1) BANKRUPTCY: In re Burrell, 02-16466 (9th Cir. July 11, 2005). In 1988, Stanley Burrell (later to be known as "M.C. Hammer") approached Felton Pilate, a producer, to collaborate on the production of an album. Their first LP, "Let's Get It Started," went multi-platinum in 1988 and they continued to collaborate until 1990 without any written agreement. In January 1990, they signed two contracts, the interpretation of which was the sole issue appealed from the judgements below. At issue on appeal was whether the preclusive effect of those judgments required vacatur in the bankruptcy context when the underlying claims have been mooted on appeal. The USCA found that because Pilate had not caused the mootness of his appeal and because the preclusive effect of the lower court judgments, if unreviewed, may unfairly prejudice Pilate, the judgement below had to be vacated. The USCA thus vacated the judgment of the district court and directed the district court on remand to dismiss. It also directed the district court to vacate the bankruptcy court judgment and remand to the bankruptcy court with instructions to dismiss. The USCA thus dismissed the appeal as moot. D.W. Nelson (author), Kleinfeld, and Gould, Circuit Judges. S. Nelson of San Francisco, CA, for the appellant; S. Burrell in pro per. (Download the full text of this decision at www.ce9.uscourts.gov/)

2) BANKRUPTCY: In re AB Liquidating Corp., 03-16979 (9th Cir. July 19, 2005). This case arose from the bankruptcy of debtor Adaptive Broadband Corporation. AMB Property, the debtor's pre-petition landlord, appealed from the district court's affirmance of the bankruptcy court's judgment. In that judgment, the bankruptcy court sustained the Creditors' Committee's objection to AMB's claim against the debtor's estate for breach-of-lease damages. The USCA affirmed the judgment of the district court. Schroeder and McKeown, Circuit Judges, and Duffy (author), District Judge. M. St. James of San Francisco, CA, for the appellant; R. Franklin of Cupertino, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

3) BANKRUPTCY: USA v. Bussell, 02-50495 (9th Cir. July 12, 2005). John and Letantia Bussell, together with their former lawyers, were charged with omitting assets from and making false statements in their joint petition for Chapter 7 bankruptcy relief. After the jury began its deliberations following a lengthy trial, John fell to his death from his hotel room. In accordance with the district court's instruction, the jury continued deliberations with respect to Letantia and ultimately convicted her on six counts. In the present case, Letantia appealed her conviction, her sentence, and the district court's orders of restitution and costs. The USCA found no reversible error as to her convictions and affirmed them. As to her sentence, the USCA remanded for further proceedings pursuant to USA v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc). Finally, as to the district court's orders of restitution and costs, the USCA reversed and remanded for reconsideration consistent with its opinion. Noonan and Clifton (author), Circuit Judges, and Fogel, District Judge. S. Hufstedler of Los Angeles, CA, for the defendant-appellant-cross-appellee; R. Cheng of Los Angeles, CA, for the plaintiff-appellee-cross-appellant.(Download the full text of this decision at www.ce9.uscourts.gov/)

4) ENVIRONMENTAL LAW: Defenders of Wildlife v. Flowers, 03-16884 (9th Cir. July 12, 2005). Defenders of Wildlife and the Center for Biological Diversity (collectively "Defenders") appealed the grant of summary judgment to the Army Corps of Engineers. Defenders challenged the decision of the Corps not to consult with the Fish and Wildlife Service ("FWS") on the effect of the Arizona cactus ferruginous pygmy-owl of two real estate developments in Arizona. The district court found that the Corps' determination that the developments would have no effect on the pygmy owl was not arbitrary or capricious. The USCA affirmed. Dissenting, Judge Ferguson thought that the majority ignored the plain language of the Endangered Species Act's implementing regulations, trivialized the vital process of inter-agency consultation, and drove closer to extinction the few existing Arizona pygmy-owls. He thought the Corps' decision to forego consultation with the FWS was both arbitrary and capricious given the FWS's persistent and persuasive objections to the two real estate developments at issue. Ferguson (dissenting), Noonan (author), and Rymer, Circuit Judges. M. Senatore of Washington, DC, for Defenders of Wildlife; AUSA T. Aagaard of Washington, DC, for the defendants-appellees; N. James of Phoenix, AZ, for the intervenor Grosvernor Holdings.(Download the full text of this decision at www.ce9.uscourts.gov/)

