1)  SECURITIES:  United Investors Life Insurance Co. v. Waddell & Reed, Inc., 02-56278 (9th Cir. Feb. 23, 2004).  Because the district court remanded this state-law securities action to state court based on a perceived lack of subject matter jurisdiction, 28 USC Sec. 1447(d) precluded appellate review of the remand order;  the defendant's motion to dismiss on the merits was thus itself dismissed;  the USCA could not and did not rule on the merits of the district court's preemption determination, but only dismiss Waddell & Reed's appeal for lack of jurisdiction.  Wallace (author), Rymer, and Tallman, Circuit Judges.  R. Heinke of Los Angeles, CA, for the defendants-appellants;  W. Baxley of San Francisco, CA, for the plaintiff-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

2)  COPYRIGHTS / INTERNET:  Ellison v. Robertson and Online, Inc., 02-55797 (9th Cir. Feb. 10, 2004).  The USCA affirmed the district court's holdings that AOL was not liable for vicarious copyright liability and that there were triable issues of material fact concerning the plaintiff's contributory infringement claims;  the claims arose when the plaintiff's short stories were posted on a peer-to-peer file sharing network to which the defendant provides subscriber access;  the district court improperly granted AOL summary judgment as there were triable issues of material fact concerning whether AOL met the threshold requirements set forth in Sec. 512(i) of the Digital Millennium Copyright Act to assert the safe harbor limitations of liability of Secs. 512(a-d) of the Act;  the USCA added that if after remand a jury finds AOL to be eligible under Sec. 512(i) to assert the safe harbor limitations of Secs. 512(a-d), the parties need not relitigate whether AOL qualifies for the limitation of liability provided by Sec. 512(a);  the district court's resolution of that issue at the summary judgment stage was sound.  Pregerson (author) and Thomas, Circuit Judges, and Oberdorfer, District Judge.  G. Kulik of Sherman Oaks, CA, for the plaintiff-appellant;  D. Schecter of Los Angeles, CA, for the defendants-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

3)  COMMUNICATIONS LAW / INTERNET:  Theofel v. Farey-Jones, 02-15742 (9th Cir. Filed Aug. 28, 2003; amended Feb. 17, 2004).  Section 2701(c)(1) of the Stored Communications Act does not exempt a defendant's conduct from a cause of action under the Act where the defendant has obtained consent from the plaintiffs' Internet service provider to access the plaintiffs' email messages by use of an invalid and "patently unlawful" subpoena;  the subpoena's falsity transformed the access from a bona fide state sanctioned inspection into private snooping;  the district court erred in reading an ownership or control requirement into the Computer Fraud and Abuse Act.  B. Fletcher, Kozinski (author), and Trott, Circuit Judges.  P. Urueta of San Francisco, CA, for the appellants;  R. White of San Francisco, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

4)  ANTITRUST / STATE ACTION IMMUNITY:  Snake River Valley Electric Association v. PacifiCorp, 02-36057 (9th Cir. Feb. 9, 2004).  The defendant's refusal to "wheel" wholesale electricity had state action immunity from December 8, 2000 onward under the amended Idaho Electric Supplier Stabilization Act;  the claim that defendant refused a wheeling request prior to that date was validly rejected;  since the defendant lacked a dominant position in the wholesale electricity generating market, it has no liability for declining to sell power.  Kleinfeld, Gould (author), and Tallman, Circuit Judges.  C. Wheatley of Annapolis Maryland, for the plaintiff-appellant;  M. Rasich of Salt Lake City, UT, for the defendant-appellee;  DAG B. DeLange of Boise, ID, for the defendant-intervenor.  (Download the full text of this decision at www.cc9.uscourts.gov/)

5)  ENVIRONMENTAL LAW:  Alsea Valley Alliance v. Dept. of Commerce, 01-36071 (9th Cir. Feb. 24, 2004).  Oregon Natural Resources Council and several other organizations appealed from an order invalidating a National Marine Fisheries Service final rule and remanding to the Service for further consideration;  the order that allowed the Council to intervene for purposes of brining this appeal was challenged by Alsea Valley Alliance and opposed by the government on jurisdictional grounds in a separately docketed companion case;  the USCA dismissed the two appeals for lack of jurisdiction;  both concerning the listing of Coho Salmon under the Endangered Species Act;  neither the Remand Order, nor the Intervention Order issued for the purpose of challenging it, is appealable. Lay, Wallace (author), and Tallman, Circuit Judges.  R.  Brooks of Bellevue, WA, for the plaintiffs-appellees;  E. Durkee of Washington, DC, for the federal appellees;  P. Goldman of Seattle, WA, for the intervenors. (Download the full text of this decision at www.cc9.uscourts.gov/)

 6)  ENVIRONMENTAL LAW / STANDING: Covington v. Jefferson County, 02-36000 (9th Cir. Feb. 5, 2004).  The District Court erred in holding that residents living across from a county dump lacked sanding to bring a citizen's suit against the dump based on Clean Air Act ("CAA") claims of ozone degradation;  it further erred in granting the defendants summary judgment on claimed violations of Resource Conservation and Recovery Act ("RCRA") requirements concerning cover, open burning, explosive gases, and uncontrolled access;  the USCA upheld the District Court ruling that the plaintiffs had standing for their RCRA claims but reversed its ruling that they did not have standing for the CAA claims;  the USCA affirmed in part and reversed in part the District Court's grant of summary judgment on the claimed violations of state and federal sanitary landfill requirements;  it also reversed the District Court's holding that 42 USC Sec. 6924(c)(1) is not substantive;  concurring, Judge Gould thought that the USCA need not reach any further conclusion on standing beyond that in Part III.B of this decision, but he wrote separately to note that there is an additional theory under which he thought the plaintiffs may have standing to advance their CAA claims;  he thought it appropriate to set forth that theory because of it potential application in any other cases where widespread or even global environmental impact is threatened by a federal statutory wrong;  Supreme Court standing precedents, he noted, may reject the idea that "injury to all is injury to none";  a widespread injury, in itself, is no bar to constitutional standing;  the landfill has increased the plaintiffs' risk of UV-B related health maladies;  Judge Gould saw nothing the in the Constitution or in Supreme Court precedent that would prevent the plaintiffs from having constitutional standing on that basis alone.  Wardlaw, Gould (author and concurring), and Paez, Circuit Judges.  M. Hinman of Idaho Falls, ID, for the plaintiffs-appellants;  R. Dunn and G. Crockett of Idaho Falls, ID, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

7)  ENVIRONMENTAL LAW / CERCLA:  California v. Neville Chemical Co., 02-56506 (9th Cir. Feb. 10, 2004).  Under CERCLA, the limitations period for bringing an initial suit for recovery of remedial action costs from a party responsible for hazardous substances cannot accrue until after the final adoption of the remedial action plan required by the Act.  Pregerson, Fernandez, and Berzon (author), Circuit Judges.  DAG H. Pollack of Oakland, CA, for the plaintiff;  T. Anastassiou of San Francisco, CA, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

8)  ENVIRONMENTAL LAW / CERCLA: Western Properties Service Corp. v. Shell Oil Co., 01-55676 (9th Cir. Feb. 13, 2004). The defendant oil companies were properly found to have arranged, during World War II, for the disposal of "acid tar" from aviation fuel production on land now owned by plaintiff;  because the non-polluting plaintiff knew about the sludge when it bought the land, CERCLA only entitles it to seek contribution from defendants, not complete cleanup cost recovery;  the USCA vacated and remanded for equitable allocation of the appellee's response costs among the liable parties, consistent with this opinion.  Kleinfeld (author) and Graber, Circuit Judges, and Bolton, District Judge.  P. Taft of Los Angeles, CA, for the appellants;  J. Taner of Washington, DC, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

9)  WATER LAW:  Orff v. USA, 00-16922 (9th Cir. Feb. 18, 2004).  Sovereign immunity barred individual farmers in the Westlands Water District from suing the United States for allegedly having violated a contract the United States entered into with Westlands for the delivery of water;  the farmers did not qualify for the waiver of sovereign immunity under the McCarran Amendment because that Amendment does not apply to this suit for money damages;  nor did the farmers qualify for a waiver of sovereign immunity under 43 USC Sec. 390uu as none was an intended third-party beneficiaries of the contract and none was "a contracting entity."  Finally, the farmers did not meet the requirements for suing in the shoes of Westlands as beneficiaries  Noonan, Thomas, and Clifton (author), Circuit Judges.  W. Smiland of Los Angeles, CA for the plaintiffs-appellants;  J. Goldsmith of Sacramento, CA, for plaintiff-intervenor;  M. Iizuka of Washington, DC, for the defendants-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

10)  INSURANCE LAW:  Allstate Insurance Co. v. Hughes, 02-35582 (9th Cir. Filed Oct. 8, 2003; amended Feb. 17, 2004).  In a fire insurance subrogation action brought by an Illinois insurer on behalf of its Washington insured against a Washington defendant, the insurance carrier was not the real-party-in-interest;  such a claim could be brought only in the name of the insured, and, absent that, federal diversity jurisdiction did not exist here under Fed. R. Civ. P. 17(a);  the district court thus should have dismissed the action;  in Washington, the real-party-in-interest is the insured who were citizen of Washington.  Hawkins and Berzon, Circuit Judges, and Quackenbush (author), District Judge.  M. O'Loughlin of Seattle, WA, for the plaintiff-appellant;  M. Fahrenkrug of Seattle, WA, for the defendants-appellees.(Download the full text of this decision at www.cc9.uscourts.gov/)

11)  TORTS / PRODUCT LIABILITY:  Motus v. Pfizer, Inc., 02-55372 (9th Cir. Feb. 9, 2004).  The plaintiff failed to establish that the defendant's allegedly inadequate warnings concerning alleged side-effects of the antidepressant drug Zoloft contributed to her husband's suicide;  because the husband's doctor neither read the warning label nor relied on information provided by the defendant's representatives before prescribing the drug, the adequacy of the warnings was not relevant to the disposition of this case;  the USCA agreed with the Second Circuit that a product defect claim based on insufficient warnings could not survive summary judgment if stronger warnings would not have altered the conduct of the prescribing physician. Wallace, Rymer, and Tallman (author), Circuit Judges.  J. Dart of Los Angeles, CA, for the plaintiff-appellant;  P. O'Donnell of Los Angeles, CA, for the defendant-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

12)  ARBITRATION:  PowerAgent, Inc. v. Electronic Data Systems Corp., 02-17022 (9th Cir. Feb. 25, 2004).  The plaintiff, dissatisfied with the answer to a question it insisted the arbitrators could and should decide, could not later ask the court to determine that the arbitrators lacked authority to determine the arbitrability question;  the district court correctly applied a highly deferential standard of review to the arbitrators' decisions;  because the plaintiff itself argued that the arbitration panel should independently determine the arbitrability of all its claims and failed to provide a sufficient basis to vacate the arbitration award, the USCA affirmed.  Leavy, Paez, and Berzon (author), Circuit Judges.  A. Hayes of Armonk, NY, for the plaintiff-appellant;  J. Gilliland of San Francisco, CA, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

