2)  TRADEMARKS:  Horphag Research v. Pellegrine,01-56733 (9th Cir. May 9, 2003).  Defendant was not entitled to a nominative fair use defense for using plaintiff's trademark to sell products on a website and as a meta-tag for Internet search engines;  attorneys' fees award was proper based on district court's findings of willful infringement and a frivolous counterclaim.  Pregerson (author) and Thomas, Circuit Judges, and Oberdorfer, District Judge.  J. Izen Houston, TX, for the defendant;  M. Gittes of New York, NY, for the plain-tiff.  ((Download the full text of this decision at www.cc9.uscourts.gov/)

3)  COPYRIGHTS:  Rice v. Fox Broadcasting Company, 01-56582 (9th Cir. May 29, 2003).  The owner of a copyrighted video which reveals how to perform several well-known magic tricks and illusions could not sustain an infringement claim against a TV network for its broadcast of a similar program revealing secrets of professional magicians;  the USCA upheld the district court's summary judgment for the defendants on plaintiff's copyright infringement claim but reversed the denial of summary judgment for the defendants on plaintiff's false advertising claims.  Hug, Brunetti, and O'Scannlain (author), Circuit Judges.  L. Sackey of Claremont, CA, for the appellant;  J. Wynn of Los Angeles, CA for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

4)  COPYRIGHT LAW:  Warren v. Fox Family Worldwide,01-57107 (9th Cir. May 13, 2003).  Plaintiff lacked standing to sue for the infringement of copyrights on musical compositions commissioned as "works for hire" since he was neither the legal nor beneficial owner of the copyrights.  B. Fletcher, Alarcon, and Hawkins (author), Circuit Judges.  L. Comden of Tarzana, CA, for the plaintiffs;  R. Welsh of Los Angeles, CA, and J. Briggs of Santa Monica, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

5)  TAXATION / CORPORATION LAW:  Boise Cascade Corp. v. USA, 01-36086 (9th Cir. May 20, 2003).  Payments made by a corporation to redeem stock held by its Employee Stock Ownership Plan were deductible as dividends paid pursuant to 26 USC Sec. 404(k).  D.W. Nelson and Thomas (author), Circuit Judges, and D. Pregerson, District Judge.  E. Pereluter of Washington, DC, for the appellant;  W. Goldman and Washington, DC, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

6)  TAXATION:  Brown v. USA, 02-55254 (9th Cir. May 1, 2003).  A "step transaction" among husband, wife, and the IRS was properly treated as if the husband had paid gift taxes directly, rather than the wife;  any increase in an administrative expense deduction must be offset by a corresponding decrease in the marital deduction to the extent that expenses were paid out of funds earmarked for a marital trust.  Meskill, Ferguson, and Berzon (author), Circuit Judges.  C. Birke of Los Angeles, CA, for the plaintiffs;  J. Hagley of Washing-ton, DC, for the defendant.(Download the full text of this decision at www.cc9.uscourts.gov/)

7)  TAXATION:  Frontier Chevrolet Co. v. CIR, 01-71815 (9th Cir. May 28, 2003).  Under IRC Sec. 197, a company had to amortize a covenant not to compete made in connection with its redemption of 75% of its stock, as the redemption was an indirect acquisition of an interest in a trade or business.  Trott (author), T.G. Nelson, and Thomas, Circuit Judges.  P. Stanley of Billings, MT, for the petitioner;  K. Utiger of Washington, DC, for the respondent.(Download the full text of this decision at www.cc9.uscourts.gov/)

8)  BANKRUPTCY LAW:  In re Cantrell, 01-17358 (9th Cir. May 28, 2003).  A corporate officer found personally liable for corporate fraud and facing a default judgment could discharge debt resulting from the judgment in bankruptcy as under California law a corporate officer is not a fiduciary within the meaning of Sec. 11 USC Sec. 523(a)(4);  the debtor was not collaterally estopped from contesting whether the default judgment was non-dischargeable.  Stapleton, O'Scannlain (author), and Fernandez, Circuit Judges.  B. Gill, Pacific Grove, CA, for the appellants;  J. Vaught of Oakland, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

 9)  BANKRUPTCY LAW:  In re Bevan, 02-55090 (9th Cir. May 1, 2003).  The claim of a holder of a deed of trust secured by real property and senior to an IRS lien, did not become equitably subrogated to the IRS's claim when the deed of trust holder purchased the property at a nonjudicial foreclosure sale of its own deed of trust.  Beezer, Fernandez (author), Paez, Circuit Judges.  S. Dunstan of Woodland Hills, CA, for the appellants;  A. Wuhrman of Tustin, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

10)  BANKRUPTCY:  40235 Washington Street Corp. v. Lusardi, 01-56644 (9th Cir. May 23, 2003).  Bankruptcy Code Sec. 549(c) does not create an exception to the automatic stay provision, 11 USC Sec. 362(a);  Cal. Rev. & Tax. Code Sec. 3728 is preempted by the automatic stay provision.  Pregerson, Reinhardt (author), and Archer, Circuit Judges.  D. Niddrie of San Diego, CA, for the defendant-appellant;  D. Horning of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

11)  TRUTH IN LENDING ACT:  Yamamoto v. Bank of New York, 01-16427 (9th Cir. May 29, 2003).  A district court has discretion to order borrowers seeking rescission of a mortgage under 15 USC Sec. 1635, to show that proceeds can be tendered if they prevail at trial;  here, the borrowers testified that they could not fulfill TILA's tender requirement, and the district court gave them sixty days before dismissing their rescission claim to attempt to do so;  when they were unable to provide evidence that they could tender the proceeds, the court granted summary judgment for the lender;  the USCA affirmed, holding that a district court has the discretion to modify the sequence of rescission events in such circumstances.  Goodwin, Rymer (author), and T.G. Nelson, Circuit Judges.  G. Dubin of Honolulu, HI, for the plaintiffs;  M. Bernstein, S. Chung, and M. Martin of Honolulu, HI, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

12)  ENERGY LAW:  California v. Federal Energy Regulatory Commission, 02-70336 (9th Cir. May 15, 2003).  In challenges to FERC approval of a corporate reorganization of a utility company's subsidiaries, Federal Register notice adequately notified the public of the reorganization; expedited review did not deprive opportunity to be heard; and, the FERC properly decided that the reorganization was consistent with the public interest.  Silverman and Gould (author), Circuit Judges, Weiner, District Court.  R. McDiarmid of Washington, DC, for the petitioner;  K. Alex of Oakland, CA, for the petitioner; R. Solomon of Washington, DC, for the respondent;  E. O'Donnell of Washington, DC, for the intervenor.(Download the full text of this decision at www.cc9.uscourts.gov/)

13)  ENVIRONMENTAL LAW:  Forest Guardians v. U.S. Forest Service, 01-15066 (9th Cir. May 27, 2003).  A phased-in reduction scheme included in ten-year cattle grazing permits constituted a proper limit on the number of livestock a permitee can graze on an allotment, and did not violate the applicable Forest Plan;  allocating available forage to livestock and monitoring the land use was consistent with the Plan;  dissenting in part, Judge Paez would conclude that allocating available forage to livestock and monitoring use of the land is inconsistent with the Forest Plan and arbitrary and capricious.  Wallace (author), Kozinski, and Paez (dissenting in part), Circuit Judges.  J. Angell of Denver, CO, for the plaintiffs-appellants;  K. Hazard of Washington, DC, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

14)  JURISDICTION:  Harris Rutsky & Co. v. Bell & Clements Ltd., 01-57053 (9th Cir. May 12, 2003).  A federal district court in California could properly exercise personal jurisdiction over London-based entities alleged to have interfered with a California corporation's contractual and business relations via their actions in Europe.  Reinhardt, O'Scannlain (author), and Paez, Circuit Judges.  S. Harbison of Los Angeles, CA, for the appellant;  P. Eskenazi of Los Angeles, CA, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

15)  INTERNATIONAL TRADE: Libas v. Carillo, 02-55723 (9th Cir. May 28, 2003).  An importer may not bring a Bivens action to recover consequential damages against U.S. Customs agents who assessed import duty at an incorrect rate, as Congress has created an alternative remedial scheme by which importers may challenge classifications of goods.  B. Fletcher and Silverman (author), Circuit Judges, and Martone, District Judge.  E. Pollack of Los Angeles, CA, for the plaintiffs;  AUSA R. Lester of Los Angeles, CA, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

16)  EMPLOYMENT DISCRIMINATION:  Pottenger v. Potlatch Corp., 02-35235 (9th Cir. May 19, 2003).  An Age Discrimination in Employment Act claim alleging forced retirement was not actionable where plaintiff's evidence of pretext did not refute defendant's rationale for the termination decision, namely a lack of confidence that the plaintiff could make the hard decisions necessary to turn around his ailing division; the fact that the plaintiff's replacement is younger than the plaintiff, without more, does not create a triable issue of pretext.  Reinhardt, W. Fletcher (author), and Gould, Circuit Judges.  C. Dale of Boise, ID, for the appellants;  M. McNichols of Lewiston, ID, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  LABOR LAW:  California State Legislative Bd. v. Mineta, 01-71941 (9th Cir. May 12, 2003).  The Federal Railroad Administration rule that an otherwise-sufficient rest period is not rendered insufficient if interrupted by a brief telephone call from the employer, telling the worker when to report for duty, is a permissible interpretation of the Hours of Service Law and entitled to deference.  Canby (author), O'Scannlain, and W. Fletcher, Circuit Judges.  L. Mann of Washington, DC, for the petitioner;  P. Plocki of Washington, DC, for the respondents;  M. Rush of Washington, DC, for the intervenor. (Download the full text of this decision at www.cc9.uscourts.gov/)

18)  ARBITRATION / LABOR LAW:  Ingle v. Circuit City Stores, 99-56570 (9th Cir. May 13, 2003).  Under California law, an arbitration agreement presented on an "adhere-or-reject" basis and signed in conjunction with employment applications is unconscionable, as were several one-sided terms therein.  Pregerson (author), Thompson, and Wardlaw, Circuit Judges.  R. Berry of Seattle, WA, for the defendant;  M. Crosby of San Diego, CA, for the plaintiff.(Download the full text of this decision at www.cc9.uscourts.gov/)

19)  CONTRACTS /  FORUM SELECTION CLAUSES: Chateau Des Charmes Wines, Ltd. v. Sabate USA Inc., 02-15727 (9th Cir. May 5, 2003). Under the UN Convention on Contracts for the International Sale of Goods, when parties enter into a contract that does not contain a forum selection provision, but the seller's included a forum selection clause in an invoice that accompanies the shipment of goods to the buyer, that clause is not binding where there is no indication that the buyer conducted itself in a manner that evidenced any affirmative assent to that clause  B. Fletcher, Kozinski, and Trott, Circuit Judges. Per Curiam.  B. Zuffranieri of Buffalo, NY, for the plaintiff;  D. Winton of San Francisco, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

