2)  ENVIRONMENTAL LAW:  In re Hanford Nuclear Reservation Lit., 98-36142 (9th Cir. June 18, 2002).  The district court erred in granting summary judgment and dismissing individual claims for radiation exposure that failed to meet a specific, threshold "doubling dose" during the generic causation phase of discovery;  a "doubling dose" is an exposure that doubles the risk of illness when compared to the risk faced by the general population for similar ages and genders; the USCA thus reversed and remanded to the district court for resolution of generic causation issues before determining individual causation issues.  Schroeder (author), Goodwin, and Hawkins, Circuit Judges.  T. Foulds of Seattle, WA, for the plaintiffs;  W. Squires of Seattle, WA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

3)  ENVIRONMENTAL LAW:  USA v. Shell Oil Company, 00-55027 (9th Cir. June 28, 2002).  In a CERCLA action over who must pay for cleaning up the McColl Superfund Site, which was contaminated with hazardous waste associated with the production of aviation fuel during World War II, the USCA affirmed the district court's holding that 42 USC Sec. 9620(a)(1) waives the United States' sovereign immunity; it reversed the district court's holding that the U.S. is liable for non-benzol waste cleanup costs as an "ar-ranger" under Sec. 9607(a)(3);  it held that because the U.S. is not liable as an arranger, questions of allocation of liability for the non-benzol waste between the U.S. and the defendant oil companies under Sec. 9613(f)(1) were moot; it affirmed the district court's holding that 100% of the cleanup costs for the benzol waste should be allocated to the U.S.; and it affirmed the district court's holding that the defendants are not exempt from liability under the "act of war" provision of Sec. 9607(b)(2). S. Trott, Thomas, and W. Fletcher (author), Circuit Judges.  T. Kim of Washington, DC, for the USA; T. Patterson of San Diego, CA, for California; R. Olson of Los Angeles, CA, for Shell Oil Co.(Download the full text of this decision at www.cc9.uscourts.gov/)

4)  ENVIRONMENTAL LAW:  Pronsolino v. Nastri, 00-16026 (9th Cir. May 31, 2002;  corrected reprint June 11, 2002).  Under Sec. 303(d) of the Clean Water Act, the phrase "are not stringent enough," qualifying "effluent limitations," triggers the identification requirements both for waters as to which effluent limitations apply but do not suffice to attain water quality standards, and for waters as to which effluent limitations do not apply to the pollution sources impairing the water.  Hall, Wardlaw, and Berzon (author), Circuit Judges.  R. Eggert of Chicago, IL, for the plaintiffs-appellants;  S. Donahue of Washington, DC, for the defendants-appellees;  J. Klise of Washington, DC, for the plaintiffs-intervenors-appellants; J. Brecher of Oakland, CA, for the defendants-intervenors-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

5)  INTELLECTUAL PROPERTY:  Cairns v. Franklin Mint Co., 00-56217 (9th Cir. June 19, 2002).  Under the circumstances of this case, where the market was flooded with unendorsed Princess Diana-related products, customers had no reason to believe that Franklin Mint's Diana-related products were endorsed by the Princess;  in addition, Franklin Mint was entitled to a "fair use" defense for its references to the Princess in describing its Diana-related products;  the district court thus did not err in granting summary judgment in favor of Franklin Mint on this "false endorsement" action.  Pregerson (author), Rymer, and T.G. Nelson, Circuit Judges.  B. Solomon of New York, NY, for the plaintiffs;  R. Meyer of Los Angeles, CA, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

6)  INTELLECTUAL PROPERTY:  Metcalf v. Bochco, 01-55811 (9th Cir. June 12, 2002).  The particular sequence in which an author strings a significant number of unprotectable elements can itself be a protectable element for purposes of satisfying the "extrinsic test" for substantial similarity under the Copyright Act.  Kozinski (author) and Gould, Circuit Judges, and Breyer, District Judge.  R. Helfing of Los Angeles, CA, for the plaintiffs-appellants;  E. Ruttenberg of Los Angeles, CA, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

 7)  INTELLECTUAL PROPERTY:  Jarrow Formulas v.  Nutrition Now, Inc., 01-55154 (9th Cir. June 4, 2002).  If a Lanham Act "false advertising" claim is filed within the analogous state limitations period, the presumption is that laches is inapplicable; if the claim is filed after the analogous limitations period has expired, the presumption is that laches bars the claim.  Archer, O'Scannlain (author), and Silverman, Circuit Judges.  N. Wiener of Beverly Hills, CA, for the plaintiff;  J. Lawrence of Los Angeles, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

8)  AUTHOR AGREEMENTS:  Chodos v. West Publishing Co., 00-55954 (9th Cir. June 7, 2002).  In determining whether a manuscript is satisfactory in form and content under the acceptance clause of a standard author agreement, the publisher may not in good faith consider solely the likelihood of a book's commercial success;  here, as a matter of law, the publisher breached the agreement in deciding not to publish the book solely for commercial reasons, while conceding that it was of high quality. Browning, Reinhardt (author), and Tallman, Circuit Judges. H. Chodos of Los Angeles, CA, for the plaintiff;  R. Kay of San Diego, CA, for the defen-dant.(Download the full text of this decision at www.cc9.uscourts.gov/)

9)  FRANCHISE LAW:  Abrahim & Sons Enterprises v. Equilon Enterprises, 00-56653 (9th Cir. The memorandum decision filed April 4, 2002 was redesignated a published opinion on June 7, 2002).  Under California law, when two corporations relinquished their title, possession and control of properties covered by a franchise agreement, to a separate limited liability company, the transaction falls under Sec. 20999.25(a) of the California Business and Professions Code, which triggers a duty to offer the properties to the franchisees first.  Pregerson, Rymer, and T.G. Nelson (author), Circuit Judges.  G. Gilbert of Brea, CA, for the plaintiffs;  J. Severance of San Francisco, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

10)  MERGERS / SECURITIES LAW:  In re Broderbund / Learning Company Securities Litigation, 01-56045 (9th Cir. June 28, 2002)  When securities are disposed of as a result of a merger and that merger takes place in a sphere where security exchange market forces are operating, the disposition of shares occurs "in the market" under Sec. 11(e)(2) of the Securities Act even if their actual transfer does not pass through the mechanism of a formal securities exchange. Fernandez (author), Wardlaw, and W. Fletcher, Circuit Judges.  S. Cera of San Francisco, CA, for the plaintiffs;  J. Spiegel of Los Angeles, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

11)  DISCOVERY:  Advanced Micro Devices v. Intel, 02-15070 (9th Cir. June 6, 2002).  In a question of first impression with respect to the European Community, the USCA held that a proceeding before the Directorate General-Competition of the European Commission in the preliminary investigative stage, alleging that the respondent's actions violate Article 82 of the Treaty establishing the European Commission, qualifies as a proceeding before a "foreign or international tribunal" for purposes of 28 USC Sec. 1782, which permits domestic discovery for use in a foreign proceeding.  Hawkins (author) and Silverman, Circuit Judges, and Restani, U.S. Court of Intl. Trade Judge.  P. Lynch of Los Angeles, CA, for the petitioner; R. Cooper of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

12)  INSURANCE:  Mogck v. UNUM Life Insurance Company of America, 00-56797 (9th Cir. June 10, 2002).  If an insurer drafts the policy terms and procedures relating to the insured's right to commence a legal action, the insurer must utilize those same terms and procedures in order for the policy provisions to be triggered;  here, the insurer, in its correspondence to the insured, did not utilize language from its own policy which would inform the insured that the contractual time limitation for legal proceedings would begin to run.  Leavy (author), T.G. Nelson, and W. Fletcher, Circuit Judges.  T. Monson of San Diego, CA, for the plaintiff-appellant;  E. Oster of Irvine, CA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

13)  TORTS:  Solano v. Playgirl, Inc., 01-55443 (9th Cir. June 13, 2002).  An actor asserting a "false light" claim may establish a genuine issue of fact regarding whether a magazine that typically features sexually suggestive nude pictures of men falsely implied that he had voluntarily posed for and appeared nude in the magazine, when his barechested photograph was featured on the magazine's cover, the cover features various headlines suggesting that the magazine contains photos of nude actors, editors were aware of staff concerns that the cover might falsely imply that the actor appeared nude in the magazine, evidence showed that the editor wanted to "sex up" the magazine, and it is displayed for sale in a plastic wrapper, making the cover the key to what a reader could expect to find inside the magazine.  Pregerson, Fisher (author), and Tallman, Circuit Judges.  J. Anschell of Los Angeles, CA, for the plaintiff;  K. Raygor of Los Angeles, CA, for the defendant.(Download the full text of this decision at www.cc9.uscourts.gov/)

14)  TORTS:  Vasquez v. North County Transit Dist., 01-55326 (9th Cir. June 11, 2002).  As the "independent cause" exception to the "firefighter's rule" may apply in California, the plaintiff and intervenor were not precluded from seeking to recover damages for personal injury and funds the intervenor had to pay as a result of the officer's disability retirement.  Reinhardt and Graber (author), Circuit Judges, and Hunt, District Court.  D. Zeidman of El Cajon, CA, for the plaintiffs;  T. Richmond of Solana Beach, CA, for the defendant;  R. Mulcahy of San Diego, CA, for the intervenor. (Download the full text of this decision at www.cc9.uscourts.gov/)

15)  PRODUCT DISPARAGEMENT:  Suzuki Motor Corp. v. Consumers Union of United States, Inc., 00-56043 (9th Cir. June 25, 2002).  Evidence of financial motive plus test-rigging was sufficient to preclude summary judgment in a product disparagement action challenging the validity of Consumer Report's "Not Acceptable" rating of the Suzuki Samurai;  dissenting, Judge Ferguson thought that the majority undermined the First Amendment protections afforded media defendants by failing to adopt the "independent examination" rule of New York Times v. Sullivan, 376 US 254 (1964), in the summary judgment context and by erring in its application of the "actual malice" standard.  Ferguson (dissenting), Tashima (author), and Graber, Circuit Judges. R. Fiske of New York, NY, for the plaintiff;  M. Pollet of Yonkers, NY, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

