The 9^th U.S. Circuit Court of Appeals, voting 2-1, said the State Department and Homeland Security failed to provide a legitimate reason for the denial of a visa to Kanishka Berashk.  He sought, and got tentative approval, a visa to move to the U.S. to be with his U.S. citizen wife, Fauzia Din.

Berashk worked as a payroll clerk for the Afghan Ministry of Social Welfare from 1992 to 2003.  The Taliban controlled Afghanistan from 1996 to 2001, meaning during much of his employment he worked for the Taliban government.

Following the toppling of the Taliban he worked as a clerk the Ministry of Education performing low level administrative work, according to the court.

“Because the government has not put forth a facially legitimate reason to deny Berashk’s visa, we reverse and remand for further proceedings,” wrote Judge Mary Murguia.  She was joined by visiting Judge Raner Collins of Arizona.  (A vote split, in which a visiting judge provides the deciding vote, has been an indicator of a case that could be taken up for full court en banc review.)

Din and Berashk married in 2006 and she filed a visa petition on his behalf to move to the U.S.

In 2008, the U.S. notified him his visa was approved and he went to the Embassy in Islamabad, Pakistan for an interview.  The interview went well and he answered questions about his work in the Afghan Minister of Social Welfare during the period of  Taliban control.  He was told to expect a visa in six weeks.  But none arrived and in 2009 he and Din were told he was denied with no possible appeal, without being told the reason.

Despite several trips to the embassies in Kabul and Islamabad they received no specific information to explain the denial.

While generally, consular decisions to deny a right of entry to an alien are unreviewable by a court, there are exceptions, in particular, when it implicates the constitutional rights of an American citizen, Murguia said.

In this case, Berashk’s wife, Din, has a protected liberty interest in marriage that should allow her to seek an explanation of the denial of her husband’s visa.

“At a minimum, the government must cite to a ground narrow enough to allow us to determine that it has been ‘properly construed,’” the court wrote.

In dissent, Judge Richard Clifton said the majority ignored the constraint on judicial review of visa denials.

The ruling imposes on the government an obligation to provide information that by law, “the government is specifically not required to provide when it denies a visa based on concerns for national security or terrorism,” he said.

Case:  Din v. Kerry, No. 10-16772

Michael Gressett sued the county and nearly a dozen individuals in 2012 alleging civil rights violations, malicious prosecution and defamation.

U.S. District Judge Edward Chen tossed out the suit Friday saying his complaint fails to allege each of nine defendants had “some degree of knowledge” that Gressett did not commit the rape.  Nor does he allege sufficiently that defendants were the cause of alleged constitutional violations, according to Chen.

Chen did give Gressett 30 days to refile his lawsuit and correct the deficiencies. Although a defamation claim against nine members of the DA’s office were permanently dismissed.

Gressett began work in the DA’s office in 1987 and ran unsuccessfully for Contra Costa District Attorney three times in 1994, 1998 and 2002.  He was repeatedly retaliated against by the successful candidate and supporters after the elections, Chen stated.  Gressett then backed an unsuccessful candidate for DA in 2008.

With this history, Gressett had a brief consensual sexual relationship in 2008 with a contract lawyer working as a prosecutor in the office, according to the opinion. Later, the woman falsely alleged he sexually assaulted her, according to the allegations.

She alleged a brutal sexual attack in her home by Gressett during questioning by two Alameda County District Attorney’s office investigators.  They were told of Gressett’s unsuccessful political runs and the alleged victim’s “unstable personality.”

Despite these issues, the Contra Costa office continued to run the investigation of Gressett, in conjunction with the state attorney general.  He was ultimately arrested and charged with 12 felony counts and terminated in 2009 as a prosecutor.

An arbitrator ordered Gressett reinstated in February 2011 after finding allegations that his investigation was tainted with political animosity.  By October the criminal charges were dropped.

Case:  Gressett v. Contra Costa County, No. C12-3798EMC

The First District Court of Appeals found the environmental impact report for the project was adequate, overturning a lower court judge’s finding that the EIR failed to adequately review adverse consequences.

The ruling stands as a major defeat for environmental groups that opposed the project, though they may still appeal the decision to the California Supreme Court.

The appeals panel gave a green light to the review despite environmentalists concerns over the EIR’s responses to seismic safety; potential harm to fish spawning, chlorine pollution in the bay from routine pipe cleaning, increased development, damage to bay views and greenhouse gas increases.

