1) BANKRUPTCY: In re American Wagering, 05-15969 (9th Cir. Oct. 6, 2006). At issue here was whether a claim against two bankrupt corporations, American Wagering. and Leroy's Horse and Sports Place, brought by Racusin, a former business consultant to the debtors, should be regarded as the debt of a creditor, or as a suit by a shareholder subject to subordination pursuant to 11 USC Sec. 510(b). The bankruptcy court found that the claim was a debt not subject to subordination, but the BAP reversed, characterizing Racusin as an investor. The USCA agreed with the bankruptcy court that Racusin, as the holder of a money judgment, should be regarded as a creditor and reversed the decision of the BAP and remanded for further proceedings. Hug, Merritt (author), and Paez, Circuit Judges. D. Frederick of Las Vegas, NV, for the defendant; G. Gordon of Las Vegas, NV, for the plaintiffs. (Download the full text of this decision at www.ce9.uscourts.gov/)

2) TRADEMARKS: Quiksilver v. Kymsta Corp., 04-55529 (9th Cir. Oct. 6, 2006). Kymsta appealed a district court's decision granting Quiksilver's motion for judgment as a matter of law and denying Kymsta's competing cross-motion. The court concluded that Quiksilver's trademarks "Quiksilver Roxy" and "Roxy," were valid; that Kymsta was unable to rebut the presumption of validity; and that Kymsta could not benefit from the innocent-use defense. The USCA upheld the district court's granting of Quiksilver's motion for judgment as a matter of law as to Kymsta's fraud defense. It also affirmed the denial of Kymsta's cross-motion as to innocent use. However, reasonable minds could differ on the import of the evidence regarding first use of the contested mark, tracking related marks for the first-use analysis, the inherent distinctiveness of the contested mark, and Kymsta's innocent-use defense. The USCA thus re-versed the judgment as a matter of law in favor of Quiksilver as to those issues. Reinhardt and Rawlinson (author), Circuit Judges, and Wilken, District Judge. W. Robinson of Los Angeles, CA, for the appellant; M. Yoder of Newport Beach, CA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

3) TRADEMARKS / LATCHES: Tillamook Country Smoker, Inc. Tillamook County Creamery, 04-35843 (9th Cir. Oct. 11, 2006). The Tillamook County Creamery Association, maker of Tillamook brand of cheeses for nearly 100 years got into a dispute with Tillamook Country Smoker, a purveyor of smoked meats and jerky. In 1976, Tillamook Country Smoker began selling meat products under its name. The cheese people had actual knowledge of Tillamook Country Smoker's activities, but never said a word. The cheese people even sold Tillamook Country Smoker's products in its own gift shop and mail-order catalog. Twenty-five years later, when Tillamook Country Smoker began selling its meats in supermarkets, the cheese people for the first time claimed trademark infringement and sought to enjoin the meat people from making any further use of the Tillamook Country Smoker name. The cheese people explained their quarter-century delay in taking action against Tillamook Country Smokers by contending that they were victims of "progressive encroachment." The district court ruled that the cheese people were barred by laches. The USCA agreed. Hawkins, Silverman (author), and Gould, Circuit Judges. J. Staples of Portland, OR, for the defendant; J. Westwood of Portland, OR, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

4) ENVIRONMENTAL LAW: Center for Biological Diversity v. Kempthorne, 04-165633 (9th Cir. Oct. 18, 2006). The plaintiffs appealed the district court's summary judgment in favor of the Secretary of the Interior, and the Director of the U.S. Fish and Wildlife Service (collectively "the Service") in this action under the Endangered Species Act ("ESA"). The plaintiffs challenged the Service's finding under 16 USC Sec. 1533(b)(3)(B)(iii) that listing of the Sierra Nevada Mountain Yellow-Legged Frog as an "endangered species" is "warranted but precluded." For such a finding, Secs. 1533(b)(3)(B)(iii)(I) and (II) require the Service to identify proposals for other listings that preclude listing this frog and to find that expeditious progress is being made to list qualified species. Although the Service did not do so, the district court upheld its finding because the Service's path could reasonably be discerned. The USCA found that this option is not available under the ESA, which expressly directs the Service, to publish its "warranted but precluded" finding in the Federal Register, together with a description and evaluation of the reasons and date on which the finding is based." Sec. 1533(b)(3)(B). As this was not done, the USCA reversed and remanded to the Service. Rymer (author) and Wardlaw, Circuit Judges, and Alsup, District Judge. M. Sherwood of Oakland, CA, for the plaintiffs; D. Shilton of Washington, DC, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/)

5) ENVIRONMENTAL LAW: 'Ilio'ulaokalani Coalition v. Rumsfeld, 05-15915 (9th Cir. Oct. 5, 2006). This appeal required the USCA to assess whether the Army complied with the National Environmental Policy Act of 1969 ("NEPA") in planning its programs to modernize and streamline its forces, while simultaneously maintaining readiness. As part of its NEPA evaluation of the Army Trans-formation Campaign Plan, the Army completed a programmatic environmental impact statement ("PEIS"), in which it identified Hawaii as one of the selected sites for transformation. It later undertook a site-specific environmental impact statement ("SEIS") to detail the impacts on the environment of the Army's expansion, land use, and activities associated with transforming the 2nd Brigade, now stationed in Hawaii, into a Stryker Brigade Combat Team ("SBCT"). The plaintiffs challenged the sufficiency of the Army's NEPA procedure, both at the programmatic and site-specific levels, on two grounds, arguing that (1) the Army failed to comply with NEPA's public notice requirements and (2) both the PEIS and SEIS failed to consider reasonable alternatives. The district court granted sum-mary judgment to the Army, finding that its public notice efforts were compliant with NEPA and that it sufficiently considered reason-able alternatives to transforming the 2nd Brigade in Hawaii. The USCA reversed that portion of the district court's decision which held that the Army considered all reasonable alternatives to transformation of the 2d Brigade in Hawaii and remanded to require it to pre-pare a supplemental SEIS to consider all reasonable alternatives, most notably the potential for transforming the 2nd Brigade outside of Hawaii. Judge Bea dissented. He noted that the majority opinion places the Army in an awkward position as it aims to modernize all its units. As future brigades within the Ninth Circuit's jurisdiction are directed by Army Headquarters to transform into SBCTs, must the Army analyze the relocation of each brigade for a nationwide project that was deemed from the start to entail only "in place" trans-formation? If so, on what legal basis? The majority opinion does not answer these questions. Because the Army's decision to trans-form units "in place" was not arbitrary and capricious, because the plaintiffs waived their challenges to the Army's SEIS, and because the Army's SEIS evaluated alternatives to full transformation in Hawaii, Judge Bea would affirm the judgment of the district court. B. Fletcher (author), Thompson, and Bea (dissenting), Circuit Judges. D. Henkin of Honolulu, HI, for the appellants; M. Gray of Wash-ington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

6) INSURANCE: Pan Pacific Retail Properties, Inc. v. Gulf Insurance Co., 04-56394 (9th Cir. Oct. 26, 2006). Pan Pacific Retail Properties and Western Properties Trust challenged their insurers' denial of coverage for an underlying shareholder class action. They were each insured under a Directors' and Offices' Liability and Company Indemnification Policy. Pan Pacific was insured by Gulf Insurance Company. Western was insured by Twin City Fire Insurance Company. Gulf and Twin City maintained that all costs and expenses arising out of the underlying shareholder lawsuit were uninsurable as a matter of public policy because, according to the in-surers, the suit only sought and recovered the disgorgement of additional consideration that the shareholders allege should have been paid by Pan Pacific to Western's shareholders in the merger of Pan Pacific and Western. Twin City additionally maintained that West-ern, its insured under the Twin City policy, may not recover any insurance proceeds because Pan Pacific had fully indemnified Western from any claims resulting from the merger. The USCA concluded that summary judgment was incorrect on the issue of whether the settlement paid by Pan Pacific to Western's shareholders to settle the remaining claims was entirely restitutionary relief in light of the conflicting evidence as to the nature of these claims. It thus reversed the district court's grant of summary judgment to Gulf on the issue of whether the settlement, including any defense costs or expenses reasonably related to the claims incorporated therein, constituted matters entirely uninsurable under California law. However, the USCA affirmed the grant of summary judgment to Twin City on the ground that Western was fully compensated from any loss by Pan Pacific's payment of the settlement and any other costs or expenses. Kozinski and Gould (author), Circuit Judges, and Martinez, District Judge. M. Abelson of Los Angeles, CA, for the plaintiffs-appellants; D. DiBiase of Los Angeles, CA, for the defendant-appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

7) EMPLOYMENT DISCRIMINATION: O'Donnell v. Vencor, Inc., 05-15687 (9th Cir. Oct. 10, 2006). Pro se plaintiff O'Donnell appealed the district court's dismissal of her employment discrimination claims as time-barred. She asserted that the district court should have applied the doctrines of equitable tolling, equitable estoppel, or laches to excuse her filing a second action after the statute of limitations expired. The USCA affirmed the district court's dismissal of O'Donnell's claims under Title VII of the Civil Rights Act of 1964 and Age Discrimination in Employment Act as untimely because she filed her second compliant more than 90 days after the EEOC's issued her right-to-sue letter. Her second complaint did not "relate back" to her first complaint because her second complaint was not an "amendment" to her first complaint, but rather a separate filing. Moreover, assuming, arguendo, that the doctrine of equitable tolling could be applied to O'Donnell's situation, it would not save her Title VII or ADEA claims. In instances where a complaint is timely filed and later dismissed, the timely filing of the complaint does not "toll" or suspend the 90-day limitations period. The USCA reversed O'Donnell's Equal Pay Act claims and remanded for further proceedings to determine whether the defendants had violated the EPA and, if so, to determine the applicable statute of limitations and the period and amount of back pay recoverable. Canby, Thompson, and Hawkins, Circuit Judges. Per Curiam. W. Jordan-Curtis of Tucson, AZ, for the plaintiff-appellant; T. Hudson of Phoenix, AZ, for the defendants-appellees.(Download the full text of this decision at www.ce9.uscourts.gov/)

