2)  TAXATION:  UnionBanCal v. CIR, 00-70764 (9th Cir. Sept. 18, 2002).  UnionBanCal is the successor-in-interest of an American bank that once belonged to a group of affiliated British and American companies considered a "controlled group" under federal tax law;  temporary tax reg 26 CFR Sec. 1.267(f)-1T (1984), which governs sales between controlled group members, was not inconsistent with the governing statute, 26 USC Sec. 267(f), and did not violate the 1975 US-UK Tax Convention;  dissenting, Judge Thomas thought the governing statute and final agency reg interpreting it were at odds with the temporary reg upon which the CIR relied in denying deduc-tions. Brunetti, Kleinfeld (author), and Thomas (dissenting), Circuit Judges. F. Chilton of Palo Alto, CA, for the petitioner; J. Cohen of Washington, DC, for the respondent.(Download the full text of this decision at www.cc9.uscourts.gov/)

3)  ENVIRONMENTAL LAW:  Native Ecosystems Council v. Dombeck, 01-35827 (9th Cir. Sept. 16, 2002).  The U.S. Forest Service's failure consider the cumulative impacts of certain aspects of a timber sale violated the National Environmental Policy Act;  the Service acted arbitrarily and capriciously in limiting the scope of its cumulative impact analysis for the Darroch-Eagle EA to the Darroch Creek, Bear Creek, and North Fork Bear Creek drainages within the Bear Creek watershed northeast of Gardiner, Montana;  Judge Thompson dissented from that part of the majority's opinion that requires a NEPA analysis of all reasonably foreseeable road density amendments throughout the Gallatin National Forest;  he thought the district court's summary judgment for the government on Bear Creek's NEPA claim should have been affirmed.  D.W. Nelson (author), Thompson (dissenting in part), and Paez, Circuit Judges.  J. Ruggiero of Bozeman, MT, for the plaintiffs;  T. Sasonetti of Washington, DC, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

4)  ENVIRONMENTAL LAW:  Community Association for Restoration of the Environment v. Henry Bosma Dairy, 01-35261 (9th Cir. Sept. 16, 2002).  In a case arising from allegations that dairies discharged pollutants into U.S. navigable waters without a permit and in violation of water quality standards, the USCA held that under the citizen suit provision of the Clean Water Act, a plaintiff's 60-day notice letter adequately notified the defendants of alleged violations that were later identified in a claim where the alleged violations identified in the notice letter were easily identifiable, originated from the same source, and were of the same nature as those identified in the claim;  the district court's findings of ongoing violations were supported by sufficient evidence.  Reavley, Brunetti (author), and Trott, Circuit Judges. C. Tebbutt of Eugene, OR, for the plaintiffs; J. Neal of Spokane, WA, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

5)  ENVIRONMENTAL LAW:  Neighbors of Cuddy Mountain v. Alexander, 01-35184 (9th Cir. Sept. 5, 2002).  A challenge to the U.S. Forest Service's approval of a completed timber sale was not moot where harm to old growth species could still be effectively remedied by mitigation;  dissenting in part, Judge Thompson thought that because effective relief from the allegedly unlawful harvesting of old growth timber at issue in this case was not within the powers of the USCA, the plaintiffs' claims under the National Forest Management Act were moot;  he concurred in the majority's decision and judgment that the Service took the requisite "hard look" at the environmental effects of the sale before approving it as required by the National Environmental Policy Act.  D.W. Nelson (author), Thompson (dissenting), and Paez, Circuit Judges.  T. Woodbury of Boise, ID, for the plaintiffs;  J. Cruden of Washington, DC, for the defendants;  B. Smith of Boise, ID, for the intervenor. (Download the full text of this decision at www.cc9.uscourts.gov/)

 6)  ENVIRONMENTAL LAW:  Idaho Sporting Congress, Inc. v. Rittenhouse, 01-35403 (9th Cir. Sept. 17, 2002).  Two timber sales had to be set aside where a forest land and resource management plan standard for maintaining the viability of old growth dependent species was invalid under the National Forest Management Act;  dissenting, Judge Thompson thought that one sale threatened the viability of certain species at issue in the litigation, and thus violated the Act, but the second sale did not pose such a threat, and thus did not violate the Act.  D.W. Nelson (author), Thompson (dissenting), and Paez, Circuit Judges.  T. Woodbury of Boise, ID, for the plaintiffs;  J. Bryson of Washington, DC, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

7)  ENVIRONMENTAL LAW / STANDING:  Central Delta Water Agency v. USA, 01-16172 (9th Cir. Sept. 26, 2002).  Plaintiffs had standing to challenge a Bureau of Reclamation's release of water, based only on a credible threat that the action would harm crops;  dissenting, Judge Fernandez thought the claimants had only a right to have sufficient water supplied to maintain water quality down-stream, a right that had not been violated; they thus failed to demonstrate standing;  he thought it significant that the government had not violated any law, rule, regulation, or contract; nor had it threatened to do so.  Goodwin, Reinhardt (author), and Fernandez (dissenting), Circuit Judges.  D. McDaniel of Stockton, CA, for the plaintiffs;  D. Shilton of Washington, DC, for the defendant-intervenor. (Download the full text of this decision at www.cc9.uscourts.gov/)

8)  ENVIRONMENTAL LAW:  Idaho Watersheds Project Committee for Idaho's High Desert v. Hahn, 01-35033 (9th Cir. Sept. 24, 2002).  The exhaustion of administrative remedies was not required prior to a suit in district court against the Bureau of Land Management challenging its issuing of cattle grazing permits on federal lands, because BLM regulations did not allow for the BLM decision to be rendered inoperative pending administrative appeal;  interim measures imposed by the district court were a fair and balanced remedy, giving due regard to protection of the environment and the welfare of the affected ranching families.  D.W. Nelson (author), Thompson, and Paez, Circuit Judges.  M. Van Zandt of San Francisco, CA, and W. Schroeder of Boise, ID, for the appellants;  L. Lucas of Boise, ID, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

9)  ENVIRONMENTAL LAW:  National Audubon Society v. National Trappers Association., 01-15159 (9th Cir. Sept. 24, 2002).  A California proposition enacting Fish & Game Code Sec. 3003.1(c), banning the use of steel-jawed leghold traps by anyone, including federal employees, is preempted by the Endangered Species Act and the National Wildlife Refuge Systems Improvement Act.  Goodwin, Thomas, and W. Fletcher (author), Circuit Judges.  L. Silver of Mill Valley, CA, for the plaintiffs;  C. Lee of San Francisco, CA, for the defendants;  R. Gann of San Diego, CA, for the intervenors.  (Download the full text of this decision at www.cc9.uscourts.gov/)

10)  TRADEMARK:  Thane Intl. v. Trek Bicycle Corp., 00-55293 (9th Cir. Filed Sept. 6, 2002; amended Sept. 19, 2002).  A reasonable jury could find that there was no credible evidence of direct confusion, that the "TREK" and "OrbiTrek" marks are not similar, and that the products identified by the marks are not related;  the issue of identity could not be decided on motion for summary judgment; a trademark anti-dilution action under 15 USC Sec. 1125(c)  could not proceed absent a showing that the brand name was famous in the general consuming public.  B. Fletcher, T.G. Nelson, and Berzon (author), Circuit Judges.  J. Kravitz of Los Angeles, CA, for the defendant;  K. Fattahi of Woodland Hills, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

11)  COPYRIGHTS:  L.A. News Service v. CBS Broadcasting, 00-56470 (9th Cir. Sept. 16, 2002).  A television network's incorporation of the copyrighted video "Beating of Reginald Denny" into promotional materials was a fair use; dissenting in part, Judge Silverman did not think the meaning of the word "use" was vague in the context of the request that CBS's predecessor admit that it availed itself of the video, and that courts should not encourage litigants to use "disingenuous semantic quibbles" to evade disclosure.  O'Scannlain (author) and Silverman (dissenting in part), Circuit Judges, and Reed, District Judge.  H. Ford of Los Angeles, CA, for the appellants; F. Mumm of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

12)  TRADEMARKS / DOMAIN NAMES:  Interstellar Starship Services v. Epix, Inc., 01-35155 (9th Cir. Sept. 20, 2002).  The defendant's use of an internet domain name, which included the claimant's trademarked word "epix", did not constitute trademark infringement; the claimant had no exclusive claim to its mark;  the defendant had adopted the word in good faith without knowledge of the claimant's mark;  the defendant's products were so different from the claimant's that a consumer would not think the claimant licensed, sponsored, or owned the defendant's website; and, the defendant could not financially capitalize on a misdirected consumer;  the district court did not abuse its discretion in enjoining any future infringing use of the domain name, while allowing defendant to retain ownership of the "epix" domain name.  Trott (author) and T.G. Nelson, Circuit Judges, and Shadur, District Judge.  P. Heuser and L. Block of Portland, OR, for the defendant;  M. Ratoza of Portland, OR, for the plaintiff.(Download the full text of this decision at www.cc9.uscourts.gov/)

13)  BANKRUPTCY / COPYRIGHTS:  In re World Auxiliary Power, 00-16550 (9th Cir. Sept. 11, 2002).  State law governs the priority of security interests in unregistered copyrights;  in this case a contest arose over unregistered copyrights between a bank that got a security interest in the copyrights from the owners and perfected it under state law, and a company that bought the copyrights from the bankruptcy trustees after the copyright owners went bankrupt.  Brunetti, Kleinfeld (author), and Thomas, Circuit Judges.  J. Guben of Honolulu, HI for the appellant;  S. Christianson of San Francisco, CA, and C. Welch of Petaluma, CA, for the appellees;  R. Eisenbach of San Francisco, CA, for the amici curiae. (Download the full text of this decision at www.cc9.uscourts.gov/)

14)  BANKRUPTCY / LACHES:  In re Beaty, 01-56576 (9th Cir. Sept. 26, 2002).  On a matter of first impression, the USCA held that laches is available as a defense to a nondischargeability complaint brought under 11 USC Sec. 523(a)(3)(B) and Fed. R. Bankr. Proc. 4007(b), where the defendant shows extraordinary circumstances and sets forth a compelling reason why the action should be barred;   Judge Fernandez concurred in the result, agreeing that laches did not bar the complaint to determine the dischargeability of an unscheduled creditor's judgment against the debtor for fraudulent, willful, and malicious conduct which injured the creditor; but he departed from the majority in that he did not think laches is ever available in an action of this type and that under Rule 4007(b), the creditor's complaint could be filed "at any time".  Fernandez (concurring), Wardlaw, and W. Fletcher  (author), Circuit Judges.  T. Gorrill of San Diego, CA, for the debtors;  D. Selinger pro se. (Download the full text of this decision at www.cc9.uscourts.gov/)

