2) TRADEMARKS: Reno Air Racing Association, Inc. v. McCord, 04-16001 (9th Cir. July 7, 2006). McCord appealed the district court's decision and final judgment following a bench trial. The district court entered an award of damages and a permanent injunction against McCord due to his infringement of two trademarks belonging to Reno Air Racing Association, in violation of the Lanham Act of 1946. In addition, the district court found McCord in civil contempt and imposed sanctions based on his violation of an ex parte temporary restraining order issued the same day the complaint was filed. The USCA concluded that the TRO was improvidently issued because it failed to comport with the notice and specificity provisions of Fed. R. of Civ. Proc. 65. The USCA thus vacated and reversed the district court's contempt finding and imposition of sanctions. It affirmed the district court's finding and judgment with respect to trademark infringement. Alarcon and McKeown (author), Circuit Judges, and Holland, District Judge. J. Collachia of Winnetka, CA, for the defendant-appellant; M. Francis of Reno, NV, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

3) TRADEMARKS: Miller v. Glenn Miller Productions, 04-55874 (9th Cir. July 19, 2006). Steven and Jonnie Miller, adopted children of Helen Miller, wife of bandleader Glenn Miller, and their exclusive licensing agent CMG Worldwide Inc. (collectively "appellants") appealed from the district court's order granting defendant Glen Miller Productions ("GMP") summary judgment and dismissing their complaint on the basis of latches. GMP cross-appealed the district court's ruling that it engaged in unauthorized sublicensing and that a licensee of trademark and related publicity rights may not sublicense those rights to third parties without express permission from the original licensor. The USCA agreed with this extension of the well-established "sublicensing rule" from copyright and patent law to the licensing of trademark and related publicity rights such as occurred here, and also agreed with the district court's reasons for extending the rule. It further found that the district court correctly ruled that the appellants were barred by the doctrine of laches from taking legal action now, based on undisputed evidence establishing that they should have known of GMP's allegedly infringing activities much earlier. The USCA thus affirmed. Beezer, Hall, and Wardlaw, Circuit Judges. Per Curiam. B. Wolf of Los Angeles, CA, for the plaintiffs-appellants-cross-appellees; S. Eisenberg of Santa Monica, CA, for the defendant-appellee-cross-appellant.(Download the full text of this decision at www.ce9.uscourts.gov/)

4) ENVIRONMENTAL LAW: Oregon Trollers Association v. Gutierrez, 05-35970 (9th Cir. July 6, 2006). The plaintiffs, who include fishermen, fishing-related businesses, and fishing organizations, sued the National Marine Fisheries Service ("NMFS") and other governmental entities to challenge the NMFS fishery management measures to increase the projected number of wild-spawning Klamath Chinook. These measures substantially limited commercial and, to a lesser extent, recreational fishing in the Klamath Management Zone for 2005. The plaintiffs asserted that the measures conflicted with a number of substantive and procedural requirements set forth in the Magnuson-Stevens Fishery Conservation and Management Act. The district court granted the defendants summary judgment. The USCA affirmed. The publication of the 2005 management measures in the Federal Register was an "action" under the Magnuson Act. It triggered the 30-day limitations period during which the plaintiffs could challenge both the action and the 1989 regulations implementing the Pacific Plan's 35,000 natural spawner escapement floor. The district court thus erred when it held that the plaintiffs' claims challenging the escapement floor were time-barred. However, on the merits, the USCA held that the district court properly rejected each of the plaintiffs' challenges to the 1989 regulation and to the 2005 management measures. Noonan, Tashima, and W. Fletcher (author), Circuit Judges. R. Brooks of Tigard, OR, for the appellants; M. Haag of Washington, DC, for the appellees; R. Smith of Seattle, WA, for the defendants-intervenors-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

5) ENVIRONMENTAL LAW: Northern Alaska Environmental Center v. Kempthorne, 05-35085 (9th Cir. July 26, 2006). The government proposed to lease vast reaches of the northernmost parts of Alaska, known as the Northwest Planning Area ("NWPA"). A group of environmentalists challenged the adequacy of the Final Environmental Impact Statement ("FEIS") prepared by the Bureau of Land Management ("BLM") for its plan to offer long term oil and gas leases in the NWPA. The leases would enable the oil companies to undertake exploration to determine what sites, if any, can be developed for productive drilling. The National Environmental Policy Act ("NEPA") requires an assessment of the effects of major federal action on the surrounding environment. The plaintiffs maintained that the FEIS issued by the Secretary and BLM to open the NWPA to oil and gas leasing failed to comply with the requirements of NEPA. Their main contention was that the analysis undertaken for the EIS was inadequate because it lacked site specific analysis for particular locations where drilling might occur. The government responded, and the USCA thought cogently, that no such drilling site analysis is possible until it is known where the drilling is likely to take place, and that can be known only after leasing and exploration. The government pointed out that the environmental consequences at specific sites can be assessed in connection with later applications for permits for drilling at those sites, and that no permits should issue without extensive site specific analysis of adverse environmental effects and of the mitigation measures appropriate to minimize them. On that basis, the USCA affirmed the district court's summary judgment in favor of the government. Schroeder (author), Alarcon, and Kleinfeld, Circuit Judges. D. McDonnell of Juneau, AK, for the appellants; J. Bryson of Washington, DC, for the appellees; J. Leppo of Seattle, WA, for the defendants-intervenors-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

6) ENVIRONMENTAL LAW: Pakootas v. Teck Cominco Metals, Ltd., 05-35153 (9th Cir. July 3, 2006). Pakootas and Michel, both enrolled members of the Confederated Tribes of the Colville Reservation, filed suit to enforce a Unilateral Administrative Order issued by the U.S. Environmental Protection Agency against Teck Cominco Metals, a Canadian corporation. The Order required Teck to conduct a remedial investigation / feasibility study in a portion of the Columbia River entirely within the U.S., where hazardous substances disposed of by Teck have been located. At issue on appeal was whether a citizen suit based on Teck's alleged non-compliance with the Order is a domestic or an extraterritorial application of CERCLA, 42 USC Secs. 9601-9675. The USCA also addressed Teck's argument that it is not liable for having "arranged for disposal" of hazardous substances because it disposed of the hazardous substances itself, rather than arranging for disposal "by any other party or entity." The USCA held that because CERCLA liability is triggered by an actual or threatened release of hazardous substances, and because a release of hazardous substances took place within the United States, this suit involves a domestic application of CERCLA. The USCA also rejected Teck's contention that it is not liable under CERCLA Sec. 9607(a)(3) because it disposed of the hazardous substances. Gould (author) and Berzon, Circuit Judges, and Schwarzer, District Judge. K. Fong of San Francisco, CA, for the defendant-appellant; P. Dayton of Seattle, WA, for the plaintiffs-appellees. AAG A. Smith of Olympia, WA, for the plaintiff/intervenor-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

7) ENVIRONMENTAL LAW: Western Watersheds Project Committee for Idaho's High Desert v. Matejko, 05-35178 (9th Cir. July 24, 2006). Section 7(a)(2) of the Endangered Species Act ("ESA"), codified at 16 USC Sec. 1536(a)(2), requires consultation with the Secretary of the Interior or Secretary of Commerce if there is "any action authorized, funded, or carried out by" a federal agency (here the Bureau of Land Management ("BLM")) that could jeopardize any endangered or threatened species, or destroy or adversely modify habitat of such species. This appeal presented the question of whether the BLM's failure to regulate certain vested rights-of-way held by private landowners to divert water for irrigation uses constitutes "action authorized, funded, or carried out" by the BLM so as to require consultation. The district court required the BLM to consult, finding that the BLM had discretion to regulate the diversions and that its failure to exercise such discretion constituted "action." The USCA reversed. It found that the duty to consult is triggered by affirmative actions; because there was no such "action" here, there was no corresponding duty to consult. B. Fletcher and McKeown, Circuit Judges, and King (author), District Judge. D. Shilton of Washington, DC, for the defendants-appellants; DAG C. Smith of Boise, ID, for the defendant-intervenor-appellant; L. Lucas of Boise, ID, for the plaintiff-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

8) HAZARDOUS MATERIALS: Nuclear Information and Resource Service v. U.S. Dept. of Transportation Research and Special Programs Administration, 05-16327 (9th Cir. July 24, 2006). The Nuclear Information and Resource Service, Committee to Bridge the Gap, Public Citizen, Inc., Redwood Alliance, and the Sierra Club (collectively "NIRS") appealed the district court's dismissal of NIRS's challenge to the Dept. of Transportation's ("DOT") rulemaking for lack of subject matter jurisdiction. The district court held that the USCA has exclusive jurisdiction under 49 USC Sec. 20114(c), which provides that any proceeding to review a final action of the Secretary of Transportation under the Hazardous Materials Transportation Act "as applicable to railroad safety," shall be brought in the USCA pursuant to the Hobbs Act. The USCA agreed with the district court that because the challenged DOT rule regulates transportaiton of hazardous materials by rail, as well as by other means, exclusive jurisdiction lies in the USCA. Rymer (author) and Wardlaw, Circuit Judges, and Selna, District Judge. P. Lamboley of San Francisco, CA, for the appellants; J. Smeltzer of Washington, DC, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

9) HAZARDOUS MATERIALS: Nuclear Information and Resource Service v. Nuclear Regulatory Commission, 04-71432 (9th Cir. July 24, 2006). The Nuclear Information and Resource Service, Committee to Bridge the Gap, Public Citizen, Inc., and Redwood Alliance (collectively "NIRS") challenged the Nuclear Regulatory Commission rulemaking, which revised regulations governing the exemption standards for the transportation of radioactive materials. NIRS maintained that NRC failed to comply with its obligations under the National Environmental Protection Act by not preparing an Environmental Impact Statement and making a finding of no significant impact without basis. The USCA found that the NIRS lacked standing to bring its complaint in federal court and that neither injury in fact nor redressability had been established. The USCA thus dismissed NIRS's petition for review. Rymer (author) and Wardlaw, Circuit Judges, and Selna, District Judge. J. Farrow of San Francisco, CA, for the petitioners; G. Kim of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

