1)  RICO:  Chaset v. Fleer/Skybox Intel., 00-56251 (9th Cir. Aug. 20, 2002).  Purchasers of trading cards did not suffer an injury in their business or property cognizable under the Racketeer Influenced and Corrupt Organizations Act when they did not receive a randomly placed limited edition "insert" card in a packaged set of randomly assorted cards;  lacking injury, the purchasers lacked standing. Leavy (author), T.G. Nelson, and W. Fletcher, Circuit Judges.  E. Issacson of San Diego, CA, for the plaintiffs;  M. Fineman of San Francisco, CA, and K. Goss and V. Goo of Los Angeles, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

2)  ANTITRUST / SOVEREIGN IMMUNITY:  Flamingo Industries (USA), Ltd. v. U.S. Postal Service, 01-15963 (9th Cir. Aug. 23, 2002).  The Postal Service is not protected by sovereign immunity from federal antitrust liability, as Congress withdrew sovereign immunity protection from the Postal Service when it gave it the status of a private corporation.  Lay, Thompson (author) and Tallman, Circuit Judges.  G. Eshoo of Redwood City, CA, for the plaintiffs;  AUSA P. Kenny of San Francisco, CA, for the defendant.(Download the full text of this decision at www.cc9.uscourts.gov/)

3)  SECURITIES:  McNabb v. SEC, 00-71528 (9th Cir. Aug. 12, 2002).  Under Sec. 3(a)(10) of the Securities and Exchange Act of 1934, promissory notes sold to clients were securities where the promisor used the sales to raise money for his business, a reasonable investor would view the notes as an investment, and there were no factors significantly reducing the risk of the notes to the lender;  an award of sanctions was upheld as the broker sold notes without notice to his employer;  dissenting, Judge Fisher thought that a lifetime bar from association with any NASD member firm was the most serious punishment available and reserved for repeat offenders or for those whose misconduct was particularly egregious; as the petitioner's conduct here was not so egregious and there was no evidence that he had a history of misconduct, the abuse of discretion standard did not require such a severe penalty to be affirmed.  Reinhardt, Magill (author), and Fisher (dissenting), Circuit Judges. T. Kidwell of San Jose, CA for the petitioner; N. Forrester of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

4)  SECURITIES:  Gomppers v. VISX, Inc., 01-15450 (9th Cir. Aug. 5, 2002).  The complaint in this securities fraud class action did not state a claim under the heightened pleadings requirements of the Private Securities Litigation Reform Act of 1995;  the district court's dismissal with prejudice was not error as its repeatedly offered to postpone hearing the defendants' motion to dismiss if the plaintiffs wished leave to amend to include additional facts relevant to their complaint, but the plaintiff refused.  Brunetti (author), Leavy, and T.G. Nelson, Circuit Judges. S. Svetcov of San Francisco, CA, for the appellants;  B. Feldman of Palo Alto, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

5)  INTELLECTUAL PROPERTY:  Konop v. Hawaiian Airlines, 99-55106 (9th Cir. Aug. 23, 2002).  For a website to be "intercepted" in violation of the Wiretap Act, it must be acquired during transmission, not while in electronic storage;  the unauthorized viewing of stored electronic communications on a secure web site does not constitute an "interception" under the Act;  a Stored Communications Act claim is viable where a "user" has not authorized third party access;  dissenting in part, Judge Reinhardt disagreed with the majority's position that the term "intercept" in the Wiretap Act refers solely to contemporaneous acquisitions; rather, he thought that "stored electronic communications" too are subject to the Act's intercept prohibition.  Boochever (author), Reinhardt (dissenting in part), and Paez, Circuit Judges.  R. Konop pro se;  M. Shipp of Irvine, CA, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

6)  ENVIRONMENTAL LAW:  Conservation Force, Inc. v. Manning, 00-17082 (9th Cir. Aug. 20, 2002).  Arizona's 10% cap on nonresident hunting of bull elk generally in the state and of antlered dear north of the Colorado River discriminates against interstate commerce and is subject to strict scrutiny under the dormant Commerce Clause as to whether no other means exist to advance legitimate state interests.  B. Fletcher, Boochever, and Fisher (author), Circuit Judges.  S. Fogel of Phoenix, AZ, for the plaintiffs;  AAG J. Adkins of Phoenix, AZ, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

 7)  ENVIRONMENTAL LAW:  Association to Protect Hammersley, Eld, and Totten Inlets v. Taylor Resources, 00-35667 (9th Cir. Aug. 6, 2002).  Biological materials emitted from mussels grown on harvesting rafts and entering Puget Sound (e.g., shells and feces) do not constitute a "discharge of pollutants" without a permit in violation of the Clean Water Act, 33 USC Secs. 1251-1376.  Thomas, Graber, and Gould (author), Circuit Judges.  J. Dold of Seattle, WA, for the plaintiff;  S. Plauche of Seattle, WA, for the de-fendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

8) ENVIRONMENTAL LAW: Mountain Rhythm Resources v. FERC, 00-70357 (9th Cir. Aug. 23, 2002).  A permit issued under Washington's State Shoreline Management Act did not supplant FERC authority;  the FERC properly relied on a National Oceanic and Atmospheric Administration-approved coastal zone map in requiring a Washington coastal zone certification before issuing licenses to build hydroelectric plants.  Kleinfeld and Gould (author), Circuit Judges, and Roll, District Judge.  K. Denke of Seattle, WA, for the petitioner;  D. Coffman of Washington, DC, for the respondent;  T. Young of Olympia, WA for the intervenor-respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

9)  ENVIRONMENTAL LAW:  Fireman's Fund Insurance Co. v. Lodi, 99-15614 (9th Cir. Aug. 6, 2002).  CERCLA and California's Carpenter-Presley-Tanner Hazardous Substance Account Act do not preempt the hazardous waste remediation field;  a municipal ordinance permitting a city to investigate and remediate hazardous waste contamination of soil and groundwater which did not conflict with these statutes was not preempted. Pregerson (author) and D.W. Nelson, Circuit Judges, and Moskowitz, District Judge.  T. Houlihan and D. Zarazoga of San Francisco, CA, for the plaintiffs;  R. Hays of Lodi, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

10)  ENVIRONMENTAL LAW:  Cadillac Fairview / California v. Dow Chemical Co., 99-56641 (9th Cir. Aug. 6, 2002).  A district court did not abuse its discretion in considering an indemnity agreement entered into by the federal government as an equitable factor in allocating environmental response costs among liable parties under CERCLA; a firm that discharged pollutants into soil at the government's direction in a war production plant during World War II could not now be ordered to pay part of the cost of cleaning up those pollutants.  D.W. Nelson, O'Scannlain, and Kleinfeld (author), Circuit Judges. J. Dobbins of Washington, DC, for the appellant; E. Warren of Washington, DC, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

11)  TAXATION:  Omohundro v. USA, 00-56558 (9th Cir. Aug. 19, 2002).  Under IRC Sec. 6511(a), a taxpayer's claim for a credit or refund for overpaid taxes is timely if filed within three years of the date the taxpayer filed his return, regardless of whether the return was filed on or before its due date.  Browning, Reinhardt, and Tallman, Circuit Judges. Per Curiam. A. Pearson of San Francisco, CA, for the plaintiff;  C. Fallon of Washington, DC, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

12)  TAXATION:  Smith v. CIR, 00-70124 (9th Cir. Aug. 12, 2002).  Expenses related to replacing smelting cell linings were properly characterized as capital expenditures under 26 USC Sec. 263 rather than as ordinary and necessary business expenses currently deductible under Sec. 162(a), as replacement of the linings was tantamount to reconstituting the cell.  Reavley, Tashima (author), and Rawlinson, Circuit Judges. R. Berenstain of Seattle, WA, for the petitioners;  A. Wietecha of Washington, DC, for the respondent.(Download the full text of this decision at www.cc9.uscourts.gov/)

13)  BANKRUPTCY:  In re Watts, 00-55207 (9th Cir. Aug. 6, 2002).  Two California appellate courts rejected the holding of In re Jones, 106 F.3d 923 (9th Cir. 1997), that under California Code of Civil Proc. Sec. 704.950(c) a judgment creditor's lien does not attach to a declared homestead unless surplus equity exists in the homestead at the time the creditor records an abstract of judgment;  given these rulings and the likelihood that the state Supreme Court would follow its appellate courts, the USCA overruled Jones; the state courts had concluded that a judgment creditor is entitled to surplus equity that accrues in the debtor's homestead after the abstract of judgment is recorded; concurring in the judgment, Judge O'Scannlain noted that one Ninth Circuit panel may not overrule another.  O'Scannlain (concurring) and Paez (author), Circuit Judges, and King, District Judge.  J. Switzer of Vista, CA, for the appellant;  B. Mahoney of San Diego, CA, for the appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

14)  BANKRUPTCY / TAXATION:  In re Galletti, 01-55953 (9th Cir. Aug. 8, 2002).  The IRS cannot collect a partnership's tax deficiency directly from the partners without first making individualized assessments or obtaining judgments against the partners, holding them liable for the partnership's tax debts; bankruptcy claims were time-barred.  Kleinfeld and Graber (author), Circuit Judges, and Bolton, District Judge.  T. Clark of Washington, DC, for the appellant;  M. Campbell of Long Beach, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

15)  BANKRUPTCY:  In re Cohen, 01-16080 (9th Cir. Aug. 20, 2002).  The party listed on the purchaser line of a cashier's check does not exercise sufficient dominion over the funds to be considered an initial transferee of the funds for purposes of determining who may be subject to a voidable preference in a bankruptcy adversary action.  Lay, Thompson, and Tallman (author), Circuit Judges.  T. Dake of Phoenix, AZ, for the appellant;  S. Hammerman of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

16)  BANKRUPTCY:  In re LPM Corp., 01-56570 (9th Cir. Aug. 22, 2002).  11 USC Sec. 365(d)(3) does not give Chapter 11 post-petition rent claims super-priority over Chapter 7 administrative creditors, who are entitled to be paid first by virtue of Sec. 726(b).  Hug, Farris, and Silverman (author), Circuit Judges.  T. Principi of San Diego, CA, for the appellant;  G. Rudolph of San Diego, CA, for the appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  BANKRUPTCY:  In re Allen, 01-15301 (9th Cir. Aug. 16, 2002).  A bankruptcy court did not err in confirming a reorganization plan that did not incorporate either the terms of a stipulation between the parties or the bankruptcy court's order approving it, as neither document clearly indicated that it would bind either the parties or the court in any subsequent reorganization plan.  Sneed, Hug, and Berzon (author), Circuit Judges.  W. Robinson of Sacramento, CA, for the appellant;  T. Buchanan of Fresno, CA, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

