2)  SECURITIES:  Coutee v. Barington Capital Group, 02-56016 (9th Cir. July 28, 2003). Arbitrators in a securities case did not manifestly disregard the facts in assessing the amount of loss resulting from defendant's conduct;  neither a punitive damages award nor an attorneys' fee award were at odds with New York law.  Hall (author), Thomas, and Paez, Circuit Judges.  S. Jackson of New York, NY, for the appellants;  R. Bakhtiari of Beverly Hills, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

3)  INTERNET LAW:  Kremen v. Cohen, 01-15899 (9th Cir. July 25, 2003) A domain name registrar can be liable for conversion for giving away a registrant's domain name on the basis of a forged letter;  actions for breach of implied contract or third-party contract failed.  Kozinski (author) and McKeown, Circuit Judges, and Fitzgerald, District Judges.  J. Wagstaffe of San Francisco, CA, for the appellants; K. Karcher of San Diego, CA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

4)  COPYRIGHT, INTERNET LAW:  Kelly v. Arriba Soft Corp., 00-55521 (9th Cir. July 7, 2003).  An internet search engine's "thumbnail" reproductions of the plaintiff's copyright images was a fair use under the Copyright Act, where the thumbnails were much smaller, lower-resolution versions of the originals.  B. Fletcher, T.G. Nelson (author), and Berzon, Circuit Judges.  C. Ossola of Washington, DC, and S. Krongold of Irvine, CA, for the plaintiff-appellant;  J. Jennison of San Francisco, CA, for the defendant-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

5)  COPYRIGHT INFRINGEMENT:  Scholastic Entertainment v. Fox Entertainment Group, 02-55667 (9th Cir. July 18, 2003).  Where the complaint alleged copyright infringement but the underlying dispute concerned only whether a licensing agreement to exhibit and distribute the copyrighted work had been terminated, the dispute should be adjudication in state court as the district court lacks subject matter jurisdiction;  questions regarding the ownership of the copyright were governed by California contract law rather than the Copyright Act. B. Fletcher, Alarcon, and Hawkins (author), Circuit Judges.  R. Welsh of Los Angeles, CA, for the defendants;  A. Mandavia of Beverly Hills, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

6)  ENVIRONMENTAL LAW / WATER LAW:  Center for Biological Diversity v. Veneman, 02-16201 (9th Cir. July 7, 2003).  The U.S. Forest Service failed to act on its mandatory duty under the Wild and Scenic Rivers Act, 16 USC Sec. 1276(d)(1), to consider 57 Arizona rivers for protection;  after identifying the rivers as eligible for inclusion in the Wild and Scenic Rivers System while planning, the Service failed to fulfill an enforceable duty to amend its Forest Plans to prevent "potentially destructive activities" that might jeopardize the eventual designation of the rivers;  because the Service failed to act on this duty, the second requirement for review under Sec. 706(1) of the Administrative Procedure Act was satisfied; the USCA thus reversed and remanded the district court's judgment.  Goodwin, Tashima (author), and Wardlaw, Circuit Judges.  M. Bishop of Taos, NM, for the plaintiffs-appellants;  A. Katselas of Washington, DC, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

7)  ENVIRONMENTAL LAW: Center for Biological Diversity v. Badgley, 01-35829 (9th Cir. July 21, 2003).  A U.S. Fish & Wildlife Service determined that listing the northern goshawk in the contiguous United States west of the 100th meridian as a threatened or endangered species was not warranted;  this determination was amply supported by evidence in the record.  Lay (author), Wallace, and Tallman, Circuit Judges.  D. Rohlf, Portland, OR, for the plaintiffs-appellants;  S. Pacholski of Washington, DC, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

 8)  ENVIRONMENTAL LAW:  Reno-Sparks Indian Colony v. EPA, 02-71503 (9th Cir. July 16, 2003).  The EPA's 2002 Nevada Rule, specifying that Nevada was divided into more than 250 baseline areas for purposes of the Prevention of Significant Deterioration program, was neither arbitrary nor capricious nor out of accordance with the law.  Canby (author), O'Scannlain and W. Fletcher.  R. Flynn of Boulder, CO, for the petitioners;  A. Doyle of Washington, DC, for the respondent;  M. Glenn of Denver, CO, for the intervenors.  (Download the full text of this decision at www.cc9.uscourts.gov/)

9)  ENVIRONMENTAL LAW:  Selkirk Conservation Alliance v. Forsgren, 02-35635 (9th Cir. July 17, 2003).  The U.S. Forest Service and U.S. Fish & Wildlife Service complied with procedures set forth in the National Environmental Policy Act and the Endangered Species Act in approving a lumber company's road-building project which included an easement through National Forest land.  Browning, Fisher, and Tallman (author), Circuit Judges.  D. Honnold of Bozeman, MT, for the plaintiffs-appellants;  S. Tai of Washington, DC, and S. Horngren of Portland, OR, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

10)  ENVIRONMENTAL LAW:  Davis v. EPA, 01-71356 (9th Cir. July 17, 2003).  The EPA abused its discretion in refusing to consider and weigh the effect of California's proposed waiver of federally imposed gasoline oxygen levels on particulate matter pollution along with its effect on ozone levels;  dissenting in part, Judge O'Scannlain thought that the EPA acted within its discretion in denying the waiver, and that remand for assessment of particulate matter effect was not required by 42 USC Sec. 7545(k)(2)(B).  Canby (author), O'Scannlain (dissenting in part), and W. Fletcher, Circuit Judges  DAG R. Hildreth of Sacramento, CA, for the petitioner;  DAG J. Clark of Washington, DC, for the respondents;  J. Voge of San Francisco, CA, for the petitioners-intervenors;  M. Ward of Washington, DC, for the respondents-intervenors. (Download the full text of this decision at www.cc9.uscourts.gov/)

11)  CONTRACTS CLAUSE / ATTORNEYS' FEES:  Southern California Gas Co. v. City of Santa Ana, 02-55885 (9th Cir. July 14, 2003).  The USCA found no merit in the City of Santa Ana's contention that 42 USC Sec. 1983 provides no relief for a party deprived of its rights under the Contract Clause of the U.S. Constitution;  the USCA also affirmed the district court's award of attorneys' fees in favor of the Southern California Gas Company pursuant to 42 USC Sec. 1988 and rejected the City's argument that the Gas Company was not a "prevailing party" pursuant to Sec. 1988;  concurring, Judge Thomas thought that writing a more sweeping application of the Contracts Clause in this context would mean that the City and those similarly situated might be unnecessarily and inappropriately precluded from recovering the legitimate costs of structural damage under a more narrowly tailored approach.  Hall, Thomas (concurring), and Paez, Circuit Judges.  Per Curiam.  B. Kaufman of Santa Ana, CA, for the defendant;  D. Battaglia of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

12)  MARITIME / FISHING AGREEMENTS:  Flores v. American Seafoods Co., 02-35150 (9th Cir. July 9, 2003).  An oral explanation of a bonus provision in a written fishing agreement does not violate the 46 USC Sec. 10601 (2002) requirement that a seaman's fishing agreement be in writing and signed by the vessel master, so long as the oral terms were not imposed under duress, or involved the kind of coercion or deception that Sec. 10601 is designed to prevent;  the vessel masters satisfied the signature requirement by delegating to an agent the authority to sign the agreement on their behalf.  O'Scannlain and Gould (author), Circuit Judges, and Bolton, District Judge.  B. Bagshaw of Seattle, WA, for the plaintiffs;  J. Zulauf of Seattle, WA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

13)  DOMESTIC PARTNERS:  S.D. Myers, Inc. v. San Francisco,. 02-16480 (9th Cir. July 29, 2003).  San Francisco's "Non-Discrimination in Contracts" ordinance, requiring city contractors to provide equal benefits to their employees regardless of marital or domestic partner status, is not preempted by California Family Code Secs. 297-299.6, which governs creation and registration of domestic partnerships.  Goodwin (author), Tashima, and Wardlaw, Circuit Judges.  R. Tyler of Temecula, CA, for the defendants-appellees;  D. Aftergut of San Francisco, CA, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

14)  CONTRACTS / WATER LAW:  Westlands Water District v. USA, 01-16987 (9th Cir. July 31, 2003).  Subjecting San Joaquine River Exchange Contractors to a pro-rata water allocation along with the Water Districts ignores the Exchange Contractors' priority to California Central Valley Project water under water service contracts.  B. Fletcher (author) Rawlinson, and Clifton, Circuit Judges.  W. Chisum for the plaintiffs-appellants;  T. Aagaard for the defendant-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

15)  WATER RIGHTS / IMMUNITY:  State Engineers v. S. Fork Band of the Te-Moak Tribe, 00-17146 (9th Cir. July 28, 2003).  The McCarran Amendment waives the United State's immunity from suit, not only for the administration of water rights acquired after the statute's enactment, but also for the administration of water rights acquired before the law came into effect.  Kozinski (author) and Kleinfeld, Circuit Judges, and Beistline, District Judge.  R. Rodriguez of Carson City, NV, for the defendants; DAG P. Taggart of Carson City, NV, for the plaintiffs. (Download the full text of this decision at www.cc9.uscourts.gov/)

16)  WATER RIGHTS:  USA v. Braren, 02-35441 (9th Cir. July 21, 2003).  A dispute seeking clarification of water rights and assessment of a water rights standard was not ripe for adjudication where further factual development was needed to establish what standard the State of Oregon will apply in adjudicating thee numerous competing water claims at issue.  Lay, Wallace, and Tallman (author), Circuit Judges.  W. Schroeder of Washington, DC, and S. Striffler of Salem, OR, for the appellants;  A. Mergen of Wash-ington, DC, and W. Echo-Hawk of Boulder, CO, for the appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  BANKRUPTCY LAW / MECHANICS LIENS:  In re El Dorado Improvement Corp., 00-57066 (9th Cir. July 3, 2003).  Under California's mechanics lien law, a private redevelopment project is "accepted" by a public entity under California Civ. Code Sec. 3086 only if the approval results in the assumption of some public interest in it;  a private work is "accepted" only if it is civic in nature, and that approval results in the assumption of some public interest in it.  Beezer, Kozinski (author), Wardlaw, Circuit Judges.  D. Griffin of Fresno, CA, for the appellant;  M. Dykes of Salt Lake City, UT, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

