PUBLISHABLE OPINIONS

2) COPYRIGHTS: LGS Architects, Inc. v. Concordia Homes of Nevada, 04-16677 (9th Cir. Jan. 11, 2006). At issue here was whether an architectural firm, LGS, was entitled to a preliminary injunction prohibiting a client, Concordia, from using its copyrighted designs on projects falling outside the scope of their licensing agreement. Without setting forth findings of fact or conclusions of law, the district court denied the preliminary injunction motion on the ground that LGS did not have a likelihood of success on the merits. Finding that LGS was likely to succeed on the merits of its copyright infringement claim, the USCA reversed and remanded, directing the district court to enter a preliminary injunction prohibiting Concordia from reproducing, distributing, publicly displaying, or creating derivative works based on LGS's architectural plans. Beezer, O'Scannlain (author), and Kleinfeld, Circuit Judges. M. McCue of Las Vegas, NV, for the appellants; J. Naylor of Las Vegas, NV, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

3) ENVIRONMENTAL LAW / CERCLA: Carson Harbor Village, Ltd. v. County of Los Angeles, 04-55024 (9th Cir. Jan. 12, 2006). Carson Harbor Village appealed the district court's grant of summary judgment for the defendant, Unocal Corporation, denying Carson recovery of cleanup costs under CERCLA. Carson maintained that there are genuine issues of material fact regarding whether it substantially complied the National Oil and Hazardous Substances Pollution Contingency Plan. Carson also appealed the district court's exclusion of proffered documentary evidence, arguing that it was properly authenticated and that the district court abused its discretion in not considering late-filed declarations. The USCA exercised jurisdiction under 28 USC Sec. 9613 and affirmed the summary judgment for Unocal. Carson failed to put forth sufficient evidence to show there remained genuine issues of material fact regarding whether it substantially complied with the public participation and feasibility study requirements of the National Contingency Plan. Carson afforded the public no opportunity to comment on, or even learn of, the proposed remediation plan. The slight involvement of the Regional Water Quality Control Board in overseeing and approving the cleanup was not an effective substitute for Carson's failure. In addition, Carson utterly failed to produce any evidence that it in any way complied with the feasibility study requirement of the National Contingency Plan. The sole indication that alternatives besides removal were considered was Dr. Amini's declaration that McLaren-Hart, a national environmental engineering consulting firm, had thought about other options. That alone did not substantially comply with the feasibility study requirement of the National Contingency Plan. Accordingly, Carson had not substantially complied with the Plan, and the district court correctly held that Unocal was entitled to summary judgment. Hall (author), O'Scannlain, and Paez, Circuit Judges. T. Casparian of Santa Monica, CA, for the appellant; K Weissmuller of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

4) COMMUNICATIONS LAW: Qwest Communications, Inc. v. City of Berkeley, 03-15852 (9th Cir. Jan. 12, 2006). The City of Berkeley appealed the district court's summary judgment ruling that its Interim Telecommunication Carriers Ordinance is preempted by the Federal Telecommunications Act of 1996. The district court ruled that the Ordinance is preempted by the Act because the Ordinance imposes an onerous burden on telecommunications providers seeking entry into the telecommunications market in Berkeley. It also held that the Ordinance is not saved by the Act's "safe harbor" clause because the regulations that create this prohibiting effect do not merely regulate Berkeley's public rights-of-way but regulate the telecommunications companies themselves. The USCA affirmed. Section 253(a) of the Act preempts the Ordinance because the Ordinance contains regulations and requirements that have the effect of prohibiting telecommunications companies from providing telecommunications services in Berkeley. Moreover, the offending provisions are not saved by the Act's "safe harbor" clause because they are not regulations that manage the public rights-of-way, but regulations that allow the City to manage the telecommunications companies themselves by requiring the companies to certify and document their legal and technical qualifications. Trott (author), T.G. Nelson, and Paez, Circuit Judges. J. Melching of Costa Mesa, CA, for the defendants-appellants; D. Goodnight of Seattle, WA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

5) COMMUNICATIONS LAW: Qwest Corporation v. City of Surprise, 04-16940 (9th Cir. Jan. 13, 2006). Qwest appealed the district court's grant of summary judgment in favor of the cities of Tucson, Miami, Globe, and Nogales. It maintained that the cities' telecom-munications licensing and franchise ordinances were preempted by Sec. 253 of the Federal Telecommunications Act of 1996. Qwest ar-gued that the cities charged an improper rental fee for the use of the cities' right-of-way. The USCA disagreed. The cities' subsequent amendments to the ordinances exempted Qwest from the licensing and franchise ordinances, rendering moot Qwest's claims challenging these ordinances. In addition, the charges that the cities imposed upon Qwest were taxes, not fees. The Tax Injunction Act thus deprived the district court of jurisdiciton to consider their validity. Trott (author), T.G. Nelson, and Paez, Circuit Judges. D. Goodnight of Seattle, WA, for the plaintiff-appellee; J Van Eaton of Washington, DC, for the City of Tucson.(Download the full text of this decision at www.ce9.uscourts.gov/)

6) COMMUNICATIONS LAW: Sprint PCS Assets v. City of La Canada, 05-55014 (9th Cir. Jan. 17, 2006). At issue here was whether a city could, consistent with California and federal law, deny a telecommunications company a permit to construct and install a wireless antenna based on aesthetic considerations alone. The Telecom Act requires permit denials be supported by substantial evidence. 47 USC Sec. 332(c)(7)(B)(iii) (2005). Because here the City of La Canada overstepped its regulatory authority under state law, its wireless ordinance is invalid, and no evidence supported the City's denial of a permit. Thus, the district court's conclusion that substantial evidence supported the City's permit denial was reversed. The City's proffered interpretation used the Telecom Act to grant broad regulatory authority to cities or municipalities that would otherwise be constrained by state law. But this reading of the "State and local government" language would set cities free to regulate to the extent of their traditional police power, and that result would be antithetical to the purpose of the Telecom Act, whose goal is to promote competition and higher quality in American telecommunications services and 'encourage the rapid deployment of new telecommunications technologies. City of Ranch Palos Verdes v. Abrams, 125 S.Ct. 1453, 1455 (2005). Hall, O'Scannlain (author), and Paez, Circuit Judges. J. Flynn of Irvine, CA, for the appellant; S. Grossberg of Rancho Cucamonga, CA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

7) FAIR CREDIT REPORTING ACT: Reynolds v. Hartford Financial Services, 03-35695 (9th Cir. Jan. 25, 2006). 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. At issue here was whether the FCRA's adverse action notice requirement applies to the rate first charged in an initial policy of insurance. The USCA held that it did. The Act requires that an insurance company send the consumer an adverse action notice whenever a higher rate is charged because of credit information it obtains, regardless of whether the rate is contained in an initial policy or an extension or renewal of a policy and regardless of whether the company had previously charged the consumer a lower rate. Reinhardt (author), Berzon, and Bybee, 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/)

8) BANKRUPTCY: In re DeRoche, 04-15258 (9th Cir. Jan. 17, 2006). This case presented the issue of whether Chapter 7 debtors may recover, pursuant to state statute, attorneys' fees incurred in bankruptcy discharge litigation. The USCA affirmed the district court, concluding that attorneys' fees are not available for litigating federal bankruptcy issues. Reinhardt and Thomas (author), Circuit Judges, and Restani, Court of Intl. Trade Judge. A. NewDelman of Phoenix, AZ, for the appellant; AAG J. Samuelson of Phoenix, AZ, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

9) BANKRUPTCY: In re Burnett, 04-15503 (9th Cir. Jan. 12, 2006). The Burnetts appealed a decision of the Bankruptcy Appellate Panel which had reversed a bankruptcy court's disallowance of three claims asserted by Resurgent Capital Services in the Burnetts' Chapter 13 bankruptcy case. The BAP held that Resurgent, an assignee creditor, was not required to disclose the amount it paid for three assigned claims in order for the claims to be allowed. The Burnetts did not appeal that holding, but maintained that the BAP should not have reached the issue of whether the consideration paid for the claims is relevant to the allowance of the claims. They asserted that the BAP should instead have held that the bankruptcy court acted within its discretion when it denied Resurgent's motion to amend its order. They also argued that the BAP improperly decided the case on an inadequate record and, at the very least, should have remanded for further proceedings in the bankruptcy court. The USCA found jurisdiction under 28 USC Sec. 158(d), but did not reach the merits of the Burnetts' arguments because they waived all of the issues by not putting them forth until their case reached the USCA. Moreover, they did not assert, nor did the USCA find, any exceptional circumstances that would justify an exercise of discretion to consider those arguments. The USCA thus affirmed the BAP's decision. Trott (author), T.G. Nelson, and Paez, Circuit Judges. G. Giles of Reno, NV, for the appellant; M. Johnson of Las Vegas, NV, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

10) BANKRUPTCY / CALIFORNIA UNFAIR PRACTICES ACT: San Francisco v. PG&E Corp., 03-16976 (9th Cir. Jan. 10, 2006). At issue here was whether a lawsuit filed by the state Attorney General under Cal. Bus. & Prof. Code Sec. 17200 et seq., and seeking restitution to third parties pursuant to the California Unfair Practices Act constituted a police and regulatory power action that could not be removed to bankruptcy court under 28 USC Sec. 1452(a). Under the circumstances presented here, the USCA concluded that it did and reversed the judgment of the district court with instructions to remand the entire action to state court. Thomas (author), Paez, and Cal-lahan (dissenting in part), Circuit Judges. B. Lockyer of San Francisco, CA, for the Attorney General; D. Herrera of San Francisco, CA, for San Francisco.(Download the full text of this decision at www.ce9.uscourts.gov/)

