1) SECURITIES: No. 84 Employer-Teamster Joint Council Pension Trust Fund v. American West Holding Corp., 01-16725 (9th Cir. Feb. 13, 2003). Shareholders met the pleading requirements of the Private Securities Litigation Reform Act of 1995 ("Reform Act"), in alleging that defendants made misleading statements to artificially inflate stock value in violation of Sec. 10(b) of the Securities Exchange Act of 1934 and Rule 10(b)-5; dissenting, Judge Tallman thought the plaintiffs' complaint had not met the standards of the Reform Act. Lay, Ferguson (author), and Tallman (dissenting), Circuit Judges. P. Coughlin of San Francisco, CA, for the plaintiffs; B. Vanyo of Palo Alto, CA, for the defendants.(Download the full text of this decision at www.cc9.uscourts.gov/)

2) SECURITIES: Oracle Corp. v. Falotti, 01-17316 (9th Cir. Feb. 11, 2003). An ex-employee was not entitled to vest his stock options or receive the value of his options as damages after being terminated, as his stock option agreement was not controlled by Swiss law which controlled his employment, and because the option agreement afforded the employer's Compensation Committee sole discretion to interpret the option agreement. Berzon, Tallman (author), and Clifton, Circuit Judges. E.J. Banchero of San Francisco, CA, for the defendant; R. Cooper of Washington, DC, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

3) IDENTITY THEFT / TAXATION: USA v. McNeil, 02-30138 (9th Cir. Feb. 26, 2003). Evidence established that the defendant acted with the intent required to support a bank fraud conviction under 18 USC Sec. 1344(2), where his theft of another's identity was used to obtain a fraudulent federal tax refund. B. Fletcher (author), Kleinfeld, and McKeown, Circuit Judges. E. Sheehy of Helena, MT, for the defendant; W. Mercer of Billings, MT, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

4) TAXATION: Schott v. CIR, 02-70007 (9th Cir. Feb. 18, 2003). A "two-life" annuity retained by the taxpayers in their grantor-retained annuity trusts is an interest qualified under Treasury Regulation Sec. 25.2702. M. Schroeder, Noonan (author), and Clifton, Circuit Judges. G. Harris of Washington, DC, for the petitioners-appellants; R. Wollitzer of Washington, DC, for the respondent-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

5) TAXATION: Milenbach v. CIR, 97-70123 (9th Cir. Feb. 6, 2003). The Los Angeles Memorial Coliseum Commission ("LAMCC") entered an agreement to loan the Oakland Raiders $6.7 million at 10% interest; the Raiders were to repay the loan from 12% of the net receipts from the operation of luxury suites to be constructed by the Raiders at the LA Coliseum; however, the suites were never constructed and the Raiders made no payments on the loan; the USCA concluded that because the Raiders had a non-illusory , unconditional obligation to repay the LAMCC loan, the payments were properly treated as loans and were excludable from income in the year in which they were received. Tashima (author), Thomas, and Paez, Circuit Judges. J. Falk of San Francisco, CA, for the petitioners; K. Rosenberg of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

6) TAXATION: Plans, Inc. v. Sacramento City Unified School Dist., 01-16437 (9th Cir. Feb. 10, 2003). A non-profit group had taxpayer standing to challenge a school district's sponsorship of a Waldorf school as an establishment of religion, as the schools were supported by public funds and the taxpayers challenged the school's curriculum as a whole, and not just a specific program. D.W. Nelson, Beezer, and Wardlaw (author), Circuit Judges. S. Kendal of Elk Grove, CA, for the appellant; C. Keiner of Sacramento, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

7) ENVIRONMENTAL LAW: Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 01-16660 (9th Cir. Feb. 28, 2003). The Tahoe-Sierra Preservation Council ("TSPC") had a full opportunity to contest the provisions of the Tahoe Regional Planning Agency ("TRPA") 1987 Regional Plan, and the manner of its implementation, in litigation resolved by TSPC v. TRPA, 34 F.3d 753 (9th Cir. 1994) and TSPC v. TRPA, 216 F.3d 764 (9th Cir. 2000); because the instant litigation involves claims arising from the same transactional nucleus of facts brought by parties in privity with the prior litigants, res judicata bars all of the claims other than the "as-applied" claims of the 10% plaintiffs; 10% plaintiffs contest the feature of the 1987 Plan allowing property owners with Individual Parcel Evaluation System ("IPES") scores within 10% of the IPES Pass-Fail Line to pursue water quality mitigation projects or pay mitigation fees in order to increase their parcel's IPES score above the threshold for joining the development permit pool; as for these 10% plaintiffs, because no 10% plaintiff has requested application of the 1987 plan's mitigation program to his particular parcel of land, their as-applied claims are not yet ripe. Reinhardt (author), Hawkins, and Thomas, Circuit Judges. L. Hoffman of Tahoe City, CA, for the plaintiffs; E.C. Shute of San Francisco, CA, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

8) ENVIRONMENTAL LAW: California v. Campbell, 01-16397 (9th Cir. Feb. 14, 2003). In a CERCLA case arising out of the contamination of groundwater with trichloroethylene, the defendants raised a genuine issue of material fact as to whether Louisiana-Pacific Corporation ("L-P") was a source of the contamination; the USCA thus reversed the district court's summary judgment for L-P. B. Fletcher, Arnold (author), and Rawlinson, Circuit Judges. D. Campbell of Sacramento, CA, for the defendants-appellants; K. Shea and A. Danzer of San Francisco, CA, for the third-party-defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

9) BANKRUPTCY / PENSION PLANS: In re Stern, 00-56431 (9th Cir. Feb. 4, 2003; dissent amended Feb. 27, 2003). The debtor filed for bankruptcy after the entry of a judgment against him in an arbitration proceeding; at issue was whether the transfer of proceeds from an IRA into a Profit Sharing Pension Plan was a fraudulent conveyance; the USCA held that although the Plan was properly included in the bankruptcy estate, the Plan's assets were exempt from distribution to the debtor's creditors; Judge Alarcon agreed that the Plan funds were not excludable from the debtor's estate, but dissented from the majority's conclusion that the funds were exempt from distribution to the debtor's creditors under California law; he would hold that the trustee presented sufficient facts to support an inference that the debtor transferred funds to the Plan with the intent to hinder, delay, or defraud creditors, and a fraudulent transfer is not exempt from distribution to creditors under California law; he thus thought that whether the debtor acted with fraudulent intent should be determined in a trial on the merits. Alarcon (dissenting in part), Silverman, and Rawlinson (author), Circuit Judges. R. Burstein of Los Angeles, CA, for the appellant; D. Weinstein of Los Angeles, CA, for the appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

10) BANKRUPTCY: In re Foster, 01-56890 (9th Cir. Feb. 7, 2003). The USCA upheld the district court's summary judgment order affirming a bankruptcy court ruling permitting a county district attorney to collect post-petition interests on the debtor's child support arrearages after the claim was paid in full and his Chapter 13 case had been closed; post-petition interest, as an integral part of the nondischargeable child support obligation, is also nondischargeable and may be collected personally against the debtor after the underlying debt is discharged. Browning, Kozinski, and McLane, Circuit Judges. Per Curiam. S. Salehi of Ventura, CA, for the appellants; M. Roth of San Francisco, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)
 

11) BANKRUPTCY / COMMERCIAL REAL ESTATE: In re BCE West, 01-16724 (9th Cir. Feb. 14, 2003). The appellant was not entitled to administrative priority for its claims against the trustee under 11 USC Sec. 365(d)(3), as that section is not applicable to debtors who are lessors; nor was the appellant entitled to priority under Sec. 503(b)(1)(A) because its administrative claim did not arise from a post-petition transaction and conferred no benefit on the debtor's estate. Berzon and Tallman (author), Circuit Judges, and Miller, District Judge. A. Bhachu of Chicago, IL, for the appellants; J. H. Taylor of Phoenix, AZ for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

12) EMPLOYMENT LAW / FIRST AMENDMENT / RETALIATION: Coszalter v. City of Salem, 00-36097 (9th Cir. Feb. 18, 2003). The plaintiffs, current and former employees of Salem, Oregon, sued under 42 USC Sec. 1983, alleging that the defendants violated their First Amendment rights by retaliating against them for publicly disclosing health and safety hazards; the district court entered summary judgment for the defendants after finding that most of the alleged retaliatory acts were not adverse employment actions because they did not constitute losses of valuable benefits or privileges, and that retaliation was not a substantial or motivating factor behind those few acts that were adverse employment actions; reversing and remanding, the USCA held that an adverse employment action is an act reasonably likely to deter employees from engaging in protected speech, and that retaliation could be inferred even when the adverse actions were eight months after such speech; concurring, Judge Ferguson wrote separately to stress that government officials cannot discriminate in any manner, no matter how trivial the First Amendment expression may seem to be. Ferguson (concurring) and W. Fletcher (author), Circuit Judges, and King, District Judge. D. Force of Eugene, OR, for the plaintiffs-appellants; J. Robertson of Salem, OR, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

13) EMPLOYMENT LAW / MEDICAL LEAVE: Gradilla v. Ruskin Mfg., 01-56725 (9th Cir. Feb. 14, 2003). Under the California Family Rights Act ("CFRA"), an employee who leaves work to travel with and care for a family member with a serious health condition is not entitled to leave where the family member, in spite of her serious medical condition, had decided to travel for reasons unrelated to medical treatment; dissenting, Judge Reinhardt thought this case "exemplifies compassionless conservatism," wherein the majority reads the CFRA, "a statute designed to afford a minimal amount of humane and decent treatment to working people with families, as if it were a rigid code intended to limit their rights." Reinhardt (dissenting), Leavy (author), and Trott, Circuit Judges. B. Haiem of Beverly Hills, CA, for the plaintiff-appellant; M. Walker of Los Angeles, CA, for the defendant-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

14) CONSUMER PROTECTION: Ting v. AT&T, 02-15416 (9th Cir. Feb. 11, 2003). A remedies clause in a service agreement between AT&T and its customers was unenforceable as unconscionable under California's consumer protection laws, application of which was not preempted by the Federal Communications Act. Tashima (author), Thomas, and Paez, Circuit Judges. D. Carpenter of Chicago, IL, for the defendant; F. P. Bland of Washington, DC, for the plaintiffs.  (Download the full text of this decision at www.cc9.uscourts.gov/)
 

15) CLASS ACTION CERTIFICATION ORDERS: Beck v. The Boeing Company, 02-35140 (9th Cir. Feb. 25, 2003). Federal R. Civ. Proc. 6(a), which provides that when the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded from the computation, governs the timing of Fed. R. Civ. Proc. 23(f) petitions. Reavley, Kozinski, and W. Fletcher, Circuit Judges. Per Curiam. A. Hollingsworth of Seattle, WA, for the appellants; P. Vial of Seattle, WA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/) See Memo decision #16 below.

