1)  SECURITIES FRAUD:  Eminence Capital, LLC v. Aspeon, Inc., 01-56728 (9th Cir. Jan. 21, 2003).  Eminence Capital, the lead plaintiff in this class action securities fraud litigation, appealed the district court's dismissal with prejudice under Fed. R. Civ. P. 12(b)(6) of its first amended consolidated complaint for failure to state a claim;  finding that the district court failed to provide sufficient reasons to overcome the presumption in favor of granting leave to amend, the USCA reversed;  Judge Reinhardt concurred in the opinion that none of the relevant factors compelled dismissal without leave to amend, but wrote separately to express his concern about the use of clichés in judicial opinions, a technique, he said, that aids neither litigants nor judges, and fails to advance an understanding of the law;  in particular, he said he regrets the opinion's use of the undeservedly common "three bites at the apple" cliché;  such clichés, he said, too often provide a substitute for reasoned analysis.  Reinhardt (concurring), Trott, and Silverman, Circuit Judges.  Per Curiam.  S. Cera of San Francisco, CA, for the plaintiff-appellant;  D. Daucher of Costa Mesa, CA, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

2)  TAXATION / FRAUD ON THE COURT:  Dixon v. CIR, 00-70858 (9th Cir. Jan. 17, 2003).  A pattern of government misconduct aimed at preventing the Tax Court and taxpayers from learning of settlement agreements amounted to a fraud on the court;  no showing of prejudice was required to justify relief.  D.W. Nelson, Hawkins (author), and Wardlaw, Circuit Judges.  H. Binder and M. Minns of Houston, TX, for the appellants;  J. Dudeck of Washington, DC, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

3)  BANKRUPTCY:  In re Cady, 01-56735 (9th Cir. Jan. 3, 2003).  The USCA affirmed a Bankruptcy Appellate Panel decision up-holding the denial of a motion for annulment of an automatic stay and finding no violation of the stay in the recording of an abstract;  dissenting, Judge Berzon thought that the opinion upon which this case hinged, In re Watson, 78 B.R. 232 (9th Cir. BAP. 1987), had been wrongly decided.  Canby (author), Gould, and Berzon (dissenting), Circuit Judges.  J. Tiemstra of Walnut Creek, CA, for the appellants;  W. Klapperman of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

4)  BANKRUPTCY:  In re Jan Weilert RV, Inc., 01-55455 (9th Cir. Jan. 13, 2003).  Under 11 USC Sec. 547(c)(2)(C), a court cannot limit "ordinary business terms" to the "average" transactions in the industry, but must consider the broad range of terms that encompass the practices employed by similarly situated debtors and creditors facing the same or similar problems.  Reinhardt, Trott (author), and Silverman, Circuit Judges.  J. Bingham of Los Angeles, CA, for the appellee-plaintiff;  J. Hendry of South Pasadena, CA, and D. McGraw of Walnut Creek, CA, for the appellants-defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

5)  BANKRUPTCY:  In re  Emery, 01-55969 (9th Cir. Jan. 28, 2003). Assuming that the underlying agreement created the type of property interest to which the tort of conversion applies, Kasdan did not convert World Savings' interest in the settlement proceeds;  similarly, he did not convert World Savings' rights in the chose-in-action by successfully litigating the Emerys' claims; in so holding, the USCA assumed, without deciding, that this chose-in-action was the type of property interest which could be converted;  the USCA concluded that the Emerys retained the right to litigate, conditioned on World Savings' right to intervene;  World Savings was deprived of the opportunity to intervene because the Emerys failed to alert World Savings to the underlying litigation;  that conclusion might support a breach of contract claim against the Emerys, but would not support World Savings' conversion claim:  Kasdan's actions in creating the very settlement that World Savings now covets were consistent with World Savings' right to retain settlement proceeds up to the amount owed by the Emerys.  Wardlaw and Berzon, Circuit Judges, and Ishii, District Judge.  Per Curiam.  E. Horowitz of Pacific Palisades, CA, for the appellant;  D. Wiseblood of San Francisco, CA, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

6)  ADVERTISING / FIRST AMENDMENT:  Delano Farms Co. v. California Table Grape Comm.,00-16778 (9th Cir. Jan. 27, 2003). Under the First Amendment, grape growers could not constitutionally be compelled by state law to fund the generic advertising of grapes.  Brunetti, Kleinfeld (author), and Thomas, Circuit Judges.  B. Leighton of Clovis, CA, for the appellant;  K. Manock of Fresno, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

 7)  CIVIL PROCEDURE / BANKRUPTCY: Arai v. American Bryce Ranches, 01-56405 (9th Cir. Jan. 21, 2003).  A district court has discretion to deny a Fed. R. App. Proc. 4(a)(6) motion to reopen time to file an appeal even when the rule's enumerated re-quirements are met, but here the court abused its discretion in denying such a motion based on its finding that grounds for the appeal were meritless.  Reinhardt, O'Scannlain (author), and Paez, Circuit Judges.  E. Leff in pro per; J. Kralik of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

8)  INTERNATIONAL LAW / WWII SLAVE LABOR: Deutsch v. Turner Corp., 00-56673 (9th Cir. Jan. 21, 2003). The appellants, who alleged that they were forced to work as slave laborers for German and Japanese corporations during WWII, sought damages and other remedies for lost wages and for other injuries they suffered in the course of their forced labor;  California Code of Civ. Proc. Sec. 354.6 created a cause of action against German and Japanese corporations for claims involving WWII slave labor;  under Sec. 354.6 such claims are not time-barred if commenced on or before Dec. 31, 2010;  although the appellants asserted a variety of statutory and common law claims for relief, all raise Sec. 354.6 as the primary basis for bringing their suits so many years after the alleged wrongs were committed;  the USCA found Sec. 354.6 invalid under the U.S. Constitution because it intrudes on the federal government's exclusive power to make and resolve war, including the procedure for resolving war claims; in the absence of Sec. 354.6, the appellants claims were time-barred.  Reinhardt (author), Trott, and Silverman, Circuit Judges.  J. Cotchett of Burlingame, CA, for the plaintiffs-appellants;  S. Berman of Seattle, WA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

9)  ENVIRONMENTAL LAW:  Montana Wilderness Association v. U.S. Forest Service,  01-35690 (9th Cir. Jan. 6, 2003).  A claim alleging that the U.S. Forest Service violated the Montana Wilderness Study Act, by failing to maintain wilderness study areas, was subject to review under Sec. 706(1) of the Administrative Procedures Act;  however, because genuine issues of material fact exist as to whether the Service met its duty to administer the study areas to maintain wilderness character and potential for inclusion in the Wilderness System, the USCA reversed the district court's grant of summary judgment and remanded for trial.  Trott (author), T.G. Nelson, and Thomas, Circuit Judges. T. Rountree of Washington, DC, for the defendants-appellants;  P. Turcke of Boise, ID, for the defendants-intervenors-appellants;  J. Tuholske of Missoula, MT, for the plaintiffs-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

10)  ENVIRONMENTAL LAW:  Public Citizen v. Dept. of Transportation, 02-70986 (9th Cir. Jan. 16, 2003).  The Department of Transportation acted arbitrarily and capriciously in failing to prepare a full Environmental Impact Statement under the National Environmental Protection Act, as well as a conformity determination under the Clean Air Act, in promulgating regulations to permit Mexico-domiciled motor carriers to operate within the U.S. beyond the current limited border zones.  D.W.  Nelson, Hawkins, and Wardlaw (author), Circuit Judges.  P. Coughlin of San Francisco, CA, for the petitioners;  K. Van Tine of Washington, DC, for the re-spondents.(Download the full text of this decision at www.cc9.uscourts.gov/)

11)  ENVIRONMENTAL LAW:  Environmental Defense Center v. EPA, 00-70014 (9th Cir. Jan. 14, 2003).  An EPA rule issued pursuant to the Clean Water Act ("CWA") to control pollutants introduced into the nation's waters by storm sewers was upheld on all challenged grounds, except that the EPA's failure to require review of Notices of Intent (NOIs) and to make those NOIs available to the public or subject to public hearings contravened the express requirements of the CWA;  Judge Tallman dissented from Sec. II.A.2 of the majority's opinion, which upheld the constitutionality of the EPA's final administrative rule (the "Phase II Rule") against a Tenth Amendment challenge;  he thought that the Phase II Rule infringed upon state sovereignty by compelling the states to enact and ad-minister a federal regulatory program that includes regulation of third parties, and that the Alternative Permit Option suffered from the same constitutional flaw;  Judge Tallman also dissented from Sec. II.B of the majority's opinion, which remanded the Phase II Rule be-cause its system of general permits was arbitrary and capricious;  he thought the EPA's design of a system of general permits supported by NOIs was a reasonable exercise of EPA's administrative discretion.  Browning (author), Reinhardt, and Tallman (dissenting in part), Circuit Judges.  V. Clark of Santa Barbara, CA, for the petitioner;  A. Frank of New York, NY, for the intervenor;  J. Cruden of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

12)  ENVIRONMENTAL LAW:  Natural Resources Defense Council v. Evans, 01-17143 (9th Cir. Jan. 13, 2003).  The National Marine Fisheries Service's mere recitation of good cause (in the nature of the generic complexity of data collection and time con-straints) for specifications and management measures for the Pacific Coast Groundfish Fishery was inadequate to excuse compliance with the Administrative Procedure Act's notice and public comment requirement.  Rymer (author), Thomas, and Silverman, Circuit Judges.  T. Kim of Washington, DC, for the defendants-appellants;  A. Caputo of San Francisco, CA, for the plaintiffs-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

13)  ENVIRONMENTAL LAW:  The Wilderness Society v. U.S. Fish & Wildlife Service, 01-35266 (9th Cir. Jan. 13, 2003). The U.S. Fish & Wildlife Service's decision to permit a sockeye salmon enhancement project at Tustumena Lake, Alaska, within a designated wilderness area in the Kenai National Wildlife Refuge, was based on a reasonable interpretation of statutory ambiguities in the Wilderness Act, 16 USC Secs. 1131-1136, and the National Wildlife Refuge System Administration Act, 16 USC Secs. 668dd-668ee;  dissenting, Judge Fletcher thought that Congress could well be persuaded someday that salmon enhancement programs designed and operated primarily for the benefit of the commercial fishing industry can be compatible with the protectionist mandate of the Refuge Act and can be made an exception to the activities allowed in the Wilderness Act, but that is for Congress to decide;  meanwhile, Judge Fletcher thought that the Service had not developed any sort of record as to what the "natural" wild salmon population was or is in Kenai prior to the commercial fishery project, and what the competition among species there is and was;  currently, she thought that nothing in the record suggested that the species was diminished or in danger—only that it could be enhanced for commercial purposes;  based on the statutes now in place, these commercial enhancement activities directly contravene Congress's mandates in the Wilderness and Refuge Acts, and allow commercial interests to trump the preservation of the wilderness conditions in the Kenai Wilderness Area.  B. Fletcher (dissenting), Alarcon, and Graber (author), Circuit Judges.  J. Sterne of Anchorage, AK, for the plaintiffs-appellants;  K. Kovacs of Washington, DC, for the defendant-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