11) LABOR LAW: National Treasury Employees Union v. Federal Labor Relations Authority, 04-72237 (9th Cir. Jan. 23, 2006). The National Treasury Employees Union petitioned for review of a FLRA decision that a proposal regarding geographically-based pay ("geo pay") was outside the Comptroller of the Currency's duty to bargain. The FLRA concluded that 12 USC Secs. 481 and 482 give the Comptroller sole and exclusive discretion to set the compensation for employees of the Office of the Comptroller of the Currency, and thus the Comptroller has no duty to bargain over the geo pay proposal. As the FLRA's conclusion was neither arbitrary nor capricious, the USCA affirmed. Kozinski and W. Fletcher, Circuit Judges, and Holland (author), District Judge. K. Adams of Washington, DC, for the petitioner; E. Warwick of Washington, DC, for the intervenor; J. Blandford of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

12) LABOR LAW: Mora v. Construction Laborers Pension Trust for Southern California, 04-55594 (9th Cir. Jan. 25, 2006). Mora and the class represented by him (collectively "Mora") appealed the judgment of the district court denying credits for hours of service giving rise to additional pension benefits from the defendant Construction Laborers Pension Trust for Southern California (the "Pension Trust"). Mora maintained that contributions made to the Construction Laborers' Trust for Southern California (the "Vacation Trust") should generate the service credits. The district court ruled that ERISA did not require the contributions to count toward service credits and granted the Pension Trust summary judgment. The USCA affirmed. Mora's contentions had a superficial attraction because of the name of the entity into which the contributions at issue were made. His arguments ends with the name. The payments were in fact made into a trust that held savings on his account. His suit was an attempt to make an end run around the union-employer trustees of the Pension Trust and was without a basis. Dissenting, Judge Pregerson thought that Department of Labor regulations allow employees to count hours of paid vacation as "hours of service," the currency in which hours are counted for pension purposes. The majority held that construction laborers cannot count their vacation benefits as "hours of service," because their vacation benefit comes from a trust fund as a lump sum of money, not from an employer as a set amount of vacation time. Judge Pregerson said he could not support this outcome. Pregerson (dissenting), Noonan (author), and Thomas, Circuit Judges. R. Weinstock of Ventura, CA, for the plaintiff-appellant; J. Miller of Los Angeles, CA, for the defendant-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

13) PENSION BENEFITS: Hamilton v. Washington State Plumbing & Pipefitting Industry Pension Plan, 04-35526 (9th Cir. Jan. 10, 2006). In this case of first impression, the USCA's challenge was to figure out what Congress meant in terms of surviving spouse bene-fits under ERISA. Two ERISA-governed pension funds and Mary Hamilton, the surviving spouse of Michael Hamilton a plan participant, appealed the district court's summary judgment and award of attorneys' fees to Michael's children from a previous marriage. Mary and the children claimed competing rights to survivor benefits. The district court found that the martial dissolution order, which required Michael to name the children as beneficiaries under the plans, was a valid Qualified Domestic Relations Order ("QDRO") under ERISA that took precedence over Mary's right to a Qualified Preretirement Survivor Annuity. Relying on the plain language of the statue, the USCA held that the purported assignment of pension rights did not meet the strict requirements of a QDRO. Even if the dissolution order is liberally construed as a QDRO, under the statutory language coupled with a complementary interpretation of the plans, surviving spouse benefits must be explicitly assigned to a former spouse in a QDRO in order to overcome the surviving spouse's right to an annuity under ERISA. Consequently, Mary prevails over the children. The USCA thus reversed the district court's judgment. Cudahy, T.G. Nelson, and McKeown (author), Circuit Judges. A. Senter of Seattle, WA, for the defendants-appellants; N. Scarpelli of Seattle, WA, for the plaintiffs-appellees; J. Meier of Seattle, WA, for the defendant-intervenor-appellant. (Download the full text of this decision at www.ce9.uscourts.gov/)

14) SIGN ADVERTISING RESTRICTIONS: G.K. Ltd. Travel v. City of Lake Oswego, 04-35416 (9th Cir. Jan. 26, 2006). The plaintiffs are owners of a pole sign used to advertise their travel business in the City of Lake Oswego. With the stated purpose to reduce visual blight and protect traffic and traveler safety, the City enacted a sign code regulating the type, size and design of all signs erected within its borders. The code prevents the plaintiffs from continuing to use their pole sign, because that form of sign is severely restricted. The plaintiffs challenged the constitutionality of the code, raising multiple as-applied and facial claims. The district court granted summary judgment to the City in large part. The USCA affirmed after considering five issues: 1) whether the sign code's regulation of pole signs is constitutional; 2) whether the sign code otherwise is a constitutional, content-neutral time, place or manner restrictions on speech; 3) whether the sign code's regulation of temporary signs in residential zones indicates an impermissible preference for commercial over noncommercial speech; 4) whether the sign code's permitting scheme is an unconstitutional prior restraint; and 5) whether the sign code, and specifically its design review clause allowing City officials to review signs for "compatibility," is unconstitutionally vague. In all respects, the USCA held the sign code a constitutional and permissible government regulation. Fisher (author), Gould, and Bea, Circuit Judges. J. Winston of Sherwood, OR, for the plaintiffs; T. Sercombe of Portland, OR, for the defendants.(Download the full text of this decision at www.ce9.uscourts.gov/)

15) SMALL BUSINESS ADMINISTRATION: Contract Management v. Rumsfeld, 04-15049 (9th Cir. Jan. 11, 2006). Contract Management Industries ("CMI") has provided custodial services at the Pearl Harbor Naval Base and Shipyard since 1985 under contracts which were awarded as small-business set-asides under the Small Business Act. In 2002, the Navy re-designated one of CMI's contracts under the Act's HUBZone Program upon finding that CMI is not a HUBZone small business. CMI thus faced the prospect of losing a portion of its custodial work with the Navy and brought suit to stop the Navy from awarding the solicitation to another company. The district court granted the government summary judgment. The USCA affirmed, finding that the SBA's regulations implementing the HUBZone Program properly accord with congressional intend under the SBA. The USCA thus found no reason to disturb the Navy's decision to deny CMI the opportunity to bid on the contract in question. B. Fletcher, Thompson, and Bea, Circuit Judges. Per Curiam. T. Power of Walnut Creek, CA, for the appellant; E. Miller of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

16) SEXUAL HARASSMENT / STATE SOVEREIGN IMMUNITY: Stanley v. Trustees of the California State University, 04-15134 (9th Cir. Jan. 11, 2006). Stanley, a former student at California State University, Sacramento, alleged that a professor and advisor sexually harassed her and that the harassment caused her to withdraw her enrollment in 1999. After following university complaint procedures, she filed an action in federal court in 2000, asserting both hostile environment and sexual harassment claims. She appealed from a judgment on the pleadings based upon statute of limitations and state sovereign immunity grounds. The USCA affirmed. Stanley has not been enrolled at the university since 2000 and has not alleged that she was subjected to any sexually-natured conduct at the university during the period when she was not present. The mere speculation that if she had returned, the environment would have been hostile was not sufficient to establish an act by a defendant within the limitations period. Moreover, her arguments conflated her desired remedy with a violation of Title IX in a manner that effectively vitiated the statute of limitations. Wallace (author), Trott, and Rymer, Circuit Judges. C. Carlock of Davis, CA, for the plaintiff-appellant; DAG P. Thompson of Sacramento, CA, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

17) CIVIL CONSPIRACY: Wasco Products, Inc. v. Southwall Technologies, 04-15171 (9th Cir. Jan. 13, 2006). Wasco Products appealed from the summary judgment granted to the appellees. Wasco sought to toll the applicable statutes of limitations because of an alleged civil conspiracy. The USCA decided the narrow question of whether Wasco was required to plead a civil conspiracy in order to raise the issue. It found that Wasco failed to allege that the appellees ever formed an agreement to misrepresent the properties of the sealant in question. Without any allegation that they agreed to commit a wrongful act, Wasco failed under federal law to allege the most basic and fundamental element of a civil conspiracy. Wasco thus could not toll the statute of limitations based on its allegations of civil conspiracy, which appeared for the first time in Wasco's response to the summary judgment motion. Wallace (author), Trott, and Rymer, Circuit Judges. T. Tate of San Francisco, CA, for the plaintiff-appellant; D. Scheidemantle of Los Angeles, CA, for the de-fendant-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

18) AIRLINE PASSENGER IDENTIFICATION POLICY: Gilmore v. Gonzales, 04-15736 (9th Cir. Jan. 26, 2006). Gilmore sued Southwest Airlines and the U.S. Attorney General, among others, alleging that the enactment and enforcement of the government's civilian airline passenger identification policy is unconstitutional. The ID policy requires airline passengers to present ID to airline personnel before boarding or be subjected to a search that is more exacting than the routine search that passengers who present ID encounter. Gilmore claimed that when he refused to present ID or be subjected to a more thorough search, he was not allowed to board his flight. He maintained that because the government refused to disclose the content of the ID policy, it is vague and uncertain and thus violates his right to due process. He also maintained that when he was not allowed to board the airplane, the defendants violated his right to travel, right to be free from unreasonable searches and seizures, right to freely associate, and right to petition the government for redress of grievances. The district court determined that Gilmore had standing to challenge only the ID policy, and not also policies such as the Consumer Assisted Passenger Prescreening System, and the No-Fly and Selectee lists. It also held that it lacked standing to hear Gilmore's due process challenge. After reviewing sensitive security information materials that the government filed ex parte and in camera, the USCA agreed that the district court lacked jurisdiciton and that Gilmore had standing to challenge only the ID policy. However, the USCA transferred Gilmore's complaint to the USCA pursuant to 28 USC Sec. 1631 and treated it as a petition for review. It thus addressed the merits of each of Gilmore's constitutional claims with respect to the ID policy. It held that neither the ID policy nor its application to Gilmore violated Gilmore's constitutional rights, and thus denied his petition. Trott, T.G. Nelson, and Paez (author), Circuit Judges. W. Simpich of Oakland, CA, for the plaintiff-appellant; J. Barrett of Los Angeles, CA, for the defendant-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