8) EMPLOYMENT DISCRIMINATION / ADA: Bates v. United Parcel Service, 04-17295 (9th Cir. Oct. 10, 2006). At issue here was whether UPS may categorically exclude individuals from employment positions as "package-car drivers" because they cannot pass a U.S. Dept. of Transportation ("DOT") hearing standard that does not apply to the vehicles in question. A class of UPS employees and applicants unable to pass the hearing standard maintained that the policy violates the Americans with Disabilities Act ("ADA") and two California laws, the Fair Employment and Housing Act ("FEHA"), and the Unruh Civil Rights Act. The district court held that UPS violated the ADA, the FEHA, and the Unruh Act, and ordered injunctive relief. It also denied UPS's motion for judgment on partial findings or, in the alternative, for class decertification. The USCA affirmed the district court's factual findings as not clearly erroneous and its holding that UPS violated the ADA as consistent with the applicable legal standards. It also affirmed the denial of UPS's motion to decertify the class and the terms of the injunction issued. As the injunction could be upheld on ADA grounds alone and the pertinent FEHA law has changed since the district court's decision, the USCA did not review the FEHA claim. Finally, the USCA reversed the district court's finding that UPS violated the Unruh Act, as it does not cover employment discrimination claims. B. Fletcher, Gibson, and Berzon (author), Circuit Judges. C. Martin and R. Brass of Palo Alto, CA, for the defendant; L. Paradis of Oakland, CA, for the plaintiffs. (Download the full text of this decision at www.ce9.uscourts.gov/)

9) LABOR ARBITRATION: American Federation of Government Employees, AFL-CIO Local 2152 v. Principi, 04-16607 (9th Cir. Oct. 2, 2006). The American Federation of Government Employees and Dr. Savlov (collectively "appellants") brought this action to challenge an exemption from arbitration of a grievance that had been filed under the negotiated grievance procedure of a collective bargaining agreement. Savlov was a U.S. Dept. of Veterans Affairs ("VA") physician who filed a grievance alleging unlawful discrimination based upon his age and gender. Ruling on cross-motions for summary judgment, the district court accepted one reason given by the VA, but found that its alternate reason would not have justified the exemption from arbitration. The appellants appealed, and the VA cross-appealed, the district court's rejection of the alternate ground asserted as a basis for an exemption for arbitration. The VA also appealed the district court's earlier denial of a motion to dismiss for lack of subject matter jurisdiction. The USCA affirmed. In light of its conclusion that Savlov's claim was exempt from arbitration or further review by an agency because it related to "professional conduct or competence," as defined by 38 USC Sec. 7422(c), the USCA found it unnecessary to address the VA's claim that the district court erred by denying the applicability of the exemption based on "the establishment, determination, or adjustment of employee compensation." Schroeder and Graber, Circuit Judges, and Duffy (author), District Judge. K. Grille of Chicago, IL, for the plaintiffs-appellants; AUSA G. Addington of Reno, NV, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

10) LABOR LAW: In re Farmers Insurance Exchange 05-35080 (9th Cir. Oct. 26, 2006). The Department of Labor has long considered claims adjusters exempt from the Fair Labor Standard Act's overtime requirement. In 2004, the DOL promulgated 29 CFR Sec. 541.203, which exempts claims adjusters if they perform activities such as interviewing witnesses, making recommendations re-garding coverage and value of claims, determining fault, and negotiating settlements. The plaintiffs here are some 2,000 former and current claims adjusters who handle, respectively, automobile damage claims, non-automobile property damage claims, personal injury claims and various combinations of these. They assert that their employer improperly classified them as exempt from the FLSA. The district court ruled that some of them are exempt, and some of them are not. In doing so, it promulgated a "$3,000 in claims paid per month" rule, a rule that all parties to this appeal agree is neither workable nor supported by the evidence. The USCA held that all of the adjusters in this case are exempt. The district court's factual findings established that, regardless of the type (personal injury v. property) or size (large v. small) of the claims they handled, the adjusters were required to do virtually all of the things that Sec. 541.203 contemplates: use discretion to determine whether the loss is covered, set reserves, decide who is to blame for the loss and negotiate with the insured or his lawyer. If the DOL should choose to distinguish between adjusters based on the type or value of the claims they handle, it is free to amend the regulations and tell employers how to do that. Unless and until that happens, the USCA found that it is obligated to follow Sec. 541.203. It thus affirmed in part and reversed in part. B. Silverman (author) and Gould, Circuit Judges, and Rhoades, District Judge. S. Zieff of San Francisco, CA, for the petitioner; H. Cervantez of San Francisco, CA, for the plaintiffs; T. Boutrous of Los Angeles, CA, for the defendants. (Download the full text of this decision at www.ce9.uscourts.gov/)

11) ERISA: Glanton v. AdvancePCS, 04-15328 (9th Cir. Oct. 17, 2006). At issue here was whether prescription drug plan partici-pants who have suffered no judicially cognizable injury may sue their plans' fiduciaries under ERISA. When AdvancePCS, a pharmacy benefits management company, receives a prescription from a plan participant, it decides whether to buy the drug (preferably from a seller with whom it has negotiated a discount), reject the claim or switch the participant to another drug. AdvancePCS pays for the drugs with plan assets after accounting for the participant's co-payment. The plaintiffs maintained that, in addition to earning fees from the plans, AdvancePCS secretly keeps the spread between what it charges the plans for drugs and what it pays suppliers-a practice that, according to the plaintiffs, violates ERISA. The district court found that the plaintiffs lacked standing. The USCA agreed. There is no redressability, and thus no standing, where any prospective benefits depend on an independent actor who retains "broad and legitimate discretion the courts cannot presume either to control or practice." Kozinski (author) and Fernandez, Circuit Judges, and Hatter, District Judge. D. Casey of San Diego, CA, for the plaintiff; P. Ondrasik of Washington, DC, for the defendant.(Download the full text of this decision at www.ce9.uscourts.gov/)

12) LABOR LAW / CONTRACTS: Robertson v. Kulongoski, 04-35898 (9th Cir. Oct. 24, 2006). Current and retired State employees challenged legislation passed by the Oregon legislature in 2003 that amended the Oregon Public Employees Retirement System ("PERS"). They appealed the district court's denial of their motion for summary judgment and grant of summary judgment in favor of the State defendants. The USCA affirmed, holding, as did the Oregon Supreme Court in Strunk v. Public Employees Retirement Board, 108 P.3d 1058, 1068 (Or. 2005), that the plaintiffs' PERS contract does not contain the promises urged by the plaintiffs. The 2003 legislation thus did not impair a term of the plaintiffs PERS contract and did not violate the federal Contract Clause. Silverman and Gould, Circuit Judges, and Rhoades (author), District Judge. G. Hartman of Portland, OR, for the plaintiffs-appellant; J. Sacks of Portland, OR, for the defendants-appellees (Download the full text of this decision at www.ce9.uscourts.gov/)

13) OSHA: R. Williams Construction Company v. Occupational Safety & Health Review Commission, 04-74247 (9th Cir. Oct. 3, 2006). R. Williams Construction Company petitioned for review of a final order of the Federal Occupational Safety and Health Review Commission, affirming violations of the Occupational Safety and Health Act ("OSHA") in the wake of a trench collapse and death of an employee at a construction site in Santa Ynez, California. The USCA denied the petition for review. The petitioner failed to instruct its employees in proper safety measures and made no effort to ensure that employees not enter the trench on the day of the collapse. The ALJ's findings, and the reasonable inference drawn from them, easily satisfy the substantial-evidence standard. The USCA thus upheld the ALJ's decision affirming the citations. B. Fletcher (author) and Berzon, Circuit Judges, and Trager, District Judge. R. Peterson of Rocklin, CA, for the petitioner; J. Hull of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

14) TRAVEL BANS & SANCTIONS: Sacks v. Office of Foreign Assets Control, 04-36136 (9th Cir. Oct. 10, 2006). This appeal arose from a challenge to pre-2003 U.S. sanctions prohibiting travel to and the unlicensed donation of humanitarian medical supplies to Iraq. The USCA affirmed the district court's decision that Sacks had standing to challenge the ban on travel and that the travel ban regulation was validly promulgated. Sacks failed, however, to show a concrete and imminent likelihood that he would be penalized for violations of the restrictions on medical donations. His challenge to the restriction on medical donations thus did not fulfill the constitutional requirements of standing and ripeness. The USCA also upheld the district court's holding that the Office of Foreign Assets Control regulation in effect at the time prohibited the government from referring Sacks' unpaid penalty to a private collection agency. Wallace, Wardlaw (author), and Fisher, Circuit Judges. D. Scaramastra of Seattle, WA, for the appellant; H. Byron of Washington, DC, for the appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

15) FIRST AMENDMENT: ACLU v. Las Vegas, 05-15667 (9th Cir. Oct. 20, 2006). At issue here was whether city ordinances prohibiting solicitations and the erection of tables in a five-block area of downtown Las Vegas unconstitutionally restrict speech. The USCA held that they did and affirmed the district court's holding that the table ordinance, as applied to the plaintiffs, violates the Equal Protection Clause. The table ordinance contained an exception for labor-related tables in violation of the Equal Protection Clause. However, the USCA declined to hold that the table ordinance was facially unconstitutional. On it face, the ordinance did not regulate expressive activity. The USCA also held that the solicitation ordinance was facially unconstitutional. It regulated protected speech based on content and is not the least restrictive means of furthering a compelling government interest. It was an impermissible restriction on First Amendment activity. Tashima, Thomas, and Paez (author), Circuit Judges. A. Lichtenstein of Las Vegas, NV, for the plaintiffs-appellants; T. Bice of Las Vegas, NV, for the defendants-appellees. (Download the full text of this decision at www.ce9.uscourts.gov/)

16) LOW INCOME HOUSING: Goldammer v. USA, 04-36066 (9th Cir. Oct. 3, 2006). This consolidated appeal concerned the prepayment of a National Housing Act of 1949 Sec. 515 loan by owners of low-income housing in Oregon contrary to the prepayment procedures required by the Emergency Low Income Housing Protection Act of 1987 ("ELIHPA"). The appellants are residents who presently live in this housing property. They appealed the district court's denial of their motion to intervene in a quiet title lawsuit be-tween the property owners and the Rural Housing Service ("RHS"), an administrative division of the U.S. Department of Agriculture. They also appealed the district court's grant of summary judgment in favor of the owners and RHS on the appellants' Administrative Procedure Act ("APA") claim, which alleged that RHS accepted prepayment on a Sec. 515 loan in violation of ELIHPA. The USCA affirmed the district court's denial of the appellants' motion to intervene in the quiet title lawsuit because their interests are sufficiently protected by their APA lawsuit. However, because the district court misconstrued the holding of Kimberly Associates v. USA, 261 F.3d 864 (9th Cir. 2001), the USCA reversed the grant of summary judgment and remanded for further proceedings. Kimberly merely held that certain defenses are not available to the government in a quiet title action brought by Sec. 515 borrowers to enforce their con-tractual right to repay their loans. However, this is an APA action brought by residents challenging the agency's non-compliance with the ELIHPA. Kimberly did not hold that the ELIHPA was invalid or that the Department of Agriculture was free to violate it. The district court thus erred in granting summary judgment to the agency on the tenants' claims that the agency acted contrary to law. Hawkins, Silverman (author), and Gould, Circuit Judges. A. Schmidt of Portland, OR, for the appellant; R. Bakes of Boise, ID, for appellee DBSI; AUSA K. Zusman of Portland, OR, for the USA. (Download the full text of this decision at www.ce9.uscourts.gov/)