20)  TUCKER ACT / STATE SECRETS PRIVILEGE: Doe v. Tenet, 01-35419 (9th Cir. May 29, 2003).  Plaintiffs' lawsuit against the CIA, based on non-contractual claims that the CIA reneged on promises to provide resettling assistance and lifetime financial support in exchange for espionage plaintiffs performed for the U.S. against a former Eastern bloc country, were not precluded by the Tucker Act, 28 USC Sec. 1346, which requires that the case be heard in the U.S. Court of Federal Claims;  the government failed to comply with the formalities of the "state secrets" privilege;  dissenting, Judge Tallman noted that it is the prerogative of the Supreme Court, not the Ninth Circuit Court of Appeals, to decide whether Totten v. USA, 92 US 105 (1875), continues to bar judicial review of actions arising from espionage services performed for the U.S. by secret agents, or whether the Totten doctrine has been supplanted by the modern state secrets evidentiary privilege articulated in USA v. Reynolds, 345 US 1 (1953);  Judge Tallman thought that, while the majority proclaimed that Totten is applicable to the instant case "only as applied through the prism of current state secrets doctrine," Totten holds that claims brought by secret agents against the government are non-justiciable;  Reynolds, Judge Tallman added, protects against the unveiling of state secrets during the prosecution of an otherwise recognized cause of action; far from modifying Totten, Judge Tallman thought Reynolds reaffirmed Totten's jurisdictional bar;  finally, he thought the majority failed to recognize the jurisdictional limitation imposed on the plaintiffs' lawsuit by the Tucker Act, which requires that this suit be brought in the Court of Federal Claims.  Canby, Berzon (author), and Tallman (dissenting), Circuit Judges.  D. Pines of Mclean, VA, for the defendants;  S. Hale of Seattle, WA for the plaintiffs. (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  ELECTION LAW:  California Pro-Live Council, Inc. v. Getman, 02-15378 (9th Cir. May 8, 2003).  The definition of "independent expenditure" in the California Political Reform Act is not unconstitutionally vague;  the state may regulate express ballot-measure advocacy.  Trott, Rymer, and Tallman (author), Circuit Judges.  J. Bopp of Terre Haute, IN, for the plaintiff-appellant;  T. Muscat of Sacramento, CA, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

22)  NON-PROFIT LAW:  Gospel Missions v. Los Angeles, 00-55993 (9th Cir. May 5, 2003).  A non-profit religious corporation lacked standing to challenge professional fundraiser provisions in charitable solicitations ordinance where the provisions did not apply to the non-profit and the non-profit showed no intent to become a professional fundraiser;  had the city required a license, the non-profit would have "overbreadth standing" to challenge the provisions;  the USCA remanded for a determination of whether an "Information Card" required by the ordinance is the functional equivalent of a "license" and, if so, to consider the non-profit's vagueness, over-breadth, and equal protection challenge. Goodwin, Wallace (author), and Thomas, Circuit Judges.  J. Fosbinder of Kahului, HI, for the plaintiffs;  J. Werlich of Los Angeles, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

23)  FALSE CLAIMS:  Donald v. Univ. of California Board of Regents, 01-17039 (9th Cir. May 21, 2003).  Private individuals are not entitled to share in proceeds of settlement with the federal government of a qui tam action brought against a state-run hospital system under the False Claims Act.  W. Stapleton, O'Scannlain (author), and Fernandez, Circuit Judges.  S. Meagher of San Francisco, CA, for the plaintiffs;  R. McCallum of Washington, DC, the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

24)  EDUCATION LAW:  Hills v. Scottsdale Unified School Dist., 01-17518 (9th Cir. May 22, 2003).  If a school district permits the distribution of secular programs by non-profit organizations, then it is impermissible viewpoint discrimination to refuse to distribute literature advertising an off-campus summer program merely because it is taught from a Christian perspective. Canby, Hawkins, and Berzon, Circuit Judges.  Per Curiam.  W. Weber of Alexandria, VA, for the plaintiff;  M. Simonson of Phoenix, AZ, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

25)  AMERICANS WITH DISABILITIES ACT:  Hannah B. v. Kitzhaber,  01-35950 (9th Cir. May 14, 2003).  The Eleventh Amendment does not bar claims against Oregon under the Americans with Disabilities Act and the Rehabilitation Act, and these Acts do not bar claims against state officials;  concurring, Judge O'Scannlain wrote separately to note that Ninth Circuit precedent in this area was far out of step with both sister circuits and the Supreme Court.  O'Scannlain (concurring), Fernandez, and Fisher, Circuit Judges.  Per Curiam.  AAG J. Metcalf of Salem, OR, for the defendant;  K. Wilde of Portland, OR, for the plaintiffs. (Download the full text of this decision at www.cc9.uscourts.gov/)

26)  AMERICANS WITH DISABILITIES ACT:  Townsend v. Quasim,  01-35689 (9th Cir. May 1, 2003).  The  State of Washington's refusal to offer community-based long term in-home nursing care for "medically needy" disabled persons violates the ADA unless the state can demonstrate that extending eligibility to such persons would fundamentally alter its Medicaid program;  dissenting, Judge Beezer thought that the plaintiffs contentions that the ADA requires the state to created a home and community care program for disabled Medicaid recipients who fall into Medicaid's "medically needy" category failed as the comprehensive structure of the Medicaid Act forecloses such a result.  Beezer (dissenting), Gould, and Berzon (author), Circuit Judges.  K. Frank of Seattle, WA, for the plaintiff; A. Smith of Olympia, WA for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

27)  FAIR HOUSING ACT:  Sanghvi v. City of Claremont, 01-56248 (9th Cir. May 05, 2003).  No Fair Housing Act violation was shown where a city refused to connect its sewer service to a residential care facility property located in an unincorporated area outside the city, unless the property owner agreed to annexation; the district court's decision to charge the jury with the elements of a McDonnell-Douglas prima facie case was harmless error.  Hall, Thompson (author), and Wardlaw, Circuit Judges.  F. Weiser of Los Angeles, CA, for the plaintiffs;  G. Tanaka of Riverside, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

28)  SOCIAL SECURITY:  Lowry v. Barnhart, 01-35775 (9th Cir. May 16, 2003).  A lawyer who frequently represents social security claimants could not, by means of a writ of mandamus, have an ALJ investigated and removed from hearing the lawyer's future cases;  Social Security Administration's interim bias complaint procedures do not prescribe judicially enforceable duties.  Reavley, Kozinski (author), and W. Fletcher, Circuit Judges.  R. Schurman of Kirkland, WA, for the appellant;  V. Chhagan of Washington, DC, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

29)  CLASS ACTIONS:  Plata v. Davis, 02-16161 (9th Cir. May 27, 2003). As an interlocutory order denying a motion to exclude certain members from the plaintiff class was not a final order under 28 USC Sec. 1291 and lacked the practical effect of granting or denying injunctive relief, and as the defendants took no other steps to preserve a right of appeal as to this order, the USCA dismissed the appeal for lack of jurisdiction.  Noonan, Tashima, and Wardlaw (author), Circuit Judges.  J. Applebaum of Sacramento, CA, for the defendants;  D. Specter of San Quentin, CA, for the plaintiffs. (Download the full text of this decision at www.cc9.uscourts.gov/)

30)  CIVIL RIGHTS:  Webb v. Sloan, 01-16855 (9th Cir. May 29, 2003).  Deputy district attorneys are final policymakers in Nevada for purposes of establishing municipal liability under 42 USC Sec. 1983;  the USCA thus upheld a jury verdict in an action alleging prosecution without probable cause; however, because the district court applied the wrong legal standard for "relatedness" in computing a fee award under 42 USC Sec. 1988, the USCA reversed and remanded so that the court could reexamine the fee application in light of the correct standard.  Kozinski, Graber (author), and Berzon, Circuit Judges.  M. Forsberg of Carson City, NV, for the defendant;  R. Story of Reno, NV, for or the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

31)  CIVIL RIGHTS:  Brass v. Los Angeles, 01-57249 (9th Cir. May 15, 2003).  A county did not violate 42 USC Sec. 1983 by continuing the plaintiff's incarceration for 39 hours after a state trial judge ordered him released;  the 39 hours were a reasonable postponement of release while the county processed the release of a large number of prisoners.  Friedman (author), Kozinski, and Rawlinson, Circuit Judges.  T. Beck of Los Angeles, CA, for the plaintiff-appellant;  D. Wilson of Los Angeles, CA, for the defendants-appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

32)  CIVIL RIGHTS:  Vlasak v. Sup. Ct. of California,02-55977 (9th Cir. May 14, 2003).  Los Angeles Municipal Code Sec. 55.07, which prohibits the carrying or possession during demonstrations, rallies, picket lines, and public assemblies, of wooden objects exceeding a certain thickness, is not unconstitutional.  T.G. Nelson, Silverman, and McKeown (author), Circuit Judges.  P. Jensen of Reston, VA, for the appellant;  R. Delgadillo of Los Angeles, CA, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

33)  CIVIL RIGHTS / QUALIFIED IMMUNITY: Bingham v. Manhattan Beach, 01-56044 (9th Cir May 19, 2003).  An unlawful traffic stop is not a de minimis violation of the Fourth Amendment, even if not racially-motivated, and it may give rise to a 42 USC Sec. 1983 claim;  the officer making the stop here was not entitled to qualified immunity where there existed no reasonable suspicion to detain the plaintiff;  dissenting in part, Judge Reinhardt thought that because under the "closely related offense" doctrine, knowledge of a long-past crime cannot serve as justification for an arrest for a wholly unrelated current offense, the court should not have addressed whether the officer could reasonably have arrested the plaintiff.  Reinhardt (dissenting in part), Trott, and Tashima (author), Circuit Judges.  D. Lawrence of Pasadena, CA, for the defendant;  H. Price of Beverly Hills, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

34)  IMMIGRATION LAW:  Olivera-Garcia v. INS, 01-70643 (9th Cir. May 5, 2003).  The USCA lacked jurisdiction to review a BIA's order affirming the INS's removal of a Mexican alien admitted for permanent residence, following his conviction under 21 USC Sec. 841 for being an accessory after the fact to the manufacture of methamphetamine.  Friedman (author), Kozinski, and Rawlinson, Circuit Judges.  A. Cox of Chicago, IL, for the petitioner;  M. Taylor of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

