1)  ANTITRUST:  Intl. Healthcare Management v. Hawaii Coalition for Health, 01-17451 (9th Cir. June 6, 2003).  In an action alleging a conspiracy to fix prices and to boycott plaintiffs' health care plan in violation of Sec. 1 of the Sherman Act, 15 USC Sec. 1, and Hawaii law, the absence of any agreement or threat to boycott plaintiffs, or attempt to fix prices, the joint efforts of the defendants to negotiate the terms of the plaintiffs' provider agreement caused no antitrust injury.  Goodwin, Rymer (author), and T.G. Nelson, Circuit Judges.  J. Alioto of San Francisco, CA, for the plaintiffs-appellants;  M.L. Popofsky and J. T. Rosch of  San Francisco, CA, and R. Del Castillo of Honolulu, HI, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

2)  ANTITRUST / TRADE SECRETS:  Bourns, Inc. v. Raychem Corp., 01-56245 (9th Cir. June 5, 2003).  The jury instructions did not allow the jury to find actual misappropriation of confidential information and trade secrets based on inevitable disclosure;  the findings of misappropriation and associated damages were thus affirmed;  the defendant's motion for judgment as a matter of law was granted as plaintiff had no antitrust case;  Judge Pregerson concurred in the majority's decision to affirm the jury's determination that Bourns was liable for interfering with Raychem's employment contracts and misappropriating Raychem's trade secrets, but dissented from the majority's decision to reverse the jury's verdict in favor of Bourns on its anti-trust claim against Raychem concerning its unlawful monopolization of the Polymeric Positive Temperature Coefficient market in violation of Walker Process Equipment v. Food Machinery & Chemical Corp., 382 US 172 (1965), and Sec. 2 of the Sherman Act.  Pregerson (dissenting in part), Noonan (author), and Tashima, Circuit Judges.  C. Lifland of Los Angeles, CA, for the plaintiff;  P. Wald of San Francisco, CA, and A. Gabriel of Los Angeles, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

3)  COPYRIGHTS:  Silvers v. Sony Pictures Entertainment, 01-56069 (9th Cir. June 3, 2003).  An accrued cause of action for copyright infringement may be assigned to a third party, thereby granting the assignee the right to sue for the infringement. Hug, Brunetti (author), and O'Scannlain, Circuit Judges. G. Schiavelli of Los Angeles, CA, for the appellant;  S. Glaser of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

4)  INTERNET LAW:  Batzel v. Smith, 01-56380 (9th Cir. June 24, 2003). An internet service provider or user is immune from liability under Sec. 230(c)(1) of the Communications Decency Act (CDA) when a third person or entity who creates or develops the information in question, furnished it to the provider or user under circumstances in which a reasonable person in the position of the service provider or user would conclude that the information was provided for publication on the Internet or other interactive computer service;  dissenting in part, Judge Gould, thought that the majority had given the phrase "information provided by another" an incorrect and unworkable meaning that extended CDA immunity far beyond what Congress intended, and that under the majority's interpretation of Sec. 230, many persons who intentionally spread vicious falsehood on the internet will be immune from suit.  Canby, Gould (dissenting in part), and Berzon (author), Circuit Judges.  S. Newman of Los Angeles, CA, for the defendants-appellants;  H. Fredman of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

5)  BANKRUPTCY:  In re Harleston, 02-55770 (9th Cir. June 5, 2003).  The California Board of Equalization waived its sovereign immunity by filing a proof of claim in a earlier bankruptcy proceeding;  the debt to the Board was thus discharged.  Pregerson, Tashima, and Clifton (author), Circuit Judges.  H. Levin of Los Angeles, CA, for the appellant;  N. Bernstein of Rancho Cucamonga, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

6) BANKRUPTCY LAW:  In re Summers, 02-16146 (9th Cir. June 20, 2003).  The requirements of California's transmutation statute, Cal. Fam. Code Sec. 852(a), need not be met when real property is transferred from a third party to spouses as joint tenants;  the property herein at issue thus is held in joint tenancy rather than as community property;  the third-party deed specifying the joint tenancy character of the property rebutted the community property presumption and rendered California's transmutation statute inapplicable.  Canby, Kleinfeld, and Rawlinson (author), Circuit Judges.  B. Lynch of Redding, CA, for the appellant;  S. Zlotoff of San Jose, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

 7)  BANKING LAW:  De La Fuente II v. FDIC, 00-71547 (9th Cir. June 18, 2003).  The Board of the Federal Deposit Insurance Corporation correctly concluded that the petitioner "controlled" the recipients of the twelve loans herein at issue and thus that the loans violated Federal Reserve Act Regulation O, which restricts the ability of members banks in the Federal Reserve system to extend credit to insiders;  the Board's factual findings were supported by substantial evidence that the petitioner, a former bank director, violated 12 USC Sec. 1818(e) in facilitating transactions that benefited him while placing the banks assets in danger by substituting what he knew to be inferior collateral.  Browning, Kozinski, and Wardlaw (author), Circuit Judges.  M. Fish of San Diego, CA, for the petitioner;  C. Boles of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

8)  TRUTH IN LENDING ACT:  Meyer v. Ameriquest Mortgage Co., 01-15970 (9th Cir. June 9, 2003).  The statute of limitations ran on a suit alleging violation of the Truth in Lending Act, where an alleged failure to make required disclosures occurred at the time loan documents were signed, and plaintiffs were in possession of all relevant information on that date.  Noonan (author), McKeown, and Rawlinson, Circuit Judges.  J. Pollack of Oakland, CA, for the plaintiffs;  D. Sturgeon-Garcia of San Francisco, CA, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

9)  INSURANCE:  Khatchatrian v. Continental Casualty Co., 02-55916 (9th Cir. June 19, 2003).  Under California insurance law, an "accidental" death must occur from "external" rather than "natural" causes;  an insured's death from a stroke was thus not an "accident" within the meaning of an accidental death and dismemberment insurance policy.  M. Schroeder (author), Thompson, and Graber, Circuit Judges.  C. Feddersen of Glendale, CA, for the plaintiff-appellant;  R. Keehn of Los Angeles, CA, for the defendant-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

10)  INSURANCE:  Employers Insurance of Wausau v. Granite State Insurance Co., 01-57231, (9th Cir. June 04, 2003).  A subrogation action between a primary insurer and an excess insurer was not time-barred, as the statute of limitations in such an action is that which would have applied had the insured brought suit on its own behalf;  California courts have not broadly rejected "stacking" policy limits in the primary insurer context;  dissenting, Judge Thompson agreed with the majority on the statute of limitations issue, but would affirm the district court's judgment on the stacking issue.  Hall (author), Thompson (dissenting), and Berzon, Circuit Judges.  B. Barber of San Francisco, CA, for the appellant;  M. Bonino of San Jose, CA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

11)  ENVIRONMENTAL LAW:  Union Oil Co. v. Terrible Herbst, Inc., 01-16683 (9th Cir. June 9, 2003).  In a contract dispute over responsibility for pollution clean-up beneath a gas station, withholding the assertion of a non-frivolous claim in reliance on an agreement to waive a statute of limitations defense amounted to sufficient consideration under Nevada law;  dissenting, Judge Rawlinson said he would not presume to second-guess the district court judge on a matter of state law that has not been decided by the state's Supreme Court;  he would prefer to certify to the Nevada Supreme Court the question of whether Nevada law recognizes forbearance of a stale claim as adequate consideration.  B. Fletcher, Arnold (author), and Rawlinson (dissenting), Circuit Judges.  A. Seebach of Los Angeles, CA, and R. Jean of Las Vegas, NV, for the plaintiff-appellant;  J.T. Schwartz of Santa Barbara, CA, and S Higgins of Las Vegas, NV, for the defendant-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

12)  ENVIRONMENTAL LAW:  Oxygenated Fuels Assoc., Inc. v. Davis, 01-17078 (9th Cir. June 4, 2003).  Although California's ban on methyl tertiary-butyl ether (MTBE), an oxygenate used to reduce gasoline emissions, is not expressly exempted from preemption by the Clean Air Act, it nonetheless is not preempted because it does not conflict with the goals and purposes of the Act.  Canby, O'Scannlain, and W. Fletcher (author), Circuit Judges.  F. Anderson of Washington, DC, for the appellant;  R. Hildreth of Oakland, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

13)  FISHERY CONSERVATION:  Fishing Co. of Alaska v. USA, 02-35312 (9th Cir. June 24, 2003).  The USCA upheld the district court's summary judgment for the USA, rejecting challenges to regulations establishing the Vessel Incentive Program (VIP), a fishery management plan created by the North Pacific Fishery Management Council as part of its responsibility under the Magnuson-Stevens Fishery Conservation and Management Act;  the USCA also upheld a fine imposed by the National Oceanic and Atmospheric Administration for exceeding the standards for halibut "bycatch" set by the agency under the VIP.  Hug, B Fletcher, and McKeown, Circuit Judges.  Per Curiam.  J. Neeleman and G. Payton of Seattle, WA, for the appellants;  L. Jones of Washington, DC, for the appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

14)  ERISA:  Trustees of the Construction Industry and Laborers Health & Welfare Trust v. Desert Valley Landscape & Maintenance, Inc., 02-15152 (9th Cir. The memorandum disposition in this case, as amended, has been redesignated a published opinion dated June 23, 2003).  Pendent party jurisdiction was constitutional as the state claims were part of the same case or controversy as the federal claim;  the district court's decision to decline supplemental jurisdiction was improper under 28 USC Sec. 1367(c)(3) where it did not determine that the federal claim was unfounded;  the district court did not dismiss the federal claim;  instead it granted a default judgment for the plaintiff;  far from determining that the federal claim was unfounded, the default judgment represents the court's determination that the federal claim was well-founded;  the fact that there was nothing left to litigate on the merits of that claim did not mean the claim was dismissed;  as the federal claim had not been dismissed, the exercise of discretion was not authorized by Sec. 1367(c)(3).  Kozinski, Graber, and Berzon (author), Circuit Judges.  A. Segal of Las Vegas, CA, for the plaintiffs;  T. Parker of Las Vegas, NV. For the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

15)  ERISA:  Shaver v. Operating Engineers Local 428 Pension Trust Fund,  01-16922 (9th Cir. June 18, 2003).  Detailed pension fund financial records sought by the plaintiffs were not "instruments" under 29 USC Sec. 1024(b)(4), and thus not subject to the statute's disclosure requirements;  however, it was premature for the district court to dismiss plaintiffs' breach-of-fiduciary-duty claim for neglecting to keep adequate records;  the plaintiffs sought injunctive relief, and their failure to plead that a loss occurred was not fatal to that claim;  dissenting, Judge Rawlinson thought that in light of ERISA's express explication of trustee disclosure requirements and the corresponding inapplicability of common-law obligations, he could not join the majority's expansion of trustee liability.  B. Fletcher, R. Arnold (author), Rawlinson (dissenting), Circuit Judges.  F. Fanning of Tempe, AZ, for the plaintiffs;  K. Overholt of Phoenix, AZ, for the defendants.(Download the full text of this decision at www.cc9.uscourts.gov/)