18)  BANKRUPTCY:  In re Bennett, 01-55547 (9th Cir. Aug. 5, 2002).  The debtor's post-petition agreement to remain liable for a discharged debt was not a valid affirmation agreement; it was thus unenforceable under 11 USC Sec. 524(a).  Thomas and Rawlinson, Circuit Judges, and Armstrong (author), District Judge.  S. Lieber of Woodland Hills, CA, for the plaintiffs;  C. Anderson of Los Angeles, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

19)  BANKRUPTCY:  In re Canter, 01-56151 (9th Cir. Aug. 15, 2002).  The district court erred when it sua sponte withdrew reference of this case to the bankruptcy court without showing cause;  it also improperly enjoined the enforcement of a municipal court's judgment under 11 USC Sec. 105(a) when it failed to give notice as required by FRCP 65(a)(1);  construing the appeal as a petition for a writ of mandamus, the USCA vacated the withdrawal of reference and stay order and remanded the matter to the bankruptcy court.  Thomas and Rawlinson (author), Circuit Judges, and Armstrong, District Judge.  H. Katz of Los Angeles, CA, for the creditors;  A. Smyth of Los Angeles, CA, for the debtor.(Download the full text of this decision at www.cc9.uscourts.gov/)

20)  BANKRUPTCY:  In re George, 01-56445 (9th Cir. Aug. 15, 2002).  Plaintiff's 42 USC Sec. 1983 takings claim against a city landlord that leased its property to a third party after the plaintiffs had surrendered it was properly dismissed for failure to state a claim and untimeliness;  there is no taking without just compensation where the plaintiff has no right to possess the property.  Hug, Farris, and Silverman, Circuit Judges. Per Curiam. S. Kramer of San Luis Obispo, CA, for the appellants; D. Hunt of San Luis Obispo, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  BANKRUPTCY:  Stratosphere Litigation v. Grand Casinos, 01-15947 (9th Cir. Aug. 13, 2002).  Res judicata barred a third party creditor from challenging the bankrukptcy court's confirmation of a debtor's reorganization plan where the party's predecessor had not objected to the plan;  one party's obligation to fund an escrow account was discharged when another party who was charged with raising additional equity filed for bankruptcy and third-party beneficiary claims were subject to that defense; concurring, Judge Berzon thought that in light of the majority's conclusion that res judicata controlled the outcome, it was not necessary to reach the contract interpretation questions.  Sneed (author), Hug, and Berzon (concurring), Circuit Judges.  J. Goldberg of New York, NY, for the plaintiff;  H. Nicols of Cleveland, OH, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

22)  BANKRUPTCY:  In re Pacific/West Communications Group, 01-56047 (9th Cir. Aug. 29, 2002).  California Commercial Code prior to July 1, 2001 barred a creditor with a secured interest in another's personal property, including general intangibles and all proceeds thereof, from attaching its security interest to the proceeds of a commercial tort action.  T.G. Nelson, Paez, and Tallman (author), Circuit Judges.  T. Briggs of Costa Mesa, CA, for the appellant;  G. Klausner of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

23)  LABOR LAW / DEFAMATION:  Steam Press Holdings v. Hawaii Teamsters and Allied Workers Union, 01-17222 (9th Cir. Aug. 26, 2002).  The format, subject matter, and tenor of statements made by a local's president during internal union meetings to the effect that the employer then involved in a labor dispute was "making money" and "hiding money" suggested that the statements were a rhetorical device employed to further the union's bargaining strategy, not statements of objective fact;  they were not defamatory and were fully protected by federal labor law.  Goodwin (author), Hawkins, and Fisher, Circuit Judges.  D. Drooz of Los Angeles, CA, for the defendants;  J. Jossem of Honolulu, HI, for the plaintiffs.(Download the full text of this decision at www.cc9.uscourts.gov/)

24)  LABOR LAW:  Bothell v. Phase Metrics, 01-15474 (9th Cir. Aug. 13, 2002).  For purposes of determining an employee's eligibility for overtime benefits under the Fair Labor Standards Act, customer service activities of a field service engineer, employed by a robotic equipment manufacturer, go to the heart of the employer's marketplace offerings, not to the internal administration of the employer's business, as the employer's products were so technologically advanced that its customers required installation, training, and service assistance to successfully to operate the equipment.  Hug and Berzon, Circuit Judges, and Lasnik (author), District Judge.  M. Herrick of San Francisco, CA, for the plaintiff;  M. Reichert of Palo Alto, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

25)  LABOR LAW:  Westaff (USA), Inc. v. Arce, 00-16178 (9th Cir. Aug. 15, 2002).  An action for reimbursement of medical benefits paid to an ERISA plan beneficiary was properly dismissed under 29 USC Sec. 1132(a)(3) which permits suits only for equitable relief, where the money sought is held in escrow.  Schroeder (author), Fisher, and Paez, Circuit Judges.  M. Sifferman of Phoenix, AZ, for the plaintiff;  A. Hubert of Riverside, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

26)  LABOR LAW:  Harik v. California Teachers Association, 01-15590 (9th Cir. Aug. 1, 2002).  In an agency shop, to support the amount of an agency fee, the union must provide non-union members with a statement of its chargeable and non-chargeable expenses, together with an independent verification that the expenses were actually incurred, but a formal audit is not required.  Schroeder (author), B. Fletcher, and Kozinski, Circuit Judges. M. Beutler of Springfield, VA, for the plaintiffs;  J. Demain of San Francisco, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

27)  LABOR LAW:  Prescott v. El Dorado, 01-15913 (9th Cir. Aug. 1, 2002).  Non-union plaintiffs lacked standing to challenge an indemnification clause in a collective bargaining agreement which required the union to hold the employer harmless from liability arising out of the collection of agency fees from non-union members of the bargaining unit based on the union's inadequate notice of the basis of the fees where no causal relationship existed between the indemnification agreement and any injury suffered by plaintiffs.  Schroeder (author), B. Fletcher, and Kozinski, Circuit Judges.  W. Young of Springfield, VI, for the plaintiffs;  F. Hiestand of Sacra-mento, CA, for the defendants.(Download the full text of this decision at www.cc9.uscourts.gov/)

28)  EMPLOYMENT DISCRIMINATION:  Costa v. Desert Palace, 99-15645 (9th Cir. Aug. 2, 2002)  A plaintiff in a Title VII case may establish a violation through a preponderance of evidence (whether direct or circumstantial) that a protected characteristic was a motivating factor;  Title VII imposes no heightened evidentiary burden on a plaintiff in a "mixed-motive" employment termination case; dissenting, Judge Gould, joined by Judges Kozinski, Fernandez, and Kleinfeld, thought that the use of direct evidence is required to prove a mixed motives case.  Schroeder, Reinhardt, Kozinski, Fernandez, Kleinfeld, Silverman, Graber, McKeown (author), Fisher, Gould (dissenting), and Paez, Circuit Judges.  M. Ricciardi of Las Vegas, NV, for the defendant;  R. Peccole of Las Vegas, CA, for the plaintiff.(Download the full text of this decision at www.cc9.uscourts.gov/)

29)  ADMIRALTY / NEGLIGENCE:  Northern Queen, v. Kinnear, 00-36093 (9th Cir. Aug. 7, 2002).  Under the primary duty rule, a captain's duty to operate a vessel in a safe manner is a specific duty unique to the job of captain; the captain's estate was thus precluded from recovering;  dissenting, Judge Gould did not think that the conclusion that the claimant knowingly violated his duties had been adequately presented;  he thought the record would support a conclusion of negligence, but not of knowing violation.  B. Fletcher and Gould (dissenting), Circuit Judges, and Murguia (author), District Judge.  M. Barcott of Seattle, WA, for the claimant;  D. Marinkovich of Seattle, WA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

30)  REAL ESTATE:  King County v. Rasmussen, 01-35610 (9th Cir. Aug. 9, 2002).  Under Washington law, a grantor intended to convey a right-of-way in fee simple to the grantee where the deed did not contain language clearly limiting the use of the land to a specific purpose, while deeds to the grantee from other landowners executed at the same time contain language explicitly restricting the grant to a specific purpose with a reversionary interest if the grantee ceased using the land for that purpose, and the deed conveyed land described in metes and bounds rather than merely granting a right over the land, and the grantor subsequently conveyed the subject properly specifically excepting the right-of-way in terms of acres of land.  B. Fletcher (author) and Gould, Circuit Judges, and Murguia, District Judge.  J. Sandlin of Zillah, WA, for the defendants;  H. Schneiderman of Seattle, WA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

31)  PRODUCTS LIABILITY:  Adams v. Synthes Spine Co., 00-35094 (9th Cir. Aug. 8, 2002).  Washington state law rules out strict liability for prescription medical products provided that proper warning is given physicians;  dissenting, Judge Ferguson thought that reversal and remand was necessary as the record set out specific facts showing that there were genuine issues for trial as to whether the reasonable expectations of physicians were met and whether the warnings were adequate. Ferguson (dissenting), Kleinfeld (author), and Gould, Circuit Judges. D. Williams of Bellevue, WA, for the applicant; C. Tompkins of Seattle, WA, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

32)  TORTS / MEDICAL MALPRACTICE:  Roach v. Mail Handlers Benefit Plan, 01-15360 (9th Cir. Aug. 1, 2002).  The district court erred in classifying a medical malpractice claim as a denial of benefits claim preempted by the  Federal Employees Health Benefits Act.  Lay, Thompson (author), and Tallman, Circuit Judges.  D. Fladseth of Santa Rosa, CA, for the plaintiff;  D. Gordon of Washington, DC, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

33)  TORT:  Goodman v. USA, 01-35240 (9th Cir. Aug. 2, 2002).  Where a medical malpractice suit against the U.S. is based on an informed consent claim, the plaintiff must have raised that issue in his administrative claim, but under 28 USC Sec. 2675 this notice requirement is minimal. B. Fletcher and Gould (author), Circuit Judges, and Murguia, District Judge.  J. Anderson of Wenatchee, WA, for the plaintiff;  J. Harrington of Spokane, WA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

