony judgment was entered, not a later time when conviction-reducing judgment was entered. Affirmed.

This case is on remand from the Oregon Supreme Court, which vacated the Court of Appeals’ prior decision, and remanded for reconsideration in light of Friends of Yamhill County Board of Commissioners. The issue on remand is whether, pursuant to Ballot Measure 37 and in compliance with state and county waivers, respondent Hudspeth has a common law vested right to complete a residential subdivision. The Court of Appeals held that the decision should have been remanded to the circuit court to determine the total project cost as related to whether respondent had a vested right to complete the subdivision because the cost of completion of the residences must be established in the record and cannot be assumed. The Court determined this conclusion complied with Friends of Yamhill County. Reversed and remanded.

Trident Seafoods Corp. (Trident), a fish processor, entered into an agreement with the State that would allow them to possess and process “by-catch” (fish that got caught in their nets inadvertently). The agreement states that fair market value will be paid to the State by Trident for the extra fish. Trident failed to remit payment for three months. Trident was fined for the three months for failure to make payment. The trial court convicted Trident and awarded judgment to the State. Trident appeals the judgment claiming that the owners of the vessels, and not the processors, are required to pay for “by-catch,” the agreement exempts them from having to remit payment, and they should not have to pay for fish they could not process. The Court held that an agreement entered into by the State and a processor does not exempt the processor from paying fair market value for fish caught over established limits and there is no exception to payment for fish not processed. Affirmed.

Erazo appeals a stalking protective order (SPO) entered against him. Erazo and K.R. shop for books in the same store, and the extent of their interactions are in the book section. K.R. petitioned for the SPO because she claims 1) Erazo told her to be afraid of him, and 2) he “slugged” her. Erazo argues that these instances did not meet the requirements of ORS 30.866, under which the SPO was issued. ORS 30.866 requires two or more instances of unwanted contact, which give a person an objectively reasonable fear. If the contact involves speech, then it must be a serious threat. The Court of Appeals found that Erazo’s conduct did not meet the statutory requirements under ORS 30.866; there was only one contact. Reversed.

Following a shelter hearing, a juvenile court took custody of Mother’s children because Mother failed to provide adequate supervision, and because mother’s substance abuse impaired her ability to provide adequate care of her children. A review hearing referee denied Mother’s move to terminate the wardship because her substance abuse persisted. Mother appealed, arguing that wardship must be dismissed unless DHS could prove that the alleged jurisdictional bases continued to pose a threat of serious loss or injury. The Court of Appeals concluded that at the time of the review hearing and based on the record, there was no evidence underlying the decision to maintain wardship over the children. The Court noted that “exposure to a parent’s unconventional but not unlawful lifestyle … and an unspecified amount of unsupervised access to the Internet do not justify state intervention into a parent’s fundamental right to the care, control, and custody of her children”. Reversed.

Defendant appeals an October 2009 judgment whereby the sentencing court amended a July 2007 judgment that made his sentences on his previous conviction for similar burglary convictions consecutive to the sentences that he was due to complete in October 2009. ORS 137.123(1) requires that in the absence of specific direction of the sentencing court, “[a] sentence shall be deemed to be a concurrent term unless the judgment expressly provides for consecutive sentences.” Because the sentencing court did not express an intention, orally or in writing, for the defendant’s earlier sentences to run consecutively with the later ones, the Court of Appeals held that the “erroneous term” provision in ORS 138.083(1)(a) was inapplicable to the situation and the sentencing court had no power to amend the earlier sentence. Reversed and remanded with instructions to reinstate the July 2007 judgment.

Defendant appeals multiple criminal convictions arguing the trial court erred during jury instructions. At trial, the judge refused to instruct the jury using Defendant’s jury instructions which specified the required mental state for the unlawful use of a weapon and menacing. On appeal, Defendant argues that the trial court erred in instructing the jury because the State was not required to prove, on either convicted count, that the Defendant intended to cause a particular result. The Court of Appeals rejected Defendant’s argument stating that an examination of the criminal statute defining those offenses requires proof of both intent to engage in particular conduct and intent to cause a particular result. Additionally, reading the jury instructions as a whole, the jury would not have been misled by the instructions. Affirmed.

Chan & Lui, Inc. (Chan) represents the estates of two deceased individuals and they are appealing the trial court’s granting of Capitol Specialty Ins. Co.’s (Capitol) motion for summary judgment. Capitol issued “liquor liability” coverage to the owners of a restaurant, whose patron subsequently killed the deceased in an automobile accident. The issue before the Court of Appeals is whether an amendment to the policy limits applies retroactively or prospectively. Chan argues that, because the only change applied to the amount of the coverage limits, and thus leaving the “Policy Period” unchanged, the amended limits apply retroactively to the start of the policy period. Capitol contends that the revised policy language “Effective Date of Change” on its face indicates that the amendment to policy coverage applies prospectively only. The Court held that the language of the policy amendment was clear and unambiguous, and was therefore not to be applied retroactively. Affirmed.