16)  ERISA:  Honolulu Joint Apprenticeship & Training Committee of United Association, Local Union No. 675 v. Foster, 01-16596 (9th Cir. June 19, 2003).  A union's action to enforce terms of an agreement with a trainee plumbing apprentice and seeking costs advanced under a scholarship loan agreement, did not constitute "appropriate equitable relief" under ERISA, 29 USC Sec. 1132(a)(3);  the union had trained the defendant 4 ½ years on the condition that he work for a union employer upon completion of his apprenticeship;  instead, the defendant went to work for a non-union employer and failed to repay the $13,183.92 that the union had expended in training him.  M. Schroeder (author), Alarcon, and Fisher, Circuit Judges.  M. Freed of Honolulu, HI, for the defendant;  F. Waki of Honolulu, HI, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  WRONGFUL TERMINATION / DEFAMATION: Rivera v. National Railroad Passenger Corp., 01-16232 (9th Cir. June 10, 2003).  Plaintiff's claim for wrongful termination in violation of public policy failed where he offered no evidence that he reported illegal activity to railroad management;  however, as the railroad may be liable under California law for its employees' allegedly defamatory statements, the plaintiff should be permitted to maintain his defamation claim as a state law cause of action against the individual defendant.  Baldock, Kleinfeld, and Rawlinson, (author), Circuit Judges.  S. Esner of Las Angeles, CA, for the plaintiff-appellant;  K. Banke of Oakland, CA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

18)  EMPLOYMENT DISCRIMINATION:  Cherosky v. Henderson, 01-35254 (9th Cir. June 5, 2003). National Railway Passenger Corp. v. Morgan, 536 U.S. 101 (2002), which limit’s the continuing violations doctrine in the context of employment discrimination action, precludes recovery from employment decisions occurring outside of the limitations period, but made pursuant to an allegedly discriminatory policy that remained in effect during the limitations period.  Kleinfeld and McKeown (author), Circuit Judges, and Shapiro, District Judge.  D. Bahr of Eugene, OR, for the appellants;  AUSA J. Sutherland of Eugene, OR, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

19)  DISABILITY DISCRIMINATION:  Lopez v. Johnson, 02-35334 (9th Cir. June 23, 2003).  The USCA affirmed the district court's summary judgment in favor of the Secretary of Navy in a disability discrimination action for compensatory damages under Sec. 501 of the Rehabilitation Act of 1973;  the appellant unsuccessfully challenged the district court's conclusion that there was no evidence that he was a federal employee within the meaning of Sec. 501 at the time his employer provided computer services as a contractor for the Navy and the Navy denied him a handicap parking permit.  Lay, Goodwin, and Gould, Circuit Judges.  Per Curiam.  J.B. Holcolm of Bainbridge Island, WA, for the plaintiff-appellants;  AUSA M. Mittett of Seattle, WA, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

20)  PROPERTY LAW / TAKINGS:  Carpinteria Valley Farms v. County of Santa Barbara, 01-57218 (9th Cir. June 25, 2003).  Claims of retaliation, denial of free speech and free association, denial of equal protection and due process related to the County's imposition of a number of requirements on a plan to develop a private polo field and a residential building were not supported by "as applied" takings within the meaning of Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 US 172 (1985);  rather, they are independent 42 USC Sec. 1983 claims ripe for review under Harris v. County of Riverside, 904 F.2d 497 (9th Cir. 1990).  Hall, Thompson (author), and Berzon, Circuit Judges.  A.B. Cappello of Santa Barbara, CA, for the plaintiffs-appellants;  D. Pettit of Los Angeles, CA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  PROPERTY / GOVERNMENT LAW:  Feature Reality, Inc. v. City of Spokane, 01-36137 (9th Cir. June 11, 2003).  A settlement agreement entered into between a city council and a property developer violated Washington's Open Public Meetings Act;  equitable estoppel does not lie where the Act has been violated.  Beezer and O'Scannlain (author), Circuit Judges, Bolton, District Judge.  P. Talmadge of Tukwila, WA, for the appellant;  D. Swartling of Seattle, WA, for the appellee;  S. Eugster of Spokane, WA, for the intervenor. (Download the full text of this decision at www.cc9.uscourts.gov/)

22)  SOVEREIGN IMMUNITY:  Norita v. CNMI, 02-16292 (9th Cir. June 5, 2003).  In this suit brought by employees seeking to collect overtime from their government employer, an apparent conflict between the First and Ninth Circuits regarding the lack of an Eleventh Amendment sovereign immunity defense for the Mariana Islands, per Fleming v. Dep't of Public Safety, 837 F.2d 401, 403 (9th Cir. 1988), if Puerto Rico and the CNMI are similarly situated commonwealths, is not reviewable by a three-judge appellate panel;  nor did the USCA find any Ninth Circuit authority questioning Fleming's further holding that CNMI, at least by implication, waived any common law sovereign immunity when it ratified the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America.  Schroeder, Goodwin (author), and Tashima, Circuit Judges.  J. Rayphand of Saipan, MP, for the plaintiffs-appellants;  AAG K. Klaver of Saipan, MI, for the defendant-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

23)  DISCOVERY:  Foltz v. State Farm Mutual Automobile Insurance Co., 00-35187 (9th Cir. June 18, 2003).  The district court abused its discretion in refusing to allow access to discovery materials from collateral litigation;  it abused its discretion in sealing discovery materials in the absence of a showing of good cause;  it also abused its discretion in maintaining under seal the filed documents to which no compelling reason for secrecy applied.  B. Fletcher (author), O'Scannlain, and Berzon, Circuit Judges.  D. Gatti of Salem, OR, for the plaintiff;  L. Walner of Chicago, IL, and K. Clarke of Portland, OR, for the intervenors;  S. Jones of Portland, OR, for the defendant-appellee State Farm. (Download the full text of this decision at www.cc9.uscourts.gov/)

24)  TORTS / SOVEREIGN IMMUNITY:  Cervantes v. USA, 01-56929 (9th Cir. June 2, 2003).  Contrary to the government's assertion, the "detention of goods" exception to the sovereign immunity waiver under the Federal Tort Claims Act does not apply to its negligent failure to remove 119 pounds of marijuana hidden in a car sold to plaintiff, who was later incarcerated for transporting those very drugs;  while the plaintiff could not recover damages for false imprisonment or false arrest because the customs agents had reasonable cause to believe his arrest was lawful, the government's defense to plaintiff's negligence claim was patently without merit.  Browning, Kozinski, and Wardlaw (author), Circuit Judges.  S. Estey of San Diego, CA, for the appellant;  AUSA T. Stahl of San Diego, CA, for the ap-pellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

25)  ELECTION LAW:  Van Susteren v. Jones, 01-57210 (9th Cir. June 6, 2003).  Plaintiff, who sought to be listed as a Libertarian Party candidate on the March 2002 primary election for California's 53rd District seat in the U.S. House of Representatives, did not meet the "disaffiliation" requirement of California Elections Code Sec. 8001 since he had been registered as a Republican within the preceding twelve months;  this case is not materially distinguishable from Storer v. Brown, 415 U.S. 724 (1974).  Schroeder (author) and Graber, Circuit Judges, and Singleton, District Judges.  A. Van Susteren pro se;  DAG S. Oie of Sacramento, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

26)  ROOKER-FELDMAN DOCTRINE:  Bianchi v. Rylaarsdam, 00-55585 (9th Cir. June 27, 2003).  In the guise of a civil rights suit, the appellant unsuccessfully sought to obtain in federal court the relief denied him in state court—an injunction vacating a decision by the California Court of Appeal and assigning his case to a different division or district due to alleged judicial bias;  after losing twice in state court, the appellant filed a federal civil rights suit, which, in this case, is the functional equivalent of an appeal of the state court decision;  for the USCA to entertain this suit and grant relief would necessarily require it to review and invalidate the state court decision, a result that is inconsistent with the Rooker-Feldman doctrine; concurring only in the result but not also the majority's analysis, Judge Fletcher thought that the case is barred because the appellant seeks to have the federal district court overturn the California Supreme Court's decision on his federal due process claim;  she did not agree that Rooker-Feldman would bar his claims had he come directly to federal court.  B. Fletcher (concurring), D.W. Nelson, and McKeown (author), Circuit Judges.  S. Cantor of Las Vegas, CA, for the appellant;  AAG M. Mendeiros of Sacramento, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

27)  FREEDOM OF INFORMATION ACT:  TPS, Inc. v. U.S. Department of Defense, 00-15144 (9th Cir. June 3, 2003).  The principle of "business as usual" in the context of records requested in a particular electronic format under the Freedom of Information Act is not restricted to response practices under the Act but encompasses the normal business of the agency;  because material issues of fact exist regarding whether the Department of Defense regularly generates documents in the format at issue here, the USCA reversed the district court's grant of summary judgment in favor of the government.  Noonan, McKeown (author), and Rawlinson, Circuit Judges.  G. Vogelei of Novato, CA, for the plaintiff-appellant;  AUSA A. Simmons for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

28)  ADMINISTRATIVE LAW / ABSTENTION:  Baffert v. California Horse Racing Board, 02-55858 (9th Cir. June 6, 2003).  The Younger abstention doctrine applied to a 42 USC Sec. 1983 action seeking the appeal of defendant agency's suspension of plaintiff's license to race horses in California;  the district court should have declined jurisdiction.  Schroeder and Graber (author), Circuit Judges, and Singleton, District Judge.  DAG J. Mosley of Los Angeles, CA, for the defendants;  N. Papiano of Los Angeles, CA, for the plain-tiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

29)  ADMINISTRATIVE LAW:  Hemp Industries Assoc. v. DEA, 01-71662 (9th Cir. June 30, 2003).  As a new DEA rule banning the sale of consumable products containing hemp oil, cake, or seed, would force plaintiffs to risk sanction or forego the their prior legal activity of selling products containing trace amounts of naturally occurring THC, the new rule is a legislative rule that should have been subject to notice and comment procedures;  dissenting, Judge Kozinski said he was not persuaded that this case presents a live controversy as a new regulation has since "eradicated the effects" of the new rule and mooted the controversy surrounding it.  Schroeder, B. Fletcher (author), and Kozinski (dissenting), Circuit Judges.  P. Goggin of San Francisco, CA, for the petitioners;  D. Dormont of Alexandria, VA, for the respondents.  (Download the full text of this decision at www.cc9.uscourts.gov/)

