Judicial review claim generator

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Defending a claim for judicial review

An act by the DOC or the parole board, the claim was not cognizable under Crim. P. 35(a)). Thus, the postconviction court appropriately denied this claim as not within the purview of the rule. III. ¶8 Failure to Provide a Fair and Impartial Hearing Melnick next asserts that his right to a fair and impartial parole revocation hearing was violated. He claims the hearing officer was biased because the written “Notice of Colorado Parole Board Action” form that memorialized the decision to revoke his parole was partially completed electronically and then printed five days before the revocation hearing. Thus, Melnick asserts that the hearing officer had prejudged the matter. Melnick also argues that 3 he was prevented from introducing evidence at the hearing and that potentially exculpatory evidence had been destroyed. ¶9 Initially, we note that unlike Melnick’s first assertion, this challenge is aimed at the lawfulness of the revocation of his parole. This claim is explicitly governed by Rule 35(c)(2)(VII). See White v. Denver Dist. Court, 766 P.2d 632, 636 (Colo. 1988) (stating that a defendant’s assertions that his constitutional rights were violated at a parole revocation hearing are cognizable under Crim. P. 35). Therefore, we reject the People’s argument that this claim is a challenge to an action of the parole board and, thus, not cognizable under Crim. P. 35. ¶ 10 We review de novo a trial court’s denial of a Rule 35(c) motion without a hearing. People v. Gardner, 250 P.3d 1262, 1266 (Colo. App. 2010). ¶ 11 We conclude that the district court erroneously applied the language of Crim. P. 35(c). The court concluded that Melnick’s appeal to the parole board had the same preclusive effect that a direct appeal of a conviction would have. See Crim. P. 35(c)(3)(VI), (VII) (requiring the postconviction court to deny claims that were raised, or that could have been raised, in a prior appeal). However, 4 the parole statute explicitly provides for judicial review of parole revocation pursuant to section 18-1-410(1)(h), C.R.S. 2018. § 17-2201(4)(b). If an appeal to the parole board were to preclude the pursuit of judicial review of the very same parole revocation procedures that were the subject of the appeal, section 17-2201(4)(b)’s promise of judicial review would be illusory. We will not interpret a rule or statute in such a way as to make other statutory language superfluous. People v. Burnett, 2019 CO 2, ¶ Judicial review, as is required by, e.g., Abbott Laboratories v. Gardner, 387 U.S. 136, 148-149. The regulations impose no penalties for violating any newly imposed restriction, but limit access to a benefit created by the Reform Act but not automatically bestowed on eligible aliens. Rather, the Act requires each alien desiring the benefit to take further affirmative steps, and to satisfy criteria beyond those addressed by the disputed regulations. It delegates to the INS the task of determining on a case-by-case basis whether each applicant has met all of the Act's conditions, not merely those interpreted by the regulations in question. In these circumstances, a class member's claim would ripen only once he took the affirmative steps that he could take before the INS blocked his path by applying a regulation to him. Ordinarily, that barrier would appear when the INS formally denied the alien's application on the ground that a regulation rendered him ineligible for legalization. But a plaintiff who sought to rely on such a denial to satisfy the ripeness requirement would then still find himself at least temporarily barred by the Reform Act's exclusive review provisions, since he would be seeking "judicial review of a determination respecting an application" under § 1255a(f)(1). Pp. 56-61. (c) Nevertheless, the INS's "front-desking" policy — which directs employees to reject applications at a Legalization Office's front desk if the applicant is statutorily ineligible for adjustment of status — may well have left some of the plaintiffs with ripe claims that are outside the scope of § 1255a(f)(1). A front-desked class member whose application was rejected because one of the regulations at issue rendered him ineligible for legalization would have felt the regulation's effects in a particularly concrete manner, for his application would have been blocked then and there; his challenge to the regulation should not fail for lack of ripeness. Front-desking would also have the untoward consequence for jurisdictional purposes of effectively excluding such an applicant from access even to the Reform Act's limited administrative and judicial review procedures, since he would have no formal denial to appeal administratively nor any opportunity to build an administrative record on which judicial review might be based. Absent clear and convincing evidence of a congressional intent to preclude judicial review entirely, it must be presumed that front-desked applicants may obtain district court review of the regulations in these circumstances. See McNary, supra, at 496-497.

