2) TRADEMARKS: M2 Software, Inc. v. Madacy Entertainment, 03-55957 (9th Cir. Aug. 31, 2005). M2 Software is the owner of "M2," a registered trademark used in conjunction with business management and interactive media application goods and services for the film and music industry. Madacy Entertainment began using "M2 Entertainment" as a trademark for its new record label venture. Following failed licensing negotiations between the parties, M2 Software filed suit against Madacy for trademark infringement and dilution, passing off, and unfair trade practices. A week later Madacy began phasing out the use of its "M2 Entertainment" mark. The District Court granted partial summary for of Madacy, ruling that no rational trier of fact could find a likelihood of forward confusion among either general consumers or musical industry members or a likelihood of reverse confusion among music industry members. A trial then commenced on the issue of whether there was a likelihood of reverse confusion among general consumers, i.e., consumers who were not members of the music industry. The jury returned a verdict in favor of Madacy, finding that it was not liable for reverse trademark confusion among general consumers. The Court then entered judgment in favor of Madacy. The USCA affirmed as the district court did not err in determining that there was no likelihood of confusion between the marks. Pregerson (author), Canby, and Beezer, Circuit Judges. M. Pettinari of San Francisco, CA, for the plaintiff; R. Rotstein of Los Angeles, CA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/)

3) COPYRIGHT INFRINGEMENT: Kourtis v. Cameron, 03-56703 (9th Cir. Aug. 15, 2005). At issue here was whether the creators of a yet-unproduced film, The Minotaur, were collaterally estopped from pursuing their copyright infringement claim against the producers of Terminator II. The USCA held that the district court erred in finding the creators collaterally estopped from pursuing the infringement claim. It thus reversed the dismissal of that claim. However, the USCA found that the district court correctly concluded that the creators' state law claims were barred by the statute of limitations. O'Scannlain (author) and Wardlaw, Circuit Judges, and Lovell, District Judge. P. Barry of Los Angeles, CA, for the appellants; M. Westervelt of Los Angeles, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

4) BANKRUPTCY: In re Crown Vantage, Inc., 04-16443 (9th Cir. Aug. 30, 2005). Through a series of mergers and acquisitions, the James River Corporation, a publicly-held corporation, became the successor-in-interest to such business entities as the Crown-Zellerbach Corporation and the Northern Paper Mills Company. James River, in turn, merged with the Fort Howard Paper Company to form the Fort James Corporation. Fort James was then acquired by the Georgia-Pacific Corporation. In 1995, James River decided to spin off assets related to its communications papers and packaging business ("Crown Assets"). To that end, it formed Crown Vantage, Inc., a wholly-owned subsidiary holding company, and Crown Paper, Inc. ("Crown Paper"), an operating entity wholly owned by Crown Vantage. James River transferred all of the Crown Assets to the Crown Entities. It then spun off all it shares of stock in Crown Vantage as a tax-free dividend to James River shareholders, and Crown Vantage became a publicly-traded, stand-alone corporation. Some of this transaction was accomplished through a "Contribution Agreement" between James River and the Crown Entities. By late 1997, a number of disputes concerning the Contribution Agreement had arisen between the Crown Entities and James River, which had now through merger become Fort James. In 1998, the Crown Entities and Fort James entered into an agreement to resolve these issues. This settlement agreement contained extensive mutual releases and provided that the sole forum and venue for any action arising out of the agreement would be the federal or state courts in Delaware. In 2000, the Crown Entities filed a voluntary petition in bankruptcy under Chapter 11 in the Bankruptcy Court for the Northern District of California. The Unsecured Creditors Committee filed motions seeking authority to investigate the 1995 James River spin-off to determine whether an adversary proceeding should be commenced against Fort James. About a year later, Fort James filed an adversary proceeding seeking a declaration that the spin-off did not constitute a fraudulent conveyance and that, in any event the settlement agreement had released Fort James from any liability in connection with the Contribution Agreement and related spin-off. The Crown Entities, as debtor-in-possession, then filed an adversary proceeding against Fort James, alleging that the settlement agreement release constituted a fraudulent transfer. The Crown Entities also alleged claims for conversion, negligence, breach of fiduciary duty, unjust enrichment, and unlawful distribution. The Bankrupcy Court consolidated all of the claims between the parties. Efforts to reorganize the company failed, and the Crown Entities proposed a liquidating plan of reorganization under which a liquidating trust ("Crown Liquidating Trust") would be established and a trustee ("Liquidating Trustee") appointed to liquidate the assets of the Crown Entities and distribute the proceeds to creditors in accordance with an agreement ("Liquidating Trust Agreement") that was approved by the bankruptcy court. The bankruptcy court confirmed this plan. In March 2002, the Crown Liquidating Trust filed an action in California state court against McGuire Woods LLP, the law firm that had represented James River in connection with the corporate spin-off of the Crown Entities and other entities. The defendants removed this action to the U.S. District Court for the Northern District of California. In October, Fort James and McGuire Woods (the "Fort James Entities") filed a lawsuit in the Chancery Court of Delaware seeking a declaration that the California Actions were barred by the settlement agreement. In the Delaware action, the Fort James Entities maintained that the Liquidating Trustee breached the settlement agreement in proceeding with the California Actions. The Delaware Action sought to compel the Liquidating Trustee to dismiss all pending actions against the Fort James entities. After the Delaware Action was removed to federal district court which remanded the action back to the Delaware Chancery Court and denied the Liquidating Trustee's motion to dismiss or transfer as moot. The Fort James Entities then sought an order from the District Court in California that the Delaware Action did not violate the automatic stay or the doctrine of Barton v. Barbour, 104 U.S. 126 (1881) (the common law bars suits against receivers in courts other than the court charged with the administration of the estate). In August 2003, the District Court held that the Bankruptcy Court should determine these questions in the first instance. The Liquidating Trustee then filed an adversary complaint in bankruptcy court and moved for an order enjoining the Fort James Entities from prosecuting the Delaware action. After notice and a hearing in the adversary proceeding, the bankruptcy court enjoined the Fort James Entities from pursuing the Delaware Action. It held that Delaware Action violated Barton and that the settlement agreement's forum selection clause did not control. The District Court reversed in part, holding that the bank-ruptcy court correctly found that the Liquidating Trustee would likely prevail on his claim that the Fort James Entities violated the Barton doctrine in initiating the Delaware Action without permission. However, the District Court held that the bankruptcy court erred in granting the preliminary injunction because the Liquidating Trustee had failed to establish irreparable harm. The District Court thus vacated the preliminary injunction issued by the bankruptcy court.

The USCA affirmed in part and reversed in part. It held that the bankruptcy court and district court correctly determined that the Fort James Entities violated the Barton doctrine by suing the Liquidating Trustee in a foreign jurisdiction without leave of the bankruptcy court. The USCA also held that the district court incorrectly required the Crown Entities to establish irreparable harm in order to obtain a preliminary injunction. Instead, the effect of the Barton violation had to be assessed under the standards of Barton and In re Kashani, 190 B.R. 875, 883-85 (9th Cir. BAP 1995). Under these standards, the bankruptcy court's injunction had to stand. Thomas (author) and Fisher, Circuit Judges, and Robart, District Judge. M. Loeb of Scottsdale, AZ for the plaintiff; K. Myles and J. Krieg of San Francisco, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

5) BANKRUPTCY: In re Sasson, 03-16364 (9th Cir. Aug. 25, 2005). A bankruptcy court has subject matter jurisdiction to enter a money judgment in a nondischargeability adversary proceeding where the underlying debt has been reduced to judgment in state court. Thomas (author), Graber, and Paez, Circuit Judges. D. Boone of San Jose, CA, for the appellant; W. Silver of Sunnyvale, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

6) BANKRUPTCY: In re Flynn, 03-56340 (9th Cir. Aug. 10, 2005). Stine, the co-owner of real property with the bankrupt debtor, Flynn, appealed the BAP's decision that she was required to pay a pro-rata share of the attorneys' fees incurred by the bankruptcy trustee during the sale of the property. She also appealed the BAP's decision to permit the trustee to withhold her share of the sale proceeds. The USCA reversed and remanded for immediate distribution of Stein's full share of the sale proceeds. A pro-rata share of the attorneys' fees should have been charged against Stine's share of the proceeds as the fees were incurred while preserving and disposing property of the bankrupt's estate. Leavy (author), Fisher, and Bybee, Circuit Judges. C. Kloss of Venice, CA, for the appellant; S. Schwartz of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

7) BANKRUPTCY: Smith v. Arthur Andersen, LLP, 03-16791 (9th Cir. Aug. 30, 2005). Smith, as Plan Trustee for the Bankruptcy Es-tate of Boston Chicken and related entities, brought this action and filed motions seeking district court approval of settlements reached with certain defendants and requesting a bar order enjoining non-settling defendants from asserting certain claims against settling defendants. Over the objections of non-settling defendants, the court granted the approval motions. The USCA affirmed. First, since the non-settling defendants had not argued that there is another lawsuit which, together with the trustee's action, is a "group of lawsuits" constituting a "covered class action," SLUSA did not bar the trustee's action. [SLUSA is a federal statute that preempts state-law securities actions under certain circumstances. United Investors Life Ins. Co. v. Waddell & Reed, Inc., 360 F.3d 960, 962 (9th Cir. 2004)] Second, it was not clear whether non-settling defendants argued that, even if the class action is disregarded, the several lawsuits consolidated into the trustee's action are themselves a "group of lawsuits" constituting a "covered class action." If they make this argument, they are wrong. A group of lawsuits will not constitute a covered class action if it does not seek damages "on behalf of more than 50 persons." 15 USC Sec. 78bb(f)(5)(B)(ii)(I). Because the trustee is a single person, his action is not a group of lawsuits which qualifies as a covered class action and SLUSA does not require dismissal of his action. Wallace (author), Rawlinson, and Bybee, Circuit Judges. D. Bivens of Phoenix, AZ, and G. Curtis of Denver, CO, for the defendants-appellants; L. Beus of Scottsdale, AZ, and A. Longo of Newport Beach, CA, for the plaintiffs-appellees; J. Condo of Phoenix, AZ, for the defendant-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

8) UNFAIR BUSINESS PRACTICES: Arizona Cartridge Remanufacturers Assoc. v. Lexmark Intl., 03-16987 (9th Cir. Aug. 30, 2005). Arizona Cartridge Remanufacturers Association ("ACRA") appealed the grant of summary judgment to cartridge-maker Lexmark on claims that Lexmark engaged in deceptive and unfair business practices in violation of California law. The dispute arose from Lexmark's advertising of its "Prebate" program, under which it gave purchasers upfront discounts in exchange for their agreement to return empty cartridge to Lexmark for remanufacturing. ACRA claims that Lexmark's advertising and promotional materials mislead customers into thinking that the post-sale restriction is enforceable and that they actually receive a discounted price for the special cartridges. The USCA agreed with the district court that ACRA has not offered evidence that Lexmark's advertisements constituted deceptive or unfair business practices and affirmed the grant of summary judgment in favor of Lexmark. Thomas and Fisher (author), Circuit Judges, and Robart, District Judge. R. Katz of San Francisco, CA, for the plaintiff-appellant; J. Rosch of San Francisco, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

9) TAXATION: Stead v. USA, 04-35028 (9th Cir. Aug. 12, 2005). At issue here is whether the taxpayer or the government bears the risk of loss when funds on deposit at a bank disappear after being levied upon by the IRS and removed from a taxpayer's bank account. Neither bank nor IRS records show what happened to the money once it was removed from the taxpayer's bank account by the bank on order of the IRS. The USCA held that, in light of the burden of proof on the taxpayer in a tax refund case, the risk of loss necessarily falls upon the taxpayer. Thompson, McKeown, and Gould (author), Circuit Judges. D. Running of Seattle, WA, for the plaintiffs; E. O'Connor of Washington, DC, for the defendant.(Download the full text of this decision at www.ce9.uscourts.gov/)

10) TAX FRAUD: USA v. George, 04-10307 (9th Cir. Aug. 23, 2005). George was convicted by a jury on two felony counts of willful filing of false tax returns in violation of 26 USC Sec. 7206(1), and one misdemeanor count of willful failing to file a tax return in violation of 26 USC Sec. 7203. The district court sentenced him to 15 months of imprisonment for the false returns, 12 months for failure to file (to run concurrently), and one year supervised released. It also ordered George to pay $70,000 in restitution, and $20,000 fine, and $125 in special assessments. The USCA affirmed. It held that receivership fees, paid to a cash-basis taxpayer are taxable in the year received even though they are subject to subsequent court review and possible disgorgement. Moreover, the law on this point is sufficiently clear to allow George's prosecution for failure to report this income. Lay (author), B. Fletcher, and Hawkins, Circuit Judges. M. Topel of San Francisco, CA, for the defendant; AUSA D. Denier of San Francisco, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