14)  ENVIRONMENTAL LAW:  USA v. Antoine,02-30008 (9th Cir. Jan. 31, 2003).  An Indian tribe member's conviction under the Bald and Golden Eagle Protection Act, 16 USC Sec. 668-668d, for bringing feathers and other eagle parts into the United States, where he swapped them for money and goods, did not violate the Religious Freedom Restoration Act.  Reavley, Kozinski (author), and W. Fletcher, Circuit Judges.  AFPD M. Filipovic of Seattle, WA, for the appellant;  AUSA H. Brunner of Seattle, WA, for the appel-lee. (Download the full text of this decision at www.cc9.uscourts.gov/)

15)  TRADEMARK INFRINGEMENT:  Brother Records, Inc. v. Jardine, 01-57095 (9th Cir. Jan. 28, 2003).  In a Lanham Act trademark infringement action where the defendant used a mark, "the Beach Boys," in a secondary, trademark sense to denote a music band, the "classic fair use" defense did not apply;  the "nominative fair use" argument failed where defendant used the mark to suggest sponsorship or endorsement by the trademark holder.  Pregerson, Noonan, and Tashima (author), Circuit Judges.  J. Benice of Irvine, CA, for the defendant;  P. Stillman of Del Mar, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

16)  INSURANCE / INTELLECTUAL PROPERTY: Homedics, Inc. v. Valley Forge Insurance Co., 00-55306 (9th Cir. Jan. 9, 2003).  Under California law, the underlying patent infringement claims in this case did not invoke a duty to defend under any reasonable reading of a commercial general liability policy provision pertaining to the "misappropriation of an advertising idea or style of doing business."  Hall (author), Thompson, and Wardlaw, Circuit Judges.  D. Gauntlett of Irvine, CA, for the plaintiff-appellant;  J. Garchie of San Diego, OR, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  INSURANCE:  American States Insurance Co. v. Dastar Corp., 01-35412 (9th Cir. Jan. 22, 2003).  The USCA lacked jurisdiction to consider an appeal from a partial summary judgment where the parties had engaged in manipulation to manufacture appellate jurisdiction after the district court's judgment on the issue of whether an insurer owed a duty to defend for purported advertising injuries;  dissenting, Judge Ferguson noted that the duty to defend was independent of the duty to indemnify and thought that the duty to defend should have been resolved without awaiting the resolution of the indemnification issue as prompt resolution of the duty to defend is important to an insured's rights.  Ferguson (dissenting) and W. Fletcher, Circuit Judges, and King (author), District Judge.  D. Gerber of Oxnard, CA, for the defendants-appellants;  L. Lear of Portland, OR, for the plaintiffs-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

18)  CONTRACTS:  King Jewelry, Inc. v. Federal Express Corp., 01-57093 (9th Cir. Jan. 16, 2003).  The USCA found 1) that the shipped items, candelabra, were "items of extraordinary value" as defined in the contract;  2) that federal common law governed the limited liability provision;  and, 3), that Federal Express complied with the "release valuation" doctrine and successfully limited its liability to $500 per crate.  D.W. Nelson and T.G. Nelson (author), Circuit Judges, and Schwarzer, District Judge.  J. Daneshrad of Los Angeles, CA, for the appellant;  R. Taitz of San Francisco, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

19)  CONTRACTS / DISCOVERY:  El Pollo Loco, Inc. v. Hashim, 02-55378 (9th Cir. Jan. 17, 2003).  Under California law, the discovery rule applied to toll the statute of limitations in a contract claim, where fraudulent misrepresentations were asserted in conjunction with the contract claim.  Thompson and Rawlinson (author), Circuit Judges, and Schwarzer, District Judge.  K. Jorrie of Los Angeles, CA, for the appellant;  J. Solish of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

20)  CIVIL PROCEDURE / FRAUD:  Vess v. Ciba-Geigy Corp. USA, 01-55834 (9th Cir. Jan. 31, 2003). Fed. R. Civil. Proc. 9(b)'s particularity requirement applies to state law cause of action in a diversity case;  where fraud is not an essential element of a claim, only allegations of fraudulent conduct must satisfy those heightened pleading requirements;  allegations of conspiracy to increase the price of the prescription drug Ritalin did not satisfy Rule 9(b).  Wardlaw  and W. Fletcher (author), Circuit Judges, and Whyte, District Judge. D. Hildre of San Diego, CA, for the plaintiffs-appellants;  R. Wilson of Los Angeles, CA, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  IMMUNITY / REMOVAL:  Bank of Lake Tahoe v. The Bank of America, 01-16239 (9th Cir. Jan. 29, 2003).  The state of Nevada waived its Eleventh Amendment immunity from state law claims by joining in the removal of a case to federal court.  McKeown (author) and Paez, Circuit Judges, and Pollak, District Judge.  M. Mirch of Reno, NV, for the plaintiffs-appellants;  F. Del Papa of Carson City, NV, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

22)  TORTS / LABOR LAW:  Simo v. Union of Needletrades Industrial & Textile Employees, 01-55937 (9th Cir. Jan. 16, 2003).  In a suit brought by garment workers against their union and its officials after the union engaged in secondary pressure to remove work from their factory, the USCA found that the workers failed to produce the evidence of bad faith necessary to show that the union breached its duty of fair representation;  union agents' conduct, including allegedly threatening visits to the workers homes, did not meet the elements of intentional infliction of emotional distress under California law.  D.W. Nelson (author) and T.G. Nelson, Circuit Judges, and Schwarzer, District Judge.  L. Klibanow of Pasadena, CA, for the plaintiffs;  M. Rubin of San Francisco, CA, and L. Zak-son of Los Angeles, CA, the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

23)  EMPLOYMENT LAW:  NLRB v. Chapa De Indian Health Program, 02-15576 (9th Cir. Jan. 16, 2003).  The National Labor Relations Act is a generally applicable statute that applies to a "tribal organization" operating outpatient healthcare facilities on non-Indian land;  the USCA thus upheld the district court's order enforcing NLRB subpoenas.  Rymer (author), Thomas, and Silverman, Circuit Judges.  D. Rosenfeld of Oakland, CA, for the intervenor-appellant;  M. Lieber of Washington, DC, for the petitioner-appellee;  M. Merin of Sacramento, CA, for the respondents-appellees-cross-appellants. (Download the full text of this decision at www.cc9.uscourts.gov/)

24)  LABOR LAW / PREEMPTION:  Gregory v. SCIE, LLC, 01-57241 (9th Cir. Jan. 27, 2003).  Under California law, claims for overtime payments at premium wage rates did not involve the terms or the interpretation of a collective bargaining agreement, and were not preempted by Sec. 301 of the Labor Management Relations Act;  dissenting, Judge Nelson would affirm the district court's decision because determining whether California law applies to the plaintiff requires interpreting the collective bargaining agreement, and that triggers preemption.  D.W. Nelson and T.G. Nelson (dissenting), Circuit Judges, and Schwarzer (author), District Judge.  A. Harris of Los Angeles, CA, for the plaintiff-appellant;  R. Heinke of Los Angeles, CA, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

25)  EMPLOYMENT LAW:  Cummings v. Connell, 01-16735 (9th Cir. Jan. 9, 2003).  A union's "Hudson notice," regarding "fair share" charges to non-union employees for the cost of negotiating and administering a collective bargaining agreement, was not sufficient independent verification that the figures given in the notice were derived from an audited statement.  Hawkins (author), Graber, and Tallman, Circuit Judges.  W. J. Young of Springfield, VA, for the plaintiffs / cross-appellants;  L. Lopez of Sacramento, CA, for the defendant / cross-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

26)  LABOR LAW / LEGAL MALPRACTICE:  Dahl v. Rosenfeld,. 01-16919 (9th Cir. Jan. 23, 2003).  A malpractice claim brought by union members and alleging that a law firm mishandled a union grievance so that the union took no action to remedy an employer's breach of a collective bargaining agreement, was preempted by Sec. 301 of the Labor Management Relations Act;  the district court abused its discretion in awarding attorneys' fees and costs to the plaintiffs.  Hawkins, Graber, and Tallman (author), Circuit Judges.  D. Rosenfeld pro se;  P. Waltz of Sacramento, CA, for the plaintiffs.  (Download the full text of this decision at www.cc9.uscourts.gov/)

27)  INDIVIDUALS WITH DISABILITIES EDUCATION ACT:  Shapiro v. Paradise Valley Unified School District NO. 69, 01-17535 (9th Cir. Jan. 29, 2003).  By failing to include a teacher and the parents in an individualized education program meeting, a school district denied a deaf student free appropriate public education under the Individuals with  Disabilities Education Act;  the parents were thus entitled to reimbursement for private out-of-district school costs.  Tashima, Thomas, and Paez (author), Circuit Judges.  S. Walker of Beachwood, OH, for the plaintiff-appellee;  R. Haws of Phoenix, AZ, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

28)  CIVIL RIGHTS / LABOR LAW:  Dyack v. Commonwealth of the Northern Mariana Islands, 02-15393 (9th Cir. Jan. 23, 2003). A physician holding a two-year contract with the Department of Public Health of the Commonwealth of the Northern Mariana Islands ("CNMI") was not a member of the CNMI Civil Service, and not entitled to notice of termination and an opportunity to respond;  the plaintiff's 42 USC Sec. 1983 due process claim thus was not actionable.  Schroeder, Alarcon, and Fisher (author), Circuit Judges.  J. Sorensen of Saipan, MP, for the plaintiff-appellee;  AAG A. Clayton of Saipan, MP, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

29)  CIVIL RIGHTS, PROPERTY LAW:  Kaahumanu v. County of Maui, 02-15189 (9th Cir. Jan. 14, 2003).  A suit against County of Maui council members in their individual capacities under 42 USC Sec. 1983 and the Religious Land Use and Institutionalized Persons Act, arising from their denial of a conditional use permit that would have allowed the plaintiffs to conduct a commercial wedding business on beachfront residential property, was not barred by legislative immunity.  Schroeder, Alarcon, and Fisher (author), Circuit Judges.  J. Fosbinder of Kahului, HI, for the plaintiffs-appellees;  V. Takayesu of Wailuku, Maui, HI, for the defendants-appellants. (Download the full text of this decision at www.cc9.uscourts.gov/)