The opinion rejects assertions that driving 175 concrete pilings into the bay during construction would result in acoustic pressure waves underwater that could be lethal to young salmon, steelhead and green sturgeon.

Justice Timothy A. Reardon said the EIR proposed steps to avoid killing protected species and to mitigate noise impacts on birds.  That promise “constitutes adequate mitigation under [the California Environmental Quality Act].”

Desalination

The Marin Municipal Water District proposed a 5 million gallon-a-day desalination plant in 2003 to address growing demands on the district’s water supply from reservoirs.

The plant would extract raw seawater from San Rafael Bay, 15 miles north of San Francisco.

The reverse osmosis process produces drinkable water and the remaining salt brine would be discharged back into the bay.

The discharged brine would be blended with Marin Sanitary Agency treated sewage and industrial wastewater generated in MarinCounty.  Blending the brine and treated wastewater would reduce the concentration of salt returned to the bay, according to the court.

 Opposition

The plan was opposed by a number of groups, including the North Coast Rivers Alliance.

In 2008, the district released a final EIR that found the plant could meet objectives of providing more water while avoiding its impacts.

In 2009, after two public hearings, the Board of Supervisors approved the EIR and the project.

The Alliance sued and a state judge found the EIR inadequate on a number of fronts.  That decision was overturned Wednesday by the appeals court.

Reardon also found the EIR adequately addressed aesthetic impact of three water storage tanks atop two rural ridges overlooking the bay.  The tanks would each be 20-feet tall and 120-feet in diameter.

He also found the report dealt adequately with the impact of “shock-chlorination” used in wastewater disposal.  In addition, to keep barnacles and mussels from blocking the water intake system it would be periodically disinfected with 150 gallons of bleach and this too was addressed in the EIR by promising use of valves to prevent bleach entering the bay.

The study also reported sampling of larval fish and eggs from 2005 to 2006 showed Pacific herring, northern anchovy and yellowfin goby, but no Chinook salmon, steelhead or sturgeon.

The EIR noted entrapment of those protected species was unlikely because they spawn upstream in freshwater.

In addition, Reardon said the EIR showed the greenhouse gas emissions from plant energy use, which contribute to global warming, would not slow Marin’s goal of reducing its greenhouse gas by 15 percent from 1990 levels by 2020.

Joining Reardon in the in the decision were Justices Ignazio J. Ruvolo and Maria P. Rivera.

Case:  North Coast Rivers Alliance v. Marin Muni Water Dist., No. A133821

Brown was one of three lawyers picked for the San Francisco bench by Brown on Tuesday.  She has been a federal prosecutor for 10 years and is a former clerk to 9^th U.S. Circuit Court of Appeals Judge M. Margaret McKeown.

In addition to Brown, the governor appointed Rochelle East, the Chief Deputy Attorney General for AG Kamala Harris, and Harry Dorman, an assistant district attorney in San Francisco in the DA’s homicide unit.

In total, the governor named 13 judicial appointments throughout the state.

The lawsuit demands the FBI produce records under the Freedom of Information Act and halt surveillance of editors Eric Garris and Justin Raimondo. Both identify themselves as Libertarians who ran for public office in the 1970s representing the Libertarian Party.

The ACLU of Northern California filed the suit in the Northern District of California after Garris and Raimondo discovered FBI documents that showed a record of surveillance of the online magazine.

An FBI analyst recognized that Antiwar.com’s content was constitutionally protected free speech but despite that, recommended opening an investigation and monitoring by the agency, according to the ACLU.

In August 2011, the pair discovered 94 pages of redacted documents produced by the FBI in response to a FOIA request by the author of the blog “Zionism Stinks,” and in those, 23 referred or related to Antiwar.com and its staff, according to the lawsuit.

“There is no reason for the FBI to be conducting surveillance on our news site,” Garris said in a prepared statement.  “The FBI should be investigating actual criminal activity, not snooping on journalists,” he said.  The magazine began in 1995.

The editors originally requested FBI records in May 2012,under the FOIA, but they have not received the records.

“The FBI’s failure to provide a substantive response not only violates the FOIA and the Privacy Act, but it denies plaintiffs and the public insight into the FBI’s surveillance practices with respect to media organizations and private citizens engaged in First Amendment protected speech,” the lawsuit states.

The lawsuit asks that the FBI immediately disclose the records kept by the FBI on the magazine and Garris and Raimondo.

Case:  Raimondo v. FBI, No.  C13-

The unanimous panel held states cannot narrow the terms of the 1973 case Roe v. Wade, which allows women to have abortions during the first trimester of pregnancy.