16) CLASS ACTIONS: Molski v. Gleich, 00-57099, (9th Cir. Feb. 6, 2003; this decision replaces the withdrawn opinion published at 307 F.3d 1155 (9th Cir. 2002)). This action was brought on behalf of mobility-impaired individuals, alleging denial of access to public accommodations and discrimination under the Americans with Disabilities Act; the district court certified a mandatory class and approved a consent decree under which the defendants would undertake accessibility enhancements, pay monetary damages and class counsel's fees, and make donations to eight disability rights organization; the USCA reversed and remanded, finding that the certification violated class members' due process rights, as a provision released claims of members and left them with little or no relief, and the consent decree was inadequate and fundamentally unfair; specially concurring, Judge Graber thought that one of the main reasons the majority refused to approve the consent decree was mistaken, but that Brown v. Ticor Title Insurance Co., 982 F.2d 386 (9th Cir. 1992) compelled the USCA to reject the consent decree. Ferguson (author), Tashima, and Graber (concurring), Circuit Judges. D. Wakefield of San Diego, CA, for the objector; T. Taylor of San Diego, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

17) SPECIAL MASTERS: Cordoza v. Pacific States Steel Corp., 01-16638 (9th Cir. Feb. 20, 2003). The district court neither committed clear error nor exceed its authority under Fed. R. Civ. P. 53, in supervising a special master and setting his compensation; a special master has the right to appeal final or collateral orders that affect him. McKeown (author) and Paez, Circuit Judges, and Pollak, District Judge. R. Goodin of San Francisco, CA, for the defendants; A. Lazear of Oakland, CA, for the plaintiffs; C. Reese of Oakland, CA, for the real-parties-in-interest. (Download the full text of this decision at www.cc9.uscourts.gov/)

18) JURISDICTION: Meredith v. State of Oregon, 01-35869 (9th Cir. Feb. 27, 2003). The USCA exercised its pendent appellate jurisdiction to review, on interlocutory appeal, the district court's denial of a motion to dismiss on the basis of Younger abstention in conjunction with reviewing the district court's grant of a preliminary injunction; because resolution of the Younger abstention issue was necessary to ensure meaningful review of the grant of the preliminary injunction, the USCA had pendent appellate jurisdiction to review the otherwise non-appealable order denying Younger abstention; however, the USCA affirmed the district court's decision not to abstain under Younger and affirmed its grant of the preliminary injunction. D.W. Nelson, Thompson, and Paez (author), Circuit Judges. J. Metcalf of Salem, OR, for the defendants-appellants; R. Baldwin of Lincoln City, OR, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

19) REMOVAL: EIE Guam Corp. v. The Long Term Credit Bank of Japan, 02-16214 (9th Cir. Feb. 27, 2003). A voluntarily joined foreign sovereign may remove a case from a territorial court to a federal district court when the foreign sovereign obtained the original defendant's interest by assignment after the commencement of the litigation. Hug, Alarcon, and Graber (author), Circuit Judges. S. Hufstedler of Los Angeles, CA, for the appellant-cross-appellee; J. Porter of Los Angeles, CA, for the appellees-cross-appellants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

20) AMERICANS WITH DISABILITIES ACT / COSTS: Miles v. California,01-17040 (9th Cir. Feb. 19, 2003). The district court properly granted costs pursuant to Fed. R. of Civ. Proc. 54(d) after an Americans with Disabilities Act ("ADA") claim was dismissed without prejudice to assertion of state law claims as the ADA claim was barred under the Eleventh Amendment; costs under Rule 54(d) may not be awarded where an underlying claim is dismissed for lack of subject matter jurisdiction, as then the dismissed party is not a "prevailing party. Silverman and Gould (author), Circuit Judges, and Weiner, District Judge. J. H. Scott of San Francisco, CA, for the appellant; J. McFetridge of Sacramento, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

21) ATTORNEYS' FEES: Jorgensen v. Cassiday, 01-17458 (9th Cir. Feb. 6, 2003). An oral joint venture agreement, which contemplated that the parties divide evenly any attorneys' fees received for representing a client, was enforceable under Hawaii law, and the jury could reasonably find that the plaintiff, as well as the defendant, had breached the agreement by surreptitiously taking a client as his alone and not sharing fees with the parties to the agreement. Schroeder, Alarcon (author), and Fisher, Circuit Judges. D. Cushnie of Saipan, MP, for the defendants; J. Bickerton of Honolulu, HI, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

22) ATTORNEY'S FEES, CIVIL RIGHTS: Armstrong v. Davis, 01-15779 (9th Cir. Feb. 10, 2003). An award of attorney's fees to a class of disabled prisoners and parolees was upheld where the attorney's work in a separate case before the U.S. Supreme Court on behalf of litigants with similar interests was reasonably necessary; the Prison Litigation Reform Act fee cap did not apply to fees awarded under the Americans with Disabilities Act and Rehabilitation Act. Reinhardt (author), Tashima, and Berzon, Circuit Judges. J. Blonien of San Francisco, CA, for the defendants; A. Asaro of San Francisco, CA, for the plaintiffs. (Download the full text of this decision at www.cc9.uscourts.gov/)

23) CIVIL RIGHTS: Simmons v. Sacramento County Superior Court, 01-16309 (9th Cir. Feb. 10, 2003). A state prisoner failed to state a claim under 42 USC Sec. 1983 where a default judgment was entered against him in a civil case in which he failed to appear because he was in jail awaiting trial on an unrelated criminal matter. Hug, O'Scannlain, and Graber (author), Circuit Judges. C. Simmons pro se; no appearance for defendants-appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

24) CIVIL RIGHTS: Broam v. Bogan, 01-17246 (9th Cir. Feb. 25, 2003). The interests of justice were served by allowing 42 USC Sec. 1983 claimants, whose convictions had been overturned, to amend their complaint against a deputy district attorney and a sheriff deputy to plead facts (e.g., relevant dates) that might state constitutional claims. Hug, Alarcon (author), and Graber, Circuit Judges. R. Cornell of Reno, NV, for the plaintiffs; B. South of Reno, NV, for the defendants.(Download the full text of this decision at www.cc9.uscourts.gov/)

25) ESTABLISHMENT CLAUSE / EDUCATION LAW: Lassonde v. Pleasanton Unified School Dist., 01-17226 (9th Cir. Feb. 19, 2003). A school district's actions in censoring sectarian, proselytizing portions of a high school graduation speech were necessary to avoid a conflict with the Establishment Clause. Hug, Alarcon, and Graber (author), Circuit Judges. S. Wood of Walnut Creek, CA, for the plaintiff; G. Stubbs of Walnut Creek, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

26) ESTABLISHMENT CLAUSE: Newdow v. U.S. Congress, 00-16423 (9th Cir. Amended Feb. 28, 2003; stay of mandate granted March 4, 2003). Newdow appealed pro se a judgment dismissing his challenge to the constitutionality of the words "under God" in the Pledge of Allegiance to the Flag; he argued that the addition of these words by a 1964 federal statute to the previous version of the Pledge and the daily voluntary recitation of the revised Pledge in the classroom by his daughter's public school teacher [not the daughter's participation, but just her watching and listening as the Pledge is recited] violates the Establishment Clause of the First Amendment; he sought a declaration as to the constitutionality of the 1954 statute in addition to other relief; the district court held that the daily Pledge ceremony in the schools did not violate the Establishment Clause and entered a judgment of dismissal; the USCA vacated the dismissal with respect to Newdow's claim that the school district's Pledge policy violates the Establishment Clause and remanded the cause for further proceedings consistent with the USCA's holding that the school district's policy and practice of teachled recitation of the Pledge, with the inclusion of the words "under God," violates the Establishment Clause; dissenting in part, Judge Fernandez thought the court should not hold that the inclusion of the phrase "under God" violates the religion clauses of the Constitution; instead, he thought it should recognize that these clauses were not designed to drive religious expression out of public thought, but, rather, were written to avoid discrimination. Goodwin (author), Reinhardt, and Fernandez (dissenting in part), Circuit Judges. M. Newdow pro se; AUSA K. Door of Sacramento, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

27) FIRST AMENDMENT: Skaarup v. City of North Las Vegas, 01-17364 (9th Cir. Feb. 28, 2003). The USCA held that there were no material issues of disputed fact on appeal, and that there was neither abridgment of the plaintiff's exercise of speech nor retaliation for this lawsuit; dissenting, Judge Berzon thought the majority minimized critical facts that augment the First Amendment value of the plaintiff's speech and weaken the City's allegations of disruption caused by the speech; if these facts were properly considered, Judge Berzon thought the balance would tip in favor of protecting the plaintiff's speech. Noonan (author), Berzon (dissenting), and Tallman, Circuit Judges. K. Kennedy of Las Vegas, CA, for the plaintiff; R. Freeman of Las Vegas, NV, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

28) SECOND AMENDMENT: Nordyke v. King, 99-17551 (9th Cir. Feb. 18, 2003). A local ordinance prohibiting the possession of firearms on county property did not infringe on rights protected by the First and Second Amendments, as the possession of a gun is not associated with expression; Judge Gould specially concurred in order to state that Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), was wrongly decided, that the remarks in Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), about the "collective rights" view of the Second Amendment, were not persuasive, and that the Circuit would be better advised to embrace the "individual rights" view of the Second Amendment adopted in USA v. Emerson, 270 F.3d 203 (5th Cir. 2001), consistent with USA v. Miller, 307 US 174 (1939); he further thought the court should recognize that individual citizens have a right to keep and bear arms, subject to reasonable restriction by the government, and that the court should revisit whether the requirements of the Second Amendment are incorporated into the Due Process Clause of the Fourteenth Amendment. Alarcon, O'Scannlain (author), and Gould (concurring). D. Kilmer of San Jose, CA, for the appellants; S. Weaver of San Francisco, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

29) POLITICAL SPEECH / ELECTORAL LAW: Arizona Right To Life Political Action Comm. v. Bayless, 01-17065 (9th Cir. Feb. 25, 2003). A state statute regulating political speech in the lead up to an election by requiring notice prior to the distribution of certain political literature and advertising, violated the First Amendment as it burdened speech and was not narrowly tailored to meet a compelling state interest. McKeown (author) and Paez, Circuit Judges, and Pollak, District Judge. D.V. Drury of Scottsdale, AZ, for the appellant; J. Napolitano of Phoenix, AZ, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

