2)  COPYRIGHT: Gardner v. Nike, 00-56404 (9th Cir. Jan. 31, 2002).  The Copyright Act of 1976 does not allow a copyright licensees to assign its rights under an exclusive license, without the consent of the licensor.  Ferguson (author), T.G. Nelson, and W. Fletcher, Circuit Judges.  H. Hafif of Claremont, CA, for the plaintiffs;  C. D. Loomis of Los Angeles, CA, for the defendants. (Download the full text at www.ce9.uscourts.gov/) 

3)  ENVIRONMENTAL LAW: Kimmel v. DowElanco, 99-56746 (9th Cir. Jan. 7, 2002).  A state law claim for intentional interference with prospective economic advantage based on the alleged submission of a false federal pesticide label application was pre-empted by the Federal Insecticide, Fungicide, and Rodenticide Act.  Hug, Trott (author), and W. Fletcher, Circuit Judges.  J. Bennett of Pasadena, CA, for the appellants;  D. Barnhard of Indianapolis, Indiana for the appellees. (Download the full text at www.ce9.uscourts.gov/) 

4)  IMMUNITY:  Patton v. Cox, 00-15537 (9th Cir. Jan. 7, 2002).  Under Arizona law, a witness in a state quasi-judicial proceeding was not immune from a breach of contract action resulting from his testimony;  dissenting, Judge Wood thought that because the nature of the witness's testimony was so closely related to the health and safety of the public, the Arizona Supreme Court would likely not strip him of his immunity.  Wood (dissenting), Kozinski, and O'Scannlain (author), Circuit Judges.  C. Buri of Phoenix, AZ, for the appellant;  F. Robberson of Phoenix, AZ, the appellee. (Download the full text at www.ce9.uscourts.gov/) 

5)  BANKRUPTCY:  Allen v. Allen, 00-35528 (9th Cir. Jan. 11, 2002).  To the extent they relate to spousal support, divorce proceedings fall within the 11 USC Sec. 362(b)(2)(A)(ii) exemption from an automatic stay for the commencement or continuation of an action for the establishment or modification of an order for alimony, maintenance, or support.  O'Scannlain, Graber, and McKeown (author), Circuit Judges.  B. Fryer of Indio, CA, for the plaintiff;  J. Patten of Billings, MT, for the defendant.  (Download the full text at www.ce9.uscourts.gov/)  See memo decision #7 below.

6)  BANKRUPTCY:  In re Huang, 00-56056 (9th Cir. Jan. 14, 2002).  A debtor was not collaterally estoppel by her settlement with a creditor from denying the creditor's allegations of fraud;  neither fraud, or facts showing fraud, were mentioned in the settlement agreement or in the judgment enforcing it.  Noonan (author) and Wardlaw, Circuit Judges, and Schwarzer, District Judge.  J. Blue of Los Angeles, CA, for the appellee;  J. Wayser of Santa Monica, CA, for the appellant. (Download the full text at www.ce9.uscourts.gov/) 

7)  BANKRUPTCY:  In re Los Gatos Lodge, 00-16916 (9th Cir. Jan. 17, 2002).  A bankruptcy trustee may not surcharge a creditor for necessary expenses in preserving property pursuant to 11 USC Sec. 506(c) after the creditor's secured claim has been disallowed.  Brunetti, Kleinfeld, and Thomas (author), Circuit Judges.  S. Abrahams of San Jose, CA, for the appellant;  J. Gardner of Newport Beach, CA, for the appellee.  (Download the full text at www.ce9.uscourts.gov/) 

8)  BANKRUPTCY:  Walls v. Wells Fargo Bank, 00-17036 (9th Cir. Jan. 8, 2002). The USCA declined to imply a private right of action for a debtor discharged from bankruptcy to enforce an alleged violation of 11 USC Sec. 524, which provides that discharge under Bankruptcy Code Title II operates as an injunction against collecting debt as a personal liability of the debtor.  Kozinski, Rymer (author), and Silverman, Circuit Judges.  T. Becker of St. Paul, MN, for the plaintiff;  J. Chilton of San Francisco, CA, for the defen-dant. (Download the full text at www.ce9.uscourts.gov/) 

9)  BANKRUPTCY:  Catalano v. CIR, 00-70998 (9th Cir. Jan. 28, 2002). An order granting relief from an automatic stay is not by itself an abandonment of property from a bankruptcy estate;  a relief order may include an abandonment provision, but the intent to abandon under 11 USC Sec. 554 must be set forth explicitly and parties-in-interest must have been afforded notice of the intent to abandon and a hearing.  Brunetti, Kleinfeld, and Thomas (author), Circuit Judges.  P. Junghans of Washington, DC, for the respon-dent;  P. Catalano in pro per. (Download the full text at www.ce9.uscourts.gov/) 

 10)  TAXATION:  Trompeter v. CIR, 99-70805 (9th Cir. Jan. 30, 2002).  The Tax Court's reference to its "detailed review of the re-cord" to support its upholding of an IRS deficiency determination was an insufficient statement of the basis for its ruling under Leonard Pipeline Contr. v. CIR, 142 F.3d 1133 (9th Cir. 1998).  Fernandez, Kleinfeld, and McKeown (author), Circuit Judges.  A. Salkin of Beverly Hills, CA, for the petitioners;  R. Hutter of Washington, DC, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

11)  TAXATION:  Sklar v. CIR, 00-70753 (9th Cir. Jan. 29, 2002).  The USCA affirmed the IRS's disallowance of the taxpayers' deductions, as charitable contributions, of parts of tuition payments made to their children's religious schools;  as the taxpayers did not show that their tuition payments were partially deductible, and, specifically, that the total payment made for both the secular and religious private school education their children received exceeded the market value of other secular private school education available to the child, the IRS did not err in disallowing the deductions;  concurring, Judge Silverman thought that because the taxpayers were not entitled to the charitable deduction under both the Tax Code and Supreme Court precedent, the Church of Scientology's closing agree-ment was irrelevant;  as the taxpayers received something in return for their tuition payment, the education of their children, they were not entitled to a charitable deduction under IRC Sec. 170, as the majority opinion shows, and the taxpayers failed to demonstrate that what they paid for their children's education exceeded the fair market value of what they received in return;  thus, the taxpayers failed to show that they are entitled to a deduction under USA v. American Bar Endowment, 477 US 105 (1986).  Reinhardt (author), and Silverman (concurring), Circuit Judges.  J. Zuckerman of Washington, DC, for the appellants;  T. Sawyer of Washington, DC, for the appellee. (Download the full text at www.ce9.uscourts.gov/) 

12)  INSURANCE / ARSON:  Jazzabi v. Allstate Insurance Co., 00-35686 (9th Cir. Jan. 29, 2002). After Jazzabi's house burned down, he filed a claim under his fire insurance policy with Allstate;  at trial, the parties stipulated to the fact that arson caused the fire; the only issue in dispute was whether Jazzabi was the arsonist;  the USCA held that the jury first had to unanimously reject the insurer's affirmative defense (that Jazzabi participated in or consented to the intentional burning of his house in violation of an exclusion clause in his policy) before it could conclude that the insurer is liable and determine damages.  Hug, T.G. Nelson (author), and Gould, Circuit Judges.  L. Lear of Portland, OR, for the defendant-appellant;  G. Mark of Portland, OR, for the plaintiff-appellee.  (Download the full text at www.ce9.uscourts.gov/)

13)  WHISTLE BLOWERS / RETALIATION: Moore v. California Institute of Technology, Jet Propulsion Laboratory, 00-55958 (9th Cir. Jan. 4, 2002).  An action may be cognizable as discrimination under the False Claims Act or the Major Fraud Act if it is reasonably likely to deter an employees from engaging in activity protected under either statute.  Pregerson (author), Reinhardt, and Silverman, Circuit Judges.  J. Andrews of Los Angeles, CA, for the plaintiff;  J. Zapp of Los Angeles, CA, for the defendant. (Download the full text at www.ce9.uscourts.gov/)

14)  LABOR LAW:  Bailey v. Southwest Gas Co., 00-15796 (9th Cir. Jan. 17, 2002).  An employee's refusal to provide a completed certification of health care provider form to her employer as required by the Family Medical Leave Act was not protected activity under the Act;  it was not unlawful for the employer to require the employee explain her use of soporific medicine at work and her refusal was not a protected activity;  the employer thus could consider the employee's failure to cooperate in deciding whether to terminate her for insubordination.  Beezer, Trott, and Tallman (author), Circuit Judges.  R. Segerblom of Las Vegas, NV, for the plaintiff;  J. Egbert of Phoenix, AZ, for the defendant.  (Download the full text at www.ce9.uscourts.gov/)

15)  LABOR LAW:  Leisek v. Brightwood Corporation,  00-35672 (9th Cir. Jan. 22, 2002).  Under the Uniformed Services Employment and Reemployment Rights Act of 1994, evidence that a National Guard member's duty-related absences created an increased burden for his employer, that the employer had proposed a plan that would restrict the member's future military-related absences to three weeks and would deduct those absences from his vacation time, and that the employer had decided not to honor any future Guard orders regarding the member, except for those that it already had in hand, all supported the inference that the employee's military status was a "motivating factor" in his employer's decision to fire him.  Thompson, Tashima (author), and Graber, Circuit Judges.  R. Elmer of Salem, OR, for the plaintiff-appellant;  B. Garber of Oswego, OR, for the defendant-appellee. (Download the full text at www.ce9.uscourts.gov/)

16)  LABOR LAW:  McNamara-Blad v. Association of Professional Flight Attendants, 00-15846 (9th Cir. Jan. 11, 2002).  Under the Railway Labor Act, a union representing an airline's flight attendants did not breach its duty to fairly represent the flight attendants of a second airline merged into the first by implementing a pre-merger seniority agreement that placed new flight attendants, including those coming from the second airline, at the bottom of the seniority list.  Beezer (author),Trott, and Tallman, Circuit Judges.  A. Berkowitz of San Francisco, CA, for the plaintiffs;  J. Collins of Washington, DC, for the defendant.  (Download the full text at www.ce9.uscourts.gov/) 

17)  LABOR LAW:  B.K.B. v. Maui Police Dept., 99-17087 (9th Cir. Jan. 9, 2002).  The plaintiff, a white, female police officer, properly exhausted her Title VII claim where her discrimination charge filed with the Hawaii Civil Rights Commission (HCRC) was deficient in recording her theory of the case due to the negligence of an agency representative who completed the "charge form";  the plaintiff may present her pre-complaint questionnaire as evidence that she had sufficiently exhausted her administrative remedies on her statutory employment discrimination claims;  the district court's ruling that the plaintiff had not exhausted her state statutory sexual harassment claim was clearly in error as victims of sexual harassment and sexual assault seeking relief under the state stature are exempted from having to file discrimination complaints with the HCRC;  defense counsel's egregious conduct in introducing witness tes-timony which subverted the fundamental purpose of Federal Rule of Evidence 412 and deprived the plaintiff of a fair trial.  B. Fletcher (author), Canby, and Paez, Circuit Judges.  G. Johnson of Wailuku, HI, for the plaintiff-appellant;  R. Rand of Honolulu, HI, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