35)  IMMIGRATION LAW:  Pelich v. INS, 01-56796 (9th Cir. May 22, 2003).  Where an alien's detention was indefinite only because he refused to cooperate with INS's efforts to remove him, the USCA upheld the denial of his habeas petition.  Friedman, Kozinski, and Rawlinson (author), Circuit Judges.  AFPD J. Ser of San Diego, CA, for the petitioner;  AUSA S. Bettwy of San Diego, CA, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

36)  IMMIGRATION LAW:  He v. Ashcroft, 00-70652 (9th Cir. May 12, 2003).  The Immigration Judge's reasons for doubting an asylum applicant's testimony regarding his wife's involuntary sterilization by the government of China, and the BIA's subsequent adverse credibility finding, were not supported by substantial evidence where unreliable translations undermined the evidence;  the USCA thus concluded that the petitioner established his eligibility for asylum.  Cowen, Hawkins, and W. Fletcher (author), Circuit Judges.  J. Li of Honolulu, HI, for the petitioner;  K. Fletcher of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

37)  IMMIGRATION LAW:  USA v. Inocencio, 02-10288 (9th Cir. May 19, 2003).  The USCA upheld the district court's judgment revoking the defendant's naturalization pursuant to 8 USC Sec. 1451(e), as a consequence of a conviction for naturalization fraud, because the district court could correct its ministerial failure at any time to revoke naturalization upon a conviction under 18 USC Sec. 1425.  Goodwin (author), Rymer, and T.G. Nelson, Circuit Judges.  AFPD L. Faymonville, Honolulu, HI, for the defendant-appellant;  AUSA J. Seabright of Honolulu, HI, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

38)  IMMIGRATION: Hernandez-Martinez v. Ashcroft, 02-70048 (9th Cir. May 27, 2003).  The Arizona statute under which the petitioner alien was convicted for Aggravated Driving Under the Influence statute was divisible and one may be convicted of it for sitting in one's own car in one's own driveway with the key in the ignition and a bottle of beer in one's hand;  while deferring to the BIA in interpreting terms in the immigration law, the USCA found it hard to believe that our society holds conduct in one's own backyard to be "inherently base, vile or depraved and contrary to the accepted rules of morality," as the BIA in Matter of Lopez-Meza, 22 I.&N. Dec. 1188 (BIA 1999), found Aggravated DUI to be;  concurring, Judge Wardlaw wrote separately to clarify that the offense of Driving Under the Influence with a suspended license, as defined by Ariz. Rev. Statute Sec. 28-697(A)(1), is not a deportable crime of moral turpitude as a matter of either Ninth Circuit or BIA caselaw. Noonan (author), Tashima, and Wardlaw (concurrence), Circuit Judges.  J. Flanagan of Phoenix, AZ, for the petitioner;  A. Mai of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

39)  IMMIGRATION LAW:  Barthelemy v. Ashcroft, 01-71529 (9th Cir. May 23, 2003).  A aggravated felon did not enjoy derivative citizenship under Immigration and Naturalization Act Sec. 321(a)(3) (now repealed), as the felon's natural parents never married and thus could not legally separate;  a bona fide reason supports the legal separation requirement of Sec. 321(a)(3) and that section does not discriminate on the basis of gender as applied to petitioner.  Noonan, Berzon, and Tallman (author), Circuit Judges.  A. Bean of San Francisco, CA, for the petitioner;  E. Molina of Washington, DC, for the respondent.(Download the full text of this decision at www.cc9.uscourts.gov/)

40)  WARRANTLESS VIDEO SURVEILLANCE:  USA v. Gonzales, 02-50160 (9th Cir. May 05, 2003).  Under the Fourth Amendment, the expectation of privacy in a hospital mailroom used by the public is not one which society recognizes as reasonable, and the fact that a surveillance was conducted by video camera does not change the privacy analysis under the circumstances.  Pregerson, Thomas (author), and Rawlinson, Circuit Judges.  DFD J. Locklin of Los Angeles, CA, for the defendant-appellant;  AUSA J. Chooljian of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

41)  EVIDENCE:  USA v. Tekle, 01-50111 (9th Cir. May 27, 2003).  The district court did not abuse its discretion in upholding the defendant's waiver of the right to seek suppression of evidence; the defendant failed to show that his lawyer's failure to move to suppress before trial amounted to ineffective assistance;  the defendant's money laundering convictions were supported by sufficient evidence.  Friedman (author), Kozinski, and Rawlinson, Circuit Judges.  G. Simon of Los Angeles, CA, for the defendant-appellant;  AUSA A. Russi of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

42)  SEARCH & SEIZURE / DISCOVERY:  USA v. Cedano-Arellano, 02-50450 (9th Cir. May 27, 2003).  The district court erroneously denied the defendant discovery regarding a narcotics detector dog that "alerted" on his gas tank at a border stop;  documents pertaining to the dog's qualifications were material to preparing the defense and should have been disclosed;  however, under the circumstances of this case, the failure to do so was harmless error. B. Fletcher and Silverman, Circuit Judges, and Martone, District Judge.  Per Curiam.  T. Burns of San Diego, CA, for the defendant-appellant;  AUSA P. O'Toole of San Diego, CA, for the plaintiff-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

43)  DOUBLE JEOPARDY:  USA v. Vargas-Castillo,02-50161 (9th Cir. May 15, 2003).  An indictment charging the defendant with separate counts of importation of cocaine and marijuana, and possession of cocaine and marijuana with intent to distribute, under 21 USC Secs. 841, 952, and 960, is not multiplicitous.  B. Fletcher and Hawkins, Circuit Judges, and Bury (author), District Judge.  R. Viselman of San Diego, CA, for the defendant-appellant;  AUSA B. Castetter of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

44)  PLEAS:  USA v. Reyna-Tapia, 01-10415 (9th Cir. May 9, 2003).  Plea colloquies involving felonies are duties that may be delegated to a magistrate judge for findings and recommendation with defendants' consent;  de novo review is required only if one or both parties file objections to such findings and recommendations.  Schroeder, B. Fletcher, O'Scannlain, T.G. Nelson, Kleinfeld, Hawkins, Tashima, Silverman (author), Wardlaw, Gould, and Rawlinson, Circuit Judges.  A. Baggot of Apache Junction, AZ, for the defendant;  M. Rotker of Washington, DC, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

45)  CRIMINAL PROCEDURE:  USA v. Foreman, 02-10049 (9th Cir. May 21, 2003).  The right to appeal a pre-plea motion for substitution of counsel is waived by an unconditional guilty plea unless the plea itself is challenged;  restitution payment following guilty pleas to offenses involving forged securities was properly ordered jointly and severally.  B. Fletcher, Kozinski, and Trott (author), Circuit Judges.  J. Soglin of San Francisco, CA, for the defendant-appellant;  AUSA J. Hemann of San Francisco, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

46)  BANK ROBBERY:  USA v. Odom, 98-50330 (9th Cir. May 20, 2003).  A bank robber with a concealed gun, who never insinuates having a gun but displays it inadvertently, cannot be convicted under 18 USC Sec. 2113(d), which requires that the use of a dangerous weapon during an armed bank robbery involve some active employment of the gun.  Pregerson, Tashima, and Clifton (author), Circuit Judges.  AFPD M. Stratton of Los Angeles, CA, for the defendant;  AUSA J. Spertus of Santa Ana, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

47)  JURY INSTRUCTIONS:  Powell v. Galaza, 01-15195 (9th Cir. May 6, 2003).  At a state trial for failure to appear at sentencing, the court's mid-trial jury instruction that the defendant's testimony satisfied the specific intent element of the crime improperly removed that element from consideration and effectively directed the jury to find for the state on that element.  B. Fletcher, Boochever, and Fisher (author), Circuit Judges.  AFPD A. McClure of San Francisco, CA, for the petitioner;  J. Vance of San Francisco, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

48)  SENTENCING:  USA v. Morales, 02-50154 (9th Cir. May 16, 2003).  The district court lacked jurisdiction to modify or vacate a sentence imposing a fine on a former IRS agent after convictions for acceptance of bribes.  Beezer (author), Fernandez, and Paez, Circuit Judges.  G. Singleton of San Diego, CA, for the defendant-appellant;  AUSA M. Lundberg of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

49)  SENTENCING:  USA v. Migi, 01-10254 (9th Cir. May 27, 2003).  Basketball courts, softball fields, and skating rinks are all "apparatus intended for the recreation of children" under 21 USC Sec. 860(e)(1);  thus the area in which defendant sold drugs was a "playground" and the district court properly enhanced defendant's sentence.  Leavy, Rymer, and T.G. Nelson (author), Circuit Judges.  G. McMillen of Maui, HI, for the defendant;  E. Kubo of Honolulu, HI, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

50)  SENTENCING:  USA v. Shumate, 01-50610 (9th Cir. May 20, 2003).  An Oregon drug conviction for solicitation was a felonious controlled substance offense under USSG Sec. 4B1.1, and was a predicate offense for purposes of finding that defendant to be a career offender; after USA v. Cox, 74 F.3d 189 (9th Cir. 1996), Sec. 4B1.2 allows inclusion of solicitation for controlled substance offenses;  concurring, Judge Paez noted that he does not understand either Cox or today's decision to mean that the solicitation of another to commit a controlled substance offense will automatically qualify as a predicate offense under Sec. 4B1.1, without regard to the statute of conviction.  Beezer, Fernandez (author), and Paez (concurring), Circuit Judges.  AFPD S. Shetty of San Diego, CA, for the defendant;  AUSA M. Park of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

51)  SUPERVISED RELEASE:  USA v. Verduzco, 02-50353 (9th Cir. May 30, 2003).  A district court may consider a state conviction resulting from a nolo contendere plea, as probative of the charge that defendant's later supervised releasee violated a term of his release that he not "commit another crime."  Pregerson, Tashima (author), and Clifton, Circuit Judges.  D. Landin of Los Angeles, CA, for the defendant;  AUSA M. Krause of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

52)  DUE PROCESS:  Krug v. Lutz,  01-16033 (9th Cir. May 14, 2003).  The Arizona Department of Corrections' practice of having an inmate's appeal of a publication exclusion decision adjudicated by the same prison official who made the initial decision to exclude the publication violates procedural due process.  Browning, Fisher (author), and Tallman, Circuit Judges.  AAG W. Hofmann of Tucson, AZ, for the defendants;  A. Steinman of Seattle, WA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

53)  HABEAS CORPUS:  Vang v. Nevada, 00-16639 (9th Cir. May 23, 2003).  Two claims in a "mixed" habeas petition were procedurally defaulted, while others were unexhausted, but three other claims were not procedurally defaulted where the state failed to rely on the default in a motion to dismiss and there were no reasons to excuse that waiver.  Hill, Graber (author), and McKeown, Circuit Judges.  AFPD M. Powell of Reno, NV, for the petitioner-appellant;  DAG V. Schulze of Las Vegas, NV, for the respondent-appellee. ((Download the full text of this decision at www.cc9.uscourts.gov/)