5) ENVIRONMENTAL LAW: National Wildlife Federation v. National Marine Fisheries Service, 05-35569 (9th Cir. July 26, 2005). The defendants appealed the district court's grant of a preliminary injunction, based on a violation of the Endangered Species Act, requiring the U.S. to pass a specified amount of water through the spillgates of four dams on the Snake River, and one dam on the Columbia River during the summer of 2005, rather than passing the water through turbines for power generation. The USCA affirmed the district court's issuance of a preliminary injunction, but remanded the question of whether the injunction should be more narrowly tailored or modified. Tashima, Thomas, and Paez, Circuit Judges. Per Curiam. M. Eames of Seattle, WA, for the federal defendants; M. Love of Seattle, WA, for defendant BPA Customer Group; L. Wasden of Seattle, WA, for the State of Idaho; T. True of Portland, OR, for the National Wildlife Federation; H. Myers of Salem, OR, for the State of Oregon. (Download the full text of this decision at www.ce9.uscourts.gov/)

6) EMPLOYMENT DISCRIMINATION: El-Hakem v. BJY Inc., 03-35514 (9th Cir. July 21, 2005). This appeal presented challenges to the district court's post-verdict rulings following a jury trial. The USCA affirmed, finding that the district court had properly resolved the parties' motions. First, the district court properly denied Young's motion for judgment as a matter of law on El-Hakem's intentional discrimination claim. Young, the CEO of BJY Inc. insisted upon calling El-Hakem "Manny" or "Hank" despite El-Hakem's strenuous objections. His repeated use of these "racially-motivated" nicknames supported the jury's finding of discrimination. Second, the district court properly amended the judgment to hold BJY vicariously liable for racial discrimination, and acted within its discretion in declining to apportion the attorneys' fees. Finally, the district court's consideration of the "same decision" defense was within its discretion and its application of the doctrine was consistent with Oregon law. T.G. Nelson and Rawlinson (author), Circuit Judges, and Schwarzer, District Judge. K. Balasubramani of Portland, OR, for the defendants-appellants; P. Rissberger of Portland, OR, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

7) EMPLOYMENT DISCRIMINATION: Coghlan v. American Seafoods Co., 03-35314 (9th Cir. July 7, 2005). At issue here was whether the showing necessary for an employee to prevail against his employer's motion for summary judgment in this employment discrimination case was heightened because the person who demoted him had previously appointed and promoted him; and, if so, whether the employee's evidence of discrimination was sufficient to meet the heightened burden. In this case Coghlan failed to present evidence sufficient to defeat the same-actor inference with regard to any of the decisions he challenged. The district court thus correctly granted summary judgment in favor of the defendant. O'Scannlain (author), Leavy, and Bea, Circuit Judges. S. Collins of Seattle, WA, for the appellant; A. Higgins of Seattle, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

8) EMPLOYMENT DISCRIMINATION: Galdamez v. Potter, 03-35682 (9th Cir. July 15, 2005). Galdamez appealed the district court's denial of her motion for a new trial following a defense verdict in her Title VII case against the U.S. Postal Service. The USCA treated her appeal as an appeal from final judgment and found jurisdiction under 28 USC Sec. 1291. Although the district court correctly denied Galdamez's motion to amend the pretrial order and did not abuse its discretion in formulating either the jury instructions or the special verdict, it nonetheless erred by denying her request for an instruction on the Postal Service's potential liability for harassment by customers and community members based on her race and national origin. The USCA thus affirmed in part, reversed in part, and remanded for a new trial on Galdamez's harassment claim. Hug (author), Berzon, and Bybee, Circuit Judges. T. Spaulding of Portland, OR, for the appellant; AUSA R. Silver of Portland, OR, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

9) EMPLOYMENT LAW / AMERICANS WITH DISABILITIES ACT: Head v. Glacier Northwest, Inc., 03-35567 (9th Cir. July 6, 2005). In June 2001, Glacier Northwest, Inc., Matthew Head's employer, terminated him after he got a loader he was operating stuck in the mud. The loader had to be extracted by another piece of equipment. In terminating Head, Glacier cited damage to the loader in violation of an equipment abuse policy issued in 2000. It was undisputed that Head had received this policy. In early 2001, prior to his termination, he was diagnosed with depression or bipolar disorder. He informed Glacier of this diagnosis. At the time of his diagnosis, Head worked graveyard shift as a barge offloader. He subsequently missed almost two months of work because of his disability. He requested, and was granted, a Family Medical Leave of Absence for this period. Although he returned to work in May 2001, his doctors restricted him from working more than 12 hours per day or 48 hours per week. They also limited him to working only the day shift. After his termination, Head filed numerous claims in federal district court. Of relevance to this appeal were his claims under the Americans with Disabilities Act and Oregon law for disability discrimination based on his disability, record of disability, or perceived disability, and for retaliation for requesting an accommodation. The district court granted partial summary judgment in favor of Glacier on Head's discrimination claims based on disability and a record of disability. The court reasoned that Head had failed to demonstrate a genuine issue of material fact regarding substantial impairment because he did not present any medical or comparative evidence to support his claims that his disability substantially impaired any major life activities. Head appealed the district court's grant of partial summary judgment. He also appealed the district court's exclusion of lay opinion testimony during the trial on his perceived disability and retaliation claims. Finally he challenged the district court's jury instructions requiring him to show that Glacier discriminated against him "because of" his perceived disability and retaliated against him "because" of his request for an accommodation. The USCA reversed the summary judgment, affirmed the exclusion of lay opinion testimony, vacated the jury verdict, and remanded for further proceedings. Judge Nelson concurred in the judgment and in all of the opinion except Note 2 and Part III.B.2: he disagreed with the court's conclusion that the district court should choose between a "because of" instruction and a "motivating factor" instruction in ADA cases. That conclusion, he thought, contradicted the holdings in Part III.B.1 and Part III.B.3. In addition, Judge Nelson thought that it inappropriately imported a Title VII standard that did not apply in the ADA context. T.G. Nelson (concurring) and Rawlinson, Circuit Judges, and Schwarzer (author), District Judges. S. Hunt of Portland, OR, for the plaintiff-appellant; W. Grimm of Seattle, WA, for the defendant-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