30) ELECTORAL LAW: Porter v. Jones, 01-55585 (9th Cir. Feb. 6, 2003). Claims by website creators and users, accused of illegally brokering vote swaps, were neither moot, unripe, nor barred by the Eleventh Amendment; the district court erred in abstaining under Pullman, as there existed a risk that First Amendment rights would be chilled. Lay, Canby, and Paez (author), Circuit Judges. P. Eliasberg of Los Angeles, CA, for the plaintiffs-appellants; DAG L. Lopez of Sacramento, CA, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

31) IMMIGRATION / ASYLUM: Hoxha v. Ashcroft, 01-71636 (9th Cir. Feb. 18, 2003). Hoxha, an ethnic Albanian male from the former Kosovo region of Serbian, entered the US as a student and overstayed his visa; the BIA found him ineligible for either asylum or withholding of deportation; the USCA reversed and remanded, finding that substantial evidence supported the BIA's denial of eligibility for asylum but not also the denial of withholding of deportation. Canby (author), Gould, and Berzon, Circuit Judges. C. Pierce of Los Angeles, CA, for the petitioner; N. Schwarz of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

32) IMMIGRATION: USA v. Soberanes, 02-10483 (9th Cir. Feb. 10, 2003). A prior conviction for attempted possession of more than eight pounds of marijuana is an "aggravated felony" under Sentencing Guidelines Sec. 2L1.2(b)(1)(C), as amended. Hug, Alarcon, and Graber (author), Circuit Judges. AFPD G. Bashore of Tucson, AZ, for the defendant; AUSA C. Cabanillas of Tucson, AZ, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

33) IMMIGRATION: Ramirez-Alejandre v. Ashcroft, 00-70724 (9th Cir. Feb. 13, 2003). Sitting en banc, the USCA remanded to the BIA for reconsideration of the tendered evidence without application of the categorical exclusion rule-namely that "this Board as an appellate body does not consider evidence submitted for the first time on appeal." Dissenting, Judge Trott stated four reasons for rejecting the petitioner's claim that the BIA's decision not to consider new factual information "just sent in" for the first time on appeal regarding the merits of his request for suspension of deportation deprived him of due process. Schroeder, O'Scannlain, Trott (dissenting), Tashima, Thomas (author), W. Fletcher, Gould, Paez, Berzon, Tallman, and Rawlinson, Circuit Judges. J. Kaufman of San Francisco, CA, for the petitioner; M. Dougherty of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

34) IMMIGRATION / UNLAWFUL REENTRY / SENTENCING ENHANCEMENTS: USA v. Ballesteros-Ruiz, 02-10273 (9th Cir. Feb. 10, 2003). Defendant's prior Arizona conviction for possession of marijuana was not an aggravated felony within the meaning of Sentencing Guideline Sec. 2L1.2, as the offense was not punishable by more than one year's imprisonment under applicable state or federal law; the district court thus properly refused to apply an eight-level enhancement to the defendant's sentence. Hug, Alarcon, and Graber (author), Circuit Judges. AUSA L. Boone of Phoenix, AZ, for the plaintiff-appellant; A. Baggot of Apache Junction, AZ, for the plaintiff-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

35) IMMIGRATION / UNLAWFUL REENTRY / PLEA AGREEMENTS / SENTENCING: USA v. Cervantes-Valencia, 02-50000 (9th Cir. Feb. 25, 2003). The defendant's stipulated plea agreement unambiguously called for a 30-month sentence, the maximum period of incarceration for conviction of two counts under 8 USC Sec. 1325(a) (illegal entry into the USA); the 30-month provision is expressed in categorical and unqualified terms, and the defendant's claim that what it really means is "30 months minus whatever time the court thinks should offset the sentence" was not persuasive; the plea agreement allowed the parties to submit information to assist the court in deciding whether or not to accept the plea, but did not allow the district judge to modify the stipulated sentence once the plea agreement is accepted; dissenting, Judge Pregerson thought the district court acted within its authority when it construed the plea agreement to encompass the ten months' imprisonment the defendant served in state prison for the same criminal conduct that underlies the federal offense to which he pled guilty; Judge Pregerson further thought that the district court's construction of the plea agreement did not disturb the bargain between the parties; under the district court's reading of the plea agreement, the defendant still served 30 months' imprisonment for his offense. Pregerson (dissenting), Rymer, and McKeown, Circuit Judges. Per Curiam. AUSA R. Cheng of Los Angeles, CA, for the plaintiff-appellant; DFPD E. Newman of Los Angeles, CA, for the defendant-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

36) INEFFECTIVE ASSISTANCE: Miranda v. Clark County, Nevada, 00-15734 (9th Cir. Feb. 3, 2003). The administrative head of a county public defender's office qualified as a state actor under 42 USC Sec. 1983, for policies leading to the denial of effective representation of counsel, but an assistant public defender was not a state actor in representing a defendant; Judge Kleinfeld concurred in the majority's decision that the district court correctly dismissed the plaintiff's Sec. 1983 claim against the assistant public de-ender who represented him; however, he dissented from the majority's ruling as to the head of the county public defender's office, as the majority ruling did not accurately state what the complaint, upon which this 12(b)(6) ruling must be based, actually says; Judge Silverman agreed with the majority that by virtue of Polk County v. Dodson, 454 US 312 (1981), the assistant public defender's conduct could not be considered "state action" for Sec. 1983 purposes; however, he thought that this was also the case with the head of the public defenders officer; he thus would affirm the dismissal of the complaint against him as well. Schroeder (author), Sneed, Pregerson, Reinhardt, T.G. Nelson, Kleinfeld (dissenting in part), Hawkins, Thomas, Silverman (dissenting in part), Wardlaw, and Berzon, Circuit Judges. R. Jacobson of Jackson, Wyoming, for the plaintiff; T. Beatty of Las Vegas, NV, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

37) FOURTH AMENDMENT RIGHTS: Ganwich v. Knapp, 01-35677 (9th Cir. Feb. 11, 2003). In investigating an organization suspected of criminal wrongdoing, police officers violated employees' Fourth Amendment rights by detaining them incommunicado without probable cause, and using a threat of continued detention to coerce their submission to interrogation. Beezer, Gould (author), and Berzon, Circuit Judges. D. Hamilton of Tacoma, WA, for the defendants-appellants; T. Ford of Seattle, WA, for the plaintiffs-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

38) SENTENCING: USA v. Grice, 01-30462 (9th Cir. Feb. 14, 2003). The USCA upheld the restitution portion of appellant's sentence, imposed following her guilty plea to four counts of mail fraud and four counts of forgery, arising from a scheme to defraud her son and Cook Inlet Region, Inc. The district court properly ordered her to pay $15,882.38 in restitution for dividend checks issued to her son after his 18th birthday which she received in the mail, forged and cashed. Browning, Fisher, and Tallman, Circuit Judges. Per Curiam. AFPD M. Geddes of Anchorage, AK for the appellant; AUSA C. Randell of Anchorage, AK, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

39) SENTENCING: USA v. Leasure, 01-50395 (9th Cir. Feb. 10, 2003). The district court erred in imposing on a convicted narcotics laboratory operator the burden of proving non-participation in an underlying drug offense, but the error was harmless. Hall, Thompson, and Wardlaw (author), Circuit Judges. A. Peterson of Irvine, CA, for the appellant; AUSA D. Yang of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

40) SENTENCING: USA v. Penna, 01-50484 (9th Cir. Feb. 10, 2003). The seven-day limitation in Federal Rule of Criminal Procedure 35(c) for correcting a sentence is jurisdictional; the district court thus lacked jurisdiction to re-sentence the defendant in this case. Reinhardt, O'Scannlain, and Paez (author), Circuit Judges. J. Rochlin of Los Angeles, CA, for the defendant; AUSA M. Young for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

41) HABEAS CORPUS: Stillman v. LaMarque, 02-15139 (9th Cir. Feb. 18, 2003). A prisoner was not entitled to the benefit of the prison "mailbox rule" under the circumstances of this case, but equitable tolling applied due to a prison litigation coordinator's promises to the prisoner's lawyer to obtain the prisoner's signature in time for filing a petition, but then broke this promise, causes the filing to be untimely. Silverman and Gould (author), Circuit Judges, and Weiner, District Judge. G. Weinheimer of San Anselmo, CA, for the petitioner; B. Ortega of San Francisco, CA, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

42) HABEAS CORPUS: Peterson v. Lampert, 00-35897 (9th Cir. Feb. 14, 2003). Sitting en banc, the USCA upheld the denial of a habeas petition where the petitioner failed to exhaust his ineffective assistance claim in Oregon courts, as on the face of his petition for review in the Oregon Supreme Court, he expressly limited his claim to Oregon constitutional law. Schroeder, Kozinski, Trott, Kleinfeld, Tashima, Thomas, McKeown, Wardlaw, W. Fletcher (author), Gould, and Rawlinson, Circuit Judges. M. Sussman of Portland, OR, for the petitioner; J. Metcalf of Salem, OR, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

43) HABEAS CORPUS: Wilson v. Terhune, 01-17448 (9th Cir. Feb. 6, 2003). The presumption of collateral consequences does not apply to prison disciplinary proceedings; and, in this case, the collateral consequences asserted by the petitioner either resulted from his escape or were too speculative to warrant relief. Tashima (author), Thomas, and Paez, Circuit Judges. AFPD A. Claire of Sacramento, CA, for the petitioner-appellant; J. Flynn of Sacramento, CA, for the respondents-appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

44) HABEAS CORPUS: Ho v. Newland, 01-16823 (9th Cir. Feb. 26, 2003). A 28 USC Sec. 2254 habeas petitioner was deprived of his constitutional right to have a jury decide every element of a second-degree murder offense based on implied malice, where the trial court erroneously instructed the jury that it was a general-intent crime; dissenting, Judge Hug thought that the trial judge had correctly instructed on the elements of second degree murder in the oral instructions, and in the written instructions sent to the jury room. Hug (dissenting), Alarcon (author), and Graber, Circuit Judges. D. Riordan of San Francisco, CA, for the petitioner-appellant; M. Howell of San Francisco, CA, for the respondents-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

45) HABEAS CORPUS: Lewis v. Lewis, 01-56927 (9th Cir. Feb. 28, 2003). During jury selection in his state court trial for murder, the petitioner alleged that race motivated the prosecutor's peremptory strike of an African-American member of the jury venire in violation of his constitutional rights as articulated in Batson v. Kentucky, 476 US 79 (1986); the trial court rejected this Batson motion, and the state appellate court affirmed; the USCA concluded that the California Court of Appeal unreasonably applied law clearly established by the Supreme Court, 28 USC Sec. 2254(d); the USCA thus reversed with instructions to grant the habeas petition. D.W. Nelson and T.G. Nelson (author), Circuit Judges, and Schwarzer, District Judge. J. Brainin of Los Angeles, CA, for the petitioner; M. Turchin of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