15)  BANKRUPTCY:  In re Chiu, 01-56578 (9th Cir. Sept. 18, 2002).  A debtor who moves to avoid a judicial lien under 11 USC Sec. 522(f)(1) on the grounds that the lien impaired their homestead exemption on the property in question, need not have had an interest in the property at the time of his motion if he possessed an interest in the property before the lien fixed upon it.  Kozinski and Fernandez, Circuit Judges, and Mahan (author), District Judge.  H. Heston of Newport Beach, CA, for the appellees; J. Hayes of Laguna Niguel, CA for the appellant.(Download the full text of this decision at www.cc9.uscourts.gov/)

16)  BANKRUPTCY:  In re Staffer, 01-56093 (9th Cir. Sept. 27, 2002).  A separate motion to reopen is not necessary when commencing an action to determine nondischargeability of a debt under Bankruptcy Rule 4007(b); the moving party may simply file a nondischarge-ability complaint;  dissenting in part, Judge Fernandez disagreed with the majority's suggestion that the debtor could eventually assert laches as a defense.  Fernandez (dissenting in part), Wardlaw, and W. Fletcher (author), Circuit Judges.  J. Mills of Los Angeles, CA, for the appellant-debtor;  T. Casey of Rancho Santa Margarita, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  BANKRUPTCY / ATTORNEYS' FEES:  In re Smith, 00-17260 (9th Cir. Sept. 24, 2002).  To be compensated for the time and expense spent litigating a fee application, the fee applicant must demonstrate that the services for which compensation is sought satisfy the requirements of 11 USC Sec. 330(a)(4)(A) and that the applicant's case exemplifies a set of circumstances where the time and expense incurred by the litigation are "necessary" within the meaning of Sec. 330(a)(1);  Sec. 330(a)(4)(A) requires only that to be compensated attorney services be reasonably likely to provide an identifiable, tangible and material benefit to the debtor's estate, even if they do not actually provide such a benefit, as long as such services meet the other requirements of Sec. 330(a).  Hug, Cudahy  (author), and Tashima, Circuit Judges.  D. Smith pro se;  D. Abramow and P. Ray of Las Vegas, NV, for the creditor. (Download the full text of this decision at www.cc9.uscourts.gov/)

18)  BANKRUPTCY:  Dateline Exports v. Basic Construction, 01-15405 (9th Cir. Sept. 25, 2002).  The district court lacked authority to issue a preliminary injunction  freezing the debtor's assets on behalf of an unsecured creditor;  if granted, the injunction would have permitted a creditor with no right to debtor assets to interfere with the debtor's use of its property. Schroeder and Goodwin, Circuit Judges, and Unpingco, District Judge. Per Curiam. D. Banes of Saipan, MP, for the plaintiff;  L. Asper of Saipan, MP, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

19)  COMMUNICATION LAW: US West Communications v. Jennings, 99-16247 (9th Cir. Sept. 23, 2002).  When an incumbent local exchange carrier enters into telephone interconnection agreements with competitive local exchange carriers, FCC pricing regulations promulgated to implement the Telecommunications Act apply to the agreements, even if the FCC regulations take effect after the agreement is arbitrated and approved by the relevant state agency.  Goodwin, Graber, and W. Fletcher (author), Circuit Judges.  T. Berg of Phoenix, AZ, for the plaintiff;  M. Patten of Phoenix, AZ, and D. Waggoner of Seattle, WA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

20)  LABOR LAW / CIVIL RIGHTS:  Equal Employment Opportunity Commission v. Luce, Forward, Hamilton & Scripps, 00-57222 (9th Cir. Sept. 3, 2002).  Employers may require employees to sign agreements to arbitrate claims brought under Title VII of the Civil Rights Act of 1964 as a condition of employment;  because the plaintiff did not engage in a protected activity when he refused to sign the agreement, his retaliation claim was rejected;  dissenting, Judge Pregerson disagreed with the majority's conclusion that Circuit City Stores v. Adams, 532 US 105 (2001), "implicitly overruled" Duffield v. Robertson Stephens & Company, 144 F.3d 1182 (9th Cir. 1998); Judge Pregerson thought Duffield remained good law.  Pregerson (dissenting) and Trott (author), Circuit Judges, and Fitzgerald, Dis-trict Judge. C. Bird of San Diego, CA, and R. Walker of Los Angeles, CA, for the defendant;  D. Bernstein of Washington, DC, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  LABOR LAW:  Humble v. Boeing, 01-35107 (9th Cir. Sept. 18, 2002). An injured employee's state law "reasonable accommodation" claim was not preempted by Sec. 301 of the Labor Management Relations Act where the duty to reasonably accommodate employees is non-negotiable under state law, and under any interpretation the applicable collective bargaining agreement provisions would be relevant only to the state law claims, without any guarantee that interpretation or direct reliance on the CBA terms would occur, and the CBA terms did not inhere in the nature of the employee's reasonable accommodation claim.  Reavley (author), Tashima, and Rawlinson, Circuit Judges.  F. Freedman of Seattle, WA, for the appellant;  R. Perisho of Seattle, WA, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

22)  EMPLOYMENT DISCRIMINATION:  Jasch v. Potter, 01-15426 (9th Cir. Sept. 12, 2002).  The dismissal of a Title VII employment discrimination action because the plaintiff failed to exhaust administrative remedies was improper where the EEOC reached the merits of the plaintiff's claim despite the plaintiff's failure to cooperate with the EEOC's requests for information.  Sneed (author), Hug, and Berzon, Circuit Judges.  J. Yudien of Walnut Creek, CA, for the appellant;  AUSA C. Colman of San Francisco, CA, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

23)  EMPLOYMENT DISCRIMINATION:  Vasquez v. Los Angeles, 00-56803 (9th Cir. Sept. 30, 2002).  A probation officer's Title VII claims were not actionable where he suffered no adverse employment action such as would constitute discrimination and the complained-of conduct was not severe or pervasive enough to create a hostile work environment;  dissenting, Judge Ferguson thought the majority reached beyond the facts and imposed a new requirement on Title VII claimants to show the objective adversity of a discriminatory employment action, thereby narrowing the scope of Title VII's protection;  he also thought the majority erroneously held that the plaintiff was unable to make a prima facie case of retaliation.  Ferguson (dissenting), T.G. Nelson (author), and W. Fletcher, Circuit Judges.  S. Salisbury of Rosemead, CA, for the appellant;  B. Wolf of Beverly Hills, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

24)  EMPLOYMENT DISCRIMINATION:  Rene v. MGM Grand Hotel, 98-16924 (9th Cir. Sept. 24, 2002).  A worker's sexual orientation was irrelevant to whether his allegations that he was subjected to severe, pervasive, and unwelcome "physical conduct of a sexual nature" in the workplace asserted a viable claim of discrimination based on sex under Title VII; the worker's sexual orientation neither provides nor precludes a suit for sexual harassment; concurring, Judge Pregerson thought this was a case of actionable gender stereotyping;  Judge Graber concurred separately to note her agreement with Judge Hug's dissent on two issues not reached by the majority—that Title VII does not protect workers from discrimination because of sexual orientation, and, that the plaintiff did not assert a theory of sexual stereotyping;  concurring, Judge Fisher thought that repeated physical attacks targeted at body parts clearly linked to the plaintiffs gender constitute overwhelming evidence from which a jury could infer that the attacks were based on the plaintiff's sex, and that the alleged abuse the plaintiff suffered was sufficiently hostile and abusive to distinguish it from simple teasing among members of the same sex;  dissenting, Judge Hug thought the suit was brought solely on the basis that the plaintiff was harassed in the workplace because of his sexual orientation, which is not actionable under Title VII; he thus thought that the district court properly entered summary judgment for the defendant. Schroeder, Hug (dissenting), Pregerson (concurring), Trott, Fernandez, T.G. Nelson, Thomas, Graber (concurring), W. Fletcher (author), Fisher (concurring), and Berzon, Circuit Judges.  R. Segerblom of Las Vegas, NV, for the appellant;  E. Youchah of Las Vegas, NV, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

25)  ADMIRALTY:  Martinez v. Signature Seafoods, 01-35768 (9th Cir. Sept. 11, 2002).  Triable issues of fact existed as to whether a seaworthy fish processing barge that is towed across navigable waters twice a year can qualify as a "vessel in navigation" for certain purposes of the Jones Act.  Hall (author), Tashima, and Rawlinson, Circuit Judges.  E. Dickman of Seattle, WA, for the appellant;  T. Montgomery of Seattle, WA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

26)  ADMIRALTY:  Wallis v. Princess Cruises, 01-56700 (9th Cir. Sept. 24, 2002).  A contract clause printed on the back of a passenger's ticket which merely mentions the Convention Relating to the Carriage of Passengers and Their Luggage by Sea of 1976 does not reasonably communicate a liability limitation.  Fernandez, Wardlaw, and W. Fletcher (author), Circuit Judges.  F. Tatum of Los Angeles, CA, for the plaintiff;  E. Ward of Los Angeles, CA, for the defendants.(Download the full text of this decision at www.cc9.uscourts.gov/)

27)  ADMIRALTY:  Ventura Packers v. F/V Jeanine Kathleen, 00-56448 (9th Cir. Sept. 11, 2002).  The Federal Maritime Lien Act, 46 USC Sec. 31342, establishes statutory elements which, if met, invokes federal court admiralty jurisdiction:  a person providing necessaries to a vessel on the order of the owner or a person authorized by the owner, may bring a civil action in rem to enforce a lien in a federal district court sitting in admiralty.  Trott (author), Thomas, and Wardlaw, Circuit Judges.  D. Brogna of Ventura, CA, for the plaintiff;  C. Shields of Santa Monica, CA, for the claimants. (Download the full text of this decision at www.cc9.uscourts.gov/)

28)  PRODUCTS LIABILITY:  Myers v. Philip Morris Companies, 99-17383 (9th Cir. Sept. 30, 2002).  In light of the answer given to the question certified to the Supreme Court of California, Myers v. Philip Morris Cos., 239 F.3d 1029 (9th Cir. 2001), the USCA remanded this case to the district court for further proceedings consistent with Myers v. Philip Morris Cos., 50 P.3d 751 (Cal. 2002) and Naegele v. R.J. Reynolds Tobacco Co., 50 P.3d 769 (Cal. 2002).  Boochever, O'Scannlain, and Tashima, Circuit Judges.  Per Curiam.  A. Gaston of Visalia, CA, for the appellant;  K. Kessler of San Francisco, CA, for appellee R.J. Reynolds.  (Download the full text of this decision at www.cc9.uscourts.gov/)

