2)  TRADEMARK INFRINGEMENT:  Tie Tech v. Kinedyne, 00-35815 (9th Cir. July 11, 2002).  In a trademark infringement action over the validity of a product configuration trademark for a "web cutter" where the issue on appeal was whether summary judgment was appropriate on the ground that the design was wholly functional and thus not protectable as a trademark, the USCA held that the plaintiff failed to raise an issue of material fact as it failed to offer evidence of the distinctiveness of the product design, other than noting items essential to the product's effective use. Rymer, McKeown (author), and Gould, Circuit Judges.  B. Kaser of Seattle, WA, for the appellant; T. Young of Troy, MI, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

3)  COPYRIGHT INFRINGEMENT:  Mackie v. Rieser, 00-35839 (9th Cir. July 25, 2002).  In a case of admitted copyright infringement brought by an artist against the Seattle Symphony Orchestra for the unauthorized used the his artwork in a Symphony promotional campaign, the USCA affirmed the district court's judgment that the plaintiff failed to demonstrate a tangible nexus between the infringing use and the Symphony's revenues and, alternatively, that any such computation of damages was too speculative to survive a summary judgment motion;  to recover indirect profit damages for copyright infringement under 17 USC Sec. 504(b), the plaintiff had to proffer some non-speculative evidence that the infringement at least partially caused profits that the infringer generated as a result of infringement.  Rymer, McKeown (author), and Gould, Circuit Judges.  T. Hayton of Seattle, WA, for the plaintiff;  S. Fricke of Seattle, WA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

4)  TRADEMARK INFRINGEMENT:  Mattel v. MCA Records, 98-56453 (9th Cir. July 24, 2002).  The use of a doll's name in a song (here, "Barbie" in the song title "Barbie Girl") did not constitute trademark infringement as the use did not mislead as to association or the source of the work, and use of the mark fell within the "noncommercial use" exemption to dilution under the Federal Trademark Dilution Act.  D.W. Nelson, Brunetti, and Kozinski (author), Circuit Judges.  A. Pruetz of Los Angeles, CA, for the plaintiff;  R. Frackman of Los Angeles, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

5)  CONTRACTS:  Kyocera Corp. v. Prudential-Bache Trade Services, 01-15630 (9th Cir. July 23, 2002).  A contract for the sale and delivery of computer parts was validly formed, and the seller's performance was not excused under the California Commercial Code;  damages were properly awarded, including calculations based on the projected value of a start-up company;  a party may be deemed to have accepted an amended contract where it has constructive knowledge of the amendments terms due to its lawyer knowing them, its failure to object to the amendments in writing by the deadline, and its execution of the signature page of a draft incorporating the amendments.  Hawkins and Silverman, Circuit Judges, and Restani (author), U.S. Court of Intl. Trade Judge.  J. Brosnahan of San Francisco, CA, for the appellant;  C. Treat of San Francisco, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

6)  WATER DEVELOPMENT APPROPRIATIONS ACT:  M-S-R Public Power Agency v. Bonneville Power Administration, 99-71536 (9th Cir. July 11, 2002).  A wholesale electric power provider violates the Water Development Appropriations Act, 16 USC Sec. 823m, which created a subspecies of surplus power called "excess federal power," by treating in its calculations of excess federal power energy it refuses to sell to direct service industrial customers (DSIs) as energy that DSIs freely elect to purchase from another provider.  Trott (author) and T.G. Nelson, Circuit Judges, and Shadur, District Judge.  B. Kaser of Seattle, WA, for the appellant;  T. Young of Troy, MI, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

 7)  ENVIRONMENTAL LAW:  Ka Makani 'O Kohala Ohana, Inc. v. County of Hawaii Dept. of Water Supply,  00-17473 (9th Cir. July 1, 2002).  Involvement by the U.S. Geological Survey and the U.S. Department of Housing and Urban Development in a state's county-initiated water transmission project, did not constitute a "major federal action" such as to trigger the preparation of a federal EIS under the National Environmental Policy Act, where the total of federal funding offered was less than 2% of the estimated total project cost, and the final decision-making power remained at all times with the county.  Wallace, Tashima (author), and Tallman, Circuit Judges.  J. Nelson of Denver, CO, for the plaintiff;  S. Pacholski of Washington, DC, and M. Kagami of Hilo, HI, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

8)  ENVIRONMENTAL LAW:  San Francisco Baykeeper v. Whitman, 01-16111 (9th Cir. The Opinion filed April 15, 2002 has been withdrawn and replaced with the Opinion filed July 17, 2002).  California's submission of some 18 total maximum daily loads (TMDLs) and its establishment of a schedule for completing its remaining TMDLs precluded a finding under the "constructive submission" doctrine that it clearly and unambiguously decided not to submit any TMDLs;  California's alleged failings under the Clean Wa-ter Act (CWA) did not trigger a duty on the part of the EPA to establish TMDLs of pollutants that could be introduced into polluted state waters;  the USCA upheld the dismissal of an environmental group's action under the CWA which sought a declaration that California failed to implement an adequate water pollution control program and failed to establish TMDLs.  Hug (author), Cudahy, and Tashima, Circuit Judges.  M. Lozeau of Stanford, CA, for the plaintiffs;  D. Beckman of Los Angeles, CA, for the intervenors;  S. Glover of Washington, DC, for the defendants.(Download the full text of this decision at www.cc9.uscourts.gov/)

9)  ENVIRONMENTAL LAW:  Alaska v. EPA, 00-70166 (9th Cir. July 30, 2002).  The EPA has the ultimate authority to decide whether Alaska complied with the "best available control technology" requirements of the Clean Air Act in issuing a permit under the state's implementation plan for the Act's Prevention of Significant Deterioration (PSD) program; The EPA acted within its authority in issuing orders invalidating the PSD permit based on findings that the state failed to comply with both the Act and its own implementa-tion plan.  Reinhardt, Wardlaw (author), and Gould, Circuit Judges. C. Leonard of Fairbanks, AK, for the petitioners; A. Doyle of Washington, DC, for the respondents.(Download the full text of this decision at www.cc9.uscourts.gov/)

10)  BANKRUPTCY:  In re Castillo, 00-55846 (9th Cir. July 26, 2002).  A Chapter 13 bankruptcy trustee and her assistant enjoyed absolute quasi-judicial immunity from liability related to her scheduling and noticing of a bankruptcy confirmation hearing.  Brunetti, Rymer, and Wardlaw (author), Circuit Judges.  E. Martin of Diamond Bar, CA, for the appellant;  B. Lindsay of Whittier, CA, for the debtor-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

11)  BANKRUPTCY:  In re Bliemeister, 01-16058 (9th Cir. July 19, 2002).  The State of Arizona made a tactical decision to waive its sovereign immunity by not immediately raising its immunity in answering a complaint;  the debtor's obligation to the state was thus properly discharged;  a state may waive any sovereign immunity available to it in a federal bankruptcy court adversary proceeding by filing a limited response to the debtor's dischargeability claim, answering the debtor's complaint, failing to claim sovereign immunity in a motion for summary judgment, arguing the merits of the case at an oral hearing, or failing to assert sovereign immunity until it files a motion to dismiss. Lay, Thompson, and Tallman (author), Circuit Judges.  AAG D. Faulk of Phoenix, AZ, for the appellant;  R. Ellett of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

12)  ERISA:  Nord v. The Black & Decker Disability Plan, 00-55689 (9th Cir. July 15, 2002).  Reversing a district court ruling that the defendant Black & Decker Disability Plan was not operating under a conflict of interest, the USCA held that the de novo standard of review is applicable to decisions of ERISA plan administrators where an administrator, who also acts as the plan's funding source, fails to rebut the presumption that a conflict of interest impaired its disability determination.  B. Fletcher (author), D.W. Nelson, and McKeown, Circuit Judges.  L. Rohlfing of Santa Fe Springs, CA, for the plaintiff;  L. Paterson of Los Angeles, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

13)  ERISA:  Stewart v. U.S. Bancorp, 01-35093 (9th Cir. July 30, 2002).  A district court was not required to recharacterize a com-plaint to state an ERISA claim after it had already recharacterized the complaint for removal purposes when confronted with a federal preemption defense; res judicata barred an ERISA claim which could have been raised in a previous action, and the dismissal of that action due to preemption was a decision on the merits. Trott (author) and T.G. Nelson, Circuit Judges, and Rhoades, District Judge. J. DeVore of Eugene, OR, for the plaintiffs; J. Blatt of Portland, OR, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

14)  LABOR ARBITRATION:  Ferguson v. Countrywide Credit Industries, 01-55985 (9th Cir. July 23, 2002).  Under California law, an arbitration agreement is unenforceable as procedurally and substantively unconscionable where it compels arbitration of claims employees are most likely to bring against the employer, while exempting from arbitration claims the employer is most likely to bring against employees;  the employee here thus could not be compelled to arbitrate her Title VII employment discrimination claims.  Pregerson (author) and Trott, Circuit Judges, and Fitzgerald, District Judge.  K. Rooney of Los Angeles, CA, for the defendants;  J. Koehn of Ventura, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

15)  PUBLIC EMPLOYEE SPEECH:  Pool v. VanRheen, 00-35997 (9th Cir. July 22, 2002).  A police officer's letter to the editor of a local newspaper over a personnel dispute within her department was a public concern and a substantial or motivating factor for her demotion and pay cut; but, the officer's claim of retaliation for the exercise of free speech rights failed as the government's legitimate interests in avoiding disruption in a police office outweighed the officer's First Amendment rights.  Leavy and T.G. Nelson, Circuit Judges, and Rhoades (author), District Judge.  J. Koch of Portland, OR, for the plaintiff;  J. Batchelor of Portland, OR, for the defen-dant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