17) SOCIAL SECURITY: Robbins v. Social Security Administration, 04-35890 (9th Cir. Oct. 27, 2006). The district court upheld of the Commissioner of Social Security's partial denial of benefits for Robbins. The USCA reversed and remanded, finding that the Commissioner's decision was not supported by substantial evidence. In hypotheticals posed to a vocational expert, the ALJ must only include those limitations supported by substantial evidence and is not free to disregard properly supported limitations. The ALJ's failure to account for the testimony of Robbins and his son called into question the validity of his determination of Robbins' limitations and his residual functional capacity before September 1998. As those determinations were flawed, the hypothetical posed to the vocational expert was legally inadequate. Such a failure could not be deemed harmless as if the ignored testimony is credited, a proper hy-pothetical would have included limitations which would have been determinative as to the vocational expert's recommendations to the ALJ. The ALJ's step five determination was thus unsupported by substantial evidence. Judge O'Scannlain dissented. He found the ALJ's analysis thorough and cogent and thought it should be affirmed. Browning (author), D.W. Nelson, and O'Scannlain (dissenting), Circuit Judges. D. Lowry of Portland, OR, for the appellant; D. Blume of Seattle, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

18) NATIVE AMERICAN LAW: Idaho v. Shoshone-Bannock Tribes, 04-35636 (9th Cir. Oct. 11, 2006). Idaho appealed the district court's grant of summary judgment to the Shoshone-Bannock Tribes in their declaratory judgment action over the types of games they may offer under their tribal-state gaming Compact with Idaho. The court ruled that the Tribes could operate tribal video gaming machines without renegotiating their Compact to limit the numbers of games and to require payments by the Tribes to local educational programs and schools. The USCA affirmed the district court's grant of summary judgment to the Tribes. Canby (author), Gould, and Bea, Circuit Judges. DAG M. Gilmore of Boise, ID, for the defendants; S. Crowell of Kirkland, WA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

19) IMMIGRATION: Velazquez-Herrera v. Gonzales, 04-72417 (9th Cir. Oct. 19, 2006). The petitioner sought review of a BIA decision adopting and affirming an IJ's decision that the petitioner's conviction under Washington's fourth degree assault statute, Wash. Rev. Code Sec. 9A.36.041, constituted a crime of "child abuse" under 8 USC Sec. 1227(a)(2)(E)(i), thereby making the petitioner removable and ineligible for discretionary relief. The USCA granted the petition and remanded to the BIA so that it could issue a precedential decision defining what constitutes a crime of child abuse for purposes of Sec. 1227(a)(2)(E)(i) and then to apply that definition to petitioner's conviction in accordance with Taylor v. USA, 495 US 575 (1990). Wallace, Wardlaw, and Fisher, Circuit Judges. Per Curiam. M. Weber of Seattle, WA, for the petitioner; S. Houser of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

20) IMMIGRATION: Fernandez-Ruiz v. Gonzales, 03-74533 (9th Cir. Oct. 26, 2006). At issue here was whether the petitioner's 2003 Arizona conviction for domestic violence was a "crime of domestic violence" under a federal statute that triggers removal of a legally admitted resident alien. The federal statute, as interpreted by Leocal v. Ashcroft, 543 US 1 (2004), covers only crimes involv-ing intentional conduct. Because the relevant Arizona statute permits conviction when a defendant recklessly but unintentionally causes physical injury to another, and because the petitioner's documents of conviction do not prove he intentionally used force against another, the USCA concluded that the federal statute did not apply. The petitioner was thus not removable for his 2003 Arizona conviction and the USCA returned the case to the original three-judge appellate panel to decide whether he is removable on other grounds. Dissenting in part, Judge Kozinski agreed that the government had not shown that the petitioner committed a crime of domestic violence under 18 USC Sec. 16(a). However, he could not agree with the majority's refusal to send the case back to the BIA for reconsideration. At the time the case was presented, the government had no reason to present evidence that would sustain its burden under a modified categorical approach. Now that the law has changed, Judge Kozinski thought the government is entitled to make its case under the new standard. Dissenting, Judge Wardlaw thought that an Arizona domestic violence conviction is a "crime of domestic violence" for purposes of federal immigration law. She thought that the majority's "hyper-technical" analysis stretches the Taylor v. USA, 495 US 575 (1990), categorical approach to "absurdity" and misreads Leocal as barring all crimes involving the reckless use of force from qualifying as "crimes of violence" under Sec. 16(a). Schroeder, Reinhardt, Kozinski (dissenting in part), Noonan, O'Scannlain, Hawkins, Wardlaw (dissenting), Clifton, Bybee, Callahan, and Bea (author), Circuit Judges. E. Rocush of Tucson, AZ, for the petitioner; AAG P. Keisler of Washington, DC, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

21) IMMIGRATION: Mendez-Alcaraz v. Gonzales, 04-74268 (9th Cir. Oct. 2, 2006). The petitioner, an alien with lawful perma-nent residence status, pleaded guilty in 1996 to sexual abuse of a minor. He was sentenced to 75 months in prison and 120 months of "post-prison supervision." He spend three years in a juvenile detention facility and another three in state prison. When his imprisonment ended, the INS took him into its custody and sought removal based on the conviction. The petitioner conceded removability, designated Mexico as the country to which he would be removed, and stated that he wished to apply for waiver of deportation. There is, and was at the time of the petitioner's guilty plea to sexual abuse of a minor, no discretionary relief from removal available to an aggravated felon who has served a prison term of five years or more. The immigration judge held that the crime was an aggravated felony, but recognized that it was an arguable issue. He then ordered the petitioner removed to Mexico and the petitioner moved to Mexico in January 2003, in compliance with the removal order. His brief alleged that he has neither reentered nor attempted to reenter the U.S. since that time. Fourteen months after the hearing and removal order and waiver of appeal, the petitioner moved for reconsideration, on the theory that when he pleaded guilty to sexual abuse of a minor, it was not an aggravated felony. The IJ denied the motion because the same issues had been raised at trial and there was nothing new now. The BIA dismissed the petitioner's appeal, agreeing with the IJ and adding several alternative grounds. The USCA affirmed, finding that the BIA had correctly dismissed as untimely the petitioner's motion to reconsider. Judge Ferguson dissented. He thought the government had removed the petitioner from the U.S. based on a criminal conviction that violated his procedural due process rights under the Fourteenth Amendment to the U.S. Constitution. Ferguson (dissenting), Kleinfeld (author), and Graber, Circuit Judges. P. Smith of Portland, OR, for the petitioner; J. Redfern of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

22) IMMIGRATION: Galeana-Mendoza v. Gonzales, 04-73100 (9th Cir. Oct. 6, 2006). The petitioner was twice convicted of battery on the mother of his children in violation of California Penal Code Sec. 243(e). In the period between his two convictions, the INS began removal proceedings against him by filing a notice to appear charging him as removable under 8 USC Sec. 1182(a)(6)(A)(i), as "an alien present in the United States without being admitted or paroled." At a hearing before an IJ, the petitioner conceded removability but sought cancellation of removal pursuant to Sec. 1229b(b). After the second conviction, the INS filed an additional charge of deportability which alleged that the petitioner was an alien convicted of a "crime involving moral turpitude" under Sec. 1182(a)(2)(A)(i)(I). The new allegation relied upon the petitioner's two convictions for violation of Sec. 243(e). The IJ held that the petitioner was removable as an alien present in the U.S. without being admitted or paroled, was removable as an alien who has been convicted of two crimes involving moral turpitude, and that he was not eligible for cancellation of removal. The USCA granted the petition and remanded for further proceedings. It held that a conviction for domestic battery under California Penal Code Sec. 243(e) does not categorically qualify as a "crime involving moral turpitude." Concurring, Judge Callahan wrote separately to note that the USCA was influenced by a California court's determination that a conviction under Sec. 243(e) does not require either a showing of bodily harm or pain, or that the perpetrator intended to injure: he "only needs to intend to commit the act." People v. Mansfield, 200 Cal. App. 3d 82, 88 (1988). Judge Callahan also noted that the USCA here concluded that a violation of Sec. 243(e) is not a "crime involving moral turpitude" under the categorical approach, and determined that, on the record of this case, the government had not shown that the application of the modified categorical approach would produce a different result. Finally, Judge Callahan noted that the USCA did not hold that the fact that the victim of a crime deserves special protection-such as a domestic partner or a peace officer-is not a relevant or even critical factor in determining whether a crime involves moral turpitude. Thompson, Berzon (author), and Callahan (concurring), Circuit Judges. A. Diamante of Los Angeles, CA, for the petitioner; A. Maclachlan of Washington, DC, for the respondent.(Download the full text of this decision at www.ce9.uscourts.gov/)

23) CRIMINAL PROCEDURE / SEXUAL ABUSE OF MINORS: USA v. U.S. District Court, 06-72498 (9th Cir. Oct. 3, 2006). The government petitioned the USCA for a writ of mandamus to require a district court to hold a jury trial in a criminal case in which the defendants are charged with acts involving interstate travel and the sexual abuse of young children in violation of 18 USC Secs. 2423(a) and (b) and 2251A(a) and (b). The district court granted the defendants' motions for a bench trial despite the government's refusal to consent to the jury waiver pursuant to Fed. R. Crim. P. 23(a). The USCA concluded that the writ of mandamus must issue. The district court, as a matter of law, committed clear error in ordering a non-jury trial without the consent of the prosecution. Silverman and Rawlinson, Circuit Judges, and Bertelsman, District Judge. Per Curiam. M. Scott of Sacramento, CA, for the petitioner; B. Locke and D. Broderick of Sacramento, CA, for the defendant-real-parties in interest Allen Harrod and Michael Labrecque. (Download the full text of this decision at www.ce9.uscourts.gov/)