18)  LABOR LAW:  U.S. Dept. of Interior v. Federal Labor Relations Authority, 00-70862 (9th Cir. Jan. 30, 2002).  The mere act of exchanging correspondence, which discussed the placement of "Sunday premium" pay in a collective bargaining agreement between a union and a federal employer did not rise to the level of negotiations prior to August 19, 1972 for the purpose of compelling the employer to bargain the issue of Sunday premium pay under Sec. 704 of the Civil Service Reform Act of 1978.  Brunetti (author), Kleinfeld, and Thomas, Circuit Judges.  F. Rosenfeld of Washington, DC, for the petitioner;  W. Persina of Washington, DC, for the respon-dent. (Download the full text at www.ce9.uscourts.gov/) 

19)  LABOR LAW / ADMIRALTY:  Bora Do v. Ocean Peace, 01-35177 (9th Cir. Jan. 29, 2002).  A seaman employed in processing fish aboard a vessel, which includes cleaning, rinsing, heading, gutting, grading, sorting, placing in trays, freezing, packaging and storing the fish in the vessel's freezers, is involved in the "first processing" of marine products in conjunction with fishing operation and exempt from the minimum wage and hour provisions of the Fair Labor Standards Act;  the six-month limitations periods specified by the plaintiffs' written contracts and 46 USC Sec. 10602 did not apply here, as the contracts lacked a master's signature as required by Sec. 10601(a).  O'Scannlain, Graber, and McKeown (author), Circuit Judges.  J. Merriam of Seattle, WA, for the plaintiffs;  D. Moran of Seattle, WA, for the defendant.  (Download the full text at www.ce9.uscourts.gov/) 

20)  LABOR LAW / ADMIRALTY:  Harper v. U.S. Seafoods, 01-35264 (9th Cir. Jan. 29, 2002).  On an issue of first impressions, the USCA held that 46 USC Sec. 10601, an admiralty statute dating from the late 1770s which requires the master of a fishing vessel to make an agreement in writing with each crewmember before voyage, also requires the master's signature on the agreement in order for it to be valid.  O'Scannlain, Graber, and McKeown (author), Circuit Judges.  A. Gaspich of Seattle, WA, for the defendant-appellant;  G. Luhrs of Seattle, WA, for the plaintiffs-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

21)  EMPLOYMENT DISCRIMINATION:  Stout v. Potter, 00-15882 (9th Cir. Jan. 10, 2002).  The results of two screening rounds that represent the outcome of the same selection practice that the applicants challenged could not be analytically separated for purposes a disparate impact analysis in an action alleging sex discrimination where female applicants who were not selected for interviews after the first screening round were again considered in the second round.  Beezer (author), Trott, and Tallman, Circuit Judges.  M. Sorgen of San Francisco, CA, for the plaintiffs-appellants;  AUSA D. Pinchas of Los Angeles, CA, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

22)  EMPLOYMENT DISCRIMINATION / EVIDENCE: Amantea-Cabrera v. Potter, 00-16114 (9th Cir. Jan. 30, 2002).  The district court's discretion, not the per se admissibility rule of Plummer v. W. Int'l Hotels Co., 656 F.2d 502 (9th Cir. 1981), governs the admissibility, in a jury trial on compensatory damages for sex discrimination, of an EEOC "decision and order" containing a conclusive finding of liability under Title VII. Noonan, Hawkins (author), and Tashima, Circuit Judges.  E. Wallace of Oakland, CA, for the plaintiff;  S. Boardman of Washington, DC, for the defendant.  (Download the full text at www.ce9.uscourts.gov/) 

23)  WORKERS' COMPENSATION:  Matson Terminals v. Berg, 00-71391 (9th Cir. Jan. 29, 2002).  When an employee injures both knees in a work-related accident, the employer is liable for two separate benefit periods under Sec. 908 of the Longshore and Harbor Workers' Compensation Act, as each injury is discrete even though both arose from the same trauma;  the Act is intended to compensate employees separately for multiple injuries, even when those injuries arise from the same accident.  Leavy, T.G. Nelson, and W. Fletcher (author), Circuit Judges.  W. Brooks of Long Beach, CA, for the petitioner;  J. Kramer of Washington, DC, for the re-spondent.  (Download the full text at www.ce9.uscourts.gov/) 

24)  MEDICARE:  Irvine Medical Center v. Thompson, 99-56319 (9th Cir. Jan. 4, 2002).  The promulgation of a regulation by the HHS Secretary which eliminated the "carry-forward" for Medicare service providers for unreimbursed costs did not contravene a clearly expressed congressional mandate, was not based on an unreasonable interpretation of the Medicare statute, and was not an ar-bitrary or capricious agency action within the meaning of the Administrative Procedure Act;  dissenting, Judge Pregerson thought that the Secretary's action was not entitled to deference as it violated Congress's clear intent that the Medicare statute be implemented in a manner that avoids penalizing providers for short range discrepancies and does not create incentives for providers to set higher charges.  Pregerson (dissenting), Canby (author), and Thompson, Circuit Judges.  J. Neustadter of Los Angeles, CA for the plaintiffs;  R. Waterman of San Francisco, CA, for the defendant.  (Download the full text at www.ce9.uscourts.gov/) 

25)  MEDICAID:  San Lazaro Assoc. v. Connell, 00-55065 (9th Cir. Jan. 24, 2002).  As Medicaid providers are not the intended beneficiaries of the "single state agency" requirement of 42 USC Sec. 1396a(a)(5), they cannot assert a right enforceable under 42 USC Sec. 1983.  Noonan, Silverman, and Paez  (author), Circuit Judges.  S. Goldsmith of Los Angeles, CA, for the defendants-appellants;  P. Hooper of Los Angeles, CA, for the plaintiffs-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

26)  SOCIAL SECURITY:  Thomas v. Barnhart, 99-35711 (9th Cir. Jan. 24, 2002).  An administrative law judge's finding on a Psychiatric Review Technique Form that a disability-benefits claimant had deficiencies of concentration, persistence, and pace was adequately presented where the ALJ's hypothetical had directed the vocational expert (VE) to credit the claimant's physician's testimony, for which the VE was present, on the deficiencies. T.G. Nelson, Graber, and Rawlinson (author), Circuit Judges.  T. Wilborn of Portland, OR, for the plaintiff;  N. Barbosa of Seattle, WA, for the defendant.  (Download the full text at www.ce9.uscourts.gov/) 

27)  SOCIAL SECURITY:  Moore v. Commissioner of the Social Security Admin., 00-15947 (9th Cir. Jan. 24, 2002).  A Social Security disability benefits applicant's employment which begins after the end of the period for which the applicant is seeking benefits does not supply the necessary "specific and legitimate" reason for rejecting the applicant's medically supported testimony, unless that employment is wholly inconsistent with the claimed disability.  Politz, W. Fletcher, and Fisher (author), Circuit Judges.  R. Wilborn of Tucson, AZ, for the plaintiff-appellant;  AUSA W. Youngman of Portland, OR, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

28)  GOVERNMENT LAW:  Gutierrez v. Pangelinan, 00-70447 (9th Cir. Jan. 10, 2002).  Bill 495 was passed by the Guam Legislature which then adjourned;  the Governor neither signed or vetoed it; instead returned it to the Legislature stating that he would allowed it to go into law without the benefit of his signature;  this act resulted in a "pocket veto" as the Legislature had not provide adequate procedures for the return of a bill during an adjournment.  B. Fletcher, Canby, and Paez (author), Circuit Judges.  E. Heisel of Hagatna, GU, for the petitioners;  S. Flores of Hagatna, GU, for the respondents.  (Download the full text at www.ce9.uscourts.gov/) 

29)  GOVERNMENT LAW:  Skysign Intl. v. Honolulu, 99-15974 (9th Cir. Jan. 9, 2002).  Federal law does not preempt Honolulu's local ordinance barring advertisements borne by aircraft.  Thompson, O'Scannlain (author), and Tashima, Circuit Judges.  D. Sangster of Honolulu, HI, for the plaintiff;  G. Swartz of Honolulu, HI, for the defendants.  (Download the full text at www.ce9.uscourts.gov/) 

30)  GOVERNMENT LAW:  Wilkins v. USA, 00-55117 (9th Cir. Jan. 31, 2002).  In a suit brought by a Navy chaplain against the Navy on the claim that the Navy unconstitutionally administers its Chaplain Corps to prefer certain religious denominations over others, the USCA held that the doctrine of Feres v. USA, 340 US 135 (1950), does not extend to claims for non-monetary relief, and thus does not deprive the district court of jurisdiction as to such claims;  concurring, Judge Fernandez thought that, while it was possible that the plaintiff's alleged harm was caused by Navy regulations and policies approved by naval authorities, whose decisions the Board for Correction of Naval Records (BCNR) could not review, it seemed more likely from the tone of the complaint that the plaintiff's harm was caused by the actions of individuals who were not properly following those regulations and policies; in that event, the BCNR could correct the effect that those abuses had on the plaintiff, even if they resulted in (or are alleged as) constitutional violations.  Fernandez (concurring), Kleinfeld, and McKeown (author), Circuit Judges.  A. Schulcz of Vienna, VA, for the plaintiff;  P. Sholl of San Diego, CA, for the defendants.  (Download the full text at www.ce9.uscourts.gov/) 

31)  ATTORNEYS' FEES:  USA v. Marolf, 00-55730 (9th Cir. Jan. 17, 2002).  The Equal Access to Justice Act provides for a fee award to a prevailing party in a suit against the United States unless the government's position was substantially justified;  the scope of the underlying action that the court is to review in assessing substantial justification extends only as far as the prevailing party's challenge itself;  where, as here, the prevailing party challenges only the government's procedural defects, USCA determines only whether the government's procedural errors, and not its position on the merits, were substantially justified;  the USCA concluded that the government was not justified in forfeiting the defendant's property without providing notice;  it held that, consistent with Circuit precedents and the purpose of the EAJA, fees generally should be awarded where the government's underlying action was unreasonable even if it advanced a reasonable litigation position;  dissenting, Judge Fernandez thought that, taking a proper view of the whole case, the government's position was substantially justified.  Browning, Fernandez (dissenting), and Fisher (author), Circuit Judges.  S. Perez of Dana Point, CA, for the defendant;  AUSA E. Artson of Los Angeles, CA, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 

32)  ATTORNEYS' FEES:  Barrios v. California Interscholastic Federation, 00-56479 (9th Cir. Jan. 16, 2002).  The relief obtained by a plaintiff was not de minimus ( a characterization that would prevented him from being a "prevailing party" entitled to attorneys' fees and costs) where he had entered into a settlement agreement, received monetary damages of $10,000, and the policy change memorialized in the settlement agreement significantly altered the legal relationship between the parties.  Pregerson, Tashima (author), and Berzon, Circuit Judges.  L. Hollman of Los Angeles, CA, for the plaintiff;  J. Gold of Los Angeles, CA, for the defendants. (Download the full text at www.ce9.uscourts.gov/) 

33)  FEDERAL QUESTION JURISDICTION: Republican Party of Guam v. Gutierrez, 00-16796 (9th Cir. Jan. 15, 2002).  A federal district court lacks federal-question jurisdiction under 28 USC Sec. 1331 over a declaratory judgment action where the success of the claim does not depend on a violation of a federal law.  Thompson (author), O'Scannlain, and Berzon, Circuit Judges.  E. Heisel of Hagatna, GU, for the defendants;  C. Van de Veld of Hagatna, GU, for the plaintiffs.  (Download the full text at www.ce9.uscourts.gov/) 