54)  HABEAS CORPUS:  Guillory v. Roe, 01-56343 (9th Cir. May 05, 2003).  A habeas petitioner was not entitled to equitable tolling of the statute of limitations mandated by the Antiterrorism and Effective Death Penalty Act (AEDPA) due to the district court's erroneous dismissal of a prior habeas petition containing unexhausted claims without giving the prisoner the option to amend to strike the unexhausted claims;  equitable tolling is not available where, as here, the habeas petitioner did not exercise reasonable diligence.  Hall (author), Kozinski, and Rawlinson, Circuit Judges.  W. Harris of South Pasadena, CA, for the appellant;  M. Turchin of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

55)  HABEAS CORPUS:  Jenkins v. Johnson, 99-36194 (9th Cir. May 20, 2003).  A federal habeas petitioner's state-court petition for post-conviction relief was "properly filed" within the meaning of 28 USC Sec. 2244(d)(2) on the basis of an ambiguity in Oregon law that existed at the time he filed his federal petition but has since been clarified;  dissenting, Judge O'Scannlain thought that the plain meaning of Oregon statutory law was clear, that the Ninth Circuit was bound to follow it, and thus that the petitioner was not entitled to statutory tolling and thus that his habeas petition was untimely under the AEDPA.  B. Fletcher (author), O'Scannlain (dissenting), and Berzon, and Circuit Judges.  S. Wax of Portland, OR, for the petitioner;  D. Casey of Salem, OR, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

 1)  COPYRIGHTS:  Kling v. Hallmark Cards, 01-55902 (9th Cir. May 13, 2003) (unpublished).  Schroeder, Thompson, and Graber, Circuit Judges.
          The USCA found that substantial evidence supported the jury's finding by special verdict that Kling's copyright claim against the defendants was barred by the Copyright Act's three-year statute of limitations.  17 USC Sec. 507(b).  Although damages caused by copyright infringements during the three years immediately preceding the filing of the action would be recoverable, Roley v. New World Pictures, 19 F.3d 479, 481 (9th Cir. 1994), Kling presented no evidence to support an award of such damages.  The district court thus did not err by not instructing the jury that they could award damages to Kling for infringement during that period.  Because the USCA concluded that Kling's copyright claim was barred by the statute of limitations, it did not reach the remaining issues raised by her appeal.  With regard to the defendants cross-appeal, the USCA concluded that the district court properly considered the non-exclusive Fogerty factors of frivolousness, motivation, objective unreasonableness, and compensation and deterrence, Fogerty v. Fantasy, Inc., 510 US 517, 534n.19 (1994), as well as the plaintiff's degree of success, Jackson v. Axton, 25 F.3d 884, 890 (9th Cir. 1994), and did not abuse its discretion in denying the appellees' request for attorney fees under 17 USC Sec. 505.  See Smith v. Jackson, 84 F.3d 1213, 1221 (9th Cir. 1996).

2)  SECURITIES FRAUD:  Brownson v. SEC, 02-73194 (9th Cir. May 16, 2003) (unpublished).  Pregerson, Reinhardt, and Graber, Circuit Judges.
         Brownson petitioned pro se for review of an SEC order barring him from association with any broker or dealer following his guilty plea conviction for conspiracy to commit securities mail and wire fraud in violation of 18 USC Sec. 371.  The USCA deny the petition.  Brownson's plea agreement and criminal conviction were substantial evidence supporting the SEC's conclusion that it is in the public interest to permanently bar Brownson from association with brokers and dealers.  The SEC thus did not abuse its discretion by imposing the sanction expressly allowed by 15 USC Sec. 78o(b)(6)(A)(ii).  Brownson raised numerous contentions regarding procedural aspects of the administrative adjudication.  The USCA rejected Brownson's assertion that he was denied the opportunity to present mitigating evidence to the SEC because the summary disposition proceedings held before the ALJ provided such an opportunity.  See 17 CFR Sec. 201.250 ("Rule 250").  Brownson did not file a formal response to the SEC's motion and neither presented written evidence nor identified matters requiring a hearing.  Brownson's contention that the ALJ ruled on the motion too quickly was not persuasive because Rule 250(b) requires the ALJ to "promptly grant or deny the motion." Id.  Brownson's contention that he expected a hearing to be held was not persuasive because, nearly two months before the motion was filed, the ALJ advised him that summary disposition meant that a decision would be "based on papers and not on a hearing."  Finally, it is well settled that the SEC is not required to hold oral argument.  See Carter v. SEC, 726 F.2d 472, 474 (9th Cir. 1983) (Per Curiam).  The USCA was also unpersuaded by Brownson's contention that the SEC's administrative proceedings constituted double jeopardy because the SEC's goal of protecting the public is remedial, not punitive.  See USA v. Merriam, 108 F.3d 1162, 1165 n.3 (9th Cir. 1997) (denying motion to dismiss criminal indictment despite SEC's prior imposition of lifetime bar for securities violations).

3)  SECURITIES FRAUD:  CheckOut v. Amplified Holdings, 02-56219 (9th Cir. May 7, 2003) (unpublished).  Schroeder and Graber, Circuit Judges, and Singleton, District Judge.
        Plaintiff CheckOut Holdings sued defendant Amplified Holdings and several of its officers, following a transaction in which defendant purchased some of plaintiff's assets in exchange for stock in defendant.  Plaintiff appealed the district court's grant of defendant's Fed. R. Civ. Proc. 12(b)(6) motion, dismissing plaintiff's Second Amended Complaint.
       The USCA affirmed.  First, under the Private Securities Litigation Reform Act of 1995 ("PSLRA"), a securities fraud complaint must "specify each statement alleged to have been misleading, the reason or reasons why the statement is misleading, and, if an allegation regarding the statement or omission is made on information and belief, the complaint shall state with particularity all facts on which that belief is formed." 15 USC Sec. 78u-4(b)(1).  A complaint must allege that the defendant made false or misleading statements intentionally or with deliberate recklessness; if the challenged representation is a forward-looking statement, the complaint must allege that the statement were made with actual knowledge of their misleading nature.  In re Vantive Corp. Sec. Litig., 283 F.3d 1079, 1085 (9th Cir. 2002).  The complaint must also "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind." 15 USC Sec. 78u-4(b)(2).  PSLRA's standards for pleading scienter apply to private transactions that do not involve a securities exchange.  On de novo review, the USCA affirmed the district court's holding that the plaintiff's First Cause of Action, claiming a violation of Sec. 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5, does not state a claim upon which relief can be granted.  As for the allegation that the defendant misled the plaintiff by claiming that it was worth $70 to $80 million, the plaintiff's allegations, at most, can prove only that the statements and omissions were untrue and misleading two months after the transaction was completed.  The plaintiff's Second Amended Complaint contained no fact to suggest that the statements and omissions were untrue at the time they were spoken or omitted.  The plaintiff's "negative" evidence regarding the defendant's failure to state that anything significant occurred between the time of the statements and omissions and the time when they were alleged to be untrue is insufficient under the PSLRA's requirement that a securities fraud complaint must "specify each statement alleged to have been misleading [and] the reason or reasons why the statement 
 is misleading." 15 USC Sec. 78u-4(b)(1).  Plaintiff cited numerous statements that it claims were misleading and numerous facts that defendant and its officers failed to disclose.  Nowhere in its Second Amended Complaint, however, did the plaintiff plead facts that would create a strong inference that the defendant and its officers knew that a particular statement was misleading or untruthful at the time the statement was made.  Mere access to corporate information is inadequate evidence of scienter. Vantive Corp., 283 F.3d at 1086-88.  Plaintiff's bald allegations that defendant officers knew one thing about the matters asserted, but reported another, are inadequate to plead scienter.  Plaintiff's allegation of a "Ponzi Scheme" by defendant and the Secured Lenders is insufficient to create circumstantial evidence of scienter. Wharf Holdings v. United Intl. Holdings, 532 US 588 (2001), which plaintiff cites to support its position does not discuss pleading requirements and does not diminish plaintiff's burden to plead contemporaneous facts demonstrating that defendant's misrepresentations were knowingly false when made.
        Second, the USCA has held that "to establish 'controlling person' liability, the plaintiff must show that a primary violation was committed and that the defendant 'directly or indirectly' controlled the violator."  Paracor Fin., Inc. v. Gen. Elec. Capital Corp., 96 F.3d 1151, 1161 (9th Cir. 1996).  In this case, the alleged primary violation was of Sec. 10(b).  The USCA found that because it affirmed the district court's dismissal of plaintiff's First Cause of Action, there is no "primary violation" remaining in the case.  It thus dismissed the Sec. 20(a) claim as well.  Third, in its Opening Brief, the plaintiff failed to discuss the claim that it should have been granted leave to amend its Second Amended Complaint and that the district court abused its discretion in failing to grant such leave.  The USCA thus deemed this claim waived.  See Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) ("An issue referred to in the appellant's statement of the case but not discussed in the body of the opening brief is deemed waived.")

4)  TAXATION:  Weishan v. CIR,02-72491 (9th Cir. May 16, 2003) (unpublished).  Pregerson, Reinhardt, and Graber, Circuit Judges.
          The taxpayers appealed the tax court's summary judgment upholding the CIR's deficiency determination for the tax year 1997.  The USCA affirmed.  Contrary to the taxpayers' contention, they acknowledged receipt of the notice of deficiency and other correspondence from the CIR, and the form of the notice of deficiency complied with all statutory requirements.  See Abrams v. CIR, 814 F.2d 1356, 1357 (9th Cir. 1987) (Per Curiam) ("there is no prescribed form for a deficiency notice").  Similarly, the taxpayers received all of the information due them under 26 CFR Sec. 301.6203-1.  See Koff v. USA, 3 F.3d 1297, 1298 (9th Cir. 1993) (Per Curiam).  Finally, the taxpayers were accorded due process at the Collection Due Process Hearing.  They thus failed to state a Fifth Amendment violation.  See Wilcox v. CIR, 848 F.2d 1007, 1008 (9th Cir. 1988) ("failing to provide a taxpayer with an administrative fact finding hearing does not violate due process").  The taxpayers' contention that the IRS officers did not have the properly delegated authority to assess and collect taxes lacked merit.  See Hughes v. USA, 953 F.2d 531, 536 (9th Cir. 1992).  The tax court did not err in denying the taxpayers' motion for a continuance to engage in further discovery.  See Tax Ct. R. 121(e).  The USCA declined to consider the tax court's denial of the taxpayers' two post-judgment motions as the taxpayers did not clearly contend in their opening brief that these rulings were erroneous.  See DHL Corp. & Subsidiaries v. CIR, 285 F.3d 1210, 1224 n.10 (9th Cir. 2002).