29)  TORTS:  Blair v. Internal Revenue Service, 00-16010 (9th Cir. Sept. 9, 2002).  A sum certain wage-loss claim based on injuries suffered during an arrest was adequate to establish jurisdiction under the Federal Tort Claims Act;  the claimant's inclusion of material concerning medical expenses for which no sum certain was provided did not deprive the district court of jurisdiction to consider the wage loss claim; it was properly excluded as surplusage.  Hug (author) and Tashima, Circuit Judges, and Sedwick, District Judge.  J. Hayes of Sacramento, CA, for the appellant;  AUSA D. Luther of Sacramento, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)
 

30)  INSURANCE:  Anthem Electronics v. Pacific Employers Insurance Co., 01-16402 (9th Cir. Sept. 5, 2002).  Under California law, insurers could be required under their general liability policy to defend their insured against a third-party's complaint alleging breach of contract and damages due to defective circuit boards supplied by the insured and used in the third-party's product.  Schroeder, D.W. Nelson (author), and Reinhardt, Circuit Judges.  D. Gauntlett of Irvine, CA, for the plaintiff;  S. Newton of Mountain View, CA, and R. Stringer of San Francisco, CA, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

31)  FRANCHISE LAW:  Charter Communications v. Santa Cruz, 01-15846 (9th Cir. Sept. 20, 2002).  A county's denial of consent to a change in ownership of a cable franchise, pursuant to a franchise agreement under which it has discretionary approval, was reasonable and lawful.  Hawkins (author) and Silverman, Circuit Judges, and Restani, U.S. Court of Intl. Trade Judge.  R. Bower of Costa Mesa, CA, for the defendant;  R. Patch of San Francisco, CA, for the plaintiffs.(Download the full text of this decision at www.cc9.uscourts.gov/)

32)  MEDICARE:  Vencor v. National States Ins. Co., 99-17148 (9th Cir. Sept. 5, 2002).  Under Arizona law, a Medigap insurance policy providing coverage for post-Medicare exhaustion hospital expenses at the same rate as Medicare would have covered those expenses, obligates the Medigap insurer to reimburse the hospital only at the rate Medicare would have paid;  Judge Sneed concurred in the result and parts I and II(A) of the opinion, but not in the remainder of the opinion, which he considered unnecessary to the result.  Sneed (concurring), Wardlaw, and Berzon (author), Circuit Judges.  B. Kelly of Washington, DC, for the plaintiffs;  D. Brooks of Mesa, AZ, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

33)  AMERICANS WITH DISABILITIES ACT:  Bird v. Lewis & Clark College, 00-35912 (9th Cir. Sept. 3, 2002).  A college offered ample evidence of accommodating a student's disability to enable her to participate in a program to explore Australia;  it hired two helpers, paid for her to fly around Australia, while others took trains and buses, and paid for a cot, a second wheelchair, and an unique shower head built to her specifications, plus alternative, wheelchair-accessible lodgings.  Goodwin (author), T.G. Nelson, and W. Fletcher, Circuit Judges.  E. Carl of Portland, OR, for the plaintiff;  R. Lindahl of Portland, OR, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

34)  AMERICANS WITH DISABILITIES ACT:  Lovell v. Chandler, 98-16545 (9th Cir. Sept. 5, 2002).  Hawaii's facial exclusion of other-wise-qualified disabled persons from its health insurance programs violated Title II of the Americans with Disabilities Act and Sec. 504 of the Rehabilitation Act, and entitled the plaintiffs to compensatory damages as a matter of law.  D.W. Nelson, Kozinski, and W. Fletcher (author), Circuit Judges.  E. Anzai of Honolulu, HI, for the defendants;  S. Floyd of Honolulu, HI, for the plaintiffs. (Download the full text of this decision at www.cc9.uscourts.gov/)

35)  AMERICANS WITH DISABILITIES:  Zivkovic v. So-Cal Edison Co., 00-56867 (9th Cir. Sept. 12, 2002).  The USCA vacated and remanded in part this ADA action as the district court failed to make clear factual findings in accord with FRCP 52(a) as to whether an employer appropriately engaged in the required interactive process with the employee to determine an appropriate reasonable accommodation, offered a reasonable accommodation, and/or discriminated against a job applicant by not hiring him.  Browning, Thomas, and Rawlinson (author), Circuit Judges.  L. Tomich of San Marino, CA, for the plaintiff;  W. Harn of Rosemead, CA, for the defendant.(Download the full text of this decision at www.cc9.uscourts.gov/)

36)  AMERICANS WITH DISABILITIES ACT:  Equal Employment Opportunity Commission v. United Parcel Service, 01-15410 (9th Cir. Sept. 20, 2002).  In an action alleging that UPS's vision protocol discriminates against disabled persons who are otherwise qualified to drive small trucks, the USCA held that for a monocular individual to show that his impairment is a substantial limitation on the major life activity of seeing, the impairment must prevent or severely restrict use of his eyesight compared with how unimpaired individuals normally use their eyesight in daily life.  Canby and Rymer (author), Circuit Judges, and Bertelsman, District Judge  W. Kilberg of Washington, DC, for the defendant;  B. Sloan of Washington, DC, for the plaintiff;  J. Mavredakis of Santa Rosa, CA, for the interve-nors. (Download the full text of this decision at www.cc9.uscourts.gov/)

37)  ELECTION LAW:  Montana Right to Life Association v. Eddleman, 00-35924 (9th Cir. Sept. 24, 2002).  Montana's campaign finance reforms which lowered the amount of money individuals and political action committees (PACs) could contribute to candidates and limited the amount a candidate for the state legislature could receive from all PACs combined were closely tailored to achieve Montana's legitimate interest in purging corruption and the appearance of corruption from its electoral system; the reforms thus do not violate the First Amendment;  dissenting in part, Judge Teilborg thought that with respect to the aggregate PAC contribution limit, Montana failed to show a genuine threat to important governmental interests or employed means closely drawn to avoid unnecessary abridgement of protected activity.  Alarcon and Silverman (author), Circuit Judges, and Teilborg (dissenting in part).  J. Bopp of Terra Haute, ID, for the plaintiff;  B. Morris of Helena, MT, for the defendant.(Download the full text of this decision at www.cc9.uscourts.gov/)

38)  ADMINISTRATIVE LAW / THE CENSUS:  Los Angeles v. U.S. Dept. of Commerce, 01-55986 (9th Cir. Sept. 27, 2002).  The Secretary of Commerce's interpretation of 13 USC Sec. 195, as permitting him to consider accuracy as a component of the feasibility of using sampling in the taking the census, is a permissible construction of the statute;  the Secretary's decision not to use sampling to statistically adjust Census 2000 was not arbitrary and capricious; dissenting, Judge Reinhardt, thought that the Secretary did not consider the feasibility of sampling and, had he, he could not have concluded that sampling was not feasible.  Ferguson (author), Reinhardt (dissenting), and Graber, Circuit Judges.  T. Riordan of Los Angeles, CA, for the plaintiffs;  M. Raab of Washington, DC, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

39)  WARSAW CONVENTION:  Hosaka v. United Airlines, 00-15223 (9th Cir. Sept. 18, 2002).  Article 28(1) of the Warsaw Convention overrides the discretionary power of federal courts to dismiss an action for forum non conveniens;  the USCA thus reversed the district court's dismissal of claims related to injuries caused by air turbulence. Reinhardt and Fisher (author), Circuit Judges, and Molloy, District Judge.  G. Sterns of Oakland, CA, for the plaintiffs;  R. Grotch of Redwood City, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

40)  INTERNATIONAL CHILD CUSTODY:  Holder v. Holder, 01-35467 (9th Cir. Sept. 6, 2002).  That a "left-behind" parent failed to raise a Hague Convention claim in his state custody action did not bar him from raising the claim in a later federal proceeding;  dissenting, Judge Thompson thought the parent waived the claim as he had initiated and litigated the custody dispute in state court, press the state court to decide the issue on the merits, and then sought relief under the Convention only after the state court issued an adverse ruling. D.W. Nelson, Thompson (dissenting), and Paez (author), Circuit Judges.  R. Rolfe of Edmonds, WA, for the petitioner;  A. All-red of Seattle, WA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

41)  ENERGY LAW:  Southern California Edison Co. v. Lynch, 01-56879 (9th Cir. Sept. 23, 2002).  Assuming its interpretation of California law is correct regarding issues certified to the California Supreme Court, the USCA held that the stipulated judgment between Southern California Edison and the California Public Utilities Commission regarding electricity rates violates California Public Utilities Code Sec. 368 and thus should be vacated as void.  Browning, Thomas (author), and Rawlinson, Circuit Judges.  R. Finkelstein and T. Houlihan of San Francisco, CA, for the intervenor;  G. Cohen of San Francisco, CA, for the defendants;  S. Picket of Rosemead, CA, and R. Olson of Los Angeles, CA, for the plaintiff.(Download the full text of this decision at www.cc9.uscourts.gov/)

42)  CIVIL FORFEITURE:  USA v. $80,180, 01-55466 (9th Cir. Sept. 19, 2002).  The heightened burden of proof of the Civil Asset Forfeiture Reform Act of 2002 applies to those proceedings in which the government files it complaint for civil forfeiture on or after the Act's effective date, August 23, 2000.  Pregerson, Fisher (author), and Tallman, Circuit Judges.  R. Barnett of San Diego, CA, for the claimants;  AUSA R. Linley of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

43)  JURISDICTION:  Dole Food Co. v. Watts, 01-55002 (9th Cir. Sept. 10, 2002). Personal jurisdiction existed in California over European citizens and residents in a California company's suit for fraudulent inducement into a lease, where evidence showed that the defendants' actions were "expressly aimed" at California, and sufficient harm was suffered in California;  the California company alleged that the European defendants fraudulently induced it to lease warehouse space in The Netherlands on unfavorable terms without disclosing their ownership interests in the property.  Wardlaw and W. Fletcher (author), Circuit Judges, and Fogel, District Judge.  R. Klonoff of Washington, DC, for the appellant;  S. Frankel of San Francisco, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

44)  JOINDER:  Schnabel v. Lui, 01-55038 (9th Cir. Sept. 5, 2002).  In an action by two partners against a third for claims arising under the partnership, the district court did not abuse its discretion in failing to join the partnership as an indispensable party where state law permits plaintiff partners to sue defendant partners for breach of contract, dissolution, and accounting, the partnership had no separate assets, it was not a party to any contracts under its own name, complete relief could be afforded among the existing parties, and failure to join the partnership would not prejudice any party.  Fernandez and Rawlinson, Circuit Judges, and Shea (author), District Judge.  S. Warmuth of Monterey Park, CA, for the defendants;  M. Morin of Los Angeles, CA, for the plaintiffs. (Download the full text of this decision at www.cc9.uscourts.gov/)