13)  LABOR LAW:  Southern California Painters & Allied Trade District Council No. 36 v. Best Interiors, Inc., 02-55028 (9th Cir. Feb. 25, 2004).  The district court erred as a matter of law in dismissing the Union's suit in this case for breach of contract on the ground that 29 USC Sec. 158(f) does not permit parties to adopt a labor agreement by conduct;  triable issues of fact existed as to whether the employer adopted the 2000-2003 Joint Agreement and assented to the February 13 Memorandum of Understanding;  the USCA thus reversed the summary judgment for the employer.  Pregerson (author), Reinhardt, and Archer, Circuit Judges.  A. Segall of Pasadena, CA, for the plaintiff-appellant;  R. Novotny of Los Angeles, CA, for the defendant-appellee.   (Download the full text of this decision at www.cc9.uscourts.gov/)

14)  LABOR LAW:  Brigham v. Eugene Water & Electric Board, 01-35932 (9th Cir. Feb. 3, 2004).  Employees of an utility who reside on their employer's remote premises entered a reasonable agreement effectively treating the formally uncompensated 18-hour duty shift on-call time as equivalent to four hours' actual work;  because the record does not contain the employees' time sheets for the relevant periods, and because the district court is, in the first instance, better suited to make such determinations, the USCA remanded the case so that the district court, using the above formula, can calculate how much overtime each of the employees is owed.  O'Scannlain (author), Fernandez, and Fisher, Circuit Judges.  D. Force of Eugene, OR, for the appellants;  L. Kessel of Eugene, OR, for the appellee.   (Download the full text of this decision at www.cc9.uscourts.gov/)

15)  EMPLOYMENT LAW /  SEXUAL HARASSMENT: Tritchler v. The County of Lake, 02-15687 (9th Cir. Feb. 18, 2004).  The plaintiff unsuccessfully appealed from a verdict against her on her California Fair Employment and Housing Act claims;  her attempt to defeat federal jurisdiction failed, as she lacked standing to assert that the defendants were immune under the 11th Amendment;  the defendants were not estopped from litigating whether the plaintiff's former supervisor sexually harassed her, despite an administrative finding that he had.  Cudahy (author), Goodwin, and Kleinfeld, Circuit Judges.  H. Telfeian of Davis, CA, for the plaintiff-appellant;  M. Senneff of Santa Rosa, CA, for the defendants-appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

16)  LABOR LAW / WARN / ATTORNEYS' FEES: Childress v. Darby Lumber, Inc., 01-35764 (9th Cir. Feb. 6, 2004).  Because the defendants operated as a single employer for purposes of the Worker Adjustment and Retraining Notification Act, and because they jointly employed more than 100 people, they were required to provide 60 days' advance notice of a plant closing that resulted in mass layoffs;  the district court properly awarded $123,033 in attorneys' fees to the plaintiffs, as the prevailing parties, and denied any fees to the defendants, although they prevailed as to two individual plaintiffs;  these two victories did not make the defendants the "prevailing party."  D.W. Nelson and Thomas, Circuit Judges, and Illston (author), District Judge.  R. Reep of Missoula, MT, for the defendants-appellants;  L. Dale of Missoula, MT, for the plaintiffs-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

17)  ADMINISTRATIVE LAW / DEA:  Hemp Industries Association v. DEA, 03-71366 (9th Cir. Feb. 6, 2004).  The petitioners manufacture, distribute, or sell comestible items containing oil or sterilized seeds from "hemp," a species of plant within the genus Cannabis;  they challenge two Drug Enforcement Administration regulations that, taken together, would ban the sale or possession of such items even if they contain only non-psychoactive trace amounts of tetrahydrocannabinols ("THC");  the USCA held that the DEA cannot regulate the petitioners' products, which contain a naturally occurring THC not contained within or derived from marijuana, because non-psychoactive hemp is not included in Schedule I of the Controlled Substances Act;  the DEA has no authority to regulate drugs not scheduled, and, in this case, did not follow procedures required to schedule a substance;  in accordance with Schedule I, the DEA's relevant rules and regulations may be enforced only insofar as they ban the presence of marijuana or synthetic THC.  Schroeder, B. Fletcher (author), and Kozinski, Circuit Judges.  J. Sandler of Washington, DC, for the petitioners;  D. Dormont of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

18)  MEDI-CAL / AMERICANS WITH DISABILITIES ACT: Rodde v. Bonta, 03-55765 (9th Cir. Feb. 5, 2004).  The defendants were properly enjoined from closing the Rancho Los Amigos National Rehabilitation Center in Los Angeles County without continuing to provide medically necessary services to disabled individuals elsewhere;  the services plaintiffs would lose with Rancho's closure fell within the scope of care the county must provide consistent with the Americans with Disabilities Act.  Pregerson (author), Cowen, and W. Fletcher, Circuit Judges.  DAG J. Chmura and T. Coates of Los Angeles, CA, for the defendants-appellees;  J. Davidson of Los Angeles, CA, for the plaintiffs-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

19)  WORK PRODUCT DOCTRINE:  In re Grand Jury Subpoena (Mark Torf / Torf Environmental Management), 03-30102 (9th Cir. Filed Nov. 26, 2003;  amended Feb. 9, 2004).  The USCA reversed a district court order denying a motion to quash and holding the defendant in contempt where the documents at issue, prepared by an environmental consultant in compliance with an EPA information request and consent order, at the direction of an attorney who was hired to defend a company in pending litigation with the EPA, were protected work product;  the government showed neither a substantial need for the documents nor undue hardship in obtaining substantially equivalent information.  Thompson (author), Hawkins, and Berzon, Circuit Judges.  D. Nevin, P. Westberg and J. McCreedy of Boise, ID, for the appellants;  K. Barton of Washington, DC, for the appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

20)  BANKRUPTCY / NATIVE AMERICAN LAW:  Krystal Energy Company v. Navajo Nation, 02-17047 (9th Cir. Feb.  10, 2004).  Because Indian tribes are domestic governments, their sovereign immunity is congressionally abrogated by Bankruptcy Code Secs. 106(a) and 101(27);  the USCA thus reversed the district court dismissal of Krystal Energy Company's adversary action under Bankruptcy Code Secs. 505 and 542 against the Navajo Nation.  Leavy, Paez, and Berzon (author), Circuit Judges.  J. MacKinlay of Mesa, AZ, for the plaintiff-appellant;  M. Gomez of Window Rock, Arizona, for the defendant-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

21)  ANCIENT REMAINS / NATIVE AMERICAN LAW: Bonnichsen v. USA, 02-35994 (9th Cir. Feb. 4, 2004).  Because Kennewick Man's estimated 8,300 to 9,200-year-old remains have not been shown to be related to a presently existing tribe, people or culture, they are not "Native American" for purposes of the Native American Graves Protection and Repatriation Act;  the plaintiffs-scientists may proceed to study the remains pursuant to the Archaeological Resources Protection Act.  Aldisert, Graber, and Gould (author), Circuit Judges.  E. Durkee of Washington, DC, for the defendants-appellants  T. Schlosser of Seattle, WA, and N. Stacy of Pendleton, OR, for the intervenors-appellants. (Download the full text of this decision at www.cc9.uscourts.gov/)

22)  NATIVE AMERICAN LAW / PROPERTY:  Chickaloon-Moose Creek Native Association, Inc. v. Norton, 01-35921 (9th Cir. Feb. 26, 2004). Under the unambiguous terms of a 1976 Deficiency Agreement between the Department of the Interior and Cook Inlet Region, Inc. ("CIRI"), an Alaska Native regional corporation, pursuant to which Native villages in the Cook Inlet region are entitled to select specified acreages of land from the public domain, all of the lands listed in Appendix A of the Agreement must be transfered before lands listed in Appendix C of the Agreement may be transferred to CIRI for reconveyance to the villages;  because the Appendix A lands are sufficient to satisfy the villages' acreage entitlements, the villages will be required to accept some tracts of Appendix A lands in place of Appendix C lands that they selected as being more desirable.  Pregerson, Canby (author), and Thomas, Circuit Judges.  D. Crosby of Juneau, AK, for the appellant;  A. Mergen of Washington, DC, for the appellees.  (Download the full text of this decision at www.cc9.uscourts.gov/)

23)  IMMIGRATION:  Barron v. Ashcroft, 02-70887 (9th Cir. Feb. 10, 2004).  8 USC Sec. 1252(d)(1) provides that a "court may review a final order of removal only if … the alien has exhausted all administrative remedies available to the alien as of right" and thus specifically mandates that the exhaustion of administrative remedies is a prerequisite to appellate court jurisdiction;  here, if the sole alleged error—absence of counsel and lack of opportunity to present a case—had been presented and found to have merit, the BIA could simply have ordered a rehearing with counsel present;  the petitioners' due process challenge was thus procedural in nature, and because it was never presented below, the USCA lacked subject-matter jurisdiction to address it;  the USCA thus dismissed the petition.  Hall and O'Scannlain (author), Circuit Judges, and Brown, District Judge.  P. Schelly of Los Angeles, CA, for the petitioners;  R. McCallum of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

24)  IMMIGRATION: Silva-Calderon v. Ashcroft, 02-73474 (9th Cir. Feb. 23, 2004).  The petitioner could have presented to the BIA his procedural due process claims challenging the IJ's decision not to grant a continuance or issue a subpoena;  because the petitioner failed to exhaust his avenues for relief, the USCA lacked jurisdiction to assess his claims.  D.W. Nelson, Fisher, and Gould (author), Circuit Judges.  T. Greene of Washington, DC, for the petitioner;  P. Buchanan of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

25)  IMMIGRATION / CRIMINAL LAW:  USA v. Pallares-Galan, 02-10532 (9th Cir. Feb. 20, 2004).  A misdemeanor conviction under California Penal Code Sec. 647.6(a) (Annoy-ing or Molesting a Child Under 18), does not constitute an aggravated felony conviction, specifically, "sexual abuse of a minor," 8 USC Sec. 1101(a)(43)(A), for purposes of deportation law;  the defendant was thus eligible for discretionary relief from deportation in the form of cancellation of removal under 8 USC Sec. 1229b;  because the IJ erroneously advised the defendant that he was not eligible and because the defendant's waiver of his right to appeal the removal order was not "considered and intelligent," the USCA held that his claim was not barred by the exhaustion requirement of 8 USC Sec. 1326(d)(1) and that the underlying deportation order was procedurally defective.  Reinhardt (author), Siler, and Hawkins, Circuit Judges.  FPD F. Forsman of Las Vegas, NV, for the appellant;  AUSA R. Bork of Las Vegas, NV, for the appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