46) HABEAS CORPUS: Ferguson v. Palmateer, 01-36143 (9th Cir. Feb. 28, 2003). The petitioner, an Oregon prisoner, filed a habeas petition raising claims of ineffective assistance of counsel and prosecutorial misconduct; the district court dismissed the petition as time barred; the petitioner maintained that the federal one-year statute of limitations should be extended to allow full application of Oregon's two-year statute of limitations; the USCA affirmed the district court's ruling, finding that 28 USC Sec. 2244(d)(1)'s one-year limitations period leaves petitioners with a reasonable opportunity to have their federal claims heard. Wallace (author), Trott, and Tashima, Circuit Judges. AFPD C. Dahl of Portland, OR, for the petitioner; AAG J. Lloyd of Salem, OR, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

47) PRISONERS' RIGHTS: Johnson v. California, 01-56436 (9th Cir. Feb. 25, 2003). A prison reception center housing policy that uses race as a factor in assigning a new inmate's initial cell mate does not violate the Equal Protection Clause; it is a policy reasonably related to the prison's concern about racial violence. Hug, Brunetti, and O'Scannlain (author), Circuit Judges. S. Turner of San Francisco, CA, for the defendants; T. Forsheit of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

1) COPYRIGHTS / CONTRACTS: Pitts v. Coronado Custom Homes, 01-16875 (9th Cir. Feb. 3, 2003) (unpublished). B. Fletcher, Arnold, and Rawlinson, Circuit Judges.
            Pitts, dba Design Solutions, appeals the denial of its claims for breach of contract and copyright violations, claims related to the allegedly unauthorized use of its architectural designs and portions of its architectural plans by Coronado Custom Homes ("Coronado"). Pitts maintained that it contracted with Coronado to draft both preliminary designs and final plans for two houses to be built on two adjacent lots, numbered 18 and 19. Pitts argued that Coronado was not entitled to use the preliminary designs that Pitts had drafted for Lot 18 in creating final plans for that house without paying it to complete work on the final plans. Pitts further argued that Coronado was not entitled to use descriptive note blocks and depictions of construction details from the final plans for Lot 19 in the final plans for Lot 18. It asserted additional claims deriving from these actions. The USCA held that evidence in the record supported the district court's finding that, under the terms of the contracts Pitts had drafted, Coronado held a limited license to use both types of disputed materials in its final Lot 18 plans. The USCA further held that evidence supported the district court's findings that Coronado had not authorized Pitts to produce the plans for Lot 18 after the designs for both lots and the Lot 19 plans had been delivered. The USCA thus affirmed the district court's judgment on all counts.
          Although it agreed with the result reached by the district court, it had some disagreements with its analysis. In its construction of the contract language, the district court erred in characterizing the contract between Pitts and Coronado as a contract of adhesion. Under Arizona law, an adhesion contract "is typically a standardized form offered to consumers of goods and services on essentially a 'take it or leave it' basis without affording the consumer a realistic opportunity to bargain and under such conditions that the consumer cannot obtain the desired product or services except by acquiescing in the form contract. … The distinctive feature of a contract of adhesion is that the weaker party has no realistic choice as to its terms. … The essence of an adhesion contract is that bargaining position and leverage enable one party 'to select and control risks assumed under the contract.'" Broemmer v. Abortion Servs., 840 P.2d 1013, 1015-16 (Ariz. 1992) (classifying as an adhesion contract one that was "prepared by defendant and presented to plaintiff as a condition of treatment … [where] the terms of service were not negotiable"). But, here, there was no indication that Coronado could not have bargained for better or other terms or approached other architects for bids. The Fee Agreement was, as both parties agreed, a formalization of a previous oral discussion as to the scope of the parties' relationship; such is not typical of contracts of adhesion.
          The district court stated that, as an adhesion contract, any ambiguities in the contract between the parties must be construed "most strongly" against Pitts as the drafting party. But, because this is not a contract of adhesion, this overstates the intensity with which the contract terms should be construed against Pitts; only the common law rule of contract interpretation applies. The interpretation and meaning of contract provisions are questions of law reviewed de novo. But, the district court did not limit itself to the four corners of the contract here; it made factual findings that are reviewed for clear error. Relying on the parties' testimony, the district court found that while the contract established a relationship between the parties that might include Coronado's paying Pitts to complete work on the Lot 18 plans, it did not obligate Coronado to do so. The USCA found no clear error in its factual findings, and held that even under the lesser common-law standard appropriate for non-adhesion contracts, the district court did not err in holding that the contract did not require Coronado to employ and pay Pitts to draft the final plans for Lot 18.
        Having decided that Coronado could purchase the preliminary design for Lot 18 without contracting to have Pitts draft the final plans, the district court found an implied license for use of that design to create the final plans. Without the ability to make use of the design it contracted and paid for, the design would have been of no value to Coronado. Effects Assocs., Inc. v. Cohen, 908 F.2d 555 (9th Cir. 1990) and the case upon which it relies, Oddo v. Ries, 743 F.2d 630 (9th Cir. 1984), suggest that a contract provision that might render the purchase of preliminary products a useless expenditure should be construed narrowly. Under Pitts' interpretation of the contract terms, Coronado's decision to hire someone else to draft the final plans rendered the Lot 18 designs they had purchased worthless to them. A contract provision that is intended to have such an effect must make that intention explicit. Reviewing the provisions de novo, the USCA found it insufficiently so.
           Pitts' allegation that Coronado authorized it to continue work on the project unless it was notified otherwise that Coronado wished to terminate the agreement is, the USCA noted, a contract claim, not copyright. The parties presented contradictory evidence as to whether Pitts actually conveyed such a request, whether Coronado explicitly conveyed its disinclination to have Pitts perform such work, and whether the parties' course of dealings or industry practice should have allowed Pitts to infer such authorization without having received the "redline" drawings back from Coronado. The USCA did not find clear error in the district court's findings on these factual matters. As for the use in Lot 18 plans of the descriptive note blocks and depictions of construction detail from the Lot 19 plans, the USCA said it did not need to reach the question of whether such materials were too generic to be copyrighted, because it agreed with the district court that Coronado had an implied license for this use. The three-part test for an implied non-exclusive license is taken from Effects Assocs., 908 F.2d at 558-59. If (1) Coronado requested that Pitts produce the Lot 19 plans, (2) Pitts created those plans and delivered them to Coronado, and (3) Pitts intended that Coronado copy and distribute these plans, and implied license will be held to have been granted. The first two elements of this test are clearly met. Regarding the third element, the issue before the court was limited to whether the design for Lot 18 and the plans for Lot 19 could be used to produce plans for Lot 18. It is a fair inference that Pitts intended the note blocks and construction details and the Lot 18 design be used to produce the Lot 18 plans-albeit by Pitts. The district court found that the contract did not express an intention to condition this license on Pitts being the one hired to create those plans. These findings are not clear error. On these facts, absent an explicit contractual provi-sion to the contrary, Coronado was justified in using those materials for that purpose.
          In light of its analysis, the USCA concluded that it did not need to reach any of the derivative claims dealing with contributory infringements, damages, or costs and attorneys' fees. Although Pitts may reasonably have believed that it had a contract to draft the final plans for Lot 18, its interpretation of the contract is not the only possible one. If a party drafting contract language fails to eliminate ambiguity in the contract terms, it does so at its peril. 