30)  CIVIL RIGHTS / GOVERNMENT LAW:  Aguon v. Commonwealth Ports Authority, 01-16613 (9th Cir. Jan. 13, 2003).  The Commonwealth Ports Authority ("CPA"), a public corporation created by the Commonwealth of the Northern Mariana Islands to operate and manage its ports, is an arm of the Commonwealth and thus not a "person" for purposes of 42 USC Sec. 1983 liability;  the CPA and its officers in their official capacity thus may not be sued for damages under Sec. 1983.  Schroeder, Alarcon (author), and Fisher, Circuit Judges.  D. Cushnie of Saipan, MP, for the defendants-appellants;  R. Yano of Saipan, MP, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

31)  ADA / CIVIL RIGHTS / ATTORNEYS' FEES: Richard S. v. Dept. of Developmental Services of the State of California, 01-56370 (9th Cir. Jan. 29, 2003). Americans with Disabilities Act and Civil Rights Act plaintiffs who attained both a legally enforceable settlement agreement and a preliminary injunction were entitled to "prevailing party" status for purposes of attorneys' fees and costs.  Pregerson (author), Thompson, and Wardlaw, Circuit Judges.  M. Cahill of Costa Mesa, CA, for the intervenor-appellant;  R. Waldow of Los Angeles, CA, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

32)  ETHICS & PROFESSIONAL RESPONSIBILITY: Mangini v. USA, 01-35273 (9th Cir. Jan. 9, 2003).  Under 28 USC Sec. 455(b)(5)(ii), the fact, unknown to the district court judge, that his brother-in-law acted as a lawyer in the proceeding, required the judge's disqualification prior to trial.  Trott (author), T.G. Nelson, and Thomas, Circuit Judges.  S. Love of Great Falls, MT, for the appellant;  J. Cosgrove of Great Falls, MT, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

33)  IMMIGRATION LAW:  Singh v. INS, 01-71463 (9th Cir. Jan. 10, 2003). The court lacked jurisdiction to review the denial of a petition for asylum and withholding of deportation, where the petition for review was not filed within the thirty-day period for such filings, but instead was filed ten months after the Board of Immigration Appeals' decision because counsel failed to file the required notice of appearance.  Stapleton (author), O'Scannlain, and Fernandez, Circuit Judges.  B. Jobe of San Francisco, CA, for the peti-tioner;  R. McCallum of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

34)  IMMIGRATION LAW:  USA v. Lopez-Garcia, 01-50703 (9th Cir. Jan. 16, 2003).  Following a conviction for transporting illegal aliens, where the defendant's reckless flight resulted in a six-level enhancement under U.S. Sentencing Guidelines Sec. 2L1.1(b)(5), an additional enhancement under Sec. 3C1.2 was error because Application Note 6 precludes the imposition of an enhancement under Sec. 3C1.2 in cases, like that presented here, where an enhancement under Sec. 2L1.1(b)(5) is based solely on conduct performed while fleeing law enforcement officers.  T.G. Nelson, Paez (author), and Tallman, Circuit Judges.  AFPD R. Nasser of San Diego, CA, for the defendant-appellant;  AUSA T. Stephen of San Diego, CA, for the plaintiff-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

35)  IMMIGRATION LAW:  Vasquez-Lopez v. Ashcroft, 01-71827 (9th Cir. Jan. 13, 2003).  The petitioner sought review of the Board of Immigration Appeals' determination that his departure from the U.S. pursuant to a grant of voluntary departure under what is now 8 USC Sec. 1229c occasioned a break in his "continuous physical presence in the United States" for the purposes of 8 USC Sec. 1229b, the cancellation of removal status;  the USCA concluded that the BIA's reading of Sec. 1229b is entitled to deference under Chevron U.S.A. v. Natural Res. Defense Council, 467 US 837 (1984), and denied the petition for review. Stapleton, O'Scannlain, and Fernandez, Circuit Judges.  Per Curiam.  M. Franquinha of Phoenix, AZ, for the petitioner;  R. McCallum of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

36)  IMMIGRATION LAW:  In re USA, 02-71549 (9th Cir. Jan. 21, 2003). In withdrawing a citizenship application in which he may have sworn allegiance to the U.S., an illegal reentry defendant effectively disavowed the entire application;  the district court thus committed an error by committing to the jury the decision of his nationality.  Noonan (author), Berzon, and Tallman, Circuit Judges.  AUSA M. Raphael of Los Angeles, CA, for the petitioner;  AFPD J. Locklin of Los Angeles, CA, for the respondent and real-party-in-interest.(Download the full text of this decision at www.cc9.uscourts.gov/)

37)  UNLAWFUL REENTRY / REMOVAL:  USA v. Luna-Madellaga, 02-10157 (9th Cir. Jan. 15, 2003).  The enhanced penalty provided by 8 USC Sec. 1326(b)(2), for unlawful entry of a deported alien, applies to a removal that was subsequent to a reinstated prior removal order;  dissenting, Judge Thomas noted that the salient issue was whether the word "removal" in Sec. 1326(b)(2) refers to a "removal" as that term is used in immigration law or whether Congress used it in its colloquial sense, namely as a "physical removal," and the answer dictates whether the defendant here, and others similarly situated, will be subject to a ten-fold increase in the maximum punishment for the crime at issue;  because Judge Thomas thought the plain language of the statute, its structure, and its legislative history clearly indicated that Congress meant "removal" in its technical sense, he did not agree with the government's statu-tory construction.  Rymer (author), Thomas (dissenting), and Silverman, Circuit Judges.  AFPD M. Powell of Reno, NV, for the defendant-appellant;  AUSA R. Rachow of Reno, NV, for the plaintiff-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

38)  IMMIGRATION:  Zegarra-Gomez v. INS, 01-57021 (9th Cir. Jan. 2, 2003).  Where an alien habeas petitioner is deported after he files his petition, the fact of his deportation does not render his petition moot where there are collateral consequences arising from the deportation that create concrete legal disadvantages.  Schroeder and W. Fletcher, Circuit Judges, and Weiner (author), District Judge.  C. Vellanoweth of Los Angeles, CA, for the petitioner;  A. Medrano of Los Angeles, CA, for the respondent.(Download the full text of this decision at www.cc9.uscourts.gov/)

39) IMMIGRATION / FUGITIVE DISENTITLEMENT DOCTRINE: Antonio-Martinez v. INS, 90-70474 (9th Cir. Jan. 30, 2003).  The "fugitive disentitlement" doctrine, allowing dismissal of a criminal defendant's appeal if he flees while the appeal is pending, applies to an alien who goes missing while his petition for review of a deportation order is pending.  Kozinski (author) and Kleinfeld, Circuit Judges, and Lloyd, District Judge.  S. Bedi of Washington, DC, for the petitioner;  J. Doig of Washington, DC, for the re-spondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

40)  ALIEN SMUGGLING / EVIDENCE:  USA v. Ramirez-Lopez, 01-50164 (9th Cir. Jan. 10, 2003)  The defendant's due process rights were not violated when the government removed nine of twelve witnesses from the United States, where the three retained witnesses testified that the defendant was not the guide of the group of aliens and the deported witnesses would likely have given the same testimony;  dissenting, Judge Kozinski thought that the defendant had been prejudiced by the government's haste in returning the witnesses to Mexico;  he found the basic question to be simple and important:  May the government get rid of witnesses it knows would provide evidence helpful to a criminal defendant by putting those witnesses beyond the power of the court and beyond the reach of dfense counsel?  The court had contemporaneous interview notes showing that 12 of the 14 witnesses arrested with the defendant made statements unequivocally exculpating him as to the only issue of fact —whether he was the group's guide or one of the guided;  yet nine of these exculpating witnesses were removed from the U.S. before defense counsel was appointed and before the district court had an opportunity to consider the matter;  the government did not even obtain contact information for these witnesses, thus frustrating all defense efforts to find them;  moreover, at trial, the fact that 12 of the 14 exonerated him was hidden from the jury.  Kozinski (dissenting) and Gould, Circuit Judges, and Cebull (author), District Judge.  M. Windsor of San Diego, CA, for the defendant-appellant;  AUSA J. Parmley of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

41)  DISCOVERY:  Harrison v. Lockyer, 00-16994 (9th Cir. Jan. 21, 2003)  Denying a defendant's access to material that was more than five years old in a police officer's personnel file, under California Evidence Code Secs. 1043 and 1045, did not deny the defendant of due process, where the defendant had made no showing that the officer's file contained complaints material to his defense.  D.W. Nelson, Noonan (author), and Hawkins, Circuit Judges.  J. Jordan of Oakland, CA, for the petitioner-appellant;  L. Sullivan of Oakland, CA, for the respondent-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

42)  SEARCH & SEIZURE:  USA v. Enslin, 02-50087 (9th Cir. Jan. 13, 2003).  Pursuant to consent from a resident who had apparent authority to consent, U.S. Marshals searched a bedroom in which the defendant was found;  the Marshals' order to the defendant to show his hands from beneath bedcovers while the search was underway constituted a reasonable seizure pursuant to Fourth Amendment.  D.W. Nelson (author) and T.G. Nelson, Circuit Judges, and Schwarzer, District Judge.  V. Brunkow of San Diego, CA, for the defendant;  AUSA J. Burkhardt of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

43)  BAD FAITH / ATTORNEY'S FEES:  USA v. Manchester Farming Partnership, 01-30414 (9th Cir. Jan. 10, 2003)  The denial of a Hyde Amendment request for attorneys' fees and costs was upheld where the appellants failed to show that the government pursued a frivolous case alleging receipt of unlawful farm program payments, or that the government's approach rose to the level of bad faith;  under 18 USC Sec. 3006A bad faith "is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; … it contemplates a state of mind affirmatively operating with furtive design or ill will."  Trott, T.G. Nelson (author), and Thomas, Circuit Judges.  K. Olson, D. Donovan, and F. Corder of Great Falls, MT, for the defendants-appellants;  AUSA C. Rostad of Billings, MT, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

44)  SIXTH AMENDMENT RIGHTS:  USA v. Ivester, 01-10260 (9th Cir. Jan. 15, 2003).  The district court's exclusion of public spectators from a mid-trial questioning of jurors aimed at addressing their safety concerns was too trivial to implicate the defendant's Sixth Amendment right to a public trial.  Wallace (author), Tashima, and Tallman, Circuit Judges.  S. King of Honolulu, HI, for the defendant-appellant;  AUSA L. Bracco of Honolulu, HI, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