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87 Mass. App. Ct. 503 December 10, 2014 - June 12, 2015Court Below: Superior Court, Middlesex CountyPresent: Kantrowitz, Green, & Sullivan, JJ. Arbitration, Judicial review, Award, Authority of arbitrator. Massachusetts Wage Act.There was no error in the denial of a motion to vacate an arbitration award concerningthe plaintiffs claim for unpaid wages under the Wage Act, G. L.c. 149, §§ 148, 150, where, given that the arbitration clause in the plaintiff'semployment contract (which expressly referenced statutory claims) wassufficiently broad to encompass both contractual and statutory claims, theplaintiff's only contention that the arbitrator exceeded his power was insubstance a claim that the arbitrator committed an error of law, and was notsubject to judicial review [505-507]; moreover, this court declined to considerthe plaintiff's contention that the limitation on judicial review ofarbitration awards under commercial agreements concerning State statutoryclaims is contrary to public policy, given that the Federal Arbitration Act,governing private agreements to arbitrate in contracts in interstate commerce,supersedes State law that conflicts with its terms [507-509].CIVIL ACTION commenced in the Superior Court Department on February 17, 2012. A motion to vacate an arbitration award was heard by Douglas H. Wilkins, J., and judgment was entered by him. David B. Summer for the plaintiff. Michelle Y. Bush for the defendant. SULLIVAN, J. The plaintiff, Daniel Conway (Conway), appeals from the denial of his motion to vacate an arbitration award, see G. L. c. 251, § 12, concerning a claim for unpaid wages under The Wage Act. See G. L. c. 149, §§ 148, 150 as amended by St. 2009. We affirm, and in so doing, reiterate the standard of review applicable to complaints to vacate a commercial arbitration award. Background. To place our discussion in context, we set forth the facts found by and rationale of the arbitrator. Conway was employed by the defendant, CLC Bio, LLC (CLC), a bioinformatics company, from October, 2007, until his termination in Page 504 January, 2012. Conway's employment at CLC was governed by an employment contract that provided for his base salary and potential bonus payments or commissions. [Note 1] The contract also contained an arbitration clause that mandated arbitration of "any dispute or controversy arising out of or relating in any way to [Conway's] employment with and/ or termination from [CLC]." [Note 2] Conway's employment at CLC was terminated on January 12, 2012. On January 18, 2012, CLC sent Conway a letter offering to pay severance and outstanding bonus payments to Conway in exchange for a release of claims. Conway failed to respond, but CLC tendered $30,325 in bonus payments to Conway on March 1, 2012, payments which included a $10,990 Individual Sales Bonus (ISB). In the interim, on February 17, 2012, Conway filed a complaint against CLC in a Superior Court, alleging breach of contract, breach of the covenant of good faith and fair dealing, and violations of the Wage Act stemming from claims for severance pay, unpaid vacation time, and future and late-paid commissions. CLC moved to stay the proceedings and compel arbitration pursuant. Download Judicial Review Claim Generator latest version for Windows free. Judicial Review Claim Generator latest update: Ma Download Judicial Review Claim Generator latest version for Windows free. Judicial Review Claim Generator latest update: Ma