24) ARMED CAREER CRIMINALS: USA v. Rodriquez, 04-30397 (9th Cir. Oct. 5, 2006). A jury convicted Rodriquez of being a felon in possession of a firearm. On appeal, he argued that the district court erred in denying his motion to suppress the firearm because the consent to search was not voluntary. He also argued that there was insufficient evidence to support his conviction. The gov-ernment maintained that the district court had erroneously concluded that Rodriquez's prior drug convictions did not qualify as predicate offenses under the Armed Career Criminal Act ("ACCA"). The USCA affirmed. It held that the search was conducted pursuant to a valid consent; there was sufficient evidence to support the jury's finding that Rodriquez possessed the firearm; and, the district court, relying on USA v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc), correctly held that Rodriquez's prior drug convictions did not qualify as predicate offenses under the ACCA. Rawlinson, (author), and Clifton, Circuit Judges, and Marshall, District Judge. L. Glenn of Spokane, WA, for the appellant; AUSA J. Harrington of Spokane, WA, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

25) EVIDENCE: USA v. Nguyen, 06-30011 (9th Cir. Oct. 18, 2006). Nguyen appealed his conviction under 8 USC Sec. 1253(b) for willful failure to comply with terms of his release under supervision. The term in question required that he not "commit any crimes." His conviction was based solely upon proof that he had previously been convicted of two Alaska state misdemeanors following pleas of nolo contendere. Nguyen argued on appeal that, because a nolo contendere plea is not an admission of guilt to the underlying crime, a conviction based on such a plea is not proof that he "committed any crimes." He further argued that his state conviction should not have been admitted into evidence in his trial on the federal charge. The USCA agreed and reversed the conviction. The misdemeanor nolo contendere convictions were legally insufficient to support Nguyen's conviction for violating Sec. 1253(b). Moreover, the convictions should not have been admitted under Fed. R. Evidence 410, 803(22), or 803(8) for the purpose of proving that he actually committed the underlying crimes charged. In this situation, the government is prohibited from retrying Nguyen on the Sec. 1253(b) charge. Reinhardt, McKeown, and Clifton (author), Circuit Judges. K. McCoy of Anchorage, AK, for the appellant; AUSA T. Bradley of Anchorage, AK, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

26) EVIDENCE: USA v. Paopao, 05-10653 (9th Cir. Oct. 10, 2006). Paopao pled guilty to violating 18 USC Sec. 922(g), possession of a firearm by a felon. Under a reservation of rights, he appealed two district court's rulings. He alleged that the district court erred in not suppressing the Honolulu Police Department's seizure of his handgun during a protective sweep of an illegal gambling room. He also claimed that the district court should have granted his motion to dismiss the charges because they were unconstitutional as ap-plied to him. The USCA affirmed. Paopao failed to show that the denial of his suppression motion and his motion to dismiss were in error. B. Fletcher and Berzon, Circuit Judges, and Trager (author), District Judge. P. Byrne of Honolulu, HI, for the defendant-appellant; AUSA M. Silverberg of Honolulu, HI, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

27) EVIDENCE / POSSESSION OF A FIREARM: USA v. Black, 05-10640 (9th Cir. Oct. 26, 2006). Black challenged his conviction as a felon in possession, arguing that the district court erred when it denied his motion to suppress the gun. The USCA affirmed the denial of Black's motion to suppress and upheld his conviction. The police justified their entry into Black's apartment, not as one looking for evidence of a crime but as a welfare search occasioned by a 911 domestic violence call. Dissenting, Judge Berzon thought that the warrantless search of the apartment could not be justified under the Fourth Amendment's "exigent circumstance" exception to the warrant requirement. She would reverse the district court's decision to deny Black's motion to suppress and overturn the conviction. B. Fletcher (author) and Berzon (dissenting), Circuit Judges, and Trager, District Judge. AFPD A. Traum of Las Vegas, NV, for the defendant-appellant; AUSA J. Damm of Las Vegas, NV, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

28) EVIDENCE / DRUG TRAFFICKING / POSSESSION OF A FIREARM: USA v. Mosley, 05-30488 (9th Cir. Oct. 11, 2006). Mosley was found guilty by a jury of possession of crack cocaine with intent to distribute under 21 USC Secs. 841(a)(1) and (b)(1)(B) (Count One), and possession of a firearm in furtherance of a drug trafficking offense under 18 USC Sec. 924(c)(1)(A) (Count Two). The USCA affirmed, holding that the evidence sufficed to support a conviction under Sec. 924(c)(1)(A). There could be little doubt that Mosley's apartment was the basis of operations for crack cocaine production and packaging. Substantial sums of cash and the lack of furniture and personal items supported the government's theory that the apartment was a textbook example of a stash pad. Mosley's kitchen was littered with cocaine, crack, and drug paraphernalia used to package and distribute drugs, along with some $7,000 in cash. Police found three loaded semi-automatic handguns at or near the entrance, one of which was cocked. Although the safety of the cocked gun was on, a rational jury could easily have concluded that it was ready for immediate use. Rounds of ammunition remained in the magazines of all the weapons and in the chambers of two of the handguns. These and other facts presents the picture of a drug dealer ready to threaten or fire upon any would-be intruder who might enter his base of operations to steal drugs or drug proceeds. The USCA reiterated that the inquiry is fact specific, and declined to adopt a checklist approach. However, several factors may combine to provide a sufficient connection between the firearm and the underlying drug trafficking offense. Ultimately, in cases that present more complex, subtle factors scenarios, it is the totality of the circumstances, coupled with a healthy dose of a jury's common sense when evaluating the facts in evidence, which will determine whether the evidence suffices to support a conviction under Sec. 924(c)(1)(A). The record here supported the jury's decision. Kozinski, Berzon, and Tallman (author), Circuit Judges. AFD M. Dieni of Anchorage, AK, for the defendant-appellant; AUSA J. Farrington of Anchorage, AK, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

29) EVIDENCE / FELON IN POSSESSION OF A FIREARM: USA v. Mendez, 05-10205 (9th Cir. Oct. 30, 2006). Mendez was pulled over by two police officers for failure to display a visible license plate or registration tag. He was asked to exit the vehicle, patted down for weapons and, although there were three small children in the car, told to sit on the curb behind the vehicle while a records check was conducted. In response to questioning about matters unrelated to the purpose of the traffic stop, Mendez told the officers that there was a gun in the car, at which point they arrested him, searched the car and found the gun. After the district court denied his motion to suppress the gun, Mendez entered a conditional plea of guilty to being a felon in possession of a firearm, in violation of 18 USC Secs. 922(g)(1) and 924(a)(2). The issue on appeal was whether the district court erred when it denied his motion to suppress. The USCA held that it did, vacated Mendez's conviction and remanded. Because the fact of gang membership is not sufficient to generate a particularized, reasonable suspicion of criminal activity, the officer was not justified in expanding his questioning of Mendez to topics beyond the scope of the traffic stop. Even if they could have considered that Mendez once served a prison sentence, that information, alone or in combination with the information regarding gang membership, did not give rise to the requisite type of particularized suspicion necessary to expand the scope of the interrogation. The USCA concluded that Mendez's Fourth Amendment rights were violated when he was subjected to interrogation by the officers that exceeded the scope of the traffic stop. The gun thus had to be suppressed as the product of the unlawful questioning. Judge Tallman dissented. He thought the Fourth Amendment did not require police officers to take unnecessary risks in the performance of their duties. Constraining an officer's ability to make further inquiry into a Terry suspect's potential dangerousness endangers the officers and innocent bystanders, and contravenes established Supreme Court caselaw authorizing the use of reasonable protective measures to ensure officer safety. As Judge Tallman saw it, two experienced gang-enforcement officers were confronting a gang member, in a gang neighborhood, who admitted to serving an eight-year prison term on a weapons charge. Faced with such a situation, they made a reasonable decision to make further inquiry into whether he had a gun in his car. The questions they posed were not overly intrusive and were directly related to their legitimate safety concern. Reinhardt (author), Paez, and Tallman (dissenting), Circuit Judges. J. Sands of Phoenix, AZ, for the defendant-appellant; P. Charlton of Phoenix, AZ, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

30) POSSESSION OF A FIREARM / SENTENCING: USA v. Hungerford, 05-30500 (9th Cir. Oct. 13, 2006). Following a jury trial, Hungerford was convicted of conspiracy, seven counts of robbery, and seven counts of using a firearm in relation to a crime of violence, in violation of the Hobbs Act and 18 USC Sec. 924(c)(1) (2006). She appealed her conviction on four of the robbery counts and four related counts for using a firearm. She also appealed her sentence. She had received 57 months of imprisonment for the con-spiracy and robbery counts, to run concurrently, plus 60 months for the first firearm charge and 300 months for each of the other fire-arm charges, to run consecutively. The USCA affirmed. Judge Reinhardt concurred in the judgment. He thought that, although prece-dent foreclosed Hungerford's Eighth Amendment challenge of Sec. 924(c), under which she received almost all of her 159-year term of imprisonment, it could not be left unsaid how "irrational, inhumane, and absurd the sentence is in this case, and how this particular sentence is a predictable by-product of the cruel and unjust mandatory minimum sentencing scheme adopted by Congress." Reinhardt (concurring) and Graber (author), Circuit Judges, and Lew, District Judge. P. Hoovestal of Helena, MT, for the defendant-appellant; AUSA J. Seykora of Billings, MT, for the plaintiff-appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

31) SENTENCING: Stokes v. Schriro, 04-16454 (9th Cir. Oct. 6, 2006). An Arizona state court found Stokes guilty of attempted kidnapping and attempted robbery, and found the offenses "dangerous." The sentencing judge opted to give Stokes to 20 years as a repetitive offender whose previous convictions were for non-dangerous offenses. He then enhanced the sentence to 25-years by finding aggravating circumstances. After Stokes' habeas petition was denied in district court, the USCA granted a certificate of Appealability (COA) on the issue of whether Stokes "was sentenced in violation of the Sixth Amendment pursuant to Apprendi v. New Jersey, 530 US 466 (2000), because the trial court disregarded the jury's findings of dangerousness and sentenced Stokes as a non-dangerous re-petitive offender. The USCA concluded that the trial court's election of one statutory sentence option over another was not contrary to Apprendi. However, the court ran afoul of Apprendi when it relied on judicial factfinding to increase Stokes' sentence beyond the statutory maximum. The USCA thus affirmed in part, reversed in part, and remanded. D.W. Nelson, Rawlinson (author), and Bea, Circuit Judges. J. Sands of Tucson, AZ, for the appellant; T. Goddard of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