16)  ERISA:  Bergt v. Retirement Plan for MarkAir Pilots, 99-36106 (9th Cir. June 19, 2002).  In determining whether an employee is eligible for retirement benefits, where the plan master document (PMD) is more favorable to the employee than the summary plan document (SPD) and the PMD unambiguously allows for eligibility for the employee, the PMD controls, despite contrary unambiguous provisions in the SPD.  Silverman and Alarcon, Circuit Judges, and Brewster (author), District Judge.  R. Goss of Seattle, WA, for the appellant;  R. Phillips of Washington, DC, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  EMPLOYMENT DISCRIMINATION:  Aragon v. Republic Silver State Disposal, 01-15951 (9th Cir. June 5, 2002).  In a disparate treatment case. while the district court erred in granting summary judgment to the employer based on the employee's failure to establish a prima facie case of racial discrimination, the USCA nevertheless affirmed because the employee could not demonstrate that the employer's legitimate, nondiscriminatory reasons for terminating him were a pretext for illegal discrimination.  O'Scannlain (author) and Tallman, Circuit Judges, and King, District Judge.  R. Segerblom of Las Vegas, NV, for the plaintiff-appellant;  P. Hicks of Las Vegas, NV, for the defendant-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

18)  EMPLOYMENT DISCRIMINATION:  Hernandez v. Hughes Missile Systems, 01-15512 (9th Cir. June 11, 2002).  A company's unwritten policy that it will not rehire people who leave the company's employment due to violations of personal conduct rules violated the Americans with Disabilities Act as applied to a, now rehabilitated, former employee with the disability of drug addition who had been permitted to resign in lieu of termination for illegal drug used in the workplace.  Reinhardt (author), Magill, and Fisher, Circuit Judges.  R. Martinez of Tucson, AZ, for the plaintiff; R. Stolkin of Tucson, AZ, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

19)  LABOR LAW:  Chao v. Bremerton Metal Trades, 00-35729 (9th Cir. June 25, 2002).  The Secretary of Labor may challenge a labor organization's election on behalf of a federal employee, if that the organization qualifies as a "labor organization" under the Labor-Management Reporting and Disclosure Act (LMRDA);  the "joint council" of the Bremerton Metal Trades Council herein at issue is such a labor organization by virtue of its subordination to Metal Trades Department, a labor organization engaged in an industry affecting commerce;  LMRDA's requirements for fair election procedures are not superseded by the Civil Service Reform Act. Thomas, Graber, and Gould (author), Circuit Judges.  S. Marcus of Washington, DC, for the plaintiff-appellant;  R. Robblee of Seattle, WA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

20)  LABOR ARBITRATION:  Circuit City Stores, Inc. v. Najd, 99-56571 (9th Cir. June 24, 2002).  A California's Fair Employment and Housing Act (FEHA) claim is subject to compulsory arbitration where the employee does not also allege a violation of Title VII of the Civil Rights Act;  concurring Judge Paez thought that the assault on the validity of Duffield v. Robertson Stephens & Company, 144 F.3d 1182 (9th Cir. 1998), was unnecessary in light of the dissimilarity between the issues raised in Duffield and those raised here  O'Scannlain (author) and Paez (concurring), Circuit Judges, and King, District Court.  S. Stern of Newport Beach, CA, for the respondent;  R. Berry of Seattle, WA, for the petitioner. (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  ADMIRALTY:  Kukje Hwajae Ins. Co. v. M/V Hyundai Liberty, 00-56970 (9th Cir. June 26, 2002).  The owner of cargo, who contracts with an intermediary non-vessel operating common carrier (NVOCC) to arrange for the ship carriage of cargo, was bound by the forum-selection clause in the bill of lading issued by the ship's owner to the NVOCC;  the NVOCC could take advantage of a statutory limitation of liability by having given the cargo's owner a "fair opportunity" to opt for higher limits by paying a greater charge.  Beezer, Tashima, Graber (author), Circuit Judges.  M. Lodwick of Santa Ana, CA, for the plaintiff-appellant;  C. Owen of Long Beach, CA, for the defendant-appellee;  S. Langer of Beverly Hills, CA, for the third-party plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

22)  AMERICANS WITH DISABILITIES ACT:  Pickern v. Holiday Quality Foods, 00-17203 (9th Cir. June 19, 2002).  A plaintiff who is disabled within the meaning of the ADA, and who has actual knowledge of illegal barriers at a public accommodation to which he desires access, need not engage in the "futile gesture" of attempting to gain access in order to show actual injury during the limitations period.  Thompson, W. Fletcher (author), and Berzon, Circuit Judges.  M. Potter of San Diego, CA, for the appellant;  R. Ceniceros of Sacramento, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

23)  AMERICANS WITH DISABILITIES ACT:  Barden v. City of Sacramento, 01-15744 (9th Cir. June 12, 2002).  Public sidewalks in the City of Sacramento are a service, program, or activity of the City within the meaning of Title II of the ADA or Sec. 504 of the Rehabilitation Act, and subject to "program accessibility" regulations promulgated in furtherance of these statutes.  Hug, Cudahy, and Tashima (author), Circuit Judges.  L. Paradis of Oakland, CA, for the plaintiffs;  G. Hicks of Sacramento, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

24)  ADMINISTRATIVE LAW:  Hawaii v. FEMA, 00-15895 (9th Cir. June 26, 2002).  A disaster aid recipient of Federal Emergency Management Agency (FEMA) assistance must repay FEMA for funds in excess of those it receives from a reasonable settlement with an alternative source;  as Hawaii acted in a commercially reasonable way in determining the amount of insurance proceeds to accept, under 42 USC Sec. 5155(c) it owes FEMA only the amount of insurance proceeds it actually received to make disputed repairs in response to Hurricane Iniki.  Thompson, O'Scannlain, and Berzon (author), Circuit Judges.  D. Sellers of Honolulu, HI, for the plain-tiff;  C. Wolverton of Washington, DC, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

25)  REAL ESTATE:  Schuetz v. Banc One Mortgage Corp., 01-16206 (9th Cir. June 10, 2002).  The two-prong test of HUD's Statement of Policy (2001) provides the appropriate standard of liability for "yield spread premiums" (fees paid by mortgage lenders to mortgage brokers based on the difference between the interest rate at which the broker originates the loan and the par, or market rate offered by the lender) under the Real Estate Settlement Procedures Act (RESPA);  dissenting, Judge Kleinfeld thought that because the yield spread premium had no relationship to the services performed by the mortgage broker, it was a kickback and not within RESPA's explicit exceptions.  Rymer (author), Kleinfeld (dissenting), and McKeown, Circuit Judges.  B. Reed of Scottsdale, AZ, for the plain-tiff;  A. Maclin of St Paul, MN, for the defendant.(Download the full text of this decision at www.cc9.uscourts.gov/)

26)  ISSUE PRECLUSION:  Jacobs v. CBS Broadcasting, 01-55478 (9th Cir. June 3, 2002).  A Writers Guild of America participating-writer determination made after an investigation into the writer's claims in a nonjudicial proceeded were too informal to provide the requisite procedural safeguards to give it issue-preclusive effect.  Reinhardt and  Graber (author), Circuit Judges, and Hunt, District Judge.  B. Rishwain of Los Angeles, CA, for the plaintiffs-appellants;  G. Hedges of Los Angeles, CA, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

27)  ABSTENTION:  Canatella v. California, 00-16782 (9th Cir. June 12, 2002).  In an action filed by an attorney against his state bar association under 42 USC Sec. 1983 to enjoin the bar from taking disciplinary action against him, the USCA held that the mere self-reporting of a sanction to the bar did not give rise to an ongoing judicial proceeding;  the district court's abstention on the basis of Younger was thus error.  Hug, D.W. Nelson, and Hawkins (author), Circuit Judges.  R. Canatella pro se;  D. Goldman of San Francisco, CA, for the defendants.(Download the full text of this decision at www.cc9.uscourts.gov/)

28)  JURISDICTION:  Wayne v. DHL Worldwide Express, 01-55151 (9th Cir. June 27, 2002).  The Airline Deregulation Act does not provide a basis for federal jurisdiction under the "complete preemption" doctrine, an exception to the well-pleaded complaint rule.  Pregerson, Leavy (author), and Trott, Circuit Judges.  S. Berman of Seattle, WA, for the plaintiff;  E. Woodsome of Los Angeles, CA, for the defendant.(Download the full text of this decision at www.cc9.uscourts.gov/)

29)  CONTEMPT:  Little v. Kern County Superior Court, 01-16238 (9th Cir. June 17, 2002).  Where eight months passed between alleged contemptuous conduct by an attorney and a surprise summary contempt proceeding relating to that conduct, the court's failure to provide notice of the specific contempt charge and the time of the hearing during the intervening period, and failure to provide the attorney a reasonable opportunity to be heard, violated the attorney's due process rights; concurring Judge Fernandez thought that be-cause the majority opinion demonstrated that the petitioner was not given proper notice of the contempt proceeding, there was no need to declare that the trial judge was a biased judicial officer. Reinhardt (author), Noonan, and Fernandez (concurring), Circuit Judges.  B. Barmann of Bakersfield, CA, for the respondent-appellant;  S. Williams of Berkeley, CA, for the petitioner-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

30)  SANCTIONS: Truesdell v. So. Calif. Permanente, 01-56228 (9th Cir. June 20, 2002).  A district court's dismissal of a com-plaint 20 days into the 21-day "safe harbor" period within which a sanctions motion may be filed under Fed. R. Civil Proc. 11, does not cut off the safe-harbor period where the dismissal is with leave to amend, the Rule 11 motion is served at the same time as the motion to dismiss and is filed in compliance with the safe harbor period;  as it was not clear from the record whether the district court imposed sanctions for a particular filing or for general conduct, the USCA remanded for reconsideration under Christian v. Mattel, 286 F.3d 1118 (9th Cir. 2002).  Kleinfeld and Graber (author), Circuit Judges, and Bolton, District Judge.  J. Zamos of Woodland Hills, CA, for the plaintiff;  T. Kaufman of Los Angeles, CA, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

31)  IMMUNITY:  Miller v. Gammie, 01-15491 (9th Cir. June 6, 2002).  When a child is made a ward of the state and a social worker then supervises that child's placements and continually informs the state court of those placements, which the court approves, a claim against the social worker for misconduct in connection with the ward's placement in a particular home is barred by absolute im-munity.  O'Scannlain (author) and Tallman, Circuit Judges, and King, District Judge.  S. Quinn of Carson City, NV, for the defendants;  M. Laxalt of Reno, NV, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

32)  ATTORNEYS' FEES:  USA v. Campbell, 01-50167 (9th Cir. June 3, 2002).  While the Hyde Amendment does not expressly define "prevailing party," the Supreme Court has concluded that only enforceable judgments on the merits and consent decrees create the "material alternation of the legal relationship of the parties" necessary to permit an award of attorneys' fees.  Fernandez and Rawlinson (author), Circuit Judges, and Reed, District Judge.  B. Campbell in pro per;  AUSA M. Aveis of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