10) INTERNET LAW: Federal Trade Commission v. Cyberspace.com LLC, 04-35428 (9th Cir. July 13, 2006). At issue here was whether a mail solicitation for internet service was deceptive as a matter of law within the meaning of the Federal Trade Commission Act ("FTCA"). Between January 1999 and mid-2000, the defendants mailed some 4.4 million solicitations offering internet access to individuals and small businesses. The solicitations included a check attached to an invoice designed to be detached from the check by tearing at the perforated line. The back of the check and invoice contained small-print disclosures revealing that cashing or depositing the check would constitute agreement to pay a monthly fee for internet access, but the front of the check and the invoice contained no such disclosures. Another small-print disclosure explained that the monthly fee would be billed to the customer's phone bill after the check was cashed. Based on its belief that the solicitations were deceptive in violation of Sec. 5 of the Act, the FTC sought an injunction and consumer redress in the district court pursuant to FTCA Sec. 13(b). The district court entered two stipulated permanent injunctions in which the defendants agreed to cease the practice at issue without admitting to a FTCA Sec. 5 violation. The parties then filed cross-motions for summary judgment on the issues of liability and consumer redress. The district court granted the FTC's motion in part, concluding that the solicitation violated Sec. 5 as a matter of law and that defendant Eisenberg was liable for the Sec. 5 violation in his individual capacity as a matter of law. The district court held a one-day bench trial on consumer redress in which it concluded that the proper amount of consumer redress was $17,676,897. The USCA affirmed. First the district court properly granted summary judgment to the FTC on the Sec. 5 violation because no reasonable factfinder could conclude that the solicitation was not likely to mis-lead consumers acting reasonably under the circumstances in a way that is material. Second, the undisputed evidence demonstrated that Eisenberg reviewed at least some of the solicitation checks before they were mailed, and that Reese, the billing manager for one of the defendant companies had numerous conversations with Eisenberg about consumer complaints in which Reese told Eisenberg that "there were a lot of customers who didn't know they were customers [because] AR [Accounts Receivable] did not know what that check represented." This undisputed evidence was sufficient, as a matter of law, to demonstrate that Eisenberg knew the facts constituting the Sec. 5 violation or at the vest least was recklessly indifferent to the truth. O'Scannlain (author), Silverman, and Gould, Circuit Judges. R. Townsend of Seattle, WA, for the appellants; M. Kerst of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

11) SECURITIES / RECEIVERSHIP ASSETS: Benson v. Lennon, 04-35339 (9th Cir. July 12, 2006). At issue on this appeal was whether a district court order determining the rights and liabilities of some, but not all, claimants to receivership assets is a final decision under 28 USC Sec. 1291. The USCA held that, unless the district court certifies the order and directs entry of judgment pursuant to Fed. R. of Civ. Proc. 54(b), such an order is not a final decision. Brunetti, T.G. Nelson, and Paez, Circuit Judges. Per Curiam. J. Stephens of Portland, OR, for the appellants; L. Pedowitz of San Diego, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

12) LABOR LAW: Deveraturda v. Globe Aviation Security Services, 04-16633 (9th Cir. July 24, 2006). At issue on this appeal was whether the Worker Adjustment and Retraining Notification Act, 29 USC Sec. 2101, et seq., which prohibits an employer from ordering a mass layoff without giving 60 days' notice, applies to a mass layoff of employees who worked for a private employer as airport security screeners until the U.S. government federalized airport security services and took over operations at their airport. The plaintiffs were employed by Globe Airport Security Services to provide screening services at the San Jose International Airport. Believing that Globe should have given them 60 days' notice under the Act, which it did not do, the plaintiffs brought a class action for relief. The district court granted Globe's motion for judgment on the pleadings, holding that it was the federal government that took over control of airport security without any ability on Globe's part to dictate the nature, scope, or timing of the takeover. As it was the government that ordered the layoffs and ousted Globe from providing security personnel at the airport, the court concluded that the Act did not apply. The USCA agreed that the Act did not apply, and affirmed. Rymer (author) and T.G. Nelson, Circuit Judges, and King, District Judge. G. Emblidge of San Francisco, CA, for the appellants; S. McAdam of Sacramento, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

13) ERISA: Chuck v. Hewlett Packard Co., 04-36094 (9th Cir. July 25, 2006). Chuck appealed the district court's grant of a summary judgment motion put forward by several Hewlett Packard Company defendants. His principal claim was that HP's Deferred Profit-Sharing Retirement Plan, which is governed by ERISA, owes him additional retirement benefits arising from his employment at HP until 1980. He also sought relief from the Plan's alleged breach of its fiduciary duties and for its failure to provide him with Plan-related documents as required by 29 USC Secs. 1021-1024. At issue on appeal was a matter of first impression in this Circuit: whether ERISA's statute of limitations may bar a claim for benefits notwithstanding a plan's failure to fulfill its disclosure and review obligations under Sec. 503 of ERISA, 29 USC Sec. 1133. The USCA held that a plan's material violation of Sec. 1133 is a factor that militates strongly against a finding that the statute of limitations has begun to run against a claimant, but that a compelling showing of circumstances in this case nevertheless indicated that Chuck's benefits claim was time-barred on account of his own actions. The USCA thus held that Chuck lacked statutory standing to bring his claim under ERISA. D.W. Nelson (author) and O'Scannlain, Circuit Judges, and Burns, District Judge. K. Anuta of Portland, OR, for the plaintiff-appellant; J. Busch of Irvine, CA, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

14) TORTS: Soldano v. USA, 03-17391 (9th Cir. July 12, 2006). John Soldano was driving his motorcycle west on the two-lane Big Oak Flat Road in Yosemite National Part, a road familiar to Soldano, who had driven it many times. His wife sat behind him. They were cruising between 30 and 35 m.p.h., consistent with the Road's 35 m.p.h. speed limit. As they came around a bend in the road approach-ing the Cascade Creek Bridge, they were startled to find a van stopped in their lane. It was waiting to turn left across the Road's dou-ble, solid yellow lines to enter the Cascade Creak Bridge vista point adjacent to the Road. Soldano claims he attempted to break, but had to veer into the east-bound lane and oncoming traffic when he realized he had insufficient room to stop before colliding with the van. As a result, the Soldanos crashed head-on into another van. Soldano suffered severe injuries rendering him a paraplegic. He was also cited for improper crossing of double, solid yellow lines. He sued the United States under the Federal Tort Claims Act ("FTCA") for damages. The district court granted summary judgment against Soldano, finding that his claims of governmental negligence failed for lack of evidence or were barred by the discretionary function exception to the FTCA. The USCA affirmed in part, but reversed the district court's application of the discretionary function exception to Soldano's clam that the government failed to set a safe speed limit at the accident site. Although it agreed with the district court that the discretionary function exception shielded the government from liability arising from challenges to its overall design of the Road and the means by which the Service effected that design-including such placement and configuration choices as the creation of the Cascade Creek Bridge vista point-the USCA held that the government was not insulated from the claim that it negligently set an unsafe speed limit for this part of the Road, relative to its design. Goodwin, B. Fletcher, and Fisher (author), Circuit Judges. R. Brown of Santa Ana, CA, for the appellants; AUSA K. Kepetan of Fresno, CA, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

15) PROPERTY / DISCRIMINATION: Dubois v. Association of Apartment Owners of 2987 Kalakaua, 04-15695 (9th Cir. July 13, 2006). Dubois and Prindable sued a condominium association, two association board members, the property management company, and one of its employees for refusing to permit them to keep a dog in their condo near Diamond Head in Honolulu, Hawaii.. They maintained that the defendants discriminated against them in violation of the Fair Housing Act ("FHA") by failing to make a reasonable accommodation for Prindable's disability. Dubois and Prindable submitted letters from doctors recommending that they keep their dog for "medical reasons" because Prindable suffered from depression, he would benefit from animal-assisted therapy, separation from the dog would exacerbate his condition, and keeping the dog would be a reasonable accommodation to Prindable's mental illness. The district court granted the defendants summary judgment. The USCA affirmed. Although the parties argued various issues at length, the sim-ple answer to this suit was found in the fact that the Condominium Association never required Einstein to leave and thus never refused to make the requested accommodation, which is an essential elements of the FHA claim. Dubois and Prindable kept their dog from the day they brought him home in January 2000 until the day they vacated their unit in September 2003. After Prindable requested an accommodation, the Condominium Association granted them a temporary exemption from the bylaws while it investigated and decided what to do. Since it never refused to make the requested accommodation, the plaintiffs' FHA claim necessarily failed. Summary judgment in favor of the defendants on the FHA discrimination claim was thus appropriate. Hawkins, McKeown, and Clifton (author), Circuit Judges. S. Luiz of Honolulu, HI, for the appellant; L. Andrews of Honolulu, HI, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

16) VEXATIOUS LITIGANTS: Ignacio v. Armstrong, 03-17181 (9th Cir. July 12, 2006). Ignacio appealed the district court's dismissal of his complaint alleging that all the judges of the Ninth Circuit, other federal and state judges, public officials, and certain private individuals, conspired to dismiss his previous lawsuits. The USCA affirmed the district court and held, under the "rule of necessity," that it is not disqualified from deciding Ignacio's appeal. It further held that the district court properly determined that it had no subject matter jurisdiction to consider the action because Ignacio's claims amounted to collateral attacks on a state court determination. Schroeder, Trott (author), and Kleinfeld, Circuit Judges. T. Ignacio pro se. (Download the full text of this decision at www.ce9.uscourts.gov/)