The State appeals the trial court’s order granting Defendant’s motion to suppress. Police officers stopped Defendant for a traffic violation. While one officer left to write the citation, the other officer stayed by Defendant’s vehicle. Within the next 30 seconds, the officer asked Defendant for permission to search the vehicle. Defendant consented and the officer found illegal drugs. The trial court granted Defendant’s motion to suppress, finding that the officer’s request for consent unlawfully extended the traffic stop because it was unrelated to the reasons for the traffic stop. The Court of Appeals found that, based on the unavoidable lull rule, an officer may inquire about matters unrelated to the traffic stop if the officer is not in a position to proceed with the investigation of the violation or the issuance of the citation. The Court held that because the officer’s request for consent occurred while the other officer was writing the citation, his request did not unlawfully extend the traffic stop. Reversed and remanded.

Townley (Mother) appealed a trial court judgment giving Nice (Father) custody of their son, M. The trial court awarded Father custody of M on the basis of ORS 107.137(1)(f), reflecting Father’s greater “willingness. . . to facilitate and encourage a close and continuing relationship between the other parent [Mother] and the child.” Mother, who was the primary caregiver, assigned error to the trial court’s award of custody and other provisions of the parenting plan. Specifically, Mother argued that the trial court erred in its application of ORS 107.137(1)(e), by not fully considering the fact that she was the primary caregiver to M. The Court of Appeals held that ORS 107.137(1) requires consideration of all factors listed and does not permit reliance on one factor at the exclusion of others. The trial court did not give proper consideration to ORS 107.137(1)(e), which gives preference to the primary caregiver. Vacated and Remanded.

Defendant appealed his felony possession conviction claiming that the police officer’s search of the bed of his pickup truck under a locked tonneau cover constituted an unlawful search. After Defendant was arrested following a traffic stop, the police towed and impounded his vehicle. According to inventory policy, officers may search the trunk or any exterior containers of impounded vehicles. When police officers searched the bed of the truck, they discovered a shotgun. The trial court denied Defendant’s motion to suppress. On appeal, the Court determined the inventory policy did not authorize the examination of the bed of his truck under the tonneau cover. The Court held that pickup trucks do not have “trunks” as described in the policy and that the truck bed is not an “external vehicle container.” As such, the search of the bed of the pickup truck was unlawful and the shotgun should have been suppressed. Possession charge reversed and remanded. Otherwise affirmed.

Appellant Gillian Heath Wolfe appeals the trial court’s award of $10.3 million in separate property assets to appellee Douglas Randall Wolfe. Gillian and Douglas disputed whether $10.3 million in a separate property is a marital asset. The disputed property originated in the 1950’s from a devise from Douglas’ grandfather. During their thirty plus years of marriage, Douglas used funds from the property to supplement the families’ income. The trial court held that Douglas had “rebutted the presumption of equal contribution” because the value of the inherited assets had appreciated independently. Additionally, no attorney’s fees were awarded. Gillian appealed and the Court of Appeals modified the award to a $2 million equalizing judgment due to the commingling of funds and the marriage duration. The Court also rejected spousal support for the wife. The decision regarding attorney’s fee was vacated and remanded for reconsideration. Otherwise affirmed.

Defendant appeals his conviction for driving while revoked. Defendant was clocked at 80 miles per hour by laser device near milepost 57 on Highway 26, and pulled over near milepost 56 by a North Plains police officer. Defendant admitted that his license was suspended, and he was charged with driving while revoked. At trial, the defendant moved for a judgment of acquittal, arguing that the state had failed to prove that he had committed the offense in Washington County. The trial court denied the motion, reasoning that, “everybody knows where Highway 26 is, and that means everybody knows that it’s in Washington County.” Defendant appealed and the Court reversed, holding that the state failed to present sufficient evidence to support a finding that defendant drove while revoked in Washington County. Reversed.