34)  CIVIL PROCEDURE:  Miller v. Marriott Intl., Inc., 99-56947 (9th Cir. Aug. 16, 2002).  A notice of appeal was not effective where, although the district court had announced its judgment, it had not yet disposed of FRCP 60(b) motions.  Browning, Thomas, and Rawlinson (author), Circuit Judges.  L. Schoelch of Encino, CA, for the plaintiffs;  K. Burstein of Santa Monica, CA, R. Newman of Santa Ana, CA, and C. Davidson of San Diego, CA, the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

35)  JURISDICTION:  Strotek Corp. v. Air Transport Association of America, 01-16481 (9th Cir. Aug. 22, 2002).  Federal removal jurisdiction based on diversity is appropriately assessed where a complaint is filed and removal effected;  a party may not there-after destroy diversity by its own change of citizenship;  here, naming a non-diverse, predecessor unincorporated trade association in the complaint instead of the association's incorporated successor did not destroy diversity where 1) the successor was diverse at the time the complaint was filed and the action removed, 2) the successor had taken over the association's activities, and 3) the plaintiff did nothing to challenge the successor's acceptance of service and its appearance for the association.  Canby and Rymer (author), Circuit Judges, and Reed, District Judge.  L. Molof of Reno, CA, for the plaintiffs;  P. Friedman of Washington, DC, the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

36)  JURISDICTION:  Abada v. Charles Schwab & Co., 00-56844 (9th Cir. Aug. 21, 2002).  Under the general removal statute the USCA lacked jurisdiction over a district court order remanding to state court a class action alleging that a securities broker misled its customers where none of the relevant exceptions applied to the statutory prohibition of appellate review of district court remand orders founded on the absence of subject matter jurisdiction.  Thomas (author) and Rawlinson, Circuit Judges, and Armstrong, District Judge.  G. Serota of San Francisco, CA, for the appellant;  J. Krause of San Diego, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

37)  JURISDICTION:  Wander v. Kaus, 01-15116 (9th Cir. Aug. 21, 2002).  There was no federal-question jurisdiction over a law-suit for damages brought under California's Disabled Person's Act, although that Act makes a violation of the Americans with Disabilities Act a violation of state law.  Hawkins and Silverman (author), Circuit Judges, and Restani, U.S. Court of Intl. Trade Judge.  L. Hubbard of Chico, CA, for the plaintiff;  M. Bishop of Sacramento, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

38)  INTERVENTION:  USA v. Carpenter, 01-16326 (9th Cir. Aug. 12, 2002).  The U.S. Forest Service brought an action against the County of Elko, Nevada, seeking declaratory and injunctive relief to stop the County's restoration of a washed-out road adjacent to a river populated with an endangered fish; after the parties reached a tentative settlement, two environmental groups sought to intervene as of right;  for the purpose of determining the timeliness of their motions to intervene (18 months after the complaint had been filed, after 6 months of court-ordered mediation, and after 4 days of settlement negotiations before a magistrate), the USCA held that the intervenors had acted as soon as they had notice that the proposed settlement was contrary to their interests and that the delay was because the mediation had been conducted under an order of confidentiality and the settlement negotiations were not conducted in open court.  Schroeder, D.W. Nelson, and Reinhardt, Circuit Judges. Per Curiam.  E. Huber of Denver, CO, for the defendants-intervenors; B. Welsh of Las Vegas, NV, for the plaintiff; K. McQueary of Elko, NV, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

39)  ATTORNEYS' FEES:  Wininger v. SI Management, 00-15143 (9th Cir. Aug. 27, 2002).  When a district court had jurisdiction over a settlement fund, it was within its equity powers to award attorneys' fees for work which, while done outside the strict confines of the litigation immediately before the court, helped to create the settlement fund.  Lay (author), Ferguson, and Tallman, Circuit Judges.  C. Kagay of San Francisco, CA, for the intervenors; F. Altshuler of San Francisco, CA, for the plaintiffs.(Download the full text of this decision at www.cc9.uscourts.gov/)

40)  ATTORNEYS' FEES:  Watson v. County of Riverside, 01-56214 (9th Cir. Aug. 20, 2002).  A plaintiff who obtains a preliminary injunction (later rendered moot) can be deemed a "prevailing party" for purposes of 42 USC Sec. 1988, even if he does not recover other relief sought in his lawsuit.  Hall, Silverman (author), and Rawlinson, Circuit Judges.  P. Coble of Fullerton, CA, and C. Lockwood of San Bernadino, CA, for the defendants;  L. Roberts and M. Stone of Pasadena, CA, for the plaintiffs. (Download the full text of this decision at www.cc9.uscourts.gov/)

41)  QUALIFIED IMMUNITY:  Estate of Jeffrey Ford v. Ramirez-Palmer, 01-15769 (9th Cir. Aug. 23, 2002).  Qualified immunity may be denied where there is a triable issue of fact as to whether a prison official was deliberately indifferent to an inmate's safety, if it would be clear to a reasonable officer in the same situation that the official's conduct was unlawful under the Eighth Amendment.  Canby (dissenting in part) and Rymer (author), Circuit Judges, and Bertelsman, District Judge.  J. Smith of Sacramento, CA, for the defendants;  S. Casper of San Francisco, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

42)  IMMUNITY / EXCESSIVE FORCE:  Clement v. Gomez, 01-16088 (9th Cir. Aug. 6, 2002).  Where prison officials used a 2-5 second burst of pepper spray to end a fight between two inmates in a cell at Pelican Bay State Prison, and then a second burst because the bodies of the fighting inmates blocked the initial spray, and then a third burst immediately thereafter, the officials were entitled to qualified immunity from suits by bystander inmates claiming to have been harmed by drifting vapors;  however, a claim of deliberate indifference to medical needs could proceed.  Sneed (author), Hug, and Berzon, Circuit Judges.  J. Kenny of Arcata, CA, for the plaintiffs; DAG L. Pancho of San Francisco, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

43)  IMMUNITY:  Stevens v. Rose, 00-15840 (9th Cir. Aug. 2, 2002).  As a matter of law a police officer is not entitled to qualified immunity for arresting an individual based on a civil dispute, where a reasonable officer would not have believed an arrest was lawful under the circumstances.  Rymer, Kleinfeld, and McKeown (author), Circuit Judges.  K. Loomis, Carson City, CA, for the defendant; J. Boles of Reno, NV, for the plaintiff.(Download the full text of this decision at www.cc9.uscourts.gov/)

44)  EVIDENCE:  Mukhtar v. California State University, Haywood, 01-15565 (9th Cir. Aug. 7, 2002).  A district court failed to fulfill its gate-keeping obligation to exclude evidence under Federal Rule of Civil Procedure 702 by failing to make a determination as to the reliability of proffered testimony by a racial discrimination expert, where that testimony allowed the jury to make an inference of discrimination in the denial of a tenure to a university professor.  O'Scannlain (author) and Tallman, Circuit Judges, and King, District Judge.  F. Reid of San Francisco, CA, for the defendants;  F. Davis of Oakland, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

45)  ADMINISTRATIVE LAW:  Safari Aviation v. Garvey, 98-70013 (9th Cir. Aug. 26, 2002).  The FAA did not arbitrarily and capriciously deny petitioner the opportunity to participate in a meaningful rulemaking proceeding where it twice extended Special Federal Aviation Regulation 71, which establishes procedural, operational, and equipment safety requirements for air tour operators in Hawaii;  the USCA rejected the petitioner's claims regarding the FAA's failure to address some of its comments and its assertions regarding minor procedural defects in the rulemaking process as the petitioner failed to show prejudice.  Wallace, Tashima, and Tallman (author), Circuit Judges.  D. Bettencourt of Honolulu, HI, for the petitioner;  C. Wynn of Washington, DC, for the respondent.(Download the full text of this decision at www.cc9.uscourts.gov/)

46)  ADMINISTRATIVE LAW:  McCartey v. Massanari, 01-17225 (9th Cir. Aug. 6, 2002).  On an issue of first impression regarding the evidentiary significance of a Dept. of Veterans Affairs disability rating, the USCA held that a VA rating of disability does not necessarily compel the Social Security Administration to reach the identical result, although the ALJ must consider, and ordinarily give great weight to, VA findings.  Schroeder, D.W. Nelson, and Reinhardt (author), Circuit Judges.  E. Mitchell of Sacramento, CA, for the plaintiff;  J. Forslund of San Francisco, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

47)  SOCIAL SECURITY:  Lopez v. Washington Mutual Bank, 01-15303 (9th Cir. Aug. 6, 2002).  A bank's practice of using directly deposited SSI benefits to cover overdrafts and overdraft fees did not violate the beneficiaries' rights under 42 USC Sec. 407(a), as they had sufficiently consented to the practice;  concurring, Judge Noonan wrote separately to note that 1) Social Security recipients would almost certainly be denied overdraft privileges if the claimants prevailed, and 2) that the plaintiffs' position appears to rest on a misapprehension of how the banking system operates.  D.W. Nelson, Noonan (concurring), and Hawkins (author), Circuit Judges.  R. Newman of Los Angeles, CA, for the plaintiffs;  M. Larrabee of San Francisco, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

48)  CONSTITUTIONAL RIGHTS:  Eunique v. Powell, 99-56984 (9th Cir. Aug. 23, 2002).  Congress could refuse to let an applicant have a passport so long as she remained in substantial arrears on child support obligations, without violating her Fifth Amendment freedom to travel internationally;  concurring, Judge McKeown thought that considering the nature of the right to travel internationally, intermediate scrutiny came the closest to being the proper standard when First Amendment concerns are not implicated;  dissenting, Judge Kleinfeld thought that reversal was required because the right to leave one's country is too important to be subject to abridgment on so permissive a standard as rational basis review.  Fernandez (author), Kleinfeld (dissenting), and McKeown (concurring), Circuit Judges.  E. Eunique pro se;  K. Giuffreda of Washington, DC, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

49)  CONSTITUTIONAL RIGHTS:  Sammartano v. First Judicial District Court, 01-16685 (9th Cir. Aug. 26, 2002).  A preliminary injunction enjoining the enforcement of rules prohibiting the wearing of clothing bearing symbols of motorcycle clubs in a government courthouse was warranted where there was no record evidence supporting the conclusion that the rules would serve the purported interest of preserving proper order and decorum in courtrooms and the rules singled out "bikers" for the message their clothing presumably conveyed.  Thompson, W. Fletcher (author), and Berzon, Circuit Judges.  D. Evans of Reno, NV, for the plaintiffs;  A. Nichols of Carson City, NV, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