30)  SOCIAL SECURITY:  Benton v. Barnhart, 02-55941 (9th Cir. June 9, 2003).  On an issue of first impression, the USCA concluded that in finding that a Social Security Disability Insurance claimant was not mentally disabled, the Administrative Law Judge misapplied 20 CFR Sec. 404.1502 under which the definition of "treating source" is addressed; emerging patters of medical treatment that make a psychiatrist responsible for prescribing and monitoring medication, but leave most of the direct patient contact to others within a treatment team, allow the psychiatrist to be a "treating source" either on his own behalf or on that of the treatment team.  B. Fletcher (author) and Silverman, Circuit Judges, and Martone, District Judge.  T. Roche of San Diego, CA, for the plaintiffs;  J. Cusker of San Francisco, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

31)  SOCIAL SECURITY: Celaya v. Halter, 01-16964 (9th Cir. June 17, 2003).  In denying an application for supplemental security and disability benefits, an administrative law judge failed to meet his obligation to develop the record, especially as to claimant's obesity;  remand for such development was thus necessary;  dissenting, Judge Rawlinson thought the majority had given the claimant a disability she never even claimed.  B. Fletcher (author), Arnold, and Rawlinson (dissenting), Circuit Judges.  J. Miller of Oakland, CA, for the appellants;  J. Forslund of San Francisco, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

32)  PUBLIC UTILITIES:  Union Pacific Railroad Co. v. California Public Utility Commission, 01-15141 (9th Cir. June 17, 2003).  California's regulations governing railroad track strength, adopted in response to train derailments within the state, were preempted by the Federal Railroad Safety Act;  California's regulations governing railroads' internal track-train dynamics rules were not preempted.  Canby, O'Scannlain (author) and W. Fletcher, Circuit Judges.  M. Mahoney of Washington, DC, for the plaintiffs-appellants;  P. Berdge of San Francisco, CA, for the defendants-appellees;  L. Mann of Washington, DC, for the intervenors.  ((Download the full text of this decision at www.cc9.uscourts.gov/)

33)  PUBLIC UTILITIES / LOBBYING:  Single Moms, Inc. v. Montana Power Co., 02-35361 (9th Cir. June 10, 2003).  A power company's efforts to influence lawmakers to deregulate state energy markets were not "state action" implicating the plaintiffs' federal or state constitutional rights.  Lay, Ferguson, and Gould (author), Circuit Judges.  R. Kelleher of Butte, MT, for the plaintiffs-appellants;  G.S. Brown for Montana Power Company;  C. Tweeten of Helena, MT, for the Montana legislators;  R. Murdo of Helena, MT, for PPL Montana. (Download the full text of this decision at www.cc9.uscourts.gov/)

34)  NATIVE AMERICAN LAW / GAMING:  In re Indian Gaming Related Cases, 01-16283 (9th Cir. June 11, 2003).  The state of California acted in good faith, procedurally and substantively, in negotiating a Tribal-State compact with the Coyote Valley Band of Pomo Indians under the Indian Gaming Regulatory Act.  Bright, Hawkins, and W. Fletcher (author), Circuit Judges.  E. Roy of San Francisco, CA, for the appellant;  S. Drake of Sacramento, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

35)  NATIVE AMERICAN LAW / ADOPTIONS:  Navajo Nation v. Norris, 01-35039 (9th Cir. June 9, 2003).  The district court properly determined that a state court had concurrent jurisdiction over adoption proceedings under the Indian Child Welfare Act by virtue of the defendants' off-reservation domicile.  Reavley, Tashima, and Rawlinson (author), Circuit Judges.  C. Dorsay of Portland, OR, for the Navajo Nation; M. Wynne of Okanogan, WA, for the intervenor;  T. Rosencrans of Seattle, WA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

36)  NATIVE AMERICAN LAW / PROPERTY:  USA v. City of Tacoma, 00-35070 (9th Cir. June 4, 2003).  Condemnation proceedings in 1921 were without effect and conveyed no interest to Tacoma, where a state superior court lacked jurisdiction to condemn Indian allotments in which the U.S. continued to hold a valid property interest;  dissenting, Judge Ferguson thought that the case presented exactly the "rare case" which USA v. Estate of Donnelly, 397 US 286 (1970), recognized might be exempted from the full retroactive effect of a decision construing a statute;  he would hold that in cases such as this, in which the decision to be retroactively applied announced a "new" interpretation of the statute, and in which both compelling equitable considerations and principles of finality weigh against retroactive application of the decision, the general rule (that the Court of Appeals should regard a judicial interpretation of a statute as an "authoritative statement of what the statue meant before as well as after the decision in the case giving rise to that construction) must give way to "familiar consideration of fair notice, reasonable reliance, and settled expectations."  Ferguson (dissenting), Kleinfeld, and Gould (author), Circuit Judges.  K. Kieffer of Tacoma, WA, for the appellant;  J. Stahr of Washington, DC, for the appel-lee. (Download the full text of this decision at www.cc9.uscourts.gov/)

37)  NATIVE AMERICAN LAW / PUBLIC UTILITIES: Skokomish Indian Tribe v. USA, 01-35028 (9th Cir. June 3, 2003).  The district court correctly refused to entertain the Skokomish Indian Tribe's claims of harm due to a hydroelectric project owned by a city, where the challenge was an impermissible collateral attack on a FERC licensing order, but the court inappropriately granted summary judgment where it lacked jurisdiction to hear those claims;  dissenting in part, Judge Tashima concurred in all of the majority's opinion except for Part C.1 of the "Discussion" section which concludes that the City of Tacoma and Tacoma Public Utility (together "Tacoma") constructed and operated the Cushman Project in accordance with the "minor part" license issued in 1924, and that the Tribe's claims based on the construction and operation of the Project constituted a collateral attack on the license, even though the only purpose of the license was to grant Tacoma the right to clear 8.8 acres of federal land;  Judge Tashima thought that this conclusion was in conflict with established case law;  he would permit the Tribe to sue for damages for the alleged trespass caused by the construction and continued operation of the Project.  Wallace, Trott (author), and Tashima (dissenting in part), Circuit Judges.  M. Morisset of Seattle, WA, for the petitioners-appellants;  AUSA P. Lynch of Tacoma, WA, and J.R. Creatura of Tacoma, WA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

38)  CIVIL RIGHTS:  Doe v. Hawaii Dept. of Education, 01-17566 (9th Cir. June 30, 2003).  In this 42 USC Sec. 1983 action against an elementary school vice principal who taped a second grade student's head to a tree for disciplinary purposes, the district court correctly denied the defendant's motion for summary judgment on the basis of qualified immunity;  the plaintiff is entitled to proceed under the Fourth Amendment in light of Graham v. Connor, 490 US 386, 395 (1989), which instructs that Sec. 1983 claims should be analyzed under more specific constitutional provisions, when applicable, rather than generalized notions of due process.  Schroeder (author), Alarcon, and Fisher, Circuit Judges.  G. Hynds of Honolulu, HI, for the defendant;  S. Levin of Honolulu, HI, for the plaintiffs.  (Download the full text of this decision at www.cc9.uscourts.gov/)

39)  CIVIL RIGHTS / EXCESSIVE FORCE / QUALIFIED IMMUNITY:  Mena v. Simi Valley, 01-56673 (9th Cir. June 23, 2003).  Police officers were not entitled to qualified immunity on a 42 USC Sec. 1983 claim alleging excessive force and unlawful restraint where the officers allegedly used excessive force and restrained the plaintiff for an unreasonable period of time during a search of her home;  the plaintiff was not a crime suspect, the manner of her detention was objectively unreasonable, and her rights were clearly established;  the district court did not abuse its discretion with respect to its jury instructions, voir dire, or in its cross-examination of witnesses;  substantial record evidence supported the award of punitive damages.  Pregerson (author) and Reinhardt, Circuit Judges, and Archer, District Judge.  K. Peabody of Santa Barbara, CA, for the defendants;  P. Hoffman of Venice, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

40)  CIVIL RIGHTS / ARRESTS:  Alford v. Haner, 01-35141 (9th Cir. June 23, 2003).  Police officers were not entitled to qualified immunity from the plaintiff's 42 USC Sec. 1983 claim that his arrest, incarceration and prosecution violated his Fourth Amendment rights, where no reasonable officer could have concluded that arresting the plaintiff for tape recording a traffic stop was permissible;  taping police officers during the performance of their public duties is not illegal under the Washington Privacy Act;  dissenting, Judge Gould would upheld the jury's verdict as he thought the jury had plenty of evidence to conclude that the officers acted reasonably, as defined by the jury instructions to which the plaintiff had not objected. Browning (author), B. Fletcher, and Gould (dissenting), Circuit Judges.  R.S. Phillips of Poulsbo, WA, for the plaintiff;  C. Gregoire of Olympia, WA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

41)  IMMIGRATION:  USA v. Mendoza-Reyes, 02-30208 (9th Cir. June 17, 2003).  The district court did not plainly err in stating during voir dire that the case involved "a person who came back into the country after having been deported" and did not err in classifying the State of Washington offense of First Degree Unlawful Possession of a Firearm, Rev. C. Wash. Sec. 9.41.040(1)(a), as an aggravated felony under 8 USC Sec. 1101(a)(43);  finally, defendant's counsel was not ineffective for failing to object to the district court's classification of Sec. 9.41.040(1)(a) as an aggravated felony.  O'Scannlain and Gould, Circuit Judges, and Bolton, District Judge.  Per Curiam.  H. Spall of Ellensburg, WA, for the defendant;  AUSA J. McDevitt of Yakima, WA, for the plaintiff.(Download the full text of this decision at www.cc9.uscourts.gov/)

42) IMMIGRATION:  Busquets-Ivars v. Ashcroft, 02-70643 (9th Cir. June 24, 2003).  A notice of scheduled removal hearings which does not include the proper ZIP code on the mail address did not satisfy 8 USC Sec. 1229(a)(1);  an invocation of presumption of notice requires the INS to prove that the notice 1) was properly addressed; 2) had sufficient postage; and 3) was properly deposited in the mails;  dissenting, Judge Fernandez thought that absence of or error in a ZIP code did not mean that the address was insufficient for delivery, adding that the petitioner never asserted that the notice, which did bear the street address he gave to the INS, failed to arrive at its destination.  Beezer (author), Fernandez (dissenting), and Paez, Circuit Judges.  G. Boult of Los Angeles, CA, for the petitioners;  J. Dowd of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

43)  IMMIGRATION:  Zheng v. Ashcroft, 02-70193 (9th Cir. June 18, 2003).  The BIA's interpretation of "acquiescence" under the United Nations Convention Against Torture in this case, to require that government officials "are willfully accepting of" torture to their citizens by a third party, is contrary to clearly expressed congressional intent to require only "awareness," not actual knowledge or willful acceptance.  Browning, Pregerson (author), and Reinhardt, Circuit Judges.  J. Li of Honolulu, HI, for the petitioner;  N. Schwarz of Washington, DC, for the respondents.(Download the full text of this decision at www.cc9.uscourts.gov/)

