2)  ENVIRONMENTAL LAW:  Bayview Hunters Point Community Advocates v. Metro Transportation Commission, 02-17352 (9th Cir. April 6, 2004).  Transportation Control Measure 2, adopted as part of a plan to attain federal air quality standards in the San Francisco Bay Area, did not impose an enforceable obligation on the defendant to increase public transit ridership. Hawkins, Thomas (dissenting), and Clifton (author), Circuit Judges.  D. Cooke of San Francisco, CA, for the defendant-appellant;  D. Reames of Oakland, CA, for the plaintiffs-appellees.   (Download the full text of this decision at www.cc9.uscourts.gov/)

3)  BANKRUPTCY:  Miller v. USA, 02-17073 (9th Cir. Apr. 13, 2004).  The interplay of Bankruptcy Code Secs. 1141(d)(2), 523(a)(1)(A), and 507(a)(8) rendered an IRS claim for unpaid withholding taxes nondischargeable by a confirmed Chapter 11 bankruptcy plan, whether or not that claim was secured.  Hall (author), T.G. Nelson, and Graber, Circuit Judges.  D. Kutzko and Cedar Rapids, Iowa, for the appellant;  J. McElvain of Washington, DC, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

4)  BANKRUPTCY:  In re Treesource Industries, Inc., 03-35018 (9th Cir. Apr. 12, 2004).  Because the debtor's obligations under the terms of a commercial property lease to remove a concrete slab and restore the premises to their pre-lease condition did not arise until the trustee rejected the lease, expenses associated with complying with these obligations were unsecured and could not be treated as an administrative expense claim under Bankruptcy Code Sec. 365(d)(3).  O'Scannlain, Rymer (author), and Bybee, Circuit Judges.  T. Dore of Seattle, WA, for the plaintiff-appellant;  J. Kaplan of Seattle, WA, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

5)  BANKRUPTCY:  Latman v. Burdette, 02-35538 (9th Cir. Apr. 29, 2004).  Surcharging the debtors' "wild card" exemption to account for funds not properly disclosed in the debtors bankruptcy filings, was a permissible equitable remedy under the Bankruptcy Code and not barred by either the election of remedies or res judicata;  the trustee was not barred by the doctrines of election of remedies or res judicata from pursuing both a denial of discharge and a subsequent surcharge against the debtors' Bankruptcy Code exemptions;  the surcharge remedy fashioned by the bankruptcy judge did not exceed the equitable powers of the bankruptcy court.  Trott, Fisher, and Gould (author), Circuit Judges.  L. Engel of Seattle, WA, for the appellants / cross-appellees;  A. Wenkour of Seattle, WA, for the appellee / cross-appellant. (Download the full text of this decision at www.cc9.uscourts.gov/)

6)  CONSUMER LAW:  Federal Trade Commission v. Enforma Natural Products, Inc., 02-56842, 02-57078 (9th Cir. Apr. 1, 2004).  In these consolidated cases, due to irregular procedures employed by the district court, the USCA vacated and remanded two preliminary injunctions restricting the sale and marketing of the defendant's diet supplement products;  in appeal 02-56842, the USCA remanded for proper findings of fact supported by a record made in open court and instructed the district court to clarify the status and role of the court-appointed expert in accord with this opinion;  in appeal 02-57078, the USCA instructed the district court to review the parties' stipulated proposed preliminary injunction, to identify the court's objections, and to provide the parties an opportunity to respond to the court's concerns; alternatively, the USCA said the district court may, upon notice, enter a different form of preliminary injunction supported by findings of fact and conclusions of law on the record.  Beezer (author) and Fisher, Circuit Judges, and England, District Judge.  J. Quinn of Washington, DC, for the appellants;  L. DeMille-Wagman of Washington, DC, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

 7)  WHISTLEBLOWERS:  CalMat Co. v. U.S. Dept. of Labor, 02-73199 (9th Cir. Apr. 19, 2004).  CalMat Company was properly found to have violated the whistleblower protection provision of the Surface Transportation Assistance Act (STAA) when it suspended an employee without pay after he voiced safety complaints;  the ALJ did not err in apply the burdens of proof for demonstrating retaliation in violation of the STAA, and the Administrative Review Board (ARB) properly affirmed the ALJ's decision on the basis of pretext;  likewise, the ARB's conclusions that any hearsay evidence admitted in error did not prejudice CalMat and that the ALJ appropriately refused to defer to the employee's grievance arbitration were not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.  B. Fletcher (author), Pregerson, and Ferguson, Circuit Judges.  M. Monk of Los Angeles, CA, for the petitioner;  L. Grabel of  Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

8)  FRAUD / UNFAIR COMPETITION:  City Solutions, Inc. v. Clear Channel Communications, 03-15249 (9th Cir. Apr. 23, 2004).  The district court erred in granting a judgment as a matter of law (JMOL) to the defendant on a fraud claim, as there was a legally sufficient basis for a jury to find that the plaintiff might have won the contract for a citywide news rack project absent defendant's fraudulent conduct;  however, the USCA upheld the denial of JMOL on a common law unfair competition claim.  Hug, Alarcon (author), and W. Fletcher, Circuit Judges.  N. Brestoff of Los Angeles, CA, for the plaintiffs-appellee;  D. Mason of San Francisco, CA, for the defendant-appellants. (Download the full text of this decision at www.cc9.uscourts.gov/)

9)  JURISDICTION:  Coyle v. P.T. Garuda Indonesia, 01-35784 (9th Cir. Apr. 12, 2004).  Federal courts lacked jurisdiction over Garuda airlines in this torts action arising out of a plane crash in Indonesia;  the tickets were marked "domestik," were not connected to decedents' international itinerary, and were purchased and issued in Indonesia;  in sum, the parties regarded the flight as purely Indonesian domestic transportation not within the ambit of the Warsaw Convention.  O'Scannlain (author), Fernandez, and Fisher, Circuit Judges.  A. Reitzfeld of New York, NY, for the defendant;  F. Wisner of Chicago, IL, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

10)  TORTS / MINING LAW:  Olson v. USA, 03-15141 (9th Cir. Apr. 2, 2004).  The plaintiffs were permanently disabled when a nine-ton slab of earth fell from the ceiling of the mine where they were working;  they sued the Mine Safety and Health Administration (MSHA) under the Federal Tort Claims Act (FTCA) alleging that the Agency was liable for their injuries due to its negligence in carrying out or failing to carry out mandatory MSHA policies and procedures;  the plaintiffs subsequently appealed the district court's entry of final judgment on their FTCA claims pursuant to the government's motion to dismiss the complaint under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) on the grounds that the discretionary-function exception to the FTCA shielded the government from liability on the plaintiffs' claim, and that no tort action was available for similar conduct under Arizona law.  The USCA disagreed on both counts and reversed and remanded for further proceedings.  B. Fletcher and Reinhardt, Circuit Judges, and Restani, Court of Intl. Trade Judge. Per Curiam.  T. Cotter of Tucson, AZ, for the plaintiffs-appellants;  AAG P. Keisler of Washington, DC, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

11)  REGULATORY TAKINGS:  Chevron USA, Inc. v. Bronster, 02-15867 (9th Cir. Apr. 1, 2004).  Applying the "substantially advances" test of Yee v. City of Escondido, 503 US 519 (1992), the USCA held that Hawaii's Act 257, which regulates the rent an oil company can charge its dealer/lessees, effects a regulatory taking in violation of the Takings Clause of the Fifth Amendment to the U.S. Constitution.  Dissenting, Judge Fletcher thought that the only possible basis for the application of the "substantially advances" test to a rent control statute was dictum in Yee, a case in which the Supreme Court upheld a mobile home rent control ordinance against a physical takings challenge;  it is, Judge Fletcher thought, a long ways from that Yee dictum to the majority's holding here as Yee did not say that, even in a case where there was an actual premium, that the "substantially advances" test would apply;  nor did it say that where there was only the probability of a premium, instead of an actual premium; and, here the premium was neither actual nor a mere probability;  rather, in all likelihood, it did not exist.  D.W. Nelson, Beezer (author), and W. Fletcher (dissenting), Circuit Judges.  R. Dreher of Washington, DC, for the defendants-appellants;  C. Stewart of San Francisco, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

12)  ZONING / TAKINGS:  San Remo Hotel v. San Francisco, 03-15853 (9th Cir. April 14, 2004).  Because the California Supreme Court's adjudication of the state takings claims in this case was an "equivalent determination" of the federal takings claims, issue preclusion barred the plaintiffs from relitigating this challenge to a hotel ordinance which restricts an owner's ability to convert "residential" hotel rooms to tourist use.  Fernandez, Hawkins (author), and Thomas, Circuit Judges.  P. Utrecht of San Francisco, CA, for the plaintiffs-appellants;  A. Schwartz of San Francisco, CA, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

13)  ADMIRALTY / WORKERS' COMPENSATION:  O'Neil v. Bunge Corp., 02-71248 (9th Cir. Apr. 23, 2004).  Edward O'Neil, as the personal representative of the estate of Raymond O'Neil, appealed the denial of Raymond's claim for benefits by the Department of Labor Benefits Review Board (BRB).  The USCA affirmed the BRB's decision and order, finding that the settlement of the decedent's benefits claim was not enforceable under the Longshore and Harbor Workers' Compensation Act because the decedent never signed the settlement application.  Goodwin, McKeown, and Fisher (author), Circuit Judges.  M. Flynn of Portland, OR, for the petitioner;  J. Beattie of Portland, OR, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

14)  LABOR LAW:  Chamber of Commerce v. Lockyer, 03-55166 (9th Cir. Apr. 20, 2004).  A California statute forbidding employers who receive state funds in excess of $10,000 from using the funds to advocate for or against union organizing is preempted by the National Labor Relations Act;  California, acting as regulator, not proprietor in imposing the restrictions, acted to undermine federal labor policy by altering Congress' design for the collective bargaining process.  Beezer and Fisher (author), Circuit Judges, and England, District Judge.  DAG S. Ambrose of Sacramento, CA, for the defendants;  B. Kampas of San Francisco, CA, for the plaintiffs.  (Download the full text of this decision at www.cc9.uscourts.gov/)

15)  EMPLOYMENT LAW:  Bodett v. CoxCom, Inc., 03-15112 (9th Cir. Apr. 26, 2004).  It is undisputed that plaintiff's remarks to an openly gay subordinate violated her employer's harassment policy;  the plaintiff did not raise an inference of disparate treatment and did not argue a concomitant "failure to accommodate" theory of discrimination;  she also did not offer evidence of animus towards her religious beliefs as the true reason for her termination;  the USCA upheld summary judgment for the employer.  Fernandez, Hawkins (author), and Thomas, Circuit Judges.  S. Keist of Glendale, AZ, for the plaintiffs;  R. Mahrle of Phoenix, AZ, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