10) ASSUMPTION AGREEMENTS: ABF Capital Corp. v. Osley, 03-56349 (9th Cir. July 12, 2005). In December 1982, appellee Peters purchased six limited partnership units of a New York limited partnership, Regent Energy partners. That same month, appellee Osley purchased six limited partnership units of Oak Energy Partners, also a New York limited partnership. These limited partnerships thereafter entered into several sublease agreements with ABF Capital Corporation. The sublease agreements provided for annual royalties to be paid to ABF, but allowed the partnerships to defer the royalty if the partners assumed personal liability for the royalty amount. Peters and Osley both executed assumption agreements wherein they assumed personal responsibility for their pro rata share of the royalties. Two provisions of these assumption agreements were at issue in this case: The parties selected New York law as governing their obligations and Peters and Osley waived the benefits of any statute of limitations defense. On December 30, 2002, some seven years after the royalty payments became due and payable ABF filed complaints for breach of contract against Peters and Osley. Peters and Osley then moved to dismiss ABF's complaint for failure to state a claim under Fed. R. of Civ. P. 12(b)(6) because the suits were filed after the statute of limitations expired, and for failure to join a necessary party under Fed. R. Civ. P. 19 and 12(b)(7). The district court, sitting in diversity, ruled that the New York choice of law clause of the assumption agreements was enforceable and that New York barred the waiver of the statute of limitations. Concluding that ABF's claims were time-barred under the New York statute of limitations, the district court dismissed ABF's claims for breach of contract with prejudice. ABF then moved in both cases to alter or amend the judgment under Fed. R. Civ. P. 59(e). Because no judgments had yet been entered, the district court construed ABF's motions as motions for reconsideration of the order granting dismissal. The district court denied both motions by minute orders entered on May 15, 2003. The USCA held that the parties' choice of New York law was enforceable. The parties' purported waivers of the New York statute of limitations were ineffective and ABF's claims for breach of contract was barred by New York's six-year statute of limitations. D.W. Nelson and Berzon, Circuit Judges, and Mahan (author), District Judge. B. Jacobs of Sherman Oaks, CA, for the plaintiff-appellant; A. Wickers of San Francisco, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

11) CONTRACTS: Fanucchi & Limi Farms v. United Agri Products, 02-17525 (9th Cir. July 14, 2005). The plaintiffs, Fanucchi & Limi Farms, sued United Agri Products Financial Services, Inc. ("United") for breach of contract and promissory fraud. The district court granted United summary judgment. The plaintiffs appealed that summary judgment, and also appealed an associated grant of attorneys' fees. The USCA concluded that the novation theory providing one basis for the breach of contract claim should have survived summary judgment. It thus reversed and remanded to allow the breach of contract claim to go forward on a novation theory. The USCA otherwise affirmed the summary judgment. Judge Beezer concurred in this result, but wrote separately to express his understanding of novation under California law and how that law applied to this case. In his view, California law instructs that the rejection of the plaintiffs' novation theory was not proper on summary judgment, but that the plaintiffs faces a substantial burden at trial to demonstrate that such a novation actually occurred. Beezer (concurring), W. Fletcher (author), and Fisher, Circuit Judges. T. Anton of Bakersfield, CA, for the plaintiffs-appellants; E. Jones of Denver, CO, for the defendant-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

