2)  ANTITRUST:  Glen Holly Entertainment, Inc. v. Tektronix, Inc., 01-56447 (9th Cir. Sept. 9, 2003).  In this private antitrust action, with supplemental state law claims, brought by Glen Holly Entertainment ("Digital Images") against Tektronix and Avid Technology, the district court dismissed Digital Images' antitrust and promissory estoppel claims, as well as some of its fraud and negligent misrepresentation claims;  it concluded that Digital Images lacked "antitrust standing" in that the injury did not qualify as antitrust injury; the district court subsequently granted summary judgment in favor of the defendants on Digital Images' remaining fraud and negligent misrepresentation claims;  the USCA reversed the dismissal of Digital Images' state and federal antitrust claims and remanded with instructions to reinstate those claims;  it upheld the district court's dismissal of Digital Images' allegations of promissory estoppel, fraud and negligent misrepresentation; and, it reversed the district court's order granting Tektronix summary judgment with regard to the fraud and negligent misrepresentation claims based on Tektronix's "Version 6.0" statement, but affirming in all other respects. Reinhardt, Trott (author), and Silverman, Circuit Judges.  J. Makoff of San Francisco, CA, for the plaintiff-appellant;  S. Gorinson of Washington, DC, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

3)  INTERNET LAW / JURISDICTION:  Gator.com Corp. v. L.L. Bean, 02-15035 (9th Cir. Sept. 2, 2003).  A Maine corporation's substantial mail-order and internet-based e-commerce contacts with California were sufficient to support an assertion of general personal jurisdiction;  the USCA noted that it is "increasingly clear that modern businesses no longer require an actual physical presence in a state in order to engage in commercial activity there. With the advent of e-commerce, businesses may set up shop …  without ever actually setting foot in the state where they intend to sell their wares.  Our conceptions of jurisdiction must be flexible enough to respond to the realities of the modern marketplace."  Ferguson (author), Brunetti, and Tashima, Circuit Judges.  M. Traynor of San Francisco, CA, for the plaintiff-appellant;  P. Brann of Lewiston, Maine, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

4)  ELECTIONS:  Southwest Voter Registration Education Project v. Shelley, 03-56498 (9th Cir. Sept. 23, 2003).  This matter concerning the recall election of the Governor of California was reheard en banc by the USCA;  the en banc panel affirmed the district court's denial of a preliminary injunction in plaintiffs' action alleging that the use of obsolete punch-card voting systems in the October 7, 2003, California special election in some counties (Los Angeles, Mendocino, Sacramento, San Diego, Santa Clara and Solano) rather than others violates the Equal Protection Clause of the US Constitution and Sec. 2 of the Voting Rights Act, 42 USC Sec. 1973;  at the special election, California voters were to be asked to vote on the recall of the California governor and for or against two state propositions:  Proposition 53, a proposed amendment to the California Constitution that would dedicate part of the state budget each year to state and local infrastructures, such as water, highway, and park projects; and Proposition 54, a proposed amendment to the California Constitution that would prevent the state from collecting or retaining racial and ethnic data about health care, hate crimes, racial profiling, public education, and public safety;  the en banc panel held that the district court did not abuse its discretion in denying the preliminary injunction as the plaintiffs had not shown a clear probability of success on the merits of their equal protection claim that voters in counties using punch-card machines will have a comparatively lesser chance of having their votes counted than voters in counties using other technology;  it also concluded that the plaintiffs had shown a possibility of success on the merits, but not a strong likelihood of success on the merits, of their claim that the disparate impact of punch-card ballots on minority voters violates Sec. 2 of the Voting Rights Act;  finally, the panel concluded that the district court did not abuse its discretion in ruling that the plaintiffs would suffer no hardship that outweighed the stake of California and its citizens in having the election go forward as planned and as required by the California Constitution.  Schroeder, Kozinski, O'Scannlain, Kleinfeld, Tashima, Silverman, Graber, McKeown, Gould, Tallman, and Rawlinson. Per Curiam.  W. Lerach of San Diego, CA, for the plaintiffs;  W. Sullivan of San Diego, for the defendants.(Download the full text of this decision at www.cc9.uscourts.gov/)
 

5)  CAMPAIGN FINANCE REFORM:  Montana Right to Life Association v. Eddleman, 00-35924 (9th Cir. Sept. 11, 2003).  Two challenged provisions in a campaign finance reform ballot initiative, one lowering maximum dollar amounts political action committees ("PACs") and individuals may contribute to a political candidate, and the other limiting aggregate dollar amounts a candidate may receive from all PACs combined, do not violate the First Amendment;  dissenting in part, Judge Teilborn agreed with the majority that Montana has a sufficiently important interest in preventing corruption and the perception of corruption in Montana elections, and did not disagree with the majority in upholding the individual contribution limits placed on individuals and PACs; such limits, he thought, were closely drawn to the significant interest of preventing improper influence, and quid pro quo arrangements arising from large contributions; where Judge Teilborn departs from the majority is on the constitutionality of the aggregate PAC contribution limit:  he disagrees that the State demonstrated a "genuine threat to its important government interests" or "employ[ed] means closely drawn to avoid unnecessary abridgment" of protected activity.  Alarcon and Silverman (author), Circuit Judges, and Teilborg (dissenting in part), District Judges.  J. Bopp of Terre Haute, IN, for the plaintiff-appellant;  B. Morris of Helena, MT, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)
 

6)  ELECTIONS:   Idaho Coalition United For Bears v. Cenarussa, 02-35030 (9th Cir. Sept. 8, 2003).  Idaho's geographic distribution requirement for qualifying initiatives to appear on the ballot favors residents of sparsely populated areas over those of more densely populated areas in their respective efforts to participate in the process of qualifying initiatives for the ballot;  the USCA upheld the district court's ruling that this unequal treatment violates the Equal Protection Clause of the Fourteenth Amendment.  Reinhardt (author), W. Fletcher, and Gould, Circuit Judges.  DAG B. Kane of Boise, ID,  for the defendant;  P. Grant of Boise, ID, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)
 

7)  ELECTIONS:  Democratic Party of Washington v. Reed, 02-35422 (9th Cir. Sept. 15, 2003).  In a decision compelled by California Democratic Party v. Jones, 530 US 567 (2000), the USCA held that Washington's "blanket" primary, in which voters in general elections choose candidates without being restricted to candidates of a particular party, unconstitutionally restrained supporters of the Democratic, Republican, and Libertarian parties in their freedom of association.  Kleinfeld (author) and McKeown, Circuit Judges, and Breyer, District Judge.  D. McDonald of Seattle, WA, J. White of Kirkland, WA, for the appellants;  J. Pharris and J. Johnson of Olympia, WA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)
 

8)  BANKRUPTCY:  In re Lopez, 02-15774 (9th Cir. Sept. 26, 2003).  A creditor may not enforce a post-bankruptcy discharge agreement entered into with a debtor retaining the collateral pursuant to its rights under In re Parker, 139 F.3d 668 (9th Cir. 1998).  Hug (author), Gibson, and Fisher, Circuit Judges.  AFPD M. Powell of Reno, NV, for the appellant;  AUSA R. Rachow of Reno, NV, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)
 

9)  BANKRUPTCY / TAXATION:  In re Mantz, 02-16113 (9th Cir. Sept. 16, 2003).  After the appellants filed for Chapter 11 bankruptcy, the California State Board of Equalization ("SBE") filed a proof of claim for over $1 million in taxes, interest, and penalties;  the appellants objected to the SBE's proof of claim;  the bankruptcy court found that it lacked subject matter jurisdiction under 11 USC Sec. 505(a)(2)(A) to consider the objection as the amount of state tax liability had already been adjudicated;  alternatively, it found that res judicata barred relitigation of the state tax liability;  the district court affirmed the bankruptcy court's jurisdictional holding;  the USCA reversed and remanded for further proceedings, holding that because there was no final administrative determination of appellants' tax liability prior to the commencement of the bankruptcy proceedings, the bankruptcy court had jurisdiction;  it further held that res judicata did not prevent the bankruptcy court from redetermining appellants' tax liability.  D.W. Nelson and W. Fletcher (author), Circuit Judges, and Alsup, District Judges.  B. Bartlett of Carson City, NV, for the appellants;  P. Duncan of Las Vegas, NV, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

10)  TAXATION / BANKRUPTCY:  IRS v. Snyder, 02-15618 (9th Cir. Sept. 15, 2003).  An IRS claim for delinquent taxes secured outside of bankruptcy by a lien on a debtor's interest in an ERISA-qualified pension plan is not secured in bankruptcy "by a lien on property in which the bankruptcy estate has an interest" under  11 USC Sec. 506(a) because a debtor's interest in an ERISA-qualified plan is excluded from the bankruptcy estate pursuant to 11 USC Sec. 541(c)(2).  Hawkins and W. Fletcher (author), Circuit Judges, and King, District Judge.  M. Melone of San Francisco, CA, for the creditor;  R. Kolb of Antioch, CA, for the debtor.(Download the full text of this decision at www.cc9.uscourts.gov/)

11)  TAXATION / QUALIFIED IMMUNITY:  Meredith v. Erath, 02-55021 (9th Cir. Sept. 8, 2003).  An IRS agent was not entitled to qualified immunity on claims of excessive force and wrongful detention where a reasonable agent would know that such conduct violates the Fourth Amendment;  the IRS agent was entitled to qualified immunity for the detention of one of the plaintiffs during a search of a building in which she lived;  dissenting in part, Judge Meskill thought that while it might be clearly established that handcuffing a person in a manner that causes him unnecessary pain may constitute an excessive use of force prohibited by the Fourth Amendment, it is not clearly established that overly tight handcuffing constitutes a violation of a person's right to be free from unlawful detention;  Judge Meskill thus would find that the agent was entitled to qualified immunity as to all aspects of the plaintiff's unlawful detention claim  Meskill (dissenting in part), Thompson (author), and Berzon, Circuit Judges. G. Wolfinger of Washington, DC, for the defendant-appellant; G. Bybee pro per.  (Download the full text of this decision at www.cc9.uscourts.gov/)
 