16)  CIVIL PROCEDURE / EMPLOYMENT LAW:  Casey v. Albertson's Inc, 02-57198 (9th Cir. Apr. 5, 2004).  When the parties treat a fully dispositive summary judgment order as if it were a final judgment, the requirement of Federal Rule Civil Procedure 58 that the judgment "be set forth on a separate document" can be waived.  Silverman (author), Gould, and Bea, Circuit Judges.  P. Barry of Los Angeles, CA, for the plaintiff;  K. Talley of Los Angeles, CA, for the defendant. (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  PROTECTED SPEECH / EMPLOYMENT LAW:  Settlegoode v. Portland Public Schools, 02-35260 (9th Cir. Apr. 5, 2004).  The USCA reversed and remanded the judgment as to retaliation for exercising First Amendment rights claims brought by a teacher who complained to school officials of inadequacies in programs for students with disabilities;  the jury found for the teacher and awarded her $500,000 in non-economic damages, $402,000 in economic damages, and $50,000 in punitive damages;  however, the magistrate judge granted the defendants' motion for judgment as a matter of law on all causes of action and held that the officials were entitled to qualified immunity on the teacher's 42 USC Sec. 1983 claim.  The USCA noted that the jury was entitled to find that the teacher's protected speech, rather than any inadequacy in her written individualized education programs, was the reason for her termination;  the USCA instructed that the district court enter judgment for the teacher consistent with the verdict, plus post-judgment interest and attorneys' fees under 42 USC Sec. 1988;  it also referred the case to the Appellate Commissioner for a determination of the teacher's attorneys' fees on appeal.  D.W. Nelson, Kozinski (author), and McKeown, Circuit Judges.  C. Merten of Portland, OR, for the plaintiff;  B. Campbell of Portland, OR, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

18)  ARBITRATION:  Lifescan, Inc. v. Premier Diabetic Services, 01-16124 (9th Cir. April 13, 2004).  When informed that defendant could not afford to pay its pro-rata share of arbitration fees, the arbitrators acted within their discretion in allowing the arbitration to proceed on the condition that the plaintiff advance the defendant's fees.  Kozinski (author), Graber, and Berzon, Circuit Judges.  L. Bloomfield of Oakland, CA, for the defendant;  G. Lafayette of San Francisco, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

19)  ARBITRATION:  Televisa S.A. De C.V. v. DTVLA WC Inc., 02-56798 (9th Cir. Apr. 1, 2004). The district court properly granted defendant's motion to compel arbitration, pursuant to agreements granting plaintiff the right to telecast World Cup matches;  as plaintiff could not establish a likelihood of success, or any serious question going to the merits, the USCA upheld the denial of its motion for a preliminary injunction.  Goodwin and Beezer (author), Circuit Judges, and Schwarzer, District Judge.  H. Kim of Los Angeles, CA, for the appellant;  R. Crockett of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

20)  ADMIRALTY / CIVIL FORFEITURE:  USA v. Able Time, Inc., 02-57014 (9th Cir. Apr. 28, 2004).  The district court had subject matter jurisdiction over this civil forfeiture case, notwithstanding an untimely service of process per the Supplemental Rules for Certain Admiralty and Maritime Claims.  The USCA remanded for a determination of the consequences of the government's untimely service.  Reinhardt (dissenting), Thompson (author), and Wardlaw, Circuit Judges.  AUSA J. Lee of Los Angeles, CA, for the appel-lant;  E. Pollack of Los Angeles, CA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  SANCTIONS:  Computer Task Group, Inc. v. Brotby, 01-36006 (9th Cir. Apr. 19, 2004).  In light of the defendant's egregious record of discovery abuses, the district court did not abuse its discretion in adopting the magistrate judge's recommendation and imposing terminating sanctions under Fed. R. Civ. Proc. 37(b)(2) on the defendant;  the defendant's "abiding contempt and continuing disregard for [the magistrate's] orders" justified the sanction of dismissal and default.  Kozinski and Noonan, Circuit Judges, and Schwarzer, District Judge.  Per Curiam.  S. Hufstedler of Los. Angeles, CA, for the defendants;  V. Fisher of Phoenix, AZ, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

22)  DEBT COLLECTION:  Turner v. Cook, 02-16847 (9th Cir. Apr. 1, 2004).  Claims brought under the Fair Debt Collection Practices Act (FDCPA) and RICO were properly dismissed. A tort judgment resulting from business-related conduct does not constitute a "debt" under the FDCPA;  having failed to aver that the alleged acts of mail fraud, wire fraud and obstruction of justice had the requisite continuity, the appellants did not sufficiently allege a "pattern" of racketeering activity.  B. Fletcher and Tashima, Circuit Judges, and Pollak (author), District Judge.  H. Franck of Sacramento, CA, for the appellants;  T. Aires of San Francisco, CA, for the appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

23)  LEGAL MALPRACTICE:  Harrigfeld v. Hancock, 01-35525 (9th Cir. Apr. 5, 2004).  Under Idaho law, if, as a proximate result of an attorney's professional negligence, the testator's intent as expressed in the testamentary instruments is frustrated in whole or in part and the beneficiary's interest in the estate is either lost, diminished, or unrealized, the attorney would be liable to the beneficiary harmed even though the attorney did not have a direct attorney-client relationship with that beneficiary.  Wallace, Trott (author), and Tashima, Circuit Judges.  A. Ellis of Boise, ID, for the plaintiffs;  T. High of Twin Falls, ID, for the defendants.  (Download the full text of this decision at www.cc9.uscourts.gov/)

24)  ADMINISTRATIVE LAW:  Olsen v. Idaho State Bd. Of Medicine, 02-35796 (9th Cir. Apr. 7, 2004).  The district court correctly dismissed the plaintiff's complaint, which alleged that the defendants' actions revoking and denying her physician assistant's license were motivated by their sentiments about her membership in the Mormon Church;  the defendants were functionally comparable to judges and prosecutors and thus entitled to absolute immunity for their quasi-judicial and quasi-prosecutorial acts;  none of the defendants alleged administrative acts supported a 42 USC Sec. 1983 claim and the plaintiff's 42 USC Sec. 1985 claim failed to allege sufficient facts to support a cause of action for conspiracy;  the plaintiff also could not state a claim under the Idaho Free Exercise of Religion Act since the Idaho legislature did not intend the Act to apply retroactively to conduct occurring prior to the statute's enactment.  Trott (author), Fisher, and Gould, Circuit Judges.  B. Hager of Phoenix, AZ, for the plaintiff;  DAG J. Carlson and D. Lombardi of Boise, ID, for the defendants. (Download the full text of this decision at www.cc9.uscourts.gov/)

25)  VOTING:  USA v. Blaine County, 02-35691 (9th Cir. Apr. 7, 2004).  The Voting Rights Act, Sec. 2, which prohibits voting procedures resulting in a denial of the right to vote, is a constitutional exercise of Congress' Fourteenth and Fifteenth Amendment enforcement powers;  the defendant's "at-large" voting system for electing members to its County Commission violated Sec. 2.  Wardlaw, Gould, and Paez (author), Circuit Judges.  J. Detamore of Lakewood, CO, for the appellants;  L. Edwards of Washington, DC, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

26)  EVIDENCE / MEDICAL MALPRACTICE:  Sullivan v. U.S. Dept. of the Navy, 02-57006 (9th Cir. Apr. 23, 2004).  In excluding the proffered testimony of the plaintiff's medical expert in this Federal Torts Claims Act suit alleging medical malpractice, the district court misapprehended the evidence and applied an inappropriately rigid Daubert standard to the testimony;  the USCA thus reversed the district court's summary judgment for the defendant;  on remand, the USCA directed that the case be assigned to a different judge as, while not biased in favor of the government, the original judge had committed himself in writing to the government's view of the facts.  Noonan (author), Thomas, and Bea, Circuit Judges.  J. McElroy of San Diego, CA, for the plaintiff-appellant;  AUSA R. Tolles of San Diego, CA, for the defendant-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

27)  AMERICANS WITH DISABILITIES ACT:  Fortyune v. American Multi-Cinema, 02-57013 (9th Cir. Apr. 14, 2004).  Plaintiff was injured by a theater's policy of not giving the companions of disabled patrons priority in the use of wheelchair "companion seats" during sold-out screenings;  plaintiff had standing to, and in fact did established a viable claim of discrimination under the ADA. The district court's injunctive relief requiring the theater to ensure that wheelchair-bound patrons be permitted to sit beside their companions did not result in preferential treatment to the disabled and satisfied the specificity requirements of Fed. R. Civ. Proc. 65(d).  Browning, Reinhardt, and Wardlaw (author), Circuit Judges.  G. Hurley of Irving, CA, for the defendant-appellant;  R. Handy of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

28)  DISABILITY BENEFITS:  Moisa v. Barnhardt, 02-56672 (9th Cir. Apr. 16, 2004).  The ALJ's rejection of the claimant's pain testimony solely for lack of objective, corroborative medical evidence was clear error;  the claimant offered, and the ALJ found, that he suffered severe impairments capable of causing the pain;  because his testimony was the only issue, the USCA remanded for an award of benefits.  Kozinski and Noonan, Circuit Judges, and Schwarzer (author), District Judge.  Y. Cho of Santa Fe Springs, CA, for the plaintiff;  G. Gulseth of San Francisco, CA, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

29)  CONSENT DECREES / HEALTH LAW:  Jeff D. v. Kempthorne, 00-35948 (9th Cir. Apr. 23, 2004).  Consent decrees entered over two decades and aimed at remedying alleged constitutional and statutory violations in the provision of State of Idaho services to a class of more than 2,000 indigent, emotionally, and mentally disabled children, remain binding;  the USCA rejected the state officials attempt to invoke Eleventh Amendment immunity and their contention that the district court no longer had subject matter jurisdiction to enforce the decrees.  Browning, B. Fletcher (author), and Gould, Circuit Judges.  DAG J. Carpenter of Boise, ID, for the defendants;  H. Belodoff of Boise, ID, for the plaintiffs. (Download the full text of this decision at www.cc9.uscourts.gov/)

30)  HEALTH LAW:  Universal Health Services v. Thompson, 02-56611 (9th Cir. Apr. 13, 2004).  Contentions that the defendant committed four methodological errors in setting the 1991-1996 thresholds for "outlier payments," by which hospitals are reimbursed for patients with abnormally high costs, were properly found to have been waived by the plaintiffs' failure to raise them in the annual notice-and-comment rulemakings before the defendant.  Beezer and Kozinski, Circuit Judges, and Schwarzer (author), Circuit Judges.  L. Bookman of Los Angeles, CA, for the plaintiffs;  R. Green of Washington, DC, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

