2)  TAXATION:  Patel v. City of San Bernardino, 01-55280 (9th Cir. Nov. 13, 2002).  A 42 USC Sec. 1983 action for damages, arising from a city's enforcement of an unlawful transient occupancy tax imposed on certain hotel guests, may proceed in federal court to the extent it seeks damages accrued after a state court overturned the tax;  Judge Rawlinson dissented from that part of the majority's opinion holding that the lack of injunctive relief in the state court proceeding resulted in a inadequate remedy;  this he thought was in disharmony with Ashton v. Cory, 780 F.2d 816, 820 (9th Cir. 1986);  he noted that the majority acknowledged that the hotel owners prevailed on their claim that the tax violated the Due Process Clause of the U.S. Constitution;  under the rationale of Ashton, he thought the lack of the arguably better relief of an injunction did not render the state remedy inadequate for purposes of the Tax Injunction Act.  Browning (author), Thomas, and Rawlinson (dissenting), Circuit Judges.  F. Weiser of Los Angeles, CA, for the plaintiffs;  J. Penman of San Bernardino, CA, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

3)  TAXATION / NATIVE AMERICAN LAW:  Quinault Indian Nation v. Grays Harbor County, 01-35219 (9th Cir. Nov. 8, 2002).  A state tax scheme having classic excise tax attributes could not be deemed a clear and unambiguous taxation of land, and thus did not fall within the limited scope of permissible taxation of an Indian tribe allowed under the Indian General Allotment Act of 1887, as constructed by County of Yakima v. Confederate Tribes & Bands of the Yakima Indian Nation, 502 US 251 (1992).  Brunetti, Trott, and McKeown (author), Circuit Judges. R. Reich of Mercer Island, WA, for the plaintiff;  J. Wieland of Montesano, WA, for the defendant.(Download the full text of this decision at www.cc9.uscourts.gov/)

4)  BANKING LAW / SECURITIES / BANKRUPTCY:  Thrifty Oil Co. v. Bank of America National Trust & Savings Association, 00-56159 (9th Cir. Nov. 19, 2002).  "Termination damages" under an "interest rate swap agreement," entered into between a lender and borrower as part of a larger financing transaction, did not constitute unmatured interest under Bankruptcy Code Sec. 502(b)(2);  interest rate swap agreements do not violate California's Bucket Shop Law.  Hall (author), Thompson, and Wardlaw, Circuit Judges.  S. Ray of Los Angles, CA, for the appellant;  M. Walker of San Diego, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

5)  BANKRUPTCY:  In re Majewski, 01-15544 (9th Cir. Nov. 13, 2002).  The debtor incurred large medical expenses at the hospital where he was employed, and did not pay them;  when he notified the hospital that he intended to file for bankruptcy, it fired him first; as the anti-discrimination provision of the Bankruptcy Code, 11 USC Sec. 525(b), does not protect someone who has not yet filed for bankruptcy, the debtor was not protected under that statute;  dissenting, Judge Reinhardt thought the majority had adopted an unnaturally rigid and formalistic construction of the Bankruptcy Code that contravened Congress's clear intent: to insulate debtors from unfair employment practices directly tied to their attempts to get a fresh start.  Schroeder (author), D.W. Nelson, and Reinhardt (dissenting), Circuit Judges.  A. Segal of Las Vegas, NV, for the appellee;  R. Rumph of Las Vegas, NV, for the appellant. (Download the full text of this decision at www.cc9.uscourts.gov/)

6)  BANKRUPTCY / SANCTIONS : Eskanos & Adler v. Leetien, 01-56203 (9th Cir. Nov. 7, 2002). 11 USC Sec. 362(a) imposes an affirmative duty on the parties to discontinue post-petition collection actions;  in this case, sanctions were appropriate under Sec. 362(h) where a collection agent willfully violated an automatic stay after receiving notice of a bankruptcy petition. Hug (author), Brunetti, and O'Scannlain, Circuit Judges.  B. Adler of Concord, CA, for the appellant;  M. Miller of San Diego, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

 7)  ART & INSURANCE:  Cort v. St. Paul Fire and Marine Insurance Companies, 00-17468 (9th Cir. Nov. 25, 2002).  Under California law, an insurer had no duty to defend, under a commercial property insurance policy, a lawsuit brought by an artist's family under the Visual Artists' Rights Act against the insured who had painted over the artist's mural which, years earlier, the City of San Francisco had commissioned to be painted on the exterior wall of a factory building which the insured subsequently bought and repaired;  the claims arising from painting over the mural could not be construed as alleging personal injury or advertising injury causes of action.  Thompson, W. Fletcher (author), and Berzon, Circuit Judges.  L. Townsend of San Francisco, CA, for the appellants; C. Burnham of Oakland, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

8)  INSURANCE:  Avery Dennison Corp. v. Allendale Mutual Ins. Co., 01-55378 (9th Cir. The memorandum disposition of Sept. 25, 2002 has been modified and redesignated a published opinion filed Nov. 14, 2002).  Avery made a claim under its insurance policy after one of its employees sold trade secrets to a competitor;  Allendale denied the claim on the ground that the policy did not cover intangible property such as trade secretes;  the district court agreed with Allendale and granted summary judgment dismissing Avery's claim; the USCA affirmed the district court's summary judgment for Allendale in Avery suit for breach of a contract of insurance and breach of an implied covenant of good faith and fair dealings which followed the district court's finding that Avery's claim was not covered by Allendale's policy and that there was no evidence of bad faith.  Lay, Canby, and Paez, Circuit Judges.  Per Curiam. D. DeBiase of Los Angeles, CA, for the defendant;  K. Pasich of Los Angeles, CA, for the plaintiff.(Download the full text of this decision at www.cc9.uscourts.gov/)

9)  INSURANCE:  Conestoga Services Corp. v. Executive Risk Indemnity, Inc., 01-16693 (9th Cir. Nov. 27, 2002). Under California law as articulated in Garvey v. State Farm Fire & Cas. Co., 48 Cal. 3d 395 (1989) (en banc), an insurer had a duty under an "errors-and-omissions" policy to defend its insured, an insurance brokerage, in a malpractice action because the alleged malpractice was at a minimum a proximate cause of the underlying action against the insured.  B. Fletcher (author), Arnold, and Rawlinson, Circuit Judges.  E. Bader of San Francisco, CA, for the plaintiff-appellant;  G. Jensen of Los Angeles, CA, for the defendant-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

10)  TORTS / SMOKING:  Soliman v. Philip Morris Inc., 01-15387 (9th Cir. Nov. 22, 2002).  A lawsuit against a tobacco company, alleging unwitting addiction and infliction of health problems, was barred by the statute of limitations as under California law it could be presumed that the plaintiff knew or should have known, years before filing suit, that smoking causes addiction.  Hall, Kozinski (author), and McKeown, Circuit Judges.  M. Soliman pro se;  M. Oppedahl of Oakland, CA, and T. Scarvie, R. Shively, and A Donahue of San Francisco, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

11)  TORTS / SMOKING:  Cardenas v. Anzai, 01-15297 (9th Cir. Nov. 18, 2002).  A suit brought by Medicaid recipients against Hawaiian state officials concerning the distribution of tobacco litigation settlement funds, was not barred by sovereign immunity under Ex Parte Young, 293 US 123 (1908), but the claims were precluded by Congress's 1999 amendments to the Medicaid statute, which provide that tobacco settlement funds received by a state may be used for any expenditures deemed appropriate by the state;  Judge O'Scannlain concurred in the judgment and otherwise, but would hold that this action is in essence one for damages against Hawaii and, thus, barred by the Eleventh Amendment;  nevertheless, he agreed that the 1999 amendments extinguished any possible claim by the plaintiffs to a portion of future tobacco settlement payments.  Thompson (author), O'Scannlain (concurring), and Berzon, Circuit Judges.  A. Ponvert of Bridgeport, Conn., for the plaintiffs;  DAG C. Fell of Honolulu, HI, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

12)  TORTS / MEDIA LAW:  Flowers v. Carville,00-17299 (9th Cir. Nov. 12, 2002).  Gennifer Flowers' defamation claims against James Carville, George Stephanopoulos, and Hillary Clinton were improperly dismissed where the defendants' statements regarding the validity of audio tapes purportedly containing President Clinton's voice were capable of defamatory meaning and the lawsuit did not offend the First Amendment;  the USCA affirmed the dismissal of all claims based on Carville's book, the disclosure and intrusion claims against Clinton, and all claims based on Stephanopoulos's book other than those related to the tape-doctoring passage;  the USCA reversed the dismissal of the defamation and false light claims based on Carville's Larry King interview, Stephanopoulos's Larry King interview, and the tape-doctoring passage in Stephanopoulos's book.  Wallace, Kozinski (author), and Paez, Circuit Judges.  L. Klayman of Judicial Watch, Inc. for the appellant;  L. Handman of Davis Wright Tremaine and D. Kendall of Williams & Connolly for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

13)  ENVIRONMENTAL LAW / DISCOVERY:  O'Connor v. Boeing North American, Inc., 00-56141 (9th Cir. Nov. 27, 2002).  The district court erred in concluding that the delayed discovery rule of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) applied to the plaintiffs' state law claims alleging illness caused by hazardous substance releases;  under the federal discovery rule, summary judgment was improper as to some plaintiffs because there were genuine issues of material fact regarding whether these plaintiffs knew or should have known of their claims within the limitations period;  dissenting in part, Judge O'Scannlain agreed with the majority that the 34 plaintiffs who filed their claims prior to the release of a critical 1997 UCLA study failed to make a sufficient evidentiary showing as to how they discovered their claims and thus concurred in affirming the grant of summary judgment as analyzed in Part II of the majority's opinion;  however, he dissented from Part I of the majority's opinion which reversed the summary judgment against the remaining 18 plaintiffs; he noted that the majority had concluded that the federal discovery standard applied to the plaintiffs' claims because it preempted the California standard under CERCLA, but, for purposes of preemption, Judge O'Scannlain failed to see a substantive difference between the two standards;  he thought the plaintiffs failed to explain adequately how a reasonable person knew or should have known of their claims against the defendants based on the 1997 UCLA Study but lacked constructive knowledge of their claims from earlier extensive news coverage about the contamination;  he thus thought that the statute of limitations barred these 18 plaintiffs' claims; he would affirm the district court's grant of summary judgment against all 52 plaintiffs.  O'Scannlain (dissenting in part) and Paez (author), Circuit Judges, and King, District Judge.  A. Cappello of Santa Barbara, CA, for the plaintiffs;  W. Schofield of San Francisco, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