11) ENVIRONMENTAL LAW: National Resources Defense Council v. U.S.F.S., 04-35868 (9th Cir. Aug. 5, 2005). The plaintiffs appealed the district court's final judgment for the government, dismissing administrative and environmental law challenges to the 1997 Revision to the Tongass Land Management Plan. At issue was the legality of the Plan adopted and the process used by the Forest Service. The USCA reversed. The Forest Service conceded that it made a mistake in interpreting a report which accounted for both sawlogs and other types of wood, and that its mistake doubled the demand projection scenarios. Because it linked the selected Allowable Sale Quantity to the satisfaction of the projected market demand scenarios, the Forest Service's explanation ran counter to the evidence before the agency. It argued, but the USCA disagreed, that the market-demand error was harmless because the projections were not significant to the Regional Forester's decision choice among the Plan alternatives. B. Fletcher, McKeown, and Gould (author), Circuit Judges. T. Waldo of Olympia, WA, for the plaintiffs; AAG T. Sansonetti, of Washington, DC, for the defendants; S. Silver of Juneau, AK, for the intervenors. (Download the full text of this decision at www.ce9.uscourts.gov/)

12) ENVIRONMENTAL LAW: Native Ecosystems Council v. U.S. Forest Service, 04-35375 (9th Cir. Aug. 11, 2005). Native Ecosystems Council and The Ecology Center (collectively "NEC") appealed the district court's grant of summary judgment to the U.S. Forest Service on NEC's claims in connection with the Forest Service's approval of the North Elkhorns Vegetation Treatment Project. The Project is a "wildlife improvement project involving a timber sale" within the Helena National Forest ("HNF") and the Elkhorn Wildlife Management Unit in the National Forest System. NEC maintained that the Forest Service's approval of the Elkhorn Project was arbitrary and capricious, in violation of the National Forest Management Act, the National Environmental Policy Act, and the Administrative Procedure Act because the Project violates the "big game" standards of the Helena National Forest Plan. NEC also maintained that the Forest Service's approval of the Elkhorn project is arbitrary and capricious because the project will threaten the forest-wide viability of the Northern Goshawk. The USCA reversed and remanded. The Elkhorn Project EIS is inadequate under the NEPA because, by using a hiding cover calculation denominator that is inconsistent with that required by the HNF Plan, the agency did not take a "hard look" at the Project's true effect and failed to inform the public of the Project's environmental impact. B. Fletcher, McKeown, and Gould (author), Circuit Judges. T. Woodbury of Missoula, MT, for the plaintiffs; T. Aagaard of Washington, DC, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/)

13) ENVIRONMENTAL LAW: Ashley Creek Phosphate Co. v. Norton, 04-35640 (9th Cir. Aug. 22, 2005). At issue here is whether Ashley Creek Phosphate Company has standing to bring this action under the National Environmental Policy Act. Ashley has no environmental stake in the phosphate mining project at issue, which is some 250 miles from the phosphate Ashley controls. Its only issue is an economic one: if the project does not go forward, Ashley speculates that it might become an alternate supplier of phosphate. Because it has shown neither an injury in fact nor an interest within the zone of interests protected by Sec. 102(2)(C) of the NEPA, Ashley lacks standing to bring this NEPA challenge. Judge Beezer concurred in the judgment and in part of the majority's opinion, but because Ashley failed to establish constitutional standing, he would leave for another day deciding whether the prudential standing doctrine forecloses any plaintiff asserting a purely economic injury from bringing suit under NEPA Sec. 102. Ferguson, Beezer (dissenting in part), and McKeown (author), Circuit Judges. E. Smay of Salt Lake City, UT, for the appellant; Z. Miller of Denver, CO, and AUSA R. Grisham of Boise, ID, for the appellees;(Download the full text of this decision at www.ce9.uscourts.gov/)

14) ENVIRONMENTAL LAW: Defenders of Wildlife v. EPA, 03-71439 (9th Cir. Aug. 22, 2005). A state may take over the Clean Water Act pollution permitting program in its state from the federal EPA if it applies to do so and meets the applicable standards. This case concerns Arizona's application to run the Clean Water Act pollution permitting program in Arizona. When deciding whether to transfer permitting authority, the Fish and Wildlife Service issue, and the EPA relied upon, a Biological Opinion premised on the proposition that the EPA lacked the authority to take into account the impact of that decision on endangered species and their habitat. The plaintiffs challenged the EPA's transfer decision, particularly its reliance on the Biological Opinion proposition regarding the EPA's limited authority. The USCA held that the EPA did have the authority to consider jeopardy to listed species in making the transfer decision, and erred in determining otherwise. For that reason among others, the EPA's decision was arbitrary and capricious. The USCA thus granted the petition and remanded to the EPA. Reinhardt, Thompson (dissenting), and Berzon (author), Circuit Judges. M. Senatore of Washington, DC, for the petitioners; R. Gulley of Washington, DC, for the respondents; J. Skardon and N. James of Phoenix, AZ, for the intervenors. (Download the full text of this decision at www.ce9.uscourts.gov/)

15) ENVIRONMENTAL LAW: National Resources Defense Council v. National Marine Fisheries Service, 03-16842 (9th Cir. Aug. 24, 2005). The National Marine Fisheries Service set 2002 fishing limits for four species of Pacific groundfish commonly sold as "red snapper." The Natural Resource Defense Council brought suit in federal district court challenging the four limits as violating the Magnuson-Stevens Fishery Conservation and Management Act, which directs that the NMFS prevent overfishing. Finding that the 2002 darkblotched rockfish limit was based on an impermissible construction of the Act, the USCA reversed and remanded. It affirmed as to the other three species. D.W. Nelson, W. Fletcher, and Fisher (author), Circuit Judges. A. Caputo of San Francisco, CA, for the plaintiffs-appellants; D. Shilton of Washington, DC, for the defendants-appellees; J. Walsh of San Francisco, CA, for the defendants-intervenors-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

16) TORTS: Adams v. USA, 04-35129 (9th Cir. Aug. 23, 2005). Under the Federal Tort Claims Act, persons acting on behalf of a federal agency may be certified for immunity from tort claims. The USCA concluded that the word "persons" as used in this portion of the Act does not include corporations, notwithstanding the Dictionary Act's provision that the word "person" when used in an Act of Congress includes "corporations" "unless the context indicates otherwise." The USCA thus held that a corporation may not obtain immunity through the certification process of 28 USC Sec. 2679. Beezer, Thompson (author), McKeown, Circuit Judges. S. Schossberger and J. King of Boise, ID, for the intervenors-appellants; D. Fishback of Washington, DC, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

17) DISABILITIES EDUCATION ACT: Blanchard v. Morton School District, 03-35677 (9th Cir. Aug. 19, 2005). This is an action filed by the mother of a child with autism, who sought damages for the mother's own emotional distress caused by the conduct of the de-fendants, the Morton School District and its current and former employees, in providing special education services to her son. The district court dismissed the action for failure to exhaust administrative remedies under the Individuals with Disabilities Education Act. The USCA reversed, finding that there were no administrative remedies available for the mother to exhaust. It remanded to the district court to consider the merits of her claims. Schroeder (author), Goodwin, and Graber, Circuit Judges. L. Davis of Seattle, WA, for the plaintiff; J. Lyman of Olympia, WA, for the defendants.(Download the full text of this decision at www.ce9.uscourts.gov/)

18) INSURANCE: Hawthorne Savings F.S.B. v. Reliance Insurance Co. of Illinois, 03-55548, 03-55611 (9th Cir. Aug. 24, 2005). At issue here was a conflict between the exercise of federal jurisdiction and state laws establishing exclusive claims proceedings for insur-ance insolvencies. Hawthorne sued Reliance in California state court, alleging various California state-law contract-based claims. Reliance removed the suit to federal court on the basis of diversity. Shortly thereafter Reliance was placed in rehabilitation proceedings, and later in liquidation proceedings, in Pennsylvania. Meanwhile, the district court proceeded with this suit and the jury entered a verdict for Hawthorne and awarded $950,000 in damages. The USCA affirmed on all claims in case No. 03-55548 and dismiss No. 03-55611 for failure to prosecute. Browning, Pregerson, and Berzon (author), Circuit Judges. W. Hall of San Antonio, TX, for the defendant; P. Woldow of Harrisburg, PA, for the intervenor; J. Tidus of Los Angeles, CA, for the plaintiffs.(Download the full text of this decision at www.ce9.uscourts.gov/)

19) INSURANCE: Reynolds v. Hartford Financial Services Group, 03-35695 (9th Cir. Aug. 4, 2005). Under the Fair Credit Reporting Act ("FCRA"), insurance companies must send adverse action notices to consumers whenever they increase the rates for insurance on the basis of information contained in consumer credit reports. The USCA held that this adverse action notice requirement applies to the rate first charged in an initial policy of insurance. The Act requires that insurance companies send their consumers adverse action notices whenever a higher rate is charged because of credit information, regardless of whether the rate is contained in an initial policy or an extension or renewal of a policy and regardless of whether the consumer has previously been charged a lower rate. Judge Bybee joined the majority opinion except as to its conclusion that the insurance companies willfully violated FCRA. The district court awarded judgment to the insurance companies on summary judgment without reaching the question whether they willfully failed to comply with FCRA requirements. Judge Bybee would remand this question for further proceedings. Reinhardt (author), Berzon, and Bybee (dissenting), Circuit Judges. S. Larson of Portland, OR, for the appellants; C. Van Gundy of San Francisco, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

20) LABOR LAW / PRIVACY: Louis v. U.S. Dept. of Labor, 04-35389 (9th Cir. Aug. 15, 2005). Louis appealed the district court's grant of summary judgment on his claims for disclosure of documents by the Department of Labor under the Privacy Act and the Freedom of Information Act. He argued that a system of records from which he sought information about himself was improperly exempted by the DOL pursuant to 5 USC Sec. 552a(k)(2) because the DOL did not comply with the APA rulemaking procedures in exempting the system. He further argued that the DOL's belated reliance on Sec. 552a(d)(5), which exempts from disclosure "any information complied in reasonable anticipation of a civil action or proceeding," was improper post-hoc rationalization for the DOL's decision to withhold information because it did not assert this exemption during the administrative proceedings. The USCA held that the DOL failed to follow the APA's rulemaking procedures for designating its system of records as exempt, and thus could not rely on this exemption to withhold documents from Louis. However, because an agency's withholding of information under the Privacy Act is reviewed de novo by the district court, the USCA held that the DOL may rely on Sec. 552a(d)(5) to withhold documents that were compiled in anticipation of litigation, even though it raised this provision for the first time before the district court. Because the DOL's description of the withheld documents demonstrates that each falls within the scope of Sec. 552a(d)(5), the USCA affirmed the district court's judgment as to Louis' Privacy Act claims. B. Fletcher (author), McKeown, and Gould, Circuit Judges. K. Kieffer of Tacoma, WA, for the appellant; AUSA P. Winn of Seattle, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

21) LABOR LAW: National Treasury Employees Union v. FLRA, 03-74093 (9th Cir. Aug. 12, 2005). In this case the petition for review of an order by the Federal Labor Relations Authority ("FLRA") arose out of negotiations for a collective bargaining agreement between the National Treasury Employees Union ("NTEU") and the IRS. NTEU sought to include in the agreement a provision that would provide compensation to IRS employees who are required to spend extra time commuting from home to a temporary work site within the official duty station. The IRS accepted the provision and approved the agreement. The Secretary of the Treasury disapproved NTEU's proposed contract provision as contrary to a government-wide regulation defining "hour of work" promulgated by the Office of Personnel Management ("OPM"). NTEU petitioned the FLRA for review of the Secretary's disapproval. The FLRA denied the petition, concluding that NTEU's proposed contract provision was nonnegotiable because it was contrary to law. The USCA affirmed, finding that the contract provision conflicted with government-wide OPM regulations defining hours of work. Gould (author), Tallman, and Rawlinson, Circuit Judges. G. O'Duden of Washington, DC, for the petitioner; D. Smith of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

22) FAIR LABOR STANDARDS ACT / FIREFIGHTERS OVERTIME: Cleveland v. Los Angeles, 03-55505 (9th Cir. Aug. 22, 2005). This case involves the application of the Fair Labor Standards Act's overtime exemption for an "employee engaged in fire protection activities." 29 USC Sec. 207(k). Unless the exemption applies, FLSA requires that employees be compensated at a rate of one-and-one half times their regular hourly rate for all hours worked in excess of forty in one week. At issue was whether the fire protection exemption should be applied to dual function paramedics, individuals trained in both fire suppression and advanced life saving. The USCA affirmed the district court, finding that no exemption applies. Browning, Pregerson (author), and Berzon, Circuit Judges. B. Levy of Encino, CA, for the defendant-appellant; A. Kaufman of Albany, NY, for the plaintiffs-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

23) LABOR ARBITRATION: Circuit City v. Mantor, 04-55912 (9th Cir. Aug. 3, 2005). On an earlier appeal, the USCA reversed the district court's order compelling arbitration and held that the arbitration agreement at issue was unenforceable under California law. Mantor appealed the district court's second order granting Circuit City's renewed petition to compel arbitration. The district court again ordered that the dispute be resolved by arbitration and once again dismissed the action. On the current appeal, the USCA reversed the district court's order granting Circuit City's renewed petition to compel arbitration and remanded for entry of an order denying Circuit City's petition to compel arbitration and permitting the civil action to continue in state court. Pregerson (author) and Thomas, Circuit Judges, and Oberdorfer, District Judge. M. Crosby of San Diego, CA, for the respondent; R. Berry of Sacramento, CA, for the petitioner. (Download the full text of this decision at www.ce9.uscourts.gov/)