16)  WRONGFUL TERMINATION:  Kang v. U. Lim America, Inc., 00-55583 (9th Cir. July 15, 2002).  Title VII's definition of "employee" does not bar counting foreign employees of US-controlled companies in determining coverage;  here, Title VII applied to U. Lim America because it and U. Lime de Mexico were an integrated enterprise which employed a combined total of more than 15 employees;  dissenting, Judge Fernandez thought that because defendant U. Lim American never had more than five employees, Title VII, on its face, did not apply.  Browning (author), Fernandez (dissenting), and Fisher, Circuit Judges.  R. Grey of San Diego, CA, for the plaintiffs;  J. Battenfeld of Los Angeles, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  CONSTRUCTIVE DISCHARGE:  Lawson v. State of Washington, 00-35458 (9th Cir. July 12, 2002).  An employee who resigns due to a conflict between his Jehovah's Witness religious beliefs against saluting a flag and his duties as a police officer cadet to assemble for flag formation twice daily unless otherwise assigned, failed to establish a material issue of fact as to whether he was constructively discharged where it was the employee who first mentioned resignation to his employer and there was no mention by the employer of imposing discipline on the employee for refusing to perform his duties;  dissenting, Judge Fletcher thought there were triable issues as to whether the police academy constructively discharged the plaintiff because of his religion;  a reasonable trier of fact could, she thought, have concluded that a reasonable person in the plaintiff's position would have felt compelled to resign.  Reavley, B. Fletcher (dissenting), and Tallman (author), Circuit Judges. H. McGavick of Olympia, WA, for the plaintiff; C. Smith-Merkulov of Olympia, WA, for the defendants.(Download the full text of this decision at www.cc9.uscourts.gov/)

18)  WORKERS COMPENSATION:  Stevedoring Services of America v. Director, OWCP, 01-70354 (9th Cir. July 30, 2002).  In a hearing loss case, a claimant may continue working despite being considered disabled under the law;  he may thus be exposed to additional injury over time; thus an employer who is liable under the "last employer" doctrine as explicated by the Ninth Circuit does not escape that liability merely because a second employer can also be assigned liability under the same doctrine for a separate, later injury. Hug and Berzon, Circuit Judges, and Lasnik (author), District Judge. R. Levy of San Francisco, CA, for the petitioners; A. Auerbach of Washington, DC, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

19)  TORTS:  Northwest Airlines v. Camacho, 01-15349 (9th Cir. July 11, 2002).  Claims arising in the Commonwealth of the Northern Mariana Islands for malicious prosecution and abuse of process are subject to the Commonwealth's two-year statute of limi-tations, 7 N. Mar. I. Code Sec. 2503(d).  Wallace, Tashima (author), and Tallman, Circuit Judges.  G. Long of Saipan, MP, for the plaintiff-appellant;  R. Kosack of Saipan, MP, for the third-party-defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

20)  TORTS:  O'Toole v. USA, 01-15310 (9th Cir. July 10, 2002).  The Bureau of Indian Affairs' decision to forego, for fiscal reasons, routine maintenance of its property (maintenance that would be expected of any other landowner and lack of which resulted in considerable damage to the plaintiffs' property) is not the kind of policy decision protected by the discretionary function exception to the Federal Tort Claims Act.  Hawkins and Silverman (author), Circuit Judges, and Restani, U.S. Court of Intl. Trade.  S. Wilson of Elko, NV, for the plaintiffs;  L. Sturgill of Washington, DC, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  PREEMPTION:  Huth v. The Hartford Insurance Co., 01-16294 (9th Cir. July 30, 2002).  Absent a presumption either in favor of or against its exercise of discretionary jurisdiction, a district court does not abuse its discretion in remanding a removed state court action when neither the need to avoid duplicative litigation nor avoid forum shopping favors either party, and the action involves purely a state law issue;  the court did not abuse its discretion in declining to exercise jurisdiction over a declaratory action, under the Federal Declaratory Judgment Act.  Lay (author), Thompson and Tallman, Circuit Judges.  S. Plitt of Phoenix, AZ, for the defendant;  G. Gage of Phoenix, AZ, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

22)  ATTORNEYS' FEES:  Labotest v. Bonta, 01-56318 (9th Cir. July 19, 2002).  A plaintiff who succeeds in obtaining a court order incorporating an agreement which includes the relief the plaintiff sought in the lawsuit is a prevailing party for purposes of attorneys' fees under 42 USC Sec. 1988.  Hall, Silverman (author), and Rawlinson, Circuit Judges.  P. Hooper of Los Angeles, CA, for the plaintiffs;  DAG P. Nagler for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

23)  ATTORNEYS' FEES / SOCIAL SECURITY:  Akopyan v. Barnhardt, 01-56303 (9th Cir. July 18, 2002).  An order issued under the fourth sentence of 42 USC Sec. 405(g), concerning decisions of the Commissioner of Social Security, can operate to terminate a previous remand issued under the sixth sentence of Sec. 405(g), thus constituting a final judgment for purposes of determining the timeliness of an attorneys' fees petition brought under the Equal Access to Justice Act.  Hall (author), Silverman, and Rawlinson, Circuit Judges.  J. Ohanian of Palos Verdes, CA, for the plaintiffs;  L. Levey of Baltimore, MD, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

24)  MILITARY LAW:  Flowers v. First Hawaiian Bank, 00-15635 (9th Cir. July 2, 2002).  As subpoenas are not authorized in an investigative proceeding under Art. 32 of the Uniform Code of Military Justice, the Army's subpoena requesting the plaintiff's bank records was not lawfully issued here;  when a bank complied with the subpoena without obtaining a certificate of compliance from the Army, it acted at its peril and was not entitled to protection under the Right to Financial Privacy Act's exemption for information disclosed in the course of litigation between the government and a private citizen.  Thompson (author), O'Scannlain, and Berzon, Circuit Judges.  Flowers pro se;  P. Kirio of Honolulu, HI, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

25)  MEDICARE:  Hofler v. Aetna US Healthcare, 00-56401 (9th Cir. July 10, 2002).  The plaintiff sued her husband's health care provider and his doctors in state court alleging that the defendants withheld and denied his medically necessary diagnostic exams, treatments, and referrals because these services undercut the defendants' profit margins; the health care provider removed the case to federal court, claiming that the plaintiff state law claims "arose under" the Medicare Act.  The district court remanded to state court and awarded the plaintiff $9,750 in attorneys' fees;  the USCA affirmed;  Medicare's "Medicare+Choice" program did not "completely preempt" state tort law.  Browning, Reinhardt, and Tallman, Circuit Judges.  Per Curiam. K. Patrick of Los Angeles, CA for the defendants;  M. Bidart of Claremont, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

26)  WARSAW CONVENTION:  Dazo v. Globe Airport Security Services, 00-15058 (9th Cir. July 1, 2002).  The Warsaw Convention, which applies only to international air transportation, did not apply to an airport security company rendering services to both international and domestic air passengers; nor did it apply to airlines that did not provide international air carriage to the plaintiff;  dissenting in part, Judge O'Scannlain thought that as the security company acted as an agent of international air carriers, it should be af-forded the Convention's protection.  O'Scannlain (dissenting in part), Tashima (author), and Thomas, Circuit Judges.  C. Ashworth of San Jose, CA, for the plaintiff;  T. Gmelich of Glendale, CA, and B. Cohen of San Francisco, CA, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

27)  HOLOCAUST VICTIM INSURANCE RELIEF ACT:  Gerling Global Reinsurance Corp. of America v. Low, 01-17023 (9th Cir. July 15, 2002).  Insurance companies brought this action to enjoin California's Insurance Commissioner from enforcing the Holocaust Victim Insurance Relief Act, a state statute requiring disclosure of information about Holocaust-era insurance policies;  the district court permanently enjoined enforcement of the Act;  the USCA reversed, holding that California may constitutionally require the disclosure of insurance claims-related information by an insurance company licensed to do business in California even if the required information is in the hands of a related entity located in a foreign country.  Goodwin, Graber (author), and Paez, Circuit Judges.  F. Kaplan of Los Angeles, CA, for the defendant; G. O'Connell of Sacramento, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

28)  RELIGIOUS FREEDOM:  Davey v. Locke, 00-35962 (9th Cir. July 18, 2002).  The State of Washington's Higher Education Coordinating Board's decision that denied a state-funded "Promise Scholarship" to a student otherwise qualified for it (by virtue of high school grades, family income, and attendance at an accredited college in the state) solely because the student decided to pursue a degree in theology infringed the student's right to the free exercise of his religion; the policy is discriminatory on its face and uncon-stitutional under strict scrutiny;  dissenting, Judge McKeown thought that this was a funding case, not a free exercise case or a free speech case, and that Supreme Court jurisprudence in abortion funding cases should guide the decision here. Rymer (author), McKeown (dissenting), and Gould, Circuit Judges.  S. Roth of Virginia Beach, VA for the plaintiff;  AAG M. Shinn of Seattle, WA, for the defendant.(Download the full text of this decision at www.cc9.uscourts.gov/)

29)  CIVIL RIGHTS:  Jones v. Williams, 00-56929 (9th Cir. July 24, 2002).  A police officer's mere presence at an unlawful search which resulted in the destruction of personal property, without personal involvement in or a causal connection to the unlawful act, did not in this case create liability under 42 USC Sec. 1983;  concurring, Judge Silverman thought that the proposed Rutherford jury in-struction was a correct statement of the law, but was properly refused because it was not justified by the evidence;  specifically, the evidence was not susceptible of the interpretation that the damage occurred while only the officers were present;  to the contrary, the residents testified to what they say they witnessed the officers doing; the officers gave their opposing version of the story, and it was for the jury to decide which to believe.  O'Scannlain and Silverman (concurring), Circuit Judges, and Reed (author), District Judge.  S. Yagman of Venice, CA, for the plaintiff;  J. Bogigian of Los Angeles, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

30)  IMMIGRATION LAW:  USA v. Ahumada-Aguilar, 96-30065 (9th Cir. July 1, 2002).  An Immigration Judge (IJ) deprived an alien of his right to due process at a deportation proceedings under 8 USC Sec. 1362 (1991) by failing to obtain from him an express statement that he knowingly and intelligently wished to waive his right to counsel;  the IJ's erroneous statement of law regarding the alien's waiver of his right to appeal also violated his due process rights;  dissenting, Judge Kleinfeld thought the defendant's act of standing and raising his hand made his choice clear.  Schroeder, Alarcon (author), and Kleinfeld (dissenting), Circuit Judges.  AFPD J. Stansell of Seattle, WA, for the defendant;  AUSA D. Reno of Seattle, WA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

31)  IMMIGRATION LAW:  Singh v. INS, 01-71043 (9th Cir. July 12, 2002).  When an alien was ordered deported in absentia as a result of failing to appear at a deportation hearing due to a misunderstanding regarding the time of the hearing, the Board of Immigration Appeals abused its discretion in refusing to reopen the hearing where the alien has a valid claim for relief from deportation, had no reason to delay the hearing, and had diligently appeared at all of his previous hearings.  Schroeder (author), D.W. Nelson, and Reinhardt, Circuit Judges.  M. Guajardo of San Francisco, CA, for the petitioner;  B. Pettinato of Washington, DC, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