17) ATTORNEYS' FEES: Tutor-Saliba Corporation v. City of Hailey, 04-35424 (9th Cir. July 3, 2006). Tutor filed this 42 USC 1983 action after the defendants denied him permission to land his Boeing Business Jet at Friedman Memorial Airport in Hailey, Idaho. The district court granted the defendants summary judgment on all claims. The defendants then filed a post-judgment motion for attorneys' fees and costs under 42 USC Sec. 1988. The district court found that all but two of Tutor's claims frivolous, and granted the defendants' motion for fees and costs incurred in defending against Tutor's frivolous claims, while denying the motion with respect to fees and costs incurred in defending against Tutor's non-frivolous claims. Tutor moved to vacate the fee order, arguing that (1) the district court applied an improper legal standard when evaluating the motion for fees and costs; (2) because the district court found that two of the claims were not frivolous, the entire Sec. 1983 cause of action was necessarily not frivolous; and (3) the district court's fee alloca-tion, including costs, was unreasonable and not supported by the record. The district court denied Tutor's motion to vacate and Tutor next raised the same issues on appeal. The USCA affirmed the district court's holding that the defendants were entitled to partial fees and costs incurred in defending against Tutor's frivolous claims. However, because the district court failed to explain adequately how it arrived at the amount of its award, the USCA vacated the award and remanded so that the district court could further elucidate its reasoning. Brunetti, Tashima (author), and Paez, Circuit Judges. P. Bailey of Santa Monica, CA, for the plaintiffs-appellants; W. Pilsk of Washington, DC, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

18) AMERICANS WITH DISABILITIES ACT: Dark v. Curry County, 04-36087 (9th Cir. July 6, 2006). At issue here was a claim brought by an epileptic heavy-equipment operator, Robert Dark, for the Curry County Road Department under the Americans with Disabilities Act. He suffered an epileptic seizure and fell unconscious while driving a County pickup truck. Following an examination, a neurologist concluded that "because of the presence of poorly controlled idiopathic epilepsy, [Dark] should not work in high places, he should not work around moving machinery where sudden loss of consciousness would endanger either himself or others, and this would appear to severely limit him from the duties of the job described." The Road Department placed Dark on administrative leave and, during this process, his commercial driver's license was suspended. The Road Department held a disciplinary hearing at which Dark was represented by counsel. He admitted to having experienced an aura on the morning of the incident. An aura is "akin to a nervous jerk" and indicates "the potential for a seizure on the day of the aura," and "typically no sooner than one hour later." The De-partment terminated Dark's employment, concluding that he could not perform the essential functions and duties of his position and that his continued employment posed a threat to the safety of others. The County Board of Commissioners affirmed this decision, adding that Dark had "acted irresponsibly, recklessly, and with a total disregard for the safety of himself, other employees, and members of the public." On Dark's complaint, the EEOC ruled that the evidence did not establish a violation of the Americans with Disabilities Act and declined to sue the County on Dark's behalf, but it permitted him 90 days within which to initiate a private action. Dark then filed this action. The Magistrate recommended granting the County's motion for summary judgment and the district court adopted this rec-ommendation. The USCA reversed an remanded, holding that Dark is entitled to a jury trial and that the County is not entitled to sum-mary judgment. The County did not argue that Dark's "misconduct" resulted from other than his disability. Thus the Board of Com-missioners' explanation, as a matter of law, failed to qualify as a legitimate, nondiscriminatory explanation for Dark's discharge. But, even if the Board's explanation were legitimate and non-discriminatory, the USCA said it must still consider it in light of the ADA's standard of causation. Causation, the USCA noted, is a factual inquiry, and it was satisfied that there is record evidence sufficient that a jury could reasonably find that Dark was terminated for an impermissible reason. That record included evidence of six separate accidents for which other Road Department workers went undisciplined. Such evidence gave rise to a genuine issue of material fact as to whether Dark's disability was a motivating factor for his termination. D.W. Nelson and O'Scannlain (author), Circuit Judges, and Burns, District Judge. M. Hernandez of Bandon, OR, for the appellant; J. Montgomery of Springfield, OR, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

19) AMERICAN WITH DISABILITY ACT: Pickern v. Pier 1 Imports,. 04-17118 (9th Cir. July 26, 2006). Pickern appealed the district court's grant of summary judgment to appellees Pier 1 Imports and the Siegmund Weinstock Family Trust. In granting summary judgment, the district court held that the appellees had no obligation under Title III of the Americans with Disabilities Act to build an access ramp to a Pier 1 Imports store over land owned and operated by the City of Chico, California. The district court also decided that it need not address allegations of additional ADA violations because Pickern's pleadings did not provide sufficient notice of those allegations and because Pickern submitted the expert report supporting those allegations after the deadline contained in the court's scheduling order. The USCA affirmed. Hug (author), Alarcon, and McKeown, Circuit Judges. S. Hubbard of Chico, CA, for the appellants; R. Cortez of Dallas, TX, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

20) SOCIAL SECURITY: Widmark v. Barnhart,. 04-35952 (9th Cir. July 26, 2006). Widmark appealed a decision of the district court affirming the Social Security Commissioner's denial of benefits. An ALJ found Widmark, though severely impaired, had the residual functional capacity for the full range of light work. Widmark argued that, in reaching this decision, the ALJ rejected the medical opinion of an examining physician without offering adequate reasons. He also claimed that the ALJ erred in using the Medical-Vocational Guidelines in making his disability determination. The USCA reversed and remanded, holding that the ALJ improperly rejected the ex-amining physician's opinion regarding Widmark's thumb. It also held that this error made the ALJ's use of the Medical-Vocational Guidelines in his final disability determination improper. Judge O'Scannlain dissented from the majority's conclusion that the thumb abnormality Dr. Greenleaf observed did not significantly limit the range of work permitted by Widmark's exertional limitations. He was persuaded that substantial evidence supported the denial of Widmark's application for Disability Insurance Benefits and Supplemental Security Income. Browning (author), D.W. Nelson, and O'Scannlain (dissenting in part), Circuit Judges. T. Wilborn of West Linn, OR, for the appellants; AAG R. McCallum of Seattle, WA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

21) SOCIAL SECURITY: Stout v. Commissioner,. 04-36006 (9th Cir. July 25, 2006). Stout appealed the district court's judgment affirming the Social Security Commissioner's denial of his applications for Disability Insurance Benefits and Supplemental Security Income under Titles II and XVI of the Social Security Act. Stout maintained that the ALJ improperly disregarded lay testimony regarding his inability to work. Finding that the ALJ failed to discuss competent lay witness testimony favorable to Stout, and that error was not harmless, USCA reversed and remanded. Substantial evidence did not support the Commissioner's decision that Stout could perform his previous work as a vine pruner. Judge O'Scannlain dissented from the majority's conclusion that the ALJ's failure to comment properly on the lay witness testimony of Stout's sister and brother-in-law was not harmless error. He was persuaded, as was the district court, that even if the lay witness testimony is credited, all the evidence taken as a whole overwhelmingly supported denial of Stout's application of Disability Insurance Benefits and Supplemental Security Income. Browning (author), D.W. Nelson, and O'Scannlain (dissenting), Circuit Judges. A. Graf of Portland, OR, for the appellant; AAG R. McCallum of Seattle, WA, for the appel-lee. (Download the full text of this decision at www.ce9.uscourts.gov/)

22) CHILD CUSTODY / ATTORNEYS' FEES: Elwood v. Drescher, 04-55635 (9th Cir. July 28, 2006). These appeals arose out of litigation initiated by Elwood over custody of two of her children. She brought two 42 USC Sec. 1983 actions alleging conspiracies by various participants in state court proceedings to deprive her of custody of her children. The district court dismissed the actions and the USCA affirmed. Elwood v. Morin, 84 Fed. App'x 964 (9th Cir. 2004); Elwood v. Morin, 87 Fed. App'x 617 (9th Cir. 2004); and Elwood v. Drescher, 90 Fed. App'x 501 (9th Cir. 2004). The district court then ruled on applications for attorneys' fees under 42 USC Sec. 1988. It found the underlying actions to have been frivolous and awarded fees to defendants. Elwood appealed those awards. At issue was whether the fee awards in Elwood v. Drescher, Appeal 04-55635, were proper as a matter of law. This raised to sub-issues: (1) whether Drescher, as a pro se attorney-defendant, is entitled to a fee award, and (2) whether the state defendants were entitled to a fee award when the claims against them were dismissed based on Younger abstention, the Rooker-Feldman doctrine, or the Eleventh Amendment. While the district court found Elwood's claims frivolous, normally authorizing an fee award to prevailing defendants, the USCA held that fees may not be awarded to a pro se attorney-defendant, or to defendants dismissed on Younger abstention or Rooker-Feldman grounds. However, based on Circuit precedents, the USCA held that the state defendants dismissed on the basis of the Eleventh Amendment were entitled to recover attorney's fees. The USCA thus vacated the fee awards to Drescher and to the state commissioner, referee, and judges. The USCA affirmed the award of fees to Hutchinson and the state Department of Justice, but remanded for a recalculation of the award to the state defendants. Thomas and Gould, Circuit Judges, and Schwarzer (author), District Judge. P. Barry of Los Angeles, CA, for the appellants; R. Drescher pro se, A. Brenner of Pasadena, CA, and DAG S. Barrientos of Los Angeles, CA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