24) ERISA: Peralta v. Hispanic Business, Inc., 03-57000 (9th Cir. Aug. 18, 2005). Peralta appealed the district court's grant of sum-mary judgment in favor of her former employer, Hispanic Business, Inc. ("HBI"). She alleged that HBI breached its fiduciary duty as an ERISA plan administrator by failing to inform her in a timely manner that her ERISA benefit plan for long-term disability insurance had been cancelled. She discovered that she had no long-term disability insurance after she was involved in an automobile accident. The district court found that any state law claims were preempted by ERISA and that the remedy sought was not available under ERISA. On appeal, Peralta maintained that subject matter jurisdiction is lacking or, in the alternative, that an ERISA violation occurred and a remedy exists. The USCA held that it has jurisdiction and affirmed the summary judgment in favor of the defendant. Trott and W. Fletcher, Circuit Judges, and Restani (author), Court of Intl. Trade Judge. E. Sorkin of Ventura, CA, for the plaintiff; S. Ronk of Los Angeles, CA, for the defendant.(Download the full text of this decision at www.ce9.uscourts.gov/)

25) ERISA: Abatie v. Alta Health & Life Insurance, Co., 03-55601 (9th Cir. Aug. 31, 2005). Alta Health & Life Insurance Company, administrator of an ERISA-regulated employee welfare benefit plan, denied Karla Abatie's claim for life insurance benefits for the death of her husband Dr. Joseph Abatie. After conducting a bench trial, the district court held that Alta did not abuse its discretion. The USCA affirmed. The district court had concluded that there was insufficient evidence to support Abatie's claim that a waiver of premium was ever requested or approved. In support, the district court found that "neither Alta's nor the Clinic's records had any of the customary and usual documentation that would establish that a waiver of premium application was requested and approved. Dissenting, Judge Pregerson did not think that Alta's decision to deny benefits to Abatie should have been reviewed by the district court for an abuse of discretion. Rather, he thought that the district court should have conducted a de novo review of Alta's decision. Pregerson (dissenting), Beezer (author), and Tallman, Circuit Judges. C. Price of Santa Barbara, CA, for the appellant; R. Lindahl of Portland, OR, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

26) IN REM ADMIRALTY ACTIONS: Ventura Packers, Inc. v. F/V Jeanine Kathleen, 03-56547 (9th Cir. Aug. 11, 2005). Plaintiff Ventura Packers appealed the district court grant of summary judgment in favor of the owners of three fishing vessels. It had brought this in rem admiralty action against the vessels to execute a necessaries lien, and the vessels were arrested pursuant to maritime procedure. The owners made a restricted appearance in district court and executed a stipulation for value with Venture Packers in which the owners agreed to post security in exchange for the release of the vessels. They further agreed that the security would stand in the place of the vessels as the defendant in the in rem action. The district court granted the owners' motion for summary judgment and dismissed the in rem action. Pursuant to the court's order, Ventura Packers returned the security to the owners. The USCA reversed the summary judgment for the owners and remanded for further proceedings. On remand, the owners again moved for summary judgment. Once again, the district court dismissed the action. This time, it determined that in rem jurisdiction was lost because there was no res against which to enforce an eventual in rem judgment. Even though the owners still possessed the security, the district court held that it was powerless to order the owners to reinstate the security. The USCA held that the district court never lost in rem jurisdiction. It further concluded that the district court has the authority to order the owners to reinstate the security pursuant to the stipulation for value. The USCA thus reversed and remanded for further proceedings. Schroeder, Pregerson (author), and Trott, Circuit Judges. D. Brogna of Ventura, CA, for the plaintiff-appellant; C. Shields of Altadena, CA, for the claimants-defendants-appellees (Download the full text of this decision at www.ce9.uscourts.gov/)

27) FALSE CLAIMS ACT: Campbell v. Redding Medical Center, 03-17082 (9th Cir. Aug. 22, 2005). The False Claims Act provides that no court shall have jurisdiction over a qui tam action based on allegations of fraud that already have been publicly disclosed, unless the relator was an "original source" of the information. The Act also precludes anyone from filing a subsequent "related action based on the facts underlying the pending action" when a qui tam action already has been filed. 31 USC Sec. 3730(b)(5). At issue was whether the first-to-file bar prevents the filing of a subsequent related action when the first is jurisdictionally defective because the relator was not an original source of publicly disclosed information. The USCA held that it does not. If the first-filed qui tam action was not filed by an original source and its thus not jurisdictionally cognizable, it does not constitute the first-filed complaint for purposes of Sec. 3730(b)(5). Silverman (author), Wardlaw, and Clifton, Circuit Judges. D. Rude of San Jose, CA, for the appellant; P. Keisler of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

28) DEBT COLLECTION PRACTICES: Dunlap v. Credit Protection Association, 03-56511 (9th Cir. Aug. 16, 2005). Dunlap claimed that the use of the name "Credit Protection Association" in the context of a debt collection letter violates the Fair Debt Collection Practices Act. The district court dismissed the case on the pleadings and granted judgment in favor of the defendant. The USCA affirmed. Dunlap failed to explain with specificity how the dunning letter falsely represents the character, amount, or legal status of his debt; nor did he cite any cases in support of his claim. B. Fletcher, Rymer, and Fisher, Circuit Judges. R. Arleo of New York, NY, for the plaintiff; S. Turner of Los Angeles, CA, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/)

29) RESIDENTIAL MORTGAGE LENDERS: Wells Fargo Bank v. Boutris, 03-16194 (9th Cir. Aug. 12, 2005). Two issues were heard on these cross-appeals concerning California's regulation of residential mortgage lenders: 1) does the National Bank Act preempt the California Commissioner of Corporation's exercise of investigative and licensing authority over "operating subsidiaries" of national banks? 2) Does Sec. 501 of the Depository Institutions Deregulation and Monetary Control Act of 1980 ("DIDMCA") preempt California's per diem loan-interest statute. The district court answered both questions in the affirmative. The USCA affirmed the district court's conclusion as to preemption under the Bank Act but held that the per diem loan-interest statute is not preempted by the DIDMCA. Reinhardt, Paez, and Berzon (author), Circuit Judges. V. Dunlap of Los Angeles, CA, for the defendant; W. Stern of San Francisco, CA, for the plaintiffs. (Download the full text of this decision at www.ce9.uscourts.gov/)

30) ZONING: Empress LLC v. San Francisco, 03-16706 (9th Cir. Aug. 18, 2005). Owners of the Empress Hotel brought this action against the Executive Director of the Tenderloin Housing Clinic, claiming that the City of San Francisco unlawfully delegated zoning decisions to him by taking official actions consistent with his requests on all zoning petitions affecting the City's Tenderloin area. The USCA held that the action is precluded by the Noerr-Pennington doctrine. It thus affirmed the judgment of the district court dismissing the claims against the Director, but reversed the award of attorneys' fees. Thomas (author) and Fisher, Circuit Judges, and Robart, District Judge. A. Zacks of San Francisco, CA, for the plaintiffs; S. Collier of San Francisco, CA, for the defendants.(Download the full text of this decision at www.ce9.uscourts.gov/)

31) RENT CONTROL: Manufactured Home Communities, Inc. v. San Jose, 03-16766 (9th Cir. Aug. 23, 2005). The plaintiffs sued the City of San Jose challenging the City's Mobilehome Rent Ordinance as unconstitutional. They also sued four individual tenants of a mobilehome park, arguing that the four were not eligible for rent control under California state law and were, thus, in violation of the City's Ordinance and California state law for refusing to pay increased rent. The district court dismissed the complaint for various jurisdictional and res judicata reasons. The USCA affirmed that decision on the basis of res judicata, untimeliness, failure to state a federal question, lack of supplemental jurisdiction, and California's statute of limitations. Although, it did not affect the outcome of the case, the USCA also reversed the district court's holding on the Rooker-Feldman doctrine. Finally, it reversed and remanded the matter of attorneys' fees. Lay, B. Fletcher (author), and Hawkins, Circuit Judges. E. Bien of Novato, CA, and D. Bradford of Chicago, IL, for the appellants; R. Doyle and B. Stanton of San Jose, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

32) WATER RECLAMATION LAW: Smith v. Central Arizona Water Conservation District, 03-16962 (9th Cir. Aug. 10, 2005). The plaintiffs own land in the Maricopa-Stanfield Irrigation and Drainage District and the Central Arizona Irrigation and Drainage District. Through a master contract and related subcontracts with the Central Arizona Water Conservation District ("CAWCD") and the U.S. Dept. of Interior, the irrigation district receive and distribute water reclaimed from the Central Arizona Project. The plaintiffs filed this civil action in Arizona state court against the CAWCD, seeking declaratory relief to prevent modification of the existing contracts and claiming vested water rights pursuant to state and federal law and pursuant to the terms of the project contracts. The CAWCD removed the action to federal court. The plaintiffs then moved the district court to abstain from exercising federal jurisdiction and to instead remand their action back to state court. The district court denied the landowners' motion to abstain and remand. It then dismissed their complaint for failure to state a claim pursuant to Fed. R. Civ. Proc. 12(b)(6). The USCA affirmed. The district court properly declined to stay the proceedings pending the resolution of a related state court action. Substantial doubt existed at the time of the district court's decision as to whether the state court action would provide complete and prompt resolution of the issues presented in this case. As to the merits of the plaintiffs' claims, those claims arouse out of contracts entered into pursuant to federal water reclamation law, the interpretation of which is governed by federal law. Under federal law of contract interpretation, incidental beneficiaries may not assert claims predicated upon a federal contract in the absence of a clear intent to confer an enforceable benefit. In this case, because neither the master contract nor the relevant subcontracts contain language evincing a clear intent to benefit the plaintiffs, they are not third-party beneficiaries, and their complaint was properly dismissed by the district court under Rule 12(b)(6). Hug, Thompson (author), and Rymer, Circuit Judges. J. Cook of Phoenix, AZ, for the plaintiffs; S. Somach of Sacramento, CA, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/)

33) HEALTH BENEFITS / TRICARE: Doe v. USA, 04-35810 (9th Cir. Aug. 18, 2005). In July 2002, Doe, the pregnant wife of a Navy enlisted man learned that her fetus was anencephalic. Even extensive medical intervention and continuous life support will not prolong the life of an anencephalic infant for more than two months. Doe obtained a second opinion. It confirmed the first. She and her husband then decided to terminate the pregnancy. She was a beneficiary under the Civilian Health and Medical Program for the Uniformed Services (TRICARE), but Congress has prohibited TRICARE from providing federal funds for abortions except where the life of the mother would be endangered if the fetus were carried to term. TRICARE thus refused to pay to terminate the pregnancy. Doe brought a lawsuit in federal district court seeking a declaration that the TRICARE statutory and regulatory scheme violated her equal protection rights and the Administrative Procedure Act. She also moved for a TRO to enjoin the government from withholding payment to terminate her pregnancy. The district court granted Doe's motion. When the USCA declined to stay the TRO, the government voluntarily dismissed its appeal and paid for the termination of Doe's pregnancy as ordered, electing to proceed on the merits in district court to obtain reimbursement for the costs of the procedure. The government then moved to dismiss in district court and Doe filed a cross-motion for judgment on the pleadings. The district court granted Doe's motion and denied the government's motion to dismiss. The USCA reversed, holding that Doe's motion for judgment on the pleadings under Fed. R. Civ. Proc. 12(c) before an answer was filed, was procedurally premature and should have been denied. The district court also improperly denied the government's motion to dismiss. Canby, Tallman (author), and Rawlinson, Circuit Judges. AUSA A. Flentje of Washington, DC, for the defendants; R. Latsinova of Seattle, WA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

34) MEDICAID: Sanchez v. Johnson, 04-15228 (9th Cir. Aug. 2, 2005). At issue here was whether developmentally disabled recipients of Medicaid funds and their service providers have a private right of action against state officials to compel the enforcement of federal law governing state disbursement of such funds. Also at issue was whether California unlawfully discriminated by allegedly paying community-based service providers lower wages and benefits than it pays employees in state institutions. The district court held that California's commitment to the deinstitutionalization of Developmental Center residents for whom community integration is desirable, achievable, unopposed, genuine, comprehensive and reasonable. The USCA agreed. Congress has not spoken with an unambiguous, clear voice that would put a State on notice that Medicaid recipients or providers are able to compel state actions under 42 USC Sec. 1983. O'Scannlain (author), Cowen, and Bea, Circuit Judges. L. Cummings of Berkeley, CA, for the appellants; DAG S. Carson of Oak-land, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