19) FOREIGN COMMERCE CLAUSE: USA v. Clark, 04-30249 (9th Cir. Jan. 25, 2006). At issue here was an issue of first impression regarding the scope of Congress's power under the Foreign Commerce Clause: whether Congress exceeded its authority "to regulate Commerce with foreign Nations," U.S. Const. Art I, Sec. 8, Cl. 3, in enacting a statute that makes it a felony for any U.S. citizen who travels in "foreign commerce" (i.e., to a foreign country) to there engage in an illegal commercial sex act with a minor. 18 USC Sec. 2423(c). The USCA held that Congress acted within the bounds of its constitutional authority. Traveling to a foreign country and paying a child to engage in sex acts are indispensable ingredients of the crime to which Clark pled guilty. The fact that Secs. 2423(c) and (f)2) meld these economic and criminal components into a single statute did not put the conduct beyond Congress's reach under the Foreign Commerce Clause. Dissenting, Judge Ferguson thought that, while the sexual abuse of children abroad is despicable, the court should not refashion the Constitution to address it. Section 2423(c), he thought, punishes private conduct fundamentally divorced from foreign commerce. Article I, Sec. 8, Cl. 3, while giving Congress broad authority over America's commercial relations with other nations, is not a grant of international police power. Judge Ferguson dissented from the majority's assertion that the Commerce Clause authorizes Congresses to regulate an activity with a bare economic component, as long as that activity occurs subsequent to some form of international travel. He added that Clark's conduct would not go unpunished, as the reasonable course of action remains of recognizing Cambodia's authority to prosecute Clark under its own laws. Hug, Ferguson (dissenting), and McKeown (author), Circuit Judges. AFPD M. Filipovic of Seattle, WA, for the defendant-appellant; AUSA H. Brunner of Seattle, WA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

20) MILITARY "STOP-LOSS" ORDERS: Doe v. Rumsfeld, 05-15680 (9th Cir. Jan. 12, 2006). Doe, a soldier in both the U.S. Army Reserve National Guard and the California State National Guard, challenged the President's "stop-loss" authority ordering him to active duty for a period longer than his enlistment. Doe made three arguments: First, he argued that the government did not satisfy the procedures required by 10 USC Sec. 12305 in extending his service. Second, he argued that Sec. 12305 is unconstitutional. Third, he argued that the "stop-loss" order conflicted with other law regulating members of the reserve military. The government maintained that the USCA need not address the merits of Doe's contentions because Doe received new orders, rendering his challenges moot. Although the USCA held that the case was not moot, it disagreed with Doe's substantive arguments and upheld the district court's denial of his petition for writs of habeas corpus and mandamus. It held that pursuant to Santiago v. Rumsfeld, 425 F.3d 549 (9th Cir. 2005) (as amended), the "stop-loss" order extending Doe's enlistment was a valid exercise of presidential power authorized by Sec. 12305(a). Section 12305 comports with the requirements of the Fifth Amendment's Due Process Clause and is a proper delegation of congressional power. Finally, the "stop-loss" order did not conflict with 10 USC Secs. 12103 and 12407(a) or 32 USC Secs. 302 and 303 and, even if conflicting, the language of Sec. 12305(a) would override those conflicting provisions. Wallace, Trott (author), and Rymer, Circuit Judges. M. Sorgen of San Francisco, CA, for the petitioner; H.T. Byron of Washington, DC, for the respondents. (Download the full text of this decision at www.ce9.uscourts.gov/)

21) ATTORNEYS' FEES: Pony v. Los Angeles, 03-56855 (9th Cir. Jan. 11, 2006). At issue here was whether a plaintiff bringing a suit under 42 USC Sec. 1983 could assign her right to seek attorney's fees to her attorney. The USCA concluded that she could not and thus affirmed the judgment of the district court. The USCA held that the provisions of the retainer agreement conveying Pony's right to seek or waive attorney's fees to Mitchell were void under California law. It reached this conclusion because Sec. 1983 sounds in tort and California law prohibits a plaintiff from transferring her substantive tort claims. Farris, Fernandez, and Bybee (author), Circuit Judges. M. Mitchell in pro per. C. Averbuck of Westlake Village, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

22) LOW-RENT HOUSING / ATTORNEYS' FEES: Affordable Housing v. City of Fresno, 04-15625 (9th Cir. Jan. 11, 2006). Affordable Housing and its affiliate Ashwood Construction Company (collectively "AHDC") appealed the judgment of the district court, following a jury trial, in favor of defendants City of Fresno and individual council members and citizens. Holding that the district court properly reconciled the special verdicts of the jury, the USCA affirmed the judgment. Holding that there should be further consideration of the citizens' claims for attorney fees, the USCA remanded that issue to the district court. Noonan (author), Rymer, and Gould, Circuit Judges. W. Davis of Los Angeles, CA, for the plaintiffs; D. Sloan of Fresno, CA, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/)

23) HEALTH INSPECTION WARRANTS: Dawson v. City of Seattle, 03-35858 (9th Cir. Jan. 24, 2006). The plaintiffs appealed the district court's orders denying their motion for summary judgment and granting summary judgment to the defendants, thereby extinguish-ing plaintiffs' 42 USC Sec. 1983 claims. The plaintiffs' at all pertinent times were tenants of boardinghouses inspected by public health officials and secured by Seattle police. The defendants were employees of the Seattle-King Country Department of Public Health, the Chief of Police, and the City of Seattle. The plaintiffs argued that the district court erred by granting the defendants' motions for summary judgment and that the plaintiffs were entitled to judgment as a matter of law because the search at issue violated the Fourth Amendment; because King County's failure to teach its public health inspectors a constitutionally proper procedure to obtain and execute search warrants caused the allegedly unconstitutional search; because, during the search, the plaintiffs were detained by the Seattle police unreasonably and thus unconstitutionally; and because the City's custom or policy of detaining a building's occupants pending a police search caused the allegedly unconstitutional detention. In addition, the plaintiffs argued that if they are not entitled to judgment as a matter of law, there is a genuine issue of material fact that would preclude summary judgment whether their detention pending search was reasonable. Finally, the plaintiffs maintained that the district court abused its discretion in awarding costs to the defendants. The USCA affirmed. Concurring in the result, Judge Fletcher thought that the search and detention exceeded what was necessary to guarantee the security and safety of the inspectors, the police officers, and the residents, and beyond what the search warrant permitted. Once boarders had been frisked and detained in a single room, the house was secure. There was no need for the police to undertake further searches. However, because Monell v. Dept. of Social Services, 436 US 658 (1978), controlled, Judge Fletcher thought the USCA should affirm the district court's grant of summary judgment to the defendants, but not also condone the alleged misconduct of the police. B. Fletcher (concurring) and Gould (author), Circuit Judges, and King, District Judge. J. Vera of Seattle, WA, for the plaintiffs; L. Gallagher of Seattle, WA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/)

24) PARTIAL-BIRTH ABORTION: Planned Parenthood Federation of America v. Gonzales, 04-16621 (9th Cir. Jan. 31, 2006). This appeal presented a challenge to the constitutionality of the Partial-Birth Abortion Ban Act of 2003, 18 USC Sec. 1531. The USCA concluded that both the Constitution and Supreme Court decisions require it to hold the Act, in its entirety, to be unconstitutional. It found that under Ayotte v. Planned Parenthood of N. New England, 04-1144 (U.S. Jan. 18, 2006), the only appropriate remedy was to enjoin enforcement of the Act. The USCA held that the Act lacked the health exception required of all abortion regulations in the absence of a medical consensus that the prohibited procedure is never necessary to preserve a women's health, imposes an undue burden on a woman's right to choose a previability abortion, and is impermissibly vague. The USCA thus affirmed the district court's grant of a permanent injunction. Reinhardt (author), Thomas, and W. Fletcher, Circuit Judges. E. Gartner of New York, NY, for the plaintiffs-appellees; P. Keisler of Washington, DC, for the defendant; D. Herrera of San Francisco, CA, for the plaintiff-intervenor-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

25) WORKERS' COMPENSATION / CONSTITUTIONAL LAW: Markham v. USA, 04-15616 (9th Cir. Jan. 17, 2006). At issue here was whether the district court lacked subject matter jurisdiction over Makham's complaint alleging constitutional violations in the han-dling of his injury claim by the Office of Workers' Compensation Programs of the U.S. Department of Labor ("OWCP"). Markham launched a broad indictment against various policies of the agency, labeling its practices a "campaign of terror." However, the USCA noted that rhetoric cannot transform an unreviewable administrative practice into a constitutional violation. This case presented a clear example of a litigant making wholly insubstantial constitutional allegations to frame otherwise unreviewable administrative decision. The USCA affirmed the dismissal of the complaint. Hawkins, McKeown (author), Clifton, Circuit Judges. S. Shaw of Honolulu, HI, for the appellant; AUSA T. Helper of Honolulu, HI, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

26) JURISDICTION / FORUM NON CONVENIENS: Tuazon v. R.J. Reynolds Tobacco Co., 04-35618 (9th Cir. Jan. 11, 2006). At issue here was whether R.J. Reynolds Tobacco Company ("Reynolds") may be sued in Washington state for its alleged participation in a worldwide conspiracy to deny the addictive and harmful effects of smoking. Tuazon was diagnosed with a chronic lung disorder in 2003 in his native Philippines. The same year, he established residence in Washington and brought suit against Reynolds for its alleged conduct that led to his current illness. Reynolds appealed the district court's denial of its motion to dismiss for lack of personal jurisdiction and on grounds of forum non conveniens. The USCA affirmed. Tuazon's claim represented an application of settled principles of personal jurisdiction. The debate over whether the public and private factors favor the Philippines or Washington as a forum is intensely fact-specific and the district court did not abuse its discretion in determining that these factors favored keeping the case in Washington. Cudahy, T.G. Nelson, and McKeown (author), Circuit Judges. K. Hourigan of San Francisco, CA, for the defendant-appellant; J. Ferguson of Bainbridge Island, WA, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