14)  ENVIRONMENTAL LAW:  Biodiversity Legal Foundation v. Badgley, 00-35076 (9th Cir. The opinion filed on March 21, 2002 has been withdrawn and replaced with this opinion filed Nov. 4, 2002).  The U.S. Fish and Wildlife Service lacked discretion under the Endangered Species Act, 16 USC Sec. 1533, to make substantial information findings beyond the 12-month deadline imposed for warranted / not-warranted findings;  the only way to interpret Sec. 1533(b)(3)(A) in harmony with Sec. 1533(b)(3)(B) is by limiting the Service's discretion under (b)(3)(A) to the firm deadline imposed by (b)(3)(B);  Judge Graber dissented for two reasons:  first, she thought the district court lacked jurisdiction over the action since after the Service moved for summary judgment, the plaintiffs failed to satisfy their evidentiary burden to establish that they had standing;  second, she thought the USCA lacked jurisdiction over the appeal, as the case was moot.  T.G. Nelson, Graber (dissenting), and Rawlinson (author), Circuit Judges.  D. Rohlf of Seattle, WA, for the plaintiffs-appellants;  M. Thurston of Washington, DC, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

15)  ENVIRONMENTAL LAW:  League of Wilderness Defenders / Blue Mountains Biodiversity Project v. Forsgren, 00-35729 (9th Cir. Nov. 4, 2002). Annual aerial insecticide spraying of over 628,000 acres of national forest lands in Washington and Oregon conducted by the U.S. Forest Service to control a predicted outbreak of Douglas Fir Tussock Moth was "point source pollution" requiring a National Pollution Discharge Elimination System permit; the Forest Service's Environmental Impact Statement inadequately analyzed the issue of pesticide drift.  D.W. Nelson (author), Thompson, and Paez, Circuit Judges.  M. Dugan of Eugene, OR, for the appellants;  J. Cruden of Washington, DC, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

16)  ENVIRONMENTAL LAW:  San Francisco BayKeeper, Inc. v. Tosco Corp., 01-15939 (9th Cir. Nov. 1, 2002).  A citizen plaintiff has fulfilled the notice requirement of the Clean Water Act, as long as his notice letter is reasonably specific as to the nature and time of the alleged violations;  the letter does not need to describe every detail of every violation;  the plaintiff here could maintain a suit against a defendant that no longer operated the polluting facility at issue.  Goodwin, Thomas, and W. Fletcher (author), Circuit Judges.  R. Perlmutter of San Francisco, CA, for the appellant;  J. Lyons of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  ERISA :   Alford v. DCH Foundation Group Long-Term Disability Plan, 01-56090 (9th Cir. Nov. 21, 2002).  The plaintiff failed to meet her burden of offering material, probative evidence that an insurance company's apparent conflict of interest as both plan administrator and funding source may have influenced its decision to deny benefits.  Schroeder and W. Fletcher (author), Circuit Judges, and Weiner, District Judge.  L. Rohlfing of Santa Fe Springs, CA, for the appellant;  E. Oster of Irvine, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

18)  ERISA :  Jebian v. Hewlett-Packard Co. Employee Benefits Organization Income Protection Plan, 00-56988 (9th Cir. Nov. 19, 2002).  Because the proper standard of review of a Voluntary Plan Administrator's decision under the facts of this case is de novo, and because the Ninth Circuit subsequently ruled that the "treating physician" rule applies to ERISA plan decisions, a genuine issue existed as to whether the plaintiff was disabled;  summary judgment was thus improper;  dissenting, Judge Tashima thought the majority had forfeited an independent ERISA administrator's plan-given authority to exercise its discretion when ruling on a plan member's claim simply because the administrator had been late in ruling on a claim for benefits and, in so doing, the majority had created an intercircuit conflict.  Pregerson, Tashima (dissenting), and Berzon (author), Circuit Judges.  C. Fleishman of Beverly Hills, CA, for the appellant;  J. Busch, III, of Los Angeles, CA, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

19)  ERISA : Bui v. AT&T, 01-35509 (9th Cir. Nov. 15, 2002).  ERISA preempts claims based upon administrative decisions made in the course of administering an ERISA plan, but not also claims asserting medical malpractice;  the USCA thus reversed and remanded claims alleging malpractice and not requiring an interpretation of the ERISA plan;  the USCA affirmed on the claims involving ERISA administrative decisions or otherwise requiring construing the ERISA plan.  Goodwin, T.G. Nelson (author), and Graber, Circuit Judges.  B. Chen of Portland, OR, for the appellant;  R. Lindahl of Portland, OR, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

20)  EMPLOYMENT DISCRIMINATION / ATTORNEYS' FEES:  Staton v. Boeing Company, 99-36086 (9th Cir. Nov. 26, 2002).  The district court acted within its discretion in certifying this case as a class action pursuant to Fed. R. Civ. P. 23(a) over the objections of a group of class members who opposed the proposed consent decree which required Boeing to pay $7.3 million in monetary relief to the class, less reversions and an optout credit, and releases Boeing from race discrimination-related claims, and awarded the class lawyers $4.05 million in attorneys' fees;  however, the USCA agreed with the objectors that the district court should not have approved the settlement agreement under Fed. R. Civ. P. 23(e), because of several considerations relating to the award of attorneys' fees and because of the structure of the damages payments established by the decree;  parties to a class action may not include in a settlement agreement an amount of attorneys' fees measured as a percentage of an actual or putative common fund created for the benefit of the class;  rather the class lawyers must petition the court for an award of fees separate from and subsequent to settlement;  dissenting, Judge Trott thought that the majority's decision was driven by three concerns having no foundation in fact or law:  1) the "possibility" that class counsel could have betrayed their clients in favor of their own fees;  2) that the "large differential" in the distribution of monetary awards between class representatives and certain identified class members, on one hand, and unnamed class members on the other, indicates "something rotten in Denmark";  and 3), that the district court inflated the $3.65 million value attached to the "largely precatory" injunctive relief.  Lay, Trott (dissenting), and Berzon (author), Circuit Judges.  A. Epstein of Philadelphia, PA, for the plaintiffs-objectors-appellants;  B. Harrell of Seattle, WA, for the plaintiffs-appellees;  C. Weirich of Atlanta, GA, for the defendants-appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

21)  AMERICANS WITH DISABILITIES ACT:  Thomas v. Nakatani, 01-16310 (9th Cir. Nov. 6, 2002).  Hawaii appealed the district court's denial of its motion to dismiss the plaintiff's Americans with Disabilities Act claims on sovereign immunity grounds;  the holding of Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, that a court of appeals has jurisdiction over a district court's non-final order denying a state's Eleventh Amendment immunity claim under the collateral order doctrine, applies whether or not a claim brought under Ex Parte Young, 209 US 123 (1908), survives the motion stage of litigation;  the USCA thus had jurisdiction to hear this appeal.  Wallace (author), Tashima, and Tallman, Circuit Judges.  M. Kirk of Washington, DC, for the defendants-appellants;  M. Lilly of Honolulu, HI, for the plaintiff-appellee; J. Silver of Washington, DC, for the intervenor. (Download the full text of this decision at www.cc9.uscourts.gov/)

22)  PROPERTY / TRUTH-IN-LENDING ACT:  Miguel v. Country Funding Corp., 00-17338 (9th Cir. Nov. 4, 2002).  The district court lacked subject matter jurisdiction in a Truth-in-Lending Act action brought by a plaintiff seeking to dissolve a $520,000 mortgage on her residence, where the plaintiff's right to rescind had expired because she failed to attempt to rescind against the proper entity within the three-year limitation period specified by 15 USC Sec. 1635(f), a statute of repose.  Wallace (author), Tashima, and Tallman, Circuit Judges.  G. Dubin of Honolulu, HI, for the plaintiff-appellant/appellee and real-party-in-interest;  D. Miller and P. Leas of Honolulu, HI, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

23)  ELECTION LAW :  Federal Election Commission v. Toledano, 01-56762 (9th Cir. Nov. 7, 2002).  The conduct of a political party's local committee chairman violated Sec. 432(b)(1) of the Federal Election Campaign Act, which requires any recipient of a contribution in excess of $50 for a political committee to forward the contribution and donor information to the committee's treasurer or designated agent within 10 days of receipt.  Kozinski (author) and Fernandez, Circuit Judges, and King District Judge.  J. Toledano pro se;  V. Clair of Washington, DC, for the plaintiff-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

24)  FOREIGN CHILD CUSTODY AGREEMENTS :  Gonzalez v. Gutierrez, 02-55079 (9th Cir. Nov. 20, 2002).  Following Croll v. Croll, 229 F.3d 133 (2nd Cir. 2000), the USCA held that a ne exeat clause contained in a foreign custody agreement (forbidding a person to leave a country, state, or jurisdiction and intended to benefit a non-custodial parent who has access and/or visitation rights) does not constitute a "right of custody" for that parent under the Hague Convention on Civil Aspects of International Child Abduction.  Reinhardt (author), Trott, and Tashima, Circuit Judges.  R. Thompson of San Diego, CA, for the appellant;  V. Mordey of Chula Vista, CA, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

25)  FIRST AMENDMENTS / RALLIES & PARADES:  Lawson v. City of Santa Barbara, 01-56150 (9th Cir. Nov. 13, 2002).  The plaintiffs' challenge to a city's rally and parade permit scheme did not present a live controversy as a successful event had already been staged, and the capable-of-repetition doctrine did not apply;  while the plaintiffs will have to apply for event permits in every future year they intend to stage their event, they will have up to a year in advance of the event to acquire all necessary permits and the regulations require the city to make a final decision on permit applications within 18 days after receiving a completed application.  Wallace, Kozinski, and Paez, Circuit Judges. Per Curiam.  G. Gaynor of Santa Barbara, CA, for the appellants;  J. McGinnis of Santa Barbara, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

26)  DETAINEES / WAR ON TERRORISM:  Coalition of Clergy, Lawyers & Professors v. Bush, 02-55367 (9th Cir. Nov. 18, 2002).  A coalition of clergy, lawyers, and professors lacked next-friend and third party standing to bring a habeas petition on behalf of persons captured in Afghanistan and detained by the US, but the district court lacked jurisdiction to decide that neither it nor any other federal court could properly hear detainee habeas claims;  concurring, Judge Berzon agreed with the result reached by the majority, but wrote separately because she did not believe that the majority needed to address whether next friend standing always requires a significant relationship; however, if that issue had to be addressed, she would be inclined to hold that a significant relationship is not always necessary.  Noonan, Wardlaw (author), and Berzon (concurring), Circuit Judges.  S. Yagman and E. Chemerinsky of Venice Beach, CA, for the appellant;  AAG R. McCallum for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