33)  EDUCATION LAW:  Okanogan School District #105 v. Superintendent of Public Instruction for the State of Washington, 00-36096 (9th Cir. June 3, 2002).  Under 16 USC Sec. 500 (West 2000), the State of Washington may apportion some of the federal funds it receives for national forest within its borders directly to school districts in forest land counties.  Rymer (author), McKeown, and Gould, Circuit Judges.  J. Fisher of Seatle, WA, for the plaintiffs;  AAG D. Stolier of Olympia, WA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

34)  CIVIL RIGHTS:  Cortez v. County of Los Angeles, 00-56781 (9th Cir. June 27, 2002).  Under California law, where a sheriff acts on behalf of his county in establishing and implementing security procedures for the county jail, the county is subject to liability under 42 USC Sec. 1983 for a sheriff's actions taken pursuant to his role as administrator of that jail.  Ferguson (author), T.G. Nelson, and W. Fletcher, Circuit Judges.  D. Wilson of Los Angeles, CA, for the defendant;  B. Zelner of Beverly Hills, CA, for the plaintiffs. (Download the full text of this decision at www.cc9.uscourts.gov/)

35)  CIVIL RIGHTS:  Brunetti v. Humane Society, 00-56730 (9th Cir. June 28, 2002).  Plaintiff failed to allege sufficient facts to demonstrate that the media was a state actor in violating her Fourth Amendment rights where during the search in question the media performed no government function and engaged in no joint action with the Humane Society, which was executing the search warrant;  the media was simply a private spectator, photographing and videotaping the search independently and for its own purposes. Trott (author), Thomas, and Wardlaw, Circuit Judges.  H. Rossbacher of Los Angeles, CA, for the plaintiff;  K. Sager of Los Angeles, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

36)  CIVIL RIGHTS:  Paulson v. San Diego, 00-55406 (9th Cir. June 26, 2002).  When a city establishes as a condition of sale that a piece of property containing a 43-foot tall cross be maintained as a war memorial and provides that preserving the cross would satisfy that condition, it gives a direct, immediate, and substantial economic incentive to those bidders supporting preservation of the cross, thereby advancing a sectarian message in violation of Art. XVI, Sec. 5, of the California Constitution;  Judge Fernandez, joined by Judges Rymer, T.G. Nelson, and Rawlinson, dissented:  he thought that because land was sold to the highest bidder through a well-publicized, neutral bidding process, which did not require the successful bidder to maintain the cross on the property, the transaction did not violate the California constitution.  Schroeder, Pregerson, Kozinski, Fernandez (dissenting), Rymer, T.G. Nelson, Hawkins, Graber (author), W. Fletcher, Berzon, and Rawlinson, Circuit Judges.  J. Budd of San Diego, CA, for the plaintiff;  C. Gwinn of San Diego, CA, for the defendants.(Download the full text of this decision at www.cc9.uscourts.gov/)

37)  QUALIFIED IMMUNITY:  Billington v. Smith, 00-36062 (9th Cir. June 21, 2002).  A police officer was entitled to qualified immunity for shooting a motorist where he had witnessed the motorist's reckless driving, engaged in a hot pursuit which ended with the motorist's crash, and then had to engage in hand-to-hand combat with the motorist in which the officer was fighting for his life—all within a period of 150 sections;  this short period of time was insufficient for the officer to consider and evaluate the prudence of alter-native tactics.  Kleinfeld (author) and Gould, Circuit Judges, and Roll, District Judge.  K. Naylor and M. Hendrickson of Boise, ID, for the appellants;  J. Lynn of Boise, ID, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

38)  NATIVE AMERICAN LAW:  American Vantage Companies v.  Table Mountain Rancheria, 00-17355 (9th Cir. June 14, 2002).  An unincorporated Indian tribe is not a "citizen" of a state within the meaning of the federal diversity statute, 28 USC Sec. 1332(a)(1), and thus cannot sue or be sued in diversity.  Reinhardt, Magill, and Fisher (author), Circuit Judges.  G. Cavallo of San Francisco, CA, for the plaintiff;  P. Yost of San Francisco, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

39)  IMMIGRATION LAW:  Cardenas v. INS, 01-70557 (9th Cir. June 12, 2002).  An applicant for asylum and withholding of de-portation shows a well-founded fear of future persecution where, following a six-month relocation to a different city within his home county, Peru, during which time he received no threats, he receives a threat from a violent revolutionary group stating that he would not be safe anywhere in Peru;  dissenting, Judge Graber thought the record did not compel a reversal of the BIA's ruling that the alien failed meet his burden of showing that it would be unreasonable for him to relocate within Peru.  Reinhardt (author) and Graber (dissenting), Circuit Judges, and Hunt, District Judge.  C. Pierce of Los Angeles, CA, for the petitioners; R. McCallum of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

40)  IMMIGRATION LAW:  Singh v. INS, 01-70177 (9th Cir. June 10, 2002).  Reliance on inconsistencies between the airport statement of an applicant for asylum and withholding of deportation, and his testimony before an IJ, did not constitute a valid ground for the IJ's adverse credibility determination where the airport interview was conducted through an unofficial translator who did not even speak the alien's language, the resulting statement provided no information as to how the interview was conducted or the statement prepared; and the interview contained no questions designed to elicit the details of an asylum claim.  Rymer, Kleinfeld, and McKeown (author), Circuit Judges. M. Gahar of San Francisco, CA, for the petitioner; G. Wolfinger of Washington, DC, for the re-spondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

41)  IMMIGRATION LAW:  Abreu-Reyes v. INS, 99-70542 (9th Cir. June 10, 2002).  An IJ properly relied on a pre-sentence report in ascertaining whether a victim's loss was greater than $10,000 as part of the IJ's efforts to determine whether the alien perpetrator of the loss is removable after having been convicted of an aggravated felony;  dissenting, Judge Paez thought that because there was no evidence that the INS sought release of the report from the district court for which it was prepared, as it was required to do under USA v. Schlette, 842 F.2d 1574 (9th Cir.), amended, 854 F.2d 359 (9th Cir. 1988), it was fundamentally unfair for the IJ to admit the report into evidence and to rely on it to order the alien's removal.  O'Scannlain and Paez (dissenting), Circuit Judges, and King (author) District Judge.  J. Moorman of Los Angeles, CA, for the petitioner;  M. Guyton of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

42)  IMMIGRATION LAW:  Pazcoguin v. INS, 00-70595 (9th Cir. June 25, 2002).  The BIA ordered the petitioner deported, finding him excludable for admitted acts constituting the "essential elements" of a controlled substance violation under INA Sec. 212(a)(2)(A)(i)(II); the petitioner admitted using marijuana while living in the Philippines; that constituted a controlled substance offense under Philippine law and rendered him inadmissible at the time his visa was issued;  the USCA agreed, finding that the "unless authorized by law" clause of the Philippine law was not an element of the offense, but rather a defense;  dissenting, Judge Berzon thought that because the petitioner did not admit to using marijuana without authorization of law, and, thus, may not have committed any crime, he should not have been excluded on that ground.  Thompson (author), O'Scannlain, and Berzon (dissenting), Circuit Judges.  J. Stanton of Honolulu, HI, for the petitioner; J. Bernstein of Washington, DC, for the respondents.(Download the full text of this decision at www.cc9.uscourts.gov/)

43)  IMMIGRATION LAW:  Hernandez-Mezquita v. Ashcroft, 01-70112 (9th Cir. June 20, 2002).  The April 1, 1990, asylum-filing requirement of Category (II) of Sec. 203(b) of the Nicaraguan Adjustment and Central American Relief Act has a rational basis and did not violate an applicant's right to equal protection and due process.  Wardlaw and W. Fletcher (author), Circuit Judges, and Whyte, District Judge.  J. Jasso of Los Angeles, CA, for the petitioner;  A. Nicastro of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

44)  IMMIGRATION LAW:  USA v. Salgado, 00-50346 (9th Cir. June 21, 2002).  Applying USA v. Solano-Godines, 120 F.3d 957 (9th Cir. 1997), the USCA held that an INS civil investigative agent's interview of an alien, incarcerated on state criminal charges unrelated to his immigration status, which aimed at eliciting information about the alien's birth and citizenship to determine whether he is subject to an administrate action for deportation, was not a custodial interrogation where the agent could not reasonably have anticipate incriminating statements from the alien;  dissenting, Judge Pregerson thought that under all the circumstances, as the agent's questioning was reasonably likely to elicit an incriminating response from the alien;  the questioning thus constituted interrogation and the alien should have been given Miranda warnings.  Pregerson (dissenting), Rymer, (author), and T.G. Nelson, Circuit Judges.  FPD M. Stratton of Los Angeles, CA, for the defendant;  AUSA T. Spertus of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

45)  IMMIGRATION LAW:  Alcarez-Garcia v. Ashcroft, 00-70635 (9th Cir. June 20, 2002).  Under Sec. 201 of the Nationality Act of 1940, a person established residence in the United States for a nine year a period of time by showing that during those nine years he was physically present and working in the United States for 9 months out of the year for 8 years out of that 9-year period;  dis-senting, Judge Kozinski thought the petitioner failed to satisfy his burden of presenting sufficient evidence that near the beginning of the 9 years in question, 1943 to 1952, the petitioner's father had moved his principal dwelling place from Mexico to the United States.  Hall (author), Kozinski (dissenting), and W. Fletcher, Circuit Judges.  M. Millen of Los Angeles, CA, for the petitioner;  R. Byrd of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

46)  IMMIGRATION LAW:  USA v. Orellana-Blanco, 01-10045 (9th Cir. June 26, 2002).  The "public records" exception to the hearsay rule did not apply to an exhibit in this case purporting to be a "Record of Sworn Statement" signed by the defendant after submitting to an INS interview in connection with a Petition for Alien Relative which was adversarial in nature and could be used for law-enforcement purposes.  Brunetti, Kleinfeld (author), and Thomas, Circuit Judges.  AFPD J. Sands of Phoenix, AZ, for the appellant;  AUSA J. Ruffennach of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

47)  PLEAS / IMMIGRATION LAW:  USA v. Reyna-Tapia, 01-10415 (9th Cir. June 28, 2002).  With the defendant's consent a district court may delegate its duty to conduct a Rule 11 plea colloquy in a felony case to a magistrate, provided the district judge re-views the record de novo;  upon deportation an alien's status as a lawful permanent resident ends.  Schroeder, B. Fletcher (author), and Kozinski, Circuit Judges.  A. Baggot of Apache Junction, AZ, for the defendant;  L. Boone of Phoenix, AZ, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