50) THE RIGHT TO VIEW EXECUTIONS:  California First Amendment Coalition v. Woodford, 00-16752 (9th Cir. Aug. 2, 2002).  San Quentin Institutional Procedure 770, which imposes restrictions on the public and press in viewing lethal injection executions, is an unreasonable response to prison officials' legitimate concerns about the safety of prison staff;  it unconstitutionally restricts the public's First Amendment right to view executions from the moment the condemned enters the death chamber.  Bright, B. Fletcher, and Fisher (author), Circuit Judges.  T. Patterson of San Francisco, CA, for the defendants;  M. Kass of San Francisco, CA, for plain-tiffs.(Download the full text of this decision at www.cc9.uscourts.gov/)

51)  FREEDOM OF SPEECH:  Brown v. Li, 01-55930 (9th Cir. Aug. 12, 2002).  The First Amendment does not require a university to assign a passing grade to a master's thesis that meets all professional and academic standards, but includes an "acknowledgements" section that does not conform to established standards;  concurring, Judge Ferguson thought that the university disapproved of the academically dishonest manner in which the plaintiff tried to publish his "Disacknowledgements," rather than his views, and the First Amendment does not protect deception;  dissenting in part, Judge Reinhardt thought that reversal of the district court's summary judgment in favor of the university was required because the plaintiff raised genuine issues of material fact as to whether the university violated his First Amendment rights.  Ferguson (concurring), Reinhardt (dissenting in part), and Graber (author), Circuit Judges.  P. Hoffman of Venice, CA, for the plaintiff;  C. Patti of Oakland, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

52)  FREEDOM OF SPEECH:  Gospel Missions of America v. Los Angeles, 00-55993 (9th Cir. Aug. 8, 2002).  The "information card endorsement" requirements of Los Angeles' charitable solicitation ordinance is a form of compelled speech subject to the First Amendment under the "exactly scrutiny" standard;  a religious corporation did not have standing to challenge professional fundraiser provisions the city's charitable solicitations ordinance that were not the subject of a prior injunction.  Goodwin, Wallace (author), and Thomas, Circuit Judges.  Fosbinder of Kahului, HI, for the plaintiffs;  J. Werlich of Los Angeles, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

53)  FREEDOM OF SPEECH:  Honolulu Weekly v. Harris, 01-15854 (9th Cir. Aug. 2, 2002).  A city ordinance requiring publishers distributing their materials along sidewalks in the Waikiki Special District to use one of two sets of news-racks—one reserved for publications for sale and the other for free publications—violates neither the First Amendment nor Equal Protection clause.  Wallace, Tashima, and Tallman (author), Circuit Judges.  K. Sullivan of Honolulu, HI, for the defendants;  S.  Saiki of Honolulu, HI, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

54)  NATIVE AMERICAN LAW:  Taylor v. Begay, 00-17279 (9th Cir. Aug. 12, 2002).  A district court erred in ruling that the value of land awarded to a tribe under an agreement that partitioned former joint-use land was not enhanced as a result of trading posts on the land; the district court ignored testimony by both parties' experts that the posts provided income to the owner of the land on which they sat;  the tribe was entitled to receive "owelty" to compensate for the value of posts on the land.  Schroeder (author), B. Fletcher, and Rymer, Circuit Judges.  T. Atkeson of Denver, CO, for the plaintiff;  J. Balogh of Phoenix, AZ, for the defendant.(Download the full text of this decision at www.cc9.uscourts.gov/)

55)  NATIVE AMERICAN LAW:  McDonald v. Means, 99-36166 (9th Cir. Aug. 14, 2002).  A tribal court retained jurisdiction over a claim by a tribe member against a non-member arising from the non-member's negligence in allowing his horse to trespass on a road within a reservation;  the continuing control exercised by the tribe over the road and the Supreme Court's previous treatment of BIA roads supported the conclusion that the tribal court had jurisdiction to entertain the plaintiff's suit;  dissenting, Judge Wallace found the majority's decision inconsistent with over two decades of Supreme Court precedent on the subject of tribal inherent authority.  Browning (author), Wallace (dissenting), and T.G. Nelson, Circuit Judges.  S. Kelly of Lame Deer, MT, for the intervenor;  C. Belue of Billings, MT, for the defendants;  G. Murphy of Billings, MT, for the plaintiffs.(Download the full text of this decision at www.cc9.uscourts.gov/)

56)  IMMIGRATION LAW:  Fajardo v. INS, 01-70599 (9th Cir. Aug. 9, 2002).  The 180-day limitations period to reopen an in absentia order of deportation was equitably tolled where the alien's late petition resulted from misconduct by non-attorney consultants;  the limitation period was tolled until the alien became aware of harm resulting from fraudulent conduct by the consultants.  Lay (author), Canby, and Paez, Circuit Judges.  H. Davis of Van Nuys, CA, for the petitioner;  D. Couvillon of Washington, DC, for the re-spondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

57)  IMMIGRATION LAW:  Randhawa v. Ashcroft, 99-71634 (9th Cir. Aug. 13, 2002).  A conviction for possession of stolen mail is a theft offense and aggravated felony under 8 USC Sec. 1101(a)(43)(G)—a deportable offense. Schroeder, D.W. Nelson (author), and Rawlinson, Circuit Judges.  R. Jobe of San Francisco, CA, for the petitioner;  Q. Vu of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

58)  IMMIGRATION LAW:  Casa-Chavez v. INS, 00-71558 (9th Cir. Aug. 20, 2002).  The summary dismissal of the petitioners' appeal was improper where, despite petitioners' failure to file a brief, their reasons for appealing, as articulated in their Notice of Appeal, contained adequate specificity to give the Board of Immigration Appeals notice of their reasons for appealing.  Lay (author), Ferguson, and Tallman, Circuit Judges.  V. Valentine of Las Vegas, NV, for the petitioners;  P. Shen of Washington, DC, for the re-spondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

59)  IMMIGRATION LAW:  Ruano v. Ashcroft, 01-70915 (9th Cir. Aug. 29, 2002).  An applicant for asylum established past persecution with evidence that in Guatemala he received multiple death threats at his home and place of business, that he was followed by, and narrowly escaped from, four armed men trying to kill him, and that he was targeted because of his membership in a political party.  Schroeder, D.W. Nelson (author), and Reinhardt, Circuit Judges.  A. Lawrence of San Francisco, CA, for the petitioner;  A. Benison of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

60)  IMMIGRATION LAW:  USA v. Velasco-Medina, 01-50064 (9th Cir. Aug. 12, 2002).  The Illegal Immigration Reform and Immigrant Responsibility Act's repeal of Sec. 212(c) discretionary relief from deportation is not impermissibly retroactive as applied to an alien whose pre-IIRIRA second-degree burglary conviction obtained through a guilty plea did not qualify as an "aggravated felony," and did not make him deportable at the time of his guilty plea.  Pregerson and Trott (author), Circuit Judges, and Fitzgerald, District Judge.  G. Burcham of San Diego, CA, for the defendant;  K. Hoffman of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

61)  IMMIGRATION LAW:  Manimbao v. Ashcroft, 00-71329 (9th Cir. Aug. 1, 2002).  In denying an application for asylum and withholding of deportation, the Board of Immigration Appeals erred in making an adverse credibility determination itself, where credibility was dispositive;  dissenting, Judge Trott thought that the petitioner had notice that his credibility was in question and that he had an opportunity to respond on that issue before the BIA.  Trott (dissenting), Thomas, and Wardlaw (author), Circuit Judges.  J. Feldun of Encino, CA, for the petitioner;  C. Appling of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

62)  IMMIGRATION LAW:  Mejia v. Ashcroft, 00-71638 (9th Cir. Aug. 2, 2002).  Asylum proceedings were ordered reopened for a native of the Philippines where the BIA committed legal error in ruling that he was not prima facie eligible for asylum, although his unchallenged testimony demonstrated that he appeared on a New People's Army ("NPA") hit list after acting as an informer against the NPA, and his fear of future persecution was well-founded.  Thompson, W. Fletcher, and Berzon (author), Circuit Judges.  M. Karr of Sacramento, CA, for the petitioner;  J. Doig of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

63)  IMMIGRATION LAW:  Celis-Castellano v. Ashcroft, 00-71274 (9th Cir. Aug. 5, 2002).  In denying an alien's motion to rescind an in absentia removal order, the BIA's consideration of the alien's failure to notify the Immigration Court why he was absent from his removal hearing was not an abuse of discretion where the alien failed to offer any explanation for his failure to notify the Immigration Court that he would miss the hearing;  the alien failed to show that an asthma attack constituted "exceptional circumstances" which prevented his  appearance at the hearing.  Wallace (author), Kozinski, and Paez, Circuit Judges.  S. Shaiken of San Francisco, CA, for the petitioner;  M. Sarko of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

64)  IMMIGRATION LAW:  Taniguchi v. Schultz, 00-16928 (9th Cir. Aug. 23, 2002).  Immigration and Nationality Act Sec. 212(h), which bars aliens lawfully admitted for permanent residence (LPRs) from obtaining a waiver of deportation, while allowing non-LPRs to obtain such a waiver, does not violate an LPR's right to equal protection;  the INS has advanced a rational explanation for the difference in treatment between LPR aggravated felons and non-LPR aggravated felons for purposes of Sec. Sec. 212(h).  Roney, Hug  (author), and Thomas, Circuit Judges.  V. Chan of Los Angeles, CA, for the petitioner;  S. Goad of Washington, DC, for the re-spondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

65)  IMMIGRATION LAW:  Lin v. INS, 01-35867 (9th Cir. Aug. 1, 2002).  The post-removal period detention for an alien deemed inadmissible to the U.S. under 8 USC Sec. 1182 is limited to a reasonable time and cannot extend indefinitely;  concurring, Judge Gould, noted that the basis for relief was statutory and that there was no occasion to address whether the petitioner had any assertable constitutional protections;  dissenting, Rymer thought that there was no need to interpret 8 USC Sec. 1231(a)(6)'s provision for post-removal period detention as having the same reasonable time limitation that applies to admitted aliens, as aliens who have entered the country have constitutional rights which aliens who have not entered do not.  Rymer (dissenting), McKeown (author), and Gould (concurring), Circuit Judges.  AFPD J. Stansell of Seattle, WA, for the petitioner;  B. Slocum of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