23) DIVERSITY JURISDICTION: Lively v. Wild Oats Markets, Inc., 04-56682 (9th Cir. July 27, 2006). Wild Oaks Market appealed the district court's order remanding this action to state court. It had removed the action to the District Court for the Central District of Cali-fornia maintaining that, because the parties were completely diverse and the amount in controversy exceeded $75,000, diversity jurisdic-tion existed under 28 USC 1332 and thus removal was proper under 28 USC Sec. 1441(a). Plaintiff Lively did not object to the removal. However, after the case had been pending for approximately eight months, the district court, acting sua sponte and invoking its author-ity under 28 USC Sec. 1441(c), determined that diversity jurisdiction did not exist because Wild Oats, contrary to the removal require-ment of 28 USC Sec. 1441(b), was a citizen of the State of California. Treating this requirement as a jurisdictional limitation on Wild Oats' right of removal under Sec. 1441(a), the district court remanded Lively's action to state court. Although Wild Oats did not dispute that it is a citizen of California and thus a forum defendant within the meaning of Sec. 1441(b), it argued that its violation of the forum defendant rule was a procedural defect in the removal process, which Lively had to raise within the 30 days following removal as required by Sec. 1447(c). Because Lively did not object within the 30-day period, Wild Oats maintained that Lively waived the defect and the district court lacked authority to remand. At issue on appeal was whether the forum defendant rule contained in Sec. 1441(b) is jurisdictional or procedural, and thus whether a violation of the rule constitutes a jurisdictional or procedural defect. The issue had been addressed by nine other circuits, but was an issue of first impression in the Ninth. Joining eight of those circuits, the USCA held that the forum defendant rule is procedural, and thus that a violation of the rule is a waivable defect in the removal process that cannot form the basis for a district court's sua sponte remand order. Because the forum defendant rule is non-jurisdictional, the USCA further held that 28 USC Sec. 1447(d) did not bar review of the district court's remand order, which was based on Wild Oaks' violation of the forum defendant rule. Hawkins and Paez (author), Circuit Judges, and Wake, District Judge. R. Koep of Calabasas, CA, for the appellant; L. Tavera of Los Angeles, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

24) CIVIL PROCEDURE / RULE 60(b): Latshaw v. Trainer Wortham & Company,. 03-57230 (9th Cir. July 6, 2006). Latshaw appealed the district court's denial of her motion under Rule 60(b) of the Fed. R. Civ. Proc. for relief from the judgment that resulted from her acceptance of an offer of judgment under Fed. R. Civ. Proc. 68. She argued that she accepted the offer under coercion from and based upon fraud by her counsel, who allegedly gave her erroneous legal advice and threatened to resign from the case if she did not accept the offer. The USCA was not persuaded and affirmed the district court's decision. Generally speaking, the USCA noted, Rule 60(b) is not intended to remedy the effects of a deliberate and independent litigation decision that a party later comes to regret through second thoughts or subsequently gained knowledge that corrects prior erroneous legal advice of counsel. The district court's refusal to relieve Latshaw from her decision was not an abuse of discretion. Pregerson, Clifton (author), and Bybee, Circuit Judges. H. Steinberg of New York, NY, for the appellant; D. Tyukody of Los Angeles, CA, for the appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

25) NATIVE AMERICAN LAW: Marceau v. Blackfeet Housing Authority, 04-35210 (9th Cir. July 21, 2006). Plaintiffs represent members of the Blackfeet Indian Tribe who purchased or leased homes built under the auspices of the Department of Housing and Urban Development Mutual Help and Homeownership Program. The homes were built with wood foundations, using wood pressuretreated with arsenic and other toxic chemicals. The plaintiffs alleged that this use of wood foundations caused their homes to deteriorate, and continues to cause severe health problems for the homes' residents. They sued HUD and the Blackfeet Tribal Housing Authority and its board members alleging numerous statutory and contractual violations. The USCA reversed the district court's dismissal of the claims against the Housing Authority and affirmed dismissal of the claims against HUD. Concurring, Judge Pregerson wrote separately to point out the manifest injustice of releasing the federal government from responsibility in this suit. The relationship between the federal government and the tribe has been one of promises carelessly made and callously broken, he said, adding that here we see that in the area of tribal housing we as a nation have ignored the collateral consequences of our conduct toward the American Indians and have utterly failed to live up to our promises. We have, Judge Pregerson thought, a moral duty, if not a legal duty, to remedy the harm caused to these plaintiffs. Pregerson (author and concurring), Graber, and Gould, Circuit Judges. J. Simkovic of Billings, MT, for the appellants; AUSA T. Cavan of Billings, MT, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

26) IMMIGRATION: Zehatye v. Gonzales, 04-73295 (9th Cir. July 13, 2006). Zehatye, a native and citizen of Eritrea, challenged the Board of Immigration Appeals' denial of her application for asylum and withholding of removal based on her status as a Jehovah's Witness. The USCA affirmed. The Immigration Judge's decision to deny asylum and withholding of removal was supported by rea-sonable, substantial, and probative evidence in the record. The evidence that Zehatye suffered some degree of social ostracism and economic hardship due to her religion did not rise to the level of persecution. In addition, the government's mandatory conscription policy did not establish that Zehatye had suffered past persecution or that she had a well-founded fear of future persecution based on her religion. Dissenting, Judge Berzon would grant the petition and remand for further consideration, as she thought the IJ's decision, summarily affirmed by the BIA, was based on clear errors regarding certain facts in the record and complete disregard of others. Berzon (dissenting), Rawlinson, and Callahan (author), Circuit Judges. R. Jobe of San Francisco, 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/)

27) IMMIGRATION: Franco-Rosendo v. Gonzales, 04-75173 (9th Cir. July 18, 2006). The petitioners, natives and citizens of Mexico, sought review of the BIA's denial of their motion to reopen. They presented evidence that the wife had become critically ill and that traveling to Mexico could threaten her health. They urged that they had become eligible for cancellation of removal and provided a letter from the wife's doctor explaining that her illness "may be, in fact, life threatening," and that "it is essential that [she] be allowed to remain in the area and receive the proper evaluation and proper medical care." The USCA granted the petition and remanded to the BIA for further consideration. Instead of evaluating the favorable factors and the evidence, the BIA had considered only the petition-ers' failure to depart, even though it assumed that they were eligible for relief. Where, as here, a petitioner is eligible for relief, misconduct does not change the BIA's responsibility to weigh all the factors, positive and negative. The BIA's failure to identify and evaluate the favorable factors here was an abuse of discretion. Reinhardt (author), Trott, and Wardlaw, Circuit Judges. C. Vellanoweth 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/)

28) IMMIGRATION: Garcia-Quintero v. Gonzales, 03-73930 (9th Cir. July 24, 2006). The petitioner sought review of a Board of Immigration Appeals' order finding him removable for alien smuggling, and ineligible for cancellation of removal due to his failure to accrue seven years of continuous residence in the U.S. after being "admitted in any status." At the removal hearing, his counsel attempted to assert the Fifth Amendment's right against self-incrimination on behalf of the petitioner. The Immigration Judge required the petitioner to assert his Fifth Amendment right himself, but allowed his attorney to advise him about when to exercise that right. After invoking the Fifth Amendment several times, the petitioner admitted that he tried to help his goddaughter unlawfully enter the United States. On the basis of this testimony, the IJ ordered the petitioner removed for having engaged in alien smuggling. The petitioner appealed the IJ's ruling to the BIA. In addition to challenging the IJ's procedure for invoking the Fifth Amendment, he moved to remand his case so the IJ could consider his application for cancellation of removal. The BIA rejected his appeal and denied his motion because he failed to satisfy the seven-year continuous residence requirement for cancellation of removal. The BIA concluded that the petitioner's status as a beneficiary of the Family Unity Program did not render him "admitted in any status" for the purpose of cancellation of removal. The USCA held that the BIA's unpublished non-precedential order did not merit Chevron deference. However, the order is eligible for some deference under Skidmore. As for the merits of the petitioner's claim for cancellation of removal, he had raised an issue of first impression in this circuit-whether his acceptance into the Family Unity Program rendered him "admitted in any status" for the purpose of cancellation of removal. The USCA held that it did and thus found the petitioner eligible for cancellation of removal. Finally, it held that where the IJ allowed the petitioner's counsel to advise him when to invoke the privilege, and when the petitioner had successfully done so in response to several questions, the IJ did not violate his Fifth Amendment rights, and the removal proceedings was proper. The USCA thus granted the petition in part and remanded and denied in part. Judge Graber concurred in the majority's analysis of the Fifth Amendment issue and agreed that the deference owed the BIA is defined by Skidmore v. Swift & Co., 323 US 134 (1944), rather than by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). However, she dissented from the majority's conclusion that the BIA misinterpreted 8 USC Sec. 1229b(a)(2). Hawkins, Graber (dissenting in part), and Paez (author), Circuit Judges. G. Finn of Indio, 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: Gu v. Gonzales, 02-74417 (9th Cir. July 21, 2006). Gu, a native and citizen of China, petitioned for review of a decision of the Board of Immigration Appeals affirming an immigration judge's denial of Gu's application for asylum. The USCA denied review, finding that a reasonable factfinder would not be compelled to conclude that Gu either suffered past persecution or had a well-founded fear of persecution. Dissenting, Judge Pregerson thought the record compelled the USCA to find that GU established past persecution on account of his Christian religious practices and that he is eligible for asylum under 8 USC Sec. 1101(a)(42)(A). Preger-son (dissenting), Beezer (author), and Tallman, Circuit Judges. J. Porta of Los Angeles, CA, for the petitioner; D. McClain of Wash-ington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

