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Case Summaries

Administrative Law

[09/08] Vukmirovic v. Holder
In a petition for review of the BIA's denial of petitioner's motion to reopen, the petition is granted where the case presented "exceptional circumstances" within the meaning of the controlling statute, 8 U.S.C. section 1252b(f)(2), and thus a remand for the asylum hearing the court held that petitioner was entitled to in 2004 was warranted.

[09/07] Hamdi v. Napolitano
In a severely disabled minor child's action under the Declaratory Judgment Act (DJA) and the Administrative Procedure Act (APA) to prohibit the Department of Homeland Security from removing his mother on the ground that the mother's removal violated his own constitutional rights as an American citizen, dismissal of the complaint for lack of jurisdiction is affirmed where: 1) the jurisdictional bar of 8 U.S.C. section 1252(g) does not apply to independent actions brought by a citizen child raising distinct constitutional rights; 2) the APA does not provide subject matter jurisdiction in this case; 3) a citizen child raising distinct constitutional rights may assert federal question subject matter jurisdiction; and 4) dismissal was proper because petitioner failed to state a constitutional claim upon which relief may be granted.

[09/07] Payne v. Salazar
In an action alleging retaliation in violation of Title VII, dismissal of the action for failure to exhaust administrative remedies is affirmed in part where the district court properly held that plaintiff failed to exhaust one of her claims. However, the order is reversed in part where an employee's right to trial de novo -- whether her employer is the federal government or a private company -- means that she is entitled to a plenary trial of whatever claims she brings to court, and it does not mean that she must sue on claims she has no interest in pursuing.

[09/07] Mozden v. Holder
A Polish family's petition for review of the BIA's affirmance of an IJ's finding the petitioners removable is denied where: 1) petitioners failed to establish lawful presence; 2) BIA did not abuse its discretion in denying a continuance; and 3) the BIA properly affirmed the IJ's finding that the mother did not qualify for consideration of cancellation of removal.

[09/07] Kahn v. Dep't of Justice
In a DEA agent's suit under the Whistleblower Protection Act (WPA), the Merit Systems Protection Board's final decision that plaintiff did not make protected disclosures under the WPA is affirmed where: 1) the administrative judge did not err in finding that plaintiff's communications with an agent were not protected disclosures because they were made as part of normal duties through normal channels; 2) plaintiff's report was not a disclosure because he did not reveal something that was hidden and not known to the DEA; and 3) because plaintiff's communications were not protected under the WPA, the question of whether the government could have shown by clear and convincing evidence that it would have transferred plaintiff on the absence of his communications need not be addressed.

[09/07] McEvoy v. KKL Dev., LLC.
In plaintiffs' suit against a local company for violations of the Illinois's Prohibition of Air Pollution and Fugitive Particulate Matter regulations, objecting to the nearby pile of coal stored by the defendant and alleging theories of recovery under the citizen-suit provision of the Clean Air Act (Act), district court's grant of summary judgment in favor of the defendant is affirmed where: 1) contrary to the district court's ruling, the Act permits citizen enforcement of standards found in an SIP, even if those standards are not repeated in a permit; 2) the Illinois's Prohibition of Air Pollution and Fugitive Particulate Matter regulations cannot be used as the basis of a citizen's suit under the Act, as the regulations do not set forth judicially enforceable standards or limitations; and 3) the district court was well within its rights to dismiss the supplemental state claims without prejudice.

[09/07] In the Matter of the United States of America for an Order Directing a Provider of Electronic Communication Serv. to Dsiclose Records to the Gov't
In the government's application for a court order pursuant to a provision of the Stored Communications Act (SCA) to compel an unnamed cell phone provider to produce a customer's "historical cellular tower data," also known as cell sit location information (CSLI), the Magistrate Judge's (MJ) denial of the application is vacated and remanded as the CSLI from cell phone call is obtainable under a section 2703(d) order and such an order does not require the traditional probable cause determination. Here, the MJ erred in allowing her impressions of the general expectation of privacy of citizens to transform that standard into anything else, as the legislative history provides ample support for the proposition that the standard is an intermediate one that is less stringent than probable cause.

