Raymond C. Fisher

In United States v. Onyesoh, the defendant pled guilty to access device fraud and possession of stolen mail after a search uncovered expired credit card numbers along with other items. The district court applied a 12-level sentencing enhancement under the Guidelines by treating 500 expired credit card numbers as unauthorized access devices worth at least $500 each. The Ninth Circuit vacated the sentence and remanded, ruling that the government must prove by a preponderance of the evidence that the expired numbers were usable to obtain value under the statutory definition in 18 U.S.C. § 1029(e)(1). The court reasoned that the statute requires access devices to be capable of obtaining money, goods, or services, and while usability may sometimes be self-evident, expired numbers demand affirmative proof, which was absent from the record.

criminal law

This case concerned Washington's top-two primary election system under Initiative 872, in which candidates for partisan office may list a political party preference on the ballot even if not nominated or endorsed by that party. Political parties challenged the system, arguing it violated their First Amendment associational rights by creating voter confusion about party affiliation and forcing unwanted associations. The Ninth Circuit held that the ballots and related materials sufficiently inform voters that a candidate's stated preference does not imply party nomination, endorsement, or approval, and that no evidence of actual confusion existed. The court therefore concluded the system did not infringe the parties' rights. It also affirmed dismissal of related ballot access and trademark claims while reversing an order on attorney's fees reimbursement.

electionsfree speech

The case involved federal prisoner Morris Buckles appealing the dismissal of his 28 U.S.C. § 2255 motion challenging his conviction for possession of methamphetamine and marijuana with intent to distribute. The district court had dismissed the motion as untimely because Buckles's petition for certiorari to the Supreme Court was filed late. The Ninth Circuit held that its prior order recalling the mandate did not restart the 90-day period for seeking certiorari review, confirming that both the certiorari petition and the subsequent § 2255 motion were untimely. However, the court found that alleged misinformation from the Ninth Circuit Clerk's office could support equitable tolling of the deadline, and it vacated the dismissal and remanded for further factual development on that issue.

criminal lawprocedure

The case involved Herberth Noel Ayala, a native of El Salvador and former military officer, who petitioned for review of the Board of Immigration Appeals' denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture. Ayala claimed he faced persecution from drug dealers he had arrested during his service. The Ninth Circuit Court of Appeals denied the petition, holding that although former military officers could potentially form a particular social group under immigration law, the evidence showed Ayala was targeted due to his specific arrests rather than his group membership. The court found substantial evidence supported the BIA's determination that the persecution was not on account of a protected ground, and thus Ayala was ineligible for relief.

immigration

The case involved a challenge by the Northwest Environmental Defense Center against Oregon state officials and timber companies, alleging that stormwater runoff from logging roads, channeled through ditches, culverts, and channels into rivers, violated the Clean Water Act by lacking National Pollutant Discharge Elimination System permits. The district court had dismissed the suit, finding the discharges exempt under the Silvicultural Rule. The Ninth Circuit Court of Appeals reversed, holding that such channeled discharges qualify as point sources under the Act and are not exempt by the Rule or 1987 amendments, thus requiring permits. The court reasoned that the Clean Water Act's definition of point sources includes these collection and discharge systems, and Congress intended broad coverage for pollutant discharges while providing mechanisms like general permits to avoid undue burden.

environmentbusiness & regulatory

The case involved Javier Dolores Gonzalez-Diaz's conviction for being found in the United States after deportation in violation of 8 U.S.C. § 1326. Gonzalez-Diaz had lived unlawfully in the U.S. until driving into Canada, where Canadian officials detained him for further examination, determined he was inadmissible, and returned him to U.S. immigration authorities who arrested him. The Ninth Circuit affirmed the conviction, reasoning that Gonzalez-Diaz was never legally in Canada during his brief time there and therefore remained in the United States, so the official restraint doctrine did not apply to his reentry.

immigrationcriminal law

Shane Dawson, a gay male employee, sued his former employer Entek International after being terminated from his production line position, alleging retaliatory discharge, sex-based hostile work environment, sexual orientation hostile work environment under Title VII and Oregon law, and intentional infliction of emotional distress. The district court granted summary judgment to Entek on all claims. The Ninth Circuit reversed on the retaliatory discharge and sexual orientation hostile work environment claims, holding that Dawson presented sufficient circumstantial evidence of derogatory comments by coworkers and possible pretext in his firing to create genuine issues of material fact precluding summary judgment. The court affirmed dismissal of the IIED claim, reasoning that mere corporate indifference to coworker harassment does not meet the high bar for outrageous conduct under Oregon law.

civil rightslabor & employment

The case concerned whether stormwater runoff from logging roads in Oregon's Tillamook State Forest, collected and channeled through systems of ditches, culverts, and channels before discharging into rivers, required permits under the Clean Water Act's National Pollutant Discharge Elimination System. An environmental nonprofit sued state forestry officials and timber companies, arguing the discharges were from point sources. The district court dismissed the claims, relying on an EPA silvicultural rule exemption. The Ninth Circuit reversed, concluding that the channeled runoff constituted point source discharges not exempted by the silvicultural rule or 1987 CWA amendments, and thus permits were required.