35) SOCIAL SECURITY: Ukolov v. Barnhart, 03-35589 (9th Cir. Aug. 23, 2005). Ukolov appealed the district court's judgment affirming the Commissioner of Social Security Administration's denial of his applications for disability insurance benefits under Title II of the Social Security Act and supplemental security income under Title XVI. Because it held that Ukolov failed to establish the existence of a medical impairment, the USCA affirmed the denial of benefits. T.G. Nelson and Rawlinson (author), Circuit Judges, and Schwarzer, Dis-trict Judge. A. Van Horn of Portland, OR, for the plaintiff; V. Chhagan of Seattle, WA, for the defendant.(Download the full text of this decision at www.ce9.uscourts.gov/)

36) FIRST AMENDMENT: Preminger v. Principi, 04-16981 (9th Cir. Aug. 25, 2005). The Santa Clara County Democratic Central Committee and its chair, Preminger, challenged the Dept. of Veterans' Affairs exclusion of Preminger and others from VA premises when they tried to register resident veterans to vote. They claimed that the VA regulation which prohibits partisan activities on VA premises violates the First Amendment. The district court denied their request for a preliminary injunction against the VA and several of its employees. The USCA held that the district court did not abuse its discretion in ruling that the plaintiffs failed to show probable success on the merits of their claim and thus affirmed the denial of a preliminary injunction. Hawkins and Graber (author), Circuit Judges, and Selna (concurring), District Judge. M. Markman of Menlo Park, CA, for the plaintiffs; AUSA O. Martikan of San Francisco, CA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/)

37) EQUAL PROTECTION / CHARITIES: Gospel Missions v. Los Angeles, 04-55888 (9th Cir. Aug. 17, 2005). Gospel Missions of America ("GMA") appealed the district court's judgment for Los Angeles. It argued that the definitions of the terms "charitable" and "solicitation" in Sec. 44.00(b) and (g) of the Los Angeles Municipal Code are unconstitutionally vague and overbroad, and that their application violates the Equal Protection Clause. The USCA affirmed. GMA argued that the charitable solicitation laws violate the Equal Protection Clause by treating religious organizations that rely on charitable solicitations from non-members differently than those that rely solely on solicitation from members. However, the USCA found that Sec. 44.00(b) an (g) do not distinguish between members and non-member solicitations, and GMA failed to specify any particular provision on which it bases it claim. Goodwin, Wallace (author), and Thomas, Circuit Judges. J. Fosbinder of Kahului, HI, for the plaintiffs-appellants; J. Werlich of Los Angeles, CA, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

38) JURISDICTION / DECLARATORY JUDGMENT ACTIONS: Dow Chemical Co. v. Calderon, 04-56582 (9th Cir. Aug. 25, 2005). The plaintiff companies sued more than one thousand Nicaraguan citizens in federal district court in California. They sought a declaration that 1) they are not liable for any injuries to the Nicaraguans caused by dibromochloropropane and 2) and any judgments of Nicaraguan courts to the contrary are not enforceable in the United States. The district court rejected both contentions. Agreeing with the district court, the USCA held that the Nicaraguan defendants did not consent to personal jurisdiction in this action. Reinhardt, Kozinski, and Berzon (author), Circuit Judges. M. Foradas of Chicago, IL, and D. Ogden of Washington, DC, for the appellants; H. Miller of Los Angeles, CA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

39) YOUNGER ABSTENTION: M&A Gabaee v. Community Redevelopment Agency of Los Angeles, 04-56134 (9th Cir. Aug. 17, 2005). M&A Gabaee, a California limited partnership formed by real estate developers, held two pieces of property in Los Angeles. It sought permission from the Community Redevelopment Agency of Los Angeles ("CRA") to develop those properties into a shopping com-plex. The CRA, however, entered an agreement with another developer, Slauson Central, to build the complex and served M&A with a Notice of Intent to Acquire both of its properties for the use of the complex. The suit concerned whether the CRA's use of eminent domain power aimed at a valid "public use, but that issue was not before the USCA. Rather, it had to decide whether Younger abstention required the district court to dismiss M&A's federal suits because of the eminent domain proceedings taking place in California state court. The USCA held that the district court correctly abstained in the federal actions. O'Scannlain (author) and Rawlinson, Circuit Judges, and Whaley, District Judge. B. Tepper of Los Angeles, CA, for the appellant; J. Victor of Los Angeles, CA, for the appel-lees.(Download the full text of this decision at www.ce9.uscourts.gov/)

40) CIVIL PROCEDURE: Posnanski v. Gibney, 03-16418 (9th Cir. Aug. 30, 2005). At issue here was whether the USCA may review a decision of a district court outside the Ninth Circuit to transfer a case into the Ninth Circuit. The USCA held that it may not. Wallace, Rawlinson, and Bybee (author), Circuit Judges. D. Schott of Phoenix, AZ, for the plaintiff; R. Arnold of Milwaukee, Wis., for the de-fendants. (Download the full text of this decision at www.ce9.uscourts.gov/)

41) ATTORNEYS' FEES: Benton v. Oregon Student Assist. Comm., 03-35975 (9th Cir. Aug. 25, 2005). The parties cross-appealed from a district court order awarding $371,362 in attorneys' fees and $70,828.84 in costs in a case where the sole relief obtained was a judgment in the amount of one dollar. The USCA reversed. The district court erred in awarding attorneys' fees based on a finding that the plaintiff's lawsuit ultimately served to benefit the public at large. The record did not support the district court's conclusion that its finding of a constitutional violation under a former version of the statute would in any way guide the defendants future conduct under a new version of the statute. Goodwin and Clifton, Circuit Judges, and Rhoades (author), District Judge. S. Bushong of Salem, OR, for the defendants; W. Bird of Atlanta, GA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

42) NATIVE HAWAIIAN LAW: Arakaki v. Lingle, 04-15306 (9th Cir. Aug. 31, 2005). The plaintiffs, Hawaiian citizens who allege that various state programs preferentially treat persons of Hawaiian ancestry, in violation of the Fifth and Fourteenth Amendments and the terms of a public land trust. They sought standing to sue as taxpayers and as beneficiaries of the trust. The district court held that the plaintiffs lacked standing to raise certain claims and that their remaining claims raised a nonjusticiable political question. It dismissed the entire suit. The USCA reversed in part. It held that the plaintiffs lacked standing to sue the federal government and that the district court thus correctly dismissed all claims to which the U.S. is a named or indispensable party. It also affirmed the district court in finding that the plaintiffs had shown standing as state taxpayers to challenge state programs funded by state tax revenue and for which the U.S. is not an indispensable party. The plaintiffs thus had standing to bring a suit claiming that Office of Hawaiian Affairs ("OHA") programs funded by state tax revenue violate the Equal Protection clause of the Fourteenth Amendment. However, the USCA reversed the district court's dismissal of that claim on political question grounds and held that a challenge to the appropriation of tax revenue for the OHA does not raise a nonjusticiable political question. Brunetti, Graber, and Bybee (author), Circuit Judges. H. Burgess of Honolulu, HI, for the plaintiffs; S. Broder of Honolulu, HI, for the defendants; W. Schoettle of Honolulu, HI, for the intervenors.(Download the full text of this decision at www.ce9.uscourts.gov/)

43) GUAM ORGANIC ACT: Attorney General of Guam v. Torres, 03-15823 (9th Cir. Aug. 16, 2005). Guam's AG filed this action seeking a declaration that, under 1998 Amendments to the Guam Organic Act his authority as the "Chief Legal Officer" of Guam preempted prior Guam law and prohibited the Guam International Airport Authority from retaining its own legal counsel to conduct civil litigation. The district court, noting the existence of a parallel action in the Guam superior court, dismissed the action. The USCA upheld the dismissal as appropriate under Younger abstention and the Declaratory Judgment Act because the AG waived his challenge to the dismissal. D.W. Nelson, Callahan (author), and Bea, Circuit Judges. AAG R. Weisberg of Hagatna, GU, for the plaintiff; R. Thompson of Hagatna, GU, for the defendant.(Download the full text of this decision at www.ce9.uscourts.gov/)

44) NATIVE AMERICAN LAW: San Carlos Apache Tribe v. USA, 03-16874 (9th Cir. Aug. 9, 2005). In this action to enjoin the United States, the San Carlos Apache Tribe sought to maintain certain water levels in the San Carlos Reservoir in Arizona. It brought suit under various federal laws and federal common law and is primarily concerned with damage to the environment, including to fish and other species, caused by decreased water flow into the Reservoir. The USCA's focus was on the Tribe's claim under Sec. 106 of the National Historic Preservation Act ("NHPA"), which requires that federal agencies "take into account the effect of their undertakings on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register." The Tribe argued that its suit is properly brought as a private right of action directly under NHPA, rather than under the Administrative Procedure Act. Whether Sec. 106 provides a private right of action against the U.S. was a question of first impression in the Ninth Circuit and one considered in light of Alexander v. Sandoval, 532 US 275 (2001). The district court dismissed the Sec. 106 claim on the ground that NHPA contains no such private right of action. The USCA agreed and affirmed. Hawkins, McKeown (author), and Clifton, Circuit Judges. J. Sparks of Scottsdale, AZ, for the plaintiffs; M. Gray of Washington, DC, for the defendants; R. Salmon of Phoenix, AZ, and R. Lewis of Chandler, AZ, for the intervenors. (Download the full text of this decision at www.ce9.uscourts.gov/)

45) NATIVE AMERICAN LAW: Means v. Navajo Nation, 01-17489 (9th Cir. Aug. 23, 2005). At issue here was whether an Indian tribe can exercise criminal jurisdiction over a person who is not a member of the tribe, but who is an enrolled member of another Indian tribe. Means, a member of the Oglala-Sious Indian Tribe, sought to prevent the Navajo Nation from criminally prosecuting him in Navajo tribal court for an incident that occurred on the Navajo Reservation in which Means allegedly threatened and battered his then father-in-law, who is an Omaha Indian and allegedly threatened a Navajo man. The USCA held that the Navajo Nation is empowered to prosecute and punish Indians for misdemeanors such as those charged against Means, despite their status as nonmembers of the Nation. Kleinfeld (author) and Rawlinson, Circuit Judges, and Quackenbush, District Judge. J. Trebon of Flagstaff, AZ, for the appellant; D. Brown of Window Rock, AZ, for the appellees; AAG T. Sansonetti of Washington, DC, for the intervenor.(Download the full text of this decision at www.ce9.uscourts.gov/)

46) IMMIGRATION: Alvarez-Barajas v. Gonzales, 04-55733 (9th Cir. Aug. 11, 2005). Alvarez-Barajas, a native and citizen of Mexico, appealed the district court's denial of his petition for habeas corpus. The USCA affirmed. It agreed with the district court that Alvarez-Barajas was ineligible for relief under either the former Immigration and Nationality Act ("INA") Sec. 212(c) or a waiver under INA Sec. 212(h). Farris (concurring), D.W. Nelson (author), and Tallman, Circuit Judges. K. Evans of Beverly Hills, CA, for the petitioner; S. Bettwy of San Diego, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

47) IMMIGRATION: Kaur v. Gonzales, 03-73285 (9th Cir. Aug. 11, 2005). Kaur petitioned for review of a decision of the BIA affirming the IJ's decision denying her requests for asylum, withholding of removal, and relief under the Convention Against Torture. The IJ denied Kaur's application because he found her not credible. At issue on appeal was must an IJ ignore repeated and blatant inconsistencies throughout an alien's hearing testimony and applications, simply because, when viewed individually, each inconsistency actually served to weaken her eligibility for relief? The USCA found nothing in its case law to mandate such a technical approach to credibility determinations. It thus held that, in light of the facts of this case, the IJ's adverse credibility determination was supported by substantial evidence. Wallace, Rawlinson, and Bybee (author), Circuit Judges. R. Oriahki of San Francisco, CA, for the petitioner; R. Lefevre of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

48) IMMIGRATION: USA v. Rodriguez-Lara, 04-10113 (9th Cir. Aug. 26, 2005). The defendant, an alien convicted of reentry after deportation appealed the district court's denial of his motion to appoint an expert to assist him in pursuing his equal protection and fair cross-section challenges to the composition of the jury pool. He also claimed that the district court erred in applying the Sentencing Guidelines and that it violated his Sixth Amendment rights by enhancing his sentence in violation of Apprendi and its progeny. Given the extent of the fair cross-section showing that the defendant was able to develop even without an expert, the USCA held that under the circumstances reasonably competent counsel would have required the services of an expert for a paying client, and the lack of an expert prejudiced the defendant. The district court thus abused its discretion in denying defendant's motion for the appointment of an expert. It also committed plain error in applying the acceptance-of-responsibility reduction under the Sentencing Guidelines. Lay, B. Fletcher (author), and Hawkins, Circuit Judges. AFPD M. Walcott of Fresno, CA, for the defendant; AUSA D. Grappa of Fresno, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

49) IMMIGRATION: Zolotukhin v. Gonzales, 04-70945 (9th Cir. Aug. 3, 2005). Zolotukhin, a native and citizen of Russia, sought review of a BIA order affirming without opinion the IJ's denial of his application for asylum, withholding of removal, protection under the Convention Against Torture, and voluntary departure. The USCA held that the evidence did not compel it to hold that the BIA erred in denying Zolotukhin's requested relief. Nevertheless, the USCA granted the petition and remanded for a new hearing because Zolotukhin's hearing did not comport with due process. Pregerson, Graber, and Gould (author), Circuit Judges. V. Dobrin of Seattle, WA, for the petitioner; A. Poczter of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