32)  IMMIGRATION LAW:  USA v. Perez-Corona, 01-10461 (9th Cir. July 8, 2002).  A state conviction for the unlawful use of means of transportation under Arizona Revised Statute Sec. 13-1803 did not constitute an aggravated felony for purposes of enhancing a sentence for a violation of 8 USC Sec. 1326(a), illegal reentry into the U.S. after deportation;  however, with the prior conviction classified as a "mere felony," the guideline range is 21-27 months and the district court failed state specifically any reason for sentencing below that range.  Thompson (author), W. Fletcher, and Berzon, Circuit Judges.  AUSA C. Cabanillas of Tucson, AZ, for the plaintiff;  AFPD J. Chon-Lopez of Tucson, AZ, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

33)  IMMIGRATION LAW:  Virk v. INS, 01-70055 (9th Cir. July 16, 2002).  An alien who obtains permanent resident status through a sham marriage, but subsequently marries another citizen or lawful permanent resident, can have his fraud forgiven and seek lawful permanent resident status through a waiver of deportation under INA Sec. 241(f);  the alien's eligibility for a waiver of deportation did not depend upon his terminated relationship with the wife of his sham marriage, but could be established through his later valid marriage. Canby (author), Fernandez, and Kleinfeld, Circuit Judges. A. Salazar of Seattle, WA, for the petitioner;  C. Appling of Washington, DC, for the respondent.(Download the full text of this decision at www.cc9.uscourts.gov/)

34)  IMMIGRATION LAW:  Paramasamy v. Ashcroft, 01-70584 (9th Cir. July 16, 2002).  In an asylum case, the Board of Immi-gration Appeals' reliance on an Immigration Judge's adverse credibility finding based on "demeanor observations," which were identically worded to the IJ's findings in two other opinions issued the same week, failed to provide the requisite "individualized" evaluation;  "Cookie cuter credibility findings," the USCA said, "are the antithesis of the individualized determination required in asylum cases."  Brunetti, Trott, and McKeown (author), Circuit Judges. C. Edward of Seattle, WA, for the petitioner;  J. Hunolt of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

35)  IMMIGRATION LAW:  Agyeman v. INS, 99-70396 (9th Cir. July 23, 2002).  A pro se alien was deprived of a full and fair hearing when the Immigration Judge misinformed him regarding the evidence that is permissible to prove his eligibility for relief from deportation; the alien was denied due process, where the IJ's finding was predicated on the alien's inability to procure his mentally ill wife's attendance or testimony at the hearing;  dissenting, Judge Kleinfeld thought the IJ had given the alien every chance to avoid deportation, and that the majority had imposed excessive new burdens on immigration proceedings.  Ferguson (author), Kleinfeld (dissenting), and Gould, Circuit Judges.  C. Durbin of Seattle, WA, for the petitioner;  J. Hogan of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

36)  BORDER DETENTIONS:  USA v. Zaragoza, 01-50320 (9th Cir. July 8, 2002).  The handcuffing of a detainee at a border by a customs inspector while the detainee is escorted from a primary to a secondary inspection station is not an arrest unsupported by probable cause where the detainee appeared nervous while being questioned in his vehicle, he was about 20 feet from two freeways, the walk took some 20 to 30 second, and the inspector told the detainee that he was not under arrest but being detained until his vehicle could be inspected, had been handcuffed for safety reasons, and would be unhandcuffed once in the security office. O'Scannlain (author) and Paez, Circuit Judges, and King, District Judge. B. Coleman of San Diego, CA, for the defendant;  P. O'Toole of San Di-ego, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

37)  BORDER DETENTIONS:  USA v. Bravo, 01-50159 (9th Cir. July 8, 2002).  When a defendant is handcuffed during a border inspection of the defendant's vehicle, the detention is not an arrest where the customs inspector tell the defendant that the handcuffs are temporary, and will be removed when they reached the security office, and the defendant will be free to leave if nothing is found in his vehicle, the defendant was handcuffed for only one to two minutes, the handcuffs were removed in the security office, and the handcuffs both protected the customs agent's safety and prevented the defendant's flight; dissenting in part, Judge Paez, thought that because reasonable suspicion existed the majority correctly held that the district court did not err in denying the defendant's motion to suppress evidence found in his vehicle, however, Judge Paez also thought that the defendant's detention became an arrest when he was handcuffed without justification.  O'Scannlain (author) and Paez (dissenting in part), Circuit Judges, and King, District Judge.  B. Coleman of San Diego, CA for the defendant;  AUSA P. O'Toole of San Diego, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

38)  SEARCH & SEIZURE:  Andersen v. USA, 01-56900 (9th Cir. July 30, 2002).  A district court's denial of a preliminary injunction motion, which was essentially a motion for the return of property under Fed. R. Crim. Proc. 41(e), was dismissed for lack of jurisdiction where the movant also asked for exclusion of evidence, sought to prevent further searches, and was subject to an ongoing grand jury investigation—even though he alleged that his First Amendment rights were infringed; dissenting, Judge Reinhardt thought the Rule 41(e) non-appealability rule did not apply to claims of serious, imminent, and irreparable violations of First Amendment rights.  Reinhardt (dissenting) and Graber (author), Circuit Judges, and Hunt, District Judge.  W. Cohan of San Diego, CA, for the plaintiffs;  G. Wolfinger of Washington, DC, for the defendants.(Download the full text of this decision at www.cc9.uscourts.gov/)
 

39)  INEFFECTIVE ASSISTANCE:  Avila v. Galaza, 01-55149 (9th Cir. July 22, 2002). Trial counsel provides ineffective assistance when, despite his belief that another person committed the crime charged against his client, he fails to investigate or introduce evidence that might raise a reasonable doubt as to his client's guilt.  Pregerson (author), Fisher, and Tallman, Circuit Judges. N. Coan of San Francisco, CA, for the appellant; J. Swoboda of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

40)  FRAUD:  USA v. Johnson, 99-10411 (9th Cir. July 12, 2002).  As knowing participants in a mail or wire fraud scheme are liable for their co-schemers' use of the mails or wires, it is sufficient for conviction that the prosecutor shows that the defendant participated in the scheme and that some co-participant used or caused to be used mail or wire in furtherance of the scheme.  Goodwin, Hug (author), and Thomas, Circuit Judges.  D. Jones of Phoenix, AZ, for the appellants;  S. Bales of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

41)  EVIDENCE:  USA v. Aguilar, 00-50502 (9th Cir. July 8, 2002).  The admission of an unavailable codefendant's guilty plea did not violate an accused's rights under the Confrontation Clause where that plea had been made under oath and with the representation of counsel and was entered personally before a district judge who accepted the plea under Fed. R. Crim. Proc. 11, where the plea included self-inculpatory remarks, and subjected the codefendant the risk of substantial imprisonment.  Trott (author), Thomas, and Wardlaw, Circuit Judges.  R. Rome of Van Nuys, CA, for the defendant;  M. Lowe of Los Angeles, CA, for the plaintiff.(Download the full text of this decision at www.cc9.uscourts.gov/)

42)  SEARCH & SEIZURE:  USA v. Todhunter, 01-10374 (9th Cir. July 18, 2002).  A vessel was lawfully boarded in Lahaina Harbor, Hawaii, by agents of three different agencies, based on reasonable suspicion;  a lawful threat to employ a "canine sniff" did not render the vessel's owner's consent to a search the vessel involuntary;  the Coast Guard has implied consent to use officers from other agencies in boarding vessels, where it has engaged in extensive joint training exercises with those other agencies, is so undermanned that it often utilized officers from other agencies, and the officers from the other agencies did not board the vessel until after receiving direct orders from their supervisors. Wallace, Tashima, and Tallman (author), Circuit Judges.  R. Barbree of Honolulu, HI, for the de-fendant; AUSA M. Silverberg of Honolulu, HI, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

43)  MENTAL COMPETENCY:  USA v. Timmins, 00-30224 (9th Cir. July 17, 2002).  A defendant must be able to give rational, non-delusional consideration to an offer of a favorable plea agreement in order to satisfy the requirements of 18 USC Sec. 4241 that he is able to properly assist in his defense;  as the inquiry into a defendant's competency to stand trial and assist in his own defense had been inadequate in this case, the defendant's convictions had to be reversed and remanded for a decision as to whether the rejection of the plea bargain offer had been made competently.  Trott and T.G. Nelson, Circuit Judges, and Shadur (author)  District Judge.  W. Labahn of Eugene, OR, for the defendant;  M. Mosman of Portland, OR, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

44)  CRIMINAL PROCEDURE / PLEAS:  USA v. Jimenez-Dominguez, 99-50760 (9th Cir. July 22, 2002).  During a Fed. R. Crim. Proc. 11(d) plea colloquy, the district court's "technical" failure to inquire whether the defendant's guilty plea resulted from prior discussions with the government did not constitute plain error where the defendant failed to show that the district court's deviation was other than a minor error, that he did not understand his rights, or that his plea was either unknowing or involuntary. Thomas and Rawlinson, Circuit Judges, and Armstrong (author)  District Judge.  W. Young of Santa Monica, CA, for the defendant; J. Gordon of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

45)  SELF-REPRESENTATION:  Avila v. Roe, 01-15003 (9th Cir. July 31, 2002).  In determining whether a defendant's motion to represent himself is made for the purpose of delay, a court must analyze for dilatory intent based on the totality of the circumstances proceeding the motion and the effect that granting of the motion would have had on the proceedings.  Goodwin (author), Sneed, and Trott, Circuit Judges.  DAG P. Ruffra of San Francisco, CA, for the respondent;  M. Willemsen of Mountain View, CA, for the peti-tioner.(Download the full text of this decision at www.cc9.uscourts.gov/)

46)  SENTENCING:  USA v. Hinostroza, 01-10482 (9th Cir. July 23, 2002).  In sentencing a defendant convicted for weapons possession, the district court did not err in imposing an enhancement for obstructing justice based on the defendant's false statement concerning his knowledge of the location of the weapons, which was made during a hearing to determine whether the defendant was eligi-ble for a downward departure based on his assertion that the weapons were possessed solely for lawful sporting purposes or collection; a firearms possession conviction was not an unreasonable regulation of the right to bear arms under the Second Amendment;  the admission of allegedly false uncharged statements on firearms applications was proper. Goodwin, Hawkins (author), and Fisher, Circuit Judges.  P. Reinecke of San Francisco, CA, for the defendant;  AUSA W. Sprague of Sacramento, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