27)  IMMIGRATION LAW:  Doan v. INS, 01-56784 (9th Cir. Nov. 27, 2002).  Doan, a Vietnamese national, was ordered removed to Vietnam due to his two felony convictions, but Vietnam refused to take him back;  unable to hold him indefinitely, the INS released him but imposed as a condition on his release the posting of a $10,000 bond;  the USCA held that although 8 USC Secs. 1231(a) and (6), the release statute, does not expressly authorize a bond, it does not prohibit such a condition.  Schroeder (author) and W. Fletcher, Circuit Judges, and Weiner, District Judge.  T. Burns of San Diego, CA, for the petitioner-appellant;  S. Bettwy of San Diego, CA, respondent-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

28)  IMMIGRATION LAW:  Cano-Merida v. INS, 00-71423 (9th Cir. Nov. 22, 2002).  The petitioner, a pro se asylum applicant, was denied a meaningful opportunity to present his application, as required under the Fifth Amendment's due process guarantee in deportation proceedings, where the immigration judge went off the record to tell him that he thought he had no basis for an asylum claim and pressured him to drop the claim before any significant exploration of the relevant facts;  in addition, the immigration judge failed to discuss with the applicant his option to appeal, and assumed that the applicant would not appeal;  however, while remanding to the BIA with instructions to order that the petitioner be granted a new hearing before the immigration judge, the USCA held that the BIA did not abuse its discretion in denying the petitioner's motion to reopen to allow him to seek relief under the Convention Against Torture.  Reinhardt, Trott (author), and Silverman, Circuit Judges.  S. Folinsky of Los Angeles, CA, for the petitioner;  J. McAdams of Washing-ton, DC, for the respondent.(Download the full text of this decision at www.cc9.uscourts.gov/)

29)  IMMIGRATION LAW:  Espejo v. INS, 01-71568 (9th Cir. Nov. 22, 2002).  The foreign residence requirement of Immigration and Nationality Act Sec. 212(e) applies to a non-immigrant exchange visitor who obtained an exchange visa by fraud;  the foreign residence requirement mandates that persons admitted under an exchange visa return to their country of citizenship for two years after completing the exchange program before they become eligible for any adjustment of status.  Canby, Gould (author), and Berzon, Circuit Judges.  S. Rodriguez of Sherman Oaks, CA, for the petitioner;  R. McCallum of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

30)  IMMIGRATION LAW / UNLAWFUL REENTRY:  USA v. Gonzales-Tamariz, 00-10542 (9th Cir. Nov. 18, 2002).  A Nevada conviction for battery causing substantial bodily harm, even when classified as a gross misdemeanor under state law, constitutes an "aggravated felony" under federal sentencing law, 8 USC Sec. 1101(a)(43), justifying a sixteen-level enhancement after conviction for reentry after deportation;  dissenting, Judge Berzon thought that there was no case in this Circuit holding that a crime for which the maximum sentence is one year, rather than more than a year, can be an aggravated felony under Sec. 1101(a)(43); she did not think the Circuit should so hold now.  Hall, (author), Wardlaw, and Berzon (dissenting), Circuit Judges.  AUSA R. Rachow of Reno, NV, for the plaintiff-appellee;  D. Gish of Reno, NV, for the defendant-appellant. (Download the full text of this decision at www.cc9.uscourts.gov/)
 

31)  IMMIGRATION LAW:  Servin-Espinoza v. Ashcroft, 01-16225 (9th Cir. Nov. 5, 2002).  Applying Sec. 440(d) of the Anti-Terrorism and Effective Death Penalty Act of 1996, which bars discretionary relief under former Sec. 212(c) of the Immigration and Nationality Act, against deportable aliens but not also excludable aliens violates the equal protection component of  the Due Process Clause during the time period between In re Fuentes-Campos, 21 I&N Dec. 905 (BIA 1997), and USA v. Estrada-Torres, 179 F.3d 776 (9th Cir. 1999). Thompson, W. Fletcher (author), and Berzon, Circuit Judges.  J. Bennett of El Cerrito, CA, for the petitioner-appellee;  D. Keener of Washington, DC, for the respondents-appellants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

32)  ALIEN SMUGGLING:  USA v. Sierra-Velasquez, 00-50749 (9th Cir. Nov. 22, 2002).  The defendants' participation in an illegal alien smuggling operation, during which they brutally detained aliens against their will while demanding payment fees, constituted "hostagetaking" within the meaning of 18 USC Sec. 1203(a).  Schroeder (author) and W. Fletcher, Circuit Judges, and Weiner, District Judge.  AUSA T. Wilkison of Los Angeles, CA, for the plaintiff;  R. Ramsey of Los Angeles, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

33)  EVIDENCE / EXPERTS:  USA v. Seschillie, 01-10147 (9th Cir. Nov. 21, 2002).  The district court did not err in refusing to let the defendant's expert testify as to the possibility that the defendant's gun accidentally discharged five times;  excluding that expert from the courtroom when the victims testified regarding the details of various struggles with the defendant for control of his gun was improper, but harmless;  because the expert had ample opportunity to familiarize himself with the general circumstances of the case and was not allowed to comment on any particular facts, the USCA failed to see how his exclusion from the courtroom prejudiced the defendant.  Sneed, Hug, and Berzon (author), Circuit Judges. AFPD. K. Wilkinson of Phoenix, AZ, for the defendant;  AUSA J. Welty of Phoenix, AZ, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

34)  SEXUAL MOLESTATION:  Franklin v. Fox, 01-15052 (9th Cir. Nov. 27, 2002).  Police detectives were entitled to qualified immunity from 42 USC Sec. 1983 claims that alleged they conspired with a witness to arrest the plaintiff without probable cause, where the detectives possessed sufficient evidence to permit a reasonable officer to conclude that probable causes existed to arrest the plaintiff;  on the motion for summary judgment, the plaintiff failed to prove that there existed a genuine issue of material fact that could lead a reasonable jury to conclude that the plaintiff's daughter conspired with the detectives to have the plaintiff arrested without probable cause;  the daughter did not act under color of state law and was not the proximate cause of any injury sustained by her father as a result of the actions of state officials;  she thus was not liable to her father under Sec. 1983.  B. Fletcher (author), Boochever, and Fisher, Circuit Judges.  D. Riordan of San Francisco, CA, for the plaintiff-appellant;  J. Wagstaffe of San Francisco, CA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

35)  SEXUAL CONTACT WITH MINOR:  USA v. Neil, 01-50459 (9th Cir. Nov. 20, 2002).  The USCA affirmed Neil's conviction for sexual contact with a minor in violation of 18 USC Sec. 2244(a)(3)(1994);  the USCA rejected Neil's contention that the USCA lacked extra-territorial jurisdiction over the crime which took place on a cruse ship in Mexican territorial waters;  Under Sec. 2244(a)(3), the United States has extraterritorial jurisdiction over a sexual molestation crime committed by a foreign defendant employed on a cruise ship that departed from and returned to an American port.  Schroeder and W. Fletcher (author), Circuit Judges, and Weiner, District Judge.  M. Evans of Torrance, CA, for the appellant;  AUSA J. Gordon of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

36)  PLEA AGREEMENTS:  USA v. Franco-Lopez, 00-50422 (9th Cir. Nov. 27, 2002).  Following the defendant's guilty plea to marijuana possession with intent to distribute charges, the government breached the plea agreement by recommending against a "safety valve" departure without an independent finding by the Probation Department that the safety valve was not applicable because the defendant was eligible for an "organizer" role enhancement;  however, the USCA held that the appropriate remedy for the government's breach, if any, could only be determined after further proceedings on remand.  Wardlaw and Berzon (author), Circuit Judges, and Ishii, District Judge.  J. Rudolph of San Diego, CA, for the defendant-appellant;  AUSA R. Bunker of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

37)  SENTENCING:  USA v. Hosoi, 01-10604 (9th Cir. Nov. 22, 2002).  The district court erred in sentencing the defendant to a term less than the mandatory minimum required by 21 USC Sec. 841(b)(1)(A);  USA v. Buckland, 289 F.3d 558 (9th Cir 2002) (en banc), upheld the constitutionality of Sec. 841(b)(1)(A);  as Buckland applies retroactively, the USCA remanded for resentencing.  Schroeder, Alarcon, and Fisher, Circuit Judges. Per Curiam.  AUSA C. Thomas for the plaintiff;  M. Breiner of Honolulu, HI, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

38)  SENTENCING:  USA v. Ochoa, 01-50324 (9th Cir. Nov. 21, 2002).  U.S.S.G. Sec. 5G1.1(c) provides that sentencing courts may not apply sentence enhancements provisions such as Sec. 1B1.3 so as to raise the defendant's sentence beyond the statutory maximum for the underlying offense;   Sec. 1B1.3 is thus not unconstitutional under Apprendi v. New Jersey, 530 US 466 (2000);  in the instant case, Apprendi did not apply to the appellant's 87-month sentence because that sentence was substantially less than the 40-year statutory maximum for his offense of conviction.  Hug, Brunetti (author), and O'Scannlain, Circuit Judges. M. Araujo of Riverside, CA, for the appellant;  AUSA B. Hoffstadt of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

39)  SENTENCING / PLEA AGREEMENTS:  USA v. Benitez, 00-50181 (9th Cir. Nov. 25, 2002).  The defendant's conviction, entered upon a plea of guilty, and his 120 month sentenced for conspiracy to possess with intent to distribute methamphetamine in violation of 21 USC Sec. 846, were reversed because the district court failed to comply with Fed. R. Crim. P. 11(e)(2) by not informing him he could not withdraw his written type (B) guilty plea if the court did not accept the sentencing recommendation set forth in the plea agreement;  the error was plain error which affected the defendant's substantial rights and failure to correct the error would result in a miscarriage of justice;  dissenting, Judge Tallman thought that, considering the cumulative effect of the defendant's signed plea agreement and the questions posed to him during the plea colloquy, no plain error attended his conviction and sentence;  Judge Tallman thus thought the district court should have been affirmed.  Browning (author), Reinhardt, and Tallman (dissenting), Circuit Judges.  M. Mossman of Santa Barbara, CA, for the defendant-appellant;  AUSA J. Hueston of Santa Ana, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

40)  MANDATORY RESTITUTION:  USA v. Hackett, 01-30360 (9th Cir. Nov. 26, 2002).  Following de novo review, the USCA upheld a district court's order of restitution for property damage caused by a fire that resulted from the operation of a methamphetamine laboratory; the district court properly applied 21 USC Sec. 853(q)(3) in ordering restitution for property damage caused by a fire that resulted from operation of a methamphetamine laboratory, without considering the defendant's ability to pay.  Reavley (author), Kozinski, and W. Fletcher, Circuit Judges. J. Finer of Spokane, WA, for the appellant; AUSA J. Harrington of Spokane, WA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