12) BUSINESS TORTS / DAMAGES: Southern Union Co. v. Southwest Gas Corp., 03-16649 (9th Cir. July 13, 2005). Irvin, a citizen of Arizona, appealed a judgment of the District Court for Arizona in favor of Southern Union Company, a Delaware corporation, on Southern Union's claims of tortious interference with a business expectancy and tortious interference with contractual relations, as a result of which Southern Union was ultimately awarded $390,072 in compensatory damages and $60,000,000 in punitive damages. Southern Union cross-appealed the district court's decision to keep its claim of lost profits from the jury. The USCA held that the appeals were timely filed, and the compensatory damage award should be affirmed, and that the punitive damages were constitutionally disproportionate to the harm found. Reinhardt, Noonan (author), and Fernandez (dissenting in part), Circuit Judges. T. Ferguson of Tulsa, OK, for the plaintiff-appellee; B. Richard of Miami, FL, for the defendant-appellant.(Download the full text of this decision at www.ce9.uscourts.gov/)

13) TELECOMMUNICATIONS: Verizon California, Inc. v. Peevey, 04-15155 (9th Cir. July 6, 2005). At issue here was whether an incumbent local exchange carrier's challenge to nominally "interim" rates for access to its network by competitive local exchange carriers, which rates are set by a state utilities commission pursuant to the Telecommunications Act of 1996, is ripe for judicial review even though such rates are subject to later adjustment by the state utilities commission ("a true-up"). When the incumbent local exchange has cognizable claims which cannot and will not be compensated by a true-up, the USCA said it will hold that such a challenge is ripe for judicial review. Concurring, Judge Bea noted that, although he joined in the majority's holding and conclusion that Verizon's claims are ripe for judicial review, he did not find the majority's distinction of US West Communications v. MFS Intelenet, 193 F.3d 1112 (9th Cir. 1999), compelling. Nevertheless, Judge Bea found US West to be distinguishable on a different basis, and wrote separately to articulate that basis and also to respond to the many arguments advanced by the California PUC and intervenors in support of their view that Verizon's claims are not ripe for judicial review even independent of US West. Noonan (author) and Bea (concurring), Circuit Judges, and Jones, District Judge. H. Weissmann of Los Angeles, CA, for the plaintiff-appellant; R. Wu of San Francisco, CA, for the defendants-appellees; C. Barrad of San Francisco, CA, for the intervenor.(Download the full text of this decision at www.ce9.uscourts.gov/)

14) MAD COW DISEASE: Ranchers Cattlemen Action Legal Fund United Stockgrowers of America v. U.S. Dept. of Agriculture, 05-35264 (9th Cir. July 25, 2005). At issue here was whether the district court erred in issuing a preliminary injunction prohibiting the implementation of a regulation of the U.S. Dept. of Agriculture ("USDA") permitting the resumption of the importation of Canadian cattle into the United States. The USCA concluded that it did and thus reversed the district court. Tashima (author), Paez, and Callahan, Circuit Judges. M. Stern of Washington, DC, for the defendants-appellants; R. Frye of Washington, DC, for the plaintiff-appellee(Download the full text of this decision at www.ce9.uscourts.gov/) [See Memo decision #9 below.]

15) FORFEITURE: USA v. One Sentinel Arms Striker-12 Shotgun, 04-35360 (9th Cir. July 26, 2005). In this civil in rem forfeiture action the U.S. sought the forfeiture of defendant's Striker-12 shotgun, on the basis that the gun is a "destructive device" possessed in violation of the National Firearms Act. The claimant filed a claim of interest and moved to dismiss the complaint for failure to state a claim, arguing that the Bureau of Alcohol, Tobacco and Firearms ("ATF") cannot properly classify the Striker-12 shotgun as a "destructive device" pursuant to 26 USC Sec. 5845(f)(2), and that Congress unconstitutionally delegated legislative authority to the ATF. The district court found that the U.S. had properly stated a claim for forfeiture and denied the claimant's motion to dismiss. Finding the claimant's arguments to be without merit, the USCA affirmed. Rymer and Tashima, Circuit Judges, and Weiner (author), District Judge. R. Gardiner of Fairfax, VA, for the claimant; AUSA K. Immergut of Portland, OR, for the appellee United States of America. (Download the full text of this decision at www.ce9.uscourts.gov/)

16) INTERNATIONAL CHILD ABDUCTION: Gaudin v. Remis, 03-15687 (9th Cir. July 18, 2005). At issue here was whether two minor children abducted by their father in Canada and brought to the United States, should be returned to Canada under the International Child Abduction Remedies Act ("ICARA") and the Hague Convention on the Civil Aspects of International and Child Abductions. In an earlier decision, the USCA held that the ICARA and the Convention cannot be invoked when the petitioner moves permanently to the same country in which the abductor and the children are located. The parties disputed whether Gaudin had actually moved permanently to Hawaii, however. The USCA thus remanded to the district court for it to make that determination. The district court found that Gaudin had indeed moved permanently, but she appealed and another Ninth Circuit panel reversed, holding that "domicile" is the appropriate measure of whether one has moved permanently to a new jurisdiction and that Gaudin's temporary immigration status prevented her from establishing domicile in the United States. The USCA thus concluded that the case is not moot. On the merits of the district court's refusal to order the children's return, the USCA held that the matter had to be remanded as the district court must consider the effect of any possible remedies in light of circumstances as they exist today, not as they were five years ago. Thompson, O'Scannlain (author), and Berzon, Circuit Judges. P. Lynch of Honolulu, HI, for the petitioner; C. Chang of Honolulu, HI, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