34)  CIVIL PROCEDURE:  Laurino v. Syringa General Hospital, 00-35233 (9th Cir. Jan. 30, 2002).  A movant demonstrates excusable neglect in a motion to reinstate his case under FRCP 60(b) when the period of delay is not unreasonable under the circumstances, there is no indication of interference with the district court's docket, the district court makes no finding of bad faith, and its or-der denying the motion rests on material factual errors and fails to consider the explanation offered by the movant;  dissenting, Judge Kozinski thought that the district court had had committed none of the errors the majority attributes to it, that the movant's explanation was inadequate and that the district court was absolutely right to disregard it.  Kozinski (dissenting) and Gould, Circuit Judges, and Schwarzer (author), District Judge.  J. Meienhofer of Boise, ID, for the plaintiff;  K. Stanger of Boise, ID, for the defendants. (Download the full text at www.ce9.uscourts.gov/) 

35)  SETTLEMENT AGREEMENTS:  Doi v. Halekulani Corp., 00-16447 (9th Cir. Jan. 14, 2002).  The district court correctly enforced a negotiated settlement without holding an evidentiary hearing where, after the terms were placed on the record and agreed to by all parties in open court, the plaintiff refused to execute a written agreement.  Thompson, O'Scannlain (author), and Berzon, Circuit Judges.  E. Partington of Honolulu, HI, for the plaintiff-appellant;  R. Leong of Honolulu, HI, for the defendant-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

36)  SERVICE OF PROCESS:  Torre v. Brickey, 00-35910 (9th Cir. Jan. 24, 2002).  There is no conflict between FRCP 4(m) (a plaintiff has 120 days from the filing the complaint within which to serve summons and complaint upon the defendant) and Oregon Rev. Statute Sec. 12.020 (an action is not commenced until both filing of the complaint and service of summons on the defendant, except that an action is deemed to have been commenced on the date the complaint if filed, if summons is served on the defendant within 60 days of filing the complaint) because Rule 4(m) merely sets a procedural maximum time frame for serving a complaint, whereas ORS 12.020 is a statement of a substantive decision by Oregon that actual service on, and thus actual notice to, the defendant is an integral part of the several policies served by the statute of limitations. Hawkins, Tashima, and Gould, Circuit Judges.  Per Curiam.  R. Torre pro se;  J. Brickey pro se.  (Download the full text at www.ce9.uscourts.gov/) 

37)  REAL ESTATE / NATIVE AMERICAN LAW: USA Byrne, 00-16008 (9th Cir. Jan. 28, 2002).  The district court erred in dismissing this quiet title action for lack of jurisdiction and also in fixing the title to the lands in question on the basis of river movements that occurred prior to 1905, when the United States patented the lands to the State of California.  Roney, Hug, and Thomas (author), Circuit Judges.  L. Schiffer of Washington, DC, for the appellant;  J. Braselton of Bullhead City, AZ, for the appellees.  (Download the full text at www.ce9.uscourts.gov/) 

38)  NATIVE AMERICAN LAW:  Linneen v. Gila River Indian Community, 00-15120 (9th Cir. Jan. 7, 2002).  A "sue and be sued" clause in a tribe's corporate charter waived tribal sovereign immunity as to the tribe's corporate activities, but not also as to its governmental activities.  Politz, W. Fletcher (author), and Fisher, Circuit Judges.  J. Mueller of Scottsdale, AZ, for the plaintiffs-appellants;  S. Gan of Tucson, AZ, for the defendants-appellees. (Download the full text at www.ce9.uscourts.gov/) 

39)  CIVIL RIGHTS / NATIVE AMERICAN LAW: Dawavendewa v. Salt River Project Agricultural Improvement and Power Dist., 00-16787 (9th Cir. Jan. 2, 2002).  The Navajo Nation was an indispensable party in a suit alleging a hiring preference policy that violated Title VII of the Civil Rights Act brought by a non-Nation member against an employer operating on reservation lands pursuant to a lease with the Nation.  Beezer, Trott (author), and Tallman, Circuit Judges.  B. Schleier of Phoenix, AZ, for the appellant;  J. Egbert of Phoenix, AZ, for the appellee.  (Download the full text at www.ce9.uscourts.gov/) 

40)  CIVIL RIGHTS:  American Family Association v. San Francisco, 00-16415 (9th Cir. Jan. 16, 2002).  A city's formal disap-proval of an advertising campaign that espoused the view that homosexuality is a sin and that homosexuals could change their sexual orientation violated neither the First Amendment nor the California Constitution;  dissenting, Judge Noonan thought that to assert that a group's religious message and religious categorization of conduct are responsible for murder is to directly attack the group's religion..  Noonan (dissenting), Hawkins (author), and Tashima, Circuit Judges.  B. Fahling of Tupelo, Miss, for the appellants;  L. Renne of San Francisco, CA, for the appellee.  (Download the full text at www.ce9.uscourts.gov/) 

41)  CIVIL RIGHTS:  Headwaters Forest Defense v. Humbolt, 98-17250 (9th Cir. Jan. 11, 2002).  On remand from the Supreme Court to permit reconsideration in light of Saucier v. Katz, 533 US 194 (2001), the USCA reaffirmed its prior conclusion that that state officials were not entitled to qualified immunity for their use of pepper spray on nonviolent, passive protestors, an act which a rational juror could conclude was an unreasonable use of force in violation of the Fourth Amendment and which would be clear to a reasonable officer was excessive.  Bright, Pregerson (author), and W. Fletcher, Circuit Judges.  M. Hughes of Denver, CO, for the plaintiffs;  N. Delaney of Eureka, CA, for the defendants.  (Download the full text at www.ce9.uscourts.gov/) 

42)  CIVIL RIGHTS:  Lee v. Katz, 00-35755 (9th Cir. Jan. 10, 2002).  When a city leases property that has been a public forum to a private party and delegates to that lessee the exclusive right to regulate speech within the leased property, the lessee becomes a "state actor" for purposes of the First and Fourteenth Amendment;  the USCA thus remanded the case to the district court for it to determine whether the restrictions imposed by the lessee's public speech policy are reasonable restrictions on the time, place, and manner of protected speech, and are narrowly tailored to serve a significant governmental interest.  Thompson (author), Tashima, and Graber, Circuit Judges.  H. Grey of Beaverton, OR, for the plaintiffs-appellants;  K. O'Kasey of Portland, OR, for the defendants-appellees.  (Download the full text at www.ce9.uscourts.gov/) 

43)  IMMIGRATION:  Montiel-Barraza v. INS, 00-70784 (9th Cir. Jan. 16, 2002).  An alien convicted of driving under the influence of alcohol (DUI), with multiple prior convictions, in violation of Secs. 23152(a) and 23175 of the California Vehicle Code is not an aggravated felon removable under 8 USC Sec. 1227(a)(2)(A)(iii);  an enhancement statute applied to the alien for prior DUI convictions does not convert the DUI into an aggravated felony.  Beezer and Wardlaw, Circuit Judges, and Schwarzer, District Judges.  Per Curiam.  J. Sanchez of San Ysidro, CA, for the petitioner-appellants;  C. Ferrier of Washington, DC, for the respondent-appellee.  (Download the full text at www.ce9.uscourts.gov/) 

44)  IMMIGRATION:  Montero-Martinez v. Ashcroft, 99-70596 (9th Cir. Jan. 16, 2002).  As the petitioners' contention that their adult daughter qualified as a "child" for purposes of 8 USC Sec. 1229b(1)(D) lacked merit, their challenge to the order of removal failed.  Pregerson (author), Silverman, and Tallman Circuit Judges.  N. Marchi of Seattle, WA, for the petitioners;  D. Ogden of Washington, DC, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

45)  IMMIGRATION:  Ramirez-Alejandre v. Ashcroft, 00-70724 (9th Cir. Jan. 9, 2002).  An alien who failed to move to reopen in order to present "new evidence" regarding his application for suspension of deportation in a proceeding pending before the BIA had no colorable claim that his due process rights were violated when the BIA declined to consider as evidence documents appending to his briefs on appeal;  the USCA thus lacked jurisdiction to hear the claim;  dissenting, Judge Wardlaw thought that the rule of Larita-Martinez v. INS, 220 F.3d 1092 (9th Cir. 2000), controlled the disposition of this case and that the majority's opinion could not be squared with the plain language of Larita-Martinez:  "There is no administrative rule requiring the Board to review all relevant evi-dence submitted on appeal.  It is beyond argument, however, that the Due Process Clause requirement of a 'full and fair hearing,' mandates that the Board do so in its capacity as a reviewing tribunal."  Fernandez, Rymer (author), and Wardlaw (dissenting), Circuit Judges.  J. Kaufman of San Francisco, CA, for the petitioner;  M. Dougherty of Washington, DC, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 
 

46)  IMMIGRATION / CRIMINAL LAW:  Kim v. Ziglar, 99-17373 (9th Cir. Jan. 9, 2002).  When the INS detains a lawful permanent resident under 8 USC Sec. 1226(c), which requires the Attorney General to take into custody, and detain without bail certain categories of aliens during the pendency of removal proceedings against them, due process requires that the INS hold a bail hearing with reasonable promptness to determine whether the alien is a flight risk or a danger to the community;  the USCA did not hold that the unavailability of bail under Sec. 1226(c) is unconstitutional on its face;  it did hold that it is unconstitutional as applied to lawful permanent resident aliens.  Hug, Noonan, and W. Fletcher (author), Circuit Judges.  M. Walters of Washington, DC, for the respondents;  J. Rabinovitz of New York, NY, for the petitioner.  (Download the full text at www.ce9.uscourts.gov/) 
 

47)  IMMIGRATION / CRIMINAL LAW:  USA v. Amador-Leal, 01-10037 (9th Cir. Jan. 9, 2002).  The immigration consequences of an illegal alien's guilty plea and the resulting conviction remain collateral following the enactment of the Antiterrorism and Effective Death Penalty Act 1996 and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.  Fernandez, Rymer (author), and Wardlaw, Circuit Judges.  AFPD S. Popko of Phoenix, AZ, for the defendant;  G. Ellexson of Phoenix, AZ, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 
 

48)  IMMIGRATION / ANTI-GRATUITY LAW: USA v. Feng, 00-50063 (9th Cir. Jan. 18, 2002).  The government's offer to recommend asylum for testifying alien witnesses and guarantees of release without bond did not violate the federal anti-gratuity statute, 18 USC Sec. 201(c)(2), or warrant suppression of the testimony.  O'Scannlain and Paez, Circuit Judges, and King (author), District Judges.  R. Swain of San Diego, CA, for the defendants;  AUSA B. Pearce of San Diego, CA, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 

49)  HARBORING & ACCESSORY LAW: USA v. Hill, 00-30023 (9th Cir. Jan. 29, 2002).  It is constitutional to prosecute a wife for harboring her fugitive husband and for being an accessory after the fact to his crime;  the federal proscription against harboring a fugitive confers jurisdiction even if the harboring occurs outside the United States; an accessory indictment that fails to specify the principal's crime is not legally sufficient.  T.G. Nelson (author), Graber, and Rawlinson, Circuit Judges.  E. Margolin of San Francisco, CA, for the defendant;  AUSA C. Cardani Washington, DC, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 