41)  SUPERVISED RELEASE REVOCATION:  USA v. Ortega-Brito, 02-50114 (9th Cir. Nov. 26, 2002).  The USCA affirmed a district court's judgment imposing a prison term following the revocation of a releasee's supervised release due to his violation of the conditions of his release;  where a releasee has received actual notice of the conditions of his supervised release, failure to provide written notice of those conditions in violation of 18 USC Secs. 3583(f) or 3603(1) does not automatically invalidate the revocation of his release based upon a violation of those conditions.  Bright, Goodwin (author), and Tashima, Circuit Judges.  M. Anderson of San Diego, CA, for the defendant-appellant;  AUSA L. Rodriguez of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

42)  HABEAS CORPUS:  Holgerson v. Knowles, 01-15804 (9th Cir. Nov. 5, 2002).  The USCA rejected a habeas petitioner's contention that California's decision to count his out-of-state convictions as strikes under California's three strikes law denied him due process;  the petitioner's contention that due process bars judicial after-the-fact increases in punishment as well as after-the-fact increases in the scope of criminal liability has not been clearly established by the U.S. Supreme Court.  Wallace (author), Kozinski, and Paez, Circuit Judges.  M. Shenfield of San Francisco, CA, for the petitioner;  DAG C. Rivlin of San Francisco, CA, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

 1)  TAXATION / SOVEREIGN IMMUNITY:  Dain v. Taira, 02-55027 (9th Cir. Nov. 21, 2002) (unpublished).  Reinhardt, Rymer, and Silverman, Circuit Judges.
          Dain appealed pro se the district court's dismissal of his action against several IRS employees and its denial of his motion for reconsideration.  The USCA affirmed, concluding that the district court properly held that sovereign immunity barred Dain's action as his complaint brought claims against federal employees for actions taken within the scope of their employment.  The USCA rejected Dain's contention that only a jury can decide the issue of sovereign immunity, citing Fed. R. Civ. P. 12(b)(1) and Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). The USCA also rejected Dain's contention that the IRS agents were required to answer the complaint before filing their motion to dismiss.  Finally, it held that the district court properly denied Dain's motion for reconsideration because he could have presented his arguments and evidence earlier in the litigation.  Moreover, his arguments lacked merit.

2)  TAXATION / SANCTIONS:  Corcoran v. CIR, 02-71577 (9th Cir. Nov. 12, 2002) (unpublished).  Sneed, Skopil, and Farris, Circuit Judges.
          Corcoran appealed the Tax Court's determination of an income tax deficiency and the imposition of penalties and sanctions.  He maintained that income earned by U.S. citizens within the U.S. is not gross income subject to federal taxation.  Specifically, he argued that the wages, unemployment compensation, and interest he received were not taxable income. However, the USCA noted that this contention had no basis in the tax code and was legally frivolous.  "Gross income" is defined very broadly as "all income from whatever source derived."  26 USC Sec. 61(a).  The USCA also found no merit in Corcoran's contention that he was denied his administrative due process rights or that his notice of deficiency was invalid.  It cited Wilcox v. CIR, 848 F.2d 1007, 1008 (9th Cir. 1988) ("Failing to provide a taxpayer with an administrative fact finding hearing does not violate due process."), and Kantor v. CIR, 998 F.2d 1514, 1521 (9th Cir. 1993) ("We will not look behind a deficiency notice to question the … procedures leading to a determination.")  Finally, the USCA upheld the imposition of sanctions.  A Tax Court is entitled to impose a penalty on a taxpayer for maintaining a proceeding primarily for delay or for bringing a frivolous and groundless action.  Larsen v. CIR, 765 F.2d 939, 941 (9th Cir. 1985).

3)  TAXATION / FALSE RETURNS:  USA v. Bailey, 01-10667 (9th Cir. Nov. 4, 2002) (unpublished).  Tashima, Thomas, and Paez, Circuit Judges.
           Bailey appealed his conviction following a guilty plea, pursuant to a plea agreement, to one count of filing a false tax return in violation of 26 USC Sec. 7206(1).  The USCA affirmed.  Bailey maintained that the district court erred in denying his motion to withdraw his guilty plea before sentencing.  A district court may permit withdrawal of a guilty plea prior to sentencing upon a showing by the defendant of any fair and just reason.  Fed. R. Crim P. 32(d).  But, a defendant has no absolute right to withdraw his guilty plea.  Rather, a motion to withdraw is committed to the sound discretion of the district court.  Although Bailey testified at the evidentiary hearing on the motion that he was actually innocent, the district court found this testimony not credible.  Because the district court found the facts against Bailey, and those findings were not clearly erroneous, the USCA concluded that the district court did not abuse its discretion in denying Bailey's motion to withdraw his plea based on a claim of actual innocence.  Bailey also maintained that the district court erred in rejecting his claim that a fee dispute with his attorneys created a conflict of interest and resulted in ineffective assistance of counsel.  However, the USCA noted that, when a defendant claims ineffective assistance based on a conflict of interest, he must establish that "an actual conflict of interest adversely affected his lawyer's performance. Cuyler v. Sullivan, 446 US 335, 348 (1980).  Bailey presented no evidence that his attorneys were not prepared to defend Bailey vigorously at trial.  The USCA thus concluded that Bailey had not carried his burden of showing that the fee dispute with his attorneys adversely affected his representation.  The district court's denial of Bailey's motion to withdraw his guilty plea was thus not an abuse of discretion.

4)  ENVIRONMENTAL LAW:  Santa Teresa Citizen Action Group v. EAB, 01-71611 (9th Cir. Nov. 21, 2002) (unpublished).  B. Fletcher, Rawlinson, and Clifton, Circuit Judges.
            The Environmental Appeals Board ("EAB") did not abuse its discretion in denying Santa Teresa's petition for review of a "federal prevention of significant deterioration" permit ("permit") issued by the Bay Area Quality Management District ("District") pursuant to Sec. 165 of the Clean Air Act.
            After the close of the comment period and prior to its issuance of the final permit, the District nonetheless responded to further comment and criticism by undertaking a top-down analysis of the best available control technology ("BACT"), an analysis the petitioners sought.  In addition, the EAB responded fully to Santa Teresa's challenge to the BACT analysis.  The USCA thus concluded that Santa Teresa failed to demonstrate that its comments did not have full consideration by both the District and the EAB or that it was prejudiced by the District's failure to reopen the comment period.  The USCA deferred to the EAB's expertise in its reasonable resolution of scientific and technical matters.  The EAB did not abuse its discretion when it determined that the District properly based its BACT analysis upon generally accepted emissions limits.  Finally, the EAB did not abuse its discretion in refusing to exercise jurisdiction over Santa Teresa's California Environmental Quality Act ("CEQA") claims.  Consistent with its prior decision, the EAB properly concluded that CEQA was a matter of state law inapplicable to its review of the federal permit.

 5)  RICO / SUPREMACY CLAUSE:  Powell v. Alleghany Corp., 01-56599 (9th Cir. Nov. 27, 2002) (unpublished).  Reinhardt, Rymer, and Silverman, Circuit Judges.
         Powell appealed a district court order dismissing her action alleging RICO violations by insurance and title companies involved in a court-ordered escrow and sale of her property.  The USCA affirmed.  Powell's claims were the subject of two prior state actions, as well as a federal complaint which was the subject of an appeal to the Ninth Circuit.  The district court correctly determined that her complaint was barred by res judicata:  the claims relate to the same "primary right" asserted in the prior actions;  the prior judgments were final and on the merits; and the plaintiff was a party or in privity with a party in the prior actions.  Powell's contention that granting preclusive effect to a state court decision violates the Supremacy Clause lacked merit.  The district court did not abuse its discretion in designating Powell a vexatious litigant as she received adequate notice to oppose the motion, the district court recounted and made substantive findings as to the frivolous nature of her filings, and the order was narrowly tailored to remedy Powell's particular abuses.

6)  CONTRACTS:  Cable & Computer Technology v. Lockheed Sanders, 01-56722 (9th Cir. Nov. 27, 2002) (unpublished). Canby, Noonan, and W. Fletcher, Circuit Judges.
            The defendants, Lockheed Sanders, Lockheed Martin, and Lockheed Martin Federal Systems, appealed portions of a district court order affirming contract and tort damages in relation to a B-1B upgrade contract and affirming a punitive damage award.  Cable & Computer Technology ("CCT") appealed the order's reduction of the jury's damage award.
           The USCA affirmed.  This case reached the Ninth Circuit following trial after an earlier decision in Cable & Computer Technology v. Lockheed Sanders, 214 F.3d 1030 (9th Cir. 2000).  No new issue of law was raised by the appeal.  A jury determined that Sand-ers, a subsidiary of Lockheed, entered into a contract with CCT to team in making a bid to Boeing for the computer upgrade on the B-1B bomber project.  That contract was not an agreement to agree; it was found by the district court to have "no missing terms." In the course of the contract Sanders supplied information on CCT's pricing to Owego, another Lockheed subsidiary also bidding on the Boeing project.  Less than two weeks before the bid was due, Sanders broke its contract with CCT, leaving it without a partner or time to find one.  Owego won the contract.  Faced with these facts and the testimony of Woodruff as to how Lockheed had worked for this result, the jury found the defendants liable for breach of contract and for substantial compensatory damages.  The district court reduced the damages because they included losses on two addition contracts CCT maintained it would have won if it had been successful on the B-1B bid.  The USCA agreed that these damages were too speculative. 
           Lockheed appealed the damages approved by the district court, arguing that CCT was just a disappointed bidder who should recover no more than the expenses incurred in its reliance on Sanders.  However, CCT was not a disappointed bidder but a disappointed party to a contract entitled to full compensation for its breach.  The jury also found the defendants liable for interference with CCT's prospective economic advantage.  The defendants argued that Sanders was not "a stranger" to the relationship promising the advantage.  However, the district court determined that the prospective relation was one that CCT would have enjoyed with Boeing.  Although Sanders would have been benefited, it was a stranger in the sense used by the California cases;  it was not only the contract with CCT that Sanders breached;  Sanders also interfered with what CCT would have gained from winning.  As the district court concluded, sufficient evidence existed of "independent wrongfulness" beyond the breach of contract to satisfy Della Penna v. Toyota Motor Sales, 11 Cal. 4th 376, 393 (1995).  As the jury found, Sanders conspired with Owego to thwart CCT.
           The jury also found the defendants liable for fraud.  They moved for judgment notwithstanding the verdict.  The district court denied the motion, noting that the Woodruff declaration was sufficient to support the finding and adding:  "CCT adduced evidence relating to Sanders' conduct following the articulation of its promise to CCT.  For instance, CCT advanced evidence of conduct and statements by Dr. Ehtisham Siddiquit tending to show that he never intended for Sanders to actually team with CCT.  CCT also introduced evidence indicating that Sanders' agents maneuvered within Lockheed to position Sanders so that it might lead a unified Lockheed bid.  Such evidence tends to show that Sanders' promise to CCT was false at the time that it was made.  Such circumstantial evidence is an accepted means of showing fraudulent intent.  See Tenzer v. Superscope, 39 Cal. 3d 18, 30 (1985)."  Significantly, the defendants do not appeal the fraud verdict and the district court's denial of their motion.
         The defendants in their present brief attacked the jury-awarded punitives of $25,735,000 against each of the two Lockheed subsidiaries, characterizing them as "gigantic" and out of line with punitive awards in California.  But the district court had already reduced the  punitives to $12.8 million against Sanders and the same amount against Owego.  The ratio of the punitives to compensatory damages was 5 to 1.  The fraud itself was gigantic.  The defendants excuse that they caused "only economic" damage was cynical.  The great corporate frauds disclosed in the past year caused "only economic" damage.  They were nonetheless reprehensible, as was the conduct of Lockheed officers here.  Add the net worth of Lockheed ($7 billion) and the damage done by it to its former partner CCT, and the punitives are deserved. The award was clearly constitutional under BMW v. Gore, 517 US 559 (1996).