32) SENTENCING: USA v. Nichols, 05-30503 (9th Cir. Oct. 6, 2006). Nichols appealed his 57-month sentence following his guilty plea conviction for being a felon in possession of a firearm, in violation of 18 USC Sec. 922(g)(1). He challenged the district court's enhancement of his base offense level under Sentencing Guidelines Sec. 2K2.1(b)(5), which provides for a four-level increase if the defendant used or possessed a firearm in connection with another felony offense. He argued that this provision applies only to firearms listed in the count of conviction of the underlying indictment. Because his two-count federal indictment did not list the firearm he used in connection with the prior felony assault, Nichols maintained that the district court erred in increasing his offense level under Sec. 2K2.1(b)(5). He also argued that the sentence was unreasonable. The USCA affirmed the district court's application of Sec. 2K2.1(b)(5), as Nichols' use and possession of the gun during the assault constituted relevant conduct under Guideline Sec. 1B1.3. The USCA further held that Nichols' sentence was not unreasonable, and thus upheld it. Judge Wallace concurred in the result reached by the majority but wrote separately because he would follow the Eighth Circuit in holding that the firearm used for enhancement under Sec. 2K2.1(b)(5) need not be mentioned in the indictment. He would affirm following the Eighth Circuit's statutory interpretation, without reach the issue of where Sec. 1B1.3(a)(2) serves as an alternative to the application of Sec. 2K2.1(b)(5). Wallace (concurring), Wardlaw, and Fisher (author), Circuit Judges. P. Nino of Spokane, WA, for the defendant; AUSA E. Hicks of Spokane, WA, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

33) SENTENCING: USA v. Santiago, 05-30584 (9th Cir. Oct. 23, 2006). At issue here was whether the plain error standard of re-view applies when the district court expressed "concern" about how a Presentence Report ("PSR") calculated the quantity of drugs attributable to the defendant, but the defendant did not object to the PSR. The PSR based its estimate of the quantity of methampheta-mine attributable to the defendant on interviews with persons who purchased methamphetamine from and used methamphetamine with him. Persons interviewed said that he delivered between one and five pounds of methamphetamine per week over an 18 to 23 month period. The USCA held that in such a case the plain error standard of review applies. But, finding no plain error, it affirmed the de-fendant's sentence. Silverman and Gould (author), Circuit Judges, and Rhoades, District Judge. G. Fuller of Twin Falls, ID, for the defendant; AUSA M. Mallard of Pocatello, ID, for the plaintiff. (Download the full text of this decision at www.ce9.uscourts.gov/)

34) HABEAS CORPUS: Correll v. Ryan, 03-99006 (9th Cir. Oct. 2, 2006). Correll, an Arizona death row inmate, appealed the district court's denial of his habeas petition following the USCA's remand for an evidentiary hearing. Correll had been convicted by an Arizona jury in 1984 of first degree murder, attempted first degree murder, kidnapping, armed robbery, and first degree burglary for his role in a triple homicide. He was sentenced to death by the trial judge and his conviction was upheld by the Arizona Supreme Court. However, the Supreme Court modified his death sentence as to one victim and invalidated one aggravating factor. On an earlier appeal, the USCA remanded for an evidentiary heart on Correll's claim of ineffective assistance of counsel at sentencing. On remand, the district court conducted a nine day evidentiary hearing and, applying the standards of Strickland v. Washington, 466 US 668 (1984), and its progeny, concluded that the performance of Correll's attorney in sentencing was deficient, but that Correll had suffered no prejudice. On the current appeal, the USCA concluded that Correll was entitled to relief in the form of a new penalty phase trial. It thus reversed the district court's order and remanded with instructions to issue a writ of habeas corpus. Judge O'Scannlain dissented from the majority's conclusion that Correll met the "highly demanding and heavy burden of establishing actual prejudice" in the pursuit of his claim of ineffective assistance of counsel during the penalty phase of the trial. The majority had, he thought, ignored the mountain of precedent which provides that, in assessing prejudice, the USCA must consider not only the likely benefits of the mitigating evidence counsel failed to present, but also its likely drawbacks. He thought the majority had also substituted its independent analysis of the record for that of the district court, and relied on its own view of the evidence rather than considering, as it must, the effect the evidence would have had on an Arizona sentencing judge 22 years ago. Because he did not believe that Correll had met his burden "affirmatively [to] prove prejudice," Judge O'Scannlain would affirmed the judgment of the district court denying the habeas petition. Schroeder, O'Scannlain (dissenting), and Thomas (author), Circuit Judges. T. Phalen of Phoenix, AZ, for the appellant; J. Beene of Phoenix, AZ, for the appellee. (Download the full text of this decision at www.ce9.uscourts.gov/)

35) HABEAS CORPUS: Smith v. Baldwin, 04-35253 (9th Cir. Oct. 24, 2006). This case presented the issue of whether a state prisoner, Roger Smith, who maintains his innocence, and that his principal witness, Edmonds, was coerced by the state into not testifying on Smith's behalf, may pursue his federal constitutional claims in federal court notwithstanding his failure to comply with all of the applicable procedural prerequisites. Smith is currently serving a life sentence with a 30-year minimum term. The district court dismissed on procedural grounds his petition for a writ of habeas corpus without reaching the merits of his claims. It found that he had not exhausted those claims in state court and that, because state procedural rules barred him from doing so now, the claims were pro-cedurally defaulted. Like the district court, the USCA did not consider the merits of his case. All it decide is that, under an exception to the applicable procedural rules, Smith may pursue his federal constitutional claims in federal court. Judge Bybee dissented. He thought the majority had found a prima facie case of prosecutorial misconduct where none actually existed none. He further thought the majority should have addressed the prima facie case it concocted by remanding to the district court for an evidentiary hearing. And, he thought the majority should not have deviated from USA v. Westerdahl, 945 F.2d 1083 (9th Cir. 1991), by presuming that Edmonds' internally and mutually conflicting affidavits to be true instead of remanding for an evidentiary hearing with a grant of immunity. Hug, Reinhardt (author), and Bybee (dissenting), Circuit Judges. T. Hester of Portland, OR, for the petitioner; H. Myers of Salem, OR, for the respondent. (Download the full text of this decision at www.ce9.uscourts.gov/)

36) PRISON WORK CONDITIONS: Morgan v. Morgensen, 04-35608 (9th Cir. Oct. 6, 2006). Morgan, a Washington prisoner, was injured by a defective printing press while working at a prison job for which he had voluntarily applied. He alleged that he told his supervisor, defendant Canady, about the defect, but that Canady forced Morgan to keep working. Morgan brought a complaint under 42 USC Sec. 1983, alleging that the requirement to continue working under the circumstances violated his Eighth and Fourteenth Amendment rights. Canady moved for summary judgment, asserting a defense of qualified immunity, which the district court denied. The USCA affirmed. In so doing, it held that, under certain circumstances, dangerous prison working conditions can give rise to an Eighth Amendment claim, notwistanding the fact that the prisoner initially obtained his specific employment assignment through a voluntary application process within the prison system. The USCA further held that a prison official is not entitled to qualified immunity when he orders a prisoner to continue operating prison work equipment that the official has been warned and has reason to believe is unnecessarily dangerous. Reinhardt, McKeown, and Clifton (author), Circuit Judges. Gregoire of Olympia, WA, for the appellant; T. Ford of Seattle, WA, for the appellee.(Download the full text of this decision at www.ce9.uscourts.gov/)

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

1) BANKRUPTCY: In re HWY Squared, Inc., 04-56748 (9th Cir. Oct. 13, 2006) (unpublished). Hall, McKeown, and Wardlaw, Circuit Judges.

RW Squared Medical Group appealed the district court's decision affirming the bankruptcy court's denial of its claim against HWY Squared in the latter's Chapter 11 bankruptcy case. The USCA affirmed. RW Squared maintained that under Bankruptcy Rule 3001(f), the bankruptcy court should have given its proof of claim a favorable evidentiary presumption. Rule 3001(f) reads: "a proof of claim executed and filed in accordance with these rules shall constitute prima facie evidence of the validity and amount of the claim." However, the Ninth Circuit applies the Rule 3001(f) evidentiary presumption only if the proof of claim "sets forth all the necessary facts to establish a claim." In re Holm, 931 F.2d 620, 623 (9th Cir. 1991). Because a claim is only allowed if it satisfies the elements of the underlying substantive law, the proof of claim must address all the essential elements of that underlying law. In re Atwood, 293 B.R. 227, 233 (9th Cir. BAP 2003) ("The omission of the proof of claim to address an essential element of the substantive claim deprives [the claimant] of the favorable Rule 3001(f) evidentiary presumption regarding validity and amount."). RW Squared's proof of claim failed to show that its alleged damages were proximately caused by the debtor's breach of the Agreement. The bankruptcy court thus did not clearly err in denying the proof of claim a favorable evidentiary presumption under Rule 3001(f). HWY Squared's objection was sufficient to deprive the proof of claim of prima facie validity. Without that favorable evidentiary presump-tion, the bankruptcy court did not abuse its discretion in finding that RW Squared failed to establish its proof of claim in the absence of evidence of proximate causation and damages. RW Squared next argued that the bankruptcy court abused its discretion by striking the Newman Declaration under Federal Rule of Evidence 1006 and denying RW Squared's request to make an offer of proof. Rule 1006 provides that "the contents of voluminous writings … which cannot conveniently be examined in court may be presented in the form of a … summary. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place." But, RW Squared neither established that the records summarized in the Newman Declaration were voluminous nor made those records available to HWY Squared. Because RW Squared did not establish the proper foundation for this summary evidence, the bankruptcy judge did not abuse his discretion in excluding the declaration. And, as the district court noted, RW Squared's request for an offer of proof is better termed a request to prove damages through additional evidence. The bankruptcy judge did not abuse his discretion in refusing to permit RW Squared to present additional evidence that it should have offered during the hearing itself. Finally, RW Squared claimed that the bankruptcy judge abused his discretion by denying its motion for reconsideration. To be granted reconsideration, RW Squared had to show (1) newly discovered evidence, (2) clear error or manifest injustice in the initial decision, or (3) an intervening change in the law. RW Squared based its motion upon two declarations purporting to establish damages. But this evidence was available to RW Squared at the initial hearing. "The failure to file documents in an original motion or opposition does not turn the late filed documents into 'newly discovered evidence.'" Sch. Dist. No. IJ, Multnomah County, Or. V. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). The district court thus did not abuse its discretion by denying the motion for reconsideration.