12)  ENVIRONMENTAL LAW:  Environmental Defense Center v. EPA, 00-70014 (9th Cir. The opinion and dissent filed on Jan. 14, 2003 were vacated and replaced on Sept. 15, 2003).  The USCA remanded a EPA rule issued pursuant to the Clean Water Act, to control pollutants introduced into the nation's waters by storm sewers, because the EPA failed to require review of Notice of Intents ("NOIs"), which are the functional equivalents of permits under the Phase II General Permit option, and also failed to make NOIs available to the public or subject to public hearings which contravenes the express requirements of the Clean Water Act;  Judge Tallman concurred in the majority's opinion except for Sec. II.B, which remands the Phase II Rule;  he dissented with regards to that part because its system of general permits is arbitrary and capricious;.  Judge Tallman believes that the EPA's design of a system of general permits supported by notices of intent was a reasonable exercise of EPA's administrative discretion;  the court must, he said, give deference to EPA's interpretation of the laws it is charged with enforcing, so long as EPA's reading of those laws is permissible; because the EPA acted reasonably in designing a National Pollutant Discharge Elimination system based on general permits and supported by NOIs, Judge Tallman dissented from the majority's decision to remand that portion of the Phase II Rule.  Browning (author), Reinhardt, and Tallman (dissenting in part), Circuit Judges.  V. Clark of Santa Barbara, CA, for the petitioner;  A. Frank of New York, NY, for the intervenor;  J. Cruden of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

13)  ENVIRONMENTAL LAW:  Big Meadows Grazing Assoc. v. USA, 02-35764 (9th Cir. Sept. 15, 2003).  Big Meadows sold the United States a conservation easement so that part of its property could be enrolled in the Wetlands Reserve Program, which provides landowners an opportunity to protect wetlands on their property;  when Big Meadows and the government later disagreed on what conservation activities would occur on the property, the government began unilaterally implementing its proposed conservation plan;  Big Meadows sought a declaratory judgment that implementation of the conservation plan without its approval would violate 16 USC Sec. 3837a;  the district court granted summary judgment for the government, ruling that it need not obtain Big Meadows' approval before implementing the conservation plan;  the USCA affirmed on the grounds that Sec. 3837a neither requires Big Meadows' assent to the plan nor requires that the agreement to implement a conservation plan be made apart from the easement.  Browning, Alarcon, and Clifton (author), Circuit Judges.  K. Saxby of Kalispell, MT, for the plaintiff;  R. Klotz of Washington, DC, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

14)  ENVIRONMENTAL LAW:  Laub v. U.S. Dept. of the Interior, 02-15104 (9th Cir. Sept. 8, 2003).  An action under the National Environmental Protection Act against state and federal officials challenging a proposed plan for managing California Bay-Delta water resources is ripe for judicial review before site-specific action is taken;  the record was insufficient to ascertain whether the state defendants' participation in the water management program is sufficiently independent of federal control to escape the requirements of NEPA;  the USCA thus reversed the district court's ruling that certain land and water acquisitions undertaken pursuant to the program did not constitute a federal action and remanded with instructions to permit discovery on this question.  Noonan, Thomas (author), and Clifton, Circuit Judges.  N. McDonald of Sacramento, CA, and C. Buckley of Washington, DC, for the appellants;  T. Sansonetti of Washington, DC, for the federal appellees; R. Frank of Sacramento, CA, for the state appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

15)  WATER USE LAW:  USA v. Alpine Land & Reservoir Co., 01-16694 (9th Cir. Sept. 4, 2003).  The Nevada State Engineer has broad discretion under state law to determine whether a change in place of use of existing water rights to supply needed water to wetlands will have a detrimental impact on the public interest, or whether a hydrological or other study is necessary before approving such a transfer;  in light of the State Engineer's discretionary authority, his obligation to rule on pending applications, and the administrative record, he acted well within his discretion in approving the U.S. Fish and Wildlife's Service eight transfer applications without first obtaining the cumulative impacts study urged by the County of Churchill and City of Fallon, Nevada.  Sneed, McKeown, and Paez (author), Circuit Judges.  R. Campbell of Reno, NV, for the appellants;  AAG T. Sansonetti of Sacramento, CA, and DAG M. Wolz of Carson City, NV, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

16)  AMERICANS WITH DISABILITIES ACT:  Fraser v. Goodale, 01-36018 (9th Cir. Sept. 8, 2003).  An Americans with Disabilities Act plaintiff presented a genuine issue of material fact that her very onerous and life-threatening type I insulin-dependent diabetes substantially limited her daily activity of eating;  contents of a diary could be considered at the summary judgment stage;  dissenting, Judge Tallman thought that under a dictionary definition of "eat" ("to take in through the mouth as food: ingest, chew, and swallow in turn) nothing in the record suggests that the plaintiff has any difficulty ingesting food, chewing food, or swallowing food; it thus follows, Judge Tallman thought, that she is not substantially limited in the major life activity of eating.  Lay, Wallace (author), and Tallman (dissenting), Circuit Judges. C. Crispin of Portland, OR, for the plaintiff; J. Blatt of Portland, OR, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  LABOR ARBITRATION:  Equal Employment Opportunity Commission  v. Luce, Forward, Hamilton & Scripps, 00-57222 (9th Cir. September 30, 2003).  Lagatree was refused employment as a legal secretary by a law firm because he refused to sign an agreement to arbitrate all claims arising from his employment;  he unsuccessfully sued the firm in state court; however, on his behalf, the EEOC brought this action against the firm for retaliation in violation of Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the Age Discrimination in Employment Act of 1967, and the Equal Pay Act of 1963;  the EEOC sought make-whole relief, lost wages and benefits, as well as emotional distress and punitive damages for Lagatree;  it also sought a permanent injunction forbidding the firm from requiring that employees sign arbitration agreements as a condition of employment, and engaging in unlawful retaliation;  the district court refused to award make-whole relief and rejected the EEOC's request for injunctive relief;  however, relying on Duffield v. Robertson Stephens & Co., 144 F.3d 1182 (9th Cir. 1998), it enjoined the firm from requiring applicants to agree to arbitrate Title VII claims and from enforcing existing agreement to arbitrate those claims;  a three-judge Ninth Circuit panel reversed the grant of injunctive relief, holding that "employers may require employees to sign agreements to arbitrate Title VII claims as a condition of their employment."  Concluding that Lagatree had not engaged in protected activity in refusing to sign the agreement, the panel also rejected the EEOC's argument that the firm's refusal to hire Lagatree because of his refusal to sign the agreement constituted illegal retaliation;  rehearing the matter en banc, the USCA overruled Duffield and because it was based on Duffield, reversed the district court's judgment insofar as it granted the EEOC's request for injunctive relief;  with regard to the EEOC's request for injunctive relief on its retaliation theory, the USCA remanded this issues to the district court to address in the first instance.  Dissenting in part, Judge Pregerson, joined by Judges Schroeder and Reinhardt, thought that in overruling Duffield, the majority allows employers to force their employees to chose between their jobs and their right to bring future Title VII claims in court, which is no choice at all.  Dissenting, Judge Reinhardt, joined by Judge Pregerson, wrote separately from Judge Pregerson dissent to emphasize that the battle to secure the right to a jury trial in employment discrimination cases was long and hard fought and resulted in the Civil Rights Act of 1991, but that the majority now enacts the failed Republican substitute and, by judicial action, effectively deprives American workers of their hard-won legislative victory.  Schroeder, Pregerson (dissenting in part), Reinhardt (dissenting), Rymer, Tashima (author), Silverman, Graber, McKeown, W. Fletcher, Tallman, and Clifton, Circuit Judges.  C. Bird of San Diego, CA, for the defendant-appellants;  D. Bernstein of Washington, DC, for the plaintiff-appellee;  C. Palefsky of San Francisco, CA, for the intervenor. (Download the full text of this decision at www.cc9.uscourts.gov/)

18)  RENT CONTROL / PROPERTY:  Topa Equities, Ltd. v. Los Angeles, 02-56034 (9th Cir. Sept. 8, 2003).  Los Angeles's Rent Stabilization Ordinance (which regulates "rents so as to safeguard tenants from excessive rent increases") is a generally-applicable rent control ordinance that does not unduly interfere with federal housing programs;  it is not preempted either expressly or on conflict grounds.  Thompson (author), Trott, and Tallman, Circuit Judges.  S. Azad and  K. Davis of Los Angeles, CA, for the plaintiff-appellant;  K. Fong of Los Angeles, CA, for the defendant-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

19)  COMMERCIAL LAW:  Albingia Versicherungs A.G. v. Schenker Intl., Inc., 01-16558 (9th Cir. Sept. 15, 2003).  In a challenge to a waybill's limitation of liability brought under state law, the district court had supplemental jurisdiction over the state law claims because the complaint was properly removed to the district court due to the federal question asserted by a Warsaw Convention claim.  Kleinfeld (author) and Rawlinson, Circuit Judges, and Quackenbush, District Judge.  M. Lodwick of Santa Ana, CA, for the appellants;  J. Nebel of San Francisco, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

20)  LABOR LAW:  Moreau v. Air France, 02-15872 (9th Cir. Sept. 15, 2003).  The district court correctly concluded that the defendant should not be considered a "joint employer" of the employees of airport ground service companies for purposes of the Family and Medical Leave Act and the California Family Rights Act.  Hill, T.G. Nelson, and Hawkins (author), Circuit Judges.  P. Shiu of San Francisco, CA, for the plaintiff;  M. Jacoby of Princeton, NJ, for the defendants;  I. Solet of Washington, DC, for the intervenor. (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  LABOR ARBITRATION:  Service Employees Intl. Union v. St. Vincent Medical Center, 02-56058 (9th Cir. Sept. 19, 2003).  A dispute between a union and an employer was primarily contractual, not representational and an arbitration clause in the union-employee agreement was susceptible of an interpretation that covered the present dispute;  the USCA thus reversed the district court's order dismissing with prejudice the union's complaint to compel arbitration and remanded for entry of an order compelling arbitration of the alleged contractual violations.  Pregerson (author), Tashima, and Clifton, Circuit Judges.  B. Sachs of Washington, DC, for the plaintiffs;  P. Ross of San Francisco, CA, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

22)  INSURANCE / CONTRACTS / CONTEMPT:  Kirkland v. Legion Insurance Company, 02-35490 (9th Cir. Sept. 12, 2003).  Although the district court never formally approved the settlement agreement in this case, its order directing Legion to pay the settlement amounts into the court registry to resolve an anticipatory repudiation claim effectively indicated its approval of the settlement;  a subsequent order, holding Legion in contempt for failure to pay the money into the court's registry and directing Legion to pay an additional $5,000 per day until the full amount is deposited with the court, had the characteristics of a final judgment and was thus appealable; the insurer's rehabilitation order was not an anticipatory repudiation of an executory contract under Oregon contracts law.  Wallace (author), Trott, and Tashima, Circuit Judges. R. Lee of Portland, OR, for the defendant-appellant;  M. Farnell of Portland, OR, for the plaintiffs-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