“A woman has a constitutional right to choose to terminate her pregnancy before the fetus is viable,” wrote Judge Marsha Berzon.  “A prohibition on the exercise of that right is per se unconstitutional.”

She said that the Arizona law’s “medical emergency exception does not transform the law from a prohibition on abortion into a regulation of abortion procedure.”

Arizona Gov. Jan Brewer signed the law, HB2036, into law April 12, 2012, limiting athe availability of abortions in the state.

Three obstetrician-gynecologists who practice in Arizona sued.  The trial court denied the doctors’ request for preliminary injunctions or for a judgment declaring the state law unconstitutional.  That decision was appealed.

In a separate concurrence, Judge Andrew Kleinfeld wrote, “Arizona has unquestionably put a ‘substantial obstacle’ in the path of a woman seeking to abort a previability fetus,” Berzon said.  Women cannot receive an abortion after 20 weeks unless she has a medical emergency.

The panel reversed the denial of the injunction and declaratory judgment saying, “Arizona simply cannot proscribe a woman from choosing to obtain an abortion before the fetus is viable.”

Kleinfeld is a Republican appointee from the conservative wing of the court while Berzon was a Democrat appointee at the liberal end of the court.

Berzon and Kleinfeld were joined by Judge Mary Schroeder, an appointee of President Jimmy Carter.

Case: Isaacson v. Horne, No. 12-16670

Judge Stephen Reinhardt led the panel to reinstate a lawsuit against Kohl’s Department Store alleging it lured consumers into buying things they would not have purchased otherwise by labeling as “sale” discounts on items that allegedly were not really cheaper.

Most consumers have been enticed to buy merchandise that was marketed as being “on sale” at a proffered discount that seemed to good to pass up, Reinhardt said.

Retailers know this and have an incentive to lie to customers claiming an original price that is much higher, he said.

That practice is illegal in California.

Antonio Hinojos sued Kohl’s alleging he bought merchandise based on ads that misled him by an allegedly fictitious “original” prices.  He argued he would not have purchased the items otherwise.  The question for the panel was whether he “lost money or property” and thus had standing to sue Kohl’s for deceptive advertising.

Kohl’s argued he did not lose anything because he bought merchandise he wanted at the price that was advertised, even if it wasn’t a “sale” price.

Reinhardt said he did, based on past precedent in the California Supreme Court.

“Misinformation about a product’s ‘normal’ price, is… significant to many consumers in the same way as a false product label would be,” he wrote.  “It is also why the California legislature has prohibited them from doing so,” he said.

‘In sum, price advertisements matter,” Reinhardt concluded.

Bait and Switch?

He was also none to happy that Kohl’s first removed the case from state court to federal court.  But when oral arguments went badly for Kohl’s, the company applied a month later to have the appeals court certify the legal question to the California Supreme Court, in effect, sending to back to state court, but to the top court for the first time.

“Only after (correctly) perceiving at oral argument that we were not inclined to rule in its favor on the merits did Kohl’s file its motion for certification,” he said.  If Kohl’s wanted to suggest certification to the state’s high court it should have done it prior to oral argument, Reinhardt said.

Case:  Hinojos v. Kohl’s Corp., No. 11-55793

The antitrust suit joins claims filed in October in the Northern District of California against the same manufacturers on behalf of consumers by the Seattle-based Hagens Berman law firm.

The cities’ antitrust lawsuit filed in San Francisco federal court accuses the Japanese and Korean firms of engaging in global price-fixing by setting, controlling or raising the prices for the batteries in the $16 billion annual Lithium Ion battery market.  The firms named include: LG Chem, Panasonic Corp., Sanyo Electric Co., Sony Energy Devices Corp., Samsung SDI Co., Hitachi and Maxell Co.  The suit also names the American subsidiaries of the same companies and filed by the cities’ lawyers, Renne Sloan Hotzman Sakai.

The Palo Alto suit states the Department of Justice Antitrust Division is conducting a criminal investigation of alleged anticompetitive conduct in the Lithium Ion battery market.

It also notes that executives from some of the same companies have pled guilty to price-fixing in the liquid crystal display (LCD) market and DRAM memory chip market, both used in computers, laptops and other devices.

The suit alleges that beginning in 2001 the Japanese firms, Sony, Panasonic and Hitachi were losing revenue on their Lithium Ion rechargeable battery business due to steep price declines and loss of market share to Korean defendants, Samsung and LG Chem.