47)  SENTENCING:  USA v. Yanez-Saucedo, 00-50606 (9th Cir. July 8, 2002).  A conviction for third-degree rape under Washington Rev. Code Sec. 9A.44.060, falls within the common, generic, and contemporary meaning of "rape," and constitutes an aggravated felony for the purpose of applying a recidivist sentencing enhancement under USSG Sec. 2L1.2 (2000).  Bright (author), Kozinski, and W. Fletcher, Circuit Judges.  H. Angove of San Diego, CA, for the appellant;  AUSA G. Vega of San Diego, CA, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

48)  SENTENCING:  USA v. Martinez-Martinez, 01-10294 (9th Cir. July 15, 2002).  At sentencing, a motion for downward departure on the ground that a state court lacked jurisdiction over a prior conviction was a prohibited collateral attack on that conviction.  Hawkins and Silverman, Circuit Judges, and Restani (author), U.S. Court of Intl. Trade Judge.  AFPD L. Kupers of Oakland, CA, for the defendant; AUSA C. Kelley of San Francisco, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

49)  SENTENCING:  USA v. Lee, 01-10179 (9th Cir. July 12, 2002).  In applying the two-level "special skills" enhancement under USSG Sec. 3B1.3, the sentencing court must determine whether the defendant's skill is "not possessed by members of the general public," and also whether it is a skill "usually requiring substantial education, training, or licensing." Here, under Circuit precedents and the guideline's application note, the district court's imposition of the "special skills" adjustment was not supported by the findings.  Brunetti, Kleinfeld (author), and Thomas, Circuit Judges.  AFPD S. Park of Honolulu, HI, for the appellant;  AUSA L. Tong of Honolulu, HI, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

50)  HABEAS CORPUS:  Bennett v. Mueller, 00-56199 (9th Cir. July 9, 2002).  California's untimeliness rule as expressed through California precedents constitutes an independent state ground upon which to deny a habeas petition; however, the USCA reversed on the issue of adequacy because it could not conclude on the record available that California has regularly and consistently applied the untimeliness bar in habeas cases.  Brunetti, Rymer, and Wardlaw (author), Circuit Judges.  T. Perry of Whittier, CA, for the petitioner;  B. Lockyer of Los Angeles, CA, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

51)  HABEAS CORPUS:  Hill v. Alaska, 01-71735 (9th Cir. July 19, 2002).  Where a habeas petition constitutes a first challenge to the calculation of the prisoner's release date, the petition (as relating to parole) is not "second or successive" under the Antiterrorism and Effective Death Penalty Act of 1996.  Brunetti, Trott, and McKeown (author), Circuit Judges.  R. Hill pro se;  W. Hawley of Anchorage, AK, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

52)  HABEAS CORPUS:  Majoy v. Roe, 00-56521 (9th Cir. July 11, 2002).  The "actual innocence gateway" of Schlup v. Delo, 513 US 298 (1995), may be available to a habeas petitioner to excuse a procedural default where the petitioner's murder conviction was based primarily on the testimony of a witness who recanted his testimony post-trial, and where the prosecution maintained at trial that the petitioner was the disguised lookout seen fleeing the scene by a neutral bystander witness, but the witness in a separate trial related to the murder described the lookout such as would exclude the petitioner.  Pregerson and Trott (author), Circuit Judges, and Fitz-gerald, District Judge.  V. Wefald of Pasadena, CA, for the petitioner;  J. Yang of Los Angeles, CA, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

53)  HABEAS CORPUS:  Rios v.  Rocha, 01-15835 (9th Cir. July 31, 2002).  In a first-degree murder trial, the defense attorney's failure to interview more than one witness, where numerous eyewitnesses were available, before abandoning a potentially meritorious defense constituted constitutionally deficient performance;  the denial of a habeas petition was improper where a reasonable probability existed that the outcome of the trial would have been different had defense counsel investigated and presented eyewitnesses whose testimony would have been exculpatory; dissenting, Judge Fernandez noted that, while the defense attorney had decided upon an unconsciousness defense before conducting an extensive investigation, he subsequently saw a great deal of information but found no reason to change his initial approach;  with 20/20 hindsight it might be said that he should have done more investigation, but that is not the standard;  the defendant failed to show that the result of the proceeding would have been different had more witnesses be interviewed.  Reinhardt (author), Noonan, and Fernandez (dissenting), Circuit Judges.  Q. Denver of Sacramento, CA, for the petitioner;  B. Lockyer of Sacramento, CA, for the respondent.(Download the full text of this decision at www.cc9.uscourts.gov/)

54)  HABEAS CORPUS:  Hill v. Roe, 00-56480 (9th Cir. July 29, 2002).  A federal district court errs when it places on a federal habeas petitioner the burden of proving that a decision cited by a state court in denying his state habeas petition was an independent and adequate state procedural ground that would bar federal court review.  Pregerson (author), Rymer, and T.G. Nelson, Circuit Judges.  J. Whatley of Santa Barbara, CA, for the petitioner;  E. Jackson of Los Angeles, CA, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

55)  DISCRETIONARY WAIVER OF REMOVAL / HABEAS CORPUS:  Gutierrez-Chavez v. INS, 00-56149 (9th Cir. July 31, 2002).  A legal permanent resident could not challenge the denial of his request for a waiver of deportation via a 28 USC Sec. 2241 habeas petition, following his parole upon serving a sentence for cocaine trafficking, absent allegations of constitutional or statutory error in the removal process;  concurring, Judge McKeown departed company with the majority to the extent its opinion could be read to bar habeas review under Sec. 2241 in all cases implicating abuse of discretion.  B. Fletcher, D.W. Nelson (author), and McKeown (concurring), Circuit Judges.  V. Nieblas of Los Angeles, CA, for the petitioner;  C. Ferrier of Washington, DC, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

56)  PAROLE:  Benny v. U.S. Parole Commission, 00-16867 (9th Cir. July 2, 2002).  The petitioner sought either a writ of habeas corpus under 28 USC Sec. 2241, or a writ of mandamus under 28 USC Sec. 1361; the USCA affirmed the district court's denial of the petitioner's primary request for termination of supervision;  however, it concluded that the district court should have granted the peti-tion in so far as it requested a writ of mandamus to order the Parole Commission to hold an early termination hearing and to make a decision;  time the petitioner spent in custody pending parole revocation proceedings had no effect on the accrual of the five-year period Sec. 4211(c)(1) requires for eligibility for an early termination hearing.  Beezer (author), Thomas, and W. Fletcher, Circuit Judges.  S. SeLegue of San Francisco, CA, for the petitioner;  AUSA A. Tse of San Francisco, CA, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

 1)  INTELLECTUAL PROPERTY:  3D, Ltd. v. Spectratek Technologies, Inc., 01-56604 (9th Cir. July 18, 2002) (unpublished).  Kozinski and Fernandez, Circuit Judges, and King, District Judge.
        On 3D's appeal, the USCA affirmed in part and reversed in part, ordering each party to bear its own costs.  First, the USCA noted that summary judgment is appropriate under the "extrinsic test" if no reasonable jury could find substantial similarity of protectable expression.  Because 3D had presented evidence of Spectratek's access to its pattern, the USCA said it requires less proof of substantial similarity.  Each pattern consists of overlapping polygons.  That similarity, however, is an unprotectable idea, not protectable expression.  The patterns are otherwise quite dissimilar.  The 3D-24 pattern has a clearly visible repeating rectangular structure.  Within each rectangle, the polygons are radically arrayed in wedge-shaped sections.  The Crystals pattern, by contrast, has no observable repetitive geometry.  The two patterns do have similar, though not identical, polygon size and density, but those similarities are dwarfed by the pronounced differences between the two designs.  They therefore fail to raise a triable issue.  Second, the USCA concluded that it did not need to consider whether the district court abused its discretion in denying leave to file a second amended complaint because 3D's claim as to the 3D-26 pattern failed for the same reasons.  Third, the district court did abuse its discretion by awarding attorneys' fees.  It held that 3D's claims were frivolous, objectively unreasonable and motivated by anticompetitive purposes.  It also relied on 3D's "pattern of misinformation [during discovery] concerning the identity of the pattern at issue."  Although the USCA rejected 3D's claims, it did not find them frivolous or objectively unreasonable.  Nor were they improperly anticompetitive merely because 3D overestimated the scope of its copyright.  3D's discovery infractions do not alone justify the award.  Awards of attorneys' fees under 17 USC Sec. 505 must advance the purposes of the Copyright Act.  An award based solely on discovery violations would not do so to any material degree.