17) FAMILY LAW: Tellis v. Alaska Airlines, Inc., 04-35137 (9th Cir. July 12, 2005). Tellis appealed the district court's summary judgment in favor of Alaska Airlines on his Family Medical Leave Act ("FMLA") claims. He maintained that he raised a genuine issue of material fact as to whether his cross-country trip to retrieve the family vehicle during his wife's late-state pregnancy difficulties, and his calling her on the phone during the three and a half days he was away, were "to care for" his wife under the FMLA and thus a protected absence from his employment. The USCA concluded that, as a matter of law, Tellis's trip and phone calls were not "to care for" his wife. His absence from work during that time thus was not protected by the FMLA. The USCA affirmed the district court's judgment in favor of Alaska Airlines. Hug, Thompson (author), and McKeown, Circuit Judges. P. Cogan of Seattle, WA, for the plaintiff-appellant; J. James of Bellevue, WA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

18) FAMILY LAW / NATIVE AMERICAN LAW: Doe v. Mann, 04-15477 (9th Cir. July 19, 2005). Mary Doe challenged California's jurisdiction to terminate her parential rights over her Indian child, Jane Doe, who was domiciled on the Elem Indian Colony reservation at the time she was removed from Mary's custody by the Lake County Department of Social Services. The case arose under the Indian Child Welfare Act ("ICWA"), which was passed in 1978 to ensure the tribes a role in adjudicating child custody proceedings involving Indian children. The ICWA provides that tribes will have exclusive jurisdiction over child custody proceedings involving Indian children domiciled or residing on the reservation "except where such jurisdiction is otherwise vested in the State by existing Federal law." Under one such federal law, 18 USC Sec. 1162(a) and 28 USC Sec. 1360(a), commonly known as "Public Law 280," California is vested with broad criminal and certain civil jurisdiction over Indians. This case presented an issue of first impression for the federal courts, requiring that Public Law 280's grant of certain jurisdiction to California over Indians be reconciled with the exclusive jurisdiction granted by tribes by ICWA over child custody proceedings involving Indian children domiciled on Indian reservations. As a threshold matter, the USCA concluded that the federal courts have jurisdiction under 28 USC Sec. 1331 and, in conjunction with the ICWA, may use that jurisdiction to review the state court judgment terminating Mary's parental rights; the Rooker-Feldman doctrine did not bar the district court from exercising jurisdiction. On the merits, the USCA concluded that ICWA does not provide the Elem Indian Colony with exclusive jurisdiction over this child dependency proceeding involving an Indian child. The USCA thus affirmed the district court's entry of judgment in favor of the State of California. Trott and McKeown (author), Circuit Judges, and Shadur, District Judge. J. Bleich of San Francisco, CA, for the plaintiff-appellant; DAG M. Le Forestier of Sacramento, CA, for the defendants-appellees; C. Todd of Berkeley, CA, for the intervenor.(Download the full text of this decision at www.ce9.uscourts.gov/)

19) NATIVE AMERICAN LAW: Hoopa Valley Indian Tribe v. Ryan, 03-16940 (9th Cir. July 8, 2005). In an effort to address ongoing declines in salmon and steelhead populations in the Trinity River basin, the Bureau of Reclamation adopted a multifaceted restoration program. The Hoopa Valley Indian Tribe sought funding to implement many of the proposed restoration projects under the mandatory contracting provisions of the Indian Self-Determination and Education Assistance Act. After the Bureau refused to execute mandatory contracts for the Tribe's proposals, the Tribe brought this suit. On cross-motions for summary judgment, the district court held that the program at issue is not "for the benefit of Indians because of their status as Indians," and thus that they are not eligible for mandatory contracts. The USCA affirmed. Hug (author), Thompson, and Rymer, Circuit Judges. K. McGaw of Seattle, WA, for the appellant; J. Koppel of Washington, DC, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

