KAVANAUGH, Circuit Judge: This case raises significant questions about the scope of the Executive's authority to disregard federal statutes. The case arises out of a longstanding dispute about nuclear waste storage at Yucca Mountain in Nevada. The underlying policy debate is not our concern. The policy is for Congress and the President to establish as they see fit in enacting statutes, and for the President and subordinate executive agencies (as well as relevant independent agencies such as...
EDWARDS, Senior Circuit Judge: On November 9, 2009, appellant Ernest Bernard Moore pled guilty to three counts of fraud. Count One ("Student Aid Fraud") charged Moore with knowingly and willfully executing a scheme to obtain student aid funds by fraud, false statement, and forgery in violation of 20 U.S.C. 1097(a). Count Two ("Bank Fraud") charged Moore with knowingly executing a scheme to defraud certain banks by means of fraud and fraudulent pretenses, representations, and promises in...
WILLIAMS, Senior Circuit Judge: Petitioner Ampersand Publishing, LLC, publishes a daily newspaper, the Santa Barbara News-Press. In 2006 a long-smoldering dispute between Ampersand and newsroom staff, regarding control of the News-Press's content, burst into flames. We are asked to review the National Labor Relations Board's conclusion that Ampersand committed various unfair labor practices in the course of the fight. We hold that the National Labor Relations Act did not protect the bulk of...
BROWN, Circuit Judge: In the late 1990s, Jamal Kifafi, an erstwhile Hilton employee and participant in Hilton's retirement plan ("Plan"), noticed a problem with the benefits calculation on his statement of benefits. Concluding the Plan violated the Employee Retirement Income Security Act ("ERISA") in a number of ways, he sued. Now, almost fifteen years and twelve district court opinions later, we join the fray and force the parties a little closer to final resolution of their dispute. The...
KAVANAUGH, Circuit Judge: Before the Civil War, members of the Cherokee Nation had slaves. Those slaves were freed in 1866 pursuant to a treaty negotiated between the United States and the Cherokee Nation. The Treaty guaranteed the former Cherokee slaves and their descendants — known as the Freedmen — "all the rights of native Cherokees" in perpetuity. See Treaty with the Cherokee, art. 9, July 19, 1866, 14 Stat. 799. Those rights included the right to tribal membership and the right to vote...
PER CURIAM: Malla Pollack, a lawyer and resident of Kentucky, would like to work for the Administrative Office of the United States Courts in Washington, D.C. The Administrative Office rejected her application because she did not live or work in the Washington metropolitan area. Thereafter, she brought suit against officials of the Administrative Office, solely in their official capacities, alleging that they rejected her job application in violation of her constitutional rights. The district...
RANDOLPH, Senior Circuit Judge: This is an appeal from the judgment of the district court, Urbina, J., denying Khairulla Khairkhwa's petition for a writ of habeas corpus. Khairkhwa is a detainee at Guantanamo Bay Naval Base. Khairkhwa v. Obama, 793 F.Supp.2d 1 (D.D.C.2011). The Authorization for Use of Military Force (AUMF), Pub. L. No. 107-40, 115 Stat. 224 (2001), authorized the President to detain individuals who were "part of" al-Qaeda, the Taliban, or associated forces engaged in...
KAVANAUGH, Circuit Judge: Under U.S. law, employers are required to file a Form W-2 for every paid employee. The Form W-2 lists the identities of the employer and the employee, the amount that an employee has been paid, and the taxes that have been withheld by the employer. The Social Security Administration processes Forms W-2 for the IRS. On occasion, the employee's name and Social Security number as listed on a Form W-2 do not match the SSA's database. When that happens to a sufficient...
TATEL, Circuit Judge: Once again, we confront the issue of how much information a company must provide to a union during collective bargaining. Here, the company sought substantial wage concessions on the basis of competitive pressures it claimed to be facing. Seeking to verify this contention, the union requested information about the company's prices and customers. The company denied the union's request and then locked out the bargaining unit employees. Relying on a line of decisions...
KAREN LeCRAFT HENDERSON, Circuit Judge: Appellant Andrew Warren (Warren) appeals his 65-month sentence of imprisonment, arguing that it is both procedurally and substantively defective. Among other arguments, Warren contends that his Post-Traumatic Stress Disorder (PTSD), depression and substance abuse issues made it substantively unreasonable to sentence him to more than a brief period of incarceration, followed by treatment at a private facility. We disagree and affirm the district court. I....