26)  IMMIGRATION:  Padash v. INS, 02-70439 (9th Cir. Feb. 19, 2004).  Padash, a Muslim, petitioned for review of a BIA order denying his application for asylum and withholding of deportation;  he maintained that the BIA erred in concluding that he had not established past persecution or a well-founded fear of persecution in either India or Iran;  he also challenged the BIA's determination that he is ineligible to adjust his status to permanent resident as a derivative beneficiary of his uncle's U.S. citizenship.  The USCA affirmed the BIA's denial of the application for asylum and withholding of deportation, but reverse the denial of adjustment of status.  First, Padash, a native of India and citizen of Iran, maintained that India was "against the Muslims," and that, if deported to Iran, he might be made join Iran's military and might be killed as a result;  the USCA concluded that the BIA's determination that Padash failed to establish past persecution on account if his religion was supported by substantial evidence;  at most Padash established that he suffered discrimination by isolated individuals, some of whom were arrested by the authorities;  Padash also failed to establish that the Iranian military sought to recruit or harm him "on account of" a protected ground under the Immigration and Nationality Act;  to the contrary, it appears that all Iranian men are required to serve and that any harm that might befall Padash would be on account of the ordinary dangers associated with military duty.  Second, the Child Status Protection Act of 2002, which prevents individuals from "aging out" of a visa category as a result of delays in visa processing and adjudication, applied to Padash;  in addition, he is statutorily eligible for permanent residence;  under the newly amended version of the Act, an individual eligible for permanent residence as a derivative beneficiary under 8 USC Sec. 1153(d), who is over twenty-one years of age may have his status adjusted provided that: (1) he was a "child" on the date upon which the immigrant visa became available for his parents, (2) he applied for adjustment of status within one year of availability, and (3) he "aged out" while waiting for his application to be adjudicated.  Reinhardt (author), Siler, and Hawkins, Circuit Judges.  W. Sprouls of San Francisco, CA, for the petitioner;  N. Friedman of Washington, DC, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

27)  IMMIGRATION:  Reyes v. Ashcroft, 02-71640 (9th Cir. Filed Nov. 12, 2003;  amended Feb. 12, 2004).  The USCA denied Reyes' petition for review of an order denying his motion to reopen deportation proceedings based on his claim of ineffective assistance of counsel because he had failed to file a required affidavit setting forth his agreement with his attorney regarding his representation and offered no reason for his failure to do so;  Reyes thus failed to satisfy the threshold procedural requirements outlined in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988).  Wallace (author), Hall, and O'Scannlain, Circuit Judges.  B. Vega of Vallejo, CA, for the petitioner;  L. Ohta of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

28)  IMMIGRATION LAW:  Halaim v. INS, 02-72311 (9th Cir. Feb. 18, 2004).  The Immigration Judge did not err in holding that past hardships inflicted on Ukrainian aliens due to their religion did not rise to the level of persecution;  the Lautenberg Amendment, 8 USC Sec. 1157, which lowers the burden of proof for certain categories of aliens applying for refugee status, does not apply to INA Sec. 208 cases, and its inapplicability does not violate equal protection;  the IJ's determination that the petitioners failed to establish their eligibility for asylum is supported by substantial evidence in the record;  the petitioners thus necessarily failed to establish their eligibility for withholding of removal.  Brunetti, T.G. Nelson, and Graber (author), Circuit Judges.  R. Treppiedi of Spokane, WA, for the petitioners;  R. Loeb of Washington, DC, for the respondent.  (Download the full text of this decision at www.cc9.uscourts.gov/)

29)  IMMIGRATION / SENTENCING:  USA v. Rodriguez-Gonzales, 02-50594 (9th Cir. Feb. 19, 2004).  The defendant pleaded guilty to two distinct counts of illegal entry into the United States in violation of 8 USC Sec. 1325;  each count in an information must stand on its own, and here Count Two did not incorporate Count One;  because the statute changes the substantive nature of a second illegal reentry from a misdemeanor to a felony, the fact of a previous entry is more than a sentencing factor and must be charged explicitly;  the Government did not do so here;  the district court thus properly held that the defendant pleaded guilty to two misdemeanor charges and sentenced her accordingly.  Kozinski and T.G. Nelson (author), Circuit Judges, and Restani, Court of Intl. Trade Judge.  D. Yang of Los Angeles, CA, for the plaintiff;  M. Stratton of Los Angeles, CA, for the defendant.  (Download the full text of this decision at www.cc9.uscourts.gov/)

30)  HOBBS ACT:  USA v. Rodriguez, 03-50083 (9th Cir. Feb. 23, 2004).  The defendant, convicted under the Hobbs Act of conspiring to interfere with commerce by robbery, raised meritless challenges to his conviction and sentence;  the Act's definition of "commerce" is not unconstitutionally vague; as de minimis effect on interstate commerce was shown, federal jurisdiction existed, even though defendant's intentions of robbing cocaine from the stash house of narcotics traffickers arose out of a police sting operation and could not have reached fruition as neither the narcotics nor the traffickers actually existed;  the Act criminalizes attempts as well as completed crimes.  Trott (author), Rawlinson, and Bea, Circuit Judges.  W. Mayock of Pasadena, CA, for the defendant-appellant;  AUSA B. Hoffstadt of Los Angeles, CA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

31)  QUALIFIED IMMUNITY:  Cox v. Boxer, 00-35887 (9th Cir. Feb. 20, 2004).  Placement of a Notice of Termination containing stigmatizing information in the plaintiff's personnel file, in the face of a state statute mandating release upon request, constituted publication;  thus, the lack of an opportunity for a name-clearing hearing violated the plaintiff's due process rights;  as the right to a name-clearing hearing was clearly established, such that a reasonable official in the defendants' position would have known that his conduct was unlawful, the defendants here were properly denied qualified immunity;  dissenting, Judge Hall thought the district court's denial of qualified immunity to the individual defendants was incorrect:  she thought that at some level there must be a distinction between cases which give public officials "fair warning" of the potential wrongfulness of their conduct, and those which merely hint at a possible shift in position at some unspecified future date;  she thought the majority had eviscerated any such distinction.  Hall (dissenting), Tashima, and Rawlinson (author), Circuit Judges.  M. Gaston of Spokane, WA, for the defendants-appellants;  P. Burns of Spokane, WA, for the plaintiffs-appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

32)  DISCOVERY / EVIDENCE:  USA v. Alvarez, 01-10686 (9th Cir. Feb. 25, 2004).  Where a district court failed to conduct an in camera review of the probation files of three cooperating witnesses pursuant to a timely defense request for Brady materials, the USCA vacated the conviction and remanded the case to permit the review of the files as they existed at the time of the initial discovery request;  if the files contain relevant, material, and probative information relating to the credibility of these witnesses, or other Brady or Jencks material not disclosed to the defense and that could have affected the outcome of the trial, that material must be released to the defense and a new trial ordered.  Kozinski and T.G. Nelson, Circuit Judges, and Restani (author), Court of Intl. Trade Judge.  P. Katzenberg of Tucson, AZ, for the defendants-appellants;  P. Charlton of Tucson, AZ, for the plaintiff-appellee. (Download the full text of this decision at www.cc9.uscourts.gov/)

33)  THE ROOKER-FELDMAN DOCTRINE:  Kougasian v. TMSL, Inc., 02-56781 (9th Cir. Feb. 26, 2004). This is the fourth in a series of suits arising out of a skiing accident in which the plaintiff's husband was killed;  the district court dismissed the suit for want of subject matter jurisdiction based on the Rooker-Feldman doctrine;  the USCA reversed and remanded for further proceedings, holding that the Rooker-Feldman doctrine does not deprive the district court of subject matter jurisdiction when a federal plaintiff alleges a cause of action for extrinsic fraud on a state court and seeks to set aside a state court judgment obtained by that fraud;  because the plaintiff asserted no legal error by the state court, the district court erred in dismissing her appeal on Rooker-Feldman grounds;  on remand, the USCA directed that the district court may determine, inter alia, whether the suit should be dismissed under California preclusion law pursuant to 28 USC Sec. 1738.  Pregerson, Cowen, and W. Fletcher (author), Circuit Judges.  J. Powell of Irvine, CA, for the appellant;  P. Weiss of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.cc9.uscourts.gov/)

34)  PLEA AGREEMENTS:  In re Ellis, 01-70724 (9th Cir. Feb. 4, 2004).  Once a federal district court accepts a guilty plea, the conditions under which the plea may be withdrawn are governed exclusively by Fed. R. Crim. Proc. 11;  the court lacks sua sponte authority to vacate a previously entered and accepted guilty plea;  upon rejecting a plea agreement, the only course available to the court under Rule 11 is to advise the defendant of his rights, including his right to withdraw his guilty plea;  as Rule 11 contains no provision permitting the district court itself to determine that the plea should be vacated following its rejection of the plea agreement, the district court's decision to do so here was error.  Judge Kozinski joined Judge Wardlaw's opinion in full and parts III, IV and V of Judge Trott's concurrence;  Kozinski wrote separately to confess his befuddlement that the panel was not unanimous.  Dissenting in part, Judge Trott said he disagreed with his colleagues understanding of this case because he reads the record differently, starting with the issue of whether the district court ever accepted the petitioner's proffered guilty plea: he thought that it was not established—im-plicitly or otherwise—that the district court ever accepted the petitioner's plea.  Dissenting, Judge Kleinfeld, joined by Judge Gould, agreed with the majority's holding that the judge in this case accepted the petitioner's plea, but he differed in that he would hold that after reading the presentence report, a judge had the authority to strike the plea because he had rejected the plea bargain of which the plea to a lesser offense was an essential part;  the Federal Rules of Criminal Procedure, he noted, are silent on whether the judge can do so;  the Sentencing Guidelines suggest that he can and must.  Schroeder, Pregerson, Reinhardt, Kozinski (concurring), Trott (dissenting in part), Kleinfeld (dissenting), Thomas, Wardlaw (author), Fisher, Gould (concurring in the dissenting), and Berzon, Circuit Judges.  FPD R. Gombiner of Seattle, WA, for the petitioner;  P. Gonick of Seattle, WA, for the respondent;  AUSA R. Westinghouse of Seattle, WA, for the real-party-in-interest. (Download the full text of this decision at www.cc9.uscourts.gov/)

35)  SPEEDY TRIAL ACT/ SENTENCING :  USA v. Daychild, 02-30184 (9th Cir. Feb. 17, 2004).  The day a party files a motion is excludable for purposes of the Speedy Trial Act;  review of defendant's sentence under retroactive application of the Protect Act was appropriate even though the sentence was imposed before the Act's effective date;  the USCA affirmed the defendants' various drug and firearm convictions;  it also affirmed, de novo, the district court's decision to depart horizontally by one criminal history category given defendant Daychild's numerous arrests and convictions, and potential for recidivism;  the USCA also affirmed the sentence despite that the district court, while explaining its reasons in open court, did not state reasons for departing in the written judgment and commitment, because the length of the sentence was not excessive.  Alarcon, Gould (author), and Clifton, Circuit Judges.  R. Kelleher and R. Carstensen of Billings, MT, for the defendants;  AUSA J. Van de Wetering of Missoula, MT, for the plaintiff.  (Download the full text of this decision at www.cc9.uscourts.gov/)

