2) TRADE SECRETS:  Four Pillars Enterprises v. Avery Dennison Corp., 01-55639 (9th Cir. Oct. 24, 2002).  The district court did not abuse its discretion in concluding that discovery orders for trade secret material, pursuant to 28 USC Sec. 1782, would improperly frustrate a protective order issued by a federal court in Ohio in a separate action between the same parties.  Lay, Canby (author), and Paez, Circuit Judges.  R. Corbin of Los Angeles, CA, for the petitioner;  D. Surprenant of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

3)  BANKING LAW:   Bank of America v. City and County of San Francisco, 00-16355 (9th Cir. October 25, 2002) The Home Owners' Loan Act and Office of Thrift Supervision regulations preempt city ordinances which prohibit federal savings associations from charg-ing ATM fees to non-depositors;  the National Bank Act and Office of Comptroller of Currency regulations preempt the ordinances from prohibiting national banks to do the same;  the Electronic Fund Transfer Act does not rescue the ordinances from preemption.  Goodwin, Sneed (author), and Trott, Circuit Judges.  A. Radinsky of Santa Monica, CA, and O. Martikan of San Francisco, CA, for the defendants;  E. Bruce of Washington, DC, and M. Kass and K. Roger of San Francisco, CA, for the plaintiffs. (Download the full text of this decision at www.cc9.uscourts.gov/)

4)  BANKING LAW:  Flatow v. Islamic Republic of Iran, 00-56446 (9th Cir. October 23, 2002).  As there were neither day-to-day control nor a principal agent relationship between the Islamic Republic of Iran and an Iranian bank, the Bank Saderat Iran, which has offices and property in the U.S., the plaintiff could not levy against real estate owned by the bank pursuant to a default judgment entered against the country by the U.S. District Court for the District of Columbia.  Bright (author), B. Fletcher, and Fisher, Circuit Judges.  T. Fortune of Washington, DC, for the appellant;  S. Kerekes of Beverly Hills, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)
 

5)  TAXATION:  Winn v. Killian, 01-15901 (9th Cir. Oct. 3, 2002).  Where state taxpayers, who maintain that an Arizona statute which permits tax credits for contributions that support parochial schools violates the Establishment Clause, do not challenge any procedure specified in the Tax Injunction Act, and seek only to enjoin the granting of the tax credit, their action is justiciable in federal court.  Schroeder, D.W. Nelson, and Reinhardt (author), Circuit Judges.  P. Bender of Phoenix, AZ, for the plaintiffs;  P. Irvine of Phoenix, AZ, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)
 

6)  BANKRUPTCY / TAXATION:  In re MarkAir, Inc., 01-35819 (9th Cir. Oct. 21, 2002).  Under Bankruptcy Code Sec. 724(b), which subordinates tax liens to the claims of certain priority unsecured creditors, the term "tax lien" means a statutory tax lien and does not embrace a judicial lien securing an underlying tax obligation. B. Fletcher, Alarcon, and Graber (author), Circuit Judges.  J. Siemers of Anchorage, AK, for the appellant;  T. Clark of Washington, DC, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)
 

7)  BANKRUPTCY / TAXATION:  In re MarkAir, Inc., 01-35892 (9th Cir. Oct. 21, 2002).  Under Bankruptcy Code Sec. 724(b), priority unsecured creditors have a right to obtain only that portion of the proceeds equaling the amount of the tax liens;  any remaining proceeds go first to junior lien claimants, then to the holders of the tax liens insofar as their claims are not already satisfied and, finally, to the estate.  B. Fletcher, Alarcon, and Graber (author), Circuit Judges.  D. Clark of Anchorage, AK, for the appellants;  J. Siemers of An-chorage, AK, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

 8)  INSURANCE:  Dewitt Construction v. Charter Oak Fire Insurance, 01-36013 (9th Cir. Oct. 9, 2002).  A subcontractor's commercial liability policies provided coverage for property damage caused by an "occurrence," defined in part as "an accident"; under Washington law, the subcontractor's unintentional mismanufactured of concrete piles that due to defects failed to meet the proper break-strength requirements, constituted such an occurrence;  but, the alleged damage to the construction site by the subcontractor impaling it with unremovable defective piles was not "property damage" under the policies;  for faulty workmanship to give rise to property damage, there must be property damage separate from the defective product itself.  Judge Hill thought that while there was doubt that the failure of the insured to perform its contracted work properly constituted an "occurrence" under the policy, an evaluation of such doubt was not necessary as this was a state law case, and the clear statement the state Supreme Court that such a failure was an "occurrence" controlled.  Hill (concurring), Gould (author), and Berzon, Circuit Judges.  T. Hayes of Seattle, WA, for the plaintiff;  R. Love of Seattle, WA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

9)  INSURANCE:  Pension Trust Fund for Operating Engineers v. Federal Ins. Co., 00-17055 (9th Cir. Oct. 1, 2002).  Under California law, if there is a potential that a claim under a third party liability fiduciary responsibility insurance policy includes allegations of covered conduct, the insurer's duty to defend arises.  Goodwin, Sneed (author), and Trott, Circuit Judges.  E. Mevi of San Francisco, CA, for the appellant;  H. Breslin of Walnut Creek, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

10)  ENVIRONMENTAL LAW:  Wards Cove Packing Corp. v. National Marine Fisheries Service, 01-35309 (9th Cir. Oct. 15, 2002).  Under National Marine Fisheries Service regulations, a commercial fishing company is qualified to participate in both the sablefish and halibut fishing industries in the North Pacific region if it fished for only one species during the regulatory base period.  Hawkins and Gould, Circuit Judges, and Ware (author), District Judge.  J. Webster of Seattle, WA, for the plaintiff;  M. Brown of Washington, DC, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

11)  ENVIRONMENTAL LAW:  The California Dept. of Toxic Substances Control v. Commercial Reality Projects,01-55630 (9th Cir. Oct. 25, 2002)  The district court properly denied as untimely under the Comprehensive Environmental Response, Compensation, and Liability Act plaintiffs' motions to intervene in this action for recovery of hazardous waste-related environmental response costs. Fernandez and Rawlinson, (author), Circuit Judges, and Shea, District Judge.  L. Bond and J. March of Los Angeles, CA, for the applicants-in-intervention;  D. Ragen of San Diego, CA, and A. Perellis of Chicago, IL, for the defendants.(Download the full text of this decision at www.cc9.uscourts.gov/)

12)  ENVIRONMENTAL LAW:  Southwest Center for Biological Diversity v. U.S. Forest Service, 01-16092 (9th Cir. Oct. 2, 2002)  In a dispute over the impact of livestock grazing on the habitat of the loach minnow, a threatened species of fish, the USCA held that the district court did not err in denying injunctive relief to protect the fish during the consultation phase under Secs. 7(a) and (d) of the Endangered Species Act;  dissenting, Judge Canby thought that grazing on the land in question should have been enjoined pending consultation.  Canby (dissenting) and Rymer, Circuit Judges, and Bertelsman (author), District Judge.  S. Daggett of Denver, CO, for the plaintiffs; S. Glover of Washington, DC, for the defendants;  N. James of Phoenix, AZ, for the intervenors.  (Download the full text of this decision at www.cc9.uscourts.gov/)

13)  LABOR LAW:  Local Joint Executive Bd. Of Las Vegas, Culinary Workers Local 226 v. NLRB, 00-71138 (9th Cir. October 28, 2002).  As it was unable to discern the rationale for an NLRB rule excluding dues-checkoff from the unilateral change doctrine in the absence of union security, the USCA granted the union's petition for review, vacated the NLRB's decision, and remanded so that the NLRB could articulate a reasoned explanation for its rule, or adopt a different rule and present a reasoned explanation to support it.  Canby, Graber, and Paez (author), Circuit Judges.  M. Anderson of San Francisco, CA, for the petitioner;  C. Donnelly of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

14)  EMPLOYMENT DISCRIMINATION:  Lyons v. England, 00-55343 (9th Cir. Oct. 9, 2002).  When a plaintiff pursues several claims under Title VII of the Civil Rights Act of 1964 based on discrete discriminatory acts of disparate treatment, the statute of limitations period begins to run for each claim from the date on which the underlying act associated with that claim occurs.  B. Fletcher (author), T.G. Nelson, and Berzon, Circuit Judges.  L. Ball of San Diego, CA, for the appellant;  AUSA D. Shanahan of San Diego, CA, for the appel-lee.(Download the full text of this decision at www.cc9.uscourts.gov/)

15)  ERISA:  Lessard v. Applied Risk Management,01-15648 (9th Cir. Oct. 3, 2002).  ERISA Sec. 510, which prohibits wrongful termination of medical benefits, is violated when following a corporate asset sale, the employer selects for preemptive termination and denial of benefits employees presently on medical or disability leave;  the Asset Sale Agreement between the employer and its successor in this case facially discriminated against persons on disability and medical leave in violation of Sec. 510;  concurring, Judge Kozinski thought that the lawyers who papered this ploy to dump workers on long-term disability should have advised against it, and the clients should have heeded the warning.  Schroeder, B. Fletcher (author), and Kozinski (concurring), Circuit Judges.  L. Padway of Alameda, CA, for the plaintiff;  C. Knox and S. Tedesco of San Francisco, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

16)  OVERDUE COMPENSATION AWARDS:  Hanson v. Marine Terminals Corp., 00-35871 (9th Cir. Oct. 9, 2002).  A district court may not consider equitable factors when called upon to enforce a monetary penalty for an overdue compensation award under the Longshore and Harbor Workers' Compensation Act, pursuant to 33 USC Sec. 914(f).  T.G. Nelson (author), Graber, and Fisher, Circuit Judges. C. Robinowitz, of Portland, OR, for the plaintiff;  R. Nielsen of Seattle, WA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  ATTORNEYS' FEES:  Fischel v. Equitable Life Assurance Society of the United States, 00-16024 (9th Cir. Oct. 3, 2002).  Following the settlement of a class claim involving a system of commission payments to insurance agents, the district court did not abuse its discretion in calculating plaintiffs' attorney's fee award according to the lodestar method rather than the percentage-of-the-fund method, but it erred in its analysis of whether counsel was entitled to a risk multiplier and failed to adequately explain whether it compensated counsel for delay in payment.  Canby, Graber, and Paez (author), Circuit Judges.  W. Fleischer of Washington, DC, for the plaintiffs;  W. Boies of Chicago, IL, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