50) IMMIGRATION: USA v. Cervantes-Flores, 04-50113 (9th Cir. Aug. 24, 2005). Cervantes-Flores appealed his conviction and sentence for being found in the U.S. after deportation in violation of 8 USA Sec. 1326. The USCA affirmed his conviction but remanded his sentence pursuant to USA v. Ameline, 409 F.3d 1073 (9th Cir. 2005). The instruction requiring the jury to find that he was found in the U.S. without the AG's consent could only refer to the AG's consent to reapply to the State Department for admission. While ambiguous and perhaps in need of clarification, the USCA concluded that the instruction does not misstate the elements of the crime Moreover, any ambiguity was harmless in this case. Cervantes never argued nor presented evidence to show that he applied for or received any form of consent from the AG. Browning, Fisher, and Bybee, Circuit Judges. R. Rexrode of San Diego, CA, for the defendant; AUSA S. Stone of San Diego CA, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/)

51) IMMIGRATION: Garcia-Ramirez v. Gonzales, 02-73543 (9th Cir. Aug. 26, 2005). The petitioner, a native and citizen of Mexico, sought review of a Board of Immigration Appeals decision, affirming without opinion an Immigration Judge's decision denying her application for cancellation of removal because of her failure to establish 10 years of continuous physical presence in the United States. She argued that the BIA and IJ impermissibly applied the continuous presence requirement of 8 USC Sec. 1229b(d)(2) (the "90/180-day rule") retroactively to find her automatically ineligible for cancellation of removal because she departed the U.S. for five months between April and September 1989. The USCA found that its prior decisions governing similar claims under the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 compelled it to reject her claim. D.W. Nelson, Fisher (concurring), and Gould (concurring), Circuit Judges. Per Curiam. M. Rios of Seattle, WA, for the petitioner; A. Nicastro of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

52) IMMIGRATION: Lisbey v. Gonzales, 04-70557 (9th Cir. Aug. 22, 2005). Lisbey petitioned for review of the BIA's dismissal of his appeal from an IJ's decision finding him removable as an alien convicted of an aggravated felony. At issue was whether the crime of sexual battery under California Penal Code Sec. 243.4(a) constitutes an "aggravated felony" authorizing removal of an alien pursuant to Sec. 237(a)(2)(A)(iii) of the Immigration and Nationality Act. The USCA held that the crime is an aggravated felony because it requires the intimate touching of another person while that person is under unlawful restraint, and thus involves a "substantial risk" that physical force against that person may be used within the meaning of 18 USC Sec. 16(b). Schroeder (author), Pregerson, and Trott, Circuit Judges. A. Ides of Los Angeles, CA, for the petitioner; R. Verby of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

53) IMMIGRATION: Krotova v. Gonzales, 04-70806 (9th Cir. Aug. 4, 2005). Krotova and her daughters, all natives and citizens of Russia, petitioned for review of the BIA's order of removal. It denied the applications for asylum and withholding of removal because it concluded that they failed to show that the harassment, discrimination, and violence experienced by the lead petitioner on account of her being Jewish rose to the level of persecution. The USCA granted the petition for review upon concluding that the record compelled a finding that the petitioner suffered past persecution, entitling her to a presumption of a well-founded fear of future persecution under 8 CFR Sec. 208.13(b)(1). It remanded to let the BIA determine whether the government can rebut that presumption by a preponderance of the evidence. Pregerson, Graber (author), and Gould, Circuit Judges. A. Bortel of San Francisco, CA, for the petitioners; J. Keeney of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

54) IMMIGRATION: Cordes v. Gonzales, 04-15988 (9th Cir. Aug. 10, 2005). Cordes, a native and citizen of the UK, appealed the district court's denial of her habeas petition challenging the constitutionality of her order of removal. She had pled guilty to dissuading a witness with threat of force and inducing false testimony. The BIA found that her conviction constituted an aggravated felony under the amended definition of Sec. 321 of the Illegal Immigration Reform and Immigrant Responsibility Act and ordered her removed. The USCA held that the INS's application of INS v. St. Cyr, 533 US 289 (2001), and INS v. Velasco-Medina, 305 F.3d 839 (9th Cir. 2002), which results in the denial of Sec. 212(c) relief for permanent residents such as Cordes, violated the Equal Protection Clause. It thus remanded with instructions to grant the writ. Judge Rymer would have affirmed. She noted that the majority held that Cordes was similarly situated to permanent residents entitled to Sec. 212(c) relief under St. Cyr. But she disagreed because St. Cyr and Velasco-Medina were not deportable and did not rely on the availability of Sec. 212(c) relief when they pled guilty. Judge Rymer also noted that the majority held that the disparate treatment of Cordes and those permanent residents who were entitled to Sec. 212(c) relief under St. Cyr lacked a rational basis. But she thought it did not because it is not wholly irrational to preserve Sec. 212(c) relief for those who relied on the availability of a discretionary waiver to avoid deportation. Ferguson (author), Noonan, and Rymer (dissenting in part), Circuit Judges. J. Sekhon of San Francisco, CA, for the petitioner; J. Hunolt of Washington, DC, for the respondents.(Download the full text of this decision at www.ce9.uscourts.gov/)

55) IMMIGRATION: Maharaj v. Gonzales, 03-71066 (9th Cir. Aug. 4, 2005). At issue was whether a Fijian citizen's four-year residence in Canada, which ended when he entered the U.S., constituted "firm resettlement" and thus barring his claim for asylum here. The IJ held that the petitioner and his family had firmly resettled in Canada. It also denied him withholding of removal because, although he had endured past persecution, circumstances in Fiji had changed since his departure in 1987, and there was no clear probability that this life or freedom would be in danger if he returned. The IJ designated Fiji as the country of removal for the family, with the exception of the youngest child, who is Canadian by birth. His country of removal was designated as Canada. The BIA affirmed. It agreed that the petitioner was ineligible for asylum because he and his family had been firmly resettled in Canada, and that the presumption of a well-funded fear of persecution had been rebutted by changed circumstances in Fiji. It also affirmed the IJ's decision to deny withholding of removal. In a subsequent opinion the BIA held that the petitioner's evidence of changed conditions in Fiji had already been considered and rejected and did not warrant reopening the case. The USCA denied the petition. Goodwin, O'Scannlain (author), and Kleinfeld, Circuit Judges. A. Bhakhri of Burlingame, CA, for the petitioner; J. Grimes of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

56) IMMIGRATION: Boer-Sedano v. Gonzales, 03-73154 (9th Cir. Aug. 12, 2005). The petitioner, a native and citizen of Mexico, sought review of a BIA summary affirmance of the IJ's denial of his requests for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). The USCA granted the petition in part, reversed the BIA's decision on the asylum claim and remanded the for AG to exercise his discretion on that claim. It also remanded for the BIA to reevaluate the withholding of removal and CAT claims. The petitioner was born in a small Mexican city and is a homosexual with AIDS. He testified that he could not live "a gay life openly in Mexico" due to how he would be treated if his sexuality were known. Despite his attempt to conceal his sexuality, others could perceive it and he was ostracized by his family, friends, and co-workers on that basis, and harassed and mistreated by police. D.W. Nelson (author), W. Fletcher, and Fisher, Circuit Judges. A. Bean of Oakland, CA, for the petitioner; P. Keisler of Washington, DC, for the respondents.(Download the full text of this decision at www.ce9.uscourts.gov/)

57) EXCESSIVE FORCE: Dang v. Cross, 03-55403 (9th Cir. Aug. 22, 2005). Dang prevailed in a jury trial on his excessive force claims against Officer Cross of the Compton Police Department and was awarded compensatory damages, but not also punitive damages. The USCA held that the district court erred in failing to instruct the jury that it could award punitive damages if it found that Cross had acted in an oppressive manner. This error was not harmless. The USCA also vacated the fee award and remanded for further consideration of the reasonable hours expended in light of the proper legal standard and for reimbursement of the cost of recording an abstract of judgment. B. Fletcher, Noonan, and Paez (author), Circuit Judges. S. Yagman of Venice Beach, CA, for the plaintiff; W. Odom of Compton, CA, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/)

58) EVIDENCE: USA v. Williams, 04-10213 (9th Cir. Aug. 16, 2005). Williams appealed the district court's denial of his motion to suppress as evidence a gun recovered when the car in which he was a passenger was stopped for a traffic infraction, and Williams, after being ordered to get back inside the car, threw the weapon out of the passenger window. At issue was whether an officer may order a passenger who voluntarily gets out of a lawfully stopped vehicle back into the automobile without violating the passenger's Fourth Amendment rights. The USCA held that a passenger's compliance with an officer's command to get back into the car in which the passenger had just exited was not an unreasonable seizure under the Fourth Amendment. Tallman (author), Bybee, and Bea, Circuit Judges. AFPD J. Matthews of Oakland, CA, for the defendant; AUSA E. Frick of San Francisco, CA, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/)

59) EVIDENCE: USA v. Weiland, 04-30091 (9th Cir. Aug. 24, 2005). Weiland appealed his conviction and sentence possessing two firearms and ammunition as a convicted felon. The USCA affirmed. It held that Spokane Sheriff's Detective Rickets, who held a "Special Deputation Appointment" from the U.S. Marshals Service, was a "federal law enforcement officer" and that no Fed. R. Crim. P. 41 violation occurred. But even without these findings, suppression of the firearms and ammunitions seized during the search of Weiland's home would not be warranted. Judge Tashima dissented from the majority's holding that records of Weiland's prior convictions were admissible because they were properly authenticated since the documents in the "penitentiary packet" were self-authenticating public records admissible under Fed. Rules of Evidence 902(2) and 902(4). Fernandez, Tashima (dissenting), and Gould (author), Circuit Judges. S. Hormel of Spokane, WA, for the defendant; AUSA S. Lister of Spokane, WA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

60) WARRANTLESS SEARCH: USA v. Stafford, 04-30134 (9th Cir. Aug. 3, 2005). Sheriff's officers responded to a report of a possible dead body inside a blood-spattered apartment. In the course of looking for an injured or deceased person, the deputies saw two assault rifles, a suspected grenade launcher, ammunitions, and photographs of a man apparently injecting drugs intravenously while sitting in the bathroom of what appeared to be the same apartment. As a result of this entry, observation, and seizure of weapons, Stafford was charged and convicted of two counts of unlawful possession of a firearm and sentenced to 72 months imprisonment. On appeal, he challenged the district court's denial of his motion to suppress evidence obtained during the warrantless search. He also argued that, in light of USA v. Booker, 125 S.Ct. 738 (2005), his sentence constituted plain error. The USCA held that the warrantless entry was reasonably justified by the emergency doctrine, and that the rifles and ammunition seized were properly admitted into evidence under the plain view exception to the Fourth Amendment's warrant requirement. It remanded the case to permit the district court to consider whether it would have sentenced Stafford differently under the advisory, rather than mandatory Guidelines. USA v. Ameline, 409 F.3d 1073, 1084 (9th Cir. 2005). Dissenting in part, Judge Canby thought that the warrantless search was not justified by the emergency doctrine. Canby (dissenting in part), Tallman (author), and Rawlinson, Circuit Judges. D. Koch of Seattle, WA, for the defendant; AUSA M. Lang of Seattle, WA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

61) EVIDENCE: USA v. Beck, 03-30470 (9th Cir. Aug. 10, 2005). Beck appealed several rulings of the district court made during his trial for bank robbery. The district court denied his pre-trial motions to exclude evidence of photograph identification and in-court eyewitness identification, and also to prevent his probation officer from giving lay opinion testimony identifying Beck as the person in the bank's surveillance photograph. Beck also appealed the denial of his trial motion to exclude the government from presenting the rebuttal testimony of an FBI agent. The USCA affirmed. The photospread, and the procedure of showing the surveillance photograph to the eyewitness before the photospread, were not unduly suggestive. Wallace, Gould (author), and Berzon, Circuit Judges. AFPD C. Schatz of Portland, OR, for the defendant; AUSA F. Noonan of Portland, OR, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

62) EVIDENCE: USA v. Chong, 03-10222 (9th Cir. Aug. 18, 2005). Chong appealed his conviction on murder-for-hire and extortion counts stemming from his involvement with the Wo Hop To gang in Northern California. His main contention was that the jury had in-sufficient evidence to convict him for his role in the attempted murder of a rival gang leader in Boston. The USCA held that the jury had insufficient evidence because the government failed to prove that Chong, or one of his co-conspirators, promised anything of pecuniary value to the hitmen as a quid pro quo for murdering a gang rival. Thomas and Fisher (author), Circuit Judges, and J. Robart, District Judge. W. Osterhoudt of San Francisco, CA, for the defendant; AUSA B. Stretch of Oakland, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

