provides summaries of decisions of the Ninth Circuit Court of Appeals, including "unpublished" decisions. 
Copies of decisions, briefs, and other documents in the public record are available through Judicial Update.
November 1 - 30, 2006                                                                                                                Vol.XXI11, No. 11
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PUBLISHABLE OPINIONS

1) BANKRUPTCY / ATTORNEYS' FEES: In re Eliapo, 03-16814 (9th Cir. Nov. 13, 2006). At issue here were the standards and procedures for awarding attorneys' fees in connection with Chapter 13 bankruptcy petitions. The Bankruptcy Court for the Northern District of California has established three means by which a debtor's attorney may obtain a fee award in a Chapter 13 case. The attorney may submit a fee application under "no-look" guidelines that establish presumptive fees for a "basic case" and specified variations thereon, or submit a detailed fee application based on the hours actually spent on the case, or first submit a "no-look" application and later submit a detailed application seeking additional fees based on the hours actually spent. Here, the appellant initially submitted a fee application under the "no-look" guidelines, but later sought additional fees bases on the hours actually spent. In ruling on the second application, the bankruptcy court allowed a fee for a "basic case" based on the "no-look" guidelines and some additional fees according to the hours actually spent, but refused to allow the full amount of fees requested. The BAP affirmed. The USCA affirmed in part, reversed in part, and remanded. It held that the bankruptcy court's use of the presumptive "no-look" guidelines fees for routine Chapter 13 cases was consistent with 11 USC Sec. 330, that the court's criterion for awarding additional fees beyond the presumptive "no-look" fees was proper under Sec. 330, and that the court's failure to hold a hearing on the application for additional fees violated Bankruptcy Rule 2017(b). It remanded to allow the bankruptcy court to hold a hearing on the appellant's application for additional fees, noting that the court has substantial discretion to fashion an appropriate hearing procedure. Rymer, W. Fletcher (author), and Clifton, Circuit Judges. B. Boone of San Jose, CA, for the appellant; D. Derham-Burk of San Jose, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

2) DISQUALIFICATION OF COUNSEL / REMOVAL: Aguon-Schulte v. Guam Election Commission, 05-16067 (9th Cir. Nov. 28, 2006). This case involves an appeal from a district court's order denying a request to strike outside counsel and remanding the case to the Guam Superior Court for failure to join all defendants in the removal action. Generally, a district court's order denying a motion to disqualify counsel is not appealable under 28 USC Sec. 1291 prior to final judgment in the underlying litigation. Moreover, remand orders issued under 28 USC Sec. 1447(c) and invoking the grounds specified therein that removal was improvident and without juris-diction are usually immune from review under Sec. 1447(d). The USCA found provisional jurisdiction under 28 USC Sec. 1291 and jurisdiction to determine whether it has jurisdiction to hear the case. Because the district court's order was based on motions to strike and a remand order that are unreviewable, the USCA concluded that it lacked jurisdiction to review the case. B. Fletcher, Pregerson (author), and Canby, Circuit Judges. AAG R. Weinberg of Hagatna, Guam for the appellant; T. Christopher of Tamuning, Guam for the defendants-appellees; R. Jacob of Tamuning, Guam, for Governor Camacho.(Download the full text of this decision at www.ce9.uscourts.gov/)

3) ANIMAL WELFARE ACT: Animal Legal Defense Fund v. Veneman, 04-15788 (9th Cir. Nov. 22, 2006). Plaintiffs challenged the U.S. Dept. of Agriculture's decision not to adopt a Draft Policy that would have provided guidance to zoos, research facilities, and other regulated entitles regarding the psychological well-being of nonhuman primates in order to comply with the federal Animal Welfare Act. They challenged the decision not to adopt the Draft Policy under the Administrative Procedure Act ("APA") as arbitrary and capricious. The district court did not reach the merits of plaintiffs' suit as it found that the USDA's decision did not constitute reviewable final agency action. The USCA disagreed. It held that at least one plaintiffs had standing under Article III of the Constitution, and concluded that the district court had authority under the APA to review the USDA's decision not to adopt the Draft Policy. Dissenting, Judge Kozinski thought that in holding that the court can review the withdrawal of proposed regulations an agency had no duty to adopt, the majority overlooked the sea-change in administrative law wrought by Heckler v. Chaney, 470 US 821, 831-32 (1985), which held that the USCA has no authority to review an agency's discretionary decision not to act. He thought that the failure to appreciate the fundamental distinction between agency act