50)  INDIGENT DEFENSE:  Russell v. Hug 99-16999 (9th Cir. Jan. 4, 2002).  A federal district court's Criminal Justice Act Plan, which requires members of its indigent defense panel to be members of the state bar as well as the district court's own bar, does not violate the Equal Protection Clause, as it is rationally related to legitimate governmental objectives.  Wallace, Canby (author) and Tashima, Circuit Judges.  J. Giannini of Los Angeles, CA, for the plaintiff;  P. Smith of Washington, DC, for the defendants. (Download the full text at www.ce9.uscourts.gov/) 

51)  FELONY MISBRANDING:  USA v. Watkins, 00-50656 (9th Cir. Jan. 29, 2002).  Section 303 of the Food, Drug, and Cosmetic Act, 21 USC Sec. 333(a)(2), imposes felony liability for misbranding "with the intent to defraud or mislead";  this provision requires that materiality be proven as an element of the offense under either a theory of intent to defraud or a theory of intent to mislead;  dissenting, Judge Fernandez thought that intentional misrepresentations in this area were ipso facto material due to their inevitable impact upon the victim; they need not be proved as part of the government's case in Judge Fernandez's view.  Fernandez (dissenting), Klein-feld, and McKeown (author) Circuit Judges.  E. Iredale of San Diego, CA, for the defendant;  AUSA M. Pierson of San Diego, CA, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 

52)  CELL SEARCHES:  Alfrey v. USA, 00-35838 (9th Cir. Jan. 11, 2002).  The "discretionary-function" exception barred an action against prison officials under the Federal Tort Claims Act for their decision on how to conduct a cell search and how to investigate a reported threat by an inmate;  the search of the cell in this case, even if performed negligently, involved the exercise of discretionary functions, thus barring liability under the FTCA;  dissenting in part, Judge Tashima thought that neither case law nor the record sup-ported the majority's conclusion that, once the decision to conduct a cell search has been made, requiring that the search be conducted with ordinary care would eroded prison safety, unduly compromised prisoner privacy, or required allocation of significantly more resources.  Thompson, Tashima (dissenting in part), and Graber (author), Circuit Judges.  L. Williams of Portland, OR, for the plaintiff;  AUSA C. Casey of Portland, OR, for the defendant.  (Download the full text at www.ce9.uscourts.gov/) 

53)  SEARCH & SEIZURE / NATIVE AMERICAN LAW: Bishop Paiute Tribe v. County of Inyo, 01-15007 (9th Cir. Jan. 4, 2002).  The County of Inyo, California and its agents violated an Indian tribe's sovereign immunity when they obtained and executed a search warrant against the Tribe and tribal property;  the County District Attorney and Sheriff acted as County officers when they ob-tained and executed a search warrant over tribal property, thus subjecting the County to liability under 42 USC Sec. 1983;  neither the DA nor the Sheriff is entitled to qualified immunity as they violated clearly established law.  Pregerson (author) and Rawlinson, Circuit Judges, and Weiner, District Judge.  R. LePera of San Diego, CA, for the plaintiffs;  J. Kirby of Independence, CA, for the defen-dants.  (Download the full text at www.ce9.uscourts.gov/) 

54)  EXIGENT CIRCUMSTANCES:  USA v. Ojeda, 01-10020 (9th Cir. Jan. 3, 2002).  While executing a search warrant for a residence, the warrantless search of a garage five feet behind the residence was justified under the "exigent circumstances" exception, where the warrant gave the police the right to be on the "premises," the police smelled chemicals used to make methamphetamine coming form the garage, and, when the suspect named in the warrant emerged from the garage, the garage door slammed shut and was locked from the inside;  the USCA rejected the contention that the police "created" the exigent circumstances, finding no case support for that analysis.  Roney, Hug, and Thomas, Circuit Judges.  Per Curiam.  AUSA B. Valliere of San Francisco, CA, for the plaintiff;  N. Wilder of San Francisco, CA, for the defendant. (Download the full text at www.ce9.uscourts.gov/) 

55)  SEARCH & SEIZURE:  USA v. Patzer, 00-30360 (9th Cir. Jan. 14, 2002).  A suspect's consent to search after having been unlawfully arrested for driving under the influence of marijuana was tainted where the consent followed shortly after the suspect's arrest, while he was still sitting in the police car at the scene of his arrest and had not yet been read his Miranda rights.  Reavley (author), B. Fletcher, and Tallman, Circuit Judges.  S. Rubin of Boise, ID, for the defendant;  AUSA M. Fica of Pocatello, ID, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 

56)  WARRANTLESS ARREST:  USA v. Valencia-Amezcua, 00-30365 (9th Cir. Jan. 22, 2002).  A suspect's proximity to the door of a secret room housing a drug lab, his position with others sitting on a bed blocking entrance to the secret room and suggesting a purpose to deter officers from its discovery, gave the officer probably cause for a warrantless arrest.  Hug, T.G. Nelson, and Gould (author), Circuit Judges.  W. Labahn of Eugene, OR, for the defendant;  AUSA P. Holsinger of Portland, OR, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

57)  BORDER SEARCHES: USA v. Molina-Tarazon, 00-50171 (9th Cir. Jan. 29, 2002).  The disassembly and search of a suspect's truck's gas tank did not qualify for the routine border search exception for warrantless searches without probable cause, as the force required to effect the tank's removal, the potential danger associated with driving a vehicle after a component vital to its proper operation has been dismantled and reassembled, and the resulting diminution of the driver's sense of security, resulted in a significant degree of intrusiveness;  Judge Brunetti concurred to the extent that vehicular border searches could be conducted in a manner so intrusive as to be non-routine;  he also concurred in the result as he thought the inspectors had a reasonable suspicion to justify the search no matter what its category;  however, he thought the search here was an example of the simple disassembly of a gas tank in the ordinary course of inspection.  D.W. Nelson, Brunetti (concurring), and Kozinski (author), Circuit Judges.  AFPD S. Khojayan of San Diego, CA, for the appellant;  AUSA P. O'Toole of San Diego, CA, for the appellee.  (Download the full text at www.ce9.uscourts.gov/) 

58)  SCIENTIFIC EVIDENCE:  Domingo v. T.K., 00-15064 (9th Cir. Jan. 3, 2002).  A medical expert's bare assertion linking the length of time spent on malleting during a hip replacement surgery to fat embolism syndrome did not meet the standards of reliability required for admissibility as expert testimony.  B. Fletcher, Canby (author), and Paez, Circuit Judges.  J. Edmunds of Honolulu, HI, for the plaintiffs;  E. Burke and J. Duffy of Honolulu, HI, for the defendants.  (Download the full text at www.ce9.uscourts.gov/) 

59)  MISBRANDING:  USA v. Geborde, 00-50000 (9th Cir. Jan. 24, 2002).  A conviction for misbranding under the Food, Drug, and Cosmetic Act, which makes it a felony to misbrand a drug held for sale after receipt in interstate commerce, was not supported by sufficient evidence where the defendant gave away a home-made "designer drug" in non-commercial settings, and never contemplated selling the drug;  his conviction for felony operation of an unregistered drug manufacturing facility also had to be reversed, although the evidence was sufficient to sustain a conviction for the misdemeanor version of the offense.  Pregerson, Reinhardt, and Silverman (author), Circuit Judges.  DFPD M. Tanaka of Los Angeles, CA, for the defendant;  S. Anjargolian of Washington, DC, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 

60)  CRIMINAL LAW:  USA v. Boren,01-50083 (9th Cir. Jan. 23, 2002).  Requesting a stop payment on an official bank check by falsely claiming that the checks had been lost or stolen violates 8 USC Sec. 1014, which proscribes making of false statements to a federally insured bank in connection with any bank "application" or "commitment," not just those relating to loans.  Pregerson, Reinhardt, and Silverman (author), Circuit Judges.  AUSA R. Cheng of Los Angeles, CA, for the plaintiff; R. Richard of Los Angeles, CA, for the defendant.  (Download the full text at www.ce9.uscourts.gov/) 

61)  CRIMINAL LAW:  USA v. Guagliardo,01-50066 (9th Cir. Jan. 17, 2002).  For purposes of the crime of possession of child pornography that has been transported in interstate or foreign commerce, a defendant "produces" images of child pornography with materials from foreign commerce when he copies the images onto computer disks that were manufactured abroad;  dissenting in part, Judge Fernandez thought that the condition of Guagliardo's supervised release prohibiting the possession of pornography was proper.  Browning, Fernandez (dissenting in part), and Fisher, Circuit Judges.  Per Curiam.  DFPD J. Locklin of Los Angeles, CA, for the defendant;  AUSA R. Cheng of Los Angles, CA, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 

62)  JURIES:  Packer v. Hill, 00-57051 (9th Cir. Jan. 15, 2002).  A state court's acts of telling a holdout juror who asked to be dismissed that deliberations would have start all over with another person if she left, reading a letter from the jury foreman in open court which described the holdout as a person unable to understand rules or reason, and indicating that the jury should continue deliberating if it would allow the jury to "progress" after learning that the breakdown was 11 to 1, without providing a balancing instruction that the juror should not abandon a conscientiously held view, were coercive and violative of the petitioner's due process rights;  dissenting, Judge Silverman noted that the defense was aware of everything the trial judge had said and done, but instead of moving for a mistrial, implored the judge to keep the holdout on the jury and stated that the defense had no objection to allowing the deliberations to continue;  he also disagreed with the majority ruling that the petitioner's rights were violated when the court ordered him to wear a "leg brace" for security reasons.  Pregerson (author), Reinhardt, and Silverman (dissenting), Circuit Judges.  E. Newman of Los Angeles, CA, for the petitioner;  K. Sokoler of Los Angles, CA, for the respondents.  (Download the full text at www.ce9.uscourts.gov/) 

63)  SUPERVISED RELEASE:  USA v. Gomez-Gonzales, 01-10366 (9th Cir. Jan. 15, 2002).  Whether an accused has violated a condition of supervised release need not be submitted to a jury and proven beyond a reasonable doubt.  Beezer (author), Trott, and Tallman, Circuit Judges.  AFPD D. Blank of San Francisco, CA, for the defendant-appellant;  AUSA J. Wilson of San Francisco, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.usca-portal.com)

64)  RESTITUTION:  USA v. Lincoln,01-30027 (9th Cir. Jan. 16, 2002).  The U.S. Post Office can be a "victim" under the Mandatory Victim Restitution Act.  Kleinfeld and Gould, Circuit Judges, and Roll (author), District Judge.  ADPD M. Taggart of Anchorage, AK, for the defendant;  AUSA K. Feldis of Anchorage, AK, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 

65)  SENTENCING:  USA v. Martin, 00-10443 (9th Cir. Jan. 29, 2002).  The district court erred in departing upward two offense levels to reflect the defendant's likelihood of recidivism, a factor to be considered in assessing whether a criminal history score is inaccurate, not in departing from an offense level.  Canby, Graber (author), and Paez, Circuit Judges.  B. Locke of Sacramento, CA, for the defendant;  AUSA R. Lapham of Sacramento, CA, for the plaintiff.  (Download the full text at www.ce9.uscourts.gov/) 

