September 20, 2007 Ninth Circuit Decisions
On Thursday, September 20, 2007, the Ninth Circuit issued six new published opinions.
In Yetiv v. HUD, the Ninth Circuit held that HUD is not deprived of jurisdiction to impose penalties arising from failure to comply with loan agreement requirements where the loan was prepaid after the alleged violations
In U.S. v. Sargent, the Ninth Circuit reversed the convictions of a postal employee who, apparently as a result of job dissatisfaction, stole documents that evidenced payments by bulk mailers. The value of the documents was not properly deemed to be the value of the payments made, and accordingly, there was no evidence to support the value element of the offenses.
In Blanchard v. Morton School, the Ninth Circuit held that the 42 U.S.C. § 1983 does not create a right to damages under the IDEA for a parent’s lost earnings and suffering while pursuing IDEA relief. Similarly, the Rehabilitation Act of 1973 and the ADA do not create such individual rights in a non disabled person acting on behalf of a disabled person.
In Garcia v. Brockway the Ninth Circuit held that a Design and Construction claim under the Fair Housing Act accrues at the time a certificate of occupancy is issued. The Court rejected the claim that a design and construction violation continues until corrected. The design violation may have continuing effects, but the violation itself does not continue. The Court also rejected the claim that the cause of action does not accrue until the Plaintiff ‘encounters” the design violation. Such an “encounter” theory strips the statute of limitations of all meaning, as “encounters” could continue endlessly, and repeatedly by the same individual. The “discovery” theory of accrual was rejected for similar reasons. Fisher dissents, arguing the majority opinion transforms the statute of limitations into a statute of repose.
In U.S. v W.R. Grace, an interlocutory appeal of certain orders made in a criminal prosecution of Grace and seven of its executives arising from its vermiculite ore mining operations, the Ninth Circuit partially reversed. The Court reversed the order dismissing the knowing endangerment object of Count I and reversed the district court’s adoption of the regulatory definition of asbestos and ordered that the definition in 42 U.S.C. § 7412(b) apply. The Court affirmed exclusion of certain studies as evidence in themselves, but reverse the order denying their admission as underlying bases for expert opinion.
In U.S. v. Sinerius, the Ninth Circuit held that a conviction Under Montana’s offense of “sexual assault” triggered an enhanced penalty as a predicate offense “relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward” triggering an enhanced sentence for a conviction of trafficking in child pornography.
Rare that i agree with the 9th Circus. (I have long thought they live by their own Constitution.) But, after reading this list, I actually find myself in agreement with a couple of verdicts. Now, when they get around to recognizing and ruling on "legal" crime, I will be prepared to say there might be some hope yet.