31)  HEALTH LAW:  Harris v. Board of Supervisors, Los Angeles County, 03-56028 (9th Cir. Apr. 27, 2004).  The record supported the conclusion that the life and health of indigent Los Angeles County residents, including the plaintiffs, would be threatened by the County's planned closure of one hospital and a reduction of the number of beds at another;  the district court' preliminary injunction barring the County from going forward with its plan was not an abuse of discretion.  Pregerson (author), Cowen, and W. Fletcher, Circuit Judges.  T. Coates of Los Angeles, CA, for the defendants-appellants;  M. Rosenbaum of Los Angeles for the plaintiffs-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

32)  ATTORNEY'S FEES:  Federal Savings and Loan Insurance Corporation and O'Neill, Lysaght & Sun v. Ferrante, 02-56581 (9th Cir. Apr. 6, 2004).  The district court had neither supplemental nor ancillary jurisdiction over a motion for attorneys' fees which arose from the plaintiff's efforts to enforce a promissory note from a client and which was wholly unrelated to the underlying actions.  Beezer and Kozinski, Circuit Judges, and Schwarzer (author), District Judge.  D. Cocas of Los Angeles, CA, for the appellant;  R. Sierralta of Los Angeles, CA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

33)  DISBARMENT / IMMIGRATION:  Gadda v. Ashcroft, 02-15113 (9th Cir. Apr. 1, 2004).  Federal law does not preempt the California Supreme Court's authority to suspend or disbar attorneys admitted to practice in California state courts;  the California Supreme Court's discipline orders may serve as the basis for reciprocal disbarment actions by both the Board of Immigration Appeals and the Ninth Circuit.  Beezer (author), Thomas and Clifton, Circuit Judges.  M. Gadda pro se;  AUSA J. Burton of San Francisco, CA, for the respondents-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

34)  IMMIGRATION:  Garcia-Cortez v. Ashcroft, 02-70866 (9th Cir. Apr. 27, 2004).  In their Notice of Appeal from the final order of removal, the petitioners provided sufficiently detailed reasons explaining how and why the Immigration Judge erred; their Notice of Appeal thus met the Board of Immigration Appeal's specificity requirement by providing meaningful notice of the precise issues contested on appeal;  a summary dismissal for failure to timely file a brief thus violated the petitioners' due process.  Hall (author), Trott, and Callahan, Circuit Judges.  J. Jasso of Los Angeles, CA, for the petitioners;  J. McAdams of Washington, DC, for the respon-dent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

35)  IMMIGRATION:  Velezmoro v. Ashcroft, 02-73244 (9th Cir. Apr. 1, 2004).  The USCA granted the motion of an alien to re-open his deportation proceedings as five years had elapsed since his grant of voluntary departure;  it remanded the case to the BIA for it to consider in the first instance whether former INA Sec. 242B continues to bar the petitioner from applying for adjustment of status;  the only penalty specified for failure to depart is ineligibility for certain immigration benefits for five years per 8 USC Sec. 1252b(e)(2)(A).  Dissenting, Judge Brunetti thought the five year bar was correctly applied by the BIA at the time of its decision, and that that was the only issue before the panel;  whether the petitioner is now eligible for an adjustment of status based upon this lapse in time was not an issue before the panel and whether he has forfeited his opportunity for relief by failing to abide by the immigration process should not persuade the panel.  B. Fletcher (author), Pregerson, and Brunetti (dissenting), Circuit Judges.  V. Yuzefpolsky of Beverly Hills, CA, for the petitioner;  J. Dryden of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

36)  IMMIGRATION: Azanor v. Ashcroft, 02-73599 (9th Cir. Apr. 1, 2004).  Azanor petitioned for review of a Board of Immigration Appeals order denying her motion to reopen deportation proceedings;  she maintained that the BIA abused its discretion by declining to reopen notwithstanding evidence that she suffered female genital mutilation and feared that her U.S. citizen 8-year-old daughter would suffer the same;  the USCA granted the petition with respect to Azanor's request for protection under the Convention Against Torture, but denied the petition with respect to Azanor's asylum and withholding of deportation claims.  Wallace (author), Noonan, and McKeown, Circuit Judges.  K. Pedersen of San Francisco, CA, for the petitioner;  R. Verby of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

37)  IMMIGRATION:  Nakamoto v. Ashcroft, 03-70421 (9th Cir. Apr. 1, 2004).  Because the determination under 8 USC Sec. 1227(a)(1)(G)(ii) is not committed entirely to the Attorney General's discretion, the USCA had jurisdiction to review the BIA's decision in this case;  the BIA's decision was supported by substantial evidence that the petitioner fraudulently entered her marriage for purposes of evading U.S. immigration laws.  The USCA denied the petition for review of the removal order.  Paez (author), Berzon, and Bea, Circuit Judges.  S. Strack of Honolulu, HI, for the petitioner;  A. Payne of Washington, DC, for the respondent.   (Download the full text of this decision at www.cc9.uscourts.gov/)

38)  IMMIGRATION / TERRORISM:  Bellout v. Ashcroft, 02-73413 (9th Cir. Apr. 12, 2004).  Bellout, a native and citizen of Algeria, petitioned for review of the BIA's summary affirmance of an IJ's denial of his application for asylum, withholding of removal and protection under the Convention Against Torture (CAT);  the IJ found Bellout statutorily ineligible for relief from deportation because he was engaged in terrorist activity when he joined the Armed Islamic Group (GIA), a State Department-recognized terrorist organization, in 1995 and lived in GIA camps in Algeria for three years.  Bellout was removed to Algeria.  Because the IJ found reasonable grounds to believe that Bellout engaged in or is likely to engage in terrorist activity under 8 USC Sec. 1158(b)(2)(A)(v), the USCA held that it lacked jurisdiction to review the IJ's determination that Bellout is ineligible for asylum by virtue of Sec. 1158(b)(2)(D;  second, the USCA found that substantial evidence supports the IJ's conclusion that Bellout is ineligible for withholding of removal; third, the USCA found that substantial evidence supports the IJ's denial of deferral of removal under CAT.  Kozinski, O'Scannlain, and Silverman (author), Circuit Judges.  J. Artz of South Pasadena, CA, for the petitioner;  AUSA E. Kanter of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

39)  IMMIGRATION:  Vukmirovic v. Ashcroft, 02-72110 (9th Cir. Apr. 5, 2004).  At issue in this case is the interpretation of the statutory "persecutor" exception to asylum eligibility;  the Immigration Judge erred as a matter of law in determining that "there is no provision under the law that exempts acts of self-defense from qualifying as persecution."  That construction of the statute is untenable on its face.  Fernandez, Hawkins, and Thomas (author), Circuit Judges.  L. Gordon of Los Angeles, CA, for the petitioner;  J. Light-body of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

40)  IMMIGRATION:  Medina-Morales v. Ashcroft, 02-73924 (9th Cir. Apr. 7, 2004).  In his motion to reopen removal proceedings, the petitioner sought to resurrect his application for adjustment of status based upon his relationship with his stepfather, an American citizen;  the Board of Immigration Appeals violated its own precedent by looking to the strength of the alien's relationship to his stepfather in denying the motion, as the BIA has said that "no qualifications beyond a valid marriage creating the step-relationship should be imposed."  D.W. Nelson, Fisher (author), and Gould, Circuit Judges.  S. Manning of Portland, OR, for the petitioner;  A. Poczter of Washington, DC, for the respondent.   (Download the full text of this decision at www.cc9.uscourts.gov/)

41)  IMMIGRATION: Reyes-Alcaraz v. Ashcroft, 02-71719 (9th Cir. Apr. 8, 2004).  The petitioner's service in the U.S. Armed Forces, along with his taking the standard military oath, did not alter his alien status to that of a "national" within the meaning of the INA and thus did not distinguish his situation from the one addressed in Perdomo-Padilla v. Ashcroft, 333 F.3d 964 (9th Cir. 2003);  exhibiting a deadly weapon with intent to resist arrest, in violation of California Penal Code Sec. 417.8, is a crime of violence and thus an "aggravated felony" under 8 USC Sec. 1101(a)(43)(F);  as held in Falcon Carriche v. Ashcroft, 350 F.3d 845, 850 (9th Cir. 2003), the BIA did not violated the alien's due process rights by issuing a one-judge order;  because the petitioner is an alien who is removable by reason of having committed an aggravated felony, and because the petitioner has demonstrated no due process violation, the USCA concluded that it lacked jurisdiction to consider the merits of his petition.  Hall and Graber (author), Circuit Judges, and Weiner, Circuit Judges.  M. Janossy of Glendale, CA, for the petitioner;  E. Molina of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

42)  IMMIGRATION:  Desta v. Ashcroft, 03-70477 (9th Cir. Apr. 14, 2004).  The USCA construed the alien's motion to stay removal, filed within the period given the alien to voluntarily depart, as including a timely motion to stay voluntary departure;  the USCA held that the temporary stay continued under General Order 6.4(c) and stays not only removal but also voluntary departure;  the stay of voluntary departure preserved the number of remaining days the alien had to depart voluntarily while the USCA considered the merits of the alien's petition for review.  Hug, Alarcon, and W. Fletcher (author), Circuit Judges.  D. Aguirre of San Diego, CA, for the petitioner;  J. Redfern of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

43)  IMMIGRATION:  De Martinez v. Ashcroft, 02-73939 (9th Cir. Apr. 16, 2004).  Service of an order to the alien's attorney, noting the penalties for failure to depart voluntarily constituted adequate notice to the alien herself per 8 USC Sec. 1229c(d);  the alien was correctly found ineligible for relief due to her failure to depart voluntarily.  Alarcon (author), Beezer, and W. Fletcher, Circuit Judges.  F. Sprouls of San Francisco, CA, for the petitioner;  T. Ragland of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

44)  IMMIGRATION / DISCOVERY / LABOR LAW:  Rivera v. NIBCO, Inc., 02-16532 (9th Cir. Apr. 13, 2004).  The USCA upheld a protective order denying discovery to inquire into plaintiffs' immigration status and eligibility for employment;  the district court properly found that such discovery would unduly burden the plaintiffs;  the defendant had the opportunity to examine their status upon hiring, and their status was irrelevant to the question of liability in this case.  Reinhardt (author), Siler (concurring), and Hawkins, Circuit Judges.  S. Hedgpeth-Harris of Fresno, CA, for the appellants;  C. Ho of San Francisco, CA, for the appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

45)  IMMIGRATION:  Kalubi v. Ashcroft, 02-73945 (9th Cir. Apr. 19, 2004).  The USCA disagreed with the BIA holding that although the IJ's finding that the petitioner's testimony was not forthcoming was insufficient to justify an adverse credibility ruling under Circuit law, this finding could support the discretionary denial of asylum;  the USCA held that if an applicant's testimony is found credible for purposes of determining whether he is statutorily eligible for asylum, the same testimony must be accepted for purposes of determining whether he is entitled to asylum as a discretionary matter. O'Scannlain, Rymer (author), and Bybee, Circuit Judges.  D. Tarshes of Seattle, WA, for the petitioner;  A. MacLachlan of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