66)  SENTENCING:  USA v. Buckland, 99-30285 (9th Cir. Jan. 18, 2002).  21 USC Sec. 841(b)(1(A) and (B), which allow sentences over the basic 20-year maximum of Sec. 841(b)(1)(C) for default cases where the quantity of drugs is not a sentence-determining factor, is not facially unconstitutional;  dissenting in part, Judge Hug, joined in his part V by Judges Reinhardt and Nelson, although agreeing with the majority that the provisions of Sec. 841 setting forth increased maximum sentences for drug quantity and type must be charged in the indictment and proved to a jury beyond a reasonable doubt, thought these provision prescribed separate aggravated offenses, although labeled as penalties, and that the quantities specified are elements of those aggravated offenses;  dissenting, Judge Tashima, joined by Judges Reinhardt and Paez, thought that Sec. 841 was facially unconstitutional and that the majority exceeded the limits of statutory construction.  Schroeder, Hug (dissenting in part), Reinhardt, O'Scannlain, Trott (author), T.G. Nelson, Kleinfeld, Tashima (dissenting), Gould, Paez, and Tallman, Circuit Judges.  AUSA R. Cheng of Los Angeles, CA, for the plain-tiff;  R. Richard of Los Angeles, CA, for the defendant.  (Download the full text at www.ce9.uscourts.gov/) 

67)  SENTENCING:  USA v. Matthews, 98-10499 (9th Cir. Jan. 29, 2002).  When a district court errs in sentencing, the court of appeals generally will remand for resentencing on an open record without limitations on the district court's discretion to consider additional evidence;  the USCA followed the general rule in the instant case.  Schroeder, B. Fletcher, Kozinski, O'Scannlain, Fernandez, T.G. Nelson, Graber, McKeown, Wardlaw, Paez (author), and Berzon, Circuit Judges.  AFPD J. Lambrose of Las Vegas, NV, for the defendant;  AUSA P. Ko of Las Vegas, CA, for the plaintiff. (Download the full text at www.ce9.uscourts.gov/) 

68)  HABEAS CORPUS:  Blair v. Crawford,99-17665 (9th Cir. Jan. 7, 2002).  An application to the Nevada Supreme Court for an extraordinary writ is a "properly filed" application for state post-conviction relief which tolls the limitations period for filing a federal habeas petition.  Beezer, Trott, and Tallman (author), Circuit Judges.  FPD M. Powell of Reno, NV, for the petitioner;  K. Briggs of Ely, NV, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

69)  HABEAS CORPUS: Corjasso v. Ayers, 00-16591 (9th Cir. Jan. 17, 2002).  A district court's incorrect dismissal of a pro se habeas petition for the reason that the petitioner used white-out and pen on his cover sheet to put in the correct name of the court in which he filed, together with the court's loss of the body of the petition, constituted extraordinary circumstances warranting the equitable tolling of limitations period for filing a habeas petition.  Politz, W. Fletcher (author), and Fisher, Circuit Judges. Q. Denver of Sacramento, CA, for the petitioner;  B. Lockyer of Sacramento, CA, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

70)  HABEAS CORPUS:  Peterson v. Lampert, 00-35897 (9th Cir. Jan. 11, 2002). In failing to include his ineffective assistance of counsel claim in his petition for review by direct reference or incorporation, a state habeas petitioner failed to fairly present the issue to his state supreme court for purposes of federal habeas review.  Hug, T.G. Nelson (author), and Gould, Circuit Judges.  M. Sussman of Portland, OR, for the petitioner;  AUSA K. Cegla of Salem, OR, for the respondent.  (Download the full text at www.ce9.uscourts.gov/) 

71)  HABEAS CORPUS:  Brown v. Roe,00-16943 (9th Cir. Jan. 29, 2002).  Where a novel equitable tolling of the statute of limitations claim under a new statute was raised for the first time in an objection to a magistrate's findings and recommendations, the district court abused its discretion in refusing to allow the pro se habeas petitioner of very little education to present the claim.  Politz, W. Fletcher, (author), and Fisher, Circuit Judges. Q. Denver of Sacramento, CA, for the petitioner;  B. Lockyer of Sacramento, CA, for the respondent. (Download the full text at www.ce9.uscourts.gov/) 

 1)  SECURITIES:  SEC v. Whitworth Energy Resources, Ltd., 00-55799 (9th Cir. Jan. 18, 2002) (unpublished).  Beezer and Wardlaw, Circuit Judges, and Schwarzer, District Judge.
         Tosti appealed an order of the District Court for the Central District of California, Judge Snyder presiding, which denied her motion to confirm the validity of her purported lien on property owned by her son, Sacker.  The USCA affirmed in part and reversed and remanded in part. Tosti first challenged the district court's finding that the lien was a fraudulent transfer under Sec. 3439.04(a) of the California Uniform Fraudulent Transfer Act (CUFTA).  However, the USCA concluded that the district court did not clearly err in finding that Sacker made the transfer with actual fraudulent intent.  The presence of the following five "badges of fraud," one or more of which provides "evidence from which an inference of fraudulent intent may be drawn," sufficiently supported the court's finding:  (1) transfer to an insider, (2) threat of suit, (3) retention of control over property, (4) concealment of the transfer, and (5) an absence of reasonably equivalent value received for the transfer.  First, the USCA noted that it was undisputed that the transfer was to an insider—namely to the debtor's mother.  Second, Sacker was threatened with suit when the transfer occurred.  He had been subpoenaed by the SEC on March 17, 1997, and his attorney was notified of a subpoena on Sacker's company on May 15, 1997, one day before the lien was executed on May 16, 1997.  Moreover, the lien was recorded on December 16, 1997, during the pendency of the enforcement liti-gation.  Third, Sacker retained control over the property by failing to record it for seven months after it was executed.  Fourth, the transfer was concealed and never disclosed before it was recorded.  Fifth, as the district court correctly found, Sacker did not receive reasonably equivalent value for the lien.  Tosti argued that the consideration given Sacker for the lien was the securing of a prior debt to her and her promise not to sue him on that debt.  Although the securing of an antecedent debt constitutes value under Cal. Civ. Code Sec. 3439.03, that section does not indicate what is "reasonably equivalent value" for a transfer or obligation.  Here, Sacker derived little benefit from the securing of his antecedent debt to Tosti.  Any benefit he might have received from Tosti's forbearance from suit was minimal, particularly in light of Tosti's declaration that she would not have sued her son in any event.  Because, at oral argument, the SEC abandoned its argument that the transfer was also constructively fraudulent, the USCA declined to address Tosti's appeal from that finding.  Tosti also maintained that the lien constituted a valid preference for one creditor over another under CUFTA Sec. 3432. Even if the transfer could be characterized as a preference, however, a preference is valid only "in the absence of fraud."  Because Sacker executed the lien with actual fraudulent intent, such a preference would be invalid.  Finally, Tosti argued that the lien was not voidable because she was a transferee in good faith and for reasonably equivalent value under CUFTA Sec. 3439.08.  The USCA agreed that her forbearance from suit on the antecedent debt for an unspecified time period was of minimal value insufficient to support th lien on the entire value of the house.  However, the pre-existing debt was sufficient to support a lien to the extent of the amount of the $50,000 note.  That is true even if suit were not barred on the note.  To the extent, then, that Tosti had given fair value, her good faith is irrelevant.  The USCA thus remanded to the district court with direction to enter an order confirming the lien to the extent of $50,000.

2)  SECURITIES:  SEC v. Alliance Leasing Corp., 00-56019 (9th Cir. Jan. 3, 2002) (unpublished).  Pregerson, Reinhardt, and Silverman, Circuit Judges.
       Prime Atlantic, Halsey and Giavanno appealed a decision of the District Court for the Southern District of California, Judge Jones presiding, which granted summary judgment for the SEC in the SEC's securities fraud action arising out of the sale of investments in an equipment leasing program offered by Alliance Leasing Corporation and marketed by Prime Atlantic, Halsey, and Giavanno.  The SEC cross-appealed the district court's denial of the SEC's request for a permanent injunction against the appellants.  The USCA affirmed. The appellants argued that the district court lacked jurisdiction to enter the amended order and judgment.  The USCA found that the district court had the authority to disregard the technical local rule and consider the Rule 59 motion timely filed under Fed. R. Civ. P. 59(b).  The notices of appeal filed before disposition of the timely Rule 59 motion did not divest the district court of jurisdiction.  Fed. R. App. P. 4(a)(4).  The USCA thus had jurisdiction to consider the amended judgment.  The appellants argued that the district court erred in holding that the investments were "investment contracts" securities under 15 USC Secs. 77b(a)(1) and 78c(a)(1).  An investment contract is (1) an investment of money (2) in a common enterprise, evidenced by either vertical or horizontal pooling, (3) with the expectation of profits produced by the efforts of others. The appellants contested only the second and third elements.  However, the USCA noted that the undisputed facts establish that both elements existed in this case.  A common enterprise existed because Alliance pooled investors' interests and Alliance and the investors shared profits.  The expectation of profits arose from the efforts of Alliance, not the investors.  The first investment agreement gave investors no control over the investments.  To the extent that the second investment agreement gave the investors theoretical control over the leases, the undisputed facts established that the investors did not exercise any control.  The appellants also argued that the existence of disputed facts about whether they believed that the leasing program was a security and whether they relied in good faith on their attorneys' advice concerned scienter and precluded summary judgment.  However, the USCA noted that, whether or not the appellants believed that the investment program was a security is not material to scienter.  Scienter addresses whether the defendants knowingly or recklessly engaged in a deception.  Thus, any issue of fact regarding whether the Prime Atlantic defendants knew the investments were securities was not material to whether failure to disclose the 30% commission was reckless.  Moreover, good faith reliance on advice of counsel is not a defense to allegations of scienter; rather, in this case good faith reliance is relevant only to the question of whether a permanent injunction is warranted.  The appellants also argued that the district court erred in holding that failure to disclose the 30% commission was material as a matter of law to the investor's assessment of the strength of the potential investment.  The USCA agreed with the district court that the 30% commissions were "so obviously important to an investor, that reasonable minds cannot differ of the question of materialty." The appellants next argued that that the SEC failed to establish that investors relied on the misrepresentation regarding the amount of the commission.  However, the USCA noted that the SEC, unlike a private plaintiff, is not required to establish reliance for a Sec. 10b or Rule 10b-5 securities fraud action.  The appellants maintained that the district court improperly calculated the amount of disgorgement.  The appellants argued that the district court should have re-duced the disgorgement by the amounts investors recovered from Alliance in the bankruptcy proceeding.  Disgorgement prevents unjust enrichment, requires return of ill-gotten gains and is independent of other remedies.  The theory behind disgorgement is deter-rence, not compensation.  The USCA concluded that the appellants should not be allowed to keep ill-gotten gains merely because the investors recovered some of the money from Alliance in the bankruptcy proceeding.
 The appellants also maintained that Prime Atlantic's money frozen by the SEC should be credited towards Halsey's and Giavanno's disgorgement because, they allege, they were subject to tax liability as if they had received the money as income.  However, appellants came forward with no evidence to support their claim, or, even if true, their entitlement to a credit against their disgorgement obligations.  The appellants further argued that the district court should have reduced the disgorgement by the commissions Prime Atlantic paid to its sales representatives.  The district court properly reduced the disgorgement by 15%, the amount of commis-sions paid to the independent contractors.  Hateley v. SEC, 8 F.3d 653 (9th Cir. 1993) (the proper disgorgement amount is the amount of commissions retained by Prime Atlantic, rather than the total amount received).  The appellants next argued that the district court erred in ordering the maximum civil penalties and interest in the absence of evidence that they engaged in bad faith, fraudulent or reckless conduct and in light of their good faith defense.  This argument failed because the undisputed facts established that the appellants did engage in security fraud by recklessly failing to disclose 30% commissions to investors.  The district court did not abuse its discretion in ordering the defendants to pay civil penalties authorized by the statute.  15 USC Secs. 77t(d)(2)(C) and 78u(d)(3)(1997).
        Finally, the SEC argued that the district court abused its discretion in declining to enjoin the appellants from future violations.  However, the USCA found that the district court had considered the relevant factors and concluded that they did not justify a permanent injunction because three of those factors weighed against relief.  The district court thus did not abuse its discretion in denying a permanent injunction.