5)  TAXATION:  Broderick v. CIR, 02-72888 (9th Cir. May 16, 2003) (unpublished).  Pregerson, Reinhardt, and Graber, Circuit Judges.
       Broderick appealed pro se the judgment of the tax court, following a bench trial, dismissing his action contesting tax deficiencies for the years 1995, 1996, and 1997.
       The USCA affirmed.  The tax court did not abuse its discretion by dismissing Broderick's action for failure to prosecute because he did not comply with Tax Court rules 123(b) and 149(b), which require parties to stipulate to facts, identify or prove any deductions, and refute the CIR's deficiency determination.  The tax court properly denied Broderick's motion in limine because Broderick was not entitled to notice of the third-party subpoena served on Wells Fargo Bank.  See 26 USC Sec. 7609(c)(2)(B) (a taxpayer is not entitled to notice of subpoena "issued to determine whether or not records of the business transactions or affairs of an identified person have been made or kept.")  In addition, contrary to Broderick's contention, bank records should not have been precluded under the "fruit of the poisonous tree" doctrine.  See Weiss v. CIR, 919 F.2d 115, 118 (9th Cir. 1990).  The record does not support Broderick's contention that the tax court improperly required him to bear the burden of proving that he did not receive unreported income.  In any event, the CIR proved Broderick's receipt of unreported income by producing a Form 4340, and Broderick refused to challenge that determination at the bench trial.  See Hardy v. CIR, 181 F.3d 1002, 1004-05 (9th Cir. 1999).  Broderick also maintained that the tax court violated his Fifth Amendment right against self-incrimination when it deemed true the CIR's proposed stipulation of facts.  This contention failed because Broderick "may not invoke the Fifth Amendment privilege to justify his refusal to comply with discovery."  See McCoy v. CIR, 696 F.2d 1234, 1236 (9th Cir. 1986).

6)  TAXATION:  Lehmann v. CIR, 02-72981 (9th Cir. May 20, 2003) (unpublished).  Pregerson, Reinhardt, and Graber, Circuit Judges.
        Lehmann appealed pro se the tax court's order dismissing for failure to prosecute her action seeking to challenge the CIR's determination of income tax deficiencies for tax years 1993 through 1997.  The USCA affirmed.  Lehmann maintained that the tax court erred in dismissing her petition for failure to prosecute.  Lehmann did not respond to the CIR's attempts to engage in discovery.  At trial, she provided no evidence to sustain her burden of showing the CIR's deficiency determination was incorrect.  The tax court thus did not abuse its discretion in dismissing Lehmann's petition for failure to prosecute.  In addition, the tax court properly denied Lehmann's motion to recuse the tax court judge.  The USCA found the remainder of Lehmann's arguments unpersuasive.  The CIR can, for federal tax purposes, disregard a trust to determine deficiencies based upon the economic realities of a taxpayer's situation.  See Zmuda v. CIR, 731 F.2d 1417, 1420-21 (9th Cir. 1984) ("although the taxpayer may structure a transaction so that it satisfies the formal requirements of the IRC, the CIR may deny legal effect to a transaction if its sole purpose is to evade taxation.")  Lehmann's contention that the trusts were indispensable parties wa incorrect as the only issue before the tax court was the amount of Lehmann's tax liability.  Finally, Lehmann's general invocation of the Fifth Amendment did not shield her from discovery.  See Edelson v. CIR, 829 F.2d 828, 832 (9th Cir. 1987).

7)  TAXATION:  Burke v. CIR, 02-72855 (9th Cir. May 21, 2003) (unpublished).  Pregerson, Reinhardt, and Graber, Circuit Judges.
          Burke appealed pro se the tax court's judgment dismissing his action seeking redetermination of federal income taxes for the years 1993-1997, as well as the court's order denying his motion to vacate the judgment. 
           The USCA affirmed.  The tax court did not abuse its discretion by dismissing Burke's action for failure to prosecute and for failure to comply with a court order because Burke produced neither documentation nor testimony to support his petition and failed to timely respond to the tax court's order to show cause why the CIR's proposed facts should not be deemed stipulated.  See Larsen v. CIR, 765 F.2d 939, 941 (9th Cir. 1985) (affirming tax court's dismissal for failure to prosecute because taxpayer refused to stipulate as required by Rule 91).  Contrary to Burke's contention, the tax court properly granted the CIR's motion for leave to amend because the amended answer did not introduce new matter.  The burden of proof to rebut the presumption of correctness thus remained with Burke.  See Abatti v. CIR, 644 F.2d 1385, 1389-90 (9th Cir. 1981).  In addition, the CIR did not err by sending tax deficiency notices to both Burke and Independent Business Machine Service ("IBMS").  See Clapp v. CIR, 875 F.2d 1396, 1400-01 (9th Cir. 1989) (upholding the CIR's decision to send notices to determine tax deficiency to both individual taxpayers and to trusts in which they had an interest).  For the same reason, the tax court did not abuse its discretion by denying Burke's motion in limine, seeking to prevent the CIR from relying on the tax returns and bank records of the IBMS entities.  Burke's general invocation of the Fifth Amendment could not shield him from discovery  Edelson v. CIR, 829 F.2d 828, 832 (9th Cir. 1987).  Contrary to Burke's contention, the tax court properly exercised jurisdiction over this petition because the court has jurisdiction to determine tax deficiencies and the CIR may for tax purposes disregard the existence of entities such as trusts in determining an individual taxpayer's deficiencies.  See Zmuda v. CIR, 731 F.2d 1417, 1420-21 (9th Cir. 1984).  Burke's contention that the IBMS entities are indispensable parties lacks merit because tax deficiency assessments are person to the taxpayer and neither the Internal Revenue Code nor Ninth Circuit Court of Appeals decisions authorize third parties to contest the merits of a tax assessment.  See AlKim, Inc. v. USA, 650 F.2d 944, 947 (9th Cir. 1981).  Finally, the tax court did not abuse its discretion by denying Burke's recusal motion.

8)  TAX LIENS:  Matthies v. Nave, 02-36128 (9th Cir. May 20, 2003) (unpublished).  Pregerson, Reinhardt, and Graber, Circuit Judges.
       The plaintiffs appealed pro se the district court's judgment on the pleadings dismissing their consolidated actions challenging the recording of notices of federal tax liens against their property by the Yellowstone County Recorder.  The USCA affirmed.  The district court properly denied the appellants' motion to remand to state court because the U.S. is a party to this action and it involves a federal question.  28 USC Sec. 1346(a)(2); TKB Intl. v. USA, 995 F.2d 1460, 1464 (9th Cir. 1993) (the requirements for filing a federal tax lien are a matter of federal law).  The district court also properly granted judgment on the pleadings as there existed no genuine issue of material fact as to whether the lien notices were valid and properly filed under federal law, notwithstanding the Montana statute upon which the appellants. Rely.  See 26 USC Sec. 6323(f)(3).

9)  BANKRUPTCY:  Agricredit Acceptance v. UAP, 02-35160 (9th Cir. May 22, 2003) (unpublished).  O'Scannlain and Gould, Circuit Judges, and Bolton, District Judge.
         Plaintiff Agricredit Acceptance appealed the district court's decision that a clause in a confirmed Chapter 12 bankruptcy plan, which expressly allowed Agricredit to appeal "lien priorities," did not allow Agricredit to contest the timing of payments that it received under the plan on the ground that payment to a creditor with subordinated debt before Agricredit was fully paid would be inconsistent with Agricredit's "lien priority."  In the alternative, Agricredit argued that this appeal is moot due to the dismissal of the underlying plan following the bankruptcy court's judgment.  The USCA concluded that this case is not moot and that no plausible interpretation of the clause, when viewed with other language in the Chapter 12 plan as a whole, precluded Agricredit from contesting the timing of payments that it would receive under the plan if asserted to violate its lien priority. 
         First, the USCA noted that the burden is on the movant to demonstrate that the appeal is moot.  The test to determine whether a case becomes moot when the underlying bankruptcy petition is dismissed is set forth in In re Universal Farming Industries, 873 F.2d 1334, 1335 (9th Cir 1989):  "In the bankruptcy context the determination of whether a case becomes moot on the dismissal of the bankrukptcy hinges on the question of how closely the issue in the case is connected to the underlying bankruptcy.  When the issue being litigated directly involves the debtor's reorganization, the case is mooted by the dismissal of the bankruptcy. … However, if the issue is ancillary to the bankruptcy, the dismissal of the petition does not necessarily cause the case to become moot."  The USCA concluded that this rule applied and that the issue of lien priority as related to payment was ancillary to the bankruptcy.  The parties disputed whether Agricredit waived its right to receive payment in full from the debtors prior to UAP Northwest's receipt of any payments from the debtors because Agricredit agreed to the terms of the debtor's Chapter 12 plan.  While the debtors' Chapter 12 plan was in effect, payments were held by the bankruptcy trustee for UAP or Agricredit pending the outcome of this action.  The issue of who has a right to funds, disbursed into trust while the Chapter 12 plan was in effect, was ancillary to the dismissal of the bankruptcy petition because the funds were received by the bankruptcy trustee pursuant to a valid Chapter 12 plan.  To illustrate, if Agricredit is held to have waiver its rights to receive payment in full by signing the Chapter 12 plan, UAP would receive the payments held in trust under the terms of the debtors' Chapter 12 plan.  But if Agricredit did not waive its rights to payment in full before UAP received any payment, then Agricredit would be entitled to all the challenged funds.  Because the entitlement to funds paid out while the bankruptcy plan was in effect is ancillary to the dismissal of the debtors' bankruptcy petition, and because complete relief on this dispute can be given the parties, this case was not moot.
         Second, Agricredit maintained that the clause in the confirmed plan which preserved a right to appeal "lien priorities" also preserved a right to appeal timing of payments to it under the plan, as contrasted with payments to UAP which had subordinated its debt to the debt due Agricredit.  The bankruptcy court concluded that Agricredit did not preserve a right to appeal the timing of payments to it under the terms of the confirmed plan.  The district court questioned the validity of the bankruptcy court's decision but affirmed the result after giving deference to the bankruptcy court's decision.  The USCA assumed, without deciding, that the bankruptcy court's interpretation of a confirmed plan is entitled to deference and is reviewed for an abuse of discretion.  A bankruptcy plan is to be interpreted as a contract, pursuant to applicable state law in the forum where the bankruptcy is commenced.  Under Idaho law, the "aim in construction of a contract is to ascertain the intention of the parties."  Rutter v. McLaughlin, 612 P.2d 135, 136 (Idaho 1980).  The determination of a contract's meaning and legal effect are questions of law to be decided by the court where the contract is clear and unambiguous.  However, if a contract is determined to be ambiguous the interpretation of the document then presents a question of fact which focuses upon the intent of the parties.  The language of the plan is controlling in its context, and the USCA thought that no further proceedings were needed to ascertain the intent of the parties.  Though perhaps no a model of clarity, the language of reservation in the plan preserves for Agricredit a challenge to "lien priorities," and we conclude that the only plausible interpretation of this language in the plan, viewed in the entirety, preserves the right of Agricredit to initiate an adversary proceeding to contest the timing of payments to it based on the challenge that UAP should not have received payments on its subordinated debt until Agricredit was fully paid.  The clause explicitly preserves a right to appeal "lien priorities."  For the reasons expressed below, the USCA concluded that this language in the context of other parts of the plan must have been intended to preserve a right to appeal the timing of payments that Agricredit would receive under the plan as contrasted with what UAP would receive.  First, it is undisputed that UAP subordinated its debt to Agricredit.  In the confirmed plan there was no dispute about the value of Agricredit's lien interest.  The plan provided that Agricredit would be paid full value of its claim.  All creditors and debtors are bound by the terms of the confirmed Chapter 12 plan which they have signed.  11 USC Sec. 1227(a).  Because Agricredit was given full value for its interest under the plan, which was superior to UAP's interest, the only plausible meaning of a reserved challenge to "lien priorities" must be construed to mean a right to contest the "timing of payments" under the plan.  There was no need to appeal "lien priorities" to establish the quantum due Agricredit under the plan but only to permit challenge to the plan's schedule of partial payments made concurrently to both Agricredit and UAP.  Second, while the adversary action was pending, UAP agreed to leave the challenged funds with a trustee pending resolution of the case and did not insist on immediate payment under the terms of the Chapter 12 plan.  This supports Agricredit's argument that it intended to appeal its right to payment in full before UAP's receipt of any payment, and that UAP was aware of this meaning of the reservation by Agricredit in the plan.  The USCA concluded that the plan preserves Agricredit's right to appeal the timing of payments to it under the plan.   Finally, because this controversy is not moot and Agricredit preserved its right to appeal the timing of payments to it under the terms of the confirmed plan, the USCA reversed and remanded for proceedings not inconsistent with the disposition.