44)  IMMIGRATION: Alvarez-Santos v. INS, 01-71478 (9th Cir. June 20, 2003).  8 USC Sec. 1252(a)(2)(C) strips the USCA of jurisdiction to review orders of removal predicated on a finding that the alien is removable and ordered removed due to a covered criminal act, not also of jurisdiction to review orders of removal not so predicated.  Noonan, Berzon (author), and Tallman, Circuit Judges.  F. Sprouls of San Francisco, CA, for the petitioner;  P. Shen of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

45)  IMMIGRATION: Toia v. Fasano, 02-55436 (9th Cir. June 30, 2003).  The provisions of the Immigration Act of 1990, barring aggravated felons from applying for Immigration and Nationality Act Sec. 212(c) relief, do not apply to aliens who pleaded guilty prior to the enactment of the Immigration Act of 1990.  Beezer (author), Kozinski, and Wardlaw, Circuit Judges.  S. Nelson of San Diego, CA, for the petitioner;  A. Mai of Washington, DC, for the respondents.  (Download the full text of this decision at www.cc9.uscourts.gov/)

46)  IMMIGRATION:  Vera-Villegas v. INS, 01-70398 (9th Cir. June 4, 2003).  While documentary evidence showing that an alien was residing in the U.S. during a particular period may be desirable in establishing date of entry, the time element of an alien's residency, like all other elements in immigration hearings, may be shown by credible direct testimony or written declarations;  neither witnesses testimony nor any other evidence may be rejected on credibility grounds without a specific finding accompanied by a clear and direct explanation of persuasive reasons for such rejection.  Reinhardt (author), W. Fletcher, and Gould, Circuit Judges.  C. Edward of Seattle, WA, for the petitioner;  T. Scadron of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

47)  IMMIGRATION: Perdomo-Padilla v. Ashcroft, 01-71454 (9th Cir. June 23, 2003).  The filing of an application for naturalization does not change an applicant's status from "alien" to "national" as, under the Immigration and Nationality Act, a person may become a U.S. national only through birth or naturalization.  Schroeder, Thompson, and Graber (author), Circuit Judges.  K. Davis of Los Angeles, CA, for the petitioner;  M. Candaux of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

48)  IMMIGRATION:  USA v. Pina-Jaime, 01-50063 (9th Cir. June 6, 2003).  Defendant's conviction by guilty plea for being a deported alien found within the U.S. was affirmed, as a previously deported alien who is paroled into the U.S. for a specified term of which he is aware incurs criminal liability under 8 USC Sec. 1326(a)(2) if he voluntarily chooses to remain in the U.S. after his term of parole has terminated.  Pregerson, Thompson (author), and Wardlaw, Circuit Judges.  DFPD F. Dordi of Los Angeles, CA, for the defendant;  AUSA J. Corbet of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

49)  IMMIGRATION:  Nagoulko v. Ashcroft, 02-70467 (9th Cir. June 24, 2003).  Although a Ukrainian who overstayed her visitor's visa demonstrated a subjective fear of persecution if returned to the Ukraine, she could not show that her fear was objectively reasonable; because she could not show that she suffered from past persecution by Communist sympathizers due to her Christian faith, and could not show good reason for future persecution, she was not eligible for asylum;  her petition for review of the Immigrations Judge's dismissal of her appeal for asylum and withholding of deportation was thus denied.  Lay, Goodwin, and Gould (author), Circuit Judges.  D. Smith of Seattle, WA, for the petitioner;  R. McCallum of Washington, DC, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

50)  IMMIGRATION:  Garcia-Lopez v. Ashcroft, 02-70200 (9th Cir. June 26, 2003).  A guilty plea conviction pursuant to a California "wobbler" statute, under which the offense may be treated as either a misdemeanor or a felony, did not result in a conviction of a crime for which the maximum penalty exceeds imprisonment for one year;  the state court's declaration that the petitioner's offense was a misdemeanor is binding on his subsequent immigration proceedings;  the BIA thus erred when it determined that he was ineligible for suspension of deportation under the Immigration and Nationality Act's "petty offense" exception.  Lay, Ferguson (author), and Gould, Circuit Judges.  M. Adams of Granger, WA, for the petitioner;  K. Larson of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

51)  IMMIGRATION / CRIMINAL LAW:  Zhang v. Dept. of Labor & Immigration, 02-15559 (9th Cir. June 12, 2003).  The district court failed to give proper preclusive effect to the Commonwealth of the Northern Mariana Islands' Supreme Court's decision that CNMI claims were barred by the statute of limitations; the Supreme Court so ruled because the CNMI limitations period had expired and the plaintiff had not commenced her action in a CNMI court within the thirty-day window 28 USC Sec. 1367(d) permits for state court filing after a federal court dismissal.  Schroeder, Goodwin, and Tashima, Circuit Judges. Per Curiam.  J. Hill of Saipan, MP, for the plaintiff;  K. Klaver of Saipan, MP, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

52)  IMMIGRATION  / SENTENCING:  USA v. Bonilla-Montenegro, 02-50141 (9th Cir. June 9, 2003).  A typographical error in a Judgment and Conviction did not render void the defendant's sentence for attempted reentry after deportation and false claim to U.S. citizenship;  the government did not fail to prove by clear and convincing evidence that the defendant committed an aggravated felony;  the district court appropriately enhanced the defendant's sentence because the offense of voluntary manslaughter under California's penal code is a "crime of violence" for purposes of U.S.S.G. Sec. 2L1.2.  Hall, Kozinski, and Rawlinson (author), Circuit Judges.  DFPD M. Dersey of San Diego, CA, for the appellant;  AUSA D. Willett of San Diego, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

53)  IMMIGRATION:  USA v. Sanchez-Sanchez, 02-10005 (9th Cir. June 26, 2003).  On an appeal from a conviction for illegal reentry after deportation, the USCA directed the district court to review the record again and resolve discrepancies with regard to an Arizona state conviction for shoplifting and then apply Corona-Sanchez v. INS, 291 F.3d 1201 (9th Cir. 2002) (en banc) to determine whether that conviction is an aggravated felony.  Brunetti (author) and Tashima, Circuit Judges, and Ezra, District Judge.  M. Hamilton of Phoenix, AZ, for the appellant;  AUSA T. Holtzen of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

54)  ARRESTS & ABDUCTIONS ABROAD:  Alvarez-Machain v. USA, 99-56762 (9th Cir. June 3, 2003).  The DEA lacked the authority to arrest and detain in Mexico, and then forcibly bring to the U.S., a Mexican citizen thought involved in the kidnapping and murder of an American DEA agent in Mexico;  that Mexican citizen may now pursue civil remedies under U.S. law for his abduction;  concurring, Judge Fisher, joined by Judges Schroeder, Goodwin, Thomas, and Paez, wrote separately to articulate another ground upon which he based his conclusion that Alvarez's arrest and detention are arbitrary because they were conducted without lawful authority;  dissenting, Judge O'Scannlain, joined by Judges Rymer, Kleinfeld, and Tallman, noted that the country is not in a global war on terrorism, a mission that our political branches are deemed necessary to conduct throughout the world, sometimes with tepid or even non-existent cooperation from foreign nations; with this context in mind, the majority now commands that a foreign-national criminal who was apprehended abroad pursuant to a legally valid indictment is entitled to sue our government for money damages; in so doing, Judge O'Scannlain thought the majority left the door open for the objects of our international war on terrorism to do the same;  dissenting, Judge Gould thought that the case presents a nonjusticiable political question requiring scrutiny of an executive branch foreign policy decision.  Schroeder, Goodwin, O'Scannlain (dissenting), Rymer, Kleinfeld, Thomas, McKeown (author), Fisher (concurring), Gould (dissenting), Paez, and Tallman, Circuit Judges.  P. Hoffman of Los Angeles, CA, for Alvarez-Machain; C. Phillips and R. Loeb of Washington, DC, and R. Loeb the appellants.(Download the full text of this decision at www.cc9.uscourts.gov/)

55)  SEARCH & SEIZURE:  USA v. Davis, 01-10739 (9th Cir. June 11, 2003).  An houseguest had a legitimate expectation that contents of his gym bag, stored under a bed would remain private, and one of the two lessors of the property had no authority to consent to the bag's search in which was found a shotgun;  statements made following that search should have been suppressed;  dissenting in part, Judge Kleinfeld, like the majority, rejected the government's argument that the defendant lacked standing under Rakas v. Illinois, 439 US 128 (1978), to contest the search of his bag; as a houseguest he had standing to assert his own legitimate expectation of privacy in his hostesses' home;  however, Judge Kleinfeld dissented from the majority's conclusion, as he thought it improperly extends USA v. Fultz, 146 F.3d 1102 (9th Cir. 1998); the majority, he thought, erred partly in its reading of the record, and partly in its understanding of the law on closed container searches.  Kozinski and Kleinfeld (dissenting in part), Circuit Judges, and Karlton, District Judge.  AFPD M. Powell of Reno, NV, for the defendant;  AUSA R. Rachow of Reno, NV, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

56)  SEARCH & SEIZURE:  USA v. Wong, 02-10070 (9th Cir. June 26, 2003).  The USCA upheld the denial of a motion to suppress evidence related to child pornography where police discovered that evidence when they executed search warrants at defendant's home and on his computers in connection with the disappearance and murder of his live-in girlfriend.  Brunetti (author) and Tashima, Circuit Judges, and Ezra, District Judge.  A. Wachtel of San Francisco, CA, for the appellant;  AUSA A. Rosen of San Jose, CA, for the appel-lees. (Download the full text of this decision at www.cc9.uscourts.gov/)

57)  JUVENILE LAW:  USA v. Ceja-Prado, 01-30443 (9th Cir. June 25, 2003).  Where the defendant may have been a juvenile at the time of his crime, there may be no federal jurisdiction over the case pursuant to the Federal Juvenile Delinquency Act, 18 USC Sec. 5031; the Act provides that federal courts have no jurisdiction over certain prosecutions for acts of juvenile delinquency unless the cases have been certified for prosecution by the Attorney General or his specified representatives, and no such certifications have been lodged in this case;  as a federal court has a continuing obligation to ensure that it possesses subject-matter jurisdiction, the USCA remanded for an evidentiary hearing on the jurisdictional facts put in question by the defendant's newly presented age evidence.  Reinhardt (author), W. Fletcher, and Gould, Circuit Judges.  W. Broberg of Seattle, WA, for the defendant;  AUSA H. Brunner of Tacoma, WA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

58)  DRUG LAWS  USA v. Moreno-Morillo, 01-50293 (9th Cir. June 25, 2003).  The USCA rejected Fifth and Sixth Amendment challenges to the constitutionality of the Maritime Drug Law Enforcement Act in an appeal arising from the boarding by the Coast Guard of a foreign vessel in international waters off Mexico and the arrest and conviction of Colombian nationals on board.  Hug, Brunetti, and O'Scannlain (author), Circuit Judges.  M. Windsor of San Diego, CA, for the appellants;  AUSA K. Moore of San Diego, CA, appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