18)  ATTORNEYS' FEES:  Native Village of Quinhagak v. USA, 01-35430 (9th Cir. Oct. 8, 2002).  Alaskan villages were prevailing parties under the Alaska National Interest Lands Conservation Act and thus entitled to attorneys' fees in a decade long lawsuit over subsistence fishing rights in Alaskan waters;  the district court incorrectly concluded that it lacked discretion to award fees and costs for pre-litigation administrative activities.  B. Fletcher (author), Alarcon, and Graber, Circuit Judges.  S. Starkey of Homer, AK, and W. Caldwell of Fairbanks, AK, for the plaintiffs;  D. Dunsmore and J. Grace of Anchorage, AK, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

19)  ATTORNEYS' FEES:  Middle Mountain Land and Produce v. Sound Commodities,01-35471 (9th Cir. Oct. 17, 2002).  The Perishable Agricultural Commodities Act, 7 USC Sec. 499e(c)(2), can support a contractual right to attorneys' fees and interests as part of a PACA trust claim.  Hill, Gould (author), and Berzon, Circuit Judges.  R. Trompeter of Seattle, WA, for the plaintiff-intervenor-appellant. (Download the full text of this decision at www.cc9.uscourts.gov/)

20)  PROPERTY / TAKINGS:  Esplanade Properties v. Seattle, 01-36112 (9th Cir. Oct. 3, 2002).  Under Washington law, a property owner could not prevail in a takings action against a municipality that rejected its proposal to develop shoreline property on navigable tidelands regularly used by the public for recreational activities, as such development would be inconsistent with the state's "public trust" doctrine.  B. Fletcher (author) and Gould, Circuit Judges, and Murguia, District Judge.  L. Smith of Seattle, WA, for the plaintiff;  J. Barbour of Seattle, WA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  PUBLIC UTILITIES:  Puget Sound Energy, Inc. v. USA, 00-71276 (9th Cir. Oct. 17, 2002).  Remedies afforded by the Contract Disputes Act were not applicable to a utility's challenge to a rate implementation by the Bonneville Power Administration.  Hall (author), Tashima, and Rawlinson, Circuit Judges.  R. Oehler of Seattle, WA, for the petitioner;  B. Bennett of Portland, OR, for the respondents.  (Download the full text of this decision at www.cc9.uscourts.gov/)

22)  SHIPPER'S LIABILITY:  Motorola, Inc. v. Federal Express Corp., 00-17374 (9th Cir. Oct. 16, 2002). Article 22 of the Warsaw Convention provides for liability limitation based on the entire weight of a shipment where, as here, the damaged portion of the cargo affects the value of the entire shipment;  prejudgment interest is available under the Warsaw Convention, and the district court here properly awarded such interests to make full restitution to the injured party.  Reinhardt and Fisher (author), Circuit Judges, and Molloy, District Judge.  S. Ginger of Los Angeles, CA, for the defendant; M. Cummins of San Francisco, CA, for the plaintiffs.(Download the full text of this decision at www.cc9.uscourts.gov/)

23)  DISABILITIES EDUCATION ACT:  Robb v. Bethel School District #403, 01-35823 (9th Cir. Oct. 21, 2002).  Following the First, Sixth, Seventh, Tenth, and Eleventh Circuits, the USCA held that when a plaintiff has alleged injuries that could be redressed to any degree by the Individuals with Disabilities Education Act's administrative procedures and remedies, exhaustion of those remedies is required;  dissenting, Judge Berzon thought that the majority had decided issues not before the court, had misread the IDEA's exhaustion requirement, and had failed to properly apply Witte v. Clark County Sch. Dist, 197 F.3d 1271 (9th Cir. 1999), which she saw as controlling law squarely holding that a plaintiff seeking monetary relief solely for retrospective damages, not measured by future educational costs, is not seeking relief available under the IDEA and thus is not subject to administrative exhaustion requirements.  Hill, Gould (author), and Berzon (dissenting), Circuit Judges.  J. Stocks of Auburn, WA, for the plaintiffs;  W. Coats of Tacoma, WA, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

24)  DISABILITIES EDUCATION ACT:  Porter v. Bd. of Trustees of Manhattan Beach Unified School Dist., 01-55032 (9th Cir. Oct. 8, 2002).  Filing an Individuals with Disabilities Education Act (IDEA) does not require the prior exhaustion of California's complaint resolution procedure in addition to the exhaustion of its due process procedures enacted to comply with Sec. 1415 of the IDEA.  Hawkins and Fisher (author), Circuit Judges, and Weiner, District Judge.  S. Wyner of Manhattan Beach, CA, for the plaintiffs;  A. Arczyn-ski of Ojai, CA, J. Allen of Los Angeles, CA, and A. Keown of Sacramento, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

25)  FORECLOSURE:  Fontana Empire Center v. City of Fontana, 02-55030 (9th Cir. Oct. 3, 2002).  The Rooker-Feldman doctrine (precluding federal courts from reviewing state court decision) did not bar a federal district court from exercising jurisdiction over a separate action to set aside a state foreclosure sale, where the separate claim for relief was authorized by state law.  Lay (author), Canby, and Paez, Circuit Judges.  B. Shumener of Los Angeles, CA, for the plaintiffs;  K. MacVey of Riverside, CA, for the defendants.(Download the full text of this decision at www.cc9.uscourts.gov/)

26)  FREEDOM OF INFORMATION ACT:  Carter v. U.S. Dept. of Commerce, 02-35161 (9th Cir. Oct. 8, 2002).  The Commerce Department's "adjusted data" from Census 2000 are neither pre-decisional nor deliberative as required to permit nondisclosure under the "deliberative privilege" in Exemption 5 of the FOIA. Goodwin (author), T.G. Nelson, and Graber, Circuit Judges. G. Katsas of Washington, DC, for the defendant;  D. Stewart of Washington, DC, for the plaintiffs. (Download the full text of this decision at www.cc9.uscourts.gov/)

27)  CLASS ACTIONS:  Molski v. Gleich, 00-57099 (9th Cir. Oct. 10, 2002).  The district court certified a mandatory class of mobility-impaired individuals, alleging denial of access to public accommodations and discrimination under the Americans with Disabilities Act and California disability laws;  it also approved a consent decree under which defendant ARCO agreed to undertake accessibility en-hancements, pay monetary damages to plaintiff Molski and the class counsel's fees, and make donations to disability rights organizations; in exchange, the class members agreed to release all claims for statutory damages and certain actual damages;  the USCA reversed and remanded, finding that, in light of a broad provision that released class members' claims and left them with little or no relief, the certification of a mandatory class under Fed. R. Civ. P. 23(b)(2) violated class members' due process rights and that the consent decree was inadequate and fundamentally unfair;  Judge Graber specially concurred in the result as she thought Brown v. Ticor Title Insurance Co., 982 F.2d 386 (9th Cir. 1992), compelled the USCA to reject the consent decree.  Ferguson (author), Tashima, and Graber (concurring), Circuit Judges.  D. Wakefield of San Diego, CA, for the appellants;  T. Taylor and R. Handy of San Diego, CA, for the ap-pellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

28)  BILINGUAL EDUCATION / EQUAL PROTECTION: Valeria v. Davis, 01-15219 (9th Cir. Oct. 7, 2002).  The USCA affirmed a district court's judgment, following a bench trial, which dismissed plaintiffs' claim that California's Proposition 227, which replaces bilingual education programs with a curricular program designed to teach students in English, facially violates the Equal Protection Clause.  Hug and Tashima (author), Circuit Judges, and Sedwick, District Judge.  T. Saenz of Los Angeles, CA, for the plaintiffs;  D. Cole of Sacra-mento, CA, for the defendants;  S. Brown of Sacramento, CA, for the intervenor. (Download the full text of this decision at www.cc9.uscourts.gov/)

29)  CIVIL RIGHTS:  RK Ventures v. City of Seattle, 99-35128 (9th Cir. Oct. 7, 2002).  The limitations period in a civil rights action under 42 USC Sec. 1893 alleging a city's discriminatory treatment in enforcing a public nuisance abatement ordinance begins when the city informs the plaintiff of its decision to prosecute the abatement action;  although much of a city's alleged discriminatory conduct (allegedly aimed at discriminating against rap and hip-hop music because it attracted African Americans and crime to the nightclub in question) occurred outside the limitations period, because the plaintiffs had alleged one discrete act within the limitations period, the district court should have considered time-barred acts against the plaintiffs and acts against others clubs as evidence of an unconstitutional purpose.  B. Fletcher and Fisher (author), Circuit Judges, and Schwarzer, District Judge.  B. Bagshaw of Seattle, WA, for the plaintiffs;  R. Christie of Seattle, WA, for the defendants.(Download the full text of this decision at www.cc9.uscourts.gov/)

30)  CIVIL RIGHTS / STATUTE OF LIMITATIONS: Sain v. City of Bend, 00-36033 (9th Cir. Oct. 29, 2002).  The district court dismissed plaintiffs' 42 USC Sec. 1983 action on the grounds that the complaint was barred by the two-year statute of limitations under Oregon Rev. Stat. Sec. 30.274;  the USCA reversed on two independently sufficient grounds;  first, it held that the complaint was timely filed because the Ninth Circuit looks to Fed. R. Civ. Proc. 3 and 6(a) to compute time for the purposes of the statute of limitations when the underlying cause of action is federal rather than state; and, second, even if it were to look to Oregon law for computation of time, the USCA said it would find the complaint timely under Or. Rev. Stat. Sec. 12.110, to which the Ninth Circuit looks for the limitation period in Sec. 1983 suits in Oregon;  concurring, Judge King wrote separately to express his view that the USCA need not delve into the implications of Hanna v. Plumer, 380 US 460 (1995) or Walker v. Armco Steel Corp., 446 US 740 (1980), because this appeal involves a federal Sec. 1983 claim, not a state claim based on diversity jurisdiction;  consequently, Judge King thought the inquiry should begin with West v. Conrail, 481 US 35 (1987), a case requiring the court to borrow the statute of limitations for a federal claim, as is the case here.  Ferguson and W. Fletcher (author), Circuit Judges, and King (concurring), District Judge.  M. Miller of Bend, OR, for the plaintiffs;  R. Franz of Springfield, OR, and R. Wagner of Portland, OR, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