45)  IMMUNITY / EDUCATION LAW:  Eason v. Clark County School District, 00-17370 (9th Cir. Sept. 11, 2002).  As Nevada's Clark County School District is not "an arm of the state," it does not enjoy Eleventh Amendment immunity;  the USCA thus reversed the dismissal of plaintiffs' 42 USC Sec. 1983 and state law claims, and the dismissal of plaintiffs' Americans with Disabilities Act and Rehabilitation Act claims against the District.  Reinhardt and Fisher (author), Circuit Judges, and Molloy, District Judge.  B. Buckley of Las Vegas, NV, for the plaintiffs;  R. Roskelley of Las Vegas, NV, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

46)  EDUCATION LAW:  Scott v. Pasadena Unified School District, 00-55532 (9th Cir. Sept. 4, 2002).  Article III standing to challenge a school district admission policy, which permits race and gender to be considered under special circumstances during an admissions lottery, requires some threatened or actual injury.  B. Fletcher (author), D.W. Nelson, and McKeown, Circuit Judges. K. Snider of Springfield, MO, for the appellants; P. Brannan of Washington, DC, for the appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

47)  ESTABLISHMENT CLAUSE: Prince v. Jacoby, 99-35490 (9th Cir. Sept. 9, 2002).  When a high school creates a limited public forum in which student groups can meet during school hours and use school vehicles, equipment and supplies, it cannot deny access to other student groups on the basis that they pursue their secular goals from a religious perspective;  concurring, Judge Hall thought the broad spectrum of officially recognized student clubs and the fact that students are free to organize more such clubs counteract any message of official endorsement, and without more, a school does not violate the Establishment Clause by permitting groups to meet during the school day on a religious-neutral basis;  dissenting in part, Judge Berzon thought that permitting religious activity during student/staff time violates the Establishment Clause, as student/staff time is a period integral to the school day at which attendance is mandatory;  Judge Berzon also did not agree with the majority's opinion that the Establishment Clause permits the provision for religious purposes of school vehicles, school supplies, and school audio and visual equipment, all paid by public funds.  Hall (concurring), Wardlaw (author), and Berzon (dissenting in part), Circuit Judges.  K. Kemper of Seattle, WA, for the plaintiff;  J. Binns of Tacoma, WA, and AUSA B. Kipnis of Seattle, WA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

48)  FREEDOM OF SPEECH:  PMG Intl. Div. v. Rumsfeld, 00-15652 (9th Cir. Sept. 13, 2002).  Military Honor and Decency Act restrictions on the sale or rental of sexually explicit material at military exchanges are reasonable and viewpoint neutral, as the restrictions are not government speech and exchanges are non-public fora.  D.W. Nelson and Hawkins (author), Circuit Judges, and Fitzgerald, District Judge.  G. Goldstein of San Antonio, TX, for the plaintiff;  D. Buchholz of Washington, DC, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

49)  FREEDOM OF SPEECH:  Valdez v. Rosenbaum, 01-35300 (9th Cir. Sept. 5, 2002).  Prohibiting a pretrial detainee from using a telephone did not violate the First Amendment, where his telephone access had been suspended so that he could not tip off his codefendants that arrest warrants were about to be served on them;  the detainee could communicate daily with his attorney by telephone and in person;  he could also confer daily with his attorney in person and receive in-person visits by friends and family;  allowing the detainee full telephone access would have required additional resources to be allocated to monitor his telephone conversations, and there existed no obvious, easy alternatives to the telephone restriction such that would suggest the restriction was an exaggerated response. D.W. Nelson, Thompson (author), and Paez, Circuit Judges.  D. Anderson of Moscow, ID, law student, for the appellant;  AUSA R. Pomeroy of Anchorage, AK, for the appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

50)  CIVIL RIGHTS:  Azer v. Connell, 01-55359 (9th Cir. Sept. 26, 2002).  Under California law, a plaintiff who brought a 42 USC 1983 action, alleging that each defendant in his or her individual capacity wrongfully withheld some $3 million in payments to defendant's company as part of a Medi-Cal fraud investigation, was entitled to the equitable tolling of his claim, as the individual defendants in the state controller's office had adequate notice of they might be subject to the suit.  Wardlaw and W. Fletcher (author), Circuit Judges, and Whyte, District Judge.  P. Hooper of Los Angeles, CA, for the appellants;  DAG K. Lake of Los Angeles, CA, for the appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

51)  CIVIL RIGHTS:  Pavao v. Pagay, 01-15201 (9th Cir. Sept. 30, 2002).  The circumstances of an officer's entry into a residence justified a finding of implied consent where the officer was responding to two dropped 911 calls from what to the dispatcher sounded like a female child, the female child who opened the door looked terrified, and failed to respond after about one minute of questioning, indicating to the officer that something was amiss inside the residence;  the child fully opened the door and stepped back and out of the doorway, indicating an implied invitation to enter, and the other occupants did not object to the officer's entry;  as the officer received implied consent to enter a home under the totality of the circumstances, the 42 USC Sec. 1983 plaintiff failed to meet her burden of establishing that the officer's entry was unlawful.  Wallace, Tashima, and Tallman (author), Circuit Judges.  E. Seitz of Honolulu, HI, for the plaintiff; J. Kamelamela of Hilo, HI, for the defendants.(Download the full text of this decision at www.cc9.uscourts.gov/)

52)  CIVIL RIGHTS:  Henderson v. Simi Valley, 01-55304 (9th Cir. Sept. 24, 2002).  Police officers' entry into a residence to accompany a minor retrieving property pursuant to a court order issued under the California Domestic Violence Prevention Act was justified under the "special needs" exception to the Fourth Amendment's warrant requirement; the plaintiff had advance notice of the order and her privacy expectations did not outweigh the government's compelling interests in maintaining peace and good order through enforcement of domestic violence orders.  Browning, Thomas, and Rawlinson (author), Circuit Judges.  E. Bell of Ventura, CA, for the plaintiff;  M. Berman of Los Angeles, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

53)  PRIVACY:  Medical Laboratory Management Consultants v. ABC, 00-15594 (9th Cir. Sept. 20, 2002).  Under Arizona law, a claim of "intrusion upon seclusion" was not actionable where employees of ABC's "Prime Time Live" program did not intrude upon any reasonable expectation of privacy held by claimant, an owner of Medical Laboratory, in secretly videotaping communications with him re-garding testing errors at his lab.  Hug (author), Cudahy, and Tashima, Circuit Judges.  N. Johnson of Los Angeles, CA, for the plaintiffs;  A. Hurwitz of Phoenix, AZ, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

54)  HUMAN RIGHTS:  Doe I v. Unocal Corp., 00-56603 (9th Cir. Sept. 18, 2002).  Myanmar villagers' Alien Tort Claims Act claims for forced labor, murder, and rape were actionable against Unocal, a U.S. corporation, on the theory that it aided and abetted the Myanmar military, absent a showing of state action, but liability for torture could not be found;  concurring, Judge Reinhardt thought the ancillary legal question of Unocal's third-party tort liability should be resolved by applying general federal common law tort principles such as agency, joint venture, and reckless disregard, instead of by applying a recently-promulgated international criminal law aiding-and-abetting standard that permits the imposition of liability for the lending of moral support.  Pregerson (author), Reinhardt (concurring), and Tashima, Circuit Judges.  P. Hoffman of Venice, CA, and C. Krafchak of Los Angeles, CA, for the plaintiffs;  E. Woodsome of Los Angeles, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

55)  NATIVE AMERICAN LAW:  American Greyhound Racing v. Hull, 01-16672 (9th Cir. Sept. 19, 2002).  Tribes with gaming compacts issued under Arizona law were indispensable parties in litigation challenging the legality of the Arizona Governor's actions in negotiating new gaming compacts;  dissenting, Judge Rymer thought that the relief sought in this case did not affect existing compacts, but concerned only the Governor's authority under state law to enter into gaming compacts prospectively;  while important to the tribes, their interest is not a legally protected interest that may not be resolved in their absence as the existing compacts do not have an automatic term of renewal.  Canby (author) and Rymer (dissenting), Circuit Judges, and Bertelsman, District Judges.  S. Bales of Phoenix, AZ, for the defendants;  N. Wake of Phoenix, AZ, for the plaintiffs; T. Peters of Phoenix, AZ, for the intervenor. (Download the full text of this decision at www.cc9.uscourts.gov/)

56)  NATIVE AMERICAN LAW:  Ramsey v. USA, 01-35014 (9th Cir. Sept. 11, 2002). The Yakama Treaty does not exempt the Yakama Tribe from federal heavy vehicle and diesel fuel taxation. Brunetti, Trott (author), and McKeown, Circuit Judges. D. Carmack of Washington, DC, for the defendant; T. Weaver of Yakima, WA, for the plaintiffs.  (Download the full text of this decision at www.cc9.uscourts.gov/)

57)  NATIVE AMERICAN LAW:  Gobin v. Snohomish County, 00-36031 (9th Cir. Sept. 18, 2002).  Congress did not expressly authorize county land-use regulation of Indian fee lands on a reservation when it made those lands freely alienable and encumberable.  Brunetti, Trott (author), and Tallman, Circuit Judges.  M. Slonim of Seattle, WA, for the plaintiffs; A. R. Allison of Tulalip, WA, for the intervenor; T. Fitzpatrick of Evertt, WA for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

58)  RICO / AGRICULTURAL WORKERS:  Mendoza v. Zirkle Fruit Co., 01-35276 (9th Cir. Sept. 3, 2002).  Legally documented agricultural workers have standing under the Racketeer Influenced and Corrupt Organizations Act to sue their employers, whom they allege depressed their salaries by conspiring to hire undocumented workers at below-market wages.  Brunetti, Trott, and McKeown (author), Circuit Judges.  S. Berman of Seattle, WA, for the appellants;  I. Schwartz of Seattle, WA, and J. Carroll of Yakima, WA, for the appel-lees. (Download the full text of this decision at www.cc9.uscourts.gov/)

59)  IMMIGRATION LAW:  USA v. Hovsepian, 99-50041 (9th Cir. Sept. 30, 2002).  A federal district court improperly granted citizenship to resident aliens whose applications already had been rejected by the INS in part because of their past terrorist activities;  the record revealed no compelling or exceptional circumstances for the district court to decide the applications in the first instance; the district court thus erred in failing to remand the matter to the INS for further proceedings; dissenting, Judge Nelson thought that the majority's opinion "casts doubt" on two Circuit cases and improperly applied the "abuse of discretion" standard of review in order to facilitate the deportation of two men, who while convicted in their youth of serious crimes, served their time and had since led exemplary lives in the United States.  D.W. Nelson (dissenting), O'Scannlain (author), and Kleinfeld, Circuit Judges.  AUSA J. Rosenbluth of Los Angeles, CA, for the appellant;  B. Litt and M. Lightfoot of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