66)  IMMIGRATION LAW:  Singh v. Ashcroft, 01-70505 (9th Cir. Aug. 27, 2002).  An asylum applicant's doctor's failure to mention in his letter an injury to the applicant that corroborating his hospitalization and treatment after being burned by police officers for political activity in his home country did not support an adverse credibility determination where the doctor's letter was not inconsistent with the applicant's testimony, and the applicant presented corroborating evidence in conjunction with the doctor's letter;  dissenting, Judge Tallman thought substantial evidence existed to support the adverse credibility determination, that the bases for that determina-tion had been sufficiently articulated, and the evidence did not compel a contrary result.  Lay, Ferguson (author), and Tallman (dissenting), Circuit Judges.  A. Bhakhri of Burlingame, CA, for the petitioner;  J. Williams of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

67)  RIGHT TO COUNSEL:  Beaty v. Stewart, 00-99007 (9th Cir. Aug. 27, 2002).  The USCA remanded this capital habeas case for an evidentiary hearing as to whether the a confession obtained by a jail psychiatrist at the end of a group counseling session was voluntary under the Sixth Amendment based on petitioner's claimed belief that statements were protected by the state's confidentiality agreement; the purpose of the group was to explore interactions between male and female inmates, the group was not organized to collect incriminating information to be used at trial, and group sessions were not court-ordered.  O'Scannlain (author), Graber, and McKeown, Circuit Judges.  J. Charland of Phoenix, AZ, for the petitioner;  K. Cattani of Phoenix, AZ, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

68)  RIGHT TO COUNSEL:  Gentry v. Roe, 00-55691 (9th Cir. Aug. 8, 2002).  Trial counsel's election in closing argument to ignore record evidence helpful to his client while highlighting record and non-record evidence harmful to his client, including references to his client as a "bad person, lousy drug addict, stinking thief, jail bird," may constitute ineffective assistance.  Hug, Farris (author), and Silverman, Circuit Judges.  DFPD J. Locklin of Los Angeles, CA, for the petitioner;  DAG S. McGahey of Los Angeles, CA, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

69)  AIRPORT SEARCHES:  Torbet v. UAL, 01-55319 (9th Cir. Aug. 7, 2002).  The Fourth Amendment permits random, airport security checkpoint searches of carry-on bags even if they have passed through an x-ray scan without arousing suspicion that they contain weapons or explosives.  Hug, Farris (author), and Silverman, Circuit Judges.  V. Chan of Los Angeles, CA, for the appellant;  A. Dempsey of Los Angeles, CA, and D. Knoll of Camarillo, CA for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

70)  SEARCHES & SEIZURE:  USA v. Diaz-Juarez, 01-50263 (9th Cir. Aug. 15, 2002).  The totality of circumstances justified a border patrol investigatory stop of an alien on a road in a high-crime area, close to the border, at an unusual time, when there had been reports that contraband was about to be smuggled into the U.S., and the alien's driving was consistent with a driver who did not know the area;  concurring, Judge Graber wrote separately to respond to an implication in the dissent that evidence of an immigration violation could be suppressed if reasonable suspicion for the stop were lacking;  one's identity, she noted, is not a fact that can be suppressed; as the defendant's stop led directly to no criminal charge, but only to processing for deportation, his identity as a non-citizen turned out to be the only operative fact uncovered during the stop; Judge Graber thus concluded that the officer correctly understood the legal effect of the lack of reasonable suspicion;  dissenting, Judge Ferguson thought that the majority's holding allows any person who is cautiously driving close to the border shortly after midnight to be stopped.  Ferguson (dissenting), Tashima (author), and Graber (concurring), Circuit Judges.  K. Kimball of San Diego, CA, for the defendant; AUSA M. Inciong of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

71)  SEARCHES & SEIZURE:  USA v. Gonzalez, 01-30059 (9th Cir. Aug. 15, 2002).  A military base exchange's random search of a government employee's backpack for stolen goods, conducted pursuant to an established store policy, was reasonable under the Fourth Amendment where the employee had clear notice of the policy and the search did not go beyond the scope appropriate to looking for stolen merchandise.  Kleinfeld (author) and Gould, Circuit Judges, and Roll, District Judge.  FPD C. Gunn of Tacoma, WA, for the appellant;  AUSA H. Brunner of Seattle, WA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

72)  SEARCHES & SEIZURE:  USA v. Long, 98-10136 (9th Cir. Aug. 26, 2002).  A district court did not err in finding that the defendant presented insufficient evidence to establish either his residence or reasonable expectation of privacy in property subject to a search, although there were indicia of his residence at the property such as photographs of the defendant with his family and male clothing that may have been his;  dissenting, Judge Thomas thought that if the defendant had been entitled to rely upon evidence presented by the government (that he resided, cultivated marijuana, and possessed illegal weapons at the property), there would have been sufficient evidence to establish the defendant's standing to contest the search.  Roney, Hug, and Thomas (dissenting), Circuit Judges. Per Curiam.  AFPD A. McClintock of Sacramento, CA, for the defendant;  AUSA K. Servatius of Fresno, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

73)  EVIDENCE:  USA v. Chase, 01-30200 (9th Cir. Aug. 21, 2002).  The psychotherapist-patient privilege has a "dangerous patient" exception which permits disclosure of otherwise-confidential information where a threat of harm is serious, imminent, and can be averted only by the disclosure;  dissenting, Judge Shadur thought the improper admission of "other acts" evidence coupled with the prosecutor's closing argument rendered the defendant's trial fundamentally unfair. Trott and T.G. Nelson, Circuit Judges, and Shadur (dissenting), District Judge. B. Purtzer of Tacoma, WA, for the defendant; M. Mosman of Eugene, OR, for the plaintiff.(Download the full text of this decision at www.cc9.uscourts.gov/)

74)  WITNESSES:  USA v. Finley, 01-10087 (9th Cir. Aug. 20, 2002).  The district court erred in excluding all of a defense expert's testimony as a sanction for violating the witness disclosure requirements of FRCP 16(b)(1)(C), where the expert had presented the only evidence of the defendant's diagnosed mental disorder and defense counsel had no other way to explain the possibility that the defendant suffered from a mental disorder.  Bright (author), B. Fletcher, and Fisher, Circuit Judges. J. Toney of Woodland, CA, for the appellant; AUSA N. Wong of Sacramento, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

75)  WITNESSES:  Hayes v. Woodford, 99-99030 (9th Cir. Aug. 26, 2002).  A prosecution witness's testimony that he was not receiving leniency in exchange for his testimony (where the prosecution had offered such leniency through the witness's attorney but the attorney did not share that information with the witness) did not deny the defendant's due process even if the witness gave perjured testimony, as 1) the jury knew the witness was motivated to assist the government and could weigh his testimony accordingly, 2) defense counsel impeached the witness, and 3) the testimony was not crucial to the prosecution's case;  dissenting in part, Judge Thomas thought reversal was needed due to the prosecution's knowing presentation of false testimony, its failure to disclose exculpatory material, and ineffective assistance of defense counsel.  O'Scannlain (author), Rymer, and Thomas (dissenting in part), Circuit Judges.  D. Senior of Los Angeles, CA, for the petitioner;  M. Chan of Sacramento, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

76)  PROSECUTORIAL MISCONDUCT / WITNESSES:  USA v. Geston, 01-50081 (9th Cir. Aug. 13, 2002).  In a case where witness credibility was paramount, it was reversible error for the district court to allow a prosecutor to repeatedly ask witnesses to comment on the veracity of other witness testimony.  Browning, Thomas, and Rawlinson (author), Circuit Judges.  K. Bucur of Laguna Hills, CA, for the defendant;  J. Levin of Washington, DC, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

77)  GRAND JURIES:  USA v. Marcucci, 01-50468 (9th Cir. Aug. 16, 2002).  The instruction that a grand jury "should" (as distinct from "shall" or "must") indict, if it finds probable cause leaves room for the grand jury to reject an indictment that, although supported by probable cause, is based on government passion, prejudice, or injustice;  dissenting, Judge Hawkins thought that the instruction was unconstitutional because it misled the grand jurors into thinking their powers were more constrained than they actually were.  Boochever and Hawkins (dissenting), Circuit Judges, and Weiner, District Judge.  Per Curiam.  S. Hubachek of San Diego, CA, for the defendants;  P. Carlos of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

78)  JURIES:  USA v. Alarcon-Simi, 01-30281 (9th Cir. Aug. 27, 2002).  The fact that one juror's response was not audible to the transcriber of the recording of the proceedings did not establish that the jury verdict lacked unanimity;  the court's implicit finding that the jury's verdicts were unanimous (in ordering that the verdicts be filed) was not erroneous.  B. Fletcher, Alarcon (author), and Graber, Circuit Judges.  H. Fleisher of Anchorage, AK, for the defendant;  AUSA K. Feldis of Anchorage, AK, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

79)  JURIES:  USA v. Steele, 00-10361 (9th Cir. Aug. 9, 2002).  During voir dire, the government may inquire whether prospective jurors hold racially tinged opinions where a prospective juror states that she has doubts about racial prejudice in the justice system;  the defendant's bank robbery-related convictions were upheld as, contrary to the defendant's allegation, the court's Allen charge following a jury impasse was not coercive.  Hug, Cudahy (author), and Tashima, Circuit Judges.  G. Weinheimer of San Anselmo, CA, for the plaintiff;  AUSA R. Harris of San Francisco, CA, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

80)  JURY INSTRUCTIONS:  Payton v. Woodford, 00-99000 (9th Cir. Aug. 1, 2002).  1 California Jury Instructions, Criminal ("CALJIC") 8.84.1 (4th ed. 1979), a "catch-all" factor for considering aggravating and mitigating circumstances, plus the court's failure to correct the prosecution's misstatements as to this factor, caused the jury to disregard mitigating evidence;  dissenting in part, Judge Tallman noted that Boyde v. California, 494 US 370 (1990), upheld against an Eighth Amendment challenge to the same instruction, and did not think the result should be different here, as it is not likely that the prosecutor's incorrect remarks led jurors to understand the instructions as precluding consideration of all of the defendant's mitigating evidence. Schroeder, Pregerson, Kozinski, Trott, Fernandez, T.G. Nelson, Tashima, W. Fletcher, Paez (author), Berzon, and Tallman (dissenting in part), Circuit Judges.  N. Palmieri of Los Angeles, CA, for the respondent;  D. Gits of Santa Monica, CA, for the petitioner(Download the full text of this decision at www.cc9.uscourts.gov/)