10)  INSURANCE:  Morgan v. Chicago Title Insurance Co., 02-16141 (9th Cir. May 22, 2003) (unpublished).  Goodwin, Rymer, and T.G. Nelson, Circuit Judges.
         The Morgans brought a diversity action against Chicago Title Insurance Company seeking reimbursement for legal fees in-curred in defense of their title.  The district court granted summary judgment to Chicago Title.
        The USCA reversed and remanded.  Under a title insurance policy, the insurance company owes the insured a "duty to defend" against adverse claims raising the possibility of coverage.  Commerce & Indus. Ins. Co. v. Bank of Hawaii, 73 Haw. 322, 325-26 (1992).  USCA looked to "the language of the particular policy involved" to determine whether Rosetta Dimiceli's adverse claim was possibly covered by the Morgans' policy and whether Chicago Title had a duty to defend.  Id.  Moreover, the Morgans' policy must be construed liberally in favor of the insured and any ambiguities must be resolved against the insurer.  There is no dispute that Dimiceli's adverse claim to the Kauai property fell within the policy insuring provisions.  In addition, the Morgans' April 1994 letter gave sufficient notice to trigger Chicago Title's duty to defend, as the notice provision of the Morgans' policy requires the insured only to notify Chicago Title of the existence of an adverse claim;  it does not require the insured to forward copies of related court documents or to describe the adverse claimant's theory of recovery.  Chicago Title thus had a duty to defend unless Dimiceli's "DROA-based claim" fell within one of the policy's coverage exceptions. 
         Chicago Title relied on three exceptions.  First, it argued that the exception for "easements, liens, or encumbrances, or claims thereof, which are not shown by the public records" is applicable because Dimiceli's DROA was unrecorded.  Although title insurance policies generally do not cover unrecorded title defects, the Morgans' policy specifically limits this exception to unrecorded "easements, liens, or encumbrances."  Dimiceli's DROA-based claim arguably fell outside of these enumerated categories, as the "easement" and "lien" categories are clearly inapplicable while it is unclear under Hawaii law whether the property interest created by a DROA can be characterized as an "encumbrance."  An encumbrance is "any right or interest existing in a third person that diminishes the value of the estate to the grantee, but which is consistent with the passage of the estate to the grantee."  S. Utsunomiya Enterprises, Inc. v. Moomuku Country Club, 75 Haw. 40, 502 (1994).  A DROA may vest equitable and beneficial title in the purchaser.  The property interest which Dimiceli claimed thus may be inconsistent with Kerr's ability subsequently to transfer title to the Morgans.  As it must resolve ambiguities in favor of the insured, the USCA concluded that it could not say there was no possibility that Dimiceli's DROA-based claim fell outside the exception.  Second, the policy excluded adverse claims "not known to the Company, not recorded in the public records … but known to the insured claimant and not disclosed in writing."  Chicago Title points to the fact that Dimiceli alleged in the state court proceedings that the Morgans had knowledge of her adverse title claim, and argues that it could rely on this allegation when determining whether coverage existed.  However, Hawaii law is to the contrary.  Although some state measure the duty to defend solely in reference to the facts alleged in the third party's pleadings, Hawaii law requires insurers to conduct a reasonable investigation into the underlying facts as a precondition to denying coverage.  It was possible that the Morgans did not have knowledge of Dimiceli's adverse claim, despite Dimiceli's pleadings to the contrary, so Chicago Title could not deny coverage under this exception.  The final exception excludes claims "which are not shown by the public records but which could be ascertained by an inspection of the land or by making inquiry of persons in possessions thereof."  Although "parties in possession" clauses are common in title insurance policies, many such policies exclude all claims made by parties in possession.  By contrast, the specific language used in the Morgans' policy excludes only such claims that could be ascertained by inspection or inquiry.  Even had the Morgans inspected the Kauai property in 1991 and asked Dimiceli whether she was the owner, she could have told them (as she apparently told others) that she was a tenant.  For this reason it is possible that Dimiceli's adverse title claim could not be ascertained by inspection or inquiry, and Chicago Title improperly denied coverage under this exception.

11)  INSURANCE / ATTORNEYS' FEES:  Businessmen's Assurance v. Dalton, 02-15996 (9th Cir. May 22, 2003) (unpublished).  Hug, Gibson, and Fisher, Circuit Judges.
         Norma Dalton appealed the district court's judgment in favor of Linda Townsend and its award of attorneys' fees. 
         The USCA affirmed.  Dalton claimed that under Arizona law, Businessmen's Assurance ("BMA") waived compliance with its change of beneficiary procedures by filing this interpleader action, and that the court thus must look to the intent of the insured to determine the beneficiary of Bobby Townsend's life insurance policy.  However, the Arizona Supreme Court has held that an insurer does not waive compliance with its change of beneficiary procedures by filing an interpleader action if the insurer demands compliance with those procedures during the insured's lifetime.  McLennan v. McLennan, 240 P. 339, 340-41 (Ariz. 1925).  BMA twice informed Bobby Townsend that it would require compliance with its procedures before changing his beneficiary.  It thus did not waive compliance with those procedures when it later interpled the proceeds of his policy in an attempt to protect itself from double payment.  The USCA noted that even if it were to find that BMA had waived compliance with its change of beneficiary procedures and thus should look to Bobby Townsend's intent, it would affirm the district court's decision.  The question of a decedent's intent regarding the beneficiary of an insurance policy is a question of fact.  A district court's findings of fact following a bench trial are reviewed for clear error.  Here, the district court found that Bobby Townsend intended that his wife Linda would remain the sole beneficiary of the policy.  The USCA noted that the evidence supported this finding.  Bobby was aware from his correspondence with BMA that the change of beneficiary form would not become effective until he obtained Linda's signature, yet he never asked her to sign the form.  He reconciled with Linda after he attempted to change the beneficiary, and he told Linda that she could use the insurance proceeds to pay off the house that they had purchased after they reconciled and after Bobby learned that he had a terminal illness.  Moreover, Bobby reimbursed Dalton for the payment she had made on the policy.  In light of this evidence, the USCA could not say that the district court clearly erred in finding that Bobby intended his wife Linda to be the sole beneficiary of the policy.
          The USCA also rejected Dalton's challenge to the district court's award of $14,000 in attorneys' fees to Linda.  Dalton claimed that the award will cause her undue hardship, given her limited monthly income of $1,022.  However, the USCA noted that Dalton bears the burden to produce prima facie evidence of financial hardship, and has not done so.  Moreover, as the district court noted, Dalton has no dependents, she has paid off her house and she received $50,000 in proceeds from an unrelated insurance policy issued to Bobby.  The district court thus did not abuse its discretion in awarding $14,000 in fees to Linda.

12)  INSURANCE:  CGU/Hawkeye Security Insurance Company v. Oasis Las Vegas Motor Coach Park, L.P. , 02-15401 (9th Cir. May 22, 2003) (unpublished).  Kozinski, Graber (dissenting), and Berzon, Circuit Judges.
         The USCA noted that Nevada law governs its interpretation of Walchop, Inc.'s insurance policies in this case.  It will "construe the terms of an insurance policy in their plain and ordinary sense and from the viewpoint of one not trained in law."  Vitale v. Jefferson Ins. Co., 5 P3d 1054, 1057 (Nev. 2000) (Per Curiam).  Any ambiguity in an insurance policy "must be construed against the insurer and in favor of the insured."  Id.  An insurer's policy restrictions and exclusion must "clearly and distinct communicate to the insured and the nature of the limitation." Id.  The "Work Performed Exclusion" contained in Walchop's insurance policies excludes coverage for damage to the concrete pads resulting from Walchop's own work but not from the work of a "subcontractor," a term not defined in the policies.  As recognized by the district court, the term is not defined by any applicable Nevada statute either.  Black's Law Dictionary defines a "subcontractor" as one "who is awarded a portion of an existing contract by a contractor."  Nevada Revised Statute Sec. 40.620 describes a "contractor" as a person who "1. develops, constructs, alters, repairs, improves or landscapes a residence, appurtenance or any part thereof."  Section 624.020 defines a contractor as any person who undertakes to construct, alter, repair, add to, subtract from or improve any building highway, road, or other structure.  Nev. Rev. Stat. Sec. 624.020(2).  A "contractor" under this provision, not directly applicable here, "includes a subcontractor or specialty contractor, but does not include anyone who merely furnishes material or supplies without fabricating them into … the work of a contractor."  Id. Section 624.020(3).  In its contract with Torino, Walchop undertook to prepare the subgrade, build the wooden forms, mix and pour the concrete, and perform every other function necessary to construct the concrete pads.  Ready Mix assumed the "mix and pour" portion of Walchop's primary contract.  In doing so, Ready Mix performed work on-site, placing material – concrete – permanently in the pads under construction.  This activity was part of the actual process of building the pads, and part of the construction activity Walchop had been hired to perform.  Looking at the plain meaning of the contract and the presumptions in favor of the insured, the USCA thus found that the district court's conclusion that Ready Mix was a materialman to be in error.  Ready Mix did not merely deliver concrete but took over a portion of Walchop's contract by performing construction work onsite.
       Dissenting, Judge Graber thought that Ready Mix was a supplier and deliverer of materials, not a "subcontractor."  The fact that a materialman supplies a product that is blended to specifications does not turn that materialman into a subcontractor.  Judge Graber thought that a company that mixes batches of concrete and dumps them at the work sites is a supplier of materials and is not performing enough of the construction contract to be a "subcontractor."  She would affirm.