46)  IMMIGRATION:  Tawadrus v. Ashcroft, 02-72349 (9th Cir. Apr. 15, 2004).  The alien was prejudiced by the IJ's failure to properly obtain a knowing and voluntary waiver of counsel;  this abuse of discretion by the IJ potentially affected the outcome of the hearing, creating a level of prejudice tantamount to a violation of the alien's due process rights.  Fernandez, Hawkins (author), and Thomas, Circuit Judges.  D. Korenberg of Sherman Oaks, CA, for the petitioner;  J. Lightbody of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

47)  IMMIGRATION:  USA v. Rivas-Gonzalez, 03-30167 (9th Cir. Apr. 22, 2004).  In sentencing a defendant charged with illegal reentry after having been previously removed, a downward departure based on cultural assimilation was not, as a matter of law, available under the circumstances of this case where the asserted assimilation arose primarily after the illegal entry.  Kleinfeld, Gould (author), and Tallman, Circuit Judges.  W. Mercer of Billings, MT, for the plaintiff;  M. Harrison and D. Avery of Missoula, MT, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

48)  IMMIGRATION:  Martinez-de Bojorquez v. Ashcroft, 02-73014 (9th Cir. Apr. 22, 2004).  The application of 8 CFR Sec. 1003.4 without notice constituted a violation of due process;  petitioner's original appeal to the BIA was not withdrawn and the IJ erred in finding that she was ineligible for relief under former INS Sec. 212(c) as she was no longer a legal permanent resident;  due process entitles a legal permanent resident, found to be deportable, to direct notice that her appeal will be deemed waived under Sec. 1003.4 if she leaves the country for even a minute.  B. Fletcher (author), Pregerson, and Brunetti, Circuit Judges.  G. Finn of Indio, CA, for the petitioner;  J. Dryden of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

49)  IMMIGRATION:  Gormley v. Ashcroft, 02-74091 (9th Cir. Apr. 22, 2004).  Although the petitioners may have suffered adverse economic consequences from South Africa's Employment Equity Act 55 of 1998, which was designed to ameliorate past discrimination against the country's black population, and which allegedly caused the petitioners to lose their longtime jobs on account of their race, the USCA found that their alleged loss did not rise to the level of economic persecution;  it denied their asylum petition, noting that, as they were unable to meet the lesser standard of eligibility for asylum, they are necessarily unable to establish eligibility for withholding of deportation.  Canby, Wardlaw (author), and Gould, Circuit Judges.  C. Edward of Seattle, WA, for the petitioners;  B. O'Connor of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

50)  IMMIGRATION:  Avendano-Ramirez v. Ashcroft, 02-73395 (9th Cir. Apr. 23, 2004).  Because petitioner had been removed pursuant to 8 USC Sec. 1225(b) within the past five years, the IJ properly ruled that she could not, as a matter of law, be regarded as a person of good moral character.  D.W. Nelson, Fernandez (author), and Kleinfeld, Circuit Judges.  B. Persky of Los Angeles, CA, for the petitioner;  T. McIlmail of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

51)  IMMIGRATION:  Martinez-Garcia v. Ashcroft, 02-71043 (9th Cir. Apr. 23, 2004).  Because the INS filed no charging document against the petitioner prior to the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, she was not "in deportation proceedings" on that date and the IIRIRA's transitional rules did not apply to her;  her motion for cancellation of removal was properly denied.  Hall and Graber, Circuit Judges, and Weiner (author), District Judge.  C. Stender of Phoenix, AZ, for the petitioner;  J. Cohn of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

52)  IMMIGRATION:  USA v. Jimenez-Borja, 03-50141 (9th Cir. Apr. 9, 2004).  A previously-deported alien could be deemed "found in" the U.S. when he was found by local police, rather than by the INS.  Kozinski. O'Scannlain, and Silverman (author), Circuit Judges.  S. Hubachek of San Diego, CA, for the defendant-appellant;  AUSA D. Curnow of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

53)  CIVIL RIGHTS / QUALIFIED IMMUNITY:  Wall v. County of Orange, 02-56032 (9th Cir. Apr. 16, 2004).  Wall appealed the district court's grant of summary judgment in his civil rights case against defendants County of Orange and a deputy sheriff employed by the county;  holding that there were disputed issues of material facts that the district court mistakenly resolved, the USCA reversed the judgment and remanded for trial.  Skopil, Noonan (author), and Berzon, Circuit Judges.  R. Ross of Encino, CA, for the plaintiff-appellant;  W. Bernard of Orange, CA, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

54)  WRONGFUL ARRESTS:  Lee v. Gregory, 02-57132 (9th Cir. April 7, 2004).  As clearly established law provides notice to a reasonable officer that knowingly causing the arrest of the wrong man pursuant to a facially valid warrant issued for his brother is unlawful, the defendant's motion for summary judgment on qualified immunity grounds was properly denied;  the district court did not err in finding that the disputed facts, viewed in the light most favorable to the plaintiff, created a triable issue of fact as to whether the defendant knew he was causing the arrest of the wrong man.  Noonan, Thomas, and Bea (author), Circuit Judges.  AAG R. McCallum of Washington, DC, for the defendant;  E. Iredale of San Diego, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

55)  SEARCH & SEIZURE:  USA v. Bennett, 02-5442 (9th Cir. Apr. 9, 2004).  This case arose from the boarding and search of the defendant's boat by members of a joint ask force targeting smuggling activity from Mexico into Southern California;  the boat was found to be carrying 1,541.5 pounds of marijuana.  The USCA affirmed the possession conviction, reversed the importation conviction due to improperly admitted testimony at trial, and remanded for further proceedings.  Fisher (author) and Bybee, Circuit Judges, and Mahan, District Judge.  M. Hall of San Diego, CA, for the defendant;  AUSA M. Kaplan of San Diego, CA, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

56)  EVIDENCE / INTERNET CRIME:  USA v. Prime, 02-30375 (9th Cir. Apr. 16, 2004).  Prime and three co-conspirators sold non-existent items on eBay, purchased items using counterfeit money orders they created, sold pirated computer software, and stole credit card numbers from the purchasers of this software;  to facilitate their crimes, they used a credit card encoder to input stolen data on their own credit cards, set up post office boxes under false names, manufactured false IDs, and used a filter bank account to hide proceeds of their crimes.  The USCA affirmed all their convictions and sentences. In particular, the admission of expert handwriting analysis testimony was not an abuse of discretion;  the denial of motions to substitute counsel on the eve of trial was not an abuse of discretion; and, the jury's exposure to extrinsic evidence had no impact on the verdict.  Trott (author), Paez, and Berzon, Circuit Judges.  A. Tolin and M. Sennott of Seattle, WA, for the defendants;  AUSA B. Miyake of Seattle, WA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

57)  EVIDENCE:  USA v. Sioux, 03-30310 (9th Cir. Apr. 5, 2004).  Fed. R. Evid. 413 unambiguously permits the admission of "propensity" evidence detailing sexual misconduct occurring subsequent to the event giving rise to a pending trial;  as Rule 413 allows for the admission of subsequent acts evidence, there was no error in the district court's evidentiary determination.  O'Scannlain (author), Rymer, and Bybee, Circuit Judges.  J. Michael of Billings, MT, for the appellant;  AUSA M. Hurd of Billings, MT, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

58)  JUVENILE LAW:  USA v. Leon H.,  03-30129 (9th Cir. Apr. 16, 2004).  The Federal Juvenile Delinquency Act assumes that a juvenile will be sentenced based on his or her age at the time of the dispositional hearing rather than at the time the crime is committed;  these sentencing provisions do not violate the Ex Post Facto Clause.  Hug (author), Graber, and Clifton, Circuit Judges.  AFPD M. Donahoe of Helena, MT, for the defendant-appellant;  AUSA L. Suek of Great Falls, MT, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

59)  SOLICITATION / FIRST AMENDMENT:  USA v. Meek, 03-10042 (9th Cir. Apr. 19, 2004).  Meek entered a conditional guilty plea to one count of using the Internet to attempt to induce a minor to engage in sexual activity, in violation of 18 USC Sec. 2422;  the "attempt" provision of Sec. 2422(b) criminalizes the solicitation of an adult, here a police officer, who the defendant merely believed to be a minor;  because it requires proof of the defendant's belief that a minor is the target of the unlawful sexual activity, the statute is not overbroad under the First Amendment when applied to situations involving an adult.  Wallace, Noonan, and McKeown (author), Circuit Judges.  P. Meltzer of Santa Cruz, CA, for the appellant;  AUSA H. Horsley of Oakland, CA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

60)  CRIMINAL PROCEDURE:  Arredondo v. Ortiz, 01-57166 (9th Cir. April 20, 2004).  The trial court did not violate the petitioner's Sixth Amendment right to present a defense by refusing to order a witness to testify after that witness invoked his Fifth Amendment privilege against self-incrimination as to prior convictions and pending charges.  Concurring in the result, Judge Kozinski joined the majority's analysis of the duty of states to provide meaningful argument under Teague v. Lane, 489 US 288 (1989);  however, he wrote separately because he disagreed with the majority's conclusion that the state courts below adopted a not unreasonable application of clearly established federal law.  Kozinski (concurring), Fernandez, and Rymer (author), Circuit Judges.  K. Bucur of Laguna Hills, CA, for the petitioner;  DAG J. Tran of Los Angeles, CA, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

61)  CRIMINAL PROCEDURE:  USA v. Viayra, 02-10325 (9th Cir. Apr. 21, 2004).  On a question of first impression, the USCA held that, in a criminal case, a district court may not grant a new trial absent a request by the defendant;  specifically, the district court below lacked the authority to sua sponte convert a motion for judgment of acquittal under Federal Rule Criminal Procedure 29 into a FRCP 33 new trial motion.  Wallace, McKeown (author), and Callahan, Circuit Judges.  J. Vincent of Sacramento, CA, for the appellants / cross-appellees;  FPD Q. Denvir of Sacramento, CA, for the appellees / cross-appellants. (Download the full text of this decision at www.cc9.uscourts.gov/)

62)  CRIMINAL LAW:  USA v. Shipsey, 02-10651 (9th Cir. Apr. 9, 2004).  Shipsey is a land developer and building contractor, and one of three general partners in a building company;  as that company was developing a project called "Stonefield at Fountaingrove," Shipsey was building a "palatial residence" for himself nearby;  basically, the crimes charged in this case arose from his using money loaned to the partnership to build Stonefield to pay debts to subcontractors for the construction of his residence.  The USCA upheld Shipsey's convictions for mail fraud, wire fraud, and theft from an employee pension fund, arising from the diversion of construction loan proceeds.  Hall and Graber, Circuit Judges, and Weiner (author), District Judge.  D. Riordan of San Francisco, CA, for the defendant-appellant; AUSA L. Leigh of San Francisco, CA, for the plaintiff-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