23)  EMPLOYMENT LAW / URINE TESTS / NEGLIGENCE:  Ishikawa v. Delta Airlines, 01-35863 (9th Cir. Sept. 12, 2003).  An airline employee's state common law tort action against a negligent urine testing laboratory was not preempted by the federal Omnibus Transportation Employee Testing Act of 1991 and related FAA regulations;  the employee had been fired for "failing" a drug-detection urine test, but the test had been negligently  performed and the result had no validity whatsoever.  Kleinfeld (author) and McKeown, Circuit Judges, and Breyer, District Judge.  J. Weber of Anaheim, CA, for the appellant;  M. McDougal of Portland, OR, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

24)  LABOR LAW:  NLRB v. Intl. Brotherhood of Elec. Workers, Local 48, 01-71769 (9th Cir. Sept. 16, 2003).  The USCA up-held a National Labor Relations Board ("NLRB") order that a union's forcing a member to pay Market Recovery Program funds for work done on Davis-Bacon Act projects is inimical to public policy and thus not "periodic dues" under the National Labor Relations Act.  Brunetti (author), T.G. Nelson, and Rawlinson, Circuit Judges.  S. Goldstein of Washington, DC, for the petitioner;  N. Malbin of Portland, OR, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

25)  EMPLOYMENT DISCRIMINATION:  Hernandez v. Spacelabs Medical Inc., 02-35615 (9th Cir. Sept. 11, 2003).  In an employment discrimination suit under Title VII of the Civil Rights Act of 1964 and the Washington Law Against Discrimination, the USCA upheld the district court's summary judgment on denial of promotions claims because none of the instances of alleged discrimination occurred within the limitations period;  the USCA reversed on retaliatory firing claims, finding sufficient record evidence to allow a reasonable jury to infer that the plaintiff was fired in retaliation for his complaint.  Reinhardt, W. Fletcher (author), and Gould, Circuit Judges.  R. Guarnero of Seattle, WA, for the appellant;  M. Busto of Bellevue, WA, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

26)  LANDLORD TENANT LAW:  Giebeler v. M&B Associates, 00-17508 (9th Cir. Sept. 15, 2003).  The Fair Housing Amendments Act, 42 USC Sec. 3601, et seq., requires apartment owners to reasonably accommodate a tenant's disability by assessing individually the risk of nonpayment created by his specific proposed financial arrangement, rather than inflexibly applying a rental policy that forbids co-signers.  Thompson, W. Fletcher, and Berzon (author), Circuit Judges.  E. Brancart of Pescadero, CA, for the appellant;  D. Sylva of Campbell, CA, for the appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

27)  NATIVE AMERICAN LAW / PROPERTY RIGHTS:  City of Saint Paul v. Evans, 02-35958 (9th Cir. Sept. 25, 2003).  The City of Saint Paul Alaska and a Native corporation reached a settlement of their respective land rights on St. Paul Island;  the federal government approved the settlement;  the City later chafed under the strict limits on its ability to make commercial use of its land and filed this lawsuit to challenge the validity of the settlement;  the district court found that the City's claims were barred by the six-year statute of limitations that Alaska law imposes on lawsuits by municipalities;  the district court nevertheless permitted the City to raise the identical allegations as defenses to the Native corporation's counterclaims;  the USCA did not reach the merits of the counterclaims and defenses; rather, because the City's affirmative defenses are likewise barred by the statute of limitations, the USCA affirmed on that ground.  Pregerson, Canby, and McKeown (author), Circuit Judges.  R. Baird of Anchorage, AK, for the appellant;  D. Strandberg of Anchorage, AK, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

28)  PROPERTY / CONSTITUTIONAL LAW:  Hotel & Motel Association of Oakland v. City of Oakland, 02-15220 (9th Cir. Sept. 17, 2003).  Two City of Oakland ordinances placing maintenance and habitability requirements on hotels, motels, and rooming houses were not unconstitutionally vague on their face, did not result in unconstitutional takings under the Fifth Amendment, and did not violate due process and equal protection.  Noonan, McKeown (author), Rawlinson, Circuit Judges.  F. Weiser of Los Angeles, CA, for the appellants;  J. Russo of Oakland, CA, for the appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

29)  ADMINISTRATIVE LAW:  Public Citizen Inc. v. Mineta, 02-70303 (9th Cir. Sept. 15, 2003).  For purposes of calculating the 59-day period in which a petition for review must be filed, an order promulgating a regulation of the National Highway Traffic Safety Administration has not been "issued" until it has been filed with the Office of the Federal Register and thus made available for public inspection.  Reavley, Tashima, and Paez (author), Circuit Judges.  M. Tankersley of Washington, DC, for the petitioners;  H. Byron of Washington, DC, for the respondent;  E. Jones of Washington, DC, for the respondent-intervenors.(Download the full text of this decision at www.cc9.uscourts.gov/)

30)  EDUCATION LAW:  M.L. v. Federal Way School Dist., 02-35547 (9th Cir. Sept. 2, 2003).  Individuals with Disabilities in Education Act ("IDEA") plaintiffs failed to demonstrate that a disabled child was denied a free appropriate public education;  the School District's failure to include a regular education teacher on the "individualized education program" ("IEP") team when there was a possibility that M.L. might be included in a regular education classroom constituted a procedural violation of the IDEA;  however, since the violation did not result in a loss of an educational opportunity for M.L., the School District's failure to include a regular education teacher on the IEP team did not violate the IDEA.  Alarcon (author), Gould, and Clifton, Circuit Judges.  J. Lobsenz of Seattle, WA, for the petitioners;  C. Hirst of Seatle, WA, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

31)  EDUCATION LAW:  Savage v. Glendale Union High School Dist., 02-15743 (9th Cir. Sept. 10, 2003).  Arizona high school districts are not "arms of the state" entitled to Eleventh Amendment immunity from suit in federal court for alleged Americans with Disabilities Act and Rehabilitation Act violations;  Arizona chose to vest control of its school districts in local school boards;  when a state eschews centralized state control of education, it cannot cloak itself in the immunities afforded the state.  Beezer, Thomas (author), and Clifton, Circuit Judges.  S. Plitt of Phoenix, AZ, for the appellants;  R. Daly-Rooney of Tucson, AZ, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

32)  MEDICAID / FIRST AMENDMENT:  Kong v. Scully, 02-15057 (9th Cir. Sept. 2, 2003).  The USCA affirmed a district court's decision upholding as constitutional on its face and as applied Sec. 4454 of the Balanced Budget Act of 1997, which effected amendments to 42 USC Secs. 1320 and 1395 in order to permit payments under Medicare and Medicaid for non-medical care of persons whose religious tenets lead them to reject medical services;  these amendments were not an establishment of religion;  concurring, Judge McKeown agreed that accommodation of individuals who are religiously opposed to medical care is appropriate, but thought the statute must be read to encompass both religious and nonreligious beliefs in order to pass constitutional muster;  Judge Rawlinson concurred in the result but wrote separately to emphasize that in his view the Eighth Circuit's analysis in Children's Healthcare v. Min de Parle, 212 F.3d 1084 (8th Cir. 2000), should carry the day.  Noonan (author), McKeown (concurring), and Rawlinson (concurring), Circuit Judges.  R. Bruno of Brunsville, MI, for the plaintiffs-appellant;  L. Sturgill of Washington, DC, for the defendants-appellees; S. Shapiro of Chicago, IL, for the defendant-intervenor-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

33)  ATTORNEYS' FEES:  Champion Produce, Inc. v. Ruby Robinson Co.,. 01-35887 (9th Cir. Sept. 8, 2003).  The cost-shifting provision of Fed. R. Civil Proc. 68 does not permit an award of post-offer attorneys' fees where the underlying state statute authorizes an award of attorneys' fees to a prevailing party as part of costs but the party seeking fees under the rule is not a prevailing party within the meaning of that statute.  Reinhardt, W. Fletcher (author), and Gould, Circuit Judges.  T. Copple of Boise, ID, for the plaintiff;  R. Blackburn of Chicago, IL, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)
 

34)  CLAIM-PRECLUSION:  Noel v. Hall, 00-35988 (9th Cir. Sept. 2, 2003).  The district court dismissed one of the plaintiff's claims against the defendants for lack of subject matter jurisdiction under the Rooker-Feldman doctrine;  the USCA reversed this dismissal;  The district court also dismissed plaintiff's nine other claims against the defendants as claim-precluded on the ground they should have been asserted as compulsory counterclaims in earlier state-court litigation;  the USCA affirmed the dismissal of six of these nine claims against defendant Sandra Hall as claim-precluded, but reversed its dismissal of three of these nine claims against Sandra Hall and all nine claims against defendant Brian Hall.  Reavley, Kozinski, and W. Fletcher (author), Circuit Judges.  R. Grant of Portland, OR, for the plaintiff-appellant;  B. Dawson of West Linn, OR, for the defendants-appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)
 

35)  CONSTITUTIONAL LAW:  Hensala v. Dept. of the Air Force, 01-16791 (9th Cir. Sept. 12, 2003).  Genuine issues of fact precluded summary judgment as to plaintiff's claims that the U.S. Air Force's educational recoupment policy violated his constitutional rights;  dissenting in part, Judge Tashima noted that the plaintiff had received a free medical education at taxpayer expense to the tune of $71,429, and, in return, promised to serve as a physician in the Air Force but he reneged on his promise;  Judge Tashima could see no legal reason why he should not be held to his bargain and required to repay the government for his education;  he would affirm the district court on all issues as the plaintiff did not challenge his separation as voluntary under the "Don't Ask, Don't Tell" policy and it followed from his voluntary separation that recoupment of his professional educational costs was proper and did not implicate any equal protection concerns.  Tashima (dissenting in part), Thomas (author), and Paez, Circuit Judges.  R. DeNatale of San Francisco, CA, for the appellant;  A. Steinmeyer of Washington, DC, for the appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

36)  FIRST AMENDMENT / EROTIC DANCING LICENSES:  Talk of the Town v. Dept. of Finance and Business Services., 01-16303 (9th Cir. Sept. 10, 2003).  The First Amendment was not implicated through the suspension of an establishment's erotic dancing license due to violations of a city's alcohol licensing laws;  dissenting, Judge Canby thought that the district court properly concluded that the city ordinance authorizing suspension of erotic dancing licenses failed to meet the First Amendment requirement of speedy judicial review or a stay of enforcement until completion of judicial review;  the district court thus followed 4805 Convoy, Inc. v. San Diego, 183 F.3d 1108 (9th Cir. 1999), and enjoined any suspension or revocation of erotic dancing licenses prior to completion of judicial review;  Judge Canby thought the district court in so ruling had honored the First Amendment limitations on prior restraint of expression.  Canby (dissenting), O'Scannlain (author), and W. Fletcher, Circuit Judges.  A. Lichtenstein of Las Vegas, NV, for the plaintiff;  P. Angulo of Las Vegas, NV, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