45)  GUILTY PLEAS:  USA v. PENA, 01-10069 (9th Cir. Jan. 9, 2003).  The plea proceeding in this case failed to comply with Fed. R. Crim. Proc. 11 where the court failed to explain to the defendant the nature of the charges against him, but merely asks the defendant if he agreed with the facts set forth in the plea agreement, whether the facts were accurate, and whether he sold cocaine to the police officer, and then asks his attorney if he, the attorney, understood and agreed with the statements of the elements of the offense as set forth in the plea agreement.  Tashima (author), Thomas, and Paez, Circuit Judges.  FPD F. Forsman of Las Vegas, NV, for the defendant-appellant;  AUSA N. Davis of Las Vegas, NV, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

46)  SENTENCING:  USA v. Gonzalez-Tamariz, 00-10542 (9th Cir. Opinion filed Nov. 18, 2002;  Order and Amended Dissent filed Jan. 13, 2003).  An offense classified as a misdemeanor under state law can be considered an aggravated felony under federal law if it is a crime of violence with a sentence of at least one year;  dissenting Judge Berzon noted that there is no case in this Circuit holding that a crime for which the maximum sentence is one year, rather than more than a year, can be an aggravated felony under 8 USC Sec. 1101(a)(43), and she did not believe that the court should so hold now.  Hall, Wardlaw (author), and Berzon (dissenting), Circuit Judges.  AUSA R. Gordon of Tucson, AZ, for the plaintiff-appellant;  P. Bates of Tuscon, AZ, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

47)  SENTENCING:  USA v. Dominguez, 02-10106 (9th Cir. Jan. 21, 2003).  The burden of establishing the constitutionality of prior convictions, where a defendant challenges the use of those prior convictions in calculating a later sentence under the U.S. Sentencing Guidelines, was improperly assigned to the government. Berzon, Tallman (author), and Clifton, Circuit Judges.  AUSA R. Gordon of Tucson, AZ, for the plaintiff;  P. Bates of Tuscon, AZ, for the defendant.(Download the full text of this decision at www.cc9.uscourts.gov/)

48)  SENTENCING:  USA v. Velasco-Heredia, 00-50107 (9th Cir. Jan. 21, 2003).  The district court committed harmful Apprendi error, following a bench trial, in determining by a preponderance of the evidence that, because defendant was responsible for more than 50 kilograms of marijuana, he had to be sentenced pursuant to 21 USC Sec. 841(b)(1)(B) to a minimum of five years; the amount of marijuana introduced during the guilty phase was below the amount required to engage the sentencing provisions of Sec. 841(b)(1)(B);  the defendant must be resentenced pursuant to Sec. 841(b)(1)(D), not subsection (B).  Trott (author), Thomas, and Berzon, Circuit Judges.  D. DiIorio of San Diego, CA, the defendant-appellant;  AUSA R. Haines of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

49)  SENTENCING:  USA v. Severino, 00-30161 (9th Cir. Jan. 14, 2003).  For purposes of rendering the defendant eligible for a mandatory minimum sentence, an information which alleged a prior felony drug conviction adequately identified the relevant prior conviction;  dissenting, Judge Thomas thought that the government's failure to comply with the service provisions of 21 USC Sec. 851(a) deprived the district court of the authority to impose an enhanced sentence, and thus, in exceeding its statutory sentencing power, the district court necessarily committed plain error and vacation of the sentence was required.  Schroeder, Reinhardt, Kozinski (author), Trott, Rymer, Thomas (dissenting), Gould, Paez, Berzon, Tallman, and Rawlinson, Circuit Judges.  B. Brown of Anchorage, AK, for the defendant-appellant;  AUSA S. Cooper of Fairbanks, AK, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

50)  SENTENCING:  USA v. Moreno-Cisneros, 01-30421 (9th Cir. Jan. 31, 2003). Under U.S. Sentencing Guideline Sec. 2L1.2(b)(1), as amended Nov. 1, 2001, the length of a "sentence imposed" for a prior state conviction includes the prison sentence de-fendant received after his probation was revoked;  dissenting, Judge Fletcher argued that the amended Guidelines, Sec. 2L1.2(b)(1), contains a new phrase, "sentence imposed," that is defined in Application Note 1(A)(iv), and that the phrase, as defined in the Note, has a plain meaning that excludes suspended sentences.  Reavley (author), Kozinski, and W. Fletcher (dissenting), Circuit Judges.  R. Stone of Medford, OR, for the appellant;  AUSA R. Thomson of Medford, OR, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

51)  HABEAS CORPUS / SHACKLING:  Parrish v. Small, 01-56239 (9th Cir. Jan. 7, 2003).  An evidentiary hearing was necessary to determine the extent to which the shackling of the defendant during trial was visible to jurors, and thus whether it was prejudicial; the petitioner should have been permitted to develop the record on the issue of the shackling's prejudice to his defense.  Bright (author), Goodwin, and Tashima, Circuit Judges. FPD M. Stratton of Los Angeles, CA, for the petitioner; A. Denault of San Diego, CA, for the respondent.(Download the full text of this decision at www.cc9.uscourts.gov/)

52)  HABEAS CORPUS:  Douglas v. Woodford, 01-99004 (9th Cir. Jan. 24, 2003).  Because defense counsel's failure to adequately investigate the petitioner's social history and mental health was prejudicial during the penalty phase of petitioner's trial, the USCA remanded the case to the district court with instructions to grant the habeas petition unless the State within a reasonable time either grants a new penalty phase trial or vacates the sentence and imposes a lesser sentence consistent with law.  Schroeder, Hawkins (author), and W. Fletcher, Circuit Judges.  M. Borenstein of Santa Monica, CA, for the petitioner-appellant;  P. Zaharopoulos of San Diego, CA, for the respondent-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

53)  HABEAS CORPUS / MIRANDA:  Clark v. Murphy, 00-16727 (9th Cir. Jan. 23, 2003).  A murder suspect's statement—"I think I would like to talk to a lawyer"—did not constitute an unambiguous and unequivocal request for counsel;  the suspect's subsequent confession was not involuntary where typical indicia of coercion were wholly absent;  concurring, Judge Stapleton found nothing in Supreme Court case law to suggest that the interrogator's conduct violated the Fifth or Fourteenth Amendments.  Stapleton (concurring), O'Scannlain (author), and Fernandez, Circuit Judges.  J. Jellison of Phoenix, AZ, for the appellant;  AAG G. Jarvis of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

54)  PRISONERS' RIGHTS:  Wyatt v. Terhune, 00-16568 (9th Cir. Jan. 2, 2003).  In addressing a Rastafarian inmate's pro se challenge to the California Department of Corrections' hair length regulations, the magistrate judge served on the parties a copy of his findings of fact from a different case challenging the grooming regulations and directed the defendants to file a summary judgment motion;  he did not explain to the inmate the significance of his findings in the prior case, that he intended to take judicial notice of those findings in the current inmate's case or whether or how the inmate could dispute those findings in the summary judgment process;  this novel procedure did not give the inmate fair notice of summary judgment proceedings;  the dismissal of the prisoner's equal protection claim was reversed as the defendant failed to prove non-exhaustion under the Prison Litigation Reform Act.  Bright, B. Fletcher, and Fisher (author), Circuit Judges.  G. Won of San Francisco, CA, for the plaintiff-appellant;  P. Bernardino of Sacramento, CA, for the defendants-appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

55)  PRISONERS' RIGHTS:  Resnick v. Adams, 01-56710 (9th Cir. Jan. 27, 2003).  Requiring prisoners to fill out a standard prison form in order to receive kosher food does not violate those prisoners' First Amendment right to the free exercise of religion.  Hug, Brunetti, and O'Scannlain (author), Circuit Judges.  E. Chemerinsky of Los Angeles, CA, for the plaintiff-appellant;  AUSA R. Monteleone of Los Angeles, CA, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

 1)  ENVIRONMENTAL LAW:  Native Ecosystems Council v. U.S. Forest Service, 02-35687 (9th Cir. Jan. 8, 2003) (unpublished).  B. Fletcher, Kleinfeld, and McKeown, Circuit Judges.
          Native Ecosystems Council and other advocacy groups (collectively "Native Ecosystems") appealed the district court's summary judgment in this APA review case.  Native Ecosystems maintained that the U.S. Forest Service's decision to sell timber from the Helena National Forest violated the National Forest Management Act ("NFMA") and the National Environmental Policy Act ("NEPA"). 
            The USCA affirmed.  Native Ecosystems argued that the timber sale, as described in the EIS, is inconsistent with the forest plan's old growth forest standards, which requires that 5% of each third order drainage should be managed for old growth.  But, Native Ecosystems offered no evidence that this will not be true after the sale.  The Service considered the potential impact on species associated with old growth forests, such as the flammulated owl, and determined that although no identifiable individuals live within the areas marked for logging, the logging could increase foraging habitat for these species.  It took the required "hard look" at the environmental data in its decision that the sale would have no effect on old growth forests.  Native Ecosystems also argued that the sale will be "below cost," meaning that the net value of the sale for the Service, after all costs of remediation from an earlier fire (not just the logging) are included, will be negative.  It argued that this requires the preparation of a supplemental EIS.  The Service claims that the sale will be profitable.  Although the USCA viewed the Service's accounting practices in regard to this sale with considerable skepticism, Native Ecosystems failed to identify any authority prohibiting the Service from approving a sale merely because it is unprofitable.  40 CFR Sec. 1502.9 requires a supplemental EIS when (1) the agency makes substantial changes in the proposed action that are relevant to environmental concerns, or (2) there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.  Neither applied here. 
         Native Ecosystems next argued that, because the project originally called for setting aside profits from the sale for restoration, the reduction in profits after recalculation changes the proposed action in a way relevant to environmental concerns.  However, even if the funds for restoration are not obtained from other sources, as the Service maintains, no supplemental EIS is be required as the envi-ronmental impact of the project without the restoration was thoroughly considered in the original EIS.  See Idaho Sporting Congress v. Thomas, 137 F.3d 1146, 1152 (9th Cir. 1998) (no supplemental EIS is required where the impact of the proposed timber sale was al-ready considered along with another timber sale in an earlier EIS).
           The USCA noted that the only new information that arose subsequent to the final EIS was a change in the algorithm used to estimate the price of timber subject to the proposed sale.  In light of this change, the Service's expected profits decreased considerably, but this is not information "relevant to environmental concerns."  Under 40 CFR Sec. 1508.14, economic or social effects are not intended by themselves to require preparation of an EIS.  The effect that the sale would have on the environment was addressed in the fi-nal EIS.  Thus, the decision to continue with the sale in the face of decreased monetary gain without a supplemental EIS was not arbitrary or capricious.  Native Ecosystems also argued that the cost analysis of the sale violates the forest plan.  The forest plan requires that if "anticipated costs are higher than predicted high bids," the Service should "defer the sale" or "proceed to sell the timber and provide proper documentation that benefits, other than immediate monitary [sic] return from the timber, are of importance."  The Service complied with the latter requirement by listing several non-monetary benefits in the final environmental impact statement, such as providing jobs for local sawmills and "accelerat[ing] recovery of the fire area through measures that will protect and retain soils, improve watershed values and maintain wildlife habitats."  This, the USCA concluded is consistent with the forest plan, and thus with the NFMA, and is not arbitrary and capricious.
          Finally, Native Ecosystems made a broader argument about the inadequacy of the EIS.  It urged the USCA to consider the lack of an explicit discussion of the 1995 Beschta Report as evidence that the Service did not take a "hard look" at the environmental consequences of its actions.  While Blue Mountains Biodiversity Project v. Blackwood, 161 F.3d 1208, 1213 (9th Cir. 1998), took note of this report in another context, the USCA declined to address whether the "omission of any discussion of the Beschta Report, alone, would discredit the Service's decision not to prepare an EIS." Id.  The instant case differs in two important respects from Blue Mountains.  First, the final EIS indicates that the Beschta Report was considered, and was listed in the bibliography.  Second, once the Service decides to produce an EIS, nothing requires it to include an explicit discussion of this particular report.  Rather, it is to take a "hard look" at all available environmental data.  The Service took a "hard look" at the available data and determined that salvage log-ging in this site-specific context would "accelerate recovery of the fire-damaged area."