63)  SENTENCING:  USA v. Linn, 03-30319 (9th Cir. Apr. 7, 2004).  Linn appealed the 188-month sentence imposed following his plea of guilty to possession with intent to distribute methamphetamine and possession with intent to distribute marijuana;  he maintained that his classification as a career criminal under Sentencing Guideline Sec. 4B1.2(b) produced a sentencing range that over-represents his criminal history and, thus, the district court's failure to exercise its discretion to depart downward violates the tenets of 18 USC Sec. 3553(a).  The USCA dismissed the appeal for lack of jurisdiction, noting that it is settled law that 18 USC Sec. 3742 strips the USCA of jurisdiction to review a discretionary denial of a downward departure, and Linn does not contend that his claim fits into one of the narrow exceptions permitting review;  moreover, the explicitly narrow scope of the Protect Act's recent modifications, bolstered by the evidence of legislative intent, makes clear that the Act does not affect the holding in Morales, which forecloses review of the district court's discretionary refusal to depart downward in sentencing Linn.  Canby, Wardlaw, and Gould, Circuit Judges.  Per Curiam.  AFD D. Ness of Great Falls, MT, for the defendant-appellant;  AUSA B. Hubley of Helena, MT, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

64)  SENTENCING:  USA v. Carreno, 02-10464 (9th Cir. Apr. 6, 2004).  Defendant was sentenced to seventy-months for alien transportation, hostage taking, and conspiracy;  the USCA upheld the Guideline Sec. 2L1.1(b)(5) enhancement as the defendant created a substantial risk of death or serious bodily harm by transporting 18 people in a van with only 15 seatbelts, and traded off driving responsibility to forego substantive sleep breaks over a long journey;  at issue was the degree of risk required to invoke the enhancement;  although no bright line guided its inquiry, the USCA affirmed because the district court's articulated reasons for finding a substantial risk were supported by the evidence and fell within the court's sentencing discretion. Wallace, Noonan, and McKeown (author), Circuit Judges.  B. Portman of San Francisco, CA, for the appellant;  K. Ryan of Oakland, CA, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

65)  MIRANDA RIGHTS / SENTENCING:  USA v. Rodriguez-Rodriguez, 03-50146 (9th Cir. Apr. 20, 2004). The defendant was properly found to have voluntarily and intelligently waived his Miranda rights, despite his claims that he was going through heroin withdrawal at the time;  because the defendant's prior burglary conviction was improperly characterized as an "aggravated felony" rather than a "crime of violence," the USCA vacated and remanded the sentence;  the sentencing judge misapplied Guideline Sec. 2L1.2(b)(1) in determining that the defendant's sentence should be enhanced only eight levels for an aggravated felony instead of sixteen levels for a crime of violence.  Hall, Trott (author), and Callahan, Circuit Judges.  AUSA L. Spong of San Diego, CA, for the plaintiff-appellant / cross-appellee;  S. Hubacheck of San Diego, CA, for the defendant-appellee / cross-appellant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

66)  TORTS / SENTENCING:  Erlin v. USA, 00-16986 (9th Cir. Apr. 19, 2004).  A civil action under the Federal Tort Claims Act for negligently calculating a prisoner's release date, or otherwise wrongfully imprisoning the prisoner, does not accrue until the prisoner has established, in a direct or collateral attack on his imprisonment, that he is entitled to release from custody;  the USCA reversed the dismissal on statute-of-limitations grounds.  Kozinski and Kleinfeld (author), Circuit Judges, and Beistline, District Judge.  C. White of Davis, CA, for the appellant;  AUSA J. Burton of San Francisco, CA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

67)  CALIFORNIA'S "THREE STRIKES" LAW:  Ramirez v. Castro, 02-56066 (9th Cir. Apr. 19, 2004).  For shoplifting a $199 videocassette recorder, having previously shoplifted twice before, Ramirez was sentenced to spend between 25 years and the rest of his life in prison, with no eligibility for parole until he has served at least 25 years.  The USCA upheld his release, finding his 25-years-to-life sentence under California's "Three Strikes" law, Cal. Penal Code Secs. 667, 667.5, and 1170.12, to be grossly disproportionate to his nonviolent shoplifting offenses and in violation of the Eighth Amendment.  Dissenting.  Judge Kleinfeld agreed with the majority that Ramirez's sentence was inappropriately harsh, although his recidivism suggests that if he is not more or less permanently caged, he might do something like this again; some people commit relatively small crimes, without graduating to more serious ones, but appear unable to be deterred;  the sentencing goals of incapacitation and deterrence are thus served by a harsh sentence; but those are not the only goals;  Judge Kleinfeld noted that our societal norm against stealing is not intense enough to justify a sentence comparable to what people get for rape or murder;  what Ramirez did, repeatedly, is just not bad enough to justify wasting most of the rest of his life in a cage;  however, Judge Kleinfeld could not bring himself to say that the state court was "objectively unreasonable" in its application of the Andrade, Harmelin, Solem, Ewing, and Rummel line of cases.  Noonan, Kleinfeld (dissenting), and Wardlaw (author), Circuit Judges.  B. Lockyer and G. Schons of San Diego, CA, for the respondent;  I. Ramirez.  (Download the full text of this decision at www.cc9.uscourts.gov/)

68)  SENTENCING / EVIDENCE / IMMIGRATION:  USA v. Gonzalez, 03-30256 (9th Cir. Apr. 22, 2004).  Where the defendant suffered no sentence enhancement, the district court correctly applied the "preponderance of evidence" rather than the "clear and convincing" standard when it denied his request for special probation under 18 USC Sec. 3607, in the face of the defendant's claim that a non-probationary sentence would have a potential negative impact on his immigration status.  Goodwin, McKeown (author), Fisher, Circuit Judges.  L. Graser of Portland, OR, for the appellant;  K. Immergut of Portland, OR, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

69)  SENTENCING:  USA v. Ortiz, 02-30098 (9th Cir. Apr. 7, 2004).  The proper standard for determining relevant conduct for jointly undertaken criminal activity under Guideline Sec. 1B1.3(a)(1)(B), as amended in 1992, has two elements: that the conduct was in furtherance of jointly undertaken criminal activity, and, that it was reasonably foreseeable in connection with that activity.  O'Scannlain, Rymer (author), and Bybee, Circuit Judges.  T. Hampton of Boise, ID, for the defendant;  AUSA L. Lamprecht of Boise, ID, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

70)  BORDER ARRESTS:  USA v. Nava, 03-50364 (9th Cir. Apr. 8, 2004).  An individual is not arrested under the Fourth Amendment but merely "detained" when, at the border, he is asked to exit his vehicle, cuffed briefly and told it is for safety reasons while escorted to the security office, and once in the office uncuffed, patted down, and required to wait while his vehicle is searched.  Silverman (author), Gould, and Bea, Circuit Judges.  E. Johnston of San Diego, for the defendant;  P. O'Toole of San Diego, CA, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

71)  DEATH PENALTY / HABEAS CORPUS:  In re Morris, 04-70667 (9th Cir. Apr. 6, 2004).  The USCA held that a mandamus petition must be denied where the district court has not made a definitive ruling, clearly erroneous or otherwise, with respect to the petitioner's request to amend his first amended habeas petition to include claims based on newly discovered evidence.  Concurring specially, Judge Ferguson thought two matters called for a more thorough analysis in this death penalty case:  first, the panel was informed for the first time of the prosecution's position that the three defendants were equally guilty of murdering the victim;  second, the panel was informed for the first time that the mother of the older female defendant notified the authorities that she had threatened to kill her mother, her mother's husband, and her sister and that they were terrified of her.  Ferguson (concurring), Graber, and W. Fletcher, Circuit Judges.  Per Curiam.  M. Bachers of San Francisco, CA, for the petitioner;  W. Campbell of Sacramento, CA, for the real-party-in-interest. (Download the full text of this decision at www.cc9.uscourts.gov/)

72)  DEATH PENALTY / INEFFECTIVE ASSISTANCE:  Stankewitz v. Woodford, 01-99022 (9th Cir. Apr. 8, 2004).  A death row inmate raised a colorable claim of ineffective assistance regarding the penalty phase of his trial:  counsel failed to investigate and present social and mental health evidence that might have affected the jury's assessment of his moral culpability.  O'Scannlain, Fisher (author), and Bybee, Circuit Judges.  N. Arguimbau of Fairfax, CA, for the petitioner;  DAG J. McLean of Sacramento, CA, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

73)  HABEAS CORPUS / JUVENILE LAW: Sophanthavong v. Palmateer, 02-35922 (9th Cir. Apr. 12, 2004).  Under 28 USC Sec. 2254(d)(1), a habeas petition cannot be granted unless the state court's adjudication of the claim resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the U.S. Supreme Court;  here, the state post-conviction court correctly applied clearly established Supreme Court precedent in considering the juvenile defendant's claim that he was denied effective assistance of counsel;  the state court's denial of the defendant's petition thus was not based on an unreasonable application of clearly established federal law;  the USCA noted that it is required to presume the correctness of the state court's factual finding that the attorney did not misadvise the defendant pursuant to Sec. 2254(e)(1);  the defendant failed to rebut this presumption by clear and convincing evidence.  Dissenting, Judge Ferguson thought the state post-conviction courts, as well as the majority here, erred because they took no account of the fact that the defendant was a seventeen-year-old boy of diminished maturity when he pled guilty to felony murder following his lawyer's advice.  Alarcon (author), Ferguson (dissenting), and Rawlinson, Circuit Judges.  AFPD B. Creel of Portland, OR, for the petitioner;  AAG T. Sylwester of Salem, OR, for the respondent.   (Download the full text of this decision at www.cc9.uscourts.gov/)

74)  HABEAS CORPUS:  Phelps v. Alameda, 02-15821 (9th Cir. Apr. 20, 2004).  The USCA vacated, as improvidently granted, the Certificate of Appealability issued by a motions panel in this case pursuant to the Antiterrorism and Effective Death Penalty Act;  although a merits panel generally need not examine the propriety of a COA, it nevertheless retains the power to do so; the USCA dismissed the appeal for lack of jurisdiction.  Hall, O'Scannlain (author), and Leavy, Circuit Judges.  R. Beles of Oakland, CA, for the appellants;  B. Lockyer of Sacramento, CA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