30) IMMIGRATION: Kepilino v. Gonzales, 04-71926 (9th Cir. July 26, 2006). Kepilino, a native and citizen of South Korea, appealed the Board of Immigration Appeals' summary affirmance of the immigration judge's decision finding her inadmissible under Sec. 212(a)(2)(D)(i) of the Immigration and Nationality Act. The IJ held that Kepilino's 1999 prostitution conviction under Hawaii Revised Statute Sec. 712-1200 rendered her inadmissible under Sec. 212(a)(2)(D)(i), which renders inadmissible any alien who "is coming to the United States solely, principally, or incidentally to engage in prostitution, or has engaged in prostitution within 10 years of the date of application for a visa, admission, or adjustment of status." The USCA granted the petition and reversed the IJ's finding that Kepilino's prostitution conviction under HRS Sec. 712-1200 rendered her inadmissible under Sec. 212(a)(2)(D)(i). It agreed with Kepilino that Hawaii's definition of prostitution encompasses acts outside the scope of Sec. 212(a)(2)(D)(i)-that is, it criminalizes conduct that does not necessarily involve sexual intercourse such as the mere touching of the intimate parts of another through clothing. B. Fletcher, Pregerson (author), and Hall, Circuit Judges. G. Singh of Honolulu, HI, for the petitioner; DAG B. O'Connor of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

31) IMMIGRATION: Navarro-Lopez v. Gonzales, 04-70345 (9th Cir. July 31, 2006). The petitioner sought review of a final removal order. He maintained that the Board of Immigration Appeals ("BIA") erred in summarily affirming an immigration judge's decision that the petitioner's conviction under California Penal Code Sec. 32 for accessory after the fact was a conviction involving a crime of moral turpitude. Based on that conviction, the BIA found the petitioner inadmissible and ineligible for cancellation of removal. The USCA denied the petition for review. Because an accessory after the fact conviction under Sec. 32 requires a knowing, affirmative act to conceal a felony with the specific intent to hinder or avoid prosecution of the perpetrator, it is contrary to the duties owed society and constitutes a crime of moral turpitude. Dissenting, Judge Pregerson thought that the majority's decision represented an unwarranted expansion of the definition of crimes involving moral turpitude and contravened Circuit precedent. The majority, he said, held that a conviction under Sec. 32 for accessory after the fact is categorically a crime involving moral turpitude, even though one could be convicted under that statute for acts as sympathetic as providing food or shelter to one's own child if you knew the child has committed even the most minor felony. Pregerson (dissenting) and Leavy (author), Circuit Judges, and Beistline, District Judge. J. Patterson of San Diego, CA, for the petitioner; S. Greenstein of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

32) IMMIGRATION: Salviejo-Fernandez v. Gonzales, 04-76383 (9th Cir. July 31, 2006). The petitioner, a native and citizen of the Philippines, sought review of the Board of Immigration Appeals' dismissal of his appeal of an immigration judge's decision finding him ineligible for cancellation of removal. The BIA held that the petitioner's conviction under Cal. Health and Safety Code Sec. 11366 for opening or maintaining a place for the purpose of unlawfully selling a controlled substance was an aggravated felony barring the relief of cancellation of removal under 8 USC Sec. 1229b(a)(3). Following de novo review, the USCA denied the petition. A conviction under Sec. 11366 requires that the defendant act "with the purpose" the full range of conduct covered by Sec. 113366 fell within the meaning of 21 USC Sec. 856(a). Under the categorical approach, the BIA thus did not err when it concluded that the petitioner's Sec. 11366 conviction constituted an aggravated felony. Dissenting, Judge Pregerson thought the case presented two issues of first impression. First, the majority held that a Notice of Appeal need not charge all relevant criminal conduct, despite a Department of Homeland Security regulation to the contrary. Second, it concluded after only sparse analysis that Sec. 11366 is categorically an aggravated felony. Be-cause he disagreed with the majority's legal analysis and its conclusion that removal was appropriate for this petitioner, a long-term legal resident, Judge Pregerson dissented. Pregerson (dissenting) and Leavy (author), Circuit Judges, Beistline, District Judge. Salviejo-Fernandez per se; J. Lightbody of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

33) GRAND JURIES: USA v. Cortez-Rivera, 05-50207 (9th Cir. July 24, 2006). The defendant appealed his conviction following a conditional guilty plea for importation of marijuana in violation of 21 USC Secs. 952 and 960. He maintained that the district court should have dismissed his indictment because the model instructions given to the grand jurors unconstitutionally invaded the province of the grand jury. He also asserted that the district court erred in denying his motion to suppress marijuana found during a border search of his vehicle because the search damaged his vehicle, thereby requiring that the customs officers have reasonable suspicion prior to commencing the search. The USCA affirmed. The model charge given the grand jury did not violate the defendant's Fifth Amendment right to indictment by a grand jury. The model instruction did not infringe upon the grand jury's independence because it used the term "should" rather than "shall," giving the grand jury leeway to depart from the instruction. This leeway, albeit slight, was sufficient to immunize the instruction from constitutional infirmity. In addition, the USCA held that a defendant who moves to suppress evidence discovered during a border search of his vehicle bears the burden of demonstrating that the search damaged the vehicle and that the damage affected the vehicle's safety or operability. Because the defendant failed to carry his burden, the border search was constitu-tional despite a lack of reasonable suspicion. Reinhardt, Trott (author), and Wardlaw, Circuit Judges. AFPD E. Johnston of San Diego, CA, for the appellant; AUSA M. Crowley of San Diego, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

34) CRIME VICTIMS RIGHTS: In re Kenna, 06-73352 (9th Cir. July 5, 2006). The petitioner requested that the USCA order the district court to release the entire presentence report ("PSR") of criminal defendant Leichner to him. The district court rejected the petitioner's argument that Sec. 3771 of the Crime Victims Rights Act confers a general right for crime victims to obtain disclosure of the PSR. Failing to find support for the petitioner's argument in either the language of the statute or the legislative history, the USCA agreed. In addition, the district court found that the petitioner had not demonstrated that his reasons for requesting the PSR out-weigh the confi-dentiality of the report under the traditional "ends of justice" test. The USCA found that the district court did not abuse its discretion or commit legal error. It thus denied the petition for a writ of mandamus pursuant to the Crime Victims Rights Act. Hawkins, Thomas, and Bybee, Circuit Judges. Per Curiam. K. Luther of Tempe, AZ, for the petitioner; AUSA G. Cardona of Los Angeles, CA, for the real party in interest United States.(Download the full text of this decision at www.ce9.uscourts.gov/)

35) SEARCH & SEIZURE: USA v. McWeeney, 05-10349 (9th Cir. July 21, 2006). Following a vehicle stop, Office Walsh ran background checks on the passenger, McWeeney, and the driver, Lopez. These checks revealed that McWeeney was a convicted felon and that Lopez had a previous weapons-related arrest. Walsh called for back up and waited for it to arrive before proceeding. McWeeney and Lopez had earlier consented to the search of the car. The search of the car's trunk turned up the handgun that is the subject of this case. McWeeney was convicted of being a felon in possession of a firearm. On appeal he assigned error to the denial of his motion to suppress. The USCA vacated and remanded. Although the district court did not err in finding that a request to "look" in the car, in context, was the same as a request to "search" the car, it was not clear whether the officers coerced McWeeney and Lopez into believing that they had no right to withdraw their consent. The USCA thus vacated the conviction and remanded the case to the district court for an evidentiary hearing in order to determine whether McWeeney and Lopez were coerced into believing that they could not withdraw their consent. If the district court finds they were coerced, then McWeeney's conviction cannot stand. Judge Fletcher dis-sented from the need for remand to determine whether coercion prevented McWeeney from exercising his right to withdraw his con-sent: "Any reasonable person would recognize that two punk kids ordered out of their car, by police officers, told to turn their backs while their car is searched are afraid to disobey authority." Goodwin (author), B. Fletcher (dissenting), and Fisher, Circuit Judges. AFPD J. Carr of Las Vegas, NV, for the defendant-appellant; AUSA B. Quarles of Las Vegas, NV, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

36) SEARCH & SEIZURE: USA v. Romm, 04-10648 (9th Cir. July 24, 2006). At issue here was whether, absent a search warrant or probable cause, the contents of a laptop computer can be searched at an international border and, if so, what evidence is sufficient to convict its owner of receiving and possessing child pornography. The USCA also address an error in the jury instructions on the mental state required for knowingly possessing child pornography. First, it held that the Immigration and Customs Enforcement's forensic analysis of Romm's laptop was permissible without probably cause or a warrant under the border search doctrine. Second, there was sufficient evidence for the jury to find that the images in Romm's internet cache were visual depictions, and that he both received and possessed these images. Third, district court's refusal of Romm's proffered instruction defining "visual depiction" was not error because the instructions defining possession adequately covered Romm's theory of the case. Fourth, while it found that the instructions on "knowing possession" were plainly in error under USA v. Lacy, 119 F.3d 742 (9th Cir. 1997), it declined to reverse Romm's conviction due to the overwhelming evidence of the required knowledge. Finally, the USCA vacated Romm's sentence and remanded for resen-tencing in accordance with the stipulation reached by the parties. B. Fletcher, Thompson, and Bea (author), Circuit Judges. J. Carr of Las Vegas, NV, for the appellant; N. Koppe of Las Vegas, NV, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

37) EVIDENCE: USA v. Adjani, 05-50092 (9th Cir. July 11, 2006). While executing a search warrant at the home of defendant Adjani to obtain evidence of his alleged extortion, FBI agents seized Adjani's computer and external storage devices, which were later searched at an FBI lab. The agents also seized and searched a computer belonging to defendant Reinhold, who lived with Adjani, even though she had not at that point been identified as a suspect and was not named as a target in the warrant. Some email found on Reinhold's computer chronicled conversations between her an Adjani that implicated her in the extortion plot. Relying on these emails, the government charged both Adjani and Reinhold with conspiring to commit extortion in violation of 18 USC Sec. 371 and transmitting a threatening communication with intent to extort in violation of 18 USC Sec. 875(d). The district court granted the defendants' motion to suppress the emails, finding that the agents did not have sufficient probable cause to search Reinhold's computer and that once they discovered information incriminating her, they should have obtained an additional search warrant. The government appealed, but only with respect to three emails dated January 12, 2004. The USCA held that the government had probable cause to search Reinhold's computer, the warrant satisfied the specificity test, and the seized emails fell within the scope of the properly issued warrant. The USCA thus reversed the district court's suppression order as to the January 12, 2004 emails. Schroeder, Friedman, and Fisher (author), Circuit Judges. AUSA E. Getreu of Los Angeles, CA, for the plaintiff-appellant; M. Bednarski of Pasadena, CA, for the defendant-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