2)  COPYRIGHT INFRINGEMENT:  Allman v. Capricorn Records, 00-56001 (9th Cir. July 16, 2002) (unpublished).  Goodwin, Wallace (concurring), and Thomas, Circuit Judges.
       Allman and his solely owned publishing companies, Elijah Blue Music, D-Dem Music, Allbro Music and Relot Music (collectively "Allman") appealed the district court's summary judgment and dismissal in favor of Capricorn Records in Allman's copyright infringement action under 17 USC Sec. 115.  The USCA reversed and remanded for further proceedings.
        The salient issue was whether the defendants exceeded the scope of compulsory licenses issues by Allman to PolyGram Records to make and distribute phonorecords of various copyrighted songs.  If a copyright owner grants a nonexclusive license to use his copyrighted material, he generally waives his right to sue the licensee for copyright infringement and can sue only for breach of contract.  However, if a license is limited in scope, and the licensee acts outside the scope of the license, the licensor can bring an action for copyright infringement.  Here, there are genuine issues of material fact as to whether the licenses were limited in scope and whether the licensee acted outside the scope of the license.  Paragraph 3 on the reverse side of the licenses provided:  "This compulsory license covers and is limited to one particular recording of said copyrighted work as performed by the artist and on the phonorecords number identified in (C) supra; and this compulsory license does not supersede nor in any way affect any prior agreements now in effect respecting phonorecords of said copyrighted work."  It is undisputed that specific phonorecords numbers were identified in the various licenses.  It is also undisputed that Mercury Records, a division of PolyGram, and Capricorn Records, Inc., entered into a joint venture entitled Capricorn Records, LLC, 51% of which was owned by PolyGram and 49% of which was owned by Capricorn Records, Inc.  In 1997, Capricorn LLC distributed phonorecords of the disputed songs with different phonorecords numbers than those identified in the licenses.  The defendants essentially argued that the phonorecords number is not a material part of the license—that is, that the license is for the use of a phonorecords in a particular configuration.  Allman argues that the phonorecords catalogue number is a material part of the license because it prohibits unauthorized issuance of recordings in a manner that would make it difficult or impossible to track royalties.  Allman also maintained that if new licenses were to be issued, the royalty provisions would be established at the statutory rate prescribed in 17 USC Sec. 115, rather than at 80% of the statutory rate, as established in the original licenses granted by Allman.  Thus, the USCA concluded that genuine issues of fact remain for resolution as to the scope of the license and whether the defendants exceeded the scope and thus infringed the copyright.  Genuine issues of material fact also remain as to whether the defendants are jointly and/or severally liable for the infringement.  The entry of summary judgment was thus inappropriate.  Given the vacation of the judgment, the attorneys' fee award also had to be vacated.
         Concurring, Judge Wallace noted that the majority reversed the district court's summary judgment because it believed there to be a genuine issue of material fact as to whether Capricorn Records, LLC exceeded the scope of a compulsory license issued by All-man to PolyGram Records.  Judge Wallace agreed that summary judgment was improper but for different reasons:  Capricorn will be liable to Allman for copyright infringement if it reproduced and/or distributed Allman's song either without a license or in a way not permitted by its license.  The first inquiry thus should be whether Capricorn reproduced or distributed the song.  If it did, the USCA should then determine whether it had a license to copy or distribute and, if so, whether the alleged infringing activity falls within the scope of that license. Judge Wallace's principle objection to the majority's approach is that it skips past the first two inquiries and focuses solely on whether Capricorn exceeded the scope of Capricorn exceeded the scope of the PolyGram license.  Judge Wallace said he would attempt to resolve the first two questions before addressing the license scope issue.  PolyGram undoubtedly exercised significant influence over the joint venture with Capricorn.  As the district court indicated, PolyGram retained ownership of the master recordings, set the prices of the retail albums, and handled the accounting and payment of royalties.  This does not mean, however, that Capricorn's role was insignificant or that Capricorn did not copy or distribute the song.  After paying a distribution fee to PolyGram, it received all of the income from the sale of the song.  It appeared likely from the joint-venture agreement between Capricorn and PolyGram that PolyGram was acting as Capricorn's agent in the distribution of the song.  Thus, Judge Wallace would conclude that Allman has raised a triable issue as to whether Capricorn copied or distributed the song.  Assuming that Capricorn copied or distributed the song, there is also the question of whether Capricorn has a license.  Since all agree that Capricorn did not have its own license, the issue is whether the PolyGram license covered Capricorn's activities.  PolyGram's license could have been extended to Capricorn in one of two ways:  1) a possible transfer of PolyGram's license to Capricorn or 2) PolyGram and Capricorn could have been the same legal entity.  Capricorn repeatedly claims that it never asked for or received a right in the PolyGram license.  The re-released phonorecords stated that the song was "licensed exclusively to Capricorn Records, LLC," but the statement appears to have been a mistake as Allman failed to produce further evidence, such as a license assignment agreement, to substantiate its claim that the license had indeed been transferred.  In Judge Wallace's opinion, the label evidence alone is insufficient for Allman to have raised a triable issue on the question of whether PolyGram tried to assign its license to Capricorn.  Moreover, I have serious doubts about whether such an assignment could be accomplished even if attempted.  Whether PolyGram and Capricorn are the same entity is another matter.  The district court, Judge Wallace noted, appears to have accepted Capricorn's argument that it and PolyGram were the same entity when it stated that Allman "presented no evidence of Capricorn LLC's separate legal entity status."  The district court, Judge Wallace said, wrong.  Not only does Capricorn Records, LLC have a separate name and entity designation, it existed as a limited liability partnership prior to the joint venture agree-ment between PolyGram and Capricorn Records, Inc.  Moreover, PolyGram owned only 51% of Capricorn.  Judge Wallace thus would conclude that Allman has raised a triable issue as to whether PolyGram and Capricorn are separate legal entities.  He would remand to the district court to make this determination, if necessary.  If PolyGram and Capricorn are different legal entities and Capricorn engaged in copying or distributing, then Capricorn infringed Allman's copyright.  If they are the same legal entity, then the court would have to address whether Capricorn's alleged infringing activity fell within the scope of the PolyGram license.  In sum, rather than re-manding on the license scope issue alone, Judge Wallace would reverse and remand for the district court to determine whether Capricorn copied or distributed "Wasted Words,"  If it did, he would ask the district court to determine whether Capricorn had a license and, if Capricorn did have a license, only then would Judge Wallace instruct the district court to determine whether Capricorn's alleged infringing activities exceeded the scope of the PolyGram license.

3)  LANHAM ACT:  Aussie Nads U.S. Corp. v. Sivan, 01-57180 (9th Cir. July 26, 2002) (unpublished).  Noonan, Wardlaw, and Berzon, Circuit Judges.
          The district court entered a preliminary injunction prohibiting Aussie Nads U.S. Corporation from advertising its "No Heat Hair Removal Gel" with the representation that "No Preparation is Required," without a disclosure that the consumer's hair needs to be a minimum 1/8 to 1/4-inch long for the gel to be effective.  Aussie Nads appealed, maintaining that the district court erred in concluding advertisement is literally false unless reference is made to the minimum hair length.  The USCA agreed with Aussie Nads.  "To demonstrate falsity within the meaning of the Lanham Act, a plaintiff may show that the statement was literally false, either on its face or by necessary implication, or that the statement was literally true but likely to mislead the consumers."  Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir. 1997). To find an advertisement "literally false" by "necessary implication," as the district court did here, the claim must be analyzed in its entirety to determine whether "the audience would recognize the claim as readily as if it had been explicitly stated."  Clorox Co. Puerto Rico v. Proctor & Gamble Co., 228 F.3d 24, 34 (1st Cir. 2000).  Aussie Nads' claim that its "no heat" hair removal gel requires "no preparation" is at least ambiguous as to whether "no preparation" of the gel is required, as opposed to that required for other hair removal products (such as heating, for wax), or "no preparation" of the person is required.  Given this ambiguity, the doctrine of literal falsify is inapplicable and thus cannot sustain the preliminary injunction.

4)  TAXATION:  Bailey v. USA, 01-16061 (9th Cir. July 16, 2002) (unpublished).  Canby and Rymer, Circuit Judges, and Bertelsman, District Judge.
          This appeal consolidates Bailey's third and fourth federal lawsuits aimed at undoing the effects of a penalty assessed against him by the IRS.  Whether characterized as a claim for damages under the Federal Tort Claims Act, or as a motion to set aside the ad-verse judgment in Bailey's first suit, both cases turn on the same allegations—namely, that the IRS used forged documents to obtain a successful ruling in Bailey's first action, Bailey v. USA, 927 F. Supp. 1274 (D. Ariz. 1996), aff'd, 117 F.3d 1424 (9th Cir. 1997) (unpublished).  This charge repeats allegations made in Bailey's second suit, Bailey v. IRS, 188 FRD 346 (D. Ariz. 1999), aff'd, 232 F.3d 893 (9th Cir. 2000) (unpublished).
          The USCA affirmed both judgments.  Both cases were barred by the res judicata effects of Bailey's earlier, unsuccessful suits.  His contention that res judicata should not apply due to his fraud allegations lacked merit.  Even assuming that there is a general fraud exception to the rules of claim preclusion, Bailey did not fall within the exception because he failed to plead with particularity facts establishing that, during his first action, he diligently attempted to uncover the information he says was concealed.  Moreover, to the extent that his present cases function as separate suits to set aside the judgment in his first action, they present claims for relief that could have and should have been brought in Bailey's second action.  Construed as a motion under Fed. R. Civ. P. 60(b)(3), Bailey's present suits were clearly untimely.  Bailey's argument that he should never have been penalized for tax returns that his clients did not actually sign was not articulated in the district court and was waived.  Both of the cases now on appeal were properly dismissed with prejudice.

5)  TAXATION:  Standifird v. USA, 01-16727 (9th Cir. July 29, 2002) (unpublished).  Browning, Kozinski, and Berzon, Circuit Judges.
         Standifird appealed pro se the district court's summary judgment in favor of the United States in his action to vacate an IRS Notice of Determination approving assessments of frivolous return penalties for Standifird's 1990, 1991, and 1992 tax returns.  The USCA affirmed.  Summary judgment was proper because the IRS presented uncontroverted evidence establishing that it provided Standifird with adequate notice, Hughes v. USA, 953 F.2d 531, 536 (9th Cir. 1992), and Standifird failed to raise a genuine issue of material fact as to whether the IRS appeals officer abused his discretion in determining, pursuant to 26 USC Sec. 6330(c)(1), that the IRS met the requirements of applicable law or administrative procedures.  Hansen v. USA, 7 F.3d 137, 138 (9th Cir. 1993).  The district court properly substituted the United States for the two IRS appeals officers Standifird named in his original complaint because the United States is the real party in interest.

6)  TAXATION:  USA v. Simmons, 01-16867 (9th Cir. July 29, 2002) (unpublished).  Browning, Kozinski, and Berzon, Circuit Judges.   
        Simmons appealed pro se the district court's order denying his motion to reconsider the district court's orders amending an order of judicial sale to satisfy federal tax liens.  Simmons also appealed the district court's order concluding that certain counterfeit coins be surrendered to the U.S. Secret Service to be smelted and sold in accordance with the court's amendment order of judicial sale.  The USCA affirmed.  The district court did not abuse its discretion by denying reconsider.  It also did not abuse its discretion by ordering the disposition of the counterfeit coins.

7)  BANKRUPTCY:  In re Micropolis (USA), Inc., 00-57208 (9th Cir. July 9, 2002) (unpublished).  Wardlaw and W. Fletcher, and Whyte, Circuit Judges.          Since the hearing of the appeal in this matter, the court issued and amended its opinion in Community Dental Services v. Stuart Tani, DDS., 282 F.3d 1164 (9th Cir. 2002), holding that where a client has demonstrated gross negligence on the part of his counsel, a default judgment may be set aside pursuant to Federal Rule Civil Procedure 60(b)(6).