36)  SENTENCING / EVIDENCE:  USA v. Johnson, 03-30101 (9th Cir. Feb. 5, 2004).  The defendant, arrested after a controlled delivery, was accountable for all the methamphetamine originally packaged and shipped to him, even though he never received most of it;  his relevant conduct was ordering the controlled substance, checking on the package, and receiving it when delivered;  the record evidence was sufficient to establish that the defendant knowingly possessed methamphetamine with the intent to distribute it.  Brunetti, T.G. Nelson (author), and Graber, Circuit Judges.  D. Wilson of Kalispell, NT, for the defendant-appellant;  AUSA C. Rostad of Great Falls, MT, for the plaintiff-appellee.(Download the full text of this decision at www.cc9.uscourts.gov/)

37)  SENTENCING:  USA v. Clough, 02-30316 (9th Cir. Feb. 25, 2004).  The USCA upheld the defendant's federal conviction for unlawful possession of an unregistered firearm;  the parties never agreed that this firearms charge would not be brought after defendant dealt with state charges arising from the same incident;  however, the district court erred in concluding that it lacked discretion to consider whether a downward sentencing departure was warranted on the basis that the defendant suffered substantial injuries when police shot him;  the USCA thus remanded for resentencing.  Hug, Graber, and Clifton (author), Circuit Judges.  S. Hormel of Spokane, WA, for the defendant-appellant;  AUSA S. Winiker of Spokane, WA, for the plaintiff-appellee.  (Download the full text of this decision at www.cc9.uscourts.gov/)

38)  SENTENCING:  USA v. Delgado, 02-30363 (9th Cir. Feb. 10, 2004).  While finding the verdict supported by substantial evidence and affirming the conviction, the USCA found that the sentencing court violated 18 USC Sec. 3553(c) by not stating in open court the reasons underlying the sentence imposed.  Brunetti (author), T.G. Nelson, and Graber, Circuit Judges.  AUSA J. Lulejian of Seattle, WA, for the appellee;  B. Andrus of Seattle, WA, for the appellant. (Download the full text of this decision at www.cc9.uscourts.gov/)

39)  SENTENCING / CRIMES OF VIOLENCE:  USA v. Campos-Fuerte, 03-10055 (9th Cir. Feb. 4, 2004).  Driving a police pursued vehicle in a willful or wanton manner in violation of California Vehicle Code Sec. 2800.2 is a crime of violence as defined by 18 USC Sec. 16(b);  it thus qualifies as an aggravated felony under Sentencing Guideline Sec. 2L1.2(b)(1)(C).  Hug (author), B. Fletcher, and Tashima, Circuit Judges.  W. Quinlan of Fresno, CA, for the appellant;  AUSA D. Gappa of Fresno, CA, for the appellee.   (Download the full text of this decision at www.cc9.uscourts.gov/)

40)  SUPERVISED RELEASE:  USA v. Joyce, 02-30423 (9th Cir. Feb. 3, 2004).  Because of the plea agreement in which he waived his right to appeal his conviction or "any aspect of the sentence imposed," the defendant could not appeal restrictions imposed as special conditions on his supervised release;  the defendant had challenged on First Amendment grounds the Internet access and computer use restrictions imposed as special conditions of supervised release following his conviction for possession of child pornography in violation of 18 USC Sec. 2252A(a)(5)(B);  dissenting, Judge Gould would hold that the term "sentence" as used in the defendant's plea agreement and waiver is ambiguous in meaning, and, construing the ambiguity in the defendant's favor, the waiver of appeal does not bar him from appealing the special conditions of supervised release;  as to the merits, Judge Gould would uphold the special conditions of supervised released because they were designed to meet the ends of rehabilitation and protection of the public.  Kleinfeld, Gould (dissenting), and Tallman (author), Circuit Judges.  AFPD M. Geddes of Anchorage, AK for the defendant;  AUSA S. Skrocki of Anchorage, AK, for the plaintiff. (Download the full text of this decision at www.cc9.uscourts.gov/)

41)  HABEAS CORPUS:  Sanders v. Lamarque, 02-56893 (9th Cir. Feb. 3, 2004).  A prisoner was properly granted a writ of habeas corpus based on the state trial court's dismissal of a lone holdout juror;  a trial court may not remove a juror to accommodate the prosecution's desire to exercise a peremptory challenge after the jury has been impaneled;  the protection of holdout jurors from coercion has been a fundamental part of federal jurisprudent, and the Supreme Court has long held that it is improper for a trial judge to inquire as to the numerical division of a deadlocked jury.  Dissenting, Judge Hall thought that in granting the writ, the district court failed to pay appropriate deference to the jurists who previously considered the petitioner's claims and that the USCA repeated this error; the majority implies that the Sixth and Fourteenth Amendment prohibits state trial judges from dismissing a juror after the judge learns that he is the sole holdout;  but the Supreme Court has never imposed such a rule on the state courts;  Judge Hall thought, the USCA lacked the power to impose this or any other rule on state trial courts; absent a provision for exclusive federal jurisdiction, the state courts are free to interpret federal law—including the Federal Constitution—differently from the USCA.  Hall (dissenting), Thomas (author), and Paez, Circuit Judges.  A. Duarte of Los Angeles, CA, for the respondent;  T. Rippy of Whittier, CA, for the petitioner.   (Download the full text of this decision at www.cc9.uscourts.gov/)

42)  HABEAS CORPUS /  MIXED PETITIONS: Powell v. Lambert, 01-35809 (9th Cir. Feb. 10, 2004).  The State of Washington's rule requiring the dismissal of "mixed petitions" (containing both time-barred clams and excepted claims) was inadequate to serve as a procedural bar to the assertion of prisoner's federal rights because, in actual practice, the rule was not "clear, consistently applied and well-established" at the time of plaintiff's purported default; the petitioner had thus exhausted his federal claims in state court;  the USCA reversed and remanded to allow the district court to consider the merits of the exhausted claims in the federal petition for ha-beas corpus.  Reinhardt, W. Fletcher (author), and Gould, Circuit Judges.  S. Elliott of Seattle, WA, for the petitioner; J. Samson of Olympia, WA, for the respondent. (Download the full text of this decision at www.cc9.uscourts.gov/)

43)  DEATH PENALTY:  Cooper v. Rimmer, 04-99001 (9th Cir. Feb. 8, 2004).  Cooper, a California death row inmate whose execution was scheduled for Tuesday, February 10, 2004 at 12:01 a.m., appealed the district court's order denying his motions for a TRO and preliminary injunction and for expedited discovery, in his action pursuant to 42 USC Sec. 1983 against the Acting Director of the California Department of Corrections and the Warden of California State Prison at San Quentin.  Cooper's action sought to prevent the defendants from executing him in accordance with California's lethal injection protocol in violation of his Eighth Amendment right to be free from cruel and unusual punishment;  Cooper also made an emergency motion to stay the execution date.  Initially, a Ninth Circuit panel consisting of Judges Browning, Rymer, and Gould affirmed the district court and denied the motion; the panel found that Cooper had not met his burden of showing either the likelihood of success on the merits or the existence of serious questions going to the merits;  it noted that every state and federal court to consider the question has concluded that lethal injection is constitutional, and that at least two courts which have examined protocols that, like California's, use both sodium pentothal and pancuronium bromide have held that such protocols are constitutional; in addition, the panel found that Cooper had not articulated a compelling argument that to stop an inmate's breathing is not a legitimate state interest in the context of an execution.  On February 8, 2004, the same panel, with Judge Browning dissenting, denied Cooper's application for authorization to file a successor habeas petition and also denied his request for a stay of execution.  On February 9, 2004, the court sitting en banc authorized Cooper to file his successor petition for habeas corpus and stayed his execution pending resolution of that petition.   D. Alexander of San Francisco, CA, for the plaintiff;  DAG H. Wilkens of San Diego, CA, for the defendants.   (Download the full text of this decision at www.cc9.uscourts.gov/)

 1)  COPYRIGHTS:  Stone v. Perpetual Motion, LLC, 02-36084 (9th Cir. Feb. 27, 2004) (unpublished).  Graber, Tallman, and Clifton, Circuit Judges.
 

 In this copyright action, plaintiff Stone appealed the district court's grant of summary judgment in favor of defendant Perpetual Motion, LLC. 

Reviewing the matter de novo, the USCA affirmed.  In order to prevail on her claim of copyright infringement, the plaintiff had to prove "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original."  Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991).  On the first prong, it was undisputed that the plaintiff owns a valid copyright in the Adventures map.  On the second prong, the plaintiff pointed to no direct copying of an entire map from Adventures.  Narell v. Freeman, 872 F.2d 907, 910 (9th Cir. 1989) ("A finding that a defendant copied a plaintiff's work, without application of a substantial similarity analysis, has been made only when the defendant has engaged in virtual duplication of a plaintiff's entire work.").  The plaintiff thus must show (1) that the defendant had "access" to her work; and (2) that the two works are "substantially similar."  Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000).  The first element of the copying test, access, is conceded;  the defendant used the plaintiff's maps as the starting point for its maps.  In evaluating substantial similarity, the USCA said it filters out elements that are not protectable.  Rice v. Fox Broad. Co., 330 F.3d 1170, 1174 (9th Cir. 2003).  The protectable elements of maps include not only the depiction of a previously undiscovered landmark or the correction or improvement of scale or placement, but also selection, design, and synthesis. USA v. Hamilton, 583 F.2d 448, 452 (9th Cir. 1978).  Viewing the evidence in the light most favorable to the plaintiff, no reasonable juror could find substantial similarity of ideas and expression in the Adventures and Good Dirt maps.  After the non-protectable elements are filtered out, there is not substantial similarity.  To be sure, the Adventures maps and the Good Dirt maps cover trails in the same territory.  But, the Good Dirt maps offer a distant view filled with many more details of the terrain. Although the maps have several basic design features in common, "it is well-settled that copyright of a map does not give the author an exclusive right to the coloring, symbols, and key used in delineating boundaries of and locations within the territory depicted."  Hamilton, 583 F.2d at 451.

2)  SECURITIES:  Reilly v. WM Financial Services, Inc., 02-17100 (9th Cir. Feb. 2, 2004) (unpublished). Leavy, Paez, and Berzon, Circuit Judges.

The Reillys, as Trustees of the John and Patricia Reilly Family Trust appealed the district court's order granting the defendants' motion to confirm an arbitration award pursuant to the Federal Arbitration Act, 9 USC Sec. 9.