31)  CONSTITUTIONAL TORT CLAIMS:  Galbraith v. County of Santa Clara, 00-17369 (9th Cir. Oct. 9, 2002).  In light of intervening Supreme Court cases, the heightened pleading standard of Branch v. Tunnell, 937 F.2d 1382 (9th Cir. 1991), no longer applies to constitutional tort claims in which "improper motive" is an element .  Schroeder (author), B. Fletcher, and Kozinski, Circuit Judges.  T. Hogan of San Jose, CA, for the plaintiff;  J. Towery of San Jose, CA, for the defendants.(Download the full text of this decision at www.cc9.uscourts.gov/)

32)  DUE PROCESS:  David v. Los Angeles, 00-57091 (9th Cir. Oct. 9, 2002).  A city's failure to provide a prompt hearing after towing and storing a car for an alleged parking violation violated the car owner's procedural due process;  dissenting, Judge Kozinski thought that the majority had mistakenly applied cases involving deprivation of an automobile to a case involving the deprivation of impound fees;  this is not a car case, Judge Kozinski thought, as the plaintiff paid the impound fees and recovered his car the day it was towed;  he wanted a hearing to get back his cash.  Kozinski (dissenting) and Fernandez (author), Circuit Judges, and King, District Judge.  W. Kent of Irvine, CA, for the plaintiff;  R. Laurents of Los Angeles, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

33)  PRIVACY:  Planned Parenthood of Southern Arizona v. Lawall, 01-16799 (9th Cir. Oct. 9, 2002).  The "judicial bypass" provision in Arizona's current parental consent abortion statute satisfies two constitutionally-recognized rights to privacy—a young woman's right to make fundamental life decisions and her right to avoid disclosure of personal information;  dissenting, Judge Ferguson thought the majority had ignored the breadth of the exception in the Arizona confidentiality provision and thus upheld a facially invalid statute; this, Judge Ferguson thought, permits Arizona to unduly burden a young woman's right to choose whether to terminate a pregnancy  Lay, Ferguson (dissenting), and Tallman (author), Circuit Judges.  E. Gartner of New York, NY, for the appellants;  P. Bickett of Phoenix, AZ, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

34)  FREEDOM OF SPEECH:  Rubin v. City of Santa Monica, 01-56091 (9th Cir. Oct. 17, 2002).  A California city's prohibition of "status designations" such as "activist" on its election ballot is politically-neutral and a reasonable means of preserving the city's important interest in ballot simplicity;  it thus does not severely burden candidates' First Amendment rights. Hall, Silverman (author), and Rawlison, Circuit Judges.  J. Fosbinder of Kahului, HI, for the plaintiff;  AAG. P. Smith-Steward of Sacramento, CA, for the defendant Sec. of State; M. Moutrie of Santa Monica for the defendant City. (Download the full text of this decision at www.cc9.uscourts.gov/)

35)  FREEDOM OF SPEECH:  Ulrich v. San Francisco, 01-15717 (9th Cir. Oct. 11, 2002).  A physician did not have a property right in the public hospital position from which he resigned, but his protest of layoffs was protected speech under the First Amendment;  he set forth sufficient facts showing that allegedly defamatory statements were made in the course of a decision not to rehire him, for purposes of establishing a liberty interest protected by the Fourteenth Amendment.  Hawkins and Fisher (author), Circuit Judges, and Moskowitz, District Judge.  E. Benay of San Francisco, CA, for the plaintiff;  J. Lee of San Francisco, CA, for the defendants.(Download the full text of this decision at www.cc9.uscourts.gov/)

36)  FREEDOM OF SPEECH / MEDICAL MARIJUANA:  Conant v. Walters, 00-17222 (9th Cir. Oct. 29, 2002).  The USCA upheld the district court's permanent injunction which enjoins the federal government from either revoking a physician's license to prescribe controlled substances or conducting an investigation of a physician that might lead to such revocation, where the basis for the government's action is solely the physician's professional recommendation of the use of medical marijuana;  concurring, Judge Kozinski wrote separately only to explain that, for him, the fulcrum of this dispute is not the First Amendment right of the doctors;  rather, the burden of the federal policy the district court enjoins falls directly and personally on the doctors:  By speaking candidly to their patients about the potential benefits of medical marijuana, they risked losing their license to write prescriptions, which would have prevented them from functioning as doctors.  Schroeder (author), B. Fletcher, and Kozinski (concurring), Circuit Judges.  M. Stern of Washington, DC, for the defendants;  G. Boyd of New Haven, Conn., for the plaintiffs; S. Willey of Menlo Park, CA, for amici American Public Health Association, et al.  (Download the full text of this decision at www.cc9.uscourts.gov/)

37)  IMMIGRATION LAW:  Ison v. INS, 00-70583 (9th Cir. Oct. 21, 2002).  The Immigration Marriage Fraud Amendments of 1986 do not bar an alien who has married a U.S. Citizen before the Amendments' Nov. 10, 1986 effective date from simultaneously filing a petition for an immigrant visa and an application for adjustment of status.  Hall, Kozinski, and McKeown, Circuit Judges.  Per Curiam.  W. Nomura of Stockton, CA, for the petitioner;  J. Redfern of Washington, DC, for the respondent.(Download the full text of this decision at www.cc9.uscourts.gov/)

38)  IMMIGRATION LAW:  Chang v. INS, 01-35626 (9th Cir. Oct. 11, 2002).  The removal of a legal permanent resident convicted of bank fraud for passing a bad check was improper, where his plea agreement established that his conviction caused a loss to the fraud victim of $605.30, well below the statutory threshold of an aggravated felony under 8 USC Sec. 1101(a)(43)(M)(i);  the INS could not rely on other evidence in the record, such as a presentence report, to establish that the petitioner had caused a much greater loss of over $10,000 to his victim.  D.W. Nelson (author), Thompson, and Paez, Circuit Judges.  F. Whang of Seattle, WA, for the petitioner;  D. Goldman of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

39)  IMMIGRATION LAW:  USA v. Gonzales-Torres,  00-50543 (9th Cir. The opinion of Dec. 11, 2001 has been withdrawn and replaced with this opinion dated Oct. 28, 2002).  As the defendant was never "free from restraint," due to his constant surveillance prior to and upon entering the U.S., the USCA reversed his convictions for entering the U.S. in violation of 8 USC Sec. 1325, and for being a deported alien found in the U.S. in violation of 8 USC Secs. 1326.  Rymer and Rawlinson (author), Circuit Judges, and Pogue, Court of Intl. Trade Judge.  B. Coleman of San Diego, CA, for the defendant;  AUSA B. Castetter of San Diego, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

40)  INVESTIGATORY STOPS:  Gallegos v. Los Angeles, 01-56021 (9th Cir. Oct. 11, 2002).  In responding to a 911 regarding an attempted burglary, the police acted within the bounds of a permissible investigatory stop in pulling over the plaintiff, ordering him out of his vehicle at gunpoint, placing him in the back of a patrol car, and detaining him for up to an hour to ascertain whether he was the suspect;  the officers mistakenly believed the plaintiff to be armed; he was not handcuffed; the police brought him to the scene of the reported incident before it was confirmed that he was not the suspect;  he was then returned to his vehicle;  dissenting, Judge Rawlinson thought that in circumstances of this case, the methods used by the officers were not reasonable as they elected to transport the detainee to the scene of the reported incident rather than (1) checking his identification to see if his name matched that of the suspect;  (2) questioning the detainee regarding the reported incident; or (3) contacting dispatch to obtain additional identifying information regarding the suspect.  Alarcon, Silverman (author), and Rawlinson (dissenting), Circuit Judges.  E. Ellison of Los Angeles, CA, for the plaintiff;  J. Bogigian of Los Angeles, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

41)  DOUBLE JEOPARDY:  USA v. Carbullido, 01-10578 (9th Cir. Oct. 1, 2002).  A district judge's ruling that the defendant was legally insane precluded on Double Jeopardy grounds a second prosecution for another act that was within the scope of the issues actually litigated and necessarily decided in the prior prosecution.  Kozinski and McKeown (author), Circuit Judges, and Fitzgerald, District Judge.  D. Bogden of Las Vegas, NV, for the plaintiff;  FPD F. Forsman of Las Vegas, NV, for the defendant.(Download the full text of this decision at www.cc9.uscourts.gov/)

42)  SPEEDY TRIAL:  USA v. Pitner, 01-30055 (9th Cir. Oct. 10, 2002).  An interlocutory appeal following a mistrial interrupts, but does not restart, the running of the Speedy Trial Act  clock;  the denial of a defendant's severance motion was not an abuse of discretion in light of the circumscribed nature and timing of a co-defendant's offer to testify on behalf of the moving defendant.  Canby (author), Kleinfeld, and W. Fletcher, Circuit Judges.  J. Lobsenz of Seattle, WA, for the defendant;  AUSA S. Dohrmann of Seattle, WA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

43)  EVIDENCE:  USA v. McGuire, 99-30165 (9th Cir. Oct. 11, 2002).  The government has considerable latitude to wiretap suspected members of a criminal conspiracy, particularly when the conspirators are bent on the overthrow of the government and social order, and when the conspirators are armed with deadly weapons and have trained and practiced in the deadly arts;  this principle reflects a larger principle of proportionality embodied in the wiretapping statute:  The more grave the threat posed to our society, the greater the government's leeway in pursuing it;  in the instant case, the district court did not abuse its discretion in finding that electronic surveillance was necessary and that minimization procedures used in facsimile interceptions were reasonable under the circumstances.  Hawkins and Gould (author), Circuit Judges, and Ware, District Judge.  E. Sheehy of Helena, MT, and B. Kohn of Billings, MT, for the defendants; AUSA J. Seykora of Helena, MT, for the plaintiff.(Download the full text of this decision at www.cc9.uscourts.gov/)

44)  EVIDENCE:  USA v. Sua,00-10088 (9th Cir. Oct. 9, 2002).  Following the Eleventh Circuit, the USCA held that a district court may proper exclude, under Fed. R. Evid. 403, a plea agreement offered for the purpose of establishing the government's belief in a person's innocence;  the exclusion did not violate the defendant's right to confront witnesses against him.  Wallace (author), Tashima, and Tallman, Circuit Judges.  S. Courageous of Honolulu, HI, for the defendants;  C. Nakamura of Honolulu, HI, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

45)  PLEA AGREEMENTS:  USA v. Garcia-Lopez, 01-50334 (9th Cir. Oct. 29, 2002).  Even if in a plea agreement a defendant has waived his right to appeal, the USCA may nevertheless hear the appeal when the government has expressly waived its right to assert the defendant's waiver—i.e., the government can waive the waiver.  Reinhardt, Trott, and Silverman (author), Circuit Judges.  R. Swain of San Diego, CA, for the defendant;  AUSA B. Castetter of San Diego, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