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[arbitration agreement that, among other things, “impos[ed] upon [the employee] the obligation to pay [the employer’s] attorney fees if [the employer] prevails in the proceeding, without granting her the right to recoup her own attorney fees if she prevails” was unconscionable]; Samaniego v. Empire Today LLC (2012) 205 Cal.App.4th 1138, 1147 [agreement required employees to pay employers’ attorneys’ fees with no reciprocal obligation on employer].)prohibit the bringing of certain types of claims, like a claim under the Private Attorney General Act. (Subcontracting Concepts (CT), LLC, 34 Cal.App.5th at 213-214, quoting Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 383.) shorten the statute of limitations on any or all of the employee’s claims. (Samaniego, 205 Cal.App.4th at 1147; Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267; Stirlen v. Supercuts, Inc. (1997) 51 Cal.App.4th 1519.)Armendariz factor #4:Requiring a written arbitration award and adequate judicial reviewThe FAA and the California Arbitration Act (“CAA”) each provides severely limited grounds for vacating, modifying or correcting an arbitrator’s award, and legal error is not one of them. (9 U.S.C.A. §§ 10(a), 11(a); Code Civ. Proc., §§ 1286.2(a), 1286.6.)A reasoned award is required in an arbitration adjudicating employment claims and some enhanced judicial review of such an award may be required. (Armendariz, 24 Cal.4th at 106-107.) The Supreme Court recognized that, even though judicial scrutiny of arbitration awards was limited, it was at least “sufficient to ensure that arbitrators comply with the requirements of the statute” at issue. Thus, the Supreme Court held that a pre-dispute arbitration agreement purporting to cover FEHA claims must provide for the arbitrator to issue a written arbitration decision that will reveal, however briefly, the essential findings and conclusions on which the award is based.” (Ibid.) The question of what constitutes an adequate judicial review was not present in Armendariz, so the Supreme Court declined at that time to set forth the proper standard. (Ibid.)In 2010, the California Supreme Court did have such occasion. In Pearson Dental Supplies, Inc. v. Superior Court (2010) 48 Cal.4th 665, the Supreme Court considered the question of what is the proper standard of judicial review of arbitration awards arising from mandatory-arbitration employment agreements that arbitrate claims asserting the employee’s unwaivable statutory rights. The Court rejected the notion that the reasoned written opinion was, itself, enough, confirming the requirement of a reasoned written opinion was a necessary “precondition to adequate judicial review of the award so as to enable employees subject to mandatory arbitration agreements to vindicate their [statutory] rights.” Ultimately, the Supreme Court held that an arbitration award based on certain types of legal errors could be vacated. (Id. at 680.) In that case, the legal error was misapplication of the statute Superadio L.P., supra at 334. Conway's assertion that the arbitrator exceeded her authority is misdirected. An arbitrator exceeds her authority if she awards relief beyond the scope of the arbitration agreement, beyond that to which the parties bound themselves, or enters an award prohibited by law. Superadio, supra. "The fact that an arbitrator [may have] committed an error of law does not alone mean that [s]he has exceeded [her] authority." City of Boston v. Professional Staff Assn., 61 Mass. App. Ct. 105 , 112 (2004) (quotation omitted). Conway's employment contract expressly provided the arbitrator with the authority to arbitrate any "dispute or controversy arising out of or relating in any way to the Employee's employment with and/ or termination from the Company." See n.2. This arbitration clause, which expressly referenced statutory claims, is sufficiently broad to encompass both contractual and statutory claims. See Joulé, Inc. v. Simmons, 459 Mass. 88 (2011); Dixon v. Perry & Slesnick, P.C., 75 Mass. App. Ct. 271 , 278 (2009); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991) (Gilmer). [Note 4], [Note 5] Contrast Warfield v. Beth Israel Deaconess Med. Ctr., Inc., 454 Mass. 390 (2009). Conway's "only contention that the arbitrator exceeded his power is in substance a claim that the arbitrator committed an error of law," and is not subject Page 507 to judicial review. Dane, supra. [Note 6] Conway relies on cases decided under the statutory arbitration provisions of the Education Reform Act of 1993, G. L. c. 71, § 42 (Reform Act), in support of his contention that the court is nonetheless authorized to review the award for errors of law based on a violation of statute. Arbitration cases arising under § 42 of the Reform Act involving terminated teachers with professional teacher status are inapposite in this respect. Arbitration of these cases under § 42 of the Reform Act is a creature of statute. In these cases, both the scope of statutory arbitration and the arbitrator's authority are delimited by the Reform Act. As the Supreme Judicial Court has recently explained, "judicial review of an arbitrator's interpretation of [an] authorizing statute . . . is 'broader and less deferential' than in cases of judicial review of an arbitrator's decision arising from an interpretation of a private agreement." School Comm. of Lexington v. Zagaeski, 469 Mass. 104 , 112 (2014), quoting from Atwater v. Commissioner of Educ., 460 Mass. 844 , 856-857 (2011). In the case of statutory arbitration under § 42 of the Reform Act, where the source and scope of an arbitrator's authority is defined by statute, a court is "better position[ed]" to interpret the scope of the arbitrator's authority granted by the authorizing statute and is thus empowered to vacate an arbitration award if the arbitrator has exceeded his statutory authority. School Dist. of Beverly v. Geller, 435 Mass. 223 , 229-230 (2001) (Cordy, J., concurring) (Geller). [Note 7] By contrast, in cases where the source and scope of the arbitrator's authority emanate from a commercial agreement