The State of Nevada appealed the district court’s denial of Nevada’s motion to remand to Nevada state court after Nevada’s Attorney General brought a parens patriae action against Bank of America Corporation (BOA), alleging that BOA’s home mortgage and foreclosure process violated the Nevada Deceptive Trade Practices Act (DTPA). Nevada also alleged BOA violated an existing consent judgment. BOA removed to federal court based on the Class Action Fairness Act (CAFA) and federal question jurisdiction under 28 U.S.C. § 1331. The district court held that the case was removable as a class action under CAFA, which allows federal jurisdiction over a “class action” or “mass action” involving parties with minimal diversity. The Ninth Circuit subsequently decided Washington v. Chimei Innolux Corp., holding that state Attorney General parens patriae actions are not removable as class actions under CAFA. On appeal, the Ninth Circuit also considered whether the action was a mass action, which turned on whether Nevada is the real party in interest for purposes of CAFA’s minimal diversity requirement. The Court concluded that, when looking at the case as a whole, Nevada is the real party in interest and removal under CAFA was improper, because Nevada sought substantial relief available to it alone, enforcement of the consent judgment, civil penalties not available to consumers, and injunctive relief requiring a lower standard of proof than suits brought by consumers. As to federal question jurisdiction, the Court held that the Attorney General brought this suit in state court to enforce state laws. REVERSED and REMANDED.

In 1984, Steven James was convicted and sentenced to death for murder and kidnapping. In 2000, after three failed petitions for post-conviction relief (“PCR”), the district court denied, without a hearing, James’ petition for writ of habeas corpus. James appealed on three grounds: the state’s failure to disclose a plea agreement made with a codefendant; the state’s failure to correct a codefendant’s testimony denying the agreement; and ineffective assistance by trial counsel at sentencing. The Ninth Circuit affirmed the two guilt-phase claims based on Brady, Giglio, and Napue, finding that the nondisclosure and false testimony about a plea agreement were not material, since the codefendant’s testimony could have been corroborated. The Court reviewed the penalty-phase claim for ineffective assistance of counsel, de novo, noting that the PCR court’s brief statement that there were “no colorable claims” was not an adjudication on the merits, but rested solely on procedural grounds. Thus, deference under the Antiterrorism and Effective Death Penalty Act did not apply. The Court found “counsel’s penalty-phase performance prejudicially deficient” where counsel failed to investigate and present mitigating evidence of James’s troubled childhood, mental illness, and history of chronic drug abuse, which prevented the sentencing judge from learning of James’ troubled history, which is relevant in assessing moral culpability. Further, the heinousness of the crime does not preclude prejudice, and mitigating factors are a “constitutionally indispensable part of the process of inflicting the penalty of death.” AFFIRMED in part; REVERSED and REMANDED.

There has been a long-running conflict regarding the classification of 9,000 acre feet (“AF”) of water released in June 2004 from the Nimbus reservoir into the New Melones reservoirs within California’s Central Valley Project (“CVP”). The construction and operation of the CVP harmed California’s native fish populations. The Central Valley Project Improvement Act (“CVPIA”), enacted in 1992, amended the CVP’s authorizing legislation and elevated “mitigation, protection and restoration of fish and wildlife” to project purposes on par with irrigation. Since its enactment, thirteen years of protracted litigation has occurred addressing four administrative decisions implementing § 3406(b)(2) of the CVPIA. Specifically, in 2004, the Department of the Interior (“Interior”) summarized its use of CVP water for § 3406(b)(2) purposes, but failed to charge 5,500 AF of the Nimbus release and 3,500 AF of the New Melones release against the 800,000 AF account that was allocated for CVPIA’s restoration mandate. The San Luis and Delta-Mendota Water Authority and Westland Water District (collectively, “Appellants”) appealed to the Ninth Circuit to determine whether the Interior abused its discretion in failing to apply the latter June 2004 releases against the 800,000 AF of CVP yield designated for fish, wildlife, and habitat restoration under the CVPIA. After finding that Appellants had standing, the Court concluded that since the Interior’s explanations were not “mere post hoc rationalizations,” its failure to give full explanations does not constitute an abuse of discretion under the Administrative Procedure Act. AFFIRMED.

Jared Loughner appealed the district court’s ruling denying his motion to enjoin involuntary medication while undergoing treatment to render him competent to stand trial for, inter alia, the murder of six individuals in January of 2011. Loughner underwent three different Harper hearings within the Bureau of Prisons (BOP) to determine if the BOP could involuntarily medicate him on dangerousness grounds. At each hearing, an independent psychiatrist presided over the proceeding and a licensed clinical social worker (LCSW) assisted Loughner. After two of the hearings, the LCSW filed an appeal on Loughner’s behalf, both of which the BOP denied. Loughner appealed on substantive and procedural due process grounds. The majority distinguished between forced medication on dangerousness grounds and forced medication for purposes of rendering the accused competent to stand trial and assist in his defense. Evidence presented at the district court hearing demonstrated that “[i]t is clear that Loughner has a severe mental illness, that he represents a danger to himself or others, and that the prescribed medication is appropriate and in his medical interest.” The Court concluded that forced medication is appropriate under Harper, and that it is premature to decide whether forced medication is appropriate for Loughner to stand trial and aid in his defense. The Court also affirmed a four-month extension of commitment to continue treatment to render Loughner competent for trial. AFFIRMED.