60)  IMMIGRATION LAW:  Ekimian v. INS, 99-70322 (9th Cir. Sept. 12, 2002).  The petitioner's motion to reopen deportation proceedings was untimely under 8 CFR Sec. 3.2(c)(2); no appellate jurisdiction existed to review a BIA decision not to reopen sua sponte under 8 CFR Sec. 3.2(a);  dissenting, Judge Bright thought the interest of justice demands that an administrative agency be held accountable for its decisions, and specifically that the liberty interests of the petitioner's family, who have been living in the U.S. for nearly nine years, requires no less.  Bright (dissenting), T.G. Nelson, and W. Fletcher (author), Circuit Judges.  V. Nieblas of Los Angeles, CA, for the petitioners;  D. Bernal of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

61)  IMMIGRATION LAW:  Immigrant Assistance Project v. INS, 99-35472 (9th Cir. Sept. 24, 2002).  Illegal immigrants' challenge to policies and practices adopted by the INS to implement a legalization program in the Immigration Reform and Control Act of 1986 was ripe under the "firm prediction" rule;  although the immigrants' applications had not been adjudicated, it could be firmly predicted that the INS would deny them by virtue of the challenged rule.  Hug, Pregerson (author), and Ferguson, Circuit Judges.  L. Arnold of Washington, DC, for the defendants;  R. Pauw of Seattle, WA, for the plaintiffs. (Download the full text of this decision at www.cc9.uscourts.gov/)

62)  IMMIGRATION LAW:  Abassi v. INS, 01-70846 (9th Cir. Sept. 23, 2002).  When a pro se litigant refers in a motion to "recent Country Reports (from the U.S. Dept. of State)," the BIA must, in evaluating the motion, consider the State Department's most recent relevant country condition profile. Fernandez, Wardlaw, and W. Fletcher (author), Circuit Judges. P. Schwartz of Broomfield, CO, for the petitioner; M. Dougherty of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

63)  IMMIGRATION / CRIMINAL LAW:  USA v. Yoshida, 01-50311 (9th Cir. Sept. 12, 2002).  Bringing aliens into the US in violation of 8 USC Sec. 1324(a) can include guiding aliens to an aircraft headed to the US and accompanying them on the flight;  the evidence established that defendant encouraged illegal aliens to enter the US with knowledge or in reckless disregard of the fact that their entry was illegal.  Reinhardt and Trott (author), Circuit Judges, and Whaley, District Judge. R. Ramsey of Los Angeles, CA, for the defendant; W. Bottger of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

64)  IMMIGRATION / CRIMINAL LAW:  USA v. Leos-Maldonado, 01-10291 (9th Cir. Sept. 9, 2002).  Where the issue was whether under 8 USC Sec. 1326 there existed sufficient evidence of the defendant's entry, attempted entry, or being found in the U.S., the USCA held that it did not have to decide whether the defendant entered or was found in the U.S., as sufficient evidence existed of his attempted entry which involves just two elements:  the specific intent to reenter without consent, and a substantial step towards this illegal reentry;  the defendant's tardy challenge to his conviction limited the USCA review to plain error.  Sneed (author), Hug, and Berzon, Circuit Judges. P. Kimble of Tucson, AZ, for the appellant;  AUSA R. Gordon of Tucson, AZ, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

65)  IMMIGRATION / CRIMINAL LAW:  USA v. Arellano-Torres, 01-10705 (9th Cir. Sept. 18, 2002).  A 1999 Nevada conviction for simple drug possession is an aggravated felony under 8 USC Sec. 1101(a)(43) for purposes of increasing defendant's sentence under USSG Sec. 2L1.2 for illegal reentry.  Fisher (author) and Paez, Circuit Judges, and Whelan, District Judge.  AUSA R. Rachow of Reno, NV, for the plaintiff;  AFPD M. Powell of Reno, NV, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

66)  MEDICAL TREATMENT FOR DETAINEES:  Benson v. Terhune, 01-16833 (9th Cir. Sept. 11, 2002).  On the facts of this case, it was not an unreasonable application of Riggins v. Nevada, 504 US 127 (1992), and Supreme Court decisions concerning the waiver of Miranda rights and the validity of guilty pleas to conclude that a pretrial detainee's acceptance of medication offered by jail staff was voluntary and knowing;  he was capable of logical thought and cogent expression sufficient to refuse treatment or to ask for more information before she undertook treatment; in the context of this case, the jail staff had no affirmative duty to volunteer information about the drugs.  Schroeder, Fisher (author), and Paez, Circuit Judges. D. Lipmanson of Navarro, CA, for the petitioner; DAG G. Ott of San Francisco, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

67)  INEFFECTIVE ASSISTANCE:  Luna v. Cambra, 01-55841 (9th Cir. Sept. 27, 2002). Counsel's failure to interview and subpoena two alibi witnesses and one exonerating witness was prejudicial ineffective assistance. Ferguson (author), Tashima, and Graber, Circuit Judges. C. Wilke of Los Angeles, CA, for the petitioner; C. Mar of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

68)  SEARCH & SEIZURE:  USA v. Chavez-Miranda, 01-50615 (9th Cir. Sept. 30, 2002).  Forcible entry 20 to 30 seconds after officers knocked and announced their purpose did not violate the "knock and announce" rule, 18 USC Sec. 3109; the officers were executing a warrant at an apartment they knew to be occupied and in which they had good reason to believe narcotics were being kept; a substantial basis existed for finding probable cause to issue a search warrant, and a reasonable nexus between narcotics trafficking and the apartment that justified searching it;  a Franks hearing was not required as the defendant failed to meet his burden of proving reckless disregard by the affiant and the omissions in question were immaterial to a finding of probable cause.  T.G. Nelson, Paez, and Tallman (author), Circuit Judges.  M. Garey of Santa Ana, CA, for the defendant;  AUSA J. Hueston of Santa Ana, CA, for the plaintiff.(Download the full text of this decision at www.cc9.uscourts.gov/)

69)  POST-ARREST QUESTIONING:  Allen v. Roe, 01-17010 (9th Cir. Sept. 24, 2002).  A police officer's post-arrest questioning of a defendant as to the location of the gun he used in a shooting, without first administering Miranda warnings, was warranted under the "public safety" exception;  the officer  reasonably believed that the gun posed a serious likelihood of harm to the public and fellow officers.  Hawkins (author) and Fisher, Circuit Judges, and Moskowitz, District Judge.  AFPD A. McClintock of Sacramento, CA, for the petitioner;  AAG J. Graves of Sacramento, CA, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

70)  DUE PROCESS:  USA v. Larson, 00-10609 (9th Cir. Sept. 4, 2002).  A defendant's stipulation to all the elements of his crime in a stipulated-facts trial which barred his appeal of a suppression ruling must have knowingly and voluntarily surrender his appeal of the suppression ruling.  Canby, Graber, and Paez (author), Circuit Judges.  AFPD A. McClure of San Francisco, CA, for the defendant;  AUSA S. Bunzel of San Francisco, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

71)  EVIDENCE:  USA v. J.R. Gonzales, 00-10514 (9th Cir. Sept. 30, 2002).  "Pay/Owe" sheets offered as "tools of the trade" (such as scales) commonly used by drug dealers, were properly admitted as evidence of drug trafficking and for the purpose of evaluating expert testimony. Hug, Cudahy (author), and Tashima, Circuit Judges.  AFPD H. Fox of Oakland, 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/)

72)  INTERSTATE STALKING:  USA v. Bell, 01-30303 (9th Cir. Sept. 19, 2002).  A conviction and ten-year sentence for using the facilities of interstate commerce for interstate stalking in violation of 18 USC Sec. 2261A requires proof of the "course of conduct" element of the offense charged (specifically, the use of interstate commerce facilities on more than one occasion).  Hawkins (author) and Gould, Circuit Judges, and Ware, District Judge.  P. Juergens of Seattle, WA, for the defendant;  S. Lane of Washington, DC, for the plaintiffs. (Download the full text of this decision at www.cc9.uscourts.gov/)

73)  SENTENCING:  USA v. Quach, 01-10532 (9th Cir. Sept. 13, 2002).  When a plea agreement provides that the government will request a downward departure under USSG Sec. 5K1.1, if the defendant cooperates fully and provides substantial assistance to the government, the government must make a good faith evaluation prior to sentencing as to whether the defendant has provided substantial assistance up to that date.  Fisher and Paez (author), Circuit Judges, and Whelan, District Judge.  J. Mumma of Sacramento, CA, for the defendant;  AUSA K. Melikian of Sacramento, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

74)  SENTENCING:  Valerio v. Crawford, 98-99033 (9th Cir. Sept. 17, 2002).  A state supreme court may not apply a narrowing construction to an unconstitutionally vague aggravating circumstances jury instruction at a capital penalty phase, and determine that it is supported by the evidence as applied, when the penalty-phase factfinder is a jury instead of a judge;  the jury instruction unconstitutional and the error was not cured under Walton v. Arizona, 497 U.S. 639, a procedure unavailable after a jury finding of aggravated or mitigating circumstances;  Judge Fisher concurred, except as to Sec. II(C)(1) (Walton appellate factfinding is not available when the penalty-phase factfinder is a jury);  he noted that neither party raised the application of Walton to "appellate fact-finding" when the penalty-phase factfinder was a jury, and resolution of this issue was not necessary for the USCA's conclusion;  dissenting, Judge Rymer, joined by Judges O'Scannlain, T.G. Nelson, and Graber, thought the majority reached an issues that should not be reached—whether the Nevada Supreme Court could or did cure the "depravity of mind" aspect of the "torture, depravity of mind and mutilation" aggravating circumstance—and held, without warrant, that a state supreme court may not apply a narrowing construction to an unconstitutionally vague instruction and determine that it is supported by the evidence as applied, when the penalty-phase factfinder is a jury instead of a judge.  Schroeder, Reinhardt, O'Scannlain, Rymer (dissenting), T.G. Nelson, Thomas, Graber, W. Fletcher (author), Fisher (concurring), Paez, and Berzon, Circuit Judges.  L. Wishart of Reno, NV, for the petitioner;  F. Del Papa of Las Vegas, NV, for the re-spondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

75)  HABEAS CORPUS:  Williams v. Woodford, 99-99018 (9th Cir. Sept. 10, 2002).  The USCA affirmed the district court's denial of the petitioner's habeas corpus petition, and vacated the district court's order denying the petitioner's Fed. R. Civ. Proc. 60(b) motion for relief from the court's judgment denying his habeas corpus petition because the district court lacked jurisdiction to hear this motion;  the USCA found no constitutional basis to disturb the petitioner's 1981 conviction and death sentence.  Hug (author), T.G. Nelson, and Gould, Circuit Judges.  DFPD C. Manes of Los Angeles, CA, for the petitioner;  DAG L. Brault of Los Angeles, CA, for the respondent.(Download the full text of this decision at www.cc9.uscourts.gov/)