46)  MONEY LAUNDERING:  USA v. Choy, 00-10339 (9th Cir. October 28, 2002). As the government conceded that it failed to prove money laundering and the theory of bribery upon which the defendant was convicted was legally erroneous, the USCA reversed the conviction for money laundering, and reversed and remanded for retrial the convictions for bribery and conspiracy.  Canby (author), Graber, and Paez, Circuit Judges.  N. Wilder of San Francisco, CA, for the defendant;  AUSA L. Gray of San Francisco, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

47)  CRIMINAL LAW:  USA v. Walters,01-50317 (9th Cir. Oct. 28, 2002).  As the erroneous denial of the defendant's pro hac vice motion was harmless, the USCA affirmed his convictions on two counts of conspiracy to possess with intent to distribute at least 5 kg of cocaine and attempted possession of at least 5 kg of cocaine.  Thompson and Rawlinson, Circuit Judges, and Schwarzer (author), District Judge.  D. Ricker of Beverly Hills, CA, for the defendant;  AUSA P. O'Toole of San Diego, CA, for the plaintiff.(Download the full text of this decision at www.cc9.uscourts.gov/)

48)  SENTENCING:  USA v. Malley, 01-30069 (9th Cir. Oct. 7, 2002).  Application Note 6 of U.S. Sentencing Guideline Sec. 5C1.1 does not provide independent authority for a district court to depart downward from the applicable sentencing guideline range.  Hall, Tashima, and Rawlinson (author), Circuit Judges.  A. Gallagher of Great Falls, MT, for the defendant;  AUSA D. Dennis of Great Falls, MT, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

49)  SENTENCING:  USA v. Parish,01-30017 (9th Cir. Oct. 18, 2002).  An eight-level downward sentence departure was not an abuse of discretion where the defendant's conduct was "outside the heartland" of the 18 USC Sec. 2252A(a)(5)(B) offense of possession of child pornography (as he did not intentionally download images of child pornography on his computer, although they appeared as automatically downloaded Temporary Internet Cache files when he viewed them on a website), and because he was susceptible to abuse in prison due to his stature, demeanor and naiveté;  dissenting in part, Judge Graber thought that the nature of the offence should not be considered in examining the nature of the offender, such as factors that might make an offender especially vulnerable in prison;  Judge Graber thought that the majority's unfortunate message is that if society so roundly condemns a particular crime that even other criminals are especially appalled by it, the "average Joe" who perpetrates the crime should spend less than the average time in prison for that crime.  Canby (author), Kleinfeld, and Graber (dissenting in part), Circuit Judges.  AUSA M. Sept of Billings, MT, for the plaintiff;  AFPD J. Rhodes of Missoula, MT, for the defendant.(Download the full text of this decision at www.cc9.uscourts.gov/)

50)  SENTENCING:  USA v. Gross, 01-50033 (9th Cir. Oct. 7, 2002).  A district court does not have the statutory authority under 18 USC Sec. 3583(e) to modify the conditions of a defendant's supervised release based on a claim of illegality;  in addition, a district court does not have authority to modify supervised release conditions based on the parties' stipulation.  Thompson and Rawlinson, Circuit Judges, and Schwarzer (author), District Judge.  D. Katz of Beverly Hills, CA, for the defendant;  AUSA J. Gordon of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

51)  SENTENCING:  USA v. Booth,01-30081 (9th Cir. Oct. 25, 2002).  Defendant's sentence for wire fraud was vacated and remanded for resentencing, as the defendant received insufficient notice of the grounds upon which the district court relied for an upward departure in his sentence.  Canby (author), Kleinfeld, and McKeown, Circuit Judges.  J. Finer of Spokane, WA, for the appellants;  AUSA T. Rice of Spokane, WA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

52)  SENTENCING / RESTITUTION:  USA v. Stanley, 01-50734 (9th Cir. Oct. 29, 2002).  The victim of a kickback scheme suffered a loss of over $900,000;  because of an error at the time of the defendant's plea, his restitution liability was capped at $500,000;  the defendant's co-defendants paid over $300,000 in restitution, reducing the victim's loss to nearly $600,000;  the defendant maintained on appeal that his co-defendants' payments should have been deducted from his $500,000 restitution cap, thus reducing his restitution expo-sure to less than $200,000;  the USCA agreed with the district court that the restitution paid by the co-defendants only reduced the victim's loss; it did not reduce the defendant's restitution ceiling;  because the victim's loss still exceeded $500,000 even after the co-defendants' payments were credited, the district court did not err in ordering the defendant to pay restitution of $500,000.  Reinhardt, Trott, and Silverman (author), Circuit Judges.  G. Obernauer of San Diego, CA, for the defendant;  AUSA B. Castetter of San Diego, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

53)  SENTENCING / IMMIGRATION:  USA v. Morales-Robles, 01-50419 (9th Cir. Oct. 29, 2002).  The defendant appealed his guilty plea conviction and 77-month sentence with three years supervised release for reentry after deportation in violation of 8 USC Sec. 1326;  on appeal, and for the first time, the defendant maintained that the district court violated Fed. R. Crim. P. 11 by failing to advise him of his right to persist in his plea of not guilty and by not ensuring that he adequately understood the maximum sentence available under the law;  the USCA affirmed.  Hug, Brunetti, and O'Scannlain, Circuit Judges.  Per Curiam.  DFPD D. Landin of Los Angles, CA, for the defendant;  AUSA W. Hsu of Las Angeles, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

54)  SENTENCING:  USA v. McCormac, 02-30020 (9th Cir. Oct. 29, 2002).  The Defendant was convicted by a jury on three counts of fraud:  Bank fraud in violation of 18 USC Sec. 1344(2);  false statements in a loan application in violation of 18 USC Sec. 1014;  and use of a false social security number in violation of 42 USC Sec. 408(a)(7)(B);  the defendant appealed the district court's denial of her motion for mistrial when she was held in contempt in the presence of prospective jurors following her own outburst;  she also appealed the district court's calculation of the amount of loss for purposes of determining her offense level under the sentencing guidelines for fraud convictions;  the USCA affirmed both the district court's denial of a mistrial and calculation of loss under the sentencing guide-lines.  Hill, Gould (author), and Berzon, Circuit Judges.  D. Chisholm of Columbia Falls, MT for the defendant;  AUSA L. Suek for Great Falls, MT, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

55)  HABEAS CORPUS:  Dyas v. Poole,01-56324 (9th Cir. Oct. 28, 2002).  Because the petitioner was unconstitutionally shackled during her trial, and the shackling was seen by one or more jurors to her prejudice, the shackles had "substantial and injurious effect" on the verdict and were not harmless error.  Lay, Canby, and Paez, Circuit Judges.  Per Curiam.  C. Horst of San Diego, CA, for the respondents;  C. Hempel of Los Angeles, CA, for the petitioner.  (Download the full text of this decision at www.cc9.uscourts.gov/)

56)  HABEAS CORPUS:  Padilla v. Terhune,01-56325 (9th Cir. Oct. 29, 2002).  The admission of a custodial confession was error but harmless and the admission of other hearsay statements did not violate the Confrontation Clause.  Thompson and Rawlinson, Circuit Judges, and Schwarzer (author), District Judge.  R. Howell of La Jolla, CA, for the petitioner;  DAG S. Lane-Erwin of San Diego, CA, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

 1)  INTELLECTUAL PROPERTY:  Princess Cruises, Inc. v. Amrigon Enterprises, Inc., 01-56261 (9th Cir. Oct. 2, 2002) (unpublished).  Thompson and Rawlinson, Circuit Judges, and Schwarzer, District Judge.
            Princess Cruises filed this action against Amrigon Enterprises, a firm providing "direct" and "telemarketing" services.  Amrigon had refused to transfer Princess' passenger information when Princess replaced Amrigon with Verity, another database service provider.  The District Court for the Central District of California, Judge Wilson presiding, granted summary judgment in favor of Princess on Amrigon's counterclaims for copyright infringement, trade secret misappropriation, breach of confidentiality, and breach of contract.
          The USCA affirmed and awarded costs on appeal to Princess pursuant to Fed. R. App. P. 39(a).  To establish copyright infringement, Amrigon had to prove "copying of constituent elements of the work that are original."  In support of its motion for summary judgment, Princess presented evidence showing that the Verity database did not contain any protectable features from the Amrigon database.  In contrast, Amrigon failed to present any evidence raising a material issue of fact as to an "original" element.  Amrigon maintained that the district court erred in considering a Special Master's report. However, since the Special Master's findings were not effectively challenged, they were properly viewed as unrebutted expert testimony.  The district court properly found that Amrigon's copyright claims were inadequately supported and thus could not survive a motion for summary judgment.  Amrigon also challenged the district court's order granting Princess' motion for summary judgment on Amrigon's misappropriation of trade secrets counterclaim.  But, again, Amrigon failed to provide specific evidence that its alleged trade secrets were not common or obvious concepts in the database industry.  Amrigon's generalizations concerning its database components were insufficient to establish the necessary distinctions between its work and general knowledge in the trade.  Its failure to properly specify its asserted trade secrets rendered summary judgment on its counterclaim appropriate.  Amrigon asserted additional error in the district court's grant of summary judgment on its breach of confidentiality counterclaims.  Amrigon postulated that the district court failed to properly review the confidentiality of its proprietary information.  However, Amrigon's citation to 1463 pages of the record was insufficient to establish a "question of fact" necessary to preclude a grant of summary judgment on this issue.  Amrigon's unsupported contentions thus justified a grant of summary judgment.  Amrigon finally asserted that the district court should be reversed for failing to consider "two additional contract terms."  However, the district court noted that Amrigon never placed these terms at issue during the earlier proceedings.  Contrary to Amrigon's assertions at oral argument, these claims were not included in the Pretrial Order governing trial of the contract claims. The district court thus properly declined to entertain these untimely post-verdict claims.