2) TRADEMARKS: Morrison Entertainment Group v. Nintendo of America, 01-56694 (9th Cir. Feb. 4, 2003) (unpublished). Canby, Gould, and Berzon, Circuit Judges.
          Morrison Entertainment Group appealed from the district court's grant of summary judgment to Nintendo of America. Nintendo appealed from the district court's judgment that it lacked standing to seek cancellation of the "Monster in My Pocket" mark. 
            The USCA affirmed. First, Morrison maintained that the "Pokemon" trademark is likely to cause "reverse confusion with its mark, "Monster in My Pocket." In other words, a consumer who sees a Monster in My Pocket product might think the product was made by the same people who make Pokemon. In reverse confusion cases, like forward confusion cases, in order to prevail on a trademark infringement claim, a plaintiff must demonstrate a likelihood of confusion. To prevent summary judgment, a plaintiff must produce evidence sufficient to permit a reasonable trier of fact to find such a likelihood. The test for demonstrating likelihood of confusion traditionally turns on whether a reasonable prudent consumer in the marketplace is likely to be confused as to the origin of the good bearing one of the marks or confused as to endorsement or approval of the product. See Dreamwerks Prod. Group, Inc. v. SKG Studio, 142 F.3d 1127 (9th Cir. 1998). In evaluating whether a consumer is likely to be confused, the Ninth Circuit considers the eight non-exclusive Sleekcraft factors. Dreamwerks, 142 F.3d at 1129 (citing AMF, Inc. v. Sleekcraft Boats, 599 F.3d 341, 348-49 (9th Cir. 1979)). Because no single factor is dispositive, the USCA focused only on factors that are particularly instructive as to possible confusion between the two marks at issue. The marks are significantly different in sight and sound. They look very different when written out as text. When they appear in their logo form, as they do on all products, it is even more clear that they are dissimilar. "Pokemon" appears in yellow typeface with a blue border and bubbly cartoon-like lettering. The "Monster in My Pocket" logo, in contrast, is predominantly green. The lettering uses a gothic-style font with jagged edges suggestive of ghouls and goblins. The "in My Pocket" portion of the logo is on a second line and surrounded by a box. "Pokemon" and "Monster in my Pocket" also sound very different. However, the meanings of the two marks are somewhat similar. The congruence in meanings, although not immediately apparent, stems from the fact that "Pokemon" is derived from the nickname for the Japanese version of the game, which is sold under the trade-mark "Pocket Monster." In Japan, "Pocket Monster" is commonly shortened to "po-kay-mon," "Pocket Monster" is undeniably similar, although not identical, in meaning to "Monster in My Pocket." The similarity in meaning has less force than it might otherwise, however, as that similarity is not apparent to the casual observer, who will not know that "Pokemon" is short for "pocket monster." Instead, most observers are likely to simply view "Pokemon" as a fanciful word with no inherent meaning at all. Moreover, any similarity in meaning between the marks is insufficient to overcome the very significant differences in the sight and sound of the mark. When the sight, sound, and meaning of the two marks are evaluated in combination, it is clear that the marks overall, and as encountered in the marketplace, as not similar. Morrison presented no evidence of actual confusion as to the source, affiliation, or endorsement of either its product or Nintendo's. The declarations upon which Morrison relies do not recount any specific instance of this type of actual confusion. Instead, they simply speculate that there may be instances of confusion in the future.
        Morrison's best argument is that people who encounter Monster in My Pocket may think it is a "knock-off" of Pokemon. To the extent such a showing would constitute trademark infringement, a question the USCA found it need not decide, Morrison failed to provide sufficient evidence of this type of confusion. Morrison first relies on an ebay auction site for evidence that consumers think Monster in My Pocket is a knock-off of Pokemon. That site instead suggests the opposite conclusion-that Pokemon was "inspired" by a Monster in My Pocket video. Second, Morrison points to one declaration that suggests confusion regarding whether Monster in My Pocket is a knock-off of Pokemon. That declaration, by Gerry Hurst, a promoter of Monster in My Pocket, states that he has been asked by consumers whether Morrison's product is a "knock-off." Nowhere in the declaration does Hurst suggest that consumers think Monster in My Pocket is a knock-off because of the trademarks themselves. Instead, the single specific example he points to demon-strates that one industry insider thought that Monster in My Pocket was a copy of Pokemon because of similarities between the products, not because of anything related to the trademarks. This so-called confusion evidence thus does not support a Sec. 32 Lanham Act claim. Although Morrison is not required to conduct a survey in order to demonstrate actual confusion, such surveys are often used by plaintiffs to bolster their cases. The absence of such a survey is somewhat telling here, where there is an actual confusion survey in the record conducted by Nintendo showing that children in the target age-group are unlikely to confuse the two trademarks. Morrison has the burden to establish actual confusion and failed to do so. Nor are any of the other Sleekcraft factors sufficient to support Morrison's trademark infringement claim on the current record. Evidence that the marks are used on similar or even identical product lines and in the same marketing channels and are sold to careless purchasers cannot support a finding of likelihood of confusion where the marks are objectively not similar and there is no persuasive evidence of actual confusion. See Cheeseborough-Pond, Inc. v. Faberge, Inc., 666 F.2d 393 (9th Cir. 1982). The USCA thus concluded that no rational trier of fact could find a likelihood of confusion on the evi-dence presented. It thus affirmed the district court's grant of summary judgment in favor of Nintendo on the trademark infringement claims.
          Morrison also maintained that even if the USCA upheld the district court's finding that there is no likelihood of confusion, it should reverse the grant of summary judgment as to the intentional interference with prospective economic advantage and unfair trade practices claims. Morrison's intentional interference claim is based on Warner Brothers' refusal to allow Morrison to reacquire the video rights to the Monster in My Pocket video. Warner Brothers is not a party to this lawsuit, and there is no evidence that any of the defendants were involved in its decision. Thus, the district court's grant of summary judgment to Nintendo on the intentional interference claim was correct.
          Morrison's unfair competition claim brought under California Business & Professions Code Sec. 17200, cannot go forward without a showing of likelihood of confusion. Morrison makes no separate allegations other than those made in the trademark infringement action, to support his unfair competition claims. The USCA previously held that in cases arising out of trademark infringement cases, actions pursuant to Sec. 17200 are "substantially congruent to claims made under the Lanham Act," and require a finding that there is likelihood of confusion. See Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1153 (quoting Cleary v. News Corp., 30 F.3d at 1255 (9th Cir. 1994)) Because there is no likelihood of confusion, Morrison's unfair competition claim cannot sur-vive.
            The final issue before the USCA was the district court's dismissal of Nintendo's counterclaim cause of action to cancel Morrison's trademark. "A petition to cancel a registration of a mark [may] be filed by any person who believes that he is or will be damaged … by the registration of [the] mark." 15 USC Sec. 1064. In its pleadings, Nintendo's only stated basis for believing that it had been or would be damaged by Morrison's trademark was Morrison's "civil action alleging infringement of its registered trademark"-that is, this case. In other words, the cancellation counterclaim was essentially an affirmative defense to Morrison's infringement cause of action. Nintendo no longer has this interest in canceling the trademark, because the infringement action by Morrison has failed on other grounds. Thus, Nintendo's cause of action for cancellation is moot because it no longer presents a live controversy.

3) TAXATION: Lindsey v. CIR, 02-72161 (9th Cir. Feb. 14, 2003) (unpublished). Leavy, Fernandez, and Berzon, Circuit Judges. The petitioners appealed pro se the tax court's grant of summary judgment in favor of the Commissioner of Internal Revenue ("CIR"), contesting the CIR's determination of tax deficiencies for tax years 1989-1993. The USCA affirmed. The tax court properly granted summary judgment because Form 4340 submitted by the CIR is an official document which establishes that tax assessments were made and petitioners have failed to present contrary evidence. Contrary to the petitioners' contention, the tax court properly exercised jurisdiction over their case because it has jurisdiction over tax liabilities that originate from unpaid income taxes, regardless of whether the underlying tax liability is in dispute. Finally, the USCA found unpersuasive the petitioners' contention that the tax court erred by permitted the CIR to supplement his motion for summary judgment with additional forms not supplied during the collection due process hearing. See Connick v. Teachers Ins. & Annuity Ass'n, 784 F.2d 1018, 1020 (9th Cir. 1986) (holding that a court shall consider supplemental documents on a motion for summary judgment).

4) TAXATION: Lindsey v. CIR, 02-70335 (9th Cir. Feb. 14, 2003) (unpublished). Leavy, Fernandez, and Berzon, Circuit Judges. Lindsay appealed pro se the tax court's grant of summary judgment in favor of the CIR in his action challenging a federal tax lien. The USCA affirmed. Lindsay maintained that the tax court erred in granting summary judgment because the appeals officer who conducted his collection due process hearing did not provide him with Form 23C, a summary record of the assessments against him. The USCA disagreed. Lindsay was not entitled to receive Form 23C itself; he was entitled only to the pertinent information it contained. See Koff v. USA, 3 F.3d 1297, 1298 (9th Cir. 1993) (Per Curiam) ("If the taxpayer requests a copy of the record of assessment, he shall be furnished with a copy of the pertinent parts of the assessment which sets forth the name of the taxpayer, the date of assessment, the character of the liability assessed, the taxable period, if applicable, and the amounts assessed." Quoting 26 CFR Sec. 301.6203.1). The record shows that Lindsay received all the required all of the required information. The USCA rejected Lindsay's contention that the tax court deprived him of due process by granting summary judgment before the CIR responded to his request for admissions. The tax court correctly ruled that the information Lindsay sought would not have raised a genuine issue of material fact and that allowing further discovery would have unnecessarily delayed the proceedings. Moreover, the certified transcripts of account submitted by the CIR are presumptive evidence that the assessments against Lindsay were properly made. Because he did not controvert this evidence, the USCA rejected Lindsay's contention that the assessments against him were not valid. Finally, the USCA declined to consider Lindsay's contention that he did not receive notices of deficiencies for the tax years 1990 through 1994 because he raised this issue for the first time in his reply brief.

5) TAXATION: Hale Joy Trust v. CIR, 01-71262 (9th Cir. Feb. 13, 2003) (unpublished). Leavy, Fernandez, and Berzon, Circuit Judges. 
        Rios, the purported trustee for the Hale Joy Trust, the Hawaiian Joy Trust, and the Hale Kahala Trust appealed pro se the tax court's orders dismissing actions challenging notices of deficiency against the trust because she lacked authority under Tax Ct. R. 60 to institute cases on the trusts' behalf. The USCA dismissed the appeal. Each of these consolidated appeals was filed by Rios, who is not a licensed attorney authorized to practice before the Ninth Circuit. A non-attorney trustee may not represent a trust pro se in an Article III court.

6) TAXATION: Hromiko v. CIR, 01-71640 (9th Cir. Feb. 14, 2003) (unpublished). Leavy, Fernandez, and Berzon, Circuit Judges. 
         Hromiko appealed pro se the tax court's decision affirming the CIR's determination of federal income tax deficiencies and penalties for tax years 1994 through 1997. The USCA affirmed. The tax court correctly concluded that Hromiko received taxable earnings for the years 1994 through 1997 that he assigned to a trust to avoid paying tax. The tax court did not clearly err in upholding penalties for failure to file returns and failure to pay estimated tax. Moreover, the tax court did not abuse its discretion when it imposed a $12,500 sanction under 26 USC Sec. 6673(a) on the grounds that Hromiko's positions were frivolous and he instituted this action primarily for delay. Finally, the tax court did not abuse its discretion when it denied Hromiko's motion to withdraw deemed admissions, as Hromiko failed to respond to propounded admissions even after receiving an extension of time to respond.

7) TAXATION: Steidel v. Evans, 02-35733 (9th Cir. Feb. 12, 2003) (unpublished). Sneed. Skopil, and Farris, Circuit Judges.
            The IRS Office of Appeals approved a levy against Steidel for unpaid taxes. He sought review of this administrative determination in the federal district court. The district court gave two independent reasons for its decision to dismiss the complaint for lack of subject matter jurisdiction. First, it found that it lacked jurisdiction pursuant to the statutory scheme. Second, it found that the US did not waive sovereign immunity. Steidel appealed pro se, focusing primarily on the merits of his claim rather than the jurisdictional question.
         The USCA affirmed. While Steidel raised a number of arguments on the merits of his case, the only real issue before the USCA was whether the district court properly dismissed the action for lack of subject matter jurisdiction. Because the district court lacked subject matter jurisdiction, it properly refrained from deciding the merits and dismissed the case. Steidel alleged that the district court had federal question jurisdiction. He maintained that the federal question arose under, first, 26 CFR Sec. 601.102, which provides that employment taxes are not within the jurisdiction of the tax court, and second, 26 USC Sec. 6330(d)(1), which sets forth procedures and jurisdiction for judicial review following a tax levy hearing. Thus, if the tax court has jurisdiction with respect to the underlying subject matter, the tax court has exclusive jurisdiction over an action seeking judicial review of a tax levy determination following a hearing. When the underlying taxes are income taxes, the tax court has such exclusive jurisdiction. Steidel maintained that the underlying tax liability involved employment taxes. There is no evidence that Steidel is liable for employment taxes. The district court found Steidel's assertion "frivolous and without merit." Contrary to Steidel's assertion, the district court found that the underlying tax liability concerned unpaid income taxes. The district court based its finding on several pieces of evidence that demonstrated the unpaid taxes were income taxes. Finding that the underlying taxes were income taxes, the district court applied 26 USC Sec. 6330(d)(1) and dismissed the case for lack of subject matter jurisdiction. The district court also referred to a decision of another court that came to an identical conclusion in a similar case. True v. CIR, 108 F. Supp. 2d 1361 (M.D. Fla. 2000) (district court lacks subject matter jurisdiction over a Sec. 6330 appeal involving income tax as opposed to employment tax). Because the underlying taxes are income taxes, the tax court has exclusive jurisdiction. The district court thus properly dismissed the case for lack of subject matter jurisdiction.