48)  ARRESTS:  USA v. Kim, 01-30166 (9th Cir. June 6, 2002).  Under the totality of the circumstances, the actions of police officers in surrounding the defendant, a limited-English speaking store owner, after she entered her store, locking her husband out of their store, restricting her communication with her son, ordering her to speak English or shut up, and dictating when and where she could sit, combined with questioning her for at least 30 minutes before an interpreter arrived and another 20 minutes once the interpreter joined the interrogation, supported the conclusion that she was "in custody" for Fifth Amendment purposes and thus entitled to Miranda warnings;  dissenting, Judge O'Scannlain thought that under the five factors of USA v. Hayden, 260 F.3d 1062 (9th Cir. 2001), there was not a restraint on the defendant's freedom of movement of the degree associated with a formal arrest.  B. Fletcher, O'Scannlain (dissenting), and Berzon (author), Circuit Judges.  J. Laing of Portland, OR, for the plaintiff;  K. Perry of Portland, OR, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

49)  ATTORNEY MISCONDUCT:  USA v. Elder, 00-10143 (9th Cir. June 7, 2002).  The handcuffing and removal of defense counsel in the presence of the jury following her argument with the district judge over an objection did not deprive the defendant of due process, where the district court did not order the handcuffing, counsel was repeatedly warned about yelling at the court and making sarcastic remarks, counsel returned to the courtroom and the court effectively "cleared the air" by acknowledging that her objection was factually correct and then allowing her to address the point at length, and the court instructed the jury that they were not to consider the removal incident in their deliberations;  dissenting, Judge Ferguson thought that the enormity of what was done to defense counsel before the jury was so great and the prejudicial impact it caused so clear that the defendant was constitutionally entitled to a reversal of his conviction and a new trial.  Pregerson, Ferguson (dissenting), and Hawkins (author), Circuit Judges.  R. Vallandigham of San Francisco, CA, for the appellant;  AUSA P. Robbins of San Francisco, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

50)  PLEAS:  USA v. Minore, 99-30381 (9th Cir. June 17, 2002).  Before accepting a guilty plea, the district court must advise the defendant that the government must prove beyond a reasonable doubt any quantity of drugs that exposes the defendant to a higher statutory maximum sentence.  B. Fletcher (author) and Fisher, Circuit Judges, and Schwarzer, District Judge.  L Covell, S. Schumacher, and J. Shaw of Seattle, WA, for the defendants-appellants;  AUSA A. Hayes of Seattle, WA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

51)  PLEA BARGAINS:  In re Ellis, 01-70724 (9th Cir. June 21, 2002)  When a defendant pleads guilty to a lesser charge pursuant to a plea bargain that includes dismissal of the charge in the indictment, but the court rejects that agreement, vacating the plea to the lesser offense is appropriate.  Farris, Kleinfeld (author), and Gould, Circuit Judges.  APD M. Schwartz of Tacoma, WA, for the peti-tioner;  AUSA R. Westinghouse of Seattle, WA, for the USA;  District Judge J. Tanner for the U.S. District Court. (Download the full text of this decision at www.cc9.uscourts.gov/)

52)  BANK ROBBERY:  USA v. Blajos, 01-50199 (9th Cir. June 12, 2002).  In a prosecution for armed bank robbery under 18 USC Sec. 2113, the government is required to prove only that the institution from which the money was taken (and not the money taken) was insured by the Federal Deposit Insurance Corporation.  Reinhardt, Graber (author), and Hunt, Circuit Judges.  P. Bronson of Encino, CA, for the defendant;  AUSA M. Young of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

53)  CRIMINAL LAW:  USA v. Bert, 01-10175 (9th Cir. June 4, 2002).  A conviction under 21 USC Sec. 841(b)(1)(A)(iii) for possession of cocaine base with the intent to distribute, requires that the substance involved contains a "detectable amount" of cocaine base, a qualifier that must be read into the statute.  Brunetti, Leavy, and T.G. Nelson (author), Circuit Judges.  J. Balazs of Sacramento, 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/)

54)  JURISDICTION:  USA v. Errol D., 00-30337 (9th Cir. June 21, 2002).  The statute under which the defendant juvenile in this case was charged with burglary of Bureau of Indian Affairs facilities—the Indian Major Crimes Act (MCA), 18 USC Sec. 1153(a)—does not give the federal government jurisdiction to prosecute him or adjudge him delinquent;  dissenting, Judge Brunetti disagreed with the majority's reading of the word "person" under Sec. 1153;  contrary to the majority, he thought that for the 14 crimes enumerated under the MCA, Congress intended that they be charged under the MCA rather than the General Crimes Act, 18 USC Sec. 1152, regardless of the identity of the victim;  by excluding a government agency from the list of possible victims of burglary, the majority creates a loophole in the statutes governing federal criminal jurisdiction over Indians in Indian country.  B. Fletcher (author), Brunetti (dissenting), and Fisher, Circuit Judges.  A. Gallagher of Helena, MT, for the defendant;  S. Matteucci of Billings, MT, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

55)  WITNESSES:  USA v. Hanna, 00-10238 (9th Cir. June 20, 2002).  A district court abused its discretion in allowing expert law enforcement testimony on whether a "reasonable person" in the defendant's position would have foreseen that his communications to neighbors, businesses, and state and local government offices would be seen as serious expressions of intent to harm the President.  Schroeder, Lay, and Boochever, (author), Circuit Judges. G. Cartledge of Reno, NV, for the defendant;  AUSA L. White of Reno, NV, for the plaintiff.(Download the full text of this decision at www.cc9.uscourts.gov/)

56)  JURY INSTRUCTIONS:  USA v. Stapleton, 00-50647 (9th Cir. June 18, 2002).  In a prosecution for mail and wire fraud, a district court did not err in providing an instruction to a jury on co-schemer liability that requires the jury to find the defendant was a "member of a scheme to defraud" (instead of the phrase "knowing participant") who personally had the intent to defraud; defines "intent to defraud" to require a finding that the defendant intended to deceive or cheat; defines "scheme to defraud" to require a finding that there was a deliberate plan of action designed to deceive or cheat another person; requires the jury to find that the co-schemer's actions were in furtherance of the unlawful scheme; and requires the jury to find that the defendant personally made up or participated in the scheme.  Kleinfeld and Graber (author), Circuit Judges, and Collins, District Judge.  W. Morrissey of Santa Ana, CA, for the defendant-appellant;  AUSA E. Lindsay of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

57)  SENTENCING:  USA v. Williams, 00-30409 (9th Cir. June 5, 2002).  Convictions for coercing a person to travel in interstate commerce to engage in prostitution under 18 USC Sec. 2422(a) and for transporting a minor in interstate commerce with the intent that the minor engage in prostitution under Sec. 2423(a) did not constitute double jeopardy;  a defendant must receive specific notice of the court's intent to depart upward through the mechanism of consecutive sentences;  Judge Graber concurred in the result:  as the defendant had notice of only one substantive ground for departure ("extreme conduct"), and the district court departed on an additional, un-specified, substantive ground (Sec. 4A1.3, extensive criminal history), the case had to be remanded for resentencing.  Thomas, Graber (concurring), and Gould, Circuit Judges. Per Curiam.  D. Buckley of Bozeman, MT, for the defendant;  M. Rotker of Washington, DC, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

58)  SENTENCING / IMMIGRATION LAW:  USA v. Corona-Sanchez, 98-50452 (9th Cir. June 6, 2002).  Under the circumstances of this case, a California state conviction for petty theft of cigarettes and beer did not constitute an aggravated felony under 8 USC Sec. 1101(a)(43)(G);  it thus did not justify increasing a sentence for unlawful reentry under Sec. 1326(b)(2);  dissenting in part, Judge Rymer, joined by Judges Kozinski, T.G. Nelson, and Kleinfeld, thought that stealing property from a grocery store with a prior conviction for doing the same thing—to which the defendant pled guilty and for which he was sentenced to two years in custody pursuant to California Penal Code Secs. 488 and 666, is plainly a "theft offense" for which the term of imprisonment is at least one year;  if so, the conviction was for an "aggravated felony" and enhancement of the defendant's federal sentence for illegally reentering the U.S. after being deported was required by Guidelines Sec. 2L1.2(b)(1)(A);  dissenting, Judge Kozinski thought that instead of being a basic crime coupled with a recidivist sentencing enhancement, at issue was a different, more serious, newly created crime of "petty theft with a prior," that could be punished by imprisonment in state prison, rather than in a county jail;  the majority had relied on Peo-ple v. Bouzas, 807 P.2d 1076 (Cal. 1991), which, Judge Kozinski thought approved a procedure that doesn't survive Apprendi v. New Jersey, 530 US 466 (2000).  Schroeder, Reinhardt, Kozinski (dissenting), Rymer (dissenting in part), T.G. Nelson, Kleinfeld, Thomas (author), McKeown, W. Fletcher, Fisher, and Berzon, Circuit Judges.  W. Gerboth of San Diego, CA, for the defendant;  AUSA R. Haines of San Diego, CA, for the plaintiff.(Download the full text of this decision at www.cc9.uscourts.gov/)

59)  SENTENCING:  USA v. Sandoval-Venegas, 01-50226 (9th Cir. June 14, 2002). A district court erred in relying on a prior con-viction for burglary as a qualifying predicate offense in applying the career offender sentencing enhancement under U.S.S.G. Secs. 4B1.1 and 4B1.2 where, while the record might establish that the defendant was charged with first degree residential burglary, it did not establish that he was convicted of it.  Schroeder, Cudahy, and McKeown (author), Circuit Judges. S. Hubacheck of San Diego, CA, for the defendant;  AUSA S. Harrigan of San Diego, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

60)  SENTENCING:  USA v. Romero, 01-10354 (9th Cir. June 18, 2002).  A district court did not engage in impermissible "double counting" in applying a two-level sentencing enhancement under U.S.S.G. Sec. 2F1.1(b)(4)(A) to a defendant who pled guilty to False Personation of an Officer or Employee of the United State, 18 USC Sec. 912, in order to defraud immigrants by posing as an INS em-ployee who promised to expedite their applications in exchange for money.  Hawkins and Silverman, Circuit Judges, and Restani (author), U.S. Court of Intl. Trade Judge. AUSA R. Rukstele of Las Vegas, CA, for the plaintiff-appellee;  AFPD R. Valladares of Las Vegas, NV, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