7)  CONTRACTS:  Smith v. Allstate Insurance Co., 01-55175 (9th Cir. Nov. 27, 2002) (unpublished).  Bright, Goodwin, and Tashima, Circuit Judges.
           Joseph Welle, as personal representative and heir for decedents Violet Smith and Maxine Welle (together "Smith") appealed a district court's order denying Smith's motion for a new trial following a jury verdict awarding Smith $20,000 in compensatory damages.  Smith brought suit against Allstate Insurance Company seeking compensatory and punitive damages of $136,000, stemming from All-state's use of fraudulent engineering reports in assessing damage to Smith's home following the 1994 Northridge earthquake.  Smith maintained that the district court abused its discretion in excluding documents and witnesses that would have established a "pattern and practice" of bad faith by Allstate.  The USCA agreed and reversed and remanded for further proceedings.
           Allstate argued that, because the jury awarded Smith $20,000 in compensatory damages, Smith is not an "aggrieved" party and thus lacks standing to appeal.  However, the USCA found that the district court's exclusion of evidence tending to show that Allstate knew about the fraudulent engineering reports and did nothing about it sufficiently "aggrieved" Smith for purposes of standing to appeal.  Smith argued that the district court abused its discretion in excluding evidence intended to show that Allstate had engaged in a pattern and practice of fraudulent behavior in its handling of the bogus engineering reports.  Allstate echoed the district court's reasoning in excluding this evidence, contending that the documents and testimonial evidence were irrelevant and cumulative because they post-dated the closure of, and did not relate specifically to, Smith's claim.  However, the USCA found that these arguments misconstrued the nature and scope of the insurer's duty of good faith, as well as the role of punitive damages in remedying patterns of unfair practices.  It is axiomatic that an insurer must fairly investigate a claim and that it breaches the covenant of good faith and fair dealing if it settles a claim without conducting an adequate investigation.  Frommoethelydo v. Fire Ins. Exch,. 721 P.2d 41 (Cal. 1989), applied this rule in holding that an insurer breaches the covenant of good faith if it obtains information calling into question the adequacy of a previous investigation and subsequently fails to reinvestigate that claim.  Id. at 48  Allstate attempted to distinguish From-moethelydo on the ground that there the insured specifically requested reconsideration of his claim based on information provided by the insured.  Id. at 44. But the controlling question is not how the insurer obtained the information, but simply if the insurer "was advised" of new information calling into question the adequacy of a previous investigation.  Indeed, the covenant of good faith and fair dealing, which arises implicitly from the contractual relationship existing between the parties, remains in force for the duration of that contractual relationship.  Post-claim evidence is thus relevant because 1) Allstate remained contractually bound by the duty of good faith fairly to investigate the 1994 Northridge claims, and 2) Smith's proffered evidence tended to show that Allstate knowingly shirked this duty, not only to Smith, but to numerous other Allstate insured.  Moreover, because "the elements of punitive damages may be suggested by a pattern of unfair practices," Colonial Life & Accident Ins. Co. v. Superior Court, 647 P.2d 86, 90 (Cal. 1982), the district court abused its discretion in excluding evidence not directly related to Smith's claim.  Evidence not directly related to Smith's claim is still relevant and admissible provided it tends to establish Allstate's pattern of unfair practices in handling the fraudulent engineering reports.
         Allstate argued that the post-claim evidence does not show that Allstate had an "established" policy and practice with respect to the unlawful reports, as required by Mock v. Mich. Miller Mut. Ins. Co., 5 Cal. Rptr. 2d 594, 608 (Ct. App. 1992).  Yet, Allstate's response to the revelation that settlement of hundreds of its claims was based on fraudulent engineering reports could represent "a consistent and unremedied pattern of egregious" behavior warranting the imposition of punitive damages. Patrick v. Md. Cas. Co., 267 Cal. Rptr. 24, 31 (Ct. App. 1990).
          The USCA concluded that the district court abused its discretion in excluding all of the evidence regarding the post-claim events because the evidence suggests that Allstate breached the covenant of good faith and fair dealing by failing to revisit claims after learning that it had closed claims based on fraudulent information supplied to it by its own agents.  Specifically, evidence is relevant and admissible if it tends to show 1) that Allstate knew of the fraudulent reports; 2) that Allstate failed adequately to reinvestigate claims after learning of the fraudulent report; or 3) that, in so acting, Allstate breached the covenant of good faith and fair dealing.  The USCA thus vacated the district court's judgment, reversed the order denying Smith's motion for a new trial, and remanded for a new trial.

8)  INSURANCE:  Royce Intl. Broadcasting Corp. v. Vigilant Ins. Co., 01-56962 (9th Cir. Nov. 15, 2002) (unpublished). Pregerson, Noonan, and Tashima, Circuit Judges.
         Royce International Broadcasting Corporation and Edward Stolz (together "Royce") appealed from the district court's grant of summary judgment for defendant Vigilant Insurance Company on Royce's claim that Vigilant had the duty to defend it in a breach of contract action.  Royce maintained that the district court erred in holding that there was no potential for coverage in an underlying dispute in which Entercom Corporation sued Royce for failing to follow through with the sale of a radio station. 
           The USCA affirmed.  Royce maintained that the property damage in this case could have occurred without intent to cause any harm, but recent cases make clear that in determining whether conduct is "accidental" it is irrelevant whether the insured expected or intended the conduct to cause harm.  The negotiations for the sale of the radio station at issue here could not be engaged in by accident.  Stein-Brief Group, Inc. v. Home Indem. Co., 76 Cal. Rptr. 2d 3, 8 (Ct App. 1998) (Non-accidental acts arising out of a breach of contract do not constitute an "occurrence" within the meaning of a CGL policy.)  Because Royce was unable to meet its burden of establishing that the property damage arose out of an "occurrence" as defined by the Vigilant policy, the district court properly granted summary judgment in favor of Vigilant on Royce's property damage claim.  Royce also maintained that Vigilant had a duty to defend it in the Entercom action because the facts extrinsic to Entercom's complaint potentially give rise to a covered cause of action for slander or libel under the "personal injury" provision of the Vigilant policy. In California, however, once the plaintiff in the underlying action knowingly foregoes the opportunity to plead a claim, the underlying claim no longer raises a potential for liability covered by the policy.  Although Royce could have been sued for slander or libel, no potential liability flowed from the press release because Entercom elected not to make that claim.  Entercom filed its first amended complaint in December 1999, three months after the filing of the press release.  The amended complaint thus "conspicuously and carefully omits to allege any wrongdoing" with respect to the press release. Microtec Research v. Nationwide Mut. Ins. Co., 40 F.3d 968, 971 (9th Cir. 1994).  Moreover, Royce's attempt to distinguish Microtec on the ground that Entercom specifically said it was going to bring a defamation claim was unavailing.  Ninth Circuit cases construing California law turn on whether the underlying plaintiff could have made the claim but did not.  Royce's final contention was that because the policy required Vigilant to defend "claims" as well as "suits," Vigilant had a duty to defend Royce regardless of whether the underlying complaint was amended to include a claim for defamation because Entercom's own statement to the press threatening to sue Royce was a claim. California court, however, limit the term "claim" to "demand[s] for something as a right, or as due." Phoenix Ins. Co. v. Sukut Constr. Co., Inc., 186 Cal. Rptr. 513, 515 (Ct. App. 1982).  Royce provided no evidence that Entercom demanded payment or services for Royce's alleged "defamatory" remarks, or that it submitted a written claim for libel or slander.  As there was no potential for coverage under the Vigilant policy, the district court did not err in granting summary judgment in favor of Vigilant.