2)  TAXATION:  Olsen v. CIR, 02-71452 (9th Cir. Jan. 15, 2003) (unpublished).  Beezer, Kleinfeld, and Paez, Circuit Judges.   Olsen appealed pro se the tax court's decision determining an income tax deficiency for the tax year 1996.  The USCA affirmed.  It de-clined to consider the Olsen's contention that the IRS should have held a hearing before refusing to file his amended tax return because Olsen failed to raise this argument before the tax court.  To the extent Olsen challenged the tax court's disallowance of claimed deduc-tions relating to car and truck expenses and motorcycle costs, the tax court did not clearly err by finding that Olsen failed to adequately substantiate those expenses.

 3)  TAXATION:  Geremia v. Colorado Belle Corp., 02-15229 (9th Cir. Jan. 16, 2003) (unpublished).  Beezer, Kleinfeld, and Paez, Circuit Judges. 
         Lynn and John Geremia, husband and wife, appealed pro se the district court's summary judgment in favor of Lynn's employer, Colorado Belle Corp., the dismissal of the Geremias' claims against the IRS, and various non-dispositive orders.  The USCA affirmed.  The district court properly construed the Geremias' claims against the IRS as claims against the United States and deter-mined that they were barred by sovereign immunity.  Because the Geremias did not proffer sufficient evidence to show a genuine issue of material fact as to any of their claims, the district court properly granted all of Colorado Belle's motions for partial summary judgment.  The district court also did not abuse its discretion by denying the Geremias' motion to amend the complaint.  Because the Geremias did not amend their notice of appeal or file a second notice of appeal following the district court's award of attorney's fees, the USCA lacked jurisdiction to review the award.  The district court properly denied the Geremias' motion seeking the recusal of the district judge.  And, the district court did not abuse its discretion by requiring Lynn Geremia to appear for an independent medical exami-nation regarding her intentional infliction of emotional distress claim, or by requiring the Geremias to pay Colorado Belle's reasonable expenses following its successful motion to compel discovery responses. 

4)  EMPLOYMENT LAW / TAXATION:  Fisher v. Urbach, 02-15811 (9th Cir. Jan. 17, 2003) (unpublished).  Beezer, Kleinfeld, and Paez, Circuit Judges. 
         Fisher appealed pro se the district court's summary judgment dismissing his 42 USC Sec. 1983 action alleging that the defendants, all current or former employees of the New York State Department of Taxation and Finance (the "Tax Department"), retaliated against him because he published a book critical of the Tax Department.  The USCA affirmed.  The district court properly granted summary judgment to Daniel Devensky and Kevin Hand because Fisher failed to adduce evidence that either person was aware of the forthcoming publication of Fisher's book before Fisher commenced this action.  The district court also properly granted summary judgment to Michael Urbach, the former Tax Department Commissioner, because Fisher failed to adduce evidence that Urbach was personally involved in the alleged constitutional violation.  Finally, Fisher's economic extortion and conspiracy claims failed for the same reasons as his retaliation claims.

5)  BANKRUPTCY:  In re Geary,02-55433 (9th Cir. Jan. 8, 2003) (unpublished).  Reinhardt, O'Scannlain, and Paez, Circuit Judges.
          Geary appealed the dismissal of her Chapter 13 bankruptcy petition.  The bankruptcy court granted the government's motion to dismiss, and the district court affirmed. 
          The USCA affirmed.  The relevant statutory provision, 11 USC Sec. 109(e), provides that only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $269,250 may be a debtor under Chapter 13.  It was undisputed that the tax debt in this case was unsecured and exceeded $269,205.  The issue before this court was thus whether the tax debt was noncontingent and liquidated.  Geary argued that her debt was contingent because it had not been assessed as of the date of the filing of her Chapter 13 petition.  However, it is well-settled "that a debt is noncontingent if all events giving rise to liability occurred prior to the filing of the bankruptcy petition."  In re Nicholes, 184 B.R. 82,88 (B.A.P. 9th Cir. 1995).  A contingent debt is "one which the debtor will be called upon to pay only upon the occurrence or happening of an extrinsic event which will trigger the liability of the debtor to the alleged creditor."  In re Fostvedt, 823 F.2d 305, 306 (9th Cir. 1987).  In fact, "whatever the debtor believes, even a bona fide dispute over liability for a claim does not make the debt contingent." In re Nicholes, 184 B.R. at 89.  Here, the mere fact that the government had not secured judgment on its claim for tax deficiency by the time of filing did not render such claim contingent.  The acts that led to Geary's tax debt involved her tax returns for the years 1992, 1993, and 1994.  Her failure to pay her taxes in full for these years triggered her liabilities.  In addition, the government issued deficiency notices for these debts several years prior to the date of filing.  Thus, even though Geary had not been assessed with the tax liability, her debt to the IRS was noncontingent as of the date of the filing of her Chapter 13 petition because all events giving rise to liability had already occurred.  The remaining issue was whether Geary's tax debt was liquidated within the meaning of Sec. 109(e).  A debt is liquidated "if the amount of the debt is readily determinable." In re Slack, 187 F.3d 1070, 1073 (9th. Cir. 1999).  The Slack court determined that the prevailing doctrine was that a "debt is liquidated if the amount of the debt is readily ascertainable." Id. at 1074.  At oral argument, Geary's counsel stipulated that a dispute over the existence of liability does not preclude such debt from being liquidated within the meaning of Sec. 109(e).  In fact, counsel advised the court that liability was to be assumed, and that the sole issue before the court for purposes of Sec. 109(e) liquidation was whether the amount of Geary's tax debt was readily calculable at the time of the Chapter 13 filing.  Geary's counsel further conceded that at the time of filing, the amount of the disputed tax debt was in excess of the $269,250 statutory ceiling established by Sec. 109(e).  Whether the debt was $1 million or $2 million or some other amount is irrelevant because the parties agree that the amount exceeded the statutory limit.  Thus, because it is "readily determinable" that Geary's tax debt at the time of filing was in excess of the statutory limit, the USCA held that her debt was liquidated within the meaning of Sec. 109(e).  Geary was thus ineligible for Chapter 13 relief.

6)  BANKRUPTCY: Compton v. Swanson, 01-35905 (9th Cir. Jan. 16, 2003) (unpublished).  Beezer, Kleinfeld, and Paez, Circuit Judges.

      Ronald Swanson and his wife Dixie appealed pro se the district court's judgment affirming the bankruptcy court's finding of fact and conclusions of law following a bench trial. 
          The USCA affirmed.  This appeal arose from an adversary proceeding commenced by the Chapter 7 Trustee of debtors Rae-Jean Bonham and her two shell corporations, World Plus, Inc. ("WPI") and Atlantic Pacific Funding Corporation ("APFC"), through which Bonham operated a Ponzi scheme.  The Chapter 7 Trustee alleged that the Swansons accepted payments from APFC that constituted fraudulent conveyances.  The bankruptcy court found that the Swansons had not acted in good faith, and thus ordered that they repay the amount of the fraudulent conveyances.  The Swansons' principal contention is that the substantive consolidation of Bonham's personal bankruptcy estate with WPI and APFC was erroneous.  This contention is precluded by In re Bonham, 229 F.3d 750, 763-71 (9th Cir. 2000), in which the court affirmed the bankruptcy court's substantive consolidated order.  The Swansons' contention that they are not liable for fraudulent conveyances because they are lenders not investors fails for the same reason.  The bankruptcy court's conclusion that the Swansons did not act in good faith is not clearly erroneous. For example, at the bench trial, the Swansons admitted that they did not undertake any investigation of Bonham or her corporations, and that they did not understand her business.  The district court properly concluded that the Chapter 7 Trustee timely commenced this adversary proceeding against the Swansons within two years of the entry of the order for relief.  In addition, the district court correctly held that the Trustee was empowered to avoid the fraudulent transfer under Alaska law because the transfer occurred within six years of the filing of the Chapter 7 bankruptcy petition.  The Swansons lacked standing to object to another allegedly inappropriate conduct by the Trustee and his counsel, including dismissal of Bonham's personal civil rights lawsuit against a television station, retention of co-counsel, and receipt of "kickbacks."  There is no support in the record for the Swansons' contention that the bankruptcy judge forced them to engage in settlement negotiations with the Trustee.  Similarly, the Swansons failed to show that they were prejudiced by the bankruptcy court's denial of their attorney's request to withdraw and their motion for a continuance to find a new attorney, both made on the eve of trial.