By the end of that year, “the Japanese defendants entered into an illegal conspiracy with the Korean defendants to stop the price decline in Lithium Ion Rechargeable batteries and stabilize prices before they reached a competitive level,” the suit alleges.  The price drop stopped abruptly in January 2002 and stabilized until the global economic crisis in 2008, according to the lawsuit.

The cities propose a class of indirect purchasers of the batteries, through purchases of laptops, cell phones, notebooks and other portable computers.

Case:  City of Palo Alto v. LG Chem, Ltd.  No. C13-2242MEJ

It took an 11-month battle by antitrust lawyers to gain the $1.1 billion in 10 separate all-cash settlements of price-fixing claims against makers of liquid crystal displays (LCDs), used in laptop computers, TVs and computer monitors.

But once the deals were inked for consumers, then the battling really started for the fees.  It is also shining a light on the murky world of class action lawsuit financing.

Illston allocated $47 million in fees to Alioto and his firm, as co-lead counsel for the consumer class, known as in-direct purchasers of LCDs.

Delaware-based LFG National Capital has accused Alioto of failing to repay an alleged $18.3 million loan from LFG affiliate, LawFinance Group, to help finance the long-running antitrust case. The balance is now up to $28.2 million, according to LFG in a federal lawsuit.

LFG filed a breach of contract suit last month alleging it is owed the $28 million as part of a 2004 loan deal.

In March, LFG asked Illston to redirect $28 million to it, to resolve the lien.  She refused and that’s when LFG responded with the lawsuit against Alioto.

Alioto denies he is indebted to LFG and, anyway, it’s between his firm and LFG.  The issue is not before the court, according to Alioto.

Alioto asked Illston to amend her order putting the funds in escrow and instead release them to him and his firm.

Alioto argued “no good reason exists by which to further withhold $28.2 million.”

“The court disagrees,” was Illston’s response Monday.

She said Alioto misconstrued her earlier order, casting it as a finding that LFG did not have a valid lien.  On the contrary, she noted LFG had alternatives to permit the court to enforce a judgment lien or adjudicate the dispute, but she needed more information.

Subsequently, LFG filed its suit against Alioto.

“Thus, this dispute is currently active and pending before this court,” she said.  “Accordingly, good reason exists to preserve the disputed amount of $28.2 million in the separate escrow account,” she said.

And there it will stay, for now.

Case:  In re: TFT-LCD Antitrust Litigation, No. M07-1827SL

Alioto Attorney Fee Filing

McShane, 52, has served on Oregons death penalty panel since 2003, presiding over 25 capital cases.  Prior to his appointment to the state bench in 2001 he worked as a state public defender in Portland.

President Barack Obama nominated McShane in September 2012 but he did not receive a confirmation vote before the November election.  He was renominated on Jan. 4, 2013.

McShane federal court district.

Durig his confirmation hearings, McShane responded to written questions by Sen. Chuck Grassley, R-Iowa, rejecting a news account that portrayed him as opposed to mandatory minimum sentences.  He said the article centered on the growing number of women convicted of property and drug offenses in Oregon.  Based on McShane’s sentencing record, the reporter “asked if I was advocating for mandatory minimum sentences for property crimes and I told her that I was not.  I told her that I was satisfied with our recent, voter-passed initiative that set higher presumptive prison terms for property offenders, but allowed the court some discretion in imposing a departure.”

He said he regretted that the reporter attributed a much broader statement of opposition to him, according to the Senate questionnaire.

The Portland-based Fourth Judicial District in Multnomah County Circuit Court is the largest in the state.  McShane presided over jury and bench trials during his tenure in state court.  He specialized in complex civil litigation, including class action suits, medical negligence, contracts and general cases.

McShane received his law degree from Northwester School of Law, Lewis and ClarkCollege in 1988.  His undergraduate degree was from GonzagaUniversity in 1983.

He currently teaches trial advocacy and criminal practice at Lewis and ClarkLawSchool.

Photo: Willamette Weekly

The decision is a major setback for the organic food industry and opponents of genetically-modified foods.

Roundup, like the neutron bomb that killed people but left buildings standing, the Roundup-ready alfalfa remains standing when all the weeds around it die when sprayed with Roundup.

The Center for Food Safety and other groups had asked the appeals court to overturn the Dept. of Agriculture decision to deregulate alfalfa that was genetically altered.  The groups fear it will cross pollinate with naturally grown alfalfa and alter the genetic structure of alfalfa.