38) EVIDENCE: USA v. Estrada, 05-10500 (9th Cir. July 14, 2006). Estrada appealed his conviction, after a jury trial, of possessing pseudoephedrine knowing, or with reasonable cause to believe, that it would be used to manufacture methamphetamine, in violation of 21 USC Sec. 841(c)(2). The USCA affirmed. Estrada argued that the government must prove that the pills found were pseudoephedrine, not merely a listed chemical. The USCA concluded that this contention imported a second mens rea requirement into the stature: knowledge or reasonable cause to believe that the substance will be used in the manufacture of a controlled substance plus knowledge of the identity of the specific substance possessed. USA v. Lo, 447 F.3d 1212 (9th Cir. 2006), holds that the term "knowingly" modifies only the phrase "possesses or distributes" and not "listed chemical." What Sec. 841(c) requires the government to prove is (1) that the defendant knew he possessed a substance with knowledge or reasonable cause to believe that the substance would be used to manufacture a controlled substance, and (2) that the substance was in fact a listed chemical. The district court's jury instruction on this matter was thus correct and the USCA did not reach Estrada's contention that the evidence was insufficient to prove that he knew the pills were pseudoephedrine. Noonan and Bybee, Circuit Judges, and Schwarzer (author), Circuit Judges. T. Pori of Vallejo, CA, for the appellant; AUSA C. Delaney of Sacramento, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

39) EVIDENCE: USA v. Ballesteros-Selinger, 05-50287 (9th Cir. July 19, 2006). Following a trial by jury, the defendant was convicted of illegal re-entry following deportation in violation of 8 USC Sec. 1326. He maintained that the district court erred in admitting a memorandum of oral decision into evidence urging the theory that its admission violated the Confrontation Clause. The USCA affirmed, holding that the memorandum of oral decision issued by the Immigration Judge was nontestimonial, and thus that its admission into evidence did not violate the Confrontation Clause. Thomas and Gould (author), Circuit Judges, and Schwarzer, District Judge. J. Thorp of San Diego, CA, for the defendant-appellant; AUSA V. Chu of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

40) MAIL FRAUD: USA v. Lyons, 04-50082 (9th Cir. July 17, 2006). The defendants misrepresented to donors how they spent contributions net of telemarketing commissions. The donors were told their contributions went to specific charitable activities when, in fact, almost none did. The USCA concluded that the government did not violate the First Amendment by introducing evidence that over 80% of donations went to telemarketers. Thomas and McKeown (author), Circuit Judges, and King, District Judge. J. Weston of Los Angeles, CA, for the defendants-appellants; AUSA E. Lindsay of Los Angeles, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

41) MAIL FRAUD: USA v. Lyons, 04-50157 (9th Cir. July 19, 2006). A federal grand jury charged Lyons with 10 counts of mail fraud. The indictment alleged that Lyons sold fraudulent celebrity memorabilia bearing counterfeit signatures of various personalities, including Arnold Schwarzenegger, Jerry Garcia, and Muhammad Ali. The fifth count of the indictment alleged that Lyons mailed four movie posters each bearing counterfeit signatures, to an address belonging to Richard Mitchell, a cooperating defendant and government informant. Lyons appealed his conviction and sentence, imposed by the district court upon a jury verdict finding him guilty of mail fraud, in violation of 18 USC Sec. 1341. The USCA affirmed the conviction, vacated the sentence, and remanded for resentencing. It held that the sentence imposed by the district court violated the Sixth Amendment under the Supreme Court's decision in Booker, which prohibits the use of judicially-determined facts to enhance a sentence under a mandatory Guideline regime, and that the government had not shown that the district court's error was harmless beyond a reasonable doubt. The USCA thus vacated the sentence and remanded for resentencing in light of Booker. Beezer, T.G. Nelson, and Gould (author), Circuit Judges. J. Lanahan of San Diego, CA, for the defendant-appellant; AUSA M. Pierson of San Diego, CA, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

42) CRIME VICTIMS' RIGHTS ACT: In re Mikhel, 06-73376 (9th Cir. July 7, 2006). The U.S. petitioned for a writ of mandamus ordering the district court to permit certain crime victims to observe in its entirety the murder trial in which they will testify, pursuant to the Crime Victims' Rights Act. The USCA granted the petition in part. It instructed the district court to consider whether clear and convincing evidence proves that the victim-witnesses' testimony will be "materially altered" if they are allowed to attend the trial in its entirety. The USCA declined to order the district court to allow the courtroom presence of the victim-witnesses, or to provide any other specific instructions. Hawkins, Thomas, and Silverman, Circuit Judges. Per Curiam. AUSA A. Russi of Los Angeles, CA, for the USA; D. Rubin of San Marino, CA, for Mikhel. (Download the full text of this decision at www.ce9.uscourts.gov/)

43) SENTENCING: USA v. Beng-Salazar, 04-50518 (9th Cir. July 6, 2006). Beng was sentenced under the now-defunct mandatory Guidelines regime. The USCA held that Beng's timely Sixth Amendment objections, based on Apprendi v. New Jersey, 530 US 466 (2000), and Blakely v. Washington, 542 US 296 (2004), were sufficient to preserve his Booker challenge to the lower court's imposition of his sentence using the mandatory Guidelines. The USCA vacated Beng's sentence and remanded for resentencing under the non-advisory Guidelines system. Hall, O'Scannlain, and Paez (author), Circuit Judges. E. Johnson of San Diego, CA, for the appellant; AUSA C. Tenorio of San Diego, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

44) SENTENCING: USA v. Carty, 05-10200 (9th Cir. July 17, 2006). Carty was charged with seven counts of sexual abuse stemming from a series of incidents involving his minor niece. He was convicted and sentenced to 235 months of custody and a lifetime of supervision. On appeal, he challenged the conviction on the ground that the evidence was insufficient and the sentence on the ground that it was imposed in violation of Apprendi and Booker. The USCA affirmed the conviction but remanded for resentencing. The tes-timony presented by the victim at trial was sufficient to sustain the jury's verdict. Any error the district court may have committed in failing to require the jury find beyond a reasonable doubt that the defendant had care and custody over the victim was harmless, because the defendant was sentenced post-Booker under an advisory regime and the court was free to make this determination for itself. However, the USCA remanded for resentencing as the district court failed to create a record memorializing its consideration of the sentencing factors listed in 18 USC Sec. 3553(a) and explaining its sentence selection. Beezer (author) and Fisher, Circuit Judges, and Timlin, District Judge. AFPD M. Cisneros of Phoenix, AZ, for the defendant-appellant; AUSA D. Greer of Phoenix, AZ, for the plaintiff-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

45) SENTENCING: USA v. Clark, 05-10480 (9th Cir. July 5, 2006). Clark appealed his 46-month sentence for unlawful possession of a firearm, asserting that the district court violated Booker by failing to treat the Sentencing Guidelines as advisory, applied those Guidelines in an unreasonable manner, and erroneously found facts that should have been sent to a jury and/or proven beyond a reasonable doubt-or failed to adequately make any factual finding whatsoever. The USCA remanded for resentencing on the ground that it could not determine whether the district court made any factual finding to support a two-level enhancement for carrying a gun with an obliterated serial number. The USCA rejected all other arguments raised by Clark in this appeal. The USCA noted that it was not clear as to whether the court made any finding regarding the obliterated serial number. The court had stated, "You weren't charged with any conduct, other than that of being a felon in possession of a firearm, and one of those firearms has an obliterated serial number, and a factor to be considered is your attempt to wrestle away from the officer at the time you were arrested." Although the USCA did not agree with the government's counsel that the district court's statement was a finding regarding the obliterated serial number, a majority of the panel found that it was not unreasonable for counsel to so interpret it. Still, the USCA disagreed that such a finding was made, and remanded for resentencing so that the court could make the appropriate determination. While Judge Kozinski agreed with much in the majority's opinion, and concurred in the result, he could not agree that "it was not unreasonable for [government] counsel to so inter-pret" the district court's statement as a finding of fact. In fact, Judge Kozinski thought that no reasonable lawyer would have tried to pass off the district's remark as a finding; "government counsel," he said, "was trying to pull a fast one." B. Fletcher (author), Kozinski (concurring), and Fisher, Circuit Judges. M. Valencia of Henderson, NV, for the appellant; D. Bogden of Las Vegas, NV, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

46) SENTENCING: USA v. Feingold, 05-10037 (9th Cir. July 21, 2006). Feingold, a naturopathic physician licensed by the State of Arizona, was convicted on 185 counts of illegally distributing controlled substances in violation of 21 USC Sec. 841(a). He maintained that his conviction was constitutionally infirm due to improperly admitted testimony and erroneous jury instructions. The thrust of his ob-jections was that the district court permitted the jury to convict him upon finding that he was merely an incompetent doctor, rather than upon a finding that his conduct was so egregious as to render him criminally liable. He also argued that his sentence was invalid because the district court improperly relied on facts not found by the jury and because the district court denied his request for a two-level reduction in his offense level. At trial, the government presented evidence from several of Feingold's "patients." Their testimony overwhelmingly demonstrated Feingold's disregard for proper prescribing practices. For example, several "patients" (including an un-dercover DEA agent) testified that they received prescriptions even though Feingold had never physically examined them. The USCA held that Feingold's arguments were without merit, but vacated his sentence and remanded for resentencing pursuant to USA v. Beng-Salazar, 04-50518 (9th Cir. July 6, 2006) (holding that a "defendant who raised an objection in district court based on the Sixth Amend-ment holding of the Apprendi line of cases preserved his claim that he is entitled to resentencing under the advisory Guidelines regime"). Goodwin, B. Fletcher (author), and Fisher, Circuit Judges. M. Moretti of Lake Butler, FL, for the appellant; AUSA L. Boone of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