8) BANKRUPTCY: In re A.S. Acquisition Corp., 99-16928 (9th Cir. Feb. 20, 2003) (unpublished). Trott, Rymer, and Tallman, Circuit Judges.
       Elfman attempted to appeal, as an individual, from orders entered by a bankruptcy court allowing the trustee to transfer asserts of A.S. Acquisition Corporation, a Chapter 7 debtor. Breathe-Ez, a limited partnership, granted a license to A.S. Acquisition Corporation. The bankruptcy court allowed this license to be transferred, along with the other assets of A.S. Acquisition Corporation. These appeals were initially brought on behalf of Breath-Ez by Pollard, the court-appointed wind-up partner for Breathe-Ez (which was itself in dissolution). Pollard and Breathe-Ez voluntarily dismissed these appeals. Elfman was allowed to reinstate the appeals as an individual and not on behalf of Breathe-Ez. The bankruptcy trustee, Decker, then challenged Elfman's standing to bring the appeals. To have standing to appeal a bankrptcy order, an appellant must be a "person aggrieved" by the bankruptcy court's order. In re P.R.T.C., Inc., 177 F.3d 774, 777 (9th Cir. 1999). "An appellant is aggrieved if 'directly and adversely affected pecuniarily by an order of the bankruptcy court'; in other words, the order must diminish the appellant's property, increase its burdens, or detrimentally affect its rights." Id. (quoting Fondiller v. Robertson, 707 F.2d 441, 442 (9th Cir. 1983)). Elfman does not have standing because he is not an aggrieved party. Although Elfman characterizes himself as Breathe-Ez's "managing partner for wind up," he is, in fact, only a limited partner of that organization. As a limited partner, he "has no interest in specific partnership property." Cal. Corp. Code Sec. 15671. The bankruptcy order affected the partnership's property: the license that the partnership owed and granted to the debtor. Elfman has no interest in this property. And the bankruptcy court order did not affect Elfman's personal interest in the limited partnership; Elfman's share of the partnership remains the same. As an individual, Elfman lacked standing to appeal the bankruptcy court's order. Mayer v. C.W. Driver, 98 Cal. App. 4th 48, 60 (Cal. Ct. App. 2002) (holding that a partner lacks standing to sue in his individual capacity for damage caused to partnership property).

9) BANKRUPTCY / CIVIL RIGHTS: Gaines v. Pomona College, 02-55002 (9th Cir. Feb. 19, 2003) (unpublished). Browning, Leavy, and Berzon, Circuit Judges.
         Gaines appealed pro se the district court's dismissal of his two civil rights actions pursuant to a stipulation between Pomona College and the Chapter 7 trustee of Gaines' bankruptcy estate. The USCA affirmed. First, it found that the district court properly dismissed Gaines' actions because they were property of his bankruptcy estate and only the bankruptcy trustee had standing to bring the actions. See In re Eisen, 31 F.3d 1447 (9th Cir. 1994) (the bankruptcy trustee, as the representative of the bankruptcy estate, is the only party with standing to prosecute causes of action belonging to the estate). Second, Gaines' appeal of the district court's refusal to enter default is frivolous because Gaines requested entry of default four days after Pomona College filed its answer. Third, the district court did not abuse its discretion in denying Gaines' motion to recuse Judge Snyder. While Judge Snyder is a graduate of Pomona College and contributes money to the school, these are not contacts that could reasonably lead one to question her impartiality. See Id. and cases cited therein (no abuse of discretion for failure to recuse where district judge made small yearly contribution to his law school alumni association).

10) BANKRUPTCY: Leslie v. Holt, 02-15072 (9th Cir. Feb. 14, 2003) (unpublished). Trott, Rymer, and Tallman, Circuit Judges. Leslie appealed the district court's December 12, 2001 order affirming the bankruptcy court's denial of his motion for reconsideration of the bankruptcy court's refusal to dismiss the Chapter 7 bankruptcy proceeding he initiated. The USCA dismissed the appeal as moot. Leslie concedes that the sole reason for seeking dismissal of his bankruptcy cases, which is the only issue on appeal, is to pursue a separate lawsuit filed against ICA Construction Corporation. However, the bankruptcy trustee appointed to administer Leslie's bankruptcy estate settled the ICA litigation and that action has been dismissed with prejudice. No stay was obtained. Nevertheless, Leslie maintained that his appeal is not moot because the matter appealed from is "capable of repetition, yet evading review," is of public interests, and will have collateral consequences. But, the USCA concluded that there is no reasonable chance of Leslie's being subject to the same kind of order again. See Pub. Utils. Comm'n v. Fed. Energy Regulatory Comm'n, 100 F.3d 1451 (9th Cir. 1996) ("When resolution of a controversy depends on facts that are unique or unlikely to be repeated, the action is not capable of repetition and hence is moot."). Nor are other debtors likely to face anything similar. Finally, Leslie identified no cognizable collateral consequences. As there is no effective relief to be granted, the appeal is moot.

11) BANKRUPTCY: In re Claycomb, 02-15871 (9th Cir. Feb. 14, 2003) (unpublished). Leavy, Fernandez, and Berzon, Circuit Judges.
           Claycomb appealed pro se the decision of the Bankruptcy Appellate Panel affirming the bankruptcy court's order denying her motion to reconsider its decision to reopen her Chapter 7 bankruptcy proceeding to administer a personal injury settlement. She also appealed the BAP's dismissal of her appeal from the bankruptcy court's orders awarding fees.
           The USCA affirmed. First, Claycomb's contention that the personal injury settlement was not part of the bankruptcy estate lacked merit. Personal injury claims constitute property under 11 USC Sec. 541(a)(1). Moreover, it is immaterial that Claycomb did not file a personal injury suit in state court until after her bankruptcy proceeding had closed because her personal injury claim arose from an automobile accident that occurred prior to the filing of her Chapter 7 petition. See Sierra Switchboard Co. v. Westinghouse Elec. Corp., 789 F.2d 705 (9th Cir. 1986). Second, Claycomb's contention that the bankruptcy trustee abandoned the personal injury claim by filing a no assets report also lacked merit because Claycomb did not list the personal injury claim on her bankruptcy schedules. See Cusano v. Klein, 264 F.3d 936 (9th Cir. 2001) ("The debtor has a duty to prepare schedules carefully, completely and accurately.") Third, the BAP correctly held that Claycomb lacked standing to challenge the fee award to the special counsel because she did not claim her estate was solvent. See In re Fondiller, 707 F.2d 441 (9th Cir. 1983) ("Only those persons who are directly and adversely affected pecuniarily by an order of the bankrptcy court have been held to have standing to appeal that order. … Thus, a hopeless insolvent debtor does not have standing to appeal orders affecting the size of the estate.") Finally, the BAP properly dismissed Claycomb's appeal to the extent she challenged the award of fees to trustee's counsel because she failed to file an amended notice of appeal. See In re Landmark, 872 F.2d 857 (9th Cir. 1989).

12) BANKRUPTCY: Jenkins v. Ocwen Federal Bank / Sovereign Bancorp, 02-15935 (9th Cir. Feb. 19, 2003) (unpublished). Leavy, Fernandez, and Berzon, Circuit Judges.
         Jenkins appealed pro se the district court's judgment dismissing his actions alleging that his bankruptcy trustee conspired with others to defraud Jenkins by selling his property. Jenkins also appealed the denial of his motion for reconsideration. The USCA affirmed, finding that the district court properly dismissed Jenkins' action for failure to state a claim because his complaint was incoherent and he failed to cure the defects. As Jenkins failed to show any basis for relief from judgment, the district court did not abuse its discretion by denying his motion for reconsideration.

13) BANKRUPTCY / FRAUD: In re Steen, 01-15866 (9th Cir. Feb. 12, 2003) (unpublished). Tashima, Thomas, and Paez, Circuit Judges. 
            Steen appealed the judgment of the bankruptcy court that his debt to Brooks was nondischargeable under 11 USC Sec. 523(a)(2)(B) as a result of his fraud. The district court upheld the bankruptcy court's judgment. The USCA affirmed. Stein maintained that the bankruptcy court's findings that Brooks reasonably relied on Steen's misrepresentations in his credit application were not supported by the evidence and thus were clearly erroneous. The evidence before the bankruptcy court established that (1) Brooks was an individual creditor / lessor and not a routine institutional lender; (2) Brooks considered the credit application important in deciding whether to lease her home to Steen; (3) there was nothing in the application that would have caused Brooks to question Steen's statement in the application; and (4) Brooks reasonably relied on the credit application. The evidence also established that Brooks was seeking to lease her home while she studied abroad, that she wanted a financially secure tenant who would be able to pay rent even if laid off, and that she carefully considered both the credit application and rental agreement before making her decision to lease to Steen. Although there were minor omissions on the application, they were not significant in light of the information Steen did provide, information that appeared reliable. These minor omissions do not undermine the bankruptcy court's finding that Brooks reasonably relied on Steen's misrepresentations. In light of all the evidence before the bankruptcy court, its finding that Brooks reasonably relied on Steen's misrepresentations in the credit application was not clearly erroneous. Steen also maintained that the bankruptcy court's factual findings that he intended to deceive Brooks were not supported by the evidence. The bankruptcy court's findings, however, were not clearly erroneous. The testimony of Steen, Brooks, and the real estate agent for the listing, established that Steen (1) listed his 401K plan on the credit application as liquid funds knowing that his right to withdraw the funds was limited, (2) failed to list his condominium mortgage payments, (3) failed to list his child support obligations, and (4) misrepresented his marital status on the application. In light of this testimony, the USCA held that the bankruptcy court's ultimate finding that Steen intended to deceive Brooks was supported by substantial evidence, and thus, was not clearly erroneous.