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Supra, (describing the CSS court's relief for such aliens). In its appeals in both CSS and LULAC, the INS raised two challenges to the orders of the respective District Courts. First, it argued that the restrictive judicial review provisions of the Reform Act barred district court jurisdiction over the claim in each case. It contended, second, that each District Court erred in ordering an extension of the 12-month application period, the 12-month limit being, it maintained, a substantive statutory restriction on relief beyond the power of a court to alter. The Ninth Circuit eventually consolidated the two appeals. After holding them pending this Court's disposition of McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991), it rendered a decision in February, 1992, affirming the District Courts. Catholic Social Services, Inc. v. Thornburgh, 956 F.2d 914 (1992). We were prompted to grant certiorari, 505 U.S. 1203 (1992), by the importance of the issues, and by a conflict between Circuits on the jurisdictional issue, see Ayuda, Inc. v. Thornburgh, 292 U.S.App.D.C. 150, 156-162, 948 F.2d 742, 748-754 (1991) (holding that the Reform Act precluded district court jurisdiction over a claim that INS regulations were inconsistent with the Act), cert. pending, No. 91-1924. We now vacate and remand. While the appeals were pending in the Ninth Circuit, the orders of the District Courts were each subject to a stay order. Under the terms of each stay order, the INS was obliged to grant a stay of deportation and temporary work authorization to any class member whose application made a prima facie showing of eligibility for legalization, but was not obliged to process the applications. See App. to Pet. for Cert. 63a-64a. Because the Court of Appeals has stayed its mandate pending this Court's disposition of the case, see Nos. 88-15046, 88-15127, 88-15128, 88-6447 (CA9, May 1, 1992) (staying the mandate); Nos. 88-15046, 88-15127, 88-15128, 886447 (CA9, Sept. 17, 1992) (denying the INS's motion to dissolve the stay and issue its mandate), the INS is still operating under these stay orders. By March, 1992, it had received some 300,000 applications for temporary resident status under the stay orders. See App. to Pet. for Cert. 83a. II The Reform Act not only sets the qualifications for obtaining temporary resident status, but also provides an exclusive scheme for administrative and judicial review of "determination[s] respecting . . . application[s] for adjustment of status" under the