61)  SENTENCING:  USA v. Jolibois, 01-30298 (9th Cir. June 24, 2002).  The defendants drug possession was both a Grade B violation under Washington law and a Grade C violation under federal law;  where illegal conduct constitutes more than one offense, the Guidelines punish that conduct with the most serious penalty available;  the USCA thus affirmed the district court's Grade B characterization as well as the resulting 18-month sentence.  Brunetti, Trott (author), and McKeown, Circuit Judges.  S. McCloud of Seattle, WA, for the defendant;  H. Brunner of Seattle, WA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

62)  HABEAS CORPUS:  Sistrunk v. Armenakis, 99-36000 (9th Cir. June 6, 2002).  A federal habeas petitioner's offer of proof of his actual innocence of the rape of a child, including "new evidence" of an expert witness's supposedly "false" testimony that young children never make false rape allegations, previously excluded evidence regarding the true condition of his penis that contradicted the victim's description, is insufficient to permit him to present otherwise procedurally barred claims.  Schroeder, Reinhardt, Trott, Rymer, Hawkins, Tashima (author), Silverman, McKeown, Fisher, Paez, and Berzon, Circuit Judges.  AFPD D. Balske of Portland, Or, for the petitioner;  DAG J. Klapstein of Salem, OR, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

63)  HABEAS CORPUS:  Miranda v. Castro, 01-56124 (9th Cir. June 12, 2002).  The petitioner's reliance upon the erroneous ad-vice of appointed attorney was insufficient to warrant equitable tolling of the one-year statute of limitations on filing a federal habeas petition;  the attorney's miscalculation of the limitations period for filing a federal habeas petition under Antiterrorism and Effective Death Penalty Act of 1996 did not constitute "extraordinary circumstances" sufficient to warrant equitable tolling, where the attorney had been appointed only for direct review and the miscalculation was given in a letter ending her representation of the petitioner.  O'Scannlain (author), Rymer, and Thomas, Circuit Judges.  M. Marshall of Pasadena, CA, for the petitioner;  AAG R. Anderson of Los Angeles, CA, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

64)  PRISONS:  Bennett v. King, 97-15848 (9th Cir. June 11, 2002).  Under the Prison Litigation Reform Act, a district court does not err in dismissing a prisoner's claim for harassment by prison officials where the prisoner fails to show that he had satisfied the administrative exhaustion requirement.  Reinhardt, Noonan (author), and Hawkins, Circuit Judges.  F. Bennett pro se; no appearance by the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

 1)  FIRST AMENDMENT / SIGN ORDINANCES:  Onsite Advertising Services, LLC  v. City of Seattle, 01-35380, (9th Cir. June 7, 2002) (unpublished).  Brunetti, Trott, and McKeown, Circuit Judges.
        Onsite Advertising Services is an advertising company that leases space for outdoor advertising signs on building walls and then arranges for businesses to place their advertising on the signs.  Miller Brewing Company hired Onsite to place advertisements on the Squire Building, located within Seattle's Pioneer Square Historic District.  Onsite informed Miller that the erection of signs in that district is generally prohibited, but that advertisements meeting the requirements for an on-premises sign under Seattle Municipal Code Sec. 23.84.036 may be issued a permit.  To obtain a permit for an on-premises sign, an applicant must submit its proposed advertisement to Seattle's Department of Design Construction and Land Use (DCLU) for approval.  Onsite submitted a proposed advertisement to DCLU for approval that depicted a bottle of "Miller Genuine Draft" beer with beer flowing out of it, and the words "Never Miss a Genuine Opportunity."  Both the Pioneer Square Preservation Board and the Director of the Department of Neighborhoods approved the sign;  however, DCLU refused to approve it.  Although Miller had leased a small office in the Squire building for marketing and advertising purposes at the advice of Onsite, it was neither selling nor producing beer on the premises where the sign would be located.  Thus sign thus did not meet the SMC Sec. 23.84.036 definition of "on-premises sign."  Onsite sent DCLU several alternative signs in hopes of obtaining a permit—all contained depictions of beer, or the Miller logo, or both.  DCLU rejected them all for the same reason it rejected the first proposal.  Eventually, DCLU approved a sign depicting only the Miller logo and a photograph of Mt. Rainier, with no depiction of Miller products or written references to Miller products.  Onsite filed a Land Use Petition in state court challenging the rejection of its proposed advertisement.  Seattle removed the case to the U.S. District Court for the Western District of Washington where, following a bench trial, Judge Lasnik rejected Onsite's arguments and entered judgment in favor of Seattle.
        Onsite appealed, arguing that the court erred in upholding Seattle's interpretation and application of SMC Sec. 23.84.036, and in rejecting Onsite's claim that the ordinance as applied violated Onsite's rights to free speech under the First Amendment.  The USCA disagreed, and affirmed the district court.  Section 23.84.036 defines an "on-premises" sign as "a sign or sign device used solely by the business establishment on the lot where the sign is located which displays either (1) commercial messages which are strictly applicable only to a use of the premises on which it is located, including signs or sings devices indicating the business transacted, principal services rendered, goods sold or produced on the premises, name of the business, and name of the person, firm or corporation occupying the premises; or (2) noncommercial messages."  In contrast, an "off-premises" sign relates to "a business activity, use, product or service not available on the premises upon which the sign is erected."  DCLU determined that, although Miller maintained an office at the Squire Building, the signs proposed by Onsite did not qualify as on-premises signs because they advertised Miller beer, a product that was neither sold nor produced at the Squire Building.  Onsite argued that the words following "including" in the definition of "on-premises" signs should not be interpreted as an exclusive list of permitted signs, but should merely be seen instead as examples of what on-premises signs may contain.  It maintained that on-premises signs can contain messages about goods sold or produced off the premises.  However, the USCA noted that under the plain language of the ordinance this contention had no merit.  Seattle's interpreta-tion was reasonable and not erroneous.  The language following "including" in the definition was intended to give direction as to what would be acceptable for an on-premises sign and to narrow the language preceding it.  Onsite's interpretation made the phrase "sold or produced on the premises" superfluous and created a conflict with the ordinance's definition of "off-premises" signs, which bans signs advertising products or services not available on the premises upon which the sign is erected.  The ordinance was not designed to allow a company to advertise a good that it does not sell or produce on the site.  That would abolish the difference between on-premises and off-premises signs. 
          Section 23.84.036 is a content-based restriction as it requires a nexus between the business office and the content of the sign.  When commercial speech is subject to government restrictions, the USCA must apply a four-part test to determine the validity of the restriction.  The test inquires: (1) whether the speech is misleading or related to unlawful activity; (2) whether the government has a substantial interest; (3) whether the regulation directly advances the government interest involved; and (4) whether the restriction is no more extensive than necessary to accomplish the government objective. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n, 447 US 557, 566 (1980).  The parties agreed that prongs (1) and (2) were satisfied because the signs at issue contained commercial speech that was both lawful and truthful, and Seattle had a substantial interest in regulating traffic and safety aesthetics.  The USCA was thus left to decide whether the regulation directly advanced Seattle's interest and whether it was more restrictive than necessary.  Applying Metromedia v. San Diego, 453 US 490 (1981), the USCA resolved the remaining issues in Seattle's favor.  Metromedia considered a regulation virtually identical to SMC Sec. 23.84.036 and upheld the content-based distinction between on-premise and off-premise signs in the San Diego ordinance, holding that "the city could reasonably conclude that a commercial enterprise-as well as the interested public-has a stronger interest in identifying its place of business and advertising the products or services available there than it has in using or leasing its available space for the purpose of advertising commercial enterprises located elsewhere.  The Circuit has  interpreted Metromedia as standing for the proposition that a city can either ban all signs or ban all signs with the exception of on-premises signs to advance the City's interests in traffic safety and aesthetics.  Onsite argued that Metromedia no longer controls this case as in recent years the Supreme Court has applied prongs (3) and (4) of the Central Hudson test with extra bite.  However, the Circuit has noted, Metromedia has not been overruled.  Seatle has a substantial interest in allowing companies to advertise goods and services provided onsite, and the ordinance is no more extensive than necessary to accomplish that purpose.  The ordinance thus meets the requirements of the Central Hudson test.

2)  TRADEMARK INFRINGEMENT:  AANP v. American Association of Naturopathic Physicians, 00-35694 (9th Cir. June 14, 2002) (unpublished).  Trott and T.G. Nelson, Circuit Judges, and Shadur, District Judge.
       The American Association of Naturopathic Physicians of Oregon ("Infringer"), appealed a $52,133.44 award of attorneys' fees granted in favor of the trademark owner, the American Association of Naturopathic Physicians ("National AANP"). 
          The USCA affirmed and remanded to the Appellate Commissioner.  Pursuant to the Lanham Act, attorneys' fees may be granted to the prevailing party in "exceptional" cases of trademark infringement.  15 USC Sec. 1117(a).  The Lanham Act does not define the term "exceptional," but the Ninth Circuit has awarded attorneys' fees in infringement cases where the infringement was "malicious, fraudulent, deliberate, or willful."  Playboy Enters., Inc. v. Baccarat Clothing Co., 692 F.2d 1272 (9th Cir. 1982).  Here, the district court expressly found this an "exceptional case" of trademark infringement:  "The evidence confirms that the defendant acted deliberately to and intended to harm the plaintiff by using its mark.  The evidence in this case is especially egregious because not only did the defendant incorporate its organization under the plaintiff's trademark and continue to use the mark after notice of violation, but the defendant harassed the plaintiff by sending letters to the plaintiff's members and appearing at naturopathic conferences and other venues using the plaintiff's trademark.  Therefore this court finds that there are exceptional circumstances … warranting reasonable attorneys' fees."  The USCA agreed with this assessment and conclusion.  Undoubtedly, the Infringer knew of National AANP and its use of the "AANP" and "American Association of Naturopathic Physicians" trademarks, but still incorporated itself under that name when National AANP's corporate license in Oregon inadvertently lapsed.  The Infringer then conducted a self-congratulatory campaign touting its takeover of the "American Association of Naturopathic Physicians" corporate name.  On letterhead purportedly from the "American Association of Naturopathic Physician," the Infringer mailed to many naturopaths a solicitation describing the formation of a "new, more responsible association."  That solicitation included an invitation to the "annual convention at the Riviera Hotel in Las Vegas."  The Infringer also began lobbying state legislatures using the corporate name, the "American Association of Naturopathic Physicians."  This evidence supports the district court's finding that the Infringer deliberately and maliciously infringed National AANP's trademarks.  It thus was not clear error for the district court to conclude that the Infringer, rather than a rogue band of miscreants, deliberately and maliciously infringed National AANP's trademarks.  In addition to upholding the award of attorneys' fees, the USCA also found the appeal wholly without merit and awarded National AANP its reasonable attorneys' fees for the appeal, taxing the costs to the Infringer under Circuit Rule 39(a)(2).  The USCA referred the case to the Appellate Commissioner to determine the amount of attorneys' fees to be awarded and to calculate the appropriate amount of post-judgment interest due to the appellee.