2)  ENVIRONMENTAL LAW:  Dierker v. Clarke, 01-36016 (9th Cir. Oct. 15, 2002) (unpublished).  Fernandez, Graber, and Gould, Circuit Judges.
             The District Court for the Western District of Washington, Judge Burgess presiding, entered judgment for the defendants in an this action alleging that various local, state, and federal agencies violated environmental laws in connection with a sediment remediation and clean-up project in Olympia, Washington.  Plaintiffs Dierker and Dudley appealed pro se.
          The USCA affirmed in part, vacated in part, and remanded.  The district court properly dismissed the plaintiffs' Comprehensive Environmental Response Compensation and Liability Act claims against the EPA as the plaintiffs failed to identity a non-discretionary act or duty the EPA failed to perform. The district court also properly dismissed the plaintiffs National Environmental Policy Act ("NEPA") claims against the state and local defendants because the overall environmental clean-up action did not constitute a "major Federal action."  Although the district court did not specifically address the plaintiffs claims against the Agency for Toxic Substances and Disease Registry ("ATSDR") in a separate written order, the district court's finding that the clean-up action did not constitute a "major Federal action" implicitly dismissed the plaintiffs NEPA claims against ATSDR as well.  Although the district court correctly found that the plaintiffs' NEPA/CWA claims against the "Corps" were not ripe at the time of its decision, the claims may now be ripe because the Corps has issued the permit the plaintiffs sought to challenge  The USCA thus vacated the district court's dismissal of the plaintiffs' claims against the Corps, and remanded for further proceedings, including a determination of whether the appellants' claims are now moot in light of intervening circumstances.  The USCA instructed that if the district court proceeds with the appellants' claims against the Corps, it should reconsider whether to exercise supplemental jurisdiction over the appellants' state law claims.

3)  CLASS ACTIONS / ATTORNEYS' FEES:  Schwartz v. Citibank (South Dakota), N.A., 00-56958 (9th Cir. Oct. 10, 2002) (unpublished).  Thompson and Rawlinson, Circuit Judges, and Schwarzer, District Judge.
         The District Court for the Central District of California, Judge Baird presiding, conditionally certified the class in this case for settlement purposes, approved the settlement, and awarded attorney fees. 
          The USCA affirmed.  It noted that appellants Behenna and Yeomans, unnamed class members who failed to intervene before the district court, have standing to appeal the district court's judgment approving the settlement. However, the USCA rejected these appellants' contention that conditional class certification was improper, that notice was insufficient, and that the district court failed to properly evaluate the fairness of the settlement.  Although the district court failed to make explicit findings regarding the appropriateness of class certification, the 
          USCA ruled it did not need to remand to allow the entry of self-evident findings.  The class, as defined by the district court, was sufficiently cohesive to satisfy the requirements of Fed. R. Civ. Proc. 23(b)(3).  Regardless of the potential differences in damages suffered by class members, all their claims stem the failure of Citibank and Universal to credit payments to the accounts of consumers as of the date on which they were received, unless the payments were received before 10:00 AM that day.  The class members' claims thus were sufficiently cohesive to warrant adjudication by representation.  Amchem Products, Inc. v. Windsor, 521 US 591 (1997).  The named class representatives also adequately and fairly represented the interests of the class as required by Fed. R. Civ. Proc. 23(a)(4).  There was no inherent conflict of interest between the named plaintiffs, all of whom actually suffered late fees or finance charges as a result of defendants' polices, and class members who suffered no similar injury.  The overarching goal of this litigation was to reimburse card-holders for finance charges and late fees actually incurred as a result of the defendants' early cut-off policy, and to change that policy.  Each class plaintiffs, regardless of whether a monetary loss was suffered, had a similar interest in obtaining relief from the defendants' policy.  The class certification thus was appropriate.  The USCA also concluded that the settlement approved by the district court, including the provision for the independent payment of attorney fees, was "fundamentally fair, adequate, and reasonable."  Fed. R. Civ. P. 23(e);  In re Mego Fin. Corp. Sec. Litig., 213 F.3d 454, 458 (9th Cir. 2002).  A cash settlement fund in the amount of $18 million was established to reimburse class members for finance charges and late fees incurred as a result of the defendants' early payment cut-off policy and to provide statutory damages.  The defendants agreed to substantial other relief as well, estimated by class counsel's expert to be worth at least another $18 million.  Finally, Citibank and Universal agreed to independently pay counsel's fees, in an amount to be determined by the district court, and agreed not to oppose an application seeking fees of up to $9 million.
           Although the district court made no explicit findings, the appellants failed to show that approval of the settlement was an abuse of discretion.  Nor did they show anything inherently improper about the parties' negotiation of an agreement providing for the independent payment of class counsel's fees, and Citibank and Universal's agreement not to oppose a fee application which sought up to $9 million. 
         The USCA rejected appellants' arguments challenging the method used by the district court to calculate class counsel's fees.  Even assuming that the settlement did not create a "common fund" as a result of an agreement that class counsel's fees would be paid independently by Citibank and Universal, the district court was not required to apply the lodestar method to calculate class counsel's fees.  The district court articulated adequate reasons why the percentage of recovery method was preferable to the lodestar method of calculating the fees, and the court did not abuse its discretion in applying the former method.  The amount of the fees awarded to class counsel pursuant to the percent of recovery method was $7.2 million. That amount represented 20% of the $36 million total value of the settlement.  Given the factors articulated by the district court, it did not abuse its discretion in awarding fees of $7.2 million. 
        Finally, as stated above, it was not improper for the settlement agreement to provide for the independent payment of attorney fees by Citibank and Universal.  Under the settlement agreement, Citibank and Universal did not agree to pay $9 million in attorney fees.  They agree to pay fees in an amount to be determined by the court, up to a maximum of $9 million.  The court determined that the amount of fees to be paid was $7.2 million.  Citibank and Universal have no obligation to pay an additional $1.8 million to the class.

4)  CONTRACTS:  Maxner Company v. Costco Wholesale Corp., 01-35517 (9th Cir. Oct. 2, 2002) (unpublished).  Hall, Tashima, and Rawlinson (dissenting), Circuit Judges.
         istrict Court for the Western District of Washington, Judge Zilly presiding, which dismissed Maxner's tortious interference with contract action against Costco Wholesale Corporation. 
          The USCA reversed and remanded for further proceedings.  The elements of tortious interference with contract under Washington law are: (1) the existence of a valid contractual relationship or business expectancy; (2) the defendant had knowledge of that relationship or expectancy; (3) an intentional interference inducing or causing a breach or termination of the relationship or expectancy; (4) the defendant interfered for an improper purpose or used improper means; and (5) resultant damage.  Maxner's allegation of improper purpose was sufficient.  If Maxner can show that the motive for Costco's rejection of the goods was for a purpose other than "economic viability" and for "considerations outside the scope of the parties' obligations under their existing agreement," Cherberg v. People's Nat'l Bank, 564 P.2d 1137, 1144 (Wash. 1977) (en banc), such a rejection would be "wrongful," as alleged by Maxner.  The USCA thus disagreed with the district court's conclusion that Maxner did not allege intentional interference.  If Maxner can establish that Costco knew, or was substantially certain, that its rejection of goods and refusal to permit cure would interfere with the Maxner / Chrisha Corporation contract, Costco's intentional interference would be sufficiently pled.  The district court thus erred in concluding that Maxner failed to allege Costco's international interference with the Maxner / Chrisha contract. 
          Dissenting, Judge Rawlinson agreed with the district court that Maxner failed to allege a viable claim.  Under Washington law, the elements of tortious interference with contract encompass a requirement that the interference must be "wrongful by some measure beyond the fact of the interference itself."  The majority neglected to mention that Maxner and Costco had no contractual relationship.  Costco's contract was with Chrisha, not Maxner.  Chrisha never requested an opportunity to cure and Costco had no obligation to allow cure by a non-party to the contract.  The majority cited Cherberg v. Peoples Nat'l Bank of Washington in support of its analysis.  However, Judge Rawlinson thought that Cherberg was easily distinguishable from the facts before the district court.  The majority's quotation from Cherberg was, Judge Rawlinson thought, taken out of context.  Placed in proper context, the quoted language dictates the opposite conclusion than the majority's.  Immediately prior to the language quoted by the majority, the Cherberg court discussed contract breach "as a basis for tort liability where it results in an interference with a valid business expectancy of another party to the … agreement."  Cherberg, 564 P.2d at 1144.  No reasonable argument could be made that Cherberg supports tort liability in a circumstance involving non-contracting parties.  Persuasive authority from the Washington state courts is to the contrary.  Birkenwald Distrib. Co. v. Heublein, Inc., 776 P.2d 721, 727 (1989), explicitly holds that an intentional interference with contract claim may be predicated upon an act that is a contractual right.  "Asserting one's rights to maximize economic interests does not create an inference of ill will or improper purpose." Id.  As in Birkenwald, the means in this case were not wrongful because Costco had a contractual right to reject nonconforming goods, and had no contractual obligation to allow Maxner to cure Chrisha's breach.  The asserted wrong is the interference itself, which cannot serve as a basis of liability.  Because he thought Maxner's complaint failed to state a claim under Washington law, Judge Rawlinson would affirm the district court's judgment in favor of Costco.

5)  BANKRUPTCY:  In re Bogart, 01-35716 (9th Cir. Oct. 11, 2002) (unpublished).  Fernandez, Graber, and Gould, Circuit Judges.
            Bogart appealed pro se from a judgment of the Bankruptcy Appellate Panel affirming a bankruptcy court's order dismissing his adversary proceeding alleging that B.Z. Moldo violated the automatic stay by acting as a state-appointed receiver to enforce a state court judgment in favor of the California Coastal Commission.  The USCA affirmed.  It lacked jurisdiction to address Bogart's contentions regarding the merits of the BAP's original entry of judgment because he failed to file a timely notice of appeal or a timely post-judgment tolling motion.  The scope of Bogart's appeal thus was limited to the denial of his motion for reconsideration and clarification.  The USCA also found that it lacked jurisdiction to review the BAP's denial of Bogart's motion for reconsideration under 28 USC Sec. 158.  The BAP did not abuse its discretion in denying Bogart's motion for reconsideration because he failed to demonstrate mistake, inadvertence, surprise, excusable neglect, newly-discovered evidence, or any other basis for relief.  Finally, the USCA found no support in the record for Bogart's contention that the bankruptcy judge was biased. 