76)  HABEAS CORPUS:  Greene v. Henry, 01-15938 (9th Cir. Sept. 11, 2002).  A district court erred in granting a writ of habeas corpus on the basis of the petitioner's claim of ineffective assistance of counsel where the petitioners defense as presented at trial was "already as good as it was going to get" and no testimony from new witnesses would undermined the prosecution's eyewitness or physi-cal evidence.  Rymer, Kleinfeld (author), and McKeown, Circuit Judges. DAG D. Lowe of Sacramento, CA, for the appellant;  W. Van Winkle of Berkeley, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

77)  HABEAS CORPUS:  Campbell v. Rice, 99-17311 (9th Cir. Sept. 4, 2002).  The petitioner's due process rights had been violated during his state trial when he was excluded from an in-chambers hearing at which his trial counsel, the prosecutor and the judge discussed his counsel's potential conflict of interest rising from the fact that his counsel was being prosecuted by the same district attorney's office on a felony drug charge.  Pregerson (author), Ferguson, and Hawkins, Circuit Judges.  W. Brown of San Francisco, CA, for the petitioner;  DAG J. Vance of San Francisco, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)
 

78)  HABEAS CORPUS:  Ford v. Hubbard, 98-56455 (9th Cir. Sept. 6, 2002).  When informing a habeas petitioner of his options with respect to a petition containing both exhausted and unexhausted state claims, a district court should alert the petitioner to the statute of limitations period and to the fact that a portion of that period had already run;  dissenting, Judge Silverman thought that requiring the district judge to include a statute of limitations warning when informing a habeas petitioner of his options with respect to a mixed petition is to require the judge act as the petitioner's legal advisor.  Pregerson, Reinhardt (author), and Silverman (dissenting), Circuit Judges.  L. Bassis of Los Angeles, CA, for the petitioner;  ADA D. Druliner of Los Angeles, CA, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

79)  HABEAS CORPUS:  Lott v. Mueller, 00-55805 (9th Cir. Sept. 19, 2002).  A federal habeas petitioner may be entitled to equitable tolling for the time he is denied access to legal materials due to his being transferred between detention centers;  concurring, Judge McKeown would reach the same conclusion by the "more direct and practical approach" adopted in Socop-Gonzales v. INS, 272 F.3d 1176 (9th Cir. 2001) (en banc).  Schroeder, Cudahy (author), and McKeown (concurring), Circuit Judges.  D. Ricker of Beverly Hills, CA, for the petitioner;  R. Rich of Los Angeles, CA, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

80)  PRISONS:  Wyatt v. Terhune, 00-16568 (9th Cir. Sept. 23, 2002).  On a matter of first impression in the Circuit, the USCA held that the "exhaustion" requirement of the Prison Litigation Reform Act is a defense (rather than a pleading requirement) that must be raised and proved by the defendant; because the defendants did not meet this burden, the USCA reversed a Rastafarian inmate's equal protection claim regarding the California Department of Corrections' "hair length" regulations.  Bright, B. Fletcher, and Fisher (author), Circuit Judges.  G. Won of San Francisco, CA, for the plaintiff;  P. Bernardino of Sacramento, CA, for the defendants.(Download the full text of this decision at www.cc9.uscourts.gov/)

81)  PAROLE:  McQuillion v. Duncan, 00-55182 (9th Cir. Sept. 25, 2002).  The parole scheme in California under which the petitioner was given his parole date in 1979 gave rise to a constitutionally protected interest;  the process that is due before a prisoner can be deprived of such an interest is a showing that there is "some evidence" in the record to support a later rescission of that date.  Wardlaw and W. Fletcher (author), Circuit Judges, and Whyte, District Judge.  M. Knox of Los Angeles, CA, for the petitioner;  J. Malich of Los Angeles, CA, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

 1)  COPYRIGHTS  Flying J v. Central California Kenworth, 00-17290 (9th Cir. Sept. 3, 2002) (unpublished).  D.W. Nelson, Noonan, and Hawkins, Circuit Judges.
         Flying J brought in the District Court for the Eastern District of California, Judge O'Neill presiding, an infringement and con-version action, alleging that the defendants wrongfully acquired copyrighted architectural plans to build a truck stop known as the "Madera Travel Center" ("MTC").  A jury found defendants Central California Kenworth ("CCK"), Pistacchio, and Daggett liable on both claims and awarded as damages lost franchise fees and MTC profits.  On remittitur, the court struck MTC profits to avoid double recovery.  It also denied Flying J's motion to permanently enjoin the operation of the truck stop. CCK and Pistacchio appealed.
         The USCA affirmed.  The appellants maintained that the actual damages award based on Flying J's lost franchise fees was unduly speculative and impermissibly provided recovery for non-infringed items.  This contention was raised below in the appellant's renewed post-trial Rule 50(b) motion for judgment as a matter of law, and in its Rule 59 motion for a new trial.  The USCA first considered whether the lost franchise fee measure of actual damages is speculative as a matter of law.  Under Frank Music Corp. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505, 512 (9th Cir. 1985), actual damages for infringement are measured according to "market value," which means "what a willing buyer would have been reasonably required to pay a willing seller for the plaintiff's work."  The district court properly relied on Cream Records Inc. v. Jos. Schlitz Brewing Co., 754 F.2d 826, 827-28 (9th Cir. 1983), and Eales v. Environmental Life-styles, Inc., 958 F.2d 876 (9th Cir. 1992), to conclude that market value is a proper measure of actual damages for the infringement at issue here.  The record testimony of Jay Call and Philip Adams supported Flying J's contention that the plans were nowhere available except through the purchase of a Flying J franchise, and that the plans are an integral part of the value of the franchise.  Evidence also showed that the price of a Flying J franchise was $75,000, plus one cent per gallon on fuel sales, plus five percent of non-fuel sales, and that these figures amounted to $3,740,391 from the date of infringement through the date of the jury's verdict.  While a Flying J franchise fee commands benefits beyond the copyrighted plan, the appellants' damages expert did not assign specific valuations to the various elements of the Flying J franchise and was thus barred from offering apportionment testimony. No other evidence was available to allow the jury to calculate a discounted franchise fee to value the plans.  Just as in Cream Records, no evidence was presented that the copyrighted architectural plans were available (or could be valued) for less than the price of a Flying J franchise.  Given the state of the record on the apportionment issue, and the Ninth Circuit's consistent acceptance of market value as a measure of actual damages for copyright infringement, the USCA concluded that the lost franchise fee actual damages award was not speculative as a matter of law.
        The appellants also maintained that the lost franchise fee damages award inappropriately measures the value of "use" of the MTC structure, not the market value of the infringed plans; thus the lost franchise fee award fails to appreciate the distinction between protections under patent and copyright law.  The USCA disagreed.  The lost franchise fees did not reflect the value of use of the architectural plans based on alleged design efficiencies, but the value of the plans as measured by "what a willing buyer would have been reasonably required to pay to a willing seller for the plaintiff's work."  Frank, 772 F.2d at 512.  Such a market value is well established as a measure of actual damages available for acts of copyright infringement.  Eales, 958 F.2d at 880.
           Finally, the appellants maintained that evidence adduced at trial failed to establish a causal link between the act of infringement and the award of lost franchise fees as a measure of actual damages.  The jury was instructed that Flying J bore the burden of showing "with reasonable probability that the infringement was the cause of its loss of revenue."  Flying J's damages expert determined a value of a Madera Flying J franchise by examining actual franchise revenue streams from comparable Flying J franchises.  Consistent with Frank, the district court instructed the jury that the market value was the appropriate measure of actual damages. The jury's verdict reflects the conclusion that the lost franchise fees were an adequate valuation of the copyrighted plans, that the MTC was a Fling J facility, and that Flying J would have realized franchise fees if the plans used to build the MTC had been lawfully acquired.  To establish a causal link it was only necessary that Flying J produce evidence that but for the act of infringement, the appellants would not have been able to secure the plans unless they purchased a Flying J franchise.  The evidence sufficiently establishes this nexus.  The court correctly applied the applicable law in allowing evidence of lost franchise fee actual damages evidence before the jury, and the record supports by substantial evidence the jury's decision to award the actual damages figure for the copyright violation.  The USCA thus affirmed the trial court's rulings with respect to the appellant's post-trial motions concerning actual damages.
           As the USCA found no reason to disturb the district court's actual damages award, the appellants' arguments regarding in-fringer's profits were moot.  The district court granted and Flying J accepted, the appellants' motion for remittitur to strike the award of infringer's profits to avoid double recovery.
            Flying J cross-appealed, alleging that the district court erroneously denied an injunction against the continued operation of the MTC.  Flying J maintained that the district court committed factual error in ruling that it suffered no harm from ongoing business at the MTC.  Flying J maintained that it suffers irreparable harm as long as the infringing MTC plan operates under the name of its competitor, Pilot.  Flying J distinguished as a separate harm its continued loss of franchise fees beyond the date of the jury's judgment, after which no lost fees were awarded.  The USCA disagreed.  The district court expressly recognized that Flying J may suffer future harms;  it just did not allow Flying J a remedy for them.  The USCA noted that Flying J's distinction regarding its future harms was an attempt to cast the injunction as a remedy not precluded by a Rule 37(c)(1) sanction against Flying J for discovery violations.  The district court prohibited evidence of future damages under Rule 37 because Flying J's damages expert failed to include calculations of future damages in his report and concluded that the failure operated to the prejudice of the defendants.  The USCA noted the difference between presenting evidence of future monetary damages and requesting an equitable remedy to allay future harm.  However, it did not appear that the district court abused its discretion in ruling that the requested prospective equitable relief was an attempt to "end-run" a sanction prohibiting prospective legal relief.  Flying J also argued that the district court should not have denied the injunction on the ground that non-party Pilot's due process rights would be adversely affected.  Flying J maintained that Pilot had previously disclaimed its interest in the litigation in a prior motion to quash a subpoena, and judicial estoppel prevented the court from basing its denial of the injunction on a finding that Pilot would be adversely affected.  This application of judicial estoppel appears to be inapposite.  First, Pilot is not a party to the litigation, and judicial estoppel seeks to prevent parties from asserting inconsistent positions to gain advantage. Second, judicial estoppel is an equitable doctrine and Flying J cannot argue that its use is required in this instance.  Finally, the supposedly inconsistent position—that Pilot does indeed have rights and interests at stake in the litigation—was urged by the court, not Pilot.  Flying J offered no precedent to support its novel conception of judicial estoppel, and it did not appear that the district court abused its discretion in denying the requested injunction to safeguard the rights and interests of the adversely affected non-party.