37)  NATIVE HAWAIIAN BENEFITS:  Carroll v. Nakatani, 02-15483 (9th Cir. Sept. 2, 2003).  This case stems from Rice v. Cayetano, 528 US 495 (2000), which held that the ancestry classification "Hawaiian," as provided in Art. XII of the Hawaiian Constitution, is race-based;  Rice ruled that limiting voter eligibility to elect the trustees to the Office of Hawaiian Affairs, a state agency, to "Hawaiians" violated the Fifteenth Amendment;  Rice expressly assumed, but did not decide, the validity of the underlying administrative structure and the allocation of benefits based upon the Hawaiian classification; the plaintiffs in the instant case challenged that allocation of benefits, claiming that Art. XII and the statutes implementing it, violate the Equal Protection clause because it restricts benefits to only those classified as "native Hawaiians" or "Hawaiians."  Neither plaintiff is Hawaiian or native Hawaiian.  The USCA affirmed the district court, holding that these plaintiffs lacked standing to challenge the ancestry classification and allocation of benefits of Art. XII of the Constitution of Hawaii.  Hug (author), Alarcon, and Graber, Circuit Judges.  W. Helfand of Houston, TX, and P. Hicks of Honolulu, HI, for the appellants;  G. Lau of Honolulu, HI, for the appellees;  S. Broder of Honolulu, HI, for the intervenors. (Download the full text of this decision at www.cc9.uscourts.gov/)

38)  NATIVE AMERICAN LAW:  The Confederated Salish & Kootenai Tribes, 02-35491 (9th Cir. Sept. 15, 2003).  The Flathead Act, Pub. L. 90-402, 82 Stat. 356, authorizes the Secretary of the Interior to exercise his discretion in acting upon tribal requests for land acquisitions within the reservation boundaries;  concurring in the result, Judge Browning wrote separately to express his belief that the term "authorized" is considerably more ambiguous than the majority allows and that reliance on the deference due to the Secretary's interpretation of the Act is a sounder ground for affirming.  Browning (concurring), Alarcon (author), and Clifton, Circuit Judges.  J. Carter of Pablo, MT, for the plaintiff;  W. Mercer of Billings, MT, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)
 

39)  NATIVE AMERICAN LAW:  Confederates Tribes of the Umatilla Indian Reservation v. Bonneville Power Administration, 01-71736 (9th Cir. Sept. 2, 2003).  Petitioners maintained that the Bonneville Power Administration both exceeded its legal authority and violated its statutory duty to treat fish and wildlife equitably with power;  the USCA dismissed some of the petitions for lack of jurisdiction, and the remainder for lack of merit.  Lay, Wallace (author), and Tallman, Circuit Judges.  C. Leahy of Portland, OR, for the petitioner;  S. Striffler of Salem, OR, for the petitioner-intervenor;  D. Adler of Portland, OR, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)
 

40)  NATIVE AMERICAN LAW:  USA v. Bird, 02-30246 (9th Cir. Sept. 8, 2003),  Federal courts have subject matter jurisdiction over crimes enumerated in 18 USC Sec. 1153 that are committed by an Indian, on an Indian reservation, against the person or property of any person;  the race of the victim is not an essential element of a crime prosecuted under Sec. 1153.  Browning, Alarcon (author), and Clifton, Circuit Judges.  D. Ness of Helena, MT, for the defendants-appellants; K. Richter of Billings, MT, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

41)  NATIVE AMERICAN LAW:  Sharber v. Spirit Mountain Gaming, 01-35500 (9th Cir. Sept. 4, 2003).  Per Curiam.  The district court did not err in concluding that tribal courts should have first opportunity to determine whether they have jurisdiction to hear actions based on the Family and Medical Leave Act;  the absence of any ongoing litigation over the same matter in tribal courts does not defeat the tribal exhaustion requirement;  nor did the district court err in concluding that the tribal exhaustion requirement applies to issues of tribal sovereign immunity.  Reavley, Kozinski, and W. Fletcher, Circuit Judges.  Per Curiam.  W. Goode of Portland, OR, for the plaintiff-appellant; C. Wiswall of Portland, OR, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

42)  IMMIGRANT INVESTOR VISAS / JURISDICTION:  Spencer Enterprises, Inc. v. USA, 01-16391 (9th Cir. Sept. 17, 2003).  The district court had jurisdiction to hear a challenge to the INS's denial of an immigrant investor visa, a non-discretionary decision;  the denial was proper based on the INS's adverse credibility determination;  dissenting, Judge Beezer noted that it is well established that the decision to grant or deny a visa petition is discretionary and that the majority's opinion is the first to hold that 8 USC Sec. 1252(a)(2)(B)(ii) does not preclude federal court jurisdiction over a discretionary decision of the Attorney General;  Judge Beezer thought the majority improperly held that the USCA has jurisdiction, and in so doing it creates an inter-circuit and intra-circuit split;  he further he thought that majority failed to give due deference to the Executive Branch in the immigration context. D.W. Nelson (author), Beezer (dissenting), and McLane, Circuit Judges.  H.R. Klasko of Philadelphia, PA, for the plaintiffs-appellants;  N. Reyna of Washington, DC, for the defendants-appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

43)  IMMIGRATION:  USA v. Gonzales-Valerio, 02-50260 (9th Cir. Sept. 8, 2003).  The district court found the underlying deportation order to be invalid because the Immigration Judge violated the defendant's right to due process by failing to tell him at the deportation hearing that he was eligible to apply for relief from deportation under former Sec. 212(c) of the Immigration and Nationality Act;  the USCA reversed and remanded the dismissal of the defendant's indictment for being found in the U.S. after prior deportation, 8 USC Sec. 1326;  the defendant's equities were not the unusual and outstanding equities that ordinarily lead to a discretionary waiver of deportation.  Pregerson, Tashima (author), and Clifton, Circuit Judges.  AUSA K. Lally of Los Angeles, CA, for the plaintiff-appellant;  DFPD E. Newman of Los Angeles, CA, for the defendant-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

44)  IMMIGRATION:  Lema v. INS, 02-35901 (9th Cir. Sept. 2, 2003).  An alien's two year continued detention is authorized by 8 USC Sec. 1231(a)(1)(C) where he is refusing to cooperate fully with officials to secure travel documents from a foreign government;  such an alien cannot meet his burden to show there is no significant likelihood of removal in the reasonably foreseeable future.  Alarcon, Gould (author), and Clifton, Circuit Judges.  FPD T. Hillier of Seattle, WA, for the petitioner;  J. Grimes of Washington, DC, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

45)  IMMIGRATION:  Reyes-Melendez v. INS, 02-70526 (9th Cir. Sept. 4, 2003).  The USCA reversed the denial of the petitioner's application for suspension of deportation as he had been denied a full and fair hearing due to an Immigration Judge's bias;  the IJ was hostile towards the petitioner and judged his behavior to be morally bankrupt; he behaved not as a neutral fact-finder, but as a partisan adjudicator seeking to intimidate the alien and his counsel.  Pregerson and Thomas (author), Circuit Judges, and Jorgenson, District Judge. A. Knapp of Los Angeles, CA, for the petitioner;  A. Hausman of Washington, DC, for the respondent.(Download the full text of this decision at www.cc9.uscourts.gov/)

46)  IMMIGRATION:  Ali v. Ashcroft, 03-35096 (9th Cir. Sept. 17, 2003).  The United States cannot remove aliens to Somalia, a country that does not have a functioning government to accept them;  dissenting, Judge Reavley would read 8 USC Sec. 1231(b) sub-paragraph E as a broad authorization of removal, separate from the prior subparagraphs and without the limitation of acceptance of the alien by the removal country.  Reavley (dissenting), Tashima (author), and Paez, Circuit Judges.  G. Mack of Washington, DC, for the respondents;  N. Gellert of Seattle, WA, for the petitioners. (Download the full text of this decision at www.cc9.uscourts.gov/)

47)  IMMIGRATION:  Marquez v. INS, 01-17191 (9th Cir. Sept. 19, 2003).  Because the statutory construction of 8 USC Sec. 1231 was extended by Zadvydas v. Davis, 533 US 678 (2001), to embrace aliens deemed inadmissible under 8 USC Sec. 1182, the petitioner, a Mariel Cuban refugee, is entitled to a determination as to whether his removal to Cuba is reasonably foreseeable and whether he may be released, subject to appropriate supervised conditions of release, if it is not;  concurring, Judge Beezer thought the ruling of Lin Guo Xi v. INS, 298 F.3d 831 (9th Cir. 2001), including its interpretation of Zadvydas, was contrary to the express holdings of the majority of the other circuits which have considered Sec. 1231(a)(6).  D.W. Nelson, Beezer (concurring), and Wardlaw (author), Circuit Judges.  AFD D. Broderick of Sacramento, CA, for the appellant;  S. Goad of Washington, DC, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

48)  QUALIFIED IMMUNITY:  Drummond v. City of Anaheim, 02-55320 (9th Cir. Sept. 10, 2003).  In a 42 USC Sec. 1983 excessive force action arising from the efforts of police officers to subdue an unarmed and mentally disturbed person and to take him into custody for his own safety, but who instead was so seriously injured by the officers that he fell into a coma and has since been in a vegetative state, the USCA reversed the district court's summary judgment for police officers based on qualified immunity and remanded for trial;  under the circumstances of the case, it would have been clear to a reasonable officer that the force alleged was constitutionally excessive.  Browning, Pregerson, and Reinhardt (author), Circuit Judges. F. Sayre of Santa Ana, CA, for the plaintiff-appellant;  D. Knefel of Anaheim, CA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

49)  CHILD PORNOGRAPHY:  USA v. Adams, 02-50196 (9th Cir. Sept. 10, 2003).  18 USC Sec. 2252(a)(4)(B), criminalizing the "simple intrastate possession of home grown child pornography not intended for distribution or exchange," is not on its face an unconstitutional exercise of congressional power;  the definition of "sexually explicit conduct" found at 18 USC Sec. 2256(2)(A) is not on its face substantially overbroad under the First Amendment;  nor is the statute void for vagueness.  Lay, Hawkins, and Tallman (author), Circuit Judges. K. Bringuel of San Diego, CA, for the defendant; AUSA A. Perry of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