75)  HABEAS CORPUS:  Caliendo v. Warden of California Men's Colony, 01-56946 (9th Cir. Apr. 5, 2004).  In a close case turning on a testifying detective's credibility, the state court erred in failing to presume prejudice from the detective's 20-minute conversation, although factually unrelated to the trial, with three jurors in the court hallway during a break in deliberations;  the USCA granted the habeas petition.  Hall (author), O'Scannlain, and McKeown, Circuit Judges.  K. Miller of San Clemente, CA, for the appellant;  DAG M. Johnsen of Los Angeles, CA, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

76)  HABEAS CORPUS:  Murdoch v. Castro, 02-55650 (9th Cir. Apr. 5, 2004).  The USCA remanded this habeas proceeding for a ruling on whether the attorney-client privilege, which barred the petitioner from seeing or using a purportedly exculpatory letter written by a government witness to the witness's lawyer, resulted in a denial of his Sixth Amendment right to confront witnesses;  the USCA instructed the district court to obtain the letter and determine in camera whether, as applied to the totality of facts, the denial of access to the letter resulted in an unconstitutional denial of the petitioner's Sixth Amendment rights.  Friedman, Trott (author), and Rawlinson, Circuit Judges.  S. Amster of Van Nuys, CA, for the petitioner;  DAG R. Maline of Los Angeles, CA, for the respondents. (Download the full text of this decision at www.cc9.uscourts.gov/)

77)  HABEAS CORPUS:  Johnson v. USA, 01-16947 (9th Cir. Apr. 2, 2004).  Johnson, a federal prisoner, filed a 28 USC Sec. 2255 petition challenging his sentence for possession of methamphetamine with an intent to distribute;  he also claimed ineffective assistance.  The USCA held that the district court properly recognized that the petition was the functional equivalent of a first petition and correctly held that it was not a successive petition;  it further held that the district court correctly denied the petition on the merits due to Johnson's failure to question the applicability of the D-methamphetamine range or offer proof of any evidence that it was inapplicable despite repeated opportunities to do so.  Schroeder (author), Thomas, and Clifton, Circuit Judges.  AFPD S. Lee of Sacramento, CA, for the petitioner;  AUSA S. Spangler of Sacramento, CA, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

78) PRISONERS' INTERNET MAIL RIGHTS:  Clement v. California Department of Corrections, 03-15006 (9th Cir. Apr. 20, 2004).  The plaintiff, an inmate at Pelican Bay State Prison, alleged in this 42 USC 1983 action that his First Amendment rights were violated by Pelican Bay's enforcement of its policy prohibiting inmates from receiving mail containing material downloaded from the internet;  the district court denied the motion for summary judgment by the California Department of Corrections and the individual corrections officials;  the district court then sua sponte granted summary judgment for the plaintiff and issued a permanent, statewide injunction against the enforcement of the internet mail policy;  the USCA upheld the district court's judgment and upheld the injunction.  B. Fletcher and Reinhardt, Circuit Judges, and Restani, Court of Intl. Trade Judge.  Per. Curiam.  R. Holzmann of Sacramento, CA, for the defendants-appellants;  R. Mittelstaedt of San Francisco, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

 1)  COPYRIGHTS / LANHAM ACT:  Borrego v. BMG U.S. Latin, 03-55430 (9th Cir. Apr. 5 2004) (unpublished).  Skopil, Farris, and Leavy, Circuit Judges.

 Borrego, the author of the song "Brujeria," appealed pro se the district court's summary judgment dismissing his action based on the 1999 re-release by one of the defendants, BMG U.S. Latin, of the "Sangre Latina" album which mistakenly attributed "Brujeria" to another songwriter.  Borrego alleged claims for violation of the Lanham Act, copyright infringement, and violations of California state law.
The USCA affirmed the summary judgment against Borrego's Lanham Act claims.  Under Dastar v. Twentieth Century Fox, 539 US 23 (2003), Borrego no longer had claim for "reverse passing off."  While he had standing to bring a copyright claim under Silvers v. Sony Pictures Entertainment, Inc., 330 F.3d 1204, 1205 (9th Cir. 2003), the USCA upheld the summary judgment.  The defendants had a defense to Borrego's claim as they had obtained a license from and paid royalties to Cartagena Publishing, the owner of the copyright, before Cartagena assigned its interest in the copyright claim to Borrego.  See Worldwide Church of God v. Philadelphia Church of God, 227 F.3d 1110, 1114 (9th Cir. 2000);  and Camarillo v. McCarthy, 998 F.2d 638, 639 (9th Cir. 1993) ("In the absence of a showing of prejudice … an affirmative defense may be raised for the first time at summary judgment.")  Because damages are an element of each of Borrego's independent state law claims and he failed to offer competent evidence of damages, the USCA affirmed summary judgment against his claims for violation of California Bus. and Prof. C. Sec. 17200, breach of contract, breach of the covenant of good faith and fair dealing, intentional and negligent misrepresentation, intentional and negligent interference with economic relations, and negligent infliction of emotional distress. Detrimental reliance, conspiracy and accounting are not independent claims.  See Lim v. The TV Corp., Intl., 99 Cal. App. 4th 684, 694 (2002). 

2)  COPYRIGHTS / CONTRACTS:  Grosso v. Miramax Films Corp., 01-57255 (9th Cir. Apr. 7 2004) (unpublished).  Schroeder, Thompson, and Graber, Circuit Judges.

  Grosso appealed the district court's judgment in favor of the defendants, Miramax Film Corporation, and others, in his action alleging breach of contract under California law and violation of his copyright in his screenplay, "The Shell Game."

  The USCA affirmed in part and reversed in part.  It found that the district court did not err in granting summary judgment on Grosso's claim that Miramax's movie "Rounders" violated Grosso's copyright.  The two works are not substantially similar, for the reasons very well stated by the district court.  However, the district court incorrectly dismissed on the pleadings Grosso's state law claim for breach of implied contract.  The California Supreme Court in Desny v. Wilder, 299 P.2d 257 (Cal. 1956), explained the circumstances in which a contract might be implied even in the absence of an express promise to pay:  "the idea purveyors cannot prevail in an action to recover compensation for an abstract idea unless … the circumstances preceding and attending disclosure, together with the conduct of the offeree acting with knowledge of the circumstances, show a promise of the type usually referred to as "implied" or "implied-in-fact."  Id. at 270.  The plaintiff's complaint alleged circumstances that, if true, would sustain an action for implied contract:  the plaintiff submitted the idea, in script form, to the defendants, at least indirectly, through the defendants agents.  The plaintiffs submitted the idea in response to a solicitation by the defendants.  Finally, it is alleged that "the idea was submitted by Plaintiff to Defendants with the understanding and expectation, fully and clearly understood by Defendants, that Plaintiff would be reasonably compensated for its use by Defendants."  The USCA affirmed the judgment of the district court on the copyright claim;  it reversed and remanded the judgment of the district court dismissing the state law claim. 

3)  TAXATION / FUGITIVES:  USA v. Cooper, 02-10043 (9th Cir. Apr. 15 2004) (unpublished).  O'Scannlain, Rymer, and Bea, Circuit Judges.

 Cooper appealed his jury-trial conviction and 24-month sentence for engaging in a corrupt endeavor to obstruct the administration of internal revenue laws in violation of 26 USC Sec. 7212(a), and for making a false claim to a government agency in violation of 18 USC Sec. 287.  The USCA dismissed the appeal.  Earlier, on October 11, 2002, the USCA had dismissed Cooper's appeal because, as a fugitive, he was not entitled to an appeal as of right.  See USA v. Freelove, 816 F.2d 479, 480 (9th Cir. 1987).  Nevertheless, at that time the USCA granted Cooper 42 days to self-surrender and move for reinstatement of his appeal.  The court subsequently reinstated Cooper's appeal, but ordered further briefing on whether this appeal should be dismissed because Cooper was arrested and did not self-surrender.  The USCA now concluded that the current appeal should be dismissed.  See Parretti v. USA, 143 F.3d 508 (9th Cir. 1998) (recognizing court's discretion to dismiss appeal by fugitive as a matter of equity, out of concern for enforcement of judgment, and for deterrent effect).

4)  TAXATION / FALSE RETURNS:  USA v. Gilliam, 02-50251 (9th Cir. Apr. 26 2004) (unpublished).  O'Scannlain, Rymer, and Bea, Circuit Judges.

 Gilliam appealed his guilty-plea conviction and 27-month sentence for two counts of subscribing to a false income tax return, in violation of 26 USC Sec. 7206(1).  Pursuant to Anders v. California, 386 US 738 (1967), counsel for Gilliam has filed a brief stating there are no grounds for relief, and a motion to withdraw as counsel of record.  He also filed a pro se supplemental brief and a pro se supplemental reply brief.  The USCA said its independent review of the record pursuant to Penson v. Ohio, 488 US 75, 83 (1988), disclosed no ground for relief.  The USCA granted the counsel's motion to withdraw and affirmed the district court's judgment.

 5)  ENVIRONMENTAL LAW:  Pearson v. Powell, 03-15815 (9th Cir. Apr. 23, 2004) (unpublished).  Hall, O'Scannlain, and Rymer, Circuit Judges.

 Pearson appealed pro se the district court's summary judgment for Powell in Pearson's action alleging that the U.S. Forest Service (USFS) violated the National Environmental Policy Act and the Endangered Species Act (ESA) by initiating the Upper Slate Defensible Fuel Profile Zone Project without first issuing an EIS and consulting with the Fish and Wildlife Service (FWS).  The USCA affirmed.  The USFS' decision to issue a "finding of no significant impact" rather than prepare an EIS, for the Project was not arbitrary or capricious because the environmental assessment incorporated by reference other EISs that discussed the potential impact of construction in the area, and the agency's mitigation plans rendered adverse effects insignificant.  Contrary to Pearson's contention, the USFS was not required to consult with the FWS because the USFS prepared a biological assessment finding that initiation of the Project would have no effect on an endangered or threatened species. 50 CFR Sec. 402.12(k)(1).  The USFS' decision to not formally consult the FWS thus was not arbitrary, capricious, or a violation of the ESA.  The USFS' informal consultation with the FWS accorded with the law because it did not commence its plans until it received a written concurrence from the FWS.

6)  BANKRUPTCY / STANDING / MOOTNESS:  In re Eisen, 03-55643 (9th Cir. Apr. 7 2004) (unpublished).  Skopil, Ferguson, and Boochever, Circuit Judges.