 The USCA affirmed.  The Reillys brought an action alleging that they suffered monetary losses as a result of defendants' violations of federal securities laws and various California state laws.  The district court granted the defendants' motion to compel arbitration.  A panel of National Association of Securities Dealers conducted an arbitration hearing and issued an award denying the Reillys' claims.  The district court confirmed the award.  The Reillys then appealed the district court's confirmation award, arguing that there is a genuine issue of material fact as to whether they agree to arbitrate.  The Reillys contend that there is a factual dispute as to whether they saw or received Page 2 of the "application to open an investment account," which contained the actual arbitration clause.  The Reillys did not dispute that they signed their names on Page 3, under a statement that acknowledged that they had "read, received, and agreed to the predispute arbitration section" of the investment account agreement.  The Reillys maintained that the arbitration panel's decision should be vacated and a jury trial convened to determine whether the parties had an enforceable agreement to arbitrate.  A district court's confirmation of an arbitration award is reviewed "like any other district court decision … accepting findings of fact that are not clearly erroneous but deciding questions of law de novo."  Coutee v. Barington Capital Group, 336 F.3d 1128, 1132 (9th Cir. 2003).  The Federal Arbitration Act provides in relevant part:  "If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof."  9 USC Sec. 4.  Courts have interpreted 9 USC Sec. 4 to require a jury trial "only if there is a triable issue concerning the existence or scope of the agreement."  Saturday Evening Post Co. v. Rumbleseat Press, 816 F.2d 1191, 1196 (7th Cir. 1987).  "To evaluate the validity of an arbitration agreement, federal courts 'should apply ordinary state-law principles that govern the formation of contracts.'"  Ingle v. Circuit City Stores, Inc., 328 F.3d 1165, 1170 (9th Cir. 2003) (quoting First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995)).  The Reillys commenced this action in California.  The USCA thus evaluated the arbitration agreement under California law.  In response to the defendants' motion to confirm the arbitration award, the Reillys maintained that there existed a genuine issue of material fact as to whether they agreed to arbitrate.  The defendants produced a copy of the investment account agreement, which contains the Reillys' signatures acknowledging that they had "read, received, and agreed to the predispute arbitration section" of the agreement.  The burden was then upon the Reillys to produce specific facts showing that a triable issue of material fact exists as to whether they agreed to arbitrate.  The Reillys failed to produce specific facts showing a triable issue of material fact regarding the validity of the arbitration agreement.  They submitted declarations stating that they had never seen, read, or approved the disputed page containing the actual arbitration clause.  Assuming the truth of these declarations, there was no triable issue.  Under California law, a party can be bound by an arbitration clause even if he failed to read or understand it.  Bolanos v. Khalatian, 283 Cal. Rptr. 209, 211 (Cal. Ct. App. 1991).  The Reillys did not contest that the disputed page exists;  instead, they maintained that the arbitration agreement is invalid  because they did not receive a copy of the page containing the actual arbitration clause.  Under California law, the terms of an incorporated contract provision must be easily available to the contracting parties.  Slaught v. Bencomo Roofing Co., 30 Cal. Rptr. 2d 618, 621 (Cal. Ct. App. 1994).  The record indicates that copies of the arbitration agreement were easily available to the contracting parties.  The USCA thus affirmed the district court's order confirming the arbitration award.

3)  SECURITIES:  Pincay Investments Co. v. Chalmers, 03-15158 (9th Cir. Feb. 18, 2004) (unpublished). Bright, D.W. Nelson, and Rymer, Circuit Judges.

 Chalmers appealed pro se the district court's approval of a plan of distribution ("Plan"), including allocation of fees, pursuant to a class action arising out of securities fraud by Covad Communications Group, Inc. 

 The USCA affirmed.  Chalmers maintained that the district court abused its discretion by approving the Plan.  He pointed to several allegations of error, including that the Plan did not sufficiently describe all classes to the Plan;  the method for calculating damages for each class was inappropriate;  the Plan did not adequately consider the terms of Covad's bankruptcy; and the lead plaintiffs should not have received compensation for lost wages under the Plan.  A class settlement must be fundamentally fair, adequate, and reasonable, In re Mego Fin, Corp. Securities Litigation, 213 F.3d 454, 458 (9th Cir. 2000), and assessing a settlement proposal requires a district court to comprehensively balance and explore a number of factors, including as appropriate:  (1) the risk, expense, complexity, and likely duration of further litigation;  (2) the risk of maintaining class action status throughout the trial;  (3) the amount offered in settlement;  (4) the extent of discovery completed and the state of the proceedings;  (5) the experience and vies of counsel; and (6) the reaction of the class members to the proposed settlement.  Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998).  The district court acted within its discretion: it reviewed the balancing of factors and considered Chalmers' objections.  See Torrisi v. Tucson Elec. Power Co., 8 F.3d 1370, 1376 (9th Cir. 1993) (holding that the district court did not abuse its discretion in considering relevant factors, including bankruptcy, in approving a settlement plan).  Chalmers offered only conclusory statements in arguing that the district court abused its discretion.  Chalmers also maintained that the district court abused its discretion in approving the Plan's allocation of 25% of the settlement in attorneys' fees.  In a common fund case, the district court has discretion to apply either the lodestar method or the percentage-of-the fund method in calculating the fee award.  Fischel v. Equitable Life Assurance Soc'y, 307 F.3d 997, 1006 (9th Cir. 2002.  The Circuit has established 25% as a benchmark in percentage-of-the-fund cases that can be adjusted upward or downward to account for any unusual circumstances presented by a particular case.  Id.  In the present case, the district court explained its reasons for applying the benchmark fee and determined that no unusual circumstances existed requiring an upward or downward adjustment.  See Fischel, 307 F.3d at 1007 (stating that a district court may, but is not required to, compare the different methods for calculating reasonable fees).  In the circumstances of the instant case, the district court did not abuse its discretion in using the percentage-of-the-fund method or in applying the benchmark in determining reasonable attorneys' fees.  The district court thus gave an adequate hearing and consideration to Chalmers' objections.

4)  TAXATION:  Do v. CIR, 03-72195 (9th Cir. Feb. 24, 2004) (unpublished).  Fernandez, W. Fletcher, and Tallman, Circuit Judges.   Do appealed pro se the Tax Court's summary judgment in favor of the CIR, finding that the Commissioner could proceed with a proposed collection action to satisfy Do's 1991 income tax obligations.  The Tax Court correctly rejected Do's contention that she is not obliged to pay federal income tax because she disagrees with the United States government policies.  Autenrieth v. USA, 418 F.2d 586, 589 (9th Cir. 1969).  The Tax Court also correctly determined that Do failed to raise any genuine issue of material fact.  Hansen v. USA, 7 F.3d 137, 138 (9th Cir. 1993).  The Tax Court thus correctly granted the CIR's summary judgment motion.

5)  BANKRUPTCY / SANCTIONS:  In re Cables and Accessories, Inc., 02-17152 (9th Cir. Feb. 11, 2004) (unpublished).  Bright, D.W. Nelson, and Rymer (concurring), Circuit Judges.

 In 1995, Cables and Accessories, Inc. ("CAI") served as a middleman between a domestic company seeking to buy power cords (Power Play Products, Inc.) and manufacturers in China.  When CAI presented Michael A. Brewer with mislabeled goods and refused to return his down payment on the goods, litigation between CAI and Brewer erupted in multiple forums.  Eventually, CAI filed for bankruptcy.  In response to claims CAI brought against Brewer, Brewer sued CAI in California state court for malicious prosecution.  But he failed to obtain the bankruptcy court's permission before filing, thereby violating the automatic stay provisions of 11 USC Sec. 362(a).  Shortly after Brewer filed his action, but before service upon CAI, the bankruptcy court granted him relief from the automatic stay.  CAI reacted by bringing an adversary action against Brewer in the bankruptcy court complaining that his malicious prosecution action violated the automatic stay.  The bankruptcy court agreed that Brewer's actions technically violated the stay, but noted the short delay between the filing and its grant of permission to sue.  It also held that CAI, as a corporation, had no right of action for damages under 11 USC Sec. 362(h).  CAI could show no prejudice because Brewer did not serve CAI with notice of the suit until after the bankruptcy court granted permission to sue, and dismissed CAI's proceeding against Brewer.  The district court determined that the bankruptcy court had properly construed its own grant of permission to sue.  Based in part on unsupported inflammatory allegations against Brewer in CAI' brief to the district court, the district court granted Brewer's motion for sanctions against Sun C. Chen as CAI's counsel.  CAI appealed both the district court's ruling on the merits of the bankruptcy issue and the award of sanctions against Chen.  At issue was whether the bankruptcy court erred in rejecting Chen's civil contempt action against Brewer.

 The USCA affirmed the district court's judgment in favor of Brewer rejecting CAI's appeal of the bankruptcy court's decision.  It also affirmed the district court's award of sanctions against Chen and denied Brewer's motion for sanctions against Chen for his conduct before the USCA.  First, the bankruptcy court explained that CAI's action for injunctive relief was moot in light of its order granting Brewer permission to sue.  The bankruptcy court properly determined that CAI, as a corporation, had no right of action for damages against Brewer for his violation of the automatic stay.  11 USC Sec. 362(h) applies only to natural individuals, not to corporate debtors.  To CAI's advantage, the bankruptcy court than construed CAI's attempted Sec. 362 action as a motion for civil contempt rather than dismissing the action outright.  The bankruptcy court found no basis for an award of civil contempt damages because Brewer's filing of the malicious prosecution action before obtaining relief from the automatic stay caused no prejudice to CAI.  Brewer took no steps on its state court action until the bankruptcy court gave Brewer permission to pursue its claims to the extent those claims would be covered by CAI's insurer.  The bankruptcy court did not abuse its discretion by refusing to hold Brewer in civil contempt for its technical violation of the automatic stay.  Brewer did not take any action on its complaint, including service of process, until after the bankruptcy court awarded relief from the stay.  Brewer intended to pursue only those claims covered by CAI's insurance.  CAI thus suffered no prejudice from Brewer's breach of the automatic stay.  Second, the USCA noted that sanctions may be warranted when a party stands on frivolous arguments, litigates in bad faith, or abuses the judicial process.  Brewer brought a separate motion for sanctions against Chen for filing a frivolous appeal in the district court and for making inflammatory and unsubstantiated representations of fact.  The district court determined that CAI's appeal from the bankruptcy court lacked any merit.  The district court further found that Chen's brief had improperly included the challenged inflammatory statements.  The district court thus awarded sanctions against Chen.  CAI argued that the district court's award of sanctions did not satisfy the standard expressed in 28 USC Sec. 1927.  However, the district court did not rely on that statute, instead exercising its inherent powers to find Chen in violation of a lawyer's duty of candor to the court.  The district court may exercise inherent powers to sanction bad-faith litigants, even without statutory authority.  Chen's failure to abide by or even recognize his duty to include only true factual representations in his briefs to the district court justify the award of sanctions there.  On top of his misrepresentations, Chen also should have realized that his appeal from the bankruptcy court lacked any chance of success.  The USCA thus affirmed that the district court did not abuse its discretion by awarding sanctions against Chen.  Third, the USCA noted that it may sanction an attorney for bringing a frivolous appeal.  Such sanctions are typically appropriate when the result of the appeal is obvious and the arguments lack merit.  It said it may also sanction an attorney who pursues vexatious litigation.  Brewer moved the USCA to sanction Chen, for again filing a frivolous appeal and for again including inflammatory misrepresentations of fact in his papers before the USCA.  As discussed above, CAI's appeal was frivolous.  The USCA also considered Chen's inflammatory and false statements to show a lack of professionalism.  Such conduct seriously undermined the effectiveness of Chen's advocacy.  Still, the USCA thought the litigation had gone on long enough.  It said it prefers not to expend judicial and legal resources further by ordering a hearing on the sanctions motion.
 Concurring, Judge Rymer said that she would dismiss the appeal as CAI, a California corporation suspended under Cal. Rev. & Tax. Code Sec. 23301, lacked the capacity to prosecute this appeal.  But if the appeal is not dismissed, then she would also issue an order to show cause why sanctions should not be imposed for a frivolous appeal.