But Judge Mary Schroeder said the Plant Protection Act does not regulate the type of harms that the groups complained of and therefore the government correctly held that the genetically modified alfalfa is not a plant pest.

“We affirm, because the statute does not regulate the types of harms the plaintiffs complain of,” Schroeder said.

Farmers don’t generally apply the herbicide roundup to alfalfa fields because it would not only kill the weeds but also the alfalfa crop.  The company engineered a plant that would withstand Roundup, opening a new market for the herbicide.

Schroeder acknowledged the concern of environmentalists that transgenic contamination could harm the multi-billion organic food industry.

Traditionally, the Environmental Protection Agency regulates herbicide use and imposes labeling instructions.  It reevaluates an herbicide every 15 years.  Glyphosate, used in Roundup, was registered in 1974 and in 2004 the EPA approved its use after determining it did not cause any unreasonable environmental risks, according to Schroeder.

The EPA is currently in the process of re-registration and is expected to complete it in 2015, according to Schroeder.

The USDA has delayed approval of other Monsanto and Dow Chemical Co. herbicide-tolerant crops over concerns about the environmental effects of using 2,4-D and dicamba, which have not been used since the 1960s, according to a report by Bloomberg News.

Joining Schroeder were Judges Sidney Thomas and N. Randy Smith.

Case:  Center for Food Safety v. Vilsack, No. 12-15052

U.S. District Judge William Alsup ordered the bank to pay up after meeting with plaintiffs to establish a “detailed plan” for distribution of the funds.

The class action was brought by bank customers who discovered the bank used a bookkeeping device known as “high-to-low” posting on debit card accounts.  Rather than deducting from accounts as transactions were made, the bank posted the largest amounts first, thus draining an account more quickly.  Smaller transactions, which might have cleared earlier, resulted in multiple overdraft fees, according to Alsup.

What might have been a single overdraft was turned into as many as ten, he said.

Wells Fargo took the case to trial and after a two-week, non-jury trial, Alsup found the bank made misleading statements to customers as well as engaging false and deceptive advertising.

Wells Fargo appealed and a portion of the findings, in particular a fraud finding, were overturned as well as damages and the case sent back to Alsup.  The order Tuesday ordered the $203 million in restitution based on the appeals court holdings.

Wells Fargo was ordered to cease the high-to-low bookkeeping practice and instead use reinstate a posting system that posts debits as they come into the bank electronically.  In addition, the bank must advertise the new system to customers.

Wells Fargo objected arguing the class waived restitution and a study of damages used in the trial cannot be used to measure restitution now.

Alsup rejected the argument.  He set the $203 million payment is restitution for its unfair competition, Alsup said.

“Plaintiffs proved at trial – and our court of appeals affirmed – that Wells Fargo misled the class via affirmative misdirection that caused the class members to believe that their debits would be posted chronologically,” Alsup wrote.

“Because Wells Fargo misrepresented the posting order and overdraft charges to its customers, the appropriate form of restitution is to restore the unexpected charges to Wells Fargo’s customers,” he said.

Case: Walker v. Wells Fargo, No. 07-5923WHA

WellsfargoFEE.pdf

Orrick, 60, is the son of the late William H. Orrick, Jr., who served on the court from 1974-2003.  He was originally nominated in June 2012 but failed to receive a confirmation vote by the Senate last session over Republican grousing about his role overseeing the Justice Department’s Office of Immigration Litigation.

President Obama renominated him in 2013 after the new session of Congress began.

Orrick had worked on the hot-button litigation challenging Arizona’s law allowing police to establish the citizenship of people they stop or arrest, known as SB1070.  In addition, Orrick supervised work on a challenge to immigration laws in Alabama, South Carolina and Utah during 2010 and 2011.

This drew criticism from Sen. Chuck Grassley, R-Iowa.

But Orrick was ultimately voted out of the Judiciary Committee and finally won confirmation by the full Senate.

Orrick is currently special counsel at the Coblentz, Patch, Duffy & Bass law firm and has been in private practice for 25 years.  He served in the Justice Department from 2009 to 2012.

He is a native of San Francisco and received his law degree from Boston College Law School in 1979 and his undergraduate degree from Yale University.

Orrick’s late father also worked in a Democrat administration, servicing the Justice Department’s Antitrust Division under President John Kennedy.  Despite his long Democratic pedigree, he was nominated to the bench by President Richard Nixon, shortly before Nixon resigned in the wake of the Watergate scandal.

His father may be best remembered for his oversight of the desegregation of the San Francisco public schools.