18)  BANKRUPTCY / SANCTIONS:  In re Silberkraus, 01-56992 (9th Cir. July 10, 2003).  The bankruptcy court did not abuse its discretion in finding a Chapter 11 filing  frivolous or in imposing sanctions on counsel for acting in bad faith and delaying the state court litigation of a commercial dispute.  Reinhardt, O'Scannlain (author), and Paez, Circuit Judges.  T. Dressler of Los Angeles, CA, for the appellant;  J. Eisenberg of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

19)  ZONING / BILL BOARDS:  Valley Outdoor v. Riverside, 02-55475 (9th Cir. July 31, 2003).  In a challenge by billboard companies to a county's sign ordinance, unconstitutional aspects of a grandfather clause are severable, and content-neutral zoning, size, and height provisions are constitutional.  Browning, B. Fletcher (author), and Silverman, Circuit Judges.  P. Fisher of Newport Beach, CA, for the plaintiffs;  R. Morrison of San Diego, CA, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

20)  FORFEITURE / REAL PROPERTY: USA v Marshall, 01-56061 (9th Cir. July 23, 2003).  The defendant was entitled to the return of a parcel of forfeited real property but, because the government had sold the property, the monetary equivalent had to be restored to him instead;  the yardstick to be used for determining the substitute valuation is the property's value when the government sold the property;  and, because on that date the debt attributable to the property exceeded the defendant's equity in it, the government owed no damages.  Schroeder, Thompson, and Graber (author), Circuit Judges.  P. Marshall pro se;  AUSA S. Welk of Los Angeles, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  ADMIRALTY:  Bartholomew v. Crowley Marine Services, 02-35364 (9th Cir. July 30, 2003).  In apportioning a salvage award which the district court gave to participating crew members but not also to the owner of the salving vessel, the district court should have considered whether that owner was entitled to part of the award;  the mere fact that owner had an interest in the distressed ship could not be the basis for denying the owner a share in the award.  Lay, Goodwin, and Gould (author), Circuit Judges.  H. Vhugen of Seattle, WA, for the defendant;  T. Cox of San Francisco, CA, for the plaintiffs.  (Download the full text of this decision at www.cc9.uscourts.gov/)
 
 

22)  WORKERS' COMPENSATION / ATTORNEYS' FEES:  Richardson v. Continental Grain Company, 01-71860 (9th Cir. July 23, 2003).  The Benefit Review Board properly denied the petitioner attorneys' fees under the Longshore and Harbor Workers' Compensation Act has he had not successfully prosecute his claim for a back injury under 33 USC Sec. 928(a);  it also refused to award fees under Sec. 928(b) for the petitioner's knee injury because the amount tendered by his employer was greater than the compensation awarded.  Lay, Wallace (author), and Tallman, Circuit Judges.  M. Flynn of Portland, OR, for the petitioner;  T. McEl-meel of Seattle, WA, for the respondents.  (Download the full text of this decision at www.cc9.uscourts.gov/)

23)  ADMIRALTY / LABOR LAW:  Anderson v. Pacific Maritime Association, 00-35457 (9th Cir. July 17, 2003).  The Pacific Maritime Association (PMA), a non-profit association of stevedoring and shipping companies that employ the longshoremen plaintiffs in this case, was not itself the employer of the longshoremen, and could not be liable for purported discrimination under Title VII;  dissenting, Judge Fletcher thought that the PMA, as the moving party, did not meet its burden of establishing that it was entitled to judgment as a matter of law, and that there was more than ample evidence submitted by the longshoremen to require remand for trial .  Reavley, B. Fletcher (dissenting), and Tallman (author), Circuit Judges.  B. Marshall of Seattle, WA, for the plaintiffs;  C. Barnes and C. Sethness of Seattle, WA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

24)  LABOR ARBITRATION:  Circuit City Stores v. Mantor, 02-55230 (9th Cir. July 22, 2003)  An arbitration agreement presented to an employee was procedurally unconscionable under California law where the employee had no meaningful opportunity to "opt out," as management presented the agreement on an "adhere-or-reject" basis.  Pregerson (author) and Thomas, Circuit Judges, and Oberdorfer, District Judge.  M. Crosby of San Diego, CA, for the respondent-appellant;  R. Berry of Sacramento, CA, for the petitioner-appellee.   (Download the full text of this decision at www.cc9.uscourts.gov/)

25)  EMPLOYMENT DISCRIMINATION:  Palmer v. Pioneer Inn Associates, 00-15397 (9th Cir. July 22, 2003).  A Title VII plaintiff presented sufficient direct evidence of discrimination to defeat summary judgment;  the USCA reversed sanctions against plaintiff's attorney despite ex parte communications with the defendant's employee, under the "managing-speaking agent" rule;  dissenting in part, Judge Graber thought that Palmer could not show any prejudice from the district court's evidentiary ruling and was thus not entitled to a new trial on the "deli server" position.  Goodwin, Graber (dissenting in part), and McKeown, Circuit Judges. I. Silverberg of Reno, NV, for the plaintiff-appellant;  M. Du of Reno, NV, for the defendant-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

26)  EMPLOYMENT LAW:  Manatt v. Bank of America, 01-35847 (9th Cir. July 28, 2003).  42 USC Sec. 1981 encompasses retaliation and hostile work environment claims, but the conduct of plaintiff's co-workers and supervisors did not so pollute the workplace as to alter conditions of employment;  plaintiff failed to show causal links in her retaliation claims.  Lay, Wallace, and Tallman (author), Circuit Judges.  S. Hunt of Portland, OR, for the plaintiff-appellant;  D. Ortega of Portland, OR, for the defen-dant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

27)  EMPLOYMENT DISCRIMINATION / NATIVE AMERICA LAW:  Malabed v. North Slope Borough, 99-35684 (9th Cir. July 8, 2003).  Section 703(i) of the Civil Rights Act does not preempt Alaskan law that otherwise would prohibit reverse discrimination in Borough employment in favor of members of federally recognized Indian tribes;  the ordinance giving a preference in Borough employment to members of federally-recognized Indian tribes violates the Alaska Constitution's guarantee of equal protection.  Browning, B. Fletcher, and Gould (author), Circuit Judges.  D. Crosby of Juneau, AK, for the defendant;  W. Schendel of Fair-banks, AK, for the plaintiffs.   (Download the full text of this decision at www.cc9.uscourts.gov/)

28)  EDUCATION LAW:  Ms. S. v. Vashon Island School District, 99-36243 (9th Cir. July 31, 2003).  A school district's efforts to serve a disabled child's educational interests complied with the substantive and procedural requirements of the Individuals with Disabilities in Education Act, and satisfied the district's obligation to provide a Free Appropriate Public Education.  Reinhardt, W. Fletcher, and Gould (author), Circuit Judges.  J. Brown of Seattle, WA, for the plaintiff-appellant;  C. Hirst of Seattle, WA, for the defendant-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

29)  AMERICANS WITH DISABILITIES ACT:  Echazabal v. Chevron USA, 98-55551 (9th Cir. July 23, 2003).  Disputed issues of fact existed with respect to an employer's obligations under EEOC regulations concerning the "direct threat" defense under the Americans with Disabilities Act, 42 USC Sec. 12113; the USCA thus reversed and remanded for further proceedings;  dissenting, Judge Trott thought that the evidence could not create a genuine issue of material fact as to the equity of the defendant's good faith decision not to hire the plaintiff;  the defendant had relied on the recommendation of its examining doctor as well as that of the plaintiff's own doctor that the job in question would jeopardize the plaintiff's health.  Reinhardt, Trott (dissenting), and Tashima (author), Circuit Judges.  L. Minsky of Cerritos, CA, for the plaintiff;  J. Kardassakis of Los Angeles, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

30)  AMERICANS WITH DISABILITIES ACT:  Brown v. City of Tucson,. 01-16938 (9th Cir. July 30, 2003).  A police department did not retaliate against one of its officers in violation of the ADA by instituting an investigation into an assault and suspending her;  however, the officer did raise triable issues with her claims that department's threats interfered with her ADA rights.  Stapleton, O'Scannlain (author), and Fernandez, Circuit Judges.  J. Forbes of Tucson, AZ, for the appellant;  L. Aldridge of Tucson, AZ, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

31)  SOCIAL SECURITY:  Bunnell v. Barnhart, 01-36023 (9th Cir. July 28, 2003).  An Administrative Law Judge need not have recused himself from a Social Security claimant's application for disability benefits, as the "appearance of impropriety" standard of 28 USC Sec. 455(a) does not apply to an ALJ and the appellant failed to show actual bias.  Lay (author), Wallace, and Tallman, Circuit Judges.  D. Lowry of Portland, OR, for the plaintiff;  D. Banay of Seattle, WA, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

32)  MILITARY LAW:  Zaputil v. Cowgill, 02-56063 (9th Cir. July 9, 2003). The intra-military immunity doctrine of Feres v. USA, 340 US 135, barred a military reservist, who had been discharged from the National Guard but not also from the Reserve, from bringing an action for damages against military personnel who allegedly wrongly revoked her National Guard discharge and ordered her back to duty.  B. Fletcher and Silverman (author), Circuit Judges, and Martone, District Judge.  R. Hamlish of Thousand Oaks, CA, for the plaintiff-appellant;  AUSA D. Pinchas of Los Angeles, CA, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

33)  ADMINISTRATIVE LAW / PUBLIC UTILITIES:  City of Fremont v. Federal Energy Regulatory Commission, 02-71477 (9th Cir. July 16, 2003).  The Federal Power Act did not preclude the FERC from waiving its regulations to permit a hydro-electric plant operator to compete, with an incumbent's preference, for a new license on an "orphaned" project;  the waiver was not an abuse of discretion.  Canby (author), Kleinfeld, and Rawlinson, Circuit Judges.  H. Golub of San Francisco, CA, for the petitioners;  L. Gasteiger of Washington, DC, for the respondent;  W. Madden of Washington, DC, for the intervenor.  (Download the full text of this decision at www.cc9.uscourts.gov/)

34)  COMMERCIAL SPEECH:  Center for Fair Public Policy v. Maricopa County, 00-16858 (9th Cir. July 28, 2003).  A state's time, place, and manner statute, prohibiting sexually-oriented businesses from operating during late night hours, did not violate the First Amendment; dissenting, Judge Canby found the majority's opinion inconsistent with Los Angeles v. Alameda Books, 535 US 425 (2002).  Canby (dissenting), O'Scannlain (author), and W. Fletcher, Circuit Judges.  G. R. Garrou of Los Angeles, CA, and R. Hertzberg of Phoenix, AZ, for the plaintiffs; S. Boehm of Phoenix, AZ, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