14) PROPERTY / COMMON LAW DEDICATIONS: Castle v. City of Hailey, 01-35236 (9th Cir. Feb. 3, 2003) (unpublished). B. Fletcher, Kleinfeld (dissenting in part), and McKeown, Circuit Judges.
            Castle and a company of which she is part owner, Roundup Corral LLC, appealed from the district court's grant of summary judgment in favor of the City of Hailey. The district court concluded that the property in question (the "Castle Property") had been given to the public by a common-law dedication. Hailey concedes that no statutory dedication of the land in question took place. See Idaho Code Secs. 50-1312, 50-1313 (establishing that a statutory dedication requires the owner to designate the property in a recorded plat and the government to take official action "accepting" and "confirming" the dedication). The USCA noted that courts have long recognized common law dedications, which do not require "deed or writing," nor any "particular form or ceremony." City of Cincinnati v. Lessee of White, 31 US (6 Pet.) 431, 437, 440 (1832). In Idaho, the requirements for a common law dedication are "1) an offer by the owner, clearly and unequivocally indicated by his words or acts evidencing his intention to dedicate the land to a public use and 2) an acceptance of the offer by the public." Stafford v. Klosterman, 998 P.2d 118 (Idaho 2000) (citing Pullin v. Victor, 655 P.2d 86 (Idaho Ct. App. 1983)). In deciding whether there was an intent to make a common law dedication, courts may look to the "surrounding circumstances and conditions of the development and sale" of contiguous real estate. Dunham v. Hackney Airpark, Inc., 990 P.2d 1224, 1228 (Idaho Ct. App. 1999). Here, the record on summary judgment leaves unresolved issues of material fact with respect to the issues of common law dedication. A fuller development of the record at trial may fill in the lacunae. Hailey relies largely on the agreement concerning its annexation of the Woodside Property to establish a common law dedication of the Castle Property. However, the terms of the annexation agreement are not sufficiently clear to establish a dedication as a matter of law. To the extent that the terms of the agreement promised the city an amount of open space "plus or minus 10%," it cannot be determined from the record as it currently stands whether the amount of open space provided was within the "plus or minus 10%" promised.
          The USCA also found that the evidence is disputed as to whether there was an offer of dedication. An offer to dedicate land turns on the intent to effect the dedication. Plats 10 and 11 are susceptible of competing inferences as to whether the designation "open space" was meant as a dedication. Specifically, in plat 10, the addition of the word "unsubdivided" could mean that the term "open space" merely described the present state of the property. However, the plats were proposed immediately after McCulloch and the City agreed on the overall plan for Woodside and, in that context, could reasonably indicate an intent to effect a dedication. Accordingly, summary judgment for the City is improper, and McCulloch's actual intent is an issue for trial. Nor does the record, as it stands, clearly and unequivocally establish what property may have been dedicated. In contrast to the plats in other Idaho common law dedication cases, the filed plats here do not sufficiently describe the boundaries of the open space to amount in themselves to a dedication. The ostensible dedication here lacked the precision ordinarily associated with real estate and conveyancing. Accordingly, the USCA reversed the summary judgment entered in favor of the City and remanded for trial.
          Judge Kleinfeld concurred in the majority determination that summary judgment in favor of Hailey had to be reversed. He dissented from the decision only in so far as it did not direct summary judgment in favor of Hailey. He would reverse and remand to the district court with instructions to grant Castle's motion for partial summary judgment and deny Hailey's cross-motion for summary judgment. He thought there was no clear and unequivocal indication of intent to dedicate the land to the public. No recorded plat shows the boundaries of the Castle Property or indicates expressly that it is to be dedicated to the public. The margin notes on plats 10 and 11 are insufficient to meet the platting requirements of Idaho law, and the exterior boundaries of the Castle Property marked "open space" are not shown on the plats in question. Nor, Judge Kleinfeld thought, did the term "open space" clearly and unambiguously set apart the property for public use.

15) CONTRACTS / ARBITRATION / CHOICE OF LAW: James Ford, Inc. v. Ford Dealer Computer Services, Inc.,01-16067 (9th Cir. Feb. 31, 2003) (unpublished). Tashima, Thomas, and Paez, Circuit Judges.
           Ford Dealer Computer Services, Inc. and Universal Computer Systems, Inc. (collectively "FDCS") appealed the district court's judgment confirming an arbitration award to James Ford, Inc. ("James Ford"). The judgment awarded James Ford damages, equitable relief, and attorneys' fees. 
            The USCA affirmed. FDCS first alleged that the arbitrator's decision to apply California law constituted manifest disregard of the law because the contract contained a choice of law provision that unambiguously stated the agreement would be governed by Michigan law. An arbitrator's award may be overturned only if it was rendered in "manifest disregard of law" or constituted a completely irrational decision. Moreover, an arbitrator is not required to state reasons for his findings. A.G. Edwards & Sons, Inc. v. McCollough, 967 F.2d 1401, 1403 (9th Cir. 1992). Because the arbitrator did not state his reasons for applying California law, if James Ford presents plausible permissible grounds on which the arbitrator could have relied to reach his decision, the USCA affirmed. The parties agreed that Sec. 187 of the Restatement (Second) of Conflicts governs the application of the choice of law clause. Under Sec. 187, a choice of law clause "will not be given effect if the consent of one of the parties to the inclusion in the contract was obtained by improper means, such as by misrepresentation, duress, or undue influence, or by mistake." James Ford presented sufficient facts to show that the arbitrator could have determined that James Ford, a California corporation, would not have agreed to be governed by Michigan law if FDCS had not used fraud to convince its officers that FDCS was indeed a part of Ford Motor Company, which is based in Michigan. There was also sufficient evidence for the arbitrator to decide that any relationship between the parties and Michigan was insubstantial. "If, on its face, the award represents a plausible interpretation of the contract, judicial inquiry ceases and the award must be enforced." Employers Ins. Of Wausau v. Nat'l Union Fire Ins. Co., 933 F.2d 1481, 1486 (9th Cir. 1991). 
        FDCS next alleged that the arbitrator exceeded his authority in awarding damages and restitution and rejecting FDCS's contractual and laches defenses. The USCA disagreed. The arbitrator identified multiple grounds for rescission, including FDCS's fraudulent representations, the computer system's failure to serve its essential purpose, and FDCS's violation of the California Unfair Competition Act due to its fraudulent representations. The arbitrator gave no explanation for his determination of the award or amount of damages. In the absence of reasons from the arbitrator, the USCA presumed that he reached his decision on damages on one of the permissible common law or statutory theories presented by James Ford. Moreover, under California law, an award of both benefit of the bargain or lost profits damages and tort damages is permissible when a plaintiff prevails on breach of contract and fraudulent misrepresentation claims. The record does not support FDCS's claims that the damages were duplicative or inconsistent. A plausible application of law to the facts in this case supports the arbitrator's combination of restitution and lost net profit damages in his award to James Ford, a plaintiff that had prevailed in its fraud claim. 
       Although there were contract provisions limiting liability and disclaiming warranties for equipment, equipment maintenance, software, and the on-line parts and vehicle locator service, a plausible interpretation of the contract was that these clauses were inapplicable or alternatively unenforceable in light of the facts as determined by the arbitrator. These provisions were included in different sections of the contract and dealt with the specific pieces of equipment or services described in those sections. Neither these provisions nor other parts of the contract establish a general limitation on damages for a breach of the entire contract. Again, the USCA said it did not assess the "correctness" of an arbitrator's decision because where the parties have agreed to arbitration, we do not review the merits of the dispute; the USCA assessed the arbitrator's award to determine if there was a plausible basis for the arbitrator's interpretation of the contract. FDCS also alleged that James Ford's delay in seeking rescission of the contract prevented the arbitrator from ordering rescission under Sec. 1691 of the California Civil Code. The arbitrator did not expressly address this issue, and in the absence of any indication to the contrary, the USCA presumed the basis for his decision to rescind was one of a number of plausible grounds. For example, under Sec. 1691, the party must be aware of its right to rescind before it can effectuate the rescission. It is unclear from the record when James Ford actually understood that its termination rights would not be recognized and thus that it had a right to rescind. A plausible interpretation of the facts could put that moment of recognition almost immediately before the initiation of the litigation that led to the arbitration award, thus defeating a delay argument.
           Finally, FDCS alleged that the district court abused its discretion by preventing FDCS from making a complete record by refusing to file over 3,000 pages under seal. The district court was well within its discretion to deny the motion to file all 3,000 documents under seal. As the district court order explained, FDCS failed to comply with Local Rule 79-5(b), which requires a party to submit only those documents that contain information that is "genuinely privileged or protectable as a trade secret or otherwise has a compelling need for confidentiality." 

16) EMPLOYMENT DISCRIMINATION: Beck v. The Boeing Company, 02-35140 (9th Cir. Feb. 25, 2003) (unpublished). Reavley, Kozinski, and W. Fletcher, Circuit Judges.
           In an unpublished decision accompanying published opinion #15 above, the USCA held that the district court did not err in certifying the class of women employed at Boeing's Puget Sound facilities for purposes of determining whether the employer engaged in a pattern or practice of discrimination against its female employees because of gender. In a systemic disparate treatment case seek-ing class-wide injunctive or declaratory relief, plaintiffs are not required to offer evidence that each person who seeks relief was a victim of the employer's discriminatory policy to establish their prima facie case. Int'l Board of Teamsters v. United States, 431 US 324, 360 (1977). Rather, their burden is to prove only that "discrimination was the company's standard operating procedure." Id. at 336. That may be done through statistics alone. Id. at 339-40. Because the employer's defense must be "designed to meet the prima facie case" established by plaintiffs' statistical proof, the focus of its rebuttal case likewise, will not be on individual employment decisions. Id. at 360 n. 46. Instead, to meet its rebuttal burden, the employer must demonstrate that the plaintiffs' statistical evidence "is either inaccurate or insignificant." Id. at 360. Hence, Boeing could not defeat class certification at the liability phase by arguing that it is entitled to introduce individualized evidence that each of its employment decisions was motivated by a legitimate nondiscriminatory reason. See, e.g., Probe v. State Teachers' Ret. Sys., 780 F.2d 776, 780 (9th Cir. 1986) (recognizing the applicability of Fed. R. Civ. P. 23(b)(2) to Title VII actions). At various points in its appellate brief, Boeing seems to concede as much. If there is a finding that Boeing engaged in class-wide discrimination, the district court may award at least declaratory and injunctive relief.
         The USCA next found that the district court abused its discretion when it certified the class for purposes of determining plaintiffs' punitive damages claims (Phase II). Although there is no rule against "hybrid certification" under both Rule 23(b)(2) and 23(b)(3), certification here was premature. The district court's order certifying the Phase II class indicates that liability in Phase I would depend on plaintiffs' ability to prove a pattern or practice of discrimination, and that the punitive damages assessed against defendants (if any) will flow from that finding. However, a finding that the employer engaged in a pattern or practice of discrimination does not automatically entitle every class member to damages. See 42 USC Sec. 1981a(b)(1) (allowing the award of punitive damages when the employer acted with reckless indifference to the federal rights of "an aggrieved individual"). To receive punitive damages in a Title VII case, a plaintiff must have suffered some harm as a result of a defendant's illegal behavior. Hence, membership in the Phase II class must be restricted to those who allege that they were harmed by the employer's proven pattern or practice of discrimination. The district court's order contravenes these principles. Because the district court did not certify a class for backpay, the action will terminate upon an award of punitive damages, which, according to the order, automatically "flow from" a finding of a pattern or practice of discrimination. If the district court's certification of the Phase II class were upheld, the beneficiaries of the punitive damages award would necessarily include those class members not affected by the alleged discriminatory policy as well as those who were. This may not be done. The USCA thus vacated the district court's certification order the respect to punitive damages (Phase II).
           Finally, because it held that questions about systemic disparate treatment should be decided first and vacated those aspects of the district court's order that related to class-wide punitive damages, Rule 23(b)(2)'s "predominance" requirement was not violated. See Molski v. Gleich, 307 F.3d 1155, 1165-70 (9th Cir. 2002). The USCA also rejected Boeing's argument that a bifurcated trial plan violates the Seventh Amendment's Reexamination Clause. See Arthur Young & Co. v. U.S. Dist. Court, 549 F.2d 686, 692-93 (9th Cir. 1977), and Hilao v. Estate of Marcos, 103 F.3d 767, 782 (9th Cir. 1996).