63) CROSS-EXAMINATION: Fowler v. Sacramento County Sheriff's Department, 04-15885 (9th Cir. Aug. 31, 2005). Fowler was convicted of annoying or molesting Lara in violation of California Penal Code Sec. 647.6 following a jury trial in which he was precluded from cross-examining Lara regarding two prior incidents in which she alleged that other men molested her. The USCA held that the cross-examination sufficiently bore upon Lara's credibility such that the jury might reasonably have questioned it and, thus, that the cross-examination implicated Fowler's Sixth Amendment right to confrontation. It further concluded that the trial court's implicit determination-that precluding the proffered cross-examination, rather than limiting it, was not unreasonable arbitrary or disproportionate given the trial court's concerns about waste of time, confusion of the issues, and prejudice-was itself objectively unreasonable. Because Lara's testimony was crucial to the State's case, which was not strong, the USCA held that this error had substantial and injurious effect or influence in determining the jury's verdict. It thus reversed the district court's order denying Fowler's petition for a writ of habeas corpus and remanded the issuance of a conditional writ. Tallman, Bybee, and Bea (author), Circuit Judges. Q. Denvir of Sacramento, CA, for the petitioner; B. Lockyer of Sacramento, CA, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

64) COMMUNICATIONS BETWEEN DEFENDANTS: USA v. Austin, 04-10576 (9th Cir. Aug. 2, 2005). One set of defendants appealed the district court's interlocutory order permitting disclosure of communications that occurred outside the presence of counsel between at least one of them and another defendant, who withdrew from a joint defense agreement to cooperate with the government. The USCA held that the district court's order was not immediately appealable under the collateral order doctrine, the Perlman rule, or as a writ of mandamus and dismissed the defendants' appeal for lack of jurisdiction. Hug, Ferguson (author), and Rymer, Circuit Judges. M. Fine of Albuquerque, NM, for the defendants-appellants; AUSA S. Yarbrough of Phoenix, AZ, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

65) FIREARM POSSESSION: USA v. Young, 04-30289 (9th Cir. Aug. 19, 2005). Young appealed his jury conviction and sentence for possession of a firearm by a prohibited person in violation of 18 USC Sec. 922(g)(1). The USCA affirmed. A rational finder of fact could have concluded beyond a reasonable doubt from the government's evidence that Young's sole occupation of the apartment preceding the search was sufficient to establish his constructive possession of the firearms therein, without additional evidence connecting him to the firearms. In addition, the district court did not miscalculate Young's criminal history score by determining that his prior conviction in the State of Washington for Driving Without a License in the Third Degree counted as one criminal history point pursuant to U.S.S.G. Sec. 4A1.2(c). Thompson, McKeown, and Gould (author), Circuit Judges. E. Alden of Kennewick, WA, for the defendant; J. McDevitt of Yakima, WA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

66) FIREARM POSSESSION: USA v. Dorsey, 04-30152 (9th Cir. Aug. 10, 2005). Following a conditional guilty plea, Dorsey was convicted of possession of cocaine base with intent to distribute, possession of a firearm during an in relation to a drug trafficking offense, and possession of a firearm in a school zone. The USCA upheld the conviction but remanded for reconsideration in light of USA v. Booker, 125 S.Ct. 728 (2005), and USA v. Ameline, 409 F.3d 1073 (9th Cir. 2005). Judge Rawlinson concurred in the result due to Devenpeck v. Alford, 125 S.Ct. 588 (probable cause to arrest must be predicated upon an offense "closely related" to the offense invoked by the arresting officer as the basis for arrest). Here the magistrate found that there was probable cause to arrest Dorsey for reckless driving. Hence his arrest was lawful and evidence discovered during a search incident to this arrest was admissible. But Judge Rawlinson disagreed that there was also probable cause to arrest him for trespassing. He thought Dorsey had not been "lawfully directed" to leave the school and that the record did not support the finding that he failed to leave the premises or was directed to leave on the day he was arrested. Canby, Tallman (author), and Rawlinson (dissenting in part), Circuit Judges. AFPD K. McCoy of Anchorage, AK, for the defendant; AUSA J. Farrington of Anchorage, AK, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/)

67) CRIMINAL LAW / DRUGS: USA v. Johal, 03-30579 (9th Cir. Aug. 30, 2005). Johal appealed his conviction for selling and possessing large quantities of over-the-counter cold pills containing the ingredient pseudoephedrine knowing or having reasonable cause to believe that they would be used to manufacture methamphetamine, an illegal substance under 21 USC Sec. 841(c)(2). He argued that Sec. 841(c)(2) impermissibly imposes criminal liability without a mens rea requirement and that it mandates that the illegal substance actually be produced, foreclosing his conviction under a sting operation. He also alleged that the jury instructions failed to ensure a unanimous verdict and that the district court should have found him eligible for a sentence reduction for acceptance of responsibility. The USCA rejected Johal's contention that a "reasonable cause to believe" standard, as construed and applied here, permits a defendant to be convicted without a showing of any criminal intent. Instead, the standard incorporates both subjective and objective considerations to ensure the defendant had a sufficiently "guilty mind" in violation of the statute. The USCA also held that the statute does not require that the illegal drug actually be manufactured. Finally, the trial court did not err in its jury instructions or in denying Johal a reduction for acceptance of responsibility. Schroeder, Graber, and Fisher (author), Circuit Judges. S. McCloud of Seattle, WA, for the defendant; AUSA R. Smoot of Spokane, WA, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/)

68) CRIMINAL LAW: USA v. Thomas, 03-56750 (9th Cir. Aug. 3, 2005). Thomas appealed the denial of his 28 USC Sec. 2255 motion to vacate, set aside, or correct his federal criminal convictions for bank robbery, Hobbs Act robbery, assault on a federal police officer, and gun charges in connection with these offenses. At issue was whether prejudice should be presumed under USA v. Cronic, 466 US 648 (1984), on account of trial counsel's concession of Thomas's guilt on the Hobbs Act charge without consulting Thomas or obtaining his consent, or instead must be proved under Strickland v. Washington, 466 US 668 (1984). The district court found that counsel's statements were part of a trial strategy to make his challenge to other charges more credible, and id not constitute abandonment. It held that Strickland, rather than Cronic, applies, and concluded that Thomas had made no showing of a reasonable probability that the outcome of the trial would have been different absent counsel's statements to the jury. The USCA agreed and affirmed. B. Fletcher (concurring), Rymer (author), and Fisher, Circuit Judges. G. Burcham of San Diego, CA, for the defendant; AUSA A. Sugar of Los Angeles, CA, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/)

69) CRIMINAL LAW / SENTENCING: USA v. Sanders, 03-50471 (9th Cir. Aug. 31, 2005). Sanders appealed his conviction for conspiracy to commit bank robbery, armed bank robbery, using a gun during the commission of a crime of violence, and attempted witness tampering. The USCA affirmed his conviction but vacated and remanded for a full resentencing hearing. Sanders' sentence violated the Sixth Amendment because the judge's extra-verdict findings were applied under a now-defunct mandatory guideline scheme. Because the purpose underlying USA v. Ameline, 409 F.3d 1073 (9th Cir. 2005) were frustrated by the subsequent unavailability of the original sentencing judge, the USCA held that under these circumstances the appropriate response to USA v. Booker, 125 S.Ct. 738 (2005) error is to vacate the original sentence and remand for a full resentencing hearing. Hall (author), Wardlaw, and Paez, Circuit Judges. G. Fusilier of Carlsbad, CA, for the defendant; AUSA K. Meyer of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

70) BAIL: USA v. Fidler, 05-50444 (9th Cir. Aug. 16, 2005). Fidler appealed a district court's order denying his motion to modify the bail condition in his release order pending trial. Although the district court earlier granted Fidler bail pending trial, he remained in custody because he was unable to post a $300,000 bond secured by deeding of real property. Fidler maintained that the district court's order and his continued custody violate various provisions of the bail statute, 18 USC Sec. 3142. The USCA affirmed and clarified the procedural and substantive requirements that obtain when a defendant is detained pending trial based on his inability to meet a financial condition of release imposed by the district court. O'Scannlain, Callahan, and Bea, Circuit Judges. Per Curiam. J. DFPD J. Ginstling of Los Angeles, CA, for the defendant; AUSA E. Lindsay of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

71) DOMESTIC VIOLENCE / SENTENCING: USA v. Dowd, 04-30062 (9th Cir. Aug. 8, 2005). A jury convicted Dowd of violating the federal interstate domestic violence law. Dowd argued that the jury did not have sufficient evidence that he forced or coerced his companion, Johnson, to cross state lines, as the statute requires, because she had reasonable opportunities to escape. Dowd also challenged the district court's decision to impose a sentence for the domestic violence crime that is consecutive to his sentence for previous drug-related crimes. He also argued that the district court improperly enhanced his sentence as a sexual crime in violation of Apprendi v. New Jersey, 530 US 466 (2000). The USCA affirmed the conviction. The evidence establishes that Dowd subjected Johnson to numerous instances of physical and psychological abuse as they traveled through Montana, Colorado and Utah. Viewed from the perspective of a reasonable woman in Johnson's circumstances, the jury could readily have found that Dowd, through a combination of actual force and dire threats, compelled Johnson to stay with him and made her fearful of attempting to flee. The USCA also affirmed Dowd's sentence because the district court properly exercised its discretionary authority in imposing a consecutive sentence, and the jury found that Dowd had committed a sexual assault, making him eligible for the statutory enhancement. Schroeder, Graber, and Fisher (author), Circuit Judges. D. Mondou of Upton, MA, for the defendant; AUSA J. Van de Wetering of Missoula, MT, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

72) VERBAL THREATS / FIRST AMENDMENT: USA v. Stewart, 03-10662 (9th Cir. Aug. 23, 2005). At issue here was whether Stewart's words, used in soliciting someone to murder of the judge who put him in prison, constituted criminal threats of harm against a federal judge and were thus not protected by the First Amendment. Also at issue was the quantum of evidence the government had to present to establish that a defendant, who solicited another person to murder a federal judge, had the required criminal intent for the other person to commit the murder. The District Court jury found Stewart guilty on all four counts. The USCA found that Stewart's conduct fell squarely within the range of conduct prohibited by 18 USC Sec. 373(a) (soliciting another person to murder a federal judge). But it found Counts 2 and 3 (making material false statements to FBI agents) to be multiplicitous, and reversed Stewart's conviction on Count 3. The USCA thus remanded to the district court for resentencing. O'Scannlain, Cowen, and Bea (author), Circuit Judges. T. Haney of Phoenix, AZ, for the appellant; P. Schneider of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

73) FORCED ACCOMPANIMENT: USA v. Strobehn, 04-50167 (9th Cir. Aug. 31, 2005). Strobehn, shotgun in hand, approached Le, a security guard patrolling in front of a bank. He ordered Le to accompany him inside and to lie face down on the floor. Strobehn then robbed the bank. He was later apprehended and charged with armed bank robbery with forced accompaniment in violation of 18 USC Secs. 2113(a), (d) and (e), and with the use of a firearm in connection with a crime of violence in violation of 18 USC Sec. 924(c). He was convicted and now contends that the evidence was insufficient to prove the forced accompaniment charge because the asportation was insubstantial. The USCA affirmed, finding that Strobehn forced accompaniment without consent, which is what Sec. 2113(e) requires. The USCA also found no abuse of discretion in the evidentiary rulings about which Strobehn also complained. Judge Fletcher dissented from the denial of Strobehn's insufficient evidence claim. She thought that, like forcing a teller to move to another station or a bank customer to lie down on the floor, forcing the guard to move inside and lie down on the floor was an integral part of the underlying crime and did not significantly aggravate it. Strobehn, she thought, should not have been subject to the more severe penalty mandated by Sec. 2113(e) on the basis of that conduct alone. . B. Fletcher (dissenting), Rymer (author), and Fisher, Circuit Judges. M. Bednarski of Pasadena, CA, for the defendant; AUSA A. Raphael of Los Angeles, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

74) ALIEN SMUGGLING / SENTENCING: USA v. Gonzales-Flores, 03-10656 (9th Cir. Aug. 12, 2005). The defendant was convicted of alien smuggling. On appeal, he argued that the evidence was insufficient to support his conviction and that certain testimony admitted at trial was irrelevant and unduly prejudicial. He also attacked his sentence on Booker grounds. The government responded that the defendant waived his Sixth Amendment rights. The USCA found the evidence sufficient to support the conviction and that the admission of the prejudicial testimony was harmless. It thus affirmed the conviction. However, it rejected the government's contention that the defendant waived his Sixth Amendment rights when his attorney moved to exclude the prejudicial testimony. It thus remanded the case pursuant to USA v. Ameline, 409 F.3d 1073 (9th Cir. 2005). Lay, B. Fletcher (author), and Hawkins, Circuit Judges. P. Mattern of Phoenix, AZ, for the defendant; AUSA J. Ruffennach of Phoenix, AZ, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/)