3)  FALSE CLAIMS ACT:  USA ex rel. Rakow v. Pro Builders Corporation, 00-35523 (9th Cir. June 19, 2002) (unpublished). Brunetti, Trott, and McKeown (concurring), Circuit Judges.
           Relator Rakow alleged that Pro Builders Corporation violated the False Claims Act by falsely certifying compliance with its building contract and federal labor law in order to receive payment from the federal government.  The District Court for Montana, Judge Anderson presiding, granted summary judgment in favor of Pro Builders because (1) its certification of compliance was not a prerequisite to payment; and (2) Radkow adduced no evidence that Pro Builders knowingly submitted false certifications.  The USCA affirmed on the latter ground.
            The False Claims Act imposes liability only on those who "knowingly" present a false claim to the government.  31 USC Sec. 3729(a)(1).  For purposes of the FCA, "knowingly" means (1) actual knowledge of the information, (2) deliberate ignorance of the truth or falsity of the information, or (3) reckless disregard of the truth or falsity of the information.  31 USC Sec. 3729(b).  This defi-nition requires "simple inquiries which would alert" a prudent individual "that false claims are being submitted."  Gross negligence and innocent mistakes are insufficient to establish liability under the FCA.  Rakow produced no evidence that Pro Builders knowingly submitted false statements to the federal government.  Instead, the evidence conclusively showed merely an isolated underpayment of wages resulting from a miscommunication between Pro Builders and Personnel Leasing.  The underpayment affected only those laborers referred and paid by Personnel Leasing, whose wages constituted only 1.1% of the project's total costs.  All of Pro Builders' other subcontractors paid their employees the prevailing wage and submitted accurate certified payrolls.  Moreover, neither Rakow, Personnel Leasing, nor Pro Builders knew of a prevailing wage problem at the Gallatin Airport project until the Montana Labor Management Alliance investigator so advised Rakow in March 1996.  Once Pro Builders learned of the oversight, it promptly paid Rakow back wages for 465 hours of work, and began paying him and the other laborers the prevailing wage.  These facts evince an innocent mistake and Rakow points to nothing additional which indicates Pro Builders knowingly submitted false certifications.  Relying on USA ex rel. Plumbers & Steamfitters Local Union No. 38 v. Roen Construction Co., Rakow argued that Pro Builders had an affirmative duty to inquire whether each worker was paid the prevailing wage.  91 F.3d 1088, 1095 (9th Cir. 1999) (holding that when faced with uncertainty as to the prevailing wage, an employer's blind certification of compliance without investigation may suffice as a reckless disregard of the truth). However, unlike the contractor in Roen, Pro Builders faced no uncertainty about the prevailing wage.  It was undisputed that it properly paid all its regular subcontractors, which in turn, submitted truthful certifications for 98.9% of their costs.  When it discovered the isolated underpayment by Personnel Leasing, Pro Builders quickly investigated and remedied the problem.  Pro Builders thus met its duty to investigate the veracity of its certifications.  Rakow presented no evidence tending to show that his under-payment resulted from purposeful misconduct, deliberate indifference, or reckless disregard of the truth.  The evidence conclusively established that any temporary underpayment and resulting false certification was an innocent mistake, which is not actionable under the FCA.  The district court thus appropriately granted summary judgment in favor of Pro Builders on this ground. 
 Judge McKeown concurred in the ultimate result dismissing Rakow's case he would base dismissal on lack of jurisdiction because Rakow was not the "original source."  See 31 USC Sec. 3730(e)(4)(B).

4)  INSURANCE:  Magnum Defense, Inc. v. Frontier Insurance Company, 00-57084 (9th Cir. June 17, 2002) (unpublished).  O'Scannlain, Rymer, and Thomas, Circuit Judges.
       The District Court for the Central District of California, Judge Carter presiding, granted summary judgment for Frontier Insurance Company.  Magnum Defense appealed the judgment and Frontier cross-appealed the denial of attorneys' fees.  The USCA affirmed in part, reversed in part, and remanded for further proceedings.
        First, the district court correctly construed the bond herein at issue as an advance payment bond, rather than as a performance bond.  The terms of the bond, although not a model of clarity, did not bear the traditional hallmarks of a performance bond, and contain only passing references to the underlying contract.  That was insufficient as a matter of California law for the bond to be construed as a performance bond.  Under California law, for one document to incorporate another document by reference, "the reference to the incorporated document must be clear and unequivocal and the terms of the incorporated document must be known or easily available to the contracting parties."  Cariaga v. Local No. 1184 Laborers Intl. Union of N. Am., 154 F.3d 1072, 1074 (9th Cir. 1998).  If the reference is amorphous or fails to guide the reader to the incorporated document, there is no incorporation by reference.  Contract terms thus cannot serve to alter the payment bond into performance bond.  Second, the USCA agreed with Magnum that there remained a genuine issue of material fact as to the value received by Magnum by the performance date.  The district court concluded that the contractor provided value of at least $400,000 by that time. Magnum argued that it did not, contending that it only received machined parts that had a fair market value of less than the bond amount.  Examining the record as it existed at the time summary judgment was entered, there were sufficient issues of material fact to preclude summary judgment on the question of liquidated value received by the performance date.  Remand was required for resolution of that factual question.  Because remand was required, the USCA did not reach the attorneys' fees issue asserted in Frontier's cross-appeal.

5)  BANKRUPTCY:  First Commerce of America v. Genesis Fire Protection, Inc., 00-17060 (9th Cir. June 7, 2002) (unpublished).  Wallace, Kozinski, and Paez, Circuit Judges. 
         The first matter at issue in this case was whether First Commerce of America's fraudulent transfer claim was barred by the two-year limitations period in 11 USC Sec. 546(a) or the four-year limitations period in Arizona Revised Statutes Sec. 44-1009.  The relevant portion of Sec. 44-1009 states that the claim must be brought "within four years after the transfer was made or obligation was incurred."  The last transfer from Grantham Fire Protection to Genesis Fire Protection took place on May 1, 1992—four years and five months before the First Commerce filed its claim.  Grantham also incurred a series of obligations on Genesis' behalf when it allowed Genesis to use its credit to purchase goods from suppliers.  While the record indicates that Genesis reimbursed Grantham for these withdrawals as late as December 11, 1992, there was no evidence that these obligations were incurred by Grantham after August 31, 1992.  Because First Commerce's claim was not timely under either period, the USCA found no need to decide which applied.  Thus, summary judgment on First Commerce's fraudulent transfer claim entered by the District Court for Arizona, Judge Mathis presiding, was proper.  The Second issue was whether the district court erred in holding that Genesis should not be held liable as a Grantham successor because Grantham's "principal assets" were not transferred to Genesis.  Under A.R. Teeters & Assocs. v. Eastman Kodak, 836 P.2d 1034 (Ariz. Ct. App. 1992), the transfer of a corporation's "principal asset" is a prerequisite to successor liability.  First Commerce argued that the district court erred in not finding that Grantham transferred its goodwill to Genesis.  Because First Commerce failed to ask the district court to make such a finding, the argument was waived.  First Commerce's other successor liability arguments hinged on the "principal assets" issue.
       The defendants cross-appealed the district court's refusal to award attorneys' fees under Arizona Revised Statutes Sec. 12-341.01.  Section 12-341.01(A) states that a court may award attorneys' fees in an action arising out of a contract.  First Commerce's claims arose out of contract as it could not have brought is action "but for" the Grantham note. The USCA thus held that the district court could award attorneys' fees to the defendants in its discretion.  However, Sec. 12-341.01(C) requires a court to award fees where a claim "constitutes harassment, is groundless and is not made in good faith."  The USCA held that the district court did not abuse its discretion in declining to award fees to the Granthams under this provision as First Commerce included them in the action solely for the purpose of recovering Grantham assets.

6)  BANKRUPTCY / SANCTIONS:  In re Robinson, 01-55868 (9th Cir. June 7, 2002) (unpublished).  O'Scannlain, Rymer, and Thomas, Circuit Judges. 
 The District Court for the Central District of California, Judge Real presiding, awarded sanctions for misconduct and bad faith against Robinson and his attorney in connection with their prosecution of Robinson's 1999 bankruptcy petition. 
        The USCA affirmed.  The bankruptcy court's factual findings were supported by the record and were not clearly erroneous.  Robinson admitted that he filed a bankruptcy petition in an effort to save his home from foreclosure, and that he did not intend to make arrangements to satisfy Cigna Employee Benefits Services' claims against him in that bankruptcy.  Robinson had filed two previous personal bankruptcies, one still pending at the time of his filing in this case, and the attorney was Robinson's attorney for each of those bankruptcy filings.  The court's finding that Robinson engaged in a pattern of bad faith conduct because he repeatedly failed to comply with bankruptcy disclosure and scheduling requirements also was not clearly erroneous.  A review of the record supported the court's factual findings that Robinson failed to disclose his ownership of real property, incorrectly reported the value for his residential property, and failed to include Cigna as a creditor in its schedules.  The record also supported the court's finding that Robinson and his attorney knowingly deceived the court and acted in bad faith in their efforts to have Robinson's bankruptcy petition dismissed.  Robinson and his attorney, with the help of Robinson's landlord, filed sworn declarations, fabricated letters and pleadings claiming that Robinson's landlord would repossess his office properly if he remained in bankruptcy.  Robinson and his attorney knew that the landlord had no intention of repossessing Robinson's business, but asked him to write letters saying he would repossess if the bankruptcy was not dismissed.  The USCA also found that the district court correctly concluded that the bankruptcy court did not abuse its discretion in sanctioning Robinson and his attorney for their conduct under the court's inherent powers and Fed. R. Bankr. P. 9011.  Robinson and his attorney knowingly submitted perjured declarations, fabricated evidence and frivolous pleading in their attempts to convince the bankruptcy court to dismiss Robinson's petition, in violation of Rule 9011.  The USCA concluded that these acts together with the pattern of bad faith and misconduct documented by the court in its factual findings, also were sanctionable pursuant the court's inherent powers under 11 USC Sec. 105.