 Debtor Eisen sought review of the bankruptcy court's decision to allow a claim filed by a judgment creditor and to disallow a claim of an alleged creditor.  The district court did not, however, reach the merits of these rulings, but rather granted the trustee's motion to dismiss for Eisen's failure to prosecute, lack of standing, and mootness.  The USCA declined Eisen's invitation to ignore the district court's order and review the underlying merits of the bankruptcy court's rulings.  Rather, the USCA affirmed the district court's order dismissing Eisen's appeal.  First, the USCA concluded that there was no dispute that Eisen did not timely file materials required to perfect his appeal to the district court.  Bankruptcy rules specifically provide for dismissal when the appellant failed "to take any step other than the timely filing of a notice of appeal … ." Fed. R. Bankr. P. 8001(a).  Moreover, factors the USCA has previously identified as relevant support the district court's dismissal.  See Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (listing factors), cert. denied, 538 US 909 (2003).  The public's interest in expeditious resolution of litigation always favors dismissal.  Moreover, the trial judge is in the best position to determine whether the delay in a particular case interferes with the docket management and the public interest.  Pagtalunan, 291 F.3d at 642.  There was prejudice to creditors seeking timely resolution of Eisen's bankruptcy case. Although there may have been less drastic alternatives available to the district court, prior sanctions imposed upon Eisen apparently have not deterred his litigious nature.  Finally, public policy always favors disposition of cases on the merits, but this factor alone is not dispositive.  See Rio Properties, Inc. v. Rio Intern. Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002).  Second, the USCA agreed with the trustee's argument that Eisen lacked standing to appeal the bankruptcy court's ruling.  As it explained in one of Eisen's earlier appeals, "Eisen, as a debtor, has no standing because … [the] trustee is the representative of Eisen's estate."  In re Eisen, 31 F.3d 1447, 1451 n.2 (9th Cir. 1994).  The USCA then further explained that the "trustee is the representative of the debtor's estate and has the capacity to sue and be sued."  Id (citing 11 USC Sec. 323).  "Once appointed a trustee, the debtor's assets and claims pass to the trustee, making the trustee the proper party in interest, and the only party with standing to appeal the bankruptcy court's order."  Id.  Finally, the USCA agreed with the trustee's argument that there were insufficient funds in the estate to cover administrative expenses and therefore Eisen's appeal is moot.  See In re P.R.T.C., Inc., 177 F.3d 774 n.2 (9th Cir. 1999) ("a debtor cannot challenge a bankruptcy court's order unless there is likely to be a surplus after bankruptcy.")

7)  SANCTIONS:  Stanwyck v. Beilinson, 02-56442 (9th Cir. Apr. 28, 2004) (unpublished).  Goodwin, Pregerson, and Tallman, Circuit Judges.
 
The appellants appealed the dismissal of their complaint, sanctions pursuant to Federal Rule Civil Procedure 11, and an order declaring the appellants vexatious litigants.

 The USCA concluded that all of the appellants were without merit.  The arguments raised by the appellants related largely to the procedural or preliminary issues addressed separately below.  Looking first to the substance of the district court's order, the USCA found that the dismissal based on the appellants' non-opposition was not an abuse of discretion.  Sanctions pursuant to Federal Rule of Civil Procedure 11 were warranted and assessed in an appropriate amount.  See Fed. R. Civ. P. 11;  cf. In re Yagman, 796 F.2d 1165, 1183-85 (9th Cir. 1986).  The vexatious litigant declaration was also warranted and appropriate in its scope.  See O'Loughlin v. Doe, 920 F.2d 614, 617 (9th Cir. 1990).  The appellants maintained that the removal to federal court was improper. But in light of the original complaint's allegations, which include a charge of "official corruption,"  Judge Bufford's removal under 28 USC Sec. 1442(a)(1) was permissible.  Judge Bufford stated a colorable federal defense based on judicial immunity.  Moreover, there appears to be a sufficient connection between Judge Bufford's official authority and the acts complained of such that they are acts "under color of office."  See Jefferson County, Ala v. Acker, 527 US 423, 431 (1999).  To the extent that the appellees may have violated the local rules regarding meeting and conferring prior to filing a motion, the USCA found such violation excused.  There is no indication that any violations prejudiced the appellants.  Moreover, the appellants waived this issue by failing to raise it with the district court.  Stanwyck's bankruptcy filing did not stay the proceedings as to him.  While 11 USC Sec. 362(a) stays litigation against the debtor that was or could have been brought before the bankruptcy, the stay does not apply to post-petition defensive actions in a pre-petition lawsuit brought by a debtor.  Stanwyck has not demonstrated that he was denied accommodations to which he was entitled under the Americans with Disabilities Act or the Rehabilitation Act.  In fact, the district court delayed hearing the pending motions in response to Stanwyck's ex parte application requesting additional time due to his medical condition.  The eventual hearing date was more than 100 days after that application.  The appellants never filed another request for an extension of time.  During most of this time, Stanwyck was being assisted by at least one other attorney.  Stanwyck has presented no persuasive legal authority indicating that he was not afforded necessary accommodations based on his medical condition.  The USCA rejected the appellants' contention that the U.S. Attorney should have been recused from representing Bankruptcy Judge Bufford.  This contention was rejected by the Appellate Commissioner in an order dated July 14, 2003.  To the extent that the appellants took issue with that ruling, they should have sought reconsideration by way of a motion for reconsideration before the Appellate Commissioner.  See Ninth Circuit Adv. Comm. Note to Circuit Rule 27-1.  In any event, the appellants have presented no compelling argument regarding why the U.S. Attorney should have been recused either during direct court proceedings or during the proceedings before the USCA. 

 The USCA also rejected the appellants' contention that the district court judge should have recused himself.  The appellants never moved to recuse the district court judge.  A review of the record revealed no bias by the judge against the appellants or that the judge's impartiality might reasonably be questioned.  28 USC Sec. 455(a).  Further, the appellants have failed to identify any extrajudicial source from which the alleged bias stemmed, which is necessary for recusal under 28 USC Sec. 544.  The USCA also rejected the appellants' contention that, due to the nature of the district court order at issue, they were entitled to a jury trial.  The appellants have presented no persuasive legal authority in this regard, and the USCA's research indicated that a jury trial was not required in this case.  See Fed. R. Crim. P. 42(a)(3);  Weissman v. Quail Lodge, Inc., 179 F.3d 1194, 1197 (9th Cir. 1999).  Finally, the USCA rejected the appellants' contention that the district court improperly refused to consider the appellants' motion for reconsideration.  The motion for reconsideration is not properly before the panel because the ruling on that motion was not appealed.  Moreover, it appears as though the district court gave due consideration to the motion for reconsideration.

8)  AMERICANS WITH DISABILITIES ACT:  Mancini v. Union Pacific Railroad Company, 02-36151 (9th Cir. Apr. 23, 2004, 2004) (unpublished).  Leavy, Wardlaw, and Gould, Circuit Judges.

 Mancini appealed the district court's grant of summary judgment to Union Pacific Railroad Company (UPRR) on his ADA claims.  Mancini worked as a signalman for UPRR and suffers from epilepsy, though medication completely controls his seizures.  On appeal, Mancini argued that the district court erred in determining that between June 1, 2001, and October 1, 2001, he was neither "actually disabled" under the ADA nor "regarded as having a disability" by the UPRR. 

 The USCA affirmed. "Because the existence of a 'disability' is a gateway requirement," EEOC v. United Parcel Serv., Inc., 306 F.3d 796, 797 (9th Cir. 2002), the USCA noted that its consideration of Mancini's ADA claim involves three inquires:  (1) whether Mancini's epilepsy is a physical impairment;  (2) whether the life activity on which Mancini relies, is a major life activity; and (3) whether the impairment substantially limits that major life activity.  Fraser v. Goodale, 342 F.3d 1032, 1038 (9th Cir. 2003).  The USCA added that its analysis is guided by the general principal that a disability determination under the ADA is an individualized inquiry.  Toyota Motor Mfg., Ky., Inc. v. Williams, 534 US 184, 199 (2002).  Accordingly, the USCA said it does not decide whether every epileptic is disabled, but solely whether Mancini was disabled during the relevant four-month period.  Because neither party disputes that epilepsy is a physical impairment or that Mancini relies upon a major life activity in advancing his ADA claim, the USCA focused on the "substantially limits" prong of the disability inquiry.  EEOC regulations state that a person is "substantially limited" if he is "significantly restricted as to the condition, manner or duration under which [he] can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform that same major life activity." 29 CFR Sec. 1630.2(j)(1)(ii). In determining whether a major life activity is "substantially limiting," the USCA considered the "effectiveness of [any] mitigating measure at preventing or ameliorating the underlying impairment."  Fraser, 342 F.3d at 1039.  "A person whose physical or mental impairment is corrected by medication or other measures does not have an impairment that presently 'substantially limits' a major life activity."  Sutton v. United Air Lines, Inc. 527 US 471, 482-83 (1999).  Thus, epilepsy does not render an individual disabled per se for purposes of the ADA.  Vinson v. Thomas, 288 F.3d 1145, 1159 (9th Cir. 2002), cert denied, 537 US 1104 (2003).  Mancini's epilepsy is corrected by mitigating measures.  The manifestations of his epilepsy (e.g., the seizures) are "totally controlled" through the consistent use of medication.  Moreover, Mancini's four-month suspension stemmed from his su-pervisor's determination that Mancini could not perform the requirements of his job under the temporary work restrictions imposed by his physicians, not due to a perceived risk of seizures.  Accordingly, during that temporary suspension Mancini was not substantially limited in a major life activity.  29 CFR Sec. 1630.2(j)(3)(i) ("The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.").  Thus, at least during the time-period in question, Mancini was not disabled under 42 USC Sec. 12102(2)(A).  Nor did UPRR "regard" Mancini as disabled.  See 42 USC Sec. 12102(2)(C) (defining a disability as "being regarded as having such an impairment"). As Sutton explained:  "There are two apparent ways in which individuals may fall within this statutory definition:  (1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or (2) a covered entity mistakenly believes that an actual, non-limiting impairment sub-stantially limits one or more major life activities.  In both cases, it is necessary that a covered entity entertain misperceptions about the individual—it must believe that either that one has a substantially limiting impairment that one does not have or that one has a sub-stantially limiting impairment when, in fact, the impairment is not so limiting.  These misperceptions often 'result from stereotypic assumptions not truly indicative of … individual ability."  527 US at 489 (quoting 42 USC Sec. 12101(7)).  The record reveals that UPRR did not possess a mistaken belief that Mancini's impairment was substantially limiting.  On the contrary, UPRR's actions illustrate that it consistently and, as previously noted, correctly regarded Mancini not to be disabled.  During the relevant time period, UPRR conditionally permitted Mancini to return to service, but his supervisor determined that Mancini could not perform the functions of a signalman in light of the restrictions imposed by his doctors (no driving, climbing poles or ladders, operating power saws, working with heavy machinery, or operating power hand tools).  Significantly, each restriction was temporary and UPRR returned Mancini to service—without restrictions—on October 1, 2001.  As with real impairments, a perceived impairment must be substantially limiting and significant.  Thompson v. Holy Family Hosp., 121 F.3d 537, 541.  To be construed as substantial, "the impairment's impact must also be permanent or long term."  Toyota, 534 US at 198. That UPRR only temporarily held Mancini out of work evidences that it did not regard his impairment to the substantially limiting.  And having never considered Mancini's impairment to the "substantially limiting," UPRR could not have mistakenly regarded him as disabled.  Mancini's Sec. 12102(2)(C) claim, thus, failed because UPRR neither mistakenly believed the he had a substantially limiting impairment that he did not have, nor mistakenly believed, that he had a sub-stantially limiting impairment when, in fact the impairment was not so limiting.  Sutton, 527 US at 489.