20) IMMIGRATION: USA v. Hermoso-Garcia, 04-30196 (9th Cir. July 7, 2005). The defendant was convicted of being an alien who reentered the U.S. after deportation without permission. He appealed the district court's denial of his motion to dismiss the indictment and the imposition of a 16-level increase under Sentencing Guidelines Sec. 2L1.2(b)(1)(A)(ii), and the imposition of a 63-month sentence. The USCA affirmed the conviction but remanded the sentence in light of USA v. Booker, 125 S.Ct. 738 (2005), and USA v. Ameline, 02-30326, 2005 WL 1291977 (9th Cir. June 1, 2005) (en banc). The USCA noted that although it agreed that the 16-level enhancement was proper under then then-mandatory sentencing guidelines, it could not automatically affirm the defendant's sentence because the federal Sentencing Guidelines are no longer mandatory. The USCA remanded the defendant's sentence to the district court for the district court to determine whether it would have sentenced the defendant differently under an advisory Guidelines system. If so, the USCA instructed that the district court shall vacate the defendant's sentence and re-sentence him under the post-Booker advisory Guidelines; if not, the sentence shall remain undisturbed. O'Scannlain, McKeown, and Bea (author), Circuit Judges. N. Marchi of Kennewick, WA, for the defendant-appellant; J. McDevitt of Yakima, WA, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

21) IMMIGRATION: Singh v. Gonzales, 03-72494 (9th Cir. July 29, 2005). This case presented a due process challenge to the Notice of Appeal and summary dismissal procedures employed by the Board of Immigration Appeals. For more than 30 years, BIA regulations have authorized summary dismissal of appeals in which the petitioner fails to adequately specify the grounds for error. The regulations were later amended to also authorize summary dismissal where the petitioner indicates an intend to file a brief, but subsequently fails either to file the brief or explain his or her failure to do so. In this appeal, the petitioner claims that both regulations operated to violate his due process rights. The USCA noted that, while in the past it has criticized the potential for confusion posed by the BIA's strict specificity requirement, the amended regulation authorizing dismissal for failure to file a brief did not suffer from the same defects. Moreover, the actions of the petitioner's counsel in this case persuaded the USCA that, rather than a due process violation based on the BIA's summary dismissal procedures, the petitioner alleged a classic case of ineffective assistance of counsel. The USCA thus denied the petitioner's due process claim based on the summary dismissal, but remanded to the BIA for further consideration of his due process ineffective assistance of counsel claim. Wallace, Rawlinson, and Bybee (author), Circuit Judges. M. Guajardo of San Francisco, CA, for the petitioner; P. Keisler of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

22) CIVIL RIGHTS / ATTORNEYS' FEES: Bailey v. County of Riverside, 03-56545 (9th Cir. July 8, 2005). This appeal followed a verdict and award of attorneys' fees in an action for excessive force under 42 USC Sec. 1983 and for negligence under California state law. The case arose from an episode in which the defendants forcibly ejected the plaintiff from an adult bookstore and arrested him. The principal issue on the merits related to the sufficiency of the evidence supporting the jury's negligence verdict in favor of the plaintiff. The defendants also maintained that the motion for attorneys' fees was untimely. The USCA affirmed the judgment and the award of fees. Schroeder (author), Pregerson, and Trott, Circuit Judges. C. Lockwood of San Bernardino, CA, for the defendants-appellants; W. Hulsy of Santa Ana, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

23) EXTRADITION / SOVEREIGNTY: Wang v. Masaitis, 04-55772 (9th Cir. July 27, 2005). Under the Treaty Clause of the Constitution, the U.S. may enter into a "treaty" with a non-sovereign entity, such as Hong Kong. The USCA thus upheld the validity of the "Agreement Between the Government of the United States of America and the Government of Hong Kong for the Surrender of Fugitive Offenders." The USCA also held that a magistrate has jurisdiction under the Federal Magistrates Act to issue a Report and Recommendation regarding a habeas petition without the defendant's explicit consent. Dissenting, Judge Ferguson thought that the question of whether the President may enter into treaties with non-sovereigns is left to the politically accountable branches of government; he thought that in the present case, the majority announced a flawed and unnecessary constitutional ruling on this issue and that it should have dismissed the petitioner's appeal for lack of justiciability. Ferguson (dissenting), Noonan, and Hawkins (author), Circuit Judges. H. Sze of Santa Ana, CA, for the petitioner; M. Krause of Los Angeles, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

24) JURY BIAS: Sims v. Rowland, 03-17256 (9th Cir. July 20, 2005). At issue here was whether the California Court of Appeal's failure to hold an evidentiary hearing sua sponte when presented with evidence of juror bias is contrary to, or an unreasonable application of, clearly established federal law as determined by the U.S. Supreme Court. 28 USC Sec. 2254(d)(1) (2000). The USCA held that it is not, noting that it "is simply untenable for us to conclude that the state court was 'objectively unreasonable' in refusing to find that the trial judge was required to hold a hearing in this case when we ourselves have clearly state that a hearing is 'not mandated every time there is an allegation of jury bias.'" Tracey v. Palmateer, 341 F.3d 1037, 1044. The USCA thus affirmed the decision of the district court denying the applicant's habeas petition. Wallace, Rawlinson, and Bybee (author), Circuit Judges. W. Brown of San Francisco, CA, for the petitioner; J. Friedlander of San Francisco, CA, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