7)  BANKRUPTCY:  In re Sunrise Suites, Inc., 01-17144 (9th Cir. Jan. 27, 2003) (unpublished).  Bright, Hawkins, and W. Fletcher, Circuit Judges.
            Harry M. Weiss & Associates (the "Firm") appealed the district court's affirmance of the bankruptcy court's grant of summary judgment to Nelson Auctioneering ("Nelson").
          The USCA affirmed in part and reversed in part.  First, even assuming that a contract was formed between the Firm and Nelson, the Firm would be barred from making a contractual claim for a commission under Nevada law because neither the Firm nor Mr. Weiss held a Nevada real estate license at the time of the auction in question.  N.R.S. Secs. 645.270; 645.280(1).  The Firm claimed that it satisfied an exception to the licensing requirements, citing the exceptions for "a receiver, trustee in bankruptcy, administrator or executor, or any other person doing any of the acts specified in [the real estate licensing statute] under the jurisdiction of any court."  N.R.S. Sec. 645.240(2)(d).  Because the auction itself was conducted under the jurisdiction of the bankruptcy court, the Firm argued that everyone involved with the auction was exempt from licensing requirements.  However, the USCA found that the exception could not be construed so broadly.  Although in Matter of Womack, Inc., the bankruptcy court found that a California real estate broker qualified for the exception, the court was "openly aware" of the broker's efforts to find a buyer and the broker was essentially "acting under [the court's] direction" when he made the sale arrangements.  1 B.R. 95, 97 (Bankr. D. Nev. 1979).  Here, in contrast, the bankruptcy court was completely unaware of the Firm and the Firm was not acting under the "direction" of the court as the broker was in Womack.
        Second, the Firm maintained that it is not barred from receiving the commission because Nevada law provides an exception for "services rendered by an attorney at law in the performance of his duties as an attorney at law."  N.R.S. Sec. 645.240(2)(c).  The duties actually performed by Mr. Weiss during the auction, however, were not duties as an attorney.  Discussing the value of the properties, advising his client of the progress of the auction by cell phone, and advising his client how much and when to bid do not involve the giving of legal advice.  Heilman v. Suburban Coastal Corp., 506 So. 2d. 1088, 1089 (Fla. Dist. Ct. App. 1987) ("Bidding at a foreclosure sale by a lawyer for his client is NOT the practice of law.  It does not involve the rendition of legal services which all for the exercise of the professional judgment of a lawyer.").  See also Pioneer Title Ins. & Trust Co. v. State Bar of Nev., 74 Nev. 186, 193-94 (1958) (the practice of law involves exercise of judgment, such as determining the legal sufficiency of documents).  Because the Firm could satisfy neither exception to the Nevada real estate licensing requirements, the USCA concluded that the bankruptcy court correctly granted summary judgment to Nelson on all of the Firm's contractual claims for relief.
          Third, as auctioneer, Nelson acted as a dual agent for both buyer and seller.  The Firm was neither.  The bankruptcy court correctly found that the Firm had "failed to allege facts sufficient to show that [Nelson] owed any fiduciary or statutory duties" to the Firm.  See Jory v. Bennight, 91 Nev. 763, 767 (1975) (fiduciary relationship arises between a broker and a person to whom the broker has undertaken to provide professional services).  Fourth, the bankruptcy court also correctly concluded that Nelson was entitled to summary judgment on the Firm's constructive fraud claim.  Constructive fraud requires the breach of a duty arising from a fiduciary or confidential relationship.  Perry v. Jordan, 111 Nev. 943, 946-47 (1995).  A confidential relationship "exists when one party gains the confidence of the other and purports to act or advise with the other's interest in mind; … it is particularly likely to exist when there is a family relationship or one of friendship." Id. at 947.  The Firm has not alleged facts to support finding that such a relationship existed between it and Nelson, two arms-length businesses with no relationship whatsoever until two days prior to the auction.
         Finally, the bankruptcy court erroneously concluded that the Firm's claim for unjust enrichment failed as a matter of law.  Unjust enrichment is the "retention of money or property of another against the fundamental principles of justice or equity and good conscience."  Topaz Mut. Co., Inc. v. Marsh, 108 Nev. 845, 856 (Nev. 1992).  Its essential elements are "a benefit conferred on the defendant by the plaintiff, appreciation by the defendant of such benefit, and acceptance and retention by the defendant of such benefit." Id.  The bankruptcy court concluded that the Firm's conduct did not confer a benefit upon Nelson, because the Firm's actions were also intended to benefit its client.  But by advising its client and assisting its client in the bidding, the Firm helped to deliver a successful bidder and close the sale, resulting in a significant commission to Nelson.  That the auctioneer would customarily share a percentage of that commission with a participating broker illustrates the fact that a buyer's broker is indeed conferring a benefit on both his client and the other broker by bringing a qualified buyer to the table and closing the deal.  In this case, Mr. Weiss alleged that prior to his participation in the auction, he informed Eric and Aleda Nelson that he was registering as an agent for the undisclosed purchaser, that he intended to make a claim for the 1% commission if the bidder was successful, and that both individuals indicated this was acceptable to them.  Mr. Weiss also alleged that he relied to his detriment upon the Nelson's representations about his entitlement to the commission and would not have otherwise participated in the auction.  If proven true, these allegations could establish that "principles of justice or equity and good conscience" require Nelson to share a portion of the commission with the Firm.  Id.  The USCA reversed the grant of summary judgment on this claim and remanded to the district court with instructions to remand to the bankruptcy court for the trier of fact to determine whether Nelson was unjustly enriched, and if so, to what extent.

8)  BANKRUPTCY / SANCTIONS:  Sig Try Sig, Inc. v. Philippines Airlines, Inc. 01-16856 (9th Cir. Jan. 9, 2003) (unpublished).  B. Fletcher, Arnold, and Rawlinson, Circuit Judges.
        The USCA concluded that the district court did not abuse its discretion by imposing sanctions on the plaintiffs and their attorneys.  Sanctions may properly be imposed if either the complaint is legally or factually baseless, or the complaint was filed for an im-proper purpose.  See Zaldivar v. Los Angeles, 780 F.2d 823, 832 (9th Cir. 1986).  The relief requested by the plaintiffs in their original complaint and in their first amended complaint ("FAC") directly violated an order issued by the Bankruptcy Court of the Northern District of California, which prohibited the plaintiffs from bringing suit against Philippine Airlines ("PAL") in order to enforce a General Sales Agency ("GSA") Agreement that the plaintiffs had entered into with PAL several years earlier.  The complaints were thus filed for an improper purpose.  In addition, the claims asserted by the plaintiffs in their original complaint were legally and factually baseless.  The changes made by the plaintiffs in the FAC did not adequately strengthen their claims or address the concerns of the district court regarding the viability of those claims.  The frivolousness of the plaintiffs' claims provides another justification for the district court's imposition of Rule 11 sanctions.  Finally, the district court did not abuse its discretion in apportioning part of the monetary sanctions against Mr. Palik.  See Pavelic & LeFlore v. Marvel Ent. Group, 493 US 120, 123 (1989) (holding that an attorney who signs a paper filed with the court is liable for sanctions if the court later determines that the paper was submitted in violation of Rule 11).  Palik's participation in the representation of the plaintiffs consisted of signing the plaintiffs' brief in opposition to PAL's motion to dismiss the FAC, orally arguing the motion to dismiss the original complaint, and appearing with Mr. Anolik at oral argument on the motion to dismiss the FAC.  The district court acted within its discretion when sanctioning Palik for his involvement in presenting and defending the plaintiffs' frivolous and improper claims.

9)  BANKRUPTCY / SANCTIONS:  In re Smith, 01-57232 (9th Cir. Jan. 10, 2003) (unpublished).  Reinhardt, O'Scannlain, and Paez, Circuit Judges.
           Chase appealed the Bankruptcy Appellate Panel's order imposing sanctions against him under 28 USC Sec. 158(b) and Fed. R. Bankr. Proc. 8020.  The BAP imposed sanctions after issuing an order to show cause why sanctions should not be imposed upon Chase for filing an inadequate and frivolous appeal.  In its order to show cause, the BAP noted that "appellant's excerpts of record do not include the order appealed from, the bankruptcy court's findings and conclusions, the motion on which the court rendered its deci-sion, the notice of appeal, or a transcript."  The BAP also noted the following briefing deficiencies:  the inclusion of an incomplete docket, the failure by the appellant to include any citation to the record, the absence of a statement of the basis for appellate jurisdiction and a statement of the case from the opening brief, the citation of the wrong dates for various court orders, the failure to identify the objecting creditor (Union Planters Mortgage) as an appellee, and the failure to brief mootness after the BAP issued an order requiring this briefing.  After considering Chase's response to its order to show cause, the BAP concluded that it constituted an "utter failure to address the appellate deficiencies noted in that order," and found that the appeal was frivolous. 
       The USCA affirmed.  After the BAP concluded that Chase's response to the order to show cause failed to address the deficiencies that the BAP described in its order and that Chase's actions in prosecuting the appeals were frivolous, it determined that sanc-tions were warranted.  The BAP ordered that the bankruptcy court determine the appropriate amount of sanctions:  either $1,000 or appellees' costs and fees in connection with the appeal.  The USCA agreed with the BAP that Chase failed to address any of the defi-ciencies described in the order to show cause and that his actions in prosecuting the appeal were frivolous.  The USCA thus concluded that the BAP did not abuse its discretion when it imposed sanctions against Chase.

10)  DESIGN DEFECT / EVIDENCE:  Weidler v. Spring Swings, Inc., 01-35506 (9th Cir. Jan. 8, 2003) (unpublished).  B. Fletcher, Kleinfeld, and McKeown, Circuit Judges.
         Weidler appealed the district court's application of its inherent power to exclude Weidler's evidence that the design of a handheld trolley device was defective.  Weidler also appealed the district court's grant of summary judgment to defendants Spring Swings, Inc. and Loos & Company. 
 The USCA affirmed.  It was not disputed that during Weidler's tests evidence was destroyed without Spring Swings being able to examine or conduct independent tests on the materials.  Under Unigard Sec. Ins. Co. v. Lakewood Eng'g & Mfg. Corp., 982 F.2d 363, 367 (9th Cir. 1992), mere fault, even in the absence of bad faith, can be a sufficient basis for the district court's discretionary exercise of its inherent power.  The district court has the power to exclude Weidler's evidence when "plaintiff's destruction of key evidence renders a full defense impossible."  Id. at 368 & n.2.  The destruction and then disappearance of a frayed piece of cable and the commingling of clamps rendered a reliable determination of the cause of the accident impossible.  A defect in the design or manufacturing of goods obtained from the defendants or from the hardware store, an installation defect, plaintiff's modification or the product, and a lack of clarity of the instructions all remain plausible factors.  Thus, as in Unigard, the destruction of evidence "rendered unreliable" what a trier of fact might consider, and the plaintiff "lacked the ability to put forward a prima facie case." Id. at 369.