59)  GUILTY PLEAS:  USA v. Villalobos, 01-30066 (9th Cir. June 27, 2003).  Defendant's guilty plea was not "knowing, intelligent or voluntary" as he was not informed that drug quantity was an element of his offense to be proven beyond a reasonable doubt;  dissenting, Judge Gould thought that USA v. Ruiz, 536 US 622 (2002), undermined the majority's precedent in USA v. Minore, 292 F.3d 1109 (9th Cir. 2002).  Browning (author), B. Fletcher, and Gould (dissenting), Circuit Judges.  S. Juarez of Espanola, NM, for the defendant-appellant;  AUSA J. McKay of Seattle, WA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

60)  CRIMINAL LAW:  USA v. Velte, 01-50669 (9th Cir. June 5, 2003).  An individual who, as determined by a jury, purposefully set fire to a national forest, was not entitled to acquittal of the offense of setting fire to federal land "without authority" in violation of 18 USC Sec. 1855;  a rational trier of fact could find beyond a reasonable doubt that the defendant acted "without authority" in intentionally setting the fire.  Hug, Brunetti, and O'Scannlain (author), Circuit Judges.  AUSA S. Miller of San Diego, CA, for the plaintiff;  V. Brunkow of San Diego, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

61)  JURY IMPARTIALITY:  USA v. Brande, 01-50537 (9th Cir. June 2, 2003).  The district court was instructed to conduct an evidentiary hearing to determine whether defendants' jury was impartial, and the effect on defendants' substantial rights, arising from an improper contact between a juror and a court employee.  Browning, Pregerson, and Reinhardt (author), Circuit Judges.  S. Murthy of Seal Beach, CA, and C. Spiga of Sherman Oaks, CA, for the defendants; AUSA M. Raphael of Los Angeles, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

62)  DISCLOSURE / ENTRAPMENT:  USA v. Gurolla, 99-50657 (9th Cir. June 23, 2003).  Defendant's sworn declarations presented to the court ex parte, under seal, and unchallenged by the government, are protected from disclosure on appeal;  the district court erred in refusing to allow a money laundering defendant to present an entrapment defense.  Browning, Pregerson, and Reinhardt (author), Circuit Judges.  C. Pereyra-Suarez of Los Angeles, CA, G. Ivens of Glendale, CA, and P. Trevino of San Francisco, CA, for the defendants;  AUSA J. Shemitz of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

63)  CRIMINAL LAW:  USA v. Lamont, 00-30220 (9th Cir. June 9, 2003).  Under the general federal arson statute, 18 USC Sec. 844(i), setting fire to a church does not ordinarily constitute a federal offense.  Reinhardt (author), W. Fletcher, and Gould, Circuit Judges.  T. Ryan of Spokane, WA, for the defendant;  AUSA S. Lister of Spokane, WA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

64)  CRIMINAL LAW:  USA v. Montalvo, 01-17046 (9th Cir. June 9, 2003).  The rule announced in Richardson v. USA, 526 US 813 (1999), is a substantive rule of criminal law and retroactively applicable to convictions that became final by the time of the Richardson decision;  Teague v. Lane, 489 US 288 (1989), did not bar the defendant from raising a Richardson claim in his Sec. 2255 habeas petition;  concurring, Judge Kozinski thought the defendant's conviction should be affirmed on different grounds:  he did not believe that Richardson established a new substantive rule, but rather a rule of criminal procedure and thus Teague-barred as to cases that became final before Richardson was decided.   Kozinski (concurring) and Kleinfeld, Circuit Judges, and Reed, District Judge.  AFPD D. Porter of Sacramento, CA, for the defendant;  AUSA T. Flynn of Sacramento, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

65)  IMPORTATION OF ILLEGAL DRUGS:  USA v. Cabaccang, 98-10159 (9th Cir. June 6, 2003).  The transport of drugs on a nonstop flight from California to Guam, does not constitute importation within the meaning of 21 USC Sec. 952(a), even though the flight travels through international airspace;  concurring in the result, Judge Schroeder noted that the transportation of illicit drugs from the continental U.S. to a U.S. territory has its own customs authority in 21 USC Sec. 952(a), a statute that was not violated;  dissenting, Judge Kozinski, joined by O'Scannlain, Graber, McKeown and Tallman, thought the majority rewrote Sec. 952(a); there is, he thought, no conceivable interpretation of it that could yield one result where drugs are brought into the U.S. by air and a different result where they are brought in by sea; instead, the majority has inserted the words "except when the drugs are brought in on a nonstop flight originating in the United States," an exception that is not one Congress has adopted;  he also thought that the majority's ruling put the Ninth Circuit in conflict with other circuits and will immensely complicate law enforcement efforts to protect our borders from illegal drugs.  Schroeder (concurring), Kozinski (dissenting), O'Scannlain, Kleinfeld, Hawkins, Graber, McKeown, W. Fletcher, Fisher (author), Paez, and Tallman, Circuit Judges.  R. Little of San Francisco, CA, A. Ross of Honolulu, HI, and S. Courageous of Honolulu, HI, for the defendants;  AUSA K. Felton of Washington, DC, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

66)  SUPERVISED RELEASE:  USA v. T.M., 02-10189 (9th Cir. June 4, 2003).  Certain conditions of supervised release pertaining to the appellant's alleged status as a sex offender were not reasonably related to the purposes of supervised release as they were based on two remote incidents, one occurred 40 years earlier, and the other 20;  another condition had to be reconsidered because the appellant did not receive proper notice that the court was considering the condition;  further proceedings were also necessary to determine whether a condition regarding the period of home confinement violated the plea agreement.  Canby (author), O'Scannlain, and W. Fletcher, Circuit Judges.  AFPD D. Mokos of Tucson, AZ, for the defendant;  AUSA S. Tsethlikai of Tucson, AZ for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

67)  SENTENCING:  USA v. Smith, 01-50006 (9th Cir. June 4, 2003).  The district court properly interpreted the restriction in Guidelines Sec. 5K2.13 to preclude a downward departure despite the existence of extraordinary circumstances surrounding defendant's mental condition.  Thompson and Rawlinson (author), Circuit Judges, and Schwarzer, District Judge.  DPD E. Uhrig of Los Angeles, CA, for the defendant;  AUSA A. Cowan of Los Angeles, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

68)  SENTENCING:  USA v. Britt, 02-10306 (9th Cir. June 19, 2003).  Occupational restrictions imposed as a term of supervised release violated Guidelines Sec. 5F1.5 (e.g., the restrictions limited the terms upon which the defendant could engage in a profession involving the collection of personal financial data), where the defendant's occupation was not reasonably related to the offense of conviction (conspiracy to possess methamphetamine).  Noonan, Tashima (author), and Wardlaw, Circuit Judges.  AFPD E. Kersten of Fresno, CA, the plaintiffs;  AUSA V. Santos of Fresno, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

69)  SENTENCING:  USA v. Shimoda, 02-10188 (9th Cir. June 26, 2003).  A 42-month sentence was properly imposed following a guilty plea for conspiracy to possess and distribute cocaine, where the sentence did not fall within an exception to the waiver of appeal in his plea agreement.  Leavy (author), Rymer, and T.G. Nelson, Circuit Judges.  A. Ross of Honolulu, HI, for the defendant;  M. Kawahara of Honolulu, HI, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

70)  SENTENCING:  USA v. Guerrero, 01-10717 (9th Cir. June 27, 2003).  Prior to departing downward for aberrant behavior under Guidelines Sec. 5K2.20, the court must find that the case is extraordinary and that the defendants offense conduct shows planning, duration, and deviation from an otherwise law-abiding life;  the district court made no such determinations.  Brunetti and Tashima (author), Circuit Judges, and Ezra, District Judge.  AUSA J. Albert of Tucson, AZ, for the p(Download the full text of this decision at www.cc9.uscourts.gov/)

71)  DISCIPLINARY HEARINGS:  Ramirez v. Galaza, 00-15994 (9th Cir. June 27, 2003).  A state prisoner could challenge the procedures used in his prison disciplinary hearing and a subsequent administrative appeal and the conditions of his administrative segregation as exceeding the normal hardships associated with incarceration in a suit brought under 42 USC Sec. 1983.  Cowen (author), Hawkins, and W. Fletcher, Circuit Judges.  P. Huang of Palo Alto, CA, for the plaintiff;  DAG T. Patterson of Los Angeles, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

72)  HABEAS CORPUS:  Ho v. Carey, 01-16823 (9th Cir. June 5, 2003).  The petitioner was deprived of his right to have a jury decide every element of the offense of second-degree murder based on implied malice where the trial court erroneously instructed that the offense was a general-intent crime;  dissenting, Judge Hug thought the trial judge gave a correct instruction;  initially, he instructed that general intent is required, but later correctly instructed on all of the elements;  Judge Hug thus thought that, at most, the first instruction created an ambiguity and that the majority incorrectly looked at the general intent instruction as though it was the only instruction given.  Hug (dissenting), Alarcon (author), and Graber, Circuit Judges.  D. Riordan of San Francisco, CA, for the petitioner;  DAG M. Howell of San Francisco, CA, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

73)  HABEAS CORPUS:  Davis v. Woodford, 01-99014 (9th Cir. June 24, 2003).  The petitioner's conviction for first-degree murder and his death sentenced were upheld over constitutional challenges, including impermissible joinder, sufficiency of premeditation evidence, and ineffective assistance of counsel.  B. Fletcher, Kleinfeld, and McKeown (author), Circuit Judges.  T. Dressner of Pasadena, CA, for the petitioner;  R.  Anderson of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

74)  HABEAS CORPUS:  Cockett v. Ray, 02-15078 (9th Cir. June 20, 2003).  The district court properly dismissed as procedurally defaulted a habeas petitioner's Confrontation Clause and ineffective assistance of trial counsel claims where it found that the state Supreme Court had relied on an independent and adequate state procedural ground in denying the claims.  Leavy (author), Rymer, and T.G. Nelson, Circuit Judges.  D. Gierlach of Honolulu, HI, for the petitioner;  A. Fujise of Honolulu, HI, for the respondents.  (Download the full text of this decision at www.cc9.uscourts.gov/)

75)  HABEAS CORPUS:  Brambles v. Duncan, 01-55716 (9th Cir. June 3, 2003).  The district court misled a pro se habeas petitioner by telling him that he could dismiss his federal petition without prejudice, without explaining to him the consequences of dismissal, and by failing to advise him of the "stay and abey" option;  prejudicial error is an extraordinary circumstances for equitable tolling purposes;  Judge Rawlinson concurred in the result, finding it dictated by prior Ninth Circuit decisions.  Thompson (author) and Rawlinson (concurring), Circuit Judges, and Schwarzer, District Judge.  C. Edward of Seattle, WA, for the petitioner;  T. Scadron of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