81)  THERMAL SEARCHES:  USA v. Huggins, 01-30065 (9th Cir. Aug. 6, 2002).  The "good faith" exception applied to a thermal imaging search based on a facially valid warrant resting on an affidavit containing information that the defendant had earlier been involved in growing marijuana while living on property owned by his girlfriend, that they both had moved to a new location, and that their new residence showed patters of electricity consumption consistent with an indoor marijuana grow; concurring, Judge Fletcher thought the majority erred in failing to make an explicit finding that no probable cause existed to issue the first warrant that authorized a thermal imaging search.  B. Fletcher (concurring), O'Scannlain (author) and Berzon, Circuit Judges.  S. McCrea, M. Spence, and AFPD C. Weinerman of Eugene, OR, for the appellants;  AUSA J. Kent of Eugene, OR, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

82)  EXPERT TESTIMONY:  USA v. Gastelum-Almeida, 01-50426 (9th Cir. Aug. 15, 2002).  A district court did not err in rejecting a defense expert's diagnosis of schizophrenia where a conflicting expert report based on a 12 hour examination, concluded that there was no objective evidence to support a contention that the defendant suffered from a mental disorder such as would impaired his competency to stand trial.  Hug, Farris (author), and Silverman, Circuit Judges.  Y. Barrera of Arcadia, CA, for the defendant;  A. Russi of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

83)  VENUE:  USA v. Pace, 01-10458 (9th Cir. Aug. 22, 2002).  Venue on a wire fraud charge lies only where there is a direct or causal connection to the misuse of wires; in the instant case, venue on the wire fraud charges was not proper in Arizona under the "continuing offense" provisions of 18 USC Sec. 3237(a), as the offense was neither begun, continued, nor completed there;  nor was venue proper under the "high seas" provisions of 18 USC Sec. 3238, as the offense had not begun in Mexico.  Goodwin (author), Hawkins, and Fisher, Circuit Judges.  B. Heurlin of Tucson, AZ, for the defendant;  AUSA C. Cabanillas of Tucson, AZ, for the plain-tiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

84)  CRIMINAL PROCEDURE:  USA v. Kim, 01-50472 (9th Cir. Aug. 5, 2002).  The indictment of a licensed pharmacist for illegal distribution of a named drug need not contain an allegation that the pharmacist knew that the drug would be used to manufacture a drug outside the scope of his licensed authority. Noonan (author), Wardlaw, and Berzon, Circuit Judges. AUSA M. Krinsky of Los Angeles, CA, for the plaintiff;  DFPD J. Locklin of Los Angeles, CA, and W. Genego of Santa Monica, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

85)  CRIMINAL PROCEDURE:  USA v. Ridgway, 01-30337 (9th Cir. Aug. 26, 2002).  The district court erred by not conducting a de novo evidentiary hearing before rejecting a credibility determination of the magistrate judge.  B. Fletcher, Alarcon (author), and Graber, Circuit Judges.  AFPD S. Tatter of Anchorage, AK, for the defendant;  AUSA S. Cooper of Fairbanks, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

86)  DUE PROCESS:  USA v. Culliton, 00-10599 (9th Cir. Aug. 22, 2002).  Questions on FAA Form 8500-8, which prompted allegedly false responses, were so confusing, vague and overbroad as to invite selective prosecution.  Goodwin, Hawkins (author), and Fisher, Circuit Judges.  R. Staff of Sacramento, CA, for the defendant;  AUSA J. Arguelles of Sacramento, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

87)  CRIMINAL PROCEDURE:  USA v. Monreal, 01-50203 (9th Cir. Aug. 28, 2002).  A defendant who was convicted following a plea agreement in one federal jurisdiction and then convicted for a similar offense in a different federal jurisdiction, he could not circumvent the time limit for filing a habeas petition simply by renaming his motion a writ of error coram nobis or a motion to enforce a plea agreement;  the defendant's motion to enforce the plea agreement was properly dismissed for lack of jurisdiction to the extent it challenged the conviction in the second court, whether construed as an untimely 28 USC Sec. 2255 petition or a writ of error coram nobis.  Alarcon, Silverman (author), and Rawlinson, Circuit Judges.  J. Whatley of Santa Barbara, CA, for the defendant;  J. Gordon of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

88)  INTERSTATE TRAVEL FOR PROSTITUTION: USA v. Rashkovski, 01-50374 (9th Cir. Aug. 28, 2002).  When an offer to travel interstate for purposes of prostitution elicits a positive response from the woman to whom it was made, it constitutes the requisite inducement under 18 USC Sec. 2422(a), even if the woman already intended to travel interstate but had no actual intend to engage in prostitution.  Fernandez, Wardlaw (author), and W. Fletcher, Circuit Judges.  A. Landon of San Diego, CA, for the defendant;  AUSA M. Edelman of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

89)  CARJACKING:  USA v. Cortes, 01-50352 (9th Cir. Aug. 6, 2002).  Congress may constitutionally regulate carjacking  under the Commerce Clause as an activity that substantially affects interstate commerce.  Pregerson and Trott (author), Circuit Judges, and Fitzgerald, District Judge.  AUSA C. Peterson of Los Angeles, CA, for the plaintiff;  DFPD M. Tanaka of Los Angeles, CA, for the defen-dant. (Download the full text of this decision at www.cc9.uscourts.gov/)

90)  CRIMINAL PROCEDURE:  Mendez v. Small, 01-56188 (9th Cir. Aug. 14, 2002).  A California appellate court decision that the change-of address requirement of California's sex offender registration statute requires a sex offender to take affirmative steps to notify the sheriff's department of a new address, is not an unreasonable application of clearly established law.  Alarcon, Silverman (author), and Rawlinson, Circuit Judges. L. Martin of San Diego, CA, for the appellant; M. Brennan of Los Angeles, CA, for the ap-pellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

91)  MAJOR CRIMES ACT:  USA v. Belgarde, 01-30243 (9th Cir. Aug. 27, 2002).  A state agency is not a "person" within the meaning of 18 USC Sec. 1153; concurring, Judge Noonan thought that while it seemed subversive of the statute to construe it so as to leave either federal or state agencies on Indian reservations without federal or state protection against depredation, the panel was bound by Errol D. v. USA, 292 F.3d 1159 (9th Cir. 2002); concurring, Judge Gould thought that while Errol D. required the conclusion reached by the majority, Errol D. was incorrectly decided.  Noonan (concurring), Hawkins, and Gould (author & concurring), Circuit Judges.  K. Rochter of Billings, MT, for the plaintiff;  M. Donahoe of Helena, MT, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

92)  SENTENCING:  USA v. Jimenez, 01-50597 (9th Cir. Aug. 27, 2002).  A district court erred in applying an enhancement under USSG Sec. 3B1.4 for use of a minor to commit a crime where there was no evidence that the defendant acted affirmatively to involve her son in a drug deal in an effort to avoid detection.  Noonan, Wardlaw (author), and Berzon, Circuit Judges.  M. Winter of San Diego, CA, for the defendant;  C. Rees of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

93)  SENTENCING:  USA v. Liero, 02-50026 (9th Cir. Aug. 15, 2002).  21 USC Sec. 960 and 18 USC Sec. 3583(a), which require the imposition of a term of supervised release following a sentence of imprisonment, are constitutional under Apprendi v. New Jersey, 530 US 466 (2002).  Kozinski (author) and Fernandez, Circuit Judges, and King, District Judge.  A. Krueger of San Diego, CA, for the appellant;  AUSA J. Detrani of San Diego, CA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

94)  SENTENCING:  USA v. Gamez, 00-10307 (9th Cir. Aug. 29, 2002). The "murder cross-reference" of USSG Sec. 2D1.1(d)(1) was properly applied to enhance a defendant's sentence for a drug importation conspiracy where the court found that murder was fore-seeable and in furtherance of the conspiracy even though it found that the defendant did not commit murder. Sneed (author), Brunetti, and T.G. Nelson, Circuit Judges. V. Brambl of Tucson, AZ, for the appellant;  AUSA M. Feldmeier of Tucson, AZ, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

95)  SENTENCING:  USA v. Valensia, 99-10170 (9th Cir. Aug. 8, 2002).  The government erred in failing to allege a quantity of methamphetamine in the indictment that would support a sentence of 262 months imprisonment, and the district court violated Federal Rules of Criminal Procedure 11(c)(1) and (f) by failing to inform the defendant that the government had to persuade the trier of fact beyond a reasonable doubt regarding the quantity of the drug, and by not eliciting from the defendant, during the plea colloquy, as part of the factual basis for his guilty plea an admission that the quantity of methamphetamine he manufactured and possessed for distribution exceeded 50 grams. Alarcon (author), Tashima, and Silverman, Circuit Judges.  P. Milrod of Fresno, CA, for the defendant;  AUSA W. Shipley of Fresno, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

96)  SENTENCING:  USA v. Lawrence, 01-50229 (9th Cir. Aug. 22, 2002).  Requiring the defendant to register as a narcotics offender at his probation officer's direction pursuant to California Health and Safety Code Sec. 11590 was within the terms of his sentence and violated none of his constitutional rights.  Noonan (author), Wardlaw and Berzon, Circuit Judges.  A. Barbanel of Los Angeles, CA, for the defendant;  C. Horn of San Francisco, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

97)  SENTENCING:  USA v. Culps, 00-30169 (9th Cir. Aug. 19, 2002).  For sentencing purposes, a court may approximate the quantity of marijuana sold by multiplying an estimated daily or weekly quantity by the applicable duration, but only if the approximation has a reliable evidentiary basis.  B. Fletcher, Brunetti, and Fisher (author), Circuit Judges.  B. Connaughton of Yakima, WA, for the defendant;  R. Ellis of Yakima, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

98)  HABEAS CORPUS:  Kelly v. Small, 99-56673 (9th Cir. Aug. 27, 2002).  The district court dismissed without prejudice a habeas petition it found to contain five unexhausted claims from a total of eight; the USCA held that the petition contained just two unexhausted claims, reversed the dismissal, and remanded so that the petitioner could dismiss those two claims and proceed to the merits of the others.  Lay (author), Canby, and Paez, Circuit Judges.  W. Young of Santa Monica, CA, for the petitioner;  DAG A. Tate of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

99)  PRISONS:  Whitmire v. Arizona, 00-16896 (9th Cir. Aug. 12, 2002).  An state prison visitation policy prohibiting same-sex kissing and hugging between non-family members during visits did not on its face reasonably related to legitimate penological interests; concurring, Judge Sedwick thought that the matter had to be remanded for the development of a factual record.  Hug and Tashima (author), Circuit Judges, and Sedwick (concurring), District Judges.  C. Joslin of San Francisco, CA, for the plaintiff;  AAG D. Schaack of Phoenix, AZ, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