9)  INSURANCE:  Omega Products Corp. v. Liberty Mutual Ins. Co., 01-55818 (9th Cir. Nov. 1, 2002) (unpublished). Kleinfeld and Graber, Circuit Judges, and Bolton, District Judge.
          Omega Products manufactures building supplies, including Akroflex, an acrylic-based exterior coating used in residential and commercial construction.  Liberty Mutual Insurance Company issued Omega a commercial general liability (CGL) policy.  Omega sued ATCO. ATCO counterclaimed, alleging that Omega altered the Akroflex formula and improperly warranted and sold defective Akroflex to ATCO, which it in turn supplied to others.  Omega informed Liberty of the ATCO counterclaim, seeking coverage under the CGL policy.  Liberty denied coverage.  Omega sued Liberty in district court.  Eventually, the court dismissed Omega's Fourth Amended Complaint without further leave to amend.  Omega maintained that its allegations, if proved, would show that the information provided in its tenders of defense was sufficient to trigger Liberty's duty to defend.  Under California law, an insurer has a duty to defend its insured against all claims that potentially seek damages covered by the policy, even if no liability ultimately results from those claims.  In conducting the duty-to-defend analysis, the court considers "all facts known by the insurer at the inception of the third party lawsuit."  Barnett v. Fireman's Fund Ins. Co., 108 Cal. Rptr. 2d 657, 662 (Ct. App. 2001).  "The ultimate question is whether the facts alleged do fairly apprise the insurer that plaintiff is suing the insured upon an occurrence which, if his allegations are true, gives rise to liability of insurer to insured under the terms of the policy." Aim Ins. Co. v. Culcasi, 280 Cal. Rptr. 766, 770 (Ct. App. 1991).  "Any doubts as to whether the facts establish the existence of the defense duty must be resolved in the insured's favor."  Montrose Chem. Corp. of Cal. v. Superior Court, 861 P.2d 1153, 1160 (Cal. 1993).  Recently decided Anthem Electronics, Inc. v. Pacific Employers Insurance Co., 302 F.3d 1049, 1056 (9th Cir. 2002), noted that "insurers have a heavy burden when seeking summary judgment on the duty to defend.  … an insurer must defend its insured so long as the complaint at issue raises the possibility that the insured will be liable for losses covered by its policy.  Put starkly by the California Supreme Court, the insurers here are relieved of their duty to defend only if [the third party's] complaint "can by no conceivable theory raise a single issue which could bring it within the policy coverage." Montrose, 861 P.2d at 1160.
 The CGL policy contained an exclusion for "property damage to 'your product' arising out of it or any part of it."  That exclusion did not necessarily apply.  Liberty had the ATCO counterclaim, which was submitted with the tender of defense.  ATCO alleged that it had supplied Akroflex, purchased from Omega, to various building contractors and that those contractors experienced "catastrophic product failure of Akroflex."  As an example, ATCO alleged that "when Akroflex came into contact with water, the Akroflex finish immediately began to dissolve and peal off both surfaces."  To show that ATCO had suffered damages, it claimed that "contractors who have purchased Akroflex from ATCO have suffered catastrophic product failure with Akroflex and have made demand upon ATCO to be reimbursed for damages suffered as a result of the defective product."  Regarding the amount of damages, ATCO merely stated that it "suffered and sustained damages in an amount to be proven at trial."  Omega argued that other facts known to Liberty at the time of tender demonstrated the potential that ATCO was asserting a claim covered under the policy.  Omega relied on 15 earlier cases involving Akroflex delaminating from buildings after exposure to water.  It argued that Liberty acquires from those cases "actual and specialized knowledge" regarding the Akroflex product such that Liberty knew of the potential for damage to a building when its exterior coating dissolved.  Based on the underlying claim and extrinsic evidence available to Liberty at the time of tender, there was the potential that ATCO sought recovery for property damage separate from the damage to the Akroflex—that is, damage to buildings.  Liberty thus had a duty to defend until it could prove that there was no possibility that ATCO's claim might be covered.  Liberty also argued that the "impaired property" exclusion barred coverage.  The exception to the impaired property exclusion, however, required coverage when the loss of use arises out of a "sudden and accidental physical injury to [Omega's] product."  The delamination of Akroflex when in contact with water reasonably could turn out to be a "sudden and accidental physical injury" to the Akroflex product.  The impaired property exclusion thus did not support Liberty's claim of no potential for coverage.

10)  BANKRUPTCY / INSURANCE:  In re Shin, 01-55208 (9th Cir. Nov. 21, 2002) (unpublished).  Reinhardt, Rymer, and Silverman, Circuit Judges.
         Gris appealed a BAP's decision affirming a bankruptcy court's order sustaining the trustee's objection to Gris' amended proof of claim seeking fire insurance proceeds held by the trustee. Gris did not seek a stay pending appeal of the bankruptcy court's order disallowing Gris' amended claim, and it failed to object to, appeal, or seek a stay of the trustee's final report, the final fee applications filed by the court-approved professionals, or the bankruptcy court's order authorizing disbursement of the remaining funds.  As the funds were disbursed, the USCA ruled the appeal moot, citing In re Roberts Farms, 652 F.2d 793, 797098 (9th Cir. 1981) (dismissing appeal as moot when appellant neglected to obtain a stay pending appeal and the rights of third parties have intervened).

11)  BANKRUPTCY:  In re Shapero, 01-56028 (9th Cir. Nov. 22, 2002) (unpublished).  Schroeder and W. Fletcher, Circuit Judges, and Weiner, District Judge.
          Chapter 7 debtor Shapero appealed an order of the district court affirming a bankruptcy court's decision that Shapero could not exempt the benefits he would receive under a Special Executive Retirement Agreement (SERA) from his bankruptcy estate as an exempt retirement plan. 
          The USCA affirmed.  In exchange for his resignation as president and CEO of the City of Hope National Medical Center (COH), Shapero and COH executed a Settlement Agreement and Mutual Release ("Agreement").  Shapero's breach of this Agreement's confidentiality clause led to state court litigation where an arbitrator determined that Shapero owed COH $1.1 million.  The arbitrator excused COH from any further liabilities to pay the installments called for in the Agreement but found that COH had to pay Shapero's retirement benefits under the SERA, as well as reimbursements for certain tax consequences and life insurance policies. The arbitrator set off the reimbursements against the damages assessed against Shapero, leaving a net judgment for COH of $486,872.88 plus attorneys' fees.  When Shapero reached age 70, COH setoff the then present value of his SERA benefits against the outstanding judgment.    Shapero maintained that the bankruptcy court erred in ruling that when he executed a 1996 settlement, he agreed to cancellation of the SERA and waived all rights to it in exchange for substantial consideration. The USCA disagreed.  Applying California rules of contract interpretation, it was clear that Shapero waived all his rights under the SERA when he signed the Agreement, with the exception of SERA's payment term, which was incorporated into the new contract.  The Agreement did not merely amend and incorporate the substantive provisions of the SERA, as Shapero claimed.  It replaced SERA terms with a new agreement, which by its own terms show the parties' clear intent to constitute their entire agreement and which canceled and superceded any prior agreement between them.  Thus, other than the SERA payment term, the balance of the provisions of that contract were waived, including the anti-alienation provision upon which the bulk of Shapero's arguments were based.  Shapero also maintained that the arbitration award recognized the continued validity of the SERA.  However, the language of the arbitration decision upon which he relied supported the conclusion that the SERA provisions were superceded with the exception of the payment term.  The arbitrator found that "The SERA payments which are to start when Dr. Shapero attains age 70 are based on his prior employment and are not terminated, but incorporated in the settlement agreement."  If the arbitrator found that the entire SERA was incorporated, he presumably would have said so and not limited his conclusion to the payment term.  Because the anti-alienation provision was waived, Shapero's rights to the SERA payments were not exempt from his bankruptcy estate under 11 USC Sec. 541(c)(2), which provides that a restriction on the transfer of a beneficial interest of the debtor in a trust, that is enforceable under applicable non-bankruptcy law, is enforceable.  As the SERA was superceded by the Agreement, its anti-alienation provision was unenforceable under non-bankruptcy law.  The Agreement contained no anti-alienation provision and neither agreement created a trust.  Section 541(c)(2) thus did not apply to the SERA benefits and there was no error in the bankruptcy court's determination that they are not exempt from the bankruptcy estate.  The USCA also agreed that, under general principles of equity, COH was permitted to setoff the then present value of Shapero's SERA benefits—when they became non-contingent and payable when Shapero reached the ago of 70—against the remaining arbitration judgment still outstanding.  Other than the anti-alienation provision, Shapero pointed to no equitable consideration or risk of unfairness that would limit COH's ability to setoff the SERA payment against Shapero's outstanding judgment.

12)  BANKRUPTCY:  Mothershed v. Curley, 02-15109 (9th Cir. Nov. 22, 2002) (unpublished).  Reinhardt, Rymer, and Silverman, Circuit Judges.
         Mothershed appealed pro se a district court's rulings dismissing his action against U.S. Bankruptcy Judge Curley, and denying his motions for reconsideration.  The USCA affirmed.  Mothershed's contention that Judge Curley acted in absence of jurisdiction when she enforced an injunction issued by another bankruptcy judge lacked merit.  Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 809 (9th Cir. 1963) ("Each judge of a multi-judge district court has the same power and authority as each other judge.")  The district court properly ruled that Judge Curley is absolutely immune from suit.  In addition, the district court did not abuse its discretion in denying Mothershed's motion for reconsideration because he failed to show any basis for relief from judgment. 

13)  BANKRUPTCY:  In re McColm, 01-15905 (9th Cir. Nov. 22, 2002) (unpublished).  Reinhardt, Rymer, and Silverman, Circuit Judges.
         McColm appealed pro se the district court's order dismissing her appeals from orders of the bankruptcy court.  The USCA affirmed, noting that a trial court's dismissal should not be disturbed unless there is a definite and firm conviction that it committed a clear error of judgment in its conclusion upon a weighing of the relevant factors.  Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992).  The USCA thus concluded that the district court did not abuse its discretion in dismissing McColm's action for failing to comply with a local rule regarding the briefing schedule.  Ghazali v. Moran, 46 F.3d 52,53 (9th Cir. 1995) (Per Curiam).

14)  BANKRUPTCY:  In re Robertson, 01-35541 (9th Cir. Nov. 19, 2002) (unpublished).  Trott, T.G. Nelson, and Thomas, Circuit Judges.
            Robertson appealed a district court's order affirming a bankruptcy court's decision that appellee Ford had standing to object to the discharge at issue, and denying that discharge under 11 USC Secs. 727(a)(2) and (4) for making fraudulent transfer and false oaths.  The USCA affirmed.  The bankruptcy court found that Ford had standing as a third-party beneficiary.  Because Ford was not specifically mentioned in the contract between Robertson and Rustics of Lindbergh Lake, Inc. ("RLLI"), the bankruptcy court necessarily turned to extrinsic evidence to determine that he was an intended beneficiary.  When a district court uses extrinsic evidence to interpret a contract, the findings of fact are reviewed under the clearly erroneous standard, while the principles of contract law applied to those facts are reviewed de novo.  The bankruptcy court referred to numerous facts in support of its finding that Ford was an intended beneficiary.  Because those facts were sufficient to support the finding, the USCA said it could not overturn it on appeal.  Robertson argued that even if Ford were an intended beneficiary, Ford still had no claim because Robertson rescinded the contract due to RLLI's material breach.  However, the USCA agreed with the bankruptcy court that Robertson failed properly to rescind the contract under Mont. Code Ann. Sec. 28-2-1713.  The bankruptcy court noted Robertson's testimony that he offered to restore RLLI's property on the condition that he be compensated for all payments made toward the IRS lien, property taxes, and other monies he invested.  However, even if there were such an offer, Robertson's demands were conditioned upon receiving more from RLLI than he was entitled to under the contract.  Moreover, Robertson retained the property without paying its full price, and his only other interest in the property was that of a mortgage holder.
          In the main, Robertson did not dispute the facts underlying the bankruptcy court's conclusions that he made fraudulent transfers and false oaths.  Rather, he attempted to explain away the transfer as innocently made and the false statements as immaterial.  However, whether a debtor acts with intent to hinder, delay, or defraud creditors, is a finding reviewed for clear error.  Moreover, and importantly, the bankruptcy court found that neither Robertson nor his wife were credible witnesses.  It is well established that special deference is paid to a trial court's credibility finding.  The record as a whole, particular in light of the credibility finding, supported the bankruptcy court's inferences and findings that the deposits to Robertson's wife's business account were transfers made with intent to hinder, delay, or defraud his creditors.  Likewise, the bankruptcy court's findings that the false oaths were material as concealing the purpose of the transfer to the wife's account were also supported by the record and could not be overturned. 