13)  EMPLOYMENT LAW:  In re Albertson's Employment Practice Litigation, 01-35095 (9th Cir. May 6, 2003) (unpublished).  Brunetti, T.G. Nelson, and Rawlinson, Circuit Judges.
       Ten different lawsuits in several different states were brought against Albertson's Inc. by various current and former employees.  The suits occurred between 1996 and 1998, and were consolidated in the District of Idaho as the instant class action.  In September 2000, the district court approved the Settlement Agreement which resolved the litigation.  The Agreement is governed by Idaho law.  The parties appealed different aspects of the district court's rulings regarding the Agreement.  In 01-35095, Albertson's appealed the district court's December 21, 2000 order denying its motion to enjoin the union appellees from allegedly soliciting claims in violation of the Agreement.  In 01-35901, the Webster Law Firm appealed the district court's Sept. 11, 2001 order finding that it violated portions of the Agreement prohibiting class counsel from soliciting claims in the settlement claims procedure, and awarding attorney fees and costs to Albertson's.  In 01-35973, Albertson's cross-appealed the district court's Sept. 11, 2001 order denying Albertson's request for further discovery, and specific injunctive and monetary relief.  In 02-35189, Webster appealed the district court's Jan. 9, 2002 order denying its motion for a stay pending appeal.  The USCA affirmed on all issues raised in each appeal.
         First, in Albertson's appeal in 01-35902, the USCA affirmed all the issues for the reasons given by the district court without elaboration.  Second, in Webster's appeal in 01-35902, Webster argued that the district court erred in finding that the no-solicitation provision of the Agreement prohibited communications about separate lawsuits.  However, the USCA found that this argument failed.  Where a settlement agreement is incorporated into a court order, as with a consent decree, the court reviews de novo the district court's interpretation of the decree, and defers to the district court's factual findings underlying that interpretation unless those findings are clearly erroneous.  The USCA said it must give deference to the district court's interpretation of a consent decree or settlement, based on the district court's extensive oversight of the decree from the commencement of the litigation through the appellate process.  Gates v. Gomez, 60 F.3d 525, 530 (9th Cir. 1995).  The preamble of the Stipulation of Settlement states in relevant part: "this Stipulation of Settlement resolves all claims asserted or that could have been asserted against Albertson's Inc. in the consolidated litigation (as defined below in paragraph 2.7), except as expressly provided below in paragraph 9.5."  The plain language of paragraph 13.3.1 is clear.  In relevant part it reads: "solicitations by any labor organization(s) are not governed by this Agreement unless they are done on behalf of, or in cooperation or together with, plaintiffs' counsel or their agents."  The Settlement Agreement is thus all-encompassing for existing claims or any claims that may be filed.  The new lawsuits contemplate in the solicitation with regard to excluded class members who are ineligible to participate are covered by the Agreement under 13.3.  Counsel is thus precluded from soliciting those claims, and the district court did not err in so finding.  Webster also maintained that the district court's order limiting it from solicitation, violates the First Amendment rights of potential claimants, the unions, and class counsel, to free speech, assembly, and the right to petition for the redress of grievances.  As Webster failed to preserve this argument for appeal, it is waived.  Webster next argued that the district court restricts its ability to communicate effectively with class members generally about the right to bring separate litigation, including thousands of individuals who previously communicated with the Webster Firm, many of whom may have claims that were excluded from or are ineligible for representation under the Agreement.  The scope of injunctive relief is reviewed for an abuse of discretion or application of erroneous legal principles.  As the injunction does not limit counsel's right to inform potential clients about the Agreement or to answer questions regarding the Agreement, it does not hinder ethical obligations.  Thus, the district court did not err in ordering the injunction.  Finally, Webster maintained that the district court erred in awarding Albertson's injunctive relief and attorney's fees and costs based on the Webster Firm's solicitation in violation of the Agreement.  Pursuant to paragraph 13.3.4, there is a requirement that solicitation  must be shown in order to seek monetary and injunctive sanctions.  Because such relief was provided for by the Agreement, the district court did not err.
 Third, Albertson's argued that the district court abused its discretion by denying its motion for further discovery.  The district court reviewed the solicitation allegations and enjoined Webster from specific solicitations on its website and in its letters, forms and questionnaires.  Because the discretion afforded a district court in controlling discovery is broad, requiring "wide latitude," the district court did not abuse its discretion when it denied further discovery.  Albertson's also maintained that the district court abused its discretion by failing to enjoin all of the Webster Firm's communication regarding the claims filing process.  The district court enjoined Webster from making any statements that the claimants "should" file claims, have "the right" to file a separate action or optout, could have Webster represent them in those actions, or could have the unions pay for all litigation expenses.  The district court thus did not err by failing to enjoin all communications.  Finally, the district court did not abuse its discretion in limiting the non-injunctive relief awarded Albertson's to attorney's fees and costs incurred in pursuing the motion to enforce the Agreement.  The determination of appropriate relief is within the district court's discretion.