environment

This case involved consolidated appeals by workers who had won benefits under the Longshore and Harbor Workers’ Compensation Act and now sought appellate attorney’s fees from their employers under 33 U.S.C. § 928(a). The court rejected the employers’ objections that the fee requests were untimely, lacked proof of client authorization, or were premature because the workers had not yet shown entitlement to a higher hourly rate. It held that the workers had prevailed on their core challenge to the agency’s flawed methodology for setting reasonable rates, that the attorneys had properly applied for fees for services performed before the court, and that any authorization objections were waived. The court therefore granted the fee applications and referred the determination of amounts to the Appellate Commissioner.

labor & employmentprocedure

In this case, plaintiffs sued ITEX in Oregon state court for breach of contract, and ITEX removed the action to federal district court based on diversity jurisdiction. Thirty-one days later, plaintiffs moved to remand the case to state court pursuant to a forum selection clause in the contract requiring that actions be brought in Oregon state courts. The district court granted the remand motion, and the Ninth Circuit affirmed, holding that it had jurisdiction to review the order. The court reasoned that a forum selection clause is not a 'defect' under 28 U.S.C. § 1447(c), so the thirty-day deadline for motions to remand does not apply; this conclusion followed from the statute's text and history, prior precedent interpreting the pre-1996 version of the law, and the absence of any indication that the 1996 amendment expanded the term 'defect' to encompass such clauses.

procedure

In Douglas v. Noelle, a pro se prisoner sued Multnomah County Sheriff's Office personnel under 42 U.S.C. § 1983, claiming violations of his First Amendment rights through interference with religious practices and grievance filings during his jail custody from 2000 to 2002. The district court dismissed the complaint as untimely under the two-year statute of limitations. The Ninth Circuit reversed, ruling that the mailbox rule from Houston v. Lack applies to pro se prisoners' § 1983 complaints, meaning the complaint is considered filed when delivered to prison authorities for mailing. Consequently, the court found the sixth claim timely filed on November 30, 2004, within the limitations period from the December 1, 2002 incident, and remanded for further consideration of the other claims.

civil rightsprocedurereligious libertyfree speech

In Dyer v. Cenex Harvest States Cooperative, a worker who prevailed on a hearing loss claim under the Longshore and Harbor Workers’ Compensation Act sought attorney’s fees from his employer for the entire period of representation. The Benefits Review Board had awarded fees only for the period after the employer contested the claim, interpreting 33 U.S.C. § 928(a) to exclude pre-controversion fees and also reducing the requested hourly rate. The Ninth Circuit held that the statute authorizes recovery of both pre- and post-controversion attorney’s fees, relying on the Director of the Office of Workers’ Compensation Programs’ interpretation of the provision’s language and structure. The court vacated the hourly-rate decision and remanded for reconsideration under recent precedent on reasonable rates. The case centers on statutory construction of fee-shifting rules in federal workers’ compensation proceedings.

labor & employmentprocedure

Jeffrey Rowe sued Educational Credit Management Corp. (ECMC) in federal district court, alleging violations of the Fair Debt Collection Practices Act (FDCPA) and Oregon state law after ECMC continued garnishing his wages on a defaulted student loan even after full repayment. The district court dismissed the FDCPA claims under Rule 12(b)(6), concluding that ECMC's collection activities as a guaranty agency were exempt from the FDCPA because they were incidental to a bona fide fiduciary obligation to the Department of Education. On appeal, the Ninth Circuit reversed, holding that when a guaranty agency acts solely as a third-party collector of a debt assigned after default, its activities are not exempt under the fiduciary exception in 15 U.S.C. § 1692a(6)(F)(i). The court reasoned that the statutory exemption does not cover collection performed on behalf of the original guarantor rather than directly in furtherance of the agency's fiduciary duties to the federal government, and it remanded the state-law claims for further consideration. The decision turned on accepting the complaint's allegations as true for purposes of the motion to dismiss.

business & regulatoryprocedure

This consolidated appeal concerns two cases in which attorney Charles Robinowitz, representing petitioners Christensen and Price under the Longshore and Harbor Workers’ Compensation Act (LHWCA), challenged the hourly rates awarded by the Benefits Review Board (BRB) for his work on fee petitions. The BRB had approved rates of $250 per hour despite requests for $350, relying on regional norms and rejecting additional evidence such as the Morones Survey and Laffey Matrix. The Ninth Circuit reviews BRB fee decisions for abuse of discretion and holds that reasonable fees under LHWCA § 928(a) are determined via the lodestar method using prevailing market rates in the relevant community, consistent with standards under other federal fee-shifting statutes. The court vacates the BRB orders and remands for further proceedings applying these principles, including consideration of delay and relevant factors from 20 C.F.R. § 802.203.

labor & employmentprocedure

This case concerns an appeal from the Benefits Review Board's affirmance of attorney's fee awards in a Longshore and Harbor Workers' Compensation Act claim for hearing loss benefits, where the prevailing claimant's attorney sought a $350 hourly rate. The Administrative Law Judge awarded $250 per hour for work before him, and the District Director awarded $235 per hour for work before her, based on the regulation at 20 C.F.R. § 702.132(a) and evidence of prior comparable awards rather than the attorney's proffered market-rate evidence such as the Laffey matrix or non-contingent fee agreements. The court vacated and remanded in part on issues including the adequacy of the rate determinations and the denial of a delay enhancement, while affirming in part the overall approach to setting fees.

labor & employmentprocedure