15)  BANKRUPTCY:  In re Meyers, 01-35012 (9th Cir. Nov. 19, 2002) (unpublished).  Reavley, Kozinski, and W. Fletcher, Circuit Judges.
           Meyers maintained that the bankruptcy court erred by entering a judgment against him because Empire Wholesale Lumber Company's motion for summary judgment was denied before trial commenced.  The USCA affirmed, finding that Meyer's contention reflected a misunderstanding of the effect of a denial of a motion for summary judgment.  Summary judgment is only appropriate if there are no genuine issues of material fact. Fed. R. Civ. Pro. 56.  A denial of summary judgment is not a decision on the merits; it is simply a decision that a material issue of fact exists which requires trial.  The district court partially denied Empire's motion for summary judgment because it concluded that the question of Meyer's personal liability for the judgment against his corporation involved unresolved issues of material fact.  The district court did not reach the merits of Empire's claim;  it simply decided trial would be necessary to determine whether Meyers was personally liable for conversion by his corporation and whether judgment against Meyers would be dischargeable in bankruptcy.  After trial, the bankruptcy court determined that Meyers was personally liable and that the judgment was nondischargeable under 11 USC Sec. 523(a)(6).  The district court's denial of summary judgment and the bankruptcy court's judgment on the merits did not conflict.  None of Meyer's other assignments of error had any merit, and all were addressed by the BAP.  The USCA thus affirmed. Empire requested attorneys' fees and costs pursuant to Fed. R. Appellate Proc. 38.  However, although circumstances suggested that Meyers' appeal was frivolous, the USCA declined to award fees and double costs at this time.

16)  BANKRUPTCY:  In re Danney, 01-56426 (9th Cir. Nov. 12, 2002) (unpublished).  Wardlaw and Berzon, Circuit Judges, and Ishii, District Judge.
             Danney appealed a district court order which affirmed a bankruptcy court denial of his Motion for Contempt against Trans-america Home Loan.  He maintained that his second loan from Transamerica reaffirmed a discharged debt—Danney's first loan from Transamerica—which had been discharged in Danney's bankruptcy proceeding.  Danney filed a Motion for Contempt arguing that Transamerica violated the permanent discharge injunction entered after Danney's bankruptcy proceedings and that Danney's second loan was legally unenforceable because Transamerica failed to comply with the requirements for reaffirmation agreements under 11 USC Secs. 524(c) and (d).  It was not disputed that the requirements of Secs. 524(c) and (d) had not been met.  The crucial issue was whether Danney's second loan was an invalid reaffirmation agreement, as Danney maintained, or a valid post-discharge agreement, as Trans-america maintained.  Transamerica argued that it had the right to foreclose on Danney's home, a right that survived Danney's discharge from bankruptcy.  It further argued that its forbearance from foreclosing on Danney's home, along with other financial agreements with Danney, served as new consideration for the second loan, and thus was not a reaffirmation agreement.  However, the USCA noted that this argument was rejected in Renwick v. Bennett, 2002 WL 1784136 (9th Cir. Aug. 5, 2002) (the offer of new consideration for repayment of the discharged debt is inconsequential and the debtor's promise to pay a discharged debt was unenforceable).
Danney's second loan involved his agreement to pay a secured debt, Transamerica's lien on Danney's home, in exchange for Transamerica's forbearance in foreclosing on Danney's home. Danney thus assumed his pre-bankruptcy-discharge position—before the discharge he owed money to Transamerica for a loan that was secured by his home, and after the second loan, he also owed Trans-america money for a loan that was secured by his home.  As such, Danney's second loan constituted a reaffirmation agreement which failed to comply with the requirements of Secs. 524(c) and (d).  The USCA thus reversed the district court's denial of Danney's Motion for Contempt, and held that Danney's second loan with Transamerica constituted a reaffirmation agreement which failed to comply with Secs. 524(c) and (d).  The USCA remanded to the bankruptcy court with instructions to hold an evidentiary hearing to determine whether Transamerica was in contempt, and, if so, whether or not sanctions should be imposed against Transamerica.

17)  AMERICANS WITH DISABILITIES ACT:  Marlor v. Madison County, Idaho, 01-35966 (9th Cir. Nov. 14, 2002) (unpublished).  Trott, T.G. Nelson, and Thomas, Circuit Judges.
         Marlor appealed a district court order granting Madison County, Idaho summary judgment on Marlor's claims under the Americans With Disabilities Act, the Rehabilitation Act, and state negligence law.
           The USCA affirmed.  Marlor maintained that the Madison County jail's failure to provide him medical equipment (i.e., rubber crutch tips) violated the ADA.  To set forth an ADA claim, Marlow had to establish that he was excluded from participating in the jail's programs or activities because of his disability.  Inadequate medical care does not provide a basis for an ADA claim unless medical services are withheld by reason of a disability.  Marlow offered no comparison with other inmates' medical care to establish that he was denied access to medical supplies or treated differently by reason of his disability.  The only evidence he offered that he was denied access to the jail's program or activities was that he fell in the shower one time and did not go "out to rec … as much."  These statements were insufficient support for his claim that he was denied meaningful participation in jail activities.  Marlow used the shower facilities, took advantage of visiting privileges, used the library and participated in recreation.  Relief was not available to him under the ADA as he failed to raise a genuine issue of material fact that he was denied crutch tips or access to the jail's activities because of his disabilities.
 Under the Rehabilitation Act, Marlor had to show that the jail received federal financial assistance.  Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002).  His claim that the Rehabilitation Act does not require federal funding was without merit.  The Department of Justice summary that Marlor relies upon to support his claim specifically states that the regulation adopted implements subtitle A of title II of the ADA, not the Rehabilitation Act. 56 Fed. Reg. 35694 (July 26, 1991).  Marlow failed to meet the federal funding requirement as he did not show that the jail received federal financial assistance.  The district court thus properly granted the County summary judgment on Marlor's Rehabilitation Act claim.
          Marlow also alleged a statutory negligence claim based on Idaho Code Sec. 20-612 and a common law negligence claim.  The County is eligible for immunity under Idaho Code Sec. 6-904B, which provides that government employees acting without malice or criminal intent and without at least gross negligence "shall not be liable for any claim which … arises out of any act or omission providing or failing to provide medical care" to a County Jail inmate.  Marlor's crutches were prescribed by his doctor.  Crutches and their accessories are part of the treatment for Marlor's medical condition, paraplegia.  Section 6-904B applies to this type of "medical care" as well as to the County's alleged failure to provide proper medical attention, physical therapy, and prescriptions following Marlor's shower fall.  Marlor did not demonstrate that County employees acted with malice and at least gross negligence.  He claimed he "requested rubber end tips, of more than seven individuals, on more than seven to ten occasions," and the County took no action to correct the situation.  These claims were not sufficient to demonstrate that jail personnel intentionally committed a wrongful act with "ill will" and a "deliberate indifference to the harmful consequences" to Marlor, which is necessary to establish malice and gross negligence.  Summary judgment on the negligence claims was proper as Marlor failed to meet the requirements of Idaho Code Sec. 6-904B.
          Finally, Marlor claimed that the jail's shower was not ADA compliant.  The County's expert, Lynn, inspected the jail's shower seven times between February 1998 and October 2000, and found it "ADA compliant because it had adequate drainage, slip resistant floor tile, wheelchair access, and adequate seats and grab bars."  Marlor's expert, Kimbrough, did not dispute Lynn's opinion that the shower was ADA complaint.  He noted that the shower "may have passed ADA inspections performed by Mr. Lynn," but alleged that "the failure to provide rubber end pieces for crutches would cause slippage on the concrete surface of the jail and shower areas."  Kimbrough's assertion that jail personnel had "control over Marlor's actions" and "let the situation continue until a predictable slip and fall accident occurred" was irrelevant.  The Magistrate correctly noted that the "general claim of 'jail standards' involves the jail facility itself, and not the conduct of the jail personnel."  Summary judgment for the County was appropriate as no genuine issue of material fact existed regarding the shower's compliance with ADA standards.

18)  IMMIGRATION:  Ayed v. INS, 01-71447 (9th Cir. Nov. 15, 2002) (unpublished).  Bright, Goodwin, and Tashima, Circuit Judges.
         Contending that the Board of Immigration Appeals ("BIA") applied the stop-time rule under the Illegal Immigration Reform Act and Immigrant Responsibility Act of 1996 ("IIRIRA") in an unauthorized retroactive manner, Ayed petitioned for review of the BIA's denial of his application for suspension of deportation.  Because Ram v. INS, 243 F.3d 510 (9th Cir. 2001), makes it clear that application of the stop-time rule to Ayed was proper, given Congress' unambiguous intent to apply the rule retroactively, the USCA denied the petition for review.  In Ram, the INS served aliens with Orders to Show Cause ("OSC") in May 1988, charging them with being deportable.  The Immigration Judge ("IJ") found them deportable and denied their petitions for asylum and withholding of deportation.  After exhausting their administrative appeals, the aliens petitioned for review, and the USCA denied their petition on January 12, 1995.  Claim-ing that suspension of deportation was appropriate as they had attained seven years of continuous physical presence since their deportation proceedings had commenced, the aliens in Ram asked the BIA to reopen their deportation proceedings in November 1994 (while their first petition to the Ninth Circuit was pending) to apply for suspension of deportation.  When the BIA denied their motion for lack of extreme hardship, the aliens again petitioned for review to the Ninth Circuit.  In February 1997 (before IIRIRA took effect), the USCA reversed and remanded the BIA decision for further consideration of the evidence going to "extreme hardship."  Deciding the case on remand after IIRIRA's effective date, the BIA summarily denied the aliens' motion on the sole ground that they had not satisfied IIRIRA's new stop-time rule.  Id. at 512.  The aliens in Ram then petitioned the Ninth Circuit again for review, arguing that: 1) the stop-time rule did not apply to OSCs where an alien seeks suspension of deportation; and 2) the BIA's application of the stop-time rule was impermissible retroactive. The Circuit concluded that IIRIRA Sec. 309(c)(5)(A), as amended by the Nicaraguan Adjustment and Central American Relief Act of 1997, Sec. 203(a), generally applies the stop-time rule to transition rule aliens whose deportation proceedings are initiated with the service of an OSC and who seek suspension of deportation.  Id. at 516.  It also held that application of the stop-time rule to the aliens in Ram was not impermissible retroactive and did not violate due process, given Congress' unambiguous intent to apply that rule retroactively to cases heard by an IJ or on appeal after April 1, 1997.  Id. at 517-18
          The USCA noted that the fact presented here were not significantly distinct from those of Ram.  Ayed asserted continuous physical presence in the U.S. since September 1989.  On July 21, 1995, the INS served him with an OSC, charging him with being deportable for overstaying his visa.  Properly applying pre-IIRIRA law, the IJ denied his application for suspension of deportation on March 10, 1997 for lack of "extreme hardship."  Ayed appealed the IJ's decision to the BIA.  The BIA heard Ayed's case after IIRIRA's effective date.  As in Ram, IIRIRA's transitional rules govern because the INS had commenced deportation proceedings against Ayed before that date but no final order of deportation had been entered prior to October 30, 1996.  Also as in Ram, the BIA summarily denied the petition for suspension of deportation because the alien could not meet the seven-year continuous physical presence requirement under the stop-time rule, which prevented him from accruing time toward that requirement after he was served with the OSC on July 21, 1995.  Thus, under Ram, the BIA's application of the stop-time rule to Ayed did not violate due process.
 