50)  PRETRIAL DETENTION:  USA v. Twine, 03-10393 (9th Cir. Sept. 19, 2003).  The defendant, charged with being a felon in possession of a firearm pursuant to 18 USC Sec. 922(g)(1), appealed the district court's pretrial detention order which held him without bail;  the district court ruled that the Bail Reform Act authorizes the defendant's pretrial detention without bail on the sole basis of a finding of dangerousness to the community;  alternatively, the district court held that being a felon in possession of a firearm is a crime of violence, a finding that triggers the Act's express authority to hold the defendant without bail pending trial after a 18 USC Sec. 3142(f) hearing;  the district court also affirmed the magistrate's judge's finding of dangerousness to the community;  the USCA reversed and remanded;  it was not persuaded that the Act authorizes pretrial detention without bail solely on a finding of dangerousness, as this interpretation of the Act would render meaningless 18 USC Secs. 3142(f)(1) and (2);  this view is in accord with that of sister circuits who have ruled on the issue;  there is a circuit split, with arguments in support and against the conclusion that being felon in possession of a firearm is a crime of violence;  however, bound by USA v. Canon, 993 F.2d 1439 (9th Cir. 1993), the USCA held that being a felon in possession of a firearm is not a crime of violence under the Act.  Schroeder, Hawkins, and Tashima, Circuit Judges. Per Curiam.  FPD B. Portman of San Francisco, CA, for the appellant;  AUSA K. Ryan of San Francisco, CA, for the appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

51)  SEARCH & SEIZURE:  USA v. Ibarra, 02-30389 (9th Cir. Sept. 26, 2003).  A seizure and search of an automobile, stopped for speeding, did not violate the Fourth Amendment, as facts known to police officers coupled with a narcotics dog's specific alert indicating the odor of narcotics emanating from the vehicle would lead a reasonable officer to believe that narcotics would be found in the vehicle;  although the police had probable cause to believe that the defendant was violating the speed limit, their real interest in the defendant's case had nothing to do with enforcing traffic laws;  another officer happened to be waiting with his drug-detecting dog in the exact spot where the car was pulled over because the whole incident had been planned hours in advance in coordination with DEA agents from Washington and Oregon.  Hall (author), Graber, and Gould, Circuit Judges. AFPD T. Moro of Medford, OR, for the defendant-appellant;  AUSA J. Harper of Medford, OR, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

52)  SEARCH & SEIZURE:  USA v. Bridges, 01-30316 (9th Cir. Sept. 24, 2003).  Bridges appealed his conviction following a jury trial for conspiracy to defraud the United States, making false claims to the U.S., and mail fraud;  he maintained that the district court erred in denying his motion to suppress evidence seized by the government with an invalid search warrant;  he also challenged the district court's conviction and judgment because the government allegedly violated his rights under the Due Process clause by applying a "secret" policy to him in violation of the Taxpayer Bill of Rights;  finally, he maintained that the district court's instructions to the jury were deficient;  the USCA agreed with Bridges that the search warrant was invalid and excessively broad in its scope; it failed to specify what criminal activity was being investigated;  the USCA also found Bridges' Due Process claim to be without merit, and declined to reach the issue of the adequacy of the challenged jury instructions.  D.W. Nelson (author) and Thomas, Circuit Judges, and D. Pregerson, District Judge.  R. Stephens of Billings, MT, for the defendant-appellant;  AUSA J. Seykora of Billings, MT, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

53)  EVIDENCE: USA v. Alli, 02-50029 (9th Cir. Sept. 22, 2003).  The defendant was convicted for his participation in a tax fraud scheme;  although the scheme netted him no more than a few thousand dollars, he was sentenced to 71 months in federal custody, three years of supervised release, restitution of $38,500, and a $250 special assessment;  on appeal, the USCA concluded that his constitutional right to due process was not violated when the prosecutor failed to correct the false testimony of two of the defendant's partners-in-crime who testified for the government;  both were less than truthful initially regarding their expectations of leniency from the government in exchange for their testimony;  the USCA affirmed the conviction but remanded for resentencing.  Ferguson, Hall, and Berzon (author), Circuit Judges.  G. Serlin of Woodland Hills, CA, for the defendant-appellant;  AUSA E. Duarte of Los Angeles, CA, for the plaintiff-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

54)  CRIMINAL LAW & PROCEDURE:  USA v. Si, 01-10112 (9th Cir. Sept. 12, 2003).  The USCA upheld defendant's conviction for conspiracy to commit a robbery affecting interstate commerce in violation of the Hobbs Act and use of a firearm in furtherance of a crime of violence;  it rejected the defendant's assertions that he was denied a fair trial due to the court's failure to appoint a Chinese translator, that there were Brady violations resulting from redacted and withheld material, that there was insufficient evidence of Hobbs Act conspiracy and use of a firearm, that he was entrapped as a matter of law, that the supplemental jury instruction omitted an essential element of the offense, and that the district court erred in imposing upward adjustments to his sentence.  D.W. Nelson, Beezer (author), and Wardlaw, Circuit Judges.  K. Alfieri of San Francisco, CA, for the defendant-appellant;  AUSA A. Rosen of San Jose, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

55)  CRIMINAL LAW:  USA v. Bonas, 02-50631 (9th Cir. Sept. 17, 2003).  Bonas is a lawyer who brought a class-action against three supermarket chains, alleging price-fixing of eggs;  the supermarkets were represented by a cadre of large, well-known Los Angeles law firms;  Bonas and his client lost after a jury trial; according to the government, Bonas then began harassing defense counsel with a barrage of emails and voicemail messages;  the messages increased in frequency and intensity, leading the firms to tighten their security and even add armed guards;  the government indicted Bonas for violating 18 USC Sec. 875(c) by making threats in interstate commerce;  after the jury was empaneled, the district judge announced that an inquiry had not been made into the possibility that a juror might face financial hardship;  indeed, some of the jurors then informed that court that they were not going to be paid by their employers; following an investigation into the truth of their claims, the judge declared a mistrial;  the USCA reversed and remanded finding that the record did not support the district court's finding of "manifest necessity" justifying a mistrial, where no evidence showed that jurors were unwilling to put aside their unhappiness at having to serve without pay and to discharge their duties as in-structed.  Kozinski (author) and T.G. Nelson, Circuit Judges, and Restani, District Judge.  DFPD K. Kato of Los Angeles, CA, for the appellant;  AUSA A. Russi of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

56)  EVIDENCE:  USA v. Cruz-Garcia, 02-10275 (9th Cir. Sept. 17, 2003).  The district court abused its discretion by excluding details of the prosecution's star witness's prior crimes where the issue of whether the witness, who testified that the defendant was the drug dealer in the conspiracy to which the witness had plead guilty, was smart enough to pull off a drug dealing crime on his own is made the central issue on the prosecution's theory of the case;  as the exclusion was not harmless, the conviction was reversed;  concurring, Judge Graber agreed that the defendant's conviction had to be reversed, but would do that on the narrower ground that the district court's error was in failing to apply Fed. R. Evid. 404(b) at all.  Kozinski (author), Graber (concurring), and Berzon, Circuit Judges.  AFPD M. Power of Reno, NV, for the defendant;  AUSA C. Denney of Reno, NV, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

57)  SEXUAL PREDATORS:  Young v. Weston, 01-36026 (9th Cir. Sept. 18, 2003).  On a 28 USC Sec. 2254 petitioner's challenge to Washington state's Community Protection Act of 1990, which authorizes the civil commitment of "sexually violent predators" (persons who suffer from a mental abnormality or personality disorder that makes them likely to engage in predatory acts of sexual violence) the USCA upheld the district court's denial of the petitioner's double jeopardy and ex post facto claims because of the civil nature of the Act;  finding that the district court correctly applied the Supreme Court's decision in Kansas v. Hendricks, 521 US 346 (1997), to the petitioner's arguments regarding the purpose and effect of the Act, the USCA affirmed the district court's denial of the habeas petition.  B. Fletcher, Brunetti (author), and McKeown, Circuit Judges. D. Carroll of Seattle, WA, for the petitioner;  DAG S. Sappington of Seattle, WA, for the respondents.(Download the full text of this decision at www.cc9.uscourts.gov/)

58)  SENTENCING / RESTITUTION:  USA v. Gaytan, 02-50377 (9th Cir. Sept. 5, 2003)   The defendant, a former city mayor and councilman, pled guilty to accepting bribes under 18 USC Sec. 666;  bribes influenced the defendant's vote on several city land use issues;  the USCA upheld the district court's order that the defendant pay restitution to the city in the amount of bribe money received, $61,506.63.  Noonan, Tallman (author), and Rawlinson, Circuit Judges.  N. DePento of San Diego, CA, for the defendant;  AUSA E. Moreton of Los Angeles for the appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

59)  SENTENCING:  USA v. Shryock, 97-50468 (9th Cir. Sept. 4, 2003).  The RICO, forfeiture and drug-related convictions and sentences of nine defendants were upheld over numerous objections on appeal, with the exception of the sentence of one defendant which was vacated and remanded for resentencing;  on appeal, the defendants unsuccessfully objected that the district court (1) erred in empaneling an anonymous jury and limiting the scope of a hearing on jury misconduct; (2) violated their constitutional right to a public trial; (3) erred in denying their motions to suppress wiretap and videotape evidence; (4) erred in discovery rulings; (5) erred in several jury instructions; and (6) erred in the sentences imposed.  Thompson, and Trott (author), and Tallman, Circuit Judges.  J. Lichtman of Los Angeles, CA, for one of the many appellants;  P. Trevino of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

60)  SENTENCING:  USA v. Defterios, 02-50592 (9th Cir. Sept. 9, 2003).  Pursuant to a plea agreement, Defterios pleaded guilty to two counts of bank fraud in violation of 18 USC Sec. 1344; holding that the district court erred as a matter of law in sentencing him to imprisonment of one month, the USCA reversed and remanded for resentencing.  Noonan (author), Tallman, and Rawlinson, Circuit Judges.  AUSA D. Hoffer of Santa Ana, CA, for the plaintiff-appellant;  W. Harris of South Pasadena, CA, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

61)  SENTENCING:  USA v. Melton, 02-30234 (9th Cir. Sept. 24, 2003).  Melton was convicted for being a felon in possession of a firearm;  the district court's imposed a sentence enhancement under the Armed Career Criminal Act ("ACCA");  the district court concluded that Melton had the requisite three prior violent felony convictions to qualify for an enhancement under the ACCA;  the USCA agreed and affirmed.  Pregerson, Canby, and McKeown (author), Circuit Judges.  AFD M. Geddes of Anchorage, AK, for the appellant;  AUSA S. Collins of Anchorage, AK, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

62)  HABEAS CORPUS:  Sanders v. Ryder,. 01-35675 (9th Cir. Sept. 4, 2003).  The habeas petitioner here presented his federal ineffective assistance of trial counsel claim to the Washington State Supreme Court in such a manner that the court had a "fair opportunity" to address the claim in state court;  he thus exhausted his claim for purposes of federal habeas review, notwithstanding his failure to cite federal law in his state petition.  Reinhardt, W. Fletcher (author), and Gould, Circuit Judges.  M. Kahrs of Seattle, WA, for the petitioner;  G. Rosen of Olympia, WA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