6)  BANKRUPTCY:  North Valley County Water and Sewer District, Inc. v. Valley Park, Inc., 02-35791 (9th Cir. Feb. 19, 2004) (unpublished).  Trott, Paez, and Berzon, Circuit Judges.

 North Valley County Water and Sewer District and St. Marie Condominium Association appealed the district court's order dismissing as equitably moot their appeal from the bankruptcy court's confirmation of a Chapter 11 plan.

 The USCA affirmed.  The district court held that the appeal was moot because the confirmed bankruptcy plan had been substantially consummated.  The district court relied on four facts:  (1)  the transfer of property from the Valley Park Liquidating Trust ("the Trust") to the St. Marie Development Corporation ("the Corporation");  (2) the assumption of that property by the Corporation;  (3) the distribution of stock by the Corporation to claimants;  and (4) the release of liens by most of the claimants.  According to both parties at oral argument, since the district court issued its opinion, at least some of the property that was transferred to the Corporation under the plan has been sold to third parties.  The USCA agreed that the plan had been substantially consummated.  A plan has been substantially consummated if substantially all of the property has been transferred, the debtor or its successor has taken control of substantially all of the property, and distribution under the plan has commenced.  11 USC Sec. 1101(2).  In light of the facts identified by the district court and the representations of the parties at oral argument, it was clear that the property of the debtor, the Trust, has been transferred to its successor, the Corporation, and the Corporation had begun selling the property to third parties.  Consequently, the district court was correct that the plan had been substantially consummated.  The USCA noted, however, that "the fact that a plan is substantially consummated and that the appellant ailed to obtain a stay pending appeal does not, by itself, render an appeal moot.  The appellate court should still consider whether it can grant effective relief." In re Weinstein, 227 B.R. 284, 289 (9th Cir. B.A.P. 1998).  The appellants maintained that effective relief could be granted merely by ordering the Corporation to return the property to the Trust and by requiring the Trust to allow the debtors' liens to be reinstated.  But, it is not so simply.  Because the Corporation has sold some property to third parties, the bankruptcy court would be powerless to require at least a portion of the property to be returned to the Trust.  "The transfer to a third party precludes meaningful relief."  Baker & Drake, Inc. v. Pub. Serv. Comm'n of Nevada, 35 F.3d 1348, 1351 (9th Cir. 1994).  In addition, reinstating the liens would be costly and the Corporation and Trust had insufficient funds to engage in normal business operations. The USCA concluded that it would be impossible for the bankruptcy court to grant effective relief at this point.  As the plan had been substantially consummated and it is impossible to grant effective relief, the USCA affirmed the district court's determination that this appeal is moot.

7)  BANKRUPTCY:  In re Boers, 03-16001 (9th Cir. Feb. 24, 2004) (unpublished).  Fernandez, W. Fletcher, and Tallman, Circuit Judges.

 Boers appealed pro se from the Bankruptcy Appellate Panel's judgment affirming the bankruptcy court's order sua sponte dismissing without prejudice her Chapter 11 petition because she failed to effectuate a confirmable plan of reorganization.  The USCA affirmed.  Boers' Chapter 11 petition was properly dismissed as she failed to effectuate a confirmable plan of reorganization, which is an enumerated basis for dismissal under 11 USC Sec. 1112(b)(2).  Boers' contention that she was not required to file a confirmable plan because she was unsure of the status of an alleged foreclosure on her real property is without merit.  Because Boers failed to present any legal or factual basis for the motion for reconsideration, the bankruptcy court did not abuse its discretion in denying the motion.  The record does not support Boers' contention that the U.S. Trustee and the bankruptcy judge engaged in ex parte communications.

8)  BANKRUPTCY:  In re McCarthy, 02-56824 (9th Cir. Feb. 12, 2004) (unpublished).  Kozinski, O'Scannlain, and Silverman, Circuit Judges.

 The California Supreme Court's disciplinary decision establishes the breach of fiduciary duty that appellant McCarthy in this case sought to deny.  McCarthy was thus estopped from challenging the non-dischargeability of his obligation to Ashjian.  Medhi Imen v. Glassford, 201 Cal. App. 3d 898, 901 (1988) (according preclusive effect to state administrative licensing proceeding);  Disimone v. Browner, 121 F.3d 1262, 1267 (9th Cir. 1997) ("A court is permitted to raise preclusion doctrines sua sponte.")  The USCA thus found that it did not need to decide what effect the California court would accord to the municipal court judgment that was the subject of the bankruptcy court's decision.

9)  BANKRUPTCY:  In re Bell, 02-56964 (9th Cir. Feb. 10, 2004) (unpublished).  Kozinski, O'Scannlain, and Silverman, Circuit Judges.

 Ample evidence supported the bankruptcy court's determination that the Bells' conduct did not constitute fraud within the meaning of 11 USC Sec. 523(a)(2) and was not willful or malicious within the meaning of 11 USC Sec. 523(a)(6).  Because no express trust was created independently of the alleged wrongdoing, the bankruptcy court's conclusion that there was no fraud or defalcation while acting as a fiduciary within the meaning of 11 USC Sec. 523(a)(4) was not erroneous.  See Ragsdale v. Haller, 780 F.2d 794, 796 (1986);  In re Jacks, 266 B.R. 728, 736 (9th Cir. BAP 2001).

10)  INSURANCE:  Bakken v. State Farm Insurance Co., 02-56795 (9th Cir. Feb. 11, 2004) (unpublished).  Hug, B. Fletcher, and Wardlaw, Circuit Judges.

 Bakken suffered physical injury and property damage in a car accident with an underinsured motorist ("UIM") and challenges deductions made by State Farm under her UIM insurance policy.  Bakken's State Farm policy has a $30,000 per person limit and State Farm deducted from its payment $15,000 that Bakken had recovered in a settlement with UIM's insurance carrier and $11,498.27 that Bakken's worker's compensation carrier had paid on Bakken's behalf, primarily for medical costs.  Bakken filed a class action suit in San Diego Superior Court that challenged State Farm's set-offs.  State Far removed Bakken's class action to federal district court on the basis of diversity jurisdiction and moved to dismiss.  The district court dismissed Bakken's claims with prejudice and entered judgment;  it did not certify a class.  Bakken appealed the dismissal of her claims.

 The USCA dismissed the appeal and remanded with instructions to vacate and to remand to state court.  A district court does not have diversity jurisdiction unless the amount-in-controversy exceeds $75,000.  28 USC Sec. 1332.  Even where the parties do not challenge jurisdiction on appeal, the court has an obligation to ensure that jurisdiction exits. Matheson v. Progressive Specialty Insurance Co., 319 F.3d 1089, 1090 (9th Cir. 2003) (noting that the parties' agreement that jurisdiction existed was irrelevant).  To establish that the amount-in-controversy was satisfied in this case, State Farm's notice of removal relied on Bakken's assertion that as a result of State Farm's alleged unfair business practices, State Farm had effectively deprived the plaintiff and the class members of at least tens of millions of dollars in policy benefits.  However, only the claims of named class members count toward the amount-in-controversy requirement.  Gibson v. Chrysler Corp., 261 F.3d 927, 940-41 (9th Cir. 2001) (noting that unnamed class members are not even party to the suit until after class certification).  Similarly, Bakken's request for disgorgement of State Farm profits on behalf of all class members may be counted toward the amount-in-controversy only to the extent of the value of Bakken's individual claim against State Farm.  In re Ford Motor Co. / Citibank (South Dakota), N.A., 264 F.3d 952, 962 (9th Cir. 2001) (holding that unless a plaintiff class presents a claim in which they all have a "common and undivided interest," the total amount of disgorgement cannot be counted toward the amount-in-controversy).  Bakken's complaint also requests attorneys' fees.  However, "when there is no direct legal authority for an attorney's fee, a request for a fee cannot be included in the computation [of] the jurisdictional amount."  Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1155 (9th Cir. 1998) (quoting 14A C. Wright & A. Miller, Federal Practice and Procedure, Sec. 3712 at 178 (1985)).  Attorneys' fees are not available for claims brought under California unfair business practice law, which is Bakken's central cause of action.  Walker v. Countrywide Home Loans, Inc., 121 Cal. Rptr. 2d 79, 94 (Cal. Ct. App. 2002) ("The unfair competition law does not provide for attorney fees, and relief is generally limited to injunctive relief and restitution.")  The limit on Bakken's State Farm policy is $30,000.  She conceded that State Farm properly deducted at least $9,000 and that State Farm had already paid her approximately $3,500.  The remaining value of her claim was $17,500.  Bakken was the only named plaintiff;  there was no common class fund at issue;  and Bakken's individual claim for damages did not satisfy the amount-in-controversy requirement.  For these reasons, the USCA held that the district court did not have diversity jurisdiction over Bakken's claim.  The USCA thus dismissed the appeal and remanded to the district court to vacate its dismissal with prejudice and to remand the case to state court.

11)  CONTRACTS:  12 Americans, Inc. v. MSNBC Interactive News, LLC., 02-35985 (9th Cir. Feb. 20, 2004) (unpublished).  Trott, Paez, and Berzon, Circuit Judges.

 12 Americans, an Internet startup, appealed the district court's summary judgment in its diversity action alleging breach of contract and promissory estoppel.  12 Americans maintained that MSNBC was obligated by contract or promissory estoppel to use 12 Americans' polling services on MSNBC's Web site during and after the 2000 election campaigns. 