27) NATIVE AMERICAN LAW: Smith v. Salish Kootenai College, 03-35306 (9th Cir. Jan. 10, 2006). At issue here was whether a non-Indian plaintiff consents to the civil jurisdiction of a tribal court by filing claims against an Indian defendant arising out of activities within the reservation where the defendant is located. Smith, who is not a member of the Confederated Salish and Kootenai Tribes of the Flathead Reservation, filed a claim in tribal court against Salish and Kootenai College ("SKC") arising out of an automobile accident. After a jury returned a verdict in favor of SKC, Smith sought an injunction in federal court, alleging that the tribal court lacked subject matter jurisdiction. The tribal court had previously held that it had jurisdiction, and the district court agreed and denied the injunction. Concluding that Smith's suit was within the first exception of Montana v. USA, 450 US 544 (1981), and the rule in Williams v. Lee, 358 US 217 (1959), the USCA affirmed. Schroeder, Rymer, Hawkins, Silverman, Graber, Gould (dissenting), Paez, Berzon, Clifton, Bybee (author) and Callahan, Circuit Judges. R. Palmer of Missoula, MT, for the plaintiff; R. Phillips of Missoula, MT, for the defendant. (Download the full text of this decision at www.ce9.uscourts.gov/)

28) IMMIGRATION: Kumar v. Gonzales, 03-70191 (9th Cir. Jan. 23, 2006). Kumar, an Indian citizen, petitioned for review of a BIA order affirming, without an opinion, the denial of his applications for asylum, withholding of removal, and relief under the Convention Against Torture. He also sought review of the BIA's denial of his motion to reopen. The USCA held that the Immigration Judge erred in finding 1) that Kumar was not credible, 2) that he had not established a nexus between his past persecution and the protected grounds enumerated in 8 USC Sec. 1101(a)(42)(A), and 3) that he had failed to show a reasonable fear of future persecution. The USCA thus reversed the IJ's adverse credibility finding and held that Kumar had shown both past persecution on account of an imputed political opinion and a well-grounded fear of future persecution. It found Kumar statutorily eligible for asylum and remanded for the exercise of discretion on his asylum claim and for further consideration of his withholding of removal claim. Dissenting in part, Judge Kozinski thought that the IJ's finding that Kumar "attempted to pass of [his brother's injuries] as his own injuries" was supported substantial evidence, and, based on that finding alone, the IJ was justified in making an adverse credibility determination and concluding that fraudulent documents were used to support Kumar's claim to asylum. Judge Kozinski would uphold the IJ's adverse credibility determination and deny Kumar's petition for review. Reinhardt (author), Kozinski (dissenting in part), and Berzon, Circuit Judges. G. Sarin of Los Angeles, CA, for the petitioner; AAG P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

29) IMMIGRATION: Ray v. Gonzales, 03-72501 (9th Cir. Jan. 20, 2006). Ray, a native and citizen of India, sought asylum in the United States. However, an Immigration Judge denied his application for asylum, and the Board of Immigration Appeals summarily affirmed the IJ's decision because Ray failed to file a brief on appeal. Ray submitted to the BIA two motions to reopen his case, and the BIA denied both on procedural grounds. Ray next petitioned for review of the BIA's decision to deny his second motion to reopen. The USCA granted Ray's petition and remanded with instructions for the BIA to consider the merits of his first motion to reopen. Ray had the misfortune to hire two attorneys, if not three, who provided woefully inadequate legal assistance. At the same time, the BIA dismissed his pleadings on procedural grounds, using the blatant errors of the attorneys to avoid addressing the merits of his complaints against them. Because these attorneys violated Ray's due process rights, the USCA concluded that the BIA abused its discreiton in denying Ray's motion to reopen on procedural grounds. B. Fletcher (author), Gibson, and Berzon, Circuit Judges. A. Goncharsky of Tucson, AZ, for the petitioner; K. Cabral of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

30) IMMIGRATION: USA v. Alferahin, 04-10590 (9th Cir. Jan. 11, 2006). Osama Musa Alferahin appealed his conviction under 18 USC Sec. 1425(a) for knowingly procuring naturalization "contrary to law." The basis for his conviction was his failure to disclose on an ap-plication for permanent resident status that he had been previously married. On appeal, he maintained that the district court erred by failing to instruct the jury that Sec. 1425(a) contains a requirement of "materiality." He further maintained that his attorney's failure to obtain an instruction on the issue of materiality constituted a denial of his right to effective assistance of counsel under the Sixth Amendment. The USCA reversed the conviction and remanded for a new trial. It held that the submission of incomplete jury instructions was plain error and that Alferahin's attorney provided constitutionally deficient assistance when he declined an offer by the judge to instruct the jury on the element of materiality. Judge Berzon concurred in all but Sec. II.A of the majority's opinion and the attendant holding of plain error. She saw no reason to resolve the plain error / invited error question, which she also saw as more difficult than the majority suggested. She would not engage in a plain error analysis with regard to the materiality instruction. The holding that defense counsel did not provide constitutionally adequate assistance independently entitled Alferahin to a new trial and thus afforded him complete relief. B. Fletcher (author), Gibson, and Berzon (concurring), Circuit Judges. L. Tucker of Tucson, AZ, for the defendant-appellant; AUSA C. Cabanillas of Tucson, AZ, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

31) IMMIGRATION: Lin v. Gonzales, 04-70422 (9th Cir. Jan. 12, 2006). At issue in this asylum case was the nature of evidence re-quired to support an Immigration Judge's adverse credibility finding based on documentary evidence. The USCA reiterated the long-standing principle that such an adverse credibility finding must be supported by substantial evidence. The IJ's speculation as to what an official document should look like, conjecture about the significance of the missing details in the document, and musings as to the format of the document could not be regarded as the "reasonable, substantial, and probative evidence" required by the INS v. Elias-Zacarias, 502 US 478, 481 (1992). The USCA thus granted the petition and remanded to the BIA to review the IJ's discretionary denial of asylum. Hawkins, McKeown (author), and Clifton, Circuit Judges. B. Chen of Honolulu, HI, for the appellant; W. Minick of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

32) WARRENTLESS SEARCHES: USA v. Russell, 04-10681 (9th Cir. Jan. 30, 2006). At issue here was whether the emergency doctrine or implied consent could support a warrantless search of a home on suspicion that a 911 caller or lurking predator was inside. The USCA affirmed in part and remanded in part. Judge Thomas concurred in part and dissented in part. He agreed that an Ameline remand is appropriate. But he did not think that the emergency doctrine justified a warrantless search. O'Scannlain (author), Thomas (dissenting in part), and Tallman, Circuit Judges. Q. Denvir of Sacramento, CA, for the appellant; AUSA W. Wong of Sacramento, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

33) WARRANTLESS SEARCHES: USA v. Weaver, 04-50608 (9th Cir. Jan. 10, 2006). Weaver appealed the district court's denial of her motion to suppress evidence related to her conviction for embezzlement of mail by a postal employee in violation of 18 USC Sec. 1709. Because it concluded that the warrantless search of Weaver's vehicle was a contemporaneous incident of the custodial arrest of one of Weaver's two passengers, the USCA affirmed. Pregerson (author), Noonan, and Thomas, Circuit Judges. AUSA F. Rowley of Los Angeles, CA, for the plaintiff-appellee; DFPD E. Newman of Los Angeles, CA, for the defendant-appellant. (Download the full text of this decision at www.ce9.uscourts.gov/)

34) EVIDENCE: USA v. Williams, 04-50182 (9th Cir. Jan. 30, 2006). Williams appealed a district court order denying his motion to suppress a written confession that he gave to U.S. Diplomatic Security Service ("DSS") agents during interrogation. According to a DSS investigation report, the agents interrogated Williams in two steps-first, they asked him questions until he confessed; then, immediately after his oral confession, they read him his Miranda rights and asked him to write down what he had previously told them. The district court suppressed Williams' oral statement because they were elicited in violation of Miranda, but admitted his post-warning written confession on the ground that it was "voluntarily made." The USCA reversed. Under Missouri v. Seibert, 542 US 600 (2004), a trial court must suppress post-warning confessions obtained during a deliberate two-step interrogation where the midstream Miranda warning was objectively ineffective. Because the district court did not have the benefit of Seibert, it did not determine whether the agents deliberately withheld the Miranda warning, and if so, whether the warning finally given effectively apprised Williams that he had a "genuine choice whether to follow up on [his] earlier admission." The USCA thus remanded to the district court for further findings consistent with this opinion. Browning, Fisher (author), and Bybee, Circuit Judges. FPD C. Gunn of Los Angeles, CA, for the defendant-appellant; AUSA B. Kim of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

35) CRIME VICTIMS' RIGHTS ACT: Kenna v. U.S. District Court for the Central District of California, 05-73467 (9th Cir. Jan. 20, 2006). At issue here was whether the Crime Victim's Rights Act, 18 USC Sec. 3771, gives victims the right to speak at sentencing. The USCA granted a writ of mandamus and held that the district court erred in refusing to allow Kenna and other victims to speak the sen-tencing hearing for Zvi Leichner, who was convicted along with his father of scamming millions from Kenna and other investors. While purporting to make investments in foreign currency, the father and son spend or concealed the funds entrusted to them. The USCA directed that the district court shall deem timely a motion pursuant to 18 USC Sec. 3771(d)(5) filed by Kenna or any other of Zvi's victims within 14 days of the date of this opinion. If the district court grants the motion, it shall conduct a new sentencing hearing, according the victims the right to speak. Judge Friedman, dubitante, agreed that the writ of mandamus should issue but expressed concern that the USCA seems to hold that a victim has an absolute right to speak at sentencing. While noting that "Kenna concedes that the district court may place reasonable constraints on the duration and content of victims' speech, such as avoiding undue delay, repetition or the use of profanity," the USCA stopped short of accepting this concession. Friedman thought the writ of mandamus should require only that the district court consider allowing Kenna to speak at any resentencing. Goodwin, Friedman (dubitante), and Kozinski (author), Circuit Judges. S. Twist of Scottsdale, AZ, for the petitioner; Judge John F. Walter of Los Angeles, CA, respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