63)  HABEAS CORPUS / CAPITAL CASES:  Summerlin v. Stewart, 98-99002 (9th Cir. Sept. 2, 2003).  Sitting en banc, the USCA held that Ring v. Arizona, 536 U.S. 584 (2002), applied retroactively so as to require that the petitioner's death sentence be vacated;  however, the USCA upheld the district court's ruling as to the petitioner's conviction;  concurring, Judge Reinhardt said he joined fully in the majority's opinion and, in particular that Ring establishes a new substantive rule and that to the extent the rule is procedural it constitutes a watershed rule that enhances the accuracy of capital sentencing and alters the court's understanding of a bedrock procedural provision;  Judge Reinhardt wrote separately to emphasize that a contrary result would be unthinkable in a society that considers itself both decent and rational;  Judge Rawlinson, joined by O'Scannlain and Tallman, dissented from that portion of the opinion discussing the retroactive application of Ring;  they thought the majority had negated the presumption against retroactive application of new rules articulated in Teague v. Lane, 489 US 288 (1989);  they also thought the majority mistakenly ruled that Ring announced a substantive rather than procedural substantive rule despite the teaching of Apprendi v. New Jersey, 530 US 466 (2000), upon which the Supreme Court expressly relied in deciding Ring.  Schroeder, Pregerson, Reinhardt (concurring), O'Scannlain, Hawkins, Thomas (author), McKeown, Wardlaw, Fisher, Tallman, and Rawlinson (dissenting), Circuit Judges.  K. Murray of Phoenix, AZ, for the petitioner;  J. Pressley of Phoenix, AZ, for the respondent.(Download the full text of this decision at www.cc9.uscourts.gov/)

64)  HABEAS CORPUS:  McNeil v. Middleton, 01-56565 (9th Cir. Sept. 22, 2003).  An erroneous "imperfect self-defense" instruction in a state court trial for murder wholly deprived petitioner of that defense by requiring that her fear be reasonable;  the instruction completely eliminated one of the petitioner's principal theories of defense from the jury's consideration--the defense that she had a fear of imminent harm;  even if the jury believed that the petitioner had an actual but unreasonable fear of imminent peril, the jury was precluded from finding her guilty of voluntary manslaughter;  the petitioner thus was denied due process;  the state appellate court's decision with respect to the instructional error was contrary to the clearly established Supreme Court law that due process requires that a defendant have a fair opportunity to defend against the state's charge and that a defendant have a meaningful opportunity right to present a complete defense;  the state appellate court's assumption that the jury did not follow the trial court's charge to the jury contradicts clearly established Supreme Court law that presumes that jurors follow the instructions given to them by the court.  Beezer, Fernandez, and Paez (author), Circuit Judges.  P. Clarke of Escondido, CA, for the petitioner;  W. Robinson of San Diego, CA, for the respondent.(Download the full text of this decision at www.cc9.uscourts.gov/)

65)  HABEAS CORPUS:  Hall v. Director of Corrections, 02-55758 (9th Cir. Sept. 8, 2003).  Because false and material evidence was admitted at petitioner's trial in violation of his due process rights, the USCA reversed the district court's judgment with instructions that an unconditional writ of habeas corpus should be issued unless the state court grants the petitioner a new trial within 120 days of the issuance of the USCA's mandate;  dissenting, Judge Tallman wrote that, despite repeated admonishment by the U.S. Supreme Court of the USCA's habeas jurisprudence, the USCA again persists in ignoring the AEDPA standard of review in order to invalidate a reasonable state court determination of guilt in a 1985 murder case.  Per Curiam. Lay, Hawkins, and Tallman (dissenting), Circuit Judges. W. Genego of Santa Monica, CA, for the petitioner; M. Sanchez of Los Angeles, CA, for the respondents.(Download the full text of this decision at www.cc9.uscourts.gov/)

66)  HABEAS CORPUS:  Forn v. Hornung, 02-55287 (9th Cir. Sept. 8, 2003).  Although an accomplice's extrajudicial statement was improperly admitted under the "against penal interest" hearsay exception and the defendant was unable to confront the accomplice, the error was harmless under Supreme Court authority as it would not have substantially affected the verdict.  Lay, Hawkins (author), and Tallman, Circuit Judges.  T. Ono of Los Angeles, CA, for the petitioner;  DAG D. Glassman of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

67)  HABEAS CORPUS:  Griffey v. Lindsey, 99-17643 (9th Cir. Sept. 26, 2003).  The 28 USC Sec. 2254 petition in this case was governed by the substantive standards of the Anti-terrorism and Effective Death Penalty Act of 1996;  the petitioner was not entitled to an evidentiary hearing on any of his claims;  on the merits, the USCA affirmed the denial of the petition.  Beezer (author), Thomas, and Clifton, Circuit Judges.  A. Koo of San Francisco, CA, for the petitioner;  DAG P. Ruffa of San Francisco, CA, for the respondents.  (Download the full text of this decision at www.cc9.uscourts.gov/)

68)  PRISONERS' RIGHTS:  Vance v. Barrett, 01-15819 (9th Cir. Sept. 30, 2003).  The plaintiffs, state inmates, were entitled to summary judgment on their unconstitutional retaliation claim where prison officials terminated their employment after they refused to sign an agreement required of all inmates to be eligible for prison employment;  the agreement authorizes prison officials to deduct certain costs from their trust accounts.  Stapleton, O'Scannlain (author), and Fernandez, Circuit Judges. R. Brundage of San Francisco, CA, for the plaintiffs; DAG T. Lui of Carson City, NV, for the defendants.(Download the full text of this decision at www.cc9.uscourts.gov/)

69)  PRISONERS' RIGHTS:  Serrano v. Francis, 01-57036 (9th Cir. Sept. 26, 2003).  The USCA reversed the district court's decision, finding instead that a wheelchair-bound black prisoner raised a genuine issue of material fact as to whether a prison officer's refusal to allow him to present live witness testimony during a disciplinary hearing was racially motivated;  the USCA affirmed the dismissal of the prisoner's due process claim under Fed. R. Civil Proc. 12(b)(6), but on the alternative ground that the officer is entitled to qualified immunity.  Aldisert (author), Tallman, and Rawlinson, Circuit Judges.  D. Azar of Los Angeles, CA, for the plaintiff; AAG R. Anderson of Los Angeles, CA, the defendant.(Download the full text of this decision at www.cc9.uscourts.gov/)

70)  PRISONERS' RIGHTS:  Schneider v. California Dept. of Corrections, 00-15795 (9th Cir. Sept. 29, 2003).  As further factual development is needed to determine whether California's failure to pay interest to "individual" inmates on their Inmate Trust Account funds violates the Takings Clause of the U.S. Constitution, the district court’s grant of summary judgment and denial of injunctive relief is vacated and remanded for further proceedings.  Sneed, Wood, and O'Scannlain (author), Circuit Judges.  H. Franck of San Francisco, CA, for the appellants;  A. Crown of San Francisco, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

71)  PAROLE:  McQuillion v. Duncan, 03-55702 (9th Cir. Sept. 5, 2003).  The USCA affirmed a district court decision ordering the immediate release of a San Quentin prisoner where, without pointing to any record evidence, the Warden argued that the petitioner has "continuously been found a danger to society."  The USCA noted that there has been no finding, let alone a continuous series of findings, of dangerousness in almost a quarter of a century;  based in part on a conclusion of non-dangerousness, the Board of Prison Terms in 1979 found the petitioner suitable for parole and set a fixed future parole date of 1998; in six subsequent progress hearing, the Board advanced the petitioner's release date because of good behavior credits;  not until 1994, when the petitioner was about to be released, did the Board change its mind;  and it did so without any evidence of dangerousness beyond the crime for which the petitioner was originally convicted (two counts of murder for which he received a sentence of seven years to life), which had been fully considered by the Board in 1979.  Wardlaw and W. Fletcher (author), Circuit Judges, and Whyte, District Judge.  J. Garland of San Diego, CA, for the respondent;  FPD M. Knox of Los Angeles, CA, for the petitioner.(Download the full text of this decision at www.cc9.uscourts.gov/)

72)  PAROLE:  Redd v. McGrath, 02-16845 (9th Cir. Sept. 11, 2003).  Redd, a California state prisoner serving an indeterminate life sentence for murder, appealed the judgment of the district court denying his 28 USC Sec. 2254 petition for a writ of habeas corpus;  Redd's petition, filed on Sept. 18, 2001, challenged the California Board of Prison Terms' determination that he was unsuitable for parole;  the district court dismissed the petition as untimely under AEDPA's one-year statute of limitations, 28 USC Sec. 2244(d)(1), which the court held began to run on Dec. 8, 1998, the day after the California Board of Prison Terms denied Redd's administrative appeal; the USCA agreed with the district court that Sec. 2244(d)(1)(D) applies to Redd's petition and that the limitations period began to run when the Board denied his administrative appeal;  because Redd did not file his federal habeas petition until nearly four months after the statute of limitations expired, his petition is untimely and must be dismissed.  Hug, Gibson, and Fisher (author), Circuit Judges.  M. Snedeker of Portland, OR, for the petitioner;  DAG A. Crowne of San Diego, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