76)  HABEAS CORPUS:  Bittaker v. Woodford, 02-99000 (9th Cir. June 6, 2003).  The district court properly entered a protective order limiting the scope of the petitioner's waiver of the attorney-client privilege to communications pertaining to his habeas appeal for ineffective assistance of counsel, as opposed to extending the waiver to all times and all purposes;  concurring in the result, Judge O'Scannlain, joined by Judge Rawlinson, would not interpret the district court's order so broadly;  nor was he convinced that the state attorney-client privilege must remain intact; as he sees it, while a federal court has ample discretion to proscribe improper use of discovery materials obtained through its proceedings, it has no authority to determine admissibility for such underlying information under state law.  Schroeder, Pregerson, Kozinski (author), O'Scannlain (concurring), T.G. Nelson, Hawkins, Tashima, Fisher, Paez, Berzon, and Rawlinson (concurring), Circuit Judges.  DAG A.S. Hayward of Los Angeles, CA, for the respondent;  DFPD C.R. Manes of Los Angeles, CA, for the petitioner. (Download the full text of this decision at www.cc9.uscourts.gov/)

77)  HABEAS CORPUS:  Hunt v. Pliler, 01-56963 (9th Cir. June 5, 2003).  Because the district court failed to proceed in conformity with 28 USC Sec. 636, the dismissal with prejudice of plaintiff's habeas petition was vacated.  D.W. Nelson and T.G. Nelson, Circuit Judges, and Schwarzer (author), District Judge.  E. Multhaup of Mill Valley, CA, for the petitioner;  DAG R. Cullather for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

78)  HABEAS CORPUS:  Rohan v. Woodford, 01-99016 (9th Cir. June 25, 2003).  A district court must stay capital habeas proceedings during a petitioner's incompetence.  Kozinski (author) and Kleinfeld, Circuit Judges, and Karlton, District Judge.  W. Osterhoudt of San Francisco, CA, for the appellant;  DAG J. Deist of San Francisco, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

79)  HABEAS CORPUS:  Nulph v. Cook, 01-35556 (9th Cir. June 26, 2003).  Habeas relief granted where the state failed to rebut the pre-sumption that defendant's harsher sentence on remand was in retaliation for his successful challenge to his original sentence;  it was evident that the defendant had been deprived of due process under North Carolina v. Pearce, 395 US 711 (1969), and its progeny;  dissenting, Judge King thought that the presumption of vindictiveness did not arise in this case and that the petitioner had made no showing of vindictiveness so as to be entitled to habeas relief.  Ferguson (author) and W. Fletcher, Circuit Judges, and King (dissenting), District Judge.  AFPD W. Willis of Portland, OR, for the petitioner;  AAG T. Sylwester of Salem, OR, for the respondents.  (Download the full text of this decision at www.cc9.uscourts.gov/)

80)  HABEAS CORPUS:  Alcala v. Woodford, 01-99005 (9th Cir. June 27, 2003).  Where a habeas petitioner's trial suffered from multiple constitutional errors which had a substantial and injurious effect on the jury's determination of guilt, the district court properly conditionally granted the petition;  the deficient presentation of the petitioner's alibi and the exclusion of defense witness testimony was each sufficiently prejudicial to grant the petition.  D.W. Nelson (author), Wardlaw, and Fisher, Circuit Judges.  DAG A. Denault of San Diego, CA, for the respondent;  J. Newton of Carmel, CA, for the petitioner. (Download the full text of this decision at www.cc9.uscourts.gov/)

81)  HABEAS CORPUS:  Biggs v. Terhune, 02-15881 (9th Cir. June 30, 2003).  The district court properly denied a state prisoner's writ of habeas corpus challenging the failure of the California Board of Prison Terms to find him suitable for parole; although several of the Board's findings of unsuitability were unsupported, some evidence supported the decision that the petitioner was not entitled to relief.  Hug (author), Gibson, and Fisher, Circuit Judges.  APD A. McClintock of Sacramento, CA, for the petitioner;  DAG J. Blonien of San Francisco, CA, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

 1)  LANHAM ACT:  Meyers v. Graves, 02-35763 (9th Cir. June 18, 2003) (unpublished).  Rymer, Thomas, and Silverman, Circuit Judges.  Meyers appealed pro se the district court's dismissal of his action alleging commercial defamation under Sec. 43 of the Lanham Act.  Affirming, the USCA held that the district court properly dismissed Meyers' action as he failed to allege facts showing that the defendants made false descriptions or representations of fact or false designations of origins in connection with the advertising or sale of goods or services.

2)  TRADEMARKS:  Wells v. Eggers, 02-36075 (9th Cir. June 20, 2003) (unpublished).  Rymer, Thomas, and Silverman, Circuit Judges.  Wells appealed pro se the judgment for the defendants in his trademark action.  The USCA affirmed, finding that the district court properly granted summary judgment to the defendants because Wells failed to show that the phrase "formerly 'Whex'" would likely confuse consumers as to the origin of defendant Stout's product, and because Wells acted in bad faith when he attempted to register "WHEX" as a trademark.

3)  TAXATION / FOIA:  Shors v. Treasury Inspector General for Tax Administration, 02-56814 (9th Cir. June 19, 2003) (unpublished).  Rymer, Thomas, and Silverman, Circuit Judges.

Shors, an IRS employee, appealed pro se the district court's summary judgment in his Freedom of Information Act action seeking documents related to an investigation of Shors' conduct towards his supervisor.  The USCA affirmed.  Where a district court sustains an agency's claim to exemption from FOIA requirements, the Circuit applies a two-part standard of review:  it determines whether the district court had an adequate factual basis for its decision and, if it did, the court reviews the factual findings for clear error.  The court reviews de novo a district court's ruling that documents fall within a statutory exemption.  Here, the district court had an adequate factual basis for granting an exemption based on the Vaughn index and signed declarations of agency officials.  Pursuant to 5 USC Sec. 552(b)(7)(C), the FOIA does not apply to information complied for "law enforcement purposes" whose release would "constitute an unwarranted invasion of personal privacy."  Id.  The district court thus did not err in ruling that exemption 7(c) applied to the requested material.  See Rosenfeld v. U.S. Dept. of Justice, 57 F.3d 803 (9th Cir. 1995) (holding that the government must show a plausible law enforcement purpose and rational nexus between that purpose and the documents for which the exemption is claims);  Hunt v. FBI, 972 F.2d 286 (9th Cir. 1992) (holding that disclosure of a file could reasonably be expected to constitute an unwarranted invasion of personal privacy where the matter could conceivable subject them to annoyance or harassment).  The district court properly admitted the affidavit of an Assistant Chief Counsel who assisted in the investigation and thus had personal knowledge.  Finally, the USCA rejected Shors' claims of judicial bias as his factual allegations were too attenuated to lead a reasonable person to question the impartiality of the judges.

4)  TAXATION / SANCTIONS:  Johnson v. CIR, 03-35055 (9th Cir. June 25, 2003) (unpublished).  Rymer, Thomas, and Silverman, Circuit Judges.  Johnson appealed pro se the district court's summary judgment for the IRS and its orders denying her motion to strike, motion for default, motion for reconsideration, and motion to vacate void judgment, in her action alleging violations of 5 USC Secs. 552 (Freedom of Information Act) and 552a (Privacy Act).  The USCA affirmed.  Johnson's numerous contentions challenging the legal existence of the IRS lacked merit.  The Circuit has long recognized the existence of the IRS.  See Brandow v. USA, 268 F.2d 559 (9th Cir. 1959) (The IRS is a part of the Treasury Dept. which is an agency of the U.S. government). Moreover, the IRS is an "agency" for purposes of the FOIA and the Privacy Act.  The USCA granted the CIR's motion for sanctions pursuant to Fed. R. App. P. 38 and 28 USC Sec. 1912 because this appeal is frivolous.  The USCA thus imposed a sanction of $2000.

5)  TAXATION:  Falstone, Inc. v. CIR, 02-71785 (9th Cir. June 4, 2003) (unpublished).  Canby, Kleinfeld, and Rawlinson, Circuit Judges.

Falstone, at all relevant times a Delaware corporation and an inhabitant of the U.S. Virgin Islands, appealed the judgment of the U.S. Tax Court.  The Tax Court held that there are deficiencies in income tax due from Falstone for taxable years 1984 and 1985 of $42,233 and $80,171 respectively.  The case came before the Court of Appeals because Falstone's principle office is now in Nevada.  Falstone argued that the 1986 Tax Reform Act's retroactive requirement that Falstone must pay the IRS tax on its worldwide income was unconstitutional as a retroactive tax, and that targeted exemptions for two other corporations deny it equal protection.  Because Falstone owed the Virgin Islands Bureau of Revenue Tax on its worldwide income under the plain language of Sec. 28(a) of the Revised Organic Act of the Virgin Islands, the 1986 Act did not cause a retroactive increase in its tax liability so Congress may require Falstone to instead pay the IRS.  Moreover, because the corporations receiving targeted exemptions were still obligated to pay a comparable tax into the treasury of the Virgin Islands, no equal protection violation occurred. Sayre & Co. v. Riddell, 395 F.2d 407 (9th Cir. 1968), does not apply because it dealt with the taxation power of Guam and not with a corporation's federal tax liability.

6)  BANKRUPTCY:  In re Bryfogle, 03-15111 (9th Cir. June 18, 2003) (unpublished).  Rymer, Thomas, and Silverman, Circuit Judges.  Bryfogle appealed pro se the district court's judgment upholding the bankruptcy court's vexatious litigant order and denying Bryfogle's motion to appeal various bankruptcy court orders.  The USCA had jurisdiction over the appeal of the order under 28 USC Sec. 1291 but lacked jurisdiction over the denial of the motion to appeal.  It first found that the district court did not abuse its discretion as, contrary to Bryfogle's assertion, the bankruptcy court provided Bryfogle notice and an opportunity to be heard before entering the order.  Second, the  USCA lacked jurisdiction over Bryfogle's contentions regarding the denial of his motion to appeal because the district court ruled that the orders he attempted to appeal were interlocutory.  Finally, the USCA denied Bryfogle's "Motion for Order Granting Relief from Simultaneous Proceedings on the Same Subject Matter" filed May 14, 2003 and Bryfogle's "Motion for Order Addressing Bankruptcy Court Order" filed June 2, 2003.