7)  BANKRUPTCY:  In re Wolfberg, 00-57220 (9th Cir. June 14, 2002) (unpublished).  Kozinski and Gould (dissenting), Circuit Judges, and Breyer, District Judge.
         Bankruptcy Code Sec. 1141 provides that the provisions of a confirmed reorganization plan bind the debtor.  This "tells creditors that they should expect payment of their claims according to the terms of the confirmed plan.  If the plan does not provide for any post-confirmation challenges to claims, the debtor is bound to pay on those creditors' claims as provided for by the plan."  In re Kelley, 199 B.R. 698, 703-04 (9th Cir. B.A.P. 1996).  Although Bankruptcy Rule 1009 permits the debtor to amend bankruptcy schedules "as a matter of course at any time before the case is closed," such amendment must comply with Sec. 1141.  The Wolfbergs' reorganization plan stated repeatedly that it would be funded through the sale of their residence.  Neither the plan nor the accompanying disclosure statement, which must contain information enabling creditors to make an informed judgment about the plan, 11 USC Sec. 1125(a)(1), (b), specified a homestead exemption.  The plan also stated that, subsequent to the confirmation, the debtor could amend the plan only with the approval of the bankruptcy court and after a notice and a hearing.  Given that the amount realized from the sale of the Wolfbergs' residence was less than their liabilities under the plan, the addition of a homestead exemption would affect the plan's payout scheme.  As a change in the payout scheme altered the plan's terms, Sec. 1141 precluded the change unless made through the procedure authorized by the plan.  To claim a homestead exemption that changes the payout scheme of their confirmed reorganization plan, the Wolfbergs were required to follow the amendment mechanism prescribed by the plan, which they did not.
         Dissenting, Judge Gould noted that the Wolfberg residence was valued at $16 million, and debts totaled about $13 million.  He could not believe that reasonable creditors would find it important that the Wolfbergs planned to exempt $125,000 from the sale of a residence expected to yield a $3 million surplus for the Wolfbergs.  He thus could not accept the position that, "to make an informed judgment about the plan," a reasonable creditor would need to know the Wolfbergs would declare a homestead exemption.  Judge Gould thus did not believe that the bankruptcy laws required the Wolfbergs to include the homestead exemption in their disclosure statement.  Nor did he agree with the majority view that, after liquidation, reducing the Wolfbergs' $10+ million pool of assets by $125,000 changed the payout scheme of their confirmed reorganization plan in any material respect.  Rather, the Wolfbergs would pay listed creditors for identified debts from a pool of money only slightly diminished.  Judge Gould saw no conflict between Bankruptcy Rule 1009 and Bankruptcy Code Sec. 1141, as nothing in the plan bound the debtors to an exemptionless homestead.  The initial bankruptcy judge found no bad faith or undue prejudice to creditors, and that protected all hands.  As the bankruptcy judge's decision was fair and consistent with law, Judge Gould would allow the amendment. 

8)  BANKRUPTCY:  Villamar v. Hersh, 01-56073 (9th Cir. June 18, 2002) (unpublished).  Fernandez, Wardlaw, and W. Fletcher, Circuit Judges. 
 The District Court for the Southern District of California, Judge Miller presiding, upheld the bankruptcy court's dismissal of Villamar's adversary complaint for failure to state a claim under Bankruptcy Rule 7012(b). 
         The USCA affirmed.  First, Villamar is precluded from relitigating the issue of whether the lien was discharged in bankruptcy.  The issue preclusion doctrine prevents relitigation of all "issues of fact or law that were actually litigated and necessarily decided" in prior proceedings.  Issue preclusion applies if: (1) Villamar was afforded a full and fair opportunity to litigate the same issue in the prior action;  (2) the issue was actually litigated and decided against Villamar in a final decision;  and (3) the issue was necessary to support the judgment.  Here, each of the requisites for issue preclusion are met.  Villamar brought a motion that directly put at issue whether Hersh's lien was a judicial lien or a nonavoidable security interest.  The bankruptcy court considered whether the Hersh lien is a judicial lien or a security interest, and concluded that it was a consensual security interest.  It also determined that Hersh's lien was nonavoidable, and denied Villamar's motion.  Villamar did not seek reconsideration before the bankruptcy court or appeal from its decision that Hersh had a consensual and binding security interest in her home.  Issue preclusion was available, and neither the bankruptcy court nor the district court abused its discretion in applying the doctrine.  Second, Villamar argued that Hersh violated the bankruptcy discharge by attempting to renew his lien through state court procedures.  However, because the bankrukpcy court found that the lien was not discharged by the bankruptcy, it follows that Hersh is free to maintain actions in rem in furtherance of the lien.  The bankruptcy discharge operates as an injunction against the employment of process, or an act, to collect, recover, or offset any discharged debt as a personal liability of the debtor.  A bankruptcy discharge extinguishes only one mode of enforcing a claim—namely, an action against the debtor in personam—while leaving intact another—namely, an action against the debtor in rem.  Johnson v. Home State Bank, 501 US 78, 84 (1991).  A discharge in bankruptcy prevents the creditor from taking any action to collect the debt as a personal liability of the debtor.  However, the debtors' property remains liable for a debt secured by a valid lien.  In re Isom, 901 F.2d 744, 745 (9th Cir. 1990).  Because Hersh's post-discharge conduct in attempting to renew his lien through state court procedures constituted in rem actions, Hersh did not violate the bankruptcy discharge.  Third, the bankruptcy court did not abuse its discretion by imposing sanctions for the amount of attorneys' fees and costs associated with bringing the motion to dismiss and presenting the sanctions motion, as the district court correctly found.  The purpose of Bankruptcy Rule 9011, which mirrors Federal Rule of Civil Procedure 11, is to deter baseless filings.  An argument contained in a motion is baseless or frivolous under Rule 9011 if it is unreasonable when viewed from the perspective of a competent attorney admitted to practice before the court.  Villamar's argument was both precluded by the bankruptcy court's prior determination and foreclosed, as stated by the district court, by a "fundamental principle of bankruptcy law, uniformly applied for more than one hundred years … that consensual liens … pass through bankruptcy unaffected by the discharge."  Long v. Bullard, 117 US 617 (1886).  There was no reasonable basis in law or fact for the adversary complaint.  As the bankrukptcy court correctly explained to Villamar's attorney—even as Villamar continued to maintain her position—the argument was both precluded and foreclosed.

9)  EDUCATION LAW:  Regan-Adkins v. San Diego Unified School District, 00-56534 (9th Cir. June 19, 2002) (unpublished).  Schroeder and McKeown, Circuit Judges, and Zilly, District Judge.
        The District Court for the Southern District of California, Judge Brewster presiding, dismissed in part and stayed in part the plaintiffs' claims under the Individuals with Disabilities Education Act ("IDEA").
          The USCA affirmed in part, vacated in part, and remanded for further proceedings.  First, the district court dismissed as moot the appellants' appeal of the first Individualized Education Program ("IEP") without comment.  The appellants' argued to the district court that in evaluating the first IEP the Administrative Law Judge ("ALJ") erred in two respects:  (1) by failing to consider and remedy the school system's procedural violation under IDEA; and (2) by failing to enjoin the school system's policy of making chronological age the sole factor in placing children with disabilities in regular education classrooms.  In evaluating whether these claims were moot, the district court noted that the ALJ determined that the School District had not provided appellant Jennifer with a free appropriate public education and required the School District to develop a new IEP.  This finding was not appealed by the School District.  The determination that a new IEP is required makes the appellants' claim that the ALJ erred in failing to address the procedural errors committed by the School District in developing the first IEP moot.  The USCA thus affirmed the district court's ruling that this claim was moot.  However, not all IDEA claims are necessarily mooted by the creation of a new IEP.  Differing educational views regarding mainstreaming, which create conflicts capable of repetition but likely to evade review, present live controversies for the court.  The appellants argued that the ALJ erred in failing to enjoin the School District from placing children in classes "solely on the basis of age."  However, the USCA found this to be a controversy capable of repetition but likely to evade review and thus was not mooted by the finding that the School District must provide Jennifer with a new IEP. Thus, it was error for the district court to dismiss this claim as moot.  The USCA vacated the order.
         The controversy over Jennifer's placement began when she was nine years old and she has now reached the age of fourteen.  It is thus appropriate to address the merits of the placement dispute rather than further delay resolution by remanding for consideration by the district court.  Although the appellants argued that the ALJ made its decision "solely on the basis of age," the record did not support this contention.  Rather, the ALJ concluded that there was a "legal presumption in favor of mainstreaming with age comparable, nondisabled peers."  The ALJ then concluded that he was in no position "to design a specific appropriate placement for Jennifer" without further study by the IEP team with the additional expertise of a "fully qualified, inclusion specialist with substantial expertise and experience in mainstreaming students such as Jennifer."  Thus the question the USCA addressed is whether the ALJ properly required the School District to apply a presumption that Jennifer is to be educated with peers that are reasonably close to her in age.  The IDEA's mainstreaming provision states that a child is not to be removed "from the regular educational environment" unless "the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." 20 USC Sec. 1412(a)(5)(A).  The Ninth Circuit has determined that "this provision sets forth Congress' preference for educating children with disabilities in regular classrooms with their peers."  Sacramento City Unified School Dist. v. Rachel H., 14 F.3d 1398, 1403 (9th Cir. 1994).  It has been recognized, however, that this provision creates a tension between the two purposes of the Act because "school districts must both seek to mainstream handicapped children and, at the same time, must tailor each child's educational placement and program to his special needs."  Daniel R.R. v. State Bd. Of Educ., 874 F.2d 1036, 1044 (5th Cir. 1989).  Thus the mainstreaming presumption can be rebutted by a showing that the student's educational needs require removal from the regular educational system.  In order for there to be a presumption for mainstreaming into regular classes there must exist a definition of a regular class.  The regular educational environment for a nine year old is a classroom with peers who are similar in age.  This presumption creates the baseline against which the effectiveness of any other placement must be measured.  The ALJ did not err by concluding that there is a legal presumption in favor of educating disabled students to the maximum extent possible with their nondisabled peers. 
        The appellants also sought reimbursement of educational expenses.  However, they failed to request such relief in the administrative filings with the Special Education Hearing Office.  The district court, thus properly stayed the appellants' request for reim-bursement for failing to exhaust administrative remedies.  The USCA thus affirmed the district court on this issue and remanded for further proceedings concerning reimbursement of educational expenses if the appellants exhaust their administrative remedies.