2)  DEFAMATION / ANTI-SLAPP MOTIONS:  Thomas v. Los Angeles Times Comm., 02-55343 (9th Cir. Sept. 6, 2002) (unpublished).  Reinhardt, Trott, and Tashima, Circuit Judges.
          Thomas appealed the dismissal of his defamation action against the Los Angeles Times and Times reporter, Roy Rivenburg. The Times published an article by Rivenburg about Thomas's life story.  Thomas maintained that the article, entitled "Larger Than Life" and published on the first page of the Southern California Living section, gave rise to two defamatory implications: first, that he lied about some of his exploits during and following World War II, and, second, that his language instruction program is a sham.  The District Court for the Central District of California, Judge Collins presiding, granted the defendants' motion to strike the complaint pursuant to California's anti-SLAPP statute, Cal. Civ. P. Code Sec. 425.16, which provides that a defendant may make a special, expedited motion to strike in cases involving their rights to free speech or to petition for redress of grievances.  To prevail against such a motion, the plaintiff must demonstrate that he has a probability of success on the merits of the suit.  
          The USCA reviewed the district court's ruling de novo, and affirmed.  The district court correctly held that Thomas was unlikely to prevail on his claim that he was defamed by the Times article.  He had alleged defamation by implication; thus, under Ninth Circuit precedent he had to prove not only that the article gave rise to a defamatory implication, but that the author intended to convey the defamatory implication.  Dodds v. Am. Broad. Co., 145 F.3d 1053, 1064 (9th Cir. 1998).  Thomas failed to meet even his first burden; the article gave rise to neither of the alleged defamatory implications.  Even if he had met that burden, Thomas did not show that he had a probability of establishing that the author intended the defamatory implications.  As to the first allegedly defamatory implication, that Thomas lied about his past, the article did sets forth conflicting factual accounts of historical events.  It could not, however, be fairly be read as defamatory.  The article did not accuse Thomas of intentionally misstating the truth.  Instead, it contained the views of others that in some respects conflict with some of Thomas's public statements that were contained in his authorized biography.  Moreover, the article did not challenge the principal claims made by Thomas, but rather permits the reader to draw his own conclusions regarding some relatively minor details.  Furthermore, as the district court held, Thomas is a limited-purpose public figure for the purpose of defamation analysis; by authorizing a biography and soliciting press coverage of that work, he "invited attention and comment." Gertz v. Robert Welch, Inc., 418 US 323, 345 (1974).  The validity of Thomas's admittedly extraordinary claims regarding World War II-era exploits are thus particularly appropriate material for close examination and fair comment by the press.  Such an analysis, if it contains opinions from a variety of sources, need not contain all the favorable material supplied by the subject of the article.  Again, it is significant that the challenged article makes it plain that the reader should draw his own conclusions.  With respect to the second allegedly defamatory implication, that Thomas's language instruction program is bogus, Thomas showed even less likelihood of prevailing on the merits.  Indeed, to the extent that the article discussed his language program at all, it primarily contained testimonials praising the efficacy of his teaching methods.  It cites several of his celebrity clients and two prominent educators, all of whom speak in glowing terms about Thomas and his methods of instruction.  The article notes that nobody else can replicate Thomas's instruction techniques, but cannot reasonably be read to suggest that Thomas's language school is a fraud.  The USCA thus concluded that the district court was correct in granting the defendant's anti-SLAPP motion to strike Thomas's complaint.

3)  ENVIRONMENTAL LAW:  California v.  M&P Investments, 01-16991 (9th Cir. Sept. 10, 2002) (unpublished).  Goodwin, Hawkins, and Fisher, Circuit Judges.
          These consolidated appeals concern dual federal and city administrative proceedings in which the State of California and the City of Lodi, California (the "plaintiffs") sought adjudication of liabilities on environmental contamination claims under local, state, and federal law. The federal suit contains over 100 defendants, but only the four involved in the city administrative action (Guild Cleaners, Jack Alquist, Odd Fellows Hall Association of Lodi, and Beckman Capital Corp.) are appellees here.  The plaintiffs maintained that the District Court for the Eastern District of California, Judge Damrell presiding, lacked authority under the All Writs Act to stay enforcement of an administrative abatement order ("the AAO stay") issued in the city administrative action, and lacked authority under FRCP 34 to stay wastewater monitoring inspections ("the wastewater monitoring stay") that the plaintiffs attempted to conduct on the appellees' land pursuant to federal and state environmental law.
          The USCA affirmed in part and dismissed in part.  First, it found it had jurisdiction to review the district court's AAO stay of an enforcing officer's Administrative Abatement Order ("AAO").  The plaintiffs urged jurisdiction on the basis of 28 USC Sec. 1292(a)(1).  While the AAO stay does not on its face grant or deny an injunction, jurisdiction on the basis of Sec. 1292(a)(1) lies where the order: (1) has the practical effect of an injunction, (2) might have a serious, perhaps irreparable, consequence, and (3) can be effec-tually challenged only by immediate appeal.  Carson v. American Brands, 450 US 79, 84 (1981).  The USCA found that the Carson jurisdictional factors were met here.  The AAO stay had the practical effect of an injunction, in that it precluded, at least temporarily, the forms of relief addressed on the face of the plaintiffs' complaint.  The AAO stay also raised the possibility of serious and irreparable consequences—the AAO issued on findings of the potential for immediate and irreparable contamination, and the plaintiff's attempt to abate this condition through local remedy could be fairly characterized as an attempt to respond to a serious environmental hazard where time was of the essence.  Finally, the AAO stay could only be effectually challenged by immediate appeal.  While the district court suggested that the same relief could have been sought through a TRO or a preliminary injunction, the plaintiffs had not yet ob-tained the relief sought in the AAO in federal court.
          Second, the USCA reviewed de novo whether the district court possessed the power to issue an injunction and reviewed for abuse of discretion the district court's exercise of that power.  The court issued the AAO stay under its inherent powers under the All Writs Act, 28 USC Sec. 1651(a).  The plaintiffs relied on In re Baldwin-United, 770 F.2d 328 (2d Cir. 1985), to argue the All Writs Act may be interpreted with reference to related constructions of the Anti-Injunction Act, 28 USC Sec. 2283.  The USCA disagreed.  Baldwin-United involved a stay of imminent state (not administrative) proceedings, under the All Writs Act.  Because the Anti-Injunction Act applies to injunctions against state proceedings, the Second Circuit looked to its construction of that Act in determining whether the district court had authority to issue the stay.  The Ninth Circuit has explicitly held that the Anti-Injunction Act does not apply to injunctions directed at state administrative proceedings, consistent with all circuits reaching the issues.  The USCA thus considered the district court's authority to issue the AAO stay exclusively with reference to constructions of the All Writs Act.  The court's powers under this Act "should be broadly construed," and may be applied to "achieve all rational ends of law."  The Ninth Circuit has explicitly permitted courts to enjoin administrative proceedings commenced after the federal court's assertion of jurisdiction.  The district court also based its order on USA v. Norton, 640 F. Supp. 1257, 1261 (D. Colo. 1986), which applied the reasoning of Securities and Exch. Comm'n v. G.C. George Sec., Inc., 637 F.2d 685 (9th Cir. 1981), to hold that the All Writs Act authorized an injunction staying administrative proceedings initiated by the DEA where it had previously instituted a federal action on the same issues.  Norton and G.C George involved a procedural posture similar to that presented here.  All involved an initial election to file a federal complaint where administrative remedies were also available, and a subsequent attempt to initiate administrative proceedings asserting claims of liability raised in the federal action.  Norton justified the stay of the administrative proceedings on the basis that the federal plaintiff elected relief in federal court in the first instance, caused expenditure of judicial time and resources, and had remedies on appeal if it was dissatisfied with the federal relief ultimately provided.  As these circumstances apply here, the USCA concluded that the court had the authority to issue the AAO stay under the All Writs Act.
            Third, the USCA considered whether the court abused its discretion in issuing the AAO stay.  The court was concerned that the AAO would impede its ability to exercise jurisdiction over the issues in the federal suit.  Moreover, the district court had invested considerable time and resources in overseeing what seems to be an ever-growing and highly complex action.  Finally, the court consid-ered both a TRO and a preliminary injunction on issues similar to those effectively adjudicated by the AAO and it could not be said that the plaintiffs were being deprived of consideration of the "time-sensitive" issues that initially motivate the administrative action.  The USCA also noted that both the record and the parties' post-trial submissions demonstrated that the court is actively and effectively administrating the action in a time-sensitive manner.  Taking these factors together, the USCA concluded the district court was within its discretion in issuing the AAO stay.  Still, the USCA cautioned that in its continuing oversight role, the court remain sensitive to the limits of its jurisdiction over the many fundamentally local matters that may yet be touched by this litigation, particularly where the relevant environmental regulations give the plaintiffs remedial avenues that do not run through federal court.
        Fourth, the USCA considered whether it had jurisdiction to review the court's order requiring that the plaintiffs' well inspections on land owned by potentially responsible parties in this case be conducted pursuant to FRCP 34.  The USCA held that under Carson the answer is "no". The wastewater monitoring order does not have the practical effect of an injunction.  Unlike the court's stay of the AAO order, this order did not address the substance of the federal claim.  Nor did the USCA believe that issuance of the waste-water monitoring order might have serious, perhaps irreparable consequences; it is, at bottom, a discovery order, and in no way keeps the Lodi from fulfilling its statutory obligation to inspect publicly-owned treatment works.  The wastewater monitoring order merely re-quires the plaintiffs, as parties to a federal action, to abide by the Federal discovery rules.  Finally, in recognition of the district court's inherent authority to control its dockets, the USCA did not think the wastewater monitoring order qualified as a matter effectually challenged only by immediate appeal. The USCA thus found itself without jurisdiction to review the plaintiffs' arguments on the merits of this issue.
          The USCA thus held that it had jurisdiction to review the AAO stay and affirmed the district court's entry thereof.  But, it found no jurisdiction to review the wastewater monitoring stay and dismissed that portion of the appeal.

4)  AMERICANS WITH DISABILITIES ACT:  Enright v. Local 389 IAMAW, 01-56915 (9th Cir. Sept. 17, 2002) (unpublished).  Hug, O'Scannlain, and Tashima, Circuit Judges.
          Enright appealed pro se an order of the District Court for the Southern District of California, Judge Jones presiding, which dismissed his claims against the International Association of Machinists and Aerospace Workers ("IAMAW") and granted summary judgment on his claims against Local 389, in his action alleging breach of the duty of fair representation, violation of the Americans with Disabilities Act ("ADA"), and retaliation.
         The USCA reviewed de novo and affirmed.  Because Enright failed to allege that the IAMAW participated in any acts that are the subject of this litigation, or that the Local acted as an agent of the IAMAW, the district court properly dismissed Enright's claims against the IAMAW.  The district court also properly granted summary judgment on Enright's claim that the Local breached its duty of fair representation as Enright failed to raise a genuine issue regarding a material fact as to whether the Local's conduct was arbitrary, discriminatory, or in bad faith.  Summary judgment was proper on Enright's ADA claim as he failed to provide evidence that the acts, delays or omissions of the Local subjected him to an adverse employment action on account of his disability.  He also did not provide evidence that the Local subjected him to a retaliatory threat.  Enright's contention that the district court erred by denying oral argument before granting summary judgment was without merit as he failed to show he was prejudiced.

