U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

9th Circuit November 2013 News

9th Signals Future Marriage Equality Holdings in Back Pay Order

This is an interesting, and confusing, order by the Ninth Circuit.

Margaret Fonberg is a former clerk for the United States District Court for the District of Oregon. In 2009, she filed for benefits for her same-sex domestic partner. The couple has a civil union under Oregon law, which provides the same benefits of marriage, without the same title, thanks to a state constitutional provision defining marriage as between one man and one woman. Her request was denied, as benefits were only available for those who were legally married.

She filed an Employment Dispute Resolution (EDR) claim with the Office of Personnel Management (OPM), alleging sex discrimination, and in 2011, a district court agreed with her, and ordered back pay to compensate for the wrongly-denied benefits. Oddly enough, two years later, the same judge rescinded the order "[b]ecause no legal method for reimbursement is currently available ... [and] the law affords Fonberg no remedy in this matter." Basically, the court ruled that there was a wrong, but no remedy.

In 2012, long after Fonberg filed her claim, the District of Oregon added sexual orientation to the list of protected groups.

Beastie Boys in Court Again; Mad About 'Girls' Parody Commercial?

The Beastie Boys are rightfully irked. Never, in the history of their group, have they ever agreed to allow the use of their music in advertising. In fact, their late member, Adam Yauch, stated in his will that none of the group's music ever should be.

And yet, we have the GoldiBlox "Girls" parody, a delightful, empowering tune that counters the misogynistic tone of the original. ("Girls - to do the dishes, Girls - to clean up my room, Girls - to do the laundry ...")

It goes against Yaunch's will, as it is a commercial for girls' educational toys. Yet, it's almost certainly fair use. And in the real twist, the Beastie Boys didn't initiate the court case -- the toymaker did, reports The Hollywood Reporter.

Kozinski Crashes Nissan Leaf Settlement Party -- As a Plaintiff

Chief Judge Alex Kozinski, of the Ninth Circuit, bench-slaps lawyers and crashes class-action settlements on a semi-regular basis. This, however, was something different, as Kozinski's wrath wasn't felt from the bench -- he was an objecting plaintiff.

Nissan makes the Leaf, an all-electric car with an alleged 100-mile range. Unfortunately, the battery packs seem to either be partially defective, or simply have a shorter range than promised. Kozinski and his wife, Marcy Tiffany, purchased a 2011 Nissan Leaf, and the range wasn't even sufficient to make the 80-mile trek home, leaving them plugged in to a charger at a dealership fifteen miles short of their destination.

Melatonin Brownies Class Action Dismissal Affirmed, May be Revived

A class-action lawsuit against the makers of the controversial (and seemingly extinct) Lazy Cakes melatonin-laced brownies made a brief appearance in the Ninth Circuit earlier this week. The court, in an unpublished opinion, affirmed the dismissal of the class action lawsuit, yet reversed in part, and remanded with instructions to allow the plaintiff, Lee Cheramie, to amend the complaint.

Still with us?

The brownies, which attracted the scrutiny of regulators and health professionals due to the cartoon Lazy Larry mascot, which some argued appealed to children, and due to the high melatonin content, disappeared after the Food and Drug Administration issued a warning letter to the company, stating that melatonin was not approved as a food additive.

Not Reading the Case File Is Ineffective Assistance

Pedro Vega was convicted in 2002 of molesting his stepdaughter. Prior to that conviction, he had escaped criminal charges twice: A federal case was dismissed on jurisdictional grounds, and state charges were dismissed as well. After new allegations by the victim came to light, the state brought charges again. Even then, there were two mistrials, including one caused by his attorney's absence, before he was finally convicted.

Three sets of charges. Three attorneys. And three trials, all of which were handled by the same attorney, who apparently never read the full case file, as he didn't discover the victim's second recantation, to her priest, until after that third trial.

Ineffective assistance, perhaps?