2) BANKRUPTCY / RETROACTIVE ANNULMENT OF STAYS: In re Williams, 05-55541 (9th Cir. Oct. 12, 2006) (unpub-lished). Farris, Boochever, and Leavy, Circuit Judges.

Williams appealed pro se from the a decision of the Bankruptcy Appellate Panel ("BAP"), which affirmed the bankruptcy court's retroactive annulment of the automatic stay in his bankruptcy case. The USCA affirmed the BAP. A bankruptcy court retains jurisdiction after dismissal in some circumstances to "interpret" and "effectuate" its orders, including retroactive annulment of the automatic stay as occurred in this case. In addition, 11 USC Sec. 362(d) authorizes the court to annul the stay provided under Sec. 362(a). The stay in Williams' second bankruptcy case arose under Sec. 362(a), and the statute does not limit annulment to stays arising in pending case. The USCA agreed with the BAP that the bankruptcy court had jurisdiction to enter the order. The USCA also concluded that the bankruptcy court did not abuse its discretion when it annulled the stay. The bankruptcy court properly balanced the equities when, although it acknowledged that the foreclosure sale may have violated the automatic stay, it considered several adverse factors and conclude that Williams had failed to commence a timely, appropriate proceeding to void the foreclosure sale. The USCA concluded that it was not an abuse of discretion retroactively to annul the automatic stay.

3) TRADEMARKS: Playmakers LLC v. ESPN, 04-36139 (9th Cir. Oct. 3, 2006) (unpublished). Schroeder, Tallman, and Bea, Circuit Judges.

Playmakers LLC ("LLC") appealed the district court's summary judgment in favor of ESPN. The district court granted summary judgment to ESPN on LLC's claims under federal and state trademark law and the Lantham Act, 15 USC Sec. 1125(a), that ESPN infringed its registered trademark "Playmakers," and its claim that ESPN's alleged acts of trademark infringement constituted unfair business practices in violation of the Washington Consumer Protection Act, Wash. Rev. Code Sec. 19.86.020. The USCA affirmed. The district court did not err in granting summary judgment to ESPN on the trademark claims. "The test for likelihood of confusion is whether a reasonably prudent consumer in the marketplace is likely to be confused as to the origin of the good or service bearing one of the marks." Dreamwerks Prod. Group v. SKG Studio, 142 F.3d 1127, 1129 (9th Cir. 1998). Confusion must be "probable, not simply a possibility." Cohn v. Petsmart, Inc., 281 F.3d 837, 842 (9th Cir. 2002) (per curiam). The USCA applies the following factors in determining likelihood of confusion: "(1) strength of the mark; (2) proximity or relatedness of the goods; (3) similarity of sight, sound and meaning; (4) evidence of actual confusion; (5) marketing channels; (6) type of goods and purchaser care; (7) intent; and (8) likelihood of expansion." Dreamwerks, 142 F.3d at 1129 (citing AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir. 1979)). Upon considering all the factors, the USCA held that there were no genuine issues of material fact regarding a likelihood of consumer confusion between the two marks. While some factors favored LLC, the care exercised by LLC's potential clients and the dissimilarity of the services provided weighed far more heavily against a likelihood of confusion. The district court did not err in granting summary judgment to ESPN on the federal and state trademark claims. LLC's claim under the Lanham Act relied on the same likelihood of confusion standard. The district court thus did not err in granting summary judgment to ESPN as to the Lanham Act claim. Because LLC failed to establish a genuine issue of material fact on the likelihood of consumer confusion, the district court did not err in concluding that LLC has not established a genuine issue of material fact on its claim under the Washington Consumer Protection Act. Nordstrom, Inc. v. Tampourlos, 733 P.2d 208, 210 (Wash. 1987).

4) TRADEMARKS / CONTRACTS: Sunrich Food Group, Inc., 05-35152 (9th Cir. Oct. 12, 2006) (unpublished). Hawkins, Silverman, and Gould, Circuit Judges.

Pacific Foods of Oregon ("Pacific") appealed a judgment following a jury trial in favor of Sunrich Food Group on Sunrich's claim of misappropriation of trade secrets and breach of contract. Sunrich cross-appeals the district court's award of attorneys' fees, which was substantially lower than the amount requested by Sunrich. In each appeal, the USCA affirmed in part, reversed in part, and remanded. The USCA noted that although Pacific argued that the district court erred by denying its motion for summary judgment on Sunrich's misappropriation of trade secrets claim, a denial of summary judgment is not a final order and is not appealable, unless coupled with a grant of summary judgment to the other party. USA v. Alameda Gateway, Ltd., 213 F.3d 1161, 1164 (9th Cir. 2000); Lum v. Honolulu, 963 F.2d 1167, 1170 (9th Cir. 1992). Pacific conceded that Sunrich's pricing and margin information (i.e., Pacific's price to Sunrich for manufacturing and packing its Soy-Um and Rice-Um products and Sunrich's price to Trader Joe's for these products) is the kind of "cost data" that can be a trade secret under O.R.S. Sec. 646.461(4). There was also sufficient evidence for a rational jury to conclude that Sunrich's predecessor, First Light Foods ("FLF") took reasonable efforts to protect this information. The jury heard tes-timony from a Mr. Jenkins that the only information FLF initially provided to potential suitors was "top line" financial information, and that FLF did not reveal their confidential pricing information; Jenkins also testified that FLF did not reveal any detailed pricing information to Sunrich until the parties were deep into the merger process and after consulting an attorney. Alan. Routh of Sunrich acknowledged receiving general financial statements, margin information and sales volumes during the merger negotiations. Routh testified that he did not recall receiving margin information on any individual products, but only gross margin information on all of FLF's sales. Drawing all inference in favor of upholding the verdict, the jury could have concluded either that FLF did not reveal any individual product pricing information to Sunrich (only overall margin information), or that its disclosure of this information at a late stage of the merger was "reasonable" under the circumstances. See Buffets, Inc. v. Klinke, 73 F.3d 965, 969 (9th Cir. 1996) (reasonable efforts to maintain secrecy includes limiting access to information on a "need to know basis"). Pacific also argued that Sunrich failed to establish its actual losses resulting from the pricing misappropriation. However, Sunrich introduced testimony and documents proving that Pacific began communicating directly with Trader Joe's new buyer in 2001 to undercut Sunrich's price to Trader Joe's on the existing soy and rice beverages. Sunrich's expert reviewed the company's past sales history, calculated what Sunrich's reasonably certain future sales would have been, and compared them to Sunrich's actual sales to Trader Joe's in 2001 and 2002. Viewing the evidence in the light most favorable to Sunrich, the jury could have concluded that Sunrich lost market share at Trader Joe's because Pacific used confidential price margin information to undercut Sunrich's existing prices. Pacific also maintained that Sunrich did not establish that the "half-gallon opportunity" constitutes a "trade secret." The USCA agreed. Trader Joe's was already purchasing half-gallons from another soy producer, and Trader Joe's interest in a half-gallon size product was "generally known to the public" and not a "trade secret" under the Oregon Trade Secret Act ("OTSA"). ORS Sec. 646.461(4)(a); Ikon Office Solutions, Inc. v. American Office Products, 178 F.Supp. 2d 1154, 1169-70 (D. Org. 2001) (information readily obtainable from public sources not a trade secret). Trader Joe's also disclosed its dissatisfaction with it current half-gallon vendor in front of Pacific, who was not restricted from competing with FLF under the terms of the Packing Agreement. The district court should have granted Sunrich's motion for judgment as a matter of law on this issue. The district court did not abuse its discretion by permitting Sunrich's damages expert to amend an earlier report. Sunrich's claims for misappropriation of trade secrets overlapped with several of its other common law claims, including unfair competition. The USCA thus found it unsurprising that someone not trained in the law would use a broad description like "unfair dealing" to describe all these similar causes of action. The crux of the expert's report, including the methodology and the ultimate calculation of lost profits, remained unchanged from one report to the next. Pacific did not claim that it was surprised by the expert's testimony or given an inadequate time to prepare for rebuttal. Nor did Pacific explain how it was prejudiced in any way by the admission of the testimony (i.e. inability to offer counter-evidence). The district court did not abuse its discretion in denying Pacific's motion in limine.

The district court also did not err by denying Pacific's motion for judgment as a matter of law with respect to the strawberry, coffee and fat-free breach of contract claims. Pacific argued that the orders it processed for strawberry, coffee or fat-free Soy-Um or Rice-Um were not "requirements" because the orders were addressed to Pacific, while the Packing Agreement described "requirements" as "Trader Joe's orders to FLF." However, Trader Joe's buyer testified that he sent all of the purchase orders for the product to both FLF as the vendor and to Pacific, who produced the product for FLF under the Packing Agreement. Moreover, the Packing Agreement itself contemplates that Pacific would receive and process Trader Joe's orders for the Product on behalf of FLF, formalizing the existing practice of the parties at the time of the agreement: "Administration of the production, orders, sales and invoicing of the Product will be handled by Pacific." Pacific also maintained that because Exhibit B to the agreement did not list the strawberry, coffee or fat-free varieties, they did not constitute a "Product." Although Exhibit B set forth the pricing agreement at the time the parties executed the Packing Agreement, the definition of "Product" is not limited to the items described in Exhibit B, but covers "any soy base or rice base beverages manufactured and packaged for retail sale using the Trademark … or any other soy base or rice base beverages to be sold, distributed, marketed, or developed by FLF (1) to or for Trader Joe's." Finally, Pacific argues that there was no breach of the Packing Agreement with respect to the half-gallon product. The USCA agreed. While the Packing Agreement was in place, Trader Joe's did not actually place an "order" for a half-gallon Soy-Um or Rice-Um product to FLF or Pacific, as that term is used in its customary sense in the Packing Agreement. Although not defined in the Packing Agreement, "order" is used as shorthand for "purchase order," that is, a request for a specific amount of product, and not a general desire to purchase a not yet existent product. At best Trader Joe's expressed an interest in placing an order for such a product from FLF during the meeting with FLF and Pacific in November 1998, and indicated that it would order such a product from FLF in the future if it became available. The USCA thus reversed the denial of judgment as a matter of law on this issue.