8)  BANKRUPTCY:  In re Stephenson, 00-55478 (9th Cir. July 11, 2002) (unpublished).  Kozinski and Fernandez, Circuit Judges, and King, District Judge.
        The District Court for the Central District of California, Judge Cooper presiding, limited the damages awarded to Bruce Stephenson and Harold Collins. 
         The USCA affirmed the Bankruptcy Court.  On appeal, Senaida Stephenson sought to have the Bankruptcy Court's damage decision set aside on the basis that the award was unduly punitive and, thus, violated the Due Process Clause of the 14th Amendment.  However, she failed to present that issue to the Bankruptcy Court and the USCA declined to take it up on this appeal.  Rather, the USCA affirmed the Bankruptcy Court, noting Crawford v. Lungren, 96 F.3d 380, 389 n. 6 (9th. Cir. 1996), and In re Home Am. T.V.-Appliance Audio, Inc., 232 F.3d 1046, 1052 (9th Cir. 2000), cert. denied, 122 S.Ct. 39 (2001).  The USCA thus rejected the result reached by the District Court after it decided to consider the issues.  This, the USCA said, was especially appropriate here as the parties expressly stipulated to which issues were to be decided by the Bankruptcy Court, and did not include this one.  Senaida also sought to have a new consideration of the question of whether the communications were truly confidential.  Again, she failed to raise the issue in the Bankruptcy court; and, again, the USCA declined to consider it.  Since the Bankruptcy Court ruled, the California Supreme Court has clarified the law regarding confidentiality in Flanagan v. Flanagan, 27 Cal. 4th 766, 776 (2002).  However, the USCA noted that this clarification did not, in any way, aid Senaida.  The USCA thus affirmed the Bankruptcy Court as far as to new consideration.  Finally, Senaida took the position that the Bankruptcy Court should not have considered the act of tapping Bruce's phone, the act of recording what was said, and the act of disclosing what was said as three separate violations each time she did all three things.  The USCA disagreed.  Each was a separate wrong.  The tap violated one law.  Cal. Penal Code Sec. 631.  The recording violated another.  Cal. Penal Code Sec. 632.  The disclosure violated still another.  Cal Penal Code Sec. 637.  Thus, her claim that they were not subject to separate penalties is wrong. 

9)  BANKRUPTCY / DEBT COLLECTION:  National Union Fire Insurance Co. of Pittsburgh, PA v. Owenby, 00-55909 (9th Cir. July 15, 2002) (unpublished).  Hall, Silverman, and Rawlinson, Circuit Judges.
         This consolidated appeal involves two underlying actions on a debt owed by Owenby to the National Union Fire Insurance Company of Pittsburgh ("National").  Owenby owed several debts to National, one of which was the basis for a federal default judgment in the latter's favor in New York in 1987.  Since obtaining that judgment, National has attempted unsuccessfully to collect on the funds owed it in California.  Owenby now claims that those efforts must stop because they are time-barred under California's ten-year statute of duration and appeals one district court's denial of her motion to recall and quash a writ of execution obtained by National and vacated a related levy on her bank accounts.  Owenby also appealed the order of another district court affirming a bankruptcy judgment finding the debts she owes to National nondischargeable.  As it agreed that National reasonably relied on false representations made to it by Owenby, and also found that the adversary action in bankruptcy resulting in the nondischargeability judgment was and "action on a judgment" starting a new ten-year period for enforcement in California, the USCA affirmed the rulings of the two district court's below, but vacate an order to remit funds related to an account containing partnership assets. 
          Owenby first appealed an order of the District Court for the Central District of California, Judge Moreno presiding, affirming the bankruptcy court's holding that her debts to National were nondischargeable.  The bankruptcy court held the debts non-dischargeable pursuant to 11 USC Sec. 523(a)(2)(B) because Owenby had provided false financial information to National in order to obtain its agreement to act as her surety.  In re Siriani, 967 F.2d 302, 304 (9th Cir. 1992), described Sec. 523(a)(2)(B) as setting forth seven elements that must be proved by a preponderance of the evidence:  1) a representation of fact by the debtor, 2) that was material, 3) that the debtor knew at the time to be false, 4) that the debtor made with the intention of deceiving the creditor, 5) upon which the creditor relied, 6) that the creditor's reliance was reasonable, 7) that damage proximately resulted from the representation. Owenby maintained that the bankruptcy court committed clear error by dismissing her evidence that it was actually her securities broker who filled out the form supplying her financial information to National and by imputing to her an intent to deceive.  The record shows that the financial statement is signed "Ruth L. Owenby," and the signature appears to match other documents signed by her.  Owenby admitted to having signed documents in connection with the investment after discussing her financial information with the broker.  While she claims that she signed the documents given to her while she was "in a hurry," as a member of the California Bar, Owenby was fully educated about the legal significance of signing formal documents including an avowal of accuracy.  The bankruptcy court did not clearly err in concluding from these facts that Owenby signed the financial statement with the requisite intent. 
         Owenby has also not shown that the bankruptcy court erred in determining on the totality of the circumstances that National's reliance on her financial statement was reasonable.  In re Lansford, 822 F.2d 902, 904 (9th Cir. 1987).  Owenby materially inflated her net worth on the financial statement and reported assets that she did not in fact own.  At the same time, she certified that the information on her financial statement was true and that she had sufficient assets to cover the nation.  Because she intentionally misled National on the financial statement, the USCA viewed with disfavor her claim that it was not reasonable for National to rely on it.
         The record did not show that National was given reason to disbelieve the financial statement.  The inconsistencies that Owenby identified as "red flags" on appeal were specious.  Her listing of "notes receivable" as $5,000 was not inconsistent with a lack of prior income on notes because notes receivable represent future expected income rather than past income.  The amount of her reported investments over the prior five years was not inconsistent with her reported income which was $120,000, $205,000, and $300,000, over the prior three years, rather than the $80,000, $120,000, and $120,000 claimed in her brief.  In any case, National had no reason to assume recent personal income was Owenby's sole source of funds for her reported investment.  Owenby's reported investment activity was also not inconsistent with her reported lack of dividend, real estate, or "other income, because she listed ownership of real estate valued at $400,000, and this was the obvious basis for the claimed investment activity.  The financial statement reported that real estate did not generate any income.  The other "red flags" identified by Owenby were also not sufficient to find clearly erroneous the determination that National reasonably relied on the financial statement.  Failure to report a personal accountant in the space provided for such information is of no relevance because National had no reason to presume that Owenby had such an accountant.  Failure to provide bank information is of some relevant because it does indicate that the financial information that Owenby did provide was unreliable.  Had National attempted to contact a bank without specific authorization to ascertain account balances, it would not likely have been given such information.  Under these circumstances, it did not follow from a failure to provide a bank name or address that an applicant is attempting to hide the fact that she has inflated her reported assets.  Although Owenby urged the USCA to rule that it is unreasonable as a matter of law to rely on a submitted statement of finances without conducting an independent investigation when a lender has had no prior dealings with a potential borrower, the Ninth Circuit has never adopted such a bright line rule and has specifically disfavored it.  The USCA did not adopt it now.
       Owenby next argued that California's statutory period for enforcing judgment, which is governed by its "statute of duration" codified at Cal. Civ. Proc. Code Sec. 683.020, was begun by an alleged but undocumented December 20, 1988 registration of the New York judgment against her in the Central District of California pursuant to 28 USC Sec. 1963.  In the alternative, she claims that Na-tional's obtaining of an abstract of judgment from the court clerk on January 20, 1989 began the enforcement period.  Since National's 1999 registration of the same judgment and the associated writ and levy on her bank assets occurred more than ten years after either of those dates, she argued that they were unlawful.  National does not directly deny the original registration or that the period specified by California's statute of duration has run from that date.  Rather it argues that its adversary action in bankruptcy for exemption from discharge and the 1999 registration were both actions brought within the period of California's separate state of limitations which created new ten-year periods for enforcement.  The bankruptcy court's nondischargeability order provided a sufficient basis for enforcement of the New York judgment debt in California.  In both California and the federal district courts, an out of state judgment holder who wishes to enforce that judgment in state may bring an action on a judgment to do so.  Under California law, which governs the enforcement and timing of such actions, the right to being an action on a prior judgment is expressly recognized by Cal. C. Civ. Proc. Sec. 683.050, and the time for bringing such an action is tied to California's statute of limitations rather than its statute of duration.  The ten-year statute of limitations for actions on a judgment provided by Cal. C. Civ. Proc. Sec. 337.5 is not coterminous with the ten-year period in the stature of duration.  An action on a judgment is the "customary way" to secure enforcement of an out of state judgment.  The doctrine that a judgment creates its own cause of action is an entirely practical legal device, the purpose of which is to facilitate the goal of securing satisfaction of the original cause of action.  In combination with the doctrine of "merger," whereby a cause of action is said to merge with a judgment upon its such that only the judgment survives as a basis for further litigation, the doctrine also provides a bar against attempts to opportunistically relitigate the same cause of action.  California has placed no particular limits on what may qualify for an action on a judgment beyond the inherent requirements of prosecution in an independent lawsuit and the fact that the process must necessarily involve a judge with proper jurisdiction who issues a judgment recognizing the validity of an out of state judgment.  The nondischargeability action and judgment in this case satisfied those requirements.  The adversary proceeding qualified as an "action" under California law.  Owenby had notice of the action and an opportunity to be heard and present evidence.  The nondischargeability judgment also entailed the necessary recognition of the New York Judgment.  As the Ninth Circuit recently recognized, "there are two distinct issues [a bankruptcy court considers] in the dischargeability analysis:  first, the establishment of the debt itself … and, second, a determination as to the nature of that debt."  In re Banks, 262 F.3d 862, 868 (9th Cir. 2001).  In this case, establishment of the debt requires recognition of the validity of the New York Judgment.  Finally, the bankruptcy judgment explicitly recognized the New York judgment as part of the basis for the debt it found not dischargeable and affirmatively authorized National to pursue recover on that debt.
        National's adversary action in bankruptcy was also timely as an action on the earlier judgment.  The New York judgment became final on December 23, 1987. National's complaint to the bankruptcy court based on that judgment was filed on March 17, 1997.  It thus fell within the ten year tollable period for bringing such actions established by Sec. 337.5.  Owenby also raised Cal. C. Civ. Proc. Sec. 1710.55 as a separate bar on enforceability.  But that claim was misplaced.  On its face Sec. 1710.55 governs actions in California rather than federal courts and is limited to actions to enforce the judgments of other state courts.  Because the bankruptcy court's nondischargeability ruling was an action on a judgment commencing its own ten-year enforcement period, the USCA did not reach National's alternative claim that it re-registered the New York judgment in 1999.  Even assuming arguendo that the judgment was not validly re-registered and that the writ of execution could not properly be issued on the registration, the USCA said it would still affirm the district court's denial of Owenby's motion to recall and quash the writ and vacate the levy.  As the nondischargeability order provided a valid basis on which to levy assets in order to satisfy the debt to National, the fact that the writ was issued on the 1999 registration rather than the nondischargeability order was at most harmless error. 
       Finally, the parties agreed that one of the Bank of America accounts which was levied contained funds from a law partnership in which Owenby and her son were the sole and equal partners.  After learning that one of the levied accounts was a partnership account, National obtained a charging order from the district court.  The court then ordered 50% of the account remitted to National.  Owenby claimed that this order reflects two legal errors.  First she claimed that National was not entitled to 50% of the account because it may only charge her share of profits and any distributions and may not otherwise touch partnership assets.  Second, she claimed that part of her interest in the partnership account is subject to exclusion as "earnings" exempted under Cal. C. Civ. Proc. Secs. 704.070(b)(2) and 706.051(b).  Owenby correctly assets that the only transferable interest of a partner in a partnership is the partner's share of profits and the right to receive distributions.  A partner's right in specific partnership property is not subject to enforcement on a money judgment, except on a claim against the partnership.  A partner's "interest in the partnership," which constitutes profits and the right to distribution, is subject to such enforcement.  Having scrutinized the record, the USCA said it could not determine the nature of the funds at issue or whether the district court considered whether they were partnership assets, or monies for the personal use of Owenby and her son.  The USCA thus vacated the district court's order to remit $2,684.61 to National and remanded for it to determine the nature of the assets and, at its discretion, to remit that portion representing Owenby's profits and distributions.  Since it could not determine the nature of the funds in the partnership account, the USCA did not reach Owenby's claim that they are exempt as the "earnings" of an "employee" under Cal. C. Civ. Proc. Secs. 704.070(b)(2) and 706.051(b).