5)  AMERICANS WITH DISABILITIES ACT:  Fultz v. City of Salem, 01-35355 (9th Cir. Sept. 13, 2002) (unpublished).  T.G. Nelson, Graber, and Fisher, Circuit Judges.
          After Fultz suffered a work-related injury to his left ring finger, Salem terminated his employment as a police officer.  Fultz sued, alleging violations of the Americans with Disabilities Act and the Rehabilitation Act.  The District Court for Oregon, Judge Aiken presiding, granted Salem summary judgment.  The USCA affirmed, as the record would not permit a trier of fact to find Fultz "disabled."  Fultz asserted that his injury substantially limited him in the major activity of working.  29 CFR Sec. 1630.2(i) define "working" as a major life activity, but Fultz's substantiality argument was foreclosed by Sutton v. United Air Lines, 527 US 471 (1999).  Fultz's injury precluded him from performing only law enforcement jobs requiring forcible arrests or involvement with potentially combative situations.  That is not a broad class of jobs.  Fultz also asserted that he was substantially limited in his ability to perform manual tasks, a major life activity. But under Toyota Motor Manufacturing v. Williams, 534 US 184 (2002), his evidence was insufficient.  Fultz established that his ability to perform certain manual tasks had been diminished, but "diminished" is different from "substantially limited." Thornton v. McClatchy Newspapers, 292 F.3d 1045 (9th Cir. 2002).  A few tasks such as buttoning a shirt, are "more difficult," but the injury does not prevent or severely restrict him from doing activities of central importance in most people's daily lives.  Under Toyota and Thornton, the evidence could not sustain a finding of substantial limitation in the major activity of performing manual tasks.  As for Fultz's abilities to grab, hold, and grip, the USCA said it did not need to decide whether they were major life activities, as the evidence would not support a finding of substantial limitation.  Fultz testified that he experiences "difficulty" in grabbing, holding, and gripping but failed to demonstrate that this difficulty was a significant restriction.  The other evidence, such as a physician's report written a month before Fultz's termination, document little problem;  according to that report Fultz had a full range of motion in his left wrist, thumb, and non-injured fingers and his left grip was 3/5 as strong as his right grip.  An employer may lawfully decide that a limiting, but not substantially limiting, impairment makes a person less than ideally suited for a particular position.  Sutton, 527 at 490-91. Salem requires all patrol officers to be able to perform forcible arrests and become involved in potentially combative situations, but Fultz could not because of his injured finger.  A person who is not disabled is not entitled to reasonable accommodation.  29 CFR Sec. 1630.2(o)(1).  The USCA said it need not decide whether Salem's job requirements are essential.  Fultz also argued that Salem regarded him as having a disability even if he did not actually have one.  But the evidence established only that Salem accurately regarded Fultz as having an impaired left ring finger, not that it regarded him as disabled.

6)  IMMIGRATION:  Bermudez-Cardiel v. Sonchik, 01-15088 (9th Cir. Sept. 5, 2002) (unpublished).  Lay, Ferguson, and Tallman, Circuit Judges.
            Sonchik, the Phoenix District Director of the INS, appealed an order of the District Court for Arizona, Judge Silver presiding, granting the petitioner habeas relief.  The USCA concluded that it lacked jurisdiction under 28 USC Sec. 2243, and dismissed the petition.  It noted that a writ of habeas corpus must be directed to the person having custody of the person detained.  It thus could not grant relief if the petition failed to name the detainee's custodian as respondent.  The proper respondent in a federal habeas petition is the person having a day-to-day control over the prisoner.  That person is the only one who can product "the body" of the petitioner.  Here, the petitioner named Sonchik as respondent.  Sonchik is not the petitioner's "immediate custodian." Rather, the petitioner's immediate custodian is the warden of the INS facility at which he is being held.  The USCA recognized that Sonchik, as the district director, can enforce an order of deportation against the petitioner and that she is responsible for overseeing INS detention facilities within her district, including the facility in Florence, Arizona, where the petitioner is being held.  However, these facts did not transform her into the petitioner's custodian.  Because the warden of the Florence facility was not the named respondent, the USCA lacked jurisdiction to entertain Sonchik's appeal.  The USCA thus vacated the district court's decision and remanded with instructions to dismiss the habeas petition without prejudice.

7)  IMMIGRATION:  Singh v. INS, 99-71019 (9th Cir. Sept. 17, 2002) (unpublished).  Kozinski and Kleinfeld, Circuit Judges, and Beistline, District Judge.
            The USCA lacked jurisdiction to review the discretionary denial of adjustment of status in this case.  The petitioner raised no substantial claim that he was denied due process of law, but merely second-guess the BIA's weighing of the evidence.  The USCA noted that BIA could conclude from the petitioner's ex-lawyer's declaration, as well as from various inconsistencies found in the petitioner's information forms and testimony, that he had been less than truthful and thus did not present a case warranting the favorable exercise of discretion.  He also appealed the Office of Administrative Appeals' (OAA) denial of his request for temporary protective status as a special agricultural worker (SAW) under Sec. 210 of the Immigration and Nationality Act.  The OAA did not abuse its discretion, and its findings were not directly contrary to clear and convincing facts contained in the record considered as a whole. The petitioner offered contradictory evidence that he was an agricultural worker.  His assertion on the SAW application that he was an agricultural worker directly contradicted his earlier statements that he either was unemployed at the time or was working as a donut maker.  Moreover, when asked about agricultural terms used on his SAW application, he could not provide an explanation.  Finally, even after the deficiencies were pointed out, he still failed to supply the requested documentation to support his claim of past agricultural em-ployment.

8)  IMMIGRATION:  Khodabakhshian v. INS, 97-71400 (9th Cir. Sept. 12, 2002) (unpublished).  Rymer and McKeown, Circuit Judges, and Shea, District Judge.
         The petitioner, a native and citizen of Iran, sought review of a BIA dismissal of his appeal from an Immigration Judge's order removing him from the US to Iran on the grounds he was deportable as charged for having overstayed the termination of his asylum status in violation of 8 USC Sec. 1227(a)(1)(B); that he was an alien convicted of an aggravated felony and thus ineligible for asylum, cancellation of removal, withholding of deportation, and voluntary departure under 8 USC Secs. 1158(b)(2)(B)(i), 1229b(a)(3), 1229b(b)(1)(C), and 1231(b)(3)(B)(ii); and that there was no immediate relief available to him pursuant to 8 USC Secs. 1182(h)(2) and 1255(a)(3) in the form of adjustment of status.
         The USCA noted that Sec. 306 of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 only deprives it of jurisdiction over petitions for review that involve aliens who are removable by reason of having committed a criminal offense covered in Sec. 1227(a)(2)(A)(iii), which pertains to aggravated felonies.  The USCA noted that it has limited jurisdiction to determine whether the petitioner is an alien and has been convicted of an aggravated felony.  The record clearly reveals that the petitioner is an alien.  However, his prior petty theft offenses in violation of California Penal Code Sec. 666 do not make him an aggravated felon.  He thus does not meet the definition articulated in Sec. 306, and the USCA has jurisdiction over his that removal is forbidden by Article 3 of the UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.  The INS issued an interim rule to establish procedures for raising a claim under the Torture Convention after the briefing in this case was completed.  Whether the petitioner is entitled to relief under the Convention is an issue that must first be brought to the attention of the BIA.  The USCA thus dismissed the petition but stayed the mandate for 90 days to give the petitioner an opportunity to move the BIA to reopen proceedings to consider the applicability of Article 3 of the Torture Convention.  

9)  IMMIGRATION / FORCED STERILIZATION:  He v. Ashcroft, 00-70819 (9th Cir. Sept. 9, 2002) (unpublished).  Wallace, Tashima, and Tallman, Circuit Judges.
         At issue here is whether the Board of Immigration Appeals ("BIA") erred in determining that petitioner Wen Jien He failed to establish eligibility for asylum.  The BIA had jurisdiction under 8 CFR Secs. 3.1(b)(3) and 240.53(a), and the USCA had jurisdiction over He's timely-filed petition under 8 USC Sec. 1252(b)(1999).  
         The USCA granted the petition.  He asserts that his testimony, properly credited, established that his wife was forced to be sterilized; that an alien whose spouse was forced to undergo a sterilization procedure can establish eligibility for asylum based on past persecution on account of political opinion; and that he thus established his eligibility for asylum.  When an alien's testimony is unrefuted and credible, direct and specific, it is sufficient to establish the facts to testify to without the need for any corroboration.  Ladha v. INS, 215 F.3d 889, 901 (9th Cir. 2002) (as amended).  Here, the BIA rejected the rationale supporting the Immigration Judge's adverse credibility determination, but then found that He's claim was "not so specific, detailed or even plausible as to obviate the need for documentary evidence to buttress his application for relief."  This, the USCA noted, was essentially the same language the BIA used in Salaam v. INS, 229 F.3d 1234, 1237 (9th Cir. 2000), which held that the BIA had made an adverse credibility finding.  The USCA noted that clearly it can sustain the BIA on its credibility finding and deny the petition.  However, a subsequent event causes it not to do so.  The INS, in its brief on appeal, conceded that the BIA disagreed with the Immigration Judge's adverse credibility determination, thus implicitly finding him credible.  This concession eliminated the BIA's adverse credibility finding.  The USCA thus concluded that it had to assume the BIA found He's testimony credible.  He's testimony that his wife was involuntarily sterilized established past persecution on account of political opinion.  In re C-Y-Z, 21 I&N Dec. 915 (BIA 1997); 8 USC Sec. 1101(a)(42)(a)(1999).  Once past persecution has been established, a presumption of a well-founded fear of future persecution arises. 8 CFR Sec. 208.13(b)(1).  The burden then shifts to the INS to show that country conditions have changed to such an extent that "the application no longer has a well-founded fear of persecution," or that "the applicant could avoid future persecution by relocating to another part of the applicant's country of nationality." Id. Secs. 208.13(b)(1)(i)(A) & (B).  The INS had neither alleged nor presented evidence of either changed country conditions or He's ability to avoid future persecution by relocating within China.  He thus established eligibility for asylum and the USCA remanded the case for the exercise of the Attorney General's discretion.  Moreover, the finding of past persecution triggered the presumption that He established a clear probability of future persecution and is thus entitled to withholding of removal.  Nothing in the record rebutted this presumption.