3)  BANKRUPTCY / TAXATION: Balzer v.USA, 00-16564 (9th Cir. Jan. 9, 2002) (unpublished).  Brunetti, Kleinfeld, and Thomas, Circuit Judges.   While the IRS may have been negligent in failing to file a proof of claim in the Balzer / Shopes, Inc. bankruptcy proceeding for the full amount to which it was entitled, negligence in proposing a claim in Chapter 11 does not amount to an exercise of dominion and control.  Other courts have credited taxpayers for IRS error in the contexts of a valid levy under 26 USC Sec. 6631(a) and of a levy and notice of seizure under 26 USC Sec. 6335.  But even with a levy or seizure in place, the IRS does not necessarily exercise dominion and control merely because it disposes of assets in a manner different from that specified by the taxpayer.  Negligence by the IRS in claiming money in the control of a debtor-in-possession under Chapter 11 is not the same as dominion and control of the assets.  The appellants thus retained their independent tax liability to "pay over" to the IRS the assessed penalty due for their corporation's withheld employment taxes.  No genuine issue of material facts exists which would render the district court's grant of summary judgment improper.

4)  TAXATION: Marsh v. CIR, 00-71137 (9th Cir. Jan. 24, 2002) (unpublished).  Kleinfeld, Hawkins, and Silverman, Circuit Judges.  Marsh appealed pro se the Tax Court's decision sustaining the CIR's finding of tax deficiencies against him for tax years 1986 through 1995.  The Tax Court properly held that Marsh is a taxpayer and that the compensation he received is subject to federal income tax.  Marsh's contention, that he is not a citizen of the United States, but of "the Nation of Hawaii" and that the United States thus has no ju-risdiction over him, was frivolous.  The USCA thus affirmed the Tax Court's judgment.

5)  TAXATION: Carpenter v. CIR, 01-35346 (9th Cir. Jan. 2, 2002) (unpublished). Schroeder, Trott, and Paez, Circuit Judges.
        After entry of final judgment, Carpenter appealed pro se a decision of the District Court for Oregon, Judge Aiken presiding, denying his motion to remand his quiet title action to the Oregon state court in which it was originally filed.  The USCA affirmed.  Although Carpenter's claim was ultimately dismissed by the district court for failure to show a waiver of sovereign immunity, Carpenter did not take issue with the substance of that decision on appeal.  He thus waived it.  Instead, Carpenter argued that his claim to quiet title against the CIR had been improperly removed.  The USCA disagreed.  Civil actions against the United States, its agencies, or its officers brought in a state court are subject to removal to federal court.  Carpenter also seemed to argue that removal was improper where the district court determines that it lacks subject matter jurisdiction.  But any such contention failed because dismissal for a failure to demonstrate a waiver of sovereign immunity and for want of subject matter jurisdiction are conceptually distinct.  Finally, Carpenter claimed that the removal was procedurally flawed on two grounds.  First, he decried the fact that he was not provided an opportunity to object before the case was removed.  Because he was not entitled to that opportunity, his claim failed.  Similarly, Carpenter claimed that the CIR had to show in an evidentiary hearing "good cause" to justify removal.  But, again, there is no such require-ment.

6)  TAXATION: George v. CIR, 01-70133 (9th Cir. Jan. 2, 2002) (unpublished). Schroeder, Trott, and Paez, Circuit Judges.
 George appealed pro se from a decision of the tax court that determined his tax deficiency for 1997 and imposed penalties.  The USCA affirmed in part, and vacated and remanded in part.   The USCA concluded that the tax court properly found George subject to federal taxation.  The tax court had acted within its discretion in imposing a penalty under 26 USC Sec. 6673 because George pursued frivolous claims for purpose of delay.  It properly disallowed the deductions George urged in his proposed amended tax return, because George did not provide credible evidence to substantiate the deductions.  It also acted within its discretion in ex-cluding documents George proffered at trial because, as George conceded, he did not provide the CIR with copies of the documents before trial, as required by the court's standing order.  Finally, as the tax court erred in failing to credit George for $2,154 in social security overpayments, the USCA thus remanded for recalculation of George's deficiency in light to this credit.

7)  BANKRUPTCY: In re Allen, 00-35528 (9th Cir. Jan. 11, 2002) (unpublished).  O'Scannlain, Graber, and McKeown, Circuit Judges.
       Jacqueline Allen appealed from a decision of the District Court for Montana, Judge Shanstrom presiding, which affirmed a bankruptcy court order granting Christopher Allen's objections to Jacqueline's proofs of claims 6, 8, 10, and 12, approving Christopher's Chapter 13 Plan, and denying Jacqueline relief from the automatic stay.  The bankruptcy court's refusal to lift the stay is the subject of an opinion filed separately. [See #5 under Published Decisions above.] The USCA affirmed as to the remaining issues.
        First, as to the bankruptcy court's decision to grant Christopher's objections to Jacqueline's proofs of claims, the USCA noted that regarding her proof of claim 6 Jacqueline asserted that Christopher was indebted to her for more than $3 million in damages resulting from an alleged assault by Christopher.  The $3 million contained a priority component for approximately $280,000 in uninsured medical costs.  The dissolution decree did not encompass Jacqueline's medical expenses.  In the absence of a court order, Jacqueline's medical expenses were not entitled to priority.  She cited no authority suggesting otherwise.  Her proofs of claims 10 and 12 amended her proof of claim 8.  She sought priority for unpaid alimony in the sum of $10,335 plus 35% of certain bonuses Christopher received from his employer.  Under the dissolution decree, Jacqueline was entitled to 35% of Christopher's earnings above $156,000.  The bankruptcy court found that Christopher was current in his payments and that in 1998 he earned less than $156,000.  Jacqueline did not direct the court to anything in the record to indicate that the bankruptcy court erred in its findings. 
        As for the bankruptcy court's approval of Christopher's Chapter 13 Plan, Jacqueline argued that the Plan failed to make any allowance for her personal injury claims against Christopher.  However, the USCA found that his argument failed for the same reason that her arguments relating to proof of claim 6 failed.  At present, there existed no liquidated debt or judgment relating to this claim.  Jacqueline maintained that Christopher filed to satisfy 11 USC Secs. 109(e) and 1325(b) by, respectively, not earning a regular income and refusing to commit all of his disposable income to the Plan.  Jacqueline did not point to any evidence that was properly before the bankruptcy court indicating that Christopher did not earn a regular income or that the Plan did not account for all of Christopher's dis-posable income.  To the extent that circumstances may have changed with regard to Christopher's employment or income since the Plan's confirmation, Jacqueline could petitioned for modification of the Plan.  See 11 USC Sec. 1329.  Jacqueline next argued that the Plan violated Sec. 109(e)'s debt limitations.  Because her priority claims were properly rejected, Christopher's debt was within the Sec. 109(e) limits.  Finally, Jacqueline claimed that Christopher's abusive conduct toward her evinces his bad faith in proposing the Plan.  As noted, however, there has been no judicial determination with respect to Jacqueline's personal injury claim.  Good faith is deter-mined on the basis of the totality of the circumstances.  Goeb v. Heid, 675 F.2d 1386 (9th Cir. 1982).  The bankruptcy court found that Christopher proposed his Plan in good faith because he committed all of his projected disposable income to the Plan, sought to repay substantial tax claims, and sought to avoid litigation expenses.  The bankruptcy court's finding of good faith was thus not clearly erro-neous.

8)  BANKRUPTCY: In re Kwang-Wei Han, 01-55172 (9th Cir. Jan. 2, 2002) (unpublished).  Schroeder, Trott, and Paez, Circuit Judges.   Kwang-Wei Han appealed pro se the BAP's decision affirming the bankruptcy court's decision finding his lease with McGaw Property Management (MPM) voidable and permanently barring him from property managed by MPM.  The USCA affirmed.  The bankruptcy court properly voided the lease between Han and MPM because Han was a fiduciary of MPM at the time the lease was approved and failed to meet his burden of proving the lease was just and reasonable to MPM.  Because the bankruptcy court found that Han interfered with MPM's management of it property and its relationship with its tenant, the bankruptcy court's order permanently enjoining Han from the property is not clearly erroneous.