Although the district court appears to have excluded Exhibit 719 as irrelevant, the USCA agreed that this proffered exhibit was possibly relevant to Pacific's untimeliness defense. However, any error in excluding the document did not taint the jury's verdict. McEuin v. Crown Equipment Corp., 328 F.3d 1028, 1032 (9th Cir. 2003). Pacific thoroughly questioned Sunrich's principal, Routh, about the termination of the Packing Agreement. Moreover, the evidence at trial also showed that the parties remained in ongoing negotiations throughout the spring of 2001 in an attempt to resolve the pricing dispute and continue the relationship under the Packing Agreement. Thus, even if the jury had known that the "January letter" had been sent during the merger discussion, it could have still found that it was reasonable for Sunrich to wait to terminate the Packing Agreement until it was apparent the negotiations were at an impasse. The USCA also found that the district court did not abuse its discretion by rejecting Pacific's proposed jury instructions on the breach of contract claim. Pacific's proposed instructions differed from those given by the court only with respect to Pacific's contention that the products had to be listed on Exhibit B before they could constitute "products" under the Packing Agreement. The district court did not err by rejecting Pacific's proposal because the definition of "Product" under the Packing Agreement contained no reference whatsoever to Exhibit B. As discussed above, Exhibit B is only referenced in the Packing Agreement with respect to pricing in Paragraph 5 to illustrate current prices for the existing products; the same paragraph contemplates that the parties will periodically review and adjust these prices. Nothing in Paragraph 5 suggests that "Products" is limited to the items set forth in Exhibit B, as opposed to the extensive and broad definition of "Product" set forth in Paragraph 1. The district court thus did not commit a legal error by refusing to instruct the jury as Pacific requested.

5) ENVIRONMENTAL LAW: Forest Conservation Council, 05-35166 (9th Cir. Oct. 5, 2006) (unpublished). Schroeder, Kleinfeld, and Bea, Circuit Judges.

Forest Conservation Council ("FCC"), et al., appealed the district court's grant of summary judgment in favor of the U.S. Forest Service on their claim the Service violated the National Forest Management Act ("NFMA") and the National Environmental Policy Act of 1969 ("NEPA") in failing to monetize non-timber resources when the Service authorized four timber sales from four national forests. The USCA affirmed. The NFMA established a two-step process for forest planning. Native Ecosystems Council v. U.S. Forest Service, 418 F.3d 953, 957 n.1 (9th Cir. 2005). First the Service develops and maintains a forest plan, or Land Resource Management Plan ("LRMP"), that determines what outputs a national forest shall produce. Second the Service implements the LRMP by approving or disapproving site-specific actions such as timber sales that are consistent with the LRMP. Nothing in the NFMA or the regulations the Service promulgated in 1982 requires site-specific analyses to monetize non-timber resources. 36 CFR Sec. 219.12(g)(3)(ii) of the 1982 regulations requires "the expected real-dollar value" of forest outputs to be monetized at the LRMP level, but this requirement does not apply to the Service's analyses of site-specific acts. Nor does NEPA require monetization of non-timber resources. NEPA's mandate to agencies is essentially procedural. Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 US 519, 558 (1978). These procedures do not include a requirement that agencies monetize outputs related to different alternatives. Finally, the USCA found no merit in the FCC's claim that the district court erred in striking two of the Service's publications. The Service correctly pointed out that this claim was based on incorrect facts, and the FCC agreed that there was no dispute as to the contents of the administrative record. The FCC's claim that the Service had to monetize non-timber resources in its site-specific timber sale analyses failed. The USCA thus affirmed the judgment of the district court.

6) ENVIRONMENTAL LAW: Tri-Valley Cares v. Department of Energy, 04-17232 (9th Cir. Oct. 16, 2006) (unpublished). Schroeder and Graber, Circuit Judges, and Holland, District Judges.

Tri-Valley Cares, Nuclear Watch of New Mexico, and various individuals (collectively "Tri-Valley") appealed the district court's summary judgment in favor of the defendants U.S. Department of Energy and its auxiliaries (collectively "DOE"). On appeal, Tri-Valley made three specific arguments concerning the proposed construction of a federal government biological weapons research laboratory near San Francisco. First, Tri-Valley asserted that DOE failed to comply with the National Environmental Policy Act of 1969 ("NEPA"), by issuing a Finding of No Significant Impact ("FONSI") after analyzing the project in an Environmental Assessment ("EA"). According to Tri-Valley, the proposed research laboratory may have a significant effect on the human environment and, accordingly, the DOE must prepare an Environmental Impact Statement ("EIS"). Second, Tri-Valley claims that, under the Freedom of Information Act ("FOIA"), DOE failed timely to provide non-exempt documents. Third, Tri-Valley claimed that the district court improperly struck portions of Tri-Valley's extra-record declarations.

The USCA affirmed in part, reversed in part, and remanded. If an EA demonstrates that substantial questions are raised about the environmental effects of a proposed agency action, a FONSI may not be issued and the agency must prepare a full EIS. Tri-Valley challenged the DOE's EA due to its alleged failure to assess fully and correctly potentially significant effects on public health and safety (such as fire, earthquake, and terrorist attacks), uncertain effects posing substantial risks, significant precedential effects, significant cumulative effects, and public controversy. Although Tri-Valley raised some substantial questions about the validity of DOE's substantive conclusions, the USCA said it may not substitute its judgment for the reviewing agency's. NEPA is a procedural statute that does not mandate particular results, but simply provides the necessary process to ensure that federal agencies take a "hard look" at the environmental consequences of their actions. With the exception of the lack of analysis concerning the possibility of a terrorist attack, the USCA held that the DOE did take a "hard look" at the identified environmental concerns and that the DOE's decision was "fully informed and well-considered." Save the Yaak Comm. v. Block, 840 F.2d 714, 717 (9th Cir. 1988). Concerning the DOE's con-clusion that consideration of the effects of a terrorist attack is not required in its EA, the USCA held to the contrary in San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission, 449 F.3d 1016 (9th Cir. 2006). In Mothers for Peace, the USCA held that an EA that does not consider the possibility of a terrorist attack is inadequate. Id. at 1035. Similarly here, the USCA remanded for the DOE to consider whether the threat of terrorist activity necessitates the preparation of an EIS. As in Mothers for Peace, the USCA cautioned that there remains open to the agency a wide variety of actions it may take on remand and that it did not prejudge those al-ternatives. Id. Tri-Valley also requested many documents pursuant to FOIA, and all of the requested documents were produced. Even-tual production, "however belatedly, moots FOIA claims." Papa v. USA, 281 F.3d 1004, 1013 (9th Cir. 2003). No exception to the mootness doctrine applied because there was no evidence of bad faith or a recurring pattern of FOIA violations by the DOE. Biodiver-sity Legal Found. v. Badgley, 309 F.3d 1166, 1174 (9th Cir. 2002) (holding that an agency which exhibited a recurring pattern of cor-recting regulatory violations immediately after the commencement of litigation could be challenged, as an exception to the mootness doctrine). The district court properly concluded that the DOE's response to Tri-Valley's FOIA requests was adequate, see Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985) ("In demonstrating the adequacy of the search, the agency may rely upon reasonably upon reasonably detailed, nonconclusory affidavits submitted in good faith."), and that the often considerable delay was not due to bad faith. Finally, the district court did not abuse its discretion by excluding certain extra-record declarations submitted by Tri-Valley. See Sw Ctr. For Biological Diversity v. U.S. Forest Service, 100 F.3d 1443, 1447 (9th Cir. 1996) (holding that a district court's decision to exclude extra-record evidence is reviewed for abuse of discretion). Judicial review of agency action is generally limited to review of the administrative record, 5 USC Sec. 706; Animal Def. Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir. 1988), and extra-record mate-rials are allowed only in certain circumstances, Sw. Ctr., 100 F.3d at 1450 (describing the four categories of circumstances). The dis-trict court, after conducting a thorough and detailed analysis of each of the fifteen declarations submitted by Tri-Valley, allowed three declarations in whole and four declarations in part, and excluded eight declarations. The district court found that the excluded declara-tions contained impermissible legal conclusions, opinions form lay witnesses, or political statements; raised only remote and highly speculative consequences. Presidio Golf Club v. Nat'l Park Serv., 155 F.3d 1153, 1163 (9th Cir. 1998); improperly raised information that became available after the agency decision-making process, Northcoast Envt'l Ctr. v. Glickman, 136 F.3d 660 (9th Cir. 1998); or were cumulative, id. The district court properly excluded the declarations based on these legally valid reasons and thus did not abuse its discretion.

7) AVIATION / WARSAW CONVENTION: Damon v. Air Pacific Ltd., 03-56838 (9th Cir. Oct. 2, 2006) (unpublished). D.W. Nelson, Hawkins, and Paez, Circuit Judges.

Damon appealed the district court's grant of summary judgment to defendants Air Pacific and Quantas Airlines. The USCA affirmed. Damon first argued that Rodriguez v. Air New Zealand, 383 F.3d 914, 916-19 (9th Cir. 2004), which held that the development of deep vein thrombosis ("DVT") is not an "accident" as that term is used in Article 17 of the Warsaw Convention. Damon maintained that Rodriguez is inconsistent with Olympic Airways v. Husain, 540 US 644 (2004). In Rodriguez, however, the USCA considered and distinguished Husain, 383 F.3d at 918. Moreover, as a three-judge panel, it lacked authority to disregard Rodriguez. Damon also argued that the airlines should be liable under the Warsaw Convention because its failure to warn of the risk of DVT is an "accident," that is, an "unexpected or unusual event." Air France v. Saks, 470 US 392, 405-06 (1985). The USCA rejected this argument in Caman v. Continental Airlines, 455 F.3d 1087 (9th Cir. 2006). In Caman, the USCA explained the difference between the "accident" requirement of Article 17 and the defenses available to a carrier under Article 20(1) when the carrier has taken all necessary measures to avoid the damage: "Attributing liability to an air carrier for failing to do all it can to prevent an injury that is inherent in air travel … improperly shifts the focus of the inquiry from the nature of the event which caused the injury to the alleged failure of the air carrier to avert the same. In addition, interpreting the term 'accident' to include a failure to warn of a possible risk of flight would incorporate into Article 17 an inquiry that is properly left to analysis under Article 20(1) once it has been established that an accident has occurred." The USCA concluded that the failure to warn of the DVT risk is not an Article 17 "event." Id. Although Damon argued that the factual record in his case differs from the facts in Caman, nothing about the holding in Caman is tied to its specific evidence. Rather, the decision turns on the interpretation of two different provisions of the Warsaw Convention, and the nature of the alleged act of omission. Damon's reliance on footnote four of Caman, 455 F.3d at 1091 n.4, was misplaced. Although in Caman the USCA declined to address the general question of whether an air carrier's departure from an industry standard or its own company policy was "unexpected" for the purpose of defining an Article 17 "accident," the USCA specifically concluded that a failure to warn of the risk of DVT was not an "event" for Article 17 purposes. Id. at 1092. If no "event" has occurred, it matters not whether that non-event is "unusual or unexpected." Even though Caman may leave open a question for another day in another context, it definitively resolved the DVT failure to warn issue, and in a way that is fatal to Damon's claim.