Extensions Sought in Same-Sex Marriage Cases; Hawaii Likely Moot

The twin challenges to Nevada and Hawaii's prohibitions on same-sex marriage took further steps towards diverting, and in Hawaii's case, derailing. Though the cases were initially put on parallel tracks by the Ninth Circuit, extensions were requested in both cases, postponing the resolution of the issue in both states.

In Hawaii's case, a prior extension was granted due to the state legislature's plan to address the issue. A second unopposed request was filed earlier this week, after Hawaii became the 15th state to allow same-sex marriage, Equality on Trial reports.

OC Gang Injunction Invalidated Over End-Run Around Due Process

The California Street Terrorism Enforcement and Prevention (STEP) Act is a comprehensive piece of anti-gang legislation that, amongst other remedies, allows the state to ask for an injunction prohibiting gang gatherings and other related behaviors.

In 2009, the Orange County District Attorney filed for an injunction against alleged members of the Orange Varrio Cypress (OVC) street gang. The terms of the injunction, which covers a 3.78-square mile area in the City of Orange, prohibited the affected members from gathering, throwing up gang signs, and being out after 10 p.m.

But when more than 50 of the alleged 115 people listed on the injunction showed up to challenge it, the prosecutors dismissed the injunction against the objectors -- then had it enforced against the group as a whole, including those who had previously objected.

Irwin Schiff, Notable Anti-Tax Advocate, Turned Away by 9th Cir.

Irwin Schiff is famous in certain circles -- so much so, that he has his own Wikipedia page. Schiff has been in and out of prison for much of his life due to his leadership in the tax protester movement, with convictions and protests spanning multiple decades. He's also written a number of books on the subject, each advocating ways (legal and illegal) to avoid paying income taxes.

In 2005, Schiff and two associates were convicted of tax evasion and other false filing and conspiracy charges. Yesterday, the Ninth Circuit, in a brief, unpublished memorandum, declined to come to the rescue, despite Schiff's claims of ineffective assistance of his appellate counsel.

Oral Arguments in Single Resident Occupancy Mail Delivery Dispute

They are called Single Resident Occupancy (SRO) buildings. Many of them have the word "hotel" plastered on the front of the building, yet nearly all of them are occupied by the City of San Francisco's most needy: low-income working poor and older and disabled residents. And despite their long-term occupancy, and the city's prior orders to provide individual mailboxes to each of these units, the United States Post Office is refusing to do anything more than deliver building-by-building, as it classifies these buildings as temporary accommodations.

Where is the line between transient hotel-like housing and apartments? And should the USPS be required to provide individual mail delivery to SRO, who live in these long-term, yet hotel-like units?

Lawsuit Brought by World's Luckiest (Alleged) Pedophile Quashed

You'd think having multiple criminal cases dismissed due to a tainted warrant would be enough, but after Jared Armstrong escaped the clutches of the Alaska criminal justice system, the alleged child predator then sued the cops.

His luck just ran out. More than two years after the case reached the Ninth Circuit, the court finally granted the underlying appeal, and immunity to the officers.

CSU East Bay Professor Pedophile Gets Conviction, Plea Vacated

The acts committed by former Cal State University East Bay Criminal Justice Professor Kenneth Kyle, and his accomplice Tessa Vanvlerah, are too disturbing to recount in detail. The pair sexually assaulted Vanvlerah's 3-month-old infant daughter, leading to two consecutive life sentences for the mother, and a 37.5 year sentence, pursuant to a plea, for Kyle.The pair met online, and were caught after the FBI noticed him sharing footage of the crimes on a file-sharing network under the screen name "cruelsob."

Kyle's a free man, at least for now, as his reprehensible conduct led the trial judge to stray too far into the plea bargaining process. After the judge rejected a thirty year sentence, and expressed her thoughts that anything less than life would be inappropriate, the parties agreed to the longer sentence, plus restitution and supervised release.