9)  BANKRUPTCY: In re Dixie Farms Market, 00-56473 (9th Cir. Jan. 9, 2002) (unpublished).  Ferguson, T.G. Nelson, and W. Fletcher, Circuit Judges.
          Patison appealed the decisions of the District Court for the Central District of California, Judge Stotler presiding, in four consolidated cases.  He raised claims challenging the bankruptcy court's orders (1) imposing sanctions for not properly serving a subpoena; (2) revoking Patison's employment as counsel for the unsecured creditors; (3) imposing sanctions for filing a frivolous motion to reconsider; and (4) granting summary judgment for the Trustee and awarding punitive damages against Patison.  The USCA affirmed the bankruptcy court as to all of its orders except that awarding punitive damages which it remanded with instructions.
          First, the USCA concluded that the bankruptcy judge did not err in finding that Patison improperly served subpoenas by not serving deposition notices prior to serving the subpoenas.  FRCP 30 states that if a subpoena is to be served on the person to be examined in a deposition, the notice of deposition must contain a list of the materials to be produced.  The text "to be served" thus indicates that notice must precede service of a subpoena.  In addition there would be no need for the notice to list the documents to be produced if the notice followed the subpoena.  In that case, the subpoena would already have disclosed the materials to be produced.  The USCA added that the advisory committee note to Rule 45 confirmed its interpretation of Rule 30.  That note states that the prior notice re-quirement in Rule 45 only applies to subpoenas that are not connected with a deposition because depositions are covered by Rule 30.  This language implies that the committee was not negating a prior notice requirement for deposition subpoenas, but was including that requirement within Rule 30 notice of deposition requirement. Thus, a notice of deposition must be served prior to the service of a deposition subpoena.  Because Patison failed to follow this procedure, the district court did not err when it sanctioned Patison.  For the reasons provided by the district court, the USCA also held that Patison was not denied due process when the bankruptcy judge im-posed sanctions.
          Second, the USCA did not decide whether the court improperly proceeded by contested motion rather than by adversary proceeding for the disgorgement of fees.  The USCA noted that it would overturn the bankruptcy court's decision only if it did not afford the parties adequate procedural protections and if it failed to develop the record adequately.  Patison had the opportunity to respond to the Trustee's motion and to argue against the motion at a hearing.  Full discovery was available to him under Fed. R. Bankr. Proc. 9014.  The record established that Patison had been awarded fees and detailed the amount of the fees.  The USCA thus concluded that the district court afforded Patison adequate procedural protections and adequately developed the record regarding the fees.  The USCA thus concluded that it could not overturn the disgorgement order.  Moreover, for the reasons stated by the district court, the bankruptcy court did not abuse its discretion in revoking Patison's employment.  The bankruptcy court did not abuse its discretion in denying Pati-son's continuance.  Patison had more than the required minimum time between service of the motion and the hearing.  He also was aware of the substance of the motion well before it was served because the Trustee had filed an almost identical motion two months earlier.  He should have been able to file his opposition on time.  The court did not abuse its discretion in rejecting Patison's evidentiary objections.  Any errors that did occur were harmless.  The only evidence necessary to show Patison's conflict of interest, and thus support the court's revocation of the employment order, consisted of the transcript of the fee proceedings granted Patison his interim fees and the concelled checks showing the amount of money that Patison took.  The court correctly admitted that evidence as neither the transcript nor statements in the transcript were inadmissible hearsay, and the checks were self-authenticating documents satisfying the best evidence rule.  Any other evidentiary error would be harmless as no other evidence was necessary to establish proof of Patison's theft.  The court did not abuse its discretion in denying Patison's motion for reconsideration as Patison failed to present newly discovered evidence or any proof of clear error or manifest injustice.
         Third, for the reasons stated by the district court, the USCA held that the bankruptcy court did not err in finding that the Trustee satisfied the "safe harbor" provision of Fed. R. Bankr. Proc. 9011.  The bankruptcy court did not abuse its discretion in awarding sanctions or in determining the amount awarded.  Patison presented neither new evidence nor proof of clear error in his motion to reconsider.  Thus, the bankruptcy court reasonably found the motion frivolous and awarded sanctions.  As to the award, the judge calculated the fees herself based on the hours recorded by the law firm and the hourly rate of the lawyers.  This, plus the costs, was a reasonable basis for the award. It was also reasonable to include within the sanction fees for time spent preparing and arguing the motion for sanctions as they were incurred as a result of the frivolous motion for reconsideration.
          Fourth, Patison's evidentiary objections failed for the reasons stated by the district court.  Patison's collateral estoppel argument fails as well as there was no evidence that the court relied on the doctrine of collateral estoppel.  The court made separate findings of fact and conclusions of law in support of its summary judgment, showing that it considered the matter separately from its decision regarding the employment revocation motion.  Patison's assertion that no evidence supported the claims for relief failed for the reason discussed by the district court.  The USCA declined to consider Patison's statute of limitations claims, other than for the post-petition transfer claim, because he did not raise them before the bankruptcy court.  The one statute of limitations claim that Patison raised before the bankruptcy court failed as the limitations period was equitably tolled.  The court found that the Trustee was unable to discover the material facts of the fraud until August 20, 1998.  Thus equitable tolling until that date occurred.  The Trustee filed suit within one year of the discovery date—well within the statute of limitations.  Based on the evidence in the record of the Trustee's at-tempts to gain information from Patison, the court did not err in holding that the Trustee was diligent and that equitable tolling applied.  For the reasons stated by the district court, the bankruptcy court did not abuse its discretion in denying Patison's continuance.
         Finally, the USCA concluded that the district court did err in affirming the bankruptcy court's order of punitive damages.  The bankruptcy court did not require the Trustee to provide proof of Patison's wealth for damages awarded under state law.  California re-quires that the plaintiff offer proof of the defendant's wealth for an award of punitive damages.  Federal law does not require such proof, and it is up to the defendant to offer such evidence if he wants the court to consider it. 

10)  TRADE DRESS INFRINGEMENT:  California Scents v. Surco Products, Inc., 00-56763 (9th Cir. Jan. 8, 2002) (unpublished).  Browning, Reinhardt, and Tallman, Circuit Judges.
       The District Court for the Central District of California, Judge Taylor presiding, granted Prestco summary judgment against its competitor California Scents ("CS"), in a trade dress infringement suit.  CS sought trade dress protection for the packaging of its "little can" air freshener in the retail market and claimed that its dress included a small aluminum can with a "pulltop" lid, "scratch and sniff" labels, bright color scent labels, fragrances named after California cities and sites, and a colorful 18-can display.  A plaintiff seeking to recover for infringement of a trade dress under the Lanham Act must prove that its dress is (1) nonfunctional and (2) distinctive, and (3) that there is a likelihood that the public would confuse the alleged infringer's trade dress with the plaintiff's.  Disc. Golf Ass'n v. Champion Discs, Inc., 158 F.3d 1002 (9th Cir 1998).  The district court held that CS's dress was functional and thus not protectable and awarded summary judgment to Pestco.
        The USCA reversed.  Product features are functional if they are "essential to the use or purpose of the article or if it affects the cost or quality of the article, that is, if exclusive use of the feature would put competitors at a significant non-reputation-related disadvantage."  Qualitex Co. v. Jocobson Prods. Co., 514 US 159 (1995).  Separable functional features may be protectable when used in combination as nonfunctional trade dress.  Thus, CS's trade dress must be examined "as a whole, not by its individual constituent parts."  Clicks Billiards, Inc. v. Sixshooters 251 F.3d 1252 (9th Cir. 2001).  The USCA said it considers four factors in determining whether features of a product are functional:  "(1) whether the design yields a utilitarian advantage, (2) whether alternative designs are available, (3) whether advertising touts the utilitarian advantages of the design, and (4) whether the particular design results from a comparatively simple or inexpensive method of manufacture."  Disc Golf, 158 F.3d at 1006.  Some components of CS's trade dress are utilitarian and thus not protectable.  Most prominently, allowing CS the exclusive use of the "little can" would put competitors at a "significant non-reputation-related disadvantage."  The can with a pull-top lid is a generic feature without aesthetic appeal.  Companies have sold air fresheners in small cans for decades.  CS's decision to bring the "little can" to the retail market may have been a shrewd business decision, but it does not allow CS to preclude competitors from using aluminum cans of the same size.  To do so would amount to giving CS a de facto patent.  Likewise, CS's "scratch and sniff" feature is not protectable.  Retail consumers will want to be able to smell the fragrance before buying the air freshener.  The other features of CS's trade dress—labels with a monotone swath of color, the West Coast motif under which CS markets its product, and the manner of displaying its wares through an 18-can display—are less functional in nature.  More importantly, when used in combination for the purpose of dressing the "little can" with the pull-top lid, these features do not appear to yield a utilitarian advantage.  Thus the first factor favors CS, at least for the purpose of summary judgment. 
        The second factor also favored CS for this purpose.  Pestco had alternative trade dresses available to it.  Even with the same-sized can and scratch and sniff label, it could have created an arbitrary line of names by which to sell its product.  There was no reason why air fresheners must have a West Coast motif.  Moreover, Pestco could have selected any number of different means of displaying its goods other than the 18-can boxed display used by California Scents. 
          The third factor, too, favored CS for purposes of this appeal.  "If a seller advertises the utilitarian advantages of a particular feature, this constitutes strong evidence of functionality."  Disc Golf, 158 F.3d at 1009 (quoting J. T. McCarthy on Trademarks and Unfair Competition, Sec. 7:74 at 7-152 (4th ed. 1998)).  The advertising stated that the "three scents pads are biodegradable and spill-proof" and that the can is made of "recyclable aluminum."  That did not address the utilitarian advantages of the "little can" or the other features of California Scents' trade tress."  The fourth factor also raises a matter subject to genuine dispute.  A trade dress may be functional where it "achieves economies in manufacture or use."  Disc Golf, 158 F.3d at 1009. (quoting Intl. Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819, 823 (9th Cir. 1993).  The aluminum can with the pull-top lid and "scratch and sniff" label "achieves economies in manufacture or use" and thus cannot be protected, but the other trade dress features may be protectable.
           The USCA thus found that there is a genuine question of material fact as to whether CS's trade dress is function.  The USCA thus had to discuss the other two necessary components for trade dress protection as it could affirm the district court's award of sum-mary judgment on alternative grounds.  Trade dress must be distinctive to be protectable.  The dress is "distinctive and capable of be-ing protected if it either (1) is inherently distinctive or (2) had acquired distinctiveness through secondary meaning."  Two Pesos v. Taco Cabana, 505 US 763, 769 (1992).  A trade dress is said to be inherently distinctive where it is considered (1) suggestive, (2) arbitrary, or (3) fanciful.  Marks are also classified as (4) descriptive or (5) generic.  Descriptive marks may acquire distinctiveness through secondary meaning.  Descriptive marks "define qualities or characteristics of a product in a straightforward way that requires no exercise of the imagination to be understood."  Kendal-Jackson Winery, Ltd. v. E.&J. Gallo Winery, 150 F.3d 1042 (9th Cir. 1998).  The "scratch and sniff" feature of CS's trade dress informs consumers they are encountering some type of fragrance and is there descriptive.  Moreover, the name "California Scents" and the name of the fragrances, such as "Pasadena Rose" and "La Jolla Lemon," describe the product for consumers.  The USCA thus found that CS's trade dress is descriptive and unprotectable absent a showing of secondary meaning.  Trade dress acquires secondary meaning when "in the minds of the public, the primary significance of a product feature … is to identify the source of the product rather than the product itself."  Qualitex, 514 US at 163 (quoting Inwood Labs., Inc. v. Ives Labs, 456 US 844, 851 n.11 (1982)).  Factors courts consider in determining secondary meaning include: (1) whether actual purchasers associate the dress with the source, (2) the degree and manner of advertising by the party seeking protection, (3) the length and manner of use of the dress, and (4) whether the use by the party seeking protection has been exclusive.  CS provided minimal evidence that some actual purchasers may associate its dress with the source.  It offered fairly extensive evidence of advertising ($3 million worth) associating the dress with its product.  CS has used its dress since 1993.  This is a fairly long time.  Five years of exclusive use if prima facie evidence of secondary meaning, and CS has raised a genuine issue of material fact as to the exclusivity of its use of this trade dress.  15 USC Sec. 1052(f).  Other factors such as sales success and attempts by others to plagiarize the mark also favor finding secondary meaning.  CS has achieved a measure of success in the retail air freshener business.  While Pestco only admitted to acting out of a "competitive response" to CS's name, this is sufficient to suggest recognition of CS's market power.  The USCA thus held that CS has raised a genuine issue of material fact as to whether its trade dress has acquired secondary meaning.
         Likelihood of confusion is considered by examining the "total effect of the defendant's product and package on the eye and mind of an ordinary purchaser."  First Brands Corp. v. Fred Meyer, 809 F.2d 1378, 1383-4 (9th Cir. 1987).  The USCA noted that it considers eight factors when evaluating likelihood of confusion:  (1) strength of the mark; (2) proximity of the goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels used; (6) type of goods and the degree of care likely to be exer-cised by the purchaser;  (7) defendant's intent in selecting the mark; and (8) likelihood of expansion of the product lines.  When analyzing the listed factors, the USCA found that Factor (1) favored Pestco.  CS's trade dress is descriptive and thus relatively weak.  Factor (2) favored CS.  The dresses are similar, especially when consumers do not have the opportunity to conduct a side-by-side com-parison of them.  Factor (3) favored CS.  The two products compete for the same retail customers of air fresheners.  Factor (4) is an important one because "evidence of actual confusion is persuasive proof that future confusion is likely."  Kendall-Jackson, 150 F.3d at 1048.  CS provided some but not overwhelming evidence of confusion.  This factor weighed slight in favor of CS as evidence of actual confusion is often difficult to obtain.  Because there is no record evidence about the marketing channels used by Pestco, the USCA said it was not in a position to evaluate Factor (5).  Factor (6) favored CS.  Consumers are not likely to exercise a lot of care when purchasing air fresheners, as they are inexpensive items.  Factor (7) slightly favored CS.  Pestco acknowledged that it adopted a name based on a "competitive response" to CS.  Factor (8) favored Pestco or was neutral.  Because CS and Pestco are already competing in the same market, the USCA did not find that expansion is a relevant concern for the likelihood of confusion analysis.  The USCA thus held that, considering the eight factors as a whole, CS has raised a genuine issue of material fact as to the likelihood of confusion.  Since CS provided sufficient evidence to raise a genuine issue of material fact for each of the three factors needed to make a trade dress claim under the Lanham Act, the USCA reversed the award of summary judgment and awarded costs to CS.