[09/07] Henry E. & Nancy Horton Bartels Trust for the Benefit of Cornell Univ. v. US
In a university trusts' tax refund suit, the Court of Federal Claims' denial of its claim is affirmed as the securities purchased on margin by otherwise tax-exempt organizations are debt-financed property, and thus, income from an unrelated trade or business, which is subject to the UBIT.

[09/07] Parker v. NutriSystem, Inc.
In plaintiff's suit against his employer for past overtime payments in violation of the Fair Labor Standards Act, district court's grant of summary judgment in favor of the defendant-employer is affirmed where: 1) the Department of Labor's factually distinguishable opinion letters and broad general guidance are not sufficiently thorough or consistent to warrant deference in this case; 2) the fact that defendant's plan is not calculated strictly as a percentage of sale price does not disqualify it from being a commission under section 7(i); and 3) when the flat-rate payments made to an employee based on that employee's sales are proportionally related to the charges passed on to the consumer, the payments can be considered a bona fide commission rate for the purposes of section 7(i).

[09/07] Equal Employment Opportunity Comm'n v. Kronos Inc.
In the Equal Employment Opportunity Commission's (EEOC) suit seeking enforcement of a third-party administrative subpoena it issued against defendant pertaining to the EEOC's investigation into a charge of discrimination against a grocery store, district court's order narrowing the scope of the subpoena and directing the parties to negotiate a confidentiality order is affirmed in part, reversed in part and remanded where: 1) district court's judgment is reversed insofar as it limited the scope of the EEOC's subpoena in terms of geography, time and job description; 2) to the extent that the district court's order limits the EEOC's access to validation efforts conducted solely on behalf of the store, documents relating to potential adverse impact on disabled individuals to those relating specifically and only to the store, and user's manuals and instructions for the assessment were actually provided to the store, the order is reversed; 3) district court's judgment is affirmed to the extent that it declines to enforce the portion of the EEOC's subpoena requesting information related to potential discrimination based on race; and 4) district court's confidentiality order is vacated and remanded to permit the district court to conduct a good cause balancing test.

[09/03] Luna v. Holder
Petitions for review of final orders of removal are transferred to the district court for further proceedings where: 1) although the petitions are untimely, the REAL ID Act did not divest district courts of habeas jurisdiction to consider petitioners' claims that they were prevented by circumstances beyond their control from filing timely petitions for review; and 2) thus, the circuit court need not decide whether the statutory 30-day filing requirement violates the Suspension Clause of the U.S. Constitution in cases in which an alien misses the deadline because of ineffective assistance of counsel or circumstances created by the government.

[09/03] California Oak Found. v. Regents of the Univ. of California
Trial court's denial of plaintiffs' petition for a writ of mandate seeking to compel the Regents of the University of California to rescind certification of an environmental impact report (EIR) prepared for seven related projects at the University of California at Berkeley, and its approval of the proposed student athlete center, is affirmed where: 1) while the athlete center is subject to the Alquist-Priolo Act based on its proposed location within an earthquake fault zone, the Regents could properly find the athlete center will not be an "addition" or "alteration" to the University's California Memorial Stadium as defined by the statute, and thus is not subject to the statute's value restrictions on certain projects coming within those definition; and 2) Regents acted in accordance with CEQA in certifying the EIR because it contains sufficient information regarding the projects' likely environmental impacts, as well as feasible alternatives to or mitigation measures for those projects to avoid or minimize the identified impacts.

[09/02] Bale Chevrolet Co. v. US
In a petition for review of intentional disregard penalties issued against petitioner for failing to file required Forms 8300 information returns with the IRS, the petition is denied where the government's positions were substantially justified.

[09/02] Galindo-Romero v. Holder
In a petition for review of an order of the Board of Immigration Appeals (BIA) dismissing petitioner's appeal of an Immigration Judge's (IJ) decision terminating his formal removal proceedings, the petition is dismissed where the court lacked jurisdiction to decide the merits of petitioner's petition for review because the decisions of the BIA and IJ resulted in no final order of removal.

[09/02] Camacho-Cruz v. Holder
In a petition for review of the Board of Immigration Appeals' (BIA) denial of cancellation of removal because of petitioner's conviction for assault with a deadly weapon under Nevada state law, the petition is dismissed where petitioner’s conviction was categorically a crime of violence.

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