47) SENTENCING: USA v. Lence, 05-30236 (9th Cir. July 27, 2006). At issue here was whether a criminal defendant has a right to be resentenced by his original sentencing judge on remand following a Booker error. The USCA vacated Lence's sentence and remanded to the district court for resentencing by the original sentencing judge. At this fourth sentencing hearing, the government will not be estopped from seeking application of the more-than-minimal-planning and abuse-of-trust enhancements. O'Scannlain (author), Graber, and Bea, Circuit Judges. J. Bartlett of Great Falls, MT, for the appellant; E. Meltzer of Washington, DC, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

48) HABEAS CORPUS: Roy v. Lampert, 04-35514 (9th Cir. July 12, 2006). The appellants were convicted of crimes in Oregon state court. The federal district court dismissed their federal habeas petitions as untimely because they were filed after the one-year statue of limitations period created by the Antiterrorism and Effective Death Penalty Act. At issue on appeal was whether the appellants were entitled to an evidentiary hearing regarding their claim that the statute of limitations should be equitably tolled because they were transferred to an Arizona prison that, they alleged, had a woefully deficient law library. The USCA held that the appellants had made sufficient allegations that they pursued their claims diligently and faced extraordinary circumstances once they were transferred to the Arizona prison. The USCA thus remanded to the district court for an evidentiary hearing. Browning, D.W. Nelson (author), and O'Scannlain, Circuit Judges. A. Bernstein of Portland, OR, for the petitioners-appellants; AAG E. Lagesen of Salem, OR, for the re-spondent-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

49) HABEAS CORPUS: Weaver v. Palmateer, 04-36009 (9th Cir. July 17, 2006). At issue here was whether an Oregon state prisoner was entitled to a writ of habeas corpus on the basis of ineffective assistance of counsel in connection with his 1983 convictions for rape and sodomy. The USCA reversed the district court's grant of the writ, concluding that the state court's application of the Su-preme Court's ineffective-assistance standards was, at the very least, not objectively unreasonable. The prisoner thus failed to estab-lish that he is entitled to a writ of habeas corpus. Browning, D.W. Nelson, and O'Scannlain (author), Circuit Judges. AAG J. Klapstein of Salem, OR, for the respondent-appellant; AFPD A. Bornstein of Portland, OR, for the petitioner-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

50) HABEAS CORPUS: Rose v. Mayberg, 05-16881 (9th Cir. July 18, 2006). At issue here was whether a habeas petition must be granted when a state court jury does not separately determine whether a sexually violent predator suffers from a mental condition that renders him dangerous beyond his control. The USCA affirmed the district court, finding that a state court does not engage in an ob-jectively unreasonable application of Kansas v. Crane, 534 US 407 (2002), and Kansas v. Hendricks, 521 US 346 (1997), by failing to require a separate jury finding of complete inability to control one's conduct. Hug, O'Scannlain (author), Circuit Judges, and Miller, District Judge. AFD D. Porter of Sacramento, CA, for the appellant; DAG J. Kaida of Sacramento, CA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

51) HABEAS CORPUS: King v. Lamarque, 05-15757 (9th Cir. July 26, 2006). King appealed the denial of his habeas petition, raising four issues, only one of which was listed in the Certificate of Appealability. Three of the issues pertain to the California Supreme Court's dismissal of an ineffective assistance claim because it determined that King's habeas petition was filed after substantial delay. King asserted that the timeliness rule is inadequate and that his case fits the exceptions that allow federal courts to review claims that are otherwise procedural barred. His fourth claim asserted the district court erred in finding that he was not prejudiced by his trial counsel's failure to review a videotape of the victim and failure to object to a reference to his parole officer within that tape. The USCA vacated the district court's judgment with regard to the adequacy of the California timeliness rule. It otherwise affirmed the district court's judgment, and remanded for further proceedings consistent with this opinion. Judge Reinhardt concurred with the majority's opinion with respect to the adequacy of California's timeliness rule. He also agreed with the decision to remand the case for a determi-nation whether, since Morales v. Calderon, 85 F.3d 1387 (9th Cir. 1996), the rule has become sufficiently clear and consistently applied to serve as a bar to federal habeas review. However, unlike the majority, he would not reach the alternative issue regarding the "cause and prejudice" exception for procedural default. But if he did, he would not agree that King's expert witness merely bolstered, and thus needlessly postponed, an already extant Strickland claim. Rather, given the circumstances of his case, King's waiting a reasonable period until he could obtain an expert's testimony in order to make a good faith showing of Strickland prejudice would not in Judge Reinhardt's view serve to default his claim. Goodwin, Reinhardt (concurring), and Hawkins (author), Circuit Judges. M. Alger of Clovis, CA, for the petitioner; DAG L. Ashley of San Francisco, CA, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

52) HABEAS CORPUS: Hoffman v. Arave, 02-99004 (9th Cir. July 5, 2006). The petitioner appealed the denial of his 28 USC Sec. 2254 habeas petition based on ineffective assistance of counsel during pre-trial plea bargaining and during the guilt phase of his trial for the murder. The USCA granted the petition with respect to ineffective assistance during the plea bargaining phase, and remanded. The USCA also ordered the district court to direct the State to release the petitioner unless, within a reasonable time from the date of this opinion, the State offers the petitioner a plea agreement with the "same material terms" offered in the original plea agreement. Preger-son (author), W. Fletcher, and Gould, Circuit Judges. J. Fisher of Moscow, ID, for the petitioner; DAG L. Anderson of Boise, ID, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

1) BANKRUPTCY: Elias v. Dominguez, 04-35538 (9th Cir. July 25, 2006) (unpublished). Brunetti, Tashima, and Paez, Circuit Judges.

Elias appealed a district court order upholding a bankruptcy court finding that a state court judgment owed to Dominguez was non-dischargeable in Chapter 7 bankruptcy. The USCA affirmed. The bankruptcy court, and the USCA, had to give an Idaho court judgment the same preclusive effect that Idaho courts would give the judgment. 28 USC Sec. 1738. Under Idaho law, five factors must be shown for issues preclusion to apply: (1) the party against whom the earlier decision is asserted had a full and fair opportunity to litigate the issue decided in the earlier case; (2) the issue decided in the prior litigation was identical to the issue presented in the present action; (3) the issue sought to be precluded was actually decided in the prior litigation; (4) there was a final judgment on the merits in the prior litigation; and (5) the party against whom the issue is asserted was a party or in privity with a party to the litigation. Rodriguez v. Dept. of Corrections, 29 P.3d 401, 404 (Idaho 2001). Elias argued that issue preclusion did not apply because the state court lacked subject matter jurisdiction, and thus its judgment was not final. However, the Idaho Supreme Court upheld the jurisdiction of the state trial courts in Dominquez v. Evergreen Resources, Inc., 121 P.3d 938, 944 (Idaho 2005), and thus the state court judgment is final. The USCA affirmed the district court order upholding the bankruptcy court finding that the state court judgment owed to Dominguez was non-dischargeable. Dominguez's motion to dismiss this appeal for lack of jurisdiction was denied because bankruptcy dischargeability proceedings are not subject to the Rooker-Feldman doctrine. Sasson v. Sokoloff (In re Sasson), 424 F.3d 864, 871 (9th Cir. 2005). The USCA affirmed the district court's order upholding the bankruptcy court decision and denied Dominguez's motion to dismiss the appeal for lack of jurisdiction.

2) DIVERSITY JURISDICTION: National Paint & Coatings Association, Inc. v. South Coast Air Quality Management District, 04-56241 (9th Cir. July 27, 2006) (unpublished). Hawkins and Paez, Circuit Judges, and Wake, District Judge.

South Coast Air Quality Management District ("SCAQMD") appealed the district court's order remanding to state court a civil action brought against it by National Paint and Coatings Association ("NPCA"). SCAQMD removed the case on the basis of diversity and federal officer removal jurisdiction, 28 USC Secs. 1441(a) and 1442(a). Although NPCA's motion to remand was untimely, the district court remanded the case on the grounds that (1) it lacked diversity jurisdiction because SCAQMD, a citizen of the forum state, violated the forum defendant rule contained in 28 USC Sec. 1441(b), which constitutes a non-waivable jurisdictional defect; and (2) it lacked federal officer removal jurisdiction because SCAQMD is not a "person" within the meaning of 28 USC Sec. 1442(a)(1). SCAQMD disputed both rulings.

Concurrent with the filing of this memorandum, the USCA filed an opinion in Lively v. Wild Oats Market, Inc., 04-56682, which disposed of the forum defendant rule issue in this case. (See Published Opinion #23 above) In Lively, the USCA held that the forum defendant rule is procedural, or non-jurisdictional, and thus a violation of this rule is a waivable defect subject to the 30-day time limit of 28 USC Sec. 1447(c). The district court in the present case thus erred in remanding the case to state court because NPCA failed to move to remand the case within the 30-day time limit of Sec. 1447(c). As the parties conceded at oral argument, if the forum defendant rule is procedural, the USCA must vacate the remand order, regardless of the existence vel non of federal officer removal jurisdiction. Thus, in light of Lively, the USCA found it did not need to address the federal officer removal issue. For the reasons articulated in Lively, the USCA vacated the district court's remand order and remanded for further proceedings consistent with this decision.