11)  BUSINESS LAW:  Safelite Glass Corp. v. Crawford, 00-16619 (9th Cir. Jan. 8, 2002) (unpublished).  Brunetti, Kleinfeld (dissenting), and Thomas, Circuit Judges.
        Safelite Glass appealed orders of the District Court for Arizona, Judge Zapata presiding, denying Safelite's preliminary in-junction motion and entering judgment in favor of Crawford. 
        The USCA affirmed.  The district court did not err in concluding that Safelite's non-competition covenant was unreasonable and unenforceable.  Under Arizona law, a covenant not to compete cannot be used to prevent competition per se.  Such an agreement is valid only if it protects some legitimate interest of the employer beyond the employer's desire to protect itself from competition.  Valley Med. Specialists v. Farber, 982 P.2d 1277 (Ariz. 1999).  Legitimate interests that can support a covenant not to compete include an employer's need "to prevent competitive use, for a time, of information or relationships which pertain peculiarly to the employer and which the employee acquired in the course of the employment." Id.  Under Arizona law, a restrictive covenant is reasonable if it: gives the employer a reasonable amount of time to overcome the former employee's loss, usually by hiring a replacement and giving that replacement time to establish a working relationship.  Even in the commercial context, when the restraint is for the purpose of protecting customer relationships, its duration is reasonable only if it is no longer than necessary for the employer to put a new man on the job and for the new employee to have a reasonable opportunity to demonstrate his effectiveness to the customers.  In applying these principles to Arizona law, the USCA concluded that Safelite did have a protectable interest in maintaining its customer relationships, but that the covenant not to compete was not narrowly tailored to protect only those interests.  Rather, it constituted a broad non-competition restriction, prohibiting activities that were beyond the scope of its protectable interest.  The USCA also concluded that, under Arizona law, the covenant could not be cured by severance.  In sum, the district court correctly determined that the covenant not to compete was unreasonable and unenforceable under Arizona law.  The district court did not abuse its discretion in denying Safelite's motion for a preliminary injunction on the basis that Safelite was unlikely to show either probable success on the merits, or that "seri-ous questions were raised and the balance of hardships tips sharply in its favor."  Textile Unlimited, Inc. v. A. BMH Co., 240 F.3d 781 (9th Cir 2001)  For the same reasons, the district court did not err in granting Crawford judgment on the merits.  While the district court should not have granted judgment sua sponte and should have provided notice of its intent to consolidate the preliminary injunction hearing and a determination on the merits, any error in doing so was harmless, given Safelite's lack of showing of prejudice as to the tender of any additional evidence and the legal correctness of the court's ruling.
         Dissenting, Judge Kleinfeld noted that the covenant at issue was limited to 12 months and to a 25 mile radius.  This, he thought, was not unreasonable as a matter of law for a salesman dealing with repeat institutional customers.  Arizona enforces reasonable restraints, or "those no broader than the employer's legitimately protectable interests."  Amex Distributing co. v. Mascari, 724 P.2d 596 (Ariz. 1986).  The arguable part is the provision extending the covenant to "twenty-five (25) miles of any location or geographic area to which the Associate was assigned at the time of, or any time during the twelve (12) month period immediately preced-ing, the termination of the Associate's employment."  But Arizona courts apply a "blue pencil rule" to objectionable covenants, "eliminating grammatically severable unreasonable provisions." Id. at 600.  Judge Kleinfeld thought this clause can be blue-penciled.  He agreed with the majority that the district court improperly granted summary judgment sua sponte against Safelite, without providing adequate notice of its intention to do so.  But, because he disagrees with the majority over the reasonableness of the covenant not to compete, Judge Kleinfeld would hold that the district court's error was not harmless and would thus reverse and remand for trial.

12)  QUI TAM ACTIONS:  USA v. Cargill, Inc., 00-16590 (9th Cir. Jan. 22, 2002) (unpublished).  Hug, D.W. Nelson, and Hawkins, Circuit Judges.
         Hansen appealed the dismissal of his qui tam complaint against Cargill for lack of subject matter jurisdiction. 
 Cargill moved to dismiss Hansen's complaint in district court pursuant to FRCP 12(b)(1) for lack of subject matter jurisdiction because the "public disclosure" bar of the False Claims Act, 31 USC Sec. 3730(e)(4)(A), had been triggered.  The district court found that there had been public disclosure of allegations substantially similar to those in Hansen's complaint.  It then determined that Hansen did not qualify for the "original source" exception to the public disclosure bar because Hansen did not have "direct knowledge" of the alleged fraud.  Because the public disclosure bar had been triggered and Hansen did not qualify for the original source exception, the district court's dismissed Hansen's complaint for lack of subject matter jurisdiction  The USCA reviewed de novo the dismissal for lack of subject matter jurisdiction pursuant to the public disclosure bar in qui tam complaints.  The question of whether a particular disclosure triggers the jurisdiction bar of the False Claims Act is a mixed question of law and fact, reviewed de novo.  The district court's findings of fact relevant to its determination of subject matter jurisdiction are reviewed for clear error.
           The USCA concluded that because prior disclosures in the news media were substantially similar to the allegations in Hansen's complaint the public disclosure bar was triggered.  It also concluded that because Hansen did not have first-hand knowledge of the alleged fraud, obtained through his own labor unmediated by anything else, the district court's determination that Hansen was not a original source was correct.  The USCA also concluded that the district court did not err in denying an oral hearing or in not applying the standards for a summary judgment in deciding this jurisdictional motion.

13)  IMMIGRATION:  Serhan v. INS, 00-70411 (9th Cir. Jan. 23, 2002) (unpublished).  Kleinfeld, Hawkins, and Silverman, Circuit Judges.  Serhan, a native and citizen of Lebanon, petitions pro se for review of a BIA order finding him statutorily ineligible for suspension of deportation, summarily dismissing his appeal from the Immigration Judge's order denying his application for asylum and withholding of deportation, and dismissing his appeal from the IJ's decision regarding the order of rescission.  Because the transitional rules apply, the USCA had jurisdiction under 8 USC Sec. 1105a(a).  The USCA denied the petition for review.  Serhan's contentions challenging his statutory eligibility for suspension of deportation are foreclosed by Ran v. INS, 243 F.3d 510 (9th Cir. 2001).  The USCA did not consider Serhan eligibility, if any, for relief under the class action pending in the district court in accordance with Barahona-Gomez v. Reno, 167 F.3d 1228 (9th Cir. 1999), supplemental opinion, 236 F.3d 1115 (9th Cir. 2001).  The USCA said that its resolution of the instant case did not affect any interim or permanent relief awarded to members of the class certified in Barahona-Gomez.  Because Serhan's petition to the USCA did not address the propriety of the BIA's summary dismissal of Serhan's appeal from the IJ's denial of his application for asylum and withholding of deportation, he waived his right to challenge the summary dismissal.

14)  IMMIGRATION:  Jaiswal v. INS, 01-70362 (9th Cir. Jan. 2, 2002) (unpublished).  Schroeder, Trott, and Paez, Circuit Judges.  Jaisway, a native and citizen of India, petitioned for review of a BIA decision dismissing his appeal from an Immigration Judge's de-nial of asylum and withholding of deportation.  The USCA reviews factual determinations concerning a petitioner's eligibility for asy-lum under the "substantial evidence" standard and must uphold them unless the evidence compels a contrary result.  It found that contrary to the BIA's decision, Jaiswal's credible testimony established that his persecution was at least in part due to his political opinions.  Jaiswal, who is part Hindu and part Sikh, testified that immediately after he told his Sikh attackers that he would not cooperate with them because he did not believe in a separate Sikh state, he was beaten, stabbed and threatened with further harm, and money was extorted from him.  Because the record evidence supported the conclusion that Jaiswal suffered past persecution on account of political opinion, he is entitled to the presumption that he has a well-founded fear of future persecution.  The record evidence of country conditions introduced by the INS did not satisfy the particularized showing of changed conditions required to rebut this presumption.  Jaiswal also met the "clear probability of future persecution" standard required for withholding of deportation.  Jaiswal is thus statutorily eligible for asylum and withholding of deportation.

15)  IMMIGRATION:  Ki Shik Hong v. INS, 00-56745 (9th Cir. Jan. 4, 2002) (unpublished).  Beezer and Wardlaw, Circuit Judges, and Schwarzer, District Judge.
         Appellants Ki Shik Hong and his son Jung Hee Hong sought an order in the District Court for the Central District of California, Judge Feess presiding, to compel the INS to grant Jung Hee's application for adjustment of status.  The district court granted the INS's motion for summary judgment.
         The USCA affirmed.  On October 31, 1995, the appellants filed applications for adjustment of status to that of permanent residents;  because he was under 21 years old at the time, Jung Hee's application was derivative of his father's.  On February 24, 1998, the INS granted Ki Shik's application.  On February 4, 1999, the INS denied Jung Hee's application on the ground that he had become ineligible, having turned 21 ("aged out") on February 10, 1998.  The appellants maintained that the INS acted arbitrarily and capriciously in failing to adjudicate their applications in chronological order or to expedite their adjudication.  Under 8 USC Sec. 1255(a), the status of an alien may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence.  Section 1252(a)(2)(B) provides that "notwithstanding any other provision of law, no court shall have jurisdiction to review—(i) any judgment regarding the granting of relief under section … 1255"  Given the claim before it, the district court correctly held that it lacked jurisdiction.  The USCA noted that even if it were to reach the appellants' contention that by taking 28 months to process Jung Hee's application the INS violated its Operating Instruction 103.2q, it would be of no avail.  The Instruction states a policy that cases be processed in chronological order.  The appellants offered no evidence that the INS did not process their applications in chronological order.  Rather, they asserted that the INS violated the Instruction by failing to exercise its discretion to take the son's application out of order because of the length of time it had been pending and his imminent aging out.  Thus, even if the Instruction were held to create a substantive right, the appellants' had not asserted a violation.