14)  WRONGFUL DISCHARGE:  Stefano v. Micron Technology, Inc., 01-35983 (9th Cir. May 12, 2003) (unpublished).  Reinhardt, W. Fletcher, and Gould, Circuit Judges.
          Micron hired Stefano in 1986.  Stefano's application stated that his employment could be "terminated at the will or election of Micron" and that Micron was "not expected to demonstrate just cause" if it discharged him.  In 1992 Micron distributed a handbook that included a statement reaffirming Stefano's at-will employment status.  The handbook also forbade "insubordination and disruptive conduct," which it defined as "discourteous … or offensive conduct or language toward … supervisors," including "circulating anonymous notes or letters."  According to Stefano, in March 1998 Micron board member Hess became concerned about the company's product yields.  Hess consulted with Lowrey, a former Micron board member, who advised Hess that the data indicated Micron has having production problems.  Hess asked Lowrey to get current yield data from Micron insiders.  Lowrey called a Micron technician who, in turn, asked Stefano and his colleague Van Hell to fax Hess confidential records on Micron's production and efficiency.  When Stefano faxed Hess the requested materials, Stefano included criticisms of Micron's management by another engineer, Ahmad, stating that the CEO lacked vision and was pursuing self-oriented objectives.  Stefano later acknowledged that after sending the fax, he feared repercussions.  Stefano sent the fax anonymously, but the identities of Stefano, Van Heel, and Ahmad were discovered, and all three were discharged.
         Micron stated that Stefano was discharged for "unethical behavior, disclosing Micron's confidential information to outsiders and causing disruption."  Stefano and Van Heel sued Micron, Hess, Micron CEO Appleton and Micron VP Donnelley, asserting claims including: 1) breach of oral contract; 2) breach of implied covenant of good faith and fair dealings; 3) wrongful discharge in violation of public policy; and 4) slander.  Micron counterclaimed against Van Heel, alleging that he had violated certain terms in his employment contract.  After Stefano filed suit, Idaho Statesman reporter Edwards interviewed Micron counsel Lewis and Micron spokesperson Nash.  Edwards published their statements the next day.  In her deposition, Edwards testified that Lewis said that "Micron has an open-door policy that gives any Micron employee the right to give information to Micron directors," and that the policy allows employees to "take their concerns [to superiors] without fear of retaliation."  Edwards said that Nash told her that "[Micron] directors had the right to request information from employees."
          The district court granted summary judgment to Hess on all claims, and to Micron and the Micron officials on all claims except for Stefano's claim for slander which was based on Appleton's accusation that Stefano had disclosed confidential information to out-siders.  While Stefano's case was pending, Van Heel and Micron settled and their claims against each other were dismissed, each side agreeing to bear its own costs.  Stefano proceeded to trial on the slander claim.  The jury found that Appleton and defamed Stefano, but that Stefano had not proved that Appleton's statements were made with reckless disregard for the truth.  Micron thus had no liability for this claim.  Micron filed a petition seeking $946,027.81 for attorneys' fees pursuant to Idaho state law.  The district court denied the petition, reasoning that Micron was entitled to fees on Stefano's wrongful termination claim, but that it was impossible to compute an award because the bills did not show how much time was spent on Stefano's claims, as contrasted with those of Van Heel, nor did the bills show how much time was spent on Stefano's wrongful termination claim, for which fees were due, as contrasted with his slander claim, for which fees were not due.  Stefano appealed the district court's grant of summary judgment to Micron on his claim of breach of contract, breach of implied covenant of good faith and fair dealing, and wrongful discharge in violation of public policy.  He also requested attorneys' fees. Micron appealed the decision not to award any attorneys' fees to it after it prevailed on summary judgment.
           The USCA affirmed.  Stefano first argued that his at-will employment status was modified by Micron's "open-door policy," which encouraged employees to communicate any concern about Micron to their superiors, including the Board of Directors, without fear of retaliatory action.  Stefano points to: 1) Lewis and Nash's statements that an employee could not be terminated for giving information to a board members or for expressing "concerns" to a superior;  and, 2), "daily conversations and interactions" with superiors showing that criticism was welcome.  Stefano also argued that his at-will status was modified by Micron's actual practice of discharging employees only for cause.  Finally, Stefano argued that because Hess is a Micron board member, a request by Hess for information implicitly carried a promise that Stefano would not be terminated for responding.  The USCA began with this fundamental premise of Idaho state law:  Idaho law provides that "unless an employee is hired pursuant to a contract which specifies the duration of the employment or limits the reasons for which an employee may be discharged, the employment is at the will of either party."  Sorenson v. Comm Tek, Inc., 799 P.2d 70, 72 (Idaho 1990).  "A limitation may be implied if, from all the circumstances surrounding the employment relationship, a reasonable person could conclude that both parties intended that the employer's … right to terminate the employment relationship at-will had been limited by the implied-in-fact agreement of the parties." Id.  (quoting Metcalf v. Intermountain Gas Co., 788 P.2d 744, 746 (Idaho 1989))  Metcalf involved an employee who argued that because of a sick-leave benefit set out in the manual issued by her employer, her at-will status was modified by an agreement that she could not be terminated for extended use of that benefit where she did not exhaust the sick-leave time available to her.  Metcalf held that the employee's at-will status was modified where the benefit was described in the handbook, the employee relied on it, and the benefit was part of the employee's compensation package.  The USCA noted that the narrow exception to the at-will doctrine outlined in Metcalf has no application here.  In Stefano's case, the employee handbooks issued by Micron were explicit about the at-will nature of his employment.  Even if Micron did not purport to embrace an "open-door policy," Stefano's furtive behavior suggests a lack of confidence about its existence.   Nor, unlike in Metcalf, was the alleged policy an earned benefit accrued as the result of an employment contract.  Even assuming the existence of the "open-door policy," Metcalf does not support Stefano's claim that the at-will relationship had been impliedly modified.  Stefano urged that under Fed. R. Evid. 801(d)(2) Lewis and Nash's statements should be regarded as statements against interest because they are admissions that Micron modified his at-will status.  They may be admissions against interest, but at most, they show that Micron had an "open-door policy."  But such a policy did not bring Stefano within the Metcalf exception to at-will employment.  The "open-door policy," which we credit for summary judgment purposes, did not modify Stefano's at-will status.  As for Stefano's argument that Micron's testimony showed that Micron had a practice of terminating only for cause, no Idaho court has held that such a practice modifies at-will employment to make it terminable only for cause.  In Atwood v. Western Construction, Inc., 923 P.2d 479, 485 (Idaho Ct. App. 1996), the court said it would not "consider evidence that a company does not usually fire employees without a good reason as by itself establishing that the company does not maintain an at-will employment policy."  Atwood does not help Stefano.  He failed to point out any relevant considerations other than the alleged practice, and Atwood makes it plain that this factor alone does not modify an employee's at-will status.  Finally, Stefano maintained that Hess's request carried an implicit promise that Stefano could not be discharged for responding to the request.  But Hess did not request the kind of critical commentary that was supplied along with the statistical data, and so any implied promise did not reasonably extend to Stefano's actions here.  There was no error in the grant of summary judgment to Micron on the claim for breach of contract.  The USCA held that if Micron had an "open-door policy," and even if Stefano's conduct in part could be viewed as the kind of conduct the policy was meant to encourage, Stefano's claim for breach of contract must fail, because Micron did not modify Stefano's at-will employment status, and because Stefano's circulation of comments critical of the CEO went beyond what had been requested.
        Second, Stefano appealed the district court's grant of summary judgment to Micron on the claim for breach of implied covenant of good faith and fair dealing.  First, he argued that the discharge was a result of bad faith.  Second, he says he was promised that Micron would maintain an "open-door policy," and that promise was a benefit due to him under the implied covenant.  However, both arguments failed under Idaho law.  First, Metcalf rejected the amorphous concept of "bad faith" as the standard for determining whether the covenant of good faith and fair dealing has been breached.  Second, in explaining what "benefits" are protected by the implied covenant, Metcalf stated that the covenant does protect an employee from a discharge based on an employer's desire to avoid the payment of benefits already earned by the employee, such as sales commission but not the tenure to earn pension and retirement benefits.  Metcalf, 778 P.2d at 749.  Even if Micron did not fulfill its promise to maintain an "open-door policy," Stefano had no basis for a claim of breach of the implied covenant, because the "open-door policy" did not involve a benefit that was "earned by the employee."  There was no error in the district court's grant of summary judgment to Micron on Stefano's claim of breach of implied covenant.
        Third, Stefano appealed the district court grant of summary judgment to Micron on his claim alleging wrongful discharge in violation of public policy.  Under Idaho law an at-will employee may not be discharged for a reason contravening public policy.  Stefano argued that Idaho law gives a director of a corporation free access to information from employees, and that public policy dictates that an employee cannot be discharged for complying with a request for such information.  Stefano also argued that as a Micron share-holder himself, he had a right to ensure that his property was well managed.  Stefano's case did not fall within any proper exception.  He offered critical commentary that went beyond merely providing information and ensuring that his property was well managed.  His transmittal of Ahmad's hostile commentary was not responsive to Hess's request.  Micron's decision to discharge Stefano for providing such hostile commentary did not violate public policy.
       Fourth, the USCA found that because there was no error in the district court's grant of summary judgment to Micron, it denied Stefano's request for attorneys' fees pursuant to Idaho Code Sec. 12-120(3).
       Fifth, Micron appealed the district court's determination that no attorneys' fees were due Micron pursuant to the same provision of the Idaho Code.  The district court explained that Micron was not entitled to fees on the slander claim because the jury found that Appleton had slandered Stefano, but not recklessly.  The court also noted that when Micron and Van Heel settled, each side was to bear its own costs;  Micron thus was not entitled to fees related to Van Heel.  Micron was entitled only to fees for prevailing on Stefano's wrongful termination claims, but the court noted that since neither firm representing Micron broke out the fees they incurred, the court would be forced to speculate about those sums.  The court concluded that under the circumstances an award of fees is not warranted.  Micron argued that if the available information was insufficient to allow for an accurate computation, the district court should have requested more information or simply reduced the fee to a reasonable amount.  Fischer v. SJB-P.D., Inc. 214 F.3d 1115, 1121 (9th Cir. 2000).  In Fischer the court said it appeared that "more detailed records were readily available."  Here, however, it appears that the court already received the most detailed records available, and they did not allow it to segregate fees.  Fischer thus did not apply.  The district court was within its discretion when it declined to speculate, and any further submission would not have cured that problem.  The district court has already determined it is not possible to segregate the fees that related to the claims on which Micron prevailed.  The decision to award no fees was not an abuse of discretion.

15)  AMERICANS WITH DISABILITIES ACT:  Hall v. Raytheon Missile Systems,  02-16500 (9th Cir. May 19, 2003) (unpublished). Pregerson, Reinhardt, and Graber Circuit Judges.
        Hall appealed pro se the district court's summary judgment for Raytheon on his Title VII and American With Disabilities Act claims.  The USCA affirmed.  First, the district court properly granted summary judgment on Hall's retaliation claim under Title VII because Hall failed to raise a genuine issue of material fact as to whether there was a causal link between his termination and an interview he gave to the EEOC on behalf of another employee five years earlier, or that his termination was otherwise pretextual.  Second, the district court properly granted summary judgment on Hall's ADA claim because Hall failed to raise a genuine issue of material fact as to whether he was terminated due to a disability rather than for falsely reporting TOW missile calibrations.  Finally, the district court properly denied Hall's Fed. R. Civ. P. 56(f) motion to extend the time for discovery.

16)  IMMIGRATION LAW:  Bouzouad v. Ashcroft, 02-70749 (9th Cir. May 9, 2003) (unpublished).  Schroeder and Graber, Circuit Judges, and Singleton, District Judge.
         Bouzouad petitioned for review of the BIA's decision affirming the Immigration Judge's denial of his application for asylum.  He maintained that he worked as a singer at weddings in Algeria and that, in 1997, received threats from "terrorists" that he should stop singing because it was "against Islam."  He was told that if he did not stop, his tongue would be cut out or he would be killed.  The IJ's decision, summarily affirmed by the BIA, correctly determined that the petitioner did not show past persecution or a well-founded fear of future persecution on account of membership in a particular social group or innate characteristics.  He thus was not entitled to asylum.  For similar reasons, he was unable to satisfy the statutorily higher burden, for withholding of removal, that it was more likely than not, if he returned to Algeria, that he would suffer persecution on account of a protected ground.  He also failed to establish eligibility for relief under the Convention Against Torture which requires a showing that it is more likely than not that he would be subject to physical and mental abuse at the hands of the government, or a group the government is not controlling.

17)  IMMIGRATION LAW:  Ayala-Valverde v. Ashcroft, 02-70765 (9th Cir. May 22, 2003) (unpublished).  Browning, B. Fletcher, and Silverman, Circuit Judges.
         Ayala-Valverde, a native and citizen of Mexico, petitioned for review of the BIA's dismissal of her appeal from an IJ's order finding her removable for alien smuggling.
        The USCA denied the petition.  Ayala argues that the removal order violated due process.  But the record established that she received notice of the government's proposed action, and was afforded a full and fair hearing.  The pertinent statute renders removable any alien who knowingly encourages, induces, abets, or aids any other alien in unlawful entering the United States.  8 USC Sec. 1227(a)(1)(E)(i).  Upon reviewing the record, the USCA was satisfied that the government carried its burden of proving by clear and convincing evidence that Ayala was removable.  To the extent, if any, that one construes Ayala's due process argument as implicating substantive due process rights, her argument failed because she failed to identify a fundamental liberty interest allegedly affected by her removal proceedings.  In the alternative, she argued that she is eligible for cancellation of removal.  But, Ayala never raised this claim before the BIA.  She thus had not exhausted her administrative remedies and the USCA lacked jurisdiction to review her argument.  But even if the court entertained Ayala's argument, she would not be eligible for cancellation of removal having previously been granted a waiver of deportation.  Her claim would fail for lack of prejudice, a necessary predicate for any due process claim.

18)  IMMIGRATION LAW:  Algarne v. Ashcroft, 02-72045 (9th Cir. May 20, 2003) (unpublished).  Pregerson, Reinhardt, and Graber, Circuit Judges.
         Algarne, a native and citizen of the Philippines, petitioned for review of the BIA's decision denying as untimely his motion to reopen deportation proceedings after the BIA affirmed an immigration judge's denial of his request for suspension of deportation.  Because the transition rules applied, Socop-Gonzales v. INS, 272 F.3d 1176, 1183 (9th Cir. 201) (en banc), the USCA had jurisdiction under 8 USC Sec. 1105a(a).  It reviewed for abuse of discretion the denial of the motion to reopen and reviewed de novo claims of due process violations.  The USCA granted the petition for review and remanded with directions to grant Algarne's motion to reopen.  The filing period for a motion to reopen is subject to equitable tolling.  Because the record demonstrated that Algarne exercised reasonable diligence by relying on false assurances from his former attorney that his appeal was still pending before the Court of Appeals, equitable tolling was warranted, and the BIA improperly denied Algarne's motion as untimely.  On the merits of h