36) PLEAS: USA v. Serna, 05-30066 (9th Cir. Jan. 19, 2006). Two issues were presented on this appeal. First, is a guilty plea an admis-sion of the facts charged in the indictment? Second, is an Alford plea, in which the defendant enters a guilty plea while maintaining his innocence, nevertheless a guilty plea under Taylor v. USA, 495 US 575 (1990)? The USCA answered both questions in the affirmative. However, it found that the district court misapplied the modified categorical approach under Taylor. The USCA thus vacated the sentence, and remanded to the district court for resentencing under the discretionary Guidelines. Hansen, W. Fletcher, and Bybee (author), Circuit Judges. J. McDevitt of Yakima, WA, for the plaintiff-appellant; A. Hernandez of Yakima, WA, for the defendant-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

37) SENTENCING: USA v. Adams, 04-30339 (9th Cir. Jan. 3, 2006). Adams appealed a district court's order sentencing him to five years in prison and fining him $400,000. He argued that his guilty plea was not knowing, voluntary and intelligent, that the district court im-properly failed to give him a sentence reduction under the "safety valve," and that his sentence violated USA v. Booker, 125 S.Ct. 738 (2005). The USCA vacated Adams' guilty plea and conviction, concluding that it was not knowing, voluntary and intelligent in light of the district court's failure to inform him that he was subject to a mandatory fine under the Sentencing Guidelines. Dissenting, Judge Kleinfeld thought the majority had decided this case contrary to binding circuit authority, and contrary to the views of all nine other circuits that have considered the issue. Alarcon (author), Kozinski, and Kleinfeld (dissenting), Circuit Judges. R. Mahler of Seattle, WA, for the defendant-appellant; AUSA B. Hubley of Helena, MT, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

38) SENTENCING: USA v. Plouffe, 05-30045 (9th Cir. Jan. 18, 2006). Plouffe appealed his 71-month sentence imposed after his guilty-plea conviction for assault resulting in serious bodily harm in violation of 18 USC Secs. 113(a)(6) and 1153. The USCA affirmed. The district court considered Plouffe's history and characteristics, which were described in the presentence report; his role in the offense; the need to protect the public while providing appropriate punishment for the offense; and the now-advisory Sentencing Guidelines range of 57-71 months. It then imposed a sentence that was within the Guideline range, albeit at the top of the range. The district court's approach was reasoned and addressed factors specified in 18 USC Sec. 3553(a). The USCA held that Plouffe's sentence was reasonable and declined to disturb the sentencing court's discretion. Gould (author) and Berzon, Circuit Judges, and Schwarzer, District Judge. J. Yellin of Havre, MT, for the defendant; AUSA J. Thaggard of Great Falls, MT, for the plaintiff.(Download the full text of this decision at www.ce9.uscourts.gov/)

39) SENTENCING: USA v. Cantrell, 03-30562 (9th Cir. Jan. 13, 2006). Cantrell, Walker, Coversup, and Renz, challenge sentences they received as a result of jury convictions for conspiracy to distribute methamphetamine in violation of 21 USC Secs. 841(a)(1) and 846, and related charges. Cantrell argued that his sentence was unconstitutional in light of USA v. Booker, 125 S.Ct. 738 (2005), which ren-dered the Sentencing Guidelines advisory. Walker, Coversup, and Renz argued that the district court misapplied the Guidelines in sentencing them. The USCA affirmed in part and remanded in part. As it could not determine from its review of the record whether Cantrell was prejudiced by the asserted Booker error, it remanded his case with instructions that the district court follow the procedures outlines in USA v. Ameline, 409 F.3d 1073. As for Walker, Coversup, and Renz, the USCA rejected their claims of Guidelines application error and affirmed their sentences. Pregerson, Graber, and Gould (author), Circuit Judges. P. Hoovestal of Helena, MT, for defendant-appellant Cantrell; AUSA M. Hurd of Billings, MT, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

40) SENTENCING: USA v. Teeples, 03-30307 (9th Cir. Jan. 5, 2006). This case was decided on remand from the Supreme Court for further consideration in light of USA v. Booker, 125 S.Ct 738 (2005). Teeples challenged the district court's determination, on the basis of his two prior convictions for lewd and lascivious acts with a child under fourteen, that he is a career offender under Sentencing Guidelines Sec. 4B1.1 (2003). Teeples maintained that the district court erred in holding that his convictions under Cal. Penal Code Sec. 288(a) (2004) are crimes of violence under Guidelines Sec. 4B1.2 (2004). Upon further consideration, the USCA concluded as it had earlier, that the district court correctly determined that Teeples's conviction was in fact a crime of violence. The risk of violence is, the USCA said, implicit in the size, age and authority position of the adult dealing with a child. Moreover, Teeples's victim was his own daughter and the Circuit has recognized that the "special and unique dynamic of a parent-child relationship," coupled with "such factors as age and the authority position of the offender contribute to the risks inherent in the sexual abuse of a minor." The district court thus did not err in finding that Teeples's conviction was a crime of violence and in sentencing him as a career offender. Schroeder, Browning, and Tashima, Circuit Judges. Per Curiam. AFD M. Harrison of Missoula, MT, for the defendant-appellant; AUSA D. Dennis of Great Falls, MT, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

41) SENTENCING: USA v. Serna, 04-10597 (9th Cir. Jan. 23, 2006). At issue here was whether mere possession, without use or at-tempted use, of an assault weapon in violation of California Penal Code Sec. 12280(b) constitutes a "crime of violence" under federal the Sentencing Guidelines. The USCA concluded that it was not a crime of violence for purposes of Sentencing Guidelines Sec. 4B1.2(a). It thus vacated the sentence and remanded for resentencing. Kozinski (author) and Fernandez, Circuit Judges, and Hatter, District Judge. Q. Denvir of Sacramento, CA, for the defendant-appellant; AUSA J. Hitt of Sacramento, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

42) SENTENCING: USA v. Allen, 05-50078 (9th Cir. Jan. 12, 2006). Allen was sentenced to 12 months imprisonment and 3 years supervised release after a plea of guilty for counterfeiting. The sentencing court applied an enhancement not addressed in the plea agreement. Because it did not make the proper findings in considering the enhancement, the USCA reversed and remanded to provided it an opportunity to do so. The USCA also concluded that the government did not breach the plea agreement by presenting a witness at the sentencing hearing as requested by the district court and questioning him. The USCA thus affirmed the district court's decision in that respect. Canby, Fernandez, and Berzon (author), Circuit Judges. N. Aguilar of San Diego, CA, for the defendant-appellant; AUSA M. Jennings of San Diego, CA, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

43) SENTENCING / DOUBLE JEOPARDY: Sadoski v. Mosley, 04-15447 (9th Cir. Jan. 24, 2006). Sadoski appealed the district court's order dismissing her complaint for damages and injunctive relief under 42 USC Sec. 1983. She alleged that the defendant-appellee Judge Donald Mosley, after sentencing Sadoski to a 12-month term of incarceration for attempted theft, unlawfully re-sentenced her to a term of incarceration between 12 and 32 months, subjecting her to double jeopardy in violation of her federal and state constitutional rights. She further alleged that defendants-appellees Bell, Roger, Crawford, and Clark County violated her protection against double jeopardy by seeking or executing the more severe sentence. The district court concluded that Judge Mosley was entitled to absolute immunity for his actions in Sadoski's case that the his immunity protected the other defendants as well. It also concluded that Sadoski did not have standing to assert a class claim for injunctive relief. The district court then dismissed Sadoski's suit pursuant to Fed. R. Civ. P. 12(b)(6). The USCA affirmed. Concurring, Judge Gould noted that at trial and on appeal, Sadoski stated that her claims against Bell, Roger, and Crawford would fail if the USCA concluded that Judge Mosley was entitled to absolute immunity. The District Court and USCA accepted Sadoski's concession and did not separately address the immunity standards for the other defendants. To avoid the risk that a reader might think incorrectly that the immunity of the prosecutor and the corrections official turns on the resolution of the issue of judicial immunity, Judge Gould wrote separately to express the view that the prosecutor and the corrections official would here have immunity even if Judge Mosley had acted in the clear absence of all jurisdiction. Noonan, Rymer, and Gould (author and concurring), Circuit Judges. C. Garen of Corona, CA, for the plaintiff-appellant; DAG T. Gover of Las Vegas, NV, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

44) APPELLATE JURISDICTION: Santos v. Guam, 03-70472 (9th Cir. Jan. 3, 2006). Santos sought review of his convictions in the Guam Superior Court on charges of aggravated murder and possession and use of a deadly weapon. His convictions were affirmed by the Guam Supreme Court. The USCA dismissed the instant appeal for want of jurisdiction. On October 30, 2004, Congress amended 48 USC Sec. 1424-2 striking the language granting the USCA, for a period of time which had not yet expired at the time of this decision, "jurisdiction to review by writ of certiorari all final decisions of the highest court of Guam from which a decision could be had." Concurring, Judge Wallace agreed that the recent Congressional enactment had eliminated the USCA's jurisdiction to hear the appeal. But, because his analysis differs from that of his colleagues, Judge Wallace wrote separately to explain how existing precedents control this jurisdictional issue and why the number of courts a litigant can appeal to is not a substantive right. Schroeder, Goodwin (author) Wallace (concurring), Circuit Judges. D. Highsmith of Hagatna, GU, for the petitioner; AAG B.A. Keith of Hagatna, GU, for the respon-dent.(Download the full text of this decision at www.ce9.uscourts.gov/)