10)  BANKRUPTCY:  In re Franceschi, 01-56678 (9th Cir. July 29, 2002) (unpublished).  Hug, Farris, and Silverman, Circuit Judges.
       Franceschi appealed the Bankruptcy Appellate Panel's decision affirming the bankruptcy court's dismissal of Franceschi's lawsuit on grounds of Eleventh Amendment sovereign immunity and Younger abstention.  Following a de novo review, the USCA affirmed on the basis of Younger abstention.
 As a threshold issue, the USCA considered sua sponte its jurisdiction over Franceschi's appeal.  It noted that it has jurisdiction only if the BAP incorrectly determined that the bankruptcy court's order dismissing Franceschi's complaint was interlocutory.  It reviewed de novo the BAP decision that the bankruptcy court order was not final, and conclude that the decision was erroneous.  The bankruptcy court's order dismissing Franceschi's complaint was final because it terminated the litigation and left nothing for the court to do but enter judgment.  Thus, the BAP had jurisdiction under 28 USC Sec. 158(a)(1) and (c), and the USCA exercised jurisdiction under Sec. 158(d).
         Citing Contractors' State License Bd. Of Cal. v. Dunbar, 245 F.3d 1058 (9th Cir 2001), Franceschi argued that the bankruptcy court's abstention under Younger was improper because abstention is fundamentally incompatible with federal bankruptcy power and would frustrate the bankruptcy court's jurisdiction to discharge debts.  In response, the USCA noted first that Dunbar is immaterial to the instant case because abstention was not involved in that case.  Second, and more importantly, the USCA has applied Younger abstention in the context of bankruptcy proceedings, thereby rejecting the claim that such abstention is incompatible with federal bankruptcy jurisdiction.
      Franceschi also sought to interfere with the California State Bar's disciplinary proceedings by requesting (1) a declaration that three of the charges against him violate the bankruptcy court's discharge order, and (2) a permanent injunction enjoining the prosecution of those three charges in the State Bar Court.  Thus, the USCA had to determine whether Younger abstention was required because the state disciplinary proceedings (1) were ongoing and judicial in nature, (2) implicate important state interests, and (3) provide Franceschi an adequate opportunity to litigate federal claims.  The USCA first noted that state proceedings are deemed "ongoing" if the state-court suit was pending at the time of the federal suit's filing.  Under California law, attorney disciplinary proceedings in the State Bar Court commence with the filing of a notice of disciplinary charges.  Because Franceschi brought his federal action after the State Bar had filed its notice of disciplinary charges against him, the state disciplinary proceedings were ongoing for Younger purposes.  There proceedings were also judicial in nature.  Second, California's attorney disciplinary proceedings implicate important state inter-ests.  Third, California's attorney disciplinary proceedings provide Franceschi with sufficient opportunity to raise federal claims for Younger purposes.  Although the California Constitution, Article III, Sec. 3.5 declares that administrative agencies may not "refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute."  Cal. Const., Art. III, Sec. 3.5(c), this constitutional provision does not prevent Franceschi from raising his federal claims in the State Bar Court in order to preserve them for review in the California state courts.  In his response to the disciplinary charges, Franceschi may provide "such … facts by way of defense as may be relevant,"  Cal. State Bar R.P. 103(c)(2)(i), and Franceschi may seek review of the State Bar Court's decision in the California Supreme Court or a California Court of Appeal.  This opportunity for judicial review of Franceschi's federal claims in the California courts satisfied the final requirement of Younger.
       Finally, the USCA concluded that all of the Younger factors were present, and that none of the exceptions to the doctrine applied.  Franceschi does not allege, and there is no evidence of, bad-faith prosecution, harassment, a biased state forum, or other extraordinary circumstances, and the California statutory provisions under which Franceschi ahs been changed are not blatantly unconstitutional.  The bankruptcy court properly abstained form exercising jurisdiction over Franceschi's federal action.

11)  AMERICANS WITH DISABILITIES ACT:  Disabled Rights Action Committee v. Fremont Street Experience Ltd. Li-ability Co., 01-16657 (9th Cir. July 23, 2002) (unpublished).  Hawkins, Silverman, and Restani, U.S. Ct. of Intl. Trade Judge.
         A group of plaintiffs led by the Disability Rights Action Committee appealed the grant of summary judgment in favor of the Fremont Street Experience Limited Liability Company (Fremont).  The appellants sought to enjoin Fremont from violating Title III of the Americans with Disabilities Act. 
          The appellants maintained that Fremont violated Title III by failing to exercise due care to ensure that the Fremont temporary structures comply with the ADA.  The appellants point to several structures that allegedly violate government regulations as evidence of Fremont's poor oversight practices.  Title III provides:  "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommo-dation by any person who owns, leases (or leases to), or operates a place of public accommodation."  42 USC Sec. 12182(a).  In the event of a violation of Sec. 12182, the statutory scheme provides for injunctive relief.  42 USC Secs. 12188, 2000a-3(a).  The district court denied appellants' request for an injunction against Fremont.
        The USCA affirmed.  A commercial facility discriminates under Sec. 12182(a) by failing to "design and construct facilities … that are readily accessible to and usable by individuals with disabilities."   It also may discriminate under Sec. 12182(a) by failing to make a reasonable modification in policies, practices, or procedures when such modifications are needed to afford access to individuals with disabilities.  42 USC Sec. 12182(b)(2)(A)(ii).  The appellants alleged that Fremont engaged in discriminatory patterns and practices by providing inadequate oversight, but they failed to come forward with proof sufficient to survive summary judgment.  At most, they brought forth evidence of one or two technical violations in the face of numerous instances of compliance.  The appellants' evidence, the USCA concluded, could not be construed to show a discriminatory pattern, practice or policy.  The appellants' waived all of the other claims on appeal, and thus the USCA concluded that the district court did not abuse its discretion in denying the injunc-tion.  As a preliminary matter, the USCA noted that many of the structures challenged by the appellants are accessible only to Fremont employees, not to the general public.  As a result, the appellants lack standing to assert ADA violations on the "YESCO Shed," the parking attendant toll booths, the restroom and executive offices, and the "temporary stages."  In addition, the appellants explicitly waived any arguments in relation to those issues.  The remainder of the evidence brought forth by the appellants fails to create a genuine issue of fact regarding Fremont's practices.  The appellants do not argue on appeal that the district court erred in concluding that the Coco-Cola kiosk was built in compliance with the ADA regulation, and in any event, the issue is moot because this kiosk has been dismantled for reasons unrelated to the litigation.  The only remaining allegation is that the sales counters at a retail store in the non-defunct Race Rock restaurant violated ADA Accessibility Guidelines Rule 7.2(a).  Even assuming the Race Rock counter had violated ADA regulations, a lone violation does not establish a pattern or practice on the part of Fremont.  Instead, an injunction could have been issued to remedy the Race Rock counter, but the issue is moot given that the Race Rock has gone out of business for reasons unrelated to this litigation.
      The appellants argued that their concerns are not moot because there have been ongoing ADA problems at Fremont.  The appellants contend that the district court erred by refusing to consider the third affidavit submitted by Ronald Smith, which alleged further violations at Fremont.  The USCA agreed with the district court that the claims in the affidavit raise new issues that were not ad-dressed in the First Amendment Complaint, and thus the district court did not abuse its discretion in refusing to consider the affidavit.  The appellants also point out that Mark Paris, President and CEO of Fremont, stated that the company occasionally allows mobile vendors for special events at Fremont.  Paris's declaration explains that the company's policy and practice is to instruct vendors to make accommodations, such as setting up a table next to the mobile facility to provide equivalent service, if the vendors' counters are not compliant with regulations.  Because the record is devoid of details on any alleged violations with mobile vendors, however, the USCA concluded that there is no genuine issue of fact as to whether Fremont's oversights practices have resulted in violations of the ADA.  In fact, the record reveals that Fremont took seriously its obligations under the ADA and voluntarily remedied many of the conditions complained of, whether they were required to or not.  In sum, the appellants have simply failed to bring forth evidence of a series of ADA violations at Fremont that would create a genuine issue as to whether Fremont's oversight practices could be construed as a violation of the ADA.  The district court thus did not abuse its discretion in refusing to issue an injunction against Fremont.