25) BRADY ERROR: Silva v. Brown, 04-99000 (9th Cir. July 26, 2005). The State of California charged and tried Silva for two brutal homicides, along with kidnapping, robbery, and gun offenses, but did not disclose to the defense that the plea agreement that secured the testimony of the prosecution's star witness, Thomas, required Thomas not to undergo a psychiatric evaluation before testifying. As a result, the jury never learned of (1) the considerable question as to Thomas' competence to testify or of (2) the secret deal the Lassen County District Attorney made to ensure that question remained unanswered until after Silva was tried. At issue on appeal was whether the failure to disclose that deal was Brady error. The USCA concluded that it was. It thus reversed the judgment of the district court and remanded with instructions to grant the writ of habeas corpus with respect to Silva's murder conviction. B. Fletcher (author), Thomas, and Wardlaw, Circuit Judges. P. Trevino of Los Angeles, CA, for the petitioner; T. Torreblanca of San Diego, CA, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

26) PSYCHOTHERAPIST-PATIENT PRIVILEGE: USA v. Romo, 04-30131 (9th Cir. July 5, 2005). Romo appealed his conviction for threatening the President in violation of 18 USC Sec. 871(a). Although he confessed to a licensed counselor that he had made such a threat, in court he claimed that the counselor's trial testimony was admitted in violation of the psychotherapist-patient privilege. The USCA held that the testimony was not privileged because Romo's statement to the counselor did not occur during the course of diagnosis or treatment. Judge Fletcher concurred in the result but thought it was not necessary to reach the privilege issue to decide the case as overwhelming evidence had been presented at trial that Romo violated Sec. 871, including the testimony of a Secret Service Agent's testimony that Romo confessed to sending a threatening letter and a signed transport sheet on which Romo repeated his threat against the President, signed his name, and stamped his thumb print. B. Fletcher (concurring), McKeown (author), and Gould, Circuit Judges. AFPD R. Hammond of Billings, MT, for the appellant; AUSA J. Seykora of Billings, MT, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

27) SENTENCING: Schardt v. Payne, 02-36164 (9th Cir. July 8, 2005). At issue here was the novel question of whether a State of Washington prisoner may challenge the validity of his sentence retroactively on the ground that the trial court based its sentencing decision on facts that were not found to be true by a jury in violation of the constitutional principle subsequently announced in Blakely v. Washington, 124 S.Ct. 2531 (2004). The USCA concluded that Blakely does not apply retroactively to convictions that become final prior to its publication. It also held that the petitioner failed to show that he was ineffectively represented by his trial counsel. Alarcon (author), W. Fletcher, and Rawlinson, Circuit Judges. S. McCloud of Seattle, WA, for the petitioner; D. Sheythe of Olympia, WA, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

28) VICTIM RESTITUTION: USA v. Kaczynski, 04-10158 (9th Cir. July 21, 2005). The "Unabomber," Ted Kaczynski, pled guilty to a series of coldly calculated bombings that resulted in the loss of innocent life and numerous life-altering injuries. The plea agreement that spared his own life included a restitution order of some $15 million for the benefit of his victims and their families. He sought the return of his papers and other property seized during a search of his Montana cabin in 1996 so that he might donate them to the University of Michigan for inclusion in its collection of protest literature. Arguing that Kaczynski should not profit from his criminal notoriety, the government objected to returning the property, claiming that the property was of negligible value and nonetheless needed to satisfy Kaczynski's restitution order. The government's restitution plan, yet to be reduced to a detailed writing, seems to be: (1) to hold a private sale of Kaczynski's property; (2) ascribe thereby a value to it; and then (3) deposit government (i.e., taxpayer) funds equal to that value in an account for the benefit of Kaczynski's victims and their families. Because the government's plan was inconsistent with the purpose of victim restitution, and with Ninth Circuit precedent specifying what must be done with a defendant's property once it is no longer needed as evidence, the USCA remanded the matter to the district court for the government to propose a detailed, written plan to dispose of the property in a commercially reasonable manner calculated to maximize the monetary return to Kaczynski's victims and their families. Schroeder, Canby, and Hawkins (author), Circuit Judges. J. Balazs of Sacramento, CA, for the defendant; A. Martel of Sacramento, CA, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/)