 The USCA affirmed.  The parties agreed that Washington's substantive law governed the plaintiff's claims.  When examining whether there is mutual assent in the form of an offer and acceptance, Washington follows an objective manifestation test and asks what a reasonable person would have concluded.  Wilson Court Ltd. P'ship v. Tony Maroni's, Inc., 134 Wash. 2d 692, 699, 952 P.2d 590, 594 (1998).  12 Americans argued that the oral statement "we've got a deal" constituted acceptance.  However, 12 Americans had not made an offer capable of being accepted.  The October 11, 1999 letter expressly stated that it was only making "suggestions" concerning the terms of an agreement, and proposed that MSNBC prepare an agreement for 12 Americans' review.  The letter was thus an invitation to participate in further negotiations.  An invitation to negotiate that reserves the right of acceptance does not constitute a valid offer. In Pacific Cascade Corp. v. Nimmer, 25 Wash. App. 552, 556-58, 608 P.2d 266, 268-69, after several exchanges of correspondence, Nimmer sent a letter of intent concerning a prospective land lease to Pacific Cascade.  Upon receiving the letter, Pacific Cascade thought a deal had been made and took steps to develop the land.  Nimmer, however, withdrew from negotiations before the lease was drafted and executed.  The letter of intent at issue stated:  "The above [terms] however, must remain subject to the appropriate documentation and signing."  Id at 557.  Considering that language, the court warned about conflating preliminary negotiations and final contracts:  "Great care should … be taken not to construe the conduct, declarations or letters of a party as proposals when they are intended only as preliminary negotiations.  At issue in such a case is whether the offerer meant to submit a proposition, or was only settling the terms of an agreement on which he proposed to enter, after all its particulars are adjusted?  If it is intended merely to start negotiations which may subsequently result in a contract, or is intended to call forth an offer from the one to whom it is addressed, its acceptance does not constitute a contract.  The fact that the parties do intend a subsequent agreement to be made is strong evidence that they did not intend the earlier negotiations to amount to a proposal or acceptance.  An agreement, to be finally settled, must comprise all the terms which the parties intended to introduce into the agreement and until the terms of a proposal are settled, the proposer is at liberty to retire from the bargain."  Id at 556-57 quoting Coleman v. St. Paul & Tacoma Lumber Co., 110 Wash. 259, 272, 188 P. 532, 537 (1920).  In the instant case, because the letter, by its own terms, did not constitute a valid offer and the statement "we've got a deal" created no legally enforceable contract.  Second, 12 Americans failed to prove the elements of promissory estoppel.  In Washington, a proper claim for promissory estoppel consists of these elements:  "(1) a promise which (2) the promisor should reasonably expect to cause the promise to change his position and (3) which does not cause the promise to change his position (4) justifiably relying upon the promise, in such a manner that (5) injustice can be avoided only by enforcement of the promise." Havens v. C&D Plastics, Inc., 124 Wash. 2d 158, 171-72, 876 P.2d 435, 442 (1994) quoting Klinke v. Famous Fried Chicken, Inc., 94 Wash. 2d 255, 259 n.2, 616 P.2d 644 (1980).  Given the unambiguous language of the October 11, 1999 letter inviting further negotiation and reserving the right to accept a written agreement drafted by MSNBC, it was unreasonable for 12 Americans to think that the oral statement "we've got a deal" constituted a promise sufficiently definite to justify reliance.  At the most, the promise MSNBC would have made pursuant to the October 11 letter was a promise to produce proposed agreement terms for 12 Americans' review.  But MSNBC did produce such terms on Jun 20, 2000.  Although MSNBC then withdrew those terms before 12 Americans responded, 12 Americans did not claim reliance on the June 20 document or seeking to enforce its terms.   Thus, the direct court correctly determined that the promissory estoppel claim failed as a matter of law.  Although 12 Americans devoted significant amounts of time and resources to developing a relationship and negotiating with MSNBC, those efforts ultimately failed.  The objective manifestations of both parties demonstrate that the preliminary negotiations never resulted in a binding contract or legally enforceable promise.

12)  IMMIGRATION:  Aguilar-Garcia v. Ridge, 02-73887 (9th Cir. Feb. 17, 2004) (unpublished).  Reinhardt, Thompson, and Wardlaw, Circuit Judges.

 Aguilar-Garcia, a Guatemalan citizen, was ordered deported on December 2, 1996 in absentia when she failed to appear at her asylum hearing.  Her motion to reopen was subsequently denied by an Immigration Judge and the BIA.  While the denial of her motion to reopen was pending on appeal before the BIA, Aguilar self-deported in 1997 to visit her ailing father in Guatemala.  She re-entered the U.S. seven days later using a multiple entry visa issued to her in 1988.  She remained here, and on October 28, 2002, she was interviewed by an immigration officer in connection wither application for adjustment of status.  When the officer discovered Aguilar's 1997 self-deportation and reentry, he reinstated her prior order of removal pursuant to 8 USC Sec. 1231(a)(5).  Aguilar appeals the reinstatement of her removal order.

 The USCA denied Aguilar's appeal of the Sec. 1231(a)(5) reinstatement of her removal order.  First, she argued that the Department of Homeland Security erred in applying the reinstatement statute, Sec. 1231(a)(5), because she reentered the country upon authorization and inspection by an immigration official, and thus, did not reenter the United States "unlawfully" as required by the statute.  However, under the express terms of the Agency's implementing regulations, a self-deported alien may not reenter for five years following deportation unless she has filed an I-212 Form requesting the permission of the Attorney General, and has obtained his consent to reenter pursuant to the specified procedure.  8 CFR Sec. 212.2.  The USCA thus said it was compelled to conclude that, because Aguilar failed to obtain the consent of the Attorney General pursuant to Sec. 212.2 procedures, her use of a facially valid visa, her inspection by border officials, and the issuance to her of an I-94 upon re-entry did not make her entry lawful for purposes of Sec. 1231(a)(5).  USA v. Pina-Jaime, 332 F.3d 609, 611-612 (9th Cir. 2003).  Second, Aguilar argued that the reinstatement regulation, 8 CFR Sec. 241.8, violates due process.  While the procedures for imposing reinstatement orders do raise substantial due process concerns, Castro-Cortez v. INS, 239 F.3d 1037 (9th Cir. 2001), Aguilar could not show that any procedural defect prejudiced her because she raised no factual dispute regarding the three relevant determinations underlying a reinstatement order.  Padilla v. Ashcroft, 334 F.3d 921, 924-25 (9th Cir. 2003) ("As a predicate to obtaining relief for a violation of procedural due process rights in immigration proceedings," an alien must demonstrate a plausible ground for relief from deportation.")  Because Aguilar admitted that (1) she is an alien (2) who was previously removed and (3) reentered without the "consent' of the Attorney General, as required by 8 CFR Sec. 212.2, a full hearing before an immigration judge "could not help her because those are the only three elements at issue in determining whether a reinstatement order is valid."  Id. at 925.  Under these circumstances, the USCA rejected Aguilar's argument that the reinstatement procedures violate due process.

13)  IMMIGRATION:  Antonio-Francisco v. Ashcroft, 02-72144 (9th Cir. Feb. 12, 2004) (unpublished).  Noonan, Thomas, and Bea, Circuit Judges.

 Antonio-Francisco petitioned for review of a BIA decision summarily affirming an IJ decision to deny his application for asylum and withholding of removal.  The USCA denied the petition.  An alien is eligible for asylum as a refugee if he is unable or unwilling to return to his country of origin because of a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.  Antonio-Francisco's claim was based on his fear of forced recruitment by guerillas.  He testified that guerillas would forcibly recruit males in the past.  They distributed propaganda at his school and hung a flag there.  When a teacher removed the flag, the guerillas killed the teacher.  However, Antonio-Francisco did not testify that he held a political opinion or that one was imputed to him.  "Persecution by anti-government guerrillas may no longer, from that fact alone, be presumed to be on account of political opinion." Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997).  While asylum applicants need not "provide direct proof" of persecutor's motives, they "must provide some evidence of it, direct or circumstantial." Elias-Zacarias v. INS, 502 U.S. 478, 483 (1992).  Antonio-Francisco did not submit any evidence sufficient to support the inference that the guerrillas forcibly recruited him or his family members on the basis of imputed political opinion, family status, or his status as a Kanjobal Indian.  Expression of the desire to not be recruited is not sufficient to infer that a political opinion, including political neutrality, was or would be imputed by the guerrillas.  For the same reason, the IJ's determination, that any fear Antonio-Francisco has of future persecution would not be on account of a protected ground, was supported by substantial evidence.  The IJ also determined that Antonio-Francisco did not establish a well-founded fear of future persecution by the government in Guatemala, based on his return from America with no identifying documentation.  This determination was supported by substantial evidence.  Antonio-Francisco's mother told him about a horrific murder by the government of a couple who returned from America to his village without identifying documentation.  But, he did not submit evidence sufficient to show what the motivation for this murder was.  It was thus not clear that his fear the same would occur to him was well-founded.  In sum, substantial evidence supported the IJ's conclusion that Antonio-Francisco is not eligible for asylum.  Because Antonio-Francisco failed to establish eligibility for asylum, he was necessarily ineligible for withholding of removal. For these reasons, the USCA denied the petition for review.

14)  IMMIGRATION:  Ibrahim v. Ashcroft, 02-72551 (9th Cir. Feb. 12, 2004) (unpublished).  Hall, O'Scannlain, and McKeown, Circuit Judges.

 Petitioner Ibrahim appealed the BIA's denial of his application for asylum.  The USCA affirmed the BIA's order of removal.  The IJ had denied Ibrahim's application solely on the basis of an adverse credibility finding.  Under the substantial evidence standard, the IJ "must have a legitimate articulable basis to question the petitioner's credibility, and must offer a specific, cogent reason for any stated disbelief." Hartooni v. INS, 21 F.3d 336, 342 (9th Cir. 1994).  Two of the IJ's reasons for questioning Ibrahim's credibility were cogent, and they sufficed to uphold the IJ's finding.  First, Ibrahim did not provide verification for the critical parts of his story concerning his time in the Kenyan refugee camps and his journey to America.  The Circuit has held that "where the IJ has reason to question the applicant's credibility, and the applicant fails to produce non-duplicative, material, easily available corroborating evidence and provides no credible explanation for such failure, an adverse credibility finding will withstand appellate review."  Sidhu v. INS, 220 F.3d 1085, 1092 (9th Cir. 2000).  The IJ had reason to question Ibrahim's credibility.  He IJ gave Ibrahim multiple opportunities to explain his failure to obtain confirmation of his presence in Kenya and his travels.  However, Ibrahim did not identify any specific circumstances that impeded his gathering of evidence.  His explanations for why he did not contact the airplane or bus companies, or make a greater effort to contact his family and friends in Kenya, were not credible or sufficient.  Second, Ibrahim's vague, contradictory testimony about his sister provided a sound basis for the IJ legitimately to disbelieve him.  Inconsistencies in testimony in an asylum application may provide a cogent reason for an adverse credibility finding if the inconsistencies are "substantial."  See Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir. 2001).  On the other hand, "minor inconsistencies … that do not relate to the basis of an applicant's alleged fear of persecution, go to the heart of the asylum claim, or reveal anything about an asylum applicant's fear for his safety are insufficient to support an adverse credibility finding."  Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir. 2003).  Ibrahim's testimony about the abduction of his sister contained substantial inconsistencies.  The abduction was closely connected in time and place to the heart of Ibrahim's asylum claim—his fear of persecution arising from the events of January 24, 1991.  Nevertheless, Ibrahim could not account for the significant discrepancy in dates or for how his sister found the family.  The record thus did not compel a contrary result as to the IJ's negative credibility finding.  The USCA concluded that it had to affirm the BIA's judgment upholding the IJ's order of removal.

15)  IMMIGRATION:  Guale v. Ashcroft, 02-73508 (9th Cir. Feb. 13, 2004) (unpublished).  Canby, Noonan, and Thomas, Circuit Judges.