35)  FIRST AMENDMENT:  American Civil Liberties Union of Nevada v. City of Las Vegas, 01-15958 (9th Cir. July 2, 2003).  A City of Las Vegas ordinance unconstitutionally restricted leafleting and vending message-bearing materials in the Fremont Street Experience, a publicly-owned pedestrian mall and traditional public forum;  Tashima, Thomas, and Paez (author), Circuit Judges.  A. Lichtenstein of Las Vegas, NV, for the plaintiffs-appellants;  T. Bice of Los Vegas, NV, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

36)  ELECTION LAW:  Farrakhan v. Washington, 01-35032 (9th Cir. July 25, 2003).  Evidence of discrimination within the criminal justice system can be relevant to a claim of improper race-based disenfranchisement of state felons under Sec. 2 of the Voting Rights Act.  Wood, D.W. Nelson, and Paez (author), Circuit Judges.  L. Weiser of Spokane, WA, for the plaintiffs-appellants;  AAG J. Even of Olympia, WA, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

37)  ABSOLUTE IMMUNITY / FAMILY LAW:  Miller v. Gammie, 01-15491 (9th Cir. July 9, 2003).  Where the reasoning of prior Ninth Circuit authority is clearly irreconcilable with the reasoning of higher intervening authority, a three-judge Circuit panel should consider itself bound by the later intervening authority, and should reject the prior Circuit opinion (here as to the immunity of family-service social workers) as having been overruled; he issues decided by the higher court need not be identical in order to be controlling;  rather, the relevant court of last resort must have undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable;  absolute immunity depends on the particular function performed rather than on whether the state officer's position had a general relationship to a judicial proceeding;  concurring, Judge Kozinski noted that Judge Tashima's views on "dicta" as expressed in USA v. Johnson, 256 F.3d 895, 919 (9th Cir. 2001), are now "only a historical curiosity," as now it is the law of the Circuit that all legal questions presented to the court and expressly resolved by it are binding;  concurring, Judge O'Scannlain wrote separately to note his firm conviction that such an outcome was reachable only by way of en banc review; thus he could not join the majority's pronouncement in Part V.B, entitled "Whether En Banc Was Required," implying as it does that the three-judge panel in this case was free do disregard prior Ninth Circuit precedent;  concurring, Judge Tashima wrote separately only to explain why, in his opinion, Part V.B which, while technically dicta, is nonetheless authoritative and binding precedent for this Circuit.  Schroeder (author), Kozinski (concurring), O'Scannlain (concurring), Rymer, T.G. Nelson, Tashima (concurring), McKeown, Fisher, Paez, Tallman, and Clifton, Circuit Judges.  S. Quinn of Carson City, NV, for the defendants-appellants;  S. Rose of Reno, NV, for plaintiffs-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

38)  IMMIGRATION:  Kankamalage v. INS, 02-71415 (9th Cir. July 8, 2003).  INS regulations taking effect October 1, 1990 and making certain aliens convicted of serious crimes automatically ineligible for a discretionary grant of asylum, could not be applied retroactively to exclude the petitioner from consideration for asylum based on his 1988 conviction where he had pleaded guilty to robbery pursuant to a plea agreement;  the USCA noted that on remand, the BIA is not prohibited from taking into account the petitioner's robbery conviction when it decides whether to grant asylum as a matter of discretion;  the USCA held only that the conviction does not automatically disqualify the petitioner from discretionary consideration.  Browning, B. Fletcher, and B. Silverman (author), Circuit Judges.  R. Jobe of San Francisco, CA, for the petitioner;  E. Kanter of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

39)  IMMIGRATION / HABEAS CORPUS:  Noriega-Lopez v. Ashcroft, 01-17525 (9th Cir. July 9, 2003).  A habeas petitioner should have raised his challenge to the INS's evidence of his conviction on direct review;  the BIA lacked authority to enter a final order of removal in the absence of such an order by the Immigration Judge.  Noonan, Berzon (author), and Tallman, Circuit Judges.  J. Bennett of El Cerrito, CA, for the petitioner;  G. Mack of Washington, DC, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

40)  IMMIGRATION:  Ramirez-Zavala v. Ashcroft, 02-70570 (9th Cir. July 10, 2003).  Under the circumstances of this case, an application for suspension of deportation may not be filed with the INS instead of with the IJ.  Pregerson and Thomas (author), Circuit Judges, and Jorgenson, District Judge.  J. Rosenburg of Los Angeles, CA, for the petitioner;  R. Verby of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

41)  IMMIGRATION LAW:  Ramirez-Perez v. Ashcroft, 02-71038 (9th Cir. July 18, 2003).  Neither the BIA' interpretation of the "exceptional and extremely unusual hardship" standard for purposes of cancellation of removal, nor its summary affirmance ("streamlining") procedures, whereby a single BIA member decides an appeal without a separate opinion, violated the petitioner's due process rights.  T.G. Nelson (author), Silverman, and McKeown, Circuit Judges.  W. Pineda of Redwood City, CA, for the petitioner;  R. McCallum of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

42)  IMMIGRATION:  Khodagholian v. Ashcroft, 02-71317 (9th Cir. July 14, 2003).  The INS failed to show that an Iranian citizen lacked a "continuous, uninterrupted intention to return to the United States" and thus that he gave up his status as a lawful permanent resident where during trips abroad he sold assets and took measures to wind up his affairs, his wife and children remained in the U.S. for most of the time he was abroad, and one trip abroad was to care for relatives, while another was to sell his house abroad.  Tashima, Berzon, and Clifton (author), Circuit Judges.  S. Hill of Los Angeles, CA, for the petitioner;  M. Dougherty of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

43)  IMMIGRATION:  Baballah v. Ashcroft, 01-71407 (9th Cir. July 11, 2003).  Credible evidence presented by an Israeli citizen, including his encounters with the Israeli military, compelled a finding of past persecution on account of his ethnicity and religion;  as the INS failed to rebut the presumption of future persecution, the petitioner was eligible for asylum.  Tashima, Thomas, and Paez (author), Circuit Judges.  H. Ballout of Burlingame, CA, for the petitioner;  J. Cunningham of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

44)  IMMIGRATION:  Carriche v. Ashcroft, 02-71143 (9th Cir. July 14, 2003).  The Board of Immigration Appeals' recently adopted "streamlining" procedures, which permit a single member of the BIA to affirm an Immigration Judge's decision, do not violate the due process rights of aliens;  the petitioner's challenge to a specific decision to streamline is not reviewable as it is based on an alleged error in a discretionary hardship determination;  concurring in part, Judge Nelson thought that the plain language of the streamlining criteria demonstrates that the criteria were non-discretionary and thus that the USCA retained jurisdiction to review the streamlining decision  T.G. Nelson (dissenting in part), Silverman, and McKeown (author), Circuit Judges.  S. Hill of Los Angeles, CA, for the petitioners;  R. McCallum of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

45)  IMMIGRATION:  Malhi v. INS, 02-71609 9th Cir. July 18, 2003).  A citizen of India was not entitled to relief from denial of asylum, withholding of deportation, and Convention Against Torture claims due to geographic discrepancies that went to the heart of his claim of persecution.  Graber, Wardlaw, and Clifton (author), Circuit Judges.  A. Dixon of San Francisco, CA (Download the full text of this decision at www.cc9.uscourts.gov/) 

46)  IMMIGRATION:  Gonzales-Hernandez v. Ashcroft, 02-72178 (9th Cir. July 18, 2003).  Substantial evidence supported the INS's decision to deny asylum to Guatemalan family members based on their fear of persecution, where the State Department's country report indicated that only high-level political figures are now subject to persecution and that even they could safely relocated within Guatemala;  the petitioners were never party leaders nor high-level politicians in Guatemala.  Thompson, Trott, and Tallman (author), Circuit Judges.  S. Hill of Los Angeles, CA, for the petitioners;  N. Schwartz of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

47)  IMMIGRATION:  USA v. Romero-Bustamente, 02-10414 (9th Cir. July 31, 2003).  A search of defendant's backyard was  not authorized under 8 USC Sec. 1357(a)(3), which gives Border Patrol agents power to access certain border-adjacent lands;  the discovery of undocumented Mexican nationals in the yard should have been suppressed.  D.W. Nelson (author) and W. Fletcher, Circuit Judges, and Alsup, District Judge.  V. Lacsamana of Tucson, AZ, for the defendant;  AUSA E. Markovitch of Tucson, AZ, for the plaintiff.   (Download the full text of this decision at www.cc9.uscourts.gov/)

48)  IMMIGRATION:  Padilla v. Ashcroft, 02-70430 (9th Cir. July 1, 2003).  There were no due process rights violations where an alien was ordered removed through the expedited procedures of 8 USC Sec. 1225(b)(1), which do not afford a hearing, but who then re-entered the United States illegally, and who then, after applying for an adjustment of status, saw instead her prior removal order reinstated under 8 USC Sec. 1231(a)(5)'s summary procedures;  the alien conceded that she is the alien who was previously removed and who reentered illegally;  Judge Berzon concurred in the majority's result and agreed that the petitioner was inadmissible at the time her order of removal was reinstated and that she has not shown that she was prejudiced by the failure to afford her a hearing prior to the reinstatement, because she does not identify a plausible claim for opposing removal pursuant to reinstatement;  however, Judge Berzon disagreed with the majority's reliance on the bar to relief contained in Sec. 1231(a)(5) as an alternative ground for denying the petition.  Kozinski, Graber (author), and Berzon (concurring), Circuit Judges.  J. Byrne of San Francisco, CA, for the petitioner;  P. Sandhu of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

49)  IMMIGRATION / DRUG TRAFFICKING:  Rojas-Garcia v. Ashcroft, 02-35788 (9th Cir. July 29, 2003).  A deportable alien's notice of appeal did not state grounds for appeal with sufficient particularity to avoid summary dismissal;  INA Sec. 212(a)(2)(C) was not impermissibly vague as applied to the petitioner in a determination of eligibility for adjustment of status based on drug trafficking.  O'Scannlain and Gould (author), Circuit Judges, and Bolton, District Judge.  R. Pauw of Seattle, WA, for the petitioner;  AUSA C. Pickrell of Seattle, WA, for the respondents.  (Download the full text of this decision at www.cc9.uscourts.gov/)