17) PENSION FUNDS: Barncord v. San Francisco Culinary Bartenders and Service Employees Pension Fund, Local 2, 01-17410 (9th Cir. Feb. 26, 2003) (unpublished). Beezer, Thomas, and Clifton, Circuit Judges.
         Barncord sued the San Francisco Culinary, Bartenders and Service Employees Pension Fund, Local 2 (the "Fund") for failure to award him retroactive disability benefits. The district court granted summary judgment for the Fund, concluding that Barncord had forfeited those benefits.
          The USCA affirmed. Reviewing the grant of summary judgment de novo, the USCA held that Barncord's disability pension benefits were not protected from forfeiture by plan amendment under 29 USC Sec. 1054(g). That provisions protects only "accrued benefits," including "retirement-type subsidies." Benefits that are not "accrued benefits" may be subject to forfeiture by plan amendment. "In the case of a defined benefit plan, the individual's accrued benefit determined under the plan" is generally "expressed in the form of an annual benefit commencing at normal retirement age." 29 USC Sec. 1002(23)(A) (1999). "In general, the terms 'accrued benefits' refers only to pension or retirement benefits. Consequently, accrued benefits do not include ancillary benefits not directly related to retirement benefits." 26 CFR Sec. 1.411(a)-7(a)(1)(ii) (2002). Such ancillary benefits include "disability benefits not in excess of the qualified disability benefit." Id. The "qualified disability benefit" is "a disability benefit provided by a plan which does not exceed the benefit which would be provided for the participant if he separated from the service at normal retirement age." 29 USC Sec. 1002(22) (1999). The disability pension is not in excess of the "qualified disability benefit" because, under Sec. 4.07 of the Plan, the monthly amount of the disability pension is "determined in the same way as the monthly amount of the Normal Pension is deter-mined." Thus, the disability pension benefits are "ancillary benefits not directly related to retirement benefits." They are not "accrued benefits." Nor are the disability pension benefits "retirement-type subsidies." The term "retirement-type subsidy," as used in Sec. 1054(g), was to be defined by Treasury regulations. See 29 USC Sec. 1054(g)(2)(A). Though the Treasury has yet to promulgate such regulations, the legislative history indicates that "a qualified disability benefit … will not be considered a retirement-type subsidy." S. Rep. No. 575, 98 Cong., 2d Sess, reprinted in 1974 U.S.C.C.A.N. 2547, 2575-76. The disability pension is a "qualified disability benefit" because it does not exceed the normal retirement benefit. Thus, it is not a "retirement-type subsidy." That fact distinguishes the instant case from Canseco v. Constr. Laborers Pension Trust for S. Cal., 93 F.3d 600 (9th Cir. 1996). Whether or not the Fund notified Barncord of the 1997 amendment is inconsequential. Summary judgment was appropriate because Barncord failed to show "active concealment [of the amendment] or some significant reliance upon, or prejudice resulting from the lack of notice." Williams v. Plumbers & Steamfitters Local 60 Pension Plan, 48 F.3d 923, 926 (5th Cir. 1995); accord Kreutzer v. A.O. Smith Corp., 951 F.2d 739, 743 (7th Cir. 1991).

18) IMMIGRATION: Diaz v. INS, 02-70221 (9th Cir. Feb. 13, 2003) (unpublished). Browning, Pregerson, and Reinhardt, Circuit Judges.
           Diaz petitioned for review of the BIA's dismissal of her appeal from the Immigration Judge's denial of her petition for asylum and withholding of deportation. This case fell under the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. When the BIA conducts it own review of the record, as here, the USCA reviews the BIA's decision rather than the Immigration Judge's, except to the extent that the BIA explicitly adopts the Immigration Judge's ruling. The USCA will uphold a BIA decision if it is "supported by reasonable, substantial, and probative evidence on the record considered as a whole. INS v. Elias-Zacarias, 502 US 478, 481 (1992). In the instant case, the petitioner was threatened in 1982 by the New People's Army ("NPA") of the Philippines. However, as the BIA noted, she did not experience further trouble from the NPA after she moved to Quezon City, Philippines. The petitioner claimed that she continued to suffer persecution because in 1990 the police shot her in the leg during a political rally. However, the petitioner conceded in her hearing that the police shot generally into the crowd, not specifically at her. Because reasonable, substantial and probative evidence supported the BIA's conclusion that the petitioner had not established past persecution or a well-founded fear of future persecution, the USCA denied the petition.

19) IMMIGRATION: Yoon v. INS, 01-71883 (9th Cir. Feb. 19, 2003) (unpublished). Silverman and Gould, Circuit Judges, and Sedwick, District Judge.
          The record establishes that Yoon was an alien subject to removal under 8 USC Sec. 1225(a); 8 CFR Sec. 235.1(c). He admits that he is an inadmissible alien under 8 USC Sec. 11 82(a)(7)(A)(i)(I), but argues that he was not an applicant for admission under 8 USC Sec. 1225(a) and subject to removal under 8 CFR Sec. 235.1(c), because he left US soil and only stepped foot in the Vancouver, Canada, international airport, before being denied entry into Canada by Canadian immigration officials at the airport. He was turned over the US immigration officials stationed at the Vancouver airport and returned to the US. The USCA disagreed with Yoon's argument. Although the economic and diplomatic reach of the US may extend internationally, its territorial and jurisdictional reach does not. The Vancouver International Airport is no more a part of the US than the Tower of London. It is true that in 1999 Yoon entered the US on a tourist visa, and overstayed it. But he left the US on April 13, 2001 and his status as a removable alien could not be disputed on this records. Yoon's claims of deprivation of due process by ineffective assistance of counsel failed because he was not prejudiced by the actions of his former counsel who admitted his arriving alien status and admitted that Yoon was an alien, who by fraud, sought to gain admission into the US. Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir. 1999) (prejudice results when "the performance of counsel was so inadequate that it may have affected the outcome of the proceedings"). Yoon was a removable alien, and not prejudiced by the concessions by his attorney.

20) IMMIGRATION: Escardo-Nacianceno v. INS, 01-71586 (9th Cir. Feb. 11, 2003) (unpublished). Hug, Alarcon, and Graber, Circuit Judges.
           Petitioner Escardo-Nacianceno, a Philippines citizen, sought review of the denial of his application for asylum and withholding of deportation. He maintained that the BIA erred by finding that internal relocation within the Philippines was a reasonable way to avoid future persecution.
            The USCA denied the petition for review. The petitioner argued that he is entitled to asylum and withholding of deportation because he has a well-founded fear of persecution from the New People's Army ("NPA"), a communist guerrilla organization operating in the Philippines. The BIA found that internal relocation was reasonable for the petitioner and that he failed to carry his burden of proof in demonstrating that a reasonable person in his circumstances would fear persecution. The USCA noted that even if it were to find that the petitioner suffered past persecution, entitling him to the rebuttable presumption of future persecution, it would hold that his fear of future persecution was not well founded because the INS carried its burden by proving by a preponderance of the evidence that it is reasonable for him to relocate internally within the Philippines. No evidence was presented to show that, after the eight years he has been gone, the NPA is still interested in him. In fact, the petitioner's wife and children have remained in different parts of the Philippines for the past eight years without incident. See Cuadras v. INS, 910 F.2d 567, 571 (9th Cir. 1990) (stating that the appellant's claims were undercut by the fact that his father and brother have not been harmed and remained in El Salvador for five years). The State Department's report on conditions in the Philippines shows that the NPA number fewer than 8,000 members, are diminishing in size and resources, and have a significant presence in less than 2% of the country, principally in the southern island of Mindanao. Finally, the petitioner testified that while working in other areas of the Philippines, he had no problems with the NPA.

21) IMMIGRATION: USA v. Mohsenzadeh, 00-50512 (9th Cir. Feb. 11, 2003) (unpublished). Hall, Kozinski, and Rawlinson, Circuit Judges.
        The USCA held that the district court did not abuse its discretion in denying Mohsenzadeh's motion for a new trial. On the record, the representation provided by Mohsenzadeh's trial counsel did not fall "below an objective standard of reasonableness." Strickland v. Washington, 466 US 668, 688 (1984). Trial counsel's decision not to introduce evidence of Mohsenzadeh's membership in the Mujahedin-e-Khalq or to investigate or present possible evidence of selective prosecution was a reasonable tactical decision that the USCA declined to second-guess. See USA v. Claiborne, 870 F.2d 1463, 1468 (9th Cir. 1989). Nor did trial counsel err in failing to raise a selective prosecution claim as, based on the facts before the USCA, it wouldn't have succeeded. See USA v. Armstrong, 517 US 456, 465 (1996).

22) IMMIGRATION: Zamani v. INS, 01-71234 (9th Cir. Feb. 10, 2003) (unpublished). Kleinfeld and Rawlinson, Circuit Judges, and Rea, District Judge.
          Zamani, a native and citizen of Afghanistan and his wife and children, petitioned for review of a BIA finding that they failed to establish statutory eligibility for asylum and/or withholding of deportation because they were firmly resettled in Germany prior to their arrival in the United States. 
             The USCA denied the petition. Cheo v. INS, 162 F.3d 1227, 1229 (9th Cir. 1998), held that "a duration of residence in a third country sufficient to support an inference of permanent resettlement in the absence of evidence to the contrary shifts the burden of proving absence of resettlement to the applicant." Here, the BIA did not err in finding that the petitioners had firmly resettled because they had obtained some form of "permanent residence" or "some type of permanent resettlement." 8 CFR Sec. 208.15. Significantly, the petitioners did not make a showing sufficient to establish that the conditions were "so substantially and consciously restricted" by the authorities in Germany that they were not in fact resettled. 8 CFR Sec. 208.15(b). The record supports the finding of the BIA, that the petitioners firmly resettled in Germany. Because substantial evidence supports the findings of the BIA, the petition should be denied. INS v. Elias-Zacarias, 502 US 478, 481 (1992) (upholding a BIA decision if supported by reasonable, substantial and probative evidence in the record.).