45) HABEAS CORPUS: Hanson v. Mahoney, 02-35795 (9th Cir. Jan. 10, 2006). Hanson, whose habeas petition challenging his Mon-tana conviction for sexual assault and deviated sexual conduct was dismissed by a magistrate judge, brought two issues to the USCA. First, he maintained that the magistrate judge who adjudicated his petition by consent was without authority to issue a certificate of appealability ("COA") pursuant to 28 USC Sec. 2253 and, thus, he asked the USCA to rule that his request for a COA must be returned to the district court for consideration by an Article III judge. Second, he argued that, in the alternative, the magistrate judge erred in holding that he procedurally defaulted his claim that the state trial court's instruction on unanimity was defective under State v. Weaver, 964 P.2d 713 (Mont. 1998). The USCA affirmed. Magistrate judges are authorized to issue COAs and the district court correctly held that Hanson's claim for relief had been procedurally defaulted. Concurring, Judge Fletcher wrote to suggest that the State consider alternatives to pursuing new state-law charges for refusing to register as a sex offender in light of the strength of Hanson's claim of ineffective assistance of counsel and his unwavering claim of innocence. Judge Fletcher said the panel requested rebriefing after it became aware of tapes containing vindictive voice-mail messages, left on Hanson's answering machine by the victim's mother, indicating her vendetta to do anything to get even with him after their breakup. Because her plan might have included fabricating charges of child abuse, the tapes, had they been placed into evidence, could have influenced the jury's decision regarding Hanson's guilt. Hanson's trial counsel never sought to introduce the messages; under the circumstances, that failure may have constituted ineffective assistance of counsel. B. Fletcher (author and concurring), Brunetti, and McKeown, Circuit Judges. AFD D. Ness of Helena, MT, for the petitioner; AAG C. Schmidt of Helena, MT, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

46) HABEAS CORPUS: Young v. Runnels, 03-16859 (9th Cir. Jan. 23, 2006). Young, a California state prisoner, appealed the district court's denial of his 28 USC Sec. 2254 habeas petition challenging his conviction for armed robbery and felony evasion. He maintained that his trial attorney's disciplinary problems rendered her presumptively unable to provide effective assistance, thereby warranting a per se reversal of his conviction under USA v. Cronic, 466 US 648 (1984). He further maintained that his trial attorney's baseless lawsuit against various public officials for allegedly participating in a pedophile ring created an actual conflict of interest under Cuyler v. Sullivan, 446 US 335 (1980). The USCA upheld the state court's resolution of Young's ineffective claim since Strickland v. Washington, 466 US 668 (1984), rather than Cronic, governed his claim, and Young failed to show prejudice under Strickland. Moreover, the USCA found that Young waived his conflict of interest claim by not raising it before the district court. It thus affirmed the district court's denial of Young's habeas petition. Ferguson (author), Noonan (concurring), and Rymer, Circuit Judges. A.J. Kutchins of Berkeley, CA, for the petitioner; DAG G. Zywicke of San Francisco, CA, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

47) HABEAS CORPUS: Mancebo v. Adams, 04-17167 (9th Cir. Jan. 12, 2006). Mancebo challenged the denial by the federal district court of his habeas petition. He is currently serving an indeterminate term of 15-years to life for second-degree murder, with an additional 8 years stayed on his conviction for kidnapping. He argued that he was denied his constitutionally guaranteed right to effective assistance of counsel when, at his original trial, his counsel neither objected to nor moved to exclude a portion of a recorded conversation with police regarding his decision not to take a polygraph examination. On an issue of first impression, the USCA held that when the polygraph evidence plays a very small role in the trial, it is not harmful and thus the conviction must stand. In addition to the small role the polygraph evidence played in the trial, there was sufficient other evidence supporting Mancebo's conviction to preclude the USCA from finding "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strictland v. Washington, 466 US 668, 694 (1984). D.W. Nelson (author), Rawlinson, and Bea, Circuit Judges. C. Leonetti of Fresno, CA, for the defendant-appellant; B. Alvarez of Fresno, CA, for the respondents-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

48) HABEAS CORPUS: Allen v. Ornoski, 06-99001 (9th Cir. Jan. 15, 2006). Allen appealed the district court's order denying and dis-missing in part his second habeas corpus petition and denying his requests for a stay of execution and for the issuance of a certificate of appealability on his Eighth Amendment claim based upon age and physical infirmity. He sought a certificate of appealability and consideration on the merits of his age and physical infirmity claim, which, he argued, encompassed his claim, based on his long tenure on death row under "horrific conditions" pursuant to Lackey v. Texas, 514 US 1045 (1995) (Stevens, J. respecting denial of certiorari). Allen also asked that if the USCA considers the Lackey claim independently, it find that it is not a second or successive petition within the meaning of 28 USC Sec. 2244 or, in the alternative, that it grants permission to file that claim in the district court. Finally, for the first time on appeal, Allen challenged the constitutionality of 28 USC Sec. 2254(d)(1), which outlines the circumstances in which a federal court may grant habeas relief from a state court judgment. Because it concluded that reasonable jurists would not find debatable the district court's ruling that Allen failed to make "a substantial showing of the denial of a constitutional right," 28 USC Sec. 2253(c)(2), the USCA denied his motion for a certificate of appealability on his age and physical infirmity claim. Because it concluded that Allen's Lackey claim is a second or successive application which could "have been discovered previously through the exercise of due diligence," 28 USC Sec. 2244(b)(B)(i), and which the USCA had previously rejected as a predicate for relief from execution, the USCA affirmed the district court's dismissal with prejudice of Allen's claim, and declined to authorize a second or successive application. Because Allen's challenge to 28 USC Sec. 2254(d) is untimely and failed to satisfy the procedural requirements of USCA appellate rules, the USCA declined to address its merits. The USCA thus denied Allen's request for a stay of execution because he has not demonstrated substantial grounds upon which relief may be granted, and the USCA affirmed the district court's denial and dismissal in part of his second writ petition. Graber, Wardlaw (author), and Clifton, Circuit Judges. M. Satris of Bolinas, CA, for the appellant; W. Campbell of Sacramento, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

49) HABEAS CORPUS: Kaua v. Frank, 05-15059 (9th Cir. Jan. 11, 2006). The State of Hawaii and Clayton Frank appealed the Hawaii district court's grant of Kaua's habeas petition. The USCA affirmed. The Hawaii sentencing court found that an extended sentence was necessary to protect the public in Kaua's case. Because the effect of this finding was to increase Kaua's sentence above that authorized by the jury's guilty verdict, the USCA held that Apprendi v. New Jersey, 530 US 466 (2000), required a jury to make the finding. In reaching the opposite conclusion, the Hawaii Supreme Court applied a rule-the "intrinsic-extrinsic" analysis-contrary to the rule announced in Apprendi. The district court thus properly granted the writ. Trott, T.G. Nelson (author), and Paez, Circuit Judges. P. Carlisle of Honolulu, HI, for the respondents; P. Wolff of Honolulu, HI, for the petitioner.(Download the full text of this decision at www.ce9.uscourts.gov/)

50) HABEAS CORPUS / PEREMPTORY CHALLENGES: Williams v. Runnels, 04-55830 (9th Cir. Jan. 5, 2006). Williams alleged that during his state trial for second-degree robbery he made a prima facie showing of discrimination under Batson v. Kentucky, 476 US 79 (1986), when he objected to the prosecutor's use of three of four peremptory challenges to excuse African-Americans. The USCA held that the district court, not having the guidance of the Supreme Court's opinions in Johnson v. California, 125 S.Ct. 2410 (2005), and Miller-El v. Dretke, 125 S.Ct. 2317 (2005), failed to appreciate that (1) Williams' showing of statistical disparity was only required to raise an inference of purposeful discrimination and (2) refutation of the inference requires more than a determination that the record could have supported race-neutral reasons for the prosecutor's use of his peremptory challenges on prospective African-American jurors.. The USCA thus reversed and remanded. Leavy, Graber, and Callahan (author), Circuit Judges. M. Stratton of Los Angeles, CA, for the petitioner; B. Lockyer of Los Angeles, CA, for the respondents.(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) TRADEMARKS: Adidas America v. Payless Shoesource, 04-35553 (9th Cir. Jan. 5, 2006) (unpublished). Ferguson, Kleinfeld, and Graber, Circuit Judges.

Plaintiffs Adidas America and Adidas-Salomon (collectively "Adidas") appealed the district court's partial summary judgment order in favor of defendant Payless Shoesource ("Payless"). In its Lanham Act action, Adidas alleged that Payless infringed upon Adidas's trademark by selling footwear bearing confusingly similar imitations of Adidas's registered Three-Stripe Mark. The district court held that a 1994 settlement agreement between Adidas and Payless precluded Adidas's current claims. The USCA reversed the district court's summary judgment order and remanded for further proceedings consistent with this disposition.

As a threshold issue, the USCA found jurisdiction under 28 USC Sec. 1291. Adidas raised ten claims before the district court relating to trademark infringement and dilution, unfair competition, breach of contract, and trade dress infringement and dilution. On summary judgment, the district court dismissed all of the claims, except those related to trade dress, because it concluded that the 1994 settlement agreement between the parties prevented Adidas from bringing any future claims against Payless based solely on Payless's use of stripe designs. The district court later certified its partial judgment pursuant to Fed. R. Civ. P. 54(b). When more than one claim for relief is presented to a court, Rule 54(b) allows that court to "direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment." Recently, the USCA held that, in a routine case, when "the facts on all claims and issues entirely overlap, and successive appeals are essentially inevitable," a Rule 54(b) request should not be granted. Wood v. GCC Bend, LLC, 422 F.3d 873, 883 (9th Cir. 2005). The present case is distinguishable from Wood because the current resolution of the summary judgment dispute regarding the claims certified pursuant to Rule 54(b) revolves around a single legal issue, interpretation of the 1994 settlement agreement, while the claims that remain before the district court involve the factually and legally distinct issue of trade dress infringement. Resolution of the present appeal will in fact facilitate swift and efficient resolution of all of Adidas's claims because it will once again allow consolidation of Adidas's trademark and trade dress claims in one trial. Otherwise, a full trail would have to be held as to Adidas's trade dress claims before the USCA could determine whether Adidas's trademark claims were properly dismissed. Because it held that the district court summary judgment order was based on an erroneous interpretation of the 1994 settlement agreement, Adidas's trademark claims would then be remanded to the district court for yet another full trial. Substantive consideration of Adidas's trademark claims involves facts that overlap with those related to the trade dress claims. Thus, by not granting the Rule 54(b) request, the district court would have increased the likelihood of two full trials comparing the similarities between Adidas's and Payless's shoe designs. By granting the motion, the district court properly conserved judicial resources. The USCA found that Rule 54(b) certification of Adidas's claims was proper and that it thus had jurisdiction to consider the appeal.