 1)  TRADEMARKS:  Solar Systems & Peripherals v. Solarcom Holdings, 01-35278 (9th Cir. Aug. 8, 2002) (unpublished).  Reavley, Tashima, and Rawlinson, Circuit Judges.
         Solar Systems appealed an order of the district court for the Western District of Washington, Judge Coughenour presiding, which granted summary judgment for Solarcom Holdings in Solar System's trademark infringement action. 
         The USCA affirmed in part and reversed in part.  It noted that to establish a claim under the Lanham Act, a plaintiff must prove "the existence of a trademark and the subsequent use of that mark by another in a manner likely to create consumer confusion."  Comedy III Prods. v. New Line Cinema, 200 F.3d 593, 594 (9th Cir. 2000).  Solar Systems maintained that the district court erred in finding that it did not own the "solar" mark and that there existed no likelihood of confusion between Solar Systems and Solarcom.  The USCA concluded that Solar Systems failed to raise a genuine issue of material facts regarding its ownership of the mark, but that it raised a genuine issue of material fact regarding the likelihood of confusion between its mark as a whole and Solarcom. (Solarcom conceded that Solar Systems has service mark rights in the "Solar Systems" mark, but not in the "solar" mark alone.)  All of the evidence submitted by Solar Systems established only informal uses of the "solar" mark.  It had no evidence of advertising, sales, or more formal uses of the mark apart from the entire phrase "solar systems."  The USCA thus agreed with the district court that Solar Systems failed to raise a genuine issue of material fact with respect to its ownership of the "solar" mark.
        In determining the likelihood of confusion, the USCA noted that it examines the eight "Sleekcraft" factors:  1) the strength of the trademark, 2) the proximity or relatedness of the goods or services, 3) the similarity of the marks, 4) evidence of actual confusion, 5) the marketing channels used, 6) the type of goods and the degree of care likely to be exercised by the consumer, 7) the defendant's intent in selecting the mark, and 8) the likelihood of expansion of the product lines.  AMF v. Sleekcraft Boats, 599 F.2d 341, 348 (9th Cir. 1979).  Solar Systems' evidence needs to be weighed on at least four Sleekcraft factors.
           First, as for the strength of the mark, the district court found Solar Systems' mark suggestive, requiring some imagination to connect the mark to the service or product offered, and, thus, "presumptively weak," relying on Brookfield Communications v. West Coast Entm't Corp., 174 F.3d 1036, 1058 (9th Cir. 1999).  The mark "Solar Systems" uses common words and has no relation to com-puters.  Thus, rather than being a suggestive mark, which requires a consumer to use imagination or reasoning to understand its signifi-cance, Solar Systems' mark is more properly characterized as an arbitrary mark, which uses common words that "have no relevance to any feature or characteristic of a product."  Kendall-Jackson Winery v. E&J Gallo Winery, 150 F.3d 1042, 1047 n. 8 (9th Cir. 1998).  Similar to Dreamwerks Production Group v. SKG Studio, 142 F.3d 1127 (9th Cir. 1998), in which the court reasoned that the word "dream" is used in too many different ways to suggest any particular meaning to the reasonable consumer, the term "solar" and the phrase "solar system" do not suggest computers.  Rather, the use of this mark "uses common words in a fictitious and arbitrary manner to create a distinctive mark which identifies the source of the product."  Id at 1130 n. 7.  Solarcom argued that Solar Systems' mark is weak because it is in a "crowded field" of similar marks used by companies in the computer industry.  Solar Systems responded that none of the companies named by Solarcom are in the same industry as Solar Systems and none sells Sun Microsystems Products.  Solar Systems' evidence was sufficient to raise a genuine issue of material fact regarding strength, the USCA concluded.  In sum, the district court erroneously characterized Solar Systems' mark as suggestive rather than arbitrary, and Solar Systems presented evidence sufficient to raise a genuine issue of material fact regarding the strength of its mark.
             Second, as to the proximity or relatedness of the goods or services, Solarcom, making the opposite argument that it made for purposes of the strength factor, maintained that being in the computer business does not mean that the two businesses are related, em-phasizing the distinction between Solar Systems' brokerage of computer equipment and Solarcom's provision of "multi-platform technology solutions."  A close proximity, however, is not necessarily required for goods to be found related.  Instead, the USCA said it has usually found goods to be related where they are both in the same general industry.  Solar Systems has presented evidence regard-ing companies that are customers of both Solar Systems and Solarcom, evidence regarding whether Solarcom and Atlantix are in fact two discrete companies, and a declaration about direct competition between the two companies.  Solarcom relies solely on the splitting of its business between Solarcom and Atlantix to argue that the two companies' businesses are not related.  The district court, however, explicitly declined to give weight to the split and, accordingly, did not consider this fact.  The USCA concluded that this issue involved the weighting of evidence that was inappropritate for resolution on summary judgment.  Moreover, as mentioned above, the caselaw in general is generous when determining that parties' products and services are related.
        Third, as to the evidence of actual confusion factor, Solar Systems presented testimony and evidence of confusion, such as numerous instances of misdirected invoices, faxes, payments, e-mails, purchase orders, and deliveries of goods.  Solarcom responded by pointing to testimony indicating that, despite misdeliveries and other mistakes, the witnesses were not actually confused about whether the companies were affiliated.  Again, weighing this evidence is a task that is more appropriate for a jury or other factfinder, not to be undertaken on appeal from a grant of summary judgment.
 Fourth, as to the likelihood of expansion factor, the USCA noted that the likelihood of confusion is greater if either party might expand its business to compete with the other.  As evidence of likelihood of expansion, Solar Systems cited evidence of internal e-mails, discussions with potential partners, attempts to develop new products, and a new employee it hired.  Solarcom argued that Skay, the person Solar Systems allegedly hired to develop its solutions business, was actually a full-time college student with no experience in a business like Solarcom's, and that Skay actually was hired for a different purpose than Solar Systems claims. The evidence that Solarcom cited, however, must be weighed to determine whether Skay has experience in the type of business Solarcom is in.  Moreover, the fact that Skay is a full-time college student is irrelevant as he is also a full-time employee of Solar Systems.
 Finally, the USCA upheld the district court's summary judgment in favor of Solarcom on Solar Systems' state law claims.  Solar Systems maintained that the evidence it presented to support its federal trademark claim sufficed to prevent summary judgment in favor of Solarcom on its claim under the Washington Consumer Protection Act, Wash. Rev. Code Sec. 19.86.020, citing Nordstrom v. Tampourlos, 733 P.2d 208, (Wash. 1987) (en banc).  The Supreme Court of Washington, however, has since clarified that Nordstrom did not hold that trademark infringement necessarily establishes a violation of the Consumer Protection Act, but only that a violation was established in that case.  Seattle Endeavors, Inc. v. Mastro, 868 P.2d 120, 127 (Wash. 1994) (en banc).  Solar Systems' claim failed because the evidence it presented did not establish that a substantial portion of the public was at risk of being deceived by Solarcom's name change.  Solar Systems' dilution claim also failed because it presented no evidence on the inherent value of its mark as a symbol, nor on any damage to such value.
        The USCA thus concluded that Solar Systems presented evidence that needs to be weighed on at least four of the Sleekcraft factors.  However, it did not present evidence to foreclose a grant of summary judgment on its claim of ownership of the "solar" mark standing alone and on its state law claims.  The USCA thus reversed the district court's grant of summary judgment on the federal claim of likelihood of confusion and affirmed the grant of summary judgment on the claim regarding ownership of the "solar" mark alone and on the state law claims. 

2)  COMMUNICATIONS LAW:  3 Rivers Telephone Coop. v. U.S. West Comm., 01-35065 (9th Cir. Aug. 27, 2002) (unpublished). Schroeder, Fisher, and Paez, Circuit Judges.
        "Independents" brought this action for breach of tariff and related state law causes of action against U.S. West Communications (now known as "Qwest").  The Independents alleged that Qwest breached their filed tariffs by refusing to pay terminating access charges for all Qwest-transported interexchange.  The District Court for Montana, Magistrate Cebull presiding, granted Qwest summary judgment without interpreting and applying the Independents' tariffs, finding that federal law as interpreted by the Federal Communications Commission did not obligate Qwest to pay terminating charges for traffic for which it was not the originating carrier. The court concluded that the filed tariff doctrine (also known as the "filed rate doctrine") did not apply because the dispute was not about rates and the Independents offered no controlling legal authority in support of their position that the filed rate doctrine forms the basis for a breach of contract action."
        The USCA reversed and remanded for further proceedings on the Independent's claims.  The district court erred in failing to interpret the tariffs.  Under the filed tariff doctrine, a tariff filed with and approved by a regulating agency forms the "exclusive source" of the terms and conditions governing the provision of service of a common carrier to its customers.  A filed tariff has the force of law binding the utility and its customers to its terms and may be interpreted and enforced by a court in a breach of tariff action.  Because the Independents' tariffs form the exclusive source of the obligations between the Independents and their customers, the district court erred in analyzing the parties' obligations under FCC interpretations of the Telecommunications Act of 1996, 47 USC Secs. 251-2, without interpreting the tariffs themselves.  To interpret the tariffs here may require further development of the records on technology and practices in the telecommunications industry, particularly as it relates to the transmission of calls in Montana.  On the record in this case, the USCA thus reversed the district court and remanded the case for further proceedings on the interpretation and application of the Independents' tariffs.

3)  INNOVATIONS:  GE Medical Systems v. Ziarati, 01-57214 (9th Cir. Aug. 12, 2002) (unpublished).  Kozinski and Fernandez, Circuit Judges, and King, District Judge.
       Mokhtar Ziarati appealed the summary judgment entered by the District Court for the Central District of California, Judge Pfaelzer presiding, in favor of General Electric Company on its declaratory relief action to enforce an agreement regarding inventions made by Ziarati.  The USCA affirmed in part, reversed in part, and remanded.  First Ziarati maintained that the district court erred when it granted summary judgment against him on his statute of limitations defense.  The USCA agreed.  GE admitted for purposes of summary judgment that in 1989 it knew that Ziarati failed to assign the inventions to it and was exploiting them himself, which violated the Innovation Agreement.  GE did not bring this action until 1998.  That, the USCA noted, was beyond the California four-year statute of limitations for a breach of a written contract. Moreover, GE did not even make a demand for an assignment within the time provided by the statute of limitations.  Nor did it help GE to assert that it could not demand the assignment of the patents unless they issued because it is pellucid, as GE once stipulated, that the Agreement did not separately require Ziarati to assign patents;  it required him to assign the inventions themselves.  A patent is just one way of protecting the right to exclusive use of an invention.  If GE lost the power to require assignment of the inventions, its ancillary right to Ziarati's aid in garnering patent protection for those inventions was also lost.  Ziarati also argued that the district court erred in granting summary judgment against him on his laches defense.  The USCA agreed because the evidence would support a finding that GE inexcusably delayed making a claim against Ziarati and he was severely prejudiced.  Similarly, GE's knowledge and long delay, along with Ziarati's change of position in reliance thereon, might establish an estoppel defense.  However, the USCA agreed with the district court that Ziarati failed to present clear and convincing evidence of waiver.  Nor did he present evidence of the mutual intent required for a modification or novation.