50)  CIVIL RIGHTS:  Save Our Valley v. Sound Transit, 01-36172 (9th Cir. July 10, 2003).  A Department of Transportation regulation, prohibiting discrimination against area residents based on race, does not create individual federal rights enforceable under 42 USC Sec. 1983;  dissenting, Judge Berzon thought there was no functional difference between statutes and regulations that would justify the majority's holding that only statutes could create rights.  Hill, Gould (author), and Berzon (dissenting), Circuit Judges.  M. Gendler of Seattle, WA, for the plaintiff;  P. Lawrence and J. Goeke of Seattle, WA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

51)  WARRANTLESS ENTRY:  Dixon v. Wallowa County, 01-35709 (9th Cir. July 21, 2003).  In a 42 USC Sec. 1983 action brought by a plaintiff who was renting a room from a sexual assault suspect, no Fourth Amendment violation occurred during a police warrantless entry when they secured the residence as a crime scene and plaintiff was removing property from the residence.  Wallace (author), Trott, and Tashima (concurrence), Circuit Judges.  M. Mendelson of Portland, OR, for the plaintiff; B. Mowery of Salem, OR, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

52)  QUALIFIED IMMUNITY:  Peng v. Hu, 02-55852 (9th Cir. July 10, 2003).  A police officer was entitled to qualified immu-nity given the totality of the circumstances facing him at the time of the plaintiff's arrest; the USCA thus affirmed the dismissal of plaintiff's 42 USC Sec. 1983 claim arising from an arrest for robbery under California law.  Schroeder and Graber, Circuit Judges, and Singleton (author), District Judge.  F. Weiser of Los Angeles, CA, for the plaintiff;  M. Chiang of Los Angeles, CA, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

53)  PRETRIAL DETAINEES / SPEEDY TRIAL RIGHTS:  McNeely v. Blanas, 02-15860 (9th Cir. Amended opinion files on July 17, 2003).  A California pretrial detainee's constitutional speedy trial rights were denied where he had been in custody since April 1998 without a preliminary hearing or trial.  Noonan, Tashima (author), and Wardlaw, Circuit Judges.  D. Broderick of Sacramento, CA, for the petitioner;  DAG C. Meyers of Sacramento, CA for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

54)  PEREMPTORY STRIKES / JURORS:  USA v. Alanis, 02-30194 (9th Cir. July 10, 2003).  A defendant's original objection to a prosecutor's peremptory strikes of potential jurors imposes on the trial court an obligation to complete the third step of the Batson process without further request, encouragement, or objection from counsel.  Reinhardt, W. Fletcher, and Gould (author), Circuit Judges.  D. Ness of Missoula, MT, for the defendant-appellant;  AUSA L. Suek of Great Falls, MT, for the plaintiff-appellee.   (Download the full text of this decision at www.cc9.uscourts.gov/)

55)  JUVENILE LAW:  USA v. Juvenile Male, 01-10693 (9th Cir. July 23, 2003).  The district court transferred a juvenile to adult prosecution without jurisdiction when it failed to receive the juvenile's official records prior to transfer, as required by 18 USC Sec. 5032, and instead relied on undocumented testimony regarding the juvenile's record.  Brunetti and Tashima (author), Circuit Judges, and Ezra, District Judge.  AFPD R. McWhirter of Phoenix, AZ, for the defendant-appellant;  AUSA L. Boone of Phoenix, AZ, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

56)  JUVENILE LAW:  USA v. Miguel, 01-10538 (9th Cir. July 23, 2003).  The district court committed structural error when it precluded the defendants from arguing their theory of the case and instructed the jury that no evidence supported the defendant's theory;  Apprendi does not apply to transfer proceedings that permit the government to try a juvenile as an adult;  dissenting in part, Judge Rymer disagreed that precluding argument about who did the shooting was structural error on the felony murder charge, as it did not matter who pulled the trigger as long as it was reasonably foreseeable that a participant would.  Leavy, Rymer (dissenting in part), and T.G. Nelson (author), Circuit Judges.  FPD P. Wolff and B. Edwards of Honolulu, HI, for the defendants; M. Silverberg and R. Johnson of Honolulu, HI, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

57)  TELEMARKETING FRAUD / SENTENCING:  USA v. Woods, 01-50539 (9th Cir. July 14, 2003).  The USCA upheld the defendants' mail and wire fraud convictions based on their involvement in a telemarketing scheme;  the government was not required to prove a specific material false statement;  however, a sentence enhancement for a management or supervisory role was erroneous.  Tashima, Berzon, and Clifton (author), Circuit Judges.  K. Miller of Capistrano Beach, CA, and J. Rochlin of Los Angeles, CA, for the defendants;  AUSA D. Yang of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

58)  TORTURE:  Morales v. Woodford, 99-99020 (9th Cir. July 28, 2003).  Instructional error regarding the torture special circumstance under California law did not have a substantial injurious effect on the jury verdict;  petitioner's Eighth Amendment challenge to the "lying in wait" special circumstance also failed.  Fernandez, Kleinfeld (author), and McKeown, Circuit Judges.  D. Senior of Los Angeles, CA, for the appellant;  K. Borjon of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

59)  CRIMINAL LAW:  USA v. Davis, 02-50451 (9th Cir. July 17, 2003).  The district court properly denied the defendant's motion to dismiss an indictment for escape from prison as the indictment tracked the language of 18 USC Sec. 751(a) and the indictment's allegation that the defendant "did escape" unambiguously set forth the criminal intent required by USA v. Bailey, 444 US 394 (1980).  Thompson, Trott (author), and Tallman, Circuit Judges.  AUSA C. Tenorio of San Diego, CA, for the plaintiff-appellee;  T. Burns of San Diego, CA, for the defendant-appellant. (Download the full text of this decision at www.cc9.uscourts.gov/)

60)  SENTENCING:   USA v. Riley, 02-30072 (9th Cir. July 9, 2003).  The district court properly in included a conspiracy's check cashing activities in determining the amount of loss attributable to defendant for sentence enhancement purposes;  however, the evidence did not support an enhancement under Guidelines Sec. 2F1.1(b)(5)(C)(ii) for possessing five or more means of false identification, as it did not show that the false identifications are of at least five actual people.  Wallace, Trott, and Tashima (author), Circuit Judges.  AUSA T. Greenberg of Seattle, WA, for the plaintiff-appellee;  A. Ressler of Seattle, WA, for the defendant-appellant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

61)  SENTENCING:  USA v. Semsak, 02-30153 (9th Cir. July 28, 2003).  Following the defendants involuntary manslaughter conviction, the district court properly interpreted the Sentencing Guidelines in departing upward four levels due to the size of defendant's truck and his recklessness driving.  B. Fletcher, Brunetti, and McKeown (author), Circuit Judges.  R. Hammond of Billings, MT, for the appellant;  C. Laws of Billings, MT, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

62)  SENTENCING / IMMIGRATION:  USA v. Ramirez-Sanchez, 02-10101 (9th Cir. July 22, 2003).  The district court properly found that "driving without an operator's license in possession" is similar to "driving without a license" for purposes of criminal history points under Guidelines Sec. 4A1.2(c)(1);  active supervision is not a required element of a "criminal justice sentence" under Guidelines Sec. 4A1.1(d);  deportation does not terminate supervised release and it does not terminate probation.  Brunetti (author) and Tashima, Circuit Judges, and Ezra, District Judge.  A. Allen of Las Vegas, NV, for the appellant;  AUSA R. Bork of Las Vegas, NV, for the appellee.   (Download the full text of this decision at www.cc9.uscourts.gov/)

63)  SENTENCING:  USA v. Alfaro, 02-50235 (9th Cir. July 14, 2003).  A 14-level upward sentence departure for "large-scale" importation of chemicals used in drug manufacturing in violation of 21 USC Sec. 843(a)(7) was unreasonable and violated the ex post facto clause;  the defendant could be sentenced directly under Guidelines Sec. 2D1.12, the sole guideline applicable to Sec. 843(a)(7), the statute the defendant pleaded guilty to violating.  Pregerson, Tashima, and Clifton (author), Circuit Judges.  A. Krueger of San Diego, CA, for the defendant;  AUSA R. Haines of San Diego, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

64)  PAROLE:  Himes v. Thompson, 01-35311 (9th Cir. July 10, 2003).  The Oregon State Board of Parole's decision that the petitioner violated the terms of his parole, based on parole regulations more onerous than those in place at the time petitioner committed the offense for which he was incarcerated, violated the Ex Post Facto Clause of the U.S. Constitution.  B. Fletcher, O'Scannlain, and Berzon (author), Circuit Judges.  AFPD B. Lessley of Eugene, OR, for the petitioner-appellant;  AAG J. Metcalf of Salem, OR, for the respondent-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

65)  PAROLE / EX POST FACTO PUNISHMENT:  Hunter v. Ayers, 01-17557 (9th Cir. July 18, 2003).  A change in California parole regulations governing the "good time" system and which removed the petitioner's right to the restoration of lost good time, was unconstitutionally retroactive.  Kozinski and Kleinfeld (author), Circuit Judges, and Reed, District Judge.  D. Carrasco of Sacramento, CA, for the appellant;  J. Hunter pro se.  (Download the full text of this decision at www.cc9.uscourts.gov/)

66)  CAPITAL PUNISHMENT / HABEAS CORPUS:  Belmontes v. Woodford, 01-99018 (9th Cir. July 15, 2003).  In this pre-AEDPA death penalty case, the jury should have been instructed that it had to consider the defendant's principal mitigation evidence, showing he would adapt well to prison and would likely be a constructive member of society if incarcerated for life;  habeas relief was granted as it was probable that this error affected the jury's decision to impose the death penalty;  dissenting in part, Judge O'Scannlain thought that the majority had properly affirmed the district court's determination that there was no constitutional error in the petitioner's convictions for first degree murder with special circumstances in state court;  however, Judge O'Scannlain thought that, as to the penalty phase, the majority "strained mightily—and unpersuasively—to perceive constitutional error" in the comprehensive and perfectly proper jury instructions given by the state trial judge; there simply was no such error, he thought, and the Supreme Court has expressly said so in Boyde v. California, 494 US 370 (1990).  Reinhardt (author), O'Scannlain (dissenting in part), and Paez, Circuit Judges. E. Multhaup of Mill Valley, CA, for the petitioner;  DAG M. Johnson of Sacramento, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