3) ATTORNEYS' FEES: Elwood v. Morin, 04-55630 (9th Cir. July 28, 2006) (unpublished). Thomas and Gould, Circuit Judges, and Schwarzer, District Judge

Elwood appealed the award of attorneys' fees to various defendants, and also the district court's denial of her motion for attorneys' fees incurred in resisting enforcement of the defendants' award. The USCA affirmed the award of fees to Joseph Morin, the County of Los Angeles, and two County social workers, Ann Wellman and Barbara Dallis (Appeal 04-55630), and the denial of Elwood's motion for fees in the consolidating enforcement proceedings (Appeal Nos. 05-55724 and 05-55727). The fee awards to the other defendants (Appeal 04-55635) were addressed in an opinion filed concurrently with this memorandum. (See Published Opinion #22 above) In Elwood v. Morin, 04-55630, the district court did not abuse its discretion in finding Elwood's claim in that case to be frivolous. Her arguments on appeal generally revisited the merits of the dismissal of her action and asked, contrary to the law of the case doctrine, that the USCA reverse its prior decision affirming the dismissal. Elwood provided no support for her claim that California Civil Code Sec. 49(a), prohibiting the taking of a child by force or enticement, should apply to situations where a social worker improperly takes a child away from one of its parents. In her fifth and sixth causes of action, alleging conspiracies to deprive her of her consti-tutional rights, Elwood failed to allege facts supporting a meeting of the minds among the defendants. The fact that she adequately pled one element of these claims-the state action requirement-did not render the claims non-frivolous. The seventh cause of action, alleging a County policy of punishing parents who challenged social workers, was dismissed for failure to allege a sufficient connection between any
County policy and the alleged deprivation of a federal right. Elwood's arguments do not show that the district court abused its discretion in finding this claim to be frivolous. Elwood's other arguments were not properly raised before the district court, and even if the USCA considered them, the USCA said they would not show an abuse of discretion. The district court did not abuse its discretion in finding the defendants' attorneys' documentation of hours worked to be adequate. Elwood had an opportunity to challenge the revised fee requests, but did not follow the procedure for doing so. The district court did not err in allowing Morin to refile his motion for fees after his initial motion was struck for failure to comply with Local Rule 7-3. The procedural irregularities described by Elwood do not show that Morin's attorney engaged in any misconduct so as to preclude an award of fees. Elwood did not provide any evidence to the district court of her inability to pay the fee awards, and her requests for the USCA to take judicial notice of her tax returns would only show her income, and would not disclose whether she has assets to pay the fee awards. The USCA affirmed the district court's award of fees.
As for the consolidated appeals of the enforcement proceedings, 05-55724 and 05-55727, the USCA found no abuse of discretion in the district court's decision to deny Elwood's motion for attorneys' fees under 28 USC Sec. 1927. There was no evidence of vexatious multiplication of proceedings by the defendants, let alone that the district court abused its discretion in denying Elwood's motion for fees.
For the foregoing reasons, the USCA affirmed the award of attorneys' fees to the defendants in 04-55630. It also affirmed the denial of attorneys' fees to Elwood in the consolidated cases of 05-55724 and 05-55727. Finally, it denied the appellees' motion for at-torneys' fees on this appeal.

4) ATTORNEYS' FEES: Hawaii Management Alliance Association v. Meek, 05-16866 (9th Cir. July 11, 2006) (unpublished). Thomas and W. Fletcher, Circuit Judges, and Mahan, District Judge.

Appellants, Hawaii Management Alliance Association ("HMAA"), a group of insurance companies doing business in Hawaii, appealed the district court's award of attorneys' fees to appellee, Todd Meek. The USCA affirmed. The district court did not err when it awarded attorneys' fees to Meek pursuant to a 1996 Confidentiality Agreement. Although HMAA did not mention the 1996 agreement in its amended complaints, the categories of information it sought to protect through those complaints were substantially similar to the information protected by the 1996 agreement. Moreover, the language of the 1996 agreement is broad, both in its statement that the "Agreement is intended for the protection of employer's confidential information and trade secrets" and its provision that "the prevailing party in any legal action or proceeding arising out of this Agreement shall be entitled to recover from the other, reasonable attorneys' fees and costs of suit affixed by the court." The agreement does not limit the recovery of fees to cases for breach of the agreement. In addition, the district court did not clearly err when it found that Meek was legally obligated to repay his employer, NevadaCare, for the attorneys' fees it had paid on his behalf. Although Nevada Revised Statute Sec. 78.7502 provides for the mandatory indemnification of a corporation's officer or employee when he is successful in defending litigation related to his employment, there is nothing to prevent Meek from agreeing to pay back those fees. The cases that appellant cites to support its position that Meek should nonetheless be prevented from collecting fees are distinguishable. See USA v. Paisley, 957 F.2d 1161 (4th Cir. 1992); SEC v. Comserve Corp., 908 F.2d 1407 (8th Cir. 1990). Neither case involves a situation where the party awarded fees is legally required to pay back the party who has paid for the attorneys' fees. In fact, Comserve considers the possibility that a prevailing party may transfer fees awarded to him to the entity that indemnified him. 908 F.2d at 1413-14.

5) SECURITIES / RECEIVERSHIP ASSETS: Benson v. Lennon, 04-35339 (9th Cir. July 12, 2006). (unpublished). Brunetti, T.G. Nelson, and Paez, Circuit Judges.

In the accompanying per curiam opinion (see Published Opinion #11 above), the USCA dismissed the appeal of one set of appellants, Benson and Brix, LLC, for lack of jurisdiction. This memorandum disposition addresses the merits of the appeal of the remaining appellants, the American Funeral and Cemetery Services, MUDD, and the Mudd Revocable Trust in consolidated appeals 04-35339 and 04-35967. These appellants challenged the district court's order that they must remit their settlement funds in order to receive their traced investments. The USCA reversed. Reviewing the district court's interpretation of a settlement agreement de novo, the USCA found that the district court erred in its interpretation. It should not have ordered the appellants to remit their share of the settlement funds in order to trace their investment assets. In interpreting the settlement agreement, the USCA said it was bound by the principles of Oregon contract law. Under Oregon law, "first, the court examines the text of the disputed provision, in the context of the documents as a whole. If the provision is clear, the analysis ends." Yagman v. Parrott, 937 P.2d 1019, 1021 (Or. 1997). To determine what the contract says "the court looks at the four corners of a written contract, and considers the contract as a whole with emphasis on the provision or provisions in question." Eagle Industries, Inc. v. Thompson, 900 P.2d 475, 479 (Or. 1995). If there is no ambiguity in the text of the contract, "the court construes the words of a contract as a matter of law." Id. Here the district court did not find any am-biguities in the settlement agreement, but the court erroneously concluded that the appellants were precluded from receiving both set-tlement funds and their share of traced investments. This interpretation is contrary to the express language of the settlement agreement. Under the settlement agreement, the American Funeral plaintiffs received $9.975 million plus interest in exchange for the assignment of specific claims against the third-party defendants. The assignments from the American Funeral plaintiffs to the remaining plaintiffs are detailed in several paragraphs, and include the American Funeral plaintiffs' "right to the proceeds of any settlement with, or other recovery from, the [defendants] … provided however, that the American Funeral plaintiffs do not assign their right to the proceeds of any settlement or recovery on Reserved Claims." Reserved Claims include claims "for any income received on an investment or any right to receive income on an investment" and "for any proceeds received upon the sale, or upon any other disposition, of an investment in which an American Funeral plaintiff has an ownership interest." Under the court-approved distribution plan, the claim-ants could elect to trace their investments, as long as they met certain requirements, including that they could not also receive settlement proceeds from the global settlement. Since the American Funeral plaintiffs had already assigned all of their rights to share in the proceeds of a global settlement, they should have been free to trace their investments, if otherwise qualified. Thus, while it is clear that the American Funeral plaintiffs assigned to the remaining plaintiffs their rights to settlement proceeds, they did not assign their right to trace their investments, as allowed by the distribution plan. In fact, the settlement agreement specifically protects the American Funeral plaintiffs' right to trace their investments in the Reserved Claims. The clear language of the settlement agreement indicates that the appellants received payments for assigning their claims to the remaining plaintiffs, and the payment was not an advance on global set-tlement proceeds. By ignoring the express language of the settlement agreement, the district court erroneously ordered the appellants to remit their share of settlement funds in order to trace their investments as allowed by the distribution plan. The USCA thus reversed and remanded case 04-35967 and dismissed for lack of jurisdiction case 04-35339.

6) AMERICANS WITH DISABILITIES ACT: Young v. General Motors Corporation, 04-16725 (9th Cir. July 3, 2006) (unpublished). Schroeder and Graber, Circuit Judges, and Duffy, District Judge.

Plaintiff Young appealed from the summary judgment granted in favor of General Motors Corporation ("GM"). The district court found that Young failed to satisfy his burden on his discrimination claims arising under the Americans with Disabilities Act of 1990 ("ADA") and the Age Discrimination in Employment Act of 1967 ("ADEA"). The USCA affirmed. Young failed to establish a prima facie case of discrimination under the ADA because there is no reasonable inference that GM's employment decision was based on Young's wife's disability. GM declined to hire Young before his wife became disabled, so there is no reasonable inference that her disability was a determining factor in GM's decision not to extend Young an offer of employment after she became ill. With respect to Young's claim under the ADEA, the district court properly determined that, while he successfully established a prima facie case of age discrimination, he failed to satisfy his burden of demonstrating that GM's stated nondiscriminatory reason for not hiring him was a pre-text. GM stated that it did not hire Young because he did not have a college degree. GM's hiring practices throughout the relevant time period were consistent with its stated reason. Young had not presented sufficient evidence to show that there is a genuine issue of material fact, as to whether GM was more likely motivated by a discriminatory reason, or as to whether GM's stated reason is unwor-thy of belief.

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