10)  IMMIGRATION:  Nawaiseh v. INS, 01-70927 (9th Cir. June 13, 2002) (unpublished).  Lay, Ferguson and Tallman, Circuit Judges.
          Nawaiseh, a native and citizen of Jordan, became a lawful permanent U.S. resident in March 1991.  In March 1998, he pled guilty to one count of conspiracy to commit wire fraud and one count of wire fraud aiding and abetting.  He was sentenced to three years probation, four months of in-house detention, and ordered to pay $250,380.97 in restitution.  As a result, he was placed in removal proceedings where the INS argued that his crimes constituted aggravated felonies, making him ineligible for asylum or for with-holding of removal.  In December 1999, the Immigration Judge ordered Nawaiseh removed to Jordan because he was ineligible for any type of relief.  As for the wire fraud aiding and abetting count to which Nawaiseh pled guilty, the IJ found there was insufficient evidence that the actual loss to the victim exceeded $10,000.  Thus that conviction failed to constitute an aggravated felony under INA Sec. 101(a)(43)(M).  Nonetheless, the IJ found the conspiracy to commit wire fraud constituted an aggravated felony under INA Sec. 101(a)(43)(U) because Nawaiseh was part of a conspiracy to defraud the victims of an amount in excess of $10,000, whether or not they actually suffered a loss.  As an aggravated felon, the IJ found Nawaiseh had been convicted of a particularly serious crime.  Nawaiseh thus was ineligible for asylum or for withholding of removal.  On appeal, the Board of Immigration Appeals affirmed the IJ's decision without opinion;  the IJ's decision is thus the final agency determination.
        The USCA noted that it lacks jurisdiction to review a removal order if the alien is removable for having been convicted of an aggravated felony.  It further noted that, while it has jurisdiction to determine its own jurisdiction, Ye v. INS, 214 F.3d 1128, 1131 (9th Cir. 2000), if either of the crimes for which Nawaiseh was convicted constitutes an aggravated felony, it must deny the petition for want of jurisdiction.  The USCA reviewed de novo the IJ's ruling that Nawaiseh was convicted of an aggravated felony for which he is subject to removal.  For purposes of the INA, an offense involving "fraud or deceit in which the loss to the victim exceeds $10,000" constitutes an aggravated felony.  8 USC Sec. 1101(a)(43)(M)(i).  So too does "an attempt or conspiracy to commit an offense described in this paragraph."  8 USC Sec. 1101(a)(43)(U).  Nawaiseh argued that the only loss attributable to his crime was the loss to one victim.  Hazel Anderson, which was less than $10,000.  The USCA disagreed.  The record indicated that Nawaiseh attempted to receive $364,295 through the fraudulent scheme and was personally responsible for causing an actual loss of $250,380.97.  It is no coincidence that this is the amount he was ordered to pay in restitution.  While Nawaiseh was correct that one of the counts to which he pled guilty dealt only with Anderson, he also pled guilty to conspiracy to commit wire fraud.  "It is settled law that a coconspirator is liable for substantive offenses committed in furtherance of the conspiracy." USA v. Miranda-Uriarte, 649 F.2d 1345, 1353 (9th Cir. 1981). Nawaiseh was part of a conspiracy that defrauded numerous victims of close to $2 million.  The USCA agreed with the IJ that Nawaiseh was convicted of an aggravated felony as defined in INA Sec. 101(a)(43)(U), which formed the basis for the removal order.  The USCA thus lacked jurisdiction to hear the appeal.

11)  IMMIGRATION:  Alam v. INS, 01-70820 (9th Cir. June 7, 2002) (unpublished).  O'Scannlain, Rymer, and Thomas, Circuit Judges.
        Alam, a citizen of Pakistan, petitioned for review of a BIA decision affirming an IJ's denial of his request for asylum and withholding of deportation and denying his motion to reopen to pursue suspension of deportation and relief under the Convention Against Torture.  The USCA denied Alam's petition.  Substantial evidence supported the BIA's conclusion that Alam's submission of a fraudulent writ that he represented as truthful undermined his asylum claims.  The fraudulent writ supported an adverse credibility de-termination as it went to persecution, one of the critical elements of Alam's asylum claim.  Moreover, the IJ gave Alam ample opportunity to explain his submission of the fraudulent writ, but Alam provided no credible explanation for its presentation.  Because Alam did not meet the standard for granting asylum, he also did not satisfy the more stringent standard for withholding of deportation.  The BIA did not abuse its discretion in denying Alam's motion to reopen to pursue suspension of deportation and relief under the Convention Against Torture.  With respect to Alam's suspension of deportation claim, he fell under IIRIRA's stop-time rule because he did not ap-ply for suspension of deportation until March 3, 1999, almost two years after IIRIRA's April 1, 1997 effective date.  As seven years had not elapsed between Alam's entry into the United States on August 31, 1989 and the government's issuance of an Order to Show Cause on February 27, 1996, he did not meet the stop-time rule and was not entitled to suspension of deportation.  Alam's Convention Against Torture claim was too generalized to establish prima facie eligibility for such relief.

12)  IMMIGRATION:  Silva-Jacinto v. INS, 00-71426 (9th Cir. June 11, 2002) (unpublished).  D.W. Nelson, Noonan (dissenting), and Hawkins, Circuit Judges. [The memorandum filed in this case on March 5, 2002 has been withdrawn.]
         This petition for review challenged the INS's rejection of Silva-Jacinto's asylum petition on the ground that his fear of future persecution was not objectively reasonable.  Both the Immigration Judge and the Board of Immigration Appeals found that Silva-Jacinto had a subjective fear of persecution and that his testimony was credible, reliable and consistent.  That testimony established that Silva-Jacinto was forcibly recruited into the Guatemalan armed forces, served honorably, but refused assignment to "G-2," an intelligence unit notorious for its human rights violations.  The record compelled the conclusion that Silva-Jacinto's refusal was based on conscience and religious beliefs.  The G-2 did not accept Silva-Jacinto's refusal and pursued him, even after his tour of military ended.  The pursuit continued even after he moved to another city to avoid the G-2's entreaties.  Silva-Jacinto was told that his "name would go on a list"—a statement that meant he was marked for death if he persisted in refusing to join the G-2.  He then fled Guatemala, entered the United States, and sought asylum.  That Guatemalans who refuse the "invitation" to join the ranks of the G-2 are then routinely marked for execution—a proposition unchallenged by the INS—compelled the conclusion that Silva-Jacinto's fears of future persecution were objectively reasonable.  The USCA granted Silva-Jacinto's petition, rather than remand this case for further proceedings, as the administrative record compelled the conclusion that his fears of future persecution were based on a protected ground under 8 USC Sec. 1101(a)(42(A).  Silva-Jacinto presented uncontradicted and credible evidence that he feared G-2 persecution because of imputed political beliefs, particularly an allegiance to rival groups or subversives.  He explained that G-2 forces think "that anyone who is not on their side or who refuses to join them is a subversive or a guerilla supporter and they are likely to put that person's name on a death list and have him killed."  Because Silva-Jacinto was found credible, his uncontradicted testimony that he was in danger because of his political opinion was sufficient.  He did not need to communicate to G-2 recruiters that he possessed a contrary political belief—such courage under the circumstances would veer toward the suicidal.  Indeed, his not telling them the true grounds for his refusal lent credibility to his claim that he feared that they would believe he was opposed to them and consequently kill him.  The USCA thus held that on the record, a reasonable fact finder would be compelled to conclude that Silva-Jacinto had a well-founded fear of persecution and that this fear was based on statutorily protected grounds.
 Dissenting, Judge Noonan noted that Silva-Jacinto refused to serve in G-2 because of his religious beliefs and his unwillingness to torture and "kill people for no apparent reason." But no evidence was presented that G-2 was aware of these beliefs.  The rec-ord , Judge Noonan said, indicated only that Silva-Jacinto told military authorities that he didn't wish to serve because "I wanted to return to civilian life.  I wanted to live with my wife in Bananera."  G-2 persecution might have been based on simple refusal to serve, not on a protected ground.  Judge Noonan though the case should be remanded to the BIA for further finding on whether such perse-cution would have been "on account of race, religion, nationality, membership in a particular social group, or political opinion."  8 USC Sec. 1101(a)(42)(A).  Neither the Immigration Judge nor the BIA made a finding on this question.

13)  IMMIGRATION:  Lin v. Ashcroft, 00-70929 (9th Cir. June 6, 2002) (unpublished).  Wallace, Tashima (dissenting), and Tallman, Circuit Judges. 
The issue raised by the petition in this case is whether substantial evidence supports the Board of Immigration Appeal's adverse credibility finding.  If so, the USCA did not need to address whether the BIA improperly required Lin to provide corroborative evidence to support his application.
       The USCA denied the petition.  The BIA's finding that Lin's account was implausible is a credibility finding.  Salaam v. INS, 229 F.3d 1234 (9th Cir. 2000).  The USCA thus reviewed only the BIA's finding.  Lin asserted that the actions he and he wife took after his mother was detained should not support the BIA's adverse credibility finding because they were understandable.  The USCA distinguished this case from In Re B-, 21 I&N Dec. 66, 70 (BIA 1995), in which there was a very good reason why the asylum applicant behaved in the manner he did, leaving his wife and children behind in Afghanistan.  In contrast, Lin offered no plausible explanation for remaining at his family's home when he allegedly knew that the birth control authorities were looking for him and his wife.  Lin's account in his brief that he and his wife remained in their family home because they were essentially resigned to the inevitable is inconsistent with his testimony that he would not allow his wife to trade herself for his mother.  While an alien's testimony is sufficient to establish his eligibility for asylum where the testimony is credible and unrefuted, the BIA did not deem Lin's testimony credible.  The BIA's determination that Lin had not met his burden of establishing that he had a well-founded fear of persecution, that he suffered past persecution, or that it is more likely than not that he will be persecuted if returned to China was thus supported by substantial evidence.
        Dissenting, Judge Tashima noted that under Ninth Circuit case law, an adverse credibility finding based on "speculation and conjecture" and not supported by evidence in the record must be reversed.  Here, the BIA's adverse credibility determination was based on nothing more than its intuitive disbelief that the birth control authorities would act as they did and that the petitioner would act as he did.  There were no inconsistencies between Lin's testimony and his application;  in fact, his testimony was completely consistent with the declaration attached to his Form I-589.  Moreover, the State Department county report, part of the administrative record in this case, acknowledges the existence of credible reports of forced abortions in Fujian, the province from which Lin emigrated.  The adverse credibility finding was thus based on speculation and conjecture regarding how the authorities would act and how Lin should have acted in the situation.  It was not supported by any record evidence.  Because the BIA's adverse credibility finding was unsupported by any specific, cogent reason, it had to be reversed.  Judge Tashima would grant the petition for review.