On the substance of the appeal, the USCA held that the district court erred by granting summary judgment to Payless based on the 1994 settlement agreement. A plain reading of the agreement demonstrates that Adidas released only those claims against Payless that Adidas "brought or could have brought" before the dismissal of the action that was the subject of the settlement. The shoe stripe designs herein at issue, however, were not produced by Payless until after the 1994 agreement was concluded. Adidas could not have brought a claim against shoes not in existence prior to the execution of the settlement. Cf. Botefur v. City of Eagle Point, 7 F.3d 152, 157-58 (9th Cir. 1993) (holding that a release of such claims or other matters arising from the beginning of time to the date of execution of the agreement did not protect the defendant from liability arising from unconstitutional conduct that occurred after the agreement's execution). Thus, the 1994 settlement agreement did not preclude Adidas's present Lanham Act against Payless. For this reason, the USCA reversed the district court's summary judgment order as to Adidas's first, second, fourth, sixth, eighth, and ninth claims and remanded for further proceedings.

2) LAND USE / IMPACT FEES: Sundquist Homes v. Snohomish County, 03-35671 (9th Cir. Jan. 6, 2006) (unpublished). Alarcon, W. Fletcher, and Rawlinson, Circuit Judges.

The plaintiffs, private real estate developers, filed this putative class action in state court to recover impact fees Snohomish County imposed under Washington's Growth Management Act ("GMA"). The GMA authorizes local governments to impose impact fees as a condition for approving new developments provided they adopt or revise a comprehensive plan in compliance with Rev. Code Wash. Sec. 36.70A.070, a statute specifying mandatory elements of comprehensive plans, and provided they include in their capital facilities plan information regarding the effect of new development on public facilities. RCW Sec. 82.02.050(4). The plaintiffs maintained that during the alleged class period the County was not authorized to impose impact fees because it did not have a proper comprehensive or capital facilities plan in place. The plaintiffs argued the defendants violated 42 USC Sec. 1983 as well as various provisions of state law. The defendants removed to federal district court based on the presence of a federal question under Sec. 1983, pursuant to 28 USC Secs. 1331 and 1441. The district court granted the defendants' motion for summary judgment on two grounds. First, it held that, because the plaintiffs did not pay the impact fees they sought to recover under protest, they did not satisfy a condition precedent to bringing a refund action in state or federal court. Second, it found that the plaintiffs had not demonstrated "substantial compliance" with the procedural exhaustion requirements specified in the Land Use Petition Act ("LUPA"). The district court did not mention the plaintiffs' Sec. 1983 claim.

The USCA found the plaintiffs' Sec. 1983 claim to be near-frivolous. They maintained, first, that Snohomish County has violated state law and thereby violated Sec. 1983. Of course, Sec. 1983 provides a cause of action for violation of federal rather than state law. They next maintained that Snohomish County effectuated a taking of the plaintiffs' property, but they nowhere allege that they have complied with the requirements of Williamson County Reg'l Planning Comm'n v. Hamilton Bank, 473 US 172 (1985). Finally, they argued that Snohomish County's imposition of impact fees was "malicious, reckless, wanton, invidious, irrational, or arbitrary and capricious" and therefore in violation of "constitutional substantive due process and property rights," but they offered nothing to explain how this allegation was founded on anything beyond the first two. A frivolous federal claim is not a proper basis for removal to federal district court. The USCA found subject matter jurisdiction under 28 USC Sec. 1331 to decide a federal claim on the merits, even if the claim is unsuccessful. Wheeldin v.Wheeler, 373 US 647, 649 (1963). But, it added that it did not have subject matter jurisdiction under Sec. 1331 over frivolous federal claims. It found that it was a very close question whether it should remand to the state court for improper removal by the defendants, without deciding the more substantial questions of state law presented in this case. However, the USCA narrowly upheld the removal and address the plaintiffs' questions of state law on the merits. LUPA provides special procedures that serve as the exclusive means by which parties aggrieved by a "land use decision" may bring a "land use petition" seeking review of such a decision in superior court. RCW Sec. 36.70C.060. These procedures include the exhaustion of administrative remedies. The plaintiffs did not contest that they failed to exhaust LUPA's prescribed process. Rather, they argued that the imposition of impact fees is not a "land use decision," and thus they did not need to exhaust administrative remedies. In James v. Kitsap County, 115 P.3d 286 (Wash. 2005), the Washington Supreme Court rejected an identical argument, holding that the imposition of impact fees is a land use decision and is not reviewable unless the plaintiff complies with LUPA's procedural requirements.

The plaintiffs observed that, under the Washington State Constitution, the trial court had original jurisdiciton over this dispute. See Wash. Const. Art IV, Sec. 6 which provides that the superior court shall have original jurisdiciton in all cases at law which involve the legality of any tax, impost, assessment, toll, or municipal fine. They argued that in such cases, administrative exhaustion cannot be required. Kitsap County foreclosed this argument as well. 115 P.3d at 293 ("while a superior court may be granted power to hear a case under article IV, section 6, that grant does not obviate procedural requirements established by the legislature.") The plaintiffs claims that LUPA does not apply when a litigant challenges the legality of the government action, not simply the lawfulness of an act of government in a particular case. However, the plaintiffs adduced no authority to suggest that an exhaustion requirement does not apply when the litigant challenges the government's compliance with statutory requirements, as the plaintiffs do here. The plaintiffs' remaining arguments concerning administrative exhaustion were equally unavailing. Because their failure to exhaust LUPA's prescribed remedies provided a sufficient basis for the district court's decision, the USCA did not need to reach the plaintiffs' other grounds for appeal. In light of this result, the district court also properly dismissed the plaintiffs' motion for class certification. The USCA thus affirmed.

3) CERCLA: Weiss v. Kuck Trucking, Inc., 04-35547 (9th Cir. Jan. 24, 2006) (unpublished). Kleinfeld and Graber, Circuit Judges, and Rafeedie, District Judge.

The complaint filed in state court in this case made no federal claim. Although it mentioned federal law, it did not make a claim for relief based on a violation of federal law. The closest it got was to suggest that the violation of federal law could support negligence per se under Montana law in a state tort claim for relief. But that is not a federal claim. The USCA noted that the EPA had already commenced a remedial action. That action was a "remedial investigation / feasibility study," which Razore v. Tulalip Tribes, 66 F.3d 236, 239 (9th Cir. 1995), holds amounts to remedial action. But the complaint did not amount to a "challenge to remedial action," because to qualify as a "challenge," the claim must be "directly related to the goals of the cleanup itself." The complaint did not directly relate to the goals of the cleanup and in no way challenged anything about the "remedial investigation / feasibility study" in which the EPA engaged. The USCA found the case to be controlled by Beck v. Atlantic Richfield Co., 62 F.3d 1240, 1243 (9th Cir. 1995), because here, as in Beck, the plaintiffs' alleged causes of action were based entirely on state law and did not challenge any CERCLA cleanup plan. The district court thus lacked jurisdiction. The USCA noted that the amicus had made the practical argument that the damages action in state court had the potential to draw money out of the case and, without money to implement it, a potential cleanup may be thwarted as a practical matter. But under the well pleaded complaint rule, except where the artful pleading doctrine compels an exception, the plaintiff is the master of his complaint. In this case, as in Rains v. Criterion Systems, Inc., 80 F.3d 339, 344 (9th Cir. 1966), there is nothing that would justify re-characterizing the state law claims as federal claims. The relevant federal claim would be a challenge to the EPA's CERCLA proceedings, and there is no such claim in the complaint. Notwithstanding the amicus's argument, the USCA found that the statute expressly precluded it from adopting it because "nothing in this chapter shall be construed or interpreted as pre-empting any State from imposing any additional liability or requirements with respect to the release of hazardous substances within such State." 42 USC Sec. 9614(a). If indeed a risk of double payment is posed by the relief granted in state court, the district court has the means to avoid unfairness because "the court may allocate response costs among liable parties using such equitable factors as the court determines are appropriate." 42 USC Sec. 9613(f).

4) FORFEITURE: In re $80,045.00 in U.S. Currency, 05-15564 (9th Cir. Jan. 3, 2006) (unpublished). Trott, T.G. Nelson, and Paez, Circuit Judges.

In this forfeiture proceeding under Arizona Revised Statutes, Sec. 13-4301, et seq., the State of Arizona appealed the district court's summary judgment that Phoenix police officers did not have probable cause to seize $80,045 from Mohamadou Sumareh. The USCA affirmed. Arizona argued that it had established probable cause when it presented evidence that a trained narcotics dog alerted to the smell of drugs on the currency Sumareh was transporting. To evaluate whether probable cause existed, the USCA had to determine whether the information relied upon by the government was adequate and sufficiently reliable to warrant the belief by a reasonable person that the money was connected to drugs. USA v. $30,060.00 in U.S. Currency, 39 F.3d 1039, 1041 (9th Cir. 1994). A drug detection dog alert does not provide sufficient evidence of a meaningful connection between seized money and illicit drugs unless the dog is trained to perform, and performs, a sophisticated dog alert as outlined in USA v. $22,474 in U.S. Currency, 246 F.3d 1212, 1216 (9th Cir. 2001). To show a sophisticated dog alert, Arizona had to present evidence that the dog "would not alert to cocaine residue found on currency in general circulation [and that] the dog was trained to, and would only, alert to the odor of a chemical-by-product of cocaine called methyl benzoate." Id. In other words, Arizona had to show that unless the currency at issue had recently been in contact with drugs, the dog would not alert to it. The Circuit's "heightened reliability standard" on canine drug identification requires Arizona to establish the training and reliability of the drug detention dog before a dog alert can support a determination of probable cause. Grant v. City of Long Beach, 315 F.3d 1081, 1086 (9th Cir. 2002). Arizona failed to present sufficient evidence to show that the canine search of Sumareh's money was a sophisticated dog alert as required by USA v. $22,474. Without more, the State's other proffered evidence did not, even when considered in the aggregate, establish probable cause. The district court thus correctly determined that Arizona lacked probable cause to believe that the $80,045 seized from Sumareh was related to illegal drug activity.