SENTELLE, Chief Judge: Erie Brush & Manufacturing Corporation ("Erie") petitions for review of a National Labor Relations Board ("NLRB" or "the Board") decision finding that Erie violated section 8(a)(5) and (1) of the National Labor Relations Act ("the Act"), 29 U.S.C. 158(a)(1), (5). See Erie Brush & Manufacturing Corp. and Service Employees International Union, Local 1, 357 NLRB No. 46, 2011 WL 3860605 (Aug. 9, 2011) ("Board Decision"). NLRB cross-petitions for enforcement of its...
ROGERS, Circuit Judge: SFO Good-Nite Inn, LLC, withdrew recognition of Unite Here! Local 2 based on antiunion petitions that the National Labor Relations Board found were impermissibly tainted by Good-Nite's unlawful assistance to the decertification effort in violation of sections 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. 158(a)(1), (5). Good-Nite petitions for review on the principal ground that the Board applied the wrong line of its precedent, Hearst Corp., 281 N.L....
TATEL, Circuit Judge: Convicted of distribution and possession with intent to distribute crack cocaine, appellant was sentenced before Congress passed the Fair Sentencing Act of 2010 (FSA), which reduced the disparity between the treatment of crack and powder cocaine. Appellant now claims that the FSA applies retroactively to him and that the district court erred in denying his motion to postpone sentencing until after passage of the Act. He also challenges the district court's decision to...
ROGERS, Circuit Judge: Gregory Fair pled guilty to copyright infringement, in violation of 17 U.S.C. 506(a) and 18 U.S.C. 2319, and mail fraud, in violation of 18 U.S.C. 1341. Pursuant to the Mandatory Victim Restitution Act ("MVRA"), 18 U.S.C. 3663A, the district court ordered him to pay restitution to Adobe Systems, Inc. in an amount equivalent to the revenue he received from his sales of the pirated products. On appeal he contends that the district court abused its discretion...
ROGERS, Circuit Judge: Upon failing on direct appeal to obtain reversal of his conviction by a jury of one count of conspiracy to distribute five kilograms or more of cocaine and aiding and abetting, Byron L. McDade filed a motion challenging his sentence pursuant to 28 U.S.C. 2255. The motion was filed within the one-year limitation of 2255(f), but did not include his claim of ineffective assistance of trial counsel. The government therefore maintains this later-filed claim is not...
SILBERMAN, Senior Circuit Judge: Petitioner, San Miguel Hospital Corp., essentially is challenging the Board's determination that a "wall to wall" bargaining unit of the Hospital's professional and non-professional employees is appropriate. Although Petitioner unleashes a blizzard of separate arguments, both substantive and procedural, only one — relating to the burden of proof — even gives us pause. We deny the petitions and grant the Board's cross-applications for enforcement. I. The...
WILLIAMS, Senior Circuit Judge: Appellant Gregory Terrell pleaded guilty to unlawful possession with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. 841(a)(1) and (b)(1)(B)(iii). On April 24, 2007, the district court sentenced him to 210 months of imprisonment, five years of supervised release, and a $100 special assessment. Terrell challenges that sentence on two primary grounds. First, he argues that it violates the ex post facto clause of the Constitution...
KAVANAUGH, Circuit Judge: The United States is at war against al Qaeda, an international terrorist organization. Al Qaeda's stated goals are, among other things, to drive the United States from posts in the Middle East, to devastate the State of Israel, and to help establish radical Islamic control over the Greater Middle East. Al Qaeda uses terror to advance its broad objectives. Al Qaeda terrorists do not wear uniforms, and they target American civilians and members of the U.S. Military, as...
ROGERS, Circuit Judge: Upon being retried after a mistrial in his criminal case, appellant had requested that two stipulations entered into during his first trial not be enforced. The issue on appeal is whether the district court abused its discretion in denying that request. The stipulations related solely to whether certain phone records were authentic documents and whether they would be admitted into evidence. By their terms the two stipulations referred to an admission at "this trial" but...
GRIFFITH, Circuit Judge. Khan Mohammed challenges his conviction and life sentence for narcoterrorism. He also claims that his trial counsel provided ineffective assistance. We affirm Mohammed's conviction and sentence but remand for the district court to hold an evidentiary hearing on the claim of ineffective assistance. I While living in Pakistan in 2006, a man named Jaweed, who hailed from the village of Geratak in Afghanistan's Nangarhar province, fell in with Abdul Rahman, a former...