4)  FRANCHISE LAW:  New Horizons Computer Learning Centers v. Bhatt, 01-56720 (9th Cir. Aug. 28, 2002) (unpublished).  T.G. Nelson, Paez, and Tallman, Circuit Judges.
         Bhatt appealed a decision of the District Court for the Central District of California, Judge Stotler presiding, which upheld an arbitration award and denied vacatur.  The district court had jurisdiction to review the decision of the arbitrator pursuant to the Federal Arbitration Act. The USCA affirmed.  The arbitrator found that New Horizons Franchising, Inc. had lawfully terminated its franchise agreement with Bhatt based on Bhatt's unauthorized transfer of his interest in the franchise agreement.  Bhatt argued that the award should have been vacated because the arbitrator acted in "manifest disregard of the law" in failing to apply a contractual limitations provision that Bhatt thought barred New Horizons from terminating the franchise agreement.  Under Employers Insurance of Wausau v. Nat'l Union Fire Insurance Co., 933 F.2d 1481, 1486 (9th Cir. 1991), "if, on its face, the award represents a plausible interpretation of the contract, judicial inquiry ceases and the award must be enforced." The limitations provision of the franchise agreement here states that "Franchisor and Franchisee agree that no arbitration and no other form of proceeding permitted hereby will be maintained by any party to enforce any liability or obligation of the other party, whether arising from this Agreement or otherwise, unless brought before the expiration of the earlier of (i) one year after the day of discovery giving rise to such alleged liability or obligation or (ii) two years after the date of the first act or omission giving rise to such alleged liability or obligation."  The USCA found a number of plausible interpretations of this provision that would support the arbitrator's finding that New Horizons lawfully terminated its agreement with Bhatt.  The arbitrator could have found that termination of the franchise agreement was not subject to the contractual limitations provision because termination does not require arbitration or any other "form of proceeding" covered by the limitations provision.  The arbitrator also could have concluded that New Horizons acted in accordance with the limitations provision in terminating the franchise agreement based on his finding that the transfer occurred within the limitations period.  Because the arbitrator's finding that New Horizons lawfully terminated its franchise agreement with Bhatt could be based on either of these plausible interpretations, the USCA up-held the district court's decision.

5)  BASEBALL ARBITRATION:  Garvey v. Major League Baseball Players Association, 02-55285 (9th Cir. Aug. 28, 2002) (unpublished).  Reinhardt and Hawkins, Circuit Judges, and Whyte, District Judge.
        Former professional baseball player Steve Garvey appealed a final order dated January 31, 2002 issued by the District Court for the Central District of California, Judge Rea presiding.  The order denied Garvey's motion to vacate arbitration awards which rejected his claim for recovery from Major League Baseball's Collusion Fund and dismissing his claims with prejudice.  On July 11, 2001, the USCA remanded this case to the district court for further proceedings consistent with the decision of the U.S. Supreme Court in Major League Baseball Players Association v. Garvey, 121 S.Ct. 1724 (2001).  The district court then denied Garvey's motion to vacate the arbitration awards and entered judgment against him.  Garvey appealed again arguing that the district court erred in denying his motion to vacate the arbitrator's awards and not remanding the case to the arbitrator for further arbitration. 
           The district court denial of Garvey's motion was mandated by the Supreme Court's decision.  On May 14, 2001, the Supreme Court held that the USCA erred in reversing the arbitration awards which the district court had confirmed and remanded for further proceedings consistent with its decision. Pursuant the Supreme Court's instructions, the USCA remanded the case to the district court to take the action required by the Supreme Court.  As the Supreme Court ruled that the USCA "erred in reversing the order of the District Court denying the motion to vacate the arbitrator's award," the district court had no choice but to do again what it had originally done—deny the motion to vacate.  The Supreme Court's opinion could not be read to require the case to be submitted again to arbitration.  Such a reading would negate the effect of the Court's opinion holding that the USCA erred in previously vacating the award.  The USCA thus affirmed the district court's order denying Garvey's motion to vacate, entering judgment in favor of the Major League Baseball Players Association, and dismissing Garvey's claims with prejudice.

6)  FORUMS : Triflo Medical v. Lapeyre, 01-56730 (9th Cir. Aug. 16, 2002) (unpublished). Kozinski and Fernandez, Circuit Judges, and Mahan, District Judge.
       Triflo, a Delaware corporation, maintained its principal place of business in Irving, California.  Lapeyre is a resident of France.  Triflo designed and manufactured medical devices.  The District Court for the Central District of California, Judge Carter presiding, Triflo appealed the dismissal of its action against Lapeyre on forum non conveniens grounds.
          The USCA reversed.  Triflo terminated Lapeyre's employment on November 14, 2000.  Triflo filed an amended complaint in the District Court for the Central District of California alleging breach of fiduciary duty, interference with contract and advantageous relationships and misappropriation of trade secrets, and sought injunctive and declaratory relief and damages.  Lapeyre answered the amended compliant and filed counterclaims against Triflo alleging rescission and breach of contract.  Lapeyre also filed an action in France asserting claims against Triflo involving a joint ownership agreement.  Lapeyre then filed a motion to dismiss or stay the U.S. action on the basis of forum non conveniens, arguing that the disputes between the parties should be heard in France.  The district court granted the motion to dismiss and denied Triflo's request for reconsideration.  To dismiss on forum non conveniens grounds, the moving party must show the existence of an adequate alternative forum and that private and public interest factors balance in favor of dismissal.  At oral argument, defense counsel acknowledged a strong presumption in favor of the plaintiff's choice of forum, and that the plaintiff's choice should rarely be disturbed.  The district court erred because it failed to consider this presumption.  Apply this presumption and the other public and private factors identified by the district court, the USCA concluded that the proper forum was the District Court for the Central District of California.

7)  IMMIGRATION:  Gomez v. INS, 01-71610 (9th Cir. Aug. 20, 2002) (unpublished).  Schroeder, Tashima, and Rawlinson, Circuit Judges.
           Gomez and derivatively his wife and two children, natives and citizens of the Philippines, petitioned for review of a final order of deportation issued by the Board of Immigration Appeals. It dismissed Gomez' appeal from the Immigration Judge's denial of his application for asylum and withholding of deportation under the Immigration and Nationality Act Secs. 208(a) and 243(h), 8 USC Secs. 1158(a), 1253(h).   The USCA denied the petition for review.  Reviewing under the substantial evidence standard, the USCA noted that reversal of the BIA is appropriate only if the record evidence is so "compelling that no reasonable fact finder could fail to find the requisite persecution or fear of persecution."  INS v. Elias-Zacarias, 502 US 478, 483-84 (1992).  If the record contains substantial evidence to support the denial of asylum and withholding of deportation, the denial must be affirmed.  Gomez maintained that the evidence compels the conclusion that he suffered past persecution "on account of" his anti-communist political opinion.  The USCA disagreed.  Substantial evidence supports the IJ's and BIA's conclusions that the threats made against Gomez were no more than attempts at financial extortion made on account of his perceived ability to pay.  The record evidence does not compel the conclusion that Gomez' putative persecutors knew that he was anti-communist or imputed anti-communist beliefs to him and persecuted him on account of that political opinion.  Cf. Borja v. INS, 175 F.3d 732, 736 (9th Cir. 1999) (holding that petitioner was persecuted on account of her political opinion where New People's Army members threatened her after she "articulated her political opposition to the NPA as the reason for her refusal to join.")  Because Gomez failed to establish statutory eligibility for asylum, he necessarily failed to meet the more onerous standard for withholding of deportation.  Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir. 1995)

8)  IMMIGRATION:  Tiamzon v. INS, 01-71053 (9th Cir. Aug. 13, 2002) (unpublished).  Hug, Farris, and Silverman, Circuit Judges.
           Raul and Myrna Tiamzon, natives and citizens of the Philippines, sought review of the Board of Immigration Appeals denial of their request for political asylum and withholding of deportation under Secs. 208(a) and 243(h) of the Immigration and Nationality Act.  Raul maintained that the evidence he presented to the Immigration Judge compelled the conclusion that he has a well-founded fear of being persecuted on account of his political opinion by the New People's Army ("NPA") should he return to the Philippines. He also maintained that he carried his burden of demonstrating that he is a refugee within the meaning of INA Sec. 101(a)(42(A).
          The USCA denied the Tiamzons' petition.  The record refutes Raul's contention that he suffered, and has a well-founded fear of suffering, the same kind of persecution on account of political opinion as the petitioners in Borja v. INS, 175 F.3d 732 (9th Cir. 1999) (en banc), and Briones v. INS, 175 F.3d 727 (9th Cir. 1999) (en banc).  In both cases the political opinion of the petitioners and the persecution on the basis of it were identifiable.  In contrast, the record in the instant case not only failed to show a political motive on the part of Raul, but failed to suggest that the NPA considered him to be opposed to their political program.  A petitioner "cannot simply prove that there exists a generalized or random possibility of persecution in his native country;  he must show that he is at particular risk—that his 'predicament is appreciably different from the dangers faced by [his] fellow citizens.'"  Kotasz v. INS, 31 F.3d 847, 852 (9th Cir. 1994).  The IJ and the BIA reviewed Raul's claims in light of the State Department's 1994 Profile of Asylum Claims and Country Conditions regarding the Philippines.  The Profile notes that "in most instances the NPA's objective is to take advantage of the applicant's financial resources;  the NPA is not concerned by the political opinion of its intended victim but is rather interested in the victim's wealth."  Here, the NPA sought to take advantage of Raul's financial resources—his access to and influence over wealthy patrons of his business—and evinced no interest in his political opinion.  Substantial evidence supported the BIA's denial of the Tiamzons' asylum application.  Since the asylum standard of "well-founded fear" is more lenient than the withholding of deportation standard of "clear probability," Raul's failure to establish eligibility for asylum also forecloses the Tiamzons' eligibility for withholding of deportation.