29) HABEAS CORPUS: Belmontes v. Brown, 01-99018 (9th Cir. July 15, 2005). Earlier, the USCA held that there existed a reasonable probability that as a result of instructional error the jury did not consider constitutionally mitigating evidence at the penalty phase. The USCA remanded to the district court for the issuance of a writ of habeas corpus vacating the death sentence. The warden petitioned the Supreme Court for a writ of certiorari. The Supreme Court granted the writ, vacated the USCA's judgment, and remanded for additional consideration in light of Brown v. Payton, 125 S.Ct. 1432 (2005). On remand, the USCA concluded that Payton did not affect its holding. Notwithstanding the similarity of the factual and legal issues, Payton was a post-AEDPA case and was decided under the highly deferential AEDPA standard, while the present case is pre-AEDPA and is determined by the application of the ordinary rules of constitutional interpretation. Under AEDPA, if a state court reasonably determines the facts and correctly identifies the governing federal standard, a federal court can grant a writ of habeas corpus only if the state court was objectively unreasonable in its application of clearly-established Supreme Court law. Such is not the case when AEDPA does not apply. In such circumstances, the USCA said it simply resolved the legal issues on the merits, under the ordinary rules. The issue here is not the AEDPA issue confronted in Payton, but whether the state court engaged in an "incorrect" application of federal law. The USCA found no reason to change its judgment. Judge O'Scannlain thought the majority had properly affirmed the district court's determination that there was no constitutional error in Belmontes's conviction for first-degree murder with special circumstances in state court. However, as to the penalty phase, Judge O'Scannlain thought that the majority strained mightily, and unpersuasively, to perceive constitutional error in the comprehensive and perfectly proper jury instructions given by the state trial judge. Because there no such error existed, and the Supreme court has expressly told the USCA so on two separate occasions, Judge O'Scannlain dissented from the majority's reversal of the district court's denial of the petition for the writ with respect to the penalty phase. Reinhardt (author), O'Scannlain (dissenting in part), and Paez, Circuit Judges. E. Multhaup of Mill Valley, CA, for the petitioner; DAG M. Johnson of Sacramento, CA, for the respondent-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

30) HABEAS CORPUS: Tan v. Runnels, 04-55775 (9th Cir. July 7, 2005). Wardens Runnels and Pliler appealed the district court's decision to grant the petitioners' habeas petitions. In reaching its decision, the district court, purporting to apply the standard of review required by the Anti-Terrorism and Effective Death Penalty Act, found fault with the California Court of Appeal's decision to affirm the petitioners' convictions and conclusion that the prosecutor did not engage in prejudicial misconduct in the petitioners' joint trial by (1) arguing facts not in evidence, (2) presenting as true a fact that was false, and (3) appealing inappropriately to the jurors' passions and prejudices. The USCA disagreed with the district court because it concluded without reservation that the state court's determination that there was no prosecutorial misconduct was not an unreasonable application of clearly established federal law, and was not based on an unreasonable determination of the facts. Even if the prosecutor's statements were improper, which they were not, the trial court's numerous and thorough instructions eliminated any risk that the petitioners were denied due process. The USCA thus reversed the district court's grant of the habeas petitions. Schroeder, Pregerson, and Trott (author), Circuit Judges. DAG V. Wilson of Los Angeles, CA, for the respondents-appellants; J. Blair of El Segundo, CA, for the petitioners.(Download the full text of this decision at www.ce9.uscourts.gov/)

31) PRISONERS' RIGHTS: Warsoldier v. Woodford, 04-55879 (9th Cir. July 29, 2005). California prisoner Warsoldier, a Cahuilla Native American, appealed from a district court's denial of his request for a preliminary injunction in his suit challenging the hair grooming policy of California Department of Corrections ("CDC"), which requires that all male inmates maintain their hair no longer than three inches. Warsoldier refused to adhere to the grooming policy because of his sincere religious belief that he can cut his hair only upon the death of a loved one. He maintained that the policy, and CDC's refusal to permit a religious exception, violated his right to religious freedom. The USCA reversed the district court's denial of Warsoldier's request for a preliminary injunction. Religious Land Use and Institutionalized Persons Act of 2000 requires that CDC use the least restrictive means necessary to achieve its compelling interest in prison safety and security. The policy at issue was sweeping: it applied to all male inmates, but to no female inmates regardless of a female inmate's security threat; it did nothing to distinguish between inmates housed at maximum security facilities and those low level offenders in minimum security institutions; and it provided absolutely no accommodation for religious belief. Moreover, the CDC had utterly failed to demonstrate that the disputed grooming policy was the least restrictive means necessary to ensure prison safety and security. Because Warsoldier established a likelihood of success on the merits and the possibility that the grooming policy would cause him to suffer an irreparable injury, the USCA reversed and remanded the district court's denial of his request for a preliminary injunction prohibiting CDC from enforcing its hair grooming policy. Pregerson (author), Tashima, and Paez, Circuit Judges. A. Huang of Los Angeles, CA, for the plaintiff-appellant; J. Rittmayer of Los Angeles, CA, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)