N461 - Judicial Review - Claim form

Parties' dispute), and as the definition then includes those who "learned of their ineligibility" by being front-desked, since it would be odd to exclude those who learned of their ineligibility in the most direct way possible from this description. As we note below, however, see n. 29, infra, we believe that the word "applied" as used in § 1255a(a)(1)(A) has a broader meaning than that given to the word in the LULAC class definition. As respondents argue, see Brief for Respondents 17, n. 23, a class member whose application was "front-desked" would have felt the effects of the "advance parole" or "facially valid document" regulation in a particularly concrete manner, for his application for legalization would have been blocked then and there; his challenge to the regulation should not fail for lack of ripeness. Front-desking would also have a further, and untoward, consequence for jurisdictional purposes, for it would effectively exclude an applicant from access even to the limited administrative and judicial review procedures established by the Reform Act. He would have no formal denial to appeal to the Associate Commissioner for Examinations, nor would he have an opportunity to build an administrative record on which judicial review might be based. Hence, to construe § 1255a(f)(1) to bar district court jurisdiction over his challenge, we would have to impute to Congress an intent to preclude judicial review of the legality of INS action entirely under those circumstances. As we stated recently in McNary, however, there is a "well-settled presumption favoring interpretations of statutes that allow judicial review of administrative action," 498 U.S., at 496; and we will accordingly find an intent to preclude such review only if presented with "`clear and convincing evidence,'" Abbott Laboratories, 387 U.S., at 141 (quoting Rusk v. Cort, 369 U.S. 367, 379-380 (1962)). See generally Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670-673 (1986) (discussing the presumption in favor of judicial review). The Reform Act limits judicial review to "the administrative record established at the time of the review by the appellate authority." 8 U.S.C. § 1255a(f)(4)(B). In addition, an INS regulation provides that a legalization application may not "be filed or reopened before an immigration judge or the Board of Immigration Appeals during exclusion or deportation proceedings." 8 C.F.R. § 103.3(a)(3)(iii) (1992). There is no such clear and convincing evidence in the statute before us. Although the phrase "a determination respecting. Download Judicial Review Claim Generator latest version for Windows free. Judicial Review Claim Generator latest update: Ma

N461: Judicial Review Claim form

Supervision Probation (SOISP) on the sexual assault. ¶3 In 2009, after finding that Melnick violated the conditions of his probation, the trial court revoked Melnick’s SOISP sentence and resentenced him to three years to life in the custody of the Department of Corrections (DOC). A division of this court affirmed the order revoking the SOISP sentence and the imposition of the DOC sentence. See People v. Melnick, (Colo. App. No. 09CA2713, Dec. 15, 2011) (not published pursuant to C.A.R. 35(f)). ¶4 At some point, Melnick was granted parole. In November 2017, his parole officer filed a complaint to revoke his parole based on violations of its conditions. After a hearing, Melnick’s parole was 1 revoked, and he was remanded to the custody of the DOC for 540 days. The Appellate Board of the Colorado State Board of Parole (parole board) denied his appeal of that decision. ¶5 Melnick then filed a Crim. P. 35(c) motion, including several amendments, in which he asserted numerous claims relating to his parole revocation. The postconviction court denied the motion without a hearing, finding that the challenges Melnick raised in his appeal to the parole board were not properly brought pursuant to Crim. P. 35(c). The court further found that Melnick’s remaining claims lacked a factual and legal basis. Melnick appeals the denial of his Rule 35(c) motion. II. ¶6 Failure to Timely Consider Parole After Revocation Melnick first contends that the parole board improperly refused to consider him for parole within 180 days after his parole was revoked, as required by section 17-2-201(14), C.R.S. 2018. We note that his opening brief is missing a page that, it would appear, contains the argument relevant to this issue. ¶7 Nevertheless, Melnick’s contention is a challenge to the parole board’s decision not to grant him parole — or, more specifically, not to grant him a parole hearing. Nothing in the text of Rule 35 2 encompasses this type of claim, and Colorado appellate courts have consistently declined to review such claims under that rule. See In re Question Concerning State Judicial Review of Parole Denial, 199 Colo. 463, 464-65, 610 P.2d 1340, 1341 (1980) (holding that “a person denied parole can seek judicial review only as provided by C.R.C.P. 106(a)(2)”); People v. Huerta, 87 P.3d 266, 267 (Colo. App. 2004) (holding that because the defendant’s challenge was not to the legality of his sentence, but rather to