11)  CONTRACTS:  Rowlands v. Hanson., 01-36150 (9th Cir. Jan. 16, 2003) (unpublished).  Beezer, Kleinfeld, and Paez, Circuit Judges. 
       Rowlands appealed pro se the district court's judgment in favor of Hanson in his diversity action alleging breach of contract, fraud, and violation of Or. Rev. Stat. Sec. 166.720, the Oregon Racketeering Influenced and Corrupt Organizations statute ("ORICO"). 
         The USCA affirmed.  Given that Rowlands sought only lost profits on his breach of contract claim, that claim failed because he did not show with "reasonable certainty" that profits were lost and that the loss was a result of Hanson's breach.  Willamette Quarries, Inc. v. Wodtli, 761 P.2d 1356, 1359 (Or. Ct. App. 1988).  The district court properly granted summary judgment on Rowlands' claim that Hanson forged one of the signatures required for Rowlands' requested promotion because he failed to show that the alleged forgery injured him.  The district court also properly granted summary judgment on Rowlands' claim that when Hanson promised to promote him, Hanson either did not intend to do so or misrepresented his ability to do so.  The evidence in the record shows that Rowlands could not have justifiably relied upon Hanson's alleged promise after learning in December 1995 that Hanson could not unilaterally authorize the promotion.  Given that Rowlands failed to demonstrate a prima facie fraud claim, the district court properly granted summary judgment on his ORICO claim as well. 
        Contrary to Rowlands' contention, he was not entitled to jury trial.  See Etalook v. Exxon Pipeline Co., 831 F.2d 1440, 1447 (9th Cir. 1987) ("The very existence of a summary judgment provision demonstrates that no right to a jury trial exists unless there is a genuine issue of material fact suitable for a jury to resolve.")  The district court also did not abuse its discretion in denying Rowlands's motion for sanctions because Rowlands failed to show how the requested discovery responses would have affected summary judgment.  Similarly, the district court did not abuse its discretion in denying Rowlands leave to amend following summary judgment.  See Royal Ins. Co. of Am. v. S.W. Marine, 194 F.3d 1009, 1016-17 & n.9 (9th Cir. 1999) (affirming denial of leave to amend where plaintiff requested leave to amend after summary judgment, and proposed amendment was based on previously-known facts.)

12)  SETTLEMENT AGREEMENTS:  Sionix Corp.  v. Moorehead., 01-56905 (9th Cir. Jan. 21, 2003) (unpublished).  Reinhardt, O'Scannlain, and Paez, Circuit Judges. 
          On April 17, 2001, the parties to this appeal reached an agreement to settle this lawsuit.  The district court adopted the magistrate judge's report and recommendation to enforce the settlement.  Moorehead and Friedmans appealed, contending that (1) the district court erred in finding that there was a complete and enforceable agreement between the parties on April 17;  (2) the district court erred in interpreting the condition to the disputed settlement as a condition subsequent rather than a condition precedent;  (3) the district court erred in finding that the opinion of Moorehead's patent attorney failed to satisfy the condition; and (4) that there was no "meeting of the minds" with respect to all material terms of the April 17 agreement. 
           The USCA affirmed.  California law clearly states that it is the outward manifestation or expression of assent—not unexpressed intentions or understanding—that determines the existence of a contract.  See 1 B.E. Witkin, Summary of California Law, Contracts, Sec. 119 at 144 (9th ed. 1987).  At the April 17 hearing, the court methodically went through each of the terms of the agreement and then asked the appellants if they were in agreement with those terms.  The appellants' response was a clear and unmistakable "yes."  The mere fact that the appellants may have harbored some doubt about the agreement is irrelevant because their "outward manifestation" was one of assent.  Nor is the condition that the appellants requested inconsistent with the existence of a complete and binding agreement.  California's courts have held that "the mere fact that … there is a present anticipation of a possible future repudiation … is not a valid basis for concluding that the contract is not presently binding and effective." Frankel v. Bd. Of Dental Ex-aminers, 46 Cal. App. 4th 534, 549-50 (1996).  The appellants first claim, thus failed.  The appellants contention that the condition to the agreement was a condition precedent, not a condition subsequent, also failed.  Under California law, "conditions precedent are not favored … and courts shall not construe a term of a contract so as to establish a condition precedent absent plain and unambiguous contract language to that effect."  Frankel, 46 Cal. App. 4th at 550. Because the appellants cannot point to any such "unambiguous contract language," the USCA declined to contravene clearly established California law and to construe this agreement as establishing a condition precedent.
         To satisfy the condition subsequent in the settlement, Moorehead was required to file with the court a declaration of a patent attorney stating that the agreement would, in fact, preclude him from practicing his chosen field.  While the declaration of Moorehead's patent attorney does include language indicating that the agreement might make it difficult for him to practice in his chosen field, its ultimate conclusion falls short of what the condition required.  Where, as here, "the occurrence of a condition is required by the agree-ment of the parties, rather than as a matter of law, a rule of strict compliance traditionally applies."  2 E. Allan Farnsworth, Farnsworth on Contracts, Sec. 8.3 (2d ed. 2001).  Because it does not unequivocally state that the settlement agreement will preclude Moorehead from working in his chosen field, he cannot meet this "harsh rule of strict compliance. 
          Finally, the appellants argued that, because there was no meeting of the minds with respect to material terms in the April 17 agreement, the agreement was unenforceable under Callie v. Near, 829 F.2d 888 (9th Cir. 1987).  Callie, however, cannot bear the weight the appellants place upon it.  For, while Callie held that "the district court may enforce only complete settlement agreements," it further noted that an incomplete settlement agreement is one "where material facts concerning the existence or terms of an agreement … are in dispute."  Id. at 890.  As noted, under California law, the determination of the "existence" or "terms" of an agreement must be made on the basis of the parties' "outward manifestation or expression of assent" rather than one's unexpressed intentions or understanding.  Binder v. Aetna Life Ins. Co., 75 Cal. App. 4th 832, 851 (1999).  The only outward manifestations that are relevant to this inquiry are those made by the parties at the April 17 settlement hearing.  The transcript of that hearing shows that the appellants, when asked if they heard the terms of the settlement and if there were in agreement with those terms, clearly answered, "Yes."  Thus, they cannot now claim that there was no "meeting of the minds."  The USCA noted that, while it rejects the appellants' challenges to the settlement agreement, their professed fears about the effect of the agreement appears to be overblown.  For, as the district court explained, the agreement does not "prevent Moorhead from using a lawfully-acquired patented Sionix product" nor does it "enjoin Moorehead from practicing technology he independently develops."  In this situation, the district court held, and the USCA agreed, "Moorehead will not have committed misappropriation;  he will not have obtained trade secrets from Sionix or disclosed or used Sionix's trade secrets without Sionix's consent."

13)  ATTORNEYS' FEES:  Morris v. Lifescan, Inc., 02-15765 (9th Cir. Jan. 16, 2003) (unpublished).  Brunetti, Tashima, and Ezra, Circuit Judges.
 Class members Tyler and Jackson appealed the district court's attorneys' fee award to class counsel of 33% of the $14.8 mil-lion cash settlement.
 The USCA affirmed.  The appellants maintained that the district court erred by failing adequately to justify its upward departure from the Ninth Circuit's benchmark for attorneys' fee awards of 25%.  A district court may adjust the percentage "upward or downward to account for any unusual circumstances involved," in the case.  Paul, Johnson, Alston & Hunt v. Graulty, 886 F.2d 268, 272.  Here, upon review the record, the USCA concluded that the district court sufficiently specified its reasons for departing from the 25% benchmark.  It noted that class counsel achieved exceptional results in this risky and complicated class action and despite Lifescan's vigorous opposition throughout the litigation.  The district court's finding that the settlement was solely the result of class counsel's work was supported by the record and thus not clearly erroneous.  Finally, the USCA noted that the Circuit has previously held that an attorneys' fee award of 33% is not an abuse of discretion.  See In re Pac. Enters. Secs. Litig., 47 F.3d 373, 379 (9th Cir. 1995) (approving an award of 33% of a $12 million settlement fund).  The USCA concluded that the district court considered the relevant circumstances and did not abuse its discretion in finding an award of 33% to be reasonable.

14)  COSTS:  Simo v. Union of Needletrades, 02-55673 (9th Cir. Jan. 16, 2003) (unpublished).  D.W. Nelson and T.G. Nelson, Circuit Judges, and Schwarzer, District Judge.
        Following a grant of summary judgment to appellees, the district court taxed $66,902.88 in costs to the appellants.  The appellants moved to re-tax costs.  The district court denied the motion.  That denial is the subject of this appeal.
          The USCA affirmed.  Federal Rule Civil Procedure 54(d)(1) provides that costs "shall be allowed as of course to the prevailing party unless the court otherwise directs."  Although the rule creates a "presumption in favor of taxing costs to the losing party," the district court has discretion to re-tax costs, and the court of appeals reviews the district court's denial of a motion to re-tax costs for an abuse of discretion.  The Ninth Circuit has found an abuse of discretion only where the district court has failed to consider important factors bearing on the question of whether to re-tax costs.  Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1079 (9th Cir. 1999).  In the instant case, the district court considered and rejected the appellants' arguments that re-taxing was justified due to:  1) economic disparity between the union and the allegedly indigent workers;  2) allegations that the union had needlessly increased costs associated with depositions; and 3) the closeness, complexity, and public importance of the issues.  The district court did not abuse its discretion in considering these factors.
        Although not mentioned in its order, the district court rejected, in the hearing on the motion to re-tax, the appellant's argument that this lawsuit was civil rights litigation.  The district court did not abuse its discretion in failing to take into consideration civil rights concerns because it correctly concluded that the underlying claims are not civil rights claims.  In its analysis of the appellants' indigence, the district court considered the fact that the appellants had been assisted by a nonprofit organization, which had provided some funding for their lawsuit.  The USCA said it did not approve of this analysis; the district court's decision on whether to re-tax costs should be based on the parties' own financial resources.  Nonetheless, the USCA found no abuse of discretion.  The district court clearly recognized the economic disparity between the parties, even assuming that the appellants were being helped by an organization.  The district court thus adequately considered the appellants' financial situation, and under such circumstances no abuse of discretion is evident.