8) TAXATION / IRS SUMMONSES: Boulware v. USA, 04-15645 (9th Cir. Oct. 19, 2006) (unpublished). Rymer and Thomas, Circuit Judges, and Larson, District Judge.

Michael Boulware and his closely held corporation, Hawaiian Isles Enterprises ("HIE"), challenged various district court ruling rejecting their attempts to block summonses issued by the IRS. The summonses were directed to Michael's brother, Sidney, in his capacity as President of HIE and a related corporation, HIE Holdings. They sought production of various "books, records, papers, and other data relating to the tax liability" of the two companies, including documents having to do with the transactions between HIE and Michael, his girlfriend, and his ex-wife. The district court dismissed the petition to quash the HIE summons under 26 USC Sec. 7609 for lack of jurisdiction. It held that Michael was not entitled to notice to of the summons because HIE, to which it was directed, was not a "third-party record keeper." The USCA affirmed on Michael's appeal and dismissed HIE's appeal as moot. HIE's appeal failed for two reasons. First, HIE lacked standing because its only arguments pertain to the adverse ruling against Michael. Second, having not appealed from the subsequent ruling in a separate action (04-17172) enforcing the summons against it, its challenge in this case was moot. Whether or not the district court correctly applied the "third-party record keeper" requirement of Sec. 7609 in effect in 2003, the IRS made the "minimal showing" required to dispute Michael's claim that he (and not HIE or Holdings) was the target of the IRS investigation. The district court did not clearly err in finding that the target was HIE, not Michael. The summons itself identified HIE, most of the requested documents had nothing to do with Michael, and Michael was mentioned only in the context of his transactions with HIE. In addition, IRS Agent Lum's declaration show that he was conducting an examination into tax liabilities of HIE.

9) TAXATION / IRS SUMMONSES: USA v. Boulware, 04-17172 (9th Cir. Oct. 19, 2006) (unpublished). Rymer and Thomas, Circuit Judges, and Larson, District Judge.

Michael Boulware appealed the district court's order denying his motion to intervene and enforcing a summons directed to his closely held corporation, Hawaiian Isles Enterprises ("HIE"). The USCA affirmed. Whether Michael was entitled to intervene in this case under 26 USC Sec. 7609(b)(1) turned on whether he was entitled to notice of the summons under Sec. 7609(a). The USCA agreed with the district court that Michael was not entitled to notice, as the summons was issued to his brother, Sidney, in Sidney's capacity as President of HIE, for the purpose of determining the liability of HIE. See 26 USC Sec. 7609(c)(2)(A) (Sec. 7609 does not apply to summons "served on the person with respect to whose liability the summons was issued, or any officers or employees of such persons"). Nor did Michael establish a "significantly protectable interest" in the summons enforcement proceedings. The USCA found that it did not need to decide whether Donaldson v. USA, 400 US 517, 530-31 (1971), remained in force after the passage of Sec. 7609(b)(1), because under either Donaldson or the statute, the IRS did not improperly seek to obtain evidence for use in the criminal case against Michael. Michael's referral argument failed because no Department of Justice referral was in effect with respect to HIE when the summons was issued to it. Thus, 26 USC Sec. 7602(d)(1), upon which Michael relied, was inapplicable on its face. The fact that the IRS failed to halt the HIE investigation on request did not evince bad faith; there was no reason for the IRS to suspend the HIE investigation pending resolution of the criminal case against Michael. Likewise, Michael's contention that some requests in the HIE summons could only have been pertinent to his criminal case failed for lack of specific facts in support. As IRS Agent Lum's declaration explained, information regarding HIE's transactions with Jin Sook Lee, tax adjustments made by HIE during the years 1989 through 1995, payments by HIE to Mal Sun Boulware, and HIE's stock ownership were legitimately related to HIE's tax liability. Finally, there was no merit to Michael's submission that the IRS improperly communicated with the prosecutor in his criminal case. The contact mentioned in the IRS's October 28, 2003 letter was simply to verify that there would not be overlap between the civil examination of HIE and the criminal investigation of Michael. As Michael offered insufficient evidence to call the IRS's motives into question, there was no reason for an evidentiary hearing. The district court thus did not abuse its discretion in declining to order one.

10) IMMIGRATION: Pathak v. Gonzales, 04-71803 (9th Cir. Oct. 27, 2006) (unpublished). Kleinfeld and Bybee, Circuit Judges, and Whaley, District Judge.

The USCA lacked jurisdiction to review the BIA's determination that Pathak was ineligible for asylum because he provided material support to terrorists. 8 USC Sec. 1158(b)(2) (A)(v) and 1182(a)(3)(B)(i)(I). See Bellout v. Ashcroft, 363 F.3d 975, 977 (9th Cir. 2004). Although the USCA had jurisdiction to review the BIA's decision in the context of Pathak's request for withholding of removal and Convention Against Torture ("CAT") relief, it found that substantial evidence supported the BIA's determination that Pathak was ineligible for both forms of relief because he materially supported terrorist. By Pathak's own admission, he provided assistance to known terrorists by permitting them to use his family's workshop to repair their weapons, by repairing their weapons himself, and by joining them on a lengthy cross-country trip to help them recover weapons they claimed to have hidden in his family workshop. This clearly constituted material support of terrorism. The BIA properly held that Pathak's material support of terrorist in his native India rendered him ineligible for both statutory withholding of removal as well as withholding of removal under CAT. See Bellout, 363 F.3d at 978-79.

11) IMMIGRATION: Saraj v. Gonzales, 05-72824 (9th Cir. Oct. 16, 2006) (unpublished). Gibson, Rymer, and Clifton, Circuit Judges.

Saraj, a native and citizen of Afghanistan, petitioned for review of an order of the Board of Immigration Appeals ("BIA") denying his application for deferral of removal under the Convention Against Torture ("CAT"). Saraj maintained that if he returned to Afghanistan, he would likely suffer torture at the hands of General Dostum, a warlord who controls large areas of Afghanistan in defiance of the legitimate government of that country. The USCA granted the petition and remanded to the BIA. After an IJ denied Saraj's application, the BIA affirmed, stating that "The regulations implementing the Convention Against Torture allow for relief only if torture would be 'inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." 8 CFR Sec. 1208.18(a)(1). The record evidence reflects that General Dostum is not a public official in the current government of Afghanistan. Rather, it indicates that General Dostum is a rogue warlord, who controls the northern portion of Afghanistan. However, violence committed by individuals over whom the government has no reasonable control does not implicate CAT. Matter of S-V-, 22 I&N Dec. 1306 (BIA 2000) (protection does not extend to persons fearing entities that a government is unable to control). Moreover, while the record indicates that warlords, such as General Dostum, maintain considerable power in the areas they control, there was no evidence in the record to suggest that the government of Afghanistan acquiesces to the illegal activities of such warlords. In fact, the record suggests that the International Security Assistance Forces and the Afghan National Army expanded their patrols into parts of Afghanistan outside of Kabul, in an effort to curb the authority of warlords. Saraj raised two legal issues under the regulations implementing CAT, 8 CFR Sec. 208.18(a)(1): (1) whether a warlord who controls a part of a country qualifies as a person "acting in an official capacity," and (2) whether the legitimate government of Afghanistan could be said to "acquiesce" in conduct by the warlord when the government is aware of the conduct but has been unable to stop it. The USCA's jurisdiction over Saraj's petition is subject to 8 USC Sec. 1252(a)(2)(C), which bars it from reviewing a removal order against an alien who has committed certain controlled substances crimes. However, an exception to the jurisdictional bar allows it to review questions of law. 8 USC Sec. 1252(a)(2)(D); Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1103 (9th Circuit 2006) and Saraj's petition raised legal questions. Because the BIA's opinion did not squarely address Saraj's legal questions, the USCA could not determine the BIA's reasoning in order to conduct a review. Moreover, the BIA's citation to its opinion in In re S_V- in support of its acquiescence holding required further explanation in light of the USCA's disapproval of the "willful acceptance" standard espoused in that case. See Ochoa v. Gonzales, 406 F.3d 1166, 1172 (9th Cir. 2005). The USCA thus remanded for further clarification of whether an individual operating a de facto government in derogation of the legitimate government of a country can be said to be acting in an official capacity and whether a government can be said to acquiesce in actions by a private individual which the government is aware of but is unable to stop. See INS v. Orlando Ventura, 537 US 12, 16 (2002) ("Generally speaking, a court of appeals should remand a case to an agency for decision of a matter that statutes places primarily in agency hands.") The USCA thus granted the petition and remanded to the BIA.

12) IMMIGRATION: Hossain v. Gonzales, 03-74203 (9th Cir. Oct. 18, 2006) (unpublished). D.W. Nelson and O'Scannlain, Circuit Judges, and Jones, District Judge.

Hossain petitioned for review of an IJ's decision to deny his claims for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). Hossain argued that he was eligible for asylum because he suffered persecution in his native Bangladesh because he is a Bihari Shiite Muslim. The USCA held that the record evidence did not compel a finding that Hossain was subject to past persecution. His claims of past persecution and a well-founded fear of future persecution were based on instances regarding which Hossain's testimony was very vague and lacked specificity in dates and details. He thus offered no "specific facts that give rise to an inference that the applicant has been or has a good reason to fear that he or she will be singled out for persecution on one of the specified grounds." Cardoza-Fonseca v. INS, 767 F.2d 1448, 1453 (9th Cir. 1985). Moreover, with regard to his fear of future persecution, Hossain's immediate family members continue to reside in Bangladesh without incident. See Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001). The evidence thus did not compel that conclusion that Hossain was eligible for asylum. With respect to his claim for eligibility for relief under CAT, the USCA found that the claim has been waived. Hossain failed specifically to argue the issue. Finally, Hossain raised his due process claim for the first time on appeal. Since he failed to present this issue to the BIA, the USCA dismissed Hossain's due process claim for lack of jurisdiction for failure to exhaust his administrative remedies.