75) SUPERVISED RELEASE: USA v. Ortuno-Higareda, 04-10257 (9th Cir. Aug. 26, 2005). The district court's revoked Ortuno's supervised release and sentencing him to a term of 24-months imprisonment. The USCA held that Ortuno's arrest pursuant to a warrant that was not supported by oath or affirmation did not deprive the district court of jurisdiction to revoke his supervised release. But, it also held that the failure to give Ortuno notice of Standard Condition One (that he "not commit another federal, state or local crime") was dispositive, and that the district court thus abused its discretion in revoking his supervised release. Judge Rawlinson dissented from the majority's decision to vacate the revocation because Ortuno was advised of Special Condition One, that he not "reenter the United States without legal authorization," but was not advised of Standard Condition One. Judge Rawlinson was not convinced that this invalidation of the revocation was consistent with USA v. Ortega-Brito, 311 F.3d 1136 (9th Cir. 2002). Wallace (author), Rawlinson (dissenting in part), and Bybee, Circuit Judges. F. Leon of Tucson, AZ, for the defendant; AUSA N. Leonardo of Tucson, AZ, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

76) SUPERVISED RELEASE: USA v. Murguia-Oliveros, 04-50612 (9th Cir. Aug. 29, 2005). The defendant appealed the district court judgment revoking his supervised release and sentencing him to eight months in prison. He claimed that the district court lacked juris-diction to revoke his supervised release because the supervised release term expired before his arrest and revocation hearing. He was arrested pursuant to a warrant based on facts not sworn. The USCA has held that under these circumstance, a revocation of supervised release must occur during the term of supervised release. USA v. Vargas-Amaya, 389 F.3d 901, 907 (9th Cir. 2004). It now held that the district court had jurisdiction because during the term of the defendant's supervised release he absconded and became a fugitive for a period that tolled the term of supervised release, so that it was still running at the time of his arrest and revocation hearing. Schroeder (author), Pregerson, and Trott, Circuit Judges. DFPD E. Newman of Los Angeles, CA, for the appellant; AUSA M. Raphael of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

77) SUPERVISED RELEASE / SIXTH AMENDMENT: USA v. Hall, 04-50193 (9th Cir. Aug. 15, 2005). At issue here was whether the Sixth Amendment right to confront testimonial witnesses established in Crawford v. Washington, 541 US 36 (2004), applies to the admission of hearsay evidence during revocation of supervised release proceedings. The USCA held that Crawford does not create a right of confrontation applicable to supervised release revocation or similar proceedings. Tashima and Wardlaw (author), Circuit Judges, and Collins, District Judge. M. Adams of San Diego, CA, for the appellant; C. Lam of San Diego, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

78) SENTENCING: USA v. Lopez-Montanez, 04-50260 (9th Cir. Aug. 26, 2005). At issue here was whether a prior felony conviction under California's sexual battery statute, Cal. Penal Code Sec. 243.4(a), constitutes a "crime of violence" under the federal Sentencing Guidelines' provision governing sentences for unlawful reentry into the U.S., U.S.S.G. Sec. 2L1.2. The district court found that a conviction under the California statute was a "forcible sex offense" and thus a crime of violence" for purposes of Sec. 2L1.2. The USCA disagreed, and held that such a conviction is not a categorical crime of violence under Sec. 2L1.2(b)(1)(A). Applying the Ninth Circuit's modified categorical approach, it also held that the government did not adequately prove that the appellant's California conviction in fact qualified as a crime of violence. B. Fletcher, Rymer, and Fisher (author), Circuit Judges. V. Brunkow of San Diego, CA, for the defendant-appellant; AUSA K. Mulcahy of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

79) SENTENCING: Arnold v. Runnels, 04-15194 (9th Cir. Aug. 24, 2005). Arnold, at age 36, was sentenced by a California state court to serve a 41-year to life imprisonment sentence as a third-strike offender, upon being convicted of attempted armed robbery, possession of a firearm by a convicted felon, and shooing at an occupied building in violation of the California Penal Code. His conviction was affirmed by the state court of appeal. Following denial of review by the Supreme Court of California, Arnold sought relief pro se through a writ of habeas corpus from the federal district court. The writ was denied. The USCA granted a certificate of appealability as to whether the trial court violated Arnold's Fifth Amendment rights by admitting a tape recording of certain utterances Arnold made during an interrogation, even though Arnold had said he did not want to talk on tape and responded to all substantive questions on tape by saying "no comment." The USCA found that the trial court allowed Arnold's "no comment" utterances to be used against him. The Miranda rule thus required remand for a new trial. Bright (author), Tashima, and Callahan (dissenting), Circuit Judges. A. Schwartz of Emeryville, CA, for the appellant; AAG G. Engler of San Francisco, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

80) SENTENCING: USA v. Carter, 03-10377 (9th Cir. Aug. 25, 2005). Carter's sentence was enhanced under U.S.S.G. 2K2.1(b)(4), which mandates a two-point offense-level enhancement for certain firearms offenses when any firearm involved has an altered or obliterated serial number. The USCA held that a serial number is "altered or obliterated" when it is materially changed in a way that makes accurate information less accessible. The USCA also held that, under this standard, a serial number which is not discernable to the un-aided eye, but which is detectable via microscopy, is altered or obliterated. Hall, Brunetti (author), and Graber, Circuit Judges. AFPD D. Fermino of San Francisco, CA, for the appellant; AUSA P. Kearney of San Francisco, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

81) SENTENCING: USA v. Dupas, 04-50055 (9th Cir. Aug. 3, 2005). Dupas appealed the sentence imposed after his conviction for possessing stolen mail in violation of 18 USC Sec. 1708. Dupas maintained that the retroactivity principles of the Fifth Amendment's Due Process Clause preclude the retroactive application of the remedial holding of USA v. Booker, 125 S.Ct. 738 (2005). The USCA rejected this contention and held that he may be resentenced according to the principles set forth in Booker and USA v. Ameline, 409 F.3d 1073 (9th Cir. 2005). Dupas also challenged two conditions of supervised release pertaining to searches and to payments for substance abuse treatment. The USCA affirmed the former and, although it was uncertain whether the later was an improper delegation of the district court's authority under 18 USC Sec. 3672, its very uncertainty persuaded it that the district court did not plainly err. Gibson, Graber (author), and Callahan, Circuit Judges. DFPD J. Libby of Los Angeles, CA, for the defendant; AUSA R. Lee of Santa Ana, CA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

82) SENTENCING: USA v. von Brown, 04-30219 (9th Cir. Aug. 8, 2005). Brown pleaded guilty to one count of burglary. He appealed his sentence as a career offender under U.S.S.G. 4B1.1. The USCA held that enhancing his sentence on account of his prior convictions did not violate the Sixth Amendment, as interpreted in Blakely v. Washington, 542 US 296 (2004), and USA v. Booker, 125 S.Ct. 738 (2005). Schroeder, Graber, and Fisher, Circuit Judges. Per Curiam. AFPD D. Ness of Great Falls, MT, for the defendant-appellant; AUSA K. Richter of Billings, MT, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

83) SENTENCING: USA v. Ware, 03-15609 (9th Cir. Aug. 5, 2005). After his conviction in district court for two counts of bank rob-bery, the petitioner filed a motion to vacate his sentence under 28 USC Sec. 2255, claiming that the government had presented insufficient evidence of the banks' federally-insured status at the time of the robberies. The district court denied the petition and the petitioner appealed. The USCA affirmed. Considering the totality of the trial evidence, including the short period of time that elapsed between the robberies and the petitioner's trial, it concluded that there was sufficient evidence to support the conviction. Thomas, Paez, and Callahan (author), Circuit Judges. O. Fumo of Las Vegas, NV, for the defendant; AUSA R. Bork of Las Vegas, NV, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

84) SENTENCING: USA v. Mayfield, 02-50381 (9th Cir. Aug. 10, 2005). Mayfield appealed his sentence, imposed following his conviction after a jury trial, for possession of cocaine base with intent to distribute. He argued that the enhanced mandatory minimum sen-tence of 21 USC Sec. 841(b)(1)(A) may not be imposed consistent with due process when the government fails to refile an information charging a prior felony drug conviction before a second trial. The USCA held that the government is not required to refile an information charging a prior felony drug conviction, which information it filed before the first trial, for purposes of applying a sentencing enhancement under Sec. 841(b)(1)(A). It nevertheless remanded for further consideration of Mayfield's sentence in light of USA v. Booker, 125 S.Ct. 738 (2005), and USA v. Ameline, 409 F.3d 1073 (9th Cir. 2005). Thompson (author), Silverman, and Wardlaw, Circuit Judges. D. Evans of Pasadena, CA, for the defendant; AUSA T. Mack of Los Angeles, CA, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/)

85) HABEAS CORPUS: Williams v. Roe, 03-56064 (9th Cir. Aug. 24, 2005). Williams appealed the district court's denial of his habeas petition. He challenged under the Ex Post Facto Clause the state court's application of an amended version of California Penal Code Sec. 654. The amended statute eliminated judicial discretion to impose a lower sentence afforded by the version in place at the time of Williams' offense. The USCA held that the application of the amended statute was an ex post facto violation and, under Circuit case law, such an error requires reversal without inquiring into it harmfulness. Pregerson, Tashima (author), and Paez, Circuit Judges. D. Berley of West Hills, CA, for the petitioner; DAG A. Cohen of San Diego, CA, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

86) HABEAS CORPUS: Hirschfield v. Payne, 04-35437 (9th Cir. Aug. 22, 2005). At issue here was whether Hirschfield's two motions to represent himself during his state court trials, one dated April 7, 1997 and submitted to Superior Court Judge Schindler, and the other dated April 24, 1997 and submitted to Superior Court Judge Ishikawa, were improperly denied. As for the April 7th motion, the USCA held that it was not unreasonable for the Judge Schindler to have found that the motion was made in order to delay the proceedings. As for the April 24th motion, however, Judge Ishikawa did not rely on the ground that the motion was intended to delay the proceedings, but on the ground that the defendant lacked sufficient knowledge of legal procedure. That ruling was not only erroneous but contrary to Faretta v. California, 422 US 806 (1975). The USCA instructed that on remand, the district court issue a conditional writ of habeas corpus directing that Hirschfield be released from custody unless the state begins trial proceedings against him within a reasonable period of time to be determined by the district court. O'Scannlain (author), McKeown, and Bea, Circuit Judges. M. Filipovic of Seattle, WA, for the petitioner; J. Samson of Olympia, WA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

87) HABEAS CORPUS: Jefferson v. Budge, 03-16932 (9th Cir. Aug. 16, 2005). The USCA held here that it is error for a district court to dismiss a mixed habeas petition without first offering the petitioner the options provided in Rose v. Lundy, 455 US 509 (1982). If such an error occurs, the petitioner is entitled to equitable tolling of the AEDPA statute of limitation from the date the mixed petition was dismissed until the date a new federal habeas petition is filed, assuming ordinary diligence. Thomas, Silverman (author), and Clifton, Circuit Judges. W. Jefferson pro se; DAG J. Warwick of Carson City, NV, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/)

88) HABEAS CORPUS: Gaston v. Palmer, 01-56367 (9th Cir. Aug. 2, 2005). Gaston sought review of the district court's dismissal of his habeas petition. It found the petition time-barred under the one-year statute of limitations of 28 USC Sec. 2244(d)(1). The USCA reversed and remanded, finding that Gaston is entitled to tolling during the time his state court habeas applications were pending and "pending," in this context, includes the intervals between the dismissal of one state application and the filing of the next one. Because Gaston is allowed tolling for the time his state court applications were pending, his federal habeas petition is timely. Dissenting, Judge Kleinfeld thought the majority made a mistake in treating the statute of limitations as tolled pending state exhaustion, when, instead of going "up the ladder" from the California Superior to the Court of Appeal, to the Supreme Court, the petitioner goes up, down and sideways. This new mistakes puts the majority's decision in tension, if not in conflict, with three other Ninth Circuit decisions. Kleinfeld (dissenting), Wardlaw, and W. Fletcher (author), Circuit Judges. L. Brodie of Los Angeles, CA, for the respondent; G. Simon for the petitioner. (Download the full text of this decision at www.ce9.uscourts.gov/)

89) HABEAS CORPUS: Inthavong v. Lamarque, 03-57075 (9th Cir. Aug. 23, 2005). At issue on this appeal, was whether the admission of an allegedly coerced confession in state court was prejudicial error. Inthavong challenged the admission of his confession in his federal petition for a writ of habeas corpus. The district court denied the petition and denied Inthavong's request for a certificate of appealability under 28 USC Sec. 2253(c). A Ninth Circuit motions panel granted Inthavong a certificate of appealability and the USCA affirmed. The California Court of Appeal had held that admitting the confession did not harm Inthavong. The USCA found this ruling objectively reasonably. Even without the confession, it would not be unfair to say that Inthavong was convicted out of his own mouth. O'Scannlain (author) and Clifton, Circuit Judges, and Weiner, District Judge. J. Deaton of San Diego, CA, for the petitioner; E. Hartwig of San Diego, CA, for the respondents.(Download the full text of this decision at www.ce9.uscourts.gov/)

