Articles Posted in US Court of Appeals for the Ninth Circuit

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Petitioner alleged that the Army terminated him and excluded him from his work site because he had made complaints that were protected under the Whistleblower Protection Act of 1989. The Ninth Circuit dismissed the petition for review of the Board's adverse decision, holding that the Army was the only proper respondent; petitioner received due process; and the Board's decision on the merits was supported by substantial evidence and was procedurally proper. Accordingly, the court denied in part and granted in part as to the petition for review of the Army's adverse decision, remanding for further proceedings. View "Johnen v. U.S. Merit Systems Protection Board" on Justia Law

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Plaintiff filed suit under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4311(a), arguing that when he returned from service in the U.S. Air Force, FedEx improperly paid him a $7,400 bonus instead of the $17,700 bonus he would have earned had he not served. The Ninth Circuit affirmed the district court's decision awarding plaintiff the higher signing bonus and attorney's fees. The panel held that arbitration was not required in this case; the district court properly used the reasonable certainty test to determine that plaintiff showed by a preponderance of the evidence that his military service was a "substantial or motivating factor" to cause an adverse employment action; the district court properly relied on the the escalator principle, which provides that a returning service member should not be removed from the progress of his career trajectory; the district court did not clearly err in finding that plaintiff was reasonably certain to have achieved the higher bonus status had he not left for his military service; the district court correctly concluded that plaintiff's bonus was, in part, a seniority-based benefit; and even if the signing bonus were not a seniority-based benefit, Section 4316 still would not bar plaintiff's claim. View "Huhmann v. Federal Express Corp." on Justia Law

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Ground Zero filed suit challenging the Navy's expansion of a TRIDENT nuclear submarine operating center pursuant to the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq. The Ninth Circuit held that the Navy violated NEPA's public disclosure requirement by not revealing that the Safety Board withheld approval of its plan for the construction of a second Explosives Handling Wharf (EHW-2), and by withholding the now-disclosed portions of the appendices to the environmental impact statement (EIS). However, such errors were harmless. In all other respects, the Navy satisfied NEPA's requirements. Therefore, the panel affirmed summary judgment for the Navy. The panel narrowly construed the district court's order restricting Ground Zero's use of portions of the record. Even with this reading, it was not clear that the district court's order comports with the First Amendment. Therefore, the court remanded for further proceedings. View "Ground Zero Center for Nonviolent Action v. US Department of the Navy" on Justia Law