19)  IMMIGRATION:  Rosales-Lira v. Ashcroft,01-71775 (9th Cir. Nov. 18, 2002) (unpublished).  McKeown and Paez, Circuit Judges, and Hamilton, District Judge.
           Rosales-Lira petitioned for review of a final order of the BIA denying his application for asylum and withholding of deportation pursuant to Sec. 208(a) and former Sec. 243(h) of the Immigration and Nationality Act, 8 USC Secs. 1158(a) and 1253(h).  Rosales-Lira maintained that he was persecuted by Guatemalan guerrillas on account of an imputed political opinion.  The BIA concluded that the guerrillas' behavior appeared to be motivated from their own desire to recruit rather than from any desire to persecute Rosales-Lira on account of his political opinion.  Based on its review of the record, the USCA concluded that substantial evidence supported the BIA's determination that Rosales-Lira did not meet his burden of establishing that he suffered from past persecution on account of an imputed political opinion or that he had a well-founded fear of future persecution. Because Rosales-Lira failed to establish his statutory eligibility for asylum, he also necessarily failed to satisfy the higher standard for withholding of deportation.

20)  IMMIGRATION:  Chen v. Ashcroft, 01-71443 (9th Cir. Nov. 19, 2002) (unpublished).  Schroeder, Alarcon, and Fisher, Circuit Judges.
            Chen petitioned for review of the denial of his motion to reopen his removal proceedings so that he could apply for asylum proceedings based on an alleged change in the conditions in the People's Republic of China ("China") that occurred after his application for asylum was denied.  The USCA concluded that the petition for review must be denied because Chen failed to submit affidavits or other evidentiary material to support his motion as required by 8 CFR Sec. 3.2(c).
            Chen arrived on Guam on January 30, 1999.  As he did not possess a valid entry document or labor certification issued by the Secretary of Labor, he was ordered to appear before an Immigration Judge ("IJ") to show why he should not be removed from the United States.  At his removal proceedings, he admitted that he did not have a valid entry document or labor certification and conceded that he was subject to removal.  On August 12, 1999, he filed an application for asylum and withholding of deportation, alleging a well-founded fear of persecution because he and his family had violated China's population control policies. Following a hearing, his application was denied on November 2, 1999.  The IJ ordered that Chen be removed to China.  Chen filed a timely appeal.  The BIA dismissed the appeal on May 24, 2000.  Chen did not filed with the Ninth Circuit a petition for review of the BIA's order of dismissal of the appeal from the order of removal.  On July 16, 2001, he filed a motion to reopen before the BIA based on changed circumstances.  His counsel alleged in the motion that Chen had become a follower of Zhong Gong, a Chinese religious group that China has banned.  The motion does not state that Chen feared persecution if removed to China.  The motion states:  "Supporting documents will be filed separately."  Chen did not file any affidavits or evidentiary material to support his motion.  The BIA denied the motion to reopen because it was untimely, and counsel's unsupported conclusion failed to "show materially changed circumstances in China." 
 C         hen maintained that the BIA abused its discretion in ruling that he failed to show materially changed circumstances in China.  A motion to reopen must be filed before the BIA within 90 days of a final order.  8 USC Sec. 1229a(c)(6)(C)(i), 8 CFR Sec. 3.2(c)(2).  The 90-day time limit is inapplicable to a motion to reopen to reapply for asylum based on changed circumstances arising in the country of nationality if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.  8 CFR 3.2(c)(3)(ii).  However, the USCA found that Chen failed to support his motion with evidence that would establish a prima facie case, and failed to support his motion to reopen "by affidavits or other evidentiary material," as required by 8 CFR Sec. 3.2(c)(1).  He attached materials to his brief concerning the treatment of Zhong Gong members in China.  However, these attachments were not presented to the BIA in support of the motion to reopen.  Circuit review is limited to the material submitted in support of the motion.  The BIA did not abuse its discretion in denying the motion to reopen as it was not supported by "affidavits or other evidentiary material."  Finally, relying on Watkins v. INS, 63 F.3d 844 (9th Cir. 1995), Chen maintained that the BIA abused its discretion by failing "to provide any explanation for its rejection of the motion."  Because Chen failed to present any evidence of relevant factors, the BIA was not required to provide an explanation any more detailed than it gave.
 

21)  IMMIGRATION:  Pereira v. INS, 01-70887 (9th Cir. Nov. 8, 2002) (unpublished).  Kleinfeld and Rawlinson, Circuit Judges, and Quackenbush, District Judge.
          Pereira, a native and citizen of Brazil, petitioned for review of a BIA decision dismissing his appeal and agreeing with the IJ that even though his testimony was credible, he failed to establish he had suffered past persecution or has a well-founded fear of persecution in Brazil such as to entitle him to asylum and withholding of deportation.  The BIA reviewed the IJ's decision de novo.  The USCA's review thus was limited to the decision of the BIA, and because the transitional rules applied, it had jurisdiction under 8 USC Sec. 1105a(a).  The USCA reviewed for substantial evidence a BIA's determination that an applicant has not established eligibility for asylum, and must uphold the BIA's decision unless the evidence compels a contrary result.  The USCA denied the petition.  Pereira testified that, due to his participation in a student political organization, O Sul E Meo Pais, with the purpose of gaining support for the secession of the southern regions of Brazil from the rest of the country, he was under constant police surveillance in Brazil.  However, he admitted that he was never arrested, detained, or interrogated by police.  He also testified that he learned that other members of O Sul El Meo Pais were arrested, and feared he would be too.  However, this claimed fear was unsupported by any evidence that any member of O Sul El Meo Pais was ever abducted, abused, or mistreated in any way.  As the evidence did not compel the conclusion that Pereira was persecuted or had a well-founded fear of persecution on account of an enumerated ground, the BIA's ruling that Pereira failed to establish eligibility for asylum was supported by substantial evidence.  It thus followed that Pereira necessarily failed to meet the more stringent standard for withholding of deportation.

22)  IMMIGRATION:  Singh v. INS, 01-71721 (9th Cir. Nov. 8, 2002) (unpublished).  McKeown and Paez, Circuit Judges, and Pollak, District Judge.
         Petitioner Singh appealed from the BIA's denial of his petition for asylum and withholding of deportation.  The USCA denied the petition for review.  First, the USCA noted that it is the BIA's decision that is under review, as it had conducted a de novo review of the record.  Singh challenged two rulings by the BIA, one regarding Singh's credibility and the other regarding a lack of evidence showing a well-founded fear of persecution.  The standard for evaluating both is whether the determinations are "supported by reasonable, substantial, and probative evidence on the record as a whole."  INS v. Elias-Zacarias, 502 US 478, 481 (1992). The BIA's decision is subject to reversal only if the evidence presented is such that a reasonable factfinder would have to conclude that a well-founded fear of persecution exists.  Substantial evidence supported the BIA's determinations. Regarding Singh's credibility, the BIA thoroughly discussed many crucial inconsistencies in Singh's statements regarding his religion, satisfying the requirement that the BIA provide specific and cogent reasons for disbelief that bear a legitimate nexus to the finding of incredibility.  Substantial evidence also supported the BIA's determination that Singh did not prove a well-founded fear of persecution on account of religious or political persecution.  Singh claimed persecution from both Sikh militants and the Punjab police.  However, even if credible, these claims were not sufficient, as they were not linked to religious or political persecution and "general conditions of unrest do not establish a well-founded fear of persecution."  Limsco v. INS, 951 F.2d 210, 212 (9th Cir. 1991).  Finally, Singh questioned the statement of the Immigration Judge  (IJ) that "this Court is not prepared to grant a Hindu asylum in the United States because under no circumstances given this record can the Court find that he is at risk countrywide."  The IJ also said that "the State Department's report in general states that there is absolutely no reason why a Hindu cannot obtain safe haven in India.  They are clearly a majority."  Although Hindus a majority, the USCA noted that there may be circumstances in which a Hindu could establish past persecution or a well-founded fear of persecution in India.  Nonetheless, it found it clear from the record that the IJ considered Singh's particularized situation, including credibility, in making his determination that Singh was not eligible for asylum.  Moreover, the BIA's de novo review of the IJ's legal and factual findings rendered harmless any claimed error on this point.

23)  IMMIGRATION:  Aron v. INS, 01-71302 (9th Cir. Nov. 21, 2002) (unpublished).  Hawkins, Graber, and Tallman, Circuit Judges.
            The USCA concluded that Aron's contention that she feared persecution if forced to return to Ethiopia was supported by compelling evidence.  She presented facts sufficient to meet both the subjective and objective prongs of the "well-founded fear" standard for asylum eligibility.  She testified that she subjectively feared persecution based on her political activism as a member of the All-Amhara People's Organization ("AAPO").  That testimony was found to be credible.  As for the objective reasonableness of her fear, uncontradicted evidence that Aron's siblings and friends were persecuted in Ethiopia while Aron was in the U.S. compelled the conclusion that Aron's fears of future persecution was well-founded.  Aron's brother, sister, and friend suffered severe persecution-including beating, lengthy incarcerations and rape—as a result of their activities in the AAPO, which were similar in nature to Aron's.  The reports of their persecution are consistent with state Department country reports, which acknowledge the possibility of prolonged detainment and harsh treatment for members of opposition political parties in Ethiopia.  Moreover, her brother and sister were granted asylum in the United States.  That those close to her were persecuted after she left for the United States is a telling indication that government officials' continued interest in Aron has potentially severe consequences.  Given this evidence, it was thus clear that "no reasonable factfinder could fail to find the requisite fear of persecution."  Fisher v. INS, 79 F.3d, 955, 961 (9th Cir. 1996).