90) EXTRADITION: Prasoprat v. Benov, 03-57253 (9th Cir. Aug. 31, 2005). Prasoprat, a U.S. citizen fighting extradition to Thailand, appealed the district court's denial of his habeas petition. He argued that his due process rights were violated when the extradition court denied his motion seeking discovery of information related to the use of the death penalty in Thailand for drug offenses. He also argued that the extradition court should have denied his extradition on humanitarian grounds. The USCA affirmed. It agreed that an extradition magistrate lacks discretion to inquire into the conditions that might await a fugitive upon return to the requesting country. It also agreed that the magistrate did not have the authority to refuse to issue a certificate of extradition on humanitarian grounds. Pregerson, Tashima (author), and Paez, Circuit Judges. B. Bernstein of Burbank, CA, for the petitioner; AUSA D. Goodman of Los Angeles, CA, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

91) PROBATION: USA v. Saechao, 04-30156 (9th Cir. Aug. 12, 2005). At issue here was whether a probationer who provides incriminating information to his probation officer in response to questions from that officer, and does so pursuant to a probation condition that requires him to "promptly and truthfully answer all reasonable inquires" from the officer or face revocation of his probation, is "compelled" to give incriminating evidence within the meaning of the Fifth Amendment. Because the USCA concluded that the state took the "impermissible step" of requiring the probationer "to choose between making incriminating statement and jeopardizing his conditional liberty by remaining silent," it concluded that his admission of criminal conduct was compelled by a "classic penalty situation" and the evidence obtained by the officer may not be used against him in a criminal proceeding. Reinhardt (author), Berzon, and Bybee, Circuit Judges. R. Friedman of Washington, DC, for the plaintiff; L. Hay of Portland, OR, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/)

92) PRISONERS' RIGHTS: Agster v. Maricopa County, 04-15466 (9th Cir. Aug. 29, 2005). The parents and the representative of the Agster estate brought this action against individuals and the Maricopa County and Maricopa County Sheriff's Office for Agster's death while in the custody of the County. In this interlocutory appeal, the County challenged the district court's order compelling production of the mortality review conducted by Correctional Health Services. The USCA found jurisdiction to consider the County's claim of privilege, and held that federal law recognizes no privilege of peer review in the context of a case involving the death of a prisoner. Noonan (author), Thomas, and Fisher, Circuit Judges. M. Wolver of Phoenix, AZ, for the defendants; S. Berberian of Phoenix, AZ, for the plaintiffs. (Download the full text of this decision at www.ce9.uscourts.gov/)

MEMORANDA
Unpublished decisions may not be cited to or by the courts of this circuit except when
relevant under the Doctrine of Law of the Case, Res Judicata, or Collateral Estoppel.
Rule 36-3

1) CONTRACTS / UNFAIR COMPETITION: nMotion, Inc. v. Environmental Tectonics Corp., 03-35982 (9th Cir. Aug. 4, 2005) (unpublished). Goodwin and Clifton, Circuit Judges, and Rhoades, District Judge.

nMotion appealed the district court's summary judgment in favor of Environmental Tectonics and its sister company ETC-PZL Aerospace Industries, SP (together "ETC") on its breach of contract and unfair competition claims. nMotion alleged that ETC stole its ideas regarding flight simulation game software for use in enhancing its existing flight simulation software and creating new products. During the course of meetings between ETC and nMotion, ETC signed two non-disclosure agreements at nMotion's request. The agreements prohibited ETC from disclosing or using confidential information conveyed by nMotion. nMotion argued that ETC breached these agreements because it used confidential information when it decided to pursue nMotion's ideas in the flight simulator arena. ETC responded that any information it used was publicly disclosed in nMotion's proposal, and was thus not subject to the non-disclosure agreements. The USCA agreed. nMotion failed to identify any specific confidential information it disclosed to ETC which was not also disclosed in its business proposal, and which would be subject to the terms of the non-disclosure agreement. While it was plausible that some confidential information was exchanged during the meetings between nMotion and ETC, nMotion failed to set forth specific facts to support such an assertion. This was fatal to its breach of contract theory, and summary judgment in favor of ETC was proper on nMotion's two breach of contract claims. With respect to its unfair competition claim, nMotion argued that the district court erred in finding that corporate morality principles set forth in Kamin v. Kuhnau, 374 P.2d 912 (Or. 1962), on which nMotion's unfair competition claim was premised, were obsolete. Without passing on the viability, if any, these principles following the adoption of the Oregon Uniform Trade Secrets Act, the USCA found it inapplicable. The principles may impose duties on and imply agreements between parties to a business relationship, but the USCA declined to invoke them here, as the parties defined their relationship by contract. Summary judgment was thus proper on nMotion's unfair competition claim.

2) CONTRACTS: General Components, Inc. v. H.T. Components U.S.A., Inc., 03-17070 (9th Cir. Aug. 4, 2005) (unpublished). Goodwin, Reavley, and Rawlinson, Circuit Judges.

The plaintiff, General Components appealed the district court's summary judgment in favor of H.T. Components, on its breach of contract claim. The USCA affirmed. The plaintiff maintained that H.T. Components breached the parties' proprietary products agreement by producing and selling a shipping cap and plug virtually identical to one designed by the plaintiff and disclosed to the defendant pursuant to the proprietary products agreement. Under California law, "no damages can be recovered for a breach of contract which are not clearly ascertainable in both their nature and origin." Cal. Civ. Code Sec. 3301. See also Grupe v. Glick, 160 P.2d 832, 840 (Cal. 1945) (discussing recoverability of lost profits as damages for breach of contract). In addition, to be recoverable, damages must be the direct result of the defendant's breach of contract. See Automatic Poultry Feeder Co. v. Wedel, 28 Cal. Rptr. 795, 799 (Cal. Ct. App. 1963). As to damages, the plaintiff alleged that the defendant stole sales it would have made but for the defendant's entry into the specific shipping cap and plug market. However, on its motion for summary judgment, the defendant produced admissible evidence tending to show that the plaintiff would not have made the disputed sales. The plaintiff offered no evidence sufficient to create a material issue of fact concerning lost sales or any other recoverable damages. The district court thus properly entered summary judgment for the defendant.

3) BANKRUPTCY / SANCTIONS: In re Burke, 04-57116 (9th Cir. Aug. 1, 2005) (unpublished). O'Scannlain, Callahan, and Bea, Circuit Judges.

Burke appealed pro se the district court's dismissal for lack of jurisdiction his appeal of a bankruptcy court's order awarding sanctions. The USCA held that the district court properly dismissed Burke's appeal for lack of jurisdiction because Burke failed to timely file his notice of appeal within 10 days of entry of the bankruptcy court's order awarding sanctions to the trustee. See Fed. R. Bankr. P. 8002(a) and (c); and In re Mouradick, 13 F.3d 326, 327-28 (9th Cir. 1994) (holding that the bankruptcy court could not extend a deadline for filing a notice of appeal beyond the 20 day extension period allowed by the bankruptcy rules). Burke's contention that the doctrine of unique circumstances should apply lacked merit because Burke did not perform an act which, if properly done, would have postponed the deadline for filing his appeal. Id. at 329. Moreover, contrary to Burke's contention, the record shows that the bankruptcy court did not explicitly give Burke 90 days to pay the sanctions, not 90 days to file his appeal. Finally, the USCA rejected Burke's contention that his notice of appeal encompasses the order denying his motion for reconsideration.

4) INSURANCE: Cutter & Buck, Inc. v. Genesis Insurance Co., 04-35218 (9th Cir. Aug. 1, 2005) (unpublished). Tashima, Paez, and Callahan, Circuit Judges.

Cutter & Buck, Inc. appealed the district court's determination on summary judgment that the rescissions by Genesis Insurance Co. of its Directors and Officers insurance policies were valid because the appellant had procured the policies through deliberate misrepresentations.
The USCA affirmed. The parties had filed cross motions for summary judgment, and at oral argument, agreed that there were no contested issues of material fact and that the interpretation of the contract was a matter of Washington law. Under Washington law, insurance policies are construe as contracts and their interpretation is a matter of law. The critical issue was the interpretation of a severability provision in the 2002-2003 Directors and Officers liability insurance contract. The appellant conceded that its Chief Financial Officer made material misrepresentations to the appellee in procuring both the 2001-2002 and the 2002-2003 policies. The appellant argued that the severability provision in the 2002-2003 policy required that the appellee cover all directors and officers who did not have personal knowledge of the material misrepresentations. The appellee argued, and the district court found, that material misrepresentations known to the director or officers who signed the application were imputed to innocent directors and officers. The USCA agreed that under Washington law, the district court was entitled to consider the extrinsic evidence proffered by the appellant to aid in the interpretation of the contracts, and that the district court correctly determined that the proffered evidence did not show an objective manifestation of the parties' intent. The USCA held that the district court properly applied Washington law in interpreting the severability provision to provide that misrepresentations in the application materials known to the officer signing the application were imputed to other directors and officers. Thus, as the CFO knew that there were misrepresentations in the application materials, the appellee had a right to rescind. The appellant also argued that the appellee waived its right to rescind. It points to a number of events following an Aug. 1, 2002 conference and before the appellee's rescission in December 2002. In particular, the appellant argued that its August 12, 2002 press release alerted the appellee to its right to rescind and thus the appellee's Aug. 14, 2002, letter confirmed coverage constituted a waiver of its right to rescind. The USCA held that the district court properly determined that neither the Aug. 14, 2002 letter nor the acceptance of the premium for the coverage, nor any other action on the appellee's part prior to the December rescission constituted a waiver. Although the Aug. 12, 2002 press release alerted the appellee to the fact that the questionable transactions were more serious than indicated in the Aug. 1, 2002 conference calls, it did not inform the appellee of the CFO's knowledge and involvement in the transactions.

5) EMPLOYMENT DISCRIMINATION: Edwards v. England, 04-16185 (9th Cir. Aug. 4, 2005) (unpublished). O'Scannlain, Callahan, and Bea, Circuit Judges.

Edwards, an African-American male, appealed pro se the district court's order granting the Secretary of Navy's motion for summary judgment on his claim for employment discrimination based on race, color and retaliation. The USCA affirmed. Edwards maintained that he suffered discrimination when he lost his employment at the Yokosuka Naval Base after the military barred his access to all U.S. military installations in Japan. The district court did not err by granting summary judgment because Edwards failed to establish a prima facie case to support his claim that his debarment from the installations was racially motivated. Blue v. Widnall, 162 F.3d 541, 546 (9th Cir. 1998). The record also showed that Edwards' debarment was, in fact, less severe than others similarly situated. Summary judgment was proper on Edwards' retaliation claim because he failed to show a nexus between his two-year debarment and the filing of his earlier Equal Employment Opportunity claim. See Kortan v. California Youth Authority, 217 F.3d 1104, 1112 (9th Cir. 2000). The district court also properly granted summary judgment on Edwards' claim that his due process rights were violated when he did not receive a hearing prior to his debarment notification because there is no right to a hearing for military debarment. USA v. Albertini, 783 F.2d 1484, 1487 (9th Cir. 1986).

6) INDIVIDUALS WITH DISABILITIES EDUCATION ACT: Peters v. Ocean View Elementary School District, 04-56638 (9th Cir. Aug. 4, 2005) (unpublished). O'Scannlain, Callahan, and Bea, Circuit Judges.

Jimmy Peters, by and through his guardian ad litem, James Peters IV, appealed the district court's dismissal, for failure to prosecute, of his action alleging that the Ocean View Elementary School District and West Orange County Consortium for Special Education violated is rights under the Individuals with Disabilities Education Act. The USCA affirmed. In dismissing Peter's action for failure to prosecute and failure to comply with court orders, the district court properly weighed these factors: 1) the public's interest in expeditious resolution of litigation; 2) the court's need to manage its docket; 3) the risk of prejudice to the defendants; 4) the availability of less drastic alternatives; and 5) the public policy favoring disposition of cases on their merits. The USCA rejected Peters' contention that the district court should have imposed less drastic sanctions because the record demonstrates that the court repeatedly warned Peters about the consequences of his dilatory conduct. See Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986).

7) AMERICANS WITH DISABILITIES ACT: Petramala v. City of Mesa, 04-16639 (9th Cir. Aug. 4, 2005) (unpublished). O'Scannlain, Callahan, and Bea, Circuit Judges.

Petramala appealed pro se the district court's summary judgment for the City of Mesa in his discrimination action under the Americans with Disabilities Act, alleging that his application for employment as a police officer was denied on the basis of his disability. The USCA affirmed. Summary judgment was proper on Petramala's disability claim because he failed to produce evidence sufficient to establish a prima facie case of discrimination. FTC v. Publishing Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997) (holding that conclusory, self-serving statements lacking detailed facts and supporting evidence are insufficient to create a genuine issue of material fact.)

8) IMMIGRATION: Haghani v. Gonzales, 04-71346 (9th Cir. Aug. 1, 2005) (unpublished). O'Scannlain, Callahan, and, Circuit Judges. Haghani, a native and citizen of Iran, petitioned pro se for review of the BIA's summary affirmance of the IJ's denial of her ap-plication for asylum, withholding of removal and protection under the Convention Against Torture. The USCA denied the petition for review. Substantial evidence supported the IJ's determination that Haghani's experiences did not rise to the level of persecution on account of her political opinion. Fisher v. INS, 79 F.3d 955, 961-62 (9th Cir. 1996)(en banc). It lacked jurisdiction to review the remaining issues as Haghani failed to raise them before the BIA

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