12)  IMMIGRATION:  Vergara v. INS, 01-71049 (9th Cir. July 24, 2002)(unpublished).   Hug, Farris, and Silverman, Circuit Judges.
       Vergara, a native and citizen of the Philippines, petitioned for review of a BIA decision dismissing his applications for asylum and withholding of deportation. 
         The USCA denied the petition.  Vergara's asylum claim failed because the government marshaled substantial evidence showing that he could live safely in Manila, if not in his hometown of Cavite.  According to a report submitted by the State Department, the size, resources, and significance of the New People's Army (NPA), the militant wing of the Communist Party of the Philippines, have declined dramatically in the 12 years since Vergara left for the United States.  The group retains a meaningful presence in only 2% of the country—primarily on the southern island of Mindanao.  In addition, the record reflects that Vergara has never had direct contract with the NPA, and that, as far as he knows, the NPA has not molested his family during his absence.  Finally, Vergara's own testimony indicates that it is unlikely that the NPA would seek to persecute him should he return to the Philippines.  Vergara's only direct connection to the NPA is as a cumulative, circumstantial witness to a crime committed 12 years ago—a crime already investigated by the Filipino police.  Taken together, these facts make it fair to say that Vergara could avoid persecution by living in Manila.  Because Vergara could live safely in Manila upon his return to the Philippines, he is ineligible for asylum.  It follows that he is also ineligible for withholding of deportation. The BIA thus correctly dismissed Vergara's claims for asylum and withholding of deportation.

13)  IMMIGRATION:  Pua v. INS, 01-71415 (9th Cir. July 24, 2002) (unpublished).  Kozinski and Fernandez, Circuit Judges, and King, District Judge.
        Pua, a native and citizen of the Philippines, petitioned for review of a decision of the BIA dismissing her appeal of the Immigration Judge's denial of her application for suspension of deportation.  This USCA denied the petition for review.  It found that the petition fell under the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).  Immigration proceedings were initiated against Pua in November of 1993, well before IIRIRA's effective date of April 1, 1997.  The BIA's final order of deportation was issued on July 25, 2001, well after October 30, 1996.  Under IIRIRA's transitional rules, "there shall be no appeal of any discretionary decision under section 212(c), 212(h), 212(i), 244, or 245 of the Immigration and Nationality Act [Secs. 1182(c), 1182(h), 1182(i), 1254, or 1255 of this title] (as in effect as of the date of the enactment of this Act [Sept. 30, 1996]."  IIRIRA Sec. 309(c)(4)(E), 8 USCA Sec. 1101 historical and statutory notes (1999).  However, the USCA retains jurisdiction to review whether the BIA applied the correct discretionary waiver standard in the first instance, and has jurisdiction over due process challenges.  As for suspension of deportation, the only issue is "extreme hardship," which is a discretionary decision.  The USCA thus lacked jurisdiction to review this determination.  As for due process, the IJ did not violate due process in limiting Pua's sister's testimony, which would have been relevant only to determining whether deportation would cause extreme hardship to Pua (not to her sister).  As the BIA found, even if the IJ should have allowed Pua's sister to testify, there was no prejudice because the BIA presumed emotional hardship to Pua and accepted that the two were particularly close.  The BIA indicated it nevertheless would not have found extreme hardship.  Although the BIA incorrectly mentioned that Pua's sister was not legally in the United States (the sister having adjusted her status after the hearing), this change was never included in the administration record.  The USCA thus found that it could not properly consider it in reviewing the BIA's decision.  Finally, the IJ did not violate due process by "assuming the role of the trial attorney."  Antonio-Cruz v. INS, 147 F.3d 1129, 1131 (9th Cir. 1998) (holding that the Due Process Clause does not preclude an IJ from engaging in vigorous questioning.)

14)  IMMIGRATION:  Laciste v. INS, 00-71236, (9th Cir. July 3, 2002) (unpublished).  Lay, Thompson and Tallman, Circuit Judges.
        The petitioners, Federico Laciste, age 71, and his wife Emiliana, age 68, are natives and citizens of the Philippines.  They entered the U.S. in August 1987 with authorization to remain temporarily.  They were granted several extension on their stay until September 6, 1993.  They then overstayed, however, and the INS issued Orders to Show Cause (OSCs) informing them that they had over-stayed and of their need to report to deportation proceedings. They were granted an initial continuance to obtain counsel.  At their February 1994 hearing, they indicated that they wished to apply for suspension of deportation, asylum, and withholding of deportation.  The hearing was continued until August 24, 1994.  The petitioners filed applications for suspension of deportation in April 1994 and moved to continue the August 24, 1994, hearing for two weeks.  They argued that they would not meet the seven-year residency requirements to be eligible for suspension of deportation until August 31, 1994.  They also indicated they were waiting for information from the FBI that might support a claim for political asylum.  The INS opposed the motion for a continuance arguing that the immigration court would not be present in Honolulu at the time requested. The INS also asserted that the petitioners failed to make out a prima facie case of eligibility for suspension of deportation because they failed to show extreme hardship.  The Immigration Judge (IJ) denied the motion to continue in May 1994, noting that the petitioners could file a motion to reopen proceedings should new evidence became available to support a claim for suspension of deportation or a claim for asylum and withholding of deportation.  The petitioners filed an asylum petition in June 1994 claiming that due to Federico's work with the FBI, he feared for his safety and the safety of his wife if they were to return to the Philippines.  At the August 1994 deportation hearing, they renewed their motion to continue the proceedings asserting that they had resubmitted Freedom of Information Act requests to the FBI on July 22 and had not yet received a response.  The IJ against denied the motion for a continuance since there was no indication the FBI would respond and because they could file a motion to reopen if previously unavailable material evidence was obtained.  The IJ denied the application for suspension of deportation on the ground that the petitioners had not obtained the requisite seven years of continuous presence in the United States.  He denied their asylum claim because they failed to show a well-founded fear of persecution based on any of the reasons protected by the asylum statute.  The IJ granted the petitioners voluntary departure.  On appeal, the Board of Immigration Appeals (BIA) affirmed and adopted the IJ's decision.  The BIA held that due to the changes in the law petitioners would not be able to claim suspension of deportation even with the continuance because, for the purpose of determining eligibility, the time they were in the U.S. stopped accruing when their OSCs were issued in September 1993. 
        The USCA affirmed.  The decision to deny a continuance lies within the sound discretion of the IJ and is reviewed under an abuse of discretion standard.  As the BIA adopted the IJ's decision, the USCA reviewed that decision in addition to any observations of the BIA.  On appeal, the petitioners challenged the BIA's conclusion as to their eligibility for suspension of deportation.  They argued that when they applied for suspension of deportation that relief was governed by INA Sec. 244(a), 8 USC Sec. 1254(a).  Under that provision, time accruing while the case is on appeal counts toward the seven-year continuous presence requirement.  When Congress enacted the Illegal Immigration and Reform and Immigrant Responsibility Act of 1996, it "introduced into the law a provision that closes, or 'stops,' the period of continuous physical presence upon the issuance of a charging document." In re Nolasco, Int. Dec. 3385, 1999 WL 218466, at *2 (BIA 1999).  The USCA noted that it need not decide whether the stop-time provision applied in the present case.  The general rules of retroactivity are set forth in Bradley v. Sch. Bd., 416 US 696, 711 (1994), which holds that "a court is to apply the law and effect at the time it renders its decision."  The USCA noted that even if it were to assume, however, that the stop-time provision did not apply in this case, it would not make a difference.  The USCA's only duty is to determine whether the IJ's refusal to grant a continuance was an abuse of discretion.  In the present case, the petitioners requested the continuance for the purpose of delay hoping to meet the basic eligibility requirements for suspension of deportation so they could attempt to prove more substantive elements.  They have not shown that they would have qualified for suspension of deportation if they were given the opportunity;  they have asserted no claim of extreme hardship.  Thus, the petitioners have shown no prejudice resulting from the denial of the motion for a continuance and they cannot prevail in this appeal. 
        The other ground on which the petitioners sought a continuance related to Federico's asylum claim.  The petitioners asserted that once the requested material was received from the FBI they could prepare an application for political asylum.  The IJ had no reason to believe the response would be forthcoming within the two-week period that the continuance sought.  In denying the motion for a continuance, the IJ made clear his willingness to seriously entertain a motion to reopen the case if any previously unknown information were to come to light as a result of FOIA requests to the FBI.  The petitioners have never produced any additional evidence probative of their asylum claim or filed a petition to reopen on the basis of newly discovered evidence.  Under the circumstances, it is difficult to see how the petitioners would have benefited if the IJ had granted the two-week extension.  Under the circumstances, the USCA found no evidence of an abuse of discretion.  The denial of the continuance was thus neither arbitrary nor unreasonable.

15)  RICO:  Westenberg v. CNF Transportation, 00-35013 (9th Cir. July 29, 2002) (unpublished).  Browning, Kozinski, and Berzon, Circuit Judges.
        Marsha and Sarah Westenberg, mother and daughter, appealed pro se the judgment of the district court dismissing their action alleging that Marsha's former employer, CNF Transportation, its employees, and its insurer violated the Racketeer Influenced and Corrupt Organization Act, 18 USC Secs. 1961-64, in their handling of Marsha's workers' compensation claim.  The Westenbergs further appealed the district court's orders denying reconsideration pursuant to Fed. R. Civ. P. 60(b)(4).  The USCA affirmed.  The district court correctly concluded that Sarah was not a proper RICO plaintiff because her claims are derivative of her mother's and allege only indirect harm to her business or property interests.  The district court thus properly determined that amendment would be futile and did  not abuse its discretion by dismissing these claims with prejudice.  The RICO allegations in counts 8-11 and 17-23 of the complaint arise out of the litigation resulting from Marsha's workers' compensation and sexual harassment claims.  That the appellees defended these actions by use of the mail, telephone, and judicial process failed to state a claim under RICO.  Moreover, the preclusive effect of the 1993 settlement and subsequent decisions of the Oregon state courts referenced in the instant complaint bars their use as predicate acts under RICO.  The district court properly dismissed these claims with prejudice.  The district court also properly denied the mo-tions for reconsideration because the Westenbergs failed to present adequate grounds for relief under Fed. R. Civ. P. 60(b)(4).  Contrary to the Westenbergs' contention, due process was not implicated by the district court's ministerial reassignment of the case to a dif-ferent district judge.  Nor did the Westenbergs point to any specific judicial bias affecting the judgment in their case.