1)  RICO:  Acro-Tech, Inc. v. The Robert Jackson Family Trust, 02-35176 (9th Cir. Sept. 30, 2003) (unpublished).  Aldisert, Graber, and Gould, Circuit Judges. 
          The plaintiffs, Reggie and Lisa Huff, appealed the district court's dismissal of their state and federal RICO claims against the defendants.  The USCA affirmed.
          First, the district court did not err in dismissing the plaintiffs' 18 USC Sec. 1962(c) RICO and Oregon Revised Statute ("ORS") Sec. 166.720(3) ORICO claims.  Reviewing de novo, the USCA agreed with the district court's holding that the plaintiffs' Second Amended Complaint did not adequately plead "enterprise."  The plaintiffs allege that defendants Hallsworth and Jackson made decisions together and worked cooperatively.  This allegation is one of conspiracy -- it does not satisfy the standard that an enterprise must "at minimum, … have some sort of structure … for the making of decisions and some mechanisms for controlling and directing the affairs of the group on an on-going, rather than an ad hoc, basis."  Simon v. Value Behavioral Health, Inc., 208 F.3d 1073, 1083 (9th Cir. 2000).  The plaintiffs' allegations that defendant Boutin exercises control over the enterprise is also inadequate.  Boutin was not a member of the alleged enterprise.  Moreover, it is unclear how Boutin could have "exercised control" over the enterprise via "consultation and advice" to Jackson and Hallsworth, who themselves were alleged to have "exercised control."  Including two corporations in the enterprise does not per se satisfy the requirement that the enterprise be a separate entity apart from the pattern of racketeering activity in which it engages.  In this case, the plaintiffs failed to allege either that a system of authority existed in a separate enterprise or that the defendant utilized a structure apart form the predicate acts to distribute the proceeds of the racketeering activity.  Oregon's RICO is modeled after the federal statute.  Federal cases interpreting the federal statute are persuasive in interpreting the parallel Oregon provisions.  State v. Blossom, 744 P.2d 281, 283 (Or. Ct. App. 1987).  ORS Sec. 166.720(3) parallels Sec. 1962(c).  Because the district court correctly dismissed the plaintiffs' Sec. 1962(c) claim, it also correctly dismissed the plaintiffs' ORS Sec. 166.720(3) claim.
             Second, the plaintiffs alleged that the defendants sought to gain control of Acro-Tech as lessors on the lease for Acro-Tech by hiring Hallsworth as accountant and bookkeeper.  The defendants alleged that the business lease and accounting services were induced by fraud and, thus, represent an attempt to gain control through racketeering activity.  The plaintiffs' allegations of fraud, however, are general and to not provide the necessary particularity.  The plaintiffs thus failed to adequately alleged that the defendants gained control of Acro-Tech through racketeering activity.  For the same reasons, the plaintiffs failed to adequately plead on ORS Sec. 166.720(2) claim, which tracks Sec. 19962(b).
          Third, the district court did not abuse its discretion when it denied the plaintiffs leave to amend their Sec. 1962(c) claim.  In this case, two factors support the court's denial of leave to amend -- futility of amendment and the fact that the plaintiffs previously amended the complaint.  The district court noted that the plaintiffs' Second Amended Complaint (Corrected) was in fact the fourth complaint the plaintiffs filed in this action.  The plaintiffs were represented by counsel when they filed their Second Amended Complaint, and that filing followed the district court's September 2001 order, which had explained in detail what needed to be pleaded.
            Finally, the district court did not abuse its discretion in declining jurisdiction over the plaintiffs' remaining non-RICO state-law claims.  28 USC Sec. 1367(c)(3).  And, the district court did not abuse its discretion in its award of costs and fees to the defendants. As the defendants were the prevailing party, the district court had the discretion to award fees under Federal Rule of Civil Procedure 54(d) and ORS Sec. 166.725(14).

2)  TAXATION:  McKelvey v. CIR, 02-74290 (9th Cir. Sept. 24, 2003) (unpublished).  Skopil, Ferguson, and Boochever, Circuit Judges.
         McKelvey appealed the Tax Court's ruling that he is not entitled to deduct various expenses relating to the development of his tree farm.  The USCA agreed with the Tax Court that the claimed deductions are "start-up expenses" that are not immediately deductible.  It thus affirmed.
         As a preliminary matter, the USCA agreed with the CIR that McKelvey's notice of appeal was timely.  A misdirected notice of appeal may be deemed timely by application of 28 USC Sec. 1631, authorizing "federal courts to transfer appeals in civil matters in order to cure a lack of subject matter or appellate jurisdiction."  Kolek v. Engen, 869 F.2d 1281, 1284 (9th Cir. 1989).  On the merits, the Tax Court correctly rejected McKelvey's claimed business deductions because he was not yet "carrying on a trade or business" as required by 26 USC Sec. 162(c).  The record indicates that McKelvey had only investigated the possibility of a tree farm by conducting studies and making a pilot planting.  Even at the time of the Tax Court's decision, McKelvey had not planted trees, harvested trees, or even decided what trees to plant.  Accordingly, the Tax Court did not err by ruling that McKelvey's expenses were start-up expenditures.  Finally, McKelvey sought to renew arguments that he abandoned in Tax Court.  The USCA declined to address issues abandoned and not addressed by the lower court.

3)  BANKRUPTCY:  Blecher v. Lore, 02-15523 (9th Cir. Sept. 25, 2003) (unpublished).  Hug, Gibson, and Fisher, Circuit Judges. 
 In 1994, Douglas and Jarrett Lore filed a proof of claim against Robert and Eva Blecher's bankruptcy estate based on legal malpractice allegedly committed by Rober Blecher.  On September 15, 2000, the bankruptcy court issue an order in which it allowed the claim in the amount of $86,349.41.  The Lores appealed this order to the district court, but while the appeal was pending the bankruptcy court entered another order on October 10, 2000 in which it declared that the Lores' claim against the Blechers had been discharged.  The district court
 concluded on the basis of this second order that since the discharge barred the Lores from recovering from the Blechers personally, the Lores' appeal of the Sept. 15 order was moot.  The Lores appeal, claiming that the district court erred in concluding that their appeal was moot.  The Blechers concede that the appeal was not moot but argue that the district court had no jurisdiction over the Lores' appeal from the September 15 order because that order was not final.  The USCA reversed, concluding that the district court had jurisdiction over the Lores' claim and that the Lores' appeal of the amount of their allowed claim is not moot.  The district court had jurisdiction over the Lores' appeal under 28 USC Sec. 158(a) (2000), because the bankruptcy court's Sept. 15 order was a final order.  A bankruptcy court order that allows a claim against the bankruptcy estate over the objection of the debtor is final.  In this case, the bankruptcy court's order of Sept. 15, 2000 expressly allowed the Lores' claim against the Blechers' bankruptcy estate in the amount of $86,349.41.  Nevertheless, the Blechers contend that the bankruptcy court's order did not conclusively determine that the Lores' claim was allowed because it did not resolve the question of what effect the Blechers' discharge would have on allowance.  In re Prestige Ltd. P'ship-Concord, 234 F.3d 1108 (9th Cir. 2000), held that a bankruptcy court order allowing a claim was final even though further proceedings were necessary to determine the amount of that claim, since the question of the amount of the claim would have no effect on the bankruptcy court's legal conclusion to allow the creditor's claim.  Similarly, in this case, the only consequence of the bankruptcy court's ruling on the discharge was that the Blechers are now no longer personally liable to the Lores for Robert Blecher's malpractice.  See 11 USC Sec. 524(a)(2000).  This ruling does not affect either the court's determination of the validity of the Lores' malpractice claim under Arizona law or its decision to allow the claim against the Blechers' estate.
         The USCA also concluded that the district court erred in dismissing the Lores' appeal as moot.  An appeal cannot be dismissed as moot as long as a party has a legally cognizable interest in the outcome of an appeal and the appellate court can grant some effective relief.  Here, although the Blechers' discharge prevents the Lores from recovering from the Blechers, the Lores have an interest in a final determination of the amount of their claim since the allowance of a claim against a debtor's bankruptcy estate is a final judgment with res judicata effect in a subsequent proceeding.  The Lores have an interest in such a final judgment because they seek to recover from Robert Blecher's malpractice insurer, and Arizona law requires the Lores to first obtain a final judgment against Blecher himself.  Since discharge affects only the Blechers' personal liability on the Lores' claim, and not the validity of that claim or the liability of any third party on that claim, 11 USC Secs. 524(a), (e) (2000), the Blechers' discharge does not moot the Lores' appeal.
        Finally, although the Blechers concede that the Lores' appeal is not moot, they argue that the district court lacks jurisdiction under 28 USC Sec. 1334(b) (2000) over any further proceedings on the Lores' claim.  The Blechers contend that since their discharge includes the Lores' claim, this claim can no longer affect the Blechers' bankruptcy estate and thus is no longer "related to" the underlying bankruptcy case.  See. In re Fietz, 852 F.2d 455 (9th Cir. 1988).  However, the discharge of a debtor does not automatically deprive the federal courts of jurisdiction over a claim related to the bankruptcy.  See In re Kieslich, 258 F.2d 969 (9th Cir. 2001).  Rather, the district court has the discretion to retain jurisdiction over this proceeding on the Lores' claim after considering judicial economy, comity, and fairness and convenience to the litigants.  In re Carraher, 971 F.2d 327 (9th Cir. 1992) (per curiam). 
                 The USCA thus reversed the district court's decision and remanded for further proceedings. 

4)  BANKRUPTCY:  In re Desmond, 02-16592 (9th Cir. Sept. 19, 2003) (unpublished).  B. Fletcher, Silverman, and Wardlaw, Circuit Judges.
         Koewler appealed pro se the judgment of the Bankruptcy Appellate Panel ("BAP") dismissing his appeal from two orders of the bankruptcy court.  These orders overruled Koewler's objection to the bankruptcy trustee's Final Report in the discharge proceeding of Koewler's ex-wife, approved the Final Report, and denied reconsideration. 
           The USCA affirmed.  The bankruptcy court did not err by rejecting Koewler's argument that the trustee's Final Report should not be approved because the trustee had not properly carried out his duties.  The USCA noted that it could not consider Koewler's contention that his financial interests were harmed by the trustee's allegedly insufficient investigation because Koewler did not file either a claim against the estate or an adversary proceeding, despite having been served with notice of all relevant bankruptcy proceedings.  Moreover, Koewler raised this argument for the first time on appeal to the USCA.