6)  BANKRUPTCY:  In re Kunwar, 02-15673 (9th Cir. Oct. 16, 2002) (unpublished).  Fernandez, Graber, and Gould, Circuit Judges. 
           Involuntary Chapter 7 debtors Ram and Kamalgit Kunwar appealed pro se a Bankruptcy Appellate Panel's decision which affirmed a bankruptcy court judge's findings and order in favor of creditors following a three-day trial in the creditors adversary proceeding against the Kunwars.
            The USCA affirmed.  Contrary to the Kunwars' contentions, the bankruptcy court did not clearly err by finding that there was no legitimate dispute as to the Kunwars' liability on the creditors' breach of fiduciary duty and wage claims.  In determining that the Kunwars were not paying off their debts as they became due, the bankruptcy court relied on evidence of foreclosures, evidence of unpaid loans, evidence that the Kunwars were running a "shell game," plus the Kunwars own assertions that they were unable to pay their bills.  Under the "totality of the circumstances," the bankruptcy court did not clearly err by finding that the Kunwars were not paying their debts.  Finally, Eastern District of California Bankruptcy Local Rule 9017-1, requiring that direct testimony be presented by written declarations, does not violate due process.

7)  TAXATION:  Braun v. CIR, 01-71283 (9th Cir. Oct. 1, 2002) (unpublished).  Kozinski and Kleinfeld, Circuit Judges, and Beistline, District Judge.
           Braun appealed the Tax Court's decision finding a $24,647 deficiency in her 1994 federal income tax. The Tax Court held that certain legal fees she incurred were deductible only as unreimbursed employee business expenses—that is, by below-the-line deductions. 
         The USCA affirmed.  "The deductibility of legal fees depends on the origin and character of the claim for which the expenses were incurred and whether the claim bears a sufficient nexus to the taxpayer's business or income-producing activities." Test v. CIR, TCM (RIA) 2000-362 (2001) (citing USA v. Gilmore, 372 U.S. 39 (1963)).  The origin and character of the claim with respect to which an expense was incurred, rather than its potential consequences upon the fortunes of the taxpayer, is the controlling basic test of whether the expense is "business" or "personal" and hence whether it is deductible or not (as an above-the-line business expense).  Gilmore, 372 U.S. at 49.  The relevant "claim" for purposes of applying the "origin of the claim" standard, is the underlying event that gives rise to the legal expenses.  Keller St. Dev. Co. v. CIR, 688 F.3d 675, 680 (9th Cir. 1982).  The issue before the Tax Court thus was not whether Braun sought legal advice because she was a University of California at San Francisco (UCSF) employee or because she was a concerned Schedule C business owner.  Instead, the Tax Court had to look to the event that prompted her to seek legal services.  If the origin of those legal services was rooted in her Schedule C business, she could have deducted the legal services on her Schedule C.  The Tax Court concluded that it was not.  While it may be true that Braun would not have contacted attorneys but for her concern for her Schedule C business, the Tax Court was required to look to the origin of the underlying claim, not the consequences.  It did exactly that.  The Tax Court found that the origin of the claim was not in the Schedule C trade or business but rather in Braun's activities as a UCSF employee.  This finding was not clearly erroneous in light of the record evidence.  The Tax Court thus correctly concluded that Braun's legal fees were deductible as unreimbursed employee business expenses—that is, below-the-line deductions.

8)  FORECLOSURE:  Fordjour v. Fleet Mortgage Group, 01-56392 (9th Cir. Oct. 10, 2002) (unpublished).  Pregerson, Rymer, and McKeown, Circuit Judges.
        Proceeding as a pro se prisoner litigant, Fordjour sued Fleet Mortgage Group, Professional Lenders Alliance Corp., State Farm Insurance Co., and various individuals associated with those businesses in connection with a foreclosure sale of a property owned by Fordjour.  He appealed the district court's grant of summary judgment to all defendants on all claims.
           The USCA affirmed.  Fordjour maintained that he received inadequate notice of Fleet's summary judgment motion before the district court granted the motion on April 18, 2001.  The record supports the district court's finding that Fleet provided Fordjour with notice satisfying Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc).  Fordjour further argued that the district court abused its discretion by not granting him an extension of time and a hearing during which he could seek further discovery prior to the April 18, 2001 summary judgment order.  Fordjour made no actual motion to compel discovery, he did not indicate what information he sought, and he did not explain how further discovery would have altered the outcome.  The district court thus did not abuse its discretion in denying the motions.  It also did not abuse its discretion by canceling oral argument and granting summary judgment in an expeditious manner. Fordjour did not dispute the district court's conclusion that the process comported with its Local Rules, and the record reflects that the district court was correct.  Nor has Fordjour presented any evidence that he would or could have used in opposing summary judgment.  The district court properly granted summary judgment on Fordjour's claim that Fleet failed to comply with California Civil Code Sec. 2924 notice procedures for foreclosure sales.  Fordjour never presented evidence demonstrating that he offered to cure the default, an oversight that precluded him from challenging Fleet's compliance with Sec. 2924.  The district court also properly granted summary judgment to State Farm and Fleet on Fordjour's conversion claim.  The court did not abuse its discretion in finding Fordjour barred by judicial estoppel from asserting that he owned valuable personal belongings at the property at the time of foreclosure.  Fordjour argued that his constitutional rights under the takings and due process clauses were violated by the alleged conversion of his personal property.  He failed to explain how Fleet functioned as a state actor in conducting the foreclosure sale.  The USCA concluded that the constitutional arguments had no merit.  Finally, Fordjour's motion to strike Fleet's brief as untimely was moot.  The clerk granted Fleet's motion to file a late brief, and the brief was filed as allowed.

9)  TORTS / INTERNET:  Northwest Healthcare Alliance v. Healthgrades.Com, 01-35648 (9th Cir. Oct. 7, 2002) (unpublished).  Hall, Tashima, and Rawlinson, Circuit Judges.
            Plaintiff Northwest Healthcare Alliance, dba Assured Home Health & Hospice, is a home health care provider in Washington state.  Defendant Healthgrades.com is a Delaware corporation with its principal place of business in Colorado.  The defendant operates a web site that purports to rate home health care providers, one of which is the plaintiff.  After the plaintiff learned it had received what it considered an unfavorable rating on the defendant's website, it brought this action against the defendant in Washington state court alleging defamation and violation of Washington's Consumer Protection Act.  The defendant removed the action to the district court for the Western District of Washington based on diversity jurisdiction, then moved to dismiss the suit for lack of personal jurisdiction.  The district court, finding that the defendant's website was merely a passive provider of information, that the defendant had not purposely availed itself of the plaintiff's forum, and that the defendant had not committed any intentional acts expressly aimed at the forum state, granted the defendant's motion.  The plaintiff appealed.
           The USCA reversed and remanded.  The exercise of personal jurisdiction over an out-of-state defendant must comport with constitutional due process. The exercise of personal jurisdiction over an out-of-state defendant comports with due process when the out-of-state defendant maintains "certain minimum contracts with [the forum state] such that maintenance of the suit does not offend traditional notions of fair play and substantial justice." Intl. Shoe v. Washington, 326 US 310 (1945).  When an exercise of personal jurisdiction is challenged, the burden is on the plaintiff to demonstrate why the exercise of jurisdiction is proper.  The plaintiff can satisfy this burden by showing that:  (1) the defendant purposefully availed itself of the privilege of conducting activities in the forum state invoking the benefits and protections of the forum state's laws;  (2) the plaintiff's claim arises out of the defendant's forum-related activities; and (3) the exercise of jurisdiction over the out-of-state defendant is reasonable.  Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995).  Because most Internet activity occurs in cyberspace, the Internet presents special considerations in personal jurisdictional analysis, and the law in this area can fairly be described as in its infancy.  Indeed, before 1997, the Ninth Circuit had not yet considered when personal jurisdiction could be exercised in the context of cyberspace.  Thus far the Circuit has endorsed two tests for determining whether an out-of-state website operator's activities amount to purposeful availment of the forum state rendering the exercise of personal jurisdiction over the out-of-state website operator constitutionally permissible:  (1) the siding scale approach, as articulated in Cybersell, Inc. v. Cybersell, Inc., 130 F.3d 414, 417-19; and (2) the effects test, endorsed by the Supreme Court in Calder v. Jones, 456 US 783, 788-89 (1984), and adopted by the Circuit in Panavision Intl. v. Toeppen, 141 F.3d 1316 (9th Cir. 1998).  The effects test is employed when the harm allegedly suffered by the plaintiff sounds in tort.  Under this approach, the exercise of personal jurisdiction over an out-of-state defendant is proper if the defendant: (1) engaged in intentional actions; (2) expressly aimed at the forum state; (3) causing harm, the brunt of which is suffered—and which the defendant knows is likely to be suffered—in the forum state.  The plaintiff, alleging defamation and violation of Washington's Consumer Protection Act, is suing in tort, and application of the effects test to the facts of this case yields a constitutional exercise of personal jurisdiction by the district court for the Western District of Washington.  Specifically, the defendant has purposefully interjected itself into the Washington state home health care market through its intentional act of offering ratings of Washington medical service providers.  This act was expressly aimed at plaintiff's forum state, since the defendant was well aware that its ratings of Washington home health care providers would be of value primarily to Washington consumers.  Though the defendant gleaned its information from various public sources, including the federal government, the information was obtained originally from Washington sources, and the allegedly defamatory rating received by the plaintiff on the defendant's website concerned the Washington activities of a Washington resident.  Finally, the brunt of the harm allegedly suffered by the plaintiff oc-curred in Washington—where the plaintiff is incorporated, where the plaintiff has its principle place of business, and where the plaintiff's reputation is likely to suffer if in fact it has been injured by the defendant's actions.  The effects of the defendant's out-of-state conduct thus were felt in Washington, the plaintiff's claims arise from that out-of-state conduct, and the defendant could reasonably expect to be called to account for its conduct in the forum where it understood the effects of its actions would be felt.
            For the foregoing reason, the USCA found that the exercise of personal jurisdiction by the district court for the Western District of Washington is constitutionally permissible.  The court's order granting the defendant's motion to dismiss for lack of personal jurisdiction is thus reversed, and the case is remanded for further proceedings.