67)  HABEAS CORPUS:  Hanson v. Mahoney, 02-35795 (9th Cir. July 18, 2003).  Magistrates are authorized to issue certificates of appealability pursuant to 28 USC Sec. 2253 if they have been authorized by consent of the parties to adjudicate the entire case pursuant to 28 USC Sec. 636(c)(1).  B. Fletcher (author), Brunetti, and McKeown, Circuit Judges.  AFPD D. Ness of Helena, MT, for the petitioner;  AAG C. Schmidt of Helena, MT, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

68)  HABEAS CORPUS:  Hunt v. Pliler, 01-56963 (9th Cir. Amended opinion filed July 8, 2003).  Because the district court failed to proceed in conformity with 28 USC Sec. 636, the dismissal with prejudice of plaintiff's habeas corpus petition is vacated.  D.W. Nelson and T.G. Nelson, Circuit Judges, and Schwarzer (author), District Judge.  E. Multhaup of Mill Valley, CA, for the petitioner-appellant;  DAG R. Cullather of San Francisco, CA, for the respondents-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

1)  BANKRUPTCY:  In re Edwards Theatres Circuit, Inc., 02-56089 (9th Cir. July 24, 2003) (unpublished).  Trott and Tallman, Circuit Judges, and Collins, District Judge.
         Mira Mesa Shopping Center appealed the district court's affirmance of the bankruptcy court's denial of its motion to allow a late filed proof of claim, or, in the alternative, to allow the amendment of an informal proof of claim.
        The USCA affirmed.  First, it noted that it reviews for abuse of discretion a bankruptcy court's determinations as to whether excusable neglect exists, and whether to allow a late filed proof of claim.  The determination of excusable neglect is an equitable one, "taking account of all relevant circumstances surrounding the party's omission."  Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship., 507 US 380, 395 (1993).  Four factors had to be considered:  (1) the danger of prejudice to the debtor;  (2) the length of the delay and its potential impact on judicial proceedings;  (3) the reasons for the delay, including whether it was within the reasonable control of the movant;  and (4) whether the movant acted in good faith. Id.  While the USCA found that (1), (2), and (4) should not have been weighted against Mira Mesa, it did not believe, given that the late filed proof of claim was clearly caused by neglect, that the bankruptcy court abused its discretion in finding that factor (3) weighted against granting the requested relief.  Mira Mesa, as the party seeking relief, carried the burden of proving that its delay resulted from excusable neglect.  Yet Mira Mesa failed to present evidence adequately explaining the reason for its delay.  The "Thorn" declaration did little more than present a process that did not work; it failed to provide the bankruptcy court with specific information needed to determine whether Mira Mesa's delay resulted from excusable neglect.  Moreover, the bankruptcy court found that the explanation of the reason for delay was so lacking in specificity that it could not be considered credible.  A trial court's credibility determinations are entitled to deference.  Thus, even though the bankruptcy court should not have weighted the other factors against Mira Mesa, they were significantly outweighed by Mira Mesa's utter failure to offer specific evidence supporting its claim that there was an excusable reason for the delay.  The USCA further found that whether a letter from a creditor to the debtor constitutes an informal proof of claim is a question of law subject to de novo review.  "For a document to constitute an informal proof of claim, it must (1) state an explicit demand showing the nature and amount of the claim against the estate, and (2) evidence an intent to hold the debtor liable."  In re Anderson-Walker Indus., Inc., 798 F.2d 1285, 1287 (9th Cir. 1986).  The bankruptcy court did not err in concluding that the letter was not an informal proof of claim because it did not evidence any intent to hold the debtors liable for the rejected lease beyond confiscation of the fixtures, furniture and equipment.  Indeed, the letter calls into doubt the very existence of a larger claim by noting that Mira Mesa was in contact with a party who was "ready, willing and able" to lease the premises "in mitigation of the debtor's obligations under the defaulted / rejected lease."

2)  TAXATION / BANKRUPTCY:  Wilson v. CIR, 02-74144 (9th Cir. July 23, 2003) (unpublished).  Leavy, Hawkins, and Rawlinson, Circuit Judges.
      The petitioners appealed pro se the tax court's judgment upholding federal income tax deficien-cies for 1992 and 1993.  The USCA affirmed, finding that the tax court properly determined that it had ju-risdiction over the parties and subject matter, and that the record did not support the petitioners' conten-tion that their federal income tax liability was discharged in their bankruptcy proceedings.  The USCA further found that the tax court did not clearly err in finding that the petitioners were not involved in the trade or business of operating a restaurant or nightclub between 1990 and 1993.  The tax court thus properly disallowed deductions for trade or business expenses relating to the operation of a restaurant or nightclub for those years.  It also properly disallowed net operating loss deductions carried forward from 1990 and 1991 because they were start-up costs.

3)  TAXATION:  Curtis v. CIR, 02-70182 (9th Cir. July 14, 2003) (unpublished).  Leavy (dissenting), McKeown, and Wardlaw, Circuit Judges.
           Curtis appealed pro se the tax court's reinstatement of its original decision in favor of the CIR after remand by the USCA.  The tax court sustained the CIR's determinations of tax deficiencies and additions for tax years 1983-1993 and granted the CIR's motion for sanctions under 26 USC Sec. 6673(a)(1).
            The USCA affirmed in part, reversed in part, and remanded.  The tax court's finding that the CIR's tax deficiency determinations were entitled to a presumption of correctness was not clearly erroneous.  The presumption of correctness attaches to a CIR deficiency determination when the determination is supported by sufficient evidence connecting the taxpayer to income-producing activity.  The requirement is "minimal," Palmer v. IRS, 116 F.3d 1309 (9th Cir. 1997), and can be satisfied by the notices of deficiency themselves, Merkel v. CIR, 192 F.3d 844 (9th Cir. 1999).  The tax court relied on Curtis' testimony, statements in her pleadings and briefs to the tax court, and two pages from the 1992 and 1993 deficiency notices attached as an exhibit to Curtis' post-trial memorandum.  As the deficiency notices themselves were sufficient to meet the CIR's burden, the tax court did not clearly err in so finding.  While Curtis questioned whether these documents were in fact deficiency notices, she pointed to no evidence suggesting they were not.  Curtis' alternative contention—that the deficiency notices were not properly part of the record because they were introduced after the close of testimony—lacked merit.  The tax court did not abuse its discretion in admitting these documents.  Curtis herself introduced the notices, and never subsequently moved to exclude them from the record.  In fact, she was required to attach the deficiency notices to her initial petition, Tax Ct. R. 34(b)(8), but did not submit them to the tax court until she filed her post-trial memorandum.  It matters not that the notices were received over the CIR's objection.  The USCA noted that a taxpayer may rebut the presumption of correctness by showing by a preponderance of the evidence that the deficiency is incorrect or was arbitrarily derived.  Merkel, 192 F.3d at 852.  Curtis met her burden with respect to tax year 1992.  The deficiency notices show a $20,000 discrepancy between the sum of rental income Curtis received from each property attributed to her ($78,180) and the total rental income attributed to her for the year ($98,180).  The record contained no explanation for this discrepancy.  The USCA thus reversed and remanded this portion of the tax court's decision.  It instructed that on remand the tax court should either recalculate the tax assessment for 1992 using the lower of these figures, or reopen the proceedings to the extent needed to ascertain Curtis' correct tax burden for 1992.  The USCA also found that the tax court did not abuse its discretion in imposing sanctions on Curtis for making "frivolous or groundless arguments" under 26 USC Sec. 6673(a)(1).  Curtis' challenges to the tax court's jurisdiction, the taxability of rental income, and the constitutionality and mandatory nature of the income tax were frivolous. 
         Dissenting, Judge Leavy would reverse the tax court's judgment in its entirety as the evidence before the tax court was insufficient to support the CIR's deficiency determination.

4)  TAXATION:  Van Camp & Bennion, P.S. v. USA, 02-35380 (9th Cir. July 17, 2003) (unpublished).  Schroeder, Beezer, and Hawkins, Circuit Judges.
        Taxpayer Van Camp & Bennion appealed the district court's grant of summary judgment in favor of the United States.  The USCA earlier remanded a related case to the district court to consider whether this taxpayer had reasonable cause for failure to deposit and pay timely federal employment taxes.  The district court concluded that reasonable cause did not exist.  The USCA affirmed.  The taxpayer maintained that its financial difficulties constituted reasonable cause for its failure to pay withholding taxes.  The record showed, however, that the corporation was receiving large monthly deposits that were sufficient to meet its tax obligations.  It also established that during the relevant tax years, the corporation was paying its president over $100,000 per year.  The corporation thus did not show that it exercised ordinary business care and prudence in providing for payment of its tax liability.  26 CFR Sec. 301.6651-1(c)(1).  The taxpayer also argued that the illness of its president constituted reasonable cause for the failure to pay taxes.  But the record did not support this contention.  The undisputed evidence showed that the corporation continued to operate during the relevant time period, and continued to attract business.  The president remained available to discuss business during his illness, and was not the only person with authority to conduct the corporation's financial transactions.