15)  AMERICANS WITH DISABILITIES ACT:  Shea v. San Francisco, 01-16698 (9th Cir. Jan. 27, 2003) (unpublished).  McKeown and Paez, Circuit Judges, and Pollak, District Judge.
          Appellant Shea, a firefighter with the San Francisco Fire Department, appealed the district court's summary judgment in favor of the Department on his Americans with Disabilities Act ("ADA") and California Fair Employment and Housing Act ("FEHA") disability claims.  The USCA reviewed de novo the grant of summary judgment and affirmed in part, reversed in part, and remanded. 
            Shea alleged in his Equal Employment Opportunity Commission ("EEOC") and California Department of Fair Employment and Housing ("DFEH") charges that Chief Gamble discriminated against him on the basis of his disability in early May 1998.  How-ever, this claim was time-barred under both the ADA and FEHA because Shea did not file either an administrative charge with the EEOC within 300 days of this allegedly unlawful conduct or a complaint with the DFEH within a year of this conduct.  Moreover, Shea's ADA and FEHA claims were not saved by the "continuing violations" doctrine.  Shea's charges that he was discriminated against due to his disability when the Department denied him seniority rights, medical benefits, vacation pay, transfer, and accommodations were discrete acts that were not similar in kind and that fell outside the relevant statutory time period.  They were thus time-barred.  In contrast, however, Shea's claim that the Department denied him administrative pay was timely and actionable.  The USCA thus affirmed the district court's ruling that Shea's ADA and FEHA claims were time-barred with the exception of his claim that he was improperly denied administrative pay.
        Shea alleged in his EEOC charge that the Department denied him administrative pay on the basis of his disability.  He claims that he was entitled to administrative pay pursuant to a Memorandum of Understanding between the Department and the Firefighters' Union, of which he was a member.  Construing his EEOC charge liberally, the USCA concluded that, although his other ADA and FEHA claims were time-barred, he timely raised a claim for denial of administrative pay.  Shea filed his EEOC charge on December 8, 1999. A few months earlier, on August 25, 1999, the Department transferred Shea to a light duty position at the Department of Train-ing where he worked in an administrative position pursuant to which he claims he should have, but never did, receive administrative pay.  Because Shea filed his EEOC charge within 300 days after the Department allegedly denied him administrative pay, his claim was timely.  The USCA thus remanded to the district court for a determination of the merits of Shea's claim that he was denied administrative pay due to his disability.

16)  AMERICANS WITH DISABILITIES ACT:  Serrano v. Mejia, 01-55936 (9th Cir. Jan. 15, 2003) (unpublished).  Beezer. Kleinfeld, and Paez, Circuit Judges.
          California state prisoner Serrano appealed pro se the district court's judgment in his action alleging violation of the Americans with Disabilities Act, the Rehabilitation Act, and his constitutional rights during his placement in administrative segregation.  The USCA affirmed.  First, the district did not abuse its discretion by dismissing forty-one of the named defendants as a sanction for Ser-rano's repeated failure to comply with discovery orders.  Second, the district court properly granted summary judgment on Serrano's claims pertaining to the denial of a wheelchair, walker and shower chair in administrative segregation because Serrano failed to rebut the prison's legitimate penological reason for its actions.

17)  IMMIGRATION / ASYLUM:  Gimalay v. INS, 01-70700 (9th Cir. Jan. 27, 2003) (unpublished).  Hug, Alarcon, and Graber, Circuit Judges.
          The petitioner appealed the Board of Immigration Appeals' decision to deny her application for asylum and withholding of deportation under Secs. 208 and 243(h) of the Immigration and Nationalization Act.  The USCA had jurisdiction under former 8 USC Sec. 1105(a), as amended by the transitional rules for judicial review in Sec. 309(c)(4) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.  Because the petitioner is not eligible for asylum or withholding, the USCA denied the petition for review.
           The petitioner argued that the BIA erred in holding that she had not demonstrated a well-founded fear of persecution on ac-count of one of the five protected grounds and asserts that she was persecuted on account of her political opinion.  To show eligibility for asylum or withholding of deportation, the petitioner must show that any persecution she suffered in the past, or fears in the future, occurred on account of her race, religion, nationality, membership in a particular social group, or political opinion.  INS v. Elias-Zacarias, 502 US 478, 481 (1992).  The USCA noted that it must uphold the BIA's decision that an applicant was not eligible for asy-lum if it is supported by substantial evidence.  The USCA said it may conclude that substantial evidence was lacking "only if the evidence presented by [the petitioner] was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed."  Id.  The petitioner testified that members of the New People's Army ("NPA") demanded money from her many times and threatened her repeatedly.  But, she also testified that while she lived in the Philippines she was not very active politically.  She stated that she did not engage in any political activities against the NPA, nor did she make any public statements either for or against the NPA.  A reasonable factfinder could conclude that any persecution of the petitioner by the NPA occurred in order to extort money from her, and not on account of her race, religion, nationality, membership in a particular social group, or political opinion.  The BIA thus did not err in affirming the immigration judge's order.

18)  IMMIGRATION / ASYLUM:  Gonzalez v. Ashcroft, 02-70477 (9th Cir. Jan. 22, 2003) (unpublished).  Beezer, Kleinfeld, and Paez, Circuit Judges.
 Gonzalez, a native and citizen of Guatemala, petitioned for review of a decision of the Board of Immigration Appeals dis-missing his appeal from an immigration judge's denial of his application for asylum and withholding of removal. 
         The USCA denied the petition.  Gonzales testified that his uncle, Ramirez, was a former member of the national police and, on one occasion, guerillas asked Gonzalez where he uncle was and beat him up when he did not tell them.  Gonzalez also testified that, since he left Guatemala, his brother and cousin have been killed.  However, he had little information on the circumstances of their deaths and offered no objective evidence that either murder was committed by guerillas or motivated by the victim's relationship to Ramirez.  Gonzalez also testified that Ramirez still resides in the town in which he had worked as a police officer, and he presented no evidence that Ramirez himself has ever been harmed by guerillas.  This evidence did not compel the conclusion that Gonzalez was persecuted or had a well-founded fear of future persecution on account of imputed political opinion or membership in a particular social group.  It follows that Gonzalez did not satisfy the more stringent standard for withholding of removal.

19)  IMMIGRATION / ASYLUM:  Alvarez-Guzman v. Ashcroft, 02-70809 (9th Cir. Jan. 22, 2003) (unpublished).  Beezer, Klein-feld, and Paez, Circuit Judges.
 Alvarez-Guzman petitioned for review of the Board of Immigration Appeals' decision dismissing her appeal from an immigration judge's denial of her application for asylum and withholding of removal. 
         The USCA denied the petition.  Alvarez-Guzman testified that her hamlet, Bracitos, was continually occupied by guerrillas, but that the guerrillas did not have a personal interest in her, and that her family members continue to live in Bracitos without incident.  Substantial evidence supported the BIA's determination that Alvarez-Guzman failed to establish that she had a well-founded fear of future persecution on account of an enumerated ground.  By failing to satisfy the standard for asylum, Alvarez-Guzman necessarily failed to satisfy the more stringent standard for withholding of removal.

20)  IMMIGRATION / ASYLUM:  Rodas v. Ashcroft, 02-70815 (9th Cir. Jan. 22, 2003) (unpublished).  Beezer, Kleinfeld, and Paez, Circuit Judges.
           Rodas, a native and citizen of Guatemala, petitioned pro se for review of the Board of Immigration Appeals' decision dismissing his appeal from an immigration judge's denial of his application for asylum, withholding of removal, and relief under the U.N. Convention Against Torture. 
            The USCA denied the petition.  Substantial evidence supported the BIA's conclusion that Rodas failed to establish past persecution on account of an imputed political opinion.  Rodas testified that the guerrillas asked him to join because they wished to use his father's land.  Rodas also testified that he refused to join or help the guerrillas because he feared reprisal from the military.  There is no indication that the guerrillas attributed a political reason to Rodas' refusal.  Substantial evidence also supported the BIA's conclusion that Rodas failed to establish a well-founded fear of future persecution.  Rodas' testimony that his cousin was killed by unknown assail-ants for an unknown reason in 1997 did not compel a contrary conclusion.  As Rodas failed to satisfy the standard for asylum, he nec-essarily failed to satisfy the more stringent standard for withholding of removal.  Substantial evidence supports the BIA's conclusion that Rodas failed to show that it was more likely than not that he would be tortured upon returning to Guatemala, and thus was not en-titled to relief under the Convention.

21)  IMMIGRATION / ASYLUM:  Avila v. INS, 02-71485 (9th Cir. Jan. 22, 2003) (unpublished).  Beezer, Kleinfeld, and Paez, Circuit Judges.
         Avila, a native and citizen of Guatemala, petitioned pro se for review of the Board of Immigration Appeal's dismissal of her appeal from an Immigration Judge's denial of her application for asylum and withholding of deportation. 
           The USCA denied the petition.  Based on Avila's testimony and asylum application, substantial evidence supported the BIA's determination that the guerillas approached her because of her secretarial and accounting skills, rather than because of any political opinion, actual or imputed.  Substantial evidence thus supported the BIA's conclusion that Avila did not show a well-founded fear of future persecution on account of a prohibited ground.  Because Avila failed to establish eligibility for asylum, she necessarily failed to satisfy the more stringent standard for withholding of deportation.  Finally, contrary to Avila's contention, the BIA provided an ade-quate statement of its reasons for denying her requested relief.

22)  IMMIGRATION / ASYLUM:  Kaur v. INS, 01-70431 (9th Cir. Jan. 13, 2003) (unpublished).  Hawkins and Silverman, Circuit Judges, and Restani, U.S. Court of Intl. Trade Judge.
        Kaur appealed from a decision of the Board of Immigration Appeals which affirmed an order of the Immigration Judge denying her application for asylum and withholding of deportation based on an adverse credibility determination.
          The BIA affirmed the IJ's finding of inconsistencies, both internally and with her written asylum application—regarding the number and timing of her alleged detentions, the treatment she received at the hands of the Indian authorities, and the type of medical treatment she sought upon her release.  The USCA found that the record revealed the discrepancies in her testimony to be minor incon-sistencies in relation to her otherwise consistent and detailed descriptions of material aspects of her persecution, and that the inconsis-tencies stemmed in large part from apparent miscommunications during direct and cross-examination.  See Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir. 1988) ("Minor inconsistencies in the record such as discrepancies in dates which reveal nothing about an asylum applicant's fear for his safety are not an adequate basis for an adverse credibility finding.")  Nor did the USCA find that the cumulative effect of these minor inconsistencies casts serious doubts as to whether the persecution ever occurred, as they apparently stemmed from confusion among the various instances of persecution.  With respect to the IJ's reliance on omissions in Kaur's application, the USCA noted that the Circuit has rejected adverse credibility findings based on an asylum application that is less complete than the testimony at the hearing.  Finally, the IJ's findings with respect to Kaur's "inarticulateness" in relating facts relevant to her political opinion was not supported by substantial evidence.  Although Kaur did make several general references to "unjust treatment," she also indicated that:  (1) she gave talks on the "false encounters" in which Sikhs were being killed by government forces; and (2) a major grievance of the student organization to which she allegedly belonged was the presence of military and police from outside Punjab.  Kaur also described in detail the involvement of her brother in the student organization and the circumstances surrounding his disappearance, as well as the names of several other members who were beaten and/or killed by government forces.  Taking the events Kaur described as true, the USCA concluded that the evidence compelled a finding that she had a well-founded fear of persecution on ac-count of political opinion.