 Guale, a native and citizen of Ethiopia, petitioned for review of the BIA's dismissal of his applications for asylum and withholding of removal and his request for voluntary departure.  Finding that the BIA's dismissal of Guale's asylum and withholding of removal claims was supported by substantial evidence, and because it lacked jurisdiction to review Guale's request for voluntary departure, the USCA denied Guale's petition for review.  Substantial evidence supported the BIA's decision that Guale failed to demonstrate past persecution based upon one of the protected statutory grounds as the record did not compel the conclusion that Guale was detained by Ethiopian authorities on the basis of his ethnicity or political opinion.  See Chand v. INS, 222 F.3d 1066, 1073 (9th Cir. 2000) (requiring applicant to demonstrate past persecution was "on account of" a statutorily protected ground).  Similarly, the record, particularly the Department of State's May 1997 Ethiopia County Report, did not compel the conclusion that Guale has a reasonable fear of future persecution on the basis of his ethnicity or political opinion.  See Melkonian v. Ashcraft, 320 F.3d 1061, 1065 (9th Cir. 1003) (requiring applicant to provide credible, direct, and specific evidence that supports a reasonable fear of future persecution). Because Guale failed to show his eligibility for asylum, he has also failed to show his eligibility for withholding of removal.  The USCA thus denied Guale's petition for review.

16)  IMMIGRATION:  Patatanyan v. Ashcroft, 02-74082 (9th Cir. Feb. 11, 2004) (unpublished).  Reinhardt, Thompson, and Wardlaw, Circuit Judges.

 Rafik Patatanyan, his wife, and their children, petitioned for review of the denial of their motion to reopen and reconsider.  The USCA granted the petition, reversed, and remanded to the BIA for further proceedings.  In December 2000, Rafik filed a Notice of Appeal (Form EOIR-26), on behalf of himself and his family.  He contested the IJ's denial of their application for asylum, withholding of removal, and protection under the Convention Against Torture on the ground that they had suffered persecution in Armenia for their Christian beliefs.  On Form EOIR-26, Rafik filled in the box indicating that he would file a separate written brief in support of the appeal.  The BIA notified the Patatanyans that their brief was due on June 18, 2001.  In April 2002, the BIA summarily dismissed the appeal because they had not file a brief within the deadline or reasonably explain their failure to do so.  8 CFR Sec. 1003.1(d)(2)(i)(E).  The BIA held that it could not hear the appeal in the absence of a brief because the Patatanyans' had not stated with specificity on Form EOIR-26 their reasons for contesting the IJ's decision. Casas-Chavez v. INS, 300 F.3d 1088, 1090-91 (9th Cir. 2002).  Rafik filed a pro se motion to reopen and reconsider the BIA's summary dismissal, as well as a supporting affidavit.  He explained that he failed to file a brief because he was suffering from psychological stress, depression, and insomnia, experiencing panic attacks, and taking medication to threat these ailments.  He also attributed his failure to his misinterpretation of the notice that the family received from the BIA and his difficulties with the English language.  The BIA provided the following explanation for denying the motion:  "Initially, we note that the record reflects that on May 18, 2001, the Board sent the respondents a copy of the Immigration Judge's decision, a copy of the transcript, and a briefing schedule which informed the respondents that a brief must be received at the Board on or before June 18, 2001.  The respondent failed to submit a brief by this deadline.  Furthermore, the lead respondent has failed to submit any medical documentation in support of his assertions that he was suffering from depression and insomnia at the time he received the briefing schedule."  The USCA noted that the BIA's statement that the Patatanyans received notice of the deadline appears to be a response to the petitioners' contention that the failure to submit a timely brief was due, in part, to misinterpretation and language difficulties.  Given the content of the notice, the BIA did not abuse its discretion in determining that this reason did not constitute a basis for granting the motion.  The USCA reached the opposite conclusion with respect to the petitioners' contention that Rafik's depression, insomnia, panic attacks, and other illnesses for which he was receiving medical treatment preventing the filing of a timely brief.  The BIA rejected Rafik's psychological ailments as a basis for granting the motion because the petitioners failed to provide supporting medical documentation.  Neither the BIA nor the Government cited an authority for this corroborative evidence requirement.  Although the relief the Patatanyans sought did not perfectly track the standards of 8 CFR Sec. 1003.2 for either a motion to reopen or a motion to reconsider, these regulations have not been interpreted to require corroborative evidence in addition a credible affidavit.  Celis-Castellano v. Ashcroft, 298 F.3d 888 (9th Cir. 2002).  Ghadessi v. INS held that the BIA erred when it denied a motion to reopen "by simply noting the absence of independent corroborating evidence and failing to give any consideration to the substance of [the petitioner's] allegations in her affidavit."  797 F.2d 804, 807 (9th Cir. 1986).  As the BIA made the same mistake here, the USCA granted the petition.  The BIA decision failed to give a reason other than the lack of medical documentation for doubting that Rafik's psychological ailments provided a sufficient explanation for the family's failure to file a brief.  Moreover, although the USCA did not rely on it, the material attached to the Patatanyans' separate motion for a stay of removal revealed that they did possess documentation of Rafik's medical treatment.  The USCA thus remanded to the BIA so that it could consider Patatanyans' motion to reopen and reconsider on the merits.

17)  IMMIGRATION:  Calimlim v. Ashcroft, 02-72214 (9th Cir. Feb. 26, 2004) (unpublished).  Leavy, Paez, and Berzon, Circuit Judges.

 Calimlim and his family petitioned for review of the BIA's summary affirmance without opinion pursuant to 8 CFR Sec. 3.1(a)(7)(iii) (2002) of an IJ's denial of their applications for asylum and withholding of deportation.  Calimlim, the lead petitioner, is a native and citizen of the Philippines.  The claims of his wife and daughter are derivative of his application.  Calimlim also appealed the IJ's denial of his request for voluntary departure.  Because the BIA did not perform an independent review, the USCA reviewed the IJ's decision.  Falcon Carriche v. Ashcroft, 350 F.3d 845, 855 (9th Cir. 2003). 

 The USCA denied the petition in part and remanded in part.  The IJ's adverse credibility determination regarding Calimlim's claims of ignorance with respect to the involvement of the New People's Army ("NPA") in killing, kidnappings, and other criminal activity was based on specific and cogent reasons:  Calimlim's testimony about his knowledge of NPA killings when he joined the group in 1993 and his contention that throughout his three years with the NPA he had neither knowledge nor suspicion of NPA killings despite reading newspaper stories about the killings was implausible.  Because the record did not compel a finding that Calimlim was credible, the USCA affirmed the IJ's decision.  See 8 USC Sec. 1252(b)(4)(B); Malhi v. INS, 336 F.3d 989, 993 (9th Cir. 2003).  Substantial evidence supported the IJ's decision that Calimlim was ineligible for asylum or withholding of deportation because he assisted in persecution of individuals on account of their political opinion by providing names to the NPA and by helping to raise funds for the NPA through the transportation of goods. 8 USC Sec. 1101(a)(42)(B); 8 USC Sec. 1253(h)(2)(A) (1996); and 8 CFR Sec. 208.13(c)(2)(E).  The IJ decided that Calimlim was "statutorily ineligible" for voluntary departure "due to his admitted involvement in the persecution of others."  As this is a transitional rules case, the USCA retained jurisdiction to review "those elements of statutory eligibility which do not involve the exercise of discretion."  Kalaw v. INS, 113 F.3d 1147, 1150 (9th Cir. 1997).  Contrary to the IJ's statement, former INA Sec. 244(e), 8 USC Sec. 1254(e) (1996), did not render aliens implicated in persecution automatically ineligible for voluntary departure.  The USCA also said it could not conclude that the IJ's conclusion that Calimlim was ineligible was based on a determination that he was not a person of good moral character because of his involvement in persecution.  The USCA remanded for further consideration regarding whether to grant Calimlim's request for voluntary departure.

18)  IMMIGRATION:  Ahmad v. INS, 02-72637 (9th Cir. Feb. 10, 2004) (unpublished).  Cudahy, Goodwin, and Kleinfeld (dissenting), Circuit Judges.

 Petitioner Naeem Ahmad, a native and citizen of Pakistan of Indian descent, appealed the BIA's denial of his motion to reopen for consideration of protection under the Convention Against Torture ("CAT").  In denying his motion, the BIA took administrative notice of the fact that there had been a change in regime in Pakistan during the pendency of Ahmad's motion to reopen.  The BIA concluded that because Ahmad had not shown that he faced torture under the current regime, he failed to show that he was likely to be tortured in the future and thus did not qualify for CAT protection.  Due process claims in deportation proceedings are reviewed de novo.  Ahmad argued that the was denied due process because the BIA took notice of a regime change in Pakistan without giving him notice and an opportunity to respond.  The BIA may generally take administrative notice of legislative facts such as changed country conditions subject to an abuse of discretion standard.  In exercising this discretion, the BIA must be "fair in the circumstances." Castillo-Villagra v. INS, 972 F.2d 1017, 1028 (9th Cir. 1992).  Before taking notice that a change of government eliminated a danger to a petitioner, the BIA should give parties notice and opportunity to respond or to show cause why administrative notice should not be taken.  Id at 1028.  Here, the BIA improperly took administrative notice of the fact that the regime in Pakistan had changed.  The regime change, Pervez Musharraf's seizure of power in October 1999, occurred several months after Ahmad submitted his April 12, 1999, motion to reopen.  Taking notice of the regime change affected the BIA's determination of the probability of future torture.  Because Ahmad was not given notice prior to the BIA's taking notice of the regime change, he was precluded from attempting to show that the regime change did not obviate the possibility of torture.  This constitutes a violation of Ahmad's Fifth Amendment due process rights. 

 Dissenting, Judge Kleinfeld agreed with the majority's interpretation of Castillo-Villagra v. INS and its progeny, but thought the administrative notice of a change of regime was not decisive in this case.  Ahmad bore the burden of proof on his contention that if he was returned to Pakistan, he would probably be tortured because of his support for Pakistanis descended from those who fled India at partition.  8 CFR Sec. 208.16(c)(2).  The BIA said that he had not met that burden, because he had not been tortured in the past and had otherwise shown no probability of torture in the future.  Though he claimed had been beaten twice and otherwise abused by the police, the BIA found that such police brutality did not rise to the level of torture. The BIA adopted an interpretation of the Convention, consistent with language in the legislative history, that "rough and deplorable treatment, such as police brutality, does not amount to torture."  The USCA has similarly interpreted the law.  Gui v. INS, 280 F.3d 1217, 1222-23 (9th Cir. 2002). As reprehensible as police brutality is, Judge Kleinfeld doubted that it is confined to so few regimes or so entirely unknown in our own, except in cases more extreme than those involving two beatings with no long term medical consequences, as to justify classifying it as an "extreme form of cruel and inhuman treatment" constituting torture under the Convention. Al-Saher v. INS, 268 F.3d 1143 (9th Cir. 2001), upon which Ahmad relied, involved much more severe abuse than Ahmad claims here.  The BIA's aversion to the change of regime came in an alternative holding ("even were we to assume that the respondent had been tortured in the past").  Because the BIA's decision would stand even without this alternative holding, Judge Kleinfeld thought the USCA could not vacate the decision based on the alternative holding.  The majority correctly did not require Ahmad to show past torture, for he could establish a probability of future torture without that.  But he failed to show a probability of future torture, through past torture, through evidence about the old regime, or through anything else.  Thus his right to notice and an opportunity to be heard on the question whether a change of regime obviated the probability of torture is immaterial to the issue on which his case turns.