10)  INSURANCE:  Jackson National Life Ins. v. Cabrera, 01-15796 (9th Cir. Oct. 2, 2002) (unpublished).  Canby and Rymer, Circuit Judges, and Bertelsman, District Judge. 
          Maria Cabrera, the widow of Carlos Cabrera, and her children appealed the district court's summary judgment in favor of Francisco Cabrera, his mother, his father and his sister, in an action to determine the proper beneficiaries of a life insurance policy issued by Jackson National Life Insurance.  Maria and her children also challenged the district court's dismissal of Jackson National from the interpleader action and dismiss and dismissal of Maria's counter-claim against Jackson National.
        The USCA affirmed in part, reversed in part, and remanded for trial.  It concluded that Jackson National was properly dismissed from the original action and from the counter-claim, because it fully discharged its obligations with regard to the proceeds of the life insurance policy and it owed no other duty to Maria and her children.  With respect to the summary judgment for Francisco and his family, however, the USCA found that there existed a genuine issue of Carlos' intent.  In interpleader actions, the district court applies the substantive law of the forum state, in this case Arizona.  Under Arizona law, where the rights of respective claimants to the proceeds of an insurance policy are in dispute, the intent of the insured governs.  Here, the district court found that there was no genuine issue as to the intent of Carlos, the insured.  The USCA disagreed.  The life insurance policy at issue was a $1,000,000 policy originally taken out in 1987, with Maria as the sole beneficiary.  Carlos made several changes to the policy, adding his children, his mother, his sister and his brother, Francisco, as beneficiaries.  In 1992, the policy was again changed, removing Maria and her children as beneficiaries.  There were no further changes to the policy prior to Carlos's death.  Maria challenged the validity of the 1992 policy change.  The form changing the policy bore Carlos' signature.  The insurance agent, however, had several blank forms with Carlos's signature and was engaged in fraud relating to some of the policies he managed.  Carlos went to a new insurance agent in 1995, after the first agent's fraud had come to light.  He told the new agent that his wife, children, mother, sister and brother were the beneficiaries, and he gave the percentage each was to receive according to the last policy change he had made before the 1992 change.  When he came to the new agent's office, he brought a bag of documents relating to the policy, including documentation of all the policy changes except the 1992 change.  The USCA found that this evidence gave rise to a genuine issue of material fact—whether Carlos made the 1992 changes to his policy.  The district court thus erred in granting summary judgment.
       As for Jackson National, the USCA found that the district court correctly dismissed it from the suit because it had deposited the death benefit and past interest with the court, thereby discharging its obligations under the policy.  In addition, the USCA concluded that the district court correctly dismissed Maria and the children's counter-claim against Jackson National.  Any duty that arose out of the fraud by the Jackson National agent or out of Jackson National's promise to investigate was a duty to Carlos as owner of the policy, not to purported beneficiaries of the policy.

11)  AMERICANS WITH DISABILITIES ACT:  Tibbs v. St. Paul Fire & Marine Ins., 01-35813 (9th Cir. Oct. 2, 2002) (unpublished).  Hall, Tashima, and Rawlinson, Circuit Judges.
           Tibbs appealed the district court's grant of summary judgment in favor of his former employer, St. Paul Fire & Marine Insurance Company, on Tibbs' action under the Americans with Disabilities Act and the Washington Law Against Discrimination ("WLAD").  Tibbs also appealed the district court's denial of his summary judgment motion and various pre-trial rulings.  The ADA prohibits discrimination "against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment."  42 USC Sec. 12112(a) (1995).  Tibbs failed to raise a material question of fact regarding whether he was disabled under the ADA.  Specifically, he failed to raise a material question of fact regarding substantial limitation of a major life activity.  Accordingly, entry of summary judgment in favor of St. Paul and denial of Tibbs' motion for summary judgment was appropriate on the ADA claim.  Wash. Rev. Code 49.60.180(2) and (3) provide that it is unlawful for any employer to discriminate against any person in the terms or conditions of employment or discharge any employee because of the presence of any sensory, mental, or physical disability.  To support a claim under Wash Rev. Code 49,60 Tibbs had to establish that he had an abnormal condition and that St. Paul discriminated against him because of the abnormal condition.  Klein v. The Boeing Co., 847 F. Supp 838, 843 (W.D. Wash. 1994).  The WLAD provides broader protection than the ADA due to its focus on an abnormal condition's effect upon the individual's ability to perform his job, as opposed to whether the disability substantially limits a major life activity.  Pulcino v. Federal Express Corp. 141, Wash. 2d 629, 641-42, and n.3 (2000).  Tibbs asserted that his abnormal condition (depression) caused him to engage in the conduct interpreted as a threat by his employer.  If Tibbs' abnormal condition precipitated his unacceptable conduct, the conduct may become part and parcel of his abnormal condition, and cannot serve as a basis for summary dismissal.  A material question of fact thus existed as to whether Tibbs' unacceptable conduct was caused by his abnormal condition.  As a result, Tibbs' WLAD claims were not properly resolved by summary judgment.  The USCA thus reversed the district court's entry of summary judgment in favor of St. Paul on Tibbs' WLAD claim.  It affirmed the district court's ruling in all other respects.

12)  AMERICANS WITH DISABILITIES ACT:  Scanlon v. The Boeing Company, 01-35505 (9th Cir. Oct. 3, 2002) (unpublished).  Hall, Tashima, and Rawlinson, Circuit Judges.
       Scanlon appealed an order granting summary judgment in favor of The Boeing Company in an action arising from his termination as an employee of Boeing in September 1999.  His complaint alleged that Boeing laid her off because of unlawful disability discrimination and in retaliation for her complaints that Boeing was having her work during unpaid lunch breaks.
          The USCA affirmed.  To defeat summary judgment on a discrimination claim under the Americans with Disabilities Act ("ADA"), a plaintiff must present sufficient evidence from which the trier of fact can rationally conclude: (1) that she was a disabled person within the meaning of the ADA;  (2) that she was qualified for the job;  and (3) that the defendant terminated her because of her disability.  There was no dispute that Scanlon was disable at the time of her layoff or that she was terminated because of her disability.  The sole dispute in Scanlon's discrimination claim concerned whether Scanlon could perform the essential functions of her job at the time of her dismissal.  Scanlon concedes that she was unable to climb ladders, but claims that this was not an essential function.  The USCA agreed with the district court that this was indeed an essential function as a matter of law and Scanlon's admitted inability to perform it required that summary judgment be granted in favor of Boeing.
         The "confined space" monitor exists in order to ensure the safety of employees working in confined spaces by, among other things, ensuring a rapid response to any emergency that might arise.  When a potential emergency does come up, monitors must occasionally perform a quick investigation of the situation of employees within confined spaces to determine their status.  Some of these spaces are reachable only by ladder.  A 1994 job description by Boeing lists climbing ladders as an essential job function.  A 1999 review of the position by an independent organization sponsored by the labor union representing Scanlon also concluded that climbing ladders is an essential function.  Scanlon, herself, declared that the "primary function" of her job was to "check on workers inside fuel tanks and call for help in the event I determine that a worker is in trouble."  In deposition, she admitted that there have been times when the only way to check on a worker's safety is to climb a 50-60 foot ladder, which she usually asked a worker on the floor to do for her.  Scanlon has offered no evidence that would allow the trier of fact to rationally conclude that climbing ladders is not an essential function.  Her assertion by affidavit that climbing ladders is not an essential function of her job is clearly contradicted by her own deposition testimony discussed above.  Likewise, her expert's assertion that a monitor need not climb ladders because "she can just yell louder" is pure speculation.  The expert's assertion is clearly contradicted by Scanlon herself when she stated in deposition that she has been faced with situations where yelling even with a megaphone is inadequate because "It's really a noisy area.  And sometimes they'd be way back in there, or something, and they couldn't hear you."  Scanlon's contention that ladder climbing is not an essential function because she can usually find a worker on the facility floor to climb the ladder for her is not relevant.  The fact that other Boe-ing workers often will go out of their way by performing an essential function of Scanlon's job does not change the nature of that function.  The fact that Boeing may have accommodated Scanlon in the past did not create a triable issue that climbing ladders is an essential function of her job.  The fact that, at one point, an employer accommodated an employee in a manner that is not required by federal law does not mean that the accommodation then somehow becomes mandated by federal law.  Finally, Boeing's decision to continue to over-accommodate three employees with the same disability as Scanlon is not relevant to the essential functions of Scanlon's position.  To establish a prima facie case of retaliation, an employee must show that:  (1) she engaged in a protected activity;  (2) the employer subjected her to an adverse employment decision; and (3) there is a causal connection between the protected activity and the adverse decision.  There is no dispute that Scanlon can prove the first two elements of this claim.  She engaged in protected activity in 1996 by complaining about unpaid lunch breaks.  She was fired in 1999.  The only issue is whether Scanlon can show a causal connection between her 1996 complaints and her 1999 firing. The USCA agreed with the district court and concluded that Scanlon had not presented sufficient evidence from which the trier of fact could rationally conclude that Scanlon was fired in 1999 because of her 1996 complaints.  Scanlon's firing occurred well over two years after her complaints.  The USCA said the Ninth Circuit recently concluded that 18 months was too long a lapse to give rise to any inference of causation.  Scanlon admitted in deposition that the person who initiated the medical review process and decided to terminate her had no retaliatory animus towards her.  Furthermore, the fact that three others with the same medical restrictions as herself were not laid off wither in 1999 does not tend to show that Scanlon was laid off because of her 1996 complaints.  The USCA thus affirmed district court's grant of summary judgment in favor of Boeing. 

13)  IMMIGRATION:  Singh v. INS, 01-71184 (9th Cir. Oct. 17, 2002) (unpublished).  Reinhardt, Trott, and Silverman, Circuit Judges.
        Singh petitioned for review of the Board of Immigration Appeals' summary dismissal of his appeal.  The USCA had jurisdiction under 8 USC Sec. 1105a(a)(2), as amended by Sec. 309(c) of the Illegal Immigration Reform and Immigrant Responsibility Act.  It denied the petition.
         Singh filed a Notice of Appeal (Form EOIR-26) with the BIA on which he provided a two-sentence conclusory explanation of his reasons for appeal from an adverse decision by the immigration judge and indicated also that he would file a brief.  As he failed to file a brief, the BIA summarily dismissed his appeal.  As Singh did not raise the issue of the summary dismissal in his brief to the USCA, the USCA declined to consider it.  The USCA thus regarded Singh's failure as a waiver of his right to challenge the BIA's decision.  Even if Singh had properly challenged the BIA's summary dismissal, his petition would fail as he did not adequately specify his reasons for appeal in Form EOIR-26 (stating only the conclusion that he had made his case for asylum) or file a brief with the BIA.