5) FRAUD-ON-THE COURT: Virtual Fonlink, Inc. v. Bailey, 04-55408 (9th Cir. Jan. 24, 2006) (unpublished). Bright, B. Fletcher, and Silverman, Circuit Judges.

Bailey appealed the district court's denial of his motions, based on Fed. R. Civ. P. 60(b)(6) and a fraud-on-the-court theory, to set aside two default judgments entered against him in 2002. Mansfield Partners ("Mansfield"), in the name of Virtual Fonlink, Inc., filed two actions against Bailey: The first sought an injunction against Bailey, and the second requested damages. The judgment in the first action, entered on June 26, 2002, enjoined Bailey from certain actions adverse to the corporation and awarded attorney's fees to Mansfield. The second judgment, entered on September 3, 2002, awarded damages to Mansfield and against Bailey in an amount exceeding $805,000. The USCA affirmed the denials of Bailey's motions.

Bailey patented an invention to allow mobile, point-of-sale credit card purchases involving cell phones. In 2000, he formed a company and transferred ownership of the patented invention to it. He then approached Mansfield to acquire capital for the new company. The parties agreed to share ownership and control of the company, Virtual Fonlink, Inc., but their business relationship soon deteriorated. Mansfield ultimately filed the two actions against Bailey, resulting in the default judgments herein at issue. Bailey's attorney, although continuing to represent him, excused himself from the first trial and did essentially nothing with respect to the second. The court thus entered the two default judgments. Approximately 18 months after the first judgment and 15 months after the second, Bailey moved to set aside both judgments. He based his motions on Rule 60(b)(6) and a fraud-on-the-court theory. The district court denied both motions. Rule 60(b)(6), in relevant part, provides: "(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud, Etc. On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: … (6) any other reason justifying relief from the operation of the judgment." Although the gross negligence of a party's attorney may meet the standard of Rule 60(b)(6), the district court held that Bailey did not meet this standard because he was involved in the culpable conduct of his attorney. The district court further held that Bailey's fraud-on-the-court argument failed as he could have addressed the alleged fraud at trial.
Bailey first maintained that the district court abused its discretion in disbelieving his statements in support of his Rule 60(b) motions and in determining that he knew of his counsel's unprofessional tactics. The USCA rejected this claim. It noted that it would reverse a district court's exercise of discretion only when it has a definite and firm conviction that the district court committed a clear error of judgment. Anderson v. Bessemer City, 470 US 564, 574-75 (1985). The USCA added that it gives even greater deference to a district court's credibility determination. Id. at 575. The record supported the district court's determination that Bailey was either complicit in, or had contracted for, his attorney's unprofessional tactics. Bailey also argued that the district court could not make a credibility determination in denying the motions without first hearing oral testimony. The USCA rejected this contention as well. "A district court has wide discretion in deciding whether oral testimony shall be heard in support of a motion." Miles v. Dept. of the Army, 881 F.2d 777, 784 (9th Cir. 1989). Although the judgments in question were default judgments, the district court had heard a substantial amount of testimony before the judgments were entered, and it was well aware of the contentions of the parties. Given that the court was familiar with the facts of the case, and the parties, and also had presided over both default judgments, it did not abuse its discretion in refusing to give Bailey the opportunity to present additional oral testimony. Because the USCA held that the district court did not err in determining Bailey's culpable conduct, it was justified in denying the Rule 60(b)(6). The USCA thus did not need to reach the issue of whether the district court abused its discretion in determining that Bailey's motions were untimely. Bailey next maintained that Mansfield committed fraud-on-the-court because Mansfield had no authority to bring suit on behalf of Virtual Fonlink in the first trial and because Mansfield allegedly committed perjury in the second. However, Bailey could have addressed these issues at trial, which he chose not to attend, so he could not now claim fraud on the court. Finally, Bailey argued that both judgments were void as violative of due process and thus should be set aside under Fed. R. Civ. P. 60(b)(4). According to Bailey, he was denied due process because no one was present to represent him at the first trial after his attorney had excused himself and because he was given no notice of the issues to be tried in the second trial. Bailey did not argue Rule 60(b)(4) before the district court. Even if he had, the judgments were not void as violative of due process as Bailey's attorney knew of both alleged violations. A client is deemed bound by the acts of his lawyer and considered to have notice of all facts, notice of which can be charged upon the attorney. Link v. Wabash R.R. Co., 370 US 626, 634 (1962).

6) FORUM NON CONVENIENS: Ito v. Tokio Marine & Fire Insurance Co., Ltd., 04-55145 (9th Cir. Jan. 25, 2006) (unpublished). Hug, Siler, and Wardlaw, Circuit Judges.

Ito appealed the district court's dismissal for forum non conveniens of her action for breach of contract, breach of the implied covenant of good faith and fair dealing, and fraud against Tokio Marine and Fire Insurance Company, Ltd. ("Tokio"). Because it concluded that the district court abused its discretion by erroneously failing to place the burden of showing inconvenience on Tokio and unreasonably balancing the private and public interest factors, the USCA reversed and remanded. Having reweighed the factors under a correct application of the law, the USCA held that Tokio's claim of forum non conveniens lacked merit, and that California was the appropriate forum.
The district court committed initial two errors, which tainted its analysis of the private and public interest factors. First, it misapprehended the nature of the claims. For example, it stated that "this action arises out of injuries Plaintiff suffered" in a 1995 Japanese car accident. To the contrary, this action arose from Tokio's breach of its 1996 agreement to pay for medical costs plaintiff incurred in the U.S. at Tokio's suggestion. Tokio's stated rationale for stopping medical payments was lack of information from Ito's U.S. physicians, an issue that did not require relitigation of the injuries sustained in the car accident. Second, the district court improperly apportioned the burden of proof between the parties. Tokio, the party moving to dismiss for forum non conveniens, bore the burden of making a "clear showing" of the facts that either "(1) establish such oppression and vexation of a defendant as to be out of proportion to the plaintiff's convenience, which may be shown to the slight or nonexistent, or (2) make trial in the chosen forum inappropriate because of considerations affecting the court's own administrative legal problems." Miskow v. Boeing Co., 664 F.2d 205, 208 (9th Cir. 1981). Without such a showing, the district court could not assume that the movant's assertions established inconvenience, as the district court did here. Contrary to established Supreme Court authority, the district court failed to give any deference to Ito's U.S. citizenship and choice of home forum. Although it acknowledged that courts give substantial deference to a plaintiff's choice of forum, and included residence of the parties in its enumeration of private interest factors, it did not actually weigh Ito's citizenship and choice of forum in its private interest analysis, focusing instead on Tokio's bare allegations of numerous Japanese witnesses and documents. The USCA held that the district court improperly relied on the number of witnesses located in Japan rather than assessing the materiality of their proposed testimony to the issues. In so doing, it incorrectly failed to hold Tokio to its burden of proof. In fact, Tokio did not meet its burden because it failed to provide information about its proposed witnesses that would be sufficient to support a determination that the location of witnesses in Japan favored dismissal. The district court improperly assumed that Tokio's witnesses were material to the litigation.

7) IMMIGRATION: Hashemi-Rohani v. Gonzales, 03-73798 (9th Cir. Jan. 25, 2006) (unpublished). Schroeder, Freidman, and Fisher, Circuit Judges.

Hashemi-Rohani, a native and citizen of Iran, petitioned for review of a BIA order affirming an Immigration Judge's denial of his applications for asylum, withholding of removal and relief under the Convention Against Torture ("CAT"), and denying his motion to remand based on claims of ineffective assistance of counsel and an incompetent interpreter at his removal hearing. The USCA denied the petition for review. The IJ had identified material inconsistencies between Hashemi-Rohani's asylum application and his testimony regarding purported detention, interrogations and beatings by the Iranian police. Because these inconsistencies go to the heart of Hashemi-Rohani's asylum claim, substantial evidence supports the IJ's adverse credibility determination. See Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir. 2001). In his testimony, Hashemi-Rohani also failed to provide details about the antigovernment fliers he allegedly distributed in Iran. Hashemi-Rohani thus failed to establish eligibility for asylum because he did not meet his burden of providing credible, direct and specific evidence to demonstrate past persecution or a well-founded fear of future persecution. See Prasad v. INS, 47 F.3d 336, 338 (9th Cir. 1995). Because Hashemi-Rohani did not establish that he is eligible for asylum, he did not satisfy the more stringent standard for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). Hashemi-Rohani was not entitled to relief under CAT because he did not demonstrate that it is more likely than not that he would be tortured upon return to Iran. See Malhi v. INS, 336 F.3d 989, 993 (9th Cir. 2003). Finally, the BIA did not abuse its discretion by denying Hashemi-Rohani's motion to remand for a new hearing. His claim of ineffective assistance failed because he had not shown that he was prejudiced by any of the alleged deficiencies in his counsel's preparation for or performance at his hearing. Similarly, the USCA rejected Hashemi-Rohani's contention that he was deprived of due process by an incompetent interpreter because he has not shown that a "better translation likely would have made a difference in the outcome" of the hearing. See Gutierrez-Chavez v. INS, 298 F.3d 824, 830 (9th Cir. 2002).

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