5)  LEGISLATIVE IMMUNITY / ATTORNEYS' FEES:  LaConner Assoc. v. Berg, 01-36167 (9th Cir. Sept. 10, 2003) (unpublished). Alarcon, Gould, and Clifton, Circuit Judges. 
        Appellant LaConner Associates brought this action under 42 USC Sec. 1983 seeking damages against Eron Berg, the mayor of the Town of LaConner, Washington, and Dan O'Donnell, Mary Lam, Joan Cross, and John Stephens, members of the Town Council (collectively "Appellees").  The Appellees filed a motion to dismiss pursuant to Federal R. Civil Proc. 12(b)(6) in which they assert that they are not liable for damages based on the defense of legislative immunity.  The district court granted the 12(b)(6) motion and awarded attorney's fees to the Appellees pursuant to 42 USC Sec. 1988.  LaConner Associates appealed both orders. 
        The USCA affirmed, agreeing that the Appellees are protected from liability under the doctrine of legislative immunity.  The USCA also concluded that the district court did not abuse its discretion in awarding attorney's fees.  Because the USCA concluded that this appeal is frivolous, it granted the Appellees' motion for attorneys' fees for defendant against this appeal and remanded for a determination of the reasonable amount of fees that should be awarded.
         First, LaConner Associates asserts that the Appellees are not entitled to legislative immunity because the Appellees' actions constituted ad hoc decision-making and "were not of a genuine legislative character, primarily because they were directed at only two property owners and not the community as a whole."  However, the USCA noted that under Bogan v. Scott-Harris, 523 US 44, 54 (1998), "local legislators are entitled to absolute immunity from Sec. 1983 liability for their legislative activities."  Kaahumanu v. County of Maui, 315 F.3d 1215, 1220 (9th Cir. 2003), summarized the factors to be considered in determining whether a local legislator is entitled to absolute immunity as follows:  "We determine whether an action is legislative by considering four factors: (1) whether the act involves ad hoc decision making, or the formulation of policy;  (2) whether the act applies to a few individuals, or to the public at large;  (3) whether the act is formally legislative in character;  and (4) whether it bears all the hallmarks of traditional legislation."  Kaahumanu also noted that these factors are not mutually exclusive.  The record shows that the Town enacted a moratorium that brought a halt to all development in the south end industrial area prior to modifying its general zoning ordinance.  As issue in the instant case was whether the facts in the record support LaConner Associates' contention that the Appellees' actions were ad hoc because only two parcels of land were affected by the moratorium and the zoning change.  An ad hoc decision is one made "for the particular end or purpose at hand and without reference to wider application.  Kuzinich v. County of Santa Clara, 689 F.2d 1345, 1349 (9th Cir. 1982), held that local legislators who adopted an "emergency ordinance" pending the adoption of a "formal ordinance" stopping a plaintiff's permit applications, had absolute immunity because their acts were legislative.  "Although the ordinance may have had an immediate practical effect on only two parcels of land [held by the same owner], by its terms the ordinance applied to all parcels within the covered area."  Kaahumanu, 315 F.3d at 1220 (discussing Kuzinich, 689 F.2d at 1348).  The Washington Supreme Court has determined that a vote on a building moratorium is a legislative act.  In re Recall of Ackerson, 20 P.3d 930, 935 (Wash. 2001).  In addition, the U.S. Supreme Court has held that a court must remove "all considerations of intent or motive" when assessing a plaintiff's assertion that absolute legislative immunity does not apply in a given case.  Bogan, 523 U.S. at 55.
         Here, the Town Council adopted a moratorium at a council meeting held on the same day as the submission of LaConner Associates' building permit application.  The moratorium, and the modified comprehensive general zoning ordinances that followed, affected the Town's entire south end industrial area and brought a halt to all development in that area.  Although the "immediate practical effect," of the Town's zoning policy was only felt by LaConner Associates, the moratorium and zoning change "applied to all parcels within the covered area."  Kaahumanu, 315 F.3d at 1220.  Consequently, whatever the Town Council members' motives, their decisions were not ad hoc.  General legislative acts that have an inordinate impact on one individual to not necessarily deprive legislators of absolute immunity.  Here, two parcels make up the south end industrial area.  One of the parcels, however, is over three acres and the other is the LaConner Pier.  The Appellees' zoning and moratorium ordinances were adopted and the application to lease property from the State of Washington Department of Natural Resources was made as part of the Town's decision to develop public access improvements on the Town's waterfront.  The zoning and moratorium ordinances and the lease application were all part of the planning process that affected the general population of the Town.  The Appellees' zoning, planning, moratorium, regulatory, and lease application actions constituted acts of general legislation.  The Appellees' actions were "formally legislative in character [and bear] all the hallmarks of traditional legislation."  Kaahumanu, 315 F.3d at 1220.  These actions consisted of investigation, discussion, and decision-making in regard to the creation of discretionary municipal land use policies.  The district court did not err in granting the Appellees' motion to dismiss based on clearly-established jurisprudence relating to legislative immunity.
       LaConner Associates maintained that the district court abused its discretion in awarding attorneys' fees to the Appellees pursuant to 42 USC Sec. 1988, which permits fees to be awarded to a prevailing party in a civil rights case if the plaintiff's claims are unreasonable, frivolous, meritless, or vexatious.  See Margolis v. Ryan, 140, 140 F.3d 850, 854 (9th Cir. 1998).  The district court found that "Plaintiff's suit against these individual Appellees was without foundation, with evidence of bad faith and harassment."  The district court stated that "Plaintiff, represented by counsel, either knew or should have known that a suit against individual city counsel [sic] members and the mayor regarding their voting, drafting, debating, and lobbying would be barred by legislative immunity."  The district court noted that LaConner Associates had the opportunity to drop the individual Appellees from the action after it was put on notice that the action against them was frivolous and that they would seek attorney's fees if they were not dropped from the action, but it chose not to do so.  In addition, the district court explained that LaConner Associates' "litigation position" would not have been "significantly changed" if the action had not included the individual Appellees.  The district court gave credence to the Appellants' declarations stating that they believed that the action was brought against them as part of a long campaign by LaConner Associates to get them to change their official positions under the threat of personal financial ruin.  However, the USCA noted that the law is clear that no matter what their motive "local legislators are entitled to absolute immunity from Sec. 1983 liability for their legislative actions," Bogan, 523 US at 54, and "that the enactment of a general zoning ordinance is a legislative act."  The district court did not abuse its discretion in concluding that the Appellees were entitled to attorneys' fees because LaConner Associates failed to make a reasonable inquiry into the applicable law and facts before filing this action.  Finally, LaConner Associates maintains that the attorneys' fees awarded were excessive.  It argues that effort expended by the individual Appellees' counsel could have been used to defend the Town had LaConner Associates maintained its action against the Town.  LaConner Associates asserts that, since the Appellees only prevailed on the grounds of legislative immunity, only funds expended in pursuit of that defense should be recoverable by the Appellees.  However, the USCA noted that Webb v. Sloan, 330 F.3d 1158 (9th Cir. 2003), held that the extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorneys' fees under Sec. 1988.  Where a plaintiff has obtained excellent results his attorney should recover a fully compensatory fee.  Webb further determined that courts should deduct attorneys' fees incurred in pursuit of claims "entirely distinct and separate from the claims on which the plaintiff prevailed.  "Related claims" are those that "involve a common core of facts or are based on related legal theories.  Here, of all Appellees' defenses related to a "common core of facts" and the results have been "excellent" for the Appellees.  The district court did not err in awarding attorneys' fees for all the work entailed in preparing each of the defenses to the claims asserted by LaConner Associates.  When calculating attorneys' fees awarded under the aegis of a statute, a district court must use the "lodestar method."  Staton v. Boeing Co., 327 F.3d 938, 965 (9th Cir. 2003).  The district court employed the lodestar method and reviewed the fees for reasonableness.  LaConner Associates failed to demonstrate that the fee award was excessive.

6)  AMERICANS WITH DISABILITIES ACT:  McClure v. Cook, 02-35403 (9th Cir. Sept. 16, 2003) (unpublished). Pregerson, Thomas, and Paez, Circuit Judges. 
         Oregon state prisoner McClure appealed pro se the district court's order granting partial summary judgment, order dismissing a deceased party, and bench trial verdict for defendants on his deliberate indifference and retaliation claims under the Eighth Amendment, the Americans with Disabilities Act ("ADA"), and the Rehabilitation Act ("RA"). 
         The USCA affirmed the summary judgment, but vacated the bench trial verdict and remanded for a jury trial.  The summary judgment was proper on McClure's claims against Knox in her supervisory capacity because McClure presented no evidence that Knox's alleged failure to supervise medical personnel resulted in a constitutional violation.  Dismissal of McClure's claims against a deceased party was proper, because McClure failed to move to substitute parties within 90 days of receiving notice that the party had died.  However, the USCA found that McClure's contention that the district court impermissibly interfered with this Seventh Amendment right to a jury trial had merit.  Federal courts must indulge every reasonable presumption against the waiver of the jury trial, and this is particularly true where a party is appearing pro se.  Compelling McClure to choose between consenting to a bench trial, or waiting until the end of his period of incarceration to try his case before a jury, rendered his waiver of the right to jury trial less than voluntary.  The district court's error was not harmless because a reasonable jury could have found for McClure on his Eighth Amendment claim under 42 USC Sec. 1983, as well as his ADA and RA retaliation claims. 

7)  HATE CRIMES / BANK FRAUD / FAIR TRIAL:  USA v. Maad, 02-30196 (9th Cir. Sept. 10, 2003) (unpublished).  Pregerson, Canby, and McKeown, Circuit Judges. 
         A confluence of extraordinary and unique events enveloped this case.  These include the vandalism of an Anchorage print shop owned by Maad, an Arab-American, on September 22, 2001, less than two weeks after the tragic attacks on the World Trade Center and the Pentagon.  Maad's print shop suffered extensive damage to its equipment and was defaced by the words "We hate Arabs."  The Anchorage community came together in an outpouring of support for Maad and his wife.  Anchorage residents established a "Not In Our Town" fund to support the Maads.  And the FBI launched a hate crime investigation into the vandalism of Maad's store.  On December 11, 2001, federal prosecutors publicly announced that they were dropping the hate crime investigation.  On the same day, the government charged Maad by a criminal complaint with committing bank fraud.  On December 18, 2001, a grand jury returned an indictment.  The next day, December 19, 2001, the government stated in court during a bail hearing that Maad and his wife were suspects in the vandalism of Maad's print shop.  The community turned against Maad and the "Not In Our Town" fund to support the Maads was immediately frozen.  The trial date was set for February 4, 2002, 54 days after Maad was arrested.  On December 19, 2001, a federal public defender was appointed to represent Maad, 40 days before the trial date.  The Maads were subject to a cascade of publicity.  From the date their store was vandalized through the period proceeding the trial, the four Anchorage television stations broadcast 124 news accounts that related to vandalism of Maad's print shop, the Anchorage community's initial sympathy and support for Maad and his wife, the government's criminal charges of bank fraud against Maad, the government's termination of the hate crime investigation, and the government's statement at Maad's bail hearing that the Maads were suspects of the vandalism at the print shop.  And the only daily newspaper in Anchorage, The Anchorage Daily News, ran regular front-page stories on the print shop vandalism, the outpouring of community support, the government's charges and accusations against Maad, and the community's negative reaction toward Maad after he was named a suspect in the vandalism to his store.
        As a result of the extensive media coverage in Anchorage, Maad's counsel on January 4, 2002 asked for a change of venue to a federal court within the District of Alaska, but outside of Anchorage or for a change of venue to a federal court outside of the District of Alaska.  The District Court for Alaska, Judge Singleton presiding, denied Maad's request on January 28, 2002 and Maad's case went to trial on February 4, 2001 as scheduled.  Maad was convicted on all counts.  He was sentenced to 12 months in prison and five years of supervised release, and was ordered to make restitution to the banks and the Small Business Administration.  Bail was denied pend-ing appeal.  Maad has since served his sentence of imprisonment. 
        At issue on appeal is a claim of presumptive prejudice rather than actual prejudice.  See Harris v. Pully, 885 F.2d 1354 (9th Cir. 1989) ("Prejudice is presumed when the record demonstrates that the community where the trial was held was saturated with prejudice and inflammatory media publicity about the crime.")  Given the confluence of the extraordinary events described above, the district court abused its discretion.  The USCA revered the denial of Maad's motion for a change of venue to a federal court outside of Anchorage.  Those events, viewed in their entirety, precluded Maad from obtaining a fair trial in Anchorage.