14)  IMMIGRATION:  Valian v. INS, 01-70586 (9th Cir. Oct. 16, 2002) (unpublished).  Schroeder and W. Fletcher, Circuit Judges, and Weiner, District Judges.
         Valian petitioned for review the Board of Immigration Appeals' denial of her application for asylum and withholding of re-moval.  The record indicated that the immigration judge doubted her claimed membership in the persecuted Baha'i faith as she could not corroborate that claim.  Absent a clear and supported finding of lack of credibility, her testimony that she had been beaten, nearly raped, and otherwise tortured because of her Baha'i faith had to be accepted.  The immigration judge did not give her any express indication that he had doubts about her credibility, and never told her what kind of corroboration she might offer to satisfy his concerns.  The immigration judge had a duty to conduct a fair hearing, and to develop the record where there might be doubts of the accuracy or truth of matters presented.  Given the record on appeal, the USCA said it must accept as compelling the petitioner's testimony concerning past persecution on account of religion.  There was no adequate rebuttal by the government.  The petitioner thus satisfied her burden of showing probability of future persecution.  The USCA thus granted the petition for review and remanded the matter to the BIA to order withdrawing of removal and to determine whether to grant asylum.

15)  IMMIGRATION:  Demian v. INS, 01-70461 (9th Cir. Oct. 16, 2002) (unpublished).  Fernandez, Graber, and Gould, Circuit Judges.
          Demian and her three children, all natives and citizens of Egypt, appealed a decision of the Board of Immigration Appeals ("BIA") denying their motions to reopen deportation proceedings and to reconsider the BIA's order affirming the immigration judge's in absentia deportation order.  Because the transitional rules applied, the USCA had jurisdiction under 8 USC Sec. 1105a(a).  Pursuant to 8 CFR Sec. 3.2(c)(2), a petitioner is limited to one motion to reopen.  However, this single-motion limitation does not apply to motions to rescind an in absentia order of deportation.  The BIA thus abused its discretion by determining that the Demians' motion to reopen was precluded because it was their second motion to reopen.  Contrary to the Demians' contentions, the BIA properly exercised its discretion by denying the motion for reconsideration of its order affirming the IJ's in absentia order.  The USCA thus granted the petition in part and remanded for the BIA to fully consider the Demians' claim of exceptional circumstances. 

16)  IMMIGRATION:  Behnam v. INS, 01-70274 (9th Cir. Oct. 15, 2002) (unpublished).  Schroeder and W. Fletcher, Circuit Judges, and Weiner, District Judge.
          Behnam, a native and citizen of Iran, petitioned for review of a Board of Immigration Appeal's decision affirming an immigration judge's ruling that Behnam was ineligible for asylum in the United States because she had firmly resettled in Germany within the meaning of 8 CFR Sec. 208.15.  Although the USCA held that Behnam was firmly resettled in Germany, it also held that she had a well-founded fear of persecution in Germany on account of her political beliefs.  The USCA reversed the BIA's denial of asylum.
          Behnam was born in Iran and lived there until she was eleven.  Her father, Sohrab Ekhtebar, served as a Brigadier General in the Iranian military and as Lt. Governor of the Province of Loristan under the Shah.  In 1979, after the overthrow of the Shah, Behnam left Iran for Germany together with her mother and siblings.  Her father, who had been imprisoned in Iran, joined the family in Germany in 1980.  Germany granted asylum to Behnam and her family in 1981, giving the family the right to live and work in that country indefinitely.  The family lived in Aachen, Germany, where they opened a restaurant and Behnam attended school.  Behnam testified that her father formed a pro-monarchy group called "Monarchy Organization Council."  At age 14 or 15, Behnam began to participate in the group's activities.  She helped plan weekly meetings and attended monthly demonstrations from 1984 to 1989.  As the group became increasingly active, Behnam's sister was attacked and beaten on the street and the family received death threats.  Behnam testified that after her marriage she returned home on one occasion to find two men waiting with a chain in her garage and on another occasion found men trying to break into her house.  On both occasions she believed that the individuals were from the "Mujahedin," a group opposed to the Shah's return to Iran.  In 1986, Behnam received a German travel document, which she renewed twice.  In February 1990, she traveled to the United States, where she has remained. Her German documentation expired in 1992.
         Because German's grant of asylum to Behnam entitled her to stay in Germany indefinitely, she was firmly resettled under 8 CFR Sec. 208.15.  However, she maintains that she can rebut the presumption of firm resettlement as the conditions of her residence in Germany were substantially restricted.  She claims that she could not be naturalized, had to wait five years on a waiting list before attending a university, and could not return to Germany because she had been absent from the country for more than one year.  The USCA concluded that Behnam did not fall under the exception in Sec. 208.15(b).  She had not established that her asserted inability to become naturalized had substantially affected her rights to housing, employment, property, or public relief.  She was able to attend school through grade 13 and, after a delay based on her status, to enroll in a university.  In addition, the fact that Behnam allowed her travel documentation to lapse while in the United States did not change the fact of her firm resettlement.
          Behnam has, however, demonstrated a well-founded fear of persecution on account of her political opinion.  She and her fam-ily received death threats and physical abuse because of their support of the Shah in Germany.  Moreover, despite the BIA's assertion to the contrary, Behnam provided evidence that the German government was unwilling or unable to protect her.  Her asylum application included a signed letter from the Aachen city council stating that the city had advised Behnam's father and the family to leave Germany because of the threats against them.  The letter provides evidence both that the death threats against Behnam and her family were credible and that Behnam's fear of persecution was indeed well founded.
          The USCA thus granted the petition for review, and remanded for the exercise of the Attorney General's discretion with respect to the asylum claim.

17)  IMMIGRATION:  Altawil v. INS, 01-17215 (9th Cir. Oct. 2, 2002) (unpublished).  Kozinski and Kleinfeld, Circuit Judges, and Reed, District Judge.
        The District Court for the Northern District of California, Judge Jenkins presiding denied Mohamad Altawil's motion for a TRO and petition for habeas corpus challenging the Board of Immigration Appeals' denial of his third motion to reopen his deportation proceedings for lack of subject matter jurisdiction.  The district court denied both requests on October 25, 2001, rejecting Altawil's claim that his 1996 conviction for grant theft larceny was an offense covered by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), which would have divested the Court of Appeals of jurisdiction to review his petition.  Instead, as the maximum punishment for Altawil's conviction did not exceed one year in prison, the district court held that the "petty offense" exception to IIRIRA Sec. 309(c)(4)(G) applied. Since there was no bar to jurisdiction over the petition in the Court of Appeals, the district court found that it should have been filed there.  The district court thus had no jurisdiction over the habeas petition. 
          The USCA affirmed. IIRIRA's "transitional rules," which govern judicial review of cases in which there is a final order of deportation entered after October 30, 1996, but where the case was pending prior to April 1, 1997, apply.  These rules set forth the parameters of the Court of Appeals' jurisdiction over review of final orders of deportation.  If IIRIRA's rules bar jurisdiction, then the claim cannot be asserted in the Court of Appeals, although habeas corpus remains available in the district court.  Moreover, this case involves interpretation of IIRIRA's transitional rule Sec. 309(c)(4)(G), which limits the Court of Appeals' jurisdiction over review of final immigration orders if the petitioner has committed a crime of "moral turpitude" as defined under Immigration and Nationality Act Sec. 212(a)(2).  Altawil argued that his conviction for grand theft under California Penal Code Sec. 489 qualifies as such a crime of "moral turpitude."  However, the USCA noted that, while it is possible that a conviction for grand theft might qualify as a crime of "moral turpitude," Sec. 212(a)(2) contains a "petty offense" exception, which removes from the statute's reach crimes where the maximum penalty does not exceed imprisonment for one year and where the alien's sentence does not exceed six months.  Altawil was sentenced under California Penal Code Sec. 489(b), which provides as punishment for grand theft "imprisonment in a county jail not exceeding one year or in the state prison."  Despite Altawil's argument to the contrary, California Penal Code Sec. 18, which provides for a maximum penalty of over one year in prison, does not apply.  The petty offense exception thus applies.
 As there is no basis upon which to find that Altawil's offense is covered by IIRIRA Sec. 309(c)(4)(G), he had to bring his petition for review to the Court of Appeals.  Because this remedy was available, there was no jurisdiction in the district court for habeas corpus review under 28 USC Sec. 2241.  The USCA thus concluded that the district court did not err.  When a Sec. 2241 habeas petition is improperly filed in the district court, the Court of Appeals has authority to transfer the case to itself for review if it properly has juris-diction.  The BIA denied Altawil's motion to reopen, which constitutes a final order of deportation, on June 7, 2001.  He filed his habeas petition in the district court on August 9, 2001, well after the 30 day time limit had expired.  Thus, even if he had filed his petition in the Court of Appeals as required, the Court of Appeals could not have exercised jurisdiction over it because it was untimely.

18)  IMMIGRATION / ALIEN SMUGGLING  Reyes-Zarate v. INS, 01-71449 (9th Cir. Oct. 17, 2002) (unpublished).  Schroeder and W. Fletcher, Circuit Judges, and Weiner, Reed, District Judge.
         Reyes-Zarate, a native and citizen of Mexico, petitioned for review from the Board of Immigration Appeals' dismissal of his appeal from an Immigration Judge's decision finding him deportable as charged and denying him relief from deportation under INA Sec. 212(c), 8 USC Sec. 1182(c).  He was found deportable under former INA Sec. 241(a)(1)(E)(i), 8 USC Sec. 1251(a)(1)(E)(i), as an alien who knowingly aided another alien to enter the United States in violation of law.
        The USCA affirmed.  In enacting Sec. 309(c)(4)(E) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), which is applicable to Reyes's appeal, Congress withdrew the Court of Appeals' jurisdiction to review discretionary decisions of the BIA under INA Sec. 212(c).  Accordingly, the USCA could not reach Reyes argument that the BIA abused its discretion in failing to grant him relief from deportation under Sec. 212(c).  The BIA's finding that Reyes was deportable was supported by substantial evidence.  The Boarder Patrol officer's testimony was sufficient to establish the charge that Reyes was attempting to smuggle aliens.  While Reyes raises a substantial argument that the IJ's credibility determination was based on a mistranslation or misunderstanding of his answer in one key regard, given its deferential standard of review, the USCA said it was compelled to find that the record as a whole supported the finding of deportability.  Finally, the USCA found that there was no violation of Reyes' due process rights arising from his testifying at the IJ's hearing.  Although counsel interposed an objection based on the Fifth Amendment, Reyes actually answered the questions put to him and never claimed the privilege against self-incrimination.  He also never argued this issue to the BIA.  The USCA thus found that this issues had be waived.