7)  BANKRUPTCY:  In re JTS Corp., 02-15551 (9th Cir. June 18, 2003) (unpublished).  Canby, Kleinfeld, and Rawlinson, Circuit Judges.  The USCA affirmed the Bankruptcy Appellate Panel's decision.  First, BAP did not err in concluding that the debtor violated the injunction entered by the California Superior Court when the debtor changed the named beneficiaries under insurance policies herein at issue.  Second, BAP did not err in determining that violation of the injunction was not a "claim" within the meaning of 11 USC Sec. 101(5).  Under California law, the remedy for violation of an injunction is contempt, which does not give the aggrieved party a right to payment.  Third, BAP did not err in holding that the cash reserves and death benefits under the policies were not property of the estate.  See 11 USC Sec. 541(d) (stating that property of the estate does not include property in which the debtor holds, as of the commencement of the case, only legal title and not an equitable interest).  Fourth, appellant Pastore may not avail himself of offensive collateral estoppel in this action because the issue he seeks to preclude from relitigation was not decided in the state court action.  In addition, Pastore offered no explanation for his failure to join the earlier action.

8)  ANTITRUST:  Beech-Nut Nutrition v. Gerber Products, 02-16047 (9th Cir. June 4, 2003) (unpublished).  Hawkins and W. Fletcher, Circuit Judges, and King, District Judge. 

Beech-Nut Nutrition Corporation, a privately held maker of baby food, sued Gerber Products Company alleging violations of federal and state antitrust law.  Beech-Nut alleged that Gerber engaged in unlawful maintenance of monopoly power and attempted monopolization under Sec. 2 of the Sherman Act, primary-line price discrimination under the Robinson-Patman Act, and violations of the California Unfair Practices Act, Cal. Bus. & Prof. Code Sec. 17200, and the Texas Antitrust Act, Tex. Bus. & Com. Code. Sec. 15.05.  The district court dismissed Beech-Nut's complaint for failure to state a claim under Fed. R. Civ. Proc. 12(b)(6). 

 The USCA reversed.  No claim should be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitled him to relief." Conley v. Gibson, 355 US 41, 45-46 (1957).  Nor need those facts be set out in detail.  To the contrary, all that is required is "a short and plain statement of the claim" that will give the defendant fair notice of the plaintiff's claim and the grounds upon which it rests.  There is no special pleading rule requiring greater factual specificity in anti-trust cases.  Beech-Nut's complaint satisfies the pleadings requirement of Fed. R. Civ. Proc. 8(a) because it alleges a theory of predatory pricing that, if proved, would be illegal, and it sufficiently puts Gerber on notice of the claims against it.  Section 2 of the Sherman Act prohibits monopolization and attempted monopolization.  The offense of monopolization has two elements:  "(1) the possession of monopoly power in the relevant market, and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historical accident." USA v. Grinnell Corp., 384 US 563, 570-71 (1966).  To show attempted monopolization Beech-Nut must show that Gerber 1) engaged in predatory or anticompetitive conduct with 2) a specific intent to monopolize and 3) a dangerous probability of achieving monopoly power.  Spectrum Sports, Inc. v. McQuillan, 506 US 447, 456 (1993).  Section 2(a) of the Clayton Act, as amended by the Robinson-Patman Act, provides:  "It shall be unlawful for any person engaged in commerce … to discriminate in price between different purchasers of commodities of like grade and quality … where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly …"  15 USC Sec. 13(a).  When discriminatory conduct harms direct competitors of the discriminating seller, it is known as "primary-line" price discrimina-tion.  Primary-line injury under the Robinson-Patman Act is of the same general character as predatory pricing schemes prohibited by Sec. 2 of the Sherman Act.  Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 US 209 (1993).  To show predatory pricing a plaintiff must prove 1) that the low prices complained of are below an appropriate measure of its rival's costs and 2) that the competitor has (under the Robinson-Patman Act) a reasonable possibility, or (under the Sherman Act) a dangerous probability, of recouping its investment in below-cost prices.  Id at 222, 224.

 Beech-Nut properly pled below-cost pricing by Gerber by alleging that Gerber bid below all potentially relevant measures of its costs for contracts to supply infant cereal in the California, Nevada, and Texas Women, Infants, and Children ("WIC") Supplemental Nutrition Programs.  Beech-Nut offered two theories of recoupment, both sufficient to survive a Rule 12(b)(6) dismissal.  First, Beech-Nut alleged that by securing the WIC contracts through below-cost bids Gerber was able to limit competition in the infant cereal market, allowing it to charge illegally higher-than-competitive prices.  Second, Beech-Nut alleged that the WIC contracts (secured by below-cost bids) allowed Gerber to create or maintain its monopoly in jarred baby food.  To successfully recoup losses through higher-than competitive prices, a firm must have the power to control prices and have sufficient staying power to be able to charge those prices for long enough to make up its loses.  Beech-Net alleged that Gerber has market power in infant cereal and jarred baby food.  The allegation of market power includes not only Gerber's allegedly 70-86% share of the relevant markets, but also barriers to entry.  Beech-Net claimed that it has been driven from the infant cereal market in Texas and has lost distribution in California. Because Beech-Nut stated a claim under the federal antitrust laws, the USCA reversed the dismissal of Beech-Nut's state-law claims as well.  Conduct that violates the federal antitrust laws also violates the California Unfair Competition Law, Cal. Bus. & Prof. Code Sec. 17200, and the Texas Antitrust Act, Tex. Bus. & Com. Code Sec. 15.05.  Beech-Nut has alleged that Gerber acted purposefully and has thus stated a claim under the California Unfair Practices Act.

9)  DISCOVERY / ATTORNEYS' FEES:  Roush v. Berosini, 02-15707 (9th Cir. June 2, 2003) (unpublished).  Hawkins and W. Fletcher, Circuit Judges, and King, District Judge.

The Berosinis appeal from a district court award of over $250,000 in attorneys' fees as a sanction for discovery abuses.  The USCA found that some award of fees was justified under Rule 37, but remanded to permit the Berosinis to review the attorneys' actual billing records.  The failure of the magistrate to specify a subsection of Rule 37 was of no moment, however, as the award was sustainable under both Rule 37(a)(4) and (b)(2).  The award encompassed all the fees expended to trace and pursue the "Cataluna" investments.  Fees and costs expended on preparing four motions to compel discovery, all granted by the court, were supported by Rule 37(a)(4)(A), which permits an award of the reasonable expenses incurred in making the motion to compel, including attorney's fees.  Rule 37(b)(2) supports the remainder of the award, as it authorizes an award of the reasonable expenses, including attorneys' fees, caused by the failure to comply with court-ordered discovery.  The findings that the Berosinis continued to be "dilatory and recalcitrant" in the face of numerous orders compelling discovery, and that Roush had to incur sizeable fees "as a result," clearly supported the award.
The USCA also rejected the contention that the court could not award fees under Rule 37(a) because Roush was not legally obligated to pay her attorneys.  The fees were "incurred" by the attorneys whether Roush or her former employer would be required to pay them.  However, the USCA found that it was error to award fees without permitting the Berosinis and their counsel to review the actual billing statements.  Although the magistrate believed that the affidavit was sufficiently detailed to permit review, it obviously was not, as the reductions identified by the magistrate could not have been discovered without the billing statements themselves.  Significantly, Roush never sought to completely prevent the Berosinis from reviewing the bills.  In fact, Roush sought a protective order which would have permitted defense counsel to hold a copy of Roush's bills and review them with their client.  The magistrate denied this order as moot, even though the Berosinis had specifically complained that they could not properly object to the fee request without viewing the bills.  Judicial examination of fee requests is enhanced by the adversarial examination of facts.  As that did not occur here, the USCA thus vacated the award and remanded with instructions that the Berosinis be provide an opportunity to review the itemized billing statements and a renewed opportunity to object to the requested fees, subject to whatever protective order the district court imposes in its discretion.

10)  CLEAR WATER ACT:  Curtis v. City of Bullhead, 02-17280 (9th Cir. June 19, 2003) (unpublished).  Rymer, Thomas, and Silverman, Circuit Judges.  Curtis appealed pro se a district court's judgment dismissing their action alleging that defendants failed to prevent pollutants from contaminating the water supply in violation of the Clean Water Act (CWA) and the Safe Drinking Water Act (SDWA), and that the defendants conspired to conceal the pollutants in violation of 42 USC Sec. 1983.  The USCA affirmed, finding that the district court properly concluded that it lacked subject matter jurisdiction over Curtis' CWA and SDWA claims as Curtis failed to provide the defendants with adequate notice of the alleged statutory violations.  See 40 CFR Sec. 135.3 (notice under CWA must provide sufficient information to permit recipient to identify violation, including activity, persons responsible, location and dates); id. Sec. 135.12 (notice requirement identical under SDWA).  The district court also properly dismissed without prejudice Curtis' conspiracy claim as the complaint was devoid of specific factual allegations regarding defendants' alleged conspiracy to conceal pollutants and harmful bacteria.  Finally, the district court did not abuse its discretion in declining to exercise supplemental jurisdiction over Curtis' state law claims because it had dismissed all the federal claims.

11)  AMERICANS WITH DISABILITIES ACT:  McCulley v. City of Tucson, 02-16677 (9th Cir. June 19, 2003) (unpublished).  Rymer, Thomas, and Silverman, Circuit Judges.

McCulley appealed pro se the district court's dismissal of his 42 USC Sec. 1983 action alleging that the Tucson Police Department violated his rights under the Americans with Disabilities Act and the Rehabilitation Act, when police officers shot him after he threatened them with a knife. 

 The USCA affirmed.  As McCulley failed to file his action within two years of when he knew or should have known of his injuries, the district court properly dismissed his action as time-barred.  See Two Rivers v. Lewis, 174 F.3d 987 (9th Cir. 1999) (applying a two-year statute of limitations to 42 USC Sec. 1983 claims brought in Arizona).  The district court properly held that McCulley was not entitled to tolling of the limitations period based on an unsound mind as it appears from the record that at the time the causes of action accrued, McCulley believed that officers used poor judgment.  McCulley's contention that Arizona's former disability imprisonment statute tolls his action lacked merit as McCulley was not incarcerated at the time the causes of action accrued.  Contrary to McCulley's contention, the district court properly concluded that the defendants did not induce him to forbear filing suit.  Neither did the district court abuse its discretion in denying McCulley's request to amend his second amended complaint because amendment would be futile.

12)  AMERICANS WITH DISABILITIES ACT:  Goodell v. Ralphs Grocery Co., 02-16000 (9th Cir. June 3, 2003) (unpublished).  Canby, Kleinfeld, and Rawlinson, Circuit Judges.  Goodell appealed a district court ruling that Ralphs Grocery Company ("Ralphs") was not required under the Americans with Disabilities Act to improve disabled-accessible parking spots in a common-area, multi-business parking lot.  The district court did not clearly err in finding that Goodell failed to prove by a preponderance of the evidence that Ralphs owned, leased, operated or exercised control over the parking lot.  Evidence of ownership or lease of the lot was singularly lacking, and the evidence of the relationship of Ralphs to the operation of the lot was insufficient to compel the trier of fact to find that Ralphs had an interest in, or control over, the lot.  In the absence of any such interest, the lot could not be considered a "facility" of Ralphs, for which Ralphs would be responsible under the ADA.