5)  SETTLEMENT AGREEMENTS:  Cranshire Capital, L.P. v. CBTV-Star, LW, Inc., 02-56778 (9th Cir. July 1, 2003). (unpublished).  Reinhardt (dissenting), O'Scannlain, and Fisher, Circuit Judges.
         Keystone Energy Services appealed the district court's judgment against it pursuant to the terms of a settlement agreement allegedly entered into by Keystone and Cranshire Capital, L.P.  Keystone maintained that (1) the district court lacked jurisdiction to enter the judgment;  (2) the settlement agreement was invalid under California law;  and (3) the district court imposed terms beyond those called for in the settlement.
          The USCA affirmed.  First, Kokkonen v. Guardian Life Insurance Company of America, 511 US 375, 378 (1994), held that "enforcement of …[a] settlement agreement, … whether through award of damages or decree of specific performance, is more than just a continuation or renewal of the dismissed suit, and hence requires its own basis for jurisdiction."  The mere existence of an "agreement that has as part of its consideration the dismissal of a case before a federal court," id. at 380, without more, is not a sufficient basis for a federal court's jurisdiction.  The Court identified circumstances in which a federal court would have jurisdiction to enforce the terms of a settlement agreement:  "The situation would be quite different if the parties' obligation to comply with the terms of the settlement agreement had been made part of the order of dismissal—either by separate provision (such as a provision "retaining jurisdiction" over the settlement agreement) or by incorporating the terms of the settlement agreement in the order.  In that event, a breach of the agreement would be a violation of the order, and ancillary jurisdiction to enforce the agreement would therefore exist."  Keystone conceded that the district court's order includes the kind of "jurisdiction retaining" language required by Kokkonen.  Still, Keystone maintained that, because the district court never retained jurisdiction only for 120 days—and because the district court never modified its earlier order—the district court was powerless to enter judgment on September 6, outside of the 120-day period.  The principle underlying Kokkonen would appear to foreclose Keystone's argument.  The Court emphasized that were, as here, a court expressly retains jurisdiction to enforce a settlement agreement, "a breach of the agreement would be a violation of the [dismissal] order, and ancillary jurisdiction to enforce the agreement would therefore exist. Id. 381.  Thus, when the district court expressly retained jurisdiction to enforce the settlement agreement in this case, it made "the parties' obligation to comply with the settlement agreement … part of the order of dismissal." Id.  The breach of the settlement agreement, thus, constitutes a violation of the court's dismissal order and triggers the court's ancillary jurisdiction.  In the present case, the court held a hearing on Cranshire's motion to enforce judgment at which the district court's judge specifically concluded that the agreement wasn't performed.  That conclu-sion, which took place within 120 days of the order dismissing the case, was sufficient under the Court's reasoning in Kokkonen to trigger the district court's ancillary jurisdiction to enforce the settlement agreement and thus to enter judgment against Keystone.
       Second, for the first time on appeal, Keystone maintained that, under California law, the letter agreement was invalid and thus unenforceable.  The agreement specifically states that it is binding and enforceable pursuant to Code of Civil Procedure Sec. 664.6.  The California Supreme Court has held that Sec. 664.6 requires that any settlement agreement be signed by the parties themselves, and not their attorneys.  Levy v. Superior Court, 896 P.2d 171, 175 (Cal. 1995).  Keystone argued that because the agreement here was signed by Cranshire's counsel—and not by Cranshire itself—it was invalid.  However, as Cranshire points out, Keystone affirmatively stated—in both its papers and at oral argument below—that the agreement was a valid and binding agreement.  Marx v. Loral Corporation, 87 F.3d 1049 (9th Cir. 1996) involved an appellant who argued to the trial court that its claim "is not an equitable estoppel claim" but then argued on appeal that "equitable estoppel principles are at issue in this case."  Id. at 1056.  The Marx panel held that "this about-face by the plaintiffs is, at best, inventive, especially given their earlier disavowal of an equitable estoppel theory.  As a result, the plaintiffs should be barred from asserting this theory on appeal."  Id.  Because Keystone is attempting  to do precisely what the Marx plaintiffs were prevented from doing—take a position on appeal that directly contradicts its position in the district court—the USCA declined to entertain their challenge to the validity of the settlement agreement.
        Third, Keystone maintained that the district court erroneously imposed obligations over and above those provided for in the agreement.  The agreement, according to Keystone, "contemplated that upon Keystone's payment of $150,000, the 500,000 shares of Keystone stock held by Cranshire would be returned to Keystone."  By entering judgment in the amount of $250,000 and ordering Keystone to remove the restrictive legend on the shares in Cranshire's possession, Keystone argued, the district court "granted Cranshire a double recovery at Keystone's expense." Id at 15.  However, the USCA found no merit in Keystone's claim.  As an initial matter, it is worth noting that the underlying lawsuit settled by the letter agreement sought $400,000 in damages.  In consideration for Cranshire's surrendering of its claims, Keystone agreed (1) to make a series of cash payments from Keystone totaling $75,000;  (2) to remove the restrictive legend from the disputed shares so as to allow Cranshire to either sell the stock back to Keystone at $0.15 per share (for a total of $75,000) or sell it on the open market;  and (3) to enter a stipulated judgment, enforceable if Keystone should fail to perform, providing for a $250,000 judgment, less any payments received under the agreement or value received for any shares sold.  By failing to perform any of the terms of the agreement, Keystone exposed itself to the enforcement of the settlement terms, including the $250,000 judgment expressly provided for in the agreement.  There was no double recovery because (1) the agreement specifically contemplates the $250,000 judgment and (2) the $250,000 judgment would be reduced by the amount of any payments received from Keystone or upon Cranshire's sale of the stock. 
           Judge Reinhardt dissented.  He thought that, having expressly retained jurisdiction for 120 days only, the district court lost jurisdiction at the end of the 120-day period.  The district court thus lacked jurisdiction to enter the judgment.  For this reason, Judge Reinhardt said he would not reach the merits, although he noted that the judgment that was entered (in excess of the court's jurisdiction) contained material errors in that it did not provide, as it should have, for any reduction or return of funds as a result of a sale of the stock by Cranshire, notwithstanding the majority's statement to the contrary.

6)  SETTLEMENT AGREEMENTS:  Bosa Development v. Shell Oil Co., 02-56074 (9th Cir. July 23, 2003) (unpublished).  Reinhardt, O'Scannlain, and Fisher, Circuit Judges.
        Viad Corporation appealed from the district court's grant of summary judgment.  According to Arizona law, the USCA had to construe the Settlement Agreement according to its "clear and unambigu-ous language."  Shattuck v. Precision-Toyota, Inc. 566 P.2d 1332, 1334 (Ariz. 1977).  Under the terms of the Settlement Agreement, the prior agreements between the parties govern Viad's liability if two conditions are met:  (1) the damages alleged by Bosa are an "Environmental Obligation," and (2) Viad was "Notified" about the Environmental Obligation prior to March 1, 1992.  Viad conceded that the harm to Bosa's property constitutes an Environmental Obligation within the meaning of the Settlement Agreement.  The USCA concluded that Viad was also "Notified."  In a 1987 letter, GLI informed Viad that it was potentially liable for soil contamination.  Included in the letter was a map showing the extent of the contamination and in particular contamination on Bosa's property.  By informing Viad that it was potentially liable for wide-spread contamination and providing maps which show the extent of such contamination on neighboring properties, including Bosa's, GLI "reasonably disclosed" the existence of the obligation to Viad under the plain language of the Settlement Agreement.  Because Viad was notified of an Environmental Obligation prior to March 1, 1992, "the Amended Acquisition Agreement, Master Lease, Claims Treatment Agreement and the San Diego Letter shall continue to govern such Environmental Ob-ligations."  Under these agreements, the USCA found it clear that GLI was entitled to indemnification.  The most recent agreement, the San Diego Letter Agreement, states that Viad "has agreed to indemnify and hold harmless [GLI] from any and all liabilities of any nature or kind (including third party claims) … arising out of or resulting from or in connection with the soil and groundwater contamination at the [Property]" unless the contamination on the property was "newly discovered" after August 31, 1992 and "was caused solely by the activity of GLI … after March 18, 1987."  There is no doubt that Viad was aware of the contamination well before August 31, 1992, and thus failed to meet both requirements of the liability shifting provision of the San Diego Letter Agreement.  GLI was thus entitled to indemnity.

7)  FRANCHISE LAW:  Lee v. GNC Franchising, 02-56377 (9th Cir. July 22, 2003) (unpublished).  Kozinski, Fernandez, and Rymer, Circuit Judges.
         General Nutrition Center franchise Kevin Lee, Jeniffer Lee, and Nature's Gem, Inc. (collectively, "the Lees") appealed a summary judgment in favor of General Nutrition and its affiliate companies (GNC).
          The USCA affirmed in part and reversed in part.  First, it found that the district court properly upheld the Pennsylvania choice-of-law provisions contained in the Lees' renewal franchise agreements.  Neither statute nor public policy was to the contrary; and the releases did not affect the Lees' CFIL claims.  Second, the general releases contained in the renewal agreements barred the Lees' non-CFIL claims against GNC.  The "1999 Westside" release is not overly broad, and the Lees fail to raise a genuine issue of material fact that it was fraudulently induced.  Even assuming the representations upon which they rely were more than predictions of what the future may hold, the evidence failed to suggest that GNC never intended to perform.  Third, regardless of whether the original franchise agreements were adhesion contracts, the release-for-renewal requirements could not have been contrary to the Lees' reasonable expectations, nor were the terms so unconscionable as to be unenforceable.  Adequate notice and opportunity for review were given.  As the releases did not purport to absolve GNC of future liability for fraud and other intentional wrongs, Cal. Civ. Code Sec. 1668 is inapplicable.  For all of these reasons their argument that their RICO claims should be treated differently also failed.  Fourth, as there not substantial evidence that GNC willfully made untrue statements or omissions in its pre-franchise disclosures with respect to territory, earning capacity, or wholesale pricing, the Lees' CFIL claims fail as well.  Finally, the USCA did agree with the Lees that the "2002 South Bay" release unambiguously applied only to the South Bay store.  The plain language of the 2002 release limits its effects to the "Franchisee's GNC Franchise and store," defined in the agreement as the South Bay store.  This contrasted with the 1999 release that by its terms applied to "any and all franchise locations" owned by the Lees.  Given the clear text, the standard clause that all references in the agreement to the singular are construed to include the plural did not create ambiguity.  Neither did the fact that the Lees signed individually.  In the absence of ambiguity, the "Estoppel Letter" had no relevance.  Accordingly, the 2002 release did not bar claims brought with respect to the Westside store.  Because it reversed the judgment with respect to the scope of the 2002 release, the USCA also vacated the award of attorneys' fees.  The USCA remanded for further proceedings.