9)  ATTORNEYS' FEES:  Fischel v. Equitable Life Assurance Society of the United States, 03-16049 (9th Cir. Apr. 14, 2004) (unpublished).  Canby, Graber, and Paez, Circuit Judges.

 In a prior appeal, the plaintiffs challenged the district court's rulings in connection with its award of attorneys' fees.  Although the USCA affirmed the district court's decision to utilize the lodestar method of calculating the fee award, it reversed the district court's decision not to apply a risk multiplier and not to compensate counsel for delay in payment.  Fischel v. Equitable Life Assurance Soc'y, 307 F.3d 997, 1011 (9th Cir. 2002).  It then remanded to the district court "to determine whether to apply a risk multiplier and to determine whether it provided adequate compensation for the delay in payment of attorney's fees." Id.  On remand, the district court again declined to apply a risk multiplier or to adjust the award to compensate for delay in payment, concluding that the $300 blended hourly rate it had allowed reflected both a risk enhancement and compensation for delay in payment.  The plaintiffs appealed, contending that the district court did not comply with the USCA's mandate.  The USCA affirmed in part and reversed in part.  In remanding, the USCA had directed the district court to review the record to determine whether to apply a risk multiplier in light of (1) plaintiffs' counsel's expectation that they would receive a risk enhancement, (2) the fact that their hourly rate did not reflect any risk, and (3) the risk of litigation at the time the plaintiffs' counsel decided to pursue the agents' claims.  On remand, the district court found that there was a sub-stantial risk of nonpayment when the plaintiffs' counsel agreed to take the case in August 1996.  It also found that a multiplier of two is appropriate to account for risk of nonpayment in the San Francisco legal market. And, it found that a risk multiplier was not warranted because the hourly rate it adopted adequately accounted for any risk of nonpayment.  In so ruling, it conducted a more searching analysis of the data on which it relied to adopt the $300 hourly rate and concluded that a reasonable pre-multiplier blended hourly rate would likely fall well below $300.  After considering additional data from the U.S. Dept. of Labor, Bureau of Labor Statistics, it ruled that the going rate in the San Francisco legal community for legal services across a broad range of practice areas was under $150 per hour.  It thus concluded that a $300 per hour rate already contained an inherent multiplier of two.  This finding, however, conflicted with the USCA's determination that the $300 blended rate "did not reflect any risk" and the district court had no power or authority to deviate from the USCA's mandate.  It was confined to determining whether there was a substantial risk of nonpayment when counsel agreed to represent the plaintiffs and it could not reexamine other questions not put before it on remand.  A district court generally has discretion to apply a multiplier to the attorneys' fees calculation to compensate for the risk of nonpayment.  However, "It is an abuse of discretion to fail to apply a risk multiplier when (1) attorneys take a case with the expectation that they will receive a risk enhancement if they prevail, (2) their hourly rate does not reflect that risk, and (3) thee is evidence that the case was risky."  Fischel, 307 F.3d at 1008.  Having determined that these criteria were met, the district court abused its discretion in not applying a multiplier to the attorneys' fee award.  The USCA thus reversed the order denying a risk multiplier.  In light of the district court's finding that a multiplier of two is appropriate to account for risk of nonpayment in the San Francisco legal market, the USCA remanded with directions to increase the fee award by applying a risk multiplier of two to the lodestar amount and to order prompt payment of the additional amount. 

 The plaintiffs also challenged the district court's denial of compensation for delay in payment of the fee award.  However, the USCA concluded that the record supported the district court's determination that the $300 contemporary rate adequately compensated counsel for delay in payment of the attorney fee award.  The USCA thus affirmed the district court's conclusion that class counsel has been compensated for any delay by the application of contemporary rates to hours worked by class counsel throughout litigation commenced in 1996.  The USCA awarded costs to the plaintiffs.

10)  IMMIGRATION:  Ali v. Ashcroft, 02-73686 (9th Cir. Apr. 15, 2004) (unpublished).  D.W. Nelson, Fernandez, and Kleinfeld, Circuit Judges.

 Mohammad Ali, a native and citizen of Pakistan, petitioned for review of the BIA's summary affirmance of the IJ's order denying Ali's application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT).  Ali, a member of the Muslim League Party, argued that he was arrested, falsely accused of treason and of being an agent for the Indian Secret Service, detained, and imprisoned.  He claimed that substantial evidence did not support the IJ's adverse credibility determination and that he was persecuted by the Pakistani government when he was allegedly prosecuted without being provided any written charges, police reports, or the opportunity to present evidence in a court of law.  Because substantial evidence supported the IJ's adverse credibility determination and Ali offered no further proof of persecution aside from his own discredited testimony, the USCA affirmed.  The IJ offered specific, cogent reasons for his adverse credibility finding, pointing to numerous inconsistencies in Ali's testimony.  In particular, he noted that Ali frequently evaded questions, provided conflicting accounts of his arrests and detentions, submitted "suspect" documents, and omitted key factual assertions from his asylum application.  These observations were amply supported by the record.  Since Ali's claims of persecution were based entirely on his testimony, which was not credible, the USCA did not reach the issue of whether the Pakistani government's alleged actions against Ali would have constituted persecution.  Because Ali failed to show eligibility for asylum, he a fortiori failed to show entitlement to withholding of deportation under the more stringent "clear probability" standard for withholding of removal.  Ali also argued before the IJ that he was entitled to relief under CAT's Article 3, but the IJ summarily dismissed this claim.  Since Ali failed to adequately brief this claim on appeal, the USCA deemed it waived.

11)  IMMIGRATION:  Islam v. Ashcroft, 02-74189 (9th Cir. Apr. 19, 2004) (unpublished).  Hall, O'Scannlain, and Rymer, Circuit Judges.

 Islam, a native and citizen of Bangladesh, petitioned pro se for review of the BIA's summary affirmance of an IJ's decision denying his application for asylum and withholding of deportation.  The USCA denied the petition for review.  Inconsistencies between Islam's asylum applications and testimony regarding his religious conversion and fear of persecution due to Christianity undermined his credibility.  The evidence did not compel a contrary conclusion as the IJ offered specific, cogent reasons for disbelief, which went to the heart of Islam's persecution claim.  In failing to qualify for asylum, Islam failed to satisfy the more stringent standard for withholding of deportation.  To the extent Islam challenged the BIA's summary affirmance procedure, he was barred by Falcon Carriche v. Ashcroft, 350 F.3d 845, 849-50 (9th Cir. 2003).

12)  IMMIGRATION:  Singh v. Ashcroft, 02-72536 (9th Cir. Apr. 20, 2004) (unpublished).  Schroeder, D.W. Nelson, and Fernandez, Circuit Judges.

 Singh maintained that the IJ failed to make an individualized analysis of his credibility, and thus that the IJ's adverse credibility finding and denial asylum and withholding of deportation cannot stand.  Contrary to the petitioner's claim, however, the IJ undertook an individualized credibility analysis.  Among other things, he reasonably inferred that if the police suspected Singh of being a terrorist they would not have promoted him to the status of "career sepoy" and trained him to use FN assault rifles, submachine guns, various pistols and revolvers, hand grenades, and a heavy machine gun.   The IJ properly found that Singh "was not a credible witness because his testimony and statements in his application for asylum were internally inconsistent and lacked the ring of truth."  To the extent, however, that the IJ imported into his credibility finding the conclusion of the 1997 State Department Addendum on India about Punjab's return to a state of normalcy, the IJ erred.  It is not a cogent reason to "discredit the petitioner's testimony of past persecution based on a report describing a general condition of peace in society."  Shah v. INS, 220 F.3d 1062, 1069 (9th Cir. 2000).  However, the record as a whole reflects that the IJ's adverse credibility finding is supported by substantial evidence.

13)  IMMIGRATION:  Martirossian v. Ashcroft, 02-71890 (9th Cir. Apr. 8, 2004) (unpublished).  Hall, Trott, and Callahan, Circuit Judges.

 Martirossian, a native and citizen of Georgia, petitioned for review of the BIA's denial of his motion to reopen, seeking relief under the Convention Against Torture (CAT).  The USCA denied the petition for review.  Under CAT, Martirossian has the burden of establishing that it is more likely than not that he would be tortured if removed to Georgia.  He based his claim on three incidents in 1992 and 1993.  In February 1992, when driving his ambulance, he says he was stopped at a road block by an armed paramilitary group, beaten and has his ambulance "appropriated."  When he reported this to the police, they took the report and then asked him to withdraw it.  When he refused to withdraw it, the police beat him with a marble ashtray, breaking the middle finger of his left hand.  He believes that the paramilitary group beat him and stole his ambulance because he is half Armenian and has an Armenian last name.  He admits, however, that this was a time of general upheaval and that the police were also afraid of the paramilitary group.  Martirossian testified that the paramilitary group disbanded after 1993, but claims that its members are not in the government and on the police force.  He said the second event occurred in August 1992, when the same group, this time led by his brother-in-law, broke into and vandalized his house, beat and threatened him and kidnapped his wife and son.  Martirossian testified that his brother-in-law opposed his sister's marriage to him because he is half Armenian.  The third incident occurred in 1993.  When Martirossian saw his ambulance and followed it until it stopped at an apartment building.  Two members of the paramilitary group who had been in the ambulance entered the building.  Martirossian then "hotwired" the ambulance and took it to his former boss.  Later that day the police came to his place, arrested him, took him to a police station, charged him with stealing the ambulance, and beat him.  Martirossian sustained injuries to his head and chest and was in the hospital for four days.  Although Martirossian maintained that he cause for these incidents is that he is half Armenian, other explanations are reasonable.  He may have been initially stopped by the paramilitary group because they wanted the ambulance.  The second incident may have been based on his brother-in-law's animosity.  The third resulted from Martirossian "repossessing" the ambulance from the paramilitary group.  This act certainly weighs against his testimony that he was hiding from the paramilitary group.  The USCA further noted that these incidents happened over ten years ago, the paramilitary group has disbanded, and Martirossian does not claim that he ever spoke out against the group or the government.  In addition, the country report introduced into evidence before the IJ states that conditions in Georgia are improving.  The USCA thus held that there is substantial evidence to support the BIA's ruling that Martirossian is not likely to be tortured if returned to Georgia.