13)  CABLE FRANCHISES:  City of Thousand Oaks v. Verizon Media Ventures, 02-55798 (9th Cir. June 13, 2003) (unpublished).  Hall (concurring), Kozinski, and Rawlinson (dissenting), Circuit Judges.

The USCA found that the district court abused its discretion in enjoining an asset purchase transaction between Verizon and Adelphia.  Section 4.1 of the appellees' franchise ordinance covers only sale of a franchise or rights or obligations under the franchise.  A franchise is a permit to operate a cable system.  47 USC Sec. Sec. 522(9).  The term "franchise" in Sec. 4.1 thus does not encompass cable system assets other than the permit itself.  The appellees do not contend that the asset purchase agreement purported to effect a transfer of Verizon's permit.  Had it done so, the district court could have enjoined at most that specific aspect of the transaction.  The transfer of "franchise fees … arising out of or attributable to the ownership of the Acquired Asserts on or after the Closing Date" did not violate Sec. 4.1's restrictions on transfer of "rights or obligations … under the franchise."  Franchise fees accruing on or after the closing date necessarily arise under Adelphia's franchise, not Verizon's;  the provision did not transfer a liability arising under Verizon's franchise to Adelphia;  it merely ensured that Verizon would not be liable for fees arising under Adelphia's franchise.  The various other asserts and liabilities transferred, such as bulk customer agreements and advertising agreement, are not "rights or obligations … under the franchise."  They are assets and liabilities of a business authorized by the franchise, but they are not rights or obligations that the franchise itself grants or imposes.  The asset purchase transaction was not an "arrangement for the management of the [cable] system" under Sec. 4.11.  Sale of an asset is not, in normal commercial parlance, an "arrangement for the management of" that asset.  A sale is an arrangement for the ownership of an asset;  any change in management is an incidental byproduct of the change in ownership.  The asset purchase agreement thus did not violate Sec. 4.1.  The appellees waived their argument that the transaction violated Sec. 4.2 by failing to raise it as an alternative ground for affirmance in their opening brief on appeal.  Finally, the transaction was not an artifice to evade the ordinance's restrictions.  The USCA said its literal construction of the ordinance does not produce absurd results, because the transfer of a cable system to an entity that already holds a franchise raises fewer regulatory concerns than transfer to an entity that does not.

Concurring, Judge Hall agreed that the district court abused its discretion by enjoining the asset purchase transaction., but wrote separately to say that the Sec. 4.2 argument was raised both below and at oral argument and should be addressed on its merits.  Section 4.2 requires "prior written consent of the City" prior to any transfer of "ownership or control of the Grantee."  In this case, the Grantee is Verizon, and there has been no change in ownership or control of Verizon.  At oral argument, the appellees argued that a change in control of a Grantee occurs whenever there has been a change in control over the Grantee's cable system, citing the Sec. 4.6 definition of the term "control" as "significant influence with respect to the operations of the Grantee's cable system."  The remainder of the agreement, however, clarifies that the terms "Grantee" and "cable system" are not interchangeable.  Thus, the terms of the agreement do not support the appellees' argument that an asset transfer affecting only the Ventura County cable system effected a "change in ownership or control" of Verizon, a nationwide multimedia corporation.

Dissenting, Judge Rawlinson noted that Sec. 4.1 prohibits the sale or transfer of a "Franchise and any rights or obligations of the Grantee under the Franchise … without prior written consent of the city."  Section 4.2 of the franchise ordinance prohibits transfer of "ownership or control of the Grantee … without the prior written consent of the City."  The district court enjoined Verizon from transferring ownership of Verizon's cable system to Adelphia.  The basis of the district court's order was its holding that transfer of the system violated the governing franchise ordinance.  The majority holds that the district court abused its discretion because the term "franchise" does not encompass cable system asserts other than the permit itself.  However, Judge Rawlinson thought this definition was inconsistent with Circuit precedent.  Charter Communications, Inc. v. County of Santa Cruz, 304 F.3d 927 (9th Cir 2002), examined Santa Cruz County's denial of consent to the transfer of a cable franchise.  In considering whether the County reasonably withheld consent to the change in ownership, it expressly held that it was reasonable for the County to require a showing of the transferee's financial qualifications to take over the obligations of the franchise.  Id. at 933.  If, as the majority has ruled, the transfer involved only the permit itself, Judge Rawlinson thought that the court surely would not have found it reasonable for the County to delve into the transferee's ability to assume the franchisee's obligations.  The majority also held that, by raising the issue for the first time on appeal, the appellees waived their argument that the transfer violated Sec. 4.2.  However, Judge Rawlinson thought that the record reflected that the Complaint asserted exactly that theory, and the district court expressly found that Adelphia and Verizon have entered into an arrangement that results in a significant change of de facto control.  Not only was this issue not waived, it provides an additional basis of support for the district court's ruling.  More importantly, Judge Rawlinson noted that in light of the deference with which the Circuit reviews governmental discretionary decisions, Judge Rawlinson said he could not in good conscience find an abuse of discretion on the part of the district court.

14)  IMMIGRATION:  Hamdani v. INS, 02-71250 (9th Cir. June 3, 2003) (unpublished).  Tashima, Berzon (dissenting), and Clifton, Circuit Judges.

The Hamdani and their four children petition for review of the BIA's decision affirming the denial of their petitions for asylum.  The USCA denied the petitions.

 The petitioners concede their deportability under INA Sec. 241(a)(1)(B), admitting that they are non-immigrants who over-stayed the period of their visitor's visas.  The IJ granted their request for withholding of deportation to Afghanistan and granted voluntary departure, with the United Kingdom designated as the country of deportation.  However, the petitioners maintain that they should have been granted asylum, either from Afghanistan or from the UK.  The USCA agreed with the BIA that the petitioners were firmly resettled in the UK, so they are not eligible for asylum from Afghanistan.  An alien shall not be granted asylum from one country if he or she was "firmly resettled in another country prior to arriving in the United States."  INA Sec. 208(b)(2)(A)(vi).  "An alien is considered to be firmly resettled if, prior to arrival in the United States, he or she [lived in another country with] an offer of permanent resident status, citizenship, or some other type of permanent resettlement."  8 CFR Sec. 208.15.  Petitioners were granted refugee status in Britain, and lived there for 15 years without restrictions on their residence or travel.  They were able to secure employment, own a business, buy their own home, and send their children to public school.  Three of the petitioners were born as British citizens.  The entire family was issued government travel documents which permitted freedom of travel outside the UK, as well as freedom to return.  Based on these factors, they clearly met the 8 CFR Sec. 208.15(b) definition of "firm resettlement."  An IJ "shall not grant asylum to any applicant who filed an application before April 1, 1997, if the alien … was firmly resettled within the meaning of Sec. 208.15."  8 CFR Sec. 208.13(c)(2)(I).  Because the Hamdanis' asylum applications were filed before April 1, 1997, the denial of asylum from Afghanistan is mandatory under these regulation.

Alternatively, the petitioners maintained that they are entitled to asylum from the UK as refugees under 8 CFR Sec. 208.13 due to their fear of persecution.  They cite the murder of a nephew by racist "skinheads" or "British nationalists" and other vandalism and threats aimed at them.  Though these actions were deplorable, the USCA agreed with the BIA's conclusion that "it does not appear from the record that the respondents were unable to avail themselves of the protection of the government of the United Kingdom."  To the contrary, the British government took action against those responsible.  The nephew's murder was investigated, and three of his attackers were put on trial and sentenced to life in prison.  When Mr. Hamdani reported that his children had been harassed at school, the police arrested the perpetrators.  Further weighing against the petitioners' claim are the facts that Mr. Hamdani's sisters (including the mother of the murder victim) have lived on the outskirts of London since 1992 without incident, and Mr. Hamdani has safely returned to Britain for months at a time since moving to the United States.

Dissenting, Judge Berzon would hold that on the record, the petitioners established eligibility for asylum from the UK.  Although the officials in the UK were apparently willing—to some degree—to protect the Hamdanis from persecution, they were not able to do so.  Judge Berzon noted that the Ninth Circuit has held repeatedly that an asylum claim may be based on the government's inability to control persecution by non-government forces.  It has also reversed denials of asylum in several cases in which the government was not indifferent to, but was unable to stop, the persecution experienced by the asylum petitioner.  Mr. Hamdani's testimony, along with numerous articles in the record, reveals the magnitude of the problem of sentiment against South Asian immigrants in the UK.  The murder of Mr. Hamdani's nephew was no isolated event.  The thousands-strong demonstrations in which the Hamdanis participated protested not only their nephew's death but the race-based murder of a young black man that had taken place a few months before in the London area.  A newspaper article reported that the British Nationalist Party set up headquarters in South London, resulting in increased attacks in the area.  A Muslim shopkeeper was brutally beaten, and Sikh and Hindu places of worship were firebombed.  Within a few months of the murder of Mr. Hamdani's nephew, an Asian youth and an Asian taxi driver were killed for racial reasons in the same area.  Mr. Hamdani testified that "you will see a lot of cases [of racist attacks like those on his nephew], without anybody be [sic] prosecuted."  The Hamdanis' asylum claim, however, is based on persecution of them, not of others.  Years before his nephew's murder, Mr. Hamdani was accosted in the subway by nationalists and told to get out of the country immediately.  In another incident predating his nephew's murder, he was physically attacked while riding the subway.  Hamdani stated that he did not report the physical attack to police:  "[A] lot of people, they were telling me 'You have to be careful.'  And if you report something, if you get caught, then you are ask for trouble, they come back for revenge."  After their nephew's murder, Mr. and Mrs. Hamdani participated in anti-racism activism and were quoted in newspaper articles discussing race-based violence in London. They and their son Ali were photographed as par-ticipants in anti-racism demonstrations.  Their outspokenness made them visible targets.  Someone broke into the Hamdani home and left a threatening note in language similar to that used by the Nationalists:  "You Pakis, you better leave Britain, it's not your home."  "Skinheads" also visited Mr. Hamdani's business several times in search of him;  Mr. Hamdani was so frightened that he transferred the business to his friend and stopped going to work.  The Hamdani children were harassed at school to such an extent that their parents felt it necessary to remove them from school.  Apparently, although they did try, the police were unable to apprehend most of the perpetrators of various threats, harassment, and property destruction directed at the Hamdanis.  The net result of the threats and harassment was that the Hamdanis lost the ability to work, send their children to school, and live safely in the UK because the British government, despite its good-faith efforts, was simply unable to protect them.  The Hamdanis did investigate moving elsewhere in the UK but were advised that matters were more difficult for South Asians outside London.  To recognize in these unique circumstances the need for asylum from the UK does not open the floodgates to recognition of asylum from that country.  Judge Berzon would thus find that the denial of asylum from the UK to the Hamdanis is not based on substantial evidence, and would grant the petition