8) TRADEMARKS / INSURANCE:  Creative Paperclay Co. v. Sentry Insurance, 02-56156 (9th Cir. July 9, 2003) (unpublished).  Silverman, W. Fletcher, and Rawlinson, Circuit Judges.
        Creative Paperclay Company asserts that the district court erred in granting Sentry Insurance summary judgment and denying Paperclay's motion for an order specifying issues that exist without substantial controversy.
         The USCA affirmed.  Under California law, Paperclay has the burden of establishing that the counterclaim comes within the scope of the policy provided by Sentry Insurance.  Handcraft's counter-claim did not allege an "advertising injury" covered by the policy.  The counterclaim does not allege a claim for trademark infringement or common law misappropriation, which is covered by the insurance policy.  Rather, it merely sought to have Paperclay's trademark declared generic and the trademark registration declared invalid and unenforceable.  Moreover, the insurance policy states that coverage applies to advertising injuries "caused by an offense committed in the course of advertising [Paperclay's] goods, products, or services."  Handcraft's counterclaim relates to Paperclay's registration of the trademark, not to its use of the mark in its advertising activities.  As the district court correctly held, Handcraft's counter-claim did not state a misappropriation claim, nor had Paperclay shown that Handcraft could state such a claim.  In the alternative, as the district court held, coverage in this case is excluded by the "first publication" provision.  The parties do not dispute that Paperclay registered and used the "Paperclay" trademark before the inception of the insurance policy.

9)  INSURANCE:  Haskell v. State Farm Mutual Automobile Ins. Co., 02-15533 (9th Cir. July 9, 2003) (unpublished).  Schroeder, D.W. Nelson, and W. Fletcher, Circuit Judges.
          Earl and Loralee Haskell appealed the district court's grant of summary judgment to State Farm denying automobile insurance benefits.  The USCA affirmed.  The parties did not dispute diversity of citizenship.  State Farm must show by a preponderance of the evidence that the amount in controversy ex-ceeds $75,000.  And it is facially apparent from the complaint that it does.  The parties agree that $70,000 in uninsured motorist benefits under to State Farm policies is in controversy.  The Haskills' complaint also states that State Farm is "obligated" to provide no-fault, personal injury protection coverage.  State Farm's policies provide $10,000 of such coverage.  The complaint also seeks statutorily authorized attorneys' fees, which may be taken into account when determining the amount in controversy.  Including the uninsured motorist coverage, the personal injury protection coverage, and attorneys' fees, State Farm has shown that the amount in controversy exceeds $75,000.  The Haskells claim that Earl's injury arose out of the use of an uninsured motor vehicle.  The USCA disagreed.  Even if Peter Moses was "using" the Alamo rental car by attempting to steal it or to steal a backpack out of it, under Hawaii law there still must be a causal connection between the use of the uninsured vehicle and the injury.  The Alamo car was not used to facilitate the shooting, nor at any time during the events was it used for transportation purposes.  The connection between Moses' "use" of the car and his shooting Haskell is too attenuated to support a finding of coverage under Hawaii law.  The USCA thus affirmed the district court's grant of summary judgment.

10)  INSURANCE:  Bjorklund v. N. American Co. for Life and Health Ins., 02-15533 (9th Cir. July 23, 2003) (unpublished).  Reinhardt, O'Scannlain, and Fisher, Circuit Judges.
        Bjorklund appealed from the district court's order granting summary judgment in favor of North American Companies for Life and Health Insurance on Bjorklund's claims for breach of contract, breach of the implied covenant of good faith and fair dealing and unfair competition.
        The USCA affirmed in part, reversed in part, and remanded.  First, the district court granted summary judgment to North American because it found that Bjorklund's claims for breach of an insurance contract were barred by the applicable statutes of limitations.  The USCA disagreed.  In California, a cause of action for breach of contract accrues at the time of breach, which then starts the limitations pe-riod running.  Pursuant to the contract at issue, Bjorklund could surrender the policy at any time prior to its maturation, at which time North American would be called upon to tender the cash value of the policy as of that date.  Bjorklund attempted to surrender the policy in a letter dated July 29, 1999, demanding payment in the amount of approximately $834,000.  North American refused to pay that amount, and it is that refusal that constitutes the alleged breach.  North American points to the annual statements Bjorklund received, and the value assessments in those statements that are inconsistent with the amount he claims he was owed.  Those statements are best viewed as an anticipatory repudiation of the contract, however, and under California law, anticipatory repudiation does not trigger the statute of limitations for breach.  As explained in Romano v. Rockwell Intl., Inc., 14 Cal. 4th 479 (1996), when a party to a contract repudiates his or her obligations prior to the time for performance, the counter-party may either disregard the repudiation and wait until the time for performance, or he or she may treat the repudiation as an anticipatory breach and seek damages immediately.  Id at 489. "Most significantly, … in the event the plaintiff disregards the repudiation, the statute of limitations does not begin to run until the time set by the contract for performance."  Id.  Applying these principles to the case at hand, North American is not alleged to have breached the contract until 1999 or 2000, when it refused to surrender the amount Bjorklund demanded.  As the causes of action for breach of contract, breach of implied covenant of good faith and fair dealing, and unfair business practices, did not accrue until that time, Bjorklund's claims were not barred by the statutes of limitations.  As a triable issue of fact exists as to whether North American breached the agreement, the USCA reversed and remanded for further proceedings.

11)  AMERICANS WITH DISABILITIES ACT:  Storman v. Sacramento Regional Transit District, 02-16135 (9th Cir. July 3, 2003) (unpublished).  D. W. Nelson and W. Fletcher, Circuit Judges, and Alsup, District Judge.
         Appellant Storman challenged the district court's dismissal for failure to state a claim upon which relief can be granted of his pro se complaint against the Sacramento Regional Transit District ("RT").  He asserted claims under state and federal law for restricted, or trip-by-trip, para-transit eligibility.
         The USCA affirmed in part, reversed in part, and remanded.  Storman has adequately stated a claim for an Americans with Disabilities Act ("ADA") violation.  He alleged that on some occasions, due to his disabilities, he cannot walk more than one block, cannot walk the mile between one of his treating physicians' offices and nearest fixed-route bus stop, and forgoes trips that he used to make when he was deemed eligible for para-transit services.  The ADA specifically requires public transit agencies to provide para-transit services to the disabled.  42 USC Sec. 12132.  The regulations require RT to provide such services to Storman if he has "as specific impairment-related condition which prevents [him] from traveling to a boarding location or from a disembarking location," 49 CFR Sec. 37.123(e)(3), and provides that "a case of 'prevented travel' can be made not only where travel is literally impossible … but also where the difficulties are so substantial that a reasonable person with the impairment-related condition in question would be deterred from making the trip." 49 CFR Pt. 37 App. D.  Storman's allegations were sufficient to state a claim that a reasonable person with his disabilities would be deterred from riding a fixed-route bus for at least some trips.  No more is required to survive a Rule 12(b)(6) motion to dismiss.  The district court also erred in dismissing Storman's claims under the anti-discrimination provisions of the Rehabilitation Act ("RA"), see 29 USC Sec. 794, and California's Unruh Act, Cal. Civ. Code Sec. 51, both of which he specifically raised in his complaint.  The allegations sustaining Storman's ADA claim are legally sufficient to support claims under the RA and the Unruh Act.  The statute that declares that the failure to provide para-transit services constitutes discrimination under the ADA also states that such failure is discrimination under the RA, see 42 USC Sec. 12143(a), and the Unruh Act provides that any vio-lation of the ADA "shall also constitute a violation of this section."  Cal. Civ. Code Sec. 51(f).
         Although the district court did not discuss it, Storman also raised a claim for intentional inflic-tion of emotional distress under California law.  The complaint states that he suffered "emotional distress" due to RT's actions and, "as a result," is "bringing a tort claim against defendants in addition to alleging violations under the above acts."  The USCA found this statement to be sufficient to provide notice that he is making a claim for intentional infliction of emotional distress, and the district court's erred in dismissing his claim along with the others.  If the district court erred in dismissing these claims, if it determines that the complaint is too vague to allow RT to answer it, the appropriate solution is to grant RT's motion for a more definite statement, not to dismiss the cause of action.  See Fed. R. Civ. P. 12(f).  Alternatively, if the district court determines that there are deficiencies in the complaint, it "should grant leave to amend even if no request to amend the pleading [is] made."  Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).  Unless it is absolutely clear that no amendment can cure the defect, a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action.  Lucas v. Dept. of Corr., 66 F.3d 245, 248 (9th Cir. 1995). 
         Finally, the USCA noted that the district court did not abuse its discretion in denying Storman's motion for appointment of counsel under 42 USC Sec. 2000e-5(f)(1), which provides for mandatory appointment of counsel for claims under Title VII of the Civil Rights Act of 1964.  Although Sec. 2000e-5(f)(1) does apply to claims under Title I of the ADA, which relates to employment discrimination, see 42 USC Sec. 12117(a), it does not apply to Storman's claims under Title II of the ADA. Unlike Title I, Title II's remedies are tied not to Title VII of the Civil Rights Act but to Sec. 505 of the RA, 29 USC Sec. 794a.  See 42 USC Sec. 12133.  Section 505, in turn, "incorporates the remedies of Title VI of the Civil Rights Act of 1964.  Unlike Title VII, Title VI has no appointment of counsel provisions.
The USCA thus affirmed the district court's denial of Storman's motion for appointment of counsel, reversed the judgment on the motion to dismiss, and remanded for further proceedings.  Although there was no abuse of discretion, the USCA noted that pro bono representation has been very helpful in other cases.  It thus invited the district court to reconsider whether the appointment of counsel might be appropriate under 28 USC Sec. 1915(e)(1). The district court apparently denied Storman's motion without prejudice, leaving open the option of renewing the motion at a later date.

12)  AMERICANS WITH DISABILITIES ACT:  Cota v. Cyprus Amax Minerals, 02-16658 (9th Cir. July 15, 2003) (unpublished).  Kozinski, Fernandez, and Rymer, Circuit Judges.
           Cota appealed a summary judgment in favor of Cyprus Amax Minerals Company and Phelps Dodge (collectively "Phelps Dodge") on his claim under the Americans with Disabilities Act of 1990.  The USCA affirmed.  Even assuming that Cota had a disability or was perceived as having one, there was no triable issue regarding whether he could perform the essential functions of his job, with or without reasonable accommodation.  Cota disputed Phelps Dodge's description of the "essential functions" of his job, but his argument rested entirely on the opinion of a vocational rehabilitation specialist whose testimony the district court properly excluded.  Cota also suggested that he could be accommodated if coworkers' performed the essential functions that he could not.  But that was neither a reasonable, nor a required accommodation.  Cota thus failed to make out a prima facie case under the ADA.  And, in any event, Phelps Dodge had offered him a reasonable accommodation.  That Cota declined this position did not change the fact that he was accommodated under the ADA. 

13)  IMMIGRATION:  Co v. Ashcroft, 02-72976 (9th Cir. July 24, 2003) (unpublished).  Leavy, Hawkins, and Rawlinson, Circuit Judges.
          Co, a native and citizen of the Philippines, petitioned for review of the BIA's order affirming an order of an Immigration Judge denying his application for asylum and withholding of removal.  The USCA denied the petition.  Co's asylum claim was based on his fear that if he returned home, he might be kidnapped because he is Filipino-Chinese.  Substantial evidence supported the IJ's conclusion that Co's fear, based on the possibility of extortion, was insufficient to show a well-founded fear of future persecution.  In failing to qualify for asylum, Co necessarily failed to satisfy the more stringent standard for establishing eligibility for withholding of removal.  His claim that IRRIRA and NACARA violate equal protection was foreclosed by Hernandez-Mezquita v. Ashcroft, 293 F.3d 1161 (9th Cir. 2002).  A petitioner must show that classification is wholly irrational in order to show an equal protection violation.  The USCA also rejected as unavailing Co's contention that the government was estopped from placing Co in removal proceedings because he applied for asylum prior to April 1, 1997. 

14)  IMMIGRATION / EFFECTIVE ASSISTANCE OF COUNSEL:  Gwaduri v. INS, 02-70629 (9th Cir. July 10, 2003) (unpublished).  Reinhardt, O'Scannlain (dissenting), and Fisher, Circuit Judges.
         Gwaduri is a citizen of Pakistan who, along with his family, has resided in the United States since 1990.  On appeal, he sought review of the BIA's denial of his motion to remand for a rehearing on his adjustment of status and voluntary departure claims on the grounds that he received ineffective assistance of counsel and that the Immigration Judge did not properly consider all of the evidence.  On review, the USCA found that the ineffective assistance received by Gwaduri requires a new hearing before an IJ on the issues of adjustment of status and voluntary departure.  The USCA thus reversed the BIA's decision and remanded the case for further proceedings.
          The USCA found the case to be governed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.  While IIRIRA Sec. 309(c)(4)(E) deprives the court of appeals of jurisdiction to hear most discretionary decisions, it does not deprive it of jurisdiction to hear due process challenges to immigration decisions.  In deportation proceedings, "an alien's right to be represented by counsel is based on the due process guarantees of the Fifth Amendment."  Ineffective assistance of counsel results in a denial of due process when the proceeding is so fundamentally unfair that the alien is prevented from reasonably presenting his case.  Gwaduri maintained that he was denied due process under the Fifth Amendment in his deportation proceeding because his counsel:  (1) made a material error when filling out his application for adjustment of status and voluntary departure, stating that he had not been convicted of a crime when by immigration law standards he had been;  and 2) failed to prepare him to testify regarding his nolo contendere plea for misdemeanor sexual battery and the subsequent expungement of this plea from of this plea from his record, thus leading the IJ to conclude, erroneously, that Gwaduri's testimony as a whole was not credible.  The USCA found that it had jurisdiction to hear Gwaduri's challenge and to determine whether the proceedings, in fact, violated due process.  After briefly noting Gwaduri's failure to follow al of the procedures in Matter of Lozada, 19 I&N Dec. 637, 639, 639 (BIA 1988), the BIA proceeded to reach the merits of Gwaduri's ineffective assistance of counsel claim.  In Lozada, the BIA held that a petitioner alleging ineffective assistance of counsel must:  (1) provide an affidavit describing in detail the agreement with counsel;  (2) inform the deficient counsel of the allegations and grant him an opportunity to respond;  and (3) report whether a complaint of ethical or legal violations has been filed, and if not, why not.  19 I&N Dec. at 639.  Gwaduri may have complied with the first two Lozada requirements, but he did not comply with the third.  "While the requirements of Lozada are generally reasonable, they need not be rigidly enforced where their purpose is fully served by other means."  Castillo-Perez v. INS, 212 F.3d 518, 526 (9th Cir. 2000).  Lozada was intended to ensure both that an "adequate factual basis exists in the record for an ineffectiveness complaint and that the complaint is a legitimate and sub-stantial one." Id.  Where, as here, the "record of the proceedings themselves is more than adequate to serve those functions," there has been "substantial compliance" with the rule, and the prerequisites are superfluous. Id.  Because the administrative record shows that Gwaduri has a substantial claim that he was denied effective assistance of counsel, Lozada's purpose is fully served.  It thus was not necessary for Gwaduri to strictly comply with the Lozada procedural requirements.  In this connection, it is uncontested that Gwaduri's counsel erroneously stated on the immigration form he submitted on Gwaduri's behalf that Gwaduri did not have any convictions, even though the attorney himself had been responsible for expunging the plea of nolo contendere and admitted as much to the IJ.  The record also made it plain that the attorney completely failed to prepare Gwaduri to testify regarding his nolo contendere plea and its subsequent expungement, undoubtedly because of the attorney's own misunderstanding of the law.  Gwaduri thus had not been properly advised as to the effect of the two legal actions and was led to testify incorrectly, and in a confused manner, about their legal status.
         Because the USCA has jurisdiction to determine whether immigration proceedings violate due process and because Gwaduri presented a substantial claim of a due process violation, the USCA could review the claim on the merits. On the merits, the BIA determined that Gwaduri had not been prejudiced by his counsel's performance.  The USCA disagreed.  Prejudice is found "when the performance of counsel is so inadequate that it may have affected the outcome of the proceedings."  Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir. 1999).  Here, Gwaduri established that his counsel's inadequate performance resulted in an adverse credibility finding and the ultimate decision to deny him adjustment of status and voluntary departure.  Thus, the decision must be reversed.
        The attorney filed documents with the INS on Gwaduri's behalf containing information the attorney knew or should have known to be materially inaccurate.  Counsel had a duty to know that a nolo contendere plea results in a conviction and that an expunged conviction is still a conviction for purposes of immigration law.  Competence requires not merely filing the necessary application on time, but also verifying that it contains accurate information.  This is especially true where, as here, the relevant information is in counsel's possession.  In addition, Gwaduri's attorney failed to prepare him even minimally for his hearing before the IJ, thus allowing him to testify under a continuing misapprehension as to the significance of the legal terms at issue and without the ability to explain his prior erroneous answers.  Gwaduri provided the BIA with an affidavit stating that the attorney had advised him that he could properly deny having any criminal convictions and that the attorney had not explained "what an expungement meant in terms of the deportation hearing."  A competent immigration attorney is expected to prepare his client "thoroughly" on the issue of whether or not he has been convicted of a crime.  The USCA found it apparent from the record that the attorney failed to prepare his client on this issue, in part because of his misunderstanding of the law.  As a result, Gwaduri was unable to understand or accurately answer the questions posed relating to the consequences of his plea of nolo contendere or his expungement.  The USCA further found that there to be a substantial likelihood that but for the attorney's errors, the IJ would have found Gwaduri to be a credible witness.  The record indicates that the IJ's early discovery of Gwaduri's misstatements on his 1993 and 1996 adjustment of status applications and the continuing confusion in Gwaduri's testimony so tainted the proceedings that the IJ was unable to give to give Gwaduri a fair hearing and a reasonable opportunity to present his case.  From the record, it appeared that, as a result, the IJ took Gwaduri's disjointed responses to questions on even innocuous subjects as a sign of dishonesty, instead of as a sign of confusion or misunderstand.  In his decision, the IJ stated twice that Gwaduri had "lie[d] about [his conviction] to this Court in 1996 in his latest attempt secure [an adjustment of] status."  The IJ's contention is clearly erroneous.  First, there was no benefit to Gwaduri to try to deceive the IJ about his prior conviction because his attorney had introduced the records of the conviction and confirmed their accuracy through Gwaduri at the outset of the hearing.  Second, Gwaduri's statements at the 1996 hearing never sought to contradict the facts contained in these records;  in context, they clearly refer only to Gwaduri's understanding of the legal consequences.  Thus, if Gwaduri had been properly advised by counsel and understood the legal significance of his nolo plea and expungement, he could have testified accurately and effectively on direct examination about the errors made inadvertently on his applications (including the applications prepared by his attorney), instead of giving inaccurate and contradictory responses to questions on cross-examination from the government and the IJ.  In such case, the IJ might have believed Gwaduri's reasonable assertion that, as a new immigrant with only one offense, he had been under the mistaken impression that his bargain with the government, a plea of nolo contendere with no time served, cleared his record.  As a result, the IJ might have found Gwaduri to be a credible witness.  In denying Gwaduri's motion to remand, the BIA also found that because the IJ's decision was supported by other factors, including that Gwaduri had worked without the permission of the INS and had been convicted of the misdemeanor (expunged from his record), Gwaduri failed to establish prejudice.  However, Gwaduri need not show that but for the violation of due process he would have been granted relief.  He need merely show that the deficiency "may have affected the outcome of the proceedings."  Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir. 1990).  The USCA found it apparent from the IJ's decision that his principal reason for denying Gwaduri relief was his determination that Gwaduri was a dishonest person.  Thus, it is likely that if this credibility determination had gone in Gwaduri's favor, the IJ, in his discretion, would not have denied relief solely on the basis of the other less important factors.
       The USCA thus concluded that if the attorney's performance had not been deficient, the IJ might have afforded Gwaduri the benefit of the doubt that he had been mistaken about whether a plea of nolo contendere was a conviction when responding to previous written inquiries and might well not have concluded that Gwaduri was still being dishonest at the time of the hearing;  in such case, the IJ likely would have made a favorable credibility determination.  As the attorney's inadequate performance "may have affected the outcome of the proceedings, the USCA reversed the BIA's decision and remanded the case with instructions to order a rehearing before an IJ on Gwaduri's adjustment of status and voluntary departure claims. 
       Dissenting, Judge O'Scannlain noted that the majority is correct that the court retains jurisdiction to review due process challenges where the petitioner alleges at least a colorable constitutional violation.  And, ineffective assistance of counsel in a deportation proceeding is a denial of due process under the Fifth Amendment if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.  However, while Gwaduri did not comply with two of the three Lozada requirements, the majority nevertheless held that this is a case in which "the facts are plain on the face of the administrative record," and thus "the requirements of Lozada are not dispositive."  Judge O'Scannlain disagreed.  As he thought the Lozada requirements